I am constantly amazed about the number of cases involving dog bites and other disputes over pets that, while having no legal significance beyond immediate facts and parties, are nevertheless vigorously fought and disproportionately encumber Court dockets. Seven recent examples follow:
Kachenkov v. Vadala, 2013 NY Slip Op 30971(U), Sup. Ct., Queens County, Bernice Daun Siegal, J., May 3, 2013
Judge Siegal described the facts:
On March 17, 2010, Sergei contends he sustained serious personal injuries when he was bitten by a dog [Debo] owned by co-defendants, Hayes and Mascolo. Hayes and Mascolo were tenants in a premises located at 7935 68th Road, Middle Village, New York (defendants’ premises”). Defendants’ premises was owned by co-defendants Mark Vadala and Kimberly Vadala. Id. at 2.
The first cause of action alleges that the defendants were negligent in owning the dog and failing to keep the dog in a separate area, leash the dog, failing to warn the plaintiff and allowing the dog to run through the public and plaintiff’s premises causing personal injury. The second cause of action is a derivative cause of action by Marina. The cause of action for gross negligence was withdrawn by stipulation. Id.
And the deposition testimony:
Sergei and Marina testified at their deposition that the incident took place in their own backyard.
The Vadalas testified at their deposition that while they owned the defendants premises and knew about a dog at the defendants premises, they were never made aware of the dog’s vicious propensities and had no complaints about a dog prior to the subject incident.
Mascolo and Hayes testified that they never received complaints about their dog from tenants, neighbors or the plaintiffs. Hayes testified that it was plaintiffs’ dog that came onto his property and attacked his dog. His dog then chased plaintiffs’ dog onto plaintiffs’ alleyway but did not bite Sergei. Defendants deposition testimony indicates that Mascolo’s dog was friendly.
Sergei and Marina admitted, at their respective depositions, that they lack knowledge of any prior incident involving the dog. Sergei testified at his deposition that his dog was involved in at least three prior altercations with other animals. Id.
The Court then outlined the law:
Initially, the court notes that despite plaintiffs contentions, with respect to common-law negligence, there is no longer a “negligent dog-bite” cause of action in New York; accordingly, a party injured by a domestic animal can only recover in strict liability. (Petrone v. Fernandez, 12 N.Y.3d 546 .) “To recover in strict liability for damages caused by a dog bite, a plaintiff must prove that ‘the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities’.” (Varvaro v. Belcher, 65 A.D.3d 1225, 1225 [2nd Dept 2009]; Christian v. Petco Animal Supplies Stores, Inc., 54 A.D.3d 707 [2nd Dept 2008].) The factors to consider when making a determination whether an owner had knowledge of a dog’s vicious propensities include evidence of a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner of the dog’s restraint, whether the animal is kept as a pet or a guard dog, and whether there have been prior complaints. (Petrone v. Fernandez, 53 A.D.3d 221 [2nd Dept 2008] rev’d on other grounds 12 N.Y.3d 546 ; Dykeman v. Heht, 52 A.D.3d 767 [2nd 2008]; Bard v. Jahnke, 6 N.Y.3d 592 ; Collier v. Zambito, 1 N.Y.3d 444 ). Id. at 3.
Analyzed the deposition testimony:
Based on the deposition testimony presented by the moving defendants, there is no evidence that Debo had ever bitten, jumped, or growled at anyone prior to the incident in question, nor had the dog exhibited any other aggressive or vicious behavior. Further, the Vadalas and the moving defendants testified at their depositions that they thought the dog was friendly and that they received no complaints about Debo prior to the subject incident. Therefore, the moving defendants proved that they did not know or should have known that Debo had vicious propensities. Accordingly, the moving defendants established their prima facie entitlement to judgment as a matter of law. Id. at 3-4.
And concluded that plaintiff failed to establish that the dog had vicious propensities:
Plaintiffs contend that the moving defendants were aware of Debo’s vicious propensities because Mascolo allegedly told Sergei to “be careful with your dog because we have the aggressive Pit Bull, stay away.” In addition, plaintiffs contend that Debo is “vicious” because the moving defendants “chooses to keep his dog away from other people” and because Debo is an American Straffordshire Terrier which the public believes is an “aggressive” breed of dog. However, the mere issuance of a warning about a dog and the breed of the dog are insufficient to raise a triable issue of fact as to the dog’s vicious propensities in the absence of any evidence that prior to this incident the dog exhibited any fierce or hostile tendencies. (See Palumbo v. Nikirk, 59 A.D.3d 691, 692 [2nd Dept 2009] rev on other grounds 12 N.Y.3d 546 ; Miletich v. Kopp, 70 A.D.3d 1095 [3rd Dept 2010] [breed of dog alone is insufficient to create an issue of fact]; Sers ex rel. Sers v. Manasia, 280 A.D.2d 539 [2nd Dept 2001].) Id. at 4.
Bloom v. Van Lenten, 2013 NY Slip Op 03542, Appellate Division, Third Department, May 16, 2013
The Court summarized the facts:
Plaintiff is a professional freelance canine photographer. In 2005, she met defendants, Howard Van Lenten and Tom Carty, who reside together at a home owned by Van Lenten, where they operate a dog breeding business. In July 2007, plaintiff visited defendants’ home to photograph their English Labrador retriever puppies, including a puppy named Delilah. Approximately three years later, plaintiff again visited defendants’ home on two occasions for the purpose of photographing their new puppies. On the second of those visits, plaintiff was in defendants’ backyard, where Delilah – who then weighed approximately 50 pounds – and three other full-grown dogs were running and playing. As Delilah was being chased by the other dogs, she ran into the back of plaintiff’s leg, knocking her forward and onto the ground. As a result, plaintiff sustained serious injuries. Id. at 1.
Outlined the pleadings and prior proceedings:
[P]laintiff commenced this action against defendants asserting causes of action sounding in negligence and strict liability. After issue was joined, defendants separately moved for summary judgment dismissing the complaint. Supreme Court partially granted the motions by dismissing the negligence cause of action, but, among other things, denied the motions with respect to the strict liability claim, finding questions of fact as to whether Delilah had vicious propensities of which defendants were aware . . . . Id. at 1-2.
Summarized the applicable law:
It is well established that “the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” (Bard v. Jahnke, 6 NY3d 592, 596 , quoting Collier v. Zambito, 1 NY3d 444, 446 ; see Hamlin v. Sullivan, 93 AD3d 1013, 1013 ). As the movants, it was defendants’ burden to establish that they had no prior knowledge that Delilah had any vicious propensities (see Reil v. Chittenden, 96 AD3d 1273, 1274 ; Thurber v. Apmann, 91 AD3d 1257, ). Notably, a vicious propensity does not necessarily have to be “dangerous or ferocious” but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, so long as “’such procolivity results in the injury giving rise to the lawsuit’” (Hamlin v. Sullivan, 93 AD3d at 1014, quoting Collier v. Zambito, 1 NY3d at 447). Nonetheless, “normal canine behavior” is insufficient to establish a vicious propensity (Collier v. Zambito, 1 NY3d at 447; see Hamlin v. Sullivan, 93 AD3d at 1014; Earl v. Piowaty, 42 AD3d 865, 866 ; Seybolt v. Wheeler, 42 AD3d 643, 645 ). Id. at 2.
And concluded that defendants lacked knowledge of the vicious propensity of their dog:
Here, Supreme Court correctly found that defendants met their initial burden of establishing their lack of knowledge of vicious propensities with regard to Delilah, thus shifting the burden to plaintiff to demonstrate the existence of a triable issue of fact (see Reil v. Chittenden, 96 AD3d at 1274; Hagadorn-Garmely v. Jones, 295 AD2d 801, 801 ). To that end, plaintiff offered her deposition testimony and affidavit in which she alleges that, after the incident, Van Lenten and Carty each told her that Delilah had previously done to them the same thing she had done to plaintiff. However, this evidence, even when viewed in the light most favorable to plaintiff (see Reil v. Chittenden, 96 AD3d at 1274; Thurber v. Apmann, 91 AD3d at 1258), is insufficient to establish issues of fact regarding Delilah’s vicious propensity. Plaintiff’s claim here is that Delilah knocked her down by running into her as the dog was running and playing in the backyard with other dogs. Plaintiff does not allege that the dog jumped on her, bit her or otherwise took any purposeful action that was directed at her. Delilah’s act of running into plaintiff in the course of being playfully chased by other dogs merely consisted of normal canine behavior that does not amount to a vicious propensity (see Hamlin v. Sullivan, 93 AD3d at 1015; Bloomer v. Shauger, 94 AD3d 1273, 1274 , affd ____ NY3d ____, 2013 NY Slip Op 0312 ). Accordingly, defendants conclusively demonstrated that they lacked knowledge of a vicious propensity on Delilah’s part, entitling them to summary judgment dismissing the complaint. Id.
Buicko v. Neto, 2013 NY Slip Op 08182 Appellate Division, Third Department, December 5, 2013
The Court described the facts:
When plaintiff rode her bicycle past defendants’ residence, she noticed defendants’ dog, Dudley, running back and forth along the front boundary of defendants’ property and barking. After passing defendants’ residence, plaintiff turned around at a cul-de-sac and again rode past defendants’ residence. At this point, Dudley allegedly ran from the property into the road and in front of the bicycle, causing plaintiff to inadvertently strike him and fall from her bicycle, sustaining injuries. Id. at 1.
Summarized the applicable law:
It is well settled that a cause of action for ordinary negligence does not lie against the owner of a dog that causes injury (see Petrone v. Fernandez, 12 NY3d 546, 550 ; Bard v. Jahnke, 6 NY3d 592, 597-599 ; Morse v. Colombo, 31 AD3d 916, 917 ; cf. Doerr v. Goldsmith, 110 AD3d 453, 454-455 ; see also Hastings v. Sauve, 21 NY3d 122, 125-126 . The sole viable claim against the owner of a dog that causes injury is one for strict liability (see Bard v. Jahnke, 6 NY3d at 596-597, 599; Alia v. Fiorina, 39 AD3d 1068, 1069 ). To establish strict liability, “there must be evidence that the animal’s owner had notice of its vicious propensities” (Alia v. Florina, 39 AD3d at 1069; see Collier v. Zambito, 1 NY3d 444, 446-447 ). “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” (Collier v. Zambito, 1 NY3d at 446, quoting Dickson v. McCoy, 39 NY 400, 403 ). Indeed, “a dog’s habit of chasing vehicles or otherwise interfering with traffic could be a ‘vicious propensity’” (Alia v. Florina, 39 AD3d at 1069). Therefore, in a case such as this, in the absence of proof that Dudley has a history of chasing bicycles or vehicles or otherwise interfering with traffic, “there is no basis for the imposition of strict liability” (id. at 1069; see e.g. Smith v. Reilly, 17 NY3d 895, 896 ; Berg v. Chawgo, 277 AD2d 620, 620 ). Notably, evidence that a dog has a history of barking and running around is insufficient, by itself, to establish a vicious propensity, as such actions “are consistent with normal canine behavior” (Collier v. Zambito, 1 NY3d at 447). Id. at 2.
And, applying the facts to the law, concluded that plaintiff failed to establish that defendants knew of conduct by their dog that gave rise to vicious propensities:
In reviewing the award of summary judgment to defendants, we view the evidence in the light most favorable to plaintiff, the opponent of that motion (see Vega v. Restansi Constr. Corp., 18 NY3d 499, 503 ). Here, defendants established that, although they had previously observed Dudley running back and forth within the invisible fence barking at passing cars and bicycles, they never observed him leave the fenced in area to chase bicycles or cars or to interfere with traffic. This evidence was sufficient to shift the burden to plaintiff to raise a triable question of fact as to whether defendants knew or should have known that their dog had previously interfered with traffic or engaged in conduct giving rise to an interference of vicious propensities (see Zuckerman v. City of New York, 49 NY2d 557, 562 ; Alia v. Fiorina, 39 AD3d at 1069). Plaintiff’s evidence that Dudley would bark at passing traffic and run back and forth in defendants’ yard is insufficient to raise a question of fact as to whether he had a propensity to run into the road or interfere with traffic (see Smith v. Reilly, 17 NY3d at 896; Collier v. Zambito, 1 NY3d at 447; Illian v. Butler, 66 AD3d 1312, 1314 ). Finally, given our conclusion that plaintiff’s claim is determined solely by application of principals of strict liability, any evidence that the defendants’ invisible fence was improperly maintained is irrelevant. Id. at 2-3.
Gervais v. Laino, 2013 NY Slip Op 08819, Appellate Division, First Department, December 31, 2013.
The Court summarized the facts and the basis for defendant’s motion for summary judgment:
In this action for injuries suffered by plaintiff when she was allegedly scratched or bitten in the face by defendant’s dog, plaintiff stated that she was walking in Central Park when she saw defendant’s dog, whose hind paw was caught in a fence, wailing in pain. Plaintiff claims that she was leaning over the dog and deciding what to do, when the dog lunged at her and scratched or bit her face. However, both the hospital records and police report state that plaintiff was attempting to free the dog. Defendant dog owner, who was present and rushing over to her dog, states that plaintiff, wrapped her arms around the dog’s head and neck. In support of the motion for summary judgment, defendant submitted evidence of her dog’s gentle disposition and her lack of knowledge of any vicious propensities, including four affidavits from neighbors and other dog owners who know defendant’s dog, as well as test results indicating that the dog was awarded the American Kennel Club’s Good Citizen certification. The latter demonstrates that defendant’s dog is cooperative, and does not have a history of attacking, or injuring people. Id. at 1.
Plaintiff’s opposition to the motion:
[P]laintiff submitted deposition testimony from defendant’s neighbor who stated that, prior to this incident, the neighbor’s two dogs and defendant’s dog, had a history of growling at each other and had been involved in two scuffles, one where one of the neighbor’s dogs bit defendant’s dog and one or possibly two where defendant’s dog was the aggressor but she retreated when the neighbor reprimanded her. The neighbor further testified that she complained to defendant about her dog’s behavior, but acknowledged that defendant’s dog was not aggressive toward her and had never bitten or hurt her dogs. Id. at 2.
And the arguably applicable precedents:
In order to establish liability, there must be some evidence that the dog demonstrated vicious propensities prior to the incident (Collier v Zambito, 1 NY3d 444, 446-447 ). The only case with facts at all comparable to those here is Rosenbaum v Rauer, 80 AD3d 686 [2nd Dept 2011], in which the plaintiff was also injured when trying to assist a dog who was caught in a fence. In Rosenbaum, however, there was evidence that the defendants’ dog “had frequently . . . growled, shown its teeth, and snapped at the plaintiffs” (Rosenbaum, 80 AD3d at 686). Accordingly, the Second Department found that there was a triable issue of fact as to the animal’s vicious propensities when it bit the injured plaintiff. Id. at 2.
The First Department then concluded that:
No court has found that a dog’s growling at one or two other dogs is sufficient to establish vicious propensities, and the Third Department has specifically held that growling and baring of teeth, even at people, is insufficient to give notice of a dog’s vicious propensities (see Brooks v Parshall, 25 AD3d 853 [3d Dept 2006]). Here, the evidence, which establishes only that defendant’s dog growled at two other dogs, one of whom had bitten her, and never growled or bared her teeth at any people, is insufficient to raise an issue of fact as to the dog’s vicious propensities. Accordingly, defendant is entitled to summary judgment dismissing the complaint. Id. at 3.
Gold Queens, LLC v. Cohen, 2013 NY Slip Op 23389, Appellate Term, Second Department, November 12, 2013
The Court summarized the facts:
Landlord is the holder of the unsold shares of stock allocable to the subject premises, an apartment within a non-eviction cooperative building. Tenants, who are rent-stabilized, entered into possession of the premises under a written rental agreement dated July 6, 1976. In May 2008, tenants’ daughter, who had resided in the apartment on previous occasions, moved back into the apartment with her dog. In late January 2010, a member of the co-op saw tenant’s daughter enter the apartment with the dog and notified the president of the co-op board, who informed landlord’s management company. On February 2, 2010, the management company mailed, by first-class mail, a letter to tenants informing them that harboring the dog was a violation of the lease and that the removal of the dog would be necessary. After tenants failed to comply with this purported “Notice of Cure,” a notice of termination was left on tenants’ door on April 26, 2010, informing them that if they failed to vacate the premises on or before April 29, 2010, landlord would commence a proceeding to recover possession of the premises. It is noted that these predicate notices were not served on tenants in accordance with provisions of the lease, which required that notices be personally delivered to tenants or sent to tenants by registered or certified mail. Moreover the notice of termination did not comply with Rent Stabilization Code (9 NYCRR) § 2524.2(c)(2), which requires that the notified of termination be served at least seven calendar days prior to the date specified for surrender of possession. Id. at 1-2.
And the prior proceedings:
[O]n October 7, 2010, landlord commenced the instant holdover summary proceeding against tenants, pursuant to Rent Stabilization Code (9 NYCRR) § 2524.3(a), claiming that tenants had violated their lease by harboring a dog without landlord’s written permission. Tenants moved to dismiss the petition, asserting that they had harbored the dog openly and notoriously for more than three months before landlord had commenced the instant proceeding, and were thus protected under New York City’s Pet Law (Administrative Code of City of NY § 27-2009.1). Tenants also sought an award of attorney’s fees. In opposition, landlord asserted that it had, within the three-month period, timely commenced the prior holdover proceeding against tenants, predicated on the same lease violation, and that since that proceeding had been “discontinued without prejudice” based upon tenants’ objections regarding service of the predicate notices, the instant holdover proceeding, albeit commenced outside the three-month period, was timely. Tenants argued that since the Pet Law must be strictly enforced and its terms accorded a literal interpretation, the proceeding was untimely commenced and enforcement of the lease provision was therefore waived. The Civil Court (Anne Katz, J.), by order dated February 16, 2011, denied the branch of tenants’ motion seeking to dismiss the petition, finding that landlord had acted diligently in timely commencing the prior case, but had simply acted in a procedurally defective manner. The court thus implicitly denied the branch of tenant’s motion seeking an award of attorney’s fees. The matter then proceeded to trial. Id. at 2.
After a Civil Court non-jury trial, the Court (Hoyos, J.) found in favor of the landlord; and the tenants appealed. Appellate Term outlined the tenant’s arguments:
On appeal, tenants contend that landlord waived its right to enforce the no-pet provision of the lease by failing to commence this proceeding against them within three months after obtaining knowledge that they were harboring the dog. Landlord contends that this proceeding was timely commenced, relying upon the Appellate Division, First Department, case of Baumrind v. Fidelman (183 AD2d 635 ), in which the parties had also stipulated to discontinue, without prejudice, a holdover proceeding which had been commenced within three months of the landlord’s first learning of the presence of the tenant’s pet. In Baumrind, the tenant had not been properly served with process in the first proceeding, and, after the discontinuance, the landlord re-served the tenant, albeit outside the three-month period. The Appellate Division, First Department, held that the dismissal of the petition was inappropriate because there was no “indication that landlord here had not acted diligently, only that she acted in a procedurally defective manner” (id. at 636). The Court declined to give an “overly literal interpretation” (id.) to the language of the Pet Law giving the landlord a “three month period to commence a summary proceeding” (Administrative Code of City of NY §27-2009.1). Id. at 2-3.
Noted the conflict between various Courts:
We note that the Appellate Division, First Department in Seward Park Hous. Corp. v. Cohen, (287 AD2d 157 ) limited Baumrind to its unique facts, and instead relied on a literal interpretation of the Pet Law. Other cases following Seward Park have noted that the Pet Law “requires strict enforcement of the three-month commencement rule” (Chelsea Ventura, LLC v. Romansky, 19 Misc 3d 132[A], 2008 NY Slip Op 50661[U], [App Term, 1st Dept 2008]; see 930 Fifth Corp. v. Miller, 2002 NY Slip Op 50050[U] [App Term, 1st Dept 2002]). Id. at 3.
And found that the action should have been dismissed because the notice of termination was improperly served:
In any event, Baumrind is distinguishable from this case. As noted, pursuant to Rent Stabilization Code (9 NYCRR) § 2524.2(c)(2), a seven-day notice of termination was required before landlord could commence the prior holdover proceeding. Landlord served the notice of termination (with a termination date of April 29, 2010) on April 26, 2010, and this shortening of the notice period in the prior proceeding from the requisite seven days to only three days after service rendered that notice fatally defective (see Saccheri v. Cathedral Props. Corp., 16 Misc 3d 111, 113 [App Term, 9th and 10th Jud Dists 2007]). As the notice of termination served on April 26, 2010 could not have validly terminated the tenancy within the three-month period, unlike in Baumrind, “the landlord here had not acted diligently” (Baumrind v. Fidelman, 183 AD3d at 636) in the first instance and, thus, landlord’s commencement of the prior holdover proceeding on April 30, 2010 can be given no legal effect. Consequently, the branch of tenant’s motion seeking, pursuant to Administrative Code § 27-2009.1, to dismiss the petition should have been granted. Id.
Travis v. Murray, 2013 NY Slip Op 23405, Supreme Court, New York County, Cooper, J., November 29, 2013
At the outset, the Court summarized the dispute:
People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry. All too often, onetime happy spouses end up as decidedly unhappy litigants in divorce proceedings. And when those litigants own a dog, matrimonial judges are called upon more and more to decide what happens to the pet that each of the parties still loves and each of them still wants. This case concerns one such dog, a two and a half year-old miniature dachshund named Joey.
Joey finds himself in a tug-of-war between two spouses in the midst of a divorce proceeding to end their extremely short and childless marriage. In fact, the only issue in this case is what will become of the parties’ beloved pet. Plaintiff, Shannon Louise Travis (plaintiff), alleges that the defendant, Trisha Bridget Murray (defendant), wrongfully took Joey at the time the couple separated. Consequently, by way of this motion, she seeks not only an order requiring defendant to return Joey to her, but an order awarding her what she terms “sole residential custody” of the dog. Id. at 1-2.
And the facts:
Plaintiff and defendant were married on October 12, 2012. Before their marriage, they resided in the same Upper Manhattan apartment that they continued to occupy after the marriage. On February 6, 2011, while the parties were living together but before they married, plaintiff bought Joey from a pet store. At the time of his purchase, Joey was a ten week-old puppy.
On June 11, 2013, defendant moved out of the marital apartment while plaintiff was away from New York on a business trip. Defendant took some furniture and personal possessions with her. She also took Joey. According to plaintiff, defendant first refused to tell her where Joey was but then later claimed that she had lost him while walking in Central Park. Id. at 3.
Described the prior proceedings and plaintiff’s arguments:
Plaintiff filed for divorce on July 11, 2013. Two months after the commencement of the divorce, plaintiff brought this motion. In her application, plaintiff requested that defendant be directed to immediately account for Joey’s whereabouts since the date he was removed from the marital apartment, that he be returned to plaintiff’s “care and custody,” and that she be granted an “order of sole residential custody of her dog.” Once the motion was made, defendant revealed that Joey was never lost in Central Park, but instead was living with her mother in Freeport, Maine. Thus, this leaves the last two prongs of the motion to be resolved.
Plaintiff argues that Joey is her property because she bought him with her own funds prior to the marriage. She alleges that defendant, in effect, stole the dog when she removed him from the marital apartment and subsequently relocated him to Maine. Moreover, asserting that she “was the one who cared for and financially supported Joey on a primary basis,” plaintiff contends that it is in Joey’s “best interests” that he be returned to her “sole care and custody.” Id.
Defendant opposes the motion in all respects. In so doing, she states that Joey was a gift to her from plaintiff as a consolation for her having to give away her cat at plaintiff’s insistence. Defendant further contends that she shared financial responsibility for the dog, that she “attended to all of Joey’s emotional, practical, and logistical needs,” and that “Joey’s bed was next to [her] side of the marital bed.” Finally, defendant submits that it is in Joey’s “best interests” not to be with plaintiff, but instead to be with her mother in Maine, where defendant can see him regularly and where he is “healthy, safe and happy.” Id. at 3-4.
And the differing legal approaches:
Thus, both sides invoke two different approaches in determining which one should be awarded Joey. The first approach is the traditional property analysis, with plaintiff maintaining that Joey is her property by virtue of having bought him and defendant maintaining that the dog is hers as a result of plaintiff having gifted him to her. The second approach is the custody analysis, with each side calling into play such concepts as nurturing, emotional needs, happiness and, above all, best interests – concepts that are firmly rooted in child custody analyses. Id. at 4.
The Court then summarized the state of the law:
While the dog owners of New York might uniformly regard their pets as being far more than mere people, the law of the State of New York is in many ways still largely at odds with that view. The prevailing law, which has been slow to evolve, is that, irrespective of how strongly people may feel, a dog is in fact personal property – sometimes referred to as “chattel” – just like a car or a table (see Mullaly v. People, 86 NY 365 ; Schrage v. Hatzlacha Cab Corp., 13 AD3d 150 [1st Dept 2004]; Rowan v. Sussdorff, 147 App Div 673 [2d Dept 1911]; ATM One, LLC v. Albano, 2001 NY Slip Op 50103[U] Nassau Dist Ct 2001]). This means that if a veterinarian negligently dispatches your treasured Yorkshire terrier, the most you can count on recovering as compensation is the animal’s fair market value (see Jason v. Parks, 224 AD2d 494 [2d Dept 1996]). And unless your Yorkshire terrier was a pure-bred show dog, that fair market value, as opposed to sentimental, will be relatively small no matter how wonderful the dog was or how heartbroken and traumatized your family is by its loss (see Smith v. Palace Transp, 142 Misc 93 [NY Mun. Ct. 1931] [a fox terrier]; Mercurio v. Weber, 2003 NY Slip Op 51036[U] [Nassau Dist Ct. 2003] [Dexter and Bentley, Yorkshire terriers]). Similarly, if that same veterinarian successfully treats the dog but for some reason refuses to return it, your remedy is to bring an action for replevin – the same remedy you would have if an automobile mechanic refused to return your Volvo or your Ford (see Merriam v. Johnson, 116 App Div 336 [1st Dept 1906]). Id. at 4-5.
And the law relating to replevin:
Replevin is the means by which non-matrimonial actions regarding ownership and possession of dogs have generally come before New York courts (see e.g. LeConte v. Lee, 35 Misc 3d 286 [Civ Ct, NY County 2011][Bubkus, a maltese]; Webb v. Papaspiridakos, 23 Misc 3d 1136[A], 2009 NY Slip Op 51152[U][Sup Ct, Queens County 2009][Precious, a Jack Russell terrier]; Saunders v. Reeger, 50 Misc 2d 850 [Suffolk Dist Ct 1966][Misty, an Irish setter]; see also Cent. W. Humane Socy., Inc. v. Hilleboe, 202 Misc 881, 884 [Sup Ct, Westchester County 1952][discussing the value of dogs in general and an owner’s property rights in them]; Mongelli v. Cabral, 166 Misc 2d 240 [Yonkers City Ct 1995][small claims action over Peaches, a Molluccan Cockatoo]). With the standard for replevin being “superior possessory right in the chattel” (Pivar v. Graduate Sch. of Figurative Art of the NY Academy of Art, 290 AD2d 212 [1st Dept 2002]), it is the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative. Id. at 5.
The developing law:
[A]t the same time that the traditional property view has continued to hold sway, there has been a slow but steady move in New York case law away from looking at dogs and other household pets in what may be seen as an overly reductionist and utilitarian manner. One of the first of these cases, Corso v. Crawford Dog and Cat Hospital, Inc., (97 Misc 2d 530 [Civ Ct, Queens County 1979]), involved a veterinarian who wrongfully disposed of the remains of the plaintiffs poodle and then attempted to conceal the fact by putting the body of a dead cat in the dog’s casket. Finding that the distressed and anguished plaintiff was entitled to recover damages beyond the market value of the dog, the court held that “a pet is not just a thing but occupies a special place somewhere in between a person and a personal piece of property” (id. at 531).
In this same vein, the Appellate Division, Second Department, in a 2008 case brought by a cat owner against an animal shelter, cited the extensive array of laws that exist in New York for the protection of pets (Feger v. Warwick Animal Shelter, 59 AD3d 68 [2d Dept 2008]). The court, after observing that “[t]he reach of our laws has been extended to animals in areas which were once reserved only for people,” went on to underscore that “[t]hese laws indicate that companion animals are treated differently from other forms of property. Recognizing companion animals as a special category of property is consistent with the laws of the State. . .” (id. at 72). Id. at 6.
The “progressive” analysis:
After reviewing the progression of the law in both New York and other states, it can be concluded that in a case such as this, where two spouses are battling over a dog they once possessed and raised together, a strict property analysis is neither desirable nor appropriate. Although Joey the miniature dachshund is not a human being and cannot be treated as such, he is decidedly more than a piece of property, marital or otherwise. As a result, whether plaintiff bought Joey from the pet store with her own funds or whether defendant received him from plaintiff as a gift is only one factor to consider when determining what becomes of him.
But if not a strict property analysis, what should be the process by which Joey’s fate is decided and what standard should be applied in making that determination? Should the court adopt a custody analysis similar to that used for child custody? And if so, is the well-established standard of “best interests of the child” to be replaced by that of “best interests of the canine’?” Id. at 7.
Although the opinion by the First Department in Raymond can be read as a firm declaration that household pets enjoy a status greater than mere chattel, the decision, irrespective of its use of language that is in some ways suggestive of a child custody, does not direct that the resolution of a pet dispute be undertaken by engaging in a process comparable to a child custody proceeding. Nor does it state that a court should utilize a best interests standard in determining to whom the pet should be awarded. In fact, the term “best interests” appears nowhere in the decision. Instead, the term that is used is “best for all concerned” (id. at 341). Id. at 9.
Obviously, the wholesale application of the practices and principles associated with child custody cases to dog custody cases is unworkable and unwarranted. As has been noted in decisions previously cited, it is impossible to truly determine what is in a dog’s best interests. Short of the type of experimental canine M.R.I.s discussed in the New York Times piece “Dogs are People, Too,” there is no proven or practical means of gauging a dog’s happiness or its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag. The subjective factors that are key to a best interest’s analysis in child custody — particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations — are, for the most part, unascertainable when the subject is an animal rather than a human. Id. at 9-10.
Even if there were a method to readily ascertain in some meaningful manner how a dog feels, and even if a finding could be made with regard to a dog’s best interests, it is highly questionable whether significant resources should be expended and substantial time spent on such endeavors. It is no secret that our courts are overwhelmed with child custody cases, cases in which the happiness and welfare of our most precious commodity, children, are at stake. To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children. Such a drain of judicial resources is unthinkable. This does not mean, however, that cases like this one, in which it appears that each spouse views the dog as a family member and sincerely believes that he would be better off in her care, should be given short shrift. After all, matrimonial judges spend countless hours on other disputes that do not rise to a level of importance anywhere near that of children. If judicial resources can be devoted to such matters as which party gets to use the Escalade as opposed to the Ferrari, or who gets to stay in the Hamptons house instead of the Aspen chalet, there is certainly room to give real consideration to a case involving a treasured pet. Id. at 10.
And the judicial remedy:
With this in mind, it is appropriate that the parties here be given a full hearing. Full does not mean extended; the hearing shall not exceed one day. The standard to be applied will be what is “best for all concerned,” the standard utilized in Raymond. In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey’s needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps most importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter, in New York? Id.
At this juncture, it should be made clear that, absent an appeal, the one-day hearing to determine who gets Joey will be the final proceeding on this issue. The award of possession will be unqualified. This means that whichever spouse is awarded Joey will have sole possession of him to the complete exclusion of the other. Although regrettably a harsh and seemingly unfeeling outcome, it is the only one that makes sense. As has been stated, our judicial system cannot extend to dog owners the same time and resources that parents are entitled to in child custody proceedings. The extension of an award of possession of a dog to include visitation or joint custody — components of child custody designed to keep both parents firmly involved in the child’s life — would only serve as an invitation for endless post-divorce litigation, keeping the parties needlessly tied to one another and to the court (see Prim v. Fisher, 2009 WL 6465236 [Vt Super Ct 2009][“Judicial economy would not be served by overseeing joint custody of a pet” golden retriever named Kaos]; Jeulfs, 41 P3d at 597 [“[T]he parties were unable to share custody of Coho without severe contention”]). Id. at 10-11.
While children are important enough to merit endless litigation, as unfortunate as that litigation may be, dogs, as wonderful as they are, simply do not rise to the same level of importance.
Caputo v. Assante, 2014 NY Slip Op 50054 (U), Appellate Term, Second Department, January 10, 2014
The Court summarized the pleadings and prior proceedings:
In this action to recover possession of a dog, plaintiff alleged that she is the owner of the dog and that defendant, her ex-boyfriend, was only to have visitation with the dog for a week. Defendant failed to return the dog at the conclusion of the week, despite repeated demands. After a nonjury trial, the Civil Court ruled that plaintiff is the owner of the dog and directed defendant to return the dog to plaintiff. Defendant appeals from the judgment entered pursuant to the court’s decision. “Plaintiff has the burden of proving [her] case by a fair preponderance of the credible evidence” (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 ). “The credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, are issues for the trier of the fact . . . The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses” (Healy v Williams, 30 AD3d 466, 468  [citation and internal quotation marks omitted]). A determination of a trial court after a nonjury trial should not be disturbed on appeal unless it is not supported by legally sufficient evidence or could not have been reached by any fair interpretation of the evidence (see Halpern v Goldstein & Halpern, C.P.A., 18 AD3d 432 ).
And affirmed Civil Court’s conclusion:
Here, plaintiff’s submission of veterinarian’s bills all addressed to plaintiff and listing plaintiff as client; an American Kennel Club registration certificate listing plaintiff as the owner of the dog; and a microchip proof of ownership card listing plaintiff’s name; as well as plaintiff’s testimony, credited by the Civil Court, that she, rather than defendant, was the owner, constituted sufficient evidence to support the finding that plaintiff proved a superior possessory right to the dog (see McGuirk v Mugs Pub, 250 AD2d 824 ; Richard’s Home Ctr. & Lbr. v Kraft, 199 AD2d 254 ; Claridge Gardens v Menotti, 160 AD2d 544 ).
“Vicious propensity” lawsuits, “Pet Law” actions and dog “custody proceedings” demonstrate the deep and earnest issues raised by pet ownership on the one hand, and the burden imposed on the Court system thereby, on the other.