SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF XXXXXXXX -------------------------------------------------------------------------X AMY RICHMOND, Plaintiff,
Index No. XXXXXX/2014
-againstEDWIN WALLS, KARRIE WALLS, WYATT NESTOR, and PHILIP ENTWHISTLE,
AFFIRMATION IN SUPPORT AND IN OPPOSITION
Defendants. -------------------------------------------------------------------------X Lucretia Lawyer, an attorney duly licensed to practice in the State of New York, hereby affrms the following pursuant to CPLR § 2106: 1.
I am a member of Lucretia Lawyer, P.C., attorneys for plaintiff Amy
Richmond in this case, and I am fully familiar with the facts of the matter based on my review of the fle maintained by my offce. 2.
I respectfully submit this Affrmation in support of plaintiff's cross-motion for
the relief stated in the Notice of Motion, including summary judgment in strict liability against defendants Edwin Walls, Karrie Walls, and Wyatt Nestor, jointly and severally, and denial of all defendants' motions for summary judgment. 3.
Amy Richmond was a 21-year-old college student visiting her boyfriend's house
when a German shepherd ferociously attacked her, unprovoked. The dog belonged to defendant Wyatt Nestor, another tenant in the house where her boyfriend lived. Nestor, who was not present during the attack, was known to brag that he was training the dog “commando” “K-9” style, and he'd deployed it on multiple occasions before the assault here. He had also trained the dog using German commands, which were unfamiliar to Amy and all other residents in the house. 4.
The dog's prolonged attack on Amy ended only when her boyfriend drove the
dog off by hitting it with a shoe; merely restraining it did not prevent its renewed attempts to
continue its assault. The dog inficted puncture wounds on at least eight sites on Amy's body, still painful and disfgured when she was deposed two years later. 5.
The defendants in this case are Nestor, who trained the dog and fostered its
aggression, as well as his mother Kristin Walls and her husband Edwin Walls (collectively “the owner defendants”), and Philip Entwhistle, who owned the property where the attack took place and leased the property to Nestor (“the landlord”). Each defendant has moved for summary judgment, but none has shown prima facie entitlement to this relief. At any rate triable questions would preclude judgment as a matter of law in their favor. 6.
Furthermore, the overwhelming evidence establishes that defendant Nestor
actively encouraged the dog's inherent aggressive tendencies. The dog had vicious propensities and the owner defendants should have known this and did in fact know it. Not only that – they deliberately and irresponsibly drew out these tendencies. While the motions by all defendants should be denied, 1 the plaintiff is entitled to judgment against the owner defendants as a matter of law.
LIST OF ATTACHED EXHIBITS Omitted from this excerpt
STATEMENT OF FACTS The attack 7.
On February 15, 2014, Amy Richmond was at 1234 Avenue Street, in a house
which her boyfriend, Matt Spooner, rented and shared with defendant Wyatt Nestor. Nestor owned Rocco, a purebred German shepherd about two years old (“the dog”). On this particular date, Nestor was out of town.
1
Plaintiff takes no position on those aspects of the motions related to indemnifcation apart from the facts as set forth in this affrmation.
8.
That morning, Amy went to the house's living room to get her laptop from a
chair which was adjacent to a couch where the dog was sleeping. She sat down in this chair while shutting her laptop down, and soon she heard the dog start to growl. It jumped from the couch and stood, still growling with its back arched and teeth bared, in front of the chair where Amy was sitting. Amy told the dog to stop, but it lunged at her and attacked. She leaped onto the chair trying to escape the dog, and sprang from there to a nearby windowsill where she tried to hide behind a curtain, kicking her legs the entire time in an effort to fend the dog off. 9.
Amy screamed for Spooner to come and help her. When he entered the room,
he saw the dog barking and growling (Amy was hidden behind the window curtain), so he grabbed it and called for his two roommates' assistance. By this time Amy was on the verge of losing consciousness, so the roommates eased her off the windowsill. Meanwhile, Spooner tried to bring the dog under control – but every time Spooner let go of the dog, it “kept running back towards [her]” (A. Richmond 14). Spooner fnally had to use a shoe to “beat the dog into [Nestor's] room” in an effort to stop the continued attack (Spooner 55; Ngunye 21). 10.
Once the dog was wrangled into Nestor's room where its cage was located,
Spooner and his roommates carried Amy to a car and brought her to Jamaica Queens Center Hospital. 11.
In total, the dog bit Amy about eight times, in the following places:
Right forearm Right kneecap Right thigh Back of right knee Right buttock Right side of mid-back Left hip Left forearm
(see e.g. Exhibit Q). This damage was inficted over the course of about 30 seconds. Amy's
sweatpants were torn to shreds in the process. She received several weeks of treatment, and her dermatologist advised that the healing process would take at least a year (A. Richmond 42). She received injections for scarring, was referred to a plastic surgeon, missed several days of classes, and was forced to undergo medical treatment for anxiety. Defendant Nestor did not visit Amy or contact her after the attack (Nestor 45).
The dog's training 12.
Nestor claimed he “trained” the dog himself, based on his “research.” This
“research,” he testifed, consisted of watching two (2) YouTube videos and “kind of brows[ing] through one [book]” (Nestor 21). Nestor testifed that he trained the dog using German commands. He did not have any connection to the German language and didn't speak it otherwise (Nestor 15). None of the other witnesses who interacted with the dog understood German at all and could not use German commands to control the dog. 13.
Nestor's testimony did not address the aspects of the dog's training which the
other witnesses described: Nestor was training the dog “to do some sort of attack training” (Spooner 66) Nestor took the dog to a formal training course “[t]o learn to become this commando attack dog” (Ngunye 23, 49) Nestor stated he was training the dog “like a K-9 dog” (L. Richmond 11) Certain commands Nestor issued would “make the dog aggressive” (Ngunye 46) Nestor would command the dog to attack a person either verbally or by “tapping” the person, after which the dog would bite and bark at him or her until Nestor called it off. Nestor directed these commands towards various roommates despite knowing that it made them uncomfortable, which he apparently found funny. He did this fve or ten times with his roommate Alan Ngunye, and each time Ngunye would tell him to stop. Running from the dog would not stop the attack and would sometimes make it worse (Ngunye 26-27, 35-36, 51). Ngunye also testifed, “...Wyatt had a load of commands that would provoke Rocco to bark at someone. Not attacking someone, but going after, aggressively,
towards someone.” The dog “was just aggressive towards everybody” (Ngunye 22, 25).
The dog's past vicious acts 14.
Nestor's dog bit or attacked someone three times before the attack here. At least
two of these incidents undisputedly occurred when Nestor was present, and each was recounted by multiple witnesses (A. Richmond 61-62, L. Richmond 14-15, Spooner 18-19, 3150, 65-67, 74-75). 15.
First, Matt Spooner testifed that before the attack in this case, he was the subject
of Rocco's aggression himself when he and Nestor were wrestling and the dog became “aggressive” and nipped Spooner's leg (Spooner 35-37). 16.
Second, in late October 2013, the plaintiff's sister, non-party Liza Richmond, was
at 1234 Avenue Street for a party when, at Liza's request, Nestor released the dog from the cage where it was kept so she could pet it. When Nestor let it out, the dog “put [its] jaw on [her] face,” as though it “wanted to bite” but was waiting for Nestor's cue to do so. This was interrupted only by Liza's boyfriend's intervention . After the dog stopped short of biting her face, it then went after her hand, stopping only when Nestor intervened. Nestor was there during the entirety of this unprovoked incident (L. Richmond 10, 14-15, 30). 17.
Finally, Spooner testifed that in December 2013 or January 2014, the dog bit an
acquaintance of his, Sal Reinaldo. Nestor and another friend, Robert Dimichael, were also present during this incident. Nestor demonstrated to Reinaldo, as “a little bit of a joke,” that his dog became aggressive when Nestor gave the dog a certain signal. (Spooner 31-35). Nestor “tapped” Reinaldo, then the dog “leaped” onto him and began to bite his leg. The dog had to be physically restrained from continuing the attack for around 10-15 seconds before it fnally settled down (Spooner 38-40). While this was ongoing, Robert Dimichael, apparently in genuine fear, told Nestor to “knock it off” while he was curled into a ball. Nestor responded
by laughing (Spooner 66-67). 18.
Besides displaying aggression on Nestor's command, Amy noted that when she
passed through the room where the dog was kept it would growl at her, so that Nestor would have to put it into its cage. Amy, Spooner, and Nestor himself all acknowledged that Nestor was aware of the dog's habit of being “weird” – i.e. skittish – around women (Richmond 74, Spooner 65-66, 75, Nestor 22).
Defendants' relationship to dog 19.
Defendant Philip Entwhistle owned the property at 1234 Avenue Street, which
he leased to various individuals including defendant Nestor as of October 13, 2013 (Exhibit N). He visited every month to collect rent, and would also be there on other occasions to take measurements for contemplated renovations. In total, he was at the premises around a dozen times between the start of Nestor's tenancy and the dog's attack. 20.
The day Nestor signed the lease, Entwhistle added a hand-written provision that
no pets were allowed. Nevertheless, Nestor brought his family's dog along when he moved in. Nestor and his roommates sometimes – not always – hid the dog when the landlord was present, but they never hid the various indicators that a dog lived there. Dog bowls and toys were strewn about, the house had the odor of a dog, and dog waste was visible outside the house (including in snow that fell during a storm in the months leading up to the incident). 21.
Various witnesses also described Entwhistle's actual notice of the dog's presence.
Nestor testifed that Entwhistle saw the dog laying in the window before the incident (Nestor 48-49). Spooner testifed that Entwhistle frst became aware of the dog around New Year's – or at any rate before he and his roommates received a notice to cure in April 2014 – and told him that the dog should not be there but “it was fne” (Spooner 15-17). He testifed that Entwhistle also made other unspecifed comments about the dog before the February 15 incident took place, including that his landscaping costs had increased because of the dog's waste (Spooner
68-70, 77; Exhibit P). 22.
Entwhistle acknowledged that after he saw the dog in the window at the house
he “was a little afraid” of it (Entwhistle 30). 23.
Nestor was not the only party responsible for the dog itself. Defendants Karrie
Walls and Edwin Walls, Nestor's mother and her husband, testifed that the dog was their “family dog” since 2012, and that they were responsible for its feeding and walking (E. Walls 11; K. Walls 14). The dog lived exclusively in their home until Nestor left the residence for college and took it along. After that the dog primarily stayed with Nestor but continued spending signifcant amounts of time in the Walls home, and the Wallses were responsible for its boarding when they would leave town (K. Walls 10-13).
Proceduralhistory 24.
Plaintiff fled this action on or about December 23, 2014 (Exhibit A). The owner
defendants answered on or about February 4, 2015 and the landlord on or about December 4, 2015 (Exhibits B&C). A copy of plaintiff's Bill of Particulars is attached at Exhibit D. After discovery was completed and a certifcation conference held on May 23, 2016, plaintiff fled her note of issue on May 24, 2016 (Exhibit E). The Note of Issue provided a 90-day window in which to make dispositive motions, which expired on August 22, 2016. Entwhistle moved for summary judgment on or about August 15, 2016; the owner defendants did not fle their motion until October 18.
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ARGUMENT I. Plaintiff is entitled to summary judgment on the merits, and at minimum the evidence shows questions of fact precluding summary judgment to any defendant(s). A. Undisputed evidence establishes that the dog had vicious propensities, which the owner defendants encouraged. 25.
New York case law establishes a wide range of factors which show an
animal's vicious propensities. These factors require a legal conclusion that the German shepherd in this case had vicious propensities and that its owners knew or should have known of them. In fact, not only did the dog owner Nestor know of these propensities, but he actively and irresponsibly cultivated many of them. 26.
Three factors especially salient here are the dog's training, proof of prior
similar acts, and the nature and result of the attack on the plaintiff. 27.
Nestor deliberately trained the dog to evoke its aggression. He bragged to
people, including his non-party roommates and the plaintiff's sister, that he was training it “to do some sort of attack training” (Spooner 66), “[t]o learn to become this commando attack dog” (Ngunye 23), “like a K-9 dog” (L. Richmond 11). He would direct the dog toward a certain person, and encourage it to bite and bark at that person until Nestor called it off. He used the dog to attack and harass many different people – a fun diversion he apparently found quite humorous (Ngunye 35-36, 51). 28.
And Nestor reinforced to the dog that it should continue assaulting a person
who was trying to escape – like Amy was when she fed to the windowsill. Nestor would direct the dog to continue its attack even after its target asked Nestor to stop and demonstrated discomfort (Ngunye 27). Running away from the attacking dog would not end the assault but “would sometimes make it worse” (Ngunye 27). This alone shows that the dog had vicious, tenacious propensities which Nestor not only knew about but which he actively encouraged.
29.
In Gannon v. Conti, 86 A.D.3d 704 (3rd Dept. 2011) the court determined that
training by a dog's owners which encouraged the dog to bite a human being, albeit one wearing a protective sleeve, could provide a basis to determine that the owners had notice of the dog's propensity to bite. The facts in this case likewise show that Nestor trained his dog not only to display aggression on command, but to continue attacking the target even after the person tried to make the attack stop – again, as Amy did here. 30.
The evidence does not stop there. A second factor is proof of past acts of a
similar kind of which the owner had notice (see Collier v. Zambito, 1 N.Y.3d 444 [2004]). The evidence here shows at least three such acts (besides Nestor's acknowledgment that the dog was “weird around girls”). As further detailed in the statement of facts, these included attacks which Nestor directed toward two acquaintances, and an attack on Amy's boyfriend and Nestor's roommate Matt Spooner, and an attempted unprovoked attack on the Amy's sister, Liza Richmond. 31.
Neither the facts nor law support dismissing these attacks as the dog's mere
“playful behavior” (see e.g. third page of unnumbered Attorney Aff.). After initiating an attack, the dog would not calm down until it had been physically restrained for around 1015 seconds (Spooner 40). At least two witnesses testifed that, despite Nestor's laughter, the attacks evoked genuine fear and discomfort in their targets (Spooner 66-67; Ngunye 35-36). And even i f the dog had been acting “in a playful manner, the term 'vicious propensity' includes a propensity to act in a manner that may endanger the safety of another, whether playful or not.” Provorse v. Curtis, 288 A.D.2d 832 (4th Dept. 2001) (affrming denial of defendant's summary judgment motion where plaintiff submitted proof that dog would touch customers with its open mouth while following them); accord Gannon, supra; Anderson v. Carduner, 279 A.D.2d 369, 369–70, 720 N.Y.S.2d 18, 19 (1st Dept. 2001); Stalzer v. Deabrue, 50 Misc. 3d 142(A), 31 N.Y.S.3d 924 (App. Term. 2 nd Dept. 2016). 32.
Third, the nature and result of an attack is well-established as another factor
regarding an owner's existence and awareness of an animal's vicious propensity. This case does not involve a quick snap at the plaintiff – instead, Amy Richmond withstood an ongoing attack for over 30 seconds. The dog pursued her during her attempt to fee. And the dog tried to renew the attack, to the point where physical restraint was not effective and the dog had to be physically driven off by hitting it with a shoe (Spooner 54-56; cf. Matter of Fugazy, 82 Misc.2d 135 [NY Town Ct. 1974] where dog was driven off with shouts and thrown stones). The attack left Amy with at least eight separate bites requiring extensive medical and dermatological care, and that the dog shredded the sweatpants she was wearing further illustrates the ferocity of the attack. 33.
The nature of this severe and unprovoked attack demonstrates the knowledge
the owner defendants had or should have had of the dog's vicious propensities. Wilson v. Livingston, 305 A.D.2d 585 (2nd Dept. 2003); accord Lynch v. Nacewicz, 126 A.D.2d 708, 708, 511 N.Y.S.2d 121, 122 (2 nd Dept. 1987); see Matthew H. v. County of Nassau, 131 A.D.3d 135 (2nd Dept. 2015) (dogs pursued plaintiff in order to continue attack); Brophy v. Columbia Co. Agric. Soc'y, 116 A.D.2d 873 (3rd Dept. 1986) (horse leaned out of stall, bit infant plaintiff, and lifted infant a foot into air, presenting fact question of vicious propensities based on nature of attack); Ford v. Steindon, 25 Misc.2d 339 (App. Term 2nd Dept. 1962) (“The very viciousness of the attack on plaintiff demonstrates that the dog was in fact vicious”). 34.
And the evidence goes on. The dog here 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.” Ford v. Steindon, 25 Misc.2d 339, 339-340 (App. Term 2nd Dept. 1962) (internal quotations and editing marks omitted); Plue v. Lent, 146 A.D.2d 968, 969, 537 N.Y.S.2d 90, 92 (3rd Dept. 1989) (citing Strunk v. Zoltanski, 62 N.Y.2d at 578 n. 1, 479 N.Y.S.2d 175, 468 N.E.2d 13 [Kaye, J., dissenting]); Doerr v. Goldsmith, 25 N.Y.3d 1114 (2015) (Abdus-
Salaam, J., concurring). 35.
The dog was “a good watch dog” (Ngunye 61; cf. Collier, supra [noting that
dog's function as guard dog could imply owner knew of vicious propensities]). 36.
The dog routinely growled at the plaintiff to the extent that Nestor had to
cage it (Richmond 15), and as described above, Nestor permitted and encouraged the dog to display aggressive behavior to his great amusement, apparently delighting in using the dog as a means of intimidation and harassment. Cf. Rodgers ex rel. McCoy v. Horizons at Monticello, LLP, 130 A.D.3d 1285 (3rd Dept. 2015) (dog was permitted by owner to chase children and growl, bark, and jump against its leash at them); Rider v. White, 65 N.Y. 54 (1875) (considering disposition of animal toward persons coming near it). 37.
Furthermore, defendants Karrie Walls and Edwin Walls, Nestor's mother and
her husband who comprise the other owners, are also “chargeable with the knowledge of a person in whose custody the dog was left; even though that person never communicated the knowledge to the defendant.” Comment, N.Y. PJI 2:220 (2015) (internal citations omitted). Under the law, they too are responsible for Nestor's knowledge of the dog's propensities, which arises from his recklessly training the dog as an attack dog, wantonly deploying the dog's attack skills, and disregard for the signifcance of the dog's past attacks. And they too should be held liable to the plaintiff as a matter of law. 1. Plaintiff is entitled to summary judgment against the owner defendants in strict liability. 38.
“To recover in strict liability in tort for damages caused by a dog, a plaintiff
must establish that the dog had vicious propensities and that the owner knew or should have known of the dog's vicious propensities.” Curbelo v. Walker, 81 A.D.3d 772 (2nd Dept. 2011) (citing Collier v. Zambito, 1 N.Y.3d 444, 446-447 [2004]; Polman v. Tersillo, 65 A.D.3d 1207, 1209 [2nd Dept. 2009]; Wright v. Fiore, 77 A.D.3d 821 [2nd Dept. 2010]; Egan v. Hom, 74 A.D.3d 1133 [2nd Dept. 2010]).
39.
“Vicious propensities include the propensity to do any act that might
endanger the safety of the persons and property of others in a given situation. Once this knowledge is established, the owner or anyone harboring the animal faces strict liability. . . . Even a dog which has not previously bitten or attacked may subject its owner or harborer to strict liability where its propensities are apparent.” Matthew H. v. County of Nassau, 131 A.D.3d 135, 147-148 (2nd Dept. 2015) (internal citations/quotations omitted). 40.
Furthermore, the knowledge of one with custody over the dog may be
imputed to the owners; thus “[i]t is not necessary that plaintiff prove actual knowledge on defendant's part. Defendant is chargeable with the knowledge of a person in whose custody the dog was left; even though that person never communicated the knowledge to the defendant.” Comment, N.Y. PJI 2:220 (2015) (internal citations omitted). 41.
The evidence above shows the dog's vicious propensities, and proves that
Nestor should have known of these propensities, and that he not only did know of them, but he actively rewarded and exacerbated these propensities. And the same evidence is chargeable to defendants Karrie Walls and Edwin Walls. This evidence meets the legal standard for judgment against the owner defendants under strict liability, and plaintiff Amy Richmond is entitled to summary judgment against them. 2. The owner defendants' motion should be denied for failure to demonstrate prima facie entitlement. 42.
There is no substance or analysis in the three-page affrmation which the
owner defendants offer in support of their motion. They argue that the deposition testimony does not show knowledge of prior incidents or complaints about the dog by Edwin Walls, Kristin Walls, or Wyatt Nestor – but in doing so not only do they overlook the fact questions related to their credibility as witnesses, see e.g. Cerniglia v. Loza Rest. Corp., 98 A.D.3d 933, 935 (2nd Dept. 2012), but they completely ignore liability that arises when an owner should have known of the animal's vicious propensities. On this point, the owner
defendants merely assert, without citing any evidence, that “[t]he evidence presented establishes that these defendants were not aware, nor should they have been aware of any vicious propensities of the dog” (see second page of unnumbered Attorney Aff.). Their generic reference to a handful of cases does not constitute proof. 43.
Before even reaching the opposing papers, the owners' motion for summary
judgment should be denied outright for failure to state a prima facie case. Matthew H. v. County of Nassau, 131 A.D.3d 135 (2nd Dept. 2015); Jones v. Pennsylvania Meat Market, 78 A.D.3d 658 (2nd Dept. 2010).
3. The owner defendants' motion should be denied based on issues of fact. 44.
Even i f the overwhelming evidence did not demonstrate that each owner
knew or should have known of the dog's vicious propensities as a matter of law, in any event the owners' motion must be denied so that triable issues of fact can be put to a jury. “Proof of a previous attack is unnecessary where other factors are indicative of knowledge of an animal's vicious propensities,” Carter v. Metro N. Associates, 255 A.D.2d 251, 254, 680 N.Y.S.2d 239, 242 (1st Dept. 1998) (Mazzarelli, J., dissenting), and in deciding whether the animal that caused the plaintiff's injuries had vicious propensities, “the jury may consider the nature and results of the attack on the plaintiff, whether the animal had previously attacked other persons, and the disposition of the animal toward persons coming near it.” Id. (internal citations and editing marks omitted); Comment, N.Y. PJI 2:220 (2015). 45.
The evidence here includes the dog's breed, past attacks, commando/attack-
style training, Nestor's encouragement of its aggression, and the ferocious nature and grisly results of its attack on Amy. These all demonstrate as a matter of law that the owner defendants knew or should have known of the dog's vicious propensities. But if the evidence does not meet this standard, then at minimum it presents a question of fact whether this was the case, and the plaintiff is entitled to have this question put to a jury.
CONCLUSION 46.
Wyatt Nestor, the owner of the dog that mauled the plaintiff, ensured that the
dog was trained as a tool of aggression and harassment. He knew that the dog behaved aggressively – often at his own instigation. He knew that the dog was a purebred German shepherd. These factors, as well as those discussed above, all show that as a matter of law Nestor knew of the dog's vicious propensities; if he was deliberately ignoring these propensities, he should have known. Even if the other owner defendants, Nestor's mother and her husband, lacked actual knowledge of the dog's temperament, under the law they are still chargeable with the same knowledge Nestor had. 47.
There is no factual question against the owner defendants that cannot be
resolved on a motion for summary judgment. There is no basis to grant judgment as a matter of law against either set of defendants, requiring denial of their motions and an award of summary judgment to the plaintiff against the owners. WHEREFORE, plaintiff Amy Richmond respectfully requests an Order: 1. Pursuant to CPLR § 3212, granting summary judgment to Plaintiff against defendants Edwin Walls, Karrie Walls, and Wyatt Nestor jointly and severally, on the cause of action for strict liability, and 2. Denying the motion for summary judgment by defendant Philip Entwhistle and the cross-motion for summary judgment by defendants Edwin Walls, Karrie Walls, and Wyatt Nestor to the extent that these motions request dismissal of the Complaint, and 3. granting such other and further relief as to this Court seems just and proper. DATED:
New York, New York December __, 2016 __________________________________ Lucretia Lawyer