Opinion
9349/2016
11-15-2017
Arif Hazin, Plaintiff, v. Mark Bayer, JENNIFER BAYER and "JANE DOE" BAYER, said name being fictitious and intended to identify the daughter of, defendants MARK BAYER and JENNIFER BAYER, Defendants.
The following papers numbered 1 to 9 read on this motion by defendants for an Order pursuant to CPLR 3212, granting summary judgment in favor of defendants and dismissing plaintiff's complaint against them:
Papers/Numbered
Notice of Motion-Affirmation-Exhibits 1 - 4 Affirmation in Opposition-Exhibits 5 - 7 Reply Affirmation 8 - 9
This is an action to recover damages for personal injuries allegedly sustained by plaintiff when he was bit by defendants' dog on August 22, 2015 on the sidewalk adjacent to the premises of 33-31 91st Street, in Queens County, New York.
Plaintiff commenced this action by filing a summons and complaint on August 8, 2016. Defendants joined issue by service of a verified answer dated September 1, 2016. Defendants now move to dismiss the complaint on the grounds that they bear no liability for the subject incident as a matter of law.
Plaintiff appeared for an examination before trial on June 12, 2017. He testified that he was involved in the subject dog bite incident when he was walking on a street between Francis Lewis Boulevard and 191st Street. He was leaving his sister's store on Francis Lewis Boulevard and was headed to the bus stop to go back home. The dog was on the sidewalk. The dog was a dark-colored small dog. He is five foot five inches tall. The dog was shorter than his knee. He had seen the dog prior to the subject incident. He would usually walk from the bus stop to his sister's store and see the dog. He would see the dog on the other side of the street accompanied by children. He saw the dog with a twelve to fourteen year old boy a couple of times. On the day of the incident, prior to being bitten, he did not see the dog. He saw a woman who was walking behind him. The woman was walking in the same direction as him. At the time of the incident, the dog was leashed. He did not initially notice the woman holding the leash. He heard some noises. He turned around. He felt pain in his right calf and noticed that the right leg of his pants was ripped. The dog bit him on his right calf. There was a scratch on his left calf. Afterwards, he observed the woman trying to hold onto the dog. Prior to the date of the incident, he told his sister that the dog is kind of in attack mode all the time when he is passing by. He did not make any complaint to the owner of the dog regarding the dog. He did not discuss the dog with anyone on the block or with the kids that he would see playing with the dog.
Defendant Mark Bayer appeared for an examination before trial on June12, 2017. He testified that at the time of the subject incident, he owned one dog named Chloe. Chloe is a Toy Poodle-Havanese mix. At the time of the incident, Chloe was approximately three years old. Chloe is approximately seven inches tall and weighs between nine and eleven pounds. Chloe would go out for walks three times per day. On average, he would walk the dog two times per day. Chloe's leash was about five feet long. His wife, Jennifer Bayer, and their three children would also walk the dog. On rare occasions, his mother-in-law and his parents would walk the dog. His mother-in-law had walked Chloe three times over three to four years. His parents walked Chloe once or twice in the last four years. When he walks Chloe, she never attempts to run or shake free of her leash. He was informed of the subject incident after his mother-in-law called his wife on the telephone. He was not aware of any contact between plaintiff and Chloe prior to the incident. Chloe had never been involved in any incidents with other dogs. No family, friends or neighbors ever reported that Chloe was engaging in an aggressive manner. His sons never told him of anyone telling them about Chloe engaging in an aggressive manner. His parents and mother-in-law never told him that Chloe had engaged in an aggressive manner. He did not receive any summonses or tickets regarding Chloe or the subject incident.
Defendant Jennifer Bayer appeared for an examination before trial on June 12, 2017. She testified that in August 2015, she owned one dog named Chloe. Chloe is approximately eight inches tall and weighed approximately nine pounds at the time of the incident. She was never informed by anyone at Petco of aggressive behavior on the part of her dog prior to the subject incident. She would usually walk Chloe once per day. Her husband and children would also walk Chloe. Her mother and in-laws would walk Chloe occasionally. When Chloe is walked, she has a leash on. Chloe always walks beside her and does not walk in front of her. She was advised of the subject incident when her mother informed her over the telephone. She did not receive any tickets or summonses as a result of the subject incident. Prior to the subject incident, neither her mom nor any of her children ever reported any incidents of aggressive behavior on Chloe's part.
Based on the above testimony, defendants' counsel contends that defendants are entitled to summary judgment as they were not aware that their dog had any vicious propensities. The dog never inflicted injuries or displayed any tendencies which could be characterized as being vicious. Additionally, there is no evidence of any conduct on the part of the dog which would have placed defendants on notice of the possibility of any incident.
In opposition, plaintiff submits an affidavit dated October 11, 2017. He affirms, inter alia, that he personally witnessed the aggressive nature of the dog on approximately twenty separate occasions in the one year period immediately prior to the subject incident. On each of those occasions the dog was not alone, but was accompanied by people who he believes to be members of defendants' family. He further affirms that whenever the dog would see him, the dog would lunge toward him on its leash, often attempting to drag whoever was holding on to it to the opposite side of the street. Additionally, while the dog was attempting to get to him, the dog would bark, growl and bare its teeth at him. On at least one occasion prior to the subject incident, he mentioned to a teenage boy holding the dog's leash to please hold onto the dog tightly.
Based on the testimony and plaintiff's affidavit, counsel for plaintiff contends that summary judgment must be denied as there is at least a triable issue of fact as to whether defendants were aware of the dog's vicious propensities.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v City of New York, 49 NY2d 557 [1980]). A court deciding a motion for summary judgment is required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and proof submitted by the parties in favor of the opponent to the motion (see Myers v Fir Cab Corp., 64 NY2d 806 [1985]).
To recover in strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities (see Petrone v Fernandez, 12 NY3d 546 [2009]; Bueno v Seecharan, 136 AD3d 702 [2d Dept. 2016]); Matthew H. v County of Nassau, 131 AD3d 135 [2d Dept. 2015]). "Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm" (Ioveno v Schwartz, 139 AD3d 1012, 1012 [2d Dept. 2016]; see Bard v Jahnke, 6 NY3d 592 [2006]; Collier v Zambito, 1 NY3d 444 [2004]; Bueno v Seecharan, 136 AD3d 702 [2d Dept. 2016]).
Here, defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that they were not aware that their dog had ever bitten anyone or exhibited any aggressive behavior prior to the subject incident (see Bueno v Seecharan, 136 AD3d 702 [2d Dept. 2016; Ioveno v Schwartz, 139 AD3d 1012 [2d Dept. 2016]; Vallego v Ebert, 120 AD3d 797 [2d Dept. 2014]; Roche v Bryant, 81 AD3d 707 [2d Dept. 2011]).
However, viewing the evidence in the light most favorable to the non-moving party, plaintiff's opposition raises a triable issues of fact that preclude summary judgment. Plaintiff testified that he witnessed the dog displaying aggressive behavior on prior occasions, including lunging and attempting to drag whoever was holding on to the leash. Additionally, on those prior occasions, plaintiff witnessed the dog with people who he believes to be members of the defendants' family. Thus, issues of fact remain, including, inter alia, whether the dog displayed vicious propensities and whether the defendants knew or should have known of the dog's vicious propensities. Moreover, a court may not weigh the credibility of witnesses on a motion for summary judgment, unless it clearly appears that the issues are not genuine, but feigned" (Conciatori v Port Auth. of NY & N.J., 46 AD3d 501 [2d Dept. 2007]).
Accordingly, for the reasons set forth above, it is hereby
ORDERED, that defendants' motion for summary judgment is denied. Dated:November 15, 2017 Long Island City, NY ______________________________