Elmore v. Wukovits

• Decision Date: 09 November 2001
• Citation: 732 N.Y.S.2d 508,288 A.D.2d 875
• Court: New York Supreme Court — Appellate Division
• Parties: ROBERT E. ELMORE, Respondent,<BR>v.<BR>JULIE L. WUKOVITS et al., Appellants.

288 A.D.2d 875

732 N.Y.S.2d 508

ROBERT E. ELMORE, Respondent,

v.JULIE L. WUKOVITS et al., Appellants.

Decided November 9, 2001.

Present — Green, J. P., Hayes, Wisner, Scudder and Kehoe, JJ.

Order unanimously reversed on the law without costs, motion granted and amended complaint dismissed.

Memorandum:

Plaintiff commenced this action seeking damages for injuries he sustained when defendants' dog ran toward him, frightening him and causing him to fall from his bicycle. Defendant Patrick E. Morrow was leading his dog to his fenced-in backyard and had removed his hand from the dog's collar while he closed the front door to his house. The dog ran from the front porch, toward plaintiff. Morrow yelled at his dog to stop, and the dog stopped before reaching the road. When plaintiff saw the dog run from the porch, he braked and fell from his bicycle. Supreme Court erred in denying defendants' motion for summary judgment dismissing the amended complaint. Defendants met their initial burden by establishing that their dog was neither vicious nor interfered with traffic, and plaintiff failed to raise a triable issue of fact whether defendants had actual or constructive notice that the dog was either vicious or likely to interfere with traffic (see, Sinon v Anastasi, 244 AD2d 973; Staller v Westfall, 225 AD2d 885). Defendants testified at their depositions that, prior to the accident, their dog had never attempted to chase bicyclists or pedestrians or to run away while being led to the backyard (see, Sinon v Anastasi, supra). Contrary to plaintiff's contention, the fact that the dog would occasionally bark at people approaching defendants' property is insufficient to raise an issue of fact whether the dog had vicious propensities (see, Plennert v Abel, 269 AD2d 796; Gill v Welch, 136 AD2d 940). Finally, contrary to plaintiff's further contention, a violation of the local leash law, standing alone, is insufficient to create the requisite triable issue of fact concerning defendants' actual or constructive notice of the dog's alleged vicious propensities or interference with traffic (see, Sinon v Anastasi, supra).