PARENTE v. CHAVEZ

Citation Codes

Equivalent Citations

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Docket Number

2004-00734.

Attorney(S)

Zuller Bondy, LLP, New York, N.Y. (Christopher L. Stanley and Thomas L. Bondy of counsel), for appellant. Calabrese Calabrese, LLP, White Plains, N.Y. (Luis F. Ras of counsel), for respondents.

Judges

Robert J. Miller
Reinaldo E. Rivera
Peter B. Skelos

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Smart Summary

Factual and Procedural Background

The plaintiff, Anna Maria Parente, commenced an action seeking damages for personal injuries sustained from a dog bite inflicted by a dog named Shadow, owned by the defendants, Frank Chavez and others. The complaint alleged two causes of action: common-law negligence based on the defendants’ alleged negligent or reckless supervision of the dog, and strict liability predicated on the dog’s vicious propensities and the defendants’ knowledge thereof. The Supreme Court, Queens County, granted the defendants’ motion for summary judgment dismissing the complaint. The plaintiff appealed this order.

Legal Issues Presented

Whether the plaintiff presented sufficient evidence to raise triable issues of fact on the strict liability cause of action concerning the dog’s vicious propensities and the defendants’ notice thereof.
Whether the plaintiff raised triable issues of fact on the common-law negligence cause of action, specifically whether the defendants breached their duty of care in supervising the dog and whether such breach proximately caused the plaintiff’s injuries.
Whether the Supreme Court erred in granting summary judgment dismissing the complaint.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Collier v. Zambito, 1 NY3d 444	Establishing elements of strict liability for injuries caused by a dog’s vicious propensities and notice to owner.	Used to determine that plaintiff’s evidence raised triable issues of fact regarding Shadow’s viciousness and defendants’ knowledge.
Noreika v. Casciola, 5 AD3d 571	Related precedent on strict liability for dog bites.	Referenced for comparative purposes regarding notice and vicious propensities.
Lugo v. Angle of Green, 268 AD2d 567	Relevance of “Beware of Dog” signs as evidence of notice of vicious propensities.	Supported finding that posting such a sign was evidence of defendants’ awareness of dog’s dangerous nature.
Beljean v. Maiuzzo, 256 AD2d 533	Use of warning signs as evidence of owner’s knowledge of dog’s viciousness.	Corroborated the inference of notice based on signage.
Ballard v. Campbell, 304 AD2d 780	Owner’s knowledge of dog’s vicious propensities as a factor in liability.	Used to support the inference that defendant Frank Chavez was aware of Shadow’s viciousness.
Colarusso v. Dunne, 286 AD2d 37	Establishing liability under common-law negligence and strict liability theories for dog bites.	Applied to analyze both negligence and strict liability claims and proximate cause issues.
Luts v. Weeks, 268 AD2d 568	Owner’s duty of care regarding the supervision of a dog and liability for injuries caused.	Supported the conclusion that triable issues existed on whether defendants acted reasonably in supervising Shadow.

Court's Reasoning and Analysis

The court analyzed the evidentiary submissions presented by the plaintiff in opposition to the defendants’ motion for summary judgment. It found that the plaintiff proffered sufficient evidence to create triable issues of fact on both the strict liability and common-law negligence claims. For strict liability, the court focused on evidence such as admissions by one defendant that Shadow was a guard dog requiring containment, the presence of a “Beware of Dog” sign, and testimony indicating the dog was loose and that the defendant warned the plaintiff not to enter the property. These facts raised questions regarding the dog’s vicious propensities and the defendants’ knowledge or constructive knowledge thereof.

Regarding the negligence claim, the court noted that the nature of the dog’s size and strength, especially as demonstrated by the manner of the bite, raised questions about whether the defendants exercised reasonable care in supervising the dog. The court emphasized that these factual disputes precluded summary judgment and required resolution by a trier of fact.

Accordingly, the court reversed the Supreme Court’s order granting summary judgment, denied the defendants’ motion, and reinstated the complaint.

Holding and Implications

The court reversed the Supreme Court’s order granting summary judgment, denied the defendants’ motion, and reinstated the plaintiff’s complaint.

The direct effect of this decision is that the plaintiff’s claims will proceed to trial, where triable issues of fact regarding the dog’s vicious propensities, the defendants’ knowledge, and the defendants’ alleged negligence will be resolved. The opinion does not establish new precedent but reinforces established principles that summary judgment is inappropriate where evidentiary submissions raise genuine factual disputes on liability in dog bite cases.

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ANNA MARIA PARENTE, Appellant, v. FRANK CHAVEZ et al., Respondents.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff commenced this action to recover damages for personal injuries based on a bite she received on the face from a dog named Shadow owned by the defendants. The plaintiff asserted two causes of action. The first sounded in common-law negligence, alleging that the defendants were negligent or reckless in the manner in which they kept and supervised the dog. The second sounded in strict liability on the theory that the attack occurred because of Shadow's vicious propensities, and that the defendants were aware of those propensities.

Contrary to the Supreme Court's determination, the plaintiff proffered sufficient evidence in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law on her strict liability cause of action. The evidentiary submissions of the plaintiff raised triable issues of fact as to whether Shadow had vicious propensities and whether the defendants had or should have had notice thereof ( see Collier v. Zambito, 1 NY3d 444; cf. Noreika v. Casciola, 5 AD3d 571). Some of the evidence which established an issue of fact as to such propensity and notice thereof consisted of admissions by the defendant Stephanie Anis-Chavez to the plaintiff after the incident that Shadow was a guard dog used to protect and watch over landscaping equipment that the defendants kept in their yard ( see Collier v. Zambito, supra), that a pen had to be constructed in the yard for Shadow to keep him away from the mailman and other guests ( see id.) and that the defendants posted a "Beware of Dog" sign on the property after acquiring Shadow ( see Lugo v. Angle of Green, 268 AD2d 567; Beljean v. Maiuzzo, 256 AD2d 533). In addition, the defendant Frank Chavez testified at his deposition that he called out to the plaintiff just before she was bitten and advised her not to call the dog and not to enter the property because, inter alia, Shadow was loose in the yard. A jury may conclude that he was in fact aware of the dog's vicious propensities ( see Ballard v. Campbell, 304 AD2d 780; Colarusso v. Dunne, 286 AD2d 37).

Furthermore, the Supreme Court also erred in failing to find that the plaintiff raised triable issues of fact as to whether the defendants could be liable to her under a common-law negligence theory. The size and strength of the dog, particularly as manifested by the manner in which it bit the plaintiff, raise triable issues of fact as to whether the defendants acted in a reasonably prudent manner ( see Luts v. Weeks, 268 AD2d 568). Thus, there are triable issues of fact as to whether the defendants breached the duty of care owed the plaintiff by failing to take reasonable measures to prevent the incident at issue and, if so, whether such a breach was a proximate cause of the damages alleged ( see Colarusso v. Dunne, supra). Accordingly, the Supreme Court erred in granting the defendants' motion for summary judgment dismissing the complaint.