dissents and votes to affirm the judgment appealed from, with the following memorandum: Since I believe there is no evidence of culpable conduct by the plaintiff in this record, I conclude that the trial court properly declined to charge on comparative negligence. Thus, in my view, the verdict in favor of the plaintiff should be sustained, and I respectfully dissent from the majority’s decision to reverse and grant a new trial.
On the evening of July 18, 1985, the 17-year-old plaintiff went to the patio area of the defendant’s home to get her bicycle. In order to do so, she had to traverse the area where the defendant’s dog was chained. She had never seen the dog before, nor had she seen any “Beware of the Dog” sign. She knew nothing about the dog’s alleged vicious propensities. She approached and petted the dog “to show him I was friendly”. At that time, the young people who were with her, including the defendant’s son, began to argue and shout and, according to the defendant, the dog was barking. After she petted the dog and began to straighten up, the dog jumped up and bit her in the face.
CPLR 1411 provides that the amount of damages recoverable in an action to recover damages for personal injuries shall be reduced proportionately by “the culpable conduct attributable to the claimant”. Since the enactment of CPLR 1411 in 1975, the affirmative defenses of contributory negligence and implied assumption of the risk have been merged within the broader statutory term — “culpable conduct”. The doctrine of culpable conduct, which is relevant to a mitigation of damages, is applicable to a “dog-bite” case and may be asserted as a defense by the owner of the animal (Arbegast v Board of Educ., 65 NY2d 161; Smith v Sapienza, 115 AD2d 723).
A review of the precedents, both prior and subsequent to the enactment of CPLR 1411 in 1975, reveals that the application of contributory negligence and implied assumption of the risk (pre-1975) or culpable conduct (post-1975), as those concepts relate to a dog-bite case, have been limited to circumstances in which the plaintiffs either (1) provoked the animal, or (2) placed themselves in harm’s way with knowledge of the dog’s vicious propensities (see, post-1975; Graham v Murphy, 135 AD2d 326 [even though the dog growled at the infant plaintiff on 10 prior occasions, where there was no evidence of provocation, there was no culpable conduct]; Smith v Sapienza, supra [although there was evidence that the 3 Vi-year-old plaintiff kicked the dog in the face prior to being bitten, his age barred the application of the defense]; Russell v Lepre, 99 *424AD2d 489 ["mere negligence” on the part of the injured party is not a defense to an action to recover damages for personal injuries resulting from a dog bite]; Leiner v First Wythe Ave. Serv. Sta., 121 Misc 2d 559, 561, affd 127 Misc 2d 794 [the evidence is sufficient to warrant submission of the issue of the plaintiffs culpable conduct to the jury in a dog-bite case where some proof is adduced that the plaintiff either "knowing of the animal’s vicious propensities, placed himself in harm’s way, or wantonly excited the animal”]; see, pre-1975; Muller v McKesson, 73 NY 195, 201 ["If a person with full knowledge of the evil propensities of an animal wantonly excites him, or voluntarily and unnecessarily puts himself in the way of such an animal, he would be adjudged to have brought the injury upon himself, and ought not to be entitled to recover”]; Morales v Quinones, 72 AD2d 519 ["a dog owner is relieved of liability if it can be shown that the injured plaintiff had full knowledge of the dog’s vicious propensities and voluntarily brought about the injury”]; DiGrazia v Castronova, 48 AD2d 249, 251 [judgment entered on verdict in favor of the defendant dog owners reversed because the trial court failed to instruct the jury that to establish the defense of contributory negligence, "the defendants had the burden of proving that the injured plaintiff had full knowledge of the dog’s character and voluntarily brought the injury upon himself’]; Scharf v Manson, 27 AD2d 613, 614 ["In this type of action, contributory negligence in its usual sense is not involved. The liability is absolute unless the plaintiff with full knowledge of the evil propensity of the dog either wantonly excites the dog or voluntarily puts himself in the way of the dog thereby bringing the injury upon himself’]).
In this case, the defendant does not contend that the plaintiff provoked the dog. As stated in the majority opinion, "there [was no] evidence adduced to establish that the plaintiff was aware of the dog’s alleged vicious propensities” (at 422). Consequently, the evidence was insufficient to support submission of the affirmative defense to the jury, and the trial court properly declined to so charge (see, Willis v Young Men’s Christian Assn., 28 NY2d 375; Graham v Murphy, 135 AD2d 326, supra).
I have found no legal precedent holding, as the majority does today, that merely petting a barking chained dog, without any knowledge of vicious propensities, is evidence of "culpable conduct”, and I am not prepared to adopt that proposition.