Sinon v. Anastasi

244 A.D.2d 973, 665 N.Y.S.2d 156, 1997 N.Y. App. Div. LEXIS 12388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1997
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint against defendant Merl J. Lewis dismissed. Memorandum: Plaintiff seeks damages for personal injuries she allegedly sustained when the motorcycle on which she was a passenger collided with a dog present in the road. The dog was owned by the son of Merl J. Lewis (defendant) and maintained at defendant’s house. Plaintiff alleges that defendant was negligent in allowing the dog to run unleashed and unattended in violation of the local leash law.

Supreme Court erred in denying the motion of defendant for summary judgment dismissing the complaint against him. “[A] plaintiff cannot recover for injuries resulting from the presence of a dog in the highway absent evidence that the defendant was aware of the animal’s vicious propensities or of its habit of interfering with traffic” (Staller v Westfall, 225 AD2d 885; see, Young v Wyman, 159 AD2d 792, affd 76 NY2d 1009; Hyde v Clute, 235 AD2d 909; Nilsen v Johnson, 191 AD2d 930). Defendant established his entitlement to judgment as a matter of law by the submission of proof in evidentiary form demonstrating that he never saw the dog chase cars or pedestrians or run into the road and that he never received any reports of the dog engaging in that behavior (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff failed to come forward with evidentiary proof in admissible form to raise an issue of fact whether defendant had actual or constructive notice that the dog was either vicious or likely to interfere with traffic (see, CPLR 3212 [b]). (Appeal from Order of Supreme Court, Niagara County, Joslin, Jr., J.—Summary Judgment.) Present— Pine, J. P., Lawton, Wisner, Balio and Fallon, JJ.