Opinion
September 29, 1995
Appeal from the Supreme Court, Erie County, Michalek, J.
Present — Denman, P.J., Green, Fallon, Balio and Boehm, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Plaintiff, an employee of National Fuel Co., entered the backyard of defendants' premises to read the gas meter and was bitten by defendants' dog, a mixed-breed German Shepherd. Thereafter, plaintiff commenced this action, alleging that defendants were aware of the vicious propensities of the dog and failed to take proper measures to control it. Supreme Court denied defendants' motion for summary judgment dismissing the complaint. We reverse.
Defendants established by undisputed proof in admissible form that the dog had never before bitten anyone and that it had never growled or bared its teeth when someone approached or otherwise exhibited vicious or dangerous propensities (see, CPLR 3212 [b]; Iselin Co. v Mann Judd Landau, 71 N.Y.2d 420, 425; Strunk v Zoltanski, 62 N.Y.2d 572, 574-576; Wilson v Bruce, 198 A.D.2d 664, lv denied 83 N.Y.2d 752; Harris v Kasperak, 172 A.D.2d 1062).
We reject the contention of plaintiff that defendants' violation of the Cheektowaga Town Ordinance requiring the leashing of dogs is some evidence of negligence. It is uncontested that the dog was tethered in the yard, and thus was restrained in compliance with the Town Ordinance. But, even if the manner in which the dog was tethered violated the Town Ordinance, that would not affect the essential issue whether the dog was vicious and, if so, whether defendants had knowledge thereof.
The posting by defendants of a "Beware of Dog" sign on their garage to deter intruders is also insufficient to preclude summary judgment. There is no proof that before this incident defendants' dog was fierce, or hostile to strangers (see, Ford v Steindon, 35 Misc.2d 339), or anything other than friendly and non-aggressive. Further, according to plaintiff, the dog had been sleeping and was startled by plaintiff's approach. The dog bit plaintiff once on the arm and then backed away. We, therefore, conclude that plaintiff failed to raise a genuine issue of fact regarding the dog's vicious propensities (see, Wilson v Bruce, supra; Harris v Kasperak, supra; Gill v Welch, 136 A.D.2d 940).