In this case the plaintiff and respondent is an infant, Norma Tesmer. She is represented by Monica Tesmer who is her natural guardian and parent. The defendants and appellants in the case are David Colonna and Terry A. Weese. Norma Tesmer, the plaintiff and respondent is represented by the law offices of Cellino & Barnes P.C. from Rochester. The counsel for the plaintiff is Sareer A. Fazili. The defendant is represented by the law offices of Hiscock & Barclay, LLP from Buffalo. The counsel for the defendant is Brian G. Manka. This case is being heard in the Appellate Division of the Supreme Court, Fourth Department in New York. The judges present in the case are Martoche, J.P., Carni, Lindley, Centra, and Green, JJ.
The plaintiff brought forth this case against the defendants when her daughter was bitten by a dog when at the home of Terry A. Weese. The home in which this incident took place was owned by the defendant David Colonna.
The complaint that is issued by the plaintiff states that the defendants are both liable for damages under common law negligence. It also states the defendants were in violation of section 119 of the Agriculture and Markets Law as well as the local leash laws.
This case is an appeal from defendant David Colonna for the original verdict in the Supreme Court case that held him liable for the damages and injuries sustained by the infant while on a property that he owned.
Court Discussion and Decision
When reviewing this particular case we find that the original Supreme Court who ruled in this particular case has made an error. In the original case the defendant, David Colonna made a motion for summary judgment to dismiss the complaint that had been made against him. The Supreme Court denied this motion and this was not the correct ruling.
It is well known that in cases that involve damages and injuries sustained from a dog bite the plaintiff is only allowed to recover damages from the theory of strict liability. There is no option to recover from common law negligence. There are several cases that have been ruled in this matter. These include the cases of Petrone versus Fernandez, Bard Versus Jahnke, and Collier versus Zambito.
In addition, the complaint stating that the defendant was in violation of the Agriculture and Markets Law section 119 and in violation of local leash laws is irrelevant. These particular violations are only some evidence of negligence and cannot be imposed as a basis of liability for injuries that are sustained from a dog bite.
For these reasons we feel that the original order made by the Supreme Court was in error. We are reversing the original order and dismissing the complaint that was made against the defendant Colonna. In addition, we have searched the records of the case and are also granting a summary judgment in favor of the other defendant, Weese to dismiss the complaints that were made against her as well, even though she has not sought this relief. We hereby grant the appeal in this matter and reverse the original order from the case.
Seeking damages for injuries sustained from a dog or other animal owned by someone else can become quite complicated. If you are involved in this type of incident or any other legal matter contact Stephen Bilkis & Associates. Our offices are located in New York City and you may call us at any time to set up a time for your free consultation to discuss your situation.