The following papers numbered 1 to 8 were read and considered on a motion by defendants for summary judgment dismissing the complaint:

PAPERS NUMBERED

Notice of Motion— Liao Affirmation- Exhibits A-F1-3

Affirmation in Opposition— Milligram— Affidavit in Opposition— Dalli—

Exhibits A-K— Memorandum of Law4-7

Reply Affirmation— Liao8

Upon the foregoing papers, it is hereby,

ORDERED that the motion is granted and the complaint dismissed.

Introduction

Plaintiff's decedent was allegedly injured when he slipped and fell while delivering a package at property owned by defendants Patrick McGreen and Yuka McGreen. The fall allegedly occurred on ice while decedent was backing away from defendants' dog. Prior to providing any sworn testimony, decedent died from unrelated causes. Defendants move for summary judgment dismissing the complaint. Defendants argue that plaintiff will be unable to establish a case because the only evidence of the underlying facts is inadmissible hearsay from plaintiff derived from a telephone call from decedent just after the fall, and that, in any event such statements are insufficient to establish a prima facie case. Plaintiff argues that the statements are admissible under the excited utterance exception to the hearsay rule, and are sufficient to establish a prima facie case.

Factual and Procedural Background

Plaintiff alleges that decedent was injured on December 24, 2008, at property owned by defendants while delivering a package in the course of his employment with Federal Express. Plaintiff alleges that, as decedent was caused to retreat from the front door of the premises by a vicious dog, he slipped and fell as the result of a dangerous and defective condition on the property. Plaintiff seeks damages based on premises liability and in strict liability based on the vicious propensities of defendants' dog. Further, plaintiff alleges, defendants were negligent in failing to investigate the background of the dog for abuse, neglect, vicious propensities, and any history of prior attacks.

At an examination before trial, plaintiff testified that, just after the accident, decedent (her husband) called her from his cellular telephone (Defts' Exh. D, p 10). She testified:

He told me basically that he was trying to make a delivery and he was approached by a dog that he wasn't sure was friendly or not, he was backing up, misstepped on the ice and fell. He said he heard a crack and he fell.

(T 10).

Plaintiff told decedent to hang up and call 911 (T 10). Decedent called back a short time later and told her that someone had brought him a blanket and called an ambulance (T 11). He called a third time from the emergency room to tell her where he [*2]was located (T 11). When she arrived at the hospital, she learned that he had broken his ankle and needed surgery (T 11-12). At a later date, she spoke again with decedent about the accident. However, he provided no further details about what had occurred (T 17). To her knowledge, he was not bitten by defendants' dog (T 17).

At an examination before trial, defendant Patrick McGreen testified that he owned a Kuvasz breed of dog, which is also known as a Hungarian watchdog (Defendants' Exh. E, p 8). He obtained the dog when it was about three months old (T 9). The dog was trained for three months by a man named Wayne Davis (T 10). The training was for obedience and advanced obedience (T 13). The dog protected the house with loud barking, but not growling (T 11-12). At the time in question, the dog was still a puppy (less than a year old) and weighed 40 to 60 pounds (T 12). The dog was kept in the house or in its run, and had never escaped or roamed free (T 14).

On the day in question, McGreen left his home at around 1:00 p.m. (T 15). No one else was at home, and the dog was inside the house (T 16). When he returned home at around dusk (around 4:00 p.m. to 5:00 p.m.), he saw two neighbors helping decedent, who was in the street (T 16-18, 24). When he asked, decedent told him that he had slipped and fallen while getting out of his truck (T 18). Decedent declined a blanket, saying that an ambulance was coming (T 19). Decedent did not state that he was backing away from a dog when he fell (T 26). McGreen's dog was still inside the house (T 19). His driveway was "snow covered"— that is, with two to three inches of snow (T 19-20, 24). The snow was on top of existing snow (T 23). Before he left that day, a contractor he had hired had plowed his driveway (T 23). He saw no snow or ice (T 24). McGreen was a fire fighter and trained first responder, and helped the ambulance crew load decedent onto the stretcher and into the ambulance (T 20).

Defendants move for summary judgment dismissing the complaint. Defendants argue that plaintiff's testimony is inadmissible hearsay and, in any event, is merely speculative and conclusory. Thus, they assert, plaintiff will be unable to establish a prima facie case.

In opposition, plaintiff argues that her testimony concerning the accident is admissible under the "excited utterance" exception to the hearsay rule and is sufficient to establish a prima facie case. Further, she asserts, contrary to the testimony of McGreen supra, the police records of the accident indicate that the slip and fall occurred on defendants' driveway, and the appended report of her weather expert indicates that no new accumulation of snow occurred during the time that McGreen was away from his house just prior to the accident. In addition, she argues, records of the Summit Medical Group, dated December 28, 2008, which is four days after the accident, reflect that decedent stated that his fall resulted from ice on defendants' driveway (Plaintiff's Exh. J).

In further opposition to the motion, plaintiff submits an affidavit in which she avers that decedent was "very upset and agitated when he called [her], and was under the effects of his fall and the serious injury to his ankle."

In reply, defendants' argue that plaintiff failed to demonstrate the admissibility of the statements made to her by decedent under the excited utterance exception to the hearsay rule. In any event, they assert, such testimony would still be insufficient to establish a prima facie case. Finally, defendants argue, the affidavit of plaintiff's [*3]weather expert should not be considered because his identify was not disclosed prior to the filing of the note of issue, despite due demand for the same.

Analysis

The Excited Utterance Exception to the Hearsay Rule

An out-of-court statement is properly admissible under the excited utterance exception when made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication. People v. Johnson, 1 NY3d 302 (2003). As the Court held, "[U]nderlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly, any utterance he makes will be spontaneous and trustworthy.Accordingly, under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control....[An excited] utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection." Id. at 306 (citations omitted). Stating the rule is simple. Determining a declarant's mental state—that is, whether, at the time the utterance was made, a declarant was, in fact, under the stress of excitement caused by an external event sufficient to still his or her reflective faculties—is considerably more difficult.

Among the factors to be considered by a trial court is the period of time between the startling event and the out-of-court statement. People v. Johnson, supra. There is no definite or fixed period of time within which the declaration must have been made, and each case must depend upon its own circumstances.The test is whether the utterance was made before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance.Ultimately, the time for reflection is not measured in minutes or seconds, but rather is measured by facts.

While any serious injury may be a significant factor in determining whether the declarant remains under the stress of a startling event, it is not the only factor. People v. Johnson, supra. There is, in short, no "injury" exception to the hearsay rule. Indeed, it has not been held that any statement made by an injured victim about the event leading to the injury, however long after the trauma, constitutes an excited utterance merely because the victim continues to suffer pain caused by the injury.Even in the case of serious injury, the test remains what it has always been — whether the declarant is capable of studied reflection and, therefore, incapable of fabrication. A determination whether or not a statement falls within this exception is to be made in the first instance by the trial court, as opposed to the jury, even though it requires factual determinations. People v. Norton, 79 NY2d 808 (1991).

Given the circumstances presented in this case, the court finds that the statement claimed to have been made by decedent to plaintiff at or about the time of the accident meets the tests to be applied in determining the admissibility of an excited utterance. The court is convinced that the statement was made at such a time when the decedent would not have had the opportunity to fabricate or embellish statements that [*4]might, in the future, purposely add credence to his claim, now the plaintiff's claim. In arriving at this conclusion, the court has considered the decision in Langner v. Primary Home Care Services, Inc., 83 AD3d 1007 (2d Dept 2011), where the Court stated:

"The (88 year old) decedent's statement that the aide left

her standing unattended on the porch, which she allegedly

made to the plaintiff (decedent's personal representative)

and which was contained in the plaintiff's deposition

testimony submitted by (defendant) Personal Touch,

was admissible as an excited utterance because it was

made under the stress of excitement caused by the

decedent's fall (citations omitted)."^[FN1]

Id. at 1010.

Given the similarity of circumstances presented in this case and in Langner v. Primary Home Care Services, Inc., supra, this court determines that the decedent's statement to plaintiff did constitute an excited utterance that would be admissible in evidence.

Premises Liability

A property owner must act as a reasonable person in maintaining his or her property in a reasonably safe condition in view of all of the attendant circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. Whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury. Sawyers v. Troisi, 95 AD3d 1293 (2d Dept 2012).

In general, a property owner will be held liable for damages sustained in a slip-and-fall accident only when it created the dangerous condition which caused the accident, or had actual or constructive notice thereof. Spinoccia v. Fairfield Bellmore Ave., LLC, 95 AD3d 993 (2d Dept 2012). A property owner will not be held liable for accidents occurring on its property as a result of the accumulation of snow and/or ice until a reasonable period of time has passed, following the cessation of the storm, within which the owner has the opportunity to ameliorate the hazards caused by the storm. Lanos v. Cronheim, 77 AD3d 631 (2d Dept 2010).

Liability for a Domestic Animal

Under New York law, there is no common-law negligence cause of action against [*5]an owner to recover damages for injury caused by a domestic animal. Bard v. Jahnke, 6 NY3d 592 (2006); Curbelo v. Walker, 81 AD3d 772 (2d Dept 2011). Rather, the owner's liability is determined solely by application of the rule articulated in Collier v. Zambito, 1 NY3d 444 (2004).

In Collier v. Zambito, supra, which concerned a dog bite, the Court held that the owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held strictly liable for the harm the animal causes as a result of those propensities. Knowledge of vicious propensities may be established by evidence of prior acts of a similar kind of which the owner had notice; that the animal had been known to growl, snap or bare its teeth; that the owner chose to restrain the animal, and the manner in which it was restrained; and that the animal was kept as a guard animal. Collier v. Zambito, supra; see also, Curbelo v. Walker, supra. In addition, an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, may be found to have vicious propensities—albeit only when such proclivity results in the injury giving rise to the lawsuit. However, the mere fact that an animal was kept enclosed or chained or, if a dog, that it previously barked at people, is insufficient to raise a triable issue of fact as to whether it had vicious propensities. Barking and running around are consistent with normal canine behavior. Collier v. Zambito, supra. Further, the courts have never held that particular breeds or kinds of domestic animals are dangerous and, therefore, that when an individual animal of the breed or kind causes harm, its owner is charged with knowledge of vicious propensities. Bard v. Jahnke, supra.

Discussion

It has often been said that issue finding, rather than issue determination, is the key to summary judgment, so that the papers in the motion should be scrutinized carefully in the light most favorable to the party opposing relief. In re Cuttitto Family Trust, 10 AD3d 656 (2d Dept 2004); Judice v. Dingell, 272 AD2d 583 (2d Dept 2000).

Upon such review, the court finds defendants are entitled to summary judgment based upon the plaintiff's failure as a matter of law to demonstrate decedent's injury was proximately caused by the defendants' conduct. Defendants' denial, rebutted only by plaintiff's conjecture and speculation, is not sufficient to sustain her cause of action against them. Notwithstanding the court's ruling that decedent's statement is admissible as an excited utterance, summary judgment is still warranted in favor of defendants.

Defendant Patrick McGreen testified that defendants' driveway was plowed and cleared of snow and ice prior to his leaving the day of the accident, and that defendants' dog was locked inside the house and did not possess any trait that would indicate vicious propensities. This testimony further suffices to demonstrate a prima facie entitlement to judgment as a matter of law dismissing the complaint.

In opposition, plaintiff failed to raise a triable issue of fact. Allowing for the admission of the excited utterance, the decedent's statement, in and of itself, does not sufficiently identify the actual location and happening of the accident. That the decedent may have been found on the driveway after the accident is not controlling. Further, the statements in the medical records as to the location of the accident were not [*6]demonstrated to be germane to diagnosis and/or treatment and, therefore, are not admissible under the business records exception to the hearsay rule. Kamolov v. BIA Group, LLC, 79 AD3d 1101 (2d Dept 2010). Additionally, the decedent's statement in the police report (Pltf's Exh H), albeit certified, as to his fall in the driveway is likewise inadmissible hearsay, as being self-serving, and thus not probative as to the location of the accident. Hazzard v. Burrowes, 95 AD3d 829 (2d Dept 2012); Bailey v. Read, 82 AD3d 809 (2d Dept 2011).

The location of the accident is significant because, in general, a property owner has no duty to clear snow and ice from unpaved areas not intended to be used as a public walkway, as long as nearby sidewalks provide an adequate means of access to the property. Belo—Osagie v. Starrett City Ass'n, 41 AD3d 521 (2d Dept), lv. den. 9 NY3d 808 (2007); Moran v. State Duct Corp., 41 AD3d 440 (2d Dept 2007); Wesolowski v. Wesolowski, 306 AD2d 402 (2d Dept 2003).

The manner and cause of the accident are significant because a property owner is only liable for dangerous or defective snow and ice conditions on the property of which the owner had notice and a reasonably opportunity to remedy. The decedent's statement that he "misstepped" while backing up creates additional uncertainty and raises issues of contributory negligence. Similarly, the nature and source of the "crack" heard by decedent (the ice?, his ankle?) is not clear from the record.

Defendants' objection to the admissibility of the affidavit of plaintiff's weather expert, George Wright, a certified consulting meteorologist (Pltf.'s Exhibit K), is based upon the untimeliness of the expert disclosure. Defendants made a Demand for Expert Information with the filing of their Answer in June, 2010. (Deft's, Exhibit B). Plaintiff filed a note of issue and certificate of readiness in March, 2012 attesting to the completion of discovery and the lack of any outstanding requests for discovery. Notwithstanding, the identity of Wright as an expert was first disclosed in plaintiffs' affirmation in opposition to summary judgment in June, 2012. Under such circumstances, the court declines to consider the affidavit. Lombardi v. Alpine Overhead Doors, Inc., 92 AD3d 921 (2d Dept 2012); Kopeloff v. Arctic Cat, Inc., 84 AD3d 890 (2d Dept 2011); Santiago v. C & S Wholesale Grocers Inc., 83 AD3d 814 (2d Dept 2011); Ehrenberg v. Starbucks Coffee Co., 82 AD3d 829 (2d Dept 2011). In any event, even if the plaintiff's expert affidavit is considered, the result would not have been different. Santiago v. C & S Wholesale Grocers, Inc., supra. In sum, on the record presented, a finding of liability in favor of plaintiff on her cause of action to recover damages based on premises liability would necessarily be speculative.

Finally, decedent's statement does not raise a triable issue of fact as to whether defendants' dog had vicious propensities. That decedent was unsure whether the dog was friendly or not militates against such a finding. In sum, even assuming that decedent's statements are admissible, defendants demonstrated an unrebutted prima facie entitlement to judgment as a matter of law dismissing the action.

The foregoing constitutes the decision and order of the court.

Dated: Goshen, New York

August 21, 2012 [*7]

_________________________________

HON. LAWRENCE H. ECKER, J.S.C.