PET CUSTODY LAW - CATS

And note the footnote which addresses the recent DRL amendment Domestic Relations Law § 236[B][5][d][15]) which provides: "(15) IN AWARDING THE POSSESSION OF A COMPANION ANIMAL, THE COURT SHALL CONSIDER  THE  BEST INTEREST OF SUCH ANIMAL. "COMPANION ANIMAL", AS USED IN THIS SUBPARAGRAPH, SHALL HAVE THE SAME MEANING AS IN SUBDIVISION FIVE  OF SECTION THREE HUNDRED FIFTY OF THE AGRICULTURE AND MARKETS LAW;"

Pron v Tymshan 2023 NY Slip Op 50809(U) Decided on July 21, 2023 Civil Court Of The City Of New York, New York County Ally, J.:

"Plaintiff commenced this action by summons and complaint on August 31, 2022, seeking to recover possession of an Abyssinian cat named Murchik (also called Moorchick) from defendant. Plaintiff also sought damages in the sum of $5,000. Defendant joined issue by service of her answer on November 23, 2022, asserting that defendant is Murchik's true owner and therefore entitled to possession.

On February 17, 20223, plaintiff moved for an order of seizure pursuant to CPLR § 7102. By decision and order dated May 9, 2023, the motion court denied the application and directed an immediate trial. A bench trial commenced before the undersigned on June 5, 2023, at which plaintiff was represented by counsel and defendant appeared pro se. The trial concluded on June 6, 2023 with the Court reserving decision.

Findings of Fact

Based upon the credible testimony at trial, the Court adduced the following facts: Plaintiff purchased Murchik on August 19, 2014 from a store called Pets on Lex (plaintiff's ex 1). At the time of his purchase, Murchik was eleven months old. Consistent with the tenets of the purchase contract, plaintiff ensured that Murchik received the requisite veterinary examinations and vaccinations.

Murchik resided with plaintiff continuously until January 2020, when plaintiff lost her job and subsequently, her apartment. Unable to find stable housing, plaintiff first attempted to bring Murchik with her to a shelter; however, plaintiff sought other arrangements after determining that shelter conditions were dangerous for the cat. Plaintiff was eventually connected through a mutual friend to Igor Khenkin, who agreed to care for Murchik at his home in Rego Park, Queens.

Khenkin testified that prior to taking Murchik, plaintiff gave him detailed instructions on how to feed and care for Murchick, warning him specifically to keep doors and windows closed. [*2]He cared for Murchik from May 2020 through May 2021, during which time plaintiff lived in various shelters in the Bronx and Upper West Side. Khenkin averred that during this period, he never believed that plaintiff had relinquished ownership of Murchik and believed he was "babysitting" the cat for as long as plaintiff needed (tr at 18: 23-25). Khenkin further testified that plaintiff offered to compensate him for "babysitting" several times, but he refused. While Murchik was with Khenkin, plaintiff was only able to visit him two or three time due to the difficulty she had traveling from her shelters to Rego Park.

In May 2021, defendant asked plaintiff to look after the plants in her Upper East Side apartment while defendant was traveling. Because defendant's apartment was closer to where plaintiff was staying, defendant agreed to relocate Murchik to the apartment so that plaintiff could spend more time with him. While plaintiff continued to live in a shelter, she could visit Murchik every day when defendant was traveling and a few times a month when defendant was not. Plaintiff also contributed towards Murchik's food, toys, and other supplies by sending money to defendant through Venmo and ordering from Amazon.com directly to defendant's apartment (plaintiff's exhibits 5, 6).

Plaintiff testified that, as with Khenkin, she warned defendant that Murchik should not be left unaccompanied with open windows. Defendant, however, testified that she left the windows open for Murchik's health and safety because otherwise the apartment was too hot. On August 11, 2022, Murchik was found in the basement of defendant's apartment building after having fallen from defendant's open fifth-story window. Defendant brought Murchik to the Veterinary Emergency Group ("VEG") the same night, where the examining veterinarian observed a hip fracture and dislocation, dried blood on his nose, skin wounds, pain on abdominal palpation, heart mumur, and decreased muscle mass (plaintiff's exhibit 7). Based on the VEG treatment recommendation, plaintiff and defendant brought Murchik to Garden State Veterinary Specialists for evaluation (plaintiff's exhibit 13). Murchik underwent a successful surgery on August 17, 2022 (id.).

Both sets of veterinary records relating to Murchik's fall list defendant as "owner" and as the recipient of the invoices/bills (plaintiff's exhibits 7, 13). Plaintiff testified that although she accompanied defendant to the second set of appointments and the surgery, defendant completed all the paperwork because defendant's English was better. The veterinary services were paid for by credit taken by defendant and totaled over $5,000.00 (plaintiff's exhibit 13). Plaintiff testified that these costs were ultimately split between the parties, which was not denied nor confirmed by defendant. In a subsequent text exchange between the parties, however, defendant stated to plaintiff, "I have incurred expenses that we have to take care of" (plaintiff's exhibit 8).

A few days after Murchik's surgery, plaintiff asked defendant to return Murchik to Khenkin's home because she believed defendant's apartment to be unsafe. Defendant refused. In a text exchange between the parties, defendant insisted that she became Murchik's "legal owner" and that plaintiff had given him away (plaintiff's exhibit 8). In response, plaintiff denied having gifted Murchik to defendant and state her intention to take Murchik that night (id.).

Plaintiff, accompanied by Khenkin, arrived at defendant's apartment that night. When [*3]defendant again refused to return Murchik, plaintiff called the police. The police responded to defendant's apartment but ultimately took no action, advising all present that the issue of Murchik's ownership would have to be determined in civil court. Plaintiff commenced the instant proceeding shortly thereafter on August 31, 2022.

Each party testified to her respective emotional bond with Murchik. Plaintiff stated that Murchik was her "companion," "friend," and "part of [her] family" (tr at 30: 22-23). She testified that prior to 2020, Murchik slept in bed with her and she often took Murchik for walks in Central Park. Plaintiff additionally claimed that she has been diagnosed with anxiety and depression, and that her treating psychiatrist has recommended the assistance of an emotional support animal (see also plaintiff's exhibit 3).

Defendant also attested to her strong emotional bond with Murchik. She testified that since Murchik came into her care, she expended significant time and resources to help him recover from his surgery, to cure what appeared to be a sinus infection, and that when feeding him always made sure to include foods he liked such as fish, chicken, and shrimp (tr at 112: 14-25; 113: 1-4).

On December 1, 2022, plaintiff signed a lease for an apartment in Brooklyn, where she has since resided with her mother (plaintiff's exhibit 9). Plaintiff testified that she is now fully employed as a personal shopper and is financially capable of caring for herself, her mother, and Murchik.

In April 2023, defendant relocated from the Upper East Side apartment to Brooklyn and brought Murchik with her. Defendant testified that she previously traveled frequently for both work and leisure: two weeks after Murchik's surgery, defendant traveled to Italy, a month later to the Dominican Republic, and a few months after that to Rome and Barcelona. However, defendant also averred that since changing jobs in February 2023, she was no longer required to travel for work and that her husband was available to care for Murchik when she traveled for leisure. Murchik was residing with defendant in her Brooklyn home as of the date the trial concluded.

Discussion

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]). More recently, however, courts have recognized the myriad ways in which companion animals are much more to their owners than simple possessions. As developed first in Raymond v Lachmann (264 AD2d 340, 341 [1st Dept 1999]) and refined by the court in Travis v Murray [*4](42 Misc 3d 447 [Sup Ct, New York County 2013]),[FN1] courts have increasingly applied a "best for all concerned" standard that balances a strict property analysis with the more extensive interests analysis involved in child custody cases (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 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 [pet] in his or her life and why the [pet] has a better chance of prospering, loving, and being loved in the care of one party or the other" (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 animal'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 these needs on a daily basis.

First, the Court finds that the traditional markers of possessory right weigh in favor of plaintiff. It is undisputed that plaintiff purchased Murchik on her own and was solely responsible for Murchik's care for over five years. It was only when plaintiff lost her job and housing that she left Murchik in others' care. Despite having no permanent home, plaintiff continued to financially support Murchik by ordering supplies and making payments to defendant through Venmo at least through August 2022.

While defendant cared for Murchik for over one year, there is nothing in evidence that indicates plaintiff ever intended to permanently relinquish Murchik to defendant or that would otherwise give defendant a reasonable basis to believe so. It is undisputed that there was no agreement between the parties, that defendant never purchased Murchik from plaintiff, and that plaintiff never stated explicitly to defendant that Murchik was a gift. Though defendant testified that plaintiff's financial contributions only covered a portion of the care costs, that plaintiff made the payments is a clear sign of plaintiff's intent to maintain ownership. Further, to the extent that defendant argues that plaintiff abandoned Murchik when she left him at defendant's apartment, the Court notes that "[a]bandonment is not a defense" to replevin (Leconte v Lee, 35 Misc 3d 286, 288 [Civ Ct, New York County 2011][finding that the limited abandonment of a dog named Bubkas was not a valid defense in the context of a motion to determine the superior possessory right to chattel], citing Valenzia v Valenzia, 67 AD2d 879 [1st Dept 1979]).

With regard to those "intangible factors," the evidence is less dispositive. Both parties [*5]have attested to their ability and willingness to provide for Murchik's needs. Both parties are currently gainfully employed and have stable residences. Both parties have demonstrated knowledge of what Murchik's care entails, including his preferred food, how much litter to buy, and a willingness to comply with veterinarians' recommendations. Each party introduced into evidence photos depicting her interacting with Murchik, and in each of the photographs Murchik appears calm, comfortable, and safe (plaintiff's exhibit 2; defendant's exhibit A)

Notwithstanding the parties' respective arguments, the Court does not find that either party poses substantially more risk to Murchik's health and safety than the other. Defendant contends that plaintiff and Khenkin did not adequately care for Murchik because the cat demonstrated symptoms of a sinus infection while he moved to defendant's apartment. However, absent the direct testimony of a veterinarian or other expert, the Court is not able to directly attribute Murchik's condition to his treatment or neglect by any party.

Murchik's recent injuries and subsequent surgery give the Court slightly more cause for concern. Plaintiff asserts that Murchik's fall and resultant injuries were the direct cause of defendant's carelessness in leaving the window open after being warned not to. While defendant disputes her culpability in these events, there is no dispute that Murchik suffered injuries resulting from a long fall that could have been prevented with more attention. Notwithstanding, the conduct of the parties in ensuring Murchik received emergency treatment indicates that both care very much about his health and wellbeing.

While neither party has demonstrated a clear advantage with regard to Murchik's health and care, the Court acknowledges that Murchik was in plaintiff's exclusive care for over five years, and that even when living in shelters she continued to financially contribute to Murchik's care. The Court also acknowledges that defendant spent significant time and resources on Murchik, particularly relating to his surgery and recovery. However, plaintiff has otherwise established a clear possessory right under the traditional analysis and has consistently manifested her desire to support Murchik and her intent to retrieve him when her circumstances stabilized. Defendant's efforts to care for Murchik, while commendable, are not sufficient to overcome plaintiff's showing, especially as plaintiff has demonstrated that she is now financially able provide for Murchik's physical and emotional needs. The Court finds therefore that returning Murchik to plaintiff is in the best interest for all concerned.

Plaintiff's remaining claim for money damages totaling $5,000 is dismissed, as the evidence at trial did not establish any bases for damages.

Conclusion

It is clear that both parties have developed a close emotional connection to Murchik. It is also clear that both parties were distressed and saddened by the injuries he suffered and that both were willing to take him to get the treatment he required. Both parties have demonstrated that at present, they have the financial ability to provide for Murchik's physical care and the willingness to provide for his emotional needs. However, plaintiff has established her initial purchase of Murchik, over five years of exclusive care, and her consistent desire to support him and intent to eventually retrieve him. Plaintiff has further demonstrated that she is now able to financially provide for Murchik's physical needs and that she has the knowledge and familiarity with him to keep him safe and to provide for his emotional needs. As such, the Court finds that returning Murchik to plaintiff is in the best interest for all concerned.

Accordingly, it is hereby

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

ORDERED and ADJUDGED that plaintiff's claim for money damages is dismissed; and it is further

ORDERED that defendant is directed to deliver Murchik to plaintiff within fourteen days of the date of entry of this decision and order; and it is further

ORDERED that plaintiff shall serve upon defendant a copy of this decision and order with notice of entry within seven days thereof.

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

New York, NY
July 21, 2023
Hon. Shahabuddeen A. Ally, A.J.S.C. Footnotes

Footnote 1:The Court observes that as applied to matrimonial cases, Travis has since been superseded by statute as recognized in L.B. v C.C.B., 77 Misc 3d 429 [Sup Ct, Kings County 2022]). The superseding statute codifies the requirement that a court consider "the best interest" of a companion animal when awarding possession in a divorce or separation proceeding (Domestic Relations Law § 236[B][5][d][15])."