Opinion
2002-08188.
December 22, 2003.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated August 9, 2002, as granted the motion of the defendant Joanne Tighe for leave to reargue that branch of her prior motion which was for summary judgment dismissing the cause of action to recover damages for negligence, which was denied by order of the same court dated April 3, 2002, and upon reargument, granted that branch of the motion.
Todd M. Lewis, Sr., Port Jefferson, N.Y., for appellant.
Robert P. Tusa, Yonkers, N.Y. (David Holmes of counsel), for respondent.
Before: GLORIA GOLDSTEIN and STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in granting the motion of the defendant Joanne Tighe (hereinafter the respondent) for leave to reargue ( see generally McGill v. Goldman, 261 A.D.2d 593, 594; CPLR 2221[d]). Upon reargument, the Supreme Court properly granted summary judgment to the respondent with respect to the negligence cause of action.
There are limited circumstances in which relief may be granted under a negligence theory of recovery, rather than strict liability, for injuries caused by an animal ( see St. Germain v. Dutchess County Agric. Socy., 274 A.D.2d 146, 149-150; Schwartz v. Erpf Estate, 255 A.D.2d 35). "[W]here the conduct at issue, although not vicious, results in reasonably-foreseeable injury, the courts have recognized a right to recover for common-law negligence" ( Colarusso v. Dunne, 286 A.D.2d 37, 39).
The defendant made a prima facie showing that the injury was not reasonably foreseeable under the circumstances ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320), and, in opposition, the plaintiff failed to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557).
We note that the plaintiff's remaining contention is stricken from her brief by separate order of this court ( see Delmonte v. Tighe, A.D.2d [Appellate Division Docket No. 2002-08188, decided herewith]).
DECISION ORDER ON MOTION
Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County, dated August 9, 2002, inter alia, to strike stated portions of the appellant's brief. By decision and order on motion dated June 24, 2003, that branch of the motion which was to strike Point III of the appellant's brief was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the branch of the motion which was to strike Point III of the appellant's brief is granted.
ALTMAN, J.P., S. MILLER, GOLDSTEIN and CRANE, JJ., concur.