Opinion
Index No. 611152/2020
03-13-2023
Thomas DADDINO, Plaintiff, v. Thomas S. COSMO and Frances Cosmo, Nicholas Cosmo and Annunziata Cosmo, Defendants.
Decolator, Cohen & Diprisco, LLP, represented Plaintiff THOMAS DADDINO. Gary Robert Schwartz, Esq., of Jacobson & Scwartz, represented Defendant THOMAS COSMO. Scahill Law Group, P.C., represented Defendant FRANCES COSMO. Traflet & Fabian, represented Defendants NICHOLAS COSMO and ANNUNIZIATA COSMO.
Decolator, Cohen & Diprisco, LLP, represented Plaintiff THOMAS DADDINO.
Gary Robert Schwartz, Esq., of Jacobson & Scwartz, represented Defendant THOMAS COSMO.
Scahill Law Group, P.C., represented Defendant FRANCES COSMO.
Traflet & Fabian, represented Defendants NICHOLAS COSMO and ANNUNIZIATA COSMO.
Conrad D. Singer, J. The motion filed by the defendant, Frances Kegel, s/h/a Frances Cosmo ["Frances"], for an Order pursuant to CPLR § 3212, granting her summary judgment and dismissing the Complaint and any crossclaims and counterclaims [Seq. 003]; and the motion filed by the defendants Nicholas Cosmo ["Mr. Cosmo"] and Annunziata Cosmo ["Mrs. Cosmo"] [collectively, "Mr. and Mrs. Cosmo"] for an Order pursuant to CPLR § 3212 granting them summary judgment and dismissing the claims brought against them by the plaintiff, Thomas Daddino ["plaintiff’] [Seq. 004], are consolidated for disposition and are determined as hereinafter follows:
On or about November 18, 2019, the plaintiff commenced an action in the Supreme Court of the State of New York, Nassau County, against Thomas S. Cosmo ("Thomas") and defendant Frances, under Index No. 616205/2019. On or about June 3, 2020, the plaintiff commenced an action in the Supreme Court of the State of New York, Nassau County, against defendants Mr. and Mrs. Cosmo, under Index No. 605274/2020. On or about October 12, 2020, the plaintiff commenced an action in the Supreme Court of the State of New York, Nassau County, against Thomas and Frances, under Index No. 611152/2020. The three actions have all been consolidated for the purpose of trial under this Index No., 611152/2020, and issue has been joined as to all defendants.
As a threshold matter, the Court finds that Mr. and Mrs. Cosmo timely filed their summary judgment motion [Seq. 004]. The plaintiff filed a first Note of Issue on April 25, 2022, but such was returned for correction. The plaintiff subsequently re-filed the Note of Issue, which was marked received by the NYSCEF system and served on all parties on June 7, 2022, as confirmed by the NYSCEF Confirmation Notice which accompanies the Note of Issue [NYSCEF Doc. No. 40]. The defendants’ motion [Seq. 004] was e-filed and served on July 22, 2022, which was 45 days after the corrected Note of Issue was e-filed and 88 days after the first Note of Issue was initially e-filed. The Court finds that the parties’ time to move for summary judgment should be measured from the date that the Note of Issue was successfully filed, i.e., June 7, 2022, and as the defendants’ motion [Seq. 004] was filed 45 days after that date, the Court finds that their summary judgment motion is timely. The Court finds that defendant Frances's motion [Seq. 003] is also timely, as it was filed on June 14, 2022, which is 7 days after the Note of Issue was re-filed on June 7, 2022, and 50 days after the Note of Issue was initially filed on April 25, 2022.
The plaintiff is a police officer with the Nassau County Police Department who is assigned to the Seventh Precinct. This action arises from an incident which occurred during the evening hours on August 24, 2019, when the plaintiff was dispatched to a call at XXXX C. Drive [the "Cosmo Home"], for a citizen complaint. At the time of the plaintiff's incident, Mr. & Mrs. Cosmo were watching their daughter Frances's dog, an American Staffordshire Terrier (in the Pit Bull family) named Kegs. Frances resides in Massapequa with her husband and their five children, all of whom are under the age of 18 years old. On or before August 24, 2019, Frances dropped the dog Kegs off at her parents’ house for them to watch the dog while Frances's family was going on a six-day vacation. Mr. and Mrs. Cosmo had previously watched Kegs for extended periods of time and things "went great" on those prior occasions.
When the police responded to the Cosmo House on August 24, 2019, Mrs. Cosmo opened the door to speak to the plaintiff and to explain what she had seen when she called the police. She was holding the storm door open as she was talking with the officer. The plaintiff testified that the storm door remained closed and he observed a dog. He further testified that he remained at the bottom of the steps while talking to Mrs. Cosmo and that she opened the screen door, and the dog started to push through. The plaintiff testified that the dog was a pit bull, estimated to weigh about 90 pounds. He testified that as Mrs. Cosmo opened the door, the plaintiff tried to warn her about the dog, and started to say "ma'am, the dog", and that was when the dog pushed the door open and pushed Mrs. Cosmo out of its way.
The plaintiff testified that he retreated to give the dog space as the dog started approaching him, and that he didn't run until the dog started to charge at him. He further testified that he then turned and ran and tried to get into his police vehicle. Within a few seconds of the dog running, the plaintiff discharged his weapon and shot the dog. He fired three rounds at the dog, in rapid succession. When the plaintiff fired the weapon, Mr. and Mrs. Cosmo were still at the front door of the house. The plaintiff fell as he was trying to get away from the dog. He testified that the dog never bit him or came into contact with his body, but he believed that the dog was about to bite him. The dog was not muzzled on the date of the incident, and there were no "Beware of Dogs" signs at the property. The plaintiff was not aware of any prior incidents involving the dog attacking or nearly attacking people or other animals.
Defendants Thomas, Frances, and Mr. & Mrs. Cosmo all testified that Kegs is a friendly dog and that the dog has had no prior concerning incidents. Mrs. Cosmo testified when the police responded to the defendants’ citizen's complaint, she opened the front door and then the storm door, to explain what she had seen. She further testified that she was holding the storm door open as she was talking with the officer. She testified that the dog was right behind her, barking and pushing at the door as she spoke to the officer, and eventually ran out. She testified that the dog was barking normally, as a dog typically does when someone comes to the door, and that the dog stopped and started barking a couple of times during the time that she was at the door. She testified that the dog eventually pushed the door a little bit and ran out and that he was barking. She chased after him. She testified that when the dog got out, she told the plaintiff "[s]tay there, don't run, he doesn't bite" and that the officer started going down the driveway and the dog was going behind him.
She testified that she was behind the dog, trying to get the dog by the collar and to hold him, when the plaintiff started shooting. She testified that it was approximately ten seconds from the point the dog got out to the point when the dog was shot, and that she was with the dog for the full ten seconds, calling him to come back. She testified that the dog stopped in response to her call, and then the dog was shot, and that she felt the ricochet in her arm and she started screaming at the plaintiff, "What are you doing? Stop. He's not going to bite you. Just stop". Mrs. Cosmo is familiar with the dog, she has dog sat for him a few times, and she would also see him at Frances's home. She testified that she never observed any other incident involving the dog prior to the plaintiff's incident, including during the prior occasions when she "dog sat" Kegs for her daughter Frances. The dog was subsequently taken to the vet for medical attention after being shot by the plaintiff.
The plaintiff's Verified Complaint asserts four causes of action against defendant Frances: 1) negligence; 2) strict liability; 3) recovery pursuant to General Municipal Law Section 205-e, arising from the defendants’ alleged violation of Sections 119 and 121 of the Agriculture and Markets Law, and 4) a second cause of action for strict liability, which appears to be duplicative of the other cause of action for strict liability. The plaintiff's Verified Complaint pertaining to Mr. and Mrs. Cosmo asserts nearly the same four causes of action against those defendants: 1) negligence; 2) strict liability; 3) a claim for recovery pursuant to General Municipal Law Section 205-e, arising from the defendants’ alleged violation of Sections 119 and 121 of the Agriculture and Markets Law, and 4) a claim for recovery pursuant to General Municipal Law Section 205-e, arising from the defendants’ alleged strict liability due to the dog's vicious propensities and tendencies, which were known/should have been known by the defendants prior to the plaintiff's incident.
The defendants correctly argue in their respective summary judgment motions that, to the extent the plaintiff asserts a common-law negligence cause of action to recover damages for injuries caused by defendant Frances's dog, that claim is dismissed because New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal. ( Cintorrino v. Rowsell , 163 A.D.3d 919, 919-20, 82 N.Y.S.3d 481 [2d Dept. 2018] ; Xin Kai Li v. Miller , 150 A.D.3d 1051, 1051-52, 54 N.Y.S.3d 652 [2d Dept. 2017] [citations omitted]). Accordingly, that portion of the defendants’ respective motions [Seq. 003 and Seq. 004] which seek dismissal of the plaintiff's cause of action for common-law negligence are hereby GRANTED, and the plaintiff's cause of action for common-law negligence is dismissed and severed from this action.
The plaintiff also asserts a cause of action against the moving defendants that is premised on strict liability. To prevail on such a claim for a dog attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog knew or should have known of such propensities. (See Xin Kai Li , 150 A.D.3d at 1052, 54 N.Y.S.3d 652 ). "Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others", and evidence tending to prove that a dog has vicious propensities "includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm". ( Xin Kai Li , 150 A.D.3d at 1052, 54 N.Y.S.3d 652 [citations and internal citations omitted]); see also Hastings v. Sauve , 21 N.Y.3d 122, 125, 967 N.Y.S.2d 658, 989 N.E.2d 940 [2013] ["We made clear that by ‘vicious propensities’ we meant any behavior that ‘reflects a proclivity to act in a way that puts others at risk of harm"]).
In this case, Frances as well as Mr. and Mrs. Cosmo made a prima facie showing of their entitlement to summary judgment by demonstrating that the dog did not have vicious propensities and, in any event, that they neither knew nor should have known that the dog had vicious propensities. ( Bukhtiyarova v. Cohen , 172 A.D.3d 1153, 1155, 102 N.Y.S.3d 57 [2d Dept. 2019] ). The defendants’ deposition testimony and their evidence submitted in support of their respective motions uniformly establishes that the dog did not have any prior involvement in any altercations with people or other animals, that no one had previously complained to Frances about the dog's behavior, and that none of the defendants had ever observed the dog acting inappropriately toward anyone or anything. To the contrary, the defendants all testified that the dog is a lovable "mush", and Mrs. Cosmo testified that the dog had slept on the couch with Frances’ young children, the youngest being three years old.
The Court finds that the plaintiff failed to raise a triable issue of fact in opposition to the defendants’ prima facie showing. Contrary to the plaintiff's arguments, the Court finds that the defendants’ testimony about the dog previously barking at strangers does not create an issue of fact as to whether the dog had a vicious propensity. Rather, barking at strangers or passersby and other "normal canine behavior" will not support a finding of knowledge of vicious propensities. ( Brooks v. Adell , 211 A.D.3d 792, 793, 181 N.Y.S.3d 125 [2d Dept. 2022] ). Likewise, the plaintiff's impressions and observations of the dog during the subject incident, including that the unleashed dog allegedly "aggressively growl[ed], bark[ed], and viciously charge[d]" at the plaintiff, do not demonstrate that the defendants knew or should have known of the dog's alleged vicious propensities. ( Costanza v. Scarlata , 188 A.D.3d 1145, 1147, 132 N.Y.S.3d 844 [2d Dept. 2020] ["Further, the nature and severity of the attack does not demonstrate that the defendants knew or should have known of the dog's alleged vicious propensities"]). The Court finds that the remaining evidence submitted by the plaintiff in opposition to the defendants’ motions, including the affidavits of two individuals who were not identified as potential witnesses during discovery, were likewise insufficient to give rise to an issue of fact in opposition to the defendants’ showing. As the defendants made their prima facie showing of entitlement to summary judgment, and the plaintiff failed to raise an issue of fact in opposition thereto, the portions of the defendants’ respective summary judgment motions [Seq. 003 and 004] which seek dismissal of the plaintiff's claims for strict liability are GRANTED and the plaintiff's causes of action for strict liability are severed and dismissed.
The plaintiff also seeks recovery pursuant to General Municipal Law § 205-e. The statute provides, in pertinent part, as follows:
"1. In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury ... occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury ... shall be liable to pay any officer
... of any police department injured, ... while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department, ... a sum of money, in case of injury to person, not less than one thousand dollars, ... such liability to be determined and such sums recovered in an action to be instituted by any person injured ..." ( General Municipal Law § 205-e [1] ).
"A police officer seeking to recover under General Municipal Law § 205–e must identify a statute or ordinance with which the defendant failed to comply and must, in addition, set forth facts from which it may be inferred that the defendant's negligence directly or indirectly caused harm to him or her". ( Montalvo v. City of New York , 46 A.D.3d 772, 773, 848 N.Y.S.2d 330 [2d Dept. 2007], leave to appeal denied , 10 N.Y.3d 707, 858 N.Y.S.2d 654, 888 N.E.2d 396 [2008] [citations omitted]).
In this case, the plaintiff's claims brought pursuant to General Municipal Law § 205-e, as set forth in his Verified Complaint and Bill of Particulars as well as Supplemental Bill of Particulars, are premised on the defendants’ alleged violations of Agriculture and Markets Law §§ 119 ["Disposition of Fines"] and 121 ["Night Quarantine"]. The Court hereby disregards those additional statutory provisions which the plaintiff first alleges were violated by the defendants in his motion opposition papers.
"The overriding purpose behind adoption of General Municipal Law § 205-e was to ameliorate the effect of the common-law rule that disadvantaged police officers who, unlike members of the general public, were barred from recovery for injuries resulting from risks inherent in their job." ( Montalvo , 46 A.D.3d at 773, 848 N.Y.S.2d 330 [emphasis in original]). "The statute, was not, however, intended to give police officers greater rights and remedies than those available to the general public." [ Montalvo , 46 A.D.3d at 773, 848 N.Y.S.2d 330 [emphasis in original] [citations omitted]).
Considering that in Petrone v. Fernandez , 12 N.Y.3d 546, 550, 883 N.Y.S.2d 164, 910 N.E.2d 993 [2009], the Court of Appeals held that when harm is caused by a domestic animal, its owner's liability is determined solely by the rule of strict liability for harm caused by a domestic animal, and that therefore the defendant's alleged violation of a local leash law in that case was "irrelevant because such violation is only some evidence of negligence, and negligence is no longer a basis for imposing liability", the Court finds that to grant the plaintiff relief against the defendants for their alleged violations of Sections 119 and 121 of the Agriculture and Markets Law would provide the plaintiff with a greater remedy than that which is available to the general public. ( Montalvo , 46 A.D.3d at 773, 848 N.Y.S.2d 330 ). Furthermore, the Court has reviewed the statutory provisions contained in Sections 119 and 121 of the Agriculture and Markets Law and finds that these sections do not appear to set forth a standard or regulation which it could be said was violated by the defendants in this case. ( Agriculture and Markets Law §§ 119 and 121 ). Therefore, the portion of the defendants’ respective motions which seek dismissal of the plaintiff's claims brought pursuant to General Municipal Law § 205–e are GRANTED, and those causes of action are severed and dismissed.
As the Court has granted the motions of defendants, Frances [Seq. 003] and Mr. and Mrs. Cosmo [Seq. 004] in their entirety, the plaintiff's Verified Complaint is hereby dismissed as against all of the moving defendants.
It is unclear whether this case has been discontinued as against defendant Thomas S. Cosmo, as there is a partially executed stipulation of discontinuance uploaded to NYSCEF [NYSCEF Doc. 84] as an exhibit to Motion Seq. 005, and that motion was withdrawn by stipulation uploaded as NYSCEF Doc. 133. However, considering the Court's inherent authority to search the record and grant summary judgment to a non-moving party, the Court finds it appropriate, having searched the record, to dismiss the plaintiff's Complaint as to Thomas S. Cosmo as well. (See CPLR § 3212[b] ). Thomas is the son of Mr. and Mrs. Cosmo, and the brother of defendant Frances, he has resided in Michigan since 2000, including at all times relevant to this action, he was not present for the subject incident, and had no knowledge of the dog having any violent propensity. Under such circumstances, the plaintiff's case is dismissed as against defendant Thomas S. Cosmo as well. Therefore, this action is dismissed in its entirety.
Accordingly, it is hereby,
ORDERED , that defendant Frances Cosmo's motion for summary judgment [Seq. 003] is hereby GRANTED, in its entirety; and it is further,
ORDERED , that defendants Nicholas Cosmo and Annunziata Cosmo's motion for summary judgment [Seq. 004] is hereby GRANTED in its entirety; and it is further,
ORDERED , that the Complaint as against defendant Thomas S. Cosmo is dismissed as well, and it is further,
ORDERED , that the plaintiff's Complaint is hereby dismissed and clerk is hereby directed to enter judgment in the defendants’ favor; and it is further,
ORDERED , that all other requests for relief not specifically addressed herein are deemed DENIED .
This constitutes the Decision and Order of this Court.