| Myers v MacCrea |
| 2009 NY Slip Op 03274 [61 AD3d 1385] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| Stephen Myers et al., Appellants, v William R. MacCrea et al.,Respondents. |
—[*1] Wagner & Hart, LLP, Olean (Janine C. Fodor of counsel), for defendants-respondentsWilliam R. MacCrea, Dolores J. Zimmerman MacCrea, Kevin MacCrea, Rory MacCrea, DebraMacCrea and Alex MacCrea.
Appeal from an order of the Supreme Court, Allegany County (Mark H. Dadd, A.J.), enteredJuly 23, 2007. The order granted the motions of defendants for summary judgment and dismissedthe complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byStephen Myers (plaintiff) when he fell from his bicycle upon colliding with one of two dogs thatran into the road adjacent to property owned jointly by five of the seven defendants. Althoughplaintiff has no memory of the accident, his son was riding his bicycle approximately five yardsbehind plaintiff at that time, and he testified at his deposition that the dogs ran into the road infront of plaintiff's bicycle. The two dogs fit the general description of dogs owned, respectively,by defendants Rory MacCrea and Debra MacCrea and defendant Colin MacCrea, their son.Contrary to plaintiffs' contention, Supreme Court properly granted the motions of defendantsseeking summary judgment dismissing the complaint. Defendants met their initial burden bysubmitting evidence establishing that they lacked actual or constructive knowledge that either ofthe two dogs had a propensity to interfere with traffic on the road (see Roberts v Joller, 39 AD3d1224 [2007]; Alia v Fiorina, 39AD3d 1068, 1069 [2007]; seegenerally Collier v Zambito, 1 NY3d 444, 446-447 [2004]). The evidence submitted byplaintiffs establishing that defendants' dogs were permitted to run loose on the 100-acre farm isinsufficient to raise a triable issue of fact whether defendants had prior knowledge that either doghad a propensity to interfere with traffic (see Alia, 39 AD3d at 1069; see generallyRoberts, 39 AD3d 1224 [2007]). The statement of defendant Dolores [*2]J. Zimmerman MacCrea to an investigator retained by plaintiff thatthe accident was caused by defendant Colin MacCrea's dog and the statement of defendant DebraMacCrea either to plaintiff wife or to plaintiffs' son that the dogs were "trouble" when they weretogether are also insufficient to raise a triable issue of fact whether the dogs had a propensity tointerfere with traffic (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Present—Scudder, P.J., Peradotto, Carni, Green and Gorski, JJ.