The respondents and appellants of the case are the infant Brent Seybolt who is represented by Fred Seybolt his parent. Fred Seybolt is also a respondent/appellant individually in the case. The appellants and respondents of the case are Daniel Wheeler, et al. The case is being heard in the Third Department of the Appellate Division of the Supreme Court of the State of New York. The judge over seeing the case is Judge Mercure.
This case involves cross appeals that come from an order that was made by the Supreme Court. The Judge in the previous case was Judge Nolan Jr. The original case took place in Saratoga County and was entered on the 14th of December, 2006. The order in the case was a partial denial of the cross motion for summary judgment made by the defendant to dismiss the case.
The son of the plaintiff, Brent was frequently a guest at the home of Daniel Wheeler and Colleen Wheeler, the defendants. In July of 2003, Brent was attacked by the dog owned by the defendants. The incident occurred when Brent along with Daniel Wheeler tried to throw Wheeler’s young daughter into the pool. The dog knocked Brent down and proceeded to bite him on the side of the face near his eye. The injury required a nine day stay in the hospital as well as several surgeries since that time. Brent still has issues with the eye, including seeing “double” in his peripheral vision and abnormal swelling around the eye.
The plaintiffs began this action both individually and on the behalf of Brent against the defendants and the owner of the defendant’s home to recover the damages that came from the dog bite. The plaintiffs motioned for a partial summary judgment in the issue of liability. The defendants and their landlord made a cross motion for summary judgment to have the case dismissed. The basis for summary judgment on behalf of the defendants is that they stated they had no knowledge of the dog’s violent tendencies.
The court dismissed the case against the landlords, but denied the other motions of the case. The reasons given by the previous court were that there were questions about whether or not the defendants had knowledge of the dog’s alleged violent propensities. The plaintiffs and the defendants have made cross appeals based on the denial of their motions.
Court Discussion and Decision
To support the ruling for summary judgment in the case of liability, the plaintiffs have introduced an affidavit from the veterinarian of the dog in question. This affidavit states that the “patient is aggressive” in reference to the defendants dog. The records from the vet also show that Daniel Wheeler had sought a behavioral consultation for the dog after the dog had shown aggressive behavior towards a neighbor.
The defendants state that the dog was aggressive at the Vet’s office because of the cats that roamed freely there. They state that the incident with the neighbor was a one time occurrence that was caused by the neighbor chasing him with a bat or a stick.
Both parties have provided evidence to meet the initial burden for summary judgment. However, there are still triable issues of fact in this case in regard to the vicious tendencies of the dog. For this reason, the previous judgments are affirmed.
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