Oerlemans v. Cornish

• Decision Date: 30 September 2005
• Docket Number: CA 05-00619.
• Parties: ONNO DAG OERLEMANS et al., Respondents, v. MYLES CORNISH et al., Appellants.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 1308

801 N.Y.S.2d 197

2005 NY Slip Op 07074

ONNO DAG OERLEMANS et al., Respondents, v. MYLES CORNISH et al., Appellants.

CA 05-00619.

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

September 30, 2005.

Appeal from an order of the Supreme Court, Oneida County (John G. Ringrose, A.J.), entered June 2, 2004 in a personal injury action. The order, insofar as appealed from, denied defendants' motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Onno Dag Oerlemans when defendants' dog allegedly collided with him while he was riding his bicycle, causing him to fall to the ground. Contrary to the contention of defendants, Supreme Court properly denied their motion for summary judgment dismissing the complaint. Although defendants met their initial burden by establishing that their "dog was neither vicious nor interfered with traffic" (Elmore v. Wukovits, 288 AD2d 875, 875 [2001]; see Sinon v. Anastasi, 244 AD2d 973 [1997]), plaintiffs proffered sufficient evidence in opposition to the motion to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). Defendants' contention that the court abused its discretion in relying upon an affidavit submitted by plaintiffs in surreply to defendants' motion is raised for the first time on appeal and thus is not properly before us (see generally Ciesinski v. Town of Aurora, 202 AD2d 984, 985 [1994]). In any event, defendants' contention lacks merit (see generally Barbuto v. Winthrop Univ. Hosp., 305 AD2d 623, 623-624 [2003]; 269 Fulton Corp. v. H.A.B. Realty Assoc., 179 AD2d 752, 753 [1992], lv denied 80 NY2d 756 [1992]).

Present — Green, J.P., Scudder, Kehoe, Smith and Lawton, JJ.