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.

In some respects, at first glance, motor vehicle accidents may seem like the simplest type of personal injury claim.  After all, in most instances the police arrive at the scene and take a report, which includes information such as the identification of the driver and registered owner of each involved vehicle, the insurance carrier for each vehicle, a brief description of facts, injured parties and witnesses.  However,  there is often more information to be pursued vital to maximizing the potential recovery for an injury victim.   For instance, as important as addressing the issues of liability and injuries,  all potential sources of  insurance coverage must be fully investigated as coverage may often not be limited to the insurance coverage of the at fault vehicle.  For instance, in the event the driver of an at fault vehicle is not the owner, it is possible that the driver owns his own vehicle.  If so, the insurance for that vehicle may serve as a secondary source of coverage.  Another potential source of coverage may be one’s own policy, know as SUM coverage(supplementary uninsured coverage).  Depending on the policy limits of the at fault vehicle and one’s own liability coverage,  there may be a viable claim with one’s own company under the  SUM coverage for that vehicle as well as with the insurance carrier of a vehicle of a resident relative of one’s household.  The underlying theme here in the event one is injured and coverage for the at fault vehicle appears to be insufficient to provide fair compensation for the particular injuries sustained,  it is imperative that all sources of coverage be fully investigated.

If one is is involved in a motor vehicle accident and sustains injuries, one of first concerns to address is is how to pay one’s medical bills.  In New York, every vehicle is required to carry a policy of insurance. Included in such policy is coverage for medical bills, known as “no-fault” or “pip” (personal injury protection).  Minimum coverage is $50,000.00, which is a combination of coverage for both medical bills and loss of earnings. Some policies carry more coverage. A no-fault application MUST be filed with the appropriate company within 30 days of the accident. If the application is filed beyond the 30 day period, carriers may disclaim coverage unless there is a viable excuse for such delay. As part of the process, it must first be determined which insurance company is the the “no-fault” carrier in a particular scenario. Basically, an injured party files a no-fault claim with the vehicle he occupies at the time of an accident, whether that person is the vehicle owner, driver or a passenger. However, if one is a pedestrian and struck by a vehicle, that person must file a no-fault claim with the insurance company for the vehicle which struck him or her. In certain scenarios, the vehicle which would normally provided no-fault coverage has no insurance because such policy has lapsed or was cancelled. In that instance, if the injured person or a relative who lives in the injured person’s household owns a vehicle, a no-fault claim will be filed with insurance carrier for that vehicle. If no one in the household owns a vehicle, that person must file a claim with a state agency known as Motor Vehicle Accident Indemnification Corporation(“MVAIC”).

At MSG, we have a special empathy for motorcycle accident victims for one simple reason- we all ride.  And as any rider knows, cars simply do not see you on the road. As a consequence, even the safest rider realizes that a negligent driver could cause an unavoidable accident. 

The most typical accident scenario is a driver taking a left-hand turn in front of an oncoming motorcycle.  While vehicles often make left-hand turns through lanes of oncoming traffic, it is particularly upseting scenario for the oncoming driver if he or she is on a motorcycle.  In this scenario, the liability against the driver is clear.  Under New York law, a driver intending to take a left-hand turn must yield the right-of-way to oncoming traffic.  VTL 1141.   In effect, the car making the turn must not do so unless it is safe.  The fact that an accident has occurred is proof that the turn was not safe.  Moreover, every driver has a duty to exercise due care to avoid colliding with another vehicle, motorcycle or pedestrian.  VTL 1146. 

If you or your client has been injured in such a circumstance, there is a strong argument that the negligent driver is 100% at fault, although one should be prepared for the defense to argue that the motorcyclist still had a concomitant duty to “see that which ought to be seen” and therefore shares some comparative fault for the accident.  Factual issues of speed, damage to the side of the motor vehicle and points of impact may either support or preclude the defense claims of comparative fault against the motorcyclist.  Regardless, the lion’s share of liability falls on the motor vehicle.

The lawyer first considering handling a motorcyle accident case MUST be aware of one significant distinction that such cases have with other motor vehicle cases- the motorcyclist is neither covered nor limited by the NO FAULT statute.  That is, he is not a “covered person” under the statute and is therefore not entitled to medical benefits or expenses.  Ins. Law 5103(f).  This, of course, is unfortunate regarding the procurement of medical benefits for your injured client who may instead have to rely on work health plans, medicaid or treatment on a lien.  The upside to motorcyclists being excepted from the law is that they ARE NOT GOVERNED BY THRESHOLD requirements that a person suffer a “serious injury” in order to pursue a viable claim.  For the motor vehicle accident practioner, you are well aware of the pit falls of the threshold requirements and the ample summary judgment motion practice it invites on behalf of the defendants.  Here, that is eliminated. See, eg, Carbone v. Visco, 115 AD2d 948 (4th Dep’t 1985).  IF you can establish liabilty, your motorcyclist client is entitled to recover damages for any injury he or she has suffered.

While the foregoing may be of small consolation to the injured party, it is incumbent upon us as practitioners to be acutely aware of the law in order protect our clients rights.  In the meanwhile, RIDE SAFE . ..

As trial lawyers, we know that proving liability is often more than half the battle. Without liability, damages become moot. So, it is welcome when we are presented with a strong liability case. One of the soundest is the “pedestrian knock-down” in a crosswalk. The defendant driver must yield the right of way to the pedestrian in the crosswalk, if he does not, he is liable. When presented with this case, there is no reason to spend the time slogging through the discovery period in order to put it in on the trial calendar. Instead, consider moving for summary judgment in advance of discovery.

Assume a case wherein the defendant driver makes a right hand turn into a crosswalk and strikes the plaintiff in the crosswalk. Also assume the police report correctly documents the scenario and that there is no evidence that plaintiff “darted out” into the way of the injurious vehicle. As a matter of law, defendants’ driver negligence should be deemed the sole proximate cause of the accident.

This Motion Is Proper and Timely
Summary judgment motions may be brought at any time after an issue is joined. CPLR 3212. Completion of discovery is not a requisite before the court can grant a summary judgment motion. Chemical Bank v. PIC Motors Corp., 58 N.Y.2d 1023,1026 (1983); Naryaev v. Solon, 6 A.D.3d 510 (2d Dep’t 2004); Herba v. Chichester, 301 A.D.2d 822 (3d Dep’t 2003). “The mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient.” Naryaev, 6 A.D.3d at 510; Jones v. Gameray, 153 A.D.2d 550 (2d Dep’t 1989). A party opposing summary judgment on the basis of requiring discovery must prove that he is “not merely seeking a fishing expedition.” Kaltsas v. Solow, 15 Misc.3d 1124(A) (Westchester Cty. S.Ct. 2007). It is true that a party opposing a motion for summary judgment may claim that facts essential to justify opposition exist which are within the exclusive knowledge and possession of the moving party and, thus, that the motion should be delayed until after some discovery. See CPLR §3212(f). However, without an evidentiary showing by the opposing party, “mere speculation or conjecture” is insufficient to support this conclusion. Pank v. Village of Canajoharie, 275 A.D.2d 508, 509 (3d Dep’t 2000).
“A grant of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence.” Bailey v. New York City Transit Authority, 270 AD2d 156, 157 (1st Dept.2000) [emphasis added]; Zuckerman v City of New York, 9 N.Y.2d 557 (N.Y. 1980). (“The opposition papers submitted herein consists solely of the affirmation of an attorney. As such, the defendant has failed to submit evidence in admissible form to raise a triable issue of fact. We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.”)
Defense counsel may argue that because depositions have not yet been held in this case, the within motion is premature. This argument must fail. It is well settled that the “defendant’s failure to raise any factual issues to absolve him of liability or even submit a sworn statement of facts or to credibly explain the failure to do so defeats the need for discovery. Since defendant is the party with knowledge of the factual circumstances as to how he collided with the front vehicle, discovery would serve no purpose.” Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 (1 Dept. 1999). [Emphasis added]. Furthermore, “the defendants’ purported need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts.” Abramov v. Miral Corp., 24 A.D.3d 397, 805 N.Y.S.2d 119 (2 Dept. 2005). “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion.” Kimyagarov v. Nixon Taxi Corp., — A.D.3d —-, — N.Y.S.2d —-, 2007 WL 4127688, 2007 N.Y. Slip Op. 09208 (2 Dept. 2007). [Emphasis added]. As the Appellate Division recently held in a decision affirming the trial court’s granting of partial summary judgment on liability to the plaintiff in a rear-end automobile accident case, “…in view of the fact that the defendants had personal knowledge of the relevant facts underlying the accident, their purported need to conduct discovery does not warrant denial of the motion.” Emil Norsic & Son, Inc. v. L.P. Transp., Inc., 30 A.D.3d 368, 815 N.Y.S.2d 736 (2 Dept 2006).
Summary Judgment is warranted

In the seminal case of Andre v. Pomeroy, 362 N.Y.S.2d 131, 133 (1974), the Court of Appeals recognized that summary judgment was appropriate in a motor vehicle accident cases where there was no viable question as to liability. (“when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny other litigants the right to have their claims properly adjudicated”).

In the scenario at bar, there is likewise no genuine issue as to the negligence of defendants. The driver drove his car directly into a pedestrian crosswalk without first looking to see if such a move could be executed safely, in direct contravention of the statute governing such movements. See, VTL § 1111; NYC Traffic Rules § 4-04 [emphasis added] (“the operator of a vehicle shall yield the right of way to a pedestrian crossing within a crosswalk”). Furthermore, drivers also have a common law duty to see “that which out to be seen”. See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2nd Dep’t 1986). Failure to do so is negligence as a matter of law. See, e.g., Breslin v. Rudden, 191 A.D.2d 471 (2nd Dep’t 2002).

New York State Vehicle and Traffic Law states:
§ 1111. Traffic-control signal indications

(a) Green indications:

1. Traffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited.

2. Traffic, except pedestrians, facing a steady green arrow signal may cautiously enter the intersection only to make the movement indicated by such arrow, or such other movement as is permitted by other indications shown at the same time, except that a U-Turn may be made by traffic facing a left green arrow signal unless a sign prohibits such U-Turn or such U-Turn is in violation of any other provision of law. Such traffic shall yield the right of way to other traffic lawfully within the intersection or an adjacent cross walk at the time such signal is exhibited.

New York law is clear that where a motorist fails to see, and thus fails to yield the right of way to, a pedestrian crossing in a crosswalk with a pedestrian walk signal in his favor, the motorist is entirely at fault for the accident. In Voskin v Lemel, 52 A.D.3d 503, 859 N.Y.S.2d 489 [2nd Dept. 2008] [emphasis added], the court held:

In this case involving an accident between a motor vehicle and a pedestrian, the plaintiff established his prima facie entitlement to summary judgment in his favor by demonstrating that the defendant motorist was negligent in failing to yield the right of way to him while he was crossing a street, within the crosswalk, with the pedestrian “WALK” signal in his favor (see Zabusky v Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The plaintiff’s case was buttressed by the certified copy of the police accident report containing the defendant’s admission that he did not see the plaintiff and struck him (see Niyazov v Bradford, 13 AD3d 501, 786 N.Y.S.2d 582; Vaden v Rose, 4 AD3d 468, 771 N.Y.S.2d 670; Kemenyash v McGoey, 306 AD2d 516, 762 N.Y.S.2d 629; Guevara v Zaharakis, 303 AD2d 555, 756 N.Y.S.2d 465).

See, also, Kirchgaessner v. Hernandez, 40 A.D.3d 437, 836 N.Y.S.2d 170 [1st Dept. 2007]. In Benedikt v. Certified Lumber Corporation, 60 A.D.3d 798, 875 N.Y.S.2d 526 [2nd Dept. 2009] [emphasis added], the court held:

The plaintiffs established a prima facie case for summary judgment in their favor on the issue of liability by demonstrating that the defendant driver failed to yield the right of way to the injured plaintiff, Adina Benedikt, who was crossing the street within the crosswalk with the pedestrian “WALK” signal in her favor (see Zabusky v Cochran, 234 AD2d 542, 651 N.Y.S.2d 190; Jermin v APA Truck Leasing Co., 237 AD2d 255, 655 N.Y.S.2d 406). The plaintiffs submitted an affidavit by the injured plaintiff to that effect, which was supported by copies of the police accident reports and the MV-104 report signed by the defendant driver, containing that defendant’s admission against interest that he did not see the injured plaintiff before he struck her (see Niyazov v Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582; Vaden v Rose, 4 AD3d 468, 771 N.Y.S.2d 670; Kemenyash v McGoey, 306 AD2d 516, 762 N.Y.S.2d 629; Guevara v Zaharakis, 303 AD2d 555, 756 N.Y.S.2d 465). The affidavit of the defendant driver, submitted in opposition to the motion, merely raised feigned issues of fact, which are insufficient to defeat a motion for summary judgment (see Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 664 N.Y.S.2d 826; Miller v City of New York, 214 AD2d 657, 625 N.Y.S.2d 271; Garvin v Rosenberg, 204 AD2d 388, 614 N.Y.S.2d 190), and the defendants failed to demonstrate that further discovery was warranted (see Lopez v WS Distrib., Inc., 34 AD3d 759, 760, 825 N.Y.S.2d 516).

Claims by a defendant driver that he or she was looking out for pedestrians crossing and did not see the plaintiff are merely admissions of negligence and do not create material issues of fact. In Sulaiman v. Thomas, 54 A.D.3d 751, 863 N.Y.S.2d 723 [2nd Dept. 2008], the Court reasoned:

In his opposing affidavit, the defendant stated, inter alia, that as he made his right turn onto Sutter Avenue, the intersection and crosswalk were free of pedestrians. As he cleared the intersection, he saw several pedestrians standing on the sidewalk to his right shouting and pointing to the right side of his vehicle. He stopped, exited his vehicle, and only then saw the injured plaintiff lying on the road next to his vehicle. The defendant argued that the injured plaintiff’s negligence was the sole cause of the accident, and that he had stepped off the sidewalk and walked into the right side of the defendant’s vehicle “approximately” three feet east of the crosswalk. The defendant failed to raise a triable issue of fact in opposition to the plaintiffs’ prima facie showing (see Beamud v Gray, 45 AD3d 257, 844 N.Y.S.2d 269; Abramov v Miral Corp., 24 AD3d 397, 398). His affidavit makes clear that he did not see the injured plaintiff prior to striking him. The defendant also contended that the injured plaintiff was comparatively negligent. However, the defendant’s unsupported speculation that the injured plaintiff was comparatively negligent was insufficient to raise a triable issue of fact (see Beamud v Gray, 45 AD3d 257, 844 N.Y.S.2d 269).

In summary, there is very solid case law supporting summary judgment in this factual scenario, even before discovery. If the motion is granted, your case is advanced almost directly to the trial stage and any deposition of the plaintiff would be limited to the issue of damages only. Even should the judge lack the fortitude to grant the motion, it is still a worthwhile means of fleshing out the defense, as the opposition to the motion will necessarily include an affidavit from the driver. As such, when we have the benefit of a strong liability case, it is wise to be aggressive.