MORE ON THE DEVELOPING PET CUSTODY LAW

Acosta v. Shaw, Date filed: 2022-12-16, Court: Supreme Court, Queens, Judge: Justice Lourdes M. Ventura, Case Number: 717310/2020:

"“Replevin is strictly a possessory action and plaintiff, to recover, must show a possessory right recognized by law” (Hofferman v. Simmons, 290 NY 449, 455 [1943]). However, when dealing with animals. Specifically, the Second Department, Appellate Division in Feger v. Warwick Animal Shelter, 59 AD3d 68, 72 [2d Dept 2008] recognized companion animals as a special category of property which consistent with the laws of this State and the underlying policy inherent in those laws to protect the welfare of animals. The court in Feger further acknowledged the “cherished status” accorded to pets in our society in awarding possession of a cat in a custody dispute based in large part on what was in the best interest of the animal (Raymond v. Lachmann, 264 AD2d 340, 341 [1999]).

An applicable standard dealing with pet custody cases was further developed in a matrimonial action under Travis v. Murray (42 Misc 3d 447 [Sup Ct, New York County 2013]). The Travis court concluded that in determining to whom a pet should be awarded, a “best for all concerned,” rather than a “best interests,” standard would be appropriate. This standard was subsequently adopted and applied by several courts in non-matrimonial actions dealing with causes of actions of replevin and right of possession (see, e.g. Mundo v. Weatherson, 74 Misc 3d 1215(A) [Civ Ct 2022] Mitchell v. Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v. Askins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v. Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014])).
Since the Travis decision, Domestic Relation Law (“DRL”) §236 [B] [5] [d] [15]) was enacted requiring courts to consider “the best interest” of such animal when awarding possession in divorce or separation proceedings (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]).

While this court is aware that this action seeks causes of actions grounded in replevin and right of possession, which is distinguishable from divorce and separation proceedings, this Court would be remiss if it did not acknowledge that a determination regarding the custody of a pet, whether between two married persons or two previously co-habiting persons, should inherently consider the best interest of said animal as a factor to be consider during the court’s determination (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]). Thus, this court will apply the “best for all concerned” standard (see, e.g. Mundo v. Weatherson, 74 Misc 3d 1215(A) [Civ Ct 2022] Mitchell v. Snider, 51 Misc 3d 1229[A][Civil Ct, New York County 2016]; Ramseur v. Askins, 44 Misc 3d 1209[A][Civ Ct, New York County 2014]; Hennet v. Allan, 43 Misc 3d 542 [Sup Ct, Albany County 2014] and consider the “best interest” as a factor to be consider in the overall analysis (L.B. v. C.C.B., 175 NYS3d 705, 710 [Sup Ct 2022]; DRL §236 [B] [5] [d] [15]).

Based upon the credible testimony of the parties, it is undisputed that defendant Shaw paid for Waffles and it is clear that the monthly expenses were shared between the parties during their time living together. Plaintiff credibly acknowledged that when the three of them resided together they shared the walking responsibilities for Waffles anywhere from two to four times a day. This Court finds that both parties credibly testified about their love and devotion for Waffles, and both genuinely expressed an interest in doing what was in Waffles best interest. It is undisputed that since August 2020 Waffles has resided with defendant Shaw. Moreover, no evidence was adduced to controvert defendant Shaw’s account of Waffles current daily routine or care. Under Waffles’ current care, Waffles resides on a first floor of a duplex style house which has direct access to a backyard, has daily companionship with defendant Shaw, his live-in roommates and another dog named Savi.

Based upon the totality of the evidence, and the testimony adduced during the hearing, this Court finds that in considering the best interest of Waffles, and the best interest for all concerned, that Waffles remain with defendant Shaw."

PETS, REPLEVIN AND INJUNCTIONS

Rodriguez v. Castano, 2022 NY Slip Op 34054 - NY Co. Supreme Court 2022:

"Plaintiff commenced this action for replevin seeking the alleged return of her dog, Kilo, from defendant, plaintiff's then live-in boyfriend. Plaintiff now moves pursuant to CPLR 7102 for an order of seizure of Kilo for the pendency of this action. The motion is opposed. For the following reasons, plaintiff's motion is granted in part.

According to plaintiff, her and defendant began dating in 2018 and moved in together in February 2020. Plaintiff alleges she purchased Kilo, a Yellow Miniature Australian Sheppard on June 27, 2020. On August 14, 2021, the parties got into a physical altercation, resulting in the parties' obtaining orders of protection against each other. As a result of the order of protection, plaintiff was required to leave the apartment she shared with defendant. According to plaintiff, she relocated to an apartment that did not allow dogs. Thus, plaintiff claims she had to leave the dog at the apartment with defendant. The charges against both parties were dismissed on September 23, 2021. In December 2021 the parties recommenced their romantic relationship, at which time plaintiff came into possession of Kilo for the first time since vacating the property. On July 22, 2022, the parties separated again, and on July 27, 2022, defendant vacated the shared apartment with Kilo.

In support of her motion, plaintiff argues that she has a superior right of possession of Kilo. According to plaintiff, she purchased Kilo for $1,200. Plaintiff further alleges that she is the sole registered owner on Kilo's microchip, on his New York City license, on the service animal certificate, and as listed on Kilo's veterinary records. Plaintiff further contends that she would benefit by having Kilo as her emotional support dog. Plaintiff states that she was diagnosed with depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder, and that Kilo provided her with emotional support. To this end, plaintiff submits the November 27, 2020 letter from Dr. Blanca Iris Santana, PhD, MS, LCSWR, wherein Dr. Santana recommended that plaintiff "[t]ake the steps necessary to establish your rights and continue to use an emotional support animal as we explore and address the root causes of your diagnosis" (NYSCEF doc. no. 13). Plaintiff further argues that defendant lacks any valid defenses. Specifically, plaintiff contends that she did not abandon Kilo or otherwise signal to defendant that she was relinquishing ownership of Kilo to defendant. Plaintiff also requests that the court include a provision in permitting the New York City Sheriff to "break open, enter [defendant's apartment] and search for Kilo" (NYSCEF doc. no. 11, mem in support).

In opposition, defendant argues that he has a superior right to possession of Kilo in that it is best for all that Kilo remain with defendant. Defendant argues that they owned Kilo together until the parties ended their relationship in August 2021. Defendant contends that he cared for Kilo from September 23, 2021 through this action. Defendant further contends that plaintiff gave up her rights to Kilo by leaving the dog with defendant after the parties separated. Defendant also argues that plaintiff's claim that she suffers from mental disorder is misleading, to the extent that she never treated with Dr. Santana. Defendant further argues that plaintiff only obtained the certificate certifying Kilo as an emotional support dog so plaintiff could bring Kilo into establishments where dogs are usually not permitted.

"An order of seizure is not a final disposition of a matter but is a pendente lite order made in the context of a pending action where the movant has established, prima facie, a superior right in the chattel" (Americredit Fin. Servs., Inc. v Decoteau, 103 AD3d 761, 762 [2d Dept 2013]). On a motion for an order of seizure, a plaintiff must demonstrate a likelihood of success on its cause of action for replevin and the absence of a valid defense to its claim (see CPLR 7102[c], [d]; Siemens Med. Solutions USA Inc. v Magnetic Resonance Imaging Assoc. of Queens, P.C., 100 AD3d 620, 621 [2d Dept 2012]; Great Am. Ins. Co. v Auto Mkt. of Jamaica, N.Y., 133 AD3d 631, 631-632 [2d Dept 2015]). "To state a cause of action for replevin, a plaintiff must establish a superior possessory right to property in a defendant's possession" (Reif v Nagy, 175 AD3d 107, 120 [1st Dept 2019]).

Under New York Law, domestic pets have been viewed as personal property, or chattel (Schrage v Hatzlacha Cab Corp., 13 AD3d 150 [1st Dept 2004] [pets are treated as personal property under New York Law]; Travis v Murray, 42 Misc 3d 447, 452 [Sup Ct, New York County 2013]).

However, New York courts have developed a separate analysis for determining "superior right to possessory interest" where a domestic pet is the personal property at issue. In Raymond v Lachmann (264 AD2d 340 [1st Dept 1999]), the court, taking into consideration "[t]he 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," applied a "best for all concerned" analysis in determining the ownership of a ten-year-old cat. In Travis v Murray, a matrimonial dispute, the court refined the "best for all concerned" analysis, by taking "[i]nto consideration, and [giving] paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue" (Travis, 42 Misc 3d at 455). This approach takes into consideration "[i]ntangible 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 other" and which party is in the best position to meet the dog's daily physical and emotional needs (Mitchell v Snider, 51 Misc 3d 1229[A] [Civ Ct, New York County 2016]).

Here, the court finds that plaintiff is entitled to a preliminary order entitling her to possession of Kilo for the pendency of this action under either standard. Initially, it is clear from the documents submitted to the court that plaintiff is Kilo's owner, to wit, proof that plaintiff paid for Kilo and that Kilo was shipped to plaintiff. Plaintiff also submits documentation suggesting that plaintiff has superior possessory right to Kilo, including that plaintiff is listed as a client on Kilo's veterinary records, a microchip proof of ownership listing plaintiff as the account holder, Kilo's November 7, 2020 "service animal ... certificate of registration" listing plaintiff as his owner, and the "New York City license" approval listing plaintiff as the owner (Caputo v Assante, 42 Misc 3d 133[A], 2014 NY Slip Op 50054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] [finding that plaintiff's submission, including veterinarian's bills all addressed to plaintiff and listing plaintiff as client, a microchip proof of ownership card listing plaintiff's name, and her testimony 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]).

Plaintiff also demonstrates her likelihood of success on the merits when applying the "best for all concerned" test. Considering the above proof of purchase and related undertakings by plaintiff on behalf of Kilo, plaintiff is active in Kilo's life and concerned with Kilo's well-being. Plaintiff also demonstrates her ability to care for Kilo's physical and emotional needs by demonstrating that she would normally spend time with Kilo for several hours during the day, which defendant does not refute (NYSCEF doc. no. 12, pla aff at ¶ 25). Moreover, in light of plaintiff's diagnosis and Dr. Santana's recommendation that plaintiff continue to utilize Kilo as plaintiff's emotional support dog, plaintiff benefits from Kilo as her emotional support dog.

To the extent defendant argues that plaintiff abandoned Kilo, "[a]bandonment is not a defense" to plaintiff's claim for replevin (LeConte v Lee, 35 Misc 3d 286, 288 [Civ Ct, New York County 2011] [finding that the limited abandonment of the chattel, a two year old dog named Bubkas, is not a valid defense in the context of a motion to determine the superior possessory right to chattel], citing Valenza v Valenza, 67 AD2d 879 [1st Dept 1979]). Defendant does not cite to any caselaw supporting his argument that plaintiff relinquished her possessory rights as to Kilo or otherwise claim that plaintiff affirmatively relinquished her rights as to Kilo to defendant. Moreover, defendant does not dispute that plaintiff attempted to contact him after the restraining order was dismissed, to no avail. Further, the parties do not dispute that plaintiff was required to vacate the apartment where the parties resided as a result of the cross-restraining orders between them and that plaintiff was prohibited from contacting defendant, making it nearly impossible for plaintiff to contact defendant until the protective orders were dismissed. Thus, there is no basis to conclude that plaintiff abandoned Kilo or otherwise relinquished her possessory interest in Kilo. In light of the above, plaintiff also establishes that defendant lacks a valid defense to plaintiff's claim for replevin."

MORE DOG LAW

LAZOVIK v. PUPPY BOUTIQUE, 2022 NY Slip Op 50979 - NY: City Court, Kings Civil Court 2022:

"DEREFIM B. NECKLES, J.

Claimant Tatsiana Lazovik ("claimant") commenced this small claims action against defendant Puppy Boutique a/k/a puppypetite.com ("defendant"), alleging causes of action sounding in breach of contract and breach of warranty. Claimant alleged that defendant sold her an unhealthy puppy and, as a result, she incurred veterinary expenses due to its condition. A small claims trial was held wherein claimant sought to recover damages in the amount of $9,612.00. At the trial, claimant appeared pro se, and defendant appeared by counsel. After considering the testimony of the parties and the documentary evidence submitted at trial, the court makes the following findings of fact and conclusions of law.

Testimony of the Parties

Claimant testified that on November 2, 2019, she purchased a five-month-old female Maltese puppy (the "puppy") from defendant at a cost of $1,357.00. She purchased the puppy for the purpose of breeding and for companionship. Within two months of purchase, the puppy became ill and needed immediate care. On January 17, 2020, claimant took the puppy to her primary care veterinarian at World of Animals of Bethayres in Pennsylvania. Upon examination of the puppy, the veterinarian referred claimant to a Veterinary Specialty and Emergency Center (VSEC) in Levittown, Pennsylvania, for further evaluation of the puppy. After various tests, the veterinarian at VSEC diagnosed the puppy with congenital portosystemic liver shunt and performed surgery on January 30, 2020 to correct the problem. Claimant testified that sometime thereafter, she telephoned defendant regarding the veterinary expenses she incurred. In response, she was advised that the puppy had to be taken to defendant's veterinarian for examination. Claimant further testified that she took the puppy to a local veterinarian facility for treatment because it was very sick and needed immediate attention. She stated that the surgery was necessary to save the puppy's life. She alleged that defendant sold her the puppy knowing that it had a genetic malformation, and despite defendant's representation that it was in good health.

Claimant produced in evidence a report dated January 27, 2020 from VSEC. The report contains the puppy's history, breed, age, and weight. The report also details the different diagnostic examinations performed, and recommended treatments. The report lists under diagnosis and recommendation "[s]olitary congenital portosystemic (splenocaval) liver shunt, mild microhepatia, renomegaly and urine sediment (suspect urates) secondary to shunt." Claimant contended that she is entitled to recover the purchase price of the puppy in the amount of $1,357.00, as well as the cost of the veterinary expenses she incurred in the amount of $8,255.00, for a total sum of $9,612.00.

Defendant's general manager, Benjamin Santiago testified at trial that he sold the puppy to claimant on November 2, 2019. He testified that claimant called the defendant's store and spoke to the receptionist about the veterinary bills and was advised that she could either get a replacement puppy or a refund of the purchase price. The general manager asserted that claimant is not entitled to a reimbursement for the veterinary expenses as she did not comply with the terms of the contract of sale.

The contract of sale between claimant and defendant, dated November 2, 2019, admitted in evidence, provides, inter alia:

"In the event a puppy is found unfit for sale: we request the puppy be produced at our office for further evaluation. (No reimbursements/refunds will be granted until [] veterinarian concludes that there is such unfitness)."

"All puppies are sold as pet quality only; Not for Breeding Purposes."

"NYS General Business Law Section 753 provides that if a pet dealer The Puppy Boutique, the seller wishes to contest a demand for a refund, exchange or reimbursement made by a consumer You, such pet dealer shall have the right to require the consumer You, the purchaser to produce the animal for examination by a licensed veterinarian designated by such dealer The Puppy Boutique, the seller . . . I the purchaser understand. X [claimant's] Initial"

The contract lists the puppy as having "no known disease, illness or congenital or hereditary condition adversely affects the health of the animal at the time of sale."

Relying on General Obligations Law § 753, defendant asserted that claimant is entitled to either a replacement puppy or a refund of the purchase price.

General Business Law § 753

Article 35—D of the General Business Law ("GBL") governs the sale of cats and dogs. GBL § 753(1) provides, in pertinent part, that a pet dealer shall afford the consumer the right to choose one of the following options provided in the statute if, within 180 calendar days following the sale of the pet, a licensed veterinarian certifies that the pet is unfit for purchase due to a congenital malformation which adversely affects the health of the animal:

"(a) The right to return the animal and receive a refund of the purchase price including sales tax and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section;

(b) The right to return the animal and to receive an exchange animal of the consumer's choice of equivalent value and reasonable veterinary costs directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section; or

(c) The right to retain the animal and to receive reimbursement from a pet dealer for veterinary services from a licensed veterinarian of the consumer's choosing, for the purpose of curing or attempting to cure the animal. The reasonable value of reimbursable services rendered to cure or attempting to cure the animal shall not exceed the purchase price of the animal. The value of such services is reasonable if comparable to the value of similar services rendered by other licensed veterinarians in proximity to the treating veterinarian. Such reimbursement shall not include the costs of initial veterinary examination fees and diagnostic fees not directly related to the veterinarian's certification that the animal is unfit for purchase pursuant to this section.

The commissioner by regulations shall prescribe a form for, and the content of, the certification that an animal is unfit for purchase, which shall be provided by an examining veterinarian to a consumer upon the examination of an animal which is subject to the provisions of this section. Such form shall include, but not be limited to, information which identifies the type of animal, the owner, the date and diagnosis of the animal, the treatment recommended if any, and an estimate or the actual cost of such treatment. Such form shall also include the notice prescribed in section seven hundred fifty-four of this article."

GBL § 753(2) provides the following:

"The refund and/or reimbursement required by subdivision one of this section shall be made by the pet dealer no later than ten business days following receipt of a signed veterinary certification as herein required. Such certification shall be presented to the pet dealer not later than three business days following receipt thereof by the consumer."

Further, GBL § 753(5) states:

"Nothing in this section shall in any way limit the rights or remedies which are otherwise available to a consumer under any other law."

Analysis

At trial, claimant did not submit a valid certification from a veterinarian in a form as prescribed by the commissioner, stating that the puppy was unfit for purchase as required by GBL § 753(1). As such, claimant is not entitled to avail herself of the remedies afforded by GBL § 753 (see Sacco v Tate, 175 Misc 2d 901, 902 [App Term, 2nd Dept 1998] [holding that plaintiffs could not recover damages under GBL § 753 due to her failure to comply with the statute]).

However, GBL § 753 does not "limit the rights or remedies which are otherwise available to a consumer under any other law." Another theory under which claimant could recover damages is pursuant to section 2-314 of the Uniform Commercial Code ("UCC"). That section provides that "[u]nless excluded or modified . . . a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." Dogs have been held to fall within the definition of "goods" as defined in UCC 2-105 and defendant, a dog seller, is a "merchant" within the meaning of UCC 2-104(1) (see Saxton v Pets Warehouse, Inc., 180 Misc 2d 377, 378 [App Term, 2nd Dept]; see also Appell v Rodriguez, 14 Misc 3d 131 [A] [App Term, 9th & 10th Jud Dists 2007]; Badillo v Bob's Pet Center, Inc., 40 Misc 3d 137 [A] [App Term, 2nd, 11th and 13th Jud Dists 2013]).

In the instant case, claimant demonstrated that defendant breached the implied warranty of merchantability under UCC 2-314. The evidence adduced at trial established that defendant sold claimant a puppy that suffered from a congenital condition, which by its nature, had to have existed at the time of sale (see Appell v Rodriguez, 14 Misc 3d 131[A]). Claimant submitted proof establishing that she incurred $8,255.00 in veterinary expenses relating to the treatments of the puppy, including hospitalization and surgery due to its congenital condition. As such, claimant is entitled to recover damages pursuant to UCC 2-314 and 2-714 (see Budd v Quinlan, 19 Misc 3d 66, 68 [App Term, 9th & 10th Jud Dists 2008] ["substantial justice requires . . . [an] award to plaintiff as against defendant, representing the amount she paid to the veterinarian to treat the dog"]; see also Sacco v Tate, 175 Misc 2d at 902; Lombardo v Empire Puppies, 50 Misc 3d 143 [A] [App Term, 2nd, 11th and 13th Jud Dists 2016]). However, since claimant retained possession of the puppy, she is not entitled to a refund of the purchase price.

Conclusion

Based on the forgoing, the court finds in favor of claimant. Damages is awarded to claimant in the amount of $8,255.00.

Accordingly, it is hereby ORDERED that the Clerk is directed to enter judgement in favor of claimant Tatsiana Lazovik against defendant Puppy Boutique a/k/a Puppypetite.com in the amount of $8,255.00, without interest and cost.

This constitutes the decision and order of the court."

A DOG OF DIVORCE

L.B. v C.C.B. 2022 NY Slip Op 22320 Decided on October 6, 2022 Supreme Court, Kings County Quiñones, J.:

"Companion Dogs

The sole significant asset contested by the parties is custody and possession of their two dogs €" three-year old Rottweilers named Kane and Cleo. To be sure, the issue of who gets custody of the family pet following a divorce is often "no less contentious" than that of who gets custody of the minor children (see George Heymann, The 'Humanization' of Animals and the Custody of Companion Pets When Couples Separate or Divorce, NYLJ, Mar. 22, 2022). As stated by retired Justice Matthew F. Cooper, "[p]eople may stop loving their spouse at some point, but they never stop loving their dogs" (Susan Lehmann, The New Yorker, The Bench, A Voice For The Yorkies and Doodles When Mom and Dad Split Up, https://www.newyorker.com/magazine/2021/11/22/a-voice-for-the-yorkies-and-doodles-when-mom-and-dad-split-up [Nov. 22, 2021]).

For years, courts have grappled with the proper standard to apply in pet custody matters (see e.g. Raymond v Lachmann, 264 AD2d 340 [1st Dept 1999] [courts have a "limited ability" to satisfactorily resolve pet custody disputes]; Travis v Murray, 42 Misc 3d 447, 449 [Sup Ct, [*4]NY County 2013] ["courts are left with little direction with respect to questions surrounding dog custody"). Because dogs were treated as chattel, "it [was] the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that [were] ultimately determinative" (Travis, 42 Misc 3d at 453). However, in Raymond v Lachmann, supra, the First Department, "[c]ognizant of the cherished status accorded to pets in our society [and] the strong emotions gendered by disputes of this nature," applied an in the "best for all concerned" standard in awarding custody of the family pet, a nearly 10-year-old cat named Lovey (id. at 341). In determining that Lovey should "remain where he has lived, prospered, loved and been loved for the past four years," the court considered factors such as Lovey's age, life expectancy and his physical and emotional well-being (id. at 341).

Almost 15 years later, in Travis v Murray, supra, a matrimonial trial court considered whether the court should employ a "best interests of the canine" standard in determining custody of a couple's 2½-year-old miniature dachshund named Joey (Travis, 42 Misc 3d at 456). Recognizing the treasured and valued "place [that pets] have in our hearts, minds and imaginations," the court found that "a strict property analysis [in determining a pet dispute] is neither desirable nor appropriate" (Travis, 42 Misc 3d at 451-456). After a thorough analysis of pet ownership and possession cases from across the country, the trial court ultimately directed a hearing to resolve the dispute with the applicable standard being the "best for all concerned" standard promulgated in Raymond v Lachmann, supra. The court further stated,

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 more 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?

(Travis, 42 Misc 3d at 460). Notwithstanding its adoption of the "best for all concerned" standard, it is clear from the court's questions that that which was in the "best interest of the pet" was also considered (cf. Eschbach v Eschbach, 56 NY2d 167, 171 [1982] ["Any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote its welfare and happiness' "]; Yu Chao Tan v Hong Shan Kuang, 136 AD3d 933, 934 [2d Dept 2016] [The determination of custody can only be resolved after a full hearing and careful analysis of the factors that would further the child's best interest including "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent"]).

In another pet dispute case, this time involving neighbors and not domestic partners, the trial court utilized the "best for all concerned" standard in awarding the defendant possession of Sylvester/Marshmallow, a four-year-old cat that had wandered away from the defendant's home and was cared for by the plaintiff for a period of several months (Finn v Anderson, 64 Misc 3d [*5]273, 278 [City Ct, Chautauqua County 2019]). In its decision, the court, while "not persuaded that a court could not evaluate the 'best interests' of a pet," nevertheless opined that a strict best interests standard was not appropriate in pet dispute cases because unlike a child, which the court has a responsibility "to ensure is nurtured into independent adulthood," "a pet never becomes an independent being apart from the owner" (id. at 277 [emphasis added]). While a pet may never become an independent being apart from its owner, it appears that a trial court can, and in fact now must, evaluate the "best interests of a pet."

Effective October 25, 2021, New York matrimonial courts no longer have to grapple with how to decide pet custody cases. The issue of the applicable standard to apply in pet custody cases has finally been put to rest with the enactment of law which requires courts to consider "the best interest" of a companion animal when awarding possession in a divorce or separation proceeding (DRL § 236 [B] [5] [d] [15]). In its justification for the bill, the NY legislature reasoned, "For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce" (NY Committee Report, 2021 NY Senate Bill No. 4248 [Feb. 6, 2021]).

In determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal's day-to-day life; the availability and willingness of each party to care for the companion animal; each party's involvement in health and veterinary care decisions; the quality of each party's respective home environment; the care and affection shown towards the companion animal; and each party's fitness and caretaking abilities. No single factor is dispositive.

Accordingly, in determining equitable distribution of the parties' companion animals, the court will be guided by what is in Kane and Cleo's best interest. In weighing the factors relevant to Kane and Cleo's best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (see generally Eschbach, 56 NY2d at 173).

The story told at trial regarding how the parties located and welcomed Kane and Cleo into their family reflected, to this court, the level of each party's love and affection for the dogs at the outset. According to Plaintiff, he found the dogs online and the parties then drove to Pennsylvania together to pick them up (tr at 44). When asked on cross-examination how Kane and Cleo were specifically chosen, Plaintiff explained, "We were both there and whoever jumped towards us, right, are the dogs that we got on that day. But I paid for them" (tr at 44). On the other hand, Defendant shared a more vivid, reflective story of how Kane and Cleo came into their lives. She stated,

"We went together to get Kane and Cleo and we had €" we went to get Kane, let me correct you. We went to get Kane and Cleo suckered her €" she's all love, she is a big Rottweiler but she wants love and she came into my arms and that was it. So we didn't go to get Cleo, Cleo picked us, that's how she came. We went to get one Rottweiler and came back with two"
(tr at 55-56). Defendant acknowledged that Plaintiff paid for the dogs, but submitted that he got them for her because "it was hard for [her] to be alone" after the loss of their previous pet, a dog named Jake (tr at 55).

It is undisputed that during the course of the marriage, the parties shared in the caretaking duties of Kane and Cleo (tr at 36, 57). Plaintiff testified that he trained them and that he was [*6]responsible for walking and feeding them until the parties "started to fall out" (tr at 44). He nonetheless reminded this court that he "can't walk them and feed them if [the parties] are having problems in the house and [he is] not there" (id.). Notwithstanding his contention that he cannot walk and feed the dogs because he is no longer in the home, Plaintiff later claimed that since the breakdown of the parties' marriage, he "walk[s] them; feed[s] them; [has] taken them to the vet makes[s] sure that they are covered in terms of the house insurance;" and up until last year, paid for their vet bills (tr at 46).

Defendant admitted that Plaintiff helped raise and train Kane and Cleo, but asserted that she has always been the dogs' primary caretaker (tr at 56). She stated that other than the liability insurance which Plaintiff covers, she is the "sole provider" of "their daily needs, everything, their health, their food, everything" and that since last year, she has been paying for their health insurance (tr at 57).

White it is undisputed that the parties shared in the caretaking duties during the marriage, Defendant has borne almost sole responsibility for Kane's and Cleo's day-to-day care. Plaintiff is out of the house which rendered Defendant the de facto custodial caretaker during the separation. According to Defendant, Plaintiff stopped the daily care of feeding and walking the dogs "even before" he left the marital residence, and since he left in March or April of 2021 has only walked them "about three times" (tr at 56). On cross-examination, when pressed as to how Defendant could know whether Plaintiff walked the dogs when she was not home, Defendant answered, "I know how many times they poop in the morning, how many times they poop in the afternoon. I know their bowel movements. I know them and how they — I know everything about them. So if he would have walked them while I wasn't there, if he would have moved the leash while I wasn't there, I would know" (tr at 64-65).

Both parties also testified in some respect regarding maintaining the health of the dogs. Plaintiff stated that he makes sure the dogs are covered under the home insurance and has taken them to the vet. Defendant also acknowledged that a month or two before the trial, Plaintiff helped her by taking Kane to the doctor because "we have problems with shots because [Kane] is afraid of needles" (tr at 56-57). The court notes that Plaintiff's statement of net worth, sworn to on April 21, 2022, does not reflect any veterinarian/pet expenses, whereas Defendant's statement of net worth, sworn to on October 20, 2021, reflects veterinarian/pet expenses in the amount of $4,000 (Plaintiff's Exhibit 1; Defendant's Exhibit A).

With respect to his relationship with the dogs, Plaintiff, after acknowledging that he is unable to tend to the dogs' daily needs because he is not in the home, asserted that "but when I come back there is no question that they gravitate towards me" (tr at 44). When asked what should be done with the dogs, Plaintiff responded, "My intention was to let her take the Rottweilers if we resolve the case. If we don't resolve the case, then we have to talk about what that looks like" (tr at 37). When asked again whether he would be seeking custody of the dogs, Plaintiff again emphasized that if the parties resolved the case, he was "willing to part with them" (id.). When advised, "[y]ou're at trial now," Plaintiff nonchalantly responded, "[w]ell, we can split those two" (id.).

Unlike Plaintiff's response, Defendant's position on what should happen with the dogs was impassioned and heartfelt. She did not refer to the dogs as possessions or chattels, but as her "family" and "emotional support" and asserted that removing them from her would be "devastating" (tr at 57). While recognizing that "they are not sentient beings legally," she stressed that the dogs have feelings and that "their love is unconditional" (tr at 66-67). She [*7]conceded that the dogs love Plaintiff and that "they are having problems with him not being around now, particularly Cleo 'cause she's really attached to him," but that Cleo "is getting used to it, his not being in her life" (tr at 66, 70). She emphasized that dogs need consistency, "like kids" (tr at 66-67).

Here, after weighing the factors that would further Kane and Cleo's best interest, including factors such as which party is primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would "live, prosper, love and be loved," as well as evaluating the testimony, character and sincerity of the parties, the court finds that it is in Kane and Cleo's best interest to remain together in Defendant's sole care. Accordingly, care and custody of the parties' Rottweilers, Kane and Cleo, is awarded to Defendant."

ANOTHER DOG STORY

In this case, the emotional support dog had been adopted out for almost a year. 

McCurrie v. City of New York, 2022 NY Slip Op 30815 - NY Co.: Supreme Court 2022:

"This case involves an alleged improper transfer of plaintiff's dog, Roscoe, from defendant Animal Care Center (ACC) to an unknown animal rescue organization, sued herein as "XYZ Rescue Organization" (XYZ). Plaintiff moves by order to show cause to compel ACC to disclose and provide the name of XYZ.

Plaintiff suffers from anxiety and depression and "live[s] on disability." (Plaintiff's Reply, McCurrie second aff at ¶ 11). On April 16, 2021, plaintiff experienced a medical emergency at her residence, requiring the services of an ambulance. Two Emergency Medical Technicians (EMTs) and two police officers arrived at plaintiff's home. Plaintiff was transferred by ambulance to a hospital, and the police officers took her dog Roscoe to ACC. Plaintiff alleges that she made the police officers aware that Roscoe is an emotional support animal. (See Order to Show Cause, McCurrie aff at ¶ 4).

A few days after the incident, plaintiff contacted the police to inquire as to Roscoe's whereabouts. Plaintiff was informed that Roscoe was given to ACC, which she contacted to inquire about her dog. She was informed by ACC that Roscoe was given to a shelter, XYZ, but ACC would not provide the name of XYZ to Plaintiff. Subsequently, an individual, sued herein as "Jane Doe," applied for and adopted Roscoe from XYZ. Plaintiff diligently sought to recover Roscoe, and she brought this instant action upon obtaining counsel.

The parties appeared for argument on March 10, 2022. Without prior leave of the Court, plaintiff filed a reply, and defendant filed a sur-reply. Upon the agreement of the parties, the Court is only considering those portions of plaintiff's reply regarding urgency and custody and control, as well as the plaintiff's supplemental affidavit. Plaintiff agreed to withdraw the remainder of her reply, and ACC withdrew its sur-reply.

Plaintiff maintains that the purpose of this order to show cause is to obtain the name of XYZ in order to substitute the name of the proper party for "XYZ," as well as to attempt to obtain the ultimate relief of finding Roscoe. Plaintiff argues that ACC violated Agriculture and Markets Law (AML) § 117 by failing to hold Roscoe for the prescribed amount of time for either an identified or an unidentified dog, prior to placing him with a third-party animal rescue which ultimately offered him for adoption. Plaintiff also points out that ACC's records show that ACC was on notice that Roscoe was an identified dog and knew the address of said dog's owner. According to plaintiff, ACC made no effort to contact the police or plaintiff prior to transferring Roscoe to XYZ. Plaintiff contends that, based on ACC's violation of the AML, which resulted in serious emotional harm to plaintiff, a disabled person, ACC must turn over the name of XYZ.

ACC opposes, arguing, inter alia, that plaintiff's order to show cause does not present an emergency and that the order to show cause is duplicative of the complaint. The Court rejects these arguments. Plaintiff's order to show cause presents an emergency, in that plaintiff seeks to recover information about her medically necessary emotional support animal. Although ACC asserts that Roscoe was in poor health at the time of plaintiff's hospitalization, an allegation of poor health did not allow for an impermissible seizure without due process or negate the exigent nature of Roscoe's return. Moreover, the order to show cause is not duplicative of the complaint, because it seeks the specified information of the name of XYZ, not the ultimate relief of the return of Roscoe. ACC acknowledges that it is no longer in possession of Roscoe and that Roscoe has been adopted out by XYZ.

ACC also argues that it held Roscoe for the mandatory amount of time pursuant to AML prior to adoption and that providing the information requested runs contrary to public policy. ACC's Chief Executive Officer Risa Weinstock attests that, "it is ACC's policy not to disclose the identity of individual adopters and partner rescue organizations in order to ensure and support the secure rescue of at-risk animals, promote the adoption of animals from rescue shelters, and to otherwise ensure that adoptive placements are not put in jeopardy." (Weinstock affirmation in opposition at ¶ 13). ACC cites to two cases to support its argument that it is against public policy to allow disclosure of the name of XYZ, but they are non-binding and distinguishable. The only appellate case to which ACC cites, Feger v Warwick Animal Shelter, 59 AD3d 68 (2d Dept 2008), involves the disclosure of the identities of the donor and adoptive owner of the cat at issue. Here, plaintiff seeks the name of the rescue organization, not the name of the adoptive owner.

The specific facts of this case mandate disclosure of the name of XYZ, and no statute or other authority dictates that such information should not or shall not be provided as a matter of permissible disclosure. In this case, an emotional support animal apparently was permanently removed from the possession of a disabled individual without any attempts on the part of ACC to learn the identity of the owner or notify her of her pet's location. Despite plaintiff's many documented attempts to get such information, ACC also failed to provide information as to the process by which she could attempt to retrieve Roscoe. In fact, the cases cited by ACC involve a pet owners' inattention to their pets, resulting in rescue and adoption. See Stoddard v VanZandt, 40 Misc 3d 1213(A) (Rensselaer County, Sup Ct 2013); Feger v Warwick Animal Shelter, 59 AD3d 68 (2d Dept 2008). Plaintiff made numerous attempts to retrieve Roscoe, who was taken as a result of a medical emergency. Notably, as conceded by ACC, plaintiff attempted to locate Roscoe while she was in the hospital.

For the foregoing reasons, plaintiff must be provided the information requested as to the shelter where ACC sent Roscoe."

DIVORCE AND THE DOG

Effective October 2021, Domestic Relations Law 236, Part B(5)(d) sub-paragraph 15:

"(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."

And that definition is as follows:

"5. “Companion animal” or “pet” means any dog or cat and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. “Pet” or “companion animal” shall not include a “farm animal” as defined in this section."

IT REALLY IS A LAW

 

I read about this and it is true - you can be fined $500 and up if you take a selfie with a tiger, a lion, etc.

Environmental Conservation (ENV) CHAPTER 43-B, ARTICLE 11, TITLE 5, SECTION 11-0538:

"§ 11-0538. Direct contact between public and big cats prohibited.

1. As used in this section:

(a) "Big cat" shall mean any live species of lion (panthera leo),
tiger (panthera tigres), leopard (panthera pardus) (with the exception
of clouded leopards (neofelis nebulosa)), jaguar (panthera onca),
mountain lion, sometimes called cougar (felis concolar) or any hybrid of
such species.

(b) "Direct contact" means physical contact or proximity where
physical contact is possible, including, but not limited to, allowing a
photograph to be taken without a permanent physical barrier designed to
prevent physical contact between the public and big cats.

(c) "Dealer" shall mean any person who, in commerce, for compensation
or profit, delivers for transportation, or transports, except as a
carrier, buys, sells, or negotiates the purchase or sale of any animals.

(d) "Exhibitor" shall mean any person (public or private) exhibiting
any animals, which were purchased in commerce or the intended
distribution of which affects commerce, or will affect commerce, to the
public for compensation, as determined by the commissioner, and such
term includes carnivals, circuses, and zoos exhibiting such animals
whether operated for profit or not.

2. It shall be unlawful for any person licensed or required to be
licensed as an exhibitor or dealer pursuant to the Animal Welfare Act, 7
USC 2132-2134, including agents or employees of such person, to
knowingly allow the public to have direct contact with a big cat.

3. Any person who violates the provisions of this section shall be
subject to a penalty of not more than five hundred dollars for the first
offense and not more than one thousand dollars for a second and
subsequent offenses. Each instance of allowing direct contact of a big
cat with the public in violation of this section shall constitute a
separate offense.

4. Nothing in this section shall be construed to limit or restrict
veterinary examination, treatment or care of a big cat or transportation
of the animal for such purpose."

PET DEEMED TO BE PROPERTY FOR MALPRACTICE CLAIM

Plaintiffs commenced this action alleging that the Defendants breached the appropriate standards of veterinary care in the treatment of their cat and sought to recover compensatory damages incurred for the treatment in the sum of $15, 262.22 plus $10,000.00 for the time and lost wages suffered by the plaintiffs, plus, $10,000.00 for conscious pain and suffering experienced by the cat, along with $5,000.00 representing the fair market value of the cat and punitive damages in the amount of $250,000.00.

Ritter v. BLUEPEARL OPERATIONS LLC, 2021 NY Slip Op 30341 - NY: Supreme Court February 5, 2021:

"Defendants' motion is granted in its entirety. Specifically, Plaintiff's Sixth Cause of Action for intentional infliction of emotional distress is dismissed because in New York there is no cause of action for emotional distress damages as result of negligent care and treatment rendered to one's animal, which is considered to be property. Jason v Parks, 224 AD2d 494 (2d Dept 1996)".

DOG LAW

Cintorrino v Rowsell, 2018 NY Slip Op 05446, Decided on July 25, 2018, Appellate Division, Second Department:

"On the afternoon of October 31, 2013, the plaintiff allegedly sustained injuries when she was bitten by the defendants' dog inside the defendants' house. Subsequently, the plaintiff commenced this action against the defendants to recover damages for her personal injuries, alleging common-law negligence and strict liability. The defendants moved for summary judgment dismissing the complaint, contending that their dog did not have vicious propensities, and that they did not know or have reason to know of such alleged propensities. The Supreme Court denied the defendants' motion, and the defendants appeal.

Aside from the limited exception set forth in Hastings v Sauve (21 NY3d 122, 125-126) regarding a farm animal that strays from the place where it is kept (see Carey v Schwab, 122 AD3d 1142, 1143-1145), which is not at issue here, "New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal" (Egan v Hom, 74 AD3d 1133, 1134; see Doerr v Goldsmith, 25 NY3d 1114, 1116; Hastings v Sauve, 21 NY3d at 125-126; Petrone v Fernandez, 12 NY3d 546, 550; Xin Kai Li v Miller, 150 AD3d 1051; Bueno v Seecharan, 136 AD3d 702; Lew v Stratigakis, 135 AD3d 832). Accordingly, to the extent that the complaint in this action alleged a common-law negligence cause of action to recover damages for injuries caused by the defendants' dog, the Supreme Court should have awarded summary judgment to the defendants dismissing that cause of action (see Doerr v Goldsmith, 25 NY3d at 1116; Hastings v Sauve, 21 NY3d at 125-126; Petrone v Fernandez, 12 NY3d at 550; Xin Kai Li v Miller, 150 AD3d at 1051; Roche v Bryant, 81 AD3d 707, 708).

To recover upon a theory of strict liability in tort for damages caused by a dog, a plaintiff must establish that the dog had vicious propensities, and that the owner of the dog knew or should have known of the dog's vicious propensities (see Petrone v Fernandez, 12 NY3d at 550; [*2]Carroll v Kontarinis, 150 AD3d 960; Bueno v Seecharan, 136 AD3d at 702; Matthew H. v County of Nassau, 131 AD3d 135, 144; Palumbo v Nikirk, 59 AD3d 691). Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others (see Collier v Zambito, 1 NY3d 444, 446; Gammon v Curley, 147 AD3d 727, 728; Claps v Animal Haven, Inc., 34 AD3d 715, 716). "Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" (Hodgson-Romain v Hunter, 72 AD3d 741, 741; see Bard v Jahnke, 6 NY3d 592, 597; Collier v Zambito, 1 NY3d at 446-447; Carroll v Kontarinis, 150 AD3d at 960; Matthew H. v County of Nassau, 131 AD3d at 147).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that their dog did not have vicious propensities and, in any event, that they neither knew nor should have known that their dog allegedly had vicious propensities (see Collier v Zambito, 1 NY3d at 446-447; Ioveno v Schwartz, 139 AD3d 1012; Galgano v Town of N. Hempstead, 41 AD3d 536; cf. Matthew H. v County of Nassau, 131 AD3d at 148). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint."

ANIMAL LAW

Just a reminder of another free clinic at the Nassau County Bar Association which is tonight, Monday, January 11, 2010; 7:00 – 9:00 p.m. Learn about laws affecting: Pets and rental housing, co-ops, condos, defenses to eviction proceedings, Protecting individuals with service animals, Including the family pet in your estate plan, Your rights in a dangerous dog proceeding, Veterinary Malpractice and Negligence, The Pet Lemon Law, Animal Custody and Visitation in Divorce, Animal Cruelty and Abuse, Evacuation plans for your pets. Animal Cruelty and Abuse. Spay/Neuter Laws. Animal Custody and Visitation in Divorce Evacuations plans for your pets. Register or more info at Nassau County Bar Association, 15th & West Streets, Mineola, NY 11501, 516-747-4070.

FREE PUBLIC SEMINAR - ANIMAL LAW

Free Public Education Seminar - Current Issues in Animal Law - at the Nassau County Bar Association - Monday, January 11, 2010; 7:00 – 9:00 p.m. Learn about laws affecting: Pets and rental housing, co-ops, condos, defenses to eviction proceedings, Protecting individuals with service animals, Including the family pet in your estate plan, Your rights in a dangerous dog proceeding, Veterinary Malpractice and Negligence, The Pet Lemon Law, Animal Custody and Visitation in Divorce, Animal Cruelty and Abuse, Evacuation plans for your pets. Animal Cruelty and Abuse. Spay/Neuter Laws. Animal Custody and Visitation in Divorce Evacuations plans for your pets. For more information, click on the title above.