BUTLER v. BRISCHOUX (1997)

Supreme Court, Appellate Division, Second Department, New York.

Jake BUTLER, etc., et al., Respondents, v. Philip BRISCHOUX, et al., Appellants.

Decided: November 17, 1997

Before BRACKEN, J.P., and PIZZUTO, ALTMAN and KRAUSMAN, JJ.

Boeggeman, George, Hodges & Corde, P.C., White Plains (Richard G. Corde, of counsel; Leslie K. Arfine, on the brief), for appellant. Finkelstein, Levine, Gittelsohn & Tetenbaum, Newburgh (James W. Shuttleworth III, of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Orange County (Owen, J.), dated January 27, 1997, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The infant plaintiff was injured when, while playing in the defendants' yard, the defendants' dog ran at him and they collided. In response to the defendants' motion for summary judgment, the plaintiffs failed to come forward with evidence establishing either the existence of a vicious propensity on the part of the dog, or the defendants' knowledge of any such vicious propensity. Consequently, the Supreme Court erred in denying the motion (see, Althoff v. Lefebvre, 240 A.D.2d 604, 658 N.Y.S.2d 695).

MEMORANDUM BY THE COURT.

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