O'Brien v. Bolton

185 Misc. 2d 814, 714 N.Y.S.2d 413, 2000 N.Y. Misc. LEXIS 407

Opinions

OPINION OF THE COURT

Memorandum.

Order modified by denying defendant Agnes Bolton’s motion for summary judgment and remanding the matter to the court below for all further proceedings and, as so modified, affirmed without costs.

The plaintiffs, husband and wife, brought this action to recover for injuries allegedly sustained when a dog harbored by defendant Agnes Bolton jumped up on a table and caused a lamp to fall upon plaintiff Elizabeth O’Brien. The plaintiffs adduced evidence, which, if credited, established that the dog had previously jumped on a person present at the time and had otherwise behaved erratically before the injury. This was sufficient to raise a factual issue as to whether the injury was foreseeable, thereby requiring defendant to take measures to prevent its occurrence (see, Stoop v Kurtz, 121 AD2d 529; see also, Lagoda v Dorr, 28 AD2d 208; cf., Kennet v Sossnitz, 260 App Div 759, affd 286 NY 623).