| Smith v Reilly |
| 2011 NY Slip Op 07478 [17 NY3d 895] |
| October 25, 2011 |
| Court of Appeals |
| As corrected through Wednesday, December 14, 2011 |
[*1]
| John F. Smith et al., Respondents, v Marijane Reilly, Appellant. |
Decided October 25, 2011
Smith v Reilly, 83 AD3d 1492, reversed.
APPEARANCES OF COUNSEL
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.
Memorandum.[*2]
{**17 NY3d at 896}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]).
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.