Defendant was a tenant of his co-defendants (“the co-defendants”) at a house then owned by them at 22-39 120th Street in College Point, Queens County, New York. Defendant owned an Akita dog. On 27 February 2007, plaintiff visited defendant. Defendant left the house for a few minutes leaving plaintiff alone with his dog.
While plaintiff was seated, she reached across the coffee table, intending to get a cigarette when the dog allegedly bit her about her face, requiring stitches for puncture wounds, at a Memorial Hospital in Flushing, Queens.
Subsequently, a lawsuit followed, initiated by the plaintiff, seeking damages for the injuriessustained by the dog bite.
On 9 July 2007, all the defendants were served with the summons and complaint.
On 1 November 2007, defendant was held in default for his failure to answer the summons and complaint.
The co-defendants, the out-of-possession landlords, moved for a summary judgment.
On 14 April 2009, plaintiff’s counsel, after seeking a few adjournments of the motion, then defaulted, and the Court dismissed the complaint. Plaintiff now seeks to vacate the prior order and to argue the summary judgment motion.
Are the co-defendants liable to plaintiff?
The Court, although it agrees with the defense counsel entirely on a theoretical and conceptual basis, as a practical matter, would not like to punish the plaintiff herself for the delay.
First, the law favors resolution on the merits. Especially where plaintiff and her counsel have not shown any intentional act to abandon an action and there is no prejudice to defendants, the failure to vacate a default may amount to reversible error.
Second, and pertaining to the facts in the present case, the Appellate Division in a prior ruling reversed the lower court’s refusal to vacate a default, even though the petitioner had been dilatory in seeking information under the Freedom of Information Law (“FOIL”). Following those precedents, the Court will grant the branch of the motion to vacate the default of plaintiff that led to the dismissal of the complaint.
Turning to the merits of the case, the Court could not find any issue of fact.
The applicable standard in dog bite cases is whether the defendant had any knowledge of the dog’s vicious propensities prior to the animal attack. A vicious propensity does not have to be shown necessarily by an actual bite, but even knowledge of a particular dog baring its teeth or the posting of a “Beware of Dog” sign outside a property might suffice.
In a similar case, the Appellate Division, Second Department held that an out-of-possession landlord could not be held liable for a dog bite because the landlord did not know that there was a pet harbored on the property; that, to obtain liability, the out-of-possession landlord knew or should have known that the dog had vicious propensities. In the present case, however, the co-defendants knew of the pet’s existence; co-defendant’s sister, indeed, had given the dog, as a puppy, to defendant.
The counsel representing the co-defendants skillfully demonstrated that there was no indication at all that the dog had any vicious propensity of any kind prior to the alleged dog attack. Plaintiff, at no time when visiting her friend, the defendant, found a muzzle for the dog or a posted “Beware of Dog” sign. The most that plaintiff’s counsel could yield was the hearsay testimony that, on some subsequent date after the dog bite of plaintiff, the subject dog may have bitten another dog. That fact does not show a prior knowledge of a dog’s alleged vicious propensity.
The failure to yield any knowledge by the co-defendants of the dog’s vicious propensities was compounded by the results of the tardy FOIL requests submitted by plaintiff. The municipal records showed no prior incident involving the dog.
Moreover, even in the motion papers, on the present motion to vacate the default, plaintiff’s counsel is reduced to making contradictory statements that defendant always made the dog lay down by the door area or the dog was permitted to walk freely in the house. Neither of the two statements, at any rate, showed knowledge by the co-defendants, or by anyone else, of any vicious propensity by the dog prior to the alleged attack that formed the basis of the action.
In order for a plaintiff, in a dog bite case, to tether a defendant in liability, especially an out-of-possession landlord, it must show some indication that the defendant knew or should have known of the dog’s alleged vicious propensity. Here, plaintiff failed even remotely to make such a demonstration. The meager results that the dog was a gift by the co-defendants’ sister to defendant and the hearsay reference that it bit another dog after the bite sustained by plaintiff shows that plaintiff’s counsel has been barking up the wrong tree.
Accordingly, that branch of the motion seeking to vacate the prior default is granted, and upon accepting and reading the plaintiff’s motion, the Court adheres to its prior determination that summary judgment should be granted to the co-defendants. The complaint is dismissed as against only the co-defendants.
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