Opinion
2019/0099
12-15-2020
TOWN OF WEBSTER, Plaintiff/Respondent v. Tricia BATZ, Defendant/Appellant.
Matthew Albert for appellant. Raja Sekharan, Deputy Town Attorney, Webster, for respondent.
Matthew Albert for appellant.
Raja Sekharan, Deputy Town Attorney, Webster, for respondent.
Michael L. Dollinger, J. Defendant/Appellant Tricia Batz ("Appellant") appeals from a Decision and Order of Webster Town Court (Corretore, J.) dated October 15, 2019, which found Ms. Batz's dog, Max, to be a dangerous dog under the Agriculture and Market Law (hereinafter "AML") § 123. Appellant argues that the plaintiff/respondent ("Respondent") failed to establish that the victim suffered "physical injury", as that term is defined in the AML.
The hearing court properly set forth that the respondent, as plaintiff below, had the burden of proving by clear and convincing evidence that the dog is a ‘dangerous dog’. (AML § 123[2] ). A dangerous dog, as relevant here, is "any dog which (i) without justification attacks a person ... and causes physical injury." (AML § 108[a]). "Physical injury" means "impairment of physical condition or substantial pain." (AML § 108[28]).
The lower court did not find that victim suffered substantial pain but determined that there was clear and convincing evidence "that the dog, Max, did bite Mr. Whelehan. And that there was an impairment of Mr. Whelehan's physical condition as a result of the bite. And that there was no justification as its outlined in the law." (tr at 51, lines 15-19).
Appellant contends that the hearing court "incorrectly stated that the term physical injury is not defined by the AML" and noted that the term physical injury is defined as impairment of a physical condition or substantial pain. Actually, the hearing court correctly noted that the term "impairment" as it relates to "impairment of a physical condition" is not "something that is defined within the [AML]" (tr at 50, lines 12-13). The court, focusing on the term "impairment", announced that it would apply the definition of impairment as articulated in People v. Cruz, 48 N.Y.2d 419, 423 N.Y.S.2d 625, 399 N.E.2d 513 [1979] as it relates to driving while ability impaired in violation of Vehicle and Traffic Law ("VTL") Section 1192[1]. The hearing court then evaluated the proof to see whether there was clear and convincing evidence that the victim's physical condition had been "affect[ed] to any degree" (tr at 50, line 16).
The definition of "physical injury" in the AML is identical to the definition of "physical injury" in the Penal Law (See Penal Law "PL" § 10.00[9]). In a recent dog bite case the Appellate Division, Fourth Department clarified that the Penal Law definition of serious or protracted disfigurement, rather that the Insurance Law definition, is appropriate for determining whether a person sustained a serious physical injury warranting the euthanasia of a dog ( Workman v. Dumouchel , 175 A.D.3d 895, 105 N.Y.S.3d 256 [4th Dept. 2019] ).
Although the Appellate Division was considering the aggravating circumstances under which a dangerous dog may be euthanized (AML § 123[3] ), I see no reason that the Penal Law definition should not apply to the lesser standard of finding that a dog is a "dangerous dog" as that term is defined in the AML. This conclusion is supported by the reality that a dog must first be classified as a "dangerous dog" (AML § 123[2] ) before a Court can consider whether any of the aggravating factors enumerated in subsection 3 of AML Section 123 apply. Therefore, applying the Penal Law definition of both "physical injury" and "serious physical injury" as it relates to classification of a dog as a "dangerous dog" under the Agriculture and Markets Law provides clarity, simplicity and consistency.
The hearing court did not apply the Penal Law definition to the facts in this case to determine whether the victim suffered impairment of a physical condition. Therefore, the decision and order of the Webster Town Court is vacated, the matter is remitted for that court to render a decision and order in accordance with this decision.
This constitutes the Order of the Court.