Smith v. Reilly

Full title: John F. SMITH and Lisa Smith, Respondents, v. Marijane REILLY, Appellant.

Court: Court of Appeals of New York.

Date published: Oct 25, 2011

2011 N.Y. Slip Op. 7478 (N.Y. 2011)

933 N.Y.S.2d 645

957 N.E.2d 1149

2011 N.Y. Slip Op. 7478

Opinion

2011-10-25

John F. SMITH and Lisa Smith, Respondents, v. Marijane REILLY, Appellant.

Bond Schoeneck & King, PLLC, Syracuse (Adam P. Mastroleo of counsel), for appellant. Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, Utica (Stephanie A. Palmer of counsel), for respondents.

Chief Judge LIPPMAN and Judges CIPARICK

Bond Schoeneck & King, PLLC, Syracuse (Adam P. Mastroleo of counsel), for appellant. Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, Utica (Stephanie A. Palmer of counsel), for respondents.

MEMORANDUM:

The order of the Appellate Division should be reversed, with costs, defendant's motion for summary judgment dismissing the 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 N.Y.3d 444, 446, 775 N.Y.S.2d 205, 807 N.E.2d 254 [2004] ).

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, defendant's motion for summary judgment dismissing the complaint granted, and certified question answered in the negative, in a memorandum.