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Delaney v. City of Mount Vernon

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 1, 2009

NANCY C. DELANEY, ET AL., APPELLANTS,
v.
CITY OF MOUNT VERNON, ET AL., RESPONDENTS.

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered June 30, 2008, which granted the defendants' motion for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

MARK C. DILLON, J.P., ANITA R. FLORIO, HOWARD MILLER & DANIEL D. ANGIOLILLO, JJ.

(Index No. 3815/04)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The municipal defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that there was no special relationship between the parties. "For there to be special relationship-based liability, a municipality's agent must be clearly on notice of palpable danger" (Kovit v Estate of Hallums, 4 NY3d 499, 508; see Sciortino v Leo, 60 AD3d 1470, 1471). In opposition, the plaintiffs failed to raise a triable issue of fact as to the existence of a special relationship (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Moreover, as the Supreme Court correctly determined, the evidence submitted by the defendants in support of their motion established that they did not have notice of any vicious propensities on the part of the dog that allegedly bit the injured plaintiff. In opposition to this showing, the plaintiffs failed to raise a triable issue of fact (cf. Browne v Town of Hempstead, 110 AD2d 102, 108). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

The plaintiffs' remaining contentions are without merit.

DILLON, J.P., FLORIO, MILLER and ANGIOLILLO, JJ., concur.

20091201

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