This case involves the respondents Jo Ann Fontecchio, et al. and Lena Esposito, the appellant et al. and defendant. The case is being heard in the Appellate Division of the Supreme Court, Second Department. The appellant is represented by William H. Bave. Jr. from the law offices of Wilson, Bave, Conboy, and Bave P.C. located in Yonkers. The respondents are represented by Muriel Lawrence from Mount Vernon.
The defendant in this case is appealing a judgment from Westchester County Supreme Court. The verdict from the original trial is against the defendant and for the plaintiff Albert Fontechhio in the amount of $70,000 and in favor of the plaintiff Jo Ann Fontecchio in the amount of $240,000.
This is an incident of a dog bite that occurred while the defendant was taking care of her father’s dog when he was on vacation. The plaintiffs, defendant Esposito, and the dog’s owner all lived near each other. There was testimony given in the case that stated the dog would bark and growl at anyone that passed by the property where the dog resided. There were also reports that the dog had at one time gotten away from his owner and bit the pouch of the mailman and had to be pulled away. Another time the dog snapped at a child that was walking by the fence. The dog barked constantly, bared his teeth, and strained at the leash. This was all evidence to support the fact that the dog had vicious tendencies and he acted in ways that might endanger people.
There was also evidence provided at the trial that the defendant knew about the prior conduct of the dog and his vicious tendencies. She stated that she did not trust the dog around her children, but saw the dog daily when her father came to visit.
The issue at hand concerns the award amounts given to the plaintiffs are felt to be excessive. The physical injury that Mrs. Fontecchio sustained in the incident consisted of a small scratch on her arm that healed shortly after the incident. She was treated at the emergency room where she was given a tetanus shot and the wound was cleaned and bandaged. During the medical testimony of the trial it was stated by a physician who examined her one time that she had a dog phobia as a result of the incident. Her treating physicians did not testify in the case.
The amount of damage awards given to the plaintiff is excessive as she was able to perform all of her household duties and remain working full time. She was coping with her phobia by attending a self-help clinic.
Since there is no way to determine if the awards given were only compensatory or if they were sympathetic or punitive in nature, we are remitting the case for a new trial. The new trial will be limited to the issue of damages alone, including costs for the new case. In addition, the findings of liability from the previous trial are confirmed