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Dog Bite 23

This is an appeal case that is being heard in the Supreme Court of the State of New York in the Appellate Division of the Fourth Judicial Department. The judges that are present for this case are Martoche, J.P., Lindley, Carni, Centra, and Green, JJ.

The case involves a personal injury action against David Colonna. The original case was held in the Supreme Court of Orleans County. The order from the Supreme Court of Orleans County denied the motion of the defendant David Colonna for a summary judgment to dismiss the complaint that was made against him. The original order also approved the complaint made against Terry A. Weese for damages for injuries.

The defendant is represented by the law firm of Hiscock & Barclay, LLP from Buffalo. His counsel is Brian G. Manka. The plaintiff is represented by the law firm of Cellino & Barnes, P.C. from Rochester. The counsel for the plaintiff is Sareer A. Fazili.

Court Order
This Court is approving the appeal that is being made by the defendants. The original order from the Supreme Court of Orleans County will be overturned without costs. The motion for summary judgment in favor of the defendants is being granted and the complaint against both defendants is now dismissed.

Case History
The plaintiff had originally made a complaint seeking action against the defendants for damages that were sustained by her infant daughter when she was bitten by a dog. The dog was owned by the defendant Terry A. Weese. The incident in question occurred while the infant daughter was inside the home of the defendant Terry A. Weese. The home that Weese resided in was owned by the other defendant in the case David Colonna.

The complaint is amplified by the bill of particulars that was issued. The bill of particulars states that both the defendants are liable in this case for common law negligence. It also states that the defendants were in violation of section 119 of the Agriculture and Markets law and violated the local leash laws as well.

Court Discussion

When reviewing the case the Court has decided that the original order that was made by the Supreme Court of Orleans County was in error when they denied the granting of summary judgment in favor of the defendant Colonna. It has been established that in an action for damages that involve a dog bite a plaintiff can only recover damages on the theory of strict liability and may not recover damages for common law negligence. It is further found that the argument that the defendants were in violation of section 119 of the Agriculture and Markets Law and the local leash laws are irrelevant in this matter. The reason is that in a case such as this these violations are only some evidence of negligence and this is not a basis for imposing liability.

For these reasons we are reversing the previous order that was made in the Supreme Court of Orleans County. The court has also reviewed the other facts of the case and has dismissed the complaint that was made against the defendant Weese as well even though defendant Weese has not sought this relief in judgment.

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