Opinion
2002-1664 OR C.
Decided October 21, 2003.
Appeal by defendant from a small claims judgment of the Justice Court, Town of Highlands, Orange County (V. Donaldson, J.), entered on July 24, 2002, awarding plaintiff the principal sum of $1,748.
Judgment unanimously reversed without costs and action dismissed.
PRESENT: DOYLE, P.J., RUDOLPH and SKELOS, JJ.
Generally, at common law, "a plaintiff cannot recover for injuries resulting from the presence of a dog on a highway absent evidence that the defendant was aware of the animal's vicious propensities or was aware of its habit of interfering with traffic" ( Staller v. Westfall, 225 AD2d 885; Akley v. Clemons, 237 AD2d 780; Young v. Wyman, 159 AD2d 792, affd 76 NY2d 1009), and liability cannot be premised solely on the fact that the dog was unleashed ( see Althoff v. Lefebvre, 240 AD2d 604). In view of the foregoing, we find that plaintiff failed to establish that defendant was liable for the damage to plaintiff's motorcycle. Inasmuch as the small claims court failed to render substantial justice between the parties (UJCA 1807), the judgment is reversed and the action is dismissed.