Opinion
XXXXX
07-27-2020
TOWN OF OGDEN, Petitioner v. Jeremy WOLF, Respondent.
Mathew Albert, Esq., for the Respondent Keith O'Toole, for the Petitioner
Mathew Albert, Esq., for the Respondent
Keith O'Toole, for the Petitioner
David A. Murante, J.
Procedural History
This proceeding was initiated by the Town of Ogden, pursuant to § 123 of the Agricultural and Markets Law, seeking an order declaring the dog, Vanessa, dangerous. A hearing to address the issues presented by this matter was held over the course two days.
QUESTIONS OF FACT
The factual issues presented to the Court by the proof developed at the hearing may be simply stated as follows:
1. Has the credible proof established by clear and convincing that Vanessa is a dangerous dog, as defined by § 108[24][a][i] and[ii] of the Agricultural and Markets Law; and
2. Did the clear and convincing evidence establish that Vanessa
Inflicted serious physical injury to the victim as that term is defined under § 108[29] of the Agricultural and Markets Law.
I find in the affirmative as to both questions of fact.
FINDINGS OF FACT
I find all of the fact witnesses testifying at the hearing to be credible. The testimony established that at approximately 7:00 a.m. on July 7th, 2020, the Complaining witness was jogging in her neighborhood along a public road in the Town of Ogden. She noticed Vanessa and another dog on a leash or leashes, under the control of a woman, identified by the proof as Kerry Dudek, the girlfriend of the Respondent, Jeremy Wolf. Mr. Wolf is Vanessa's owner. Vanessa weighed approximately sixty to seventy pounds and the other dog weighed approximately ninety pounds. Ms. Dudek was present in Court during the entire hearing and was identified. She was described, and as noted by the Court, as being of slight build. She was clearly significantly outweighed by the two dogs. At that point the dogs were on a grassy area across the street from the Complainant. Approximately thirty feet separated the complainant from the dogs. The two dogs began barking. The Complainant described how she apologized to Ms. Dudek and then sped up her pace in order to get past the two barking dogs. At that point she testified that the dark brown dog, later identified as Vanessa, began "going crazy" and dragging Ms Dudek across the street toward her. While she admitted that both dogs were barking and pulling, there was no question in her mind that it was Vanessa who was acting in the most aggressive, ferocious, and angry manner. Her testimony made clear that Vanessa's, aggressive conduct, was focused on her, leaving no doubt in her mind that the dog intended to attack her. As the Complainant testified Vanessa made clear that she had only one thing in mind and that was "to get me in her mouth." The complainant fearing for her safety reversed her direction in order to flee from the attacking dog. As she did she looked over her back, noticing that Vanessa was charging at her in a manner which further confirmed that the dog intended to attack her. As she put it Vanessa's aggressive conduct led her to conclude that the dark brown dog intended to "kill" her. In this regard Vanessa was growling, barking, baring her teeth and leading the charge. As the Complainant attempted to flee from area she would look back at the two dogs, observing Vanessa's location vis a vis herself and the other dogs. She indicated that Vanessa was in front of the other dog, leading the attack, and closest to her and the area of the injury at the time of the bite. Thus, based on Vanessa's conduct and her position immediately prior the bite the Complainant was sure that Vanessa inflicted the wound. Thus, Vanessa's position just prior to the bite, not only led the Complainant to conclude that only Vanessa could have inflicted the wound but, also, to exclude the second dog as the biter. Under withering and sometimes argumentative cross examination Complainant did not deviate from her testimony. She was unequivocal and credible during her entire testimony that Vanessa was dog that the inflicted the injury. She made clear under cross examination that, despite the fear and terror she was suffering at the time, she was aware at all times of Vanessa's position including at the time of the bite. As a result of the attack the complainant fell to the ground. At one point during this ordeal she screamed at Ms. Dudek, pleading for help. Ms. Dudek was apparently unable to provide assistance to the Complainant. The Complainant then fled to the home of a neighbor.
Absolutely no evidence was presented to explain what may have caused the dog to attack the Complainant. Mr. Utter testified for the Respondent. He is a neighbor of Mr. Wolf. He testified that shortly after the attack he noticed a new crack in his newspaper tube. Without objection he testified he had been told by many people it occurred as a result of the attack. On inquiry from the Court he testified that the "many people" he referenced was in fact Mr. Wolf. He testified based on that conversation that the damage occurred as a result of the Complainant falling as she was attempting to avoid Vanessa's imminent attack. Mr. Wolf in his testimony made clear he did not witness the incident. Other than the Complainant the only other person who witnessed the attack was Ms. Dudek. Presumably she was in the best position to shed light on any possible provocations which may have precipitated this attack. The Respondent opted not to call her. If the purpose of this testimony was to somehow suggest that Vanessa was provoked to attack the Complaint, I find it has failed in all respects. There is absolutely no evidence, let alone credible evidence on the record , to support this possible pure speculation. [The Court, at the time this decision was announced in open Court on the record, discussed with counsel certain concerns of the Court, related to this testimony and letters provided in support of Vanessa, admitted as a Court exhibit.] The evidence and lack thereof makes clear that the attack was unprovoked, spontaneous, and without any mitigation. The viciousness of the attack and the demeanor of the dog terrified the Complainant and placed her in fear of her life.
Within minutes of the attack, she advised her neighbor what had occurred and further told the neighbor that it was the dark brown dog, later identified as Vanessa, who attacked her. The neighbor offered to go to the scene in order to look for the dog. The Complainant fearing the neighbor might also be victimized, urged him not to do so. Officer Plouf arrived shortly thereafter. He testified that the Complainant told him what happened.
She was taken to the hospital where she was examined. The photos in evidence, the testimony, and the medical records, also in evidence, make clear the wound was above the calf and behind the knee. The medical personal were concerned that her knee joint may have been compromised. As a result fluids were injected into her leg to determine the extent of any injury to the joint. Fortunately, the joint was not impacted. Thereafter, fluid was drawn out of the area of the wound. Eighteen stitches were then applied to close the wound. Because of the nature of the wound the stitches were applied loosely to allow seepage in an effort to avoid infection. The Complainant was prescribed pain medicine and antibiotics. Prior to her testimony she was seen again by medical personal. At that time another doctor's visit was scheduled.
The Complainant continues to be in significant pain and is suffering from some numbness as a result of the injury. As she approached the stand to give testimony the Court observed significant bandaging around the area of the injury. The Complainant walked with a pronounced limp. In addition to the severe physical injury, and as evidenced by her emotional testimony, she was clearly traumatized by the attack. Her sleep patterns have been disrupted by the event. Her relationship with her family has been adversely affected. She testified that since the attack she has not been herself at home. The Complainant, on cross, testified that there was scarring present which was "not pretty to look at."
Testimony provided by the treating physician established that there would very likely be a large area of scarring as a result of the injury. Further the photos in evidence, showing the size and severity of the wound, both before and after the stitches were applied, make clear that the injury was significant and would have a protracted impact in the form of scarring. The doctor testified over objection, that he could not foreclose the possibility of further complications.
Within a few hours after this incident the Animal Control Officer for the Town of Ogden, John Eeckhout, transported the complainant to the home of Mr. Wolf, the owner of Vanessa. At the Officer's request Mr. Wolf produced the dark brown dog, which he identified as Vanessa. The complainant upon viewing the dog, without hesitation, identified Vanessa as the dog that bit her. I would note that at that time Ms. Dudek and the second dog were not present at Mr. Wolf's home. They had left the area.
Some of Vanessa's history prior to the attack was also presented. Jake Bromage, a neighbor of Mr. Wolf, testified that on prior occasions he would ride his bike past Vanessa's residence. As he did so the dog would lunge at him in an aggressive manner, causing him to fear for his safety. Because of this concern he contacted Mr. Wolf. He and Mr. Wolf agreed to an arrangement whereby Mr. Bromage would call Mr. Wolf, prior to riding his bike in the area, to ensure that Vanessa would be confined and/or retrained in a manner to ensure Mr. Bromage's safe passage. On cross examination by Respondent's counsel, the witness agreed that he did not know what Vanessa intended by her threatening, aggressive conduct directed at him. But, he added, that he took the precautions he did to avoid finding out.
Other testimony presented on behalf of the Respondent established that Vanessa was a rescue dog that had been severely abused and injured by her prior owner. She was treated for a broken leg by the rescue agency. She participated in a program that was apparently intended to address any adverse effects that may have been caused by the dog's unconscionable abuse and to assess the dog's temperament and suitability for adoption. Multiple letters of reference, in evidence as a Court exhibit, attest to the fact that Vanessa did well in this program, becoming an example for other dogs in this program. During this time Mr. Wolf fostered Vanessa Mr. Wolf, and, thereafter, adopted Vanessa.
In addition to the arrangement with Mr. Bromage, Mr. Wolf described other efforts he took, prior to the attack, to ensure that Vanessa did not injure or assault anyone. In this regard, when visitors came to his home, he would separate Vanessa from the visitors by placing her in a gated room. In order to build a rapport with these visitors he would then allow them to provide treats to Vanessa. Only then would Vanessa be released and allowed to have unrestrained physical contact with the visitors. Also when he would take Vanessa for a walk he would take several precautions to ensure that he were able to maintain control over the dog. These included using both a harness and a collar which would tighten around the body and neck of the dog if she pulled against the restraints. The collar and harness were attached to a heavy duty leash which was displayed in court and described by Mr. Wolf as "not something you buy at Wal Mart.
The apparent purpose of this testimony was to establish that Mr. Wolf was a responsible owner who, in the past, took reasonable precautions to ensure that Vanessa would safely interact with others. In addition Mr. Wolf was described as weighing 240 pounds and thus well capable of maintaining control of Vanessa when she had contact with the public. This testimony also indicates that from the moment of Vanessa's rescue, her guardians were constantly taking precautions to ensure the safety of those who came into contact with Vanessa.
The reference letters, in evidence as a court exhibit, also attest to the good behavior of Vanessa while in the presence of others. These letters further express the opinion that Mr. Wolf is an experienced dog handler, capable of controlling Vanessa in the future. They also describe Mr. Wolf as being devoted to Vanessa and her well being. Additional letters were submitted on behalf of the Respondent by medical personal and others describing the close, beneficial, and therapeutic relationship between Vanessa and the disabled son of Ms. Dudek. These letters, various aspects of the testimony presented on the Respondent's case, and the Court's observations of Mr. Wolf while in Court leave no question in the Court's mind that Mr. Wolf was devoted to Vanessa and provided her with love, security, and a safe environment throughout the several years before this unfortunate, regretful incident. [These letters of reference were, with the consent of counsel admitted as a Court exhibit. During the proceeding it was made clear by the Court, and counsel agreed, that these letters would only be considered if a finding of dangerousness was made by the court. In such an event, these letters would be considered only in the Court's determination of the appropriate and necessary restrictions and/or remedy to ensure the public's safety.]
The Respondent also offered the testimony of Katie Gallagher, a certified dog trainer, with extensive training and experience in assessing the behavior of dogs. She, at the respondent's request, met with Vanessa for forty five minutes, two days before her testimony. Based on her training, experience, and her evaluation she concluded and offered as her expert opinion that Vanessa was not capable of biting a person unless she was provoked. In addition two neighbors of Mr. Wolf testified that in past and on occasion they have seen him walking Vanessa in the neighborhood. At those times they never observed the dog misbehave or act in an aggressive manner. Further, Mr. Wolf always appeared to have her under control.
CONCLUSIONS OF LAW
I find that the factual testimony presented in open court is credible. I find that the clear and convincing evidence has established that Vanessa bit the Complainant inflicting a significant wound. The Complainant's testimony in this regard was unequivocal and unrebutted. The proof established that her identification of Vanessa was based on the fact Vanessa was acting much more aggressively than the other dog, the fact that Vanessa was ahead of the other dog as she carried out the attack, and that Vanessa was in closest proximity to the injured area at the precise point of the bite. From these circumstances the Complainant testified there was no doubt in her mind that Vanessa inflicted the wound. Further, immediately after the bite she told her neighbor that her attacker was the dark brown dog, later identified as Vanessa. In addition, within a couple hours of the incident she viewed Vanessa at Mr. Wolf's home and again, without hesitation, identified Vanessa, the dark brown dog, as the culprit. It should be noted that photos of Vanessa are in evidence as part of the Court exhibit containing letters submitted on behalf of the Respondent.
Prior to the close of the Respondent's case the Petitioner indicated his intent to request a missing witness/adverse inference charge if the Respondent failed to call as a witness Ms. Kerry Dudek. I find that the request was timely, and further, that thereafter, counsel for the Respondent was given ample opportunity, both before and after the Court's ruling, to call Ms. Dudek, as a witness. He declined to do so.
Ms. Dudek was the handler of Vanessa, and a second dog, described as brown and white in color, which she owned, at the time of the bite. She was in control of both dogs immediately prior to the attack, and presumably, witnessed the entire attack. Her testimony certainly would be material on the question of which of the two dogs inflicted the wound. Further, her testimony would be material to the existence of any mitigating circumstances or provocations that might explain why the dog suddenly engaged in this violent conduct. Clearly, on this record, her testimony would not have been cumulative. Her presence in Court throughout the hearing confirmed her availability. And her status as Mr. Wolf's girlfriend established that she was under his control and, thus, would be expected to testify favorably to his cause. This is especially so given the testimony that her son, who has a number of disabilities, has developed a very close and therapeutic relationship with Vanessa. ( In the Matter of the Estate of Robyn R. Lewis, v. Meredith E. Stewart, et al, 158 AD3d 1247, 1249-1250 [4th Dept, 2018] )
Based on these circumstances I determined that the Petitioner had established a prima facie case in support of hi request. Thereafter, Respondent's counsel, Mr. Albert was given the opportunity to defeat the request. The only basis proffered by Mr. Albert was that the second dog on the scene belonged to Ms. Dudek. Therefore, he suggested she was not available to testify because of the possibility that her testimony, while exonerating Vanessa, might incriminate her dog.
This is a civil, not a criminal matter. Ms. Dudek does not have the right not to incriminate her dog with the truth. Nor do i believe that she would hesitate one moment to testify if the truth exonerated Vanessa. I find that the proffered excuse is insufficient to defeat the Petitioner's request for the missing witness/adverse inference charge. ( In the Matter of the Estate of Robyn R. Lewis, v. Meredith E. Stewart, et al, 158 AD3d 1247, 1249-1250 [4th Dept, 2018] )
I therefore find that the failure to call Ms. Dudek warrants the charge that I, as finder of the facts, may infer that if she was called that her testimony would tend to negate the Respondent's position that Vanessa did not inflicted the injury and further that her testimony would not provide any basis that Vanessa's aggressive conduct was somehow provoked. As the finder of fact, under the circumstances of this case, and in my discretion, I do infer that if Ms. Dudek was called that her testimony would be contrary to the Respondent's position on these questions.
I would also note that I conclude, even without drawing these inferences, that there is ample credible evidence on the record to support the conclusion that Vanessa inflicted the injury and that her attack was not provoked or justified by any external circumstance.
Further the evidence established clearly and convincingly that Vanessa is a dangerous dog. The attack was unprovoked and without question unjustified. ( Agriculture and Markets Law §§ 108[24][a] [i and ii]; 123[2] ) There was no credible evidence that the dog "was responding to pain or injury, or protecting itself." (§ 123[4][c]; Matter of the Town of Concord v. Edbauer, 161 AD3d 1528,[4th Dept., 2018], citing People v. Jornov, 65 AD3d 363, 366 [4th Dept, 2009] ) Also, there is no question, based on the medical testimony, the testimony of the complainant and, importantly the photos of the injury that the complainant suffered physical injury. And, as is discussed below, I find on the credible evidence the aggravating circumstance that the injury was "serious" as that term is defined under § 108(29) of the Agriculture and Markets Law. ( People v. McKinnon, 15 NY3d 311, 315 ; Matter of Workman v. Dumouchel, 175 AD3d 895, [4th Dept., 2019] )
The Agriculture and Markets Law § 108(29) defines serious physical injury, in part, as "physical injury which causes... serious or protracted disfigurement ...." Thus under the definition of the Agriculture and Markets Law a physical injury is serious if it causes either serious or protracted, being prolonged in duration, disfigurement. The only rational conclusion which can reasonably be inferred from the photos in evidence is that this wound constitutes both serious and protracted disfigurement. (Matter of Workman v. Dumouchel, 175 AD3d 895 [4th Dept., 2019] ; People v. Jornov, 65 AD3d 363 [4th Dept., 2009] People v. McKinnon, 15 NY3d 311, 315 ) The testimony of the Doctor and the complainant further emphasizes solidifies this unavoidable conclusion.
The Respondent's counsel argues that the present state of this injury, prior to the full completion of the healing process, prevents any conclusion concerning serious or protracted disfigurement. I respectfully disagree. The photos of the injury, both before and after the placement of the loose stitching, standing alone, supports the unavoidable inference that the sutured wounds will result in permanent scarring. (Matter of Workman v. Dumouchel, 175 AD3d 895, 897 [4th Dept., 2019] )
Further, the Doctor testified that permanent scarring is the "inherent" consequence of loose stitching. Under cross examination the Complainant testified that there was presently scarring which was, in her words, "not very nice to look at".
The injury here is directly behind the complainant's knee. It is located in an area which will be exposed frequently to the public. Everyday clothing in the form of shorts, a bathing suit, skirts, and/or a dress would often leave the scarring exposed to the public. The nature of wound and the testimony supports by clear and convincing evidence that the scarring is such that "a reasonable observer would find her altered appearance distressing or objectionable." (Matter of Workman v. Dumouchel, 175 AD3d 895, [4th Dept., 2019], citing People v. McKinnon, 15 NY3d 311, 315 and Fleming v. Graham, 10 NY3d 296, 301 ) And I submit it is and will continue to be distressing to the Complainant for the rest of her life. I ask who is in a better position to assess whether the wound and the present and anticipated scarring will be distressing and/or objectionable. Her opinion deserves to be considered weight on this issue. In any event, the Court, finds her opinion is amply sustained by other credible evidence in this record.
The proof amply and fully supports a finding that the wound and injuries meet the definition of serious disfigurement. (Matter of Workman v. Dumouchel, 175 AD3d 895, 896-898 [4th Dept., 2019] ; People v. Irwin, 5 AD3d 1122 [4th Dept. 2004] ; Agriculture and Markets Law, § 108[29] )
Further, I find that the wound and injuries meet the definition of protracted disfigurement. Again the testimony, photos, and common sense supports the unavoidable inference that the loosely sutured wounds will result in a large area of permanent scarring to the complainant's leg. The proof establishes that the scarring, by the nature of this wound, its location, and its repair will permanently impair the beauty, symmetry, and/or appearance of the Complainant's leg. Thus the evidence, in addition to establishing serious disfigurement, also establishes protracted disfigurement. (Matter of Workman v. Dumouchel, 175 AD3d 895, 896-898 [4th Dept., 2019], citing People v. McKinnon, 15 NY3d 311[2010] )
People v. McKinnon , (infra.), provides some guidance as to what constitutes sufficient scarring to meet the definition of "protracted disfigurement". In McKinnon , a criminal case, the Court of Appeals held that two small, moderate scars (one was 3.5 by 3 centimeters or less 1.4 inches in diameter; the other wound was 3.0 by 3.0 centimeters or less than 1.2 inches in diameter), both located on the inner forearm of the victim, constituted disfigurement. The wounds there were smaller, and much less severe, than the wound in this case. Unlike the wound here they were not oozing fluids and they did not require stitches or the painful insertion of long needles into the wound. Thus, the wounds in McKinnon were less severe then presented here. The McKinnon Court held that the wounds met the definition of disfigurement. And scarring by its nature is permanent and therefore protracted. [Interestingly the Court also held that the test of "serious disfigurement" might have been met in McKinnon had more evidence been presented by the prosecutor to establish that there was something seriously disturbing about the wounds.
I find, as indicated above, that the photos and credible testimony presented have met the standard necessary to establish both serious injury and serious disfigurement.
Having found that Vanessa is a dangerous dog and that she, without provocation or any justification, attacked the complainant causing serious injury, it is now the duty of the Court to impose a remedy which is necessary and adequate to protect the public and ensures that Vanessa will never cause such injury again. Counsel urges that appropriate sanctions, short of euthanasia, would be sufficient to achieve that end. I respectfully disagree.
Upon finding a dog is dangerous § 123[2] of the Agriculture and Markets Law requires, at a minimum, that the Court order that the dog be neutered or spayed and microchipped. In addition the Court must order one or more of the following options as deemed appropriate under the circumstances and necessary for the protection of the public, to wit: evaluation of the dog by a board certified veterinary behaviorist and completion of any program recommended by the expert; humane confinement; leashing, muzzling; and/or maintenance of a liability insurance policy. In addition § 123[3] of the Agriculture and Markets Law, upon a finding of the aggravating circumstance of serious injury, permits the Court, to consider two additional actions. In this regard, the Court may, if necessary for the safety of the public, order permanent confinement or euthanasia of the dog. ( People v. Jornov, 65 AD3d 363, 366-367 [4th Dept 2009] ; Town of Ogden v. Lavila, 492 CA19-02157, [4th Dept dec. 7/17/2020] )
After due consideration the Court, regretfully, has come to the conclusion that the safety of the community requires that that Vanessa be euthanized. The factors which have contributed to this conclusion, among others are as follows:
a. Vanessa as evidenced by the facts of this case is capable of engaging in unprovoked and spontaneous violence, without warning, directed at innocent persons. The attack was of such violence and intensity that the Complainant feared for her life. The attack culminated with the infliction of serious injury and based on the vivid description of the Complainant could have been much worse. The seriousness of the injury and the circumstances leading up to the attack are relevant to assessing the dangerousness of the dog and the threat the dog poses to the community.
b. Extraordinary efforts had been taken over the years, prior to this incident, to ensure that Vanessa did not cause injury to an innocent person. These efforts create a reason to believe that the experienced handlers who had contact with Vanessa over the years had at least some concern about Vanessa's temperament. This concern and constant vigilance was most likely because of her history of abuse. There is a basis on this record to indicate that Vanessa's unpredictable, violent conduct may be product of the fact that she had been the victim of severe physical abuse. Upon her rescue she was found abandoned in an apartment, suffering from a broken leg. Given Vanessa's sad condition the rescue agency gave some thought to euthanizing her. Instead, in an effort to save her life, she was enrolled in a program geared to assess whether she could safely be integrated into the community. After concluding that she could be safely integrated into the community, it was decided to repair her leg and to provide her with intensive counseling. This counseling occurred several hours a week over a significant period of time. The testimony of Mr. Wolf concerning his efforts to slowly introduce Vanessa to visitors at his home before allowing physical contact and the measures taken to ensure that Vanessa was securely restrained by a strong leash, and a special collar and harness while in public, indicates that there existed a continuing concern on Mr. Wolf's part, that Vanessa remained capable of aggressive behavior and, thus, required constant monitoring. This concern, despite the best prior efforts of Mr. Wolf, became a reality at approximately 7:00 a.m. on July 7th, 2020, the date of this incident. Based on these prior, obviously, unsuccessful interventions with Vanessa, the Court is convinced that implementation of the non-lethal alternatives permitted by law would be inadequate to ensure the public safety. Further the Court is also mindful that Vanessa, immediately prior to the attack, was under the control of the Ms. Dudek, who was well known to the dog and apparently trusted by the dog. Despite these circumstances and presumably despite her best efforts to restrain her, Vanessa relentlessly, while exhibiting a vicious intent, ran down the complaint for a significant distance, and then attacked her. There is no reasonable way, short of euthanasia to guarantee that this will not happen again.
c. Additionally, the testimony of Jake Bromage established that Vanessa had displayed, prior July 7th, a threatening and violent disposition on at least one and quite possibly more occasions. Mr. Bromage described how Vanessa would lunge at him as he rode his bike past the Wolf residence. As a result he refrained from riding his bike past the Wolf residence unless he first contacted Mr. Wolf by phone to receive assurance that Vanessa was being properly restrained so as not to pose a threat to his physical well being. It is apparent from this testimony that Mr. Wolf was well aware that one or more persons had been threatened and worried by Vanessa's conduct.
d. I have considered the testimony of Ms. Gallagher. I do not accept her opinion that Vanessa is incapable of attacking a person unless provoked. Her opinion quite frankly is belied, discredited, and flies in the face of the unrebutted proof. Under the circumstances of this case it cannot reasonably be guaranteed that Vanessa will not, in the future, again attack, without provocation, an innocent person. The physical consequences suffered here by the Complainant are indicative of the significant and unacceptable danger Vanessa poses to the safety of the community.
d. I have also considered the emotional impact that this incident has had upon the Complainant. I am well aware that psychic injury has no bearing on the question of physical or serious physical injury. (Town of Ogden v. Lavila, 492 CA19-02157, [4th Dept dec. 7/17/2020] ) However, In my opinion, it is relevant to an assessment of dangerousness of the dog and the degree of threat the dog poses to the community. Here, as evidenced by her emotional testimony, the Complainant was traumatized by the event. The incident has disrupted her sleep patterns and her relationship with her family.
Therefore it is order of this court that the dog known as Vanessa shall be humanely euthanized pursuant to Agriculture and Markets Law § 123(3).
It is further ordered that the Respondent is liable for any and all unreimbursed medical expenses incurred by the complainant as a result of this incident. This ordered is stayed for thirty days to afford the Respondent the opportunity to file an appeal pursuant to § 123(3) of the Agriculture and Markets Law. Vanessa will remained confined pending deposition of any appeal or until humane euthanasia occurs. Mr. Wolf and one other person of his choosing will be allowed to visit Vanessa at a time mutually convenient to him and kennel personnel. Vanessa will not be euthanized unless notice is given to Mr. Wolf and he is afforded a reasonable opportunity to be present.
In addition I find that Mr. Wolf violated § 96-9F of the Town Law in that Vanessa, at the time of this incident was not licensed as required by law. I find the proof insufficient to establish a violation of § 96-9D, defining dog harassing. Since Mr. Wolf was not in control of the Vanessa at the time she attacked the Complainant, I cannot find that he permitted or allowed Vanessa to attack the Complainant as required by the terms of the ordinance. I make no finding as to whether he should have foreseen the possibility of such attack and, if so, whether he took reasonable precautions to prevent the attack.