PET LAW - THE DECISION WITH THE OVERZEALOUS PRO SE LITIGANTS

If you remember the August post about the pro se litigants fighting over their dog and calling the court for a decision (PET LAW - AND OVERZEALOUS PRO SE LITIGANTS), the case has been decided, reminding us once again that pets "are now treated as members of the family under modern, enlightened jurisprudence."

Connolly v. NINA, 2024 NY Slip Op 51422 - Kings Co. Sup. Ct. 2024:

"This case involves a dispute over the ownership and custody of two dogs, Mary Alice, an approximately 12-year-old tan puggle,^[1] and Henry, a five-year-old white chihuahua with patches of black, who are depicted at https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image1.pdf.^[2]

Plaintiff and Defendant both assert strong claims to the dogs, citing ownership, emotional bonds, financial contributions, and caregiving responsibilities. In adjudicating this matter, this Court applies the "best for all concerned" standard established in Raymond v. Lachmann (264 AD2d 340, 341 [1st Dept 1999] [cat to remain where he lived, prospered, loved, and was loved given his age and limited life expectancy], a seminal appellate decision not applying pure ownership as the standard for custody of a pet).

Plaintiff Debrasue Connolly adopted Mary Alice in September 2019 (see July 12, 2024 tr at 6, lines 18-20; plaintiff's exhibit 7) and Henry in 2020 (see plaintiff's exhibit 6). Over the last few years, on various occasions, including when Plaintiff has been hospitalized, she entrusted the dogs to Defendant Venessa Nina, a professional pet caretaker (see July 5, 2024 tr at 6, line 1; 12, lines 13-15; 14, lines 24, through 15, line 8; 14, line 24, through 15, line 8; 19, line 19, through 20, line 2; 23, lines 11-18; July 12, 2024 tr at 37, lines 3-5; 30, lines 22-23). She first engaged Defendant, an animal caregiver who offers dog walking, boarding, and training services, as a pet sitter in May 2020 (see July 5, 2024 tr at 9, lines 17-18) or "toward the end of 2019 or the beginning of 2020" (id. at 14, line 25, through 15, line 1). Defendant has a New York City Department of Health dog handler certification and received a qualifying certificate of animal care and handling also (see July 18, 2024 tr at 28, lines 2-6).

On October 14, 2023, with Mary Alice and Henry accompanying her, Plaintiff trekked out from Manhattan to the beach in Long Beach, Long Island, fell asleep there, and awoke to find her pocketbook and phone gone as well as Henry being in the custody of the local animal control. Animal control called Defendant — not Plaintiff — to retrieve Henry and Mary Alice because Defendant's information was linked to the implanted microchips. Defendant alleged that the microchips were in her name by request due to the frequency of Plaintiff's unanticipated hospitalizations, leading to the dogs' being sent to the pound each time. On previous occasions, Defendant returned the dogs to Plaintiff after having taken care of them for her. Following this incident, however, Defendant elected to maintain custody of the dogs after the shelter allegedly informed her that she would be charged with animal neglect and cruelty should she again yield possession of them to Plaintiff. Plaintiff consequently commenced a pro se suit against Defendant to recover custody of the dogs. (See generally July 5, 2024 tr at 2-15.)

Plaintiff seeks the return of both dogs but would be amenable to the return of Mary Alice only as she feels she is best suited to care for Mary Alice's conditions, including "cherry eye," as well as from bowleggedness. Although Plaintiff claims lawful ownership, she focused on Mary Alice's safety, arguing that Defendant's care was wholly inadequate. Plaintiff asserted Defendant was abusing Mary Alice by taking her on long walks as she has little stamina, bringing her to dog parks as Mary Alice allegedly cannot be around big dogs, allowing Mary Alice to be around Defendant's cats, administering home remedies for Mary Alice's cherry eye condition, and harming Mary Alice with CBD biscuits. Defendant, however, argued that the dogs should not be returned due to unsanitary living conditions in Plaintiff's apartment, the dogs being filthy when living with Plaintiff, the frequency of Plaintiff's sudden absences, the length of these absences, concerns for the safety of the dogs as Plaintiff heavily relied on Defendant to care for them during the absences, Plaintiff's failure to socialize the dogs, Defendant's exposure to prosecution by animal care and control officials if she released the dogs to Plaintiff, and the dogs being microchipped to Defendant. In any event, the dogs are bonded and should not be separated, maintained Defendant. (See generally id. at 13-27.)

The parties attended three evidentiary hearings, on July 5, 12, and 18 of 2024, during which they both provided testimony and documentary evidence regarding their relationship with the dogs. Evidence presented included, among other things, dog licensing documents, microchip confirmations, veterinary records, letters of reference from acquaintances, text messages between Defendant and animal rescue center staff, voicemails Plaintiff sent to Defendant, personal financial records, and photos.^[3]

Procedural Background

This action was commenced by a pro se Plaintiff against a pro se Defendant. Plaintiff's documents did not properly commence the action under New York law, as Plaintiff initiated this matter by filing an order to show cause dated June 27, 2024, a petition, an affidavit of emergency, and various exhibits.^[4] In New York, an action can be commenced in one of three ways: (1) by filing a summons and complaint; (2) by filing a summons with notice; or (3) by filing a summons with notice of motion for summary judgment and supporting papers in lieu of a complaint (see CPLR 304, 3213). Plaintiff did not utilize any of these methods. Additionally, Plaintiff did not cite any statutory provision that would allow her to bring a claim for the return of her dogs within a special proceeding, which is a type of expedited lawsuit commenced with a petition (see CPLR 103[b], 402).

There was no question regarding jurisdiction as Defendant was properly served. Defendant appeared and contested Plaintiff's claim on the merits. However, given the irregular nature of the papers that commenced this action, the Court elected to treat the documents as the equivalent of a summons and complaint combined with a motion for summary judgment (see CPLR 103[c]). Under Judiciary Law § 2-b(3), "A court of record has power . . . (3) to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." Further, under CPLR 2101(f), "A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court and leave to correct shall be freely given." Courts thereby may exercise flexibility in matters such as this where Plaintiff sought replevin — the return of her dogs — which requires proper commencement of an action. The Court deemed the argument and testimony adduced to be within the context of a hearing on Plaintiff's motion for summary judgment (see July 12, 2024 tr at 7, lines 9-11).^[5]

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Andre v. Pomeroy, 35 NY2d 361 [1974]). Although typically decided on the papers, under CPLR 3212(c), "if it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may, when appropriate for the expeditious disposition of the controversy, order an immediate trial of such issues of fact raised by the motion. . . ." While this case does not involve damages, the Court opted for an expedited resolution. Both parties did not object to having a trial in this manner, thereby avoiding the lengthy process of discovery and potential delay from placement on a trial calendar.^[6] Consequently, the Court held an evidentiary hearing over the course of three days in July to resolve the issue of custody of the dogs. The Court also found support for proceeding in this manner in CPLR 2218, which provides in pertinent part, "The court may order that an issue of fact raised on a motion shall be separately tried by the court or a referee," as well as in the previously-cited Judiciary Law § 2-b(3) provision, "A court of record has power . . . (3) to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it."

Legal Standard

Traditionally, New York courts viewed pets as personal property, resolving ownership disputes based on which party held the superior possessory right (see Travis v. Murray, 42 Misc 3d 447, 452-453 [Sup Ct, NY County 2013]). More recently, however, courts recognized the myriad of ways in which companion animals are recognized as much more to their owners than simple possessions (see Pron v. Tymshan, 79 Misc 3d 1235[A], 2023 NY Slip Op 50809[U] [Civ Ct, NY County 2023]). Courts now treat companion animals as a special category of property, which is consistent with underlying public policy to protect the welfare of animals (see Mitchell v. Snider, 51 Misc 3d 1229[A], 2016 NY Slip Op 50877[U] [Civ Ct, NY County 2016]).

Courts have increasingly applied Raymond's "best for all concerned" analysis, balancing a strict property analysis with the more extensive interests analysis involved in child custody cases (see Pron, 2023 NY Slip Op 50809[U], *4). The "best for all concerned" standard combines traditional property elements and intangible or subjective factors involved in custody, such as the emotional bond between the pet and its caretakers, the ability to meet the pet's physical and emotional needs, and the stability and consistency of care provided (see id.; L.B. v. C.C.B., 77 Misc 3d 429 [Sup Ct, Kings County 2022]; Mundo v. Weatherson, 74 Misc 3d 1215[A], 2022 NY Slip Op 50125[U] [Civ Ct, NY County 2022]). "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" (Pron, 2023 NY Slip Op 50809[U], *4). Modern day notions concerning disputed custody of pets led our state's legislature to amend the Domestic Relations Law to mandate that when dividing marital property, "in awarding the possession of a companion animal, the court shall consider the best interest of such animal" (Domestic Relations Law § 236[B][5][d][15]).

In Raymond, the Court determined the custody of a cat. In light of the cat's age and the strong bond between the animal and its caregiver, the Court found that the cat should remain where it had "lived, prospered, loved and been loved for the past four years" (Raymond, 264 AD2d at 341). In Hennet v. Allan (43 Misc 3d 542 [Sup Ct, Albany County 2014]), the Court examined which party had a more genuine right of possession based on their conduct in acquiring and caring for the dog. This required consideration of the parties' relationship with the dog and how care was arranged after one party left their shared home (see Hennet, 43 Misc 3d at 548).

"Although nonhuman animals are not `persons' to whom the writ of habeas corpus applies, the law already recognizes that they are not the equivalent of `things' or `objects.' Unquestionably, nonhuman animals are sentient beings that, albeit without liberty rights, have been afforded many special protections by the New York Legislature—long considered a leader in animal welfare." (Nonhuman Rights Project, Inc. v. Breheny, 38 NY3d 555, 575-576 [2022].) After reciting a plethora of New York statutes protecting the interests of animals, including the aforecited Domestic Relations Law provision, the Court of Appeals noted, "As the foregoing statutes demonstrate, New York law acknowledges that the relationships between humans and nonhuman animals are varied and complex and, in many contexts, the law clearly imposes a duty on humans to treat nonhuman animals with dignity and respect" (id. at 576).

In line with the "best for all concerned" approach and the Court of Appeals' declaration that animals are not mere things or objects, this Court assesses not just the parties' possessory rights but also intangible factors based on each party's ability to meet the dogs' physical and emotional needs. Considering the evidence presented by the parties, this Court focuses on financial circumstances, the competing living environments, access to outdoor activities, opportunities for exercise and socialization, access to veterinary care and necessary medical supplements, the time required to meet these needs on a daily basis, and why each party would benefit from having the dogs in their life (see Pron, 2023 NY Slip Op 50809[U], *4; Mitchell, 2016 NY Slip Op 50877, *3).

Discussion

I. Claims of Ownership

Both parties presented documentation supporting their claims of ownership. Plaintiff testified that Mary Alice and Henry were adopted in her name and are registered under her ownership with New York City health authorities (see July 5, 2024 tr at 8, lines 11-18; plaintiff's exhibit 4). Medical records submitted by Plaintiff listed her as the "owner" (see plaintiff's exhibits 5, 6), and Plaintiff also claimed to have microchipped the dogs (see July 5, 2024 tr at 17, line 25, through 18, line 1; plaintiff's exhibit 2).

Defendant, however, had licensed the dogs at a certain point (see id. at 13, lines 11-13; defendant's exhibit A). She provided documents from 24Petwatch, a registration site for pet microchips, stating that the dogs were microchipped to her, and submitted text messages from Posh Pets Rescue identifying her as the legal owner (see id. tr at 13, lines 7-11; 14, lines 1-7; defendant's exhibits D, E). She submitted animal redemption forms (see defendant's exhibit A) and reunification forms (see defendant's exhibit F). "These are my dogs, and if they go back into her care and something happens to them, I'm responsible," testified Defendant (July 5, 2024 tr at 16, lines 12-14).

Given the contradictory records, the Court finds that traditional markers of ownership are non-dispositive as both parties have strong claims to ownership of Mary Alice and Henry.

II. Financial Capacity to Provide for the Dogs

Plaintiff claimed her financial resources are a significant factor in her ability to care for Mary Alice and Henry. Access to a trust fund left to Plaintiff by her father facilitates the ability to afford premium dog food and veterinary care (see July 12, 2024 tr at 41, lines 22-25; July 18, 2024 tr at 35, lines 2-23), but Plaintiff also revealed that the trust administrator has at times denied or delayed requests for payments (see July 18, 2024 tr at 34-37, 46-47). "They pay my bills but it's very difficult to get them to pay anything so I'm having difficulty with them" (id. at 35, lines 9-11). The trust is labeled a special needs one and it succeeded Plaintiff's sister as trustee after the sister resigned, by order of the Surrogate's Court (see id. at 36, lines 4-5, 41, line 10, through 42, line 14).

Although Plaintiff paid the dogs' medical and general expenses, Defendant also demonstrated that she consistently covered the dogs' daily expenses while in her care. Defendant asserted that she provides food, shelter, and medical treatments using her own funds (see July 5, 2024 tr at 22, lines 13-25; July 12, 2024 tr at 40, lines 6-10, 20-21). Overall, this factor tips narrowly in favor of Defendant, whose access to funds necessary for the dogs' care is not limited by a third party. Were Plaintiff's trustee to be more accommodating, her access to a trust containing around $500,000 (see July 18, 2024 tr at 35, line 23) would militate in favor of Plaintiff in terms of financial capability.

III. Emotional Bond, Caregiving, and Pet Life

Both parties share a deep emotional bond with the dogs, as evidenced by testimony regarding their personal relationships with Mary Alice and Henry. Clearly, Mary Alice and Henry served as emotional companions for Plaintiff. "They are my babies. I love them so much. This has devastated me. All I do is pace and drink water" (July 12, 2024 tr at 31, lines 3-5), was but one of Plaintiff's numerous expressions of affection for the dogs.

The following testimony encapsulates Plaintiff's feelings toward Mary Alice:

Mary Alice is a dog who came from a history of torture. And I've taken her to two specialists. I don't know if you had a chance to review the records that I submitted last week. She has dry eye. She's on her way to being blind in both eyes. She needs to go to the vet immediately for both her eyes and her legs. I applaud Venessa for getting the carriage but she shouldn't need a carriage if she's being taken care of well. She could still walk well. She is my emotional support dog. She is my baby. Please, she brings me so much joy. (July 18, 2024 tr at 40, lines 9-19.)

I love my dogs. And I will take wonderful care of them if you hopefully decide to return them to me (July 5, 2024 tr at 19, lines 2-3).

Several of Plaintiff's acquaintances also provided letters in support, praising her care for the dogs and expressing confidence in her love for animals (see plaintiff's exhibit 8). A friend mentioned that Plaintiff "took wonderful care of her dogs," while another felt that the loss of the dogs has been a source of distress for Plaintiff and that getting the dogs back is important to restore her joy in life (see id.). Notably, Turhan Moody, LMHC, who worked with Plaintiff in the Bronx II Intense Medical Treatment Program, described Plaintiff's love and dedication to her pets as unquestionable (see July 18, 2024 tr at 54-56; Plaintiff's exhibit J). Plaintiff also submitted a letter from a member of her health team recommending the assistance of emotional support animals to help manage her anxiety and depression (see July 18, 2024 tr at 54-56; plaintiff's exhibit J).

Defendant maintained that she provided daily care for the dogs for the times when Plaintiff was unable to do so either due to hospitalization, health crises, or other reasons (see July 5, 2024 tr at 6, line 1; 12, lines 13-15; 14, line 24, through 15, line 8; 19, line 19 through 20, line 2; 23, lines 11-18; July 12, 2024 tr at 30, lines 22-23; 37, lines 3-5).^[7]

Photos of Mary Alice and Henry playing with other neighborhood dogs as well as photos of them lying beside Defendant's cats suggest the dogs are well-adjusted in her care and comfortable in their current environment (see defendant's exhibits G11,^[8] G42)^[9]: https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image2.pdf

Neighborhood residents and shopkeepers enjoy holding or being with Henry (see defendant's exhibits G44, G7, G43),^[10] a product of Defendant's providing Henry with an active lifestyle: https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image3.pdf

The Court credits the testimony of Defendant concerning the circumstances under which the middle photo above was taken and notes how keeping Henry in the local community benefits others who might not otherwise be exposed to human-canine interaction, thus fostering the universal precept of showing kindness to animals:

I live in Williamsburg with a lot of Hasidic Jews, and the children don't—usually are afraid of dogs. But my neighbor is one little boy who's very persistent that I let him pet. And I was like, as long as you're not going to get in trouble from your parents, sure, you could pet. He was very excited to pet Henry and hold him. So I thought snapping pictures, thought it was really cute and heartwarming. (July 18, 2024 tr at 14, line 24, through 15, line 6.)^[11]

Additionally, and contrary to Plaintiff's belief that the dogs are fearful of and therefore should not be around large dogs (see July 12, 2024 tr at 23, lines 1-2; 31, lines 13-14), the photos depict Henry comfortably socializing and playing with other canines at the park — even standing on top of a large one (see id. at 35, lines 10-11; defendant's exhibits F1, F2, F3, F4, G19, G23, G24, G25, G33, G38).^[12] Mary Alice is also depicted as interacting with other dogs (see defendant's exhibits F1, F2, F3, F4, G18, G30, G33, G38). Socialization is as important for domesticated animals as it is for humans. One can readily observe from the photographic evidence that Mary Alice and Henry are afforded more of an opportunity to socialize and play with other dogs while under Defendant's care than they probably would be if they were sent back to Plaintiff:^[13] https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image4.pdf

Plaintiff's assertion that Defendant is engaging in animal cruelty by taking Mary Alice to the dog park every day (see July 5, 2024 tr an 20, lines 19-24) is belied by the photographic evidence.

Defendant further established that she purchased winter clothes for the dogs (see id. at 8, lines 14-21; defendant's exhibits F5, G12, 13, 15) and transports them in a stroller as a precaution to protect from exacerbating Mary Alice's bowlegged condition (see July 18, 2024 tr at 26, lines 21-24; defendant's exhibit I).

It is apparent that both parties have time to spend with Mary Alice and Henry, although the Court is concerned with the fact that there have been lapses when Plaintiff was unable to care for them, which necessitated Defendant's services. Additionally, Plaintiff's trek out to Long Beach from Manhattan on the Long Island Rail Road with Henry and Mary Alice, about whom Plaintiff repeatedly expressed concern regarding her eye and orthopedic conditions, only to fall asleep on the beach without securing the dogs must be recognized as irresponsible behavior. This exposed them to unnecessary risks, as proven by Henry either wandering off or being dognapped when Plaintiff's phone was stolen.

During the hearings, Plaintiff repeatedly characterized Defendant in a pejorative manner, at one point claiming, "She's a violent, hateful individual" (July 18, 2024 tr at 6, line 7). "She's a violent person, she's an angry person" (id. at 6, lines 14-15). The Court finds no basis for these accusations. Additional charges that Defendant was "cruel to animals" (see July 18, 2024 tr at 28, line 15) is belied by the fact that various people have entrusted their pets to Defendant to walk, babysit, and otherwise care for them.

The Court acknowledges Plaintiff's emotional reliance on the dogs, particularly given her health condition and the distress she will incur should the dogs not be returned.^[14] However, the stability afforded the dogs in the course of Defendant's caregiving and the consistent positive experiences the dogs have had under her care tip this factor in her favor. Defendant's experience as a professional pet caregiver, dog walker, and trainer (on and off for 20 years) as well as her ability to provide emotional support and opportunities for Mary Alice and Henry to socialize and exercise regularly only speaks further to her stronger claim as the more superior caregiver.

IV. Health and Medical Needs

Mary Alice's health is a point of contention between the parties, particularly regarding her cherry eye condition, as shown in the photo at right (defendant's exhibit G13). Plaintiff stressed that Mary Alice's cherry eye is chronic and requires daily treatments, including Refresh eye drops and Optix Care ointment, which she diligently administered (see July 12, 2024 tr at 42, lines 16-17). Markedly, Defendant alleged that Plaintiff never notified her of or provided instructions for these treatments, so she took the initiative to administer a home remedy, castor oil (see July 18, 2024 tr at 45, lines 10-14). Defendant further noted that she uses a dog stroller to prevent Mary Alice from overexerting herself on walks and provides CBD biscuits to alleviate joint pain (see id. at 24, lines 6-23; 26, lines 21-24).^[15] https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image5.pdf

Although the parties have differing approaches to medical care, Defendant's handling of Mary Alice's condition has not led to any documented deterioration in the dog's health. The differences in their caregiving methods — such as choice of food and treatments — reflect personal preferences, not a lack of proper care. Plaintiff admitted that surgery is no longer an option for Mary Alice due to her old age and weak heart, making it clear that minimizing her discomfort is a logical course of action^[16] (see id. at 44, lines 1-6). Hence, what makes the difference is Plaintiff's heavy reliance on Defendant to care for the dogs, especially during hospitalizations, which raises concerns about Plaintiff's long-term ability to provide consistent medical care.^[17]

V. Living Environment

Defendant's living situation provides a stable and suitable environment for the dogs. Her home offers ample space for roaming, playing, and interacting with Defendant's other pets, as depicted in photos of the dogs lounging comfortably with Defendant's cats (see defendant's exhibits G11, G42). She also emphasized that while in her care, the dogs have received regular exercise at a nearby park, in contrast to Plaintiffs alleged failure to regularly take the dogs out during the day (see July 5, 2024 tr at 25, line 21, through 26, line 9; July 18, 2024 tr at 10, lines 4). Plaintiff claimed that she did exercise them (see July 5, 2024 tr at 26, lines 17-18; July 12, 2024 tr at 32, lines 4-6) and complained about them being over-exercised (see id. at 17, lines 6-8 ["From the condition of my animals when I picked them up from when they were with her, they were very, very exhausted all the time."]; July 12, 2024 tr at 21, line 17 ["She is taxing them, their energy."]; 22, lines 9-10 ["(Mary Alice) needs to rest, not going to the dog runs."]; 34, line 3 ["S]he taxes them. She overdoes their energy."]). Perusing the photos submitted by Defendant, however, the dogs appear content (see Defendant's exhibits F, G).

The Court acknowledges Plaintiff's testimony in response to Defendant's regarding the dogs being taken out side, which included the following:

Yes, I do the same. I take them out twice a day. They play with each other and they — there's a testimonial letter. They play with — Mary Alice doesn't play with other dogs. She can sniff a dog and, you know, be friendly on the street, but she doesn't — her eyes are too tender. They get recreation with me. They have a wonderful life with me.

I'm grateful to you for not having Miss Nina bring them to court. It would have stressed them, but you would have seen them run to me. They're afraid of her.

(July 18, 2024 tr at 42, line 24, through 43, line 9.)

Plaintiff's living conditions, however, raise concerns. She has a small studio (see July 5, 2204 tr at 22, line 9). Defendant testified that during a visit to Plaintiff's home she observed unsanitary conditions with the floor covered in blankets with urine and feces (see id. at 25, lines 20-21; July 18, 2024 tr at 10, lines 1-5). After the October 2024 incident in Long Beach, "[Defendant] had to give them two baths when [she] brought them home. They were disgusting" (id. at 27, lines 20-21). Additionally, Plaintiff's repeated hospitalizations resulting in the dogs being taken to shelters as well as Defendant's care for the dogs for sometimes up to 56 days at a time raises serious concerns about Plaintiff's ability to consistently provide a safe and stable home (see July 12, 2024 tr at 37, lines 1-6). Thus, based on the testimony and evidence presented, this factor weighs strongly in favor of Defendant.

Conclusion

In arriving at its determination, the Court has considered the testimony and documents submitted by the parties. To the extent that there was any discrepancy between the testimony of Plaintiff and that of Defendant, the Court resolves it in favor of Defendant. Plaintiff's lack of transparency regarding the times and under what circumstances Mary Alice and Henry had been taken in by Defendant undermined Plaintiff's credibility. Answering "No" to the question, "Are there periods of time that you spend on the beach or outside of your apartment?" (July 5, 2024 tr at 28, lines 1-3) was not really accurate, considering Plaintiff's hospitalizations. The Court also feels that Plaintiff could have been more forthcoming concerning the trip to Long Beach: why she toted the dogs out there instead of boarding them with Defendant, whose services she had used previously; why she did not go straight to her destination in Rockville Centre, considering that the dogs were with her; and why she took a chance of something happening to the dogs if she fell asleep. Further, Plaintiff did not satisfy the Court that her apartment was not as described by Defendant: unsanitary, with the dogs lying in urine and feces.

Defendant demonstrated a stronger ability to provide consistent care, immediate financial support, a stable living environment, and permanent, continuous companionship. That Mary Alice and Henry have enjoyed socializing with other dogs (and even with their fellow cat residents) and humans while under Defendant's care is a very strong consideration. Defendant's bond with the dogs, reinforced by her professional experience with animals, further supports the conclusion that it is in the best interests of Mary Alice and Henry to remain in her custody. We are approaching the one-year anniversary of the October 14, 2023 incident at Long Beach. Continuity is important is a pet's life (see Raymond 264 AD2d at 341 [cat to remain where he lived, prospered, loved and was loved for four years]). Having resided with Defendant for a year straight by now, it would be cruel to uproot the dogs at this point. Although letters in support praised Plaintiff's devotion and care given to her pets, in light of Plaintiff's past absences, there is reasonable concern about the dogs' future well-being should they be sent back to her, and this Court will not subject Mary Alice and Henry to a filthy, urine- and feces-laden household.

Dogs are now treated as members of the family under modern, enlightened jurisprudence. Nudged by legislative advances regarding the treatment of pets, the status of dogs under the common law has evolved. They, no less than humans, deserve a safe, stable, stress-free home environment where they will not be subjected to being uprooted periodically. Defendant has and will continue to provide such an environment, in this Court's view. Plaintiff's ability to provide it is questionable. While the Court sympathizes with Plaintiff, who predictably will sustain an emotional loss from being cut off permanently from Mary Alice and Henry, said impact must be subordinated to the best interests of the dogs, especially since the law calls for the application of the "best for all concerned" standard (see id. [emphasis added]). In this case before the Court, Plaintiff's interests are outweighed by those of Mary Alice and Henry. The dogs will be well cared for by Defendant. It is in Mary Alice's and Henry's best interests that they remain in the care of Defendant.

The Court declines to consider separating the dogs as it may cause them distress after living together for so long. Shared custody or visitation is also not considered by the Court due to the hostility observed between the parties, principally by Plaintiff; this would inure to the detriment of the dogs.

Accordingly, IT IS HEREBY DECLARED, ORDERED and ADJUDGED that Plaintiff's motion for summary judgment is DENIED; Plaintiff's complaint (in the form of supporting papers) is dismissed; custody of Mary Alice and Henry, depicted hereinafter (defendant's exhibit G6), is awarded to Defendant; and, upon presentation of a copy of this Decision, Order, and Judgment, any governmental agency recording Mary Alice and Henry as being Plaintiff's dogs shall amend their records to reflect that Defendant is their legal guardian. https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image6.pdf

[1] A puggle is a mix of a pug and a beagle (see Puggle, Wikipedia, available at https://en.wikipedia.org/wiki/Puggle [last accessed Oct. 2, 2024]).

[2] The photo (defendant's exhibit F10), taken by Defendant, depicts Mary Alice and Henry at Plaintiff's home in Brooklyn. Defendant testified: "All over the floor was covered in blankets, which is why I didn't want to stay in with them. She didn't walk the dogs. All the surfaces were just covered in urine." (July 18, 2024 tr at 10, lines 3-5.)

[3] Defendant submitted numerous photographs into evidence. Plaintiff testified that she had no photos of the dogs — that the moving company lost them when she moved from Brooklyn to Manhattan and that she lost the ones on her phone when it was stolen while sleeping on the beach at Long Beach (see July 12, 2024 tr at 19, lines 7-10; 44, lines 21-25).

[4] The Court notes the difficulties and complexities faced by the Kings County Supreme Court Help Center in assisting pro se litigants in preparation for court appearances. However, the system could be streamlined by providing unrepresented plaintiffs with a description of how to commence litigation with the appropriate papers. This Court emphasizes the importance of qualified representation and the need for litigants to be properly apprised of the procedural and substantive aspects of the law.

[5] The Court was unable to locate a written response from Defendant to Plaintiff's initiating papers. The Court deems the exhibits submitted by Defendant at the hearing to constitute answering papers. This is consonant with the notion that "courts will routinely afford pro se litigants . . . some latitude" (Mirzoeff v. Nagar, 52 AD3d 789, 789 [2d Dept 2008]); see Tracy v. Freshwater, 623 F3d 90, 101-103 [2d Cir 2010] [discussion regarding solicitude accorded pro se litigants in federal courts]). Procedural formalities should be relaxed for disputant pro se parties in order to bring about a resolution to their legal quarrel. It is also noted that while Plaintiff raised pro forma objections to evidence and testimony from Defendant, she did not identify any particular grounds rooted in the rules of evidence or other binding protocols. Both parties acquiesced to the manner in which the Court conducted the three-day fact-finding hearing, i.e., taking testimony, receiving exhibits, and hearing argument. The Court recommends that the legislature add a provision to the CPLR to enable pro se litigants to have disputes resolved in the courts without the attendant need to comply with the plethora of litigation mandates more relevant to actions between attorney-represented parties. While this process might resemble arbitration, it is noted that many pro se parties desire to have their disputes resolved by a judge. There should be a process for a court to adjudicate a dispute between pro se parties who, like Plaintiff, "don't know what the rules of evidence means" (July 18, 2024 at 10, lines 18-19).

[6] Parties may wait as long as two years for their case to go to trial due to discovery haggling and full trial calendars.

[7] Plaintiff testified: "The only reason I kept going back to her was because I really didn't have anyone else. I have some difficult family problems, and I have no one to take care of [them]" (July 5, 2024 tr at 14, lines 23-25).

[8] Defendant's exhibit G was a compendium of photographs. Each photo was individually marked with a sequential number after the letter G.

[9] Contrary to Plaintiff's protestations about the dogs living with cats (see July 5, 2024 tr at 23, lines 5-10 ["Mary Alice and Henry are terrified of cats. . . ."]; id. at 25, lines 9-12 ["Please give them back to me. They're with the cats. Please give them back to me, your Honor. They're with the cats."]), these photos confirm Defendant's testimony that her cats and the dogs get along together. The photos depict Chip, Defendant's overweight cat, on the bed with Mary Alice and Henry. The only problem the Court observes with this situation is that Chip needs to go on a diet.

[10] Neighborhood folks are fans of Henry, according to Defendant (see July 18, 2024 tr at 23, line 25, through 24, line 2; 24, line 25, through 25, line 4). The Court doubts that Henry would be exposed to the same type of human interaction in Plaintiff's care.

[11] Since he is a minor, the child's face has been blurred by the Court to preserve his privacy.

[12] Quite evidently, under Defendant's aegis, Henry has flowered into a social butterfly.

[13] Depicted clockwise on page 8 from the top left are Mary Alice with a friend, Mugsy (see July 18, 2024 tr at 17, lines 1-2; defendant's exhibit G18); Henry with other dogs at the dog park, the black one being Sting and the one with the red coat being Cocoa (see July 18, 2024 tr at 19, line 24, through 20, line 4; defendant's exhibit G24); Mary Alice and Henry with Ruby (see July 18, 2024 tr at 21, lines 21-23; defendant's exhibit G30); Henry standing on top of Bambi, "a German Shepherd/Rhodesian Ridgeback mix. She's a very large dog. . . . Henry is not afraid to jump on top of large dogs, play with them. He has a great time," while Sing, another dog, looks on (July 18, 2024 tr at 17, lines 11-23; see defendant's exhibit G19); and Daisy, whom Henry has a crush on (see July 18, 2024 tr at 19, lines 7-8). "That's them walking by the water. That's when I was training him to be . . . off leash, not go too far from me. That was off training with Daisy. She'll run and catch him if he goes off," testified Defendant (Id. at 19, lines 8-14; see defendant's exhibit G23).

[14] The Court takes the mental health of its employees, attorneys, and pro se litigants seriously and does not seek to disclose more information than necessary about anyone's tribulations. However, it should be noted that although Plaintiff displayed erratic and concerning behavior during the hearings in addition to being heard casting threats in frenzied voicemails, such was not considered in this decision as neither implicated Plaintiff's ability to care for the dogs.

[15] Plaintiff took umbrage at Mary Alice being given CBD, accusing Defendant of attempting to kill the dog (see July 18, 2024 tr at 26, lines 4-9). The amount was miniscule and helped Mary Alice keep calm, according to Defendant; she said it also helps with joint pain (see id. at 24, lines 6-23). There is support for its usage in treating osteoarthritis in dogs (see CBD: What you need to know about its uses and efficacy, Cornell Richard P. Riney Canine Health Center, available at https://www.vet.cornell.edu/departments-centers-and-institutes/riney-canine-health-center/canine-health-information/cbd-what-you-need-know-about-its-uses-and-efficacy [last accessed Oct. 2, 2024]). Therefore, this Court draws no adverse inference from Defendant's providing CBD biscuits to Mary Alice.

[16] The Court is not an expert in veterinary care and will not opine on the best treatment for Mary Alice. However, focusing on maintaining comfort over aggressive treatments aligns with the needs of an elderly pet.

[17] Plaintiff herself testified, "I really didn't have anyone else [to care for the dogs]. I have some difficult family problems, and I have no one to take care of —" (July 5, 2024 tr at 16, lines 23-24). The Court is concerned that were the dogs awarded to Plaintiff and she no longer used Defendant's services during hospital stays, nobody else would be available to care for the dogs and they would be taken to the pound and perhaps euthanized — especially considering that Mary Alice presents with obvious health issues such as her eye and orthopedic conditions."

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.

DOG LAW

“Happiness is a warm puppy.” – Charles M. Schulz

Shallo v. Zarrour, NYLJ March 02, 2021, Date filed: 2021-02-25, Court: Supreme Court, Queens,  Judge: Justice Robert Caloras, Case Number: 712985/20:

"Plaintiff Madison Shalloo commenced this action for the replevin of a dog on August 14, 2020. In her complaint, Plaintiff alleges: she was in a relationship with defendant and that they shared an apartment in Long Island City, New York from November 30, 2017 to January 10, 2020; that in April 2018, she and the defendant agreed to purchase a dog together; that she located a breeder and was the contact person with the breeder; that on July 2, 2018, they purchased a Welsh Terrier puppy named Gryffin Shalloo; and that she reimbursed defendant for one-half of the cost of Gryffin. She had provided not less than 90 percent of Gryffin’s physical care, including feeding, walking, and grooming; that she has been solely responsible for the monetary cost of Gryffin’s food, treats, clothing and toys; that she has been solely responsible for any and all veterinary insurance and veterinary care for Gryffin, including requisite vaccinations, well care and sick care; and that since Gryffin was a puppy, he routinely visited with her parents at their home.

Plaintiff also alleges she ended her relationship with the defendant on January 12, 2020 and moved out of the parties’ apartment, leaving Gryffin with the defendant. Defendant had insisted on keeping the dog, but agreed to share the dog with her; that on January 28, 2020, defendant agreed to exchange the dog each week; that on January 30, 2020 the parties met with a therapist, in part to discuss their arrangement for sharing the dog, and it was agreed to exchange the dog every Sunday. Thereafter, on February 1, 9, 16, and 23, 2020, and on March 1, 2020, defendant released the dog into the care of her father either in the lobby of the defendant’s apartment building or at her parents’ home in Middletown, New Jersey. However, on March 8, 2020, defendant sent a text to her father advising him that he would no longer be exchanging Gryffin with the plaintiff, as it was his dog and he was keeping him.
Plaintiff also alleges: she is entitled to immediate possession of Gryffin; that a demand was made on her behalf by her counsel in letter dated June 3, 2020; that defendant’s counsel responded on June 16, 2020; that counsel for the parties exchanged emails between June 22, 2020 to June 27, 2020, and that defendant did not respond to the June 27, 2020 settlement offer.

Defendant in this pre-answer motion seeks to dismiss the complaint on the grounds of documentary evidence and failure to state a cause of action. Defendant argues that plaintiff Madison Shalloo is not the rightful owner of Gryffin, nor is she legally entitled to possess Gryffin; that indisputable documentary evidence clearly shows that Mr. Zarrour is the rightful owner of Gryffin; and the complaint fails to sufficiently plead a cause of action for replevin. It is further asserted that defendant Zarrour is the rightful and legal owner of Gryffin; that Zarrour “sourced” the breeder from whom Gryffin was purchased, coordinated the transport of Gryffin from the breeder to his apartment, and paid the breeder the full purchase and transportation price for Gryffin; and that when the parties ended their romantic relationship plaintiff moved out of defendant’s apartment and left Gryffin with him.
Plaintiff’s counsel, in opposition, asserts that defendant’s motion must be denied as a matter of law, as it does not meet the legal standards for summary judgment; that the documentary evidence submitted by defendant is insufficient to warrant dismissal of the action; that the complaint sufficiently states a cause of action for replevin; and that the best interests of Gryffin, or at least the best interests of all concerned, must be adjudicated.

Initially, as issue has not been joined, plaintiff’s counsel’s reference to the standards for summary judgment is clearly misplaced and shall be disregarded. “On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference” (S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 178 AD3d 977, 977-78 [2d Dept 2019], quoting Gran Condominium III Assn. v. Palomino, 78 AD3d 996 [2d Dept 2010]; see Leon v. Martinez, 84 NY2d 83, 87 [1994]). “‘To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’ ” (Burgos v. New York Presbyt. Hosp., 155 AD3d 598, 599 [2d Dept 2017], quoting Gould v. Decolator, 121 AD3d 845, 847 [2d Dept 2014]). “To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable” (JPMorgan Chase Bank, N.A. v. Klein, 178 AD3d 788, 790 [2d Dept 2019][internal quotations marks omitted]). ” ‘[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case’” (id. at 790, quoting Eisner v. Cusumano Constr., Inc., 132 AD.3d 940, 941 [2d Dept 2015]). Letters, emails, and affidavits are not documentary evidence (see McDonald v. O’Connor, 189 AD3d 1208 [2d Dept 2020]; Shah v. Mitra, 171 AD3d 971, 973 [2d Dept 2019]).

In considering a motion to dismiss a complaint for failure to state a cause of action, “the court must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading, accord the pleader the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (LG Funding, LLC v. United Senior Properties of Olathe, LLC, 181 AD3d 664 [2d Dept 2020], quoting V. Groppa Pools, Inc. v. Massello, 106 AD3d 722, 722 [2d Dept 2013]; see CPLR 3211[a][7]; Monaghan v. R.C. Diocese of Rockville Ctr., 165 AD3d 650, 652 [2d Dept 2018]; Dorce v. Gluck, 140 A.D.3d 1111, 1112[2d Dept 2016]). If the court considers evidentiary material, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied “‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it’” (Sokol v. Leader, 74 AD3d 1180, 1182 [2d Dept 2010], quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]; see also Ferrera v. City of New York, 164 AD3d 754, 755 [2d Dept 2018]).

The documentary evidence submitted herein in support of defendant’s motion is insufficient to establish that plaintiff is not the owner of the dog Gryffnn, or that she does not have a superior right of possession. Contrary to defendant’s counsel’s assertions the copy of a Certificate of Registry with United All Breed Registry and Pedigree Service — Blue Ribbon Division does not on its face establish that ownership of Gryffin was transferred by the breeder to Mr. Zarrour. In fact, this Certificate does not identify a breeder or prior owner of the dog. Furthermore, the subject Certificate naming Beleal Zarrour as the owner of Gryffin was issued on January 29, 2020, well after the dog was purchased in July 2018, and 13 days after the parties ended their relationship.

Defendant also submits a document containing information pertaining to Paypal credit payments made to Rachelle Tindle on June 10, 2018 in the sum of $200, on July 2, 2018 in the sum of $287, and on July 16, 2018 in the sum of $600, with a “ship to address” bearing defendant’s name and address. Said document does not identify Ms. Tindle as a dog breeder or as a prior owner of Gryffin, does not identify the purposes for which these payments were made, and does not identify what was being “shipped to” Zarrour. As such, this document is insufficient to establish that defendant Zarrour purchased Gryffin from Ms. Tindle.

Finally, defendant submits a copy a dog license issued by “NYC Health” to Beleal Zarrour for Gryffin that expired on January 29, 2021. Contrary to defendant’s counsel’s assertion, this document is not evidence of a dog license issued by the New York State Bureau of Veterinary and Pest Control Services. In New York City dog licenses are issued by the New York City Department of Health pursuant to section 161.04 of the New York City Health Code, upon application and payment of the required fee. At the most, the dog license submitted herein establishes that defendant Zarrour was issued a dog license for Gryffin by the City of New York Department of Health. However, as dog licenses are issued for periods of 1 to 5 years, said document on its face does not establish when the subject dog license was issued or that a dog license was issued to Zarrour at all times since Gryffin was first purchased in 2018.
The standard for recovery in a replevin action is a “superior possessory right in the chattel” (Pivar v. Graduate School of Figurative Art of N.Y. Academy of Art, 290 AD 2d 212, 213 [1st Dept 2002]). Although the complaint does not specifically recite the words “a superior right to possession” plaintiff’s allegations taken in their entirety assert such a claim. This Court therefore finds that the complaint states a cognizable claim for the repelvin of the dog named Gryffin (see generally, Raymond v. Lachmann, 264 AD2d 340 [1st Dept 1999]; Travis v. Murray, 42 Misc 3d 447 [Sup Ct, New York County 2013]; Finn v. Anderson, 64 Misc 3d 273, 275-77 [City Ct, Chautauqua County 2019]; Le Conte v. Lee, 35 Misc 3d 286 [Civ Ct, New York County 2011]; Webb v. Saunders v. Reeger, 50 Misc 2d 850 [Dist. Ct. Suffolk Co, 1966]; Papaspiridakos, 23 Misc 3d 1136 [A] [Sup Ct., Queens County 2009]).

In view of the foregoing, defendant’s motion to dismiss the complaint is denied. Defendant is directed to serve an answer within 20 days after the service of a copy of this order, together with notice of entry."

THE LAW OF PETS

Hewitt v. PALMER VETERINARY CLINIC, PC, 2020 NY Slip Op 5975 - NY: Court of Appeals October 22, 2020:

"Defendant Palmer Veterinary Clinic, PC treated Vanilla, a dog, for a paw injury at its clinic. That same day, plaintiff Marsha Hewitt brought her cat to the clinic for an examination. As plaintiff waited in the reception area, a veterinarian returned Vanilla to her owner in the waiting room; the dog had just undergone a medical procedure to remove a broken toenail. At some point after the veterinarian handed Vanilla's leash back to her owner, Vanilla saw plaintiff's cat in its carrier, slipped her collar and—in an apparent attempt to reach the cat—jumped at plaintiff from behind, grabbing her ponytail.

Several months later, plaintiff commenced the instant action against Palmer, alleging that she suffered injuries as a result of the incident.^[1] As relevant here, the complaint alleged that Palmer had a duty to provide a safe waiting room, that Palmer breached that duty by failing to exercise due care and by bringing an "agitated, distressed" dog into the waiting area, and that Palmer knew Vanilla had vicious propensities and was in an agitated and aggressive state. Palmer answered, generally denying the allegations and asserting various affirmative defenses, including that the clinic was entitled to have any liability apportioned between itself and the dog's owner under CPLR article 16.

Plaintiff subsequently filed supplemental bills of particulars, wherein she alleged that the clinic was negligent in bringing an agitated and aggressive dog into the waiting room and for failing to adjust the dog's collar to prevent it from getting loose. She also alleged—for the first time—that Palmer was negligent "in not giving an effective pain medication and/or anesthesia to the dog" and "in not following the standard of care [for] dogs after surgery." Thereafter, plaintiff moved to strike Palmer's CPLR article 16 defense, and Palmer cross-moved to strike plaintiff's supplemental bills of particulars.

Supreme Court agreed with Palmer that plaintiff's allegations regarding the lack of anesthesia and the alleged failure to follow the accepted standard of care for surgery "expand[ed] the theory for recovery based on the medical care that Palmer rendered to the dog, for which there was no notice in the [c]omplaint." Thus, Supreme Court struck those portions of the supplemental bills of particulars and denied the remainder of Palmer's motion. In addition, Supreme Court denied plaintiff's request to strike Palmer's apportionment defense.

Palmer eventually moved for summary judgment dismissing plaintiff's complaint in its entirety, asserting that it had no prior knowledge of Vanilla's vicious propensities and that such knowledge was a condition predicate to its liability. In support of its motion, Palmer proffered excerpts from the depositions of the veterinarian that treated Vanilla, the clinic's manager, the dog's owner, and plaintiff herself. Palmer asserted that these materials demonstrated that it lacked any notice of Vanilla's alleged vicious propensities.

Plaintiff opposed Palmer's motion for summary judgment and cross-moved for partial summary judgment, arguing that Palmer could be held liable in negligence despite a lack of knowledge of Vanilla's vicious propensities. In support of her motion, plaintiff submitted an affidavit from a veterinary behaviorist and anesthesiologist, who opined that the incident was foreseeable and avoidable through various measures and that Palmer failed to use due care to prevent plaintiff's injury. In response, Palmer submitted an affidavit by its veterinarian majority owner, who asserted that Vanilla's treatment and discharge did not deviate from the accepted standard of care.

Supreme Court granted Palmer's motion for summary judgment, reasoning that Palmer's liability was contingent upon it having had notice of vicious propensities in the same manner as that of a dog owner. Upon plaintiff's appeal, the Appellate Division affirmed, with one Justice dissenting in part (167 AD3d 1120 [3d Dept 2018]). The Appellate Division concluded that Palmer could not be held liable without notice of an animal's vicious propensities, relying on our precedent dismissing claims against animal owners in the absence of proof of such notice (see generally Doerr v Goldsmith, 25 NY3d 1114, 1116 [2015]; Bard v Jahnke, 6 NY3d 592, 599 [2006]; Collier v Zambito, 1 NY3d 444, 446 [2004]). The Appellate Division also rejected plaintiff's additional claims that the court erred by striking certain allegations from her bills of particulars and declining to strike Palmer's apportionment defense. We granted plaintiff leave to appeal, and now modify the order below by denying Palmer's motion for summary judgment.

Plaintiff does not dispute that, under existing precedent, an owner of a dog may be liable for injuries caused by that animal only when the owner had or should have had knowledge of the animal's vicious propensities (see Collier, 1 NY3d at 446). "Once such knowledge is established, an owner faces strict liability for the harm the animal causes as a result of those propensities" (id. at 448). We have explained that an "[o]wner's liability is determined solely by application of the [vicious propensity] rule," declining to permit a parallel negligence claim in such context (Bard, 6 NY3d at 599; see Petrone v Fernandez, 12 NY3d 546, 550 [2009]). Neither party in this case has asked us to overrule Bard, nor is that line of precedent concerning animal owners directly implicated here.^[2] Plaintiff argues, however, that this rule does not—and should not—apply to Palmer, a veterinary clinic. We agree.

The vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet-owners—such as landlords who rent to pet owners—under a negligence standard (see Strunk v Zoltanski, 62 NY2d 572 [1984]). However, we have recognized that other competing policies and contemporary social expectations may be at play in certain instances where domestic animals cause injuries. For example, we held that the owner of a farm animal "may be liable under ordinary tort-law principles" when that farm animal is allowed to stray from the property on which it is kept (Hastings v Sauve, 21 NY3d 122, 125-126 [2013]).

It is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. Indeed, here, a veterinarian introduced Vanilla into a purportedly crowded waiting room, where the dog was in close proximity to strangers and their pets—allegedly creating a volatile environment for an animal that had just undergone a medical procedure and may have been in pain. Palmer is in the business of treating animals and employs veterinarians equipped with specialized knowledge and experience concerning animal behavior—who, in turn, may be aware of, or may create, stressors giving rise to a substantial risk of aggressive behavior. With this knowledge, veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.

Therefore, we conclude that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff's claim. To be sure, "[w]e do not intend to suggest that [Palmer] would be subject to the same strict liability" as the owner of a domestic animal (Strunk, 62 NY2d at 575-576). However, we are satisfied that, under the circumstances presented here, a negligence claim may lie despite Palmer's lack of notice of Vanilla's vicious propensities. Furthermore, viewing the record in the light most favorable to plaintiff, as we must (see Vega v Restani Const. Corp., 18 NY3d 499, 503 [2012]), questions of fact exist as to whether the alleged injury to plaintiff was foreseeable, and whether Palmer took reasonable steps to discharge its duty of care. Thus, neither party was entitled to summary judgment.

....."

THE QUESTION OF THE DOG IS ONE OF FACT NOT OF LAW

The dog will get its day in court.

Introna v. Importuna, NYLJ October 26, 2020 Date filed: 2020-10-16 Court: Supreme Court, Richmond Judge: Justice Wayne Ozzi Case Number: 150038/2019:

"This is an action in which Plaintiff claims to have been injured as a result of an attack by Defendants’ dog, a pit bull named Capone. In brief, Plaintiff claims that while she was walking her own dog on the sidewalk in front of Defendants’ residence, she was attacked by the dog and knocked to the ground, sustaining various fractures and lacerations.

Defendants have made a prima facie showing of entitlement to judgment as a matter of law, by presenting evidence that there were no prior incidents involving this dog, no growling or prior complaints, and no knowledge of any vicious propensities.

Evidence tending to prove that a dog has vicious propensities may include a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, or a proclivity to act in a way that puts others at risk of harm. (see, Bard v. Jahnke, 6 NY 3d 592, 597).

In opposition, Plaintiff offers her previous testimony that she heard vicious growling as she passed Defendants’ house, that the dog broke its leash, and immediately broke through a hole in the fence and thereafter ran after Plaintiff and her dog. Plaintiff also points to testimony of Defendant Elizabeth Importuna that neither she nor her family members permit the dog to be let loose in the yard; they have to take him out on a leash notwithstanding that the yard is fenced in. On this point, she said that Defendants never take the dog for a walk outside of their yard. Also, there is testimony from Defendants’ son that two people are needed to take him for a walk.
Plaintiff has offered sufficient evidence in opposition to raise bona fide issues of fact. The dog’s growling, the manner in which he was restrained, as described hereinabove, a proclivity to put others at risk of harm by breaking his leash and breaking through a hole in the fence, are all indicia of vicious propensities (see, Hodgson-Romain v. Hunter, 72 AD 3d 741 (2d Dept.); Lina Thai Wong v. Largana, 170 AD 3d 700 (2d Dept.)). see also, Shuffian v. Garafola, 9 AD 2d 910 (2d Dept)). In particular, circumstances showing that the owner found it necessary to keep the dog tied up, and took precautions to restrain it, are further evidence of knowledge of the dog’s propensities (Lagoda v. Dorr, 28 AD 2d 208, 210, citing Brice v. Bauer 108 NY 428, 432, and Hahnke v. Friederich, 140 NY 224).

Although Defendant denied knowledge of the dog’s vicious propensities, asserting that there have been no prior incidents involving the dog, no prior complaints, and no growling, the evidence adduced convinces this Court that a jury may find that Defendants knew or should have known about it. Also, the parties provided conflicting testimony as to the nature of the contact between Plaintiff and the dog on the day in question (see, e.g. Lina Thai Wong v. Largana, supra.)

It must be remembered that the Court’s role in considering summary judgment motions is issue-finding, not issue-determination (Lui v. Park Ridge at Terryville Ass’n Inc., 196 AD 2d 579 (2d Dept.), and that the Court should not determine issues of credibility (Id.).

For these reasons, both the motion and cross-motion (Seq. 001, 002) are denied."

NEIGHBORS AS NUISANCE - AND THEIR DOGS

The lesson here is that every plaintiff who makes a claim may expect a counterclaim.

Allen v. Powers, NYLJ, May 28, 2019, Date filed: 2019-04-01, Court: City Court, Albany ,Judge: Judge Thomas Marcelle, Case Number: CV-526-18/CO

"Julianne Allen (“Allen” or “plaintiff”) sued her neighbors Jennifer and John Powers (“the Powers” or “defendants”) claiming that their two German Shepherds barked incessantly. The dogs’ constant barking at all hours interfered with Allen’s right to quiet use and enjoyment of her property — at least according to Allen’s Complaint. The Powers denied these allegations and interposed a counterclaim contending that Allen had repeatedly called municipal authorities with specious complaints. Allen’s continued and prolonged efforts were an attempt to make them move or have their landlord, David Bosko, evict them — so say the Powers in their counterclaim.Allen responded by asking the Court to dismiss the counterclaim for failing to state a cause of action. Allen argues that the Powers’ allegations sound like a claim for harassment. The problem with such a claim is that New York does not recognize a cause of action of harassment (Wells v. Town of Lenox, 110 AD3d 1192 [3d Dept 2013]). Moreover, the allegations, Allen argues, “do not appear to make a claim for any other known tort” (Plaintiff’s Memorandum of Law at p. 2). Allen concludes, therefore, that since the Powers have not pled a cognizable theory of liability, their case must be dismissed.

The counterclaim states that Allen fabricated complaints or made frivolous complaints to various City officials to prevent the Powers from the use and quiet enjoyment of their property. This is classic nuisance language and the court, thus, feels the obligation to consider a cause of action sounding in private nuisance. While the language mirrors the traditional terms of a private nuisance, the allegations do not. A classic nuisance complaint alleges that an unpleasant noise, odor or sight generated from a nearby tract of land renders the plaintiff’s occupation and enjoyment of their home physically uncomfortable (Crawford v. Tyrrell, 128 NY 314 [1891]). Here, the alleged blight is the intrusion of a bureaucratic horde to investigate the Powers’ compliance with municipal regulations — a markedly unusual claim.

This question is not easily resolved. “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’” (Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts, §86, p. 616 [5th ed. 1984]). The examination of the Powers’ claim starts with the elementary components of a private nuisance. Private nuisance is established by proof of intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property” (Schillaci v. Sarris, 997 N.Y.S.2d 504, 508 [NY App. Div. 2014]). Historically, the nuisance was produced by the wrongdoer on his own property (In re Chicago Flood Litig., 176 Ill 2d 179, 205 [Ill. 1997]).

Neither the court nor the parties could locate a New York precedent where a private nuisance was caused by an act unconnected with another’s use of property. Yet, nothing in the elementary formulation of a nuisance claim requires the action or inaction which causes the disturbance to arise from or be connected to the use of nearby land (see e.g., Copart Indus. v. Consolidated Edison Co. of NY, 41 NY2d 564, 570 [1977] [holding that the substantial interference with other's property need only be "caused by another's conduct in acting or failure to act"]). If this case were a statutory claim, the court would be at an impasse. Legislative enactments are inflexible. What a statute fails to command or to contemplate cannot be remedied by a court modifying the statutory language. Statues by their very nature leave gaps. No legislative body, no matter how wise, can conceive of every possible circumstance that constitutes a civil wrong.

However, private nuisance is a common law claim and the fantastic beauty of the common law is that it allows a court to shape, extend, narrow or adapt the law to the context of a controversy between parties. So, the question becomes whether the court should venture into new grounds. To assist in this endeavor, the court will examine three precedents from sister states: Macca v. Gen. Tel. Co. of Nw., 262 Or 414 (Or. 1972); Brillhardt v. Ben Tipp, Inc., 48 Wash 2d 722 (Wash 1956) and Schiller v. Mitchell, 357 Ill App3d 435 (Ill App Ct 2005).

In Brillhardt, a company misprinted its telephone number on sales slips. The number belonged to the plaintiff, a realtor. After the misprint, plaintiff was frequented with calls for the defendant; fed up with the calls from people not looking for her, she sued defendant for nuisance. Thus, the nuisance in Brillhardt, the repeated calls, was not caused by defendant, but by people who were attempting to call the defendant. Thus, the nuisance was not caused by the use of defendant’s property. Nevertheless, the Washington Supreme Court found the repeated calls violated “[plaintiff's] right to enjoy her property without unreasonable interference” (i.e., a private nuisance), entitling her to damages (Id at 727).

Macca v. Gen. Tel. Co. of Nw., 262 Or 414 (Or. 1972) dealt with a similar issue as Brillhardt. In Macca, a phonebook company erroneously listed plaintiff’s telephone number as “after hours” telephone number for a floral shop. This error generated numerous telephone calls to plaintiff. The court noted that nuisance “includes the disturbance of the comfort or convenience of the occupant of the land” (Macca, 262 Or. at 419). The Oregon Supreme Court analogized repeated phone calls to latter “unpleasant odors, smoke or dust, [and] loud noises” (Id). The court concluded that the phone company’s misprint resulted in invasion of plaintiff’s right to enjoy her property without unreasonable interference and she could recover damages (Id at 420).

Finally, Schiller v. Mitchell, 357 Ill App3d 435 (Ill App Ct 2005) involved the defendant making continuous calls to the police and other governmental agencies to complain about plaintiffs. Plaintiffs alleged that they were obliged to respond to calls and personal investigatory visits from government officials that had been initiated upon the demand of the defendant. This, plaintiffs averred, prevented them from the enjoyment of their home. Plaintiffs claimed that defendant’s acts constituted a private nuisance. The Illinois Court disagreed, holding that to state a cause of action for private nuisance it is necessary to allege a physical invasion of the plaintiff’s property. According to the Illinois court, the calls and visits by the government did not constitute a physical invasion, and thus plaintiffs had no case.

Perhaps the best way to analyze the case and to reconcile these opinions is to return to the origins of common law nuisance. The common law’s protection against unpleasant sounds, smells and sights were to allow owners peace and repose in their homes. Just as the industrialization of the United States meant the proliferation of odors and noise, and the invention of the telephone allowed the ringing to breach the solitude and with it the common laws courts from a right to be free from such intrusions (Brillhardt and Macca). Today, the administrative state has mushroomed and with it, a swarm of regulations. These regulations allow neighbors to sic municipal bureaucrats on each other. Authorities must dutifully undertake to examine each complaint which corresponds to visits by police and other members of the executive branch of government to a home owner. Each visit causes angst and repeated visits, when those visits are but a contrivance by a neighbor, leaves a homeowner in perpetual agitation — which creates a nuisance and robs the homeowner of solitude. Such repeatedly intrusions, when they are unjustified because of a neighbor’s specious claims, violated the homeowners’ right to the quiet enjoyment of their home — and correspondingly, give rise to a private cause of action for nuisance.1

Moreover, the Powers’ allegations here are directly connected to their ability to continue the use and enjoyment of their property. The Powers contend that all of Allen’s calls to authorities were an attempt by her to have them removed from their home by their landlord Bosko. This provides a direct connection to the use of the property. Thus, the court is convinced that the Powers’ counterclaim alleges a private nuisance.

Of course, here, the counterclaim is short on specifics. The question of nuisance will turn on the number of complaints, the frequency of the complaints, the redundancy of complaints, and the legitimacy of complaints. These facts will be needed to sustain a claim at trial or to survive a summary judgment motion. But for the current purpose, the allegations contained in the counterclaim suffice to plead a case in private nuisance.

Footnotes

1. The court, therefore, must disagree with Schiller, 357 Ill App3d 435."