NY DIVORCE - SOLELY TITLED MARITAL RESIDENCE ORDERED SOLD PENDENTE LITE

FR v. AR, 2025 NY Slip Op 50549 - Nassau Co. Supreme Court 2025:

"The salient facts of this case give rise to an ever-evolving issue: since the Court of Appeals decision Kahn v. Kahn, infra, what authority, if any, does the Court have to order the pendente lite sale of the marital residence? Nearly fifty years ago, prior to the enactment of the equitable distribution law,^[1] the Court of Appeals held that unless a court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation or by declaring a void marriage a nullity, it has no authority to order the sale of a marital home owned by the parties as tenants by the entirety. Kahn v. Kahn, 43 NY2d 203 (1977). The following facts are undisputed. These parties married on xxxx, 2007. The parties' "marital residence", located in Bethpage, New York, was acquired after the parties' marriage and prior to the commencement of this action. Both parties' respective sworn Statement(s) of Net Worth confirm that title to the marital residence is held solely in the name of the Plaintiff. The Plaintiff commenced this matrimonial action against the Defendant on May 11, 2023. Then, after the Plaintiff commenced this action, he ceased paying the mortgage on the marital residence. The bank then commenced a foreclosure action March 28, 2024. The Defendant has now, pendente lite, made an application to sell the marital residence. But the facts of this case, more particularly, provide this Court with an opportunity to address a variant of the facts of Kahn. In Kahn, the parties held title to the marital residence as tenants by the entirety. Kahn, 43 NY2d at 206. In this action, title to the marital residence is held solely by the Plaintiff. The principal issue on this application is whether or not the Court has the authority, pendente lite, to order the sale of a solely titled marital residence? Since the Court finds this matter distinguishable from Kahn, the Court answers that question in the affirmative, and orders the immediate sale of the marital residence.

PRELIMINARY STATEMENT

The Defendant moves by Order to Show Cause dated January 16, 2025 (Motion Sequence No.: 001) seeking an Order: (1) Citing the Plaintiff as and for his willful contempt of Court by virtue of his intentional failure and/or willful refusal to comply with the terms and provisions of the Preliminary Conference Order, dated February 6, 2024 by virtue of his willful failure to and/or refusal to provide financial discovery; (2) Citing the Plaintiff as and for his willful contempt of Court by virtue of his intentional failure and/or willful refusal to comply with the terms and provisions of the Order Appointing Real Estate Appraiser, dated June 6, 2024, by virtue of his willful failure to and/or refusal to pay Bert Nelson & Associates to have the marital residence appraised; (3) Pursuant to Judiciary Law § 753 and § 756, punishing Plaintiff, FR, for contempt of court by sentencing him to six (6) months incarceration for his willful violation of the Preliminary Conference Order, dated February 6, 2024 and the Order Appointing Real Estate Appraiser, dated June 6, 2024; (4) Upon such a finding of civil contempt, giving Plaintiff, FR, leave to purge his contempt within ten (10) days of an order of this Court, and upon the Plaintiff's failure to purge his contempt, directing the Plaintiff to appear for sentencing and issue an Order of Commitment to Civil Jail for Contempt, directing that he be incarcerated for a period of six (6) months or such other duration of time which the Court finds to be appropriate; and/or, in the alternative (5) Pursuant to CPLR § 3124, compelling Plaintiff to comply with discovery responses pertaining to the Preliminary Conference Order, dated February 6, 2024 and directing the Plaintiff to produce within (20) days from the date of the determination of this application all of the documents required to be produced pursuant to said Preliminary Conference Order; (6) Pursuant to CPLR § 3126, in the event that the Plaintiff fails to comply with the directives of the Court concerning financial disclosure, that the issues which the information is relevant be resolved in accordance with the claims of the Defendant and precluding the Plaintiff from offering any documentary evidence at trial regarding his finances as well as striking his complaint; (7) Directing Plaintiff to immediately bring the mortgage current or, in the alternative; (8) Directing the immediate sale of the marital residence, located at xxxx, Bethpage, NY 11714, pendente lite, and upon the sale of same, directing that the net proceeds, with the exception of $50,000 which is to be dispersed to Defendant, be held in escrow pending determination of Equitable Distribution; (9) Pursuant to CPLR § 5106, appointing the Plaintiff, or an individual chosen by the Court, as Receiver to effectuate the sale of the marital residence in order to preserve a marital asset from being lost through foreclosure, with the Receiver to be paid from the Plaintiff's share of the net proceeds, if any from the sale of the marital residence; (10) Awarding Defendant such other and further relief as to this Court seems just, proper and equitable..

BACKGROUND

The parties were married on xxxx, 2007. The parties have one (1) child, Francisco, born xxxx, 2008. The parties appeared for a Preliminary Conference on February 6, 2024, at which time the parties executed, and this Court so ordered, the Preliminary Conference Stipulation & Order On February 6, 2024, this Court issued an Order Appointing Attorney for the Child whereby Theresa F. Kloeckner, Esq., was appointed as attorney for the subject child (hereinafter referred to as the "AFC"). The matter was calendared for a compliance conference on March 4, 2024 at 11:30 a.m. The Plaintiff failed to appear at the compliance conference, and the Court thereupon issued an Order to Appear directing the parties to appear for a conference on April 10, 2024. On June 5, 2024, this Court issued an Order Appointing Real Estate Appraiser whereby it appointed Jed Nelson Associate to appraise the premises located at xxxx, Bethpage, New York (hereinafter referred to as the "Bethpage Residence"). On August 5, 2024, this Court issued a Short Form Order directing the Plaintiff to serve and file a sworn Statement of Net Worth within seven (7) days thereof. On August 5, 2024, this Court issued a Certification Order.

THE PARTIES' CONTENTIONS

Defendant's Contentions:

The Defendant sets forth that the parties purchased the Bethpage Residence in August of 2011. She sets forth that since purchasing the home, the Plaintiff always paid the mortgage thereon until July of 2023, when he stopped making those mortgage payments, notwithstanding that he earns at least $165,000.00 per annum. She sets forth that the Plaintiff is gainfully employed by the XXXX. She sets forth that she is employed by the XXXX $54,308.04 per annum. She sets forth that the Bethpage Residence, as a result of the Plaintiff's cessation of the mortgage payments, has been placed into foreclosure. She sets forth that the Plaintiff has failed to appear for two court conferences during this matrimonial action. She argues that the Plaintiff should be held in contempt of court because he has failed to pay for the real estate appraisal and has failed to provide discovery pursuant to the Preliminary Conference Stipulation & Order. She argues that the Plaintiff should be precluded from offering evidence at trial because the Plaintiff has not provided on sheet of paper in discovery notwithstanding the fact that, within forty-five days of the Preliminary Conference, he was to provide three years of tax returns, credit card statements, checking and savings account statements, brokerage account statements, pension and retirement account statements, and other documents. She argues that the Bethpage Residence should be sold because it was not until two months after he commenced this divorce action when he ceased paying the mortgage, despite earning $166,000.00 annually and being able to take his girlfriend to Aruba and Jamaica. She argues that the Plaintiff takes no financial responsibility. She argues that there is equity in the Bethpage Residence, as the outstanding mortgage is $452,000.00 and the Bethpage Residence is worth more than that sum. She argues that she is seeking to preserve an asset.

Plaintiff's Opposition:

The Plaintiff sets forth that both parties reside in the Bethpage Residence. He sets forth that he has to travel as it relates to his employment, and, therefore, he is not readily available to respond to the Defendant's requests. He argues that in February of 2024 he was a pro se litigant and was unfamiliar with the procedures of divorce litigation. He denies willfully ignoring or refusing to comply with court orders. He sets forth that his Statement of Net Worth — which was filed on August 12, 2024 — contains his W-2 forms from 2021, 2022 and 2023, and a recently quarterly account statement. He sets forth that he paid 100% of the appraisal fee for the appraisal of the Bethpage Residence and the appraisal was completed. He sets forth that he recently obtained his PenFed statements for the period from December 16, 2021 through December 16, 2024. He acknowledges that a foreclosure action was commenced in 2024, but denies willfully avoiding paying the mortgage, as he does not want to lose the home that the parties' child was raised in. He sets forth that he is actively opposing the foreclosure action. He argues that he is unable to bring the mortgage current immediately, and, through the foreclosure action, he is attempting to pursue loss mitigation.

Defendant's Reply:

The Defendant argues that despite the Plaintiff's claim that he was a pro se litigant in February, 2024, he hired his counsel on February 12, 2024, and, since that date, has failed to appear at three of the twelve scheduled court conferences. The Defendant argues that despite producing the PenFed statements, the Plaintiff has still failed to produce mortgage statements, failed to produce credit card statements, and failed to produce most of his retirement account statements. She argues that on May 30, 2023, the Plaintiff took a $38,552.57 net distribution from his Thrift Savings Plan and on June 7, 2023, the Plaintiff withdrew $33,166.63 from his PenFed Credit Union, despite commencing this divorce action on May 11, 2023. The Defendant argues that the Plaintiff's failure to pay the mortgage was willful and undertaken to scare the Plaintiff. The Defendant finally argues that the Plaintiff has failed to produce any documentation that he requested a loan modification or that he has started loss mitigation relief.

DISCUSSION + ANALYSIS

SALE OF MARITAL RESIDENCE

The Defendant seeks the pendente lite sale of the Bethpage Residence.^[2] In Kahn v. Kahn, the Court of Appeals was presented with the following question:

"... whether, in a matrimonial action, a court may order the sale of real property held by the parties as tenants by the entirety, even though the marital relationship has not been legally altered..."

Kahn v. Kahn, 43 NY2d 203 (1977). In answering that question, the Court of Appeals held:

We hold that unless a court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation or by declaring a void marriage a nullity, it has no authority to order the sale of a marital home owned by the parties as tenants by the entirety.

Kahn, 43 NY2d at 210 (emphasis added). See also Delvito v. Delvito, 6 AD3d 487 (2d Dept. 2004) (it is settled that courts have no authority to order the sale of property held by tenants by the entirety without the parties' consent, unless the legal relationship of husband and wife is first altered through judicial intervention); see also Berk v. Berk, 170 AD2d 564 (2d Dept. 1991). To some degree, some courts, while citing the general notion of Kahn, have omitted the reference to "...property owned by the parties as tenants by the entirety..." and simply stated "marital residence". For instance, in Harrilal v. Harrilal, the Second Department wrote that "... [t]he court could not, without the mutual consent of the parties, order the sale of the marital residence..." Harrilal v. Harrilal, 128 AD2d 502 (2d Dept. 1987); see also Mollah v. Mollah, 27 Misc 3d 1231(A) (Supreme Court Queens County 2010) ("... [s]ignificantly though, absent consent of the parties, the court is without authority to direct the sale of marital property prior to judgment..."); see also Kayden v. Kayden, 234 AD2d 345 (2d Dept. 1996) ("... [w]e conclude, however, that prior to some alteration in the legal relationship between the parties, the Supreme Court was without power, absent the consent of the parties, to direct the sale of the marital residence..." One could, conceivably, therefore, interpret Harrilal, supra, Mollah, supra and Kayden, supra, to stand for the notion that any property classified as the parties "marital residence", irrespective of how title is held, could not be sold pendente lite, absent an agreement to the contrary. That's not, however, what Kahn stands for, nor is it what Kahn held. Kahn's holding was strictly limited to property owned by the parties as tenants by the entirety.

The Court finds that it has the authority to direct the pendente lite sale of the marital residence in this matter based upon myriad factors. First, because of how title is held, the Court does not find that it is bound by the holding in Kahn, supra. Here, it is undisputed that title to the Bethpage Residence is held solely in the name of the Plaintiff.^[3] One of the theories in Kahn was that, "... [w]here, however, husband and wife separate without the aid of a judicial decree, they remain one legal person; and, therefore, they continue to own property acquired as tenants by the entirety just as they did prior to their separation..." Kahn, 43 NY2d at 207, 2010. The Court of Appeals reasoned, in part, that "...the legislative history surrounding section 234 indicates clearly that the Legislature did not intend to alter existing substantive property law principles in enacting this section..." Id. at 209. In this action, to the contrary, the Court does not find that it is altering a tenancy by the entirety without altering the status of the parties' as husband and wife, as there is no tenancy by the entirety in the Bethpage Residence to alter. Since the Bethpage Residence is solely titled, the Court finds that it able to distinguish this matter from the holding in Kahn.

Second, the Court has examined the text and spirit of the equitable distribution law, and finds that, given how title is held, DRL § 236B authorizes the Court to sell the Bethpage Residence pendente lite. DRL § 236(B)(5)(c) provides that marital property should be distributed equitably. If the Court is required to equitably distribute marital property, that marital property to be equitably distributed should be in existence at the time of distribution, not merely just in existence at the time of commencement of the action. Put a different way, if an asset with equity such as a house, is in existence at the commencement of this action, it is, in part, incumbent upon the Court to ensure that neither party takes any affirmative action to diminish that equity. Moreover, the Court must consider, when equitably distributing marital property, the probable future financial circumstances of each party (see DRL § 236(B)(5)(c)(9)). If a marital residence is foreclosed upon during a matrimonial action, resulting in either a diminution, or complete loss of, equity, it is a natural consequence that the probable future financial circumstances of the parties will be detrimentally impacted at the time of judgment. Such a result seems illogical. Additionally, the Court must consider, in equitably distributing marital property, the wasteful dissipation of assets by either spouse (see DRL § 236(B)(5)(c)(12)). But why even get to this point? While the matrimonial court may be able to recompense the aggrieved spouse by a money judgment, often times, such judgments are partially, or totally, uncollectible.

Third, the Court of Appeals, in 1993, wrote in Kaplan v. Kaplan that" ... [t]he revolutionary enactment of the Equitable Distribution Law in 1980...recognized that marriage is an "economic partnership" that each spouse has individually contributed to during the marriage..." Kaplan v. Kaplan, 82 NY2d 300 (1993). It further wrote, in 2008, that "... [t]he economic partnership should be considered dissolved when a matrimonial action is commenced which seeks divorce, or the dissolution, annulment or declaration of the nullity of a marriage, i.e., an action in which equitable distribution is available..." Mesholam v. Mesholam, 11 NY3d 24 (2008); see also Savgnano v. Savignano, 194 AD3d 769 (2d Dept. 2021) (the economic partnership should not be considered dissolved until a matrimonial action is commenced). If the economic partnership is considered dissolved upon the commencement of this action, the Court finds that it should be able to issue orders necessary during the pendency of an action to preserve the assets which were the byproduct of the economic partnership that are ultimately subject to distribution by the court.

Fourth, the law favors preservation of marital assets (see generally Weinstock v. Weinstock, 8 Misc 3d 221 (Supreme Court Nassau County 2005); see also Stratton v. Stratton, 39 Misc 3d 1230(A) (Supreme court Sullivan County 2013); see also C.M. v. E.M., 82 Misc 3d 198 (Supreme Court Nassau County 2023)), and since the law is in favor of such preservation, the only way to preserve the Bethpage Residence is to order its sale. While the Court of Appeals, nearly fifty years ago, in Kahn wrote, in part, that "... [a]lthough section 234 empowers a court to make a direction concerning possession of property...the legislative history makes clear that the court may exercise its discretion only with regard to questions of possession...", but in 2015, the Court of Appeals also articulated that "...Domestic Relations Law § 234 allows courts to issue preliminary injunctions aimed as the preservation of marital assets pending equitable distribution ..." El-Dehdan v. El-Dehdan, 26 NY3d 19 (2015). The Court declines to be hamstrung by an outmoded interpretation of DRL § 234, and the Court does not find that § 234 prohibits the sale of a solely titled asset, especially if a directive that the asset be sold results in the preservation of the asset in question. The Bethpage Residence was acquired during the marriage and is, therefore, presumptively a marital asset. Property acquired during the marriage is presumed to be marital property. M.I. v. C.I., 83 Misc 3d 1270(A) (Supreme Court Nassau County 2024). The Bethpage Residence was appraised. The appraised value of same was $740,000.00 as of January 24, 2025.^[4] The Plaintiff's own sworn Statement of Net Worth reflects an outstanding mortgage encumbering the Bethpage Residence of $452,000. That leaves equity of nearly $288,000.00. The Court has considered that the Bethpage Residence appears to be the largest asset of this marriage. As Justice Victor Grossman aptly articulated in J.H. v. C.H.:

Any realistic assessment of the parties' situation would lead to the conclusion that the marital home must be sold to salvage any remaining equity or at least to reduce the financial loss.

J.H. v. C.H., 82 Misc 3d 1202(A) (Supreme Court Putnam County 2024). The Court has considered, with each passing day, the likelihood of penalties, fees and interest accruing on the unpaid mortgage, the result of which will be the inevitably diminution of equity in the largest asset of the marriage. The Court declines to let the largest asset of this marriage turn into waste, and the Court hereby orders the immediate sale of the Bethpage Residence so as to preserve the largest asset of this marriage pendente lite. See generally El-Dehdan, supra. Inaction by the Court at this juncture would be tantamount to countenancing marital waste. Putting the facts of this case in their simplest form, the reality is, of course, that the foreclosure action will likely (and almost inevitably) result in the sale of the Bethpage Residence. While that may not come imminently, that is, of course, likely the end result. The result of this application? The sale of the Bethpage Residence. The only difference being that the sale, now, results in preservation of equity, whereas the sale months or even years down the road results in a reduction of equity.

Fifth, the Plaintiff's own admissions buttress the need for the sale. The Court has considered the Plaintiff's own statement that he does "...not want to lose my home..." and that he is actively opposing the foreclose action. But the Plaintiff's conduct is contrary to his words. While he alleges that he is trying to pursue loss mitigation, he fails to append any proof of same. Additionally, the Plaintiff fails to append any proof that he, for instance, applied for a mortgage modification. Critically, he offers no defense for his cessation of mortgage payments. The Plaintiff states in his opposing Affidavit that he is trying to preserve the marital residence. The Court agrees that the asset should be preserved, but disagrees as to the methodology of preservation. Therefore, the Court elects to preserve the asset by ordering the immediate sale, as the equity in the house is simply more important than the actual structure.

Sixth, the Plaintiff's conduct, and his earnings, do not justify his failure to pay the mortgage. The Plaintiff does not deny failing to pay the mortgage. The Court simply does not believe the Plaintiff, to the extent argued, that he cannot afford to pay the monthly mortgage payments. Critically, as stated before, the Plaintiff fails to provide any reason or justification as to why he ceased paying the mortgage. The Court has examined the Plaintiff's finances. The Plaintiff's gross earnings in 2023 were $165,685.40. After subtracting what he paid in federal income taxes of $20,086.71, Social Security taxes of $9,932.40, Medicare taxes of $2,402.43, state income taxes of $2,035.78, and local income taxes of $5,837.78, his after-tax income was $125,390.30. The Plaintiff still had the wherewithal to voluntarily contribute $13,952.80 as an elective deferral to a section 401(k) cash or deferred arrangement. Even so, the Plaintiff's annualized expenses on his sworn Statement of Net Worth, exclusive of the mortgage, taxes and insurance on the Bethpage Residence total $64,644 per annum on after-tax income of $125,390.30. The $60,746.30 difference is unexplained by the Plaintiff, and he has failed to convince the Court that he was financially unable to keep up with his mortgage payments.^[5]

Seventh, a line of authority, post Kahn, establishes exceptions to Kahn. Some trial court decisions have authorized the pendente lite sale of the marital premises. For instance, the court in St. Angelo v. St. Angelo found that the marital residence therein appeared to be the "major marital assets" which was in imminent danger of foreclosure. St. Angelo v. St. Angelo, 130 Misc 2d 583 (Supreme Court Suffolk County 1985). The facts of St. Angelo also indicated that the wife therein had produced a buyer who is ready, willing and able to purchase said premises. Id. In Gordon v. Gordon, that court authorized the pendente lite sale of the marital residence — a cooperative apartment. Gordon v. Gordon, 144 Misc 2d 27 (Supreme Court New York County 1989). In Gordon, the wife therein had vacated the marital residence which cost $2,000 per month to maintain. Id. Furthermore, the marital residence was a cooperative apartment, which could not have been owned "by the entirety". Id. In D.R.D. v. J.D.D., the court granted an application — pendente lite — to sell a marital residence. D.R.D. v. J.D.D., 74 Misc 3d 237 (Supreme Court Monroe County 2021). In that case, the marital residence was in need of repair and the wife refused to allow the husband in the home to make the repairs. Id. In addition, in that case, the parties had agreed to retain a realtor, and the wife, despite her concerns about the children, had signed a listing agreement. Id. Also, the husband was paying carrying charges on the home which, inter alia, included the wife's child from another relationship and the husband was, in effect, paying for housing costs for a nonmarital child. Id. The court additionally found that the wife was using the husband's equity as an interest free loan. Id. In J.H. v. C.H., supra, the court ordered the marital residence sold pendente lite based upon, among other things, the needs of the parties, citing that foreclosure proceedings were pending against the marital residence.^[6] J.H., 2024 NY Misc. LEXIS 919 at *3. In other words, there are, in any event, exceptions to Kahn.

In conclusion, irrespective of whether or not the Plaintiff's conduct is characterized as financial misfeasance, monetary mismanagement, or economic self-destruction, his abject indifference to the obligation to maintain the economic status quo and refusal to maintain the marital residence pendente lite warrants the conclusion arrived at by the Court as the only viable option. In considering the factors that the Court has laid-out herein, the Court has given additional consideration to the fact that from the date of the acquisition of the marital residence until the commencement of this action, there is no evidence that the marital residence was not maintained; it was only after the Plaintiff himself commenced this action did he unilaterally decide to cease mortgage payments. That is unacceptable.

Accordingly, in light of all of the aforesaid, it is hereby:

ORDERED, that Branch (8) of the Defendant's Order to Show Cause dated January 16, 2025 be and the same is hereby GRANTED TO THE EXTENT set forth in this Decision and Order; and it is further

ORDERED, that the Bethpage Residence shall be forthwith placed on the open market for sale and sold as expeditiously as possible in accordance with the terms and conditions of this Decision and Order; and it is further

ORDERED, that the parties shall immediately list the Bethpage Residence for sale with a real estate broker of their joint choosing, for an initial asking price of not less than $740,000.00; and it is further

ORDERED, that the parties shall accept any offer within three (3%) percent of the listing price from any bona fide third party purchaser; and it is further

ORDERED, that if no offer is made within three (3%) percent of the listing price within the first sixty (60) days of listing the Bethpage Residence, then, in that event, a two (2%) percent price reduction shall be implemented every sixty (60) days until the sale of the Bethpage Residence; and it is further

ORDERED, that the parties shall still accept any offer within three (3%) percent of the lowered listing price after each sixty (60) day reduction until the sale is completed; and it is further

ORDERED, that both parties shall cooperate with the listing agent in effectuating the sale of the Bethpage Residence, which includes, among other things, causing the Bethpage Residence to be presentable and available for viewing at the broker's request; and it is further

ORDERED, that neither party shall impede the sale of the Bethpage Residence.

The Court cannot equitably distribute the proceeds of sale of the Bethpage Residence until the final judgment. See DRL § 236(B)(5)(a) ("...the court, in an action wherein all or part of the relief granted is divorce...shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment ...") (emphasis added). Accordingly, it is hereby:

ORDERED, that so much of Branch (8) of the Defendant's Order to Show Cause dated January 15, 2025, which seeks an advance of $50,000.00 from the proceeds of sale to the Defendant be and the same is hereby DENIED; and it is further

ORDERED, that Branch (7) of the Defendant's Order to Show Cause dated January 15, 2025 be and the same is hereby DENIED;^[7] and it is further

ORDERED, that the net proceeds of sale which are derived from the sale of the Bethpage Residence shall be held in escrow by the Defendant's counsel pending the final Judgment of Divorce (see DRL § 236(B)(5)(a)) or written agreement of the parties.

The Court finds the appointment of a Receiver to be drastic at this time. The appointment of a Receiver is a drastic remedy. Armienti v. Brooks, 309 AD2d 659 (1st Dept. 2003). This is especially so considering that the Court is only now directing the sale of the Bethpage Residence. The Defendant may re-file her application seeking the appointment of a Receiver in the event that the Plaintiff fails to cooperate and/or impedes the sale of the Bethpage Residence. Accordingly, it is hereby:

ORDERED, that Branch (9) of the Defendant's Order to Show Cause dated January 15, 2025 be and the same is hereby DENIED WITHOUT PREJUDICE and with leave to renew at a later date in the event same is necessary as indicated herein.

CONTEMPT OF COURT

A contempt citation is a drastic remedy which should not be granted absent a clear right to such relief. Pinto v. Pinto, 120 AD2d 337, 501 N.Y.S.2d 835 (1st Dept. 1986); Usina Costa Pinto SA v. Sanco Sav Co. Ltd., 174 AD2d 487, 571 N.Y.S.2d 264 (1st Dept. 1991). The Court declines to adjudicate the Plaintiff to be in contempt of Court for discovery-related noncompliance. The Court does not find that the Defendant has established her prima facie right to an adjudication of contempt inasmuch as contempt is a drastic remedy that may have resulted in a fine or the Plaintiff's incarceration for not producing financial documentation. Such a result would be inequitable to this Court. Any inequity in this finding or any prejudice that may befall the Defendant for the Plaintiff's untimely and noncompliance with discovery is ameliorated by the discovery sanctions that the Court will impose herein (see infra). Additionally, inasmuch as the Bethpage Residence was eventually appraised, the Court finds so much of the Defendant's application seeking a contempt finding for failure to pay the real estate appraiser to be moot. Accordingly, it is hereby:

ORDERED, that Branches (1), (3) and (4) of the Defendant's Order to Show Cause dated January 15, 2025 be and the same are hereby DENIED; and it is further

ORDERED, that Branch (2) of the Defendant's Order to Show Cause dated January 15, 2025 be and the same is hereby deemed MOOT.

COMPELLING DISCOVERY

CPLR § 3124, entitled "Failure to disclose; motion to compel disclosure" provides that:

If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.

The trial court is vested with broad discretion to supervise disclosure. See generally Bertalo's Restaurant v. Exchange Ins. Co., 240 AD2d 452 (2d Dept. 1997); see Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 NY3d 843 (2008); see Flynn v. City of New York, 101 AD3d 803 (2d Dept. 2012). Generally, there should be broad financial disclosure in matrimonial actions in which equitable distribution is sought to enable the parties to ascertain the nature and value of marital assets, as well as to uncover potential hidden assets. See generally Antreasyan v. Antreasyan, 245 AD2d 405 (2d Dept. 1997); see Kramer v. Kramer, 227 AD2d 531 (2d Dept. 1996); see Gape v. Gape, 125 AD2d 637 (2d Dept. 1986).

The Preliminary Conference Stipulation & Order was signed on February 6, 2024. Three (3) years of various documents were to be exchanged not later than forty-five (45) days after the Preliminary Conference. It appears that the Plaintiff has only provided his PenFed account statements for three years. The Plaintiff was woefully delinquent in filing his Statement of Net Worth, which he filed in August, 2024, six months after the Preliminary Conference. His Statement of Net Worth contained only his W-2 Form for years 2021, 2022 and 2023, and a single quarterly account statement from his Thrift Savings Plan. It does not appear that the Plaintiff has provided any other document.^[8] The Plaintiff, without sufficient explanation, is clearly recalcitrant with respect to discovery production pursuant to the Preliminary Conference Stipulation and Order. The Court therefore finds it necessary to issue an Order compelling him to comply with the Preliminary Conference Stipulation & Order. The Court, however, finds the drastic remedy of preclusion and/or the striking of the Plaintiff's Complaint to be extreme at this time. Preclusion is a drastic remedy. Pepsico, Inc. v. Winterthur Intl. Am. Ins. Co., 24 AD3d 742 (2d Dept. 2005). Striking a pleading is a drastic remedy. Farrell v. Keldiyarov, 234 AD3d 933 (2d Dept. 2025). This is especially true since it does not appear that the Defendant has issued a Notice for Discovery & Inspection, as no such notice is appended to her moving papers. The Plaintiff is cautioned, however, that his continued recalcitrance with respect to discovery, after the Defendant issues her Notice for Discovery & Inspection, may result, at a later date, in either an order precluding him from offering evidence or testimony at trial, an order resolving issues against him, and/or an order striking those portions of his complaint with respect to relief relative to equitable distribution. Accordingly, it is hereby:

ORDERED, that Branch (5) of the Defendant's Order to Show Cause dated January 15, 2025 be and are hereby GRANTED TO THE EXTENT as set forth in this Decision and Order; and it is further

ORDERED, that within thirty (30) days of this Decision and Order, the Plaintiff shall serve upon the Defendant's counsel a formal itemized Response to the Preliminary Conference Stipulation & Order with documents appended thereto responsive to Section "(2)(G)" thereof; and it is further

ORDERED, that Branch (6) of the Defendant's Order to Show Cause dated January 15, 2025 be and the same is hereby DENIED WITHOUT PREJUDICE and with leave to renew in the event of noncompliance with this Decision and Order.

Any other relief requested not specifically addressed herewith is hereby DENIED.

This constitutes the DECISION AND ORDER of this Court.

[1] See generally Beran v. Beran, 8 Misc 3d 546 (Supreme Court Schenectady County 2005) (equitable distribution law enacted in 1980).

[2] From here on out, the residence at issue will interchangeably be referred to either as the "marital residence" or the "Bethpage Residence".

[3] While the parties' sworn Statement(s) of Net Worth differ in terms of the year in which the marital residence was acquired, either way, there is no dispute that the marital residence was acquired during the parties' marriage and prior to the date of commencement of this action. And both parties' sworn Statement(s) of Net Worth indicate that title to the marital residence is held solely in the name of the Plaintiff.

[4] See Plaintiff's Exhibit "C" to his opposition, NYSCEF Document No.: 48.

[5] The Plaintiff also fails to deny the Defendant's assertion that he took his significant other on vacations to Aruba and Jamaica.

[6] The court also noted that there was a prior foreclosure proceeding on the marital residence therein, which was discontinued upon payment of $40,000. J.H., 2024 NY Misc. LEXIS 919 at *3.

[7] Branch (7) was plead in the alternative to the immediate sale, which the Court is ordering.

[8] Notably, his Statement of Net Worth is devoid of his last three pay check stubs and his last filed income tax return."

CLE FROM NCBA

 

PET LAW - ONE DOG, ONE BITE, TWO CAUSES OF ACTION

Our pets are our responsibilities....and to others, we also have these two responsibilities.

Flanders v Goodfellow, 2025 NY Slip Op 02261, Decided on April 17, 2025, NY Court of Appeals, Halligan, J.:

"Plaintiff Rebecca Flanders, a postal carrier, was bitten by a dog owned by Defendants Stephen and Michelle Goodfellow while delivering a package to their residence. She commenced this action to recover damages for her injuries, asserting causes of action sounding in strict liability and negligence. Both causes of action were dismissed, and Flanders asks us to reinstate them.

Under settled law, an owner of a domestic animal who has actual or constructive knowledge of their animal's vicious propensities will be held strictly liable for harm caused as a result of those propensities. There is a triable issue of fact as to whether the Goodfellows had constructive knowledge of their dog's vicious propensities, and so summary judgment should not have been granted to them on the strict liability cause of action.

The lower courts dismissed Flanders's negligence cause of action as barred by Bard v Jahnke (6 NY3d 592 [2006]), which held that there can be no common-law negligence liability when a domestic animal causes harm. Experience has shown that this rule is in tension with ordinary tort principles, unworkable, and, in some circumstances, unfair. Continued adherence to Bard therefore would not achieve the stability, predictability, and uniformity in the application of the law that the doctrine of stare decisis seeks to promote. Accordingly, we overrule Bard to the extent that it bars negligence liability for harm caused by domestic animals, and reinstate Flanders's negligence cause of action.

I

At this stage of the litigation, we must view the record evidence in the light most favorable to Flanders. On December 8, 2018, Flanders arrived at the Goodfellows' house to deliver mail, but found their mailbox missing. She pulled her vehicle into the horseshoe driveway to leave a package on the Goodfellows' porch and, as she did so, heard a dog barking. She had not seen a warning that the Goodfellows had a dangerous dog either at the post office or on the scanner given to postal carriers, and she did not see a "beware of dog" sign on the property. After waiting a moment to confirm the barking dog was not outside, Flanders exited her vehicle.

Stephen Goodfellow opened the door to meet Flanders on the porch. As she handed him the package and began to tell him that the mailbox was down, Flanders heard the sound of nails "ticking" on a hardwood floor and saw a large dog approaching the door from inside the house. The dog slipped past Stephen through the open door and, as Stephen yelled its name, lunged towards Flanders's neck. Flanders raised her hand to cover her face and neck. The dog bit her shoulder, latching its teeth into her flesh and breaking skin. With the package still in hand, Stephen tugged at the dog to release its hold. When he managed to break the dog's grip, Flanders went directly to her vehicle without looking back. She later learned that the dog bite had caused a "snap tear" in her shoulder muscle, an injury that required multiple surgeries and resulted in permanent scarring.

Discovery yielded further evidence about the dog and its prior behavior. The dog was about 70 pounds at the time of the incident, and had been acquired by the Goodfellows as a puppy several years earlier. The dog "yank[ed] people around" when leashed, once even "dragg[ing] Michelle to the ground." The Goodfellows hired a dog trainer, and after a two-week session, Michelle posted on social media that their dog could now run "off leash in the yard," was no longer "jumping," and "tolerate[d] other moving critters." The trainer testified that although the dog did not exhibit aggressive tendencies toward people, it did get into a "scuffle" with another "alpha" dog. Michelle testified that when people whom the dog knew visited the house, it "would jump up to greet the person" as a "sign of affection." She also said the dog did not interact with strangers because they did not enter the house. Stephen testified that he had never seen the dog growl or bare its teeth, and that no one had ever complained to him about the dog prior to the incident.

Flanders produced sworn affidavits from two postal workers who had delivered mail to the Goodfellows' residence over a period of several years. One of them said that when he approached the house, the Goodfellows' dog "would actually bite the window, as though it was trying to bite you," causing its "saliva [to] project onto the window." The dog would bare its teeth "during these episodes, and it barked, snarled, and growled. It also slammed into the window glass, as though it was trying to get through and attack." The worker asserted that the Goodfellows' dog was "the most aggressive" he had ever encountered on his routes, and he was "sure" that "if the dog's owners were home when these deliveries occurred or they have surveillance footage of the dog's actions during these deliveries, they knew or should have known the dog was aggressive or dangerous before the attack."

The other postal worker testified to similar experiences with the dog. He said that nearly every time he delivered a package to the front porch, he could see the dog through the glass windows on either side of the door. It "was extremely loud, barking and snarling, and slamming its face and head into the glass in what looked to be an attempt to attack [him] through the glass." He "believe[d] that home residents would have witnessed the dog's behavior," noting that the dog "was extremely loud and created a huge ruckus such that anybody home would have known of it." Although he thought "the dog was dangerous," the worker said that he did not report its aggressive behavior because he "did not believe the dog posed a risk of danger to me based on the horseshoe driveway and an ability to make a quick exit if necessary."

Following discovery, Supreme Court awarded summary judgment to the Goodfellows and dismissed the claim. With respect to strict liability, the court concluded that the evidence created no triable issue of fact as to whether the Goodfellows had actual or constructive knowledge of the dog's alleged vicious propensity, which is an essential element of a strict liability cause of action. The court considered the affidavits from the postal workers, but found them insufficient because they did not show that the Goodfellows were home while the dog acted aggressively towards postal workers or that the Goodfellows otherwise knew about the dog's behavior. The court also dismissed Flanders's negligence cause of action under Fourth Department precedent foreclosing such liability for harms caused by domestic animals.

The Appellate Division affirmed (215 AD3d 1248 [4th Dept 2023]). It determined that the Goodfellows had demonstrated that they neither knew nor had reason to know of the dog's allegedly vicious propensity, and that Flanders had failed to raise a dispute of fact that required a trial on the strict liability cause of action. The Court further held that Flanders's negligence cause of action was properly dismissed.

We granted Flanders leave to appeal (40 NY3d 904 [2023]).

II

We begin with Flanders's strict liability cause of action. CPLR 3212 (b) provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." A court reviewing a motion for summary judgment must view the facts "in the light most favorable to the non-moving party" (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]), and it may not "make credibility determinations or findings of fact" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]). A motion for summary judgment may be granted only if the movant "tender[s] sufficient evidence to demonstrate the absence of any material issues of fact" and, once this prima facie showing is made, the non-movant fails "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The contours of our "long-standing rule" of strict liability are not in dispute (Bard, 6 NY3d at 596). We have held that "the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities" (Collier v Zambito, 1 NY3d 444, 446 [2004], citing Restatement [Second] of Torts § 509). A vicious propensity includes "the propensity to do any act that might endanger the safety of the persons and property of others in a given situation" (id. [internal quotation marks omitted]). Once an owner's actual or constructive knowledge of their animal's vicious propensities is established, the owner "faces strict liability for the harm the animal causes as a result of those propensities" (id. at 448).

Two additional points have informed our applications of the strict liability rule. First, although knowledge of vicious propensities "may of course be established by proof of prior acts of a similar kind of which the owner had notice," a triable issue of fact "might be raised—even in the absence of proof that the dog had actually bitten some-one—by evidence that it had been known to growl, snap or bare its teeth" (id. at 446-447; see also Bard, 6 NY3d at 597). Second, we have held that a "vicious propensity" should be understood to include "any behavior that 'reflects a proclivity to act in a way that puts others at risk of harm' " (Hastings v Sauve, 21 NY3d 122, 125 [2013], quoting Bard, 6 NY3d at 597).

Contrary to the determination of the courts below, we conclude that the record evidence creates a triable issue of fact as to whether the Goodfellows had constructive knowledge of their dog's propensity to bite. In separate affidavits, the postal workers stated that anyone in the Goodfellows' home would have been aware of the dog's aggressive behavior, which included growling, snarling, barking, slamming into windows, and trying to bite at the postal workers through the glass. Although the Goodfellows contended that they did not know of the dog's behavior and emphasized that the postal workers did not report the dog's behavior to them or the post office, that response merely presents questions of credibility about the Goodfellows' claimed ignorance of the dog's behavior and the postal workers' reasons for not reporting it. Moreover, the Goodfellows admitted that the dog got into a fight with another dog during its brief stint with its trainer, and Michelle testified that the dog had not previously interacted with strangers because they were not allowed in the house, without explaining whether concerns about the dog prompted that practice. Given all of this evidence, we conclude that there is a triable issue of fact as to whether the Goodfellows should have known that the dog's behavior "reflect[ed] a proclivity to act in a way that puts others at risk of harm" (Collier, 1 NY3d at 447). This question of fact precludes a grant of summary judgment for the Goodfellows on the strict liability cause of action and requires its reinstatement.

III

We now turn to Bard, which held that a negligence cause of action is not available for harm caused by a domestic animal (see 6 NY3d at 597). Plaintiff Bard was a carpenter hired on short notice to repair damaged cow mattresses in the "low cow district" of a dairy barn housing several hundred cows. One of the defendants, another carpenter who did not own animals on the farm but regularly did odd jobs there, showed the plaintiff to that section of the barn, pointed out the mattresses that needed repair, and then left the barn. Neither he nor the defendant farm owner warned Bard that a breeding bull was permitted to roam freely around that section in order to impregnate cows. As Bard was fixing the mattresses, the bull charged, struck Bard in the chest, and repeatedly slammed him into the pipes of the stall, leading to serious injuries.

Bard argued that the defendants were negligent in failing to restrain the bull or warn strangers of its presence. As detailed in our opinion, Bard relied on several comments to the Restatement (Second) of Torts § 518, which [*2]addresses negligence liability for harm done by domestic animals that are not "abnormally dangerous": Comment g, which notes that the requisite care that must be exercised to control a domestic animal is tied to the characteristics "normal to its class" and that the owner must know those characteristics, and Comment h, which provides that the owner of a domestic animal must "realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm." Bard argued that "bulls, in particular breeding bulls, are generally dangerous and vicious animals," and the defendants therefore "should have restrained the bull or warned Bard of its presence" (Bard, 6 NY3d at 596 [internal quotation marks omitted]).

Bard thus presented the question whether a plaintiff may recover in negligence against the owner of a domestic animal that causes harm. Our case law did not offer a definitive answer (see e.g. Dickson v McCoy, 39 NY 400 [1868] [indicating that a negligence cause of action is available for harms caused by horses and cows running loose in the street]; Muller v McKesson, 73 NY 195 [1878] [permitting recovery in negligence for harm caused by a dog known to be vicious]; Brice v Bauer, 108 NY 428 [1888] [same]; Cadwell v Arnheim, 152 NY 182 [1897] [holding that a negligence cause of action is available where defendant negligently drove a team of horses on a public roadway]; Benoit v Troy & Lansingburgh R.R. Co., 154 NY 223 [1897] [same]; Miller v Blood, 217 NY 517 [1916] [indicating that negligence is available for harm caused by a horse known to have a habit of kicking]; Hosmer v Carney, 228 NY 73 [1920] [holding that the owner of a kicking horse is not liable in negligence without proof he knew or should have known of its vicious propensities]; Hyland v Cobb, 252 NY 325, 326-327 [1929] [noting that "negligence by an owner, even without knowledge concerning a domestic animal's evil propensity, may create liability"]; Kennet v Sossnitz, 260 AD 759 [1st Dept 1940] [indicating that strict liability is the proper theory of recovery for a dog bite], affd 286 NY 623 [1941 per curiam]; Brown v Willard, 278 AD 728 [3d Dept 1951] [same], affd 303 NY 727 [1951]; Young v Wyman, 76 NY2d 1009, 1010 [1990] [suggesting that harm caused by a dog loose in the street might support a negligence cause of action]; see also Vrooman v Lawyer, 13 Johns 339, 339 [Sup Ct 1816] [holding that owner of a bull that gored a horse not liable in negligence "without proof that he knew the animal was accustomed to do mischief"]; Smith v Farner, 229 AD2d 1017, 1017-1018 [4th Dept 1996] [holding that only strict liability is available for a dog bite]; Shaw v Burgess, 303 AD2d 857, 859 [3d Dept 2003] [same]).

Against this backdrop, we held in Bard that a plaintiff cannot "recover under a common-law cause of action for negligence, as expressed in Restatement (Second) of Torts § 518, Comments g and h" (6 NY3d at 597). This theory of liability, we stated, was "no different from arguing that [an owner] was negligent in that he should have known of [his animal's] vicious propensities" based on its class—a theory of constructive knowledge we described as foreign to our case law (id. at 598-599). Instead, "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier" (id. at 599)—that is, the rule of strict liability for harm caused by a domestic animal whose owner knows or has reason to know of the animal's vicious propensity. On that basis, we affirmed the dismissal of the negligence cause of action against both the owner of the bull and the non-owner contractor who had taken Bard to the barn.

Even though our decision focused on the specific Restatement comments relied upon by plaintiff, other rulings in Bard's immediate wake confirmed that it foreclosed the possibility of recovering for the negligence of a domestic animal owner. In Bernstein v Penny Whistle Toys, Inc., we cited Bard in holding that a plaintiff could not recover for injuries caused by a dog bite, absent evidence "that the dog's owner had any knowledge of its vicious propensities" (10 NY3d 787 [2008]; see also Bloomer v Shauger, 21 NY3d 917 [2013] [same]). The following year, we reiterated in Petrone v Fernandez that "negligence is no longer a basis for imposing liability after . . . Bard" (12 NY3d 546, 550 [2009] [internal quotation marks omitted]).

Flanders asks us to overrule that aspect of Bard and to recognize negligence as an alternative to strict liability for injuries caused by domestic animals.

A

We must first consider whether stare decisis counsels continued acceptance of Bard. As we long have recognized, this bedrock principle " 'holds that common-law decisions should stand as precedents for guidance in cases arising in the future' and that a rule of law 'once decided by a court, will generally be followed in subsequent cases presenting the same legal problem' " (People v Peque, 22 NY3d 168, 194 [2013], quoting People v Damiano, 87 NY2d 477, 488 [1996, Simons, J., concurring]). The doctrine " 'is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process' " (People v Taylor, 9 NY3d 129, 148 [2007], quoting Payne v Tennessee, 501 US 808, 827 [1991]). "Its purpose is to promote efficiency and provide guidance and [*3]consistency in future cases by recognizing that legal questions, once settled, should not be reexamined every time they are presented" (People v Bing, 76 NY2d 331, 338 [1990]). In light of these concerns, we will overrule a prior decision only "in the rarest of cases" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1, 23 [2016]).

But rarely does not mean never. "Stare decisis is not an inexorable command" (Payne, 501 US at 828). Rather, it " 'is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable' " (People v Bing, 76 NY2d at 338, quoting Helvering v Hallock, 309 US 106, 119 [1940]). "Although a court should be slow to overrule its precedents, there is little reason to avoid doing so when persuaded by the 'lessons of experience and the force of better reasoning' " (id., quoting Burnet v Coronado Oil & Gas Co., 285 US 393, 407-408 [1932, Brandeis, J., dissenting]). That may be especially true of "[t]ort cases," including "personal injury cases," which "offer an[ ] example where courts will, if necessary, more readily re-examine established precedent to achieve the ends of justice" (People v Hobson, 39 NY2d 479, 489 [1976]). Thus, where we have concluded that a "rule of nonliability is out of tune with the life about us, at variance with modern-day needs and with concepts of justice and fair dealing," we have overruled it (Bing v Thunig, 2 NY2d 656, 667 [1957], overruling Schloendorff v Society of N.Y. Hosp., 211 NY 125 [1914]; see also Woods v Lancet, 303 NY 349 [1951], overruling Drobner v Peters, 232 NY 220 [1921]).

Our decisions have examined various interrelated factors in deciding whether to overrule a precedent. One consideration is whether the decision is well-reasoned and consistent with relevant general principles of law (see Matter of Brooke S.B., 28 NY3d at 23-24). More specifically, we have held that if a recent precedent "fits uncomfortably into our tort jurisprudence," that tension may be a reason to abandon its decisional law (Broadnax v Gonzalez, 2 NY3d 148, 154 [2004]). Also relevant is whether legal developments in the doctrine undermine an earlier decision (see People v Bing, 76 NY2d at 342). Finally, we may consider how courts grapple with a decision over time—for example, whether it is "unworkable," "creates more questions than it resolves," or "no longer serves the ends of justice" (Peque, 22 NY3d at 194 [internal quotation marks omitted]).

Taking full account of these factors, along with the abiding values that stare decisis seeks to promote, we conclude that the time has come to set aside Bard's rule that an owner of a domestic animal may not be held liable in negligence for harms caused by their animal.

1

Tort law seeks to incentivize us to be mindful of the risk that our behavior might harm others by imposing a duty to act with due care. That is why, under ordinary principles of negligence, a victim may seek recovery by proving that a defendant failed to exercise due care and thereby proximately caused a victim's injuries. Chief Judge Cardozo laid down the canonical formulation in Palsgraf: "Negligence is the absence of care, according to the circumstances" (Palsgraf v Long Is. R.R. Co., 248 NY 339, 341 [1928] [internal quotation marks omitted]; cf. Restatement [Third] of Torts: Liability for Physical and Emotional Harm § 3 ["A person acts negligently if the person does not exercise reasonable care under all the circumstances."]). As our case law makes clear, these principles apply to persons engaged in quite a wide array of activities—just to name a few, riding a bike (see e.g. Avery v New York, Ontario & W. Ry. Co., 205 NY 502 [1912]), driving a car (see e.g. Healy v Rennert, 9 NY2d 202 [1961]), and manufacturing factory machinery (see e.g. Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471 [1980]). A single idea unites these decisions: when people go about their daily lives, the law generally requires them to take reasonable steps to prevent foreseeable harm.

By exempting owners of domestic animals from negligence liability, Bard departed from these principles, and the standard incentives of our tort system, in several respects. For one thing, foreclosing negligence liability shifts both the burden of due care and cost of injuries away from owners of domestic animals to parties injured by those animals. And by allowing liability only upon proof that the owner had actual or constructive knowledge of a vicious propensity, the rule gives owners of domestic animals little reason to familiarize themselves with any potential proclivities that might lead the animal to cause harm, and in turn, to take reasonable steps to prevent any harm that may result.

This position made New York an outlier. At that time, the contrary view had been adopted by the Restatement and "almost every other state that ha[d] considered the question" (Bard, 6 NY3d at 603 [R.S. Smith, J., dissenting]; see also Restatement [Second] of Torts § 518). Today, the endorsement of the Restatement approach by other jurisdictions is even more sweeping. As of 2015, "some 36 states expressly recognize[d] negligence as a distinct, alternative theory for animal-induced injuries," and "18 expressly adopt[ed] or approvingly cite[d] the Restatement (Second) of Torts § 518" (Doerr v Goldsmith, 25 NY3d 1114, 1148-1149 [2015, Fahey, J., dissenting]). [*4]So far as we can tell, those numbers have not changed. Nor have any of the "remaining 14 states . . . expressly rejected the Restatement approach" (id. at 1149 [Fahey, J., dissenting]).

2

As a Judge of this Court explained, Bard's primary virtue is that it "provides an easy-to-apply bright-line rule that consistently proves fatal to negligence claims arising from injuries caused by certain animals" (id. at 1135 [Abdus-Salaam, J., concurring]). Whatever advantages of certainty were offered by Bard's bright-line rule, they have been much eroded by later decisions that carve out various exceptions to a blanket preclusion of negligence liability.

Seven years after Bard, we recognized an exception for harm caused by a wandering animal. In Hastings v Sauve, a cow crossed a neglected fence and ended up on a public road; the plaintiff then ran into the cow while driving down the road. We carved "wandering animals" out from Bard's no-negligence rule and allowed the case to proceed because it did not involve a vicious propensity and was thus "fundamentally distinct from the claim made in Bard" (21 NY3d at 125). We reasoned that denying negligence liability would "immunize defendants who take little or no care to keep their livestock out of the roadway or off of other people's property" (id.). We therefore held that "the owner of an animal may be liable under ordinary tort-law principles when a farm animal . . . is negligently allowed to stray from the property on which the animal is kept" (id. at 125-126).

Hastings defined "farm animals" with reference to a statutory provision that includes cows, domesticated horses, ducks, geese, and other fowl, expressly leaving open whether the so-called "wandering animal" rule "applies to dogs, cats or other household pets" (id. at 126, citing Agriculture and Markets Law § 108 [7]). We resolved that question two years later in Doerr v Goldsmith, announcing that dogs are "not domestic farm animals subject to an owner's duty to prevent such animals from wandering unsupervised off the farm" (25 NY3d at 1116). Our case law had evolved from a blanket no-negligence rule for domestic animals to a rule that some wandering animals could give rise to a negligence action.

Other decisions narrowed Bard in a different respect. Even though Bard itself had concluded that a non-owner (a third-party contractor) could not be held liable in negligence for harm caused by the bull, we later determined that Bard provided a safe harbor from negligence liability only for the owner of the domestic animal. That was implicit in Bernstein, where we dismissed a negligence cause of action against a non-owner defendant—an adult who had taken the child to the store and allowed her to interact with the dog—on the ground that there was "no evidence [the] third-party defendant was negligent" (10 NY3d at 788). Then, in Hewitt v Palmer Veterinary Clinic, we concluded that veterinary clinics could be held liable in negligence. We observed that such clinics are "in the business of treating animals and employ[ ] veterinarians equipped with specialized knowledge and experience concerning animal behavior" (35 NY3d at 548-549). Thus, we concluded, a clinic is "uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices" (id. at 549). Given that expertise, we held that a clinic "does not need the protection afforded by [Bard's] vicious propensities notice requirement" and may be held liable in negligence for harm caused by animals in their care (id.).

These developments confirm that Bard's bright-line rule has been muddied by various carve-outs that allow negligence liability against owners of domestic animals. The availability of a negligence action appears increasingly unpredictable, perhaps constrained only by the creativity of lawyers seeking recovery for those harmed by a domestic animal. The benefits the Bard court anticipated from its blanket preclusion of negligence liability have been much diminished by the subsequent exceptions to the rule.

3

Bard's decision to foreclose negligence liability laid bare a fundamental question: "Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or bull?" (6 NY3d at 602 [R.S. Smith, J., dissenting]). That question is essentially one of fairness: why should someone harmed by a domestic animal bear the risk—and the cost—of injury, provided that the animal's owner did not know or have reason to know of a vicious propensity? Granted, this issue was apparent when Bard was decided. But it has continued to trouble both this Court and the lower courts. In some instances, we have carved out ad hoc exceptions to Bard's no-negligence rule, and lower courts have either done the same or voiced significant concern with our doctrine. These cases confirm that precluding negligence liability has proven unworkable, and at times unjust.

Several lower court decisions sought to narrow or distinguish Bard, only to wind up before this Court (see 25 NY3d at 1154-1155 [Fahey, J., dissenting], citing Bernstein v Penny Whistle Toys, Inc., 40 AD3d 224, 227 [1st Dept 2007, Saxe, J., dissenting in part], Petrone v Fernandez, 53 AD3d 221, 225-226, 228 [2d Dept 2008], Hastings v Sauve, 94 AD3d 1171, 1173 [3d Dept 2012], and Bloomer v Shauger, 94 AD3d 1273, 1274 [3d Dept 2012]). Other lower court cases "expressed serious discomfort with Bard, distinguished the case, or attempted to use the Hastings exception as a means of alleviating the limits of Bard" (id. at 1154 [Fahey, J., dissenting], citing Krieger v Cogar, 26 Misc 3d 1225[A], 2010 NY Slip Op 50259[U] [Sup Ct, Niagara County 2010], Jetter v Hall, 20 Misc 3d 306, 308-309 [Sup Ct, Monroe County 2008], and Cappellino v Lake Huntington Summer Community Inc., 46 Misc 3d 486, 490-491 [Sup Ct, Kings County 2014]). More recent cases have continued this trend. For example, in Scavetta v Wechsler, the Appellate Division, "constrained" by Bard, reached the "most unsatisfactory" conclusion that no negligence cause of action was available for a plaintiff struck by a metal bicycle rack that a dog dragged into a busy city street (149 AD3d 202, 210, 212 [1st Dept 2017]); see also id. at 211 [noting "the harshness of the Bard rule"]; Medina v Romanofsky, 57 Misc 3d 1207[A], 2017 NY Slip Op 51320[U], *3 [Civ Ct, Richmond County 2017] ["Why do we deny a person suffering an injury from an unleashed dog his or her day in court when if treated like similar situations, the trier of fact would determine whether the incident was caused by 'dogs just being dogs' or the failure of the owner to supervise his or her pet?"]).

In sum, the courts of this State have struggled with the bar on negligence actions against owners of domestic animals, and we have recognized multiple exceptions for the sake of fairness. In this respect, experience has shown Bard and its progeny to be an obstacle in "the path of justice" (Woods, 303 NY at 355 [internal quotation marks omitted]). And the passage of time has also shown us that Bard has "failed to achieve the efficiency, consistency and uniformity in the application of the law which the doctrine of stare decisis seeks to promote" (People v Bing, 76 NY2d at 348).

These considerations satisfy us that stare decisis does not counsel continued adherence to our restriction on negligence liability. Thus, to the extent we previously held that a plaintiff may not assert a common-law negligence cause of action against the owner of a domestic animal for harms caused by that animal, we now overrule that precedent.

B

Our decision today means that there is a two-pronged approach to liability for harms caused by animals, as set forth in sections 509 and 518 of the Restatement (Second) of Torts (see Matter of Sage Realty Corp. v Proskauer Rose Goetz & Mendelsohn, 91 NY2d 30, 34-37 [1997]). A plaintiff who suffers an animal-induced injury therefore has a choice. If the owner knew or should have known the animal had vicious propensities, the plaintiff may seek to hold them strictly liable. Or they can rely on rules of ordinary negligence and seek to prove that the defendant failed to exercise due care under the circumstances that caused their injury. Of course, a plaintiff might also assert both theories of liability, as Flanders chose to do.

The courts below dismissed Flanders's negligence cause of action solely on the ground that it was barred by Bard. That left them with no reason to consider whether the evidence raised a triable issue of fact regarding this cause of action. Nor have the parties argued this point in any detail. We therefore think it appropriate to afford the parties a full opportunity to litigate whether the evidence adduced in the record could support Flanders's negligence cause of action, and to allow Supreme Court to decide in the first instance whether it may proceed.

***

Accordingly, the order of the Appellate Division should be reversed, with costs, and the defendants' motion for summary judgment denied.

Order reversed, with costs, and defendants' motion for summary judgment denied. Opinion by Judge Halligan.Chief Judge Wilson and Judges Rivera, Garcia, Singas, Cannataro and Troutman concur.

Decided April 17, 2025"

NY - NEIGHBOR DISPUTE: ANOTHER TREE CASE

The above picture is not from this case.

Bedell v. LONG IS. LANDSCAPING, 2025 NY Slip Op 50379 - NY: Dist. Court, Suffolk County, 6th Dist. 2025:

"Plaintiff Donald W. Bedell ("Plaintiff") filed a complaint in this case on October 15, 2024 against Defendants Long Island Landscaping and Lorraine Fosmire ("Defendants"), seeking monetary damages as a result of damage to trees on Plaintiff's property. Specifically, Plaintiff alleges that his neighbor, Defendant Fosmire, hired the Co-Defendant, Long Island Landscaping, to trim Plaintiff's trees to the extent they hung over onto Defendant Fosmire's property; however, Defendant Long Island Landscaping crossed onto Plaintiff's property line without his permission and irreparably damaged his trees by cutting them back too far. Plaintiff seeks fourteen thousand ($14,000.00) dollars in compensatory damages. In addition, Defendant Long Island Landscaping has counterclaimed against Plaintiff Bedell for attorney's fees. There are no cross-claims in this case.

After presiding over a non-jury trial on February 21, 2025, this Court makes the following findings of fact and conclusions of law and issues this Decision and Order:

I. Summary of Trial

A. Plaintiff's Case

During trial, Plaintiff Bedell testified that he resides at 21 Melrose Parkway, East Patchogue, New York. Plaintiff's neighbor, Defendant Fosmire, resides at 11 Melrose Parkway, East Patchogue, New York.

On May 14, 2024, Plaintiff Bedell came home and noticed that the trees on his property had been damaged, namely, the branches on certain trees were cut to the trunk. Plaintiff's neighbor, Defendant Fosmire had hired a landscaping company, Defendant Long Island Landscaping, to trim Plaintiff's trees to the extent some branches hung over onto Defendant Fosmire's neighboring property. However, rather than trim the tree branches back to the property line (which was marked by a fence separating the two properties), the landscaping company cut the branches all the way back to the trunk. According to Plaintiff, the trees were approximately three (3) feet from the property line; thus, the landscaping company crossed onto his property by three (3) feet when it cut the tree branches back to the truck.

Plaintiff Bedell's wife, Janice Bedell, testified on behalf of her husband. She testified that, prior to the tree trimming, Defendant Fosmire's daughter asked Janice Bedell for permission to trim the trees that were hanging over the Fosmire's property, and she gave such permission. At that time, there was no conversation regarding exactly which branches could be trimmed. On May 14, 2024, Janice Bedell came home and saw the tree branches had been trimmed back to the trunk; she then asked Martinez what he had done. Martinez told Janice Bedell he trimmed the trees, just as Fosmire had asked. Janice Bedell told Martinez that he could not cut the branches past the property line. Martinez stated, "I did what I was told." Janice Bedell then spoke with Fosmire, who told Bedell "that [cutting the tree branches back to the truck] is not what I told him to do, and by the time I saw it, it was too late." Fosmire further stated that she obtained permission to trim the trees, and "I did not realize that [Martinez] had gone all the way up [the tree to the tree trunk] to the top." Defendant Fosmire admitted that Janice Bedell had accurately described their conversation.

In support of Plaintiff Bedell's case, he submitted the following exhibits: (1) photographs taken by Plaintiff of (a) the trees after being cut and (b) the property line; (2) estimates for replacement of the trees.

Plaintiff Bedell seeks fourteen thousand ($14,000.00) dollars in compensatory damages, which is the cost of removing the existing nine (9) trees, and replacing them with totally new trees.

B. Defendants' Evidence

Defendant Lorraine Fosmire testified that she resides at 11 Melrose Parkway, East Patchogue, New York, and is the Plaintiff's neighbor. She testified that, prior to hiring Defendant Long Island Landscaping, her daughter obtained permission from Plaintiff's wife to "trim" the Bedells' trees because they hung over onto Fosmire's property. Defendant Fosmire testified that her husband had trimmed the trees back for years; but, since he recently passed away, she hired Defendant Long Island Landscaping to trim the trees. She hired Defendant Long Island Landscaping to do the landscaping on May 14, 2024, for which she paid one thousand six hundred and thirty-eight ($1,638.00) dollars, and she was satisfied with the completed job. When the Bedells objected to the completed job, Defendant Fosmire stated that "I had no idea he [Martinez] was going to cut all the way up [the tree to the trunk]." She further testified that "[i]f he [Martinez] was going to do that, he should have — [unspecified]."

In Defendant Fosmire's defense, she submitted the following exhibits, which were entered into evidence: (1) arborist's report and (2) photos.

Alex Martinez, on behalf of Defendant Long Island Landscaping, testified that he is the manager of Long Island Landscaping. Long Island Landscaping was hired by Defendant Fosmire to do landscaping on her property on May 14, 2024, including trimming nine (9) trees in the front of the property. Martinez testified that he trimmed the trees as he was instructed to do by Defendant Fosmire. According to Martinez, Fosmire told him to "go as high as possible," and "cut all the way to the top," which he did. Upon completion, Defendant Fosmire stated that she was pleased with the job Martinez had done.

In addition, Martinez admitted to crossing onto Plaintiff Bedell's property by approximately a foot or a foot and a half to trim the trees. He further testified that he chose to cut the tree branches right to the trunk (rather than to the fence-line) because "[i]f we were to go to the fence line, pretty much, it's just one little stump that you're probably looking at, maybe like not even a foot long, which a lot of people that we have done work for don't like to see that [tree branch stumps]...they [customers] prefer to see it [the tree branch] flush with the tree." He further testified that Fosmire told him that she had Plaintiff Bedell's permission to cut the branches to the trunk. Martinez conceded that he had no conversation with Plaintiff Bedell, or his wife, at any time.

Finally, Martinez testified that Defendant Fosmire paid a total of one thousand six hundred and thirty-eight ($1,638.00) dollars, for the landscaping job, which included additional yard work; Martinez estimated that the cost of trimming the nine (9) trees in the front was approximately six hundred and thirty-eight ($638.00) dollars. Martinez also testified that the cut branches were beginning to grow again.^[1]

In Defendant Long Island Landscaping's defense, Martinez submitted the following exhibits, which were entered into evidence: (1) invoice; and (2) photos (from Long Island Landscaping).

II. Findings of Fact

Based on the credible evidence submitted during trial, this Court finds that Defendant Fosmire, residing at 11 Melrose Parkway, East Patchogue, New York, hired Defendant Long Island Landscaping to do landscaping on her property on May 14, 2024. The landscaping included trimming tree branches on nine (9) trees [Japanese Cedars and White Pines] that were located on Plaintiff Bedell's neighboring property at 21 Melrose Parkway, East Patchogue, New York.

Prior to contracting with Defendant Long Island Landscaping, Defendant Fosmire's daughter had obtained permission from Janice Bedell to trim the tree branches to the extent they hung over onto the Fosmires' property.

On May 14, 2024, Defendant Long Island Landscaping trimmed Plaintiff's trees to the extent some branches hung over onto Defendant Fosmire's neighboring property. However, rather than trim the tree branches back to the property line (which was marked by a fence separating the two properties), Defendant Long Island Landscaping cut the branches all the way back to the trunk. In so doing, the Defendant Long Island Landscaping crossed onto Plaintiff Bedell's property by three (3) feet when it cut the tree branches back to the truck.

Defendant Fosmire paid Defendant Long Island Landscaping one thousand six hundred and thirty-eight ($1,638.00) dollars for the job.

III. Conclusions of Law

Courts have generally recognized that "vegetation penetrating adjacent property presents a type of legal problem for which the remedy of self-help can be invoked. This remedy can be generally defined as the adjoining owner's removal of branches or roots, to the extent that they protrude into his property." 65 ALR4th 603 [1988]. In addition, courts have generally prohibited the "cutting of the entire plant or tree in the exercise of self-help." Id. For example, the court in Grandona v. Lovdal, 70 Cal 161, 11 P 623, 624 [1886] held that trees whose branches extended over the land of another were only nuisances to the extent of the encroachment, and the person over whose premises they hung could, inter alia, cut the branches off to the property line, but could not cut down the tree.

Pursuant to the Restatement of Torts 2d § 929, the measure of damages resulting in harm to land from a trespass is as follows:

"§ 929. Harm to Land from Past Invasions

(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for

(a) the difference between the value of the land before the harm and the value after the harm; or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,

(b) the loss of use of the land, and

(c) discomfort and annoyance to him as an occupant."

***

Restatement of Torts 2d § 929.

In this case, Martinez admitted he encroached onto the Plaintiff's property (albeit at the direction of Fosmire) to cut the tree branches back. In so doing, Martinez violated a basic rule of tree trimming (and land use): one cannot enter another's property without express permission. Accordingly, this Court concludes that Defendant Long Island Landscaping is liable for the harm to the Plaintiff's property as a result of the trespass.

With regard to damages, Plaintiff presented no proof of the property's "diminution in value" (such as an appraisal, expert opinion). In addition, the Plaintiff presented no evidence of the cost of repair. Instead, he presented evidence of the cost of entirely removing the existing nine (9) trees, and replacing them with totally new trees; this Court declines to award replacement costs in light of the testimony and evidence that the branches have begun to regrow.

Accordingly, this Court awards to Plaintiff the cost of the tree trimming job, (estimated to be six hundred and thirty-eight ($638.00) dollars), along with punitive damages in the same amount. Defendant Long Island Landscaping's counterclaim is DENIED.

By reason of the foregoing, it is hereby:

ORDERED: Judgment for the Plaintiff in the amount of six hundred and thirty-eight ($638.00) dollars in compensatory damages, and six hundred and thirty-eight ($638.00) in punitive damages, for a total of one thousand two hundred and seventy-six ($1,276.00) dollars, plus interest from the date of incident (May 14, 2024), at a rate of nine percent (9%) per annum pursuant to CPLR § 5001 and CPLR § 5004.

[1] This testimony is supported by the arborist's report submitted by Defendant Fosmire. (See Def.'s Ex. C)."

THANK YOU

 

It's a bad picture but a lovely gift and recognition from Nassau County Bar Association and Legal Services of Long Island. My deepest thanks, I am truly honored.