Opinion
28401
05-14-2020
Robert Saddlemire and TAMICA SADDLEMIRE, Plaintiffs, v. Simeon Hunsdon and LINDA HUNSDON, Defendants. SIMEON HUNSDON and LINDA HUNSDON,Third-Party Plaintiffs, v. GARY FISHER, MARY JANE FISHER and CONSETTA SUCESE,Third-Party Defendants.
E. Stewart Jones Hacker Murphy, LLP, Troy (David I. Iversen of counsel), for Robert Saddlemire, plaintiff. Harris, Conway & Donovan, PLLC, Albany (Michael C. Conway of counsel), for Tamica Saddlemire, plaintiff. Brennan & White LLP, Queensbury (William J. White of counsel), for defendants/third-party plaintiffs. Boeggeman, Corde, Ondrovic & Hurley, P.C., Albany (Paul A. Hurley of counsel), for Gary Fisher and Mary Jane Fisher, third-party defendants. Smith, Dominelli & Guetti, LLC, Albany (Jennifer L. Dominelli of counsel), for Concetta Sucese, third-party defendant.
E. Stewart Jones Hacker Murphy, LLP, Troy (David I. Iversen of counsel), for Robert Saddlemire, plaintiff. Harris, Conway & Donovan, PLLC, Albany (Michael C. Conway of counsel), for Tamica Saddlemire, plaintiff. Brennan & White LLP, Queensbury (William J. White of counsel), for defendants/third-party plaintiffs. Boeggeman, Corde, Ondrovic & Hurley, P.C., Albany (Paul A. Hurley of counsel), for Gary Fisher and Mary Jane Fisher, third-party defendants. Smith, Dominelli & Guetti, LLC, Albany (Jennifer L. Dominelli of counsel), for Concetta Sucese, third-party defendant. Martin D. Auffredou, J.
This action arises from an accident involving a motorcycle and two horses, which occurred on June 12, 2017, at approximately 10:17 PM, on the roadway in front of 229 State Route 197, Fort Edward, Washington County, New York. Defendants/third-party plaintiffs Simeon Hunsdon ("Mr. Hunsdon") and Linda Hunsdon ("Mrs. Hunsdon") (collectively, "the Hunsdons" or "defendants") own the property at 229 State Route 197, Fort Edward. The Hunsdons have operated a horse farm, consisting of 29.6 acres ("the farm"), at that location since approximately 1984. The Hunsdons raised their own horses on the farm and also boarded horses owned by third parties ("owners"). Owners rented stalls in the barn and were required to clean the stalls. Owners did not need permission to go to the farm, had free access and could ride in open fields and also a fenced-in area which consisted of a large open field, approximately 10 to 12 acres in size ("the field"), surrounded by page wire, with barbed wire on top in most areas. The page wire was intended to be four foot in height, but the actual height varied due to the contour of the ground. Five-foot high metals gates were located at one end of the fenced-in area. A metal gate, approximately 4-feet high and 3-feet wide, was estimated to be around 200 feet from the side of the barn. The gate was affixed to metal fencing, which was attached to the page wire. Mr. Hunsdon was never made aware that the metal gate was open when horses were in the field.
Owners were permitted to put their horses in the field at their discretion and the horses could be left in the field overnight, again at the discretion of their owners. The Hunsdons testified at their depositions that approximately 10 to 12 years prior to the accident, horses got out of the field after a hot air balloon landed there and 10 to 12 horses stampeded and ran through the fence, taking the fence with them and spreading it all over the field. On another occasion, a filly ran full speed, into the fence, and flipped over it, and her mother jumped the fence. Third-party defendant Concetta Sucese ("Ms. Sucese" or "third-party defendant Sucese") claimed that the same summer as the accident, her husband observed that one of the Hunsdons' horses, who was pregnant or with her foal, got out of the field, into another field at the farm. Ms. Sucese testified that her husband called the Hunsdons, but she did not discuss the incident with them. There is no evidence that on any other occasions prior to the accident horses got out of the field, onto neighbors' property or into the road.
At the time of the accident, the Hunsdons were boarding two horses. Third-party defendant Gary Fisher ("Mr. Fisher") had boarded horses with the Hunsdons on and off for 15 to 20 years and had been boarding his horse, "Determined Desire" ("Dee"), at the farm since approximately 2007 or 2008. Another horse, "Car-Lins Two by Too" ("Car-Lins"), had been at the farm for eight to 10 years. The Hunsdons claim they had sold Car-Lins to Ms. Sucese prior to the accident. However, Ms. Sucese claims she was only leasing and caring for the horse. Ms. Sucese had reached an agreement with Mr. Hunsdon to purchase Car-Lins for $2,000, which she would "pay" by providing services at the farm. Pursuant to the agreement, Mr. Hunsdon would be permitted to breed Car-Lins one time. Ms. Sucese acknowledges that on or about September, 2011, she had completed sufficient work at the farm to purchase the horse. However, at her deposition, Ms. Sucese denied that she is, or was, the owner of Car-Lins, because she has no documentation stating she is the owner and was never given a bill of sale. Ms. Sucese avers, in her affidavit in support of her motion, that because she never received any documentation regarding ownership, she is "under the belief that I do not own Car-Lins." The Hunsdons provided a bill of sale for the horse, dated September 25, 2011, which was allegedly signed by Ms. Sucese. However, Ms. Sucese denies that the signature on the bill of sale is hers and claims that someone else signed her name on the document and that she never signed a bill of sale for Car-Lins. At the time of the accident, the United States Trotting Association registry listed the Hunsdons as the owners of Car-Lins. Mrs. Hunsdon testified that was only because the Hunsdons' agreement with Ms. Sucese provided that the Hunsdons retained breeding rights for Car-Lins.
The Hunsdons did not have any problems with either Dee or Car-Lins at the farm, nor had the horses ever escaped from the field or the barn, before the accident. The Hunsdons had not received any complaints from neighbors about either horse getting out of the farm.
On the date of the accident, Dee and Car-Lins were out in the field. It is unclear who put them in the field leading up to the accident. Mr. Hunsdon denied that he or his wife put the horses out. Both third-party defendants testified that they would each put out and take in the other's horse on occasion and they were the only ones to put out or take in the horses. Mr. Fisher testified that he believed the horses had been in the field "for a couple of days." Ms. Sucese testified that when she had been at the farm a day or two before the accident, she brought both horses in from the field and when she left, they were in their stalls; when she arrived at the farm on the date of the accident, both horses were in the field and the gate was secured shut.
On the night of the accident, a man (identified as Jarred Dillon) knocked on the Hunsdons' door and advised Mrs. Hunsdon that two horses were in the road and he almost struck them. Mr. Dillon parked his car in the roadway and turned on his emergency flashers and stood in the roadway waving to ensure traffic would stop. Mrs. Hunsdon went outside and called the horses. As the horses were walking towards Mrs. Hunsdon, crossing the center of the roadway to enter the driveway to the farm, Dee was struck by a motorcycle being operated by plaintiff Robert Saddlemire, on which his wife, plaintiff Tamica Saddlemire was riding as a passenger. The day after the accident, the Hunsdons walked around the field and did not observe any broken or downed fencing or any broken or open gates. It is unknown how the horses were able to get out of the field and into the road.
Plaintiffs subsequently commenced this action against the Hunsdons, alleging defendants were negligent and/or acted with reckless disregard towards motorists traveling on State Route 197. The Hunsdons commenced a third-party action against Gary Fisher and Mary Jane Fisher ("the Fishers") and Ms. Sucese, alleging third-party defendants were negligent in failing to secure, control and stable their horses.
The Fishers move, pursuant to CPLR 3212, for an order granting them summary judgment, dismissing the third-party complaint. Ms. Sucese also moves, separately, pursuant to CPLR 3212, for an order granting her summary judgment, dismissing the third-party complaint and all cross-claims and counterclaims. Finally, the Hunsdons separately move, pursuant to CPLR 3212, for summary judgment against plaintiffs and further cross-move for summary judgment against third-party defendants.
In deciding the motions and cross-motion, the Court has reviewed and considered the following: the affirmation of Crystal Navarra, Esq., dated December 20, 2019, with exhibits, in support of the Fishers' motion; the affidavit of Jennifer Dominelli, Esq., sworn to January 17, 2020, with exhibits and the affidavit of Concetta Sucese, sworn to January 16, 2020, and third-party defendant Sucese's memorandum of law, dated January 17, 2020, in support of Ms. Sucese's motion; the affidavit of William J. White, Esq., sworn to February 28, 2020, the affidavit of Simeon Hunsdon, sworn to February 28, 2020, the affidavit of Linda Hunsdon, sworn to February 28, 2020, the affidavit of Laurie Tranowicz, sworn to February 27, 2020, and defendants/third-party plaintiffs' memorandum of law, dated February 28, 2020, in support of defendants/third-party plaintiffs' motion and cross-motion; the reply affirmation of Crystal Navarra, Esq., dated March 4, 2020, with exhibits, in further support of the Fishers' motion and in opposition to defendants/third-party plaintiffs' cross-motion; the reply affirmation of Jennifer Dominelli, Esq., dated March 4, 2020, in further support of third-party defendant Sucese's motion and in opposition to defendants/third-party plaintiffs' cross-motion; the affirmation of Michael C. Conway, dated March 6, 2020, with exhibits, in opposition to defendants/third-party plaintiffs' motion; and the affirmation of David I. Iversen, Esq., dated March 6, 2020, in opposition to defendants/third-party plaintiffs' motion.
"It is well established that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475-476 [2013]; CPLR 3212 [b]). Once the movant makes the proper showing, 'the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action' (Alvarez, 68 NY2d at 324). The 'facts must be viewed in the light most favorable to the non-moving party' (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks omitted]). However, bald, conclusory assertions or speculation and '[a] shadowy semblance of an issue' are insufficient to defeat summary judgment (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]), as are merely conclusory claims (Putrino v Buffalo Athletic Club, 82 NY2d 779, 781 [1993])." (Stonehill Capital Mgt., LLC v Bank of the W., 28 NY3d 439, 448 [2016].)
The Fishers contend that the third-party complaint must be dismissed as to Mary Jane Fisher ("Mrs. Fisher") as she did not own the horse, Dee, and, therefore, she was not responsible for the horse. The Fishers further claim that Mr. Fisher cannot be held liable, as Dee's presence on the road at the time of the accident was not caused by any negligence on the part of Mr. Fisher. Specifically, Mr. Fisher was not present at the time of the accident, was not in exclusive control of the barn, the stalls, or the field, had no authority or responsibility to alter or repair the fencing around the field and did not have any prior notice of any horses jumping the fence of escaping from the farm, which would have placed him on notice that the fencing was inadequate. Further, there were never any occasions where Mr. Fisher forgot to latch the gate. According to the Fishers, it was completely unforeseeable to Mr. Fisher that Dee would escape and wander into the roadway.
Third-party defendant Sucese alleges all claims against her should be dismissed as she did not owe any duty to plaintiff and did not breach any duty upon which liability can be established against her. Specifically, Ms. Sucese claims that she did not own either of the horses that strayed into the road, did not have actual or constructive notice of the horses' propensities to escape, nor did she negligently permit or cause the horses to escape into the public road and did not own, maintain or control the farm from which the horses escaped.
Defendants argue that they are entitled to judgment against plaintiffs as defendants did not own the horses, did not have actual or constructive knowledge of the horses' conduct or behavior on the night of the accident, whatever that conduct my have been, did not negligently permit the horses to escape and did not have sole custody and control of the horses sufficient to incur legal responsibility for their behavior. Defendants further contend that if an issue of fact exists which precludes granting them summary judgment against plaintiffs, the same issue of fact precludes granting third-party defendants summary judgment against defendants.
In opposition to defendants' motion, plaintiff Tamica Saddlemire argues that material issues of fact exist with respect to whether defendants were negligent with respect to fencing around the field and that the motion should be denied as premature, pursuant to CPLR 3212 [f], to allow for a previously agreed-upon site inspection. Plaintiff Robert Saddlemire joins in and incorporates the arguments made by his co-plaintiff.
The Court will, thus, refer herein to "plaintiffs' opposition" to defendants' motion.
Initially, the third-party complaint must be dismissed as to Mrs. Fisher as she did not own Dee and, therefore, she was not legally responsible for the horse. Defendants' counsel's claim that Mrs. Fisher was responsible for feeding and watering Dee on occasion is unsupported in the record. Moreover, the record does not contain any evidence that Mrs. Fisher ever put the horses out in the field.
The issue of ownership of Car-Lins cannot be resolved as a matter of law on the record before the Court. "[T]he record contains proof indicating that the United States Trotting Association would only recognize the [Hunsdons] as the owners of the horse based on the certificate of registration and this evidence in certain cases could be dispositive . . . " (Johnson v Waugh, 244 AD2d 594, 595 n 2 [3d Dept 1997]). However, while the Court recognizes that Ms. Sucese denies signing a bill of sale for Car-Lins, Ms. Sucese admitted that, as of September, 2011, she had performed sufficient services to "pay" for Car-Lins, pursuant to her agreement with Mr. Hunsdon. The Court finds this proof "sufficient to rebut any inference of nonownership on the part of [third-party defendant Sucese] which was raised by the absence of [her] name[ ] on the certificate" (id). However, even assuming, arguendo, that Ms. Sucese was the owner of Car-Lins , she cannot be held liable based upon the horse's presence in the roadway, and the claims against her must be dismissed.
For purposes of analysis only, the Court will treat Ms. Sucese as Car-Lin's owner for the remainder of this Decision and Order and refer to her as such herein.
"[A] landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept" (Hastings v Sauve, 21 NY3d 122, 125-26 [2013]).
"A horse is classified as a '[d]omestic animal' in Agriculture and Markets Law § 108(7)" (O'Hara v Holiday Farm, 147 AD3d 1454, 1454 [4th Dept 2017]).
Third-party defendants met their burden to establish they are entitled to judgment as a matter of law, dismissing the third-party complaint, by demonstrating that the presence of the horses in the roadway at the time of the accident was not caused by any negligence on the part of third-party defendants, which permitted the horses to escape the field (see Johnson v Waugh, 244 AD2d 594, 596 [3d Dept 1997], lv. denied 91 NY2d 810 [1998] ["liability for damages caused by stray horses cannot be imposed unless the owner's conduct in some way contributes to the injury"] [internal quotation marks, brackets and citations omitted]).
While there was some speculation that the horses jumped the fence after being spooked, the record is devoid of proof as to how Dee and Car-Lins actually escaped the field and got out into the roadway. There is no evidence of any specific defect that led to the horses getting out. When the Hunsdons inspected the field the morning after the accident, they did not observe any damaged or downed fencing (compare Hastings, 21 NY3d at 124 [fence separating subject property from road was overgrown and in bad repair]) or any broken or open gates. No proof in admissible form has been offered to demonstrate that the fencing was in any way deficient. Defendants have offered an affidavit from Laurie Tranowicz, who claims to have almost 40 years of experience with horses and horse farms, including fencing used at such farms and, in particular, at the Hunsdons' farm. In her affidavit, Ms. Tranowicz avers that the fencing at the farm was reasonable and appropriate. (compare Sargent v Mammoser, 117 AD3d 1533, 1534-35 [4th Dept 2014] [triable issues of fact existed with respect to defendant's negligence based upon, inter alia, defendant's own testimony that there was break in fence on the night of the accident and acknowledgment there had been previous breaks in fence that had to be repaired; affidavits of defendant's neighbors, who averred that escape of defendant's cows was recurring problem; and affidavit of plaintiff's expert, who opined that defendant's fence was inadequate]).
As set forth herein, plaintiffs assert that they intend to offer such an opinion from an expert, but no such expert affidavit is in the record before the Court at this time.
Further, neither Mr. Fisher nor Ms. Sucese owned, maintained or controlled the farm and neither had any responsibility to alter or repair the fencing around the field. As such, they are not responsible if the horses escaped the field due to a defect in the fence, if any even existed.
Third-party defendants were not in exclusive control of the barn, the stalls or the field and, therefore, negligence will not be inferred to them (see O'Hara v Holiday Farm, 147 AD3d 1454, 1455 [4th Dept 2017] [defendant owner established horse's presence in road was not caused by owner's negligence where farm was solely responsible for keeping horse confined in stall or other enclosure at facility at all times, and owner last visited horse at farm four days prior to incident; owner was not in exclusive control of horse or barn and stalls where horse was kept]; compare Catalano v Heiden Val. Farms, 158 AD3d 1200, 1201 [4th Dept 2018] [defendants were in exclusive control of bull and fences surrounding pasture where it was kept and because cattle do not generally wander unattended on public streets in absence of negligence, court properly inferred defendants' negligence as starting point in determining motion]).
Moreover, there is no evidence that Dee or Car-Lins had jumped the fence or escaped from the field or farm prior to the accident and, as such, third-party defendants did not have any prior notice of any alleged defect in the fence or propensities of the horses to escape (cf. O'Hara 147 AD3d at 1455 [evidence offered by defendant on motion for summary judgment established that, prior to incident, horse had never escaped from stall or any other similar enclosure, was never violent, and had never harmed anyone; in opposition, plaintiff failed to demonstrate existence of triable issue of fact whether defendant had notice of any harmful or vicious propensities]; compare Thompson v Brown, 167 AD3d 1310, 1311 [3d Dept 2018] [cows, in past, had escaped and gone to roadway where accident occurred]).
Even viewing the facts in the light most favorable to them, defendants failed to meet their burden to demonstrate that material issues of fact exist, to warrant denial of third-party defendants' motions. In light of this finding, defendants' cross-motion seeking summary judgment against third-party defendants must be denied.
Conversely, in their opposition to defendants' motion seeking dismissal of the complaint, plaintiffs have met their burden to demonstrate that issues of fact exist, requiring a trial.
Plaintiffs argue that the presence of Dee and Car-Lins in the roadway creates a rebuttal presumption of negligence, citing Loeffler v Rogers, 136 AD2d 824 [3d Dept 1988] ["horses do not generally wander unattended on public streets in the absence of negligence"]). Plaintiffs contend this creates an issue of fact requiring jury determination and denial of defendant' motion.
Plaintiffs also claim that an issue exists with respect to whether the fencing around the field was adequate. Plaintiffs contend that a jury should consider whether defendants were negligent due to inadequate fencing, in light of the fact that horses (other than Dee and Car-Lins) had gotten out of the field prior to the date of the accident. Plaintiffs also argue that defendants' motion is premature and should be denied pursuant to CPLR 3212 [f]. Plaintiffs contend that since defendants have filed their motion, plaintiffs have been prevented from conducting a site inspection, previously agreed to by the parties. In addition, plaintiffs claim that without the site inspection, they have been unable to hire the appropriate expert to provide the opinion that the fencing around the field was inadequate, as they expect to do based upon "industry materials" setting forth that industry standards require fencing to be higher than the four feet height of the Hunsdons' fence. (Plaintiffs have attached these materials as an exhibit to their opposition, although they admit they are not in admissible form.)
At a conference conducted by the Court on October 10, 2019, it was agreed that legal issues raised in the third-party action would likely be resolved via motion practice before the proposed site inspection was completed. --------
The Court finds that, in light of the fact that the site inspection has not yet been conducted, "facts essential to justify opposition may exist but cannot [ ] be stated" (CPLR 3212 [f]). Moreover, the Court finds that an issue of fact exists with respect to whether defendants were negligent, due to inadequate fencing around the field and such negligence was a proximate cause of the accident and, as a result, defendants' motion for summary judgment against plaintiffs must be denied.
The remaining arguments raised have been examined and found to be unavailing. Any requested relief not specifically addressed herein has nonetheless been considered and is hereby denied.
Based upon the foregoing, it is hereby
ORDERED that the motion of third-party defendants Gary Fisher and Mary Jane Fisher, pursuant to CPLR 3212, for an order granting them summary judgment, dismissing the third-party complaint is granted; and it is further
ORDERED that the motion of third-party defendant Concetta Sucese, pursuant to CPLR 3212, for an order granting her summary judgment, dismissing the third-party complaint is granted; and it is further
ORDERED that motion of defendants/third-party plaintiffs Simeon Hunsdon and Linda Hunsdon, pursuant to CPLR 3212, for an order granting summary judgment against plaintiffs is denied, without prejudice; and is further
ORDERED that the cross-motion of defendants/third-party plaintiffs Simeon Hunsdon and Linda Hunsdon, pursuant to CPLR 3212, for an order granting summary judgment against third-party defendants is denied; and it is further
ORDERED that the third-party complaint is dismissed.
The within constitutes the Decision and Order of this Court.
Signed this 14th day of May, 2020, at Lake George, New York. ENTER: __________ HON. MARTIN D. AUFFREDOU JUSTICE OF THE SUPREME COURT