Opinion
CA 03-01839.
Decided March 19, 2004.
Appeal from an order of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), entered May 1, 2003. The order denied defendant's motion for summary judgment dismissing the complaint in a personal injury action.
BOUVIER, O'CONNOR, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT-APPELLANT.
BOYLAN, MORTON WHITING, LLP, LE ROY (LAURENCE W. BOYLAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when defendant's dog collided with her and knocked her to the ground. Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. "Generally, even in cases where people are not bitten, but are injured by being jumped upon [or run into] by a rambunctious dog, the owner thereof will not be subject to negligence liability for failing to restrain the dog, unless there was some prior notice of the particular behavior" ( Goldberg v. LoRusso, 288 A.D.2d 257, 259). Defendant submitted proof establishing that she lacked such prior notice, and plaintiff failed to raise a triable issue of fact ( see Althoff v. Lefebvre, 240 A.D.2d 604; White v. Bruner, 233 A.D.2d 439; see generally Collier v. Zambito, ___ N.Y.3d ___ [Feb. 18, 2004]).