PHILLIPS v. Alex Waxman, Defendant. (2000)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about May 11, 1999, denying defendant-appellant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.

 Plaintiff was bitten by defendant Waxman's dog at a location outside the fencing around the defendant restaurant's outdoor seating area.   In order to impose liability on the premises owner, plaintiff “must establish that the defendant knew of the dog's presence on the premises and its vicious propensities, and that the defendant had control of the premises or otherwise had the ability to remove or confine the dog” (cf., Pringle v. New York City Housing Authority, 260 A.D.2d 623, 689 N.Y.S.2d 181).   Ordinarily, property owners owe no responsibility to persons outside the premises, on which basis we have granted summary judgment in favor of the owner dismissing the complaint of a dog-bite victim (Shen v. Kornienko, 253 A.D.2d 396, 676 N.Y.S.2d 593), and dismissing the complaint of a patron who was tripped by a dog tethered outside the guardrail of a restaurant's sidewalk seating area (Darnovsky v. Unusual Restaurant, 221 A.D.2d 151, 633 N.Y.S.2d 147), especially insofar as a restaurant's special use of a sidewalk area does not extend beyond the guardrail (MacLeod v. Pete's Tavern, 87 N.Y.2d 912, 640 N.Y.S.2d 864, 663 N.E.2d 905).   Although Waxman indicates that his dog was tethered to a lamp post 15 feet outside the fence, even plaintiff's own EBT testimony, which we accept for purposes of the motion, makes clear that plaintiff was not on defendant restaurant's premises at the time of this incident.   Moreover, plaintiff's evidence that the dog growled and bared its teeth some 10 minutes before is not an adequate basis to infer that the restaurant was on notice of the dog's vicious propensities (Gill v. Welch, 136 A.D.2d 940, 524 N.Y.S.2d 692;  compare, Fontecchio v. Esposito, 108 A.D.2d 780, 485 N.Y.S.2d 113 [dog growled, lunged at people, and previously chased a mailman, biting his pouch, until pulled away by owner] ).   Accordingly, the claim against the restaurant cannot be sustained.

MEMORANDUM DECISION.