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Re: The Rogak Report: The Most Useful Publication In The Insurance Claims Industry Don't Have a Cow: No Liability for Moo-ving Violation

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  • Lawrence
    Depends. I think no-fault would pay for ac-moo-puncture and moo-sage therapy. Larry Rogak ... ONTO ...
    Message 1 of 3 , Apr 10, 2012
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      Depends.    I think no-fault would pay for ac-moo-puncture and moo-sage therapy.

      Larry Rogak


      --- In TheRogakReport@yahoogroups.com, Jeena Belil <jeena.belil@...> wrote:
      >
      > But, the real question...is the COW entitled to No Fault benefits?
      >
      > : D
      >
      > Jeena R. Belil, Esq.
      > Belil & Varriale, PC
      > Counsel to NY Healthcare Providers and the Patients They Treat
      > 150 Motor Parkway, Suite 401
      > Hauppauge, New York 11788
      > Tel: 631-828-5552
      > Txt: 631-445-7380
      > Fax: 631-514-3615
      > www.jeenabelil.com
      > Follow me at http://twitter.com/JeenaBelil
      >
      > <http://twitter.com/JeenaBelil>
      >
      >
      >
      >
      > On Tue, Apr 10, 2012 at 2:28 PM, Lawrence insurancelawyer@... wrote:
      >
      > > **
      > >
      > >
      > > COW'S OWNER HAS NO LIABILITY FOR COLLISION WITH CAR WHEN IT WANDERED ONTO
      > > ROAD
      > >
      > > *Hastings v Sauve<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm>
      > > *2012 NY Slip Op 02535 Decided on April 5, 2012Appellate Division, Third
      > > DepartmentEdited by Lawrence N. Rogak <http://www.newyorkpip.com>
      > >
      > >
      > > .
      > >
      > > Appeal from an order of the Supreme Court (Demarest, J.), entered March 3,
      > > 2011 in Franklin County, which granted motions by defendants Laurier Sauve
      > > and William Delarm for summary judgment dismissing the complaint against
      > > them.
      > >
      > > At approximately 1:30 A.M. on September 11, 2007, plaintiff Karen Hastings
      > > (hereinafter plaintiff) was injured when her vehicle collided with a cow on
      > > County Route 53 in the Town of Bangor, Franklin County. The cow had
      > > wandered onto Route 53 from a farm owned by defendant Laurier Sauve that
      > > was located next to the highway. Defendant William Delarm operated a cattle
      > > shipping business and used a corral on Sauve's property to temporarily
      > > store cattle before they were shipped for slaughter. Defendant Albert
      > > Williams assisted Delarm in his cattle business, and he claims that the cow
      > > that was struck by plaintiff's motor vehicle was one of several he kept in
      > > a fenced pasture on Sauve's property.
      > >
      > > In 2008, plaintiff and her husband, derivatively, commenced this action
      > > alleging that defendants were negligent in not properly confining the cow
      > > to the pasture and by allowing it to wander onto the adjacent highway
      > > causing this accident. Sauve and Delarm's motion for summary judgment
      > > dismissing the complaint was granted by Supreme Court, and this appeal by
      > > plaintiffs ensued.*[FN1]*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#1FN>
      > >
      > > Initially, we note that plaintiffs, in their complaint, only alleged that
      > > defendants were negligent in failing to restrain the cow, and did not plead
      > > a cause of action against defendants alleging that they were strictly
      > > liable for the damages caused in this accident. However, claims involving
      > > "'injuries inflicted by domestic animals may *only* proceed under strict
      > > liability based on the owner's knowledge of the animal's vicious
      > > propensities, not on theories of common-law negligence'" (*Rose v Heaton*,
      > > 39 AD3d 937<http://www.nycourts.gov/reporter/3dseries/2007/2007_02850.htm>,
      > > 939 [2007], quoting *Morse v Colombo*, 31 AD3d 916<http://www.nycourts.gov/reporter/3dseries/2006/2006_05695.htm>,
      > > 917 [2006]; *see Petrone v Fernandez*, 12 NY3d 546<http://www.nycourts.gov/reporter/3dseries/2009/2009_04694.htm>,
      > > 550 [2009]; *Bard v Jahnke*, 6 NY3d 592<http://www.nycourts.gov/reporter/3dseries/2006/2006_03440.htm>,
      > > 598 [2006]; *Collier v Zambito*, 1 NY3d 444<http://www.nycourts.gov/reporter/3dseries/2004/2004_00960.htm>,
      > > 445-446 [2004]; *Gannon v Conti*, 86 AD3d 704<http://www.nycourts.gov/reporter/3dseries/2011/2011_05849.htm>,
      > > 705 [2011]*[FN2]*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#2FN>.
      > > Therefore, plaintiffs' claim alleging that Delarm and Sauve were negligent
      > > in regard to the damages caused by this animal was properly dismissed.
      > > Moreover, even though Williams did not move for summary judgment, for the
      > > same reasons that liability cannot be imposed upon Sauve and Delarm, no
      > > liability can be imposed against him. Therefore, we grant summary judgment
      > > dismissing the complaint against Williams, without reaching the issue of
      > > ownership.*[FN3]*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#3FN>
      > >
      > > Had plaintiffs alleged a cause of action against defendants based on
      > > strict liability, they would have been required to present evidence that
      > > this particular cow had a vicious or abnormal propensity that caused this
      > > accident — and defendants knew or should have known of it (*see Petrone v
      > > Fernandez*, 12 NY3d at 550; *Bernstein v Penney Whistle Toys, Inc.*, 10
      > > NY3d 787 <http://www.nycourts.gov/reporter/3dseries/2008/2008_02463.htm>,
      > > 788 [2008];*Bard v Jahnke*, 6 NY3d at 601; *Collier v Zambito*, 1 NY3d at
      > > 446-477; *Vichot v Day*, 80 AD3d 851<http://www.nycourts.gov/reporter/3dseries/2011/2011_00077.htm>,
      > > 852 [2011). Since no such claim has been made by plaintiffs, and no
      > > evidence to that effect has been presented, any claim that they were
      > > strictly liable for plaintiffs' injuries would also have been dismissed (*see
      > > Vichot v Day*, 80 AD3d at 852).
      > >
      > > While we are obligated to affirm Supreme Court's dismissal of plaintiffs'
      > > claims against Delarm and Sauve, we must note our discomfort with this rule
      > > of law as it applies to these facts — and with this result. There can be
      > > no doubt that the owner of a large animal such as a cow or a horse assumes
      > > a very different set of responsibilities in terms of the animal's care and
      > > maintenance than are normally undertaken by someone who owns a household
      > > pet. The need to maintain control over such a large animal is obvious,
      > > and the risk that exists if it is allowed to roam unattended onto a public
      > > street is self-evident and not created because the animal has a vicious or
      > > abnormal propensity.
      > >
      > > Here, plaintiff was injured not because the cow was vicious or abnormal,
      > > but because defendants allegedly failed to keep it confined on farm
      > > property and, instead, allowed it to wander unattended onto the adjacent
      > > highway in the middle of the night, causing this accident. The existence
      > > of any abnormal or vicious propensity played no role in this accident, yet,
      > > under the law as it now exists, defendants' legal responsibility for what
      > > happened is totally dependent upon it. For this reason, we believe in
      > > this limited circumstance, traditional rules of negligence should apply to
      > > determine the legal responsibility of the animal's owner for damages it may
      > > have caused. However, it is not for this Court to alter this rule and,
      > > while it is in place, we are obligated to enforce it. Therefore, for
      > > reasons previously stated, Supreme Court's order granting the motion for
      > > summary judgment by Delarm and Sauve should in all respects be affirmed.
      > >
      > > Peters, J.P., Lahtinen, Stein and Garry, JJ., concur.
      > >
      > > ORDERED that the order is modified, on the law, with costs to defendants
      > > Laurier Sauve and William Delarm, by granting summary judgment dismissing
      > > the complaint against defendant Albert Williams, and, as so modified,
      > > affirmed.
      > > *Footnotes*
      > >
      > >
      > > *Footnote 1:*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#1CASE> Williams
      > > did not join in this motion and has not appeared on this appeal.
      > >
      > > *Footnote 2:*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#2CASE> Cattle
      > > are included in the definition of domestic animals under the Agriculture
      > > and Markets Law (*see* Agriculture and Markets Law § 108 [7]; *see
      > > generally Bard v Jahnke*, 6 NY3d at 592).
      > >
      > > *Footnote 3:*<http://www.nycourts.gov/reporter/3dseries/2012/2012_02535.htm#3CASE> This
      > > Court may search the record and grant summary judgment to a nonappealing,
      > > nonmoving party (*see Shields v Carbone*, 78 AD3d 1440<http://www.nycourts.gov/reporter/3dseries/2010/2010_08661.htm>,
      > > 1443 n 3 [2010]; *Luby v Rotterdam Sq., L.P.*, 47 AD3d 1053<http://www.nycourts.gov/reporter/3dseries/2008/2008_00154.htm>,
      > > 1055 [2008]).
      > >
      > >
      > >
      >
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