Pit Bull “Luna” Attacks Yorkshire Terrier “Princess” on First Street in Newburgh

Was Owner of Home Housing Dog Owned by Tenant Liable for the Injury?

Cassandra Lawrence was allegedly injured while living at 289 First Street in Newburgh, New York, when she was bit by a dog owned by Tony Euceda.

Lawrence sued Euceda and was awarded money damages as against Euceda after he defaulted in the action.

Lawrence then sued Brandon Tobal, the owner of the premises at which Euceda (and the dog) were living at the time of the incident.

Tobal moved for summary judgment dismissing the complaint on the ground that he lacked notice that the dog had vicious propensities.

At an examination before trial, Lawrence testified that, at the time of the incident, she was living at 289 First Street in Newburgh, New York. She owned a female Yorkshire terrier named “Princess.” A neighbor “Tony” owned a pit bull named “Luna.” Luna was generally kept in a fenced-in area.

On the day of the incident, Lawrence was going to work. As she was at her vehicle, she heard “like nails” on the pavement. She turned around and saw “Luna coming from down the street running full force.” She went to grab Princess from her stoop. However, before she could get there, Luna grabbed Princess in her mouth and started shaking her. Lawrence began kicking at Luna with a cam boot she was wearing, but Luna was not letting go. Luna finally let go and she grabbed Princess, but Luna snatched her back. She was screaming and yelling but nobody came. During the struggle, Luna bit her left hand. The owner then came out, restrained Luna and freed Princess. Lawrence and Princess were both bleeding and Lawrence went to the hospital.

Lawrence had no further incidents involving Luna, as she took precautions. To her knowledge, Luna had never attacked any other person.

Prior to the incident, Luna walked into her kitchen. She tried talking softly, saying “Get out, Luna. Go out, Luna.” However, Luna grabbed Princess and they were in the “vestibule tussling.” Her fiancé grabbed Luna and she grabbed Princess. She and her fiancé’ were both “scratched up.” She did not seek medical assistance and took no further action because Euceda promised her that he would keep Luna away.

Also, one a prior occasion, Luna got into her yard, “but she didn’t attack. We got her away from her before she could.” However, children “couldn’t really play in the backyard because they were scared that Luna would come into the yard. They were little ones.”

Lawrence also heard that Luna had attacked a dog around the corner.

In support of his motion, Tobal submitted his own affidavit. Tobal averred as follows:

Lawrence alleged that she was bitten while living at 289 First Street, Newburgh, New York, by a dog owned by Tony Euceda, who was an occupant/tenant at 287 First Street, Newburgh, New York. At that time, Tobal was the owner of 287 First Street, but not the owner of 289 First Street. However, he did not live there. Rather, although he previously lived at 287 First Street, he thereafter moved out to live with his family in New Jersey.

Tobal rented 287 First Street to non-party Lazarus Santos. Santos, in turn, rented out some of the bedrooms in 289 First Street to sub-tenants, including men named “Eddie” and “Tony,” as well as a woman whose name he did not recall. He was unsure of Tony’s last name, but had no reason to dispute that it was Euceda.

He was aware that Euceda had a dog, although he did not recall the date he first found out, and he did object to the dog.

Tobal went to 287 First Street basically on a monthly basis to pick up the rent. When he was there, he noticed Euceda’s dog. He petted the dog and the dog appeared friendly to him. He recalled telling the dog to come to him, and it did. The dog never snarled at him, bared its teeth, charged at him, or was in any way aggressive toward him. Nor did he see the dog snarling, baring its teeth, charging or being aggressive toward anyone else.

Tobal recalled seeing the dog with Euceda in the building and in the backyard of 287 First Street, but not in the backyard of the house next door at 289 First Street. He did not see the dog with any other dog, and did not witness the dog attacking Lawrence or any other person or animal.

The first time Tobal was advised in any way of a claim that Euceda’s dog had attacked someone or something was when he received the Summons and Complaint in this action.

Euceda no longer resided at 287 First Street. He was evicted for non-payment of rent prior to the commencement of this action. He did not know where Euceda currently resided. Thus, he had not been able to discuss the allegations with Euceda.

In opposition to Tobal’s motion, Lawrence submitted an affirmation from counsel, Stephen Strauss, who argued that the motion was premature because disclosure was not complete. Noting that Euceda was impleaded but had yet to appear and be deposed. Strauss argued that Euceda had “necessary information regarding this matter as well the necessary information that is needed to fully oppose the motion.”

In any event, Strauss asserted, in support of the motion, Tobal relied merely on his own self-serving testimony concerning a lack of notice. Thus, Strauss argued, Euceda’s testimony was “necessary to affirm these self-serving statements.” That is, the Court should not take Tobal’s statements at face value. Indeed, he asserted, Tobal committed fraud as to the property by representing it as his primary residence.

In addition, he argued that Tobal, as landlord, violated the Town of Newburgh’s rental laws, in that he rented his two-family house to numerous people dividing the house into “rentable rooms” rather than a two family house and received violations for doing so from the Town.

Finally, he asserted, the testimony already in the record raised triable issue of fact: Tobal admitted that he knew Euceda had a dog. “He states, very questionably, that he could not say if the dog was a PIT BULL. PIT BULLs are very specific looking dogs and there is a question of fact for a jury if the landlord knew that the dog was a PITBULL. [Lawrence] testified that prior to this PIT BULL attack the PIT BULL attacked [her] once prior. She testified that the PITBULL entered her house, which is next door, and attacked her dog and herself.”

In reply, counsel for Tobal, Richard Smar, argued that Tobal’s motion for summary judgment was not premature. And noted that such an argument was usually raised when the motion was made immediately after a case was commenced, prior to discovery taking place; especially when the party making the summary judgment motion had not been deposed. Here, he noted, Tobal has been deposed.

Moreover, he noted, “Strauss conveniently fail[ed] to mention that he filed a Note of Issue and Certificate of Readiness … certifying, inter alia, that “Discovery proceedings now known to be necessary [have been] completed.” If Strauss believed that he needed the deposition of Euceda to support his claim against Tobal, Smar argued, he should have scheduled the deposition, or moved to extend the time to file the Note of Issue. Smar noted that Tobal was deposed over a year ago and six months before the shutdowns for COVID-19.

Otherwise, he argued, Strauss merely made unfounded and scurrilous claims that Tobal lied, committed mortgage fraud and insurance fraud, and violated of the local rental laws.

A motion for summary judgment may be denied as premature when it appears that facts essential to justify opposition may exist but cannot then be stated. That is especially so where the opposing party had not had a reasonable opportunity for disclosure prior to the making of the motion. However, the proponent must offer an evidentiary basis for a determination that disclosure might reveal or lead to relevant evidence, or that facts essential to oppose the motion were exclusively within the knowledge and control of the adverse party. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the disclosure process is insufficient to deny the motion. Summary judgment may not be defeated on the ground that more disclosure was needed where the party advancing the argument had failed to ascertain the facts due to its own inaction.

To recover on a theory of strict liability in tort for a dog bite or attack against its owner, a plaintiff must prove that the dog had vicious propensities and that the owner knew or should have known of such propensities. Evidence tending to prove that a dog had vicious propensities included a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm. The keeping of a dog as a guard dog may give rise to an inference that an owner had knowledge of the dog’s vicious propensities.

In general, the presence of a “Beware of Dog” sign, standing alone, was insufficient to impute notice of a dog’s viciousness. And the mere fact that a dog was kept enclosed or chained, or that barked at people, was insufficient to raise a triable issue of fact as to whether the dog had vicious propensities.

In addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities, but only when such proclivity results in the injury giving rise to the lawsuit.

To recover against a landlord for injuries caused by a tenant’s dog, the plaintiff must demonstrate that the landlord: (1) had notice that a dog was being harbored on the premises; (2) knew or should have known that the dog had vicious propensities; and (3) had sufficient control of the premises to remove or confine the dog.

The courts have not attempted to formulate an overarching definition of what constitutes “sufficient control of the premises” to impose liability. However, instances in which such control has been found include where the tenancy was month-to-month, and the landlord could have terminated the tenancy; where the landlord allowed the tenant to keep an animal in violation of a lease provision prohibition; and where the landlord rented premises to a tenant known to possess an animal with vicious propensities.

Here, Tobal demonstrated a prima facie entitlement to judgment as a matter of law with his testimony that he had not personally observed, and had not otherwise been made aware of, any aggressive or vicious behavior by Luna. In opposition, Lawrence failed to raise a triable issue of fact with evidence that Tobal had actual or constructive knowledge of prior aggressive or vicious behavior by Luna.

That Luna was, or appeared to be, a pit bull, without more, was not enough. The Courts do not take judicial notice, or otherwise presume, that certain breeds or kinds of domestic animals are dangerous.

Further, Lawrence did not demonstrate that the motion was premature. Indeed, as noted by Tobal, Lawrence filed a note of issue and a certificate of readiness. Further, as also noted by Tobal, Lawrence did not demonstrate that any efforts were made to depose Euceda during this action.

Tobal’s motion was granted and Lawrence’s complaint was dismissed.

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