Opinion
2014-1648 S C
02-22-2016
Kathleen Stalzer, Appellant, v. Nicole Deabrue, as Parent and Natural Guardian of JANESA CABAN and NICOLE DEABRUE, Individually, Respondents.
PRESENT: :
Appeal from a judgment of the District Court of Suffolk County, First District (Vincent J. Martorana, J.), entered May 19, 2014. The judgment, after a nonjury trial, dismissed the action.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for a new trial.
Plaintiff commenced this small claims action to recover for veterinary charges incurred as a result of an incident in which defendants' dog, Hunter, injured plaintiff's dog, Tommy. After a nonjury trial, the District Court dismissed plaintiff's action, finding that the record was "totally devoid of any evidence that prior to this occurrence the defendants had any . . . notice of any vicious propensity" of Hunter and that, in any event, plaintiff had had sufficient time to remove Tommy, and thereby avoid any injury to Tommy.
In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]).
At the trial, plaintiff testified that Hunter, a Shiba Inu, is larger than Tommy, a poodle, and that Hunter had a tendency to "leap[ ] as he walks." A witness for plaintiff testified that Hunter is "wild"; that he "prances like a horse," "jumps" and "lunges"; that defendants have to hold Hunter "really tight on the leash"; and that she pulled her dog away whenever they passed Hunter on the sidewalk because she was afraid that Hunter would "injure my dog or me." The evidence showed that, on the day in question, Hunter, while being walked by Janesa Caban, jumped on Tommy and knocked Tommy over, at which point, according to plaintiff, "everyone around was gasping, including [Janesa Caban]." Plaintiff then examined Tommy, but found no injuries. About 10 seconds later, Hunter jumped on Tommy a second time, the force of which apparently caused the injuries in question.
In view of the foregoing, we find, contrary to the District Court's determination, that the record is not "totally devoid" of evidence that Janesa Caban had notice, prior to the second time that Hunter jumped on Tommy, of Hunter's inclination and propensity to leap and jump in a manner which might cause injury to people or other dogs. While defendants' dog may have always been acting playfully, including each time that he jumped on plaintiff's dog, the term "vicious propensity" includes the propensity to jump on another person or dog in a manner that may endanger the safety of the other ( see Francis v Curley Family Ltd. Partnership, 33 AD3d 852, 853-854 [2006]; Provorse v Curtis, 288 AD2d 832 [2001]; Anderson v Carduner, 279 AD2d 369 [2001]; Mitura v Roy, 174 AD2d 1020 [1991]). Upon a review of the record, we conclude that the District Court failed to weigh the evidence in light of the circumstances of this case ( see Cohen v Hallmark Cards, 45 NY2d 493 [1978]) to determine whether defendants could be held strictly liable for the injuries to plaintiff's dog based on a finding that Janesa Caban had notice of the vicious propensity of Hunter ( see generally Petrone v Fernandez, 12 NY3d 546, 550 [2009]; Bard v Jahnke, 6 NY3d 592, 596 [2006]; Collier v Zambito, 1 NY3d 444, 446-447 [2004]).
We note that, even if a reasonable view of the evidence could support the District Court's alternative finding that plaintiff was at fault in not removing her dog after the first jumping incident, the District Court did not appear to be aware that, pursuant to CPLR 1411, it could apportion liability among the parties in accordance with their respective degree of culpability (see Rosenbaum v Rauer, 80 AD3d 686 [2011]). Indeed, in view of the court's finding that plaintiff had sufficient time to remove Tommy, thereby avoiding any injury to Tommy, the record presented could similarly support a finding that Janesa Caban also had sufficient time to restrain Hunter from repeating his conduct or to remove Hunter from the scene.
Accordingly, as the judgment did not provide the parties with substantial justice according to the rules and principles of substantive law (see UDCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125, 126 [2000]), the judgment is reversed and the matter is remitted to the District Court for a new trial at which the District Court shall weigh the evidence in light of all the circumstances of the case (see Cohen v Hallmark Cards, 45 NY2d 493).
Iannacci, J.P., Tolbert and Connolly, JJ., concur. Decision Date: February 22, 2016