Bain et al v. Town of Hempstead et al

Filing 43

SHORT ORDER granting 36 Motion for Summary Judgment. Written decision to follow. Ordered by Magistrate Judge A. Kathleen Tomlinson on 11/30/2020. (Tomlinson, A.)

Case 2:17-cv-06554-AKT Document 43 Filed 11/30/20 Page 1 of 2 PageID #: 893

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
DUSTIN BAIN and T.B. by his father and natural
guardian,
Plaintiffs,
- against TOWN OF HEMPSTEAD and TOWN OF
HEMPSTEAD ANIMAL SHELTHER,

ORDER
CV 17-6554 (AKT)

Defendants.
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TOWN OF HEMPSTEAD,
Third-Party Plaintiff,
- against A FURR-EVER HOME, INC., LUCRECIA
SKELLENGER, SHAWN BARROWS, and
JOYCE BARROWS,
Third-Party Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
Presently before the Court is Defendants’ motion for summary judgment against all three
of Plaintiffs’ claims. See generally Defendants’ Memorandum of Law in Support of Motion for
Summary Judgment (“Defs.’ Mem.”) [DE 36-2]; Defendants’ Reply Memorandum of Law in
Further Support of Motion for Summary Judgment (“Defs.’ Reply”) [DE 37]. Defendants claim
that there can be no strict liability against the Defendant Town where it did not own or control
the dog who inflicted injury on the minor Plaintiff and that there was no special relationship
between the Town and the Plaintiffs giving rise to a special duty of care which would render the
Town liable. Plaintiffs oppose the motion, arguing, among other things, that The Town of

Case 2:17-cv-06554-AKT Document 43 Filed 11/30/20 Page 2 of 2 PageID #: 894

Hempstead did not warn third-party defendant A Furr-Ever-Homes of the dog’s vicious
propensities and that the Town owed a special duty to Plaintiff which it breached because its
employees chose not to comply with the surrendering dog owner’s euthanasia request and
instead placed the dog elsewhere. See generally Memorandum of Law in Opposition to the
Defendants’ Motion for Summary Judgment (“Pls.’ Opp’n”) [DE 40]. Defendants’ motion for
summary judgment is hereby GRANTED. The Court’s written decision will follow.

SO ORDERED.

Dated: Central Islip, New York
November 30, 2020

/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge

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