Opinion
2589-11
09-02-2011
The People of the State of New York, v. John Sheeran, Defendant.
Loretta Hottinger, Esq. Corporation Counsel Department of Law John Sheeran
Loretta Hottinger, Esq. Corporation Counsel Department of Law
John Sheeran
Adam Seiden, J.
On July 27, 2011 a hearing was held pursuant to § 123 of the New York State Agriculture and Markets Law to determine whether defendants dog "Bogey" is a dangerous animal.
It is uncontested that Michael Sklar took his two (2) dogs for a walk at around 6:15 p.m. on May 13, 2011. His dogs weigh approximately six (6) and eight (8) pounds respectively. Mr. Sklar stated that he was speaking to the defendant's mother-in-law and father-in-law when one (1) of his dogs was attacked by defendant's one hundred (100) pound Mastiff named "Bogey". As he turned towards the dogs, he noticed one of his dogs in the Mastiff's mouth. Mr. Sklar grabbed the Mastiff in a headlock and began hitting it with a metal cup until the Mastiff released his dog.
Mr. Sklar claims that he was standing on the property of a neighbor "Ivan" at 63 Southfield when the attack occurred. Mr. Sklar claims he was not on defendant's property. Mr. Sklar sustained injuries while wrestling with the dog. Mr. Sklar's dog sustained injuries which include puncture wounds on his back, but were otherwise unspecified.
The defendant in this matter stated that he and Mr. Sklar have a long history of problems as neighbors, that Mr. Sklar constantly enters upon his property to question workers, pool renovations are being done, that he has installed an electric fence six (6 feet from his property line to stop his dog from ever leaving his property, that his dog is not dog friendly and Mr. Sklar entered onto defendant's property with his dogs.
The supervisor of the workers doing the pool renovation at defendant's property testified that he was working there nine (9) or ten (10) hours per day for five (5) or six (6) days per week. He stated that "Bogey", although large, was a friendly dog that came over to see what was going on regularly at the worksite. He also stated that he never saw the dog leave the property.
Without objection, the defendant submitted a letter signed by eight (8) neighbors stating that they never saw defendant's dog cross the electric fence or roam freely in the area. These neighbors also stated they have never felt threatened by the dog or considered the dog a danger.
Defendant's mother-in-law testified that she was with her husband and granddaughter at the swing set on defendant's property when Mr. Sklar appeared with his two (2) dogs on leashes and began a conversation with them. She stated that this from the area. She stated that the occurrence ended very quickly and she did not informing the public that a large dog is present on the property.
At a hearing such as the one just held, the burden of proving that the dog is "dangerous" falls upon the petitioner, in this case the City of Mount Vernon. The quantum of proof required is clear and convincing evidence. See Agriculture and Markets Law § 123(2).
After hearing the testimony of the parties and their witnesses, judging their credibility and after reviewing the numerous exhibits submitted by the parties, the Court finds that the City has failed to meet its burden of proving by clear and convincing evidence that the subject dog "Bogey" is dangerous. Cf. People v. Jornov, 65 AD3d 63 (4th Dept. 2009); Town of Hempstead v. Baines, 25 Misc 3d 1235A (Dist. Ct. Nassau Cty.).
The Court is especially cognizant of the fact that when Mr. Sklar grabbed the subject dog in a headlock and proceeded to bang the dog on the head with a hard object, the dog never attacked Mr. Sklar to defend itself from his obviously justified assault. The neighbors' testimonial and the pool workers statement leaves the Court with the impression that this was an isolated instinctual act by the dog and almost certainly territorial in nature.
The application to declare the subject dog "dangerous" pursuant to Agricultural and Markets Law §123 is dismissed.
The above constitutes the decision of the Court.
Mount Vernon, New York
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon