Premises Pointers - Volume III, No. 4


Premises Pointers
Watch your step!

Volume III, No. 4
Monday, September 16, 2019
A Monthly Electronic Newsletter


As a public service, Hurwitz & Fine, P.C. is pleased to present this monthly newsletter providing summaries of and access to the latest premises liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.


Retail, Restaurant and Hospitality Industry
Slip and Fall Accidents
Snow/Ice Claims and Storm in Progress
Inadequate/Negligent Security
Inadequate Maintenance
Negligent Repair
Defective and Dangerous Conditions
Elevator and Escalator Accidents
Swimming Pool and Recreational Accidents
Dog Bites/Animal Liability
Negligent Supervision
Assumption of Risk
Limited Services Contracts
Indemnification Agreements
Tavern Owner Liability and Dram Shop
Homeowner Liability
Toxic Exposures
Municipal Liability



Last Thursday, we published a special joint edition of Labor Law Pointers and Premises Pointers covering the Brito v. Gomez decision out of the Court of Appeals that was issued on September 10thHere is a link to the article prepared by Premises Pointers contributor Marc Schulz, breaking it down and explaining its impact.  Just this weekend, a subscriber e-mailed me asking whether this means he can get psychiatric records when a psychiatric injury is not claimed, but there is an indication of prior treatment.  My answer is it depends.  The Brito case might open the door for the records, but there needs to be a link between the condition, body part or issue to something claimed in the lawsuit.  For instance, if a plaintiff claims he or she can’t work due to the injuries claimed in a case and you become aware of some other problem, like a psychiatric issue that potentially also contributes to the plaintiff’s inability to work, then you should be entitled to those records.  Another example is a plaintiff who claims she can’t run marathons anymore due to the back injury claimed in the lawsuit, but you find out she has a bad hip.  While not claimed in the bill of particulars, it’s relevant to the claim the plaintiff can’t run, so under the Brito decision, it’s discoverable.
As always, please feel free to share this newsletter with friends and colleagues. If you are interested in being added to our subscription list, e-mail me at [email protected]. Questions and comments always welcome!

And don’t forget to subscribe to our other publications:

Coverage Pointers: This biweekly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.



Retail, Restaurant and Hospitality Happenings Around New York State and Beyond
By: Jody E. Briandi [email protected]

This month, we are covering one of our very own cases where we were successful on summary judgment for a retail client.  In fact, we just received the decision from District Court Judge Vilardo adopting the Report and Recommendations of the Magistrate Judge on Friday.     
09/13/19           Teti-Divincenzo v. Target
United States District Court, Western District of New York
Retailer granted summary judgment because the record was devoid of evidence store employees had actual or constructive notice of the water the plaintiff claims caused her to fall– summary judgment granted to defendant.

The plaintiff Mrs. Teti-Divencenzo fell immediately after checking out and paying for her merchandise.  She said she took several steps forward and down she went.  After the fall and while seated, she observed a large puddle of water which she said was at least a foot in diameter.  Her clothes were wet.  She did not see the puddle before the fall.  She did not know where it came from or how long it was there.  She pointed it out to the store manager who testified he observed a spot of water the size of a quarter.  He confirmed he received no complaints about the water before the plaintiff fell.  Plaintiff attempted to oppose defendant’s motion by arguing the record lacked evidence of a last inspection, but the Magistrate Judge correctly points out that the burden of proof in federal court is not the same as in state court.  Since the plaintiff could not present any evidence regarding where the water came from, how long it was on the floor or that someone knew about it before her fall, she was not able to establish constructive notice. 
*Decisions provided upon request

08/22/19           Sodhi v. Dollar Tree Stores, Inc.
Appellate Division, Fourth Department
Summary judgment denied to all defendants where plaintiff fell on ice in a parking lot.  The Appellate Court refused to consider a storm in progress argument that was not raised in the defendant’s moving papers and only in their reply.

The plaintiff allegedly slipped and fell on ice in the parking lot of a shopping center.  Defendant Portage is the owner and defendant Baldwin is the property manager.  Tops and Dollar Tree are tenants.  Portage, Baldwin and Tops all appealed the trial court’s denial of their motion for summary.  Plaintiffs did not allege that defendants created the icy condition  or that they had actual notice of it.  Plaintiffs claim was one of constructive notice.  In support of their motion, defendants submitted plaintiff’s deposition testimony indicating she observed “ice all around here” after she fell, which the court ruled created a question of fact as to whether it was visible and apparent.  It was further determined that defendants failed to establish that the ice formed so close in time to the fall that they could not have been expected to notice and remedy the condition.  The owner and property owner failed to demonstrate that they had not retained control of the premises such that they would also have an obligation to remedy the condition.  Defendant Tops raised the storm in progress defense for the first time in their reply papers to the Fourth Department ruled it was not properly before the Supreme Court.

08/22/19           Odiorne v. Jascor, Inc.
Appellate Division, Fourth Department
Defendant restaurant granted summary judgment based on evidence it followed a reasonable procedure in mopping a floor.

Plaintiff allegedly fell on a recently mopped floor in a restaurant owned by defendant.  Plaintiff claimed the employee used the wrong mop and “created an excessively slippery condition, i.e. liked greased glass.”  The court concluded the claim was entirely speculative and not based on any evidence in the record.  Furthermore, when a plaintiff fails to submit evidence that a condition is indeed defective or dangerous summary judgment should be granted.  The plaintiff here admitted she saw the employee mopping before her fall and also saw the placement of wet floor signs.

08/21/19           Pinto v. Walt Whitman Mall, LLC
Appellate Division, Second Department
Summary judgment granted to some, but not all defendants.

The plaintiff allegedly tripped on a warped portion of a temporary floor covering, made of masonite, that had been laid over an area of the floor where self-leveling concrete had recently been poured. The plaintiff commenced this action against (1) the Mall owner; (2) Simon the management company; (3) Howell, a contractor hired by the Mall to perform remodeling work at the Mall; and (4) Elite Floors, a subcontractor hired by Howell to install carpeting and self-leveling concrete within the shopping mall.  The case unfolded as follows:

  1. Elite did not owe a duty of care to the plaintiff and though all defendants opposed the motion it was granted by the Supreme Court.The Appellate Division affirmed under Espinal and found that none of the Espinal exceptions applied;
  2. The Mall and Management Company moved for summary judgment arguing that they neither created the injury-producing condition nor had actual or constructive notice of it – this was also granted by the Supreme Court but not affirmed by Appellate Division. The Second Department found that the evidence proffered by the Mall defendants failed to demonstrate that the Mall and Simon lacked constructive notice of a hazardous condition on the premises. During an examination before trial, Simon's operations director was asked about his inspection tour of the mall on the morning of the plaintiff's fall. His repeated descriptions of what he "normally would" do and "probably would have" were deemed ambiguous as to whether he is describing a specific inspection, or merely describing general inspection policies and practices. This was deemed insufficient to support a motion for summary judgment.


Negligent Supervision, Municipal Claims and School Liability
By: Todd C. Bushway [email protected]

September, at least for those with school age kids, brings the new school year and the return of some semblance of structure and routine.  After 15 years, I’m at the last go around for that transition.  One kids away at college and the other a senior in high school doesn’t entail a whole lot of homework checking, lunch making, gym clothes locating, etc., etc.  The high school senior will still grudging acknowledge his parents – it’s mostly rides, foods or a signature on a form for school.  It’s a good thing my wife, the dog and I like each other. 
I recently saw a great show by Los Lobos, on tour celebrating 45 years as just another band from east LA.  Two sets – the first showcasing their more traditional, Mexican influenced work, the second their blues/bar band chops.  At the break, electric guitars replaced the acoustic instruments (6-1, Fender over Gibson, for those who may be interested).  Los Lobos is one of the few bands that can legitimately go full on Lynyrd Skynyrd – three electric guitars across, everyone able to let it fly.  Flogging Molly and Social Distortion put on a terrific combined show as part of Buffalo’s Canalside concert series.  Both acts made sure to reference the Jonas Brothers concert simultaneously occurring in the arena a couple of hundred yards south of outdoor stage.  I’m sure one or two of the parents chaperoning their teens/pre-teens to the boy band scream fest wished they could trade venues, if only for a beer and a couple of songs. 
Those looking for new music should check out Rodney Crowell’s Texas, which only adds to his catalogue of sublime songwriting and storytelling.  For a more vintage vibe, check out 1977-The Year Punk Broke, an 87 songs collection of 1977 releases by British bands.  Amazon Prime users can have it in two days for about twenty-seven cents per song.  Not bad at all.
I look at a trio of late notice of claim cases, as well as a case arising from a playground injury case where plaintiffs allege both negligent supervision and maintenance of the playground equipment.  The central theme running through all four cases – details matter. 
Until next time.  TCB
August 21, 2019         VW v. Middle Country Central School District
Appellate Division, Second Department
Defendant’s expert’s failure to provide specifics regarding piece of playground equipment precluded summary judgment dismissing plaintiff’s claim for a failure to maintain the equipment.
During a supervised recess, plaintiff fell from the monkey bars in a school playground.  Her suit against the school district included two claims – negligent supervision and the negligent maintenance of the playground.  The expert affidavit accompanying defendant’s motion for summary judgment averred (1) the recess was properly supervised, with the injury caused by an  event so spontaneous that no amount of supervision could have prevented it, and (2) the monkey bars and playground’s surface material complied with applicable standards and guidelines.
The court dismissed the supervision cause of action, finding that the defendant met its prima facie burden and plaintiff failed to raise a question of fact.  The maintenance claim was not dismissed, with the court holding school district had not met its prima facie burden because the expert’s affidavit was “speculative” and “conclusory.”  The deficiency arose because by the time plaintiff’s expert conducted her inspection of the playground, the monkey bars had been removed and no evidence was submitted about the height of the monkey bars or the playground’s surface material on the date of the accident.
August 28, 2019         Ortiz v. Town of Islip
Appellate Division, Second Department
Town failed to establish lack of prior written notice because the proof submitted did not address that the appropriate records had been reviewed.
Plaintiff sued the Town of Islip for injuries allegedly sustained when she fell because of a combination of ice and a pothole on a town street.  In support of its motion, the town submitted an affidavit from a town employee stating she had searched the Department of Public Works’ records and found no notice of the alleged conditions.  The deposition testimony of another town employee contained similar statements.
The court denied the Town’s motion, hold that because neither the affidavit or deposition testimony addressed whether the Town Clerk’s records – a fatal flaw since the town’s prior written notice law specifically stated that the town would only be liable if prior written notice of the allegedly hazardous condition had been given to either the Town Clerk or the Commissioner of Public Works.
August 28, 2019         Galicia v. City of New York
Appellate Division, Second Department
Plaintiff failed to meet the requirements for serving a late notice of claim because she could neither present a sufficient excuse for her late filing nor establish notice of the alleged wrongdoing to the prospective defendant.
Plaintiff sought to recover for a shoulder injury sustained when an unidentified member of New York’s finest allegedly threw her to the ground while she was at the scene of a motor vehicle accident involving a friend.  She was then treated at the scene by an EMS crew from the New York Fire Department, whose pre-operative care report provided more detail – noting plaintiff was intoxicated and was injured after the EMS crew had asked the police department to remove plaintiff from the ambulance where they were treating plaintiff’s friend.
115 days after the accident (25 days past the 90 day limit), plaintiff served, without leave of the court, a notice of claim on the City of New York, which did not respond to the notice.  11 months later, plaintiff sought leave to serve a late notice of claim, asserting she had not learned of the severity of the shoulder injury until undergoing surgery 2 weeks after the 90 day window closed and that the pre-operative care report prepared by Fire Department’s EMS crew gave the city the required notice.  The court rejected both claims.  The court found plaintiff had not provided a reasonable excuse for the delay in filing, noting plaintiff sought treatment for her shoulder several weeks before the statutory window expired and provided no excuse for the subsequent 11 month delay.  The court also found that because it was served more than 90 days after plaintiff fell, first notice of claim could not provide timely notice.  The pre-operative report filed by the EMS as part of their treatment of plaintiff also did not provide the requisite notice – it detailed the injury and treatment but did not contain any information that would give the city notice of a claim that its police officer had assaulted plaintiff or used excessive force in removing her from the ambulance.
August 28, 2019         Miskin v. City of New York
Appellate Division, Second Department
Injury report filed with City’s Department of Education did not provide notice to the City within 90 days following the underlying slip and fall.
Plaintiff, therapist employed by the New York City Department of Education, fell on a paved roadway in front of a City school.  In her application to serve a late notice of claim against the city, plaintiff claimed “loose paving debris” on the roadway caused her tumble.
That the plaintiff purportedly failed to identify the city as the entity responsible for paving the roadway was rejected as an excuse because that failure was the result of a lack of diligence in investigating the claim.  Plaintiff’s argument that an injury report and request for time off, filed with the Department of Education, gave the City notice of the key facts underlying her claim was also rejected.  The Department of Education is a separate legal entity from the city.  Furthermore, the court noted that the injury report simply stated that plaintiff fell after stepping on a rock, a far cry from an allegation that the city was negligently created hazard on the roadway.


Toxic Exposures
By: V. Christopher Potenza [email protected]

“Schoooool’s back from summer!”  (cue Alice Cooper).  I desperately want to make one of those Holderness family type youtube parody videos that celebrates putting the kids on the bus on the first day back to school.  My wife refuses to participate in such shenanigans, but is equally overjoyed with the return to school and routine.  Joy is fleeting however as the chaos of summer is soon replaced with the realities of trial work.  Attorneys and courts alike seem to adjourn everything until the fall, making this a very busy season.

August is always a light month for appellate divisions, but there is one tragic but interesting case involving death by drowning in a cesspool, where summary judgment was thwarted by the slimmest of margins. 

And now for this month’s dad joke:

“What is the king of school supplies?

“The Ruler”

08/28/19          Calderon v Cruzate
Appellate Division, Second Department
Soil underneath cesspool cover creates slim issue of fact denying summary judgment in tragic cesspool drowning case
This action arises from tragic events that occurred when some teenagers building a backyard campfire moved a piece of cement which, unbeknownst to them, was a cesspool cover.  One of the boys fell in, and another jumped in to rescue him.  Both died from asphyxiation. Port Jefferson Cesspool had serviced the cesspool the day before the incident.

The trial court had granted summary judgement to both the homeowner and Port Jefferson Cesspool on the basis that they had established that the cesspool cover was not in a defective condition.  The First Department reversed however, finding that the plaintiff raised a triable issue of fact as to whether the cesspool cover was in a defective condition because Port Jefferson Cesspool had improperly replaced it after servicing the cesspool, enabling one of the boys to get his fingers underneath the cover and lift it.  According to plaintiff’s expert, there was soil between the cover and the cesspool, so that the cover did not rest firmly on the cesspool, which was a substantial factor in causing these deaths.  

Homeowner Liability, Recreational Accidents, and Discovery Angles
By: Marc A. Schulz [email protected]

Greetings Subscribers!
The NFL season is here and in full swing, with the Bills off to their typical strong start and the rest of the league struggling to keep pace with the Patriots. I hope your fantasy teams are performing as well as (mine, for the most part and) Showtime Mahomes!
This month, I report on three cases involving various levels of sanctions (or not) when counsel fails to respond with discovery demands or scheduling orders. As revealed from the Hirscberg case, documenting your file and timely complying with discovery is crucial for any practitioner looking to avoid the risk of having their answer stricken or paying someone else’s litigation fees. If you need assistance in discussing a potential spoliation or other discovery issue in your case, just send me an email and we can work through your issue together.
See you next month.

08/21/19          Hirschberg v Winthrop-University Hosp.
Appellate Division, Second Department
Plaintiff not entitled to spoliation sanction for defendant’s failure to preserve additional footage for 2-hour window before accident where additional demand for prior footage not made until six months after the initial demand and plaintiff did not show he was deprived of his ability to establish his claim.
Plaintiff allegedly slipped on “wet floor” located at the entrance of defendant’s hospital. He sent a letter notifying defendant “to keep and preserve any video recordings made by security, surveillance or other camera/recorders” and served demands for a complete copy of any security videotape and/or recording depicting plaintiff’s accident. Six months later, he served another demand for the security video for “two hours prior to and including the accident.”
Defendant responded that it preserved and provided the video footage of the accident and that “other footage” would have been automatically taped over after 28-30 days. The trial court denied plaintiff’s CPLR § 3126 motion to strike the answer or for spoliation sanctions against defendant with respect to the additional videotape footage.
The Second Department affirmed, as defendant complied with plaintiff’s demand to preserve the footage depicting plaintiff’s accident and plaintiff failed to show that the absence of the additional footage depicting the two-hour window before the accident deprived him of his ability to prove his claim.

08/22/19          Pezzino v Wedgewood Health Care Ctr., LLC
Appellate Division, Fourth Department
Plaintiff not entitled to the striking of defendant’s answer as to liability but awarded $3,000 sanction towards cost and attorney’s fees for defendant’s failure to timely comply with discovery.

Plaintiff allegedly was injured as a result of the negligence of defendant’s “employees and agents.” Although defendant did not comply with the initial discovery demands, plaintiff’s attorney sought relief from defendant’s carrier in bankruptcy court in a different state. Four years later, he reserved his discovery demands, and the trial court granted plaintiff’s motion seeking sanctions, striking defendant’s answer as to liability, and finding all issues of liability resolved in plaintiff’s favor.
The Fourth Department concluded that plaintiff did not establish that defendant’s failure to respond or to comply with willful, contumacious, or bad faith as plaintiff failed to demonstrate that defendant engaged in “repeated noncompliance” with discovery orders. By pursuing remedies in bankruptcy court, the Court held defendant’s failure to respond to discovery was occasioned, in part, by plaintiff’s own discovery violations and defendant’s conduct did not warrant the striking of its answer as to liability.
However, the Court could not disregard defendant’s conduct and held a money sanction for $3,000 is warranted to compensation plaintiff “for the time expended and costs incurred in connection with [defendant’s] failure … to comply with discovery.” Thus, the trial court’s order was modified to only grant the motion if, within three months, defendant serves responses to all outstanding discovery and pays the $3,000 sanction towards costs and attorney’s fees.

08/28/19          Giraldo v Highmark Ind., LLC
Appellate Division, Second Department
Defendant’s conduct deemed willful and contumacious for its failure to comply with court-ordered discovery to produce a representative for a deposition
The trial court granted plaintiffs’ motion to strike defendant’s answer to the extent of precluding it from offering evidence at trial. Before precluding a party from offering evidence at trial, there must be a clear showing of willful and contumacious conduct, which may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply, or a failure to comply with court-ordered discovery over an extended period of time.
The Second Department affirmed, finding the willful and contumacious character of defendant’s conduct can be inferred from its repeated failures to produce a representative for a deposition.


Elevator/Escalator Accidents, Animal Liability, and General Litigation Issues
By: Marina A. Barci [email protected]

Dear Readers,
Summer has come and gone, too quickly as always for us in WNY. Just when you start to feel like you’re getting used to the warm weather, fall rolls around. But that’s okay with me, fall is my favorite season! I had a great summer though, filled with travel, family, friends and fun. When I last wrote, I was headed to NYC to see Harry Potter and the Cursed Child, which was fabulous. I highly recommend that you get tickets and go see it, honestly no matter the price. Then in August, when our last edition came out, I was in Florida at Disney World! I know, we were crazy to go to Disney in Florida in August. Although it was incredibly hot and humid, we had a blast. I’ve also been all over the northern/central part of New York State this summer for work, conducting no-fault EUOs in places you’ve never heard of! Now that September is half-way through (how is that possible??), I am ready to hunker down and spend more or less everyday in the office.
As for new cases to report on, I have an elevator accident and a few dog bite cases to bring you up to speed on. First, the First Department discusses why a property owner/manager and elevator service company failed to establish lack of notice to an alleged defect with an elevator’s doors. Then out of the Fourth Department, I discuss a lengthy case originating in the Town Court of Champion, NY, where it is ordered that a dog named Wally be euthanized. Finally, there are three more typical dog bite cases from the Second and Fourth Departments that are good examples of when strict liability will or will not be applied.
Until next time,

09/03/19          Mable v. 384 East Associates, LLC
Appellate Division, First Department
Conflicting testimony precludes property owner, manager and elevator service company from securing summary judgment on elevator door defect notice issue.
Plaintiff, a tenant in the defendants’ apartment building, was injured when an elevator door closed on his thumb. He brought this action against the property owners, property management company, and elevator service company. Defendants made a motion for summary judgment, arguing that they had no actual or constructive notice of problems with the elevator door. The lower court granted the defendants motion and this appeal followed. The First Department reversed the lower court’s decision, finding that there were questions of fact regarding whether or not the defendants had notice.
Plaintiff testified that he had complained to the building superintendent, a building maintenance employee, and the management company a number of times regarding the speed at which the elevator door closed. He alleged he was told by the property management company that they would send the service company out to address the issue. Additionally, he testified that approximately two months before his accident, he witnesses a friend get hit in the should by the fast closing elevator doors, which both he and his mother reported to the then superintendent of the building.
For the defendants, a superintendent-in-training of the property manager testified that he had not received any complaints about the elevator doors. Then a field mechanic for the elevator service company testified that he did not do any repair work related to the elevators opening or closing too quickly. The parties also presented conflicting expert affidavits regarding the alleged elevator doo malfunction and door closure speed.
Based on the conflicting testimony about whether or not the property manager was notified about the elevator door issues and the competing expert testimony, the court found that summary judgment was inapplicable as there were questions of fact as to whether the defendants had notice of the alleged defective condition.
Dog Bite Standard Reminder:
In order to recover strict liability damages for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Evidence tending to demonstrate a dog's vicious propensities includes evidence of a prior attack, the dog's tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm. Knowledge of an animal's vicious propensities may also be discerned, by a jury, from the nature and result of the attack.

08/22/19          Matter of Workman v. Dumouchel
Appellate Division, Fourth Department
Order to euthanize Wally the dog upheld, though not unanimously.
The respondent was ordered to euthanize his dog, Wally, after it was established that Wally broke free of his tether, ran into the petitioner’s yard, and bit the petitioner’s 3-year-old daughter. Even after the child’s mother picked her up, Wally continued to bite at the child until he was restrained by the respondent. As a result of this attack, the child sustained multiple lacerations to her lower leg, chest, and buttocks. The most severe laceration on her buttocks required surgical intervention and approximately 30 stitches. At the hearing, photographs of the child’s injuries and her medical records were submitted.
Respondent does not dispute that petitioners established by clear and convincing evidence that Wally was a “dangerous dog,” but argues that the order for euthanasia was made in error because the child’s injuries do not constitute a “serious physical injury.” This case was brought in town court and argued under N.Y. Agriculture and Markets Law Markets Law § 123. This law defines a “serious physical injury” as a "physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” §108 [29].
The court found that, contrary to the respondent's contention, the evidence established that the child sustained a serious injury inasmuch as the dog attack caused serious or protracted disfigurement as a disfigurement is defined as "that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner.” “A person is seriously' disfigured when a reasonable observer would find her altered appearance distressing or objectionable.” The standard is an objective one and depends on various factors, including the nature and the location of the injury Based on the injuries sustained by the child here, particularly the bite wound to the buttocks that required surgery and approximately 30 stitches, the court held that it constituted a serious disfigurement and upheld the order from the town court.
This was not a unanimous affirmation by the Fourth Department. Justice Troutman dissented, finding that the court erred in upholding the town court’s order to put Wally down. She felt that the court’s conduct showed that it pre-determined the result of the proceedings without impartiality and with prejudice. Although the majority of the facts were undisputed, many of the actions of the court were not considered according to Justice Troutman.
Immediately after the incident, the child was taken to the hospital. Her medical records revealed that healing was going well. Three days after the incident, the petitioners commenced this proceeding. Within two weeks of the accident, the petitioners friend wrote to the town court indicating that although the child was healing, the same could not be said for the mother’s emotional and psychological wounds. This friend urged swift retribution stating that “Most men I speak with say they would have personally killed the dog themselves."
On the first day of the hearing, the child’s father testified about her injuries. At the outset of the second day, respondent proposed a settled disposition: that Wally would be neutered, he would receive training, respondent would construct a yard fence acceptable to petitioners, and, in the meantime, Wally would be removed from the neighborhood. The town court rejected this proposal without consulting the petitioners, stating that "I'm going to have the dog put down. That dog attacked that girl in her yard for no reason and injured her severely, and not just the physical, but there may be some issues down the road with her . . . being around animals, psychological issues . . . I don't want to take a chance whether that dog gets counseling . . . I don't believe it works . . . I never want to see it back and I don't want it in any neighborhood or around anybody. I think it's a dangerous dog and it fits all the criteria of a dangerous dog and so my alternative to this is, is to have the dog put down."
In the dissents view, it was obvious that the town court’s conclusion could not be reached under any fair interpretation of the evidence in the light most favorable to the non-moving party. It was also clear that the town court refused to consider any humane measures that were available to it, such as muzzling, confinement, or the hiring of a certified behavioral expert and training. The dissent also found that the serious physical injury requirement was not met.

08/07/19          Drakes v. Bakshi
Appellate Division, Second Department
No proof of Fluffy’s vicious propensity could be shown, entitling Fluffy’s owners to summary judgment.
The defendant’s dog, lets call it Fluffy, allegedly mauled a small dog, that we’ll name Princess, owned by the plaintiff and bit the plaintiff’s finger. A few days later Princess had to be put down. After that, plaintiffs commenced this action to recover damages and the defendants moved for summary judgment dismissing the plaintiff’s complaint.
The defendants presented evidence that they did not know, nor that they should have known, that their dog had vicious propensities since Fluffy had never attacked another animal or bitten anyone. Fluffy was allowed to roam the defendant’s yard freely and had resided with the defendant’s two small children and two other dogs without incident. Plaintiffs failed to raise a triable issue of fact in opposition, so summary judgment was granted and their complaint was dismissed.

07/31/19          Christopher P. v. Kathleen M.B.
Appellate Division, Fourth Department
Reliance on inadmissible hearsay to prove a dogs vicious propensity will not establish a strict liability.
Plaintiffs, parents of a young girl, brought this action against defendants after an interaction between the defendants two dogs and their daughter. As an aside, the defendant’s liability is not dependent on the plaintiff’s ability to identify which particular dog bit the girl. It is well established that vicious propensity is not limited to a bite or other attack. “Vicious propensity can include the propensity to act in a manner that may endanger the safety of another, whether playful or not.”
In this case, it was undisputed that the defendant’s dogs were rough housing on a couch where the girl was sitting that ultimately became a dangerous interaction of fighting our aggressive playing according to the court. The dogs cause the girl’s injuries when at least one of them bit her during their interaction. However, the court agreed with the defendant that the plaintiff failed to establish as a matter of law that the dogs had vicious propensities that resulted in the girl’s injuries. The only evidence that plaintiffs presented in support of their contention that the dogs had vicious propensities was a purported incident that occurred prior to this incident in which a young boy was “nipped” by one of the dogs. Plaintiffs had heard of this incident through others, thus it was based on inadmissible hearsay that could not be relied on to support their allegations. Therefore, plaintiff’s motion for summary judgment was denied.

07/24/19          I.A. v. Mejia
Appellate Division, Second Department
Question of fact exists as to dog’s vicious propensities.
In this case plaintiff, an 11-year-old boy, was allegedly bitten on the face by the defendant’s dog while he was at the defendant’s house with his older brother. Their mother commenced this action to recover damages for injuries to both boys.
The court here found that the defendant met its burden demonstrating that they were unaware of any vicious propensities of their dog because they were unaware of any incident where the dog had bitten any person or animal, or acted aggressively, viciously, or ferociously, or attacked, harmed, or threatened to harm any person or animal. However, the plaintiffs in opposition submitted evidence demonstrating that the dog was kept in part as guard dog, and the dog, unprovoked, bit the boy on the face and would not let go until his brother pried the dog’s mouth open, causing him to sustain severe lacerations that required emergency surgery and left him with multiple scars. Based on this evidence, the court found that the defendant was not entitled to summary judgment.


Jody E. Briandi
[email protected]

Todd C. Bushway
[email protected]

V. Christopher Potenza
[email protected]

Anastasia M. McCarthy
[email protected]

Marc A. Schulz
[email protected]

Marina A. Barci
[email protected]


Read Past Editions of Premises Pointers




Hurwitz & Fine, P.C.
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874             

Long Island
535 Broad Hollow Rd., A-7, Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313

Additional Offices
Albany | Albion | Amherst | Niagara Falls | Palm Beach Gardens | Toronto
Hurwitz & Fine, P.C. is a full-service law firm providing legal services
throughout the State of New York
© 2019, Hurwitz & Fine, P.C. All Rights Reserved

In some jurisdictions, newsletters such as this may be considered Attorney Advertising.


Copyright © 2019, Hurwitz & Fine, P.C., All rights reserved.

Our mailing address is:
1300 Liberty Building, Buffalo, NY  14202

Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list.


Newsletter Sign Up