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BARTOLI v. ASTO CONSTRUCTION CORP
Factual and Procedural Background
The plaintiff, Massimillano Bartoli, a tenant in premises owned by defendant Asto Construction Corp., was injured when bitten by a dog owned by another tenant, Essex Works, Ltd., and its owner, Douglas J. Schickler. The plaintiff brought an action to recover damages for personal injuries. The Supreme Court, Kings County, denied Asto Construction Corp.'s motion for summary judgment dismissing the complaint against it and also denied its motion to set aside the damages verdict as against the weight of the evidence. A jury found Asto Construction Corp. 25% at fault and Essex Works, Ltd. and Douglas J. Schickler 75% at fault, awarding damages for past pain and suffering, past disfigurement, and future disfigurement. Asto Construction Corp. appealed, as did Essex Works, Ltd. and Douglas J. Schickler separately.
Legal Issues Presented
- Whether the Supreme Court erred in denying Asto Construction Corp.'s motion for summary judgment dismissing the complaint against it.
- Whether the damages verdict, including awards for past and future disfigurement, was properly instructed and calculated by the jury.
- Whether a new trial on damages against the remaining defendants was warranted.
Arguments of the Parties
Appellant Asto Construction Corp.'s Arguments
- Asserted entitlement to summary judgment dismissal by showing lack of notice of the dog's vicious propensities.
- Argued that the dog's conduct was not vicious or reasonably foreseeable.
- Contended the damages verdict should be set aside as against the weight of the evidence.
Respondent's Arguments
- This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sers v. Manasia, 280 AD2d 539 | Establishing no notice of vicious propensities as a basis for summary judgment. | Supported Asto's demonstration of lack of notice of dog's vicious behavior. |
| Kempter v. Erban, 284 AD2d 503 | Same as above regarding notice of vicious propensities. | Reinforced Asto's prima facie entitlement to summary judgment. |
| Finney v. Fraioli, 281 AD2d 389 | Similar principle on notice of vicious propensities. | Used to support the lack of notice argument. |
| Luts v. Weeks, 268 AD2d 568 | Dog's conduct not being vicious or reasonably foreseeable. | Supported Asto's argument that the dog's conduct did not justify liability. |
| Althoff v. Lefebvre, 240 AD2d 604 | Same as above regarding foreseeability of dog's conduct. | Used to bolster Asto's summary judgment motion. |
| Smith v. New York City Hous. Auth., 304 AD2d 646 | Standard for granting summary judgment when no triable issue of fact exists. | Applied to conclude plaintiff failed to raise triable issue against Asto. |
| Lebron v. New York City Hous. Auth., 268 AD2d 563 | Same as above regarding summary judgment standards. | Supported court's conclusion to grant summary judgment to Asto. |
| Nussbaum v. Gibstein, 73 NY2d 912 | Disfigurement is not a separate element of damages but a factor in pain and suffering. | Used to find error in separate jury determination for disfigurement damages. |
| McDougald v. Garber, 73 NY2d 246 | Same principle regarding disfigurement damages. | Supported reversal of damages instruction to the jury. |
| Pallotta v. West Bend Co., 166 AD2d 637 | Same as above concerning damages for disfigurement. | Further supported correction of jury instructions on damages. |
| De Cicco v. Methodist Hosp. of Brooklyn, 74 AD2d 593 | Improper use of "time-unit" method for calculating future damages. | Justified a new trial on damages due to improper calculation method used by the jury. |
Court's Reasoning and Analysis
The court analyzed Asto Construction Corp.'s entitlement to summary judgment by evaluating whether it had notice of the dog's vicious propensities and whether the dog's conduct was reasonably foreseeable. Citing established precedents, the court found Asto had made a prima facie showing that it lacked such notice and that the dog's behavior was not vicious or foreseeable. Because the plaintiff failed to raise a triable issue of fact in opposition, summary judgment should have been granted to Asto.
Regarding damages, the court identified error in the Supreme Court's jury instructions. It emphasized that disfigurement is not a separate category of damages but a factor to be considered in assessing pain and suffering. The court also found fault with the jury's use of a "time-unit" method for calculating future damages, which was improperly prompted by the plaintiff's counsel. These errors warranted a new trial on damages against the remaining defendants.
The court declined to address remaining contentions as they were either without merit or unnecessary in light of its rulings.
Holding and Implications
The judgment is reversed on the facts and as a matter of discretion. The court granted summary judgment dismissing the complaint against Asto Construction Corp., modified the prior order accordingly, severed the action against the remaining defendants, and remitted the case for a new trial on damages against those defendants.
The direct effect is that Asto Construction Corp. is dismissed from liability, and the plaintiff may proceed against the other defendants solely on the issue of damages. No new precedent was established; the decision applies existing legal principles to the facts of this case.
Ordered that the judgment is reversed, on the facts and as a matter of discretion, without costs or disbursements, that branch of the motion of the defendant Asto Construction Corp. which was for summary judgment dismissing the complaint insofar as asserted against it granted, the order dated October 16, 2003, is modified accordingly, the action against the remaining defendants is severed, and the matter is remitted to the Supreme Court, Kings County, for a new trial with respect to damages as against the remaining defendants.
The plaintiff, a tenant in premises owned by the defendant Asto Construction Corp., was injured when he was bitten by a dog. The dog was owned by another tenant of the premises, Essex Works, Ltd., and the owner of that corporation, the defendant Douglas J. Schickler (hereinafter collectively the defendants). In support of its motion for summary judgment dismissing the complaint insofar as asserted against it, Asto made a prima facie showing of entitlement to judgment as a matter of law. It demonstrated that it had no notice of the vicious propensities of the defendants' dog ( see Sers v. Manasia, 280 AD2d 539, 540; Kempter v. Erban, 284 AD2d 503; Finney v. Fraioli, 281 AD2d 389), and that the dog's conduct that resulted in the plaintiff's injuries was not vicious or reasonably foreseeable ( see Luts v. Weeks, 268 AD2d 568, 569; Althoff v. Lefebvre, 240 AD2d 604). Since the plaintiff failed to raise a triable issue of fact in response, Asto's motion should have been granted ( see Smith v. New York City Hous. Auth., 304 AD2d 646; Lebron v. New York City Hous. Auth., 268 AD2d 563).
A new trial on the issue of damages is warranted. Since a disfigurement, such as the scar suffered by the plaintiff, is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain and suffering, the Supreme Court erred in instructing the jury to make a separate determination with respect to that issue ( see generally Nussbaum v. Gibstein, 73 NY2d 912; McDougald v. Garber, 73 NY2d 246; Pallotta v. West Bend Co., 166 AD2d 637). In addition, at the prompting of the plaintiff's counsel, the jury improperly applied a "time-unit" method of calculating future damages ( see De Cicco v. Methodist Hosp. of Brooklyn, 74 AD2d 593).
The appellants' remaining contentions are either without merit or need not be reached in light of our determination.
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