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."

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."

ON EMOTIONAL SUPPORT ANIMALS

For NYC tenants, this case has a happy ending for the dog owner because even though she failed to prove it was a support animal, the landlord failed to abide by the 3 month limitation of Section 27-2009.1(b) of the Administrative Code and thus waived the no-pet clause.

Westchester Gardens L.P. v Vargas 2019 NY Slip Op 29058, Decided on March 5, 2019, Civil Court Of The City Of New York, Bronx ,County Weissman, J:

"In Crossroads Apartments Associates v. Kenneth LeBoo, 152 Misc 2d 830 (City Ct, City of Rochester, NY, 1991) the Court succinctly set forth the law on no pet clauses in New York, [*2]saying "New York Courts have long recognized the validity of "no-pet clauses" in leases, and harboring a pet when a lease contains a "no-pet clause" constitutes a substantial breach of the lease agreement (Knolls Cooperative Section No. II v. Cashman, 14 NY2d 579, 248 N.Y.S.2d 875, 198 N.E.2d 255; Kingsview Homes Inc. v. Jarvis, 48 AD2d 881, 369 N.Y.S.2d 201; Lincoln Cooperative Apts., Inc. v. Zaifert, 23 AD2d 796, 258 N.Y.S.2d 903; East River Housing Corp. v. Matonis, 34 AD2d 937, 312 N.Y.S.2d 461; Pollack v. J.A. Green Construction Corp., 40 AD2d 996, 338 N.Y.S.2d 486). ... Landlords may also selectively enforce the "no-pet clause" (Megalopolis Property Assoc. v. Buvron, 121 Misc 2d 662, 468 N.Y.S.2d 819; 1036 Park Corp. v. Rubin, 92 AD2d 452, 458 N.Y.S.2d 595; Trump Village Section 3, Inc. v. Moore, 84 AD2d 812, 444 N.Y.S.2d 134)." (at 832). Thus petitioner was well within its right to institute the within proceeding.

Respondent claims that the dog is necessary for her well being, and for her to enjoy the use of her apartment. In support thereof she presented a letter from Urban Health Plan, Inc., signed by Claire Delgado, LCSW, stating respondent was under their care since May 16, 2018. The letter is dated May 31, 2018, indicates respondent suffered from "adjustment disorder with anxiety and unresolved grief", and "recommended that respondent be allowed to reside with her pet (1 dog) which she requires for emotional support. Please fulfill the patient's request in order to avoid exacerbation of her medical conditions." Respondent did not call any professional witness from Urban Health Plan, Inc., or anywhere else, to testify in her behalf. Thus the Court has only respondent's testimony and Ms. Delgado's letter to support her claim that the dog is an emotional support animal. She is asking this Court to find that petitioner must make a reasonable accommodation for her in that she needs the dog in order for her to enjoy the use of her apartment.

A reasonable accommodation may be required by the State's Human Rights Law if respondent can establish a need. The burden is on the party requesting the reasonable accommodation. One Overlook Avenue Corp. v. New York State Division of Human Rights, 8 AD3d 286 (ad2d, 2004), "To show that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, the complainant must demonstrate that her son was disabled, that he was otherwise qualified for the tenancy, that because of his disability it was necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations can be made to allow him to keep the dog. Here, the complainant failed to demonstrate through either medical or psychological expert testimony or evidence that her son required a dog in order for him to use and enjoy the apartment. Accordingly, the respondent's determination was not supported by substantial evidence." (at 287, citations omitted). See also 105 Northgate Cooperative, et al. v. Donaldson, 54 AD3d 414 (AD2d Dept., 2008), and Lindsay Park Housing Corp., et al. v. New York State Division of Human Rights, et al., 56 AD3d 477 (AD2d Dept, 2008) "The Human Rights Law provides that it is an unlawful discriminatory practice to 'refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling' (Executive Law § 296[18][2] ). To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment, and the building [*3]owner refuses to make such an accommodation. ..." (at 478, citations omitted).

The Court finds that respondent has failed to carry the burden of establishing that the dog is an emotional support animal necessary for her to enjoy the use of her apartment. Part of this determination is the fact that respondent lied when she, allegedly, notified petitioner that the dog was in her apartment by letter dated November 10, 2013 (respondent's exhibit 1 admitted into evidence without objection) only every other weekend while her sister, who traveled for work every other weekend, was traveling, claiming the dog was the sisters dog and she was only dog-sitting. She also claimed in her testimony the dog was actually with her since 2012, when she lived in another apartment in the same building...."