Court Decides if Viable Claim is Asserted

Maria Grajeda sued Karin Hablo, as administrator of the estate of David B. Sulyma, after an incident involving a dog attack on September 20, 2014 in front of the Grajedas’ home in Chester, New York.

On September 20, 2014, at approximately 3:00 p.m., Maria Grajeda was on her front porch with her two dogs, Charlie and Sandy. David B. Sulyma lived next door with his two golden retrievers. Sulyma’s two golden retrievers approached Grajeda’s porch and started barking at her dogs. Sandy ran to the door of Grajeda’s home, and was let inside. As Sandy was let inside, Charlie was attacked by Sulyma’s dogs. Grajeda grabbed one of the dogs by the collar and attempted to separate them, but the attacks continued. As Grajeda attempted to grab Charlie, one of Sulyma’s dogs put his paws on her shoulder, causing her to fall to the ground on her right side. She continued her attempts to get Charlie, but the dogs “were pulling [her] and pulling Charlie” toward Sulyma’s property. She fell “a couple times” as she attempted to intervene in the attack.

A neighbor, Dave Whitney, was driving by when he heard Grajeda screaming. Whitney intervened and was able to separate the dogs. Grajeda called the police.

After the dogs were separated, Sulyma came out of his house and called his dogs inside. Whitney attempted to give Charlie CPR but was unsuccessful. The police arrived. Grajeda provided a description of the events. After the police left, Grajeda and her son took Charlie to Goosepond Animal Hospital where they were informed that Charlie was dead.

After Grajeda returned home, she started feeling pain in her back, shoulder, and right side. Grajeda, who had previously undergone a laminectomy and discectomy as the result of a 2010 accident, was concerned she had injured her back. After calling 911, she was taken by ambulance to the Cornwall Hospital emergency room. X-rays were taken of her right hand and right shoulder. Grajeda was discharged the same day.

Sulyma passed away and Grajeda sued the administrator of his estate.

The administrator sought summary judgment on the ground that there was no indication prior to the September 20, 2014 incident that Sulyma’s two dogs had vicious propensities that were known, or should have been known, to him.

The administrator submitted uncertified police reports relating to the incident: an appearance ticket issued by the Dog Control Officer, a Dangerous Dog Complaint filed by Grajeda, and Town Judge Christopher J. Turpin’s Notice of Findings to Owner of Dog arising out of the incident. The administrator also submitted six uncertified police reports regarding noise complaints prior to the date of the incident and argued that the absence of reference to anything other than barking in the reports was affirmative proof that Suluma’s dogs did not have violent propensities prior to the incident. In addition, the administrator argued that Grajeda’s deposition testimony was nothing more than conclusory assertions that had no support in the record.

There is no such thing as negligence liability when harm caused by a domestic animal is concerned. The law imposes strict liability on the owner of a dog who inflicts injuries on others, if the owner knew or should have known that the dog had the propensity to be vicious. 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 of a dog’s vicious propensity can include whether the dog had previously bitten someone, the manner in which the dog was restrained, whether the dog had been known to growl, snap, or bear its teeth, or the dog’s proclivity to put others at risk of harm.  However, the vicious nature of an attack alone is not sufficient to raise a question of fact as to vicious propensities.

For an owner to be entitled to judgment as a matter of law, he must establish that he was not aware, nor should he have been aware, that the dog had ever bitten anyone or exhibited any aggressive behavior.

Grajeda testified about incidents with Sulyma’s dogs prior to September 20, 2014. Sulyma’s dogs would come onto her property two to three times per week, as Sulyma would leave the gate to his yard open. Grajeda and her husband often complained to Sulyma about the dogs being on their property and “barking nonstop” in the middle of the night. The barking resulted in the police being called numerous times. If Grajeda had her dogs on her deck, Sulyma’s dogs would try to “grab” or “get” her dogs, growl, and bare their teeth. As a result, Grajeda set up chicken wire fencing around their deck. On one occasion her son witnessed Sulyma’s dogs killing a small deer, and on another occasion, killing another small animal. In response to the attack, Sulyma “mentioned something like, oh well, they attacked anything that moves. They will attack.”

Accepting Grajeda’s deposition testimony as true, as the Court was constrained to do on a summary judgment motion, the administrator failed to demonstrate a prima facie entitlement to judgment as a matter of law. The question of the whether Sulyma’s dogs had vicious propensities prior to September 20, 2014 was a triable issue of fact which must be determined by a jury.

The administrator’s motion for summary judgment was denied.