ROBERTS v. JOLLER (2007)

 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 A.D.3d 1308, 801 N.Y.S.2d 197;  Hansen v. Perez, 12 A.D.3d 1141, 785 N.Y.S.2d 228;  Sinon v. Anastasi, 244 A.D.2d 973, 665 N.Y.S.2d 156).   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 A.D.3d 1141, 785 N.Y.S.2d 228;  see Staller v. Westfall, 225 A.D.2d 885, 639 N.Y.S.2d 147;  Nilsen v. Johnson, 191 A.D.2d 930, 931, 594 N.Y.S.2d 913).   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 A.D.3d 1141, 785 N.Y.S.2d 228;  Berg v. Chawgo, 277 A.D.2d 620, 621, 714 N.Y.S.2d 838;  Nilsen, 191 A.D.2d at 931, 594 N.Y.S.2d 913), “as is evidence of defendants' alleged violation of the local leash law” (Hansen, 12 A.D.3d 1141, 785 N.Y.S.2d 228;  see Elmore v. Wukovits, 288 A.D.2d 875, 732 N.Y.S.2d 508).

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: