Kaiser v Brandt

[*1] Kaiser v Brandt 2009 NY Slip Op 51065(U) [23 Misc 3d 1133(A)] Decided on June 1, 2009 District Court Of Suffolk County, Sixth District Ukeiley, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 1, 2009
District Court of Suffolk County, Sixth District

Ralph Kaiser, Petitioner,

against

Phillip M. Brandt, Respondent.



BRC 09-394

Stephen L. Ukeiley, J.

This proceeding was commenced by petitioner Ralph Kaiser (hereinafter "Mr. Kaiser" or "Petitioner") pursuant to Agriculture and Markets Law ("AML") §121 for a determination that a certain rottweiler named Chubbs (License No. 4967771) (hereinafter "Chubbs" or "rottweiler") and pitbull named Maggie (License No. 4967772) (hereinafter "Maggie" or "pitbull") (collectively, Chubbs and Maggie are hereinafter "the Dogs"), owned by Respondent Phillip M. Brandt (hereinafter "Mr. Brandt" or "Respondent") are "dangerous dogs" within the meaning of the AML and further for civil penalties. A hearing was held on May 14th and 21st, 2009.

The parties appeared pro se and gave testimony. Petitioner's wife Beth Kaiser and sons Friedrich and Dietrich also testified as did Regina Troise and Anthony Salvagno, witnesses to a prior incident involving the Dogs.[FN1] [*2]

The following are the Court's findings of fact and decision.

FINDINGS OF FACT

At the hearing, the testimony established that Respondent owns Chubbs and Maggie, both under the age of 1 and weighing approximately 60 pounds. The gravamen of this action is a series of incidents involving the Dogs on April 5, 2009 and April 17, 2009 on separate properties.

The undisputed testimony was that on April 5, 2009, the Dogs attacked and caused physical injury without justification to Ms. Troise's dog while it was leashed to a chair on Ms. Troise's deck. Ms. Troise, who lives within ½ mile of Mr. Brandt's residence, testified the Dogs were not wearing collars when her dog was attacked. The Dogs further caused physical injury to both Ms. Troise and Mr. Salvagno when they attempted to separate the animals. Ms. Troise described how she was knocked to the ground bumping her head and sustaining multiple bite wounds for which she sought medical treatment (Troise Action, Petitioner's Exhibit 1). Mr. Salvagno was bitten on the ankle once by Maggie during the incident, and he described his injury as being "minor". Ms. Troise's dog sustained minor injuries and has no observable lingering effects. Although the Dogs were not collared, Mr. Salvagno was able to extricate them from the property and secure them in his vehicle where they remained until the Police and Animal Shelter officials arrived.

On April 17, 2009, the Dogs reappeared at Ms. Troise's property which prompted Ms. Troise to again call the Police. The Dogs left her property without incident and entered Petitioner's property. After hearing screams from Petitioner's property, Ms. Troise and a Police Officer made their way to Mr. Kaiser's property. According to Ms. Troise, while on Petitioner's property, the Officer got into a struggle with Chubbs and tazered Maggie, who after being tazered, picked herself up and ran away. Chubbs then got into a "scuffle" with another pitbull who was being walked by its owner on the street. At that time, Mr. Brandt arrived and secured Chubbs in his truck.

The Kaisers testified that while on their property, Chubbs and Maggie attacked Mr. Kaiser and their chickens. Chubbs apparently broke through the chicken's pen wall which prompted the attack. In total, two (2) chickens were killed by the Dogs and two (2) additional chickens had been wounded.[FN2] Mr. Kaiser, who suffers from high blood pressure, was bitten once by Maggie when he attempted to protect his family and animals [*3]from the Dogs. He was treated at the hospital for his injury and testified that he has no lingering effects from the incident. Chubbs had also lunged at Dietrich, age 17, in a menacing and threatening fashion while he was holding one of the injured chickens. Mr. Kaiser submitted receipts for out of pocket expenses incurred as a result of the incident in the amount of $107.34 (Petitioner's Exhibit 8). The Kaisers also seek damages for the loss of their animals.[FN3]

The Respondent did not deny or refute any of the testimony about the attacks. Indeed, during cross-examination he expressed remorse for the situation and candidly accepted responsibility for his Dogs' conduct. Mr. Brandt further testified that he has since taken steps to insure that another incident would not occur; namely, he reinforced the fence which the Dogs apparently climbed under to escape from his property and installed a new padlock to his gate. He added that both Dogs have been neutered and are wearing collars and received their vaccinations on April 16, 2009, which was prior to the attacks at the Kaisers' property but after the incident at Ms. Troise's property (Respondent's Exhibit A).

CONCLUSIONS OF LAW

It is Petitioner's burden to prove by clear and convincing evidence that the Dogs are "dangerous dogs" within the meaning of the statute. See AML § 121(2). AML §108(24), as amended in 2004, defines a "dangerous dog", inter alia, as "any dog which [i] without justification attacks a person, companion animal . . [or] farm animal and causes physical injury or death. . . ."[FN4] In New York, a dog determined to be a dangerous dog may be humanely euthanized only where certain aggravating circumstances are established, including where the dangerous dog without justification causes "serious physical injury or death" to a person (AML § 121(3)[a]) or without justification causes "serious physical injury or death" to a farm animal and in the past two years, as evidenced by a "dangerous dog" finding, has caused unjustified physical injury or death to a companion or farm animal (AML § 121(3)[c]).

Initially, the Court notes that despite the fact two (2) chickens were killed, the Court cannot consider Petitioner's request that the Dogs be destroyed due to the fact a [*4]person did not sustain a "serious physical injury or death" as a result of the attack since the statute expressly prohibits such relief. Parenthetically, AML § 121(3)[c] provides no discretion to the Court to order the destruction of dogs in a case such as this regardless of the number of companion and/or farm animals that may have been killed. Without stating how the Court would rule in this matter as it is not properly before the Court, the State Legislature may wish to consider again amending and/or modifying the AML to close this loophole in extreme cases.

In any event, the Court is constrained by the law as written and shall grant only that relief which it is authorized. Based upon the credible testimony and review of the evidence, the Court finds that Petitioner sustained his burden of proof by clear and convincing evidence that Chubbs and Maggie are dangerous dogs. Notwithstanding the disturbing nature of the attacks, however, there was no testimony or documentary evidence indicating that any person sustained protracted disfigurement, impairment or loss of a bodily organ. Consequently, and for the reasons stated above, in the absence of proof that a person sustained a "serious physical injury" in accordance with AML § 108(29), as a matter of law, the destruction of the Dogs is impermissible in this action. See AML 121(3)(a),(b); Cuozzo v. Loccisano, 15 Misc 3d 16 832 N.Y.S.2d 744 (App. Term, 9th & 10th Jud. Dists. 2007).

Nonetheless, the Court is disturbed by the lack of adequate supervision of Chubbs and Maggie as it appears the incidents described herein were entirely avoidable had Mr. Brandt undertaken the appropriate supervision of his Dogs. Although Mr. Brandt has accepted responsibility for the Dogs' conduct, another attack of any kind will not be tolerated and the Court will not hesitate to order the Dogs seized and euthanized, if after a hearing, it is determined that another person or animal has suffered serious physical injury or death.

Based upon the Court's finding that Chubbs and Maggie are "dangerous dogs", the imposition of the statutory conditions set forth pursuant to AML § 121(2) is warranted here. In accordance with the statute, the Court directs Respondent to have Chubbs and Maggie neutered and microchipped, if not already. See AML § 121(2). The procedures shall be completed at Respondent's expense within twenty (20) days of the mailing of this Order. Respondent must further file both with the Brookhaven Animal Shelter, 300 Horseblock Road, Brookhaven, New York 11719 ("Animal Shelter"), and the Court, a certificate or other documentation executed and acknowledged by a licensed veterinarian evidencing the procedures have been carried out within ten (10) days after the completion of these procedures.

In addition, the Court directs that Respondent shall at all times confine Chubbs and [*5]Maggie to the interior of the home or to a secure locked pen located in the yard. The pen shall be designed and constructed to prevent the escape of the Dogs, to prevent unauthorized contact with the Dogs, and to protect the Dogs from the elements. See AML § 121(1)(b); 353-b. The pen shall be "constructed of cyclone fencing or substantially similar metal-based material, the sides of which are to be so affixed to posts and to a concrete footing and/or pad that the dog cannot push through, climb over or dig out of such pen, which is to be no less than six feet in height . . ." Cuozzo, supra. Respondent shall install the pen within forty-five (45) days of the mailing of this Order and file with the Animal Shelter and the Court proof of compliance by affidavit within ten (10) days after the completion of the pen.

Further, at those times where circumstances require travel beyond Respondent's home or the pen, Chubbs and Maggie shall be on a leash by an adult of at least twenty-one years of age at all times while on public premises. See AML § 121(2)[c].

Further, Respondent shall maintain liability insurance policies for Chubbs and Maggie each in an amount of no less than $100,000.00 for personal injury or death resulting from attack by either dog. See AML § 121(2)(e). Proof of said liability insurance coverage shall be filed with the Court and the Town Clerk of Brookhaven, One Independence Hill, Farmingville, New York 11738 within forty-five (45) days of mailing of this Order.

Finally, a copy of this Order will be forwarded by the Court to the Town Clerk of the Town of Brookhaven, for filing pursuant to General Municipal Law §209-cc, see AML §121(14), and the Animal Shelter.

This constitutes the Decision and Order of the Court.

Dated: June 1, 2009

__________________________________

STEPHEN L. UKEILEY, J.D.C. No.93

Decision to be Published Electronically Footnotes

Footnote 1: Ms. Troise filed a Dangerous Dog Complaint with this Court on or about May 8, 2009. The matter is entitled Regina Troise against Phillip Brandt, BRC 393-09 ("Troise Action"). Prior to the hearing, the parties agreed to join the actions for the purpose of the hearing. Prior to the completion of the hearing, Ms. Troise and the Respondent settled the Troise Action and a Stipulation of Settlement, dated May 21, 2009, was filed with the Court. Notwithstanding the settlement of that action, the Court will consider all of the testimony and evidence submitted at the joint hearing in rendering the herein decision.

Footnote 2: One of the chickens died at the scene, and, according to Mr. Kaiser, the second chicken died on May 20, 2009.

Footnote 3: Petitioner reserves his rights and may seek civil damages for the conduct described herein in a separate plenary action. See AML § 121(10). The Court does not consider it proper to award such damages in this dangerous dog proceeding.

Footnote 4: Section 350(4) of the AML includes "poultry" within the definition of "farm animal".