New York Civil Law

New York State Governor Hochul Vetoes New York Bill on Wrongful Death Statute - The Grieving Families Act

New York's Governor Kathy Hochul recently vetoed The Grieving Families Act of 2023  (Download NY Gov. veto message on 2023 wrongful death bill). Governor Hochul vetoed a similar bill in 2022. The Act aimed to allow families of wrongful death victims to receive compensation for emotional anguish. New York's wrongful death statute currently limits compensation in a wrongful death action to pecuniary losses -- i.e., damages calculated based on the monetary contributions that the deceased person would have made to their family had he or she lived. The 2023 Act also sought to extend the time to commence a wrongful death action and expand the scope of eligible family members who could recover in a wrongful death action.

The justification for the Act stemmed from the claimed shortcomings of New York's wrongful death statute, which denies families the ability to seek compensation for emotional suffering caused by the loss of a loved one. The justification section of the bill stated, "The current law, over 170 years old, only awards damages for pecuniary loss, disproportionately affecting children, seniors, women, and people of color who may have little or no income. The law's narrow and inhumane language values family members solely based on their financial contributions, disregarding the emotional support, love, companionship, advice, and guidance they provide."

Vetoing the bill, Governor Hochul emphasized that the Act had the potential of significant unintended consequences, that is, "increased insurance premiums for the vast majority of consumers, as well as risk the financial well-being of [New York's] health care facilities -- most notably, for public hospitals that serve disadvantaged communities."

Governor Hochul expressed her willingness in the veto memo to consider future legislation to amend the wrongful death statute. The third time's the charm, so expect the Legislature the pass another bill either this term or in the near future. 

 

 

New York Appellate Division, Third Judicial Department Addresses Level of Specificity Necessary for a Disclaimer of Coverage for Bodily Injury Arising Out of an Accident - Pt. 1

The Appellate Division, Third Department recently addressed in Bahnuk v Countryway Ins. Co. the level of specificity necessary when an insurer seeks to disclaim coverage for bodily injury arising out of an accident. The Court held that the insurer must provide written notice of the disclaimer to both its insured and the injured party, and the notice must indicate with "a high degree of specificity...the ground or grounds on which the disclaimer is predicated."

The Bahnuk case concerns a personal-injury case where an emergency medical technician filed a lawsuit against the property owner after sustaining injuries at the property. The technician also sent a copy of the complaint to the insurance company (the defendant) that provided homeowner's insurance for the property.

The insurance company disclaimed coverage. By way of a detailed, six-page letter to the property owner, the defendant insurer advised that it was disclaiming coverage and refered to the policy exclusions upon which it was relying. That is, the defendant insurer explained that the property did not meet the definitions of "residence premises" or "insured location" as set forth in the policy, and further stated that the circumstances also fell within the exclusion pertaining to incidents arising out of a business on the premises. In that letter, the defendant insurer provided additional information as to why these exclusions applied under the circumstances.

The defendant insurer wrote separately with the injured plaintiff, stating in one sentence that there was no coverage available for his claim because the property did not constitute an "insured location" as defined by the policy. After the the plaintiff's attorney disputed the defendant insurer's position, the defendant insurer followed up with a second letter indicating only that coverage was excluded "based upon the circumstances of the loss and the policy language." The Third Department noted that the term "insured location" "carries eight distinct definitions" under the applicable policy.

In the absence of a defense provided by the defendant insurer, the property owner defended the property owner's lawsuit with her own attorney (rather than one provided by the insurer). During the course of the litigation between the plaintiff (injured party) and the property owner, the parties agreed that the property owner would sign a confession of judgment for $100,000 — the limit of the property owner's policy with the defendant insurer — in exchange for the plaintiff's agreement not to execute the judgment against the property owner but, instead, to pursue a claim against the defendant insurer under Insurance Law § 3420 (a) (2).

The plaintiff commenced the action against the defendant insurer, seeking satisfaction of the $100,000 judgment. Following discovery, the parties each moved for summary judgment, and Supreme Court denied both motions. In so doing, the court held that the plaintiff had demonstrated, as a matter of law, that the defendant insurer failed to provide him with adequate notice of the bases for the disclaimer of coverage, such that the defendant was precluded from relying on those policy exclusions.

The Appellate Division concluded that Supreme Court properly determned that the defendant insurer's notice of disclaimer to the plaintiff was insufficient. Quoting Ability Transmission, Inc. v. John's Transmission, Inc., the Appellate Division stated that when an insurer seeks to disclaim coverage for bodily injury arising out of an accident, it must provide written notice of the disclaimer to both its insured and the injured party, and the notice must indicate with " 'a high degree of specificity . . . the ground or grounds on which the disclaimer is predicated.' " The Ability Court quoted the well-settled Court of Appeals opinion General Acc. Ins. Grp. v. Cirucci, which is a cornerstone case regarding disclaimer letters for bodily injury arising out of an accident. Quoting Cirucci, the Appellate Division in Bahnuk Court wrote, "Absent such specific notice, a claimant might have difficulty assessing whether the insurer will be able to disclaim successfully[, and this] uncertainty could prejudice the claimant's ability to ultimately obtain recovery." 

As far as disclaimer letters go, the Bahnuk opinion does not offer any surprises. The holding is one more reminder to injured parties, insureds, and insurers to consider whether the language of the disclaimer letter has a level of specificity that exposes the insurer to a challenged disclaimer. If not, the insurer loses those disclaimer grounds in an insurance coverage lawsuit.

In a second part to this post, I will discuss the procedural/strategic thinking the plaintiff and the property owner took to protect themselves. 

Image credit to Nick Youngson.

New York's Justice for Injured Workers Act - New York Workers' Compensation Law

New York Governor Kathy Hochul signed a bill at the end of 2022 that impacts workers’ compensation and personal-injury lawsuits in New York. “The Justice for Injured Workers Act” adds a new section of New York’s Workers Compensation Law that bars a court or other forum from granting preclusive or collateral estoppel effect to decisions by the Workers’ Compensation Board in any other action or proceeding. The Act will impact construction-site/Labor Law personal-injury lawsuits.

Consider a litigant who claims he was injured at a construction site as an employee of a concrete subcontractor. The litigant claims he fell from a height because he was not provided with appropriate safety devices. The subcontractor has no record of the litigant’s employment or his presence at the jobsite, and has no record or report of the claimed accident. The Workers’ Compensation Board determines in the litigant’s workers’ compensation claim that he was not the subcontractor’s employee and was not present at the jobsite.

Prior to the Act, the owner, general contractor, or employer could argue in the litigant’s personal-injury action (separate from the workers’ compensation claim) that the Board’s findings precluded the litigant from arguing he was the subcontractor’s employee and was injured at the jobsite. The Act now bars a court from granting preclusive effect to the Board’s decisions except on a determination of whether there was an employer/employee relationship.

The Act cuts both ways for the plaintiffs’ and defense bar. The Act’s stated intent was to protect workers and the “no fault” nature of workers’ compensation claims, thereby favoring plaintiffs in personal-injury actions. The Act’s justification notes the “lightning-fast administrative hearings before a Worker’s Compensation Law Judge” were designed to provide quick and consistent benefits for injured workers. It also notes that the hearings “sacrifice[d]” basic procedures and evidentiary rules of  trials “to swiftly decide the claims.” Thus, the Act seeks to protect workers from having less-formal, quick administrative determinations impinge on a workers personal-injury action. As opposed to workers’ compensation claims, personal-injury actions abide by rules of evidence and allow for discovery to flesh out the issues.

The glass is half full for the defense bar, however. The Act now prevents alleged injured workers from arguing in their personal-injury lawsuits that the Board’s determination on whether the work-related accident happened or how it happened precludes the defense from proffering evidence to demonstrate otherwise. The Act’s unintended effect benefits the defense bar in the construction litigation realm, where there are frequent fraudulent claims of unwitnessed, gravity-related accidents. The plaintiffs’ bar can no longer argue that the Board’s findings on the foregoing issues are final.

The Act certainly gives the plaintiffs’ bar a boon. A plaintiff can now argue that the Board’s determination on the existence of an employer/employee relationship precludes the Supreme Court from ruling on the same issue in the plaintiff’s personal-injury lawsuit. Considering the large number of fraudulent construction-site claims in New York, many of them are questionable on the employer/employee relationship issue. In that respect, the Act helps the plaintiffs’ bar.

The Act’s impact on personal-injury lawsuits is one more reason for the insured (owner, general contractor, and subcontractors), the general liability defense attorney, and the workers’ compensation defense attorney to work closely with each other at the early stages of the litigant’s claim. The defense can stem a fraudulent claim at its inception by proving to the Board that there was no employer/employee relationship between the litigant who is claiming injuries at a construction site and the general contractor or subcontractor. Considering the plaintiff-friendly protections under Labor Law §§ 240 (1) and 241 (6), disputing every meritorious issue counts.

The Act is effective immediately.

Photo credit: Arne Hoel / World Bank (license)

New York Court of Appeals Answers Two Certified Questions on General Business Law section 349 (GBL sec 349)

The New York Court of Appeals answered the following two certified questions from the US Court of Appeals for the Third Circuit concerning General Business Law sec. 349 in Plavin v Group Health Inc.:

"Where a contract of insurance is negotiated by sophisticated parties such as the City of New York and an insurance company, and where hundreds of thousands of City employees and retirees are third-party beneficiaries of that contract, and where the insurance company's policy created pursuant to the contract is one of several health insurance policies from which employees and retirees can select, has the insurance company engaged in "consumer-oriented conduct" under the GBL when:

(1) The insurance company drafts summary plan information that allegedly contains materially misleading misrepresentations and/or omissions about the coverage and benefits of the insurance policy and sends these summary materials to the City, and the City does not check or edit these materials before sending them on to the City employees and retirees; or

(2) The insurance company directs City employees and retirees to information on the insurance company's website that allegedly contains materially misleading misrepresentations and/or omissions about the coverage benefits of the insurance policy?"

The Court answered both certified questions in the affirmative. The decision is helpful because the Court analyzes important General Business Law sec. 349 precedent -- e.g., Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, Gaidon v Guardian Life Ins. Co. of Am., and New York Univ. v Continental Ins. Co. (NYU). It is also helpful because the Court explains the boundaries of the first allegation a plaintiff must set forth to state a claim under GBL 349 -- i.e., a defendant has engaged in consumer-oriented conduct.

The plaintiff alleged that the defendant, a health insurance company, made materially misleading misrepresentations to City of New York employees and retirees about the terms of its insurance plan to induce them to select its plan over several other health insurance plans that were available to more than 600,000 current and former City employees. The alleged deception was targeted to a defined group of consumers -- the current and former City employees -- and was not consumer-oriented conduct to all members of the public. The Court concluded that the statute does not require deceptive conduct directed to all members of the public and noted that its precedent does not imply that such requirement exists. 

The Court also discussed the difference between a private contract dispute and a dispute arising from a contract negotiated by sophisticated entities that impacts third-party beneficiaries. It recognized that neither the plaintiff nor the other hundreds of thousands of employees and retirees participated in the contract negotiations between the defendant and the City of New York. In concluding that the City employees and retirees were exposed to marketing resembling a traditional consumer sales environment GBL sec. 349 contemplates, the Court noted that the contract negotiation followed an open enrollment period that exposed the City employees and retirees to misleading information about insurance benefits and coverage summaries. The Court's conclusion places the conduct in a different category than single-shot transactions like, for example, insurance coverage disputes between insurer and insured (see New York Univ.). 

The Court's decision in Plavin adds helpful guidance on allegations pursuant to GBL sec. 349, a statute that plaintiffs frequently try to expand and defendants frequently try to narrow in their respective lawsuits. 

Finally, it is also nice to see a court other than the Second Circuit certify questions to the New York Court of Appeals.

The New York Court of Appeals Grants Leave Concerning The Proper Analysis for Causation As To a Negligence Claim of Failing to Procure Sufficient Policy Limits for Business Interruption Coverage

The Court of Appeals' granted leave to appeal in Voss v The Netherlands Ins. Co., 98 AD3d 1325 (4th Dept. 2012) (Motion for leave to appeal granted on Feb. 14, 2013). Here is a summary of the matter concerning business interruption insurance.

Does an insured’s business need to resume operations in order to receive payment of insurance policy benefits for business interruption coverage? Justice Carni of New York’s Fourth Judicial Department disagreed with the Majority in Voss on this issue. 

The plaintiff commenced an action against CH Insurance Brokerage Services, Co. alleging, among other things, negligence and breach of contract in connection with business interruption coverage that CH Insurance obtained for plaintiff. The parties stipulated that The Netherlands Insurance Company was substituted for CH Insurance after the plaintiff commenced the action.

 The matter concerns a commercial building that housed the corporate plaintiffs and a corporate tenant. The building was damaged on three separate occasions in connection with water leaking from the roof. The leak caused a portion of the roof to collapse on two of those occasion. Notably, the first two incidents occurred while the limit for business interruption coverage was $75,000. The third incident occurred after the policy was renewed and the coverage for business interruption had been reduced to $30,000.

The plaintiffs alleged in their amended complaint and supplemental bill of particulars that the defendant failed to provide adequate coverage and was negligent in reducing the coverage. The issue that the New York Court of Appeals will most likely address is whether the proximate cause analysis concerning the failure to provide adequate business interruption coverage hinges on whether the business would resume operations if timely paid the full but allegedly insufficient insurance coverage limits.

The Majority concluded that the defendant’s negligence in failing to obtain sufficient business interruption coverage for the plaintiffs was not the proximate cause of their damages as a matter of law. Relying on the plaintiff’s testimony that, if the policy limit of$75,000 had been pain in a timely manner for each of the two incidents, the plaintiff corporation would have been able to remain operational and continue its business operations. As such, the Majority’s conclusion hinged on whether the plaintiff actually resumed operations.

Justice Carni was the lone dissenter on this issue. He concluded that whether the plaintiffs actually resumed operations is irrelevant to the proximate cause analysis concerning the plaintiffs claim that the defendant failed to procure adequate business interruption coverage limits. Justice Carni concluded that whether the defendant was negligent in failing to procure adequate insurance coverage is measured by the amount of the plaintiffs’ business income losses when compared to the policy limits determine and procured by the defendant broker. He also concluded that the defendant had failed to establish that the policy limits were sufficient to cover the amount of the plaintiffs’ business income losses during the relevant policy periods.

The New York Court of Appeals’ resolution of this appeal will impact the insurance industry writing business interruption coverage in New York. Moreover, the Court of Appeals might address and further explain the boundaries of a “special relationship” between an insurance broker and the insured.

Serious Injury Part II – New York Court of Appeals Hears Oral Arguments on Findings of Limitations of Range of Motion Contemporaneous With the Subject Motor-Vehicle Accident

Travis v. Batchi (Motion for leave to appeal granted on February 10, 2011) 75 A.D.3d 411 (1st Dep’t 2010)

 This appeal from the First Department addresses the same issue of contemporaneous findings. The Court noted that the examination records of the plaintiff’s own treating physician/expert fatally hindered the plaintiff’s opposition to summary judgment on a “serious injury” threshold motion. The physician submitted in opposition to the summary judgment motion that provided that the plaintiff sustained a permanent injury to the knee as a result of the accident. He prepared this affirmation a few years after the accident. However, his examination records from a few weeks and a few months after the accident indicated that the plaintiff had full strength and range of motion in the knee. The plaintiff also had full strength and range of motion in the knee after a right knee anterior cruciate ligament reconstruction, partial medial and lateral meniscectomy and chondroplasty.

 The Court reasoned that, absent some explanation from the physician, his negative findings cannot be reconciled with the physician’s affirmation submitted in opposition to the motion, prepared a few years after the accident, that the plaintiff sustained a permanent injury to the knee as a result of the accident.

 This appeal appears to differ from Adler v. Bayer because, here, the plaintiff’s physician indicated in the medical records that the plaintiff had full range of motion weeks and months after the accident.  

 

Serious Injury – New York Court of Appeals Hears Oral Arguments on Findings of Limitations of Range of Motion Contemporaneous With the Subject Motor-Vehicle Accident

 Adler v. Bayer (Motion for leave to appeal granted on Jan 18, 2011) 2010 N.Y. Slip Op. 07300 (Oct. 12, 2010)

The Second Department has developed a line of analysis regarding demonstrating a prima facie case of “serious injury” pursuant to Insurance Law § 5102(d) and the Court of Appeals’ decision in Toure v. Avis Rent A Car Sys., Inc.

The line of case law requires that a plaintiff demonstrate limitations of range of motion contemporaneous with the subject motor-vehicle accident.

 The plaintiff in Adler challenges this line of reasoning. The plaintiff in Adler was injured in a motor-vehicle accident when the vehicle in which he was a passenger went off the road and struck a tree. He sustained injuries to his back, needs, eyes, and head. The plaintiff’s treating physician – a physical medicine and rehabilitation physician – verified the plaintiff’s injuries to his right shoulder, right wrist, both knees, right ankle, and cervical and lumbar spine through different tests. However, he did not record the plaintiff’s range of motion limitations because he opined that doing so would be “unreliable”.  In several follow-up examinations, the plaintiff’s treating physician determined that the plaintiff’s examinations were no better and, therefore, he could not record range of motion limitations. Approximately four years after the accident, the plaintiff’s treating physician quantified the plaintiff’s range of motion limitations.  At trial, the treating physician opined, within a reasonable degree of medical certainty, that the plaintiff’s injuries constituted a “permanent partial disability and . . . had impairment in multiple joints and . . . has alterations on examination of different parts of his body.”

The Second Department reversed a judgment in favor of the plaintiff after a jury trial and granted the defendants’ motion for a directed verdict.  In a terse, unrevealing decision, the Court reasoned that “[t]he plaintiff was required to show the duration of the alleged injury and the extent or degree of the limitations associated therewith . . ., which he failed to do.”  By citing Ferraro v. Ridge Car Serv., the Court’s reasoning appears to based on the plaintiff’s failure to provide contemporaneous findings of range-of-motion limitations in his spine.

 The novel question presented is whether Section 5102 and the Court of Appeals’ case law interpreting the “serious injury” threshold require such a showing.  The plaintiff argued in his motion for leave to appeal that such a showing punishes a plaintiff for first concentrating on treatment and not the litigation process.

 Notably, the Court of Appeals will likely hear this appeal with another appeal on the same issue – Perl v. Meher, 74 A.D.3d 930 (2d Dep’t 2010).  Also see Travis v. Batchi tomorrow.

 

New York Insurance Law – New York Court of Appeals Will Hear Appeal on Notice to Insurer Concerning “Claims Made” Insurance Policy

McCabe v. St. Paul Fire & Marine Ins. Co. (Motion for leave to appeal granted on May 3, 2011)

Has the Fourth Department determined that an insurer regarding a “claims made” insurance policy need not receive a report of a claim during the policy period or extended reporting period, as long as there is a reasonable excuse for the late report outside of those time periods? The Fourth Department’s decision in McCabe raises that exact point.

In McCabe, the plaintiffs Amy and Thomas McCabe were the owners of a residence that was totally destroyed by fire on December 30, 2003. They retained attorney David E. Fretz to handle their fire loss claim under their homeowner’s policy. During the course of that representation, Fretz began to suffer from severe depression and thus became unable to handle his own and the plaintiffs’ business and legal affairs. As a consequence of Fretz’s neglect of their insurance claim, the plaintiffs lost their ability to recover on that claim.

The plaintiffs commenced a declaratory judgment action seeking a declaration that Fretz’s professional liability insurer, the defendant St. Paul Fire & Marine Ins., is obligated to indemnify Fretz in the underlying legal malpractice action the plaintiffs brought against Fretz. Fretz’s malpractice insurance policy was a “claims made” professional liability insurance policy that required that any claims must have been reported to the insurer within the policy period and the extended reporting period, which expired March 15, 2007.

The insurer first learned of the plaintiffs’ claim against Fretz on June 22, 2007, approximately three months after the extended reporting period for the “claims made” policy had expired. It disclaimed coverage for Fretz based on the untimely notification. The plaintiffs had obtained default against Fretz in the underlying action and, following an inquest, Supreme Court awarded the plaintiffs $226,000 in compensatory damages. The commenced the declaratory judgment action against the insurer in an attempt to recover the compensatory award they received in the underlying action.

 The Fourth Department concluded that the plaintiffs’ claim was not invalidated even though they failed to give notice to Fretz’s insurer during the policy period or extended reporting period; the Court noted that the plaintiffs gave the insurer notice of their claim against Fretz as soon as reasonably possible. The Court rejected the insurer’s contention that Insurance Law sections (a)(3) and (4) included exceptions for claims-made insurance policies. Those sections of the Insurance Law concern what is deemed notice and whether giving that notice as soon as reasonably possible suffices under insurance policy notice conditions. They generally apply to occurrence-based insurance policies, not claims made policies. 

The Court of Appeals will decide whether notifying an insurer as soon as reasonably possible within the context of a claims-made policy is sufficient. If the Court affirms the Fourth Department’s holding, insurers of claims made policies will not have the same closure that they once had once the reporting period and extended reporting periods expired.

 

New York Court of Appeals Revisits Sole Proximate Cause Defense

With the last few Labor Law decisions from the New York Court of Appeals (read post here and here) acting as a backdrop, I've heard defense attorneys complain that the Court has cut back the sole proximate cause defense in its recent decision Gallagher v. New York Post.  The decision in Gallagher seems less to do about the Court retracting from its prior decisions on this defense and more about the proof that was adduced on summary judgment (see prior post).  

The plaintiff in Gallagher was injured when he fell into an opening decking floor after the blade of a circular cut-off saw he was using became bound up in the decking that he was cutting.  At his deposition, the assistant project manager at the work site testified that "safety harnesses with shock-absorbing lanyards" and "retracting lanyards" were available for use.  He could not say whether any of those safety devices were in the area from which the plaintiff fell.  The assistant project manager also testified that, at the time of the accident, there was a "standing order," issued by the project manager to the project foremen, that the ironworkers should "have a harness on and be tied off".  He could not recall whether these instructions had been given to the ironworkers.

The plaintiff and his wife moved for partial summary judgment on his Labor Law sec. 240(1) claim, pointing to the affidavit of his co-worker who stated that "there were no safety lines, lifelines or stanchions in the work area, and [he and the plaintiff] were not provided with safety belts, harnesses or yo-yos in order to tie off."  The defendant owner relied on the assistant project manager's deposition testimony that safety devices were available for use at the project site; it also relied on the "standing order".

In further support of their motion, the plaintiff adduced an affidavit signed by the injured plaintiff's foreman.  The foreman would have been the person responsible for relaying safety instructions to the ironworkers.  The foreman stated that the injured plaintiff had not been provide with a safety harness or lifeline, nor were any stanchions or safety cables in the accident area at the time of the accident."

The Court granted the plaintiffs' partial summary judgment motion, holding that the owner's evidence did not raise a question of fact that the injured plaintiff knew of the availability of the safety devices and unreasonably chose not to use them.  The Court pointed out that there was no evidence that the injured plaintiff knew where to find the safety devices that the owner argued was available.  

The Court also pointed out that there was no evidence that the injured plaintiff was expected to use the safety devices.  The owner failed to proffer evidence demonstrating that the injured plaintiff had been told to use the safety devices.  Although the owner pointed to the "standing order," there was no evidence that anyone conveyed the order to the ironworkers.  The Court also relied on the foreman's affidavit to demonstrate the injured plaintiff had not been provided with the requisite safety devices.  The Court noted that the foreman's affidavit was consistent with the conclusion that the injured plaintiff was ignorant of the availability of safety devices or with his knowledge thereof.

The Court distinguished its prior holdings in Montgomery v. Federal Express Corp. and Robinson v. E. Med. Ctr. LP.  The Court noted that both cases stand for the same proposition: Liability under sec. 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing the accident.  The Court concluded that the Gallagher facts did not present such a case.

Gallagher defines the outer boundaries of the prior sole proximate cause cases; the decision appears less a chipping away of the sole proximate cause defense and more an explanation of what proof a defendant must proffer to apply the defense successfully.

Landlord Possibly Liable for Tenant's Dog Who Bit Plaintiff's Child Off the Landlord's Property

The Appellate Division, Third Department in Champ-Doran v. Lewis recently held that an issue of fact existed regarding the defendant landlord's liability for injuries the plaintiff's child sustained.  The plaintiff's child was attacked by one of two dogs owned by the defendant's tenants on the plaintiff's front own front porch.  The plaintiff stated in his bill of particulars that the defendant landlord was aware of the vicious propensities of his tenant's dogs; he also alleged that the defendant tenant had actual and constructive notice that the fence surrounding the landlord's property was "broken and otherwise defective."

 Supreme Court denied the defendant landlord's summary judgment motion.  The defendant landlord argued that he was not liable because the incident did not occur on his property.

The Third Department agreed with Supreme Court, noting that the defendant had knowledge of the dog's vicious propensities and had an adequate opportunity to control the premises and confine the dogs.  The defendant admitted at his deposition that soon after he rented the property to the tenant he became aware of the dogs and received a complaint from a neighbor about barking.  He also admitted that he knew of prior occasions where the dogs escaped the property and told the tenant that the dogs had to go.  Affidavits from neighbors demonstrated that they complained to the defendant about the dogs and their vicious propensities.

The Court recognized that generally a landlord does not owe a duty of care to persons injured from a tenant's dog where the injury occurs off the landlord's property.  The Court concluded, however, that liability can nevertheless be imposed where it is established that the defendant knew of the dog's presence on the premises and its vicious propensities, and the defendant had control of the premises or otherwise had the ability to remove or confine the dog.