On February 27, 2007, a Queens County New York woman went to visit her friend who lived at 22-39 120th Street in College Point, Queens County, New York. She knew that her friend owned an Akita dog which had been given to her by her land lord’s sister when it was just a puppy. The Queens County woman had visited the house before and each time, her friend had put the dog on a stay by the front door or had just let her walk “freely in the house.” On this visit, the dog was walking freely in the house while the two friends visited with each other. At one point, the Queens County New York woman’s friend who is the owner of the dog left the room. While the dog’s owner was out of the room, the Queens County woman reached across the coffee table to get a cigarette from the other side of the table. As she reached, the dog attacked her. She was bitten several times around the face. She received numerous puncture wounds that required stitches. She was transported to Booth Memorial Hospital in Flushing, Queens.
The Queens County woman obtained an Attorney and filed a lawsuit against the dog’s owner and against the land lords of the dog’s owner. She was seeking damages for the injuries that she had gotten when she was attacked by her friend’s dog. She named the land lords of the property based on the fact that it was their sister who had given the dog to the current owner back when the dog was a puppy and should have known that because it was an Akita that it could be vicious. She further maintained that since they are responsible for the house that they rent and they are knowledgeable about the dog living on the premises then they should also take responsibility for that dog being vicious.
Therefore, the dog owner and the property owners were served with summonses and complaints on July 9, 2007 by order dated November 1, 2007 which was entered into the courts by the County Clerk on December 6, 2007. The dog owner; however, failed to reply to his summons and was found to be in default. The property owners asked for a summary judgment to drop them from the lawsuit. Their grounds for requesting a summary judgment were simple. They argued that although they knew about the dog living on the premises, they had no knowledge that the dog was vicious and they were not present at the house when the dog bit the victim, the Queens County woman. In fact, they do not reside in that house at all, but in a separate house a few blocks away. Further, the victim’s lawyer had failed to provide the Municipal court documents showing any prior assaults accredited to this dog.
On April 14, 2009, the property owners moved for a summary judgment. The victim’s lawyer made a few adjournments of the motion and then defaulted. The Court then dismissed the complaint. The victim has now filed a motion that would reopen the case to argue the summary judgment motion claiming that the property owners had to have had previous knowledge of the ferocity of the dog.
In the state of New York, a dog can be described as vicious even if the current case is the first time that the dog has ever bitten anyone. That is “if” the complainant can show that the dog had exhibited signs of being vicious short of actually biting anyone prior to the dog bite that is in question. Some of the signs that the dog could exhibit to demonstrate viciousness would be growling at people, snarling at people, or just showing its teeth in an aggressive manner in the presence of people. Of course, a previous incident of actual biting is demonstrative of viciousness as well. Some other indicators that the Court will take in to account are things like a “Beware of Dog” sign. A “Beware of Dog” sign demonstrates a certain knowledge of the dog owner that his or her dog is likely to be vicious even if it has never bitten anyone before.
The applicable standard in these cases in New York is whether the dog owner had any knowledge of the dog’s tendency to bite or otherwise be vicious prior to the attack on the victim. However, in this case, the victim also cited the property owners as liable because their sister had given the dog owner the dog and they were well aware of the dog being on the premises.
The attorney hired by the property owners argued that the previous case of Madaia v Petro, 291 AD2d 482 from the year 2002 held that a property owner could not be held liable for a dog bite because the property owner did not know that there was a pet harbored on the property. This case hardly relates to the case at hand, since the property owners in this case clearly were aware of the dog on the premises. It is then incumbent on the victim to show that the property owners either did know or should have known that the dog was vicious. The attorney hired by the property owners in this case demonstrated “skillfully” by questioning the victim on June 18, 2008 that they would have had no way of knowing that the dog was vicious prior to the attack of February 27, 2007.
During questioning the property owner’s attorney questioned the victim as to whether at any time when she was visiting her friend, the dog’s owner, had she seen a muzzle for the dog or any kind of “Beware of Dog” sign on the premises. The victim’s lawyer brought up that the dog had bitten another dog since the attack on the victim. However, that testimony proved to be hearsay and was not substantiated by any additional testimony. Also, because the attack on the other dog occurred after the attack on the victim, it does not show that anyone would have had prior knowledge of the attack on the victim because of this incident.
The victim’s lawyer filed a request from the state to determine if any previous dog bite cases and injuries had been attributed to this dog. However, the request was entered so late that the dog’s owner and the property owner’s attorneys were not privy to the information in a timely manner. Because of this delay, the dog’s owner and the property manager moved to have the case summarily dismissed. The judge in the case ruled that although he agreed with the property owner’s attorney on a “theoretical and conceptual basis” he was not inclined to punish the victim for the delay created by her council. He also took this action based on the fact that the victim and her attorney had not demonstrated any “intentional action to abandon” the case and could amount to a reversible error. Secondly, because the judge is not willing to punish the victim for the delay, the Court will reopen this case to be heard in judgment and will disregard the previous dismissal of the complaint. The case was re-opened for judgment in the Court.
The delayed Municipal court records of prior dog bite incidents revealed that there had not been any prior incidents involving this particular dog. The Court ruled that the victim had “failed even remotely” to make a connection demonstrating that the property owners should have known that the dog was vicious or that the dog had a vicious propensity. Therefore, the Judge found that the motion seeking to dismiss the prior order of April 14, 2009 would not be logical under the circumstances. The Court adheres to its prior decision and orders that the summary judgment to dismiss all the allegations against the property owner is correct and logical under these circumstances. The decisions about liability of the dog owner will be addressed at another time since it is more feasible that she should have known if her dog had shown any prior propensity to become aggressive to the point of biting.
Basically, the victim attempted to hold the dog’s owner and the property owner responsible for the dog’s actions on the day that it attacked her. However, she could not prove that the property owners should have been aware of the dog’s propensity to be vicious. Since the only connection that the property owners had to the dog was that their sister had given the dog to the owner when it was just a puppy. To assume that they would suspect that it would become vicious as an adult would be to assume that it was from vicious stock or that all dogs of that breed are vicious. Since the dog was an Akita which is sometimes considered a more aggressive breed, it seems logical that it was the victim’s perception that the property owners should be aware that Akitas are aggressive by nature. That assumption is incorrect as proven by the fact that a huge number of Americans own Akitas and they have not bitten anyone. Because she could not prove that they would have any knowledge of the dog’s propensity to bite, they could not be held liable for any damages and the liability for the injuries resulting from the dog bite falls back onto the dog owner.
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