Opinion
SCR 366/17
09-28-2017
Laura Medina, Claimant, v. Peter Romanofsky, Defendant.
Claimant:Laura Medina 18 Father Capodanno Blvd, apt 4K Staten Island, NY 10305 DefendantPeter Romanofsky 85 Ocean Ave Staten Island, NY 10305
Claimant:Laura Medina 18 Father Capodanno Blvd, apt 4K Staten Island, NY 10305 DefendantPeter Romanofsky 85 Ocean Ave Staten Island, NY 10305 Philip S. Straniere, J.
"Who let the dogs out? Who, who, who, who?"
If the person making this inquiry is seeking to impose liability for letting the dogs out it will depend on if the "doggie" is the cute one with the "waggly tail" that so enamored Patti Page, or if it is a "doggie" in a herd under the watchful eye of a lonesome cowpoke being urged to "git along" by everyone from Woody Guthrie to Roy Rogers. According to the Court of Appeals, in the former situation there is no liability in a city with a "leash law" but there may be fault in the latter.
Background
Claimant, Laura Medina, commenced this small claims action against the defendant, Peter Romanofsky, alleging that owing to the failure of the defendant to control his dog, claimant's dog was injured. A trial was held on July 6, 2017. Both parties appeared without counsel.
Claimant testified that she was walking her dog, a male Goldendoodle, on March 27, 2017, on a leash along a public sidewalk in front of defendant's home on Ocean Avenue, Staten Island, New York. She stated that defendant's German shepherd, which was unleashed, left defendant's yard and attacked her dog. Claimant's dog required treatment from a veterinarian for his wounds.
Defendant admitted his dog was unleashed. Defendant's initial defense was that the claimant should not be walking her dog in front of his house, claiming some proprietary interest in the sidewalk. He changed the story to that his dog was in heat and claimant failed to contain her dog permitting it to enter his property and mount his dog. Defendant then altered the story to that the he was taking the dog from his car to the house on a leash when the incident occurred. A photograph of the area does not show complete fencing in front of defendant's house making the yard accessible from the street.
New York City is a municipality that has a "leash law" set forth in the Rules of the City of New York (RCNY). It provides at 24 RCNY §161.05: Dogs to be restrained.
(A) person who, owns, possesses or controls a dog shall not permit it to be in any public place or in any open or unfenced area abutting on a public place unless the dog is effectively restrained by a leash or other restraint not more than six feet long.
On its face, the defendant is in violation of this regulation in that his property was not completely fenced and he failed to effectively restrain his dog. Whether the court believes the defendant that his dog was on a leash, it is uncontroverted that the defendant was not in control of the leash which permitted the incident to occur whether it was on the public sidewalk or on a portion of his property adjacent to the public sidewalk.
But as noted in Kander & Ebb's musical "Chicago" regarding the character "Mary Sunshine," "things often aren't as they appear to be." In fact, the Court of Appeals has recently ruled that "leash laws" do not create a private negligence right of action. Once again proving that Momma Rose was correct when in "Gypsy" she responded to Miss Cratchitt's observation that "New York is the center of everything.," with "New York is the center of New York." Legal Issues Presented:
Is There a Cause of Action Against the Defendant?
The Court of Appeals in Bard v Jahnke, 6 NY3d 592 (2006)], rejected any common-law negligence claim existing for violation of the leash law making New York one of the few states to take that position. Most states follow the Restatement (Second) of Torts §518 which requires a dog owner to supervise and control the pet.
New York continues to permit recovery only if the plaintiff establishes the vicious propensities of the domestic animal. Once the vicious propensities are established recovery is permitted on a theory of strict liability [Collier v Zambito, 1 NY3d 444 (2004)]. Not all claims require the proving of vicious propensities. There is a viable negligence claim if your farm animal is unleashed, wanders off, and causes injury; even in New York City [Hastings v Sauve, 21NY3d 122 (2103)]. So, in New York City, if Ferdinand the Bull, leaves the cork tree he was sitting under, knocks over a flower delivery-person in the bicycle lane, a negligence action would lie. But if Rusty B Company yells "Yo Rinny" and the flower deliverer is knocked down by the dog, litigation will only be entertained if Rin Tin Tin has vicious propensities.
The first department found itself constrained to follow these precedents from the Court of Appeals, but noted: "We find this to be most unsatisfactory as a matter of public policy and recognize a cause of action for negligence in appropriate circumstances" [Scavetta v Wechsler, 149 AD3d 202 (2017)]. Considering New York has been in the forefront in giving individuals the right to seek redress in court for an alleged wrong, many arising from the creative mind of local lawyers, the position of the Court of Appeals is puzzling and troubling. It leaves persons injured by the failure of a dog owner to follow the local law remediless. In view of the fact that we entertain suits by students injured in school playgrounds on the ground of lack of supervision where the liability is nonexistent or by spectators hit by foul balls, it is hard to conceive why the Court of Appeals is restricting access to the courts.
Why do we deny a person suffering an injury from an unleashed dog his or her day in court when if treated like similar situations, the trier of fact would determine whether the incident was caused by "dogs just being dogs" or the failure of the owner to supervise his or her pet? It would seem that the proper procedure would be to permit the negligence claim to be filed and require the injured party to prove a prima facie case of lack of control.
Perhaps the majority on the Court of Appeals had just watched the DVDs of the Complete Lassie Collection and did not want to hold the owner of any dog liable, especially potentially one like Lassie who pulled Timmy out of so many scrapes; or maybe they were so traumatized by the death of Old Yeller they couldn't even think of punishing a dog or its owner; or so impressed by the good Balto did, and he was half-wolf, to impose fault on an owner.
Analysis of the entire New York City Administrative Code (NYCAC) and the RCNY supports the conclusion that the Court of Appeals is not correct. For instance, 24 RCNY §161.02 defines a "dangerous dog" as: a dog which menaces, threaten, attacks or bites a person or persons, or which kills or inflicts physical injury upon any persons, which such persons are peacefully \conducting themselves in any place where they may lawfully be, The New York State Agriculture and Markets Law (AML) §108(24) has a more expansive definition of a "dangerous dog." It provides:
"Dangerous dog" means any dog which (i) without justification attacks a person, companion animal as defined in subdivision five of section three hundred fifty of this chapter, farm animals as defined in subdivision four of section three hundred fifty of this chapter, or domestic animal as defined in subsection seven of this section and cause physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat or serious physical injury or death to one or more persons, companion animals, farm animals or domestic animals .
Under AML §108(7) dogs, cats and similar household pets are not domestic animals. They are a "companion animal" as defined in AML §350. A "companion animal" or "pet" is a dog or cat or any other domesticated animal normally maintained at or near a household.
The fact that defendant's dog bit claimant's dog while she was walking it and did not bite claimant does not mean that defendant's dog was not a "dangerous dog" under the NYCAC or AML. Neither statute uses the term "vicious propensities" or quantifies the number of prior incidents needed to label the canine a "dangerous dog" so that the dog's actions constitute a violation. It must be concluded that the purpose of the statute was to define a situation where a dog owner would have liability based on the dog's actions and not necessarily on having a "rap sheet" of prior incidents. There is no requirement that there be a prior finding that the dog was a "dangerous dog" to impose liability on the owner under the AML [Budway v McKee, 27 Misc 3d 316 (2010)].
Once there is a finding of a "dangerous dog," liability for medical costs is strictly imposed irrespective of whether the dog had vicious propensities. AML §123(10) provides:
The owner or lawful custodian of a dangerous dog shall, be strictly liable formedical costs resulting from injuries by such dog to a person, companion animal,farm animal or domestic animal.
The facts of this case establish that the defendant's dog is a dangerous dog under both the AML & NYCAC. There was no need to establish the dog had vicious propensities to impose liability for the costs the claimant incurred in treating her dog's injuries. Medical expenses also include veterinary expenses. Is There a Cause of Action for Nuisance?
Although there may not be a cause of action for negligence because of the current position of the Court of Appeals, the "leash law" may provide another basis for claimant and that is the tort of nuisance.
A basis for this claim is set forth in 24 RCNY §161.03, "Control of dogs and other animals to prevent nuisance," which provides:
A person who owns, possesses or controls a dog, cat or some other animal shall not permit the animal to commit a nuisance on a sidewalk of any public place, on a floor, wall, stairway, sidewalk, lawn, garden or roof of any public or private premises used in common by the public, or on a fence, wall, stairway or entranceway of a building abutting a public place.
Nuisance is not otherwise defined, but it does not appear to be limited to enforcement of the "pooper scooper law." "Animal nuisance" is defined at 24 RCNY §161.02 separately. It states that:
Animal nuisance shall include but not be limited to animal feces, urine, blood, body parts, carcasses, vomitus and pervasive odors; animals that carry or are ill withcontagious diseases communicable to persons or other animal; and dangerous dogs.
The question arises does the reference in §161.03 "nuisance" mean it is limited to the §161.02 definition of "animal nuisance" or is it meant in the broader legal definition of nuisance? In general, "nuisance" is used to describe the tort arising from the consequences of conduct, rather than the type of conduct involved which causes inconvenience to others [Copart Industries, Inc. v Consolidated Edison Company of New York, Inc., 41 NY2d 564 (1977)]. Had the drafters wanted the term to be limited to the definition of "animal nuisance" that is the term they would have used. Because they did not, it must be concluded they were using the common law meaning of nuisance and it could be applied to cover other actions of the pet arising from the owner's failure to control the dog or cat and is not limited to the "pooper scooper law."
Applying these definitions, it must be concluded that the actions of the defendant in falling to control his dog created a "nuisance" under the Health Law. First, because the defendant's dog menaced the claimant it would be classified as a "dangerous dog" and as a "dangerous dog" defendant created an "animal nuisance" under the statute. Second, the definition of "animal nuisance" says it is "not limited to" those categories set forth in the statute, which means that other actions of animals may be termed a nuisance and create liability on the owner or person in control of the animal.
The New York City Administrative Code has adopted a "Dangerous Dog Regulation and Protection Law. It too has certain definitions and rules applicable to this case. It defines a "dangerous dog" as:
Any dog that when unprovoked, approaches, or menaces any person in a dangerous or terrorizing manner; or in an apparent attitude of attack, upon the streets,sidewalks, or any public grounds or places; or (2) any dog with a known propensity,tendency or disposition to attack when unprovoked, to cause injury or to otherwiseendanger the safety of human beings or domestic animals; or (3) any dog whichbites, inflects injury, assaults or otherwise attacks a human being or domesticanimal without provocation on public or private property; or (4) any dog owned orharbored primarily or in part for the purpose of dog fighting on any dog trained fordog fighting. [NYCAC §17-342(c)].
There is a problem with this statute in that it appears to be different from the AML. The AML lists what most people consider "household pets" as "companion animals" while it considers "domestic animals" as what us "city-slickers" would call farm animals, that is animals raised in confinement generally for monetary purposes. However, the RCNY refers to cats and dogs as "domesticated" animals and not "companion" animals. The problem is that NYCAC §17-342(c), does not use the term "domesticated" it uses "domestic" which is not dogs and cats under the state law.
So if the NYCAC means domestic as defined in the AML it would mean that should Bill Sikes dog, "Bull's Eye" escape from the stage door of "Oliver," run to "Pippin" and attack Theo's duck-Sikes would be liable; likewise if Bull's Eye takes a nip out of Louise's lamb backstage at "Gypsy,"-Sikes again would be at fault; but if Bull's Eye injures Sandy during "Annie," -there would be no liability even if Sandy's owner, Bill Berloni suffered loss of income because Sandy's understudy would have to go on.
It seems clear that the drafters of this statute were aware of the case law differentiating between dogs with vicious propensities and situations where the public needed to be protected when the dog did not have vicious propensities but a reasonable person would feel threatened. This raises the question of what happens when the injured dog is a "working dog" either in the entertainment industry, for breeding or for shows. Not permitting a negligence suit for damages leaves the injured owner remediless and having to absorb all the expenses incurred when the other owner fails to control the dog in violation of the leash law.
NYCAC § 17-347 recognizes that there are instances where the owner would not face a "dangerous dog" charge such as the person injured was trespassing or committing a tort on the premises or was abusing the dog. The section also states that "(i)f the trespass is determined to be an innocent nature, the commissioner may, find the dog to be dangerous."
Also, indicative that the drafters of the statute believed that persons found in violation under this law would face some civil liability is the language of NYCAC §17-345(c) which permits the commissioner to order the owner of a dangerous animal to maintain, in full force and effect, a liability insurance policy of one hundred thousand dollars for personal injury or death of any person, resulting from an attack of such dangerous dog. If New York State does not recognize any cause of action except if the dog has vicious propensities, why should the commissioner be able to require the owner to obtain liability insurance when the owner cannot be negligent and the dog would still get "one free bite."
NYCAC §17-350 sets forth the violation and penalties to which any person who failed to comply with the New York City Dangerous Dog Regulation and Protection Law will be subject. First, such person is guilty of a misdemeanor including a fine of between $500.00 and $1,500.00 as well as imprisonment for not more than one year. Second, there is an independent civil penalty which can be assessed of between $500.00 and $1,500.00. But more relevant to this proceeding, is the third subparagraph which permits any fine or penalty assessed to be reduced by any amount which is paid as restitution by the owner of the dog to the person or persons suffering serious physical injury as compensation for unreimbursed medical expenses, lost earnings or other damages resulting from such injury. If, as the Court of Appeals has held, there is no civil liability, why would the dog owner pay the injured party? Obviously, payment would be made by the owner out of sense of guilt or acceptance of responsibility or just general altruism and not because it could eliminate or reduce any potential damage claim in a civil lawsuit, because there is no possible suit for negligence, and if the only ground for suit is strict liability, any medical expenses incurred would be recovered as damages.
The Court of Appeals position leads to the conclusion that the purpose of the "leash law" is revenue raising only and not to protect the public from uncontrolled pets, as the criminal and civil penalties are imposed irrespective of whether the dog has vicious propensities.
The actions of the defendant in not having a completely fenced yard and failing to control his dog so that any member of the public whether walking their own dog or not would feel threatened or afraid to walk in front of defendant's house on a public sidewalk created a nuisance. Claimant suffered damages because of the nuisance created by the defendant in that her dog was bitten and required veterinary treatment. Conclusion:
Judgment for claimant. Claimant has proven a prima facie case of nuisance. Claimant also established a prima facie case for negligent control of a dog in violation of the municipal ordinances. Claimant has established that the defendant's dog was a "dangerous dog" as defined in the statutes and as such the defendant is strictly liable for all medical treatment. However, because the Court of Appeals has determined that cause of action for negligent control and supervision of the dog is not viable in New York, claimant cannot recover on that theory.Claimant has not submitted any proof that the defendant's dog had vicious propensities. Therefore, the only grounds for recovery are common law nuisance and statutory nuisance, with damages being imposed by the AML on a strict liability basis.
Judgment for claimant in the amount of $305.75 the total she paid for two veterinary treatments for the wounds suffered by her dog together with interest from the date of judgment, costs and disbursements. Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision. The foregoing constitutes the decision and order of the court. Dated: September 28, 2017 Staten Island, NY HON. PHILIP S. STRANIERE Judge, Civil Court Notes: "Who Let the Dogs Out" by the Baha Men allegedly as nothing to do with canines. However, because I have not been able to understand the lyrics to any song written since the Fillmore East closed, I have appropriated the title solely to make a point and will ignore the content of the song. "How Much Is That Doggie in the Window" by Bob Merrill "Git (Get) Along Little Doggies," traditional cowboy song first published by John Lomax.