Smith v. Reilly

• Citation: 933 N.Y.S.2d 645,957 N.E.2d 1149,17 N.Y.3d 895,2011 N.Y. Slip Op. 07478
• Parties: John F. SMITH and Lisa Smith, Respondents, v. Marijane REILLY, Appellant.
• Decision Date: 25 October 2011
• Court: New York Court of Appeals Court of Appeals

17 N.Y.3d 895
2011 N.Y. Slip Op. 07478
933 N.Y.S.2d 645
957 N.E.2d 1149

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

Court of Appeals of New York.

Oct. 25, 2011.

Bond Schoeneck & King, PLLC, Syracuse (Adam P. Mastroleo of counsel), for appellant.

[933 N.Y.S.2d 646]

Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz, Utica (Stephanie A. Palmer of counsel), for respondents.

MEMORANDUM:

[17 N.Y.3d 896] [957 N.E.2d 1149] 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[957 N.E.2d 1150] granted, and certified question answered in the negative, in a memorandum.