DECISION AND ORDER I. BACKGROUND AND UNDISPUTED FACTS Plaintiffs, husband and wife, sue for injuries plaintiff Alan Johnson suffered when a dog owned by defendants Rao and Raj attacked Johnson in an elevator in a residential condominium owned by defendant Element Condominium and managed by the condominium’s agent defendant Douglas Elliman Property Management at 555 West 59th Street, New York County. Plaintiffs, Rao, and Raj owned and resided in condominium units in the building. On May 30, 2011, Johnson, Raj, and his dog Ibiza boarded a public passenger elevator inside the building. Once inside, Johnson asked if he might pet Ibiza, to which Raj assented. Johnson lowered his hand to Ibiza to allow the dog to sniff him, and, after the dog appeared to accept Johnson’s hand, Johnson knelt down to face and pet the dog. After Johnson pet Ibiza, as Johnson was standing up, the dog barked at him, lunged at him, and bit his face, tearing off pieces of his nose and lip. Raj immediately pulled the dog away from Johnson, but not before he had suffered severe facial injuries that required plastic surgery. After the incident, Element Condominium and Douglas Elliman Property Management (the condominium defendants) sent Rao and Raj a letter requesting that they muzzle Ibiza until the condominium concluded an investigation. The condominium defendants also sent a letter to all residents of the building notifying them of the attack and of the condominium defendants’ requirement that Rao and Raj muzzle the dog in the building’s common areas and transport the dog only in the building’s service elevators. Despite these letters, Johnson testified at his deposition that after the attack he encountered Ibiza in the passenger elevator and elsewhere in the building’s common areas without a muzzle on multiple occasions. Plaintiffs claim defendants’ strict liability and negligence, including negligent infliction of emotional distress, and seek damages for Johnson’s personal injuries and his wife’s loss of his services and society. Plaintiffs also claim that the condominium defendants breached the rules incorporated in the condominium by-laws by allowing Rao and Raj to keep a vicious dog and bring it into the building’s common areas both before and after the attack. Defendants Rao and Raj cross-claim against the condominium defendants for contribution and implied indemnification, alleging that any negligence of Rao or Raj was derivative of the condominium defendants’ negligence. The condominium defendants cross-claim against Rao and Raj for contribution, implied indemnification, contractual indemnification, and breach of a contract to procure insurance naming the condominium defendants as insureds on the policy, but now discontinue the cross-claim for contractual indemnification. Defendants Rao and Raj and, separately, the condominium defendants move for summary judgment dismissing the complaint and all cross-claims. C.P.L.R. §3212(b). II. SUMMARY JUDGMENT STANDARDS To obtain summary judgment, defendants must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. §3212(b); Friends of Thayer Lake LLC v. Brown, 27 N.Y.3d 1039, 1043 (2016); Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49 (2015); Voss v. Netherlands Ins. Co., 22 N.Y.3d 728, 734 (2014); Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012). Only if defendants satisfy this standard, does the burden shift to plaintiffs and co-defendants to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763 (2016); Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP, 26 N.Y.3d at 49; Morales v. D & A Food Serv., 10 N.Y.3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 744 (2004). In evaluating the evidence for purposes of defendants’ motions, the court construes the evidence in the light most favorable to plaintiffs and codefendants. Stonehill Capital Mgt. LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016); De Lourdes Torres v. Jones, 26 N.Y.3d at 763; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); Vega v. Restani Constr. Corp., 18 N.Y.3d at 503. III. THE CONDOMINIUM DEFENDANTS’ MOTION IS TIMELY. Plaintiffs claim that the condominium defendants’ motion for summary judgment is untimely because it was filed after the deadline set in the December 2016 Preliminary Conference Order, which required defendants to file dispositive motions within 120 days “from all EBTs.” Aff. of Richard C. Prezioso Ex. L, at 2. A stipulated Status Conference Order dated May 10, 2018, however, permitted plaintiffs to conduct nonparty examinations before trial (EBTs) until the filing of the note of issue, Prezioso Aff. Ex. K, and plaintiffs had yet to file the note of issue when the condominium defendants moved for summary judgment. Plaintiffs nonetheless maintain that the Preliminary Conference Order required defendants to move for summary judgment within 120 days of the last EBT August 14, 2017, because, even though plaintiffs obtained permission to conduct EBTs after May 10, 2018, and until filing the note of issue, plaintiffs never conducted any deposition after August 14, 2017. Plaintiffs’ position would require defendants to anticipate plaintiffs’ waiver of their requested and granted right to conduct further depositions. While the Preliminary Conference Order required defendants to file their dispositive motions within 120 days after EBTs were completed, plaintiffs were permitted to complete EBTs until they filed the note of issue, in obtaining the May 2018 order signaled an intention to conduct further EBTs until filing the note of issue, and had not filed the note of issue when the condominium defendants moved for summary judgment. Therefore defendants’ time to file dispositive motions did not begin to run until the note of issue was filed and no more EBTs were permitted. Even if the condominium defendants’ motion was untimely under the Preliminary Conference Order, its ambiguity and defendants’ interpretation of the order consistent with the above interpretation constitute good cause for their late filing. Diaz v. 313-315 W. 125th St., 138 A.D.3d 599, 600 (1st Dep’t 2016); Vila v. Cablevision of NYC, 28 A.D.3d 248, 249 (1st Dep’t 2006). IV. NEGLIGENCE AND STRICT LIABILITY A. Legal Standards Since plaintiffs’ injuries were caused by a domestic animal, plaintiffs may not claim ordinary negligence against defendants and must rely solely on plaintiffs’ strict liability claims. Doerr v. Goldsmith, 25 N.Y.3d 1114, 1116 (2015); Petrone v. Fernandez, 12 N.Y.3d 546, 550 (2009); Bard v. Jahnke, 6 N.Y.3d 592, 615 (2006); Scavetta v. Wechsler, 149 A.D.3d 202, 206 (1st Dep’t 2017). Defendants Rao and Raj, as Ibiza’s owners, and the condominium defendants are strictly liable for harm caused by Ibiza if they knew or had reason to know of the dog’s vicious propensity. Bloomer v. Shauger, 21 N.Y.3d 917, 918 (2013); Petrone v. Fernandez, 12 N.Y.3d at 550; Collier v. Zambito, 1 N.Y.3d 444, 446 (2004); Scavetta v. Wechsler, 149 A.D.3d at 205. “Vicious propensity” is defined as the propensity to endanger the safety of persons or property. Collier v. Zambito, 1 N.Y.3d at 446; Scavetta v. Wechsler, 149 A.D.3d at 205. To establish a dog’s vicious propensity, plaintiffs are not required to show that the dog has bitten anyone previously. Doerr v. Goldsmith, 25 N.Y.3d at 1116; Bard v. Jahnke, 6 N.Y.3d at 615; Collier v. Zambito, 1 N.Y.3d at 448. Plaintiffs may establish the dog’s vicious propensity through evidence that the owner restrained the dog and of the type of the restraint, as well as the dog’s history of growling, snapping, or baring its teeth. Collier v. Zambito, 1 N.Y.3d at 447; Bukhtiyarova v. Cohen, 172 A.D.3d 1153, 1155 (2d Dep’t 2019); Deloach v. Nicholson, 171 A.D.3d 700, 701 (2d Dep’t 2019); Olsen v. Campbell, 150 A.D.3d 1460, 1462 (3d Dep’t 2017). A dog’s breed, alone, does not establish its vicious propensity. Bard v. Jahnke, 6 N.Y.3d at 599; Ortiz v. New York City Hous. Auth., 105 A.D.3d 652, 652 (1st Dep’t 2013); Joe v. Orbit Indus., 269 A.D.2d 121, 122 (1st Dep’t 2000). B. Defendants’ Prima Facie Defense Defendants Rao and Raj and the condominium defendants establish that they neither knew nor had reason to know of Ibiza’s vicious propensity before her attack on Johnson. Raj testified at his deposition about Ibiza’s “sweet” temperament and lack of aggressive behavior before the attack. Aff. of John J. Nicolini Ex. G, at 99; Prezioso Aff. Ex. H, at 99. Raj had never seen Ibiza growl, snap, snarl, show her teeth, or bite at any person before the attack. Nicolini Aff. Ex. G, at 104, 108-109; Prezioso Aff. Ex. H, at 104, 108-109. Other strangers previously had approached and pet Ibiza similarly to Johnson, without incident. Nicolini Aff. Ex. G, at 169-70; Prezioso Aff. Ex. H, at 169-70. Raj explained that he did not muzzle Ibiza because he had no reason to, as she was a friendly dog. Nicolini Aff. Ex. G, at 171; Prezioso Aff. Ex. H, at 171. Rao’s deposition testimony corroborates Raj’s testimony. Rao testified that Ibiza was a calm, affectionate, and happy dog and exhibited no threatening behavior before the dog’s attack on Johnson. Nicolini Aff. Ex. H, at 15, 20-21; Prezioso Aff. Ex. I, at 15, 20-21. Rao confirmed that Ibiza had never growled, snarled, or even barked at other dogs, their owners, or their walkers and did not wear or need a muzzle before the attack. Nicolini Aff. Ex. H, at 19-20; Prezioso Aff. Ex. I, at 19-20. Finally, James Xanthos, the condominium defendants’ account executive managing the condominium, and Nicholaus Williamson, a doorman for the building, each testified at his deposition that he was unaware of any complaints or incidents involving Ibiza or any other dog in the building, Nicolini Aff. Exs. I, at 43; J, at 24, 84-85; Prezioso Aff. Exs. G, at 43; J, at 24, 84-85, as did both plaintiffs. Nicolini Aff. Exs. D, at 25-26; F, at 24-25; Prezioso Aff. Exs. E, at 25-26; F, at 24-25. Alan Johnson specifically testified that he had observed Ibiza in the building before May 30, 2011, but had not observed or heard her growl, snap, show her teeth, or lunge. Nicolini Aff. Ex. D, at 24-25; Prezioso Aff. Exs. E, at 24-25. C. Plaintiffs’ Rebuttal to Rao and Raj Plaintiffs in opposition, however, raise factual issues regarding Rao’s and Raj’s knowledge of Ibiza’s vicious propensity, relying in part on the affidavit of Ron Berman, a canine behavioral consultant and trainer. Berman concludes that, based on authenticated photographs of Ibiza’s physical characteristics, Ibiza is a pit bull mix and that pit bulls are willing to attack and fight. Aff. of Howard F. Strongin & Alexander N. Blake Ex. 5
7-8, 12, 14. When a pit bull is aggressive, it is more likely to bite a stranger without provocation. Id. 13. Based on the undisputed facts that Ibiza attacked Johnson as he backed away from petting her and was in a non-threatening position and that Ibiza escalated her attack on Johnson as he moved away, Berman concludes that Ibiza is a fear-aggressive dog, which is fearful and manifests this fearfulness through aggression. Id.
