Almodovar v. NYCHA (1st Dep’t)
November 18, 2019 Posted By Risk Managment
In Almoovar v. the New York City Housing Authority (1st Dep’t 2019), the plaintiff in the underlying action alleged she was bitten by an unleashed pit bull who was owned by an individual who resided at the NYCHA’s building where she lived. The NYCHA moved for summary judgment, arguing that it did not have prior knowledge of this pit bull’s alleged “vicious propensities.” The motion for summary judgment was denied, and NYCHA appealed to the First Department.
On appeal, the appellate court noted that a plaintiff must “establish [a] landlord’s knowledge of the dog’s presence, and its vicious propensities” for such landlord to be liable for dog bite injuries. Suriel v. New York City Hous. Auth., 294 A.D.2d 101 (1st Dep’t 2002). Such propensities can be shown by “proof of prior acts of a similar kind of which the defendant had notice.” Collier v. Zambito, 1 N.Y.3d 444, 446 (2004).
In the case at bar, the First Department affirmed the trial court’s ruling, finding that questions of fact existed with regard to NYCHA’s prior knowledge of the pit bull’s vicious propensities. While the manager of the building testified at deposition that there were no prior dog bite incidents to his knowledge, the building’s records revealed a dog bite by an unknown canine occurring three (3) months prior to the incident in question. Moreover, plaintiff testified that she had seen the dog previously on multiple occasions, and it had acted aggressively in the past.
By virtue of this decision, the First Department confirms that a landlord must demonstrate not just the lack of actual knowledge of a manager or supervisor of the building with regard to prior dog bite injuries, but also must ensure that it keeps copious records with regard to any dog bite injuries so as to rule out any potential “ambiguities” with regard to any reported prior incidents. If the NYCHA’s records would have shown that the dog in question in this action was not the dog who committed the act three (3) months prior to the incident in question, perhaps the First Department would have been more inclined to determine that the NYCHA was, in fact, unaware of any vicious propensities of this particular animal.