Opinion
11-20-2015
Wayne ANTINORE, Plaintiff–Appellant, v. John IVISON, Defendant–Respondent.
Cellino & Barnes, P.C., Rochester (Sean P. Kelley of Counsel), for Plaintiff–Appellant. Law Offices of John Trop, Rochester (Tiffany Lee D'Angelo of Counsel), for Defendant–Respondent. PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.
Cellino & Barnes, P.C., Rochester (Sean P. Kelley of Counsel), for Plaintiff–Appellant.
Law Offices of John Trop, Rochester (Tiffany Lee D'Angelo of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, WHALEN, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM:
12 Plaintiff commenced this action seeking damages for injuries he sustained when he collided with a dog owned by defendant while riding his bicycle in front of defendant's house. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. As the Court of Appeals recently reaffirmed, a cause of action for ordinary negligence does not lie against the owner of a dog that causes injury, and thus the court properly granted defendant's motion for summary judgment dismissing the complaint to the extent that it was premised on defendant's purported negligence in handling his dog (see Doerr v. Goldsmith, 25 N.Y.3d 1114, 1116, 14 N.Y.S.3d 726, 35 N.E.3d 796; see also Smith v. Reilly, 17 N.Y.3d 895, 896, 933 N.Y.S.2d 645, 957 N.E.2d 1149; Petrone v. Fernandez, 12 N.Y.3d 546, 547–551, 883 N.Y.S.2d 164, 910 N.E.2d 993; Collier v. Zambito, 1 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254). Further, we conclude that the court properly granted defendant's motion with respect to plaintiff's strict liability claim. Defendant met his initial burden by establishing that he lacked actual or constructive knowledge that the dog had a propensity to interfere with traffic on the road (see Myers v. MacCrea, 61 A.D.3d 1385, 1386, 876 N.Y.S.2d 806; see also Doerr, 25 N.Y.3d at 1116, 14 N.Y.S.3d 726, 35 N.E.3d 796; Smith, 17 N.Y.3d at 896, 933 N.Y.S.2d 645, 957 N.E.2d 1149; Buicko v. Neto, 112 A.D.3d 1046, 1046–1047, 976 N.Y.S.2d 610), and plaintiff failed to raise a triable issue of fact (see Buicko, 112 A.D.3d at 1046–1047, 976 N.Y.S.2d 610; Myers, 61 A.D.3d at 1386, 876 N.Y.S.2d 806; see also Smith, 17 N.Y.3d at 896, 933 N.Y.S.2d 645, 957 N.E.2d 1149; Collier, 1 N.Y.3d at 447, 775 N.Y.S.2d 205, 807 N.E.2d 254).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.