MORE ON THE DEVELOPING PET CUSTODY LAW

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

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

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

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

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

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

PETS, REPLEVIN AND INJUNCTIONS

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

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

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

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

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

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

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

However, New York courts have developed a separate analysis for determining "superior right to possessory interest" where a domestic pet is the personal property at issue. In Raymond v Lachmann (264 AD2d 340 [1st Dept 1999]), the court, taking into consideration "[t]he cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily," applied a "best for all concerned" analysis in determining the ownership of a ten-year-old cat. In Travis v Murray, a matrimonial dispute, the court refined the "best for all concerned" analysis, by taking "[i]nto consideration, and [giving] paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue" (Travis, 42 Misc 3d at 455). This approach takes into consideration "[i]ntangible factors such as why each party would benefit from having the dog in his or her life and why the dog has a better chance of prospering, loving and being loved in the care of one party or the other" and which party is in the best position to meet the dog's daily physical and emotional needs (Mitchell v Snider, 51 Misc 3d 1229[A] [Civ Ct, New York County 2016]).

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

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

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

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."

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."

CAT LAW - THE EVOLVING LAW OF PETS

Finn v. Anderson, NYLJ May 14, 2019, Date filed: 2019-04-30, Court: City Court, Chautauqua, Judge: Judge Frederick Larson, Case Number: CV-000108-19/JA:

"FACTS
 This is a replevin action requiring the Court to determine ownership/custody of a cat. Plaintiffs moved to Wescott Street in the City of Jamestown in September of 2018. Around that time, the Plaintiffs noticed a white cat frequently wandering onto their property looking for food. Plaintiffs state that the cat was quite thin, and had no identification tags. The Plaintiffs assumed that the cat was a stray, named him “Sylvester”, and began feeding the cat in the entry-way of their home. The Plaintiffs fed Sylvester frequently for several months before bringing him into their home. The Plaintiffs took the cat to the veterinarian on January 14, 2019 where he was given shots, treated for fleas, de-wormed, and micro-chipped. The veterinary report states that Sylvester had not been previously micro-chipped, but had previously been neutered prior to January 14, 2019. Plaintiff states that Plaintiff reported Sylvester to be 4-years-old. After having been an indoor cat since January 14, Sylvester accidentally got out of the house on February 2, 2019. Plaintiff’s asked their neighbors, who lived across the street, if they had seen Sylvester. The neighbor stated that Sylvester belonged to his girlfriend, the Defendant Ashlynn Anderson, and that she had taken the cat back. The Defendant states that the cat in question is named Marshmallow. The Defendant testified that Marshmallow was given to her by a co-worker in 2009. Since 2009, Marshmallow has lived in her home on Westcott Street, where the Defendant has resided for about 25 years. The Defendant had Marshmallow neutered as a kitten, but beside that visit, the Defendant has not taken him to the vet in the ten years that she has owned him. However, the Defendant did take Marshmallow for a vet “checkup” following the commencement of this action and after speaking with an attorney. The Defendant also testified that Marshmallow is and “indoor-outdoor” cat. Therefore, he may enter and exit the Defendant’s home using a cat-door whenever he chooses. The Defendant stated that at least three of the neighbors are all familiar with Marshmallow, and often feed him treats when he wanders onto their properties. Additionally, the Defendant testified that she has a second cat that also operates in this way, living both inside and outside the Defendant’s home to some degree. Based on these habits, the Defendant was not immediately concerned with Marshmallow’s failure to return home in January of 2019. The Defendant admitted that Marshmallow had absconded on previous occasions and was missing for a week or two, but eventually returned to her residence. Defendant states that she looked for Marshmallow around the neighborhood a couple weeks after his disappearance without success. The Defendant stated that she did not inquire with the Plaintiff’s regarding Marshmallow’s whereabouts. Finally, the Defendant’s boyfriend found Marshmallow outside on February 2, 2019, and Defendant repossessed Marshmallow.

Plaintiff argues that she is the true owner of the cat based on the lack of identification, overall neglected appearance of the cat, and the effort and money expended to feed and treat the cat for any illness. Defendant argues that she has been the rightful owner of the cat for ten years. Although the cat has lived and “indoor-outdoor” lifestyle, Defendant states that she has fed him and housed him for the duration of her ownership of him. Both parties claim to love the cat, and desire him to be a part of their family. Plaintiff has filed this Replevin Action in order to recover possession of Sylvester (a.k.a. Marshmallow) from her neighbor, the Defendant.

DISCUSSION
Replevin is a remedy employed to determine “the right of possession as well as recover specific, identifiable items of personal property”. See Practice Commentary following CPLR §7101; TAP Manutencao e Engenharia Brasil S.A. v. Intern. Aerospace Group, Corp., 127 F. Supp. 3d 202 (S.D. NY 2015); Heckl v. Walsh, 122 AD3d 1252, 996 N.Y.S.2d 413 (4th Dep’t 2014); see also 23 NY Jur Conversion, and Action for Recovery of Chattel §89. The term “personal property” includes chattels, and the term “chattel” refers to “things that can be used, handled, or transported, as horses, carriages, furniture, machinery, tools, and numberless objects to be seen about us in everyday life, the value of which is in the possession of the thing itself.” Niles v. Mathusa, 162 NY 546, 57 N.E. 184 (1900); see also 23 NY Jur Conversion, and Action for Recovery of Chattel §89.

Under New York Law, irrespective of how strongly people feel about their pets, cats and dogs have been viewed as “personal property — sometimes referred to as “chattel” — just like a car or a table”. Travis v. Murray, 42 Misc 3d 447, 452, 977 N.Y.S.2d 621, 625 (Sup. Ct.); 2013 NY Slip Op 23405,
5; see also Mullaly v. People, 86 NY 365 [1881]; Schrage v. Hatzlacha Cab Corp., 13 AD3d 150, 788 NYS2d 4 [1st Dept 2004]; Rowan v. Sussdorff, 147 App Div 673, 132 NYS 550 [2d Dept 1911]; ATM One, LLC v. Albano, 2001 NY Misc. LEXIS 910, 2001 NY Slip Op 50103[U] [Nassau Dist Ct 2001]). The standard for recovery in a replevin action being “superior possessory right in the chattel” Pivar v. Graduate School of Figurative Art of NY Academy of Art, 290 AD2d 212, 213, 735 NYS2d 522 [1st Dept 2002]. Therefore, it is “the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative.” Travis v. Murray, 2013 NY Slip Op 23405, 5, 42 Misc 3d 447, 453, 977 N.Y.S.2d 621, 626 (Sup. Ct.).

Nevertheless, there has been a slow evolution in New York case law towards the “dechattelization” of household pets, and away from the “overly reductionist and utilitarian” view. Id. New York Courts, as well as most Courts across the United States, are unwilling to go so far as to adopt a child custody or “best interests” standard. Travis v. Murray, 42 Misc 3d 447, 456; see generally Desanctis v. Pritchard, 2002 PA Super 221, 803 A2d 230, 232 [Pa Super Ct 2002]; Clark v. McGinnis (298 P3d 1137 [Kan Ct App 2013]; Morgan v. Kroupa, 167 Vt. 99, 702 A.2d 630 (1997); Houseman v. Dare, 405 N.J. Super. 538, 966 A.2d 24 (Super. Ct. App. Div. 2009).

The “best interests” standard has been rejected for several reasons. First, it is difficult if not impossible to truly determine what is in a pet’s best interests as there is no proven or practical means of gauging an animal’s happiness or “its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.” Travis v. Murray, 2013 NY Slip Op 23405, 9-10, 42 Misc 3d 447, 459, 977 N.Y.S.2d 621, 630-31 (Sup. Ct.). The subjective factors that are “key to a best interests analysis in child custody — particularly those concerning a child’s feelings or perceptions as evidenced by statements, conduct and forensic evaluations — are, for the most part, unascertainable when the subject is an animal rather than a human.” Id. Second, even if it were possible to ascertain a pet’s feelings, and even if a Court could make a finding of a pet’s best interests, it is “highly questionable whether significant resources should be expended and substantial time spent on such endeavors…[t]o allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children”. Id.

Where a “best interests” standard cannot reasonably be applied, and a strict property analysis is neither desirable nor appropriate, New York Courts have developed a “quasi-interests based standard” that “takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.” Travis v. Murray, 42 Misc 3d 447, 455; see also Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. The standard that has been adopted by some recent Court Decisions in New York is the “best for all concerned” standard. Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]; Travis v. Murray, 42 Misc 3d 447, 455.

In accordance with that standard, this Court will analyze proof offered by each party that they will benefit from having the animal in their life, and why the animal has a better chance of living, prospering, loving and being loved in their care. Travis v. Murray, 2013 NY Slip Op 23405,
10, 42 Misc 3d 447, 460, 977 N.Y.S.2d 621, 631 (Sup. Ct.); see also Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. In this way, the Court hopes to take the intangible needs and interests of a pet into account along with the ordinary indicia of ownership or right to possession (title, purchase, gift, expenses, etc.). Id.

DECISION
The decision in Travis v. Murray is a good starting point on the evolution of the law’s treatment of ownership or custody of pets over the last 100 years. Travis v. Murray, 42 Misc 3d 447, 455. Our perception of pets has clearly shifted over time away from a strict property view and towards a more humanistic and interest based view. Id.

Why Shouldn’t the Courts Determine Custody Based on the “Best Interests” of a Pet?
This Court is not persuaded that a court could not evaluate the “best interests” of a pet. Instead, it is the opinion of this Court, that the reason not to use a strict “best interests” standard is the fundamental difference between a human child and a domesticated dog or cat. The “best interests” of the child standard is based on the implicit understanding that the ultimate goal of the Courts is to ensure that the child is nurtured into independent adulthood. It is the future adult that must be the Court’s primary consideration, and not the interests of the father or mother. However, in the case of a pet cat or dog, the pet never becomes an independent being apart from the owner. So, if a Court chooses not to apply a property-based standard, and a “best interests of the pet” standard is inappropriate, what is the standard that should be applied in an action to recover custody and possession of a beloved pet?

While it appears the Appellate Division, Fourth Department, has not addressed the issue, this Court concludes that it is time to declare that a pet should no longer be considered “personal property” like a table or car. The Appellate Division, First Department, in a one-paragraph analysis of the contested ownership and possession of 10-year-old Lovey the cat, utilized a test of what was “best for all concerned”. Raymond v. Lachmann (264 AD2d 340, 695 NYS2d 308 [1st Dept 1999]. Those concerned were the two litigants, and Lovey the cat. Id.

In the instant case, this Court will apply a “best interests of all concerned” standard to the facts and testimony presented at the hearing. On the one hand, the Defendant in this replevin action has owned and possessed Sylvester (aka Marshmallow) for 10 years. The Defendant admitted that she had has only taken Sylvester (aka Marshmallow) to the vet once in that 10-year period (to have him spayed/neutered when he was a kitten). Additionally, the Defendant allowed Sylvester (aka Marshmallow) to come and go in the neighborhood, and the Defendant was aware that Sylvester (aka Marshmallow) was consistently fed by at least three neighbors. However, there is no real evidence of “abuse or neglect” of Sylvester (aka Marshmallow). The Court notes that Sylvester’s (aka Marshmallow’s) second ever visit to a vet via the Defendant only came about after the Defendant consulted with an attorney regarding defense of the instant replevin action. The Defendant testified that the cat has always been in decent health, and that her children are emotionally attached to Sylvester (aka Marshmallow).

On the other hand, the Plaintiffs’ testified that Sylvester (aka Marshmallow) began coming to their home begging for food immediately when they moved to Wescott Street in September of 2018. The Plaintiffs state that they initially let the cat into the entry-way of their home to feed him. The Plaintiffs believed the cat to be a stray. On or about January 14, 2019, the Plaintiffs took Sylvester (aka Marshmallow) into their home, and decided to make him an indoor cat. The Plaintiff’s provided Sylvester (aka Marshmallow) with veterinary care including rabies and FURCP vaccine (a vaccine against three potentially deadly airborne viruses). The Court notes that Plaintiffs believed Sylvester (aka Marshmallow) to be a 4-yearold cat at the time of the vet visit in January 2019. This suggests that the cat was in good health, given the fact that the cat was in fact 10 years old. On February 2, 2019, Sylvester (aka Marshmallow) got out of the Plaintiffs’ home and ended up across the street at the home of the Defendant.

Best Interests of All Concerned
In a very close decision, the Court finds that the “best interests of all concerned” test leaves the custody of the cat, Sylvester (aka Marshmallow), with the Defendant.

The Court is convinced that Plaintiffs were and are genuinely concerned for Sylvester’s (aka Marshmallow’s) welfare and spent time and money on his care. While the Court is perplexed that the Defendant never inquired with the Plaintiffs regarding the cat’s whereabouts between January 14, 2019 and February 2, 2019, the Defendant has been responsible for the care and custody of Sylvester (aka Marshmallow) for the last decade. Additionally, the Defendant has children who have some emotional attachment to the cat. Finally, when Sylvester (aka Marshmallow) got out of the Plaintiffs’ home he may have “voted with his feet” to return to his home of ten years with the Defendant and her children.

Therefore, based an analysis of the law and the evidence presented at the hearing, this Court finds in favor of the Defendant, and the Plaintiff’s claim is hereby dismissed"