Giandalone v. Zepieri

• Decision Date: 24 February 1976
• Citation: 86 Misc.2d 79,381 N.Y.S.2d 621
• Parties: Frank GIANDALONE and Robert Giandalone, Petitioners, v. Vincent ZEPIERI and Lillian Zepieri, Respondents.
• Court: New York Town Court

Page 621

381 N.Y.S.2d 621

86 Misc.2d 79

Frank GIANDALONE and Robert Giandalone, Petitioners, v. Vincent ZEPIERI and Lillian Zepieri, Respondents.

Town Justice Court, Town of Greenburgh, Westchester County.

Feb. 24, 1976.

DeNatale & Daily, New York City, for complainant.

Alexander Minella, New York City, for defendant.

ASCHER KATZ, Town Justice.

Special proceeding, Agriculture and Markets Law, Section 116. The complaint alleges that a dog owned by the respondents of 86 Windom Street, Town of Greenburgh, State of New York, is a dangerous dog in that the dog attacked and bit the petitioner, Frank Giandalone on July 7, 1975 at the rear patio of his premises, 88 Windom Street, causing injuries to his left elbow and left second finger and that the same dog attacked and chased Robert Giandalone, on November 16, 1975. The proof showed that the occurrence of November 16, 1975 happened at the front of petitioner's premises.

The undisputed facts show that on July 7, 1975 at about 11:30 A.M., the petitioner, Frank Giandalone, was at the rear of his premises on his patio in the presence of his daughters and three grandchildren. One child was a one year old infant. Petitioner was using his premises in a normal and usual fashion. He was on his own property and was entitled to enjoy his backyard free of interference. The testimony of petitioner was that a Great Dane, which later testimony showed to weigh approximately 250 pounds, ran from respondents' property at 86 Windom Street across petitioner's backyard to petitioner's patio. Upon seeking the attack of the Great Dane, Frank Giandalone, threw a chair at the dog. The dog bit him on the elbow and on the left hand causing blood to flow.

The only justification for this incident appears from the testimony of Herbert Katz who stated that he was walking the Great Dane on the premises of respondents at 86 Windom Street, when he tripped on a brick and the Great Dane left respondent's backyard and ran onto petitioner's premises. There is conflicting testimony as to whether petitioner began throwing sticks and a chair at the dog, or whether the dog attacked first. Lillian Zepieri testified that she was sitting in the kitchen when she heard a yell from Herbert Katz. When she went to see the dog, a green and white chair hit her on her left arm while she was on her own property. She conceded that Giandalone was bleeding. She indicated that there was 'chaos' in the area.

The throwing of the chair by the petitioner and the throwing of any sticks, as testified to, under the circumstances were justified. In Mattice v. L'Amereaux, 279 App.Div. 683, 108 N.Y.S.2d 51, the Court held that where the dog of the plaintiff was destroying the fowl of defendant, defendant was justified in shooting the dog and was exempt under Agriculture and Markets Law Section 116 for the killing of the dog. In any event, the Court finds by a fair preponderance of the credible evidence that the attack by the Zepieri dog in the case at bar was unprovoked.

The second incident is alleged to have occurred when the petitioner, Robert Giandalone, was washing his car in front of his house at 88 Windom Street. Robert Giandalone testified that the dog ran at him for no reason, and chased him to the inside of the outer door and that he, Robert Giandalone, was lodged between the inside and the outer door at the front of his house. A witness stated that he was in the vicinity of the premises, about two houses away from respondent's and saw the dog walking on the sidewalk. He testified that Robert had a pitchfork.

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