In order to bring a viable dog bite case in New York, a plaintiff must establish that the owner had knowledge of a vicious propensity for the type of action at issue. Often, plaintiff speaks to a disgruntled neighbor, who provides an account of a previous incident.
That recently occurred in Gervais v. Laino, in which plaintiff was injured when she was scratched or bitten by defendant’s dog in the park, which was caught in a fence. At the time of the incident, plaintiff had probably been trying to free the dog from the fence at the time of the incident.
The defendant dog owner moved for summary judgment on the basis that there was no prior knowledge of the dog’s vicious propensities, based on four neighbor affidavits and an American Kennel Club’s Good Citizen certification.
In opposition, plaintiff submitted another neighbor’s testimony indicating that the defendant’s dog had a history of growling and two scuffles with the neighbor’s two dogs. The trial court denied defendant’s summary judgment motion on the basis of this previous behavior.
On appeal, the First Department reversed the lower court’s decision and granted defendant summary judgment. The Court noted that knowledge that a dog previously growled — either at other dogs or people — was insufficient to establish knowledge of a vicious propensity, and therefore ruled in favor of the owner.
Thanks to Jung Lee for his contribution to this post.
By now most insurance professionals are familiar with the important decision issued by New York’s highest court in K2 Investment Group, LLC v. American Guarantee Liability Co. The Court of Appeal’s June 2013 decision has caused an upheaval in how insurers handle disclaimers of coverage. We analyzed the significance of K2 in our post of June 28, 2013, as well as the Court’s decision granting a motion to reargue the K2 decision in a subsequent post.
On January 7, 2014, the Court of Appeals heard oral argument on the motion to reargue the K2 decision, and the justices signaled a possible intent to reaffirm the position that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on Policy exclusions” to avoid indemnification.
In their briefs, the insurer and amici argue that K2 conflicts with the Court of Appeals prior decisions in Lang v Hanover Ins. Co., and Servidone Constr. Corp. v Security Ins. Co., in which the Court defined the penalties for an insurer’s failure to defend an insured. In those decisions, the Court held that an insurer loses the right to challenge the facts decided in the underlying lawsuit in a later coverage lawsuit. But notwithstanding the insurer’s breach of the duty to defend, the court would still undertake an analysis as to whether the insurer owed indemnification.
In opposition to the insurer’s motion to reargue, plaintiffs argue that the K2 decision “peacefully coexist[s]” with both Lang and Servidone, as those decisions involved the settlement of the underlying lawsuit whereas K2 involved a default judgment. Plaintiff contends that there are different public policy concerns where an insured is left undefended as with the insured in K2.
While it is perilous to try to glean too much insight into a judge’s frame of mind at oral argument, the bench at oral argument on K2 appeared willing to essentially abrogate the Court’s ruling in Servidone. Chief Judge Jonathan Lippman put it succinctly: “Our question is: What should be our rule going forward?” A decision by New York’s highest court should answer that question shortly.
Thanks to Steve Kaye for his contribution to this post. For more information, please write to Mike Bono.
The Second Department has been quite consistent as to when an action can be dismissed for neglect to prosecute — at least until now. Prior to Marrero v. Nails, the Second Department routinely held that an action cannot be dismissed for neglect to prosecute unless the defendant met the statutory preconditions set forth in CPLR 3216. A 90-day demand requesting that plaintiff file the note of issue is one of the preconditions. If that condition was not satisfied, the case could not be dismissed for neglect to prosecute, regardless of the length or pattern of delay.
However, in Marrero, the Second Department supplied the defense bar with another route to seek dismissal for neglect to prosecute, provided there is a consistent pattern of delay. There, the court dismissed the plaintiff’s case pursuant to 22 NYCRR 202.27(b) after the plaintiff’s counsel failed to appear for a discovery conference. 22 NYCRR 202.27(b) provides:
“At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows . . . If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims.”
The plaintiff argued that prior Second Department case law held that a dismissal pursuant to 22 NYCRR 202.27 was not a dismissal for neglect to prosecute since the defendant had not served the required 90-day demand. The Court, however, rejected this argument, and held that in certain circumstances, such as when there is a consistent pattern of delay, a dismissal pursuant to 22 NYCRR 202.27 can be for neglect to prosecute.
Going forward, defense counsel has a new weapon in the arsenal. Quite often, the plaintiff’s counsel fails to appear for a discovery conference, leaving defense counsel with two options: request an adjournment and inform plaintiff’s counsel of the new conference date or take the default and wait until the plaintiff makes the pro forma motion to vacate that the defendant could not defeat since it had not served the 90-day demand. In either situation, the result is a waste of time and money. Now, however, if the plaintiff’s counsel fails to appear for a discovery conference, defense counsel should consider taking the default if the plaintiff’s counsel has shown a pattern of delay and then opposing the motion to vacate based on the plaintiff’s neglect to prosecute. Defense counsel should also insist on completing a default order stating that the dismissal is pursuant to 22 NYCRR 202.27(b) and outlining the plaintiff’s pattern of neglect.
Special thanks to Gabe Darwick for his contribution.
For more information, contact Denise Fontana Ricci at .
