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Dog does not bite man; Plaintiff’s attorney discontinues case against AGF&J client upon consideration of its summary judgment motion

Stuart Banschick v. Deborah Holmes and Dominick Mucci, Supreme Court, Nassau County

Motion papers submitted on behalf of the “dog bite” defendant were so devastating that the plaintiff soon dropped the lawsuit, without venturing opposition.

The action involved a 2010 incident in which the plaintiff alleged being injured when he fell from his bicycle. The plaintiff claimed that he was riding down a street, accompanied by his Labrador Retriever puppy that was tied to his bicycle with a leash. Meanwhile, the defendant was playing nearby with her dog, a three-and-a-half year old German Shepard named “Lucy”. The plaintiff claimed that the defendant’s dog ran after the puppy, which pulled on the leash, with the unfortunate result that plaintiff lost control of his bicycle and tumbled to the ground.

Plaintiff’s Complaint alleged that the defendants were liable for the plaintiff’s injuries due to their negligent maintenance of Lucy, and for violating the City of Long Beach’s leash law. Two recent cases said otherwise. One, Curbelo v. Walker, 81 A.D.3d 772, 916 N.Y.S.2d 645 (2nd Dep’t 2011), dismissed a case under essentially identical facts. It held that New York no longer recognizes a cause of action based on negligence for injuries caused by domestic animals, even if there is a violation of a local leash law. Also, in Collier v. Zambito, 1 N.Y.3d 444, 775 N.Y.S.2d 205 (2004), the New York Court of Appeals held that plaintiffs cannot recover for injuries sustained by a dog attack unless the plaintiff can establish that the dog had vicious propensities that were known or should have been known by the dog’s owner, in which case the owner may face strict liability.

AGF&J associate James Kimmel, defending the matter, brought the Curbelo and Collier decisions to the attention of plaintiff’s counsel and requested a voluntary discontinuance of the action. When that proposal was rejected, a motion for summary judgment was prepared, based upon Curbelo and Collier, as well as affidavits attesting to the absence of any vicious, aggressive or violent tendencies in the defendants’ dog. Notably, Lucy had never been involved in any prior incidents with other people or animals, and had never been trained to be an attack or act as a guard dog. In fact, no one had ever complained about “Lucy” acting aggressively. Rather than opposing the motion, plaintiff’s counsel agreed to discontinue the case.