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                          SUPREME COURT - STATE OF NEW YORK

                               1. S. C.

 JOANN V. GUGLIELMO & ROBERT                                                           TRIAL / IAS PART 32
 GUGLIELMO                                                                             NASSAU COUNTY
                                                                                       Index No. 12560/05
                         against -
                                                                                       Motion Sequence No. 001


The following papers having been read on this motion:

       Notice of Motion , Affidavits , & Exhibits. . .
       Answering Affidavits
       Replying Affidavits. . . . . . . . .
       Briefs: Plaintiffs / Petitioner
                     Defendant's / Respondent' s. .

       The defendants moves this court for an order pursuant to CPLR
                                                                                                                 3212 granting

defendants summary judgment on the grounds there are no triable issue of facts.
       This is an action for personal injury arising from an alleged dog bite sustained by
the plaintiff at the defendants home on September 20 , 2004.
       At deposition the plaintiff Joann V. Guglielmo testified at the time of the alleged
incident she was visiting the defendant Noreen Quinlan at her home and they were seated
in the enclosed porch of the house. She was sitting on a love seat and Noreen Quinlan sat
in a chair across from her. The defendants ' dog , Freckles , who she knew from prior
visits , came into the room and attempted to jump onto the love seat. Mrs. Quinlan helped
the dog onto the love seat and it sat on the plaintiffs right side. As they talked                                     the

plaintiff petted the dog on his rear. When she was about to leave , she reached over to pet
the dog behind his left ear when the dog turned towards her and bit her on the forehead
over her left eyebrow. The plaintiff further stated that the day after the incident the
defendant Noreen Quinlan told her that the dog had bitten her on the lip and nose and had
also bitten her husband as well. At his deposition the plaintiff Michael Guglielmo
testified that after the incident the plaintiffNoreem Quilan told him had bitten her and her
husband on previous occasions
                   The defendant Noreen Quinlan testified at deposition that the plaintiff Joann V.
Guglielmo was rubbing her dog by his ear canal when the dog barked and ran out of the
room. The plaintiff bent her head over and when she lifted her head up she was bleeding
on the forehead. The defendant asserts the dog did not bite the plaintiff Joann
Guglielmo and that the plaintiff cut herself with her own fingernail. She asserted the dog
had never bitten anyone in the past and denied that she told the plaintiffs that the dog had
bitten her or her husband in the past.
                   Counsel for the defendants argues , inter alias , that the plaintiffs have failed to
present any evidence that the defendants ' dog had vicious propensities or that the
defendants should have known that the dog had vicious propensities.
                             Summary judgment is a drastic remedy that is awarded only when it is clear
that no triable issue of fact exists                         (Alvarez v. Prospect Hosp. 68 N.               2d 320       , 325;   Andre
v. Pomeroy,                 35 N.       2d 361). Summar judgment is the procedural equivalent of a trial
(Museums at Stony Brook v. Village of Patchogue Fire                                         Dept.   146 A. D. 2d 572). Thus

the burden falls upon the moving part                                to demonstrate that ,     on the facts , it is entitled to

judgment as a matter of law                          (see, Whelen v. G. T.E. Sylvania Inc. 182 A. D.                     2d 446).

                   The court' s role is issue finding rather than issue determination                        (see, e.g.      , Sillman
v. Twentieth Century- Fox Film Corp. 3 N.                                        2d 395;   Gervasio v. Di Napoli 134 A.
235 236; Assing v. United Rubber Supply Co. 126 A.                                           2d 590). Nevertheless                the

court must evaluate whether the alleged factual issues presented are genuine or
unsubstantiated"                   (Gervasio v. Di Napoli, supra 134 A. D.2d at 236                     , quoting from            Assing

                                                                       Page 2 of 3
v. United Rubber Supply Co., supra; see, Columbus Trust Co. v. Campolo 110 A.
616 , affd   66 N.     2d 701).

         Here ,   the court finds the existence of a triable issue of fact.
                                                                                             Accordingly, the

motion is denied.
         So ordered.
Dated: December 4, 2007


FINAL DISPOSITION                 NON FINAL DISPOSITION                      XXX

                                                                                   r"-     -, r.

                                                                             t\i. g L.

                                                                              DEC 0 6 2007

                                                                             NASCAU COUNTY
                                                                    COUNTY                    S OFFIC

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