Nardi v. Gonzalez

• Decision Date: 31 May 1995
• Citation: 165 Misc.2d 336,630 N.Y.S.2d 215
• Parties: Dusolina and Alfred NARDI, Plaintiffs, v. Maureen GONZALEZ, Defendant.
• Court: New York City Court

Page 215

630 N.Y.S.2d 215

165 Misc.2d 336

Dusolina and Alfred NARDI, Plaintiffs, v. Maureen GONZALEZ, Defendant.

City Court of Yonkers.

May 31, 1995.

Dusolina Nardi and Alfred Nardi, plaintiffs, pro se.

Anastasios Sarikos, New York City, for defendant.

THOMAS A. DICKERSON, Judge.

Bianca and Pepe are diminutive, curly coated Bichon Frises and are, respectively, 9 years old and 3 years old. Bianca and Pepe are owned by the plaintiffs, Dusolina and Alfred Nardi ["the Nardis"], and reside with them at the Nardis' home at 95 Rockledge Road, Yonkers, New York.

Ace is a large 5 year old German Shepherd weighing 110 pounds. Ace is owned by the defendant, Maureen Gonzalez [Mrs. Gonzalez], and until recently resided at the Gonzalez home at 117 Rockledge Road, Yonkers, New York.

On March 24, 1993 and again on June 16, 1994, Mrs. Gonzalez allowed Ace to run loose without a leash. On these two occasions Ace entered onto the Nardis' property and viciously attacked Bianca causing severe injuries. On both occasions, Bianca was taken to a veterinarian for treatment of the wounds inflicted by Ace. The veterinarian bills were $392 for the March 24, 1993 attack and $182 for the June 16, 1994 attack.

On June 22, 1994 the Nardis commenced a lawsuit before this Court seeking damages for the injuries sustained by Bianca and themselves. After a trial held on October 26, 1994, this Court (Smith, J.) found Ace and its owner Mrs. Gonzalez responsible ["Considering the disparate sizes of the animals and all the circumstances...."] for the injuries inflicted upon Bianca ["Ace bit (Bianca) causing bite wounds and bleeding"] and awarded damages of $524.

On February 4, 1995, Pepe, the younger Bichon Frise, was with his owner, Alfred Nardi, who was in his driveway shoveling snow. Ace suddenly appeared, sniffed Pepe and then, without provocation, viciously attacked and mauled Pepe. Alfred Nardi chased Ace away and took Pepe to the veterinarian. Pepe remained hospitalized for four days undergoing surgery. The photographs introduced at trial show a 10 inch gash held together with surgical staples running from Pepe's stomach to his back. The veterinarian bills for Pepe's hospitalization, care and treatment were $819, considerably more than those incurred by Bianca just the year before.

DISCUSSION

In this action, the plaintiffs seek damages to include the costs of veterinarian services [$819], two days lost wages in caring for Pepe [$156] and all other appropriate damages. In response Mrs. Gonzalez stated that she had built a fence around her backyard to keep Ace enclosed. Unfortunately, Ace escaped from the enclosure on February 4, 1995, went to the Nardi's house and mauled Pepe. Based upon the facts of this case the Court finds that plaintiffs have stated a cognizable cause of action for strict liability for injuries caused by a vicious and dangerous dog.

Good Dogs & Bad Dogs

Dogs can be wonderful companions and loyal guardians. On occasion, however, dogs can also be vicious animals that annoy and wound men, women and children. Cases involving vicious and dangerous dogs, typically, seek one of two forms of relief.

First, dog cases will seek to invoke the protection of a public safety statute [see e.g., Giandalone v. Zepieri, 86 Misc.2d 79, 381 N.Y.S.2d 621 (1976) (Agriculture and Markets Law § 116; 250 lb. Great Dane bites and chases men; confinement ordered); Brooks v. Hemingway, 107 Misc.2d 190, 433 N.Y.S.2d 551 (1980) (Agriculture and Markets Law § 121; 100 lb. Golden Labrador-Malamute [Jimbo ] attacks boy, confinement ordered); People v. Horvath, 205 A.D.2d 927, 613 N.Y.S.2d 721 (1994) (Agriculture and Markets Law § 121; Rottweiler chases two children and kills Pekinese, destruction ordered); Reda v. Department of Health of the City of New York, 137 Misc.2d 61, 519 Second, dog cases will seek monetary damages [see e.g., Coleman v. Blake, 128 N.Y.S.2d 780, 781-782 (1954) ("Mrs. Coleman proffered the dog a bit of cheese. Man's best friend rewarded her affection by taking a bite out of her proboscis, and in so doing nipped a beautiful friendship in its origin ...", damages of $7,500 for injuries, medical expenses and loss of earnings); Fontecchio v. Esposito, 108 A.D.2d 780, 485 N.Y.S.2d 113 (1985) (dog bites woman, damages of $240,000 and $70,000 reversed as excessive); Zager v. Dimilia, 138 Misc.2d 448, 524 N.Y.S.2d 968 (1988) (McDuff bites Tucker, damages limited to veterinarian bills, no punitive damages without evidence of prior known bites); Corso v. Crawford Dog and Cat Hospital, Inc., 97 Misc.2d 530, 415 N.Y.S.2d 182, 183 (1979) ("a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property", damages of $700); Fowler v. Town of Ticonderoga, 131 A.D.2d 919, 516 N.Y.S.2d 368 (1987) (dog shot by Dog Control Officer, no damages for owner's psychic trauma) ].

N.Y.S.2d 774 (1987) (New York City Health Code § 161.07(a); King bites three people within 24 months, destruction ordered); Amado v. Estrich, 182 A.D.2d 1109, 583 N.Y.S.2d 85 (1992) (violation of Town Leash Law; Golden Retriever [Bogart ] knocks bicyclist down) ].

Some Dogs More Vicious Than Others

Some dogs can be more vicious and dangerous than others. For example, German Shepherds are large, intelligent and strong and, if trained properly, can serve as trusted guard dogs and police dogs. Without proper training, however, German Shepherds can be vicious, indeed [see e.g., Ford v. Steindon, 35 Misc.2d 339, 232 N.Y.S.2d 473, 474 (1962) (vicious German Shepherd attacks man, "the dog ... was a German Shepherd colloquially known as a police dog ... It has been said that with respect to such dogs 'it is a matter of common knowledge that the court can almost take judicial knowledge of the fact that police dogs are, by nature, vicious, inheriting the wild and untamed characteristics of their wolf ancestors' "); DiGrazia v. Castronova, 48 A.D.2d 249, 368 N.Y.S.2d 898 (1975) (vicious German Shepherd [Sam ] attacks six year old boy); Lagoda v. Dorr, 28 A.D.2d 208, 284 N.Y.S.2d 130 (1967) (vicious German Shepherd attacks boy on bicycle knocking him to ground); Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13 (1984) (dangerous German Shepherd bites infant on mouth and arms); Application of Fugazy, 82 Misc.2d 135, 368 N.Y.S.2d 652 (Harrison Town Ct.West.Cty.1974) (two dangerous German Shepherds [Kelly & Murphy ] attack, bite and chase fifteen year old boy) ].

Strict Liability--Vicious Dog

New York recognizes a cause of action which imposes strict liability [no proof of negligence necessary] upon owners for injuries inflicted by their vicious dogs, the owners having knowledge thereof and viciousness being defined as prior bites and/or mischievous propensities [see e.g., Wheaton v. Guthrie, 89 A.D.2d 809, 453 N.Y.S.2d 480 ("strict liability 'vicious dog' cause of action ... the proof established that (the dog) had a vicious propensity known to the defendant. A vicious propensity is the tendency of a dog to do an act which might endanger another ...") ]; Morales v. Quinones, 72 A.D.2d 519, 420 N.Y.S.2d 899, 900 (1979) (...