The plaintiff moves for summary judgment on the issue of liability in this matter. The plaintiff commenced this action alleging that she was injured when the defendants' Labrador Retriever ran across the street to her driveway and jumped on her, knocking her to the ground. In moving for summary judgment on the issue of liability, the plaintiff contends that there is no issue of fact in dispute with respect to the incident in question or the defendant's knowledge of the dog's "vicious propensity".

The law is well settled that a moving party must establish its entitlement to judgment as a matter of law and show the absence of an issue of fact. See, Edwards v. Arlington Mall Associates, 6 AD3d 1136 (4th Dept. 2000). The plaintiff is required to do so through the tendering of sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. See, Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); see also, Hunt v. Kostarellis, 27 AD3d 1178 (4th Dept. 2006). Since summary judgment is a drastic remedy it requires that the defendants, as the party opposing the motion, be accorded every favorable inference. See, Westhill Exports Limited v. Pope, 12 NY2d 491 (1963). The plaintiff's papers [*2]submitted in support of the summary judgment motion must be scrutinized in a light most favorable to the defendants in opposition. See, Robinson v. Strong Memorial Hospital, 98 AD2d 976 (4th Dept. 1983).

The plaintiff has met her burden here through the submission of deposition testimony and affidavit in support of the motion. The plaintiff testified at deposition that she was standing on the sidewalk in front of her home at 7:30 in the morning on April 29, 2006 after having walked her dog and that as she was entering her driveway she saw the defendant's dog cross the street. At that point she picked up her dog and walked up her driveway. She further testified that when she turned around, the dog jumped on her with his paws being on her shoulders and that she stepped back trying to push the dog down and he lunged at her again. The plaintiff testified that she fell backwards and landed on her back with her head striking the driveway. (Plaintiff's Deposition Transcript, pp. 40-41). The plaintiff further testified that when she was on the ground the dog was standing near her and that someone called him and he ran across the street. (Plaintiff's Deposition Transcript, p 48). In addition, the plaintiff indicated that she was laying in the driveway for approximately fifteen minutes calling for help before she crawled to her house. (Plaintiff's Deposition Transcript, p. 49). The plaintiff also relies on both defendants' testimony. Defendant Robert Cusano testified that on one occasion when he was walking the dog on his leash he jumped toward the plaintiff and touched her coat. (Defendant Robert Cusano Deposition Transcript, pp. 18, 19). Defendant Maryanne Cusano testified the dog sometimes has jumped up towards visitors to the defendants home "to greet them a few times". (Maryanne Cusano Deposition Transcript, pp. 17-18).

Inasmuch as the plaintiff has met her burden, the burden shifts to the defendants as the non-moving party to raise an issue of fact. The defendants have done so here through the admission of an affidavit from defendant Maryanne Cusano as well as the deposition transcripts offered in support of the plaintiff's motion. Defendant Maryanne Cusano testified at her deposition that she was in bed at 7:30 a.m. on April 29, 2006 and that her dog was sleeping in his cage, where he slept every night. (Maryanne Cusano Deposition Transcript, pp. 19-20). She further testified that she got up approximately 8:00 a.m. and took the dog out. (Maryanne Cusano Deposition Transcript, pp. 20-21). In both her affidavit and at her deposition, defendant Maryanne Cusano testified that at that time the dog was in the defendants' fenced in backyard on a leash and that she let go of the leash and the dog ran out of the yard before she was able to close the gate. The defendant further stated in her affidavit that she followed right behind the dog for approximately 50 feet to the front of her house and that she then saw the dog cross the street on the grass between the street and the plaintiff's sidewalk; she called the dog and he came to her immediately. She further indicated in her affidavit that from where she was standing she was able to see the plaintiff's driveway and did not see the plaintiff there. The affidavit is consistent with the defendant's deposition testimony where she indicated that she did not cross the street to retrieve the dog because she was in her pajamas, but that the dog immediately returned to her when she called him. (Maryanne Cusano Deposition Transcript, p. 23). This defendant claimed that the dog was not out of her sight for more than one or two seconds, not long enough to have been involved in the occurrence alleged by the plaintiff. This defendant further testified that she and her husband were walking down the street approximately a half hour later and saw an ambulance go by. (Maryanne Cusano Deposition Transcript, p. 24). [*3]

In applying the high standard of scrutiny required on this motion, it is clear that there are a number of facts in dispute with respect to whether the defendants' dog is responsible for the plaintiff's injuries. First, the plaintiff claims that the incident occurred at approximately 7:30 in the morning, while the defendants claim their dog was in their house until about 8:00 a.m. Second, even if the time disparity were resolved, while the plaintiff contends that the defendants' dog crossed the street and jumped on her, causing her to fall, defendant Maryanne Cusano claims that she did not lose sight of the dog for more than a second or two when it crossed the street. Finally, although the plaintiff testified that she was laying in her driveway for approximately fifteen minutes after the fall, the defendant testified that the plaintiff was not in the driveway when the dog was on the plaintiff's property. It is not the court's function on a motion for summary judgment to assess credibility and that issue must await trial. See, Feranti v. American Lung Association, 90 NY2d 623 (1997); see also, Westhill Exports Limited, supra. Inasmuch as a material issue of fact exists, the plaintiff's motion is denied.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the plaintiff's motion for summary judgment on the issue of liability is denied.

ENTER

Dated: April 18, 2007

Syracuse, New YorkDONALD A. GREENWOOD

Supreme Court Justice