Vikki-Lynn A. v. Zewin

198 A.D.3d 1342

155 N.Y.S.3d 663

VIKKI-LYNN A., as Parent and Natural Guardian of Kaeden J.M., Plaintiff-Appellant,

v.Jeffrey M. ZEWIN, Defendant-Respondent, et al., Defendants.

554

CA 20-00940

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: October 8, 2021

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR PLAINTIFF-APPELLANT.

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (CORY J. WEBER OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the complaint against defendant Jeffrey M. Zewin insofar as it asserts a cause of action for strict liability, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by her infant child when he was attacked by two Rottweilers harbored by tenants living in a house owned by Jeffrey M. Zewin (defendant). Defendant moved for summary judgment dismissing the complaint against him on the ground that he was not aware that dogs were kept on the property or that those dogs had vicious propensities. In opposition to the motion, plaintiff submitted, inter alia, the affidavits of two nonparty witnesses: Erica Davis and Terrance Cheetham. Supreme Court, however, precluded those affidavits as a remedy for plaintiff's failure to disclose them during discovery, and thus it did not consider them on the motion. The court determined that, absent those affidavits, plaintiff failed to raise a triable issue of fact, and it granted defendant's motion. Plaintiff appeals.

Preliminarily, we note that plaintiff does not address the dismissal of the complaint insofar as it asserts a cause of action for negligence, and we therefore deem any challenge to that part of the order abandoned (see Ciesinski v. Town of Aurora , 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). In any event, cases involving injuries inflicted by domestic animals may proceed only under a theory of strict liability, not on theories of common-law negligence (see Russell v. Hunt , 158 A.D.3d 1184, 1185-1186, 70 N.Y.S.3d 279 [4th Dept. 2018] ).

With respect to the merits, we agree with the court that the affidavit of Davis, insofar as it contained a party statement of defendant, should have been disclosed. CPLR 3101 (e) "enables a party to unconditionally obtain a copy of his or her own statement[,] creating an exception to the rule that material prepared for litigation is ordinarily not discoverable" ( Sands v. News Am. Publ. Inc. , 161 A.D.2d 30, 40, 560 N.Y.S.2d 416 [1st Dept. 1990] ). We nevertheless agree with plaintiff that the court abused its discretion in precluding Davis's affidavit from consideration in opposition to the motion (see generally Zakhidov v. Boulevard Tenants Corp. , 96 A.D.3d 737, 739, 945 N.Y.S.2d 756 [2d Dept. 2012] ; Ronan v. Northrup , 245 A.D.2d 1119, 1119, 667 N.Y.S.2d 181 [4th Dept. 1997] ). Defendant knew of Davis as a person of interest, which is why counsel sought to depose her approximately four months prior to making the motion, and defendant did not seek the assistance of the court to compel Davis's production (see Dume v. CK-HP 1985 Marcus Ave., LLC , 136 A.D.3d 860, 861, 25 N.Y.S.3d 329 [2d Dept. 2016] ; Pearson v. City of New York , 74 A.D.3d 1160, 1161-1162, 904 N.Y.S.2d 171 [2d Dept. 2010] ). Inasmuch as plaintiff is not precluded from relying on Davis's affidavit to oppose summary judgment, Davis is not precluded from testifying at trial (cf. Fleming v. Vassallo , 295 A.D.2d 172, 172, 744 N.Y.S.2d 315 [1st Dept. 2002] ).

We also conclude that the court abused its discretion in precluding the Cheetham affidavit from consideration. Cheetham was listed as a witness in discovery and was deposed. Cheetham is not a party to this action, and his affidavit did not include any statements of a party. Even assuming that Cheetham's statement was discoverable, we note that defendant's discovery demands did not include a demand for nonparty witness statements. Assuming further that defendant's discovery demands could be read to include a request for the statement of a nonparty witness, i.e., Cheetham, we conclude that Cheetham's statement was conditionally privileged as material prepared in anticipation of litigation (see CPLR 3101 [d] [2] ; Guzek v. B & L Wholesale Supply, Inc. , 126 A.D.3d 1506,...