Fontecchio v. Esposito

• Citation: 485 N.Y.S.2d 113,108 A.D.2d 780
• Parties: Jo Ann FONTECCHIO, et al., Respondents, v. Lena ESPOSITO, Appellant, et al., Defendant.
• Decision Date: 11 February 1985
• Court: New York Supreme Court Appellate Division

Page 113

485 N.Y.S.2d 113

108 A.D.2d 780

Jo Ann FONTECCHIO, et al., Respondents, v. Lena ESPOSITO, Appellant, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

Feb. 11, 1985.

Wilson, Bave, Conboy & Bave, P.C., Yonkers (William H. Bave, Jr., Yonkers, of counsel), for appellant.

Muriel Lawrence, Mount Vernon, for respondents.

Before THOMPSON, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., resulting from a dog bite, the defendant Esposito appeals from a judgment of the Supreme Court, Westchester County, dated April 26, 1983, which, after a jury trial, is against her and in favor of the plaintiff Jo Ann Fontecchio in the principal sum of $240,000 and in favor of the plaintiff Albert Fontecchio in the principal sum of $70,000.

Judgment reversed, on the law and the facts, and new trial granted, limited to the issue of damages only, with costs to abide the event. The findings of fact as to liability are affirmed.

The proof established that defendant Esposito was taking care of her father's dog while her father was on vacation at the time the incident occurred. Plaintiffs, defendant Esposito, and the owner of the dog all lived in close proximity to one another. There was testimony that the dog growled and charged at the fence whenever persons passed by his owner's property; that on one occasion the dog broke loose from his owner, bit the mailman's pouch, and had to be pulled away; and that on another occasion, the dog lunged at the fence and snapped at a child who was walking on the public sidewalk. The dog constantly barked, exposed his teeth, and strained at his leash. The above evidence was sufficient to establish that the dog possessed vicious propensities, in that he habitually tended to do acts which might endanger persons (see Wheaton v. Guthrie, 89 A.D.2d 809, 453 N.Y.S.2d 480; Morales v. Quinones, 72 A.D.2d 519, 420 N.Y.S.2d 899; Lagoda v. Dorr, 28 A.D.2d 208, 284 N.Y.S.2d 130). Although disputed at trial, there also was sufficient evidence for the jury to find that appellant knew of the dog's prior conduct and, thus, of his vicious propensities (Wheaton v. Guthrie, supra ). There was evidence that appellant knew that her father kept the dog chained up outside in his enclosed yard, that she admitted that she did not trust the dog around her children, and that she saw the dog on a daily basis when her father came to visit (see Russell v. Lepre, 99 A.D.2d 489, 470 N.Y.S.2d 430; Lagoda v. Dorr, supra; Shuffian v. Garfola, 9 A.D.2d 910, 195 N.Y.S.2d 45). This evidence was sufficient to warrant the jury's verdict in favor of the plaintiffs and against appellant.

However, the damage awards of $240,000 to Mrs. Fontecchio for her injury and $70,000 to her...