Opinion
712985/20
02-25-2021
Madison SHALLOO, Plaintiffs, v. Beleal ZARROUR, Defendant.
Counsel for Plaintiff: Linda Wong, Esq., Wong Fleming, P.C., 300 East 42nd Street, 14th Floor, New York, New York 10017, Phone: 212-643-9668, lwong@wongfleming.com Counsel for Defendant: Preston J. Postlethwaite, Esq., The Postlethwaite Law Firm PLLC, 450 Park Avenue South, 3rd Floor, New York, New York 10016, Phone: 646-389-3202, pjp@postlethwaitelaw.com
Counsel for Plaintiff: Linda Wong, Esq., Wong Fleming, P.C., 300 East 42nd Street, 14th Floor, New York, New York 10017, Phone: 212-643-9668, lwong@wongfleming.com
Counsel for Defendant: Preston J. Postlethwaite, Esq., The Postlethwaite Law Firm PLLC, 450 Park Avenue South, 3rd Floor, New York, New York 10016, Phone: 646-389-3202, pjp@postlethwaitelaw.com
Robert I. Caloras, J.
Pre-answer motion by defendant for an order dismissing the complaint on the grounds of documentary evidence and failure to state a cause of action pursuant to CPLR 3211(a)(1) and (7).
This motion is determined as follows:
Plaintiff Madison Shalloo commenced this action for the replevin of a dog on August 14, 2020. In her complaint, Plaintiff alleges: she was in a relationship with defendant and that they shared an apartment in Long Island City, New York from November 30, 2017 to January 10, 2020; that in April 2018, she and the defendant agreed to purchase a dog together; that she located a breeder and was the contact person with the breeder; that on July 2, 2018, they purchased a Welsh Terrier puppy named Gryffin Shalloo; and that she reimbursed defendant for one-half of the cost of Gryffin. She had provided not less than 90% of Gryffin's physical care, including feeding, walking, and grooming; that she has been solely responsible for the monetary cost of Gryffin's food, treats, clothing and toys; that she has been solely responsible for any and all veterinary insurance and veterinary care for Gryffin, including requisite vaccinations, well care and sick care; and that since Gryffin was a puppy, he routinely visited with her parents at their home.
Plaintiff also alleges she ended her relationship with the defendant on January 12, 2020 and moved out of the parties' apartment, leaving Gryffin with the defendant. Defendant had insisted on keeping the dog, but agreed to share the dog with her; that on January 28, 2020, defendant agreed to exchange the dog each week; that on January 30, 2020 the parties met with a therapist, in part to discuss their arrangement for sharing the dog, and it was agreed to exchange the dog every Sunday. Thereafter, on February 1, 9, 16, and 23, 2020, and on March 1, 2020, defendant released the dog into the care of her father either in the lobby of the defendant's apartment building or at her parents' home in Middletown, New Jersey. However, on March 8, 2020, defendant sent a text to her father advising him that he would no longer be exchanging Gryffin with the plaintiff, as it was his dog and he was keeping him.
Plaintiff also alleges: she is entitled to immediate possession of Gryffin; that a demand was made on her behalf by her counsel in letter dated June 3, 2020; that defendant's counsel responded on June 16, 2020; that counsel for the parties exchanged emails between June 22, 2020 to June 27, 2020, and that defendant did not respond to the June 27, 2020 settlement offer.
Defendant in this pre-answer motion seeks to dismiss the complaint on the grounds of documentary evidence and failure to state a cause of action. Defendant argues that plaintiff Madison Shalloo is not the rightful owner of Gryffin, nor is she legally entitled to possess Gryffin; that indisputable documentary evidence clearly shows that Mr. Zarrour is the rightful owner of Gryffin; and the complaint fails to sufficiently plead a cause of action for replevin. It is further asserted that defendant Zarrour is the rightful and legal owner of Gryffin; that Zarrour "sourced" the breeder from whom Gryffin was purchased, coordinated the transport of Gryffin from the breeder to his apartment, and paid the breeder the full purchase and transportation price for Gryffin; and that when the parties ended their romantic relationship plaintiff moved out of defendant's apartment and left Gryffin with him.
Plaintiff's counsel, in opposition, asserts that defendant's motion must be denied as a matter of law, as it does not meet the legal standards for summary judgment; that the documentary evidence submitted by defendant is insufficient to warrant dismissal of the action; that the complaint sufficiently states a cause of action for replevin; and that the best interests of Gryffin, or at least the best interests of all concerned, must be adjudicated.
Initially, as issue has not been joined, plaintiff's counsel's reference to the standards for summary judgment is clearly misplaced and shall be disregarded. "On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" ( S & J Serv. Ctr., Inc. v Commerce Commercial Group, Inc. , 178 AD3d 977, 977-78 [2d Dept 2019], quoting Granada Condominium III Assn. v Palomino , 78 AD3d 996 [2d Dept 2010] ; see Leon v Martinez , 84 NY2d 83, 87 [1994] ). " ‘To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ " ( Burgos v New York Presbyt. Hosp. , 155 AD3d 598, 599 [2d Dept 2017], quoting Gould v Decolator , 121 AD3d 845, 847 [2d Dept 2014] ). "To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable" ( JPMorgan Chase Bank, N.A. v Klein , 178 AD3d 788, 790 [2d Dept 2019] [internal quotations marks omitted]). " ‘[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case’ " ( id. at 790, quoting Eisner v Cusumano Constr., Inc. , 132 AD.3d 940, 941 [2d Dept 2015] ). Letters, emails, and affidavits are not documentary evidence ( see McDonald v O'Connor , 189 AD3d 1208 [2d Dept 2020] ; Shah v Mitra , 171 AD3d 971, 973 [2d Dept 2019] ).
In considering a motion to dismiss a complaint for failure to state a cause of action, "the court must afford the pleading a liberal construction, accept as true all facts as alleged in the pleading, accord the pleader the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( LG Funding, LLC v United Senior Properties of Olathe, LLC , 181 AD3d 664 [2d Dept 2020], quoting V. Groppa Pools, Inc. v Massello , 106 AD3d 722, 722 [2d Dept 2013] ; see CPLR 3211[a][7] ; Monaghan v R.C. Diocese of Rockville Ctr. , 165 AD3d 650, 652 [2d Dept 2018] ; Dorce v Gluck , 140 AD3d 1111, 1112[2d Dept 2016] ). If the court considers evidentiary material, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied " ‘unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it’ " ( Sokol v Leader , 74 AD3d 1180, 1182 [2d Dept 2010], quoting Guggenheimer v Ginzburg , 43 NY2d 268, 275 [1977] ; see also Ferrera v City of New York , 164 AD3d 754, 755 [2d Dept 2018] ).
The documentary evidence submitted herein in support of defendant's motion is insufficient to establish that plaintiff is not the owner of the dog Gryffin, or that she does not have a superior right of possession. Contrary to defendant's counsel's assertions the copy of a Certificate of Registry with United All Breed Registry and Pedigree Service — Blue Ribbon Division does not on its face establish that ownership of Gryffin was transferred by the breeder to Mr. Zarrour. In fact, this Certificate does not identify a breeder or prior owner of the dog. Furthermore, the subject Certificate naming Beleal Zarrour as the owner of Gryffin was issued on January 29, 2020, well after the dog was purchased in July 2018, and 13 days after the parties ended their relationship.
Defendant also submits a document containing information pertaining to Paypal credit payments made to Rachelle Tindle on June 10, 2018 in the sum of $200, on July 2, 2018 in the sum of $287, and on July 16, 2018 in the sum of $600, with a "ship to address" bearing defendant's name and address. Said document does not identify Ms. Tindle as a dog breeder or as a prior owner of Gryffin, does not identify the purposes for which these payments were made, and does not identify what was being "shipped to" Zarrour. As such, this document is insufficient to establish that defendant Zarrour purchased Gryffin from Ms. Tindle.
Finally, defendant submits a copy a dog license issued by "NYC Health" to Beleal Zarrour for Gryffin that expired on January 29, 2021. Contrary to defendant's counsel's assertion, this document is not evidence of a dog license issued by the New York State Bureau of Veterinary and Pest Control Services. In New York City dog licenses are issued by the New York City Department of Health pursuant to section 161.04 of the New York City Health Code, upon application and payment of the required fee. At the most, the dog license submitted herein establishes that defendant Zarrour was issued a dog license for Gryffin by the City of New York Department of Health. However, as dog licenses are issued for periods of 1 to 5 years, said document on its face does not establish when the subject dog license was issued or that a dog license was issued to Zarrour at all times since Gryffin was first purchased in 2018.
The standard for recovery in a replevin action is a "superior possessory right in the chattel" ( Pivar v Graduate School of Figurative Art of NY Academy of Art , 290 AD2d 212, 213 [1st Dept 2002] ). Although the complaint does not specifically recite the words "a superior right to possession" plaintiff's allegations taken in their entirety assert such a claim. This Court therefore finds that the complaint states a cognizable claim for the repelvin of the dog named Gryffin ( see generally, Raymond v Lachmann , 264 AD2d 340 [1st Dept 1999] ; Travis v Murray , 42 Misc 3d 447 [Sup Ct, New York County 2013] ; Finn v Anderson , 64 Misc 3d 273, 275-77 [City Ct, Chautauqua County 2019] ; Le Conte v Lee , 35 Misc 3d 286 [Civ Ct, New York County 2011] ; Webb v Saunders v Reeger, 50 Misc 2d 850 [Dist. Ct. Suffolk Co, 1966] ; Papaspiridakos , 23 Misc 3d 1136 [A] [Sup Ct., Queens County 2009]).
In view of the foregoing, defendant's motion to dismiss the complaint is denied. Defendant is directed to serve an answer within 20 days after the service of a copy of this order, together with notice of entry.