Roberts v. Joller

Appeal from an order of the Supreme Court, Wayne County (Stephen R. Sirkin, A.J.), entered June 8, 2006 in a personal injury action. The order denied defendants’ motion for summary judgment dismissing the amended complaint. 1225 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 amended complaint is dismissed. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Kevin R Roberts when defendants’ dog collided with him while he was riding his bicycle on a public street. Supreme Court erred in denying defendants’ motion for summary judgment dismissing the amended complaint. Defendants met their initial burden by submitting evidence establishing that, prior to the accident at issue, their dog had not run into the street or chased a vehicle or bicycle (see Oerlemans v Cornish, 21 AD3d 1308 [2005]; Hansen v Perez, 12 AD3d 1141 [2004]; Sinon v Anastasi, 244 AD2d 973 [1997]). Plaintiffs “failed to raise an issue of fact whether defendants had actual or constructive notice of the dog’s ‘propensity to interfere with vehicular traffic’ ” (Hansen, 12 AD3d 1141 [2004]; see Staller v Westfall, 225 AD2d 885 [1996]; Nilsen v Johnson, 191 AD2d 930, 931 [1993]). Evidence that the dog had escaped from the backyard once or twice prior to the accident is insufficient to raise an issue of fact to defeat the motion (see Hansen, 12 AD3d 1141 [2004]; 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” (Hansen, 12 AD3d 1141 [2004]; see Elmore v Wukovits, 288 AD2d 875 [2001]). Present—Hurlbutt, J.P., Martoche, Smith, Centra and Peradotto, JJ.