| Tesmer v Colonna |
| 2010 NY Slip Op 06853 [77 AD3d 1305] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Monica Tesmer, as Parent and Natural Guardian of Norma Tesmer, anInfant, Respondent, v David Colonna, Appellant, et al., Defendant. |
—[*1] Cellino & Barnes, P.C., Rochester (Sareer A. Fazili of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Orleans County (Tracey A. Bannister, J.), enteredSeptember 16, 2009 in a personal injury action. The order denied the motion of defendant DavidColonna for summary judgment dismissing the complaint against him.
It is hereby ordered that the order so appealed from is unanimously reversed on the law withoutcosts, the motion is granted, summary judgment is granted in favor of defendant Terry A. Weese andthe complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by herdaughter when she was bitten by a dog owned by defendant Terry A. Weese. The incident occurredwhile plaintiff's daughter was inside the residence of Weese, which she leased from defendant DavidColonna. The complaint, as amplified by the bill of particulars, alleges that defendants are liable forcommon-law negligence and for violations of Agriculture and Markets Law § 119 and the localleash law. We conclude that Supreme Court erred in denying the motion of Colonna for summaryjudgment dismissing the complaint against him. It is well established that, in an action for damagesresulting from a dog bite, a plaintiff may recover only on a theory of strict liability and not forcommon-law negligence (see Petrone vFernandez, 12 NY3d 546, 550 [2009]; Bard v Jahnke, 6 NY3d 592, 599 [2006]; Collier v Zambito, 1 NY3d 444,446-448 [2004]). Further, a "defendant's violation of [Agriculture and Markets Law § 119 and]the local leash law is 'irrelevant because such a violation is only some evidence of negligence, andnegligence is no longer a basis for imposing liability' " for injuries sustained as the result of a dog bite(Petrone, 12 NY3d at 550). We therefore reverse the order, grant the motion and dismiss thecomplaint against Colonna. Also, pursuant to CPLR 3212 (b), we search the record and grantsummary judgment in favor of Weese dismissing the complaint against her, despite her failure to seekthat relief. Present—Martoche, J.P., Centra, Carni, Lindley and Green, JJ.