Opinion
2007-1017 Q C.
Decided July 1, 2008.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Gerald J. Dunbar, J.), entered November 30, 2006. The judgment, after a nonjury trial, dismissed the action.
Judgment reversed without costs and judgment directed to be entered in favor of plaintiff in the principal sum of $1,500.
PRESENT: RIOS, J.P., PESCE and GOLIA, JJ.
The parties entered into a written agreement wherein defendant agreed to accept a dog from plaintiff as a "companion animal," at no charge to her, for the life of the animal, but the agreement expressly provided that ownership rights of the dog were not transferred to defendant. If defendant could not keep and provide for the dog, she was required, under the agreement, to provide 90 days' notice to Companion Animal Network (CAN) of her inability to keep said animal. The agreement further provided that, upon a breach of said agreement by defendant, plaintiff would be entitled to damages in the sum of $1,500, representing the expenses he incurred in facilitating the placement of the dog with defendant. Plaintiff commenced the instant small claims action, seeking to recover the sum of $1,500, alleging that defendant breached the contract.
At trial, defendant conceded that she did not comply with the agreement but testified that she had the dog for three years and it suddenly started attacking her and others. After the alleged attacks, she took the dog to "Animal Control" and had the dog put to sleep. The court below found in favor of defendant and dismissed the action.
In our view, substantial justice was not done between the parties according to the rules and principles of substantive law (CCA 1804, 1807). Pursuant to the agreement, defendant had no ownership rights in the dog and, thus, she was not authorized to have the dog put to sleep. Her obligation under the agreement was to return the dog. Thus, plaintiff is entitled to the principal sum of $1,500, as provided for in the agreement. Accordingly, the judgment dismissing the action is reversed, and judgment is directed to be entered in favor of plaintiff in the principal sum of $1,500.
Rios, J.P., Pesce and Golia, JJ., concur.