Smith v. Reilly

New York Court of Appeals

Smith v. Reilly

957 N.E.2d 1149, 17 N.Y.3d 895, 933 N.Y.S.2d 645, 2011 NY Slip Op 7478

New York Court of Appeals·Decided October 25, 2011·No. 240 SSM 34·Published·Cited by 20 cases

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment dismissing the *896 complaint granted and the certified question answered in the negative.

Defendant’s submissions establish that she had no knowledge of her dog’s alleged propensity to interfere with traffic. Defendant testified that the dog had never before chased cars, bicycles or pedestrians or otherwise interfered with traffic. Testimony that the dog, on three to five occasions, escaped defendant’s control, barked, and ran towards the road is insufficient to establish a triable issue of material fact (see Collier v Zambito, 1 NY3d 444, 446 [2004]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.

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OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment dismissing the *896 complaint granted and the certified question answered in the negative.

Defendant’s submissions establish that she had no knowledge of her dog’s alleged propensity to interfere with traffic. Defendant testified that the dog had never before chased cars, bicycles or pedestrians or otherwise interfered with traffic. Testimony that the dog, on three to five occasions, escaped defendant’s control, barked, and ran towards the road is insufficient to establish a triable issue of material fact (see Collier v Zambito, 1 NY3d 444, 446 [2004]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.

Smith v. Reilly, 957 N.E.2d 1149, 17 N.Y.3d 895, 933 N.Y.S.2d 645, 2011 NY Slip Op 7478 (N.Y. 2011).

Pincite

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Opinion

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