For nearly 200 years, the law of New York has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held responsible for any harm the animal causes as a result of those propensities. See e.g. Vrooman v Lawyer, 13 Johns 339 [1816]; Hosmer v Carney, 228 NY 73, 75 [1920]; see also, Agriculture & Markets Law, Section 121, Subdivision 10. Significantly, the owner will be held strictly liable for the damages caused by the animal.  Collier v. Zambito, 1 NY3d 444 (Ct of Appeals 2004).

 This rule was confimed recently by the Court of Appeals in Petrone v. McCloy, 2009 NY Slip Opinion 04694, Decided June 9, 2009:  “[W]hen harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule articulated in Collier- . . .  i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities (see Collier, 1 NY3d at 446-447).

 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” (Dickson v McCoy, 39 NY 400, 403 [1868]). The burden, of course, will be upon the plaintiff to establish that the defendant owner of the dog knew or should have known of the animal’s vicious propensities.  But, importantly, the dog IS NOT given “one free bite” as the law of our state is frequently mistook.  As the Court of Appeals has acknowledged in Collier v. Zambito:

“Knowledge of vicious propensities may of course be established by proof of prior acts of a similar kind of which the owner had notice (see Benoit v Troy & Lansingburgh R.R. Co., 154 NY 223, 225 [1897] . . . In addition, a triable issue of fact as to knowledge of a dog’s vicious propensities might be raised– even in the absence of proof that the dog had actually bitten someone–by evidence that it had been known to growl, snap or bare its teeth. Also potentially relevant is whether the owner chose to restrain the dog, and the manner in which the dog was restrained (see Hahnke v Friederich, 140 NY 224, 226 [1893]; see also Rider v White, 65 NY 54, 55-56 [1875]). 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.  See, Hahnke, 140 NY at 227 . . .  Finally, plaintiffs are not unduly burdened by the requirement of proof that a defendant know or should know of an animal’s vicious propensities. Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities (see Strunk v Zoltanski, 62 NY2d 572, 575-576 [1984]). This disposition does not entitle dog owners to an automatic ‘one free bite.’ There could certainly be circumstances where, although a dog has not yet bitten a person, its vicious nature is apparent. In that situation, the owner’s success in keeping the dog confined or restrained in the past would not insulate the owner from liability.”

Thus, “a vicious propensity is not limited to a bite or other attack, but ‘includes a propensity to act in a manner that may endanger the safety of another, whether playful or not.” Provorse v Curtis, 288 AD2d 832; Mitura v Roy, 174 AD2d 1020; Anderson v Carduner, 279 AD2d 369, 369-370); Marquardt v Milewski, 288 AD2d 928, 732 NYS2d 801.  (Any ‘known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act.’).

 As such, there is a growing body of case law which has permitted plaintiffs to establish a dog’s “vicious propensity” without an actual showing of a prior attack by the animal. See, e.g., Anderson v Carduner, 279 AD2d 369, 720 NYS2d 18 (dog’s tendency to jump up and greet people causes risk of injury); Moriano v Schmidt, 133 AD2d 72, 518 NYS2d 416 (dog growling and pulling at chain); Fontecchio v Esposito, 108 AD2d 780, 485 NYS2d 113 (dog’s tendency to bite, snap, bark and bare teeth); Lagoda v Dorr, 28 AD2d 208, 284 NYS2d 130 (dog’s tendency to jump up on people).  Further, the damages recoverable from a strictly liable owner are not limited to those suffered as a result of direct contact with the animal. see Pollard v United Parcel Service, 302 AD2d 884, 754 NYS2d 473 (plaintiff who escaped the bite of the defendant’s dog may recover damages sustained as a result of being struck by a motor vehicle while attempting to evade the dog).

 Very often, cases without a prior bite will turn on the specific facts related to the dog in question and the manner in which it was handled by the owner.  The jury may consider whether the owner chose to restrain the animal and the manner in which the animal was restrained, see Brice v Bauer, 108 NY 428; Morse v Colombo, 8 AD3d 808; or that “Beware of Dog” signs were posted, Parente v Chavez, supra; Shaw v Burgesss, 303 AD2d 857, 756 NYS 2d; Arcara v Whytas, 219 AD2d 871; But, see,  Altmann vs Emigrant Savings Bank, 249 AD2d 67, 68 (First Dep’t 1998) (Presence of “Beware of Dog” signs standing alone are not enough to imply that dog owner knew of his dog’s vicious propensities); Frantz v. McGonagle, 242 AD2d 888 (Fourth Dep’t 1997); Arcara v.Whytas, 219 AD2d 871, 872 (Fourth Dep’t 1995). The fact that a dog was chained and strained on its chain and barked when people approached was held insufficient to create an inference that the dog was vicious.  Gill vs Welch, 136 AD2d 940 (Fourth Dept, 1988).

IF a defendant can establish that his dog has not previously exhibited any vicious propensity, he may be entitled to summary judgment. Arcara, 219 AD2d at 871, 872 (undisputed proof that dog had never bitten anyone before and had never bared its teeth or growled at anyone before entitled summary judgment). If the defendant moves for summary judgment and introduces admissible evidence that he had no knowledge of the dog’s vicious propensities, the burden shifts to plaintiff to submit rebuttal evidence of risk having his complaint dismissed. Althoff v. Lefebvre, 240 AD2d 604 (Second Dep’t 1997). If there is conflicting evidence as to the dog’s vicious propensities, the issue must be given to a jury to decide.  Frantz v. McGonagle, 242 AD2d 888 (Fourth Dep’t 1997).

As for damages, a plaintiff may recover for all out-of-pocket costs, medical costs, lost wages, pain and suffering and even Punitive Damages in certain circumstance.  See, e.g., Nardi v. Gonzalez, 165 Misc.2d 336, 339 (1995).  Given the vicious nature of an animal attack and the physical as well as psychological injuries it can wreak, the damages in such cases may be very significant. IF the dog owner had knowledge that his dog presented a risk, or if he should have known based upon prior actions of the dog, he or she will be strictly liable for all the damages caused.

We often come across cases in which the client was “in the wrong place at the wrong time”.  Perhaps the most glaring example of poor timing is being present in a location when the police issue a search warrant looking for contraband.  Assuming the warrant was not fraudulently obtained, the court has sanctioned the search. If the police find contraband while your client is standing there, he will likely be arrested. But is mere presence sufficient probable cause to justify the arrest in such circumstances?  And, if not, does your client have a viable false arrest claim?  Often, the answer will turn on specific facts, the foremost being whether the location is open to the public or private. 

 The threshold issue in any claim of false arrest, is whether the arresting officers had probable cause to arrest the Plaintiff.  That is, a person’s confinement is otherwise “privileged” when probable cause exists to arrest him. Covington v. City of New York, 171 F.3d 117, 122 (2d Cir. 1999).  The defendant bears the burden of demonstrating that the arrest was justified based upon probable cause.  Raysor v. Port Authority of New York & New Jersey, 768 F.2d 34 (2d Cir. 1985).  To meet this burden, however, the defendant must demonstrate evidence which amounts to “more than a rumor, suspicion, or even a strong reason to suspect.”  United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983) [emphasis added].  Moreover, the evidence of guilt must be particularized to the individual being arrested.  See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

 The fact that a client was arrested pursuant to the execution of a search warrant is not determinative on the issue of probable cause.  Barr v. County of Albany, 50 N.Y.2d 247, 255 (1980) (“while it can be said that a search warrant sanctions the entrance by law enforcement officers upon private property to conduct a search within the confines of the warrant, it by no means lends judicial approval to the arrests of those persons found thereon”).  That is, a search warrant does not authorize an arrest.  Id.  In Barr, the police executed a search warrant of a premise and arrested virtually all fifty persons present for marijuana possession.  The charges were dismissed against plaintiffs and they brought  subsequent claims for false arrest.  The court denied defendant’s motions for summary judgment holding that the search warrant did not immunize the officers for liability for false arrest.  Id.

 In Ybarra v Illinois, 444 U.S. at 85, the police obtained a warrant to search a tavern where the bartender was suspected of drug activity.  While executing the warrant, the police conducted pat-down searches of the tavern patrons, including Ybarra.  The police found drugs on Ybarra and arrested him.  The Court held that a “person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Id. at 91; citing, Sibron v. New York, 392 U.S. 40, 62-63 (1968) [emphasis added]. 

 Likewise, in Flores v. City of Mount Vernon, the police officers executed a search warrant at a bar where the tavern owner was reportedly selling drugs.  41 F. Supp 439 (S.D.N.Y. 1999).  The police found certain patrons in possession of cocaine at the tavern.  One of these patrons was seen picking up a packet of what appeared to be cocaine from the bar.  The officers observed another patron dropping a packet of cocaine on the floor.  More cocaine and marijuana was found hidden in the basement of the establishment.  In addition to the patrons, the police arrested the bartender, Flores, who was present and working at the time the warrant was executed.  Ultimately, Ms. Flores was not charged and brought a claim of false arrest against the officers and municipality.  The Court found that the fact that half the patrons in the bar possessed cocaine did “not give rise to a reasonable suspicion that [Flores] was involved in drug activity, let alone rise to the level of probable cause”.  Id. at 443 [emphasis added].  Further, the fact that patrons dropped narcotics to the floor in plain view did “not admit the inference” that they obtained them from plaintiff. Id. at 444. 

 In Flores, the arrest occurred in a public forum.  What if your client was arrested in a private residence?  Assume your client was an invited guest watching television when the police executed a search warrant targeting the owner of the apartment.  The drugs found in the apartment were not in plain view and were not in proximity to your client.  Your client was not a resident of the apartment and there was nothing connecting him to the apartment.  Nor was there anything about his conduct which indicated a common scheme with the other occupants of the apartment. There is an argument to be made that the circumstances of Flores (cocaine literally flying in the air in the proximity of claimant) were far more egregious than those described above.      

 Pursuant to applicable New York search and seizure law, one may argue there was no probable cause for the police officers to arrest your client.  It is not alleged that your client directly possessed drugs.  The only remaining means to assert his “possession” are (i) the application of a “room presumption”; or (ii) the theory that he “constructively” possessed the drugs.  Since the alleged contraband was not in “plain view” the police were not permitted to arrest all the occupants based upon a permissive “room presumption”.  See, N.Y. Pen. L. 220.25(2) (the presence of a narcotic drug in “open view in a room other than a public place . . . is presumptive evidence of knowing possession thereof by each and every person in close proximity” to the drugs) [emphasis added]; see, e.g., People v. Martinez, 83 N.Y.2d 26 (1993) (drugs concealed between a couch and a wall are not in plain view).  Furthermore, it can not reasonably be argued that your client “constructively possessed” the drugs hidden in the apartment.  To demonstrate constructive possession it must be shown that a person exercised “dominion or control” over the property by a sufficient level of control over the area in which the contraband is found.  See, e.g., People v. Manini, 79 N.Y.2d 561 (1992).  There is no evidence that your client resided in the location; had keys to the location; or had any personal property in the location.  Further, since the evidence will likely show that other persons had access to the location and the drugs were hidden, a viable theory of constructive possession will not stand.  People v. Vasquez, 160 A.D.2d 751 (2d Dept. 1990) (constructive possession not established where defendant was watching television in the living room of an apartment where 4 ounces of cocaine and $150,000 in cash were discovered in a bedroom pursuant to a search warrant, despite the defendant having a loose key to the apartment in her possession); People v. Webb, 179 A.D.2d 707 (2d Dept. 1992); People v. Bailey, 159 A.D.2d 1009 (4^th Dept. 1990). 

 Based upon the foregoing, one can certainly make a viable argument that the search warrant and discovery of contraband does not confer probable cause to arrest a visitor on the circumstances described.  Still, it may not be a winning argument and one will find far stronger footing in a False Arrest claim if the “unlawful” arrest took place in a public, rather than private, forum.

Any criminal practitioner in recent years has seen a proliferation of the latest “catch all” predicate police allege for making a car stop: the defendant failed to signal. 

It is a clever predicate in that, unlike the allegation of mechanical issues such as a broken tail light, it is nearly impossible to disprove. Moreover, in light  of the current state of the law, once the police have a “valid” reason to pull a defendant over it doesn’t matter if that is the real reason they pulled him over.  That is,  the “pretextual stop” argument has been largely undermined in the wake of Whren v. United States, 517 US 806 (1996), holding in effect that the police officer’s true motive for the car stop is irrelevant so long as he had a valid reason for the stop. This reason may not need to be supported by probable cause in New York, where cases suggest “reasonable suspicion” is sufficient.  People v. Robinson, 97 NY2d 341 (2001).

So, if your client has been pulled over for “failure to signal” what are your tools to fight the constitutionality of the stop? First of all, chances are that he was never issued a ticket, which bears on the credibility of the police officers.  More importantly, and the part that the officers and the DA may fail to focus upon, is that the police must provide testimony which supports the actual statutory infraction.  VTL Section 1163 (turning movements and required signals) states in relevant part that no driver shall:  “turn a vehicle from a direct course or move left or right upon a roadway unless and until such movement can be made with reasonable safety.  No person shall turn any vehicle without giving the proper signal”.  In a recent case, People v. Rice, 810 NYS2d 306 (2006), the Court determined, based upon the above and upon a review of the legislative history, that while a turn may always require a signal, a lane change does not if it can be made safely.  “There was no desire [of the legislature] to add . . . a per se requirement of signaling lane changes as well”.  As such, the law does not “require signaling when a lane change can be made in complete safety without such a signal”.

What is the practical affect of this ruling? In most hearings the police officer will simply state that the defendant was observed making a lane change without signaling. The DA will ordinarily fail to elicit the nature of the roadway, the traffic conditions at the time and how, if at all, the purported lane change endangered other drivers.  IF this latter evidence is not proffered on direct testimony, it is the wise practitioner that does not address it on cross examination lest the officer “fill in the gaps”.  With no evidence that a unspecified “lane change” was made unsafely, any subsequent car stop violates the Fourth Amendment and the New York Constitution and any contraband recovered thereafter should be suppressed as fruit of the poisonous tree.