Opinion
031422/09.
Decided December 2, 2009.
William J. Muller III, Esq., Town of Hempstead Attorney for the Plaintiff.
Angelique H. Pabon-Cruz, Esq., Attorney for Defendant, Jerome Baines.
Lisa M. Rossi, Esq., Attorney for Defendant, Valerie Lindsey.
The Town of Hempstead has commenced this dangerous dog proceeding pursuant to Agriculture and Markets Law § 121, against the respondents, Lindsay, Valerie and Jerome Baines. This charge stems out of an incident which occurred on August 1, 2009 against Mr. Michael Anglin, the respondents' neighbor. Pursuant to Agriculture and Markets Law § 121, a hearing was held on October 6, 2009 and continued on October 8, 2009 to determine whether the respondents' three (3) Rottweiler dogs are dangerous within the meaning of the statute.
The Court heard persuasive testimony of the victim and viewed startling and graphic photographs of the aftermath of this attack. After viewing the credible evidence and photographs which were highly corroborative of the victim's testimony, the Court accredited the following facts:
On August 1, 2009 the complaining witness, Mr. Anglin, was washing his car in his own driveway when his next door neighbor exited her home. As she exited, three adult Rottweilers identified as Tyson, Jada and Tiaja, ran out of the house and chased a male who had apparently been visiting the woman next door. That individual seemed to be frightened by the dogs and in order to avoid what seemed to have been an imminent attack, jumped upon a vehicle owned by Mr. Anglin.
At that time, the same three dogs turned their attention to Mr. Anglin. He, too, jumped on top of his car to avoid what seemed to be an attack on his person. However, this time the dogs alighted the vehicle he had been washing and one or more of the dogs bit him on numerous parts of his body. It was only after he was perched on top of his vehicle that the dogs retreated to the respondent's home.
The Court was able to observe a wound on the victim's hand and photographs were admitted into evidence depicting two large and seemingly deep penetrating wounds on the victim's thigh. Other photographs were admitted into evidence showing that pieces of human flesh and fatty tissue had been ripped from the victim's body. Furthermore, it is apparent that blood was dripping from the roof of the vehicle and down the windshield. Moreover, it is apparent to the Court that the blood was that of the victim. It should also be noted that paw prints were depicted on the hood of the freshly washed car.
Mr. Anglin testified that the respondents' dogs had chased after his children in the past and in fact Mr. Anglin's wife was chased into her home after one of the respondents had yelled to her that she could not hold one of her dogs back. It should be stated that these incidents were never reported to any authority and the Court is not accrediting any great weight to this testimony.
However, the Court is convinced by clear and convincing evidence that this attack was not provoked by Mr. Anglin. The respondents' brief alleges that Mr. Anglin was engaging in behavior that could be construed by the dogs as physically threatening and further that Mr. Anglin was tormenting, abusing, assaulting or physically threatening the dogs. Respondent's counsel, however, misstates the law when she contends that the activity of the victim should be examined from the perspective of the dog, to wit, interpreted by the dog as threatening behavior. The standard is whether a rational person could assume that the behavior of the victim could reasonably believe that his actions could be anticipated to be interpreted as violent, threatening or tormenting the subject dog or dogs. In this case, the victim was merely washing his car, on his own property.
The Court must, in this case, take Judicial Notice that dogs are pack animals and that notwithstanding the fact that the victim is not sure which or how many of the subject Rottweilers actually bit him, he is certain that they all chased him and all acted together in the attack.
On the record before the Court, the Court finds that there is clear and convincing evidence that the attack on Mr. Anglin by his neighbor's dogs was unjustified and unprovoked. Additionally, the Court finds by clear and convincing evidence, the subject dogs to be dangerous dogs within the meaning of Agriculture and Markets Law § 121.
Effective December 15, 2004, Agriculture and Markets Law § 121 and related statutes were extensively amended. First, the definition of a "dangerous dog" was expanded to include: any dog which (i) without justification attacks a person, companion animal, farm animal, or domestic animal, and causes physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more persons, companion animals, farm animals, or domestic animals or (iii) without justification attacks a service dog, guide dog, or hearing dog and causes physical injury or death".
For example, unlike the prior version of the statute, the new version allows a determination that a dog is dangerous when it attacks a "companion animal". A companion animal is defined by Agriculture and Markets Law § 350(5) as "any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal".
Once a judge or justice determines that a dog is dangerous by clear and convincing evidence then, pursuant to the new version of Agriculture and Markets Law § 121, the judge or justice shall . . . order neutering or spaying of the dog, microchipping of the dog and one or more of the following as deemed appropriate under the circumstances and as deemed necessary for the protection of the public:
2(a)evaluation of the dog by a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert. The owner of the dog shall be responsible for all costs associated with evaluations and training ordered under this section;
(b)secure, humane confinement of the dog for a period of time and in a manner deemed appropriate by the court but in all instances in a manner designed to: (1) prevent escape of the dog, (2) protect the public from unauthorized contact with the dog, and (3) to protect the dog from the elements pursuant to section [353-b] of this chapter. Such confinement shall not include lengthy periods of tying or chaining;
(c)restraint of the dog on a leash by an adult of at least twenty-one years of age whenever the dog is on public premises;
(d)muzzling the dog whenever it is on public premises in a manner that will prevent it from biting any person or animal, but that shall not injure the dog or interfere with its vision or respiration; or
(e)maintenance of a liability insurance policy in an amount determined by the court, but in no event in excess of one hundred thousand dollars for personal injury or death resulting from an attack by such dangerous dog (Agriculture and Markets Law § 121[2]).
Thus, pursuant to this section, once a Court determines a dog to be "dangerous", the aforementioned conditions must be imposed by the Court. In addition to these requirements, Agriculture and Markets Law § 121 continues to provide that under certain circumstances humane euthanasia or permanent confinement of a dog may also be directed.
The relevant portions of New York Agriculture and Markets Law § 121 provide:
3. Upon finding that a dog is dangerous, the judge or justice may order humane euthanasia or permanent confinement of the dog if one of the following aggravating circumstances is established at the judicial hearing held pursuant to subdivision two of this section:
(a) the dog, without justification, attacked a person causing serious physical injury or death; or
(b) the dog has a known vicious propensity as evidence by a previous unjustified attack on a person, which caused serious physical injury or death; or
(c) the dog, without justification, caused serious physical injury or death to a companion animal, farm animal, or domestic animal, and has, in the past two years, caused unjustified physical injury or death to a companion or farm animal as evidenced by a dangerous dog' finding pursuant to the provisions of this section . . .".
Thus, the statute makes it clear that prior to euthanasia or permanent confinement, aggravating circumstances must be established at the judicial hearing.
In the instant case, the Town of Hempstead seeks to have all three dogs humanely euthanized. The Town emphasizes that the less drastic measures are not appropriate in this matter. The Town of Hempstead also contends that the injuries suffered by Mr. Anglin are "serious injuries" as that term is defined in New York Agriculture and Markets Law § 108(29).
The respondents' attorney argues that less drastic measures are appropriate in this matter, as Mr. Anglin has not suffered a serious physical injury as defined by statute and New York case law.
An examination of the statute reveals that none of the aggravating circumstances are present in this case which would justify an order directing the euthanization of the dogs. The first aggravating circumstance is that the dog unjustifiably attacked a person, causing "serious physical injury or death" (Agriculture and Markets Law § 121[a]).
Serious physical injury as defined in Agriculture and Markets Law § 108(29) is "physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ". The definition of serious physical injury in PL § 10.10(10) is essentially the same.
In People v. Jornov , 65 AD3d 363 , 881 NYS2d 776 [4th Dept 2009], the Court found that a victim who sustained a bite wound to his right leg, for which he was prescribed antibiotics, and a torn hamstring for which he was instructed to take anti-inflammatory medication and attend physical therapy for six to eight weeks, did not suffer a serious physical injury within the meaning of the statute. The Court stated that there was no evidence that the victim sustained "protracted impairment of health" as a result of the incident.
In discussing the various remedies that were available to the Court, and the effects of the amendments to the statute, the Court stated:
Thus, unlike the prior version of the statute, a judge or justice may not automatically direct humane euthanasia or permanent confinement of a dangerous dog ( see Agriculture and Markets Law § 121). The various memoranda in support of the new legislation indicate that the new version of the statute provides:
judges and justices with greater leeway in determining the proper remedy beyond the previously mandated remedy of humane euthanasia or permanent confinement ( see NY Assembly Mem. in Support, Bill Jacket, L. 2004, ch. 392, § 3, 2004 McKinney's Session Laws of NY, at 1893-1894). While we agree that the new version of the statute provides a court with options other than humane euthanasia and permanent confinement upon determining that a dog is dangerous, in our view the new version actually diminishes the discretion of a court in directing humane euthanasia or permanent confinement, even when it is patently clear that either would be appropriate.
A different result, however, was reached in the case of Town of Southampton v. Ciuzio, 19 Misc 3d 140 (a), 866 NYS2d 96. In that case, the Court found the victim to have suffered a serious physical injury. There, the Court held that "substantial swelling and scarring associated with injury to the victim's cheek, neck and ear coupled with the victim's unchallenged testimony which established that she suffered long term hearing loss constituted a serious or protracted disfigurement and impairment of the function of a bodily organ. Hence the aggravating circumstance of the infliction of serious physical injury was established."
Based on the evidence before this Court, the undersigned concludes that the injuries sustained by Mr. Anglin do not meet that threshold. The testimony revealed that he sustained a bite wound to his right leg, for which he was prescribed antibiotics, and small bite to his hand. Mr. Anglin also missed several days of work because of this injury.
There is no doubt that Mr. Anglin's injuries caused him pain and suffering. The Court viewed the photographs which clearly indicate that physical injuries are present. However, the standard is not whether Mr. Anglin's thigh and hand were injured, but rather whether those injuries rise to the level of a serious injury' as that term is defined in Agriculture and Markets Law and New York case law.
There was no evidence that Mr. Anglin sustained "protracted impairment of health" a "protracted disfigurement" or a "protracted loss or impairment of a function of any bodily organ" as a result of August 1, 2009 incident (Agriculture and Markets Law § 108; see People v. Horton , 9 AD3d 503 , 504-505, 780 NYS2d 654, lv. denied 3 NY3d 707, 785 NYS2d 35; People v. Phillip, 279 AD2d 802, 803-804, 718 NYS2d 727, lv. denied 96 NY2d 905, 730 NYS2d 803). Accordingly, the first aggravating circumstance has not been met.
The second aggravating circumstance is that "the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death" (Agriculture and Markets Law § 121[b]). That aggravating circumstance also was not established at the hearing. Although a witness testified that one or several of the respondents' dogs had once chased Mr. Anglin's children and wife such that they ran back inside their home, that witness did not sustain any injuries as a result of that incident, let alone a serious physical injury.
Finally, the third aggravating circumstance is that the dog unjustifiably causes "serious physical injury or death to a companion animal", is inapplicable in this case.
Because none of the three aggravating circumstances exists here, the Court lacks the authority to direct humane euthanasia or permanent confinement, despite its strong belief that euthanization is the appropriate remedy.
Thus, in accordance with Agriculture and Markets Law § 121, the Court hereby ORDERS that the respondents comply with the following conditions:
It is ORDERED that: all three dogs, To Wit: Tyson, Jada and Tiaja, shall be either neutered or spade (whichever is applicable) and each dog shall be fitted with a microchipping device; and
It is ORDERED that: the immediate evaluation of the all three (3) dogs, To Wit: Tyson, Jada and Tiaja by a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert. The owner of the dog shall be responsible for all costs associated with evaluations and training ordered under this section; and
It is ORDERED that: restraint of the dogs on a leash by an adult of at least twenty-one years of age whenever the dogs are on public premises; and
It is ORDERED that: muzzling the dogs whenever they are on public premises in a manner that will prevent the dogs from biting any person or animal, but that shall not injure the dogs or interfere with its vision or respiration; and
It is ORDERED that: the respondents' take all necessary steps to comply with Agriculture and Markets Law § 121 which requires owners of dangerous dogs to report the presence of a dangerous dog pursuant to section two hundred nine-cc of the General Municipal Law.
It is ORDERED that the respondents maintain a liability insurance policy in an amount of one hundred thousand dollars for personal injury or death resulting from an attack by such dangerous dog.
It is further ORDERED and directed that The Town Attorney of Hempstead, New York, shall monitor the strict performance of the Order of this Court. Only upon compliance with the terms of this Order may the dogs be released.
FAILURE TO COMPLY WITH ANY OF THESE CONDITIONS WILL RESULT IN RESPONDENTS BEING IN VIOLATION OF A COURT ORDER.