O'Brien v. Bolton

OPINION OF THE COURT Memorandum. Order modified by denying defendant Agnes Bolton’s motion for summary judgment and remanding the matter to the court [815] below for all further proceedings and, as so modified, affirmed without costs. The plaintiffs, husband and wife, brought this action to recover for injuries allegedly sustained when a dog harbored by defendant Agnes Bolton jumped up on a table and caused a lamp to fall upon plaintiff Elizabeth O’Brien. The plaintiffs adduced evidence, which, if credited, established that the dog had previously jumped on a person present at the time and had otherwise behaved erratically before the injury. This was sufficient to raise a factual issue as to whether the injury was foreseeable, thereby requiring defendant to take measures to prevent its occurrence (see, Stoop v Kurtz, 121 AD2d 529; see also, Lagoda v Dorr, 28 AD2d 208; cf., Kennet v Sossnitz, 260 App Div 759, affd 286 NY 623).