Hansen v. Perez, CA 04-00915.

• Decision Date: 19 November 2004
• Docket Number: CA 04-00915.
• Citation: 12 A.D.3d 1141,2004 NY Slip Op 08475,785 N.Y.S.2d 228
• Parties: JOSEPH R. HANSEN, Respondent, v. ROBERTO PEREZ et al., Appellants.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 1141

785 N.Y.S.2d 228

2004 NY Slip Op 08475

JOSEPH R. HANSEN, Respondent, v. ROBERTO PEREZ et al., Appellants.

CA 04-00915.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

November 19, 2004.

Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered February 9, 2004. The order denied defendants' motion for summary judgment dismissing the complaint in a personal injury action.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum:

Plaintiff commenced this action to recover damages for injuries he sustained when his motorcycle collided with defendants' dog on a public street. Supreme Court erred in denying defendants' motion for summary judgment dismissing the complaint. Defendants met their initial burden by submitting proof that they were not aware that the dog had ever chased a vehicle or run into the street prior to the accident (see Sinon v Anastasi, 244 AD2d 973 [1997]), and plaintiff failed to raise an issue of fact whether defendants had actual or constructive notice of the dog's "propensity to interfere with vehicular traffic" (Nilsen v Johnson, 191 AD2d 930, 931 [1993]; see Staller v Westfall, 225 AD2d 885 [1996]). Evidence that the dog had run loose on prior occasions is insufficient to raise an issue of fact (see Berg v Chawgo, 277 AD2d 620, 621 [2000]; Nilsen, 191 AD2d at 931), as is evidence of defendants' alleged violation of the local leash law (see Elmore v Wukovits, 288 AD2d 875 [2001]; Sinon, 244 AD2d at 973).

Present — Green, J.P., Scudder, Gorski, Martoche and Hayes, JJ.