Dog bites.

It is well settled that, to recover in strict liability for a dog bite, plaintiff must show that the dog had vicious propensities and that the owner knew or should have known of them. The Second Department specified the requisite showing, in Galgano v. Town of N. Hempstead, which was decided on June 12, 2007. "Evidence tending to demonstrate a dog's vicious propensities includes that of a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm." In finding that plaintiff had not made the proper showing, the court noted that "[t]he fact that the subject dog was brought to the animal shelter because another dog in the owner's household did not get along with it is not indicative that it had vicious propensities."

Read it, Sam.

Plaintiff could have (and should have) stopped reading on page one, or so said the First Department, in Webster v. New York Life Ins. & Annuity Corp., which was decided on June 12, 2007. "The first page of the annuity policy states that the accumulation value is not guaranteed with respect to the Separate Account. The Policy Data Page recites only that the guaranteed interest rate will be 3%. It does not state that an interest rate is guaranteed for each of the three investment options, the Separate Account, the Cash Management Fixed Account and the Dollar Cost Averaging Program. Interest is not provided in the Separate Account. The Separate Account consists of various stock market mutual funds, an investment vehicle not typically associated with the payment of interest. Rather, the policy only provides a rate of return, based on interest, in the sections dealing with the latter two investment options. With respect to each of these two options, the policy expressly states that the interest rate will never be less than the minimum guaranteed rate set forth on the Policy Data page. Consistent with the first page of the policy, no such language appears in the section dealing with the Separate Account. The average purchaser thus could not expect the policy, read as a whole, to guarantee a rate of return for investment in the Separate Account."

Plaintiffs secured a mortgage loan from defendant and paid a number of settlement charges, to include a $100 document preparation fee. They then filed a putative class action suit claiming that the document preparation was tantamount to the unauthorized practice of law, and, therefore, in violation of Judiciary Law § 478, § 484, and § 495(3). The First Department disagreed, in Fuchs v. Wachovia Mtge. Corp., which was decided on June 5, 2007. The court noted that the document in question required only that defendant fill in the name and address of the borrower, the date of the loan, the principal amount loaned, the interest rate, and the monthly payment. Plaintiffs had their own attorney at the closing and never claimed that they had received any legal advice from defendant.

Home is where your taxes are paid.

Tenant prevailed in a holdover proceeding in which the issue was whether her primary residence was her city apartment or her upstate house. In 310 E. 23rd LLC v. Colvin, which was decided on June 7, 2007, the First Department found that tenant had a "substantial physical nexus" to the apartment, and determined that her house upstate is a second residence which she uses on weekends, holidays and vacations. The court noted, among other things, that tenant's state tax returns specify that tenant is a full-year resident of New York City, and show that she paid city tax on all her income, even though those same returns list the upstate residence as her home address.

Plaintiff sued defendant-hospital, claiming that her surgery should have been postponed since she had lost one-quarter of her body weight prior to her admission. The First Department dismissed the complaint, in Garson v. Beth Israel Medical Center, which was decided on June 7, 2007.

The court noted that, as a matter of law, a hospital is not liable for the acts of a private attending physician who is retained by a patient, and is not liable when its employees follow that physician's orders, unless the orders are clearly contraindicated by normal practice.

Here, the court found plaintiff's expert's affidavit lacking, in that it did not evaluate plaintiff's weight loss against her referring doctors' opinion that her overall deteriorating condition, including her weight loss, compelled the surgery. In addition, the court rejected as speculative the expert's conclusion that, with time, plaintiff would have regained the weight and would have better tolerated the surgery.

A walk in the park. Not.

While walking over a flower bed in defendant's park, plaintiff tripped and fell on an elevation differential adjacent to a stone wall which separated the flower bed and the surrounding grassy area. Plaintiff sued, but the Second Department granted defendant's summary judgment motion, in Errett v. Great Neck Park Dist., which was decided on May 29, 2007. The court noted that a property owner is under no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous.

Here, the court found that "the terraced nature of the park, including its flower beds and stone walls, did not create an inherently dangerous condition. Any elevation difference existing between the two sides of the stone wall was readily observable to those employing the reasonable use of their senses, and did not present an undue risk of harm."

The court also rejected plaintiff's affidavit in which she said that the accident was caused by inadequate illumination, since she previously had admitted that she had no difficulty in seeing the flower bed or the garden prior to the accident.

These are taxing times.

A solo practitioner deducted the following from his New York City unincorporated business gross income: (1) one-half of his federal self-employment tax; (2) the cost of his self-employed health insurance premiums; and (3) his contributions to a defined benefit pension plan. The First Department rejected the deductions, in Matter of Horowitz v. New York City Tax Appeals Trib., which was decided on June 5, 2007.

The court said that a tax deduction is not a matter of right but a function of what it called "legislative grace," and so the burden is on the taxpayer to establish entitlement to the proposed deduction. Here, the court said that the attorney did not meet his burden. "The subject payments, although deductible for federal income tax purposes, can be reasonably construed as remuneration for services for petitioner's benefit, and, as such, are not deductible under Administrative Code of City of NY § 11-507(3)."

There was a lengthy and vigorous dissent which argued that "[a]s a matter of law, the deductions are not payments that are income to petitioner and are not in the nature of compensation for services he performed." The dissent concluded that, under the majority's rationale, "every payment by a sole proprietorship to a third party would be disallowed under § 11-507(3)," and that is unreasonable.

No strikes.

The striking of an answer, pursuant to CPLR 3126, is a drastic remedy which requires a clear showing that the failure to comply with a discovery demand was willful and contumacious, according to the Second Department, in Denoyelles v. Gallagher, which was decided on May 29, 2007. The court said that, similarly, under the common-law doctrine of spoliation, a pleading may be struck only when, because of the negligent or intentional destruction of key evidence, the non-responsible party is unable to prove its claim or defense. Here, the court found no evidence that the so-called modification of the defendant's computer records was done in bad faith, or that, because of the modification, the plaintiff was left with no appropriate means of proving its claim.

Plaintiff and defendant executed an employment agreement which said, among other things, that plaintiff could be terminated only upon his "absolute failure to perform the contract's specification." Four months into the work, plaintiff was terminated. The First Department said that the firing was improper, in Mitchell v. Fidelity Borrowing, which was decided on May 31, 2007. The court noted that, while plaintiff was employed, defendant spent more than $116,000 for marketing and advertising, as plaintiff had directed. Defendant also paid plaintiff $33,000 in salary and bonuses. The court concluded, "There is no reasonable view of the evidence that would establish that plaintiff absolutely failed to perform under the employment contract." The court ordered defendant to pay plaintiff's salary for the entire two years of the consulting agreement.

Show me the paper, or go home.

A home improvement contractor who does not have and plead a valid license as required by relevant local regulations is out of luck when it comes to recovering damages for an alleged breach of a construction contract, or so said the Second Department, in Al-Sullami v. Broskie, which was decided on May 29, 2007. In addition, said the court, the contractor may not recover on the basis of quantum meruit either.

In a personal injury matter, defendant submitted a nonparty witness' affidavit which raised a triable issue of fact regarding plaintiff's comparative negligence. Plaintiff timely objected to the affidavit saying that it did not comply with the statute and challenging the notary's authority. The First Department said that such defects can be corrected nunc pro tunc, in Moccia v. Carrier Car Rental, Inc., which was decided on May 29, 2007. The court noted that defedant's attorney had submitted the original affidavit, bearing a notary seal, and along with proper certification.