                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: March 5, 2015                      518790
_________________________________

EDGAR LAWRENCE et al.,
                    Respondents-
                    Appellants,
      v
                                             MEMORANDUM AND ORDER
NORTH COUNTRY ANIMAL CONTROL
   CENTER, INC., Doing Business
   as NORTH COUNTRY ANIMAL
   SHELTER, et al.,
                    Appellants-
                    Respondents.
_________________________________


Calendar Date:    January 14, 2015

Before:    Peters, P.J., McCarthy, Garry and Rose, JJ.

                              __________


      Law Offices of Susan B. Owens, New York City (Paul J.
Catone of counsel), for appellants-respondents.

      Schneider & Palcsik, Plattsburgh (Mark Schneider of
counsel), for respondents-appellants.

                              __________


Rose, J.

      Cross appeals from an order of the Supreme Court (Ellis,
J.), entered November 15, 2013 in Franklin County, which, among
other things, partially granted defendants' motion for summary
judgment dismissing the complaint.

      Plaintiffs adopted a basset hound named Brutus from
defendant North Country Animal Control Center, Inc. (hereinafter
the Center), a not-for-profit animal shelter, on July 3, 2010.
According to plaintiffs, defendant Toni Tuper, an employee of the
                              -2-                518790

Center, informed them that Brutus had exhibited food aggression
toward a child in his prior home, that the prior owner did not
know how to handle him and that it would not be fair to label the
dog as aggressive. Plaintiffs allege that Brutus bit them on
their arms without injury on three different occasions prior to
July 20, 2010, when he then attacked one of plaintiffs' other
dogs. After plaintiff Edgar Lawrence was able to separate the
animals, Brutus attacked him, causing severe injuries to both
arms. Tuper removed Brutus from plaintiffs' home that same day.
The Center subsequently refused to return Brutus to plaintiffs
and eventually sent the dog to a basset hound rescue organization
in Pennsylvania. The whereabouts of Brutus are currently
unknown, despite plaintiffs' attempt to locate him. Plaintiffs
located Brutus' prior owner, however, who indicated that the dog
had been turned over to the Center in May 2010 to be euthanized
because he had attacked the owner and her child.

      Plaintiffs commenced this action seeking to recover damages
for Lawrence's injuries, asserting causes of action for, among
other things, negligence, fraudulent misrepresentation, products
liability and intentional infliction of emotional distress.
After joinder of issue, defendants moved for summary judgment
dismissing the complaint and plaintiffs cross-moved to amend the
complaint and for summary judgment on their claim of intentional
spoliation. Supreme Court granted the cross motion to amend,
denied plaintiffs' cross motion for summary judgment and treated
the claim for spoliation as a request for sanctions pursuant to
CPLR 3126. The court declined to impose sanctions for
defendants' failure to produce Brutus, without prejudice to
plaintiffs' ability to raise the issue again after the completion
of discovery. Supreme Court also partially granted defendants'
motion by dismissing the claims for products liability and for
violation of Agriculture and Markets Law §§ 123 and 374.
Defendants appeal and plaintiffs cross-appeal.

      Defendants argue that because Brutus bit plaintiffs three
times prior to the attack that is the subject of the complaint,
plaintiffs could not have reasonably relied on defendants'
representations as to the dog's behavior and cannot state a claim
for fraudulent or negligent misrepresentation. Defendants also
argue that those causes of action must fail because plaintiffs
                              -3-                518790

could have learned of Brutus' aggressive nature with due
diligence. We are not persuaded. In order to establish their
claims for negligent and fraudulent misrepresentation, plaintiffs
must demonstrate that they justifiably relied on defendants'
misrepresentations (see J.A.O. Acquisition Corp. v Stavitsky, 8
NY3d 144, 148 [2007]; Sutton v Hafner Valuation Group, Inc., 115
AD3d 1039, 1041 [2014]; Zelber v Lewoc, 6 AD3d 1043, 1044
[2004]). Here, plaintiffs allege that they would not have
adopted Brutus if they had been told the truth regarding his
prior owner's reason for turning him over to the Center.
Plaintiffs also allege that, after the three biting incidents,
they sought the assistance of trainers to deal with what they
perceived as a minor issue. Plaintiffs, who have experience
owning and training animals, note that the three prior bites did
not break the skin and were far different from the aggressive
nature of the later attack. Plaintiffs only learned about
Brutus' prior history when they were able to track down the prior
owner by posting flyers and they submitted affidavits from the
prior owner and her friend regarding their experiences with
Brutus and their intent to have him euthanized when they took him
to the Center. Under these circumstances, issues of fact exist
as to whether plaintiffs reasonably relied on defendants'
misrepresentation and whether plaintiffs could have discovered
Brutus' dangerous nature with due diligence (see Revell v Guido,
101 AD3d 1454, 1457-1458 [2012]; Pettis v Haag, 84 AD3d 1553,
1555 [2011]; Bethka v Jensen, 250 AD2d 887, 888 [1998]).

      Nor are we persuaded by defendants' contention that the
waiver included in the adoption agreement is sufficient to
preclude plaintiffs from recovering for negligence. In order for
a contract clause to exculpate a party from its own negligence,
the parties' intention to do so must be "expressed clearly and in
unequivocal terms" (Gross v Sweet, 49 NY2d 102, 110 [1979]
[internal quotation marks and citation omitted]; accord Rigney v
Ichabod Crane Cent. School Dist., 59 AD3d 842, 843 [2009]).
Here, the clause at issue does not preclude plaintiffs' claims,
as it does not "advise the signor that the waiver extends to
claims that might arise from the defendant's own negligence"
(Rigney v Ichabod Crane Cent. School Dist., 59 AD3d at 843; see
Layden v Plante, 101 AD3d 1540, 1543 [2012]).
                              -4-                518790

      We must agree, however, with defendants' argument that the
claim for intentional infliction of emotional distress should
have been dismissed. In order to establish such a claim,
plaintiffs are required to demonstrate, among other things,
conduct on the part of defendants that was "so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community" (Howell v New York Post
Co., 81 NY2d 115, 122 [1993] [internal quotation marks and
citations omitted]; accord Christenson v Gutman, 249 AD2d 805,
808 [1998]). Here, plaintiffs allege that defendants reported
them to the Department of Environmental Conservation for
harboring racoons, resulting in an investigation that determined
the allegation to be unfounded. Even accepting these facts as
true, they do not satisfy the "rigorous . . . and difficult to
satisfy requirements for a viable cause of action for intentional
infliction of emotional distress" (Associates First Capital v
Crabill, 51 AD3d 1186, 1189 [2008], lv denied 11 NY3d 702 [2008]
[internal quotation marks and citation omitted]).

      Turning to the cross appeal, we find no error in Supreme
Court's determination to treat the spoliation claim as a request
for sanctions pursuant to CPLR 3126, inasmuch as the Court of
Appeals has specifically "decline[d] to recognize spoliation of
evidence as an independent tort claim" (Ortega v City of New
York, 9 NY3d 69, 83 [2007]). Nor have plaintiffs provided any
relevant authority for the proposition that a claim for products
liability may be stated based on the behavior of an animal
adopted from a shelter.

      We have considered the parties' remaining contentions and
find them to be unavailing.

     Peters, P.J., McCarthy and Garry, JJ., concur.
                              -5-                  518790

      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied that part of
defendants' motion as sought dismissal of the cause of action for
intentional infliction of emotional distress; motion granted to
that extent and said cause of action dismissed; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
