A dog had lived at 1140 Ontario Street, Utica, with the defendants, who were affianced, for several years. He had a prior history of two or three bites that are essentially uncontested. Defendant (“the defendant”) had acquired the dog but was apparently the shared pet of both defendants until August of 2001. Defendant complained to the police that the other defendant (“the other defendant”) had taken the dog as an apparent consequence of the demise of their romance. Thus, on 2 August 2001, the defendant, in a police complaint attached to her papers, claimed that she owned the dog and that the other defendant, who had previously moved out of 1140 Ontario Street, wrongfully possessed the dog. The police report specifically quotes the defendant as claiming ownership of the dog and the other defendant is quoted as advising the police he would return the dog to the defendant. Both defendants claim that the other defendant did not return the dog and allege that they were separated on the day the bite occurred.
On 11 October 2001, some 69 days after the police complaint, the plaintiff while campaigning for public office was present at 1140 Ontario Street. The dog and the other defendant were both present. The dog was unrestrained and bit the plaintiff.
Subsequently, a dog bite case was filed by plaintiff against defendant by reason of the dog attack or animal attack resulting to his injury.
The defendant moved for a summary judgment dismissing the complaint claiming that she did not own the attacking dog on the date in question relying upon a prior ruling of the court.
Defendant claims that ownership of the dog has been transferred to the other defendant, prior to the bite in question, in August 2001; however, no specific date of the transfer was given. Defendant claims that, at the time of the bite, she lived at 1140 Ontario Street without the other defendant but was present at the house with the dog without her permission. Defendant further claims that she was not present at the time of the bite.
What indices of dog ownership are sufficient to create an issue of fact in order to defeat a motion for summary judgment which contends that the moving party did not own the dog on the day of the bite?
The case at bar is distinguishable from the case cited by the defendant.
Here, unlike the cited case, there is no arm’s length transaction transferring the dog or any indication of the specific terms of his transfer including a specific date of transfer. There is no proof of the dog’s registration on the date of the bite.
The court took judicial notice that the City of Utica had a leash law in effect at the time of the bite. The defendant did not present any evidence of the dog being registered to the other defendant at the time of the bite. The other defendant was summoned to Utica City Court and testified that he owned the dog and that he did not live at 1140 Ontario Street, and was ordered by the court to destroy the dog because of the incident.
The failure to demonstrate notice pursuant to section 113 of the Agriculture and Markets Law is one of several factual issues regarding ownership of the dog on the day of the bite. Dominion and control over the dog are decidedly in issue given that the bite occurred at defendant’s property with the alleged new owner of the dog present during the bite. Thus, who owned the dog and whether or not the dog and the other defendant continued to reside with defendant all remain unresolved factual questions for a jury to decide.
The function of a court on a motion for summary judgment is issue finding, not issue determination. The court must view the facts in a light most favorable to the nonmoving party, consistent with the rule that in opposing motions to dismiss for failure to state a cause of action and motions for summary judgment the plaintiff’s submissions must be accepted as true.
The court has identified evidence supporting the existence of unresolved issues raised by the defendant’s motion, as follows: that on 2 August 2001, defendant admits to owning the dog 69 days prior to the bite and turns the other defendant into the police alleging that he stole the dog from the premises in question; that the other defendant has assured the police that he will return the dog, according to the police report; defendants contend that defendant somehow transferred the dog to the other defendant thereafter, but no facts, including but not limited to a specific date or the terms of the transfer, were given; that on 11 October 2001, the dog is present at defendant’s address (as is the other defendant) and bites the plaintiff.
All of the foregoing facts raise issues regarding the ownership of the dog on the date of the bite. The dog was not sold in an arm’s length transaction; indeed, the conditions under which the other defendant allegedly acquired the dog are murky. Given that the defendant undisputedly owned the dog a short 69 days prior to the bite, the bite occurred at defendant’s house, and in the absence of any documentation of change of ownership, there are sufficient factual questions for a jury to resolve.
Given the facts set forth, the absence of proof of compliance with the law is a further factor militating against the granting of a summary judgment. Based on the facts as presented by the movant, genuine factual issues remain regarding the ownership, control and custody of the dog that must be decided by a jury.
Accordingly, the motion is denied.
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