WHO GETS THE DOG?

Mundo v Weatherson, 2022 NY Slip Op 50125(U), Decided on February 25, 2022, Civil Court Of The City Of New York, New York County, Ally, J:

"Plaintiff commenced this action by service of summons and complaint, seeking to recover possession of a Chihuahua dog named Maximus. In the complaint, plaintiff alleges that Maximus (valued at approximately $2,500), is being wrongfully detained by defendant because plaintiff holds superior right to possession. On August 17, 2020, plaintiff filed an amended complaint asserting causes of action for replevin, declaratory judgment, and intentional infliction of emotional distress.

Defendant joined issue by service of a verified answer on September 16, 2020. In his answer, defendant claims that defendant is Maximus' legal owner and therefore entitled to sole and exclusive possession. Defendant further alleges that plaintiff breached a pre-existing agreement between the parties whereby they agreed to jointly share custody of Maximus in two-week intervals. Finally, defendant contends that plaintiff fails to state a cause of action for intentional infliction of emotional distress.

On November 30, 2020, plaintiff moved by order to show cause for a preliminary injunction requiring defendant to return Maximus to plaintiff pending resolution of the action. In an order dated December 1, 2020, the Hon. Sabrina Kraus directed the parties to continue the joint custody arrangement in two-week intervals pending the resolution of the action on its merits.

A bench trial was held before this Court on January 2, January 6, and January 27, 2022. At trial, both parties were represented by counsel. On February 4, 2022, the trial concluded with the submission of written trial memoranda.

Findings of Fact

Based upon the credible testimony at trial, the Court adduced the following facts:

In summer of 2016, plaintiff and defendant were involved in a romantic relationship. Over the course of their relationship, the parties had discussed getting a dog. Defendant, a [*2]veterinarian, had previously owned dogs and had a preference for adopting a rescue dog as an alternative to buying one. Plaintiff, who had never owned a dog, was interested in getting a dog but had specific preferences for size and temperament that he believed would suit the parties' living situation and lifestyle.

In June 2016, defendant was completing his veterinary internship at the Animal Medical Center (AMC) when a colleague informed him that a patient's owner, Vanessa Corchado, was concerned about her ability to care for her dog (then named Oreo) due to the costs and requirements of necessary specialized care. Defendant was further informed that Corchado was exploring the possibility of rehoming Oreo. Oreo remained at AMC receiving care for several days. Upon Corchado's return to AMC, defendant discussed with her the possibility of defendant taking over ownership of Oreo and Corchado agreed.

Typically, AMC protocol governing relinquished animals requires the animal to stay within the hospital for a duration of time before going to a shelter, whereupon aspiring adopters were required to complete an application for approval to adopt. To circumvent this protocol, however, defendant arranged for a same-day exchange directly with Corchado. After sending photos and other information about Oreo to plaintiff, defendant met with Corchado at a location down the street from AMC. Corchado gave Oreo over to defendant and defendant provided Corchado with his contact information. Defendant then contacted plaintiff to arrange for plaintiff to retrieve Oreo, and defendant returned to work. Upon retrieving Oreo, plaintiff brought Oreo to his home and rechristened him Maximus. As the parties at the time did not reside together, Maximus lived with plaintiff in plaintiff's home for a few weeks before defendant moved in.

For the most part, the parties split the various tasks associated with dog ownership. Plaintiff arranged for Maximus to be neutered, microchipped, and ensured Maximus was caught up on vaccinations. Defendant, in his capacity as a veterinarian, examined Maximus and provided other specialized treatment Maximus required. Defendant also paid for food and vaccinations, for which he was able to receive a discounted rate. Plaintiff set up the microchip monitoring account and New York City license. Plaintiff also generally took responsibility for bringing Maximus to the veterinarian for routine checkups and procedures.

Both parties took Maximus to their respective workplaces on a semi-regular basis, and both parties took Maximus on walks and other activities. Plaintiff often brought Maximus on trips to his friends' summer house on Fire Island, both with and without defendant. Elizabeth Wheaton, a close friend of plaintiff, testified that Maximus was around enough that the vacation house had its own dog bed and other supplies ready for plaintiff's visits. When the couple traveled and were unable to bring Maximus along, plaintiff's friends or family served as dog sitters, guided by a detailed document drafted by plaintiff known as "Max's Playbook."

The parties ended their romantic relationship approximately three years later in June 2019. Plaintiff moved out of their shared apartment in August 2019 and Maximus remained with plaintiff while defendant finalized his new living arrangements. The parties then commenced a voluntary "joint custody" arrangement whereby each party would have Maximus for two or three weeks at a time before bringing the dog to the other party in turn. This arrangement continued relatively amicably until January 2020. Around that time, plaintiff testified, he discovered that defendant had been unfaithful during their relationship. On the day plaintiff was scheduled to bring Maximus to defendant's home, plaintiff instead left Maximus at home and went to confront defendant about the alleged infidelity. Maximus would remain in plaintiff's care for the next six months.

In July 2020, plaintiff brought Maximus to AMC for a routine checkup. Unbeknownst to plaintiff, defendant had been notified about the upcoming appointment by staff at AMC. While Maximus was at AMC, defendant entered the facility through a separate entrance. When the appointment was finished, AMC released Maximus to defendant, who left with Maximus again through a separate exit. Plaintiff, who had not been permitted into the clinic area due to covid-19 restrictions, only learned about defendant having collected Maximus upon inquiring about the wait to staff. Plaintiff commenced the instant action shortly thereafter.

Certain facts or events were disputed by the parties through conflicting testimony at trial. Plaintiff contends that the bulk of Maximus' daily care fell to him: plaintiff testified that he managed the dog's licensing, researched pet insurance, and managed his regular veterinary appointments. Plaintiff also claims that he walked Maximus the majority of the time and brought Maximus to his workplace on a regular basis. Plaintiff maintains that while defendant did sometimes bring Maximus to the clinic, when defendant did so Maximus was often confined to a kennel and was not as free to walk about as he did so at plaintiff's workplace. As corroboration, plaintiff presented the testimony of Ivan Carriel, a doorman at the building where the parties resided with Maximus, Elizabeth Wheaton, a close friend of plaintiff, and Emma Hansen, a colleague of plaintiff.

Defendant maintains that Maximus was always understood to be "his" dog, both as a condition of obtaining Maximus from his previous owner and throughout his relationship with plaintiff. Defendant asserted that contrary to plaintiff's testimony, defendant was equally responsible for walking Maximus and other daily tasks. Defendant also presented the testimony of Vanessa Corchado, who he asserts only relinquished Maximus upon defendant's representation that he would be the dog's sole owner.

Analysis

Replevin

Traditionally, New York courts have treated companion animals as personal property; as with other personal property, courts resolved disputes by evaluating which party had the superior possessory right to the animal (Travis v Murray, 42 Misc 3d 447 [Sup Ct, New York County 2013]). Accordingly, the appropriate action to recover possession of a companion animal in non-matrimonial contexts lies in replevin (see, e.g. LeConte v Lee, 35 Misc 3d 286 [Civ Ct, New York County 2011]).

More recently, however, courts have recognized the myriad ways in which companion animals are much more than simple possessions. In Raymond v Lachmann, the First Department acknowledged "the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily" (264 AD2d 340, 341 [1st Dept 1999]). In doing so, the court established that simple adherence to traditional principles of property ownership is outmoded and inappropriate where a treasured pet is involved, and that a court must also consider those intangible and subjective factors invariably involved.

An applicable standard was further developed by the court in Travis v Murray (42 Misc 3d 447 [Sup Ct, New York County 2013]), a matrimonial dispute. In an eloquent and detailed discussion, the Travis court examined the wide variety of approaches taken by the courts in several jurisdictions, including that in Raymond. The Travis court ultimately concluded that a refinement of the "best for all concerned" standard applied by the Raymond court struck the best balance between a strict property analysis and the more extensive interests analysis involved in [*3]child custody cases. This standard has been subsequently applied by several courts (see, e.g. Mitchell v Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v Atkins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014])).

Following the "best for all concerned" approach, this Court will therefore examine not just those factors that would weigh towards the parties' respective possessory rights, but also "intangible factors such as why each party would benefit from having the dog in his or her life and why the dog has a better chance of prospering, loving, and being loved in the care of one party or the (Mitchell v Snider, 51 Misc 3d 1229[A] at *2 [Civ Ct, New York County 2016]). Relevant facts include those that reflect each party's ability to meet the dog's physical and emotional needs, including financial circumstances, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary supplies, and the time required to meet the dog's need's on a daily basis.

Based upon the evidence adduced at trial, the Court finds first that the traditional markers of ownership are non-dispositive. Maximus was obtained without payment, and the costs and tasks associated with ownership (such as vaccinations, licensing, insurance) were split between the parties. It is important to note that the issue of ownership may have been clearer had Maximus been properly adopted according to AMC protocol. Notwithstanding, it is evident that both parties intended to and did benefit from circumventing the established rules to obtain Maximus more quickly and without cost.

While defendant repeatedly maintained that he was only ever understood to be the sole owner and Maximus simply "shared" with plaintiff, the parties' subsequent conduct (dividing of expenses and documentation, sharing in Maximus' daily care, holding out to other members of the community that Maximus was "their" dog) further points to shared ownership. Whether certain documents had the name of one or the other party is less relevant where clearly each party contributed both effort and money, and where both parties were recognized by others as co-owners.

The Court acknowledges that each party has, in turn, resorted to a bad faith tactic in an effort to retain possession of Maximus: first plaintiff, in failing to return Maximus in accordance with their informal shared custody agreement, then defendant in surreptitiously removing Maximus from his veterinary appointment. While the above behavior is not excusable, the Court also recognizes that each party cares deeply for the Maximus and derives much from Maximum's companionship. And unlike in other cases examined by this Court, there is no clear discrepancy in the parties' intentions; for example, neither party seeks to exploit Maximus for income-generating practices such as breeding. And it is clear that the party who emerges unsuccessful from this litigation will feel the loss of a dear companion. Nonetheless, the Court must make the—albeit difficult—determination of which party would benefit most from retaining possession of Maximus and which party is in the position to best provide for Maximus' physical and emotional needs.

Each party has demonstrated the knowledge and financial capacity to provide for Maximums' needs, and each is prepared to commit his time and energy to do so. However, based upon the evidence adduced at trial, the Court finds that plaintiff has met his burden to show that possession of Maximus should be awarded to him. Plaintiff has testified that his work schedule provides him a substantial amount of time to spend with Maximus and the ability to bring him to work on a frequent basis. Indeed, plaintiff's colleague testified that Maximus appeared [*4]comfortable at the office and was afforded freedom to roam when he wanted. Plaintiff's longtime friend, Elizabeth Wheaton, testified that plaintiff structured his non-work hours around Maximus' needs, ensuring that Maximus' needs were met before all else. She further testified that Maximus so frequently accompanied their group of friends that their own friends and family were well acquainted with the dog. Finally, the testimony established that when plaintiff and defendant were not able to bring Maximus someplace, Maximus' care fell to plaintiff's friends or family, guided by a lengthy and detailed document drafted by plaintiff himself.

Defendant testified that his work hours allow more limited time to spend with Maximus, and that he brought Maximus to work less frequently. There was no testimony as to who would care for Maximus in the event that defendant had to travel or otherwise was unable to care for him. During the period of time that plaintiff held Maximus past his agreed-upon time period, defendant did not make efforts to recover him until collecting him from the veterinary appointment several months later. To the extent that defendant, a veterinarian, currently provides the specialized care that Maximus requires, he conceded that such care could readily be provided by another veterinarian and facility.

In sum, plaintiff has shown that he has intimate knowledge of Maximus' physical and emotional needs and that he has the ability to spend significant time caring for and socializing Maximus. Plaintiff has further shown that he can care for Maximus while at work and on vacation, and that Maximus has become such an ingrained part of plaintiff's life that his friends and family have themselves taken on parts of Maximus' care.

As such, the Court finds that plaintiff has established that awarding plaintiff possession of Maximus would be in the best interest for all concerned. The Court therefore awards full possession of Maximus to plaintiff.

Intentional Infliction of Emotional Distress

With regard to plaintiff's cause of action for intentional infliction of emotional distress, the Court finds that plaintiff has not met his burden. To prevail in an action for intentional infliction of emotional distress, a plaintiff must show:

(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.

(Chanko v American Broadcast Companies, Inc, 27 NY3d 46, 56 [2016]). Here, the Court finds that the evidence adduced at trial is not sufficient to establish that defendant's conduct satisfied the elements of the cause of action. Accordingly, this cause of action is dismissed.

Conclusion

Based upon the foregoing, the Court finds that plaintiff has established the awarding possession of Maximus to plaintiff is in the best interests for all concerned. Accordingly, it is hereby

ORDERED and ADJUDGED, that plaintiff is awarded full possession of Maximus to the complete exclusion of defendant; and it is further

ORDERED, that the two-week alternate sharing arrangement shall cease with service of this order with notice of entry upon defendant; and it is further

ORDERED, that plaintiff's cause of action for intentional infliction of emotional distress [*5]is dismissed with prejudice.

This constitutes the decision, order and judgment of this Court.