SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 22 Present: HON. WilLIAM R. lamarca Justice AMANDA L. MillER, Motion Sequence # 001 Submitted October 11, 2005 Plaintiff, -against- INDEX NO: 16863/04 MARK ISACOFF and MINDY ISACOFF, Defendants. The following papers were read on this motion: Notice of Motion...... Affirmation in Opposition......... Reply Aff rmation...... Defendants, MARK ISACOFF and MINDY ISACOFF, move for an order, pursuant to CPLR 93212, granting summary judgment dismissing the complaint on the ground that there are no triable issues of fact or law to be determined. Plaintiff, AMANDA L. MILLER opposes the motion which is determined as follows: This negligence action seeks money damages for personal injuries allegedly sustained by plaintiff as a result of dog bites to her upper lip that occurred on September 2004 at the defendants' home located at 1047 Robin Road, Franklin Square, New York. In essence, plaintiff alleges that, while a guest in the defendants ' home, she was, without
provocation, viciously attacked by the defendants' German Shepherd dog, Max, who was left untethered and without supervision. Plaintiff alleges that Max had vicious propensities that were known to the defendants and that gross and wanton negligence for which they are strictly liable. permitting the dog to run loose constitutes In support of the motion to dismiss, defendants annex the transcripts of the parties deposition testimony which reflect that defendants acquired Max as a pet for their children from the North Shore Animal League in 1995 and that, over the years, the dog has suffered from a series of ilnesses that caused his weight to drop from 75 pounds to approximately 38 pounds at the time of the accident. MARK ISACOFF relates that the dog developed an enlarged prostate, anal sac disease and anal fistulas that required the surgical removal of the animals testicles and his tail. Additionally, within the last two (2) years, the dog was diagnosed with colitis which required treatment with medications. Nonetheless, both he and his wife assert that Max never barked at other dogs, never strained at the leash and never growled, except in a game of tug of war. They state that the only change in the dog s behavior from his sickness was that he became more docile and more sensitive if his hind quarters were touched and, in that event, he would yelp or cry - not bark or growl. They claim that they had no knowledge that the dog had ever snapped or bit or growled at any people that entered their home before and point to plaintiff' s deposition testimony where she acknowledged that the dog never growled or snapped at her before the incident. MINDY ISACOFF stated at her deposition that the family never received any complaints about Max and that he neither barked, nor growled, snapped nor bared his teeth to others. She claims that when face to face with the dog he would lick her face and that he had no history of biting. Defendants assert that the dog had never shown any vicious propensities
and urge that the Court follow a long line of cases that hold that, in the absence of actual or constructive knowledge of a dogs vicious propensities, a dog s owner is not liable when it bites someone, citing, inter alia, Mindel v Jones 16 AD3d 857, 791 NYS2d 692 (3 Dept. 2005); Czarnecki v Welch 13 Ad3d 962, 786 NYS2d 659 (3rd Dept. 2004); and Coller v Zambito 1 NY3d 444 775 NYS2d 205, 807 NE2d 254 (C.A. 2004). In opp sition to the motion, counsel for plaintiff states that defendants knew, or should have Jnown of the dog s vicious propensities, in that he constantly barked at their neighbor, charged her fence and kicked dirt onto her property, barked and growled at all visitors to the front door and suffered from a long series of chronic ilnesses and treatment that left it hyp r-sensitive when ever anyone came near it. An affidavit of Jeanne Burrouso defendants eighbor for approximately forty four (44) years, indicates a number of disturbing incidents involving the dog which she claims frightened her and her mother. She claims the dog would "bark like crazy and charge the fence" causing dirt onto to her property and that she and her mother feared he would jump the fence. She states that Mr. ISACOFF had no control over the dog and that when he ran in circles around her, Mr. ISACOFF stated that the dog was acting that way because he " smelled fear. She claims that on several occasions she complained to the ISACOFF's about the dog but that Mr. ISACOFF was insensitive to her concerns. She stated that Max was usually left in the defendants' backyard alone and unattended. Pictures of the defendants ' property show BEWARE OF DOG" signs on the back yard gates. It is plaintiff' s testimony that she attended a Labor Day party at the defendants home on the evening of the incident and that she passed Max in the kitchen of defendants home numerous times when she entered the home from the backyard to use the bathroom.
She states that the last time she entered, she leaned down to pet the dog and he turned and, without provocation, attacked her, which resulted in multiple facial bite wounds and two (2) surgeries. Plaintiff urges that clear issues offact exist as to whether the defendants knew or should have known about their dog s vicious propensities and that summary judgment is not warranted. It is well settled that absolute liabilty attaches for injuries caused by a domesticated dog where the dog is "found to have vicious propensities, of which its owner knows, or should know Lynch v Nacewicz 126 AD2d 708, 511 NYS2d 121 (2 Dept. 1987). In demonstrating such vicious propensities " proof of a previous attack is unnecessary where other factors are indicative of knowledge (see, Perotta v Picciano 186 App. Div. 781 783 Society, 175 NYS 16)". Brophy v Columbia County Agricultural 116 AD2d 873, 498 NYS2d 193 (3 Dept 1986). Those other factors include the nature of the attack on the plaintiff Lynch v Nasewicz, supra; Moriano v Schmidt 133 AD2d 72 518 NYS2d 416 (2 Dept. 1987), the dogs tendency to bark or lunge at strangers Sorel v Iacobucci 221 AD2d 852 633 NYS2d 688 (3 Dept. 1995); Moriano v Schmidt, supra, Fontecchio v Esposito, 108 AD2d 780, 485 NYS2d 113 (2 Dept 1985), and the precautions taken to restrain the dog Lagoda v Dorr, 28 AD2d 208, 284 NYS2d 130 (3 Dept. 1967); Moriano v Schmidt, supra. The issue of whether a dog possessed the requisite "vicious propensities" to impose liability, and whether the owners new, or should have known, of those propensities, is a question of fact for a jury. Wheaton v Guthrie 89 AD2d 809, 453 NYS2d 480 (4 Dept. 1982).
In viewing motions for summary judgment, it is well settled that summary judgment is a drastic remedy which may only be granted where there is no clear triable issue of fact (see, Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131, 320 NE2d 853 (C.A. 1974); Mosheyev v Pilevsky, 283 AD2d 469 725 NYS2d 206 (2 Dept. 2001). Indeed, "(e)ven the color of a triable issue, forecloses the remedy Rudnitsky v Robbins 191 AD2d 488, 594 NYS2d 354 (2 Dept. 1993)). Moreover "(i)t is axiomatic that summary judgment requires issue finding rather than issue-determination and that resolution of issues of credibility is not appropriate (Greco v Posillco 290 AD2d 532, 736 NYS2d 418 (2 Dept. 2002); Judice v DeAngelo, 272 AD2d 583, 709 NYS2d 817 (2 Dept. 2000); see also S. CapelinAssociates, Inc. v Globe Mfg. Corp. 34 NY2d 338 357 NYS2d 478 313 NE2d 776 (C.A.1974)). Further, on a motion for summary judgment, the submissions ofthe opposing party s pleadings must be accepted as true (see Glover v City of New York 298 AD2d 428 748 NYS2d 393 (2 Dept. 2002)). As is often stated, the facts must be viewed in a light most favorable to the non-moving party. (See, Mosheyev v Pilevsky, supra). The burden on the moving party for summary judgment is to demonstrate a prime facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue offact (Ayotte v Gervasio 81 NY2d 1062 601 NYS2d 463 619 NE2d 400 (C. A.1993); Winegrad v New York University Medical Center, 64 NY2d 851, 487 NYS2d 316, 476 NE2d 642 (C. A. 1985); Drago v King, 283AD2d 603, 725 NYS2d 859 Dept. 2001)). If the initial burden is met, the burden then shifts to the non-moving party to come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. (CPLR9 3212, subd (b); see also GTF Marketing, Inc. v Colonial Aluminum
Sales, Inc. 66 NY2d 965, 498 NYS2d 7 6, 489 NE2d 755 (C. A. 1985); Zuckerman v City of New York 49 NY2d 557 427 NYS2d 595 404 NE2d 718 (C.A. 1980)). The non-moving part must lay bare all of the facts at its disposal regarding the issues raiseq in the motion. (Mgrditchian v Donato, 141 AD2d 513, 529 NYS2d 134 (2 Dept. 1988)). After a careful reading of the submissions herein, it is the judgment ofthe Court that defendants have failed to demonstrate that they are entitled to judgment as a matter of law. On the record before it, the Court finds that plaintiff has raised sufficient issues of fact, as to whether defendants knew, or should have known, of the dogs vicious propensities, given the animals extended ilnesses and the neighbor s repeated complaints, that require a trial. Accordingly, it is hereby ORDERED, that defendant' s motion for an order granting summary judgment dismissing the complaint is denied. All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. Dated: January 3, 2006 WILLIAM R. LaMARCA, J. TO: Decolator, Cohen & DiPrisco, LLP Attorneys for Plaintiff 1399 Franklin Avenue, Suite 201 Garden City, NY 11530 John P. Humphreys, Esq. Attorney for Defendants 3 Huntington Quadrangle, Suite 102S Melvile, NY 11747 "te.f\eo SSp.U COUN1 C\. lr;r;d OUN"..1 S off\ce miler-isaco,ti1/sumjudg