Dobinski v Lockhart

Dobinski v Lockhart 2014 NY Slip Op 06758 Decided on October 3, 2014 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
1039 CA 14-00100

[*1]CHERYL DOBINSKI, PLAINTIFF-RESPONDENT,

v

GEORGE O. LOCKHART AND MILAGROS LOCKHART, DEFENDANTS-APPELLANTS.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered November 15, 2013. The order denied the motion of defendants for summary judgment dismissing the amended complaint.

WALSH, ROBERTS & GRACE, BUFFALO (MARK P. DELLA POSTA OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

DENNIS J. BISCHOF, LLC, WILLIAMSVILLE (DENNIS J. BISCHOF OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the amended complaint is dismissed.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she collided with a dog owned by defendants while riding her bicycle in front of defendants' house. We agree with defendants that Supreme Court erred in denying their motion seeking summary judgment dismissing the amended complaint. Here, defendants met their initial burden by establishing that they lacked actual or constructive knowledge that the dog had a propensity to interfere with traffic (see Myers v MacCrea, 61 AD3d 1385, 1386; see also Smith v Reilly, 17 NY3d 895, 896; Buicko v Neto, 112 AD3d 1046, 1046-1047). In opposition to the motion, plaintiff failed to raise a triable issue of fact in that respect (see Buicko, 112 AD3d at 1047; Myers, 61 AD3d at 1386; see generally Zuckerman v City of New York, 49 NY2d 557, 562). We therefore reverse the order, grant defendants' motion, and dismiss the amended complaint.

Entered: October 3, 2014

Frances E. Cafarell

Clerk of the Court