Opinion
January 29, 1988
Appeal from the Supreme Court, Seneca County, Rosenbloom, J.
Present — Dillon, P.J., Boomer, Balio, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Special Term properly granted summary judgment to defendant landlord dismissing plaintiff's action for damages caused when she was bitten by a dog harbored by defendant's tenant. In support of her motion, defendant landlord submitted sworn testimony at an examination before trial that she had no knowledge of any vicious propensities of her tenant's dog. Plaintiff has submitted no proof to the contrary (see, Strunk v Zoltanski, 62 N.Y.2d 572). The facts that the dog was kept enclosed in a yard or chained, particularly in view of the town's leash law, and that it strained on its chain and barked when people approached the premises, are insufficient to create an inference that the dog was vicious. The facts in the case of Fontecchio v Esposito ( 108 A.D.2d 780), cited by plaintiff, differ substantially from the facts averred by plaintiff. In Fontecchio (supra), unlike here, before the incident giving rise to the cause of action the dog not only growled and lunged at people, but charged a mailman and bit his mail pouch, continuing his attack until he was pulled away by the owner.