Opinion
CV-000181-19
05-05-2019
CITY OF GLOVERSVILLE, Plaintiff, v. Christopher TOWN, Defendant.
After the filing of a Dangerous Dog complaint pursuant to AML§ 123, and a hearing held on said complaint on March 5, 2019, this Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
On February 28, 2019, Mr. Ralph Sammarco (also referred to as the "complainant") was exiting his residence located at 48 Saratoga Boulevard, in the City of Gloversville, when he observed the Defendant's dog, a black, labrador retriever, known as "Neo," jump over the boundary fence that separates his property from the Defendant's. After jumping the fence, Neo approached Mr. Sammarco, who was walking to his car, and began to bark, growl, and bare his teeth. The encounter lasted approximately ten to fifteen seconds, and ended when Neo retreated to his own property, after being called home by Defendant's roommate.
Between the summer of 2018, and March of 2019, Mr. Sammarco was subjected to a total of four (4) identical encounters with the dog, and each time after Neo had either escaped from the boundary of his owner's yard, or was allowed out-of-doors without a leash, or other restraint.
CONCLUSIONS OF LAW
AML § 108, in pertinent part, defines a "dangerous dog" as any dog which 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 .
In a proceeding commenced under AML § 123, the petitioner has the burden of proving that the dog in question is a "dangerous dog" by clear and convincing evidence. Clear and convincing evidence has been explained as evidence which makes the existence of a fact "highly probable" or "much more probable than its falsity." McCormack on Evidence § 340 (6th Edition).
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It remains un-controverted that Neo is a large breed Labrador retriever, who has been found at large, within the neighborhood, on several occasions. On March 5, 2019, Neo was, once again, allowed out-of-doors, without a leash, while the person responsible for his control, stood on the porch. While Respondent disputes Mr. Sammarco's version of his encounter with Neo that day, this Court finds no reason to doubt Mr. Sammarco's testimony, which was found to be both credible, and reliable. This Court is convinced, that on March 5th, 2019, Neo escaped his owner's yard, and approached Mr. Sammarco in an aggressive manner.
The fact that Neo is friendly and non-threatening to people other than Mr. Sammarco does not relieve Mr. Town of the responsibility to answer for his dog's indiscretions (See, House v. Tappan , 190 Misc. 607 ; Baldwin v. Thompson , 229 App. Div. 430.). While arguably friendly, Neo appears to take special exception to Mr. Sammarco, and there is a very real danger associated with the fact that canine behavior is unpredictable. These realties make the qualified property rights in dogs subject to regulation, and the AML does not require evidence of a bite, injury, or actual physical contact before a dog can be designated as "dangerous." (See LaBorie v. Habes , 52 Misc 2d 768 ; Blair v. Du Mond , 200 Misc. 1038, affd. 280 App. Div. 1021 ; Fox v. Mohawk & Hudson Riv. Humane Soc. , 165 NY 517.)
Barking and growling are normal canine behaviors. Being found at large, or running loose onto someone else's property, without a leash, are not. The mere fact that Neo barks, growls or bares his teeth at Mr. Sammarco, does not make him "dangerous." What makes Neo dangerous, in the eyes of this Court, are those behaviors, together with his propensity for aggression against Mr. Sammarco, and his owner's inability or unwillingness to train and control the dog.
Ultimately, the test of "reasonableness" is objective, and this Court finds that a reasonable person, under the same, or similar circumstances as Mr. Sammarco, would have been placed in fear and apprehension of a serious, unjustified, imminent threat of serious physical injury, and those facts, together with the owner's repeated lack of control over the animal, represents a real and significant danger to the public.
Based upon the foregoing, the Defendant's dog known as "Neo" is hereby designated as a dangerous dog, pursuant to AML § 123, and shall be subject to specified conditions and restrictions, as included within the attached "Dangerous Dog Order" issued simultaneously herewith.
The foregoing constitutes the Decision and Order of this Court.
SO ORDERED.