Opinion
65323
07-18-2018
James FITZGERALD, Sr., Chief Humane Officer, Warren County S.P.C.A., Town of Stony Creek, Plaintiff-Respondent, v. Mark VARNEY and Joanna Keller, Defendants-Appellants.
Gregory V. Canale, Queensbury, New York, for Appellants. Meyer & Fuller (Matthew F. Fuller, Esq., of counsel), Lake George, New York, for Respondent.
Gregory V. Canale, Queensbury, New York, for Appellants.
Meyer & Fuller (Matthew F. Fuller, Esq., of counsel), Lake George, New York, for Respondent.
Richard B. Meyer, J.
Appeal by the respondents, Mark Varney (Varney) and Jo-Ann Keller, from a March 26, 2018 judgment of the Town of Stony Creek Justice Court (Law, J. ) declaring the defendants' dog to be a dangerous dog and directing euthanasia ( Agriculture and Markets Law § 123 ).
This appeal arises out of an incident on December 30, 2017 when the defendant Varney's twelve year-old grandson was bitten in the upper lip by the defendants' dog, Onyx. The plaintiff, James Fitzgerald, Sr., in his capacity as the dog control officer of the town of Stony Creek, commenced this action by filing a complaint on February 10, 2018. A notice was issued by the trial court the same day and served upon the defendants with a hearing scheduled for February 12, 2018. The hearing was thereafter adjourned to March 26, 2018.
At the hearing, the child victim testified that at the time of the incident he was visiting at Varney's home, and was sitting on a couch in the living room watching YouTube videos on his phone. Onyx was lying on the couch next to him to his right. The victim looked away from his phone and reached toward Onyx, but before he could touch Onyx the dog jumped towards his face and bit him on the left side of his mouth. Varney took the victim to the Glens Falls Hospital emergency room where he was evaluated and then taken by ambulance to the Albany Medical Center. According to the victim, ten to twenty injections were administered to his upper lip before the doctor, a plastic surgeon, stitched the wound closed. The victim also testified that after being bitten his lip was numb and did not start to hurt until he was being transported to Albany. On a scale of one to ten, the victim stated that the level of pain was five. Finally, the victim testified that the plastic surgeon or a physician's assistant advised him that the scar would "fade away but it will never go away". Photographs of the victim before the incident and while he was at the Glens Falls Hospital emergency room were received in evidence depicting the victim's face before and immediately after the incident. The victim's mother testified that the swelling in his upper lip went away four or five days later and the stitches dissolved within ten days. She also stated that the victim complained of pain only on the first day after the incident.
At the close of evidence, the trial court determined that the plaintiff "has presented a pretty good case with clear and convincing evidence that there has been a dangerous dog in this house". The trial court further found "that this dog is dangerous. He attacked without justification and caused serious physical injury." Finally, the trial court ordered that the dog be "killed" after the thirty day time for the filing of an appeal should no appeal be filed. The defendants filed their notice of appeal on April 24, 2018, thereby automatically staying the order directing that the dog be subjected to euthanasia.
The defendants do not challenge the dangerous dog determination. They do, however, dispute the court's requirement that Onyx be subjected to euthanasia based upon a finding of aggravating circumstances , namely that Onyx caused serious physical injury to the victim. The defendants contend that there was insufficient proof at trial to establish by clear and convincing evidence that the victim sustained a "serious physical injury". Under Agriculture and Markets Law § 108(29), " ‘[s]erious physical injury’ means 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." Specifically, the question here is whether the evidence was legally sufficient to support the trial court's determination that the injury to the victim constituted "serious or protracted disfigurement". For the reasons that follow, it was not.
The mere determination that a dog is a "dangerous dog" does not justify humane euthanasia of the animal. "'Dangerous dog' means any dog [except a police work dog] which (i) without justification attacks a person, companion animal as defined in subdivision five of section three hundred fifty of this chapter, farm animal as defined in subdivision four of section three hundred fifty of this chapter or domestic animal as defined in subdivision seven of this section 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." (Agriculture and Markets Law § 108[24] ). Only when the court also finds that the evidence at the trial establishes that there were aggravating circumstances may euthanasia be ordered. Aggravating circumstances consist of proof of one of the following: "(a) the dog, without justification, attacked a person causing serious physical injury or death; or (b) the dog has a known vicious propensity as evidenced 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 .." (Agriculture and Markets Law § 123[3] ).
The definitions of "serious physical injury" in Agriculture and Markets Law § 108(29) and Penal Law § 10.00(10) are essentially the same (see , People v. Jornov , 65 A.D.3d 363, 881 N.Y.S.2d 776, 779 [4th Dept., 2009] ), the only difference being that with regard to disfigurement the Penal Law requires that it be both serious and protracted , while the Agriculture and Markets Law requires either one. "[A] person is disfigured when her [or his] natural beauty, symmetry or appearance is detrimentally altered — i.e., when she [or he] is rendered less attractive. * * * A person is ‘seriously’ disfigured when a reasonable observer would find her [or his] altered appearance distressing or objectionable. The standard is an objective one, but we do not imply that the only relevant factor is the nature of the injury; the injury must be viewed in context, considering its location on the body and any relevant aspects of the victim's overall physical appearance." ( People v. McKinnon , 15 N.Y.3d 311, 315, 910 N.Y.S.2d 767, 769, 937 N.E.2d 524, 526 [2010] ). Moreover, "while a likelihood of adverse effects on appearance, functionality, or overall health may qualify as serious physical injury, the mere possibility of such consequences does not." ( People v. Rosado , 88 A.D.3d 454, 455, 930 N.Y.S.2d 10, 11 [1st Dept., 2011] ). The time for determining whether a disfiguring condition is distressing or objectionable is not immediately at the time of disfigurement but, rather, after a reasonable period of healing. Otherwise, even the most non-permanent injury could so qualify due to transitory swelling, bruising and blood.
" ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." (Penal Law § 10.00[10] ).
In the context of civil personal injury litigation arising out of the use or operation of a motor vehicle, a "serious injury" consists of, among other things, "significant disfigurement" ( Insurance Law § 5102[d] ). "The standard by which significant disfigurement is to be determined within the meaning of that statute is whether a reasonable person would view the condition as unattractive, objectionable, or as the subject of pity or scorn ( Landsman v. Bunker , 142 A.D.2d 986, 530 N.Y.S.2d 407 ; Prieston v. Massaro , 107 A.D.2d 742, 743, 484 N.Y.S.2d 104 ; Waldron v. Wild , 96 A.D.2d 190, 194, 468 N.Y.S.2d 244 )." ( Zulawski v. Zulawski , 170 A.D.2d 979, 979, 566 N.Y.S.2d 141, 142 [4th Dept., 1991] ). A scar seven-eighths of an inch in length on a personal injury plaintiff's lower lip was held not to be a "serious injury" under that standard ( Sirmans v. Mannah , 300 A.D.2d 465, 752 N.Y.S.2d 359 [2d Dept., 2002] ).
In People v. Trombley , 97 A.D.3d 903, 903, 947 N.Y.S.2d 686, 687 (3d Dept., 2012), the court held that although the victim sustained two lacerations to his face, one below his lip and another below his chin, the resulting scars were not objectively distressing or objectionable. Similarly, a broken nose and three chipped teeth requiring replacement every ten years of the plastic material used to replace the chipped enamel due to darkening of that material were not serious physical injuries ( People v. Rosado , supra. ). On the other hand, in Town of Concord v. Edbauer , 161 A.D.3d 1528, 76 N.Y.S.3d 349, reargument denied 162 A.D.3d 1777, 76 N.Y.S.3d 456 (4th Dept., 2018), the victim was found to have sustained a serious physical injury consisting of "serious or protracted disfigurement" where she was attacked "without provocation, and bit her face, neck, arm, and hand", requiring "more than 36 internal and external stitches in her face and neck." Also, in Town of Southampton v. Ciuzio , 19 Misc 3d 140(A), 866 N.Y.S.2d 96 [unreported] [App. Term, 2008] ), a case relied upon by the plaintiff, a victim was found to have sustained a serious physical injury from a dog attack where she had both substantial swelling and scarring to the her cheek, neck, and ear area and her "hearing was still impaired at the time of her testimony that is, 32 days after the attack", which the court there determined constituted "serious physical injury in the form of ‘protracted ... impairment of the function of [a] bodily organ’ (see Agriculture and Markets Law § 108[29]; Matter of Timothy S. , 1 A.D.3d 908, 909, 767 N.Y.S.2d 190 [2003] ; People v. Hildenbrandt , 125 A.D.2d 819, 820, 509 N.Y.S.2d 919 [1986] )." No evidence of an injury of a similar nature exists in the present case.
Here, there is no evidence of the size of the wound or the number of sutures which were applied to close it. There is no evidence that the victim's scar at the time of the hearing — just three months after the incident — was distressing or objectionable to a reasonable person observing him. Certainly, the trial court made no such finding or comment, nor did the trial court describe the then appearance of the scar on the record. While there is no definition of "protracted" in the Penal Law, the Agriculture and Markets Law, or even the Insurance Law, "the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" ( People v. Golo , 26 N.Y.3d 358, 361, 23 N.Y.S.3d 110, 44 N.E.3d 185 [2015] ). The usual or customary meaning of "protracted" is "lasting for a long time or made to last longer than necessary" . The testimony of the victim and his mother that the scar would fade away but never go away is not competent evidence of "protracted" — namely, "extended" (see , People v. Stewart , 18 N.Y.3d 831, 832, 939 N.Y.S.2d 273, 274, 962 N.E.2d 764, 765 [2011] ) — disfigurement. Simply put, the record before the trial court does not contain sufficient evidence to justify a determination, based upon clear and convincing evidence, that the victim sustained a serious physical injury within the meaning of Agriculture and Markets Law § 108(29).
Cambridge English Dictionary (https://dictionary.cambridge.org/dictionary/english/protracted).
The judgment is modified, on the law, by reversing the finding of aggravated circumstances and the order for humane euthanasia of the dog, Onyx, and instead directing that the defendants restrain Onyx on a leash by an adult of at least twenty-one years of age whenever Onyx is on public premises and maintain liability insurance coverage in an amount of at least $50,000 but not more than $100,000 for personal injury or death resulting from an attack by Onyx; and as so modified, the judgment is affirmed.