People v Kikkenborg (Susanne)

[*1] People v Kikkenborg (Susanne) 2010 NY Slip Op 50710(U) [27 Misc 3d 133(A)] Decided on April 13, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
2008-203 W C.

The People of the State of New York, Respondent,

against

Susanne B. Kikkenborg, Appellant.

Appeal from an order of the City Court of Peekskill, Westchester County (William L. Maher, J.), entered July 11, 2007. The order, after a hearing, determined defendant's two dogs to be dangerous pursuant to section 250-9 of the Code of the City of Peekskill.

ORDERED that the order is affirmed without costs.

In this proceeding commenced pursuant to section 250-9 of the Code of the City of Peekskill, the evidence adduced at the hearing established that while John Fisher and Tina Fisher were walking their two dogs, one of defendant's dogs, Micah, bit one of their dogs and that defendant's other dog, Muhle, assisted in the attack. The City Court determined that both of defendant's dogs were dangerous and imposed conditions upon defendant to microchip and spay or neuter the dogs, register the dogs with the Peekskill City Clerk, and have the dogs muzzled and restrained by a person not less than 18 years of age.

Contrary to defendant's contention, a dangerous dog proceeding is civil in nature and the People were required to establish that the dogs were dangerous only by a fair preponderance of the evidence (see People v Butler, 3 Misc 3d 135[A], 2004 NY Slip Op 50476[U] [App Term, 9th & 10th Jud Dists 2004]). Moreover, defendant was not entitled to a jury trial since, pursuant to section 250-10 of the Code of the City of Peekskill, a dangerous dog determination is to be made by a judge of the City Court.

Contrary to defendant's further contention, the City Court's determination that Muhle was a dangerous dog within the meaning of section 250-9 of the Code of the City of Peekskill, which defines a "dangerous dog" so as to include a dog which assaults or otherwise attacks a domestic animal without protection, was supported by the record.

Defendant's constitutional challenge to the Code of the City of Peekskill § 250 et seq. lacks merit (see People v Peak Carting, Inc., 11 Misc 3d 4 [App Term, 9th & 10th Jud Dists [*2]2005]). Moreover, defendant has no basis to challenge Agriculture and Markets Law § 121 on constitutional grounds as the instant proceeding was not brought pursuant to that statute. In any event, defendant may not raise such a challenge since no notice thereof was given to the New York State Attorney General (see People v Stoliarov, 21 Misc 3d 135[A], 2008 NY Slip Op 52209[U] [App Term, 9th & 10th Jud Dists 2008]). Finally, we reject defendant's contention that the court demonstrated bias against her or that she was deprived of a fair trial (see Tonkin v Lofthouse, 34 AD3d 1309 [2006]).

Accordingly, the order is affirmed.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: April 13, 2010