Beresik v City of New Rochelle
Annotate this CaseDecided on August 10, 2004
City Court of New Rochelle
DAVID BERESIK, Petitioner,
against
CITY OF NEW ROCHELLE, Respondent.
00606/04
VINCENT R. RIPPA, Esq.
2975 Westchester Avenue
Purchase, New York
Attorney for Petitioner
BERNIS E. SHAPIRO, Esq.
CITY OF NEW ROCHELLE
CORPORATION COUNSEL
515 North Avenue
New Rochelle, NY 10801
Respondent
John P. Colangelo, J.
On March 19, 2004 a "dangerous dog" complaint pursuant to §121 of the New York Agriculture and Markets Law was filed by Lt. George Masseo, the New Rochelle dog control officer, against the Petitioner David Beresik ("Petitioner" or "Beresik") with respect to three dogs allegedly
owned by Petitioner (the "Complaint"). The Complaint revolves around an incident that allegedly took place on December 3, 2003 on a public street near or about 3 Shore Club Drive, New Rochelle, New York, as further described in the Complaint and the document annexed to it. In essence, the Complaint alleges that Petitioner's dogs attacked and injured two other dogs and, in the process, their owner.
The Complaint was presented to the Court and on March 23, 2004, and the Court signed a [*2]"Notice of Hearing to Owner of Dog Under §121 of the Agriculture and Markets Law" scheduling such hearing for March 26, 2004 (the "Notice of Hearing"). On March 23, police officers delivered the Summons and Notice of Hearing to the Petitioner's address and, Respondent contends, service of the Notice of Hearing was accepted by a person who identified herself as Petitioner's companion with whom he resided. In any event, Petitioner states in his moving papers that he received a copy of the Complaint "on or about March 19, 2004" and acknowledges that he received a copy of the Summons and Notice of Hearing sometime before March 26, 2004. Nevertheless, Petitioner failed to appear for the hearing. The hearing pursuant to §121 did not proceed on March 26 or thereafter, no default was taken, and no decision under § 121 has been rendered by the Court. Petitioner now moves by order to show cause to dismiss the Complaint with prejudice.
Petitioner's argument boils down to the following contention: Section 121 provides that the Court "shall within 5 days" of being presented with a dangerous dog complaint schedule and hold a hearing on it. Since the Court did not hold a hearing within such 5 day period, its failure to do so is jurisdictional and the Complaint must be dismissed with prejudice. Petitioner so contends despite the fact that he admits to having received a copy of the Complaint on March 19 and concedes that he was aware of the March 26, 2004 hearing date some time before the scheduled date, yet failed to appear. Respondent opposes the motion, arguing that the hearing was timely scheduled, that Petitioner received the notice prior to the hearing date, and that his failure to appear at it was self imposed.
Since the determination of Petitioner's motion turns on an issue of statutory construction - - namely, what the word "shall" as used in §121 (4) should be construed to mean - - an examination of the statute and its purposes are in order. In general, §121 of the Agriculture and Markets Law sets forth the legal means by which people may protect themselves and, to a certain extent, their domestic animals from an attack by a dog deemed to be dangerous. Subsections 1 and 2 of the statute provide the immediate self-help remedies that may be used without "liability in damages" should a person or his or her domestic animal be attacked by a dog, or should a person witness such an attack. Sections 3 and 4 provide the mechanisms for an individual to register a complaint "of an attack" by a dog with a local dog control officer, and by which such officer or such individual may bring a formal complaint to "any municipal judge or justice." Subsection 4, which prescribes the mechanism by which a formal complaint is made and ultimately ruled upon, provides in pertinent part as follows:
"Any person may, and any dog control officer as provided in subdivision three hereof shall, make a complaint under oath or affirmation to any municipal judge or justice of such attack, chasing or worrying. Thereupon, the judge or justice shall immediately determine if there is a probable cause to believe the dog is a dangerous dog and, if so, shall issue an order to any dog control officer, peace officer, acting pursuant to his special duties, or police officer directing such officer to immediately seize such dog and hold the same pending judicial determination as herein provided. Whether or not the judge or justice finds there is probable cause for such seizure, he shall within five days and upon written notice of not less than two days to the owner of the dog, hold a hearing on the complaint."
Agriculture & Markets Law §121(4). Section 4 goes on to set forth the alternative remedies - - [*3]generally severe confinement or euthanization - - that the court "shall order" should it determine that the dog in question is in fact a "dangerous dog."
In the instant case, it is undisputed that the hearing on the dangerous dog Complaint was not held within 5 days of the Notice of Hearing. In essence, Petitioner argues that when the statute says that the court "shall within 5 days . . . hold a hearing on the complaint" (emphasis supplied) it means that the court must hold a hearing within that time frame or be forever barred from so doing. In view of the salutary, protective purpose of the statute, the court finds such a construction to be unreasonable, particularly where, as here, Petitioner contributed to the failure of the hearing to proceed as noticed by virtue of his non-appearance for the hearing.
Petitioner's contention that the phrase contained in §121(4) that the hearing "shall" be held "within five days" should be construed as a mandatory and jurisdictional provision with which the court must comply, as opposed to a merely instructional, directory provision, is based upon the Black's Law Dictionary definition of the word "shall." However, this reliance upon Black's is, in this instance, misplaced. The legislature and the courts have provided some guidance as to when terms used in a statute, even if phrased in mandatory words, may nonetheless be considered nothing more than "mere instructions or directions, inserted for convenience." (Mc Kinney's Statutes §171). As set forth in §171 of Statutes, the question of whether a statutory provision should be construed as mandatory or directory is determined by legislative intent, particularly whether the statutory objective would be achieved or defeated by construing a term as mandatory as opposed to directory. As §171 states,
"Mandatory provisions of a statute go to the jurisdiction of the person acting, while directory provisions are mere instructions or directions.
* * *
Whether a given provision in a statute is mandatory or directory is to be determined primarily from the legislative intent gathered from the entire act and the surrounding circumstances, keeping in mind the public policy to be promoted and the results that would follow one or the other conclusion. In this regard, however, it is said that the legislative intent does not depend upon the language in which the intent is clothed, and the fact that a statute is framed in mandatory words such as "shall" or " must" is of slight, if any, importance on the question whether the act is mandatory or directory. Thus mandatory words may be interpreted in a merely permissive sense or vice versa."
Id.
Consistent with this legislatively prescribed rule of statutory construction, courts have long held words such as "shall" to be merely instructive rather than mandatory when a failure to do so would frustrate the intended objective of this law - - particularly when such words are directed to a court or other branch of government. For example, in Munro v. State of New York, 223 N.Y. 208, 214 (1918), the Court of Appeals held that the language of a private compensation bill stating that "the court shall award to and render judgement for the claimant for such sum as shall be just and equitable" (emphasis supplied) should be read as directory, rather than as a mandatory requirement [*4]that a court award compensation to the claimant. As that court articulated: "The use of a word 'shall' in these latter phrases was not intended to nullify the power of the court to hear, audit and determine or make it compulsory to award damages. The clear intent of the legislature was to confer authority and power upon the Court of Claims and not to direct or control its action.
The words 'shall' and 'must' when found in a statute are not always imperative. The instances are many in which courts have treated a mandatory word as merely permissive when necessary to sustain an act or accomplish the purpose which was clearly intended. In Anderson's Appeal (215 Penn. St. 119) it was said: "The word 'shall' when used by the legislature to a court is usually a grant of authority and means 'may.'"
(citations omitted)
And, as the United States Supreme Court held in Railroad Co. v. Hecht, 95 U.S. 168 (1877), when directed "against the government, the word 'shall', when used in the statutes, is to be construed as 'may,' unless a contrary intention is manifest." Id., at 170.
Indeed, in the Third Department case of In re 121-129 Broadway Realty, Inc., 43 A.D.2d 754 (3rd Dept. 1973), the court construed an analogous provision of the Human Rights Law which provided that the State Division of Human Rights "[w]ithin sixty days after a complaint is filed...shall cause to be issued and served a written notice, together with a copy of such complaint, requiring the respondent or respondents to answer the charges of such compliant and appear at a public hearing ..." (emphasis supplied). In 121-129 Broadway, it was undisputed that such notice was not served and a hearing was not scheduled until over eight months after the complaint was filed. Nevertheless, the Appellate Division reversed the court below and held that the 60 day time period for service of the notice of hearing and scheduling the hearing were discretionary, not mandatory jurisdictional provisions, and refused to dismiss the proceeding. As the Court reasoned: "Special Term held that this time requirement was mandatory and that noncompliance with the 60-day notice divested the division of jurisdiction. With this we cannot agree. In construing the requirements of section 297 of the Executive Law, the courts have held that the provision for notification of a hearing was directory and not mandatory...This interpretation is consistent with the general rule of construction which provides that provisions of a statute which direct a public officer to do an act within a certain time are held to be directory only and delay in performance will not invalidate a proceeding or terminate jurisdiction unless the statute so provides, and this is particularly true when the acts to be done are for the benefit of the public (McKinney's Cons. Law of N.Y., Book 1, Statutes, §172). In addition, whether a statute is framed in mandatory language or not is of slight importance in determining the question of [*5]whether or not the act is mandatory or directory (Munro v. State of New York, 223 N.Y. 208, 214). The intent of the Legislature as may be gleaned from the entire act and the surrounding circumstances, the purpose of the act, the public policy to be promoted, the result which would obtain if one conclusion were followed to the exclusion of another are the considerations which govern and control (McKinney's Cons. Law of N.Y., Book 1. Statutes, §172)." (Emphasis supplied).
When these principles are applied to the instant case, it becomes clear that the word "shall", as used in §121 (4) should be construed as instructional and directory rather than as mandatory. As Statutes §171 and case law indicate, if the purpose of the statute would be frustrated by reading the word "shall" as mandatory, it should be read as "may" rather than as "must". Here the plain purpose of §121 in general, and §121 (4) in particular, is to protect the public from a possibly dangerous dog. Under the mandatory construction urged by Petitioner, a court that did not hold a hearing within 5 days of the complaint - - for whatever reason - - would be forever foreclosed from determining the issue of whether the dog was dangerous based on the facts alleged, and the public entitled to protection from it. Clearly, such a reading would inhibit rather than assist in achieving the evident statutory goal. In addition, here as in 121-129 Broadway, the statutory provision at issue concerns a direction to a governmental branch - - in this case, a "judge or justice" - - to take only an essentially procedural step - - in this case, the act of scheduling and holding a hearing. Moreover, a mandatory construction would prove particularly inappropriate in the instant case when the principal reason for the hearing not proceeding as noticed was Petitioner's own non-appearance.
Thus, the question of whether a hearing on a dangerous dog complaint should be held within five days of its review by the court is a matter that is within the court's discretion. Accordingly, in this case, this Court's failure to hold a hearing within five days of the filing of the Complaint was not jurisdictional and does not entitle Petitioner to dismissal.
Parenthetically, the Court notes that pursuant to a disposition of several contemporaneous New Rochelle City Code Violations, the dogs at issue have, pending the outcome of the dangerous dog hearing, remained with Petitioner subject to certain stringent restrictions, including that they must be muzzled and leashed at all times while outside the owner's property, and remain behind a fence while on such property.
Accordingly, Petitioner's motion is denied. A hearing on the dangerous dog Complaint, at which all parties are directed to appear, is hereby scheduled for August 31, 2004 at 9:30 a.m..
The foregoing constitutes the Decision and Order of this Court.
DATED: New Rochelle, New York
August 10 , 2004
John P. Colangelo
City Court Judge [*6]
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