Bain v. Town of Hempstead
| Decision Date | 05 February 2021 |
| Docket Number | CV 17-6554 (AKT) |
| Parties | DUSTIN BAIN and T.B. by his father and natural guardian, Plaintiffs, v. TOWN OF HEMPSTEAD and TOWN OF HEMPSTEAD ANIMAL SHELTHER, Defendants. TOWN OF HEMPSTEAD, Third-Party Plaintiff, v. A FURR-EVER HOME, INC., LUCRECIA SKELLENGER, SHAWN BARROWS, and JOYCE BARROWS, Third-Party Defendants. |
| Court | U.S. District Court — Eastern District of New York |
I. PRELIMINARY STATEMENT
Plaintiffs T.B., a minor, and his father and natural guardian, Dustin Bain,1 commenced this action against the Town of Hempstead (the "Town") and the Town of Hempstead Animal Shelter (the "Town Animal Shelter") (collectively, the "Defendants"). See generally Amended Complaint ("Am. Compl.") [DE 22]. The Amended Complaint alleges that an American Bulldog named "Monte," who had a history of aggression towards children and other dogs, was surrendered to the Town Animal Shelter. The Town Animal Shelter placed Monte with a rescuehome in Pennsylvania without disclosing Monte's history of aggression. The Pennsylvania rescue home then facilitated Monte's adoption with T.B.'s grandparents in West Virginia. While T.B. was at a family gathering with his grandparents and Monte, Monte bit T.B. in the face. Plaintiffs assert three causes of action and seek to hold both Defendants liable for T.B.'s injuries pursuant to theories of strict liability and negligence. They also seek to hold the Town liable under a theory of respondeat superior.
The parties in this action have consented to this Court's jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See DE 10-11. Presently before the Court is Defendants' motion for summary judgment on all three claims asserted by Plaintiffs. See generally Defendants' Memorandum of Law in Support of Motion for Summary Judgment ( ) [DE 36-2]; Defendants' Reply Memorandum of Law in Further Support of Motion for Summary Judgment ( ) [DE 37]. Plaintiffs oppose the motion. See generally Memorandum of Law in Opposition to the Defendants' Motion for Summary Judgment ( ) [DE 40]. For the reasons which follow, Defendants' motion for summary judgment is GRANTED.
II. BACKGROUND
As a preliminary matter, Defendants argue that Plaintiffs failed to properly respond to Defendants' Rule 56.1 statement and, as a result, Defendants' asserted facts should be deemed admitted. Defs.' Reply at 1. Local Civil Rule 56.1(a) provides that Local Civil Rule 56.1(b) provides that "[t]he papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried."
Although the moving Defendants complied with Local Rule 56.1(a) and submitted a statement of undisputed facts, Plaintiffs have not complied with Local Rule 56.1(b). See Defendants' Rule 56.1 Statement of Material Facts ( ) [DE 36-1]. Plaintiffs submitted a "Counter Statement of Facts" which appears to be Plaintiffs' own recitation of the facts and does not correspond with any of the paragraphs of Defendants' Rule 56.1(a) statement. Nor does Plaintiffs' submission address or respond to any of Defendants' numbered paragraphs. See generally Plaintiffs' Counter Statement of Facts ( ) [DE 39]. Defendants then filed a reply statement of facts which appended the Plaintiffs' purported 56.1 statement to their own to maintain consecutively numbered paragraphs. Defendants then responded to each of Plaintiffs' assertions. Defendants' Reply Statement of Material Facts ( ) [DE 37-1].
The failure of Plaintiffs' counsel to comply with the E.D.N.Y. Local Rules, and particularly Rule 56.1, is regrettable considering "the purpose of Rule 56.1 statements is to identify the relevant evidence supporting the material facts, and 'to assist the court in determining which facts are genuinely undisputed.'" NAACP Legal Def. & Educ. Fund, Inc. v. U.S. Dep't of Hous. & Urban Dev., No. 07 CIV. 3378, 2007 WL 4233008, at *1 (S.D.N.Y. Nov. 30, 2007) (quoting Madison Maidens, Inc. v. Am. Mfrs. Mut. Ins. Co., No. 05 Civ. 4584, 2006WL 1650689, at *2 (S.D.N.Y. June 15, 2006)). Local Civil Rule 56.1(c) is clear that "[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." (emphasis added). There is no ambiguity in this provision. "Where the opposing party fails to provide a separate statement containing factual assertions, the Court is free to disregard any assertions made by the opposing party." Myers v. Lennar Corp., No. 08-CV-2799 (JFB) (WDW), 2010 WL 5491112, at *1 n.1 (E.D.N.Y. Dec. 30, 2010) (citing Watt v. New York Botanical Garden, No. 98 Civ. 1095 (BSJ), 2000 WL 193626, at *1 n.1 (S.D.N.Y. Feb. 16, 2000)). However, "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citing Wight v. Bankamerica Corp., 219 F.3d 79, 85 (2d Cir. 2000)).
As a result of the failures of Plaintiffs' counsel, the Court conducted its own independent review of the record as well as the parties' competing 56.1 Statements and the exhibits which each side has submitted. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) () (quoting Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000)). From these documents, the Court references what it considers to be the undisputed facts -- those which are uncontroverted by admissible evidence. The Court will construe these facts in the light most favorable to the Plaintiffs as the non-moving party. Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008); Doro v. Sheet Metal Workers' Int'l Ass'n, 498 F.3d 152, 155 (2d Cir. 2007); Capobianco v. New York, 422F.3d 47, 50 (2d Cir. 2001); Coastal Pipeline Prod. of New York v. Gonzales, No. 04 CIV. 8252, 2006 WL 473883, at *4 (S.D.N.Y. Feb. 28, 2006).
Defendant Town of Hempstead is a municipal corporation with its main office in Hempstead, New York. Defs.' SOMF ¶ 4. The Town Animal Shelter is located in Wantagh, New York, and is an agency of the Town. Id. ¶¶ 5, 13. "The Town owns, operates, and controls the employees and operations of the Town Animal Shelter." Id. ¶ 13. Monte is an American Bulldog who was surrendered to the Town Animal Shelter to be euthanized on February 25, 2015 by Reinaldo Pizzaro. Id. ¶¶ 7, 14, 76; See Declaration of Joseph E. Macy, Esq. in Support of Motion for Summary Judgment ("Macy Decl.") [DE 36-3], Ex. C ("Pet Point Notes," bates stamped TOH/Bain.1299); Declaration of Adam J. Roth, Esq. in Opposition to Motion for Summary Judgment ("Roth Decl.") [DE 38], Ex. 1 ("Pet Point Notes" bates stamped TOH/Bain.046). When Monte was surrendered, Pizzaro "provided conflicting responses to the questions on the K-9 Admission Form." Id. ¶ 15. He indicated that Monte lived with him for two to three years, was housetrained, crate-trained, knew most of his commands, and previously attempted escape. Id. ¶ 16. Pizzaro stated "he cannot trust [Monte] around his 4 month-old child," that Monte "guards his chewies/bones and toys," showed aggression towards his two children when either of them attempted "to correct Monte from doing something wrong," and bit "his older son about 3-4 months ago." Id. ¶ 17. In addition, Pizzaro positively indicated that Monte was "active, playful, affectionate, needy (separation issues), and well-behaved," friendly and playful around children and strangers, and "gets along with other dogs." Id. ¶ 18.
On March 5, 2015, the Town Animal Shelter had Monte evaluated by an animal behaviorist. Id. ¶ 19. The behaviorist reported that Monte mildly guards his food, is social andnot playful with dogs, "was intense (but did not escalate) with chewies and food interference," snapped at a baby doll, and growled and snapped at another dog." Id. ¶ 20.
"Special adoption" is a category for an animal that is not just a regular adoption, but has a behavioral or medical issue. Defs.' Reply SOMF ¶ 102. On March 5, Monte was designated as a "special adoption" in the Town Animal Shelter's PetPoint system. However, within 18 seconds, Monte was re-designated as a normal adoption. Pls.' CSOF ¶¶ 16-17; Defs.' Reply SOMF ¶ 90. Months later, one of the defendants' employees stated that Monte should again be designated as a special adoption. Pls.' CSOF ¶ 29.
On March 11, 2015, the Town Animal Shelter issued a written "plea" regarding Monte. Id. ¶ 21. A "plea" is posted via Facebook or email to entice potential adopters or rescue agencies to select an animal from the Town Animal Shelter. See id. ¶ 22. Monte's plea contained the animal behaviorist's report and stated:
Monte - our gorgeous American Bulldog is here, and waiting for a home! Monte was surrendered to us so we have a lot of information to share with you! Monte is...
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