Smith v. Reilly ( 2011 )

17 N.Y.3d 895 (2011) 957 N.E.2d 1149 933 N.Y.S.2d 645 2011 NY Slip Op 7478

JOHN F. SMITH et al., Respondents,
v.
MARIJANE REILLY, Appellant.

No. 240 SSM 34

Court of Appeals of New York.

Decided October 25, 2011.

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

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

Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.

OPINION OF THE COURT

MEMORANDUM.

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 NY3d 444, 446 [2004]).

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.