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Smith v. Reilly

17 N.Y.3d 895 Court N.Y. Decision date 2011-10-25 English

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p. 895
[957 NE2d 1149, 933 NYS2d 645]
John F. Smith et al., Respondents, v Marijane Reilly, Appellant.
Decided October 25, 2011
APPEARANCES OF COUNSEL
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.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment dismissing the

p. 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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