SEIDEN v. SILMAC GLASS CORP (1998)

Supreme Court, Appellate Division, First Department, New York.

Jerome R. SEIDEN, et al., Plaintiffs-Appellants, v. A. SILMAC GLASS CORP., et al., Defendants-Respondents.

Decided: June 16, 1998

Before MILONAS, J.P., and TOM, ANDRIAS and SAXE, JJ.

Joseph S. Malara, for Plaintiffs-Appellants. William T. Ryan, Robin Mary Heaney, for Defendants-respondents.

Order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered April 15, 1997, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff's fall and injuries were precipitated by his own actions, rather than those of defendants' dog. While the dog had aggressive propensities, plaintiff, although aware of those propensities, nevertheless attempted to approach the dog armed with a “two-by-four” even though the dog could have been easily avoided. We note, moreover, that defendants plainly discharged whatever duty they had to protect plaintiff from the dog since, at the time of the subject incident, the dog was chained so that he could not reach plaintiff and was being additionally restrained by one of defendant's employees.

MEMORANDUM DECISION.

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