Over the past several months, our trial level and appellate courts have entertained and decided an unusually broad panoply of suits and appeals relating to dogs, cats and other household pets.  Issues presented ranged from the rights of chimpanzees to habeas corpus relief; several “vicious propensities” disputes; the duty of care and strict liability for injuries caused by animals; seizure of pets; harboring dogs and cats violation of a lease; and the warrantless search and seizure of a neglected dog.

Matter of Nonhuman Rights Project, Inc. v. Lavery, 2017 NY Slip Op 04574, App. Div. 1^st Dept. (June 8, 2017)

Supreme Court declined to extend habeas corpus relief to two adult male chimpanzees, Tommy and Kiko.

The First Department summarized the facts:

Petitioner is a Massachusetts nonprofit corporation whose stated mission is “to change the common-law status of at least some nonhuman animals from mere things,’ which lack the capacity to possess any legal rights, to persons,’ who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them” to certain fundamental rights which include entitlement to habeas relief.

The petition:

The petition as to Tommy…alleged that Tommy, who is owned by respondents Circle L Trailer Sales, Inc. and its officers, is in a cage in a warehouse in Gloversville, New York. The petition as to Kiko…who is owned by respondents the Primate Sanctuary, Inc. and its officers and directors, is allegedly in a cage in a cement storefront in a crowded residential area in Niagara Falls, New York.

The prior habeas corpus petitions:

These are not the first petitions for habeas relief filed by petitioner on behalf of Tommy and Kiko. In December 2013, petitioner filed a petition on behalf of Kiko, in Supreme Court, Niagara County. There, the trial court declined to sign an order to show cause seeking habeas relief and the Fourth Department affirmed[.]

Also in December 2013, petitioner brought a habeas proceeding on behalf of Tommy, in Supreme Court, Fulton County. There, the trial court declined to sign an order to show cause and the Third Department affirmed the decision[.]

Petitioner has also brought a habeas petition seeking the release of two chimpanzees not at issue here, Hercules and Leo, who, according to petitioner are confined for research purposes, at the State University of New York at Stony Brook. In that proceeding, Supreme Court, Suffolk County, declined to sign an order to show cause and in 2014, the Second Department dismissed petitioner’s appeal[.]

Concluding that:

Without even addressing the merits of petitioner’s arguments, we find that the motion court properly declined to sign the orders to show cause since these were successive habeas proceedings which were not warranted or supported by any changed circumstances[.]

CPLR 7003(b) permits a court to decline to issue a writ of habeas corpus if the legality of the detention has been determined by a court of the state on a prior proceeding for a writ of habeas corpus and the petition presents no ground not theretofore presented and determined and the court is satisfied that the ends of justice will not be served by granting it.

Petitioner has filed four identical petitions in four separate state courts in four different counties in New York. Each petition was accompanied by virtually the same affidavits, all attesting to the fact that chimpanzees are intelligent, and have the ability to be trained by humans to be obedient to rules, and to fulfill certain duties and responsibilities. Petitioner has failed to present any new information or new ground not previously considered. The “new” expert testimony presented by petitioner continues to support its basic position that chimpanzees exhibit many of the same social, cognitive and linguistic capabilities as humans and therefore should be afforded some of the same fundamental rights as humans.

Any new expert testimony/affidavits cannot be said to be in response to or counter to the reasoning underlying the decision of the Court in People ex rel. Nonhuman Rights Project, Inc. v Lavery…In declining to extend habeas relief to chimpanzees, the Court in Lavery did not dispute the cognitive or social capabilities of chimpanzees. Nor, did it, as argued by petitioner, take judicial notice that chimpanzees cannot bear duties and responsibilities. Rather, it concluded:

“[U]nlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights — such as the fundamental right to liberty protected by the writ of habeas corpus — that have been afforded to human beings”[.]

Explaining that:

The gravamen of petitioner’s argument that chimpanzees are entitled to habeas relief is that the human-like characteristics of chimpanzees render them “persons” for purposes of CPLR article 70. This position is without legal support or legal precedent.

In support of its argument, petitioner submits several expert affidavits, including one by Dr. Jane Goodall, the well-known primatologist, purportedly showing, based on academic research and hands-on experience, that chimpanzees have many human-like capabilities. These include recognizing themselves in reflections; setting and acting toward goals such as obtaining food; undergoing cognitive development with brains having similar structures to those of humans; communicating about events in the past and their intentions for the future, such as by pointing or using sign language; exhibiting an awareness of others’ different visual perspectives, such as by taking food only when it is out of their competitors’ line of sight; protecting others in risky situations, such as when relatively strong chimpanzees will examine a road before guarding more vulnerable chimpanzees as they cross the road; deceiving others (implying that they are able to anticipate others’ thoughts); making and using complex tools for hygiene, socializing, communicating, hunting, gathering, and fighting; counting and ordering items using numbers; engaging in moral behavior, such as choosing to make fair offers and ostracizing chimpanzees who violate social norms; engaging in collective behavior such as hunting in groups of chimpanzees adopting different roles; showing concern for the welfare of others, particularly their offspring, siblings, and even orphans they adopt; protecting territory and group security; resolving conflicts; and apologizing.

“The common law writ of habeas corpus, as codified by CPLR article 70, provides a summary procedure by which a person’ who has been illegally imprisoned or otherwise restrained in his or her liberty can challenge the legality of the detention”…While the word “person” is not defined in the statute, there is no support for the conclusion that the definition includes nonhumans, i.e., chimpanzees. While petitioner’s cited studies attest to the intelligence and social capabilities of chimpanzees, petitioner does not cite any sources indicating that the United States or New York Constitutions were intended to protect nonhuman animals’ rights to liberty, or that the Legislature intended the term “person” in CPLR article 70 to expand the availability of habeas protection beyond humans. No precedent exists, under New York law, or English common law, for a finding that a chimpanzee could be considered a “person” and entitled to habeas relief. In fact, habeas relief has never been found applicable to any animal[.]

The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions. Petitioner does not suggest that any chimpanzee charged with a crime in New York could be deemed fit to proceed, i.e., to have the “capacity to understand the proceedings against him or to assist in his own defense”…While in an amicus brief filed by Professor Laurence H. Tribe of Harvard Law School, it is suggested that it is possible to impose legal duties on nonhuman animals, noting the “long history, mainly from the medieval and early modern periods, of animals being tried for offenses such as attacking human beings and eating crops,” none of the cases cited took place in modern times or in New York. Moreover, as noted in an amicus brief submitted by Professor Richard Cupp, nonhumans lack sufficient responsibility to have any legal standing, which, according to Cupp is why even chimpanzees who have caused death or serious injury to human beings have not been prosecuted.

With the admonition that:

Even assuming, however, that habeas relief is potentially available to chimpanzees, the common-law writ of habeas corpus does not lie on behalf of the two chimpanzees at issue in these proceedings. Petitioner does not seek the immediate production of Kiko and Tommy to the court or their placement in a temporary home, since petitioner contends that “there are no adequate facilities to house [them] in proximity to the [c]ourt.” Instead, petitioner requests that respondents be ordered to show “why [the chimpanzees] should not be discharged, and thereafter, [the court] make a determination that [their] detention is unlawful and order [their] immediate release to an appropriate primate sanctuary.” Petitioner submits an affidavit from the Executive Director of Save the Chimps stating that this organization agrees to provide a permanent sanctuary to any and all chimpanzees released by court order. Save the Chimps maintains that the warm, humid climate in southern Florida is “ideal for chimpanzees,” as it is similar to the species’ native Africa.

Since petitioner does not challenge the legality of the chimpanzees’ detention, but merely seeks their transfer to a different facility, habeas relief was properly denied by the motion court[.]

Arrington v. Cohen, 2017 NY Slip Op 03674, App. Div. 4^th Dept. (May 5, 2017)

The Fourth Department summarily held that:

Plaintiff commenced this action seeking damages for injuries she sustained when defendant’s dog bit her face. We agree with defendant that Supreme Court erred in denying that part of his motion seeking summary judgment dismissing the first cause of action, alleging common-law negligence…and we therefore modify the order accordingly. We further conclude, however, that the court properly denied that part of the motion seeking summary judgment dismissing the second cause of action, for strict liability, inasmuch as “[d]efendant’s own submissions in support of the motion raise a triable issue of fact whether [his] dog had vicious propensities and, if so, whether [he] knew or should have known of those propensities”…Defendant submitted the records of a dog daycare facility stating that defendant’s dog “snapped at” and “growl[ed] at” other dogs “for no reason,” and that the dog “continued to growl and snap” as he was led out of the room by an employee. The records reflect that defendant was notified of the dog’s behavior by telephone. The dog was described in the records as “unpredictable,” and was not permitted to return to the daycare facility following the three-day trial period. Defendant also submitted plaintiff’s deposition testimony wherein she testified that, on the night of the incident, defendant saw that the dog “nipped at” plaintiff when she entered defendant’s home, and shortly thereafter the dog bit plaintiff’s face.

Brady v. Contangelo, 2017 NY Slip Op 02188, App. Div. 4^th Dept. (March 24, 2017)

Supreme Court denied defendant’s motion to dismiss the complaint.

The Appellate Division summarized the facts:

Plaintiffs commenced this action seeking to recover damages for injuries allegedly sustained by Nancy J. Brady…when defendant or the leashes attached to his two dogs knocked her over during a walk in a park.

Concluding that:

We conclude that the court properly denied that part of defendant’s motion with respect to the first cause of action, alleging that defendant was negligent in running into plaintiff. When human bodies collide, a defendant may be liable under common-law negligence principles for failing to control his or her speed or movement in the vicinity of another…Although both dogs and humans allegedly were involved in this collision, it is well settled that “there may be more than one proximate cause of an injury’“…Here, defendant failed to meet his burden of establishing as a matter of law that he was free of negligence in controlling his own body[.]

We agree with defendant, however, that the court erred in denying that part of his motion with respect to the second cause of action, based upon his alleged negligent handling of dogs…As plaintiff correctly concedes, “a cause of action for ordinary negligence does not lie against the owner of a dog that causes injury”[.]

We also agree with defendant that the court erred in denying his motion with respect to the third cause of action alleging strict liability based upon the dogs’ vicious propensities…It is well established that “an animal that behaves in a manner that would not necessarily be considered dangerous or ferocious, but nevertheless reflects a proclivity to act in a way that puts others at risk of harm, can be found to have vicious propensities — albeit only when such proclivity results in the injury giving rise to the lawsuit”[.] In contrast, “normal canine behavior” such as “barking and running around” does not amount to vicious propensities…We conclude that defendant met his initial burden of establishing that he lacked knowledge of any vicious propensity on the part of either dog that gave rise to the injury and, in opposition, plaintiff failed to raise an issue of fact. Although defendant testified that one dog used to jump on people when he was younger and had been hostile with his veterinarian, there is no evidence that defendant’s dogs jumped on plaintiff, made contact with her body, or otherwise acted hostilely toward her. To the contrary, plaintiff testified that the dogs ran toward her and caused a collision between plaintiff and defendant that knocked plaintiff to the ground. In our view, such an act constitutes normal canine behavior, and thus plaintiff failed to present evidence of a known, vicious propensity that “result[ed] in the injury giving rise to the lawsuit”[.]

Scavetta v. Wechsler, 2017 NY Slip Op 01985, App. Div. 1^st Dept. (March 16, 2017)

Supreme Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross-motion for summary judgment on the issue of liability.

At the outset, the Appellate Division summarized both the question presented and the legal framework:

The primary question raised in this appeal is whether a negligence claim may be asserted against a defendant who attached a dog’s leash to an unsecured bicycle rack, which was put into motion when the dog dragged it through the streets and into the plaintiff, causing injury. We answer in the negative, on constraint of the Court of Appeals’ Bard rule that “when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the rule’…of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal’s vicious propensities”…Therefore, we must affirm the order of the motion court, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint.

At the same time, we take this opportunity to acknowledge plaintiffs’ persuasive argument that the [existing Bard] rule may be neither prudent law nor prudent policy. As this case illustrates, a plaintiff cannot recover for injuries caused by a dog that has not demonstrated vicious propensities, even when the injuries are proximately caused by the owner’s negligent conduct in controlling or failing to control the dog. This rule immunizes careless supervision of domestic animals by their owners and leaves those harmed in the State of New York without recourse.

The facts and background:

On March 24, 2014, defendant was walking his dog on the way to meet a friend at a pizzeria on Lexington Avenue between 93rd and 94th Streets in Manhattan. Upon arriving at the restaurant, he tied the 35-pound dog by its leash to a metal bicycle rack, which weighed about five pounds and had dimensions of approximately 3 feet by 3 feet by 2 feet. The rack was of the sort to which cyclists or bicycle delivery workers ordinarily lock their bicycles for security outside of buildings.

Defendant did not assure himself, however, that the rack was secured to the ground or to anything else. As he reached the entrance of the pizzeria, defendant heard the rack scraping against the sidewalk and turned to see his dog running down the street, pulling the rack with its leash. It appeared to defendant that the dog started to follow him as he approached the restaurant but was frightened by the noise of the rack scraping against the sidewalk and began to run. The dog was not chasing anything, but it was running “[v]ery fast” and was “panicked.” Defendant started running after his dog, but was unable to catch up to it.

Meanwhile, plaintiff Gregory Scavetta was on his way to work, walking north on Lexington Avenue, and began to cross 93rd Street in the crosswalk. As he crossed the street, Scavetta heard the scraping of the rack and saw the dog running straight towards him, dragging the rack behind it. The dog ran past Scavetta and hid underneath a car. Scavetta then took one or two steps toward the dog, to see if it was injured and whether he could disconnect the rack from the leash, but the dog immediately “sprung back out from underneath the car and took off again.” The dog ran back towards Scavetta, still dragging the rack, which struck him. One of Scavetta’s legs got caught in the rack’s crossbars, and, as the dog continued to pull the rack, Scavetta was spun around so that both of his feet went up in the air and he landed on his back.

The dog ran off toward Park Avenue. Defendant recovered the dog approximately two hours later, after his dog walker found the dog at Lexington Avenue and 86th Street. Scavetta was taken to Mt. Sinai Hospital and treated for an injury to his left leg.

The pleadings and prior proceedings:

Scavetta and his wife commenced this action, alleging among other things that defendant was negligent or reckless in tying his dog to the unsecured bicycle rack, because he knew or should have known that the dog could pull it. Plaintiffs did not assert a cause of action sounding in strict liability, and stated in their verified bill of particulars that “the dog’s viciousness is not an element of plaintiff[s’] cause of action.”

Defendant moved for summary judgment dismissing the complaint, arguing among other things that New York State does not recognize negligence as a cause of action for injuries caused by domestic animals. Plaintiffs cross-moved for summary judgment on the issue of liability, noting that they “intentionally did not comment about strict liability in their Bill of Particulars,” since the action “does not involve vicious propensities of the dog.” To the contrary, plaintiffs argued, defendant is liable “for negligently creating an extremely dangerous condition and unreasonable risk of harm to others.” Plaintiffs explained that, “[b]y attaching the dog’s eight-foot leash to an unsecured, flimsy, light metal bicycle rack that defendant knew, or should have known, the dog could easily drag through the crowded streets and sidewalks of New York City, defendant turned the otherwise innocuous metal rack into a dangerous instrumentality.”

The court granted defendant’s motion for summary judgment dismissing the complaint, and denied plaintiffs’ cross motion on the issue of liability, citing Court of Appeals precedent holding that negligence is not a viable cause of action where an injury is caused by a domestic animal and that a plaintiff may only recover in strict liability based upon a showing that the owner knew or should have known that the animal had a vicious propensity. The court noted that plaintiffs did not cite any case law to support the proposition that the case was distinguishable on the ground that defendant converted the metal rack into an instrument of harm. The court concluded that it was constrained to dismiss the complaint because “negligence is no longer a basis for imposing liability, and plaintiffs expressly state that they do not pursue a strict liability claim premised upon any propensities of defendant’s dog.”

The vicious propensity doctrine:

The “vicious propensity” doctrine, which provides for strict liability against an owner of a domestic animal that causes harm, where the owner knows or should have known of the animal’s vicious propensities, has been the law in New York since at least 1816…The term “vicious propensity” has become a term of art, having expanded from its ordinary definition to “include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation”…, and even includes a non-dangerous proclivity where “such proclivity results in the injury giving rise to the lawsuit”…For many years, however, the question lingered whether a plaintiff could bring a common-law negligence claim against an owner of a domestic animal that caused injury, in the event that strict liability was unavailable due to a lack of evidence regarding the animal’s propensities[.]

The Court of Appeals’ decision in Bard v. Jahnke:

The Court of Appeals addressed this question in Bard v. Jahnke where a carpenter who was working on the defendant’s farm was attacked and injured by the defendant’s breeding bull. The Court rejected the plaintiff’s strict liability claim because there was no evidence that the bull had ever exhibited threatening behavior toward other farm animals or humans…In addition, the Court rejected the plaintiff’s alternative argument that the defendant was negligent in failing to restrain the bull or warn the plaintiff of the bull’s presence, holding that “when harm is caused by a domestic animal, its owner’s liability is determined solely by application of the [strict liability] rule[.]

The Bard rule was not established without controversy. In its analysis, the four-judge majority of the Court rejected the rule stated in Restatement (Second) of Torts § 518 permitting liability where an owner of a domestic animal is negligent in failing to prevent harm caused by the animal (or intentionally causes the animal to do harm), irrespective of whether any vicious propensity exists…Three judges dissented, reasoning that it would have been “wiser to follow the Restatement rule, as ha[d] almost every other state that ha[d] considered the question”…In the dissenters’ view, the Court had left our state “with an archaic, rigid rule, contrary to fairness and common sense, that will probably be eroded by ad hoc exceptions”[.]

Despite the discord over the Bard rule, it has persisted. For example, in Petrone v. Fernandez, the Court of Appeals relied on Bard and confirmed that, even where a plaintiff presents “some evidence of negligence” — e.g., the defendant’s violation of a local leash law — the evidence is irrelevant because “negligence is no longer a basis for imposing liability…Two judges concurred in the result “on constraint of Bard,” expressing their view that “it was wrong to reject negligence altogether as a basis for the liability of an animal owner”[.]

The exception to Bard created in Hastings v. Sauve:

Thus far, the Court of Appeals has carved out only one exception to Bard’s bright-line rule. In Hastings v. Sauve…the plaintiff was driving her van and was injured when she struck the defendants’ cow, which had wandered from the farm and onto a public road. The Court held:

That a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept[.]

However, the Hastings Court declined to decide “whether the same rule applies to dogs, cats or other household pets,” adding that “that question must await a different case”[.]

The decision of the Court of Appeals in Doerr v. Goldsmith:

The question was answered in Doerr v. Goldsmith…in which the plaintiff was injured by a dog while riding his bicycle in Central Park…The dog’s owner called the dog from one side of the road, while her boyfriend released the dog from the other side, and the dog ran into plaintiff’s way; plaintiff struck the dog and fell from his bike, sustaining injuries…This Court, which vacated its original decision finding for the defendants and issued a new decision in light of Hastings, held that a negligence claim could lie “because it was defendants’ actions, and not the dog’s own instinctive, volitional behavior, that most proximately caused the accident”…The case, according to this Court, was “not about the particular actions of an animal that led to a person’s injury. Rather, it [wa]s about the actions of a person that turned an animal into an instrumentality of harm”…This Court reasoned that “the dog was in the control of defendants at all times in the split second before the accident occurred. Had [the one defendant] not called the dog, and [the other defendant] not let it go, plaintiff would have ridden past them without incident”[.]

However, a majority of the Court of Appeals reversed in a short memorandum decision, declaring that “[u]nder the circumstances of [Doerr and its companion case] and in light of the arguments advanced by the parties, [Bard] constrains us to reject plaintiffs’ negligence causes of action against defendants arising from injuries caused by defendants’ dogs”…The Court further clarified that the Hastings exception to the Bard rule is confined to cases involving “domestic farm animals subject to an owner’s duty to prevent such animals from wandering unsupervised off the farm”[.]

The dissent in Doerr:

The Doerr Court was deeply divided over whether another exception to the Bard rule should have applied in the circumstances of that case, and whether the rule should be abandoned altogether. Judge Abdus-Salaam (joined by Judges Read and Stein) concurred, relying on Bard as stare decisis and explaining that “[b]ecause Bard does not impose a duty on a pet owner to exercise reasonable care in the control of a pet that has no known vicious propensity, the owner’s failure to exercise such care, whether by act or omission, does not furnish a basis for liability”…In addition, the concurrence determined that the plaintiffs’ “negligence claims must fail because the particular exceptions to the Bard rule proposed by plaintiffs are incompatible with Bard and its progeny”…Chief Judge Lippman, dissenting in Doerr but concurring in the companion case, concluded that Doerr itself was an exceptional case that should not have been engulfed by Bard, because the injury was caused by the dog acting under the owner’s direction and control, not by its threatening or menacing behavior[.]

In a separate dissent, Judge Fahey (joined by Judge Pigott) concluded that Bard was wrongly decided and should be overruled, and that “[w]e should return to the basic principle that the owner of an animal may be liable for failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation”…Judge Fahey observed that, prior to Bard, several Court of Appeals decisions and “three of the Departments of the Appellate Division recognized that a negligence claim for animal-induced injuries could be brought as an alternative to a strict liability claim”…He further noted that “the legacy of the Bard decision” is “that the strict liability involved…is the only kind of liability the owner of a domestic animal may face — that, in other words, there is no such thing as negligence liability where harm done by domestic animals is concerned’”[.]

Rejection of plaintiff’s negligence claim:

In light of this Court of Appeals precedent, we must reject plaintiffs’ negligence claim. Plaintiffs argue that the instant matter is distinguishable from Bard, Doerr, and similar cases involving harm caused by domestic animals, because this case does not involve the nature of an animal acting of its own volition, but concerns an injury that was caused by its owner’s conduct. To be sure, the majority in Doerr left open the possibility that other exceptions to the Bard rule could be recognized where a domestic animal was involved in an injury; indeed, the Court explicitly limited its holding to the particular circumstances of that case…And, of course, there are notable factual distinctions between this case and Doerr: Here, plaintiffs allege that defendant caused the injury not by commanding the dog as in Doerr, but by mobilizing a dangerous object when he attached his dog’s leash to the unsecured rack. In other words, plaintiffs argue that defendant launched an instrumentality of harm that was not the dog itself but an inanimate object that was put into motion by defendant…However, the exception plaintiffs would have us recognize here — based on the defendant’s conduct, and not the dog’s, as the cause of the injury — is analogous to the one this Court accepted but the Court of Appeals rejected in Doerr…Furthermore, it appears that, aside from the Hastings exception, Bard continues to be an absolute bar to negligence claims where domestic animals cause injury…Accordingly, we conclude that we are constrained by Court of Appeals precedent to reject plaintiffs’ negligence claim.

Were we not so constrained, however, we would, like the dissenting judges in Bard and Doerr, permit plaintiffs to pursue their negligence cause of action. To avoid the harshness of the Bard rule, the recognition of the following exception would be appropriate: A dog owner who attaches his or her dog to an unsecured, dangerous object, allowing the dog to drag the object through the streets and cause injury to others, may be held liable in negligence. In these circumstances, negligence liability would be in keeping with the principles of fundamental fairness, responsibility for one’s actions, and societal expectations…assuming a jury would deem unreasonable defendant’s failure to ensure that the rack was secured before he tied his dog to it. It is not unreasonable to expect dog owners to restrain their dogs in public unless unleashing them is safe or specifically permitted at certain times and locations, as evidenced by local leash laws…However, the Court of Appeals has decided that local leash laws have no bearing on whether liability in negligence ought to attach…undermining the declared public policy of those localities that have enacted such laws…And although the Doerr concurrence reasoned that New Yorkers may expect to find unrestrained dogs in public parks…New Yorkers certainly do not expect to find those dogs running on public roads towing large metal objects behind them. A dog owner who, without observing a reasonable standard of care, attaches his or her dog to an object that could foreseeably become weaponized if the dog is able to drag the object through public areas should not be immune from liability when that conduct causes injury.

Moreover, as a matter of public policy, we agree with Judge Fahey’s dissent in Doerr that New York should join the overwhelming majority of states that follow the Restatement (Second) of Torts…Under the current rule articulated by the Court of Appeals, it appears that pet owners would be permitted to act in any number of objectively unreasonable ways when supervising their non-vicious pets, because New York law does not place upon them a duty to observe any standard of care…The potential for unjust outcomes is manifest. Although “the Restatement rule…does not treat a domestic pet’s untrammeled wanderings as actionable negligence” in all cases…the Restatement does recognize that “[t]here may…be circumstances under which it w[ould] be negligent to permit an animal to run at large, even though it is of a kind that customarily is allowed to do so [e.g., a dog] and under other circumstances there would be no negligence”…It seems, however, that under the law of New York at present, permitting a domestic pet that has not displayed vicious propensities to run at large under any circumstances — even when doing so would be clearly dangerous — would never give rise to a claim sounding in negligence. We find this to be most unsatisfactory as a matter of public policy and would recognize a cause of action for negligence in appropriate circumstances.

Perina v. Animal Care & Control of N.Y. City, Inc., 2017 NY Slip Op 00733, App Div. 1^st Dept. (February 2, 2017)

Supreme Court granted defendant’s motion to dismiss plaintiff’s complaint arising out of the seizure of her dogs and cats:

The Appellate Division outlined the facts:

Plaintiff and/or her friend were the owners of seven dogs and seven cats. Acting on a complaint of animal hoarding, New York City police officers seized six of the seven dogs and all of the cats, and brought the animals to defendant AC & C. Plaintiff redeemed all the animals, except for four puppies, by paying appropriate impound fees. Eleven days after the animals had been seized, plaintiff surrendered the puppies to AC & C, and the puppies were adopted by new owners.

Concluding that:

AC & C acted properly by impounding the puppies for 10 days — 1 day longer than the statutory 9 days required — after notifying plaintiff that the animals were in its possession, to allow her time to redeem the animals, upon payment of impoundment fees, submission of proof of proper licensing of the animal, and compliance with the sterilization requirements, within this time period…Plaintiff’s claim that she was coerced into signing the surrender forms by an alleged threat that the puppies’ mother would not be returned to her lacks merit, since the surrender forms were signed after AC & C had already held the dogs for 10 days. By that time, plaintiff’s possessory right to the puppies perished, as she “forfeit[ed] title to any dog unredeemed at the expiration of the appropriate redemption period”[.]

Gammon v. Curley, 2017 NY Slip Op 00630, App. Div. 2^nd Dept. (February 1, 2017)

Supreme Court granted defendants’ motion for summary judgment dismissing the complaint in an action to recover damages for personal injuries.

The Appellate Division summarized the facts, pleadings and prior proceedings:

While she was walking in the backyard of the defendants’ premises, the plaintiff Kathleen Gammon…allegedly was knocked to the ground by the defendants’ dog. The injured plaintiff alleged that the defendants’ dog ran at her full speed, jumped up on its hind legs, and made contact with the upper part of her chest, causing her to fall backwards to the ground. The injured plaintiff, and her husband suing derivatively, commenced this action seeking damages. The defendants moved for summary judgment dismissing the complaint, contending that the dog did not previously demonstrate any vicious propensities. The Supreme Court granted the motion, and the plaintiffs appeal.

Concluding that:

The Supreme Court correctly held that New York does not recognize a common-law negligence cause of action for injuries allegedly caused by a domestic animal[.]

To recover in strict liability in tort for damages caused by a dog, the plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities…“Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation”…Indeed, “[a] known tendency to attack others, even in playfulness, as in the case of the overly friendly large dog with a propensity for enthusiastic jumping up on visitors, will be enough to make the defendant liable for damages resulting from such an act”[.]

The defendants’ submissions, including the deposition testimony of the defendants and the plaintiffs, as well as the defendants’ affidavits, demonstrated that prior to the subject incident, the dog was not aggressive, and did not growl or spontaneously jump on people in the fashion described by the injured plaintiff. The defendants did not restrain the dog to keep it away from guests in their home. Accordingly, the defendants established their prima facie entitlement to judgment as a matter of law[.]

In opposition, the plaintiffs failed to raise a triable issue of fact. While the plaintiffs note that the defendants “trained” their dog to jump up on them on command, the deposition testimony of the defendants made clear that the dog only did so when prompted and only on immediate family members. They specifically testified that their dog had never jumped on an individual outside the immediate family. Such a jump on command is very different from the type of jump described by the injured plaintiff[.]

Ficalora v. Hausmann, 2016 NY Slip Op 51783(U), App. Term 2^nd Dept. (December 7, 2016)

The District Court, after a hearing, granted a petition to have appellants’ dog declared a dangerous dog under Agriculture and Markets Law § 123 and imposed specific conditions for the protection of the public.

Appellate Term summarized the facts:

At a dangerous dog hearing held pursuant to Agriculture and Markets Law § 123, the evidence showed that, on July 31, 2014, at approximately 4:00 p.m., as petitioner was walking her dog, Bailey, past appellants’ house, appellants’ dog, Joey, escaped from appellants’ fenced yard and charged at Bailey. The dogs had an altercation, during which petitioner was bitten on the thumb and fell. Appellant Hope Hausmann emerged from her house, picked up Joey, and carried him indoors, whereupon the event terminated. Whereas petitioner testified that Joey had attacked Bailey and had bitten her, Ms. Hausmann asserted that Joey had never touched petitioner, and that Bailey had bitten petitioner after petitioner had stepped between the dogs. Two non-witnesses to the incident also offered contradictory testimony concerning Joey’s disposition and his propensity to growl.

The decision of the District Court:

Following the hearing, the District Court declared Joey a dangerous dog under Agriculture and Markets Law § 123; directed appellants to have Joey neutered and to have a microchip implanted in him if they had not already done so; directed that at all times when Joey was not leashed, he be securely confined either indoors or, if outdoors, in an enclosed pen constructed with a cement base, closed top, and a chain-link fence with a locked gate; ordered that at all times when he was on public property, Joey be muzzled and restrained on a leash by an adult of at least 21 years of age; ordered appellants to maintain a liability insurance policy of at least $100,000 for personal injury or death resulting from an attack by Joey; and ordered that, in the event that appellants failed timely to comply with the order, Joey be seized or destroyed, if necessary, by a dog control officer or peace officer without further court order.

Concluding that:

In view of the contradictory testimony, the resolution of this matter depended upon a credibility finding. Giving “appropriate regard” to the decision of the trial judge, who was in a position to assess the credibility of the witnesses firsthand…we find that the record supports the District Court’s conclusion that, under a “clear and convincing” standard of proof…appellants’ dog was a dangerous dog within the meaning of Agriculture and Markets Law § 108 (24) (a) (i). We further find that the District Court did not improvidently exercise its discretion in ordering restraints on appellants’ dog[.]

Matter of Panatteieri v. City of New York, 2016 NY Sip Op 26283, Sup. Ct. N.Y. Co. (August 30, 2016)

Supreme Court addressed an emergency petition, pursuant to CPLR 78, for an Order reviewing the seizure of petitioners seven-year-old mixed breed dog, Caesar, and the determination by the Department of Health and Mental Hygiene to execute the dog.

Supreme Court set forth the background:

The incident leading to Caesar’s custody was reported to a police officer who prepared a report on it at 8:00 a.m. on May 17, 2016. The report reflects that at 7:35 a.m. that day, Caesar was unleashed, that he killed a dog and injured the dog’s owner, and that the officer reported the incident to the Animal Bite Unit at the Department of Health and brought Caesar to the Staten Island Animal Care Center[.]

In a letter dated May 18, 2016, DOHMH notified petitioners of the incident and that Caesar had been brought to a shelter run by respondent New York City Animal Care and Control, Inc.…for 10 days of observation to determine if he was rabid, and that they could seek his release following that period. They were also thereby notified that an investigation would be conducted to determine if Caesar is dangerous and whether he could be safely returned to their custody without presenting a public danger. Should it be determined that Caesar should be returned to petitioners’ custody, DOHMH also advised that it would then be determined if conditions should be imposed on his return, and that if petitioners agree, they would be asked to enter into a formal agreement. Petitioners were further notified in the letter that absent such an agreement, or upon a determination that Caesar should not be released to petitioners but should be humanely euthanized or permanently removed from the City, then within 15 days after Caesar’s removal to the ACC shelter, a petition and notice will be mailed to them, by which a hearing to be held at the New York City Office of Administrative Trials and Hearings…will be scheduled within 20 days, and that at the hearing they “may show cause, by presenting evidence, that the dog is not dangerous, and why the dog should be returned to you.”[.]

The prior proceeding:

By letter dated May 23, 2016, DOHMH notified petitioners that it had decided to continue holding Caesar beyond the 10-day rabies hold, and again advised that they would receive a petition and notice of hearing at OATH[.]

On or about May 28, 2016, petitioners demanded Caesar’s return[.]

By Petition and Notice of Conference dated June 9, 2016, petitioners were notified that pursuant to New York City Health Code § 161.07, DOHMH was seeking to euthanize Caesar on the ground that he was considered dangerous within the meaning of section 161.02 and poses a risk to public safety. Petitioners were also therein advised that pursuant to Health Code § 161.07 (f) and Rules of City of New York Department of Mental Health and Hygiene…§ 7-02, a settlement conference was scheduled at OATH for June 16, and that absent a resolution or upon petitioners’ failure to appear at the conference, a default would be entered resulting in their inability to present evidence, and that an OATH administrative law judge…would recommend an appropriate penalty to the Department’s Commissioner. The charges lodged against Caesar were set forth, along with a summary of the circumstances supporting the opinion of a certified applied animal behaviorist who, after observing Caesar at the shelter, made a preliminary determination that Caesar is “too dangerous to other dogs as well as to people who are walking or are accompanied by other dogs to be released back to [petitioners] or to the general public,” and that euthanization was the only safe option[.]

At the June 16 conference, the parties were unable to resolve the matter. A hearing was scheduled for August 4, 2016, a date mutually convenient to the parties…In the interim, petitioners interposed this petition.

At oral argument on the order to show cause, I declined petitioners’ request for a stay, observing that a favorable determination by the ALJ at OATH would render unnecessary a decision on the constitutionality of the pertinent New York City Health Code provisions. On August 10, Caesar was brought to a veterinary hospital, having contracted pneumonia[.]

By telephone conference call on August 18, 2016, the parties advised that with the parties’ consent, the ALJ at OATH had put off the hearing to November 1, 2016, pending my decision, and that they too wanted a prehearing decision from me.

The petition:

Petitioner Kristina Panattieri alleges that Caesar is being illegally detained and subject to “summary execution,” and that his continued custody following the expiration of the 10-day rabies hold, absent any display or suggestion of aggressive conduct, is arbitrary and capricious, and in contravention of the Agriculture and Markets Law, and she complains that “[t]o date no proceeding has been instituted in any Court as required pursuant to the clear mandate of [section 123], which statute was made applicable to NYC pursuant to the explicit terms of Agriculture and Markets Law § 107 (5).” She denies that Caesar caused injury to a person, that he has a known vicious propensity, and that he has ever unjustifiably attacked a person so as to cause injury or death, and argues that therefore, he is not a dangerous dog as defined in section 123. She also alleges, without any indication that she witnessed the incident, that “in fact any bites alleged were caused by the complainant’s own dog biting him after he picked him up to take him to the vet after the incident[.]”

Petitioner’s argument:

Petitioners thus argue that the Health Code violates state law, and as the Health Code places the burden of proof on dog owners and disallows their defense that Caesar was provoked to attack, it also violates the Fourth and Fourteenth Amendments of the United States Constitution, analogous provisions of the New York State Constitution, and 42 USC § 1983. They also allege that DOHMH has committed a fraud on them by issuing an illegal order of execution, and that Caesar has grown ill while in custody and is not being appropriately treated. They claim that their property rights are thereby violated[.]

Respondent’s opposition:

Respondents submit the affidavit of complainant Eugene Charles, the alleged victim, who states that as he was walking his chihuahua on a public street near petitioners’ home on Staten Island, petitioners’ mixed breed pit bull, Caesar, ran toward him and lunged at the chihuahua. Charles lifted the chihuahua as a protective measure, and Caesar grabbed and dragged the chihuahua, still held by Charles, along the sidewalk, as Charles tried to get Caesar to release the chihuahua. Caesar also bit Charles’s arms and hands. His chihuahua died on the sidewalk, and Charles was taken by ambulance to Staten Island University Hospital where he was treated for approximately 18 bite wounds[.]

Respondents contend that Agriculture and Markets Law § 107 (5) permits respondent City to adopt its own program for the control of dangerous dogs as long as it is no less stringent than the state program, which, in accordance with the section’s legislative intent, means that it may not be less stringent in protecting the public’s health and safety. As section 161.07 of the Health Code is no less stringent than Agriculture and Markets Law § 123 and as it is in fact more stringent in terms of giving the City greater control over dangerous dogs, they argue that the Health Code comports with state law[.]

Respondents specifically maintain, without dispute, that both the Health Code and the Agriculture and Markets Law require a preliminary determination that a dog is dangerous before the dog may be taken from its owner and/or kept in a shelter. Under the Agriculture and Markets Law, that determination is made by a judge based on a probable cause standard, whereas under the Health Code, the DOHMH makes the determination, and is required to “consider the circumstances of the incident resulting in the dog’s placement in the shelter, the nature and severity of the injuries reportedly inflicted by the dog, and the dog’s prior history of biting and/or causing injury.”…The Health Code also permits the DOHMH, if it deems necessary, to consider an animal behaviorist’s assessment of the dog…It also provides that a police officer’s record of a bite or other injury constitutes prima facie evidence that a dog is dangerous[.]

Respondents also observe, without dispute, that both the Agriculture and Markets Law and the Health Code require that a hearing be held to determine whether a dog is dangerous. At the hearing under the Agriculture and Markets Law, the burden is on the party seeking a determination that the dog is dangerous to prove that the dog is dangerous by clear and convincing evidence, whereas under the Health Code, the burden is on the DOHMH by a preponderance of the evidence. Respondents maintain that this lower evidentiary burden is more protective of health and safety as it permits the City to more easily impose control over dangerous dogs, and observe that the dog owner may appeal an adverse determination to the Board of Health and then by commencing a CPLR article 78 proceeding. Respondents also assert that both the Agriculture and Markets Law and the Health Code protect dog owners while also protecting the public by permitting a dangerous dog to be held at a shelter pending a final determination only after there has been a preliminary determination that the dog is dangerous. They thus argue that the Health Code’s procedures are more comprehensive and therefore more protective of public health and safety than the Agriculture and Markets Law[.]

Petitioner’s reply:

In response, petitioners argue that notwithstanding the authority given the City to adopt its own program for the control of dogs, the program set forth in Agriculture and Markets Law § 123 must be followed…Solely in support of their argument that state law preempts the Health Code as a result of the conflict between the state law’s provision that a judge preliminarily determine whether there exists probable cause and the Health Code’s delegation of that determination to DOHMH, petitioners invoke the Fourth Amendment. They reiterate their claims of a deprivation of due process, and newly maintain that the Board of Health usurped its authority in enacting section 161.07 of the Health Code, which constitutes an improper exercise of a legislative function[.]

The legal analysis:

In 1997, Agriculture and Markets Law § 107 was amended by adding [the following]:

Nothing contained in this article shall prevent a municipality from adopting its own program for the control of dangerous dogs; provided, however, that no such program shall be less stringent than this article, and no such program shall regulate such dogs in a manner that is specific as to breed[.]

The legislative purpose in amending section 107 was “to protect the public from unprovoked attacks by dangerous dogs.”…The justification for the amendments is set forth in the bill jacket as follows:

Considering the recent increase of unprovoked dog attacks that have occurred in New York State, many have called for stricter penalties for the owners of dangerous dogs. The bill places strong emphasis on the concept of responsible pet ownership. If pet owners are made aware of the dangers of owning a violent dog and know that they will be held accountable for the behavior of such an animal, the burden will be placed squarely on the owners of these dogs[.]

Consonant with the state’s legislative intent, article 161 of the Health Code was amended…in order “to provide adequate legal tools for the Board [of Health] and DOHMH to more effectively address the City’s current public health needs related to animals, and to better harmonize its provisions with other applicable law.”…Thus, section 161.07 was repealed and recodified in its entirety to create “procedures for addressing the perennial problem of dogs that are a danger because their owners are generally unable or unwilling to control them,” and to provide a hearing to an owner disagreeing with DOHMH’s determination as to the dangerousness of his or her dog and to set a length of time that a dog which has inflicted injuries may be kept in a shelter prior to the hearing[.]

Concluding that:

To the extent that section 107 (5) is ambiguous, I construe it as permitting a municipality such as the City to adopt its own program for the control of dangerous dogs [and] does not prohibit it from adopting a program that is as or more stringent than those sections, so long as the program is not less stringent than the state program set forth in Agriculture and Markets Law § 123, and does not regulate such dogs according to breed. Thus, where a municipality such as the City does not adopt its own program for the control of dangerous dogs, it must abide by the state law. There is no other way to construe this statute[.]

In prohibiting a municipality from enacting a program that is less stringent than the state program, and in light of the legislative intent to place the burden squarely on owners of dogs who have reportedly attacked a person or pet, the legislature thereby permits a municipality such as the City to adopt a comprehensive program consistent with that intent. Consequently, the legislature did not intend that an owner of a dog reported to have attacked a person or pet be afforded greater procedural rights under the Health Code than those set forth in section 123. As the Health Code incorporates standards that are as or more protective of public health and safety as those set forth in section 123, it duly comports with section 107 (5).

As section 107 (5) expressly permits New York City to enact its own rules governing dangerous dogs, petitioners fail to show that the Health Code is preempted by state law. While Fourth Amendment protections apply to administrative agencies…and even though the Health Code provides that the preliminary determination as to whether a dog is dangerous is made not by a judge but by DOHMH, that inconsistency is countenanced by the proviso that the Health Code be as or more stringent than Agriculture and Markets Law § 123, and thus it provides no legal basis for the alleged preemption…Moreover, DOHMH’s discretion in that regard is restricted by the requirement that it consider the circumstances surrounding both the incident and the dog’s prior history of biting and/or causing injury.

[T]hat the Health Code may afford petitioners less procedural rights than those set forth in section 123 does not constitute proof that petitioners are deprived of due process[.]

Berman v. Bowman, 2017 NY Slip Op 50192(U), Sup. Ct. Q. Co. (February 10, 2017)

Supreme Court addressed defendant’s motion for summary judgment and dismissed the complaint in an action to recover damages for personal injuries.

The Court summarized the facts:

This is an action to recover damages for personal injuries allegedly sustained by plaintiff, Susan Berman, when she was bit and attacked by defendants’ dog, Skippy, on June 10, 2013 in the 6th floor hallway of the building located at 75-25 153rd Street, Kew Gardens, New York.

Defendant’s contentions:

Defendants first contend that the complaint must be dismissed because it is brought only in negligence. This Court finds that the complaint sufficiently states a cause of action for strict liability. To the extent that the complaint alleges a common-law negligence cause of action, however, defendants are entitled to summary judgment because New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal[.]

To recover in strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities and that the owner knew or should have known of the dog’s vicious propensities…“Evidence tending to demonstrate a dog’s vicious propensities includes evidence of a prior attack, the dog’s tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm”…However, “the mere fact that a dog was enclosed or chained or that a dog previously barked at people is insufficient to raise a triable issue of fact as to whether it had vicious propensities”[.]

Plaintiff’s deposition testimony:

Plaintiff Susan Berman…testified that on the date of the incident, she exited her apartment with her two dogs on a leash. She was walking her dogs towards the stairwell. She heard Skippy growling. Skippy was on a leash held by defendant Kaitlin Bowman. Skippy’s growling caused no reaction from her dogs. When her dogs and Skippy came face to face in the corridor, she bent down and pushed her dogs back to make sure there was not going to be an incident. While she was bent-over, Skippy leaped into the air and bit her on the lip causing her to fall to the ground. Skippy continued to attack her by biting her numerous times on the hands. Her dogs remained passive. In response to her screams, plaintiff Eric Berman came into the hallway. He jumped on Skippy. Skippy then attacked Eric Berman by biting him on his finger. Her dog Altirius grabbed Skippy’s back with its mouth and pulled Skippy off of Eric Berman. Prior to the incident, although she saw Skippy on a daily basis, she never saw Skippy attack or bite another person or animal. Skippy did bark aggressively at other dogs in a manner that she describes as small dog activity. She further described small dog behavior as yappy, kind of pulling at the leash, and wanting to go towards another dog.

Defendant’s deposition:

Defendant Eric Berman…testified that he had only seen Skippy approximately five to ten times before the subject incident. He saw Skippy act aggressively in that Skippy was very barky and he previously saw Skippy tug on the leash. He described Skippy’s behavior as aggressive small dog type behavior. On the date of the incident, when he first exited his apartment, he saw plaintiff Susan Berman on the ground with Skippy attached to her face. No one was holding Skippy’s leash. His dogs were not reacting. He then grabbed Skippy, and Skippy bit his finger. His dog, Altirius, grabbed Skippy off of him.

The testimony of non-party witnesses:

[M]r. Autar, a resident of the subject building who lived on the same floor as plaintiffs…testified that he saw plaintiffs’ dog, a white pitbull, lock onto Skippy. Defendant Kaitlin Bowman was in the corner terrified, and there was blood all over the place. Plaintiff Susan Berman was on the ground punching her dog repeatedly trying to free Skippy. Plaintiffs’ dog was locked onto Skippy with his teeth over Skippy’s spinal area. He did not witness plaintiff Susan Berman get bitten because there was a lot of blood. Skippy did not ever evidence menacing or threatening behavior towards him or anyone else. He never saw Skippy growl, bark, or bear its teeth at anyone, nor did he see Skippy ever pull at its leash trying to get to someone. He never saw Skippy exhibiting aggressiveness at any time.

Non-party witness Robert Gilman, a resident of the building on the date of the incident…testified that he knew plaintiff Susan Berman because her dog had jumped up and kind of attacked his dog prior to the subject incident. He testified that it was common for plaintiffs’ dogs to not be on a leash. He testified that he previously was the president of the building’s tenants’ association and during his tenure no one complained as to defendants’ dog. He never witnessed defendants’ dog exhibiting any vicious or aggressive propensities or tendencies.

The Bauman affidavit:

Defendant Kaitlin Bowman [affirmed] that Skippy never bit, scratched, attacked, bared or snapped its teeth, growled, lunged, or jumped at another person or animal prior to the subject incident. On the date of the incident, she was taking Skippy out for a walk. Plaintiffs’ dogs were dragging their leashes without plaintiff Susan Berman holding on. When plaintiffs’ dogs got closer to Skippy, plaintiffs’ dogs began a vicious and unprovoked attack on Skippy. Plaintiff Susan Berman tried to stop her dogs from attacking Skippy. Skippy did not lunge at, jump, or bite plaintiff Susan Berman in any fashion.

Defendant Richard Bowman [affirmed] that Skippy never displayed any vicious propensities. Additionally, he states that Skippy was never used as a guard dog or a watchdog.

Concluding that:

Here, the evidence submitted in support of the motion, including the deposition testimony and defendants’ affidavits, shows that Skippy had been living with defendants’ family for nearly six years without incident before it allegedly bit plaintiff Susan Berman, that it never exhibited aggressive behavior, and that it was never used as a guard dog. Based on the such, defendants made a prima facie showing of entitlement to judgment of a matter of law by demonstrating that they were not aware, and should not have been aware, that Skippy had ever bitten anyone or exhibited any aggressive behavior prior to the subject attack[.]

In opposition [plaintiff] failed to raise a triable issue of fact regarding defendants’ prior knowledge of Skippy’s alleged vicious propensities…Although plaintiff Susan Berman [stated in her affidavit] that Skippy often behaved aggressively, was aggressive toward other dogs, would bark loudly and lunge towards other dogs, growl, snap, snare its teeth, and bark loudly at humans or animals that got too close to it, such affidavit contradicts her prior deposition testimony and is belied by the testimony of the two non-party witnesses. Accordingly, this Court finds that plaintiff Susan Berman’s affidavit is merely an attempt to raise a feigned issue of fact to avoid the consequences of her earlier deposition testimony, and thus, is insufficient to raise a triable issue of fact[.]

Leak v. Skelton, 2016 NY Slip Op 32152(U), Sup. Ct. K. Co. (October 24, 2016)

Supreme Court addressed defendant’s motion for an Order granting summary judgment and dismissing the complaint:

The Court summarized the facts:

Plaintiff Rondaya Leak…a seasonal UPS package delivery worker, commenced the instant action seeking compensatory damages for personal injuries she allegedly sustained on December 12, 2011, when she was bitten on her left thigh by a dog on the front steps of defendant’s home. The subject dog is a pit bull named Captain.

The applicable law:

“To recover upon a theory of strict liability in tort for a dog bite or attack, a plaintiff must prove that the dog had vicious propensities and the owner of the dog, or a person in control of the premises where the dog was, knew or should have known of [the dog’s vicious] propensities”… “Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others”…“Evidence tending to demonstrate a dog’s vicious propensities includes evidence of a prior attack, the dog’s tendency to growl or snap or bare its teeth, the manner in which the dog was restrained, the fact that the dog was kept as a guard dog, and a proclivity to act in a way that puts others at risk of harm”…“The nature and severity of the attack does not demonstrate knowledge of the dog’s alleged vicious propensities[.]”

With respect to the ownership of the dog:

As an initial matter, the court notes defendant’s claims that Captain belonged to his nephew, who had moved to a new residence where dogs were not allowed, and also that Captain’s stay at his home was meant to be “temporary” as of November, 2011…Despite defendant’s denial of ownership of Captain, the court finds that he may be held liable under the theory of strict liability as the person in control of the premises where Captain was residing at the time of the subject incident[.]

Reviewed the record:

Nevertheless, based upon a review of the record submitted by the parties and the relevant law, the Court finds that defendant met his initial prima facie burden of proof entitling him to judgment as a matter of law through the submission of a copy of his deposition transcript establishing that he was not aware, not should he have been aware that Captain had ever bitten anyone or exhibited any aggressive behavior or vicious propensities…At his deposition, defendant testified that shortly after Captain came to live at his home, he put a “Beware of the Dog” sign on a small pine tree in his yard that was visible from the outside of his gate…Defendant explained that he put the sign up so that people would know that there was a dog in his backyard…Defendant further testified that he allowed Captain to remain unleashed in his backyard during the daytime and that he would be indoors during the nighttime…Defendant, who happens to be a police officer, denied that Captain had a negative reaction to individuals wearing a uniform…Defendant also testified that while Captain sometimes barked at people, he never snarled at them…Additionally, defendant denied receiving any complaints about Captain biting, growling or snarling at anyone…Defendant testified that he was not aware of Captain biting anyone prior to the subject incident…Defendant stated that whenever Captain heard the doorbell, he would run to the front of the house and would sometimes bark at the person at the door but he denied that Captain would jump on the person at the door…According to defendant, Captain never growled at or bit the pet chihuahua which was also residing at his home at the time of the incident[.]

Concluding that:

In opposition, plaintiff has failed to submit sufficient evidence in admissible form to raise a triable issue of fact regarding defendant’s prior knowledge of the Captain’s alleged vicious propensities. None of the issues asserted by plaintiff go to whether defendant had prior knowledge of Captain’s alleged vicious propensities or to whether Captain had ever previously bitten anyone…There is no evidence submitted that the mere presence of a “Beware of Dog” sign in defendant’s yard was in response to any prior vicious acts or hostile tendencies by Captain…Moreover, the fact that Captain had previously barked at people who rang the doorbell is insufficient to raise a triable issue of fact as to whether it had vicious propensities…Additionally, there is no evidence submitted indicating that Captain was a guard dog for defendant…Finally, plaintiff’s claims about statements made to her by defendant’s neighbor and a UPS co-worker regarding Captain’s alleged vicious propensities constitute inadmissible hearsay…and, as such, are insufficient to raise a triable issue of fact regarding whether Captain actually exhibited any fierce or hostile tendencies prior to the subject incident.

West Side Family Realty, LLC v. Goldman, 2016 NY Slip Op 32067(U), Civ. Ct. New York Co. (September 15, 2016)

Petitioner/landlord sought to recover possession of the rent-stabilized apartment of defendant/tenant based on the allegation that the tenant breached her lease obligation by harboring a cat in the apartment.

The Court described the procedural history:

Petitioner issued a Notice to Cure dated April 29, 2016, asserting that a cleaning lady for the building “noticed” a cat from the Subject Premises on April 25, 2016, and that this violated a provision of Respondent’s January 1, 2014 lease. Petitioner issued a Notice of Termination dated May 20, 2016. The Notice of Petition issued June 6, 2016, and the proceeding was initially returnable June 14, 2016.

Respondent appeared by counsel and filed an answer dated June 13, 2016, asserting that Respondent had maintained her cat openly and notoriously for over three months prior to the commencement of the proceeding, that Petitioner’s predecessor in interest was aware that Respondent had a cat, that Petitioner’s agents/employees were on notice of this fact over 90 days prior to the commencement of the proceeding, and asserting a counterclaim for attorneys’ fees.

Summarized the facts:

Respondent moved into the Subject Premises in June 1995, pursuant to an initial lease…that ran for a term from June 1, 1995 through May 31, 1997. The lease provided that Pets, including cats, were not allowed in the building. The prior owner was an attorney named Amelio Marino. Respondent asserts Mr. Marino was aware that Respondent had a cat from the inception of her tenancy. Mr. Marion and his co-owner, sold the building to Petitioner on or about April 3, 2014[.]

Mr. Marino wrote a letter to Petitioner’s counsel dated May 5, 2016, asserting that Respondent had had a cat for over 20 years in the Subject Premises and that he was aware of this fact[.]

Respondent adopted Jacob, the cat that is the subject of this proceeding on or about January 13, 2013…From that date forward, Respondent took the cat for procedures to the vet on numerous occasions. [R]espondent took Jacob to have his nails clipped approximately once a month, and at least three other times for medical care.

In September 2014, Respondent requested a repair to her bathroom sink. Respondent keeps Jacob’s litter box in the bathroom of the Subject Premises. Respondent asserts that Ming, Petitioner’s handyman completed this job at or about said time, and could not have made the repair without observing the litter box. Respondent also sent a text message to Pat, the Superintendent on August 30, 2015 advising that she needed the extra key to the Subject Premises so her friend could feed her cat while she was away. Pat responded to said text message by agreeing to drop of the key[.]

Petitioner’s assertions:

Petitioner acknowledges that Pat is employed by Petitioner, but asserts Pat is not the Super but an independent contractor. Petitioner acknowledges that Ming is also employed by Petitioner. No affidavit in opposition is submitted either from Ming or Pat denying they had knowledge of the cat, or the authenticity of the text message. Petitioner does not explain the failure to supply said affidavits. Petitioner merely suggests, Mr. Marino has reason to fabricate his knowledge about the cat. Petitioner does annex letters from Ruth Loftin and two other occupants stating they had not seen a cat prior to the commencement of this proceeding.

Respondent’s submission:

In reply, Respondent submits a more detailed affidavit from Mr. Marino regarding his knowledge of Respondent’s cats[.]

The applicable admission of the New York City Administrative Code:

• 27-2009.1. of the New York City Administrative Code is entitled Rights and responsibilities of owners and tenants in relation to pets, and provides in part:

1. Legislative declaration. The council hereby finds that the enforcement of covenants contained in multiple dwelling leases which prohibit the harboring of household pets has led to widespread abuses by building owners or their agents, who knowing that a tenant has a pet for an extended period of time, seek to evict the tenant and/or his or her pet often for reasons unrelated to the creation of a nuisance. Because household pets are kept for reasons of safety and companionship and under the existence of a continuing housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety and welfare of tenants who harbor pets under the circumstances provided herein, it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and dislocation of tenants within this city.
2. Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the multiple dwelling law, the housing maintenance or the health codes of the city of New York or any other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.

Concluding that:

The affidavits of Respondent and Mr. Marino are admissible prima facie evidence supporting Respondent’s claim for summary judgment. Petitioner’s affidavit by Mr. Lee claiming that Pat and Ming had not seen the cat or cat litter is inadmissible hearsay. Moreover, other than claiming Mr. Marino, an attorney and officer of the court, has a reason to lie, they offer no evidence suggesting Marino was not aware of the cat.

Petitioner has failed to present affidavits from Ming and Pat disputing that they had knowledge of Jacob and has offered no explanation for this failure. Petitioner’s argument that Pat is an independent contractor who makes repairs, rather than the Super is unavailing, a contractor retained by the landlord to make repairs serves as an agent for the purpose of imputing knowledge to the landlord under the pet law[.]

Explicating that:

The no-pet waiver rule was intended to require that landlords enforce a no-pet clause promptly or be deemed to have waived that breach of the lease…Here it is undisputed that the prior owner was aware that Respondent had two cats as of January 2013, and took no action to commence a holdover within 90 days. Moreover, it is undisputed by admissible evidence that two of Petitioner’s agents were aware of the cat.

Based on the foregoing, Respondent is entitled to summary judgment dismissing this proceeding.

As a result, Respondent is the prevailing party in this proceeding and is entitled to an award of attorneys’ fees, pursuant to paragraph 27 of the initial lease. Additionally, Petitioner failed to submit any opposition as to the amount of fees requested. Based on the foregoing, Respondent is awarded $4,533.33 in attorneys’ fees and a money judgment for same shall be entered against Petitioner.

People v. Roundtree, 2016 NY Slip Op. 26333 Justice Court of the Town of Greece, Monroe County (October 10, 2016)

The Court outlined the charge:

The defendant, Daryl T. Roundtree, is charged with the offense of overdriving, torturing, and injuring animals; failure to provide proper sustenance, a misdemeanor, in violation of section 353 of the Agriculture and Markets Law of the State of New York. The accusatory instrument, which charges the Defendant with said violation, was prepared and filed with the court on March 9, 2016 by Investigator Reno Di Domenico, who is employed by the Humane Society of Greater Rochester. The information alleges that on February 18, 2016 at approximately 2:40 p.m. at 132 Clearview Road in the Town of Greece, County of Monroe and State of New York, the defendant, Daryl T. Roundtree, “with omission and neglect deprived an animal of necessary sustenance, food or drink and willfully set on foot, instigates, engages in or in any way furthers any act of cruelty to any animal or any act to produce such cruelty. To wit: the defendant being the owner and in custody and control of an adult female pit bull, color brown and white, named Coco, failed to provide basic care established for dogs by not providing it with access to fresh water daily.”

The accusatory instrument alleges “the defendant filled a water bucket two days prior and said water froze leaving no drinkable water “ and that, “the defendant continued to maintain said conditions after being told multiple times prior to this incident of proper care required by the law”.

The facts:

The hearing was held on September 9, 2016. The investigator, Reno Di Domenico, testified that on Thursday, February 18, 2016 at approximately 10:00 or 11:00 a.m. he received a phone call from an unidentified neighbor of the defendant. She advised him that there had been a major snow storm in the area on Monday night (February 15, 2016) and Tuesday (February 16, 2016) and saw the defendant at the home on Tuesday. The investigator testified that the neighbor stated “she hadn’t seen anybody at the house since early Tuesday (February 16, 2016) no activity, no car, and there was no nothing at the house”. She stated she had heard the dog in the garage a couple of days prior to calling the investigator and that on Thursday (February 18 , 2016 ) “she hadn’t heard anything about the dog and was worried.” The investigator testified that after talking to the neighbor “I wasn’t really going to go out there because we already had an open case, but she was pretty adamant and kind of concerning on the phone.” According to the investigator’s testimony he did not immediately respond to the call since he had not prioritized the call as “the most important ones” he needed to respond to first. When questioned as to why he delayed responding to the call he speculated that the other calls were “probably dogs outside with no shelter cases”. However he did not offer any specific information regarding these prioritized calls. He further speculated that he “probably had administrative stuff” to do before he left the office. When he did leave his office, he took his camera with him, as he testified he commonly does when he goes out on calls. The officer arrived at the defendant’s home on February 18, 2016 at approximately 2:00 p.m. “three to four hours” after receiving the anonymous phone call. Upon arriving at the scene he observed that the defendant’s driveway was “packed with snow” and “not plowed”. He testified that he observed footprints in the snow going up the defendant’s driveway leading to the rear back door of the house which were somewhat covered by additional snow. However, he did not know who had made the footprints nor did he know if the defendant was at home. At the scene, the unidentified neighbor approached the investigator and told him that she was concerned for the animal and had not heard the dog all day. The investigator stated that based on his observations he concluded, “that no one had been there,” and decided to approach the house. He walked up to the rear back door of the defendant’s house and knocked on the door, but no one answered. He then went to the detached garage where he had found the dog on previous occasions, and where the neighbor had told him she heard the dog. He testified that there were no footprints from the house to the detached garage and stated “it was fresh snow; there was no blown-in cover. We could tell nobody had been at the garage”. He knocked on the overhead garage door as he had done on previous calls to the defendant’s home. He testified that in the past when he knocked on the garage door the dog would bark or scamper around or scratch on the overhead door because she knew someone was around. However on February 18, 2016, the date of the incident, he knocked on the door and did not hear any barking, scampering or any movement inside. At that point in time the investigator believed the dog was “dead or dying” due to the extreme outside temperatures and his concern that the dog was confined without water which could cause hypothermia. It appears that the investigator assumed that the dog was confined without water having found the dog without water on past visits. The investigator became concerned for the dog’s safety and asked Investigator Laura Thompson to see if she could try to locate the defendant. However, she was unable to do so. At that point, the investigator decided to lift the garage door a few inches to see if he could hear any activity from the dog. Not hearing anything, he then lifted the garage door half way up at which time the dog started to walk out. He then grabbed the dog, which had been chained inside, to make sure she would not run off. He observed a bowl or a bucket of water in garage that was frozen. He saw empty bags of dog food but no food for the dog. Once he secured Coco, he began to take photographs of the scene. He testified the dog was active, standing on all four legs, and had no signs of injury or malnourishment but seemed more lethargic initially and then “became more excited”.

It is important to note that the February 18, 2016 incident was not an isolated event. The investigator testified that he and investigator Laura Thompson had three prior contacts with the defendant regarding the care and welfare of the dog. He testified that the defendant in the past had not provided shelter for the dog and was left outside without water. Further, he testified that the Greece Police had also received calls from neighbors complaining that the dog was outside without water. In August of 2015 the investigator seized the dog from the garage in response to complaints from his neighbors after learning that the defendant was incarcerated and no one was coming over to take care of the dog. He testified that both he and investigator Thompson had on previous occasions spoken with the defendant about providing the proper care for the dog including sheltering the dog in a dog house.

The search and seizure issue:

The Fourth amendment of the United States Constitution protects individuals from unreasonable search and seizure. Generally, a warrantless entry by law enforcement officials upon an individual’s private property to conduct a search and seizure constitutes a violation of an individual’s Fourth Amendment rights. Barring certain constitutionally permissible exceptions established by case law, such search and seizure are unlawful and the evidence seized there from must be suppressed.

In this case the humane society investigator entered the defendant’s premises on February 18, 2016 without first seeking a search warrant from a local magistrate. As such, the first issue to be decided by the court is whether the humane society investigator was empowered to conduct a warrantless search and seizure of the defendant’s premises, if constitutionally permissible.

Section 2.10(7) of the New York State Criminal Procedure Law identifies a humane society officer as a “peace officer”. Under Section 2.20(1(c) of the Criminal Procedure Law, a peace officer is duly empowered to conduct a warrantless search “whenever such search is constitutionally permissible and acting pursuant to their special duties”. The special duties of a humane society investigator are clearly defined in Article 26 of the Agriculture and Markets Law adopted for the purposes of protecting and preventing cruelty to animals. Recognizing animals to be living beings in need of protection, the legislature conferred special powers to humane society officers to enforce the provisions of said Agriculture and Markets Law to protect and prevent cruelty to animals. These powers include the authority to arrest and file charges against individuals who violate the provisions of said law. Accordingly, the court finds that the investigator in this case acting in his capacity as a “peace officer” possessed the authority to conduct a warrantless search, provided it was constitutionally permissible, subject to the constraint imposed by the Fourth Amendment upon all law enforcement officials acting as government agents of the state.

In addition to the search powers conferred upon the investigator as a peace officer under the Criminal Procedure Law, Section 372 of the New York State Agriculture and Markets Law specifically authorizes a humane society investigator to obtain a search warrant from a magistrate to enter and search any building or place where, based on reasonable cause, suspected animal cruelty or other violations of the Agriculture and Markets Law are occurring or about to occur. The defendant contends that the humane society investigator should have first obtained a search warrant pursuant to said Section 372 of Agriculture and Markets Law before entering the defendant’s premise and that without such warrant, the search and subsequent seizure of evidence must be suppressed as a violation of the defendant’s Fourth Amendment rights. The People, on the other hand, contend that the investigator, a duly constituted peace officer, was authorized to conduct a lawful warrantless search invoking the “Emergency Doctrine” exception to the warrant requirements of the Fourth Amendment. The People contend that the investigator’s warrantless search and seizure was prompted by a state of “emergency” that exi[s]ted and therefore lawful in accordance with People v. Mitchell and People v. Doll[.]

The controlling Court of Appeals precedent:

In People v. Mitchell,…the Court of Appeal ruled that a warrantless search and seizure of private property would be considered reasonable and therefore not in violation of the Fourth Amendment if it complied with three enumerated elements recited…as follows:

(i) “the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property, and

(ii) “that the protection of human life or property in imminent danger must be the motivation for the search” and

(iii) “there must be some reasonable basis, approximating probable cause, to associate the emergency with the area to be searched”.

The contentions of the parties:

The defendant contends that the emergency doctrine established by the Court of Appeals in People v. Mitchell,…is not applicable to the present case. The defendant argues that paragraph (ii) (cited above) specifically refers to the protection of human life not animal life and therefore it is not available in animal cruelty cases. The People contend that the standard for determining the application of the emergency doctrine is set forth in People v Doll which omits the use of the word human in reference to the three elements of the emergency exception. The Court of Appeal in People v. Doll…enumerated the three elements as follows:

(1) “the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property, and this belief must be grounded in empirical facts:

(2) “the search must not be primarily motiv[ated] by an intent to arrest and seize evidence; and

(3) “there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.”

Holding that:

[T]he court concludes that the three elements set forth in People v. Doll,…constitute the standard to be applied in this case. To rule otherwise, would be to totally disregard the in-depth analysis the Court of Appeal’s recited in applying the revised emergency elements in the violent murder case it decided.

As to the emergency doctrine:

It is important to note that the Court of Appeals in both People v. Mitchell,…and People v. Doll…recites in the body of each decision the phrase “for the protection of life or property.” thereby contemplating that “property” is also entitled to be protected in emergency situations.

There is no doubt for all intents and purposes that an animal is recognized, both by case law and statute, to be “property” (albeit a living being). Following the logic of the emergency doctrine outlined by the Court of Appeals, it would appear, in this court’s opinion, that the protection of animal life (property), although not specially identified, was indeed contemplated by the court in its decisions. If the court had intended to exclude the protection of animal life from its emergency doctrine it would have specifically addressed that issue. To reason otherwise, would be to reject the legal definition of property, which includes animals.

*     *     *

Accordingly, this court holds that the emergency doctrine, established by the Court of Appeals as an exception to the warrant requirements of the Fourth Amendment, applies to the protection of animals and therefore may be relied upon to determine whether a warrantless search of an individual’s property and subsequent seizure of evidence in an animal cruelty case was lawful and not in violation of an one’s Fourth Amendment rights.

And the application of the law to the facts:

In the present case, the People contend that the humane society investigator, Reno Di Domenico, entered the private property and garage of the defendant without a warrant due to an emergency situation that required him to act immediately to protect and preserve the life and safety of the dog, Coco, thereby preventing him from first seeking a search warrant.

“The application of the emergency doctrine is a mixed question of law and facts”…that must be reviewed by the court in rendering its decision.

The first element of the emergency doctrine requires that the humane society investigator had to have reasonable cause to believe that an emergency existed, and there was an immediate need for assistance for the protection of life or property based on the empirical facts of the case. The investigator had previous contacts with the defendant and his dog. He was astutely aware of the fact that the defendant had not properly cared for the dog Coco in the past. The defendant had failed to provide fresh daily water or proper shelter for the animal on several occasions. On one occasion, in August of 2015, the investigator was forced to seize the dog from the defendant’s garage because it had been left alone without daily nourishment and fresh water due to the defendant being in jail and no one caring for the dog. On February 18, 2016, the investigator arrived at the defendant’s house and discovered that the defendant was in fact not home (he knocked on door and no one answered), and was told by the neighbor that she had not seen the defendant for two days after the severe snow storm nor had she heard the dog which had been kept in the garage. Granted, that the investigator did not initially believe an emergency existed when he took the neighbor’s call, his opinion changed upon arriving at the home and observing the totality of the circumstances, that is (a) the driveway packed with snow and not plowed (b) the severity of the cold weather conditions (c) the heavy snow storm that prevented driveways from being plowed, (d) observing only one set of footprints in the snow leading to the defendant’s back door (e) no footprints leading to the defendant’s detached garage where the neighbor told him she last saw the dog, and (f) knocking on the garage door without any response whatsoever from the dog, which on past visits would cause the dog to [bark] and scamper around inside. Believing that the dog was “ dead or dying” he immediately responded to the emergency he perceived. Accordingly, the court finds that Investigator Reno Di Domenico, had reasonable cause to believe that an emergency existed at the time of his arrival requiring his immediate assistance to protect the life of the dog Coco he believed to be in jeopardy.

As to the second element of the emergency doctrine, it is clear from the facts established at the hearing that the investigator did not enter the defendant’s property and garage with the primary intent of arresting the defendant and seizing evidence of a crime. The facts established that the investigator’s primary motive was his concern for the dog’s safety and wellbeing. In fact the investigator on numerous past occasions could have arrested the defendant for similar charges, but instead attempted to educate the defendant in the proper care of his dog. The manner in which he attempted to deal with the defendant in the past supports the conclusion that his entry was primarily motivated to save the dog, not to arrest the defendant and gather evidence of a crime.

The last element of the emergency doctrine requires a finding of “some reasonable basis, approximating probable cause, to associate the emergency with the area or placed to be search”. As the court has determined there was proof that an emergency existed. Furthermore, there was sufficient proof that the dog was in the garage on that day. The investigator, based on the neighbor’s advisement that she heard the dog in the garage, along with his knowledge from past experiences that the defendant had sheltered the dog in the garage (including the August of 2015 incident) had, in this court’s opinion, probable cause to believe that the dog was inside the garage, alone for some time, during extreme outside weather conditions which could have lead to hypothermia and the ultimate death of the dog.

Concluding that:

Accordingly, the court concludes that the Emergency Doctrine is applicable in this case but only to the extent of the initial warrantless entry into the defendant’s garage, the securing of the dog as evidence, and the observations of the investigator at the time of the initial entry regarding the living conditions inside the garage affecting the safety and wellbeing of the dog. Therefore, the dog and following observations of the investigator (a) the condition of the dog and garage, (b) the frozen bowl or bucket of water in the garage, and (c) the lack of food and empty dog bags, are admissible as evidence at trial. All other evidence seized from the garage, including the photos taken, is suppressed. The emergency was at an end once the investigator viewing the living conditions inside the garage seized the dog. At that point in time, the investigator was required to obtain a search warrant from a local magistrate pursuant to section 372 of the Agricultural and Market Law to lawfully continue their search and seizure[.]

Lessons learned:  Keep your dog on a leash!!!

Pets are humanizing.  They remind us we have an obligation and responsibility to preserve and nurture and care for all life.

                                                                                                            James Cromwell