Supreme Court, Appellate Division, Second Department, New York
Cohen v. Kretzschmar
30 A.D.3d 555 ((N.Y.A.D. 2 Dept. 2006)
The New York Supreme Court, Appellate Division, held that the owners established that their dog did not have a propensity to jump up on people, and that they were not negligent in the manner in which they handled the dog at the time of the alleged accident. The judgment granting defendants' motion for summary judgment was affirmed.
Opinion of the Court:
*1 In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Murphy, J.), entered August 11, 2004, which granted the defendants' motion for summary judgment dismissing the complaint and (2) a judgment of the same court dated August 20, 2004, which, upon the order, dismissed the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a] ).
The defendants established their entitlement to judgment as a matter of law by demonstrating that their dog did not have a propensity to jump up on people and that they did not have prior notice of any such propensity ( see Slacin v. Aquafredda, 2 A.D.3d 624, 768 N.Y.S.2d 341; Althoff v. Lefebvre, 240 A.D.2d 604, 658 N.Y.S.2d 695; see also Bard v. Jahnke, 6 N.Y.3d 592, 815 N.Y.S.2d 16, 848 N.E.2d 463). Moreover, the defendants demonstrated that they were not negligent in the manner in which they handled their dog at the time of the alleged accident ( cf. Clifford v. Turkel, 7 A.D.3d 251, 776 N.Y.S.2d 550; Goldberg v. LoRusso, 288 A.D.2d 257, 733 N.Y.S.2d 117). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact.