Courchaine v. Morken

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J., for Robert J. Lunn, J.), entered October 14, 2005 in a personal .injury action. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiffs motion for partial summary judgment on liability. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying plaintiffs motion and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this action, individually and on behalf of her son, seeking damages for injuries sustained by her son when defendant’s dog bit her son’s face. Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint but erred in granting plaintiffs motion for partial summary judgment on liability. There is an issue of fact whether defendant was aware that his dog had “a propensity to act in a manner that may endanger the safety of another” (Provorse v Curtis, 288 AD2d 832, 832 [2001]; see Marquardt v Milewski, 288 AD2d 928 [2001]; see generally Collier v Zambito, 1 NY3d 444, 446-447 [2004]). We therefore modify the order accordingly. Present—Kehoe, J.E, Gorski, Martoche, Smith and Pine, JJ.