Doberman Bites Little Girl on the Face, but We Get Suit Dismissed
Nicolette Ferrieri by f/n/g Luigi Ferrieri vs Paul Sigler and Francine Sigler
Note: This is a dog bite suit in which the Rogak firm represented the defendants.
Plaintiffs sued defendants after defendant’s dog bit the 9 year old girl on her face. The plaintiff, Luigi Ferrieri, and his family were guests at the defendants’ Shelter Island home when his daughter, infant plaintiff Nicolette, was bitten about her face and head on August 7, 2010 by “Max,” defendants’ Doberman Pinscher. The plaintiffs, earlier that day, were in the back yard with the defendants, and Max, for a barbecue, whereby the children were in the pool while Max ran around, and the children played ball with Max. The children went inside at about 9:00 PM to watch television, when, as per the deposition of the infant plaintiff, Max “sat down, like a dog, Erica petting him, when he bit me.”
An owner of a domestic animal who either knows or should have known of the animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Collier v Zambito, 1 NY3d 444. A vicious propensity is the propensity to do any act that might endanger the safety of persons and property of others in a given situation. Dickson v McCoy, 39 NY 400. Knowledge may be established with evidence of prior acts of a similar kind of which the owner had notice. While it is not necessary to prove a prior bite, proof constitutes knowledge that the dog had been known to growl, snap or bare its teeth or evidence showing that the animal was restrained.
In addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities — albeit only when such proclivity results in the injury giving rise to the lawsuit.
[In another case] the owner of a domestic animal made a prima facie showing of entitlement to summary judgment as a matter of law by presenting evidence that they lacked knowledge of the dog’s propensities, as they demonstrated that their pet dog had never previously been aggressive, growled, bared his teeth, bitten anyone, or exhibited any other signs of viciousness. Ayres v Martinez, 74 AD3d 1002. Notably, plaintiffs argued in their appellate brief that the dog, Nico, a mixed breed pit bull, occasionally wore a muzzle, the defendants posted a beware of dog sign, and Nico was euthanized after the incident.
Evidence tending to prove that a dog has vicious propensities, for purposes of an owner’s liability, include 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. Hodgson-Romain v Hunter, 72 AD3d 741. The defendants made a prima facie showing of entitlement to summary judgment by presenting evidence that the defendants’ dog was a playful animal, and the defendants had no knowledge that the dog ever growled at, chased, bitten or attacked anyone.
Summary judgment dismissing the action of an infant victim of a dog attack in Sers v Manasia, 280 AD2d 539 was affirmed as the victim of the dog attack failed to prove that the dog had vicious propensities, or knowledge of the dog’s owners thereto, despite the fact that the dog was occasionally confined in a pen on the property, the nature and severity of the attack, evidence of the violent tendencies of the breed, and the use of “beware of dog” signs on the residence where the dog once lived. The infant plaintiff was a guest at the defendants’ property when he was injured by a German Shepard owned by the defendants. The court reasoned that there was no evidence that the pen was built in response to any vicious attacks by the dog, evidence of this particular breed does not raise an issue of fact as to the propensities of this particular dog, and the posting of a ‘beware of dog’ sign did not raise an issue of fact as to the vicious propensity of the dog as the defendant testified he posted the signs as a deterrent to intruders.
And in DeVaul v Carvigo Inc., 138 AD2d 669, the Court held that there is no authority for the proposition that judicial notice should be taken as to the ferocity of any particular type of domestic animal. Here, the defendants made a prima facie showing of entitlement to summary judgment as a matter of law by demonstrating that they lacked knowledge of a vicious propensity of the dog, and demonstrated that their dog had never been previously aggressive, growled, bared his teeth or bit anyone before, and did not exhibit any signs of viciousness. The defendants never saw the dog growl or jump on anyone prior to the incident, testified that the dog’s demeanor with children was playful, the dog never snapped at children prior to the incident, and plaintiff infant had been to the defendant’s other home on more than five occasions and expressed no fear of Max. The defendants submit the sworn affidavit of veterinarian Glenda B. Wexler who avers that in the past two and a half years, Max was seen for office visits, grooming and boarding, and was well behaved, did not growl, snap, bare his teeth or act in a manner that put others at risk of harm. The plaintiffs, in opposition, have failed to raise a triable issue of fact to warrant denial of this motion. Ferreri’s opinion that the Doberman breed is “schizophrenic” and could snap at any time, and his prior experience with a pet Doberman, which he kept isolated in his back yard, is unavailing. Ferreri’s opinion about the Doberman breed is irrelevant as there is no authority for the proposition that a particular type of domestic animal is ferocious or has vicious propensities in New York. Additionally, the plaintiff has not submitted any evidence that the defendants kept Max in the kitchen, or the back yard, when the infant plaintiff visited, in response to any vicious acts or propensities of Max. In light of the foregoing, the defendants’ motion is granted and plaintiff ‘s complaint is dismissed.
Plaintiff’s Release to Third Party Defendant Relieves it of Liability to Third Party Plaintiff
Balkheimer v Spanton
In an action to recover damages for legal malpractice, the third-party defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 9, 2011, which denied their motion pursuant to CPLR 3211(a)(5) and (a)(7) to dismiss the third-party complaint.
ORDERED that the order is reversed, on the law, with costs, and the motion of the third-party defendants pursuant to CPLR 3211(a)(5) and (a)(7) to dismiss the third-party complaint is granted. Pursuant to General Obligations Law § 15-108(b), “[a] release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules.” Here, the plaintiffs executed a general release in favor of the third-party defendants. There is no indication in the record that the release was not executed in good faith.
Therefore, pursuant to General Obligations Law § 15-108(b), the third-party defendants are relieved from liability to the third-party plaintiffs for contribution (see Ziviello v O’Boyle, 90 AD3d 916, 917; Kagan v Jacobs, 260 AD2d 442). Accordingly, the Supreme Court should have granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211(a)(5) to dismiss the contribution cause of action in the thirdparty complaint as barred by the release. In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must “accept the facts as alleged in the [pleading] as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88). “[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the indemnitor’” (Raquet v Braun, 90 NY2d 177, 183, quoting Mas v Two Bridges Assocs., 75 NY2d 680, 690; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 909, 909-910).
Here, the third-party complaint does not allege the existence of any duty owed by the third-party defendants to the thirdparty plaintiffs (see Raquet v Braun, 90 NY2d at 183; Breen v Law Off. of Bruce A. Barket, P.C., 52 AD3d 635, 638; Keeley v Tracy, 301 AD2d 502, 503). Furthermore, the third-party plaintiffs would not be compelled to pay damages for the alleged negligent acts of the third-party defendants (see Lovino, Inc. v Lavallee Law Offs., 96 AD3d at 910; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786, 786-787).
Accordingly, the Supreme Court should have granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211(a)(7) to dismiss the common-law indemnification cause of action in the third-party complaint. The third-party plaintiffs’ remaining contention is without merit.
A House With Three Dwelling Units is a Three-Family House, Regardless of Number of Families Living There
Dauria v CastlePoint Ins. Co.
In this action arising out of defendant CastlePoint’s rescission of a homeowner’s insurance policy after a fire at plaintiffs’ residence, based on its determination that the premises contained a basement apartment rendering it a “three family” dwelling as opposed to the “two family” designation that was listed on the insurance application, plaintiffs’ argument that they did not misrepresent the premises as a two family dwelling is contrary to this Court’s recent decision in Hermitage Ins. Co. v LaFleur (100 AD3d 426 [1st Dept 2012]). There, we held that the only reasonable interpretation of the question “# Families” on an insurance application is that it seeks the number of separate dwelling units in the building.
Plaintiffs maintain that their response of “2” to this question was correct because all of the residents of the premises lived together as one “family” or “household.” However, based on plaintiffs’ interpretation, the logical answer would have been “1.” Thus, even if, as plaintiffs claim, all the residents of the premises shared a single “household” in the sense of living together, the premises is a three family dwelling because of its structural configuration, i.e., three separate units, each with its own kitchen, bathroom and separate entrance.
The motion court erred in finding that CastlePoint failed to establish the materiality of the misrepresentation because three family dwellings are not included among the “unacceptable exposures” listed in its underwriting guidelines. Three family dwellings are not listed in the “eligibility” section of the policy because CastlePoint does not issue policies to cover such dwellings. That the underwriting guidelines do not specifically exclude them does not indicate otherwise and does not raise an issue of fact to defeat summary judgment.
Nor is there any ambiguity in the policy term “residence premises” which, as relevant here, is defined as “a two family dwelling where you reside in at least one of the family units and which is shown as the residence premises’ in the Declarations.’” When read in context, as the rules of policy interpretation require (Harris v Allstate Ins. Co., 309 NY 72, 75- 76 [1955]), the reference to “family units” makes clear that the named insured need only reside in one of the two “family units” that, by definition, constitute a two family dwelling. The term “family,” as used in “family units,” “one family dwelling” and “two family dwelling,” necessarily relates to an entire self-contained dwelling unit (see LaFleur, 100 AD3d at 427). Since the premises here consists of three dwelling units, it is a three family dwelling and does not fit within the policy definition of a covered “residence premises.
