Who Let the (Cat) Out?

This post originally appeared on the SGR blog.

David Finn and his wife sued Ashlynn Anderson in Jamestown City Court for ownership/custody of a cat.

The Finns moved to Wescott Street in September of 2018. Around that time, they noticed a white cat frequently wandering onto their property looking for food. The cat was quite thin, and had no identification tags. They assumed that the four year old cat was a stray, named him “Sylvester”, and began feeding the cat in the entry-way of their home. The Finns fed Sylvester frequently for several months before bringing him into their house.

The Finns took the cat to a veterinarian on January 14, 2019 where he was given shots, treated for fleas, de-wormed, and micro-chipped. The veterinary report stated that Sylvester had not been previously micro-chipped, but had previously been neutered.

After having been an indoor cat for a while, Sylvester accidentally got out of the house on February 2, 2019. The Finns asked their neighbors, who lived across the street, if they had seen Sylvester. The neighbor stated that Sylvester belonged to his girlfriend, Ashlynn Anderson, and that she had taken the cat back.

Anderson stated that the cat, named Marshmallow, was given to her by a co-worker in 2009. Since then, Marshmallow lived in her home on Westcott Street, where she lived for about 25 years. Anderson had Marshmallow neutered as a kitten but had not otherwise been taken him to the vet. Anderson took Marshmallow for a vet “checkup” following the start of the action and after speaking with an attorney.

Anderson testified that Marshmallow was an “indoor-outdoor” cat and could enter and exit her home using a cat-door whenever he chose. Anderson also stated that at least three of the neighbors were familiar with Marshmallow, and often fed him treats when he wandered onto their properties. And Anderson finally testified that she had a second cat that also operated in this way, living both inside and outside the her home to some degree.

Based on these habits, Anderson was not immediately concerned when Marshmallow failed to return home in January of 2019. Anderson admitted that Marshmallow had absconded on previous occasions and was missing for a week or two, but eventually returned. She looked for Marshmallow around the neighborhood for  a couple weeks after he disappeared without success. Anderson did not ask the Finns about Marshmallow’s whereabouts. Her boyfriend found Marshmallow outside on February 2, 2019 and Anderson took the cat back in.

The Finns argued  that they were the true owners of the cat based on the lack of identification, overall neglected appearance, and the effort and money expended to feed and treat the cat for any illness. Anderson  argued that she has been the rightful owner of the cat for ten years. Although the cat has lived and “indoor-outdoor” lifestyle, Anderson stated that she  fed and housed him for the length of her ownership.

Both parties claimed to love the cat, and desired him to be a part of their family. The Finns filed a replevin action in order to recover possession of Sylvester (a.k.a. Marshmallow) from Anderson.

Replevin is a remedy employed to determine the right of possession and to recover specific, identifiable personal property. The term “personal property” includes chattels. And the term “chattel” refers to things that can be used, handled, or transported, as horses, carriages, furniture, machinery, tools, and other objects to be seen in everyday life, the value of which is in the possession of the thing itself.  

Under New York Law, irrespective of how strongly people feel about their pets, cats and dogs have been viewed as “personal property—sometimes referred to as “chattel”—just like a car or a table. The standard for recovery in a replevin action is a “superior possessory right in the chattel”Thus, it was the property rights of the litigants, rather than their respective abilities to care for the cat or their emotional ties to the pet that was ultimately determinative.  

Nevertheless, the Court noted a slow evolution in New York case law towards the “de-chattelization” of household pets, and away from the “overly reductionist and utilitarian” view. New York Courts , however, were  unwilling to go so far as to adopt a child custody or “best interests” standard. 

Where a “best interests” standard cannot reasonably be applied, and a strict property analysis is neither desirable nor appropriate, New York Courts have developed a “quasi-interests based standard” that “takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.” The standard that has been adopted by some recent Court decisions in New York is the “best for all concerned” standard. 

In accordance with that standard, the Court  analyzed proof offered by each party that they would benefit from having the animal in their life, and why the animal had a better chance of living, prospering, loving and being loved in their care.  In this way, the Court hoped to take the intangible needs and interests of a pet into account along with the ordinary indicia of ownership or right to possession (title, purchase, gift, expenses, etc.)—the perception of pets  having shifted over time away from a strict property view and towards a more humanistic and interest based view.

The Court concluded that it was time to declare that a pet should no longer be considered “personal property” like a table or car. The Appellate Division, First Department, in a one-paragraph analysis of the contested ownership and possession of 10-year-old  cat, utilized a test of what was “best for all concerned.” Those concerned were the two litigants, and Lovey, the cat. 

In this case, the Court applied a “best interests of all concerned” standard to the facts and testimony presented at the hearing. 

On the one hand, Anderson owned and possessed  Marshmallow for 10 years and admitted that she had only taken the cat to the vet once in that period (to have him spayed/neutered when he was a kitten). Additionally, Anderson  allowed the Marshmallow  to come and go in the neighborhood and was aware that the cat was consistently fed by at least three neighbors. However, there was no real evidence of “abuse or neglect”. The Court noted that Marshmallow’s second ever visit to a vet with Anderson came about after she consulted with an attorney regarding defense of pending suit.  Anderson testified that  Marshmallow had always been in decent health and that her children were emotionally attached to the cat.

On the other hand, the Finns’ testified that Sylvester began coming to their home begging for food immediately when they moved to Wescott Street in September of 2018. They initially let the cat into the entry-way of their home to feed him. The Finns believed that Sylvester was a stray. On or about January 14, 2019, the Finns took Sylvester into their home, and decided to make him an indoor cat. They provided Sylvester with veterinary care including rabies and FURCP vaccine (a vaccine against three potentially deadly airborne viruses). The Court noted that the Finns believed Sylvester  to be a 4-year-old cat at the time of the vet visit in January 2019. This suggested that the cat was in good health, given the fact that the cat was in fact 10 years old. On February 2, 2019, Sylvester  got out of the Finns’ home and ended up across the street at Anderson’s house.

In what it described as “a very close decision”, the Court found that, using the “best interests of all concerned” test, custody of Marshmallow should remain with Anderson. The Court was convinced that the Finns were genuinely concerned for Sylvester’s welfare and spent time and money on his care. While the Court was perplexed that Anderson never inquired of the Finns regarding the cat’s whereabouts, Anderson had been responsible for the care and custody of  Marshmallow for the last decade. Additionally, Anderson had children who had an emotional attachment to the cat. Finally, when Sylvester (a/k/a Marshmallow) got out of the Finns’ home he may have “voted with his feet” to return to his home of ten years with Anderson and her children.

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