Staller v. Westfall
| Decision Date | 07 March 1996 |
| Citation | 639 N.Y.S.2d 147,225 A.D.2d 885 |
| Parties | Jud A. STALLER et al., Appellants, v. John WESTFALL, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Poushter, Marshall & Leberman P.C. (William J. Leberman, of counsel), Syracuse, for appellants.
Johnson, Atkinson, Getnick & Livingston (Louis P. Gigliotti, of counsel), Utica, for respondent.
Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.
Appeal from an order of the Supreme Court (Tait, Jr., J.), entered May 30, 1995 in Madison County, which granted defendant's motion for summary judgment dismissing the complaint.
Plaintiff Jud A. Staller sustained the injuries forming the basis for this action when defendant's dog, an eight-month-old mixed-breed Labrador and Husky, proceeded into the road in front of his bicycle, causing a collision. Whether the action is pleaded in negligence or in strict liability, a plaintiff cannot recover for injuries resulting from the presence of a dog in the highway absent evidence that the defendant was aware of the animal's vicious propensities or of its habit of interfering with traffic (see, Toolan v. Hertel, 201 A.D.2d 816, 607 N.Y.S.2d 198; Nilsen v. Johnson, 191 A.D.2d 930, 594 N.Y.S.2d 913; Young v. Wyman, 159 A.D.2d 792, 793-794, 551 N.Y.S.2d 1009, affd. 76 N.Y.2d 1009, 565 N.Y.S.2d 752, 566 N.E.2d 1157). Here, there was no evidence that defendant possessed actual or constructive notice that his dog was either vicious or likely to interfere with traffic, and we are not persuaded that the dog's age, size or breed, or the fact that it was not chained or otherwise prevented from entering the roadway, provided an independent basis for liability (see, id.). Under the circumstances, we conclude that Supreme Court properly granted summary judgment dismissing the complaint (see, Toolan v. Hertel, supra ).
ORDERED that the order is affirmed, with costs.
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