Of Horses, Bulls and Dog Bites

During the past several months our courts, at all levels, have issued a vast and unusual number of decisions relating to the "vicious propensities" of dogs; canine "custody disputes; animal and pet related claims of negligence; and the "three month rule".

RPDG, LLC v. Kuravsky, 2016 NY Slip Op 50791(U) [App. T. 2d Dept. May 12, 2016]

Appellate Term summarily affirmed, as follows, the judgment of Civil Court, after a bench trial, dismissing the petition:

In this holdover proceeding predicated, . . . on a claim that tenant, Alexander Kuravsky, violated his lease by harboring a dog without landlord's consent, the Civil Court dismissed the petition after a nonjury trial, finding that landlord's failure to commence the proceeding within three months of learning of the dog's presence in the subject apartment constituted a waiver of landlord's right to enforce the no-pet provision of the lease [ ].

Colombini v. Benitez, 2016 NY Slip Op 31829(u) [Sup. Ct. N.Y. Co. September 30, 2016]

The Court summarized the facts in a dog bite/vicious propensities suit:

In 1993, defendant Mark Saltz "(M. Saltz") was the prime tenant of apartment 8R located at 118 West 27th1Street, New York, New York (the "Apartment"). The Apartment was owned and leased by defendant 118 West Corporation ("118 West"). The lease agreement between M. Saltz and 118 West did not contain any pet policy. In 2002, M. Saltz moved out of the Apartment so that his son, defendant Sam Saltz (''S. Saltz"), could move in. Although, S. Saltz began paying rent directly to 118 West, M. Saltz remained the prime tenant according to the lease agreement.

In 2006, S. Saltz adopted a pit bull, mixed breed dog from an animal shelter. After the adoption, M. Saltz was aware that the dog resided in his apartment and, in fact, occasionally came to the Apartment to walk and feed it. Both M. Saltz and S. Saltz maintain that the dog was generally mild tempered and they never saw the dog bite, snap, bark, growl, lunge or bare his teeth at anyone.

In early 2008, S. Saltz was offered a job to teach English to children in Korea beginning in March of 2009. In the Fall of 2008, defendant Mijail Benitez ("Benitez") moved into the Apartment as S. Saltz' roommate; After a few months, Benitez and S. Saltz reached agreement that Benitez would stay in the Apartment while S. Saltz was in Korea. The agreement included an explicit understanding that Benitez would care for the dog and the Apartment while S. Saltz was in Korea.

In March 2009, S. Saltz went to live temporarily in Korea. At that time, Benitez lived in the Apartment alone while attending classes as a student at The New School. M. Saltz continued to stop by the Apartment to check in on the Apartment and the dog. During this time period, M. Saltz would take care of the dog and would walk and feed it. Benitez maintained that the dog was not vicious and never bit, snapped, barked, growled, lunged or bared his teeth at anyone.

On August 28, 2009, unbeknownst to M. Saltz or S. Saltz, defendant Colello signed a written agreement to sublease from defendant Benitez. Colello then moved into the Apartment and lived with Benitez for approximately three months. Although Colello denies involvement with the dog, while living there, Colello took affectionate pictures with the dog, including hugging and kissing it. These pictures were posted to Facebook, along with other photos of defendant Colello's friends exhibiting similar affectionate behavior with the dog. Colello also maintained that the dog never bit, snapped, barked, growled, lunged or bared his teeth at anyone.

In late November/early December 2009, Benitez went to his parents' home in Mexico leaving...