Matter of Groat v Brennan

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[*1] Matter of Groat v Brennan 2006 NY Slip Op 52158(U) [13 Misc 3d 1238(A)] Decided on November 17, 2006 Supreme Court, Albany County Ceresia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2006
Supreme Court, Albany County

In the Matter of the Application of Victoria Groat, Petitioner,


Patrick H. Brennan as the Commissioner of the New York State Department of Agriculture and Markets, and David and Debra Serino, Respondents.



James Kleinbaum, Esq.

Attorney for Petitioner

18 Park Row

Chatham, New York 12037

Joan A. Kehoe, Esq.

Attorney For Respondent Brennan

10B Airline Drive

Albany, New York 12235

(Danielle C. Cordier, Esq. of Counsel)

George B. Ceresia, J.

Petitioner commenced the instant hybrid article 78 proceeding and action for a declaratory judgment challenging respondent Brennan's Sound Agricultural Practice Opinion number 06-3, which found that the use by the Serino respondents of two Great Pyrenees dogs as livestock guard dogs for their herd of alpacas was a sound agricultural practice. The practical result of such determination is that petitioner is precluded from maintaining a private nuisance suit against the Serino respondents pursuant to Agriculture and Markets Law § 308 (3). The first cause of action alleges that the determination is not supported by the facts. The second cause of action alleges that respondent Brennan improperly imposed the burden of proof on petitioner to establish that the use of the dogs was not a sound agricultural practice. The third cause of action seeks a declaratory judgment declaring that Agriculture and Markets Law § 308 is unconstitutional because it deprives petitioner of her right to sue to enforce her right of quiet enjoyment of her property without due process [FN1].

The scope of judicial review of respondent Brennan's determination is limited to whether it is affected by an error of law, is arbitrary and capricious; that is, it has no rational basis, or constitutes an abuse of discretion (see Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]; Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v Cuevas, 276 AD2d 184, 187 [3d Dept 2000]; see also Matter of Upstate Milk Coops. v Gerace, 117 AD2d 938, 939 [3d Dept 1986]).

The record establishes that respondent Brennan conducted a very thorough investigation with respect to the historical use of livestock guard dogs in general, the Great Pyrenees breed in particular, and considered studies documenting the effectiveness of livestock guard dogs in reducing predation by species such as coyotes. The record shows that Great Pyrenees dogs have been considered a major benefit to herding agriculture for over 1,000 years. The record also supports a finding that the immediate area of the Serino farm does have coyotes, and that while the Serinos did not lose any alpacas to predation prior to acquiring the dogs, alpacas are very susceptible to such attacks. It is further noted that the type of alpacas kept by the Serino respondents are valued at between $10,000 and $15,000 each. Thus, the loss of even a single alpaca would be very significant. It is thus clear that the use of Great Pyrenees dogs to guard livestock is an effective and very longstanding agricultural practice.

In determining whether a particular practice is "sound" within the meaning of Agriculture and Markets Law § 308, respondent Brennan was required to consider the guidelines recommended by the Advisory Council on Agriculture. Such guidelines provide that the practice should be legal, should not cause bodily harm or property damage off the farm, should be [*2]reasonably effective in achieving the intended results and should be necessary. The Serino respondents provided factual information showing that they had tried using llamas as guard animals, which did not work out well. They also indicated that they could not readily put the alpacas in a barn at night because they did not take well to such enclosures. Moreover, the record indicates that the Serino respondents do not have a suitable barn structure for protecting the herd from predators. The Serino respondents also represented that the dogs only barked occasionally. Such claim was supported by information from other neighbors.

Respondent Brennan's investigation included surveying the adjoining neighbors and interviewing the Animal Control Officer for the Town of Kinderhook. Petitioner and her family were the only persons to complain about the noise from the dogs barking. Other neighbors who live in similar proximity to the farm did not find the barking excessive in terms of either volume or duration. The Court finds that such results were sufficient to constitute a prima facie showing of a sound agricultural practice, thereby shifting the burden of coming forward with evidence to the petitioner. Petitioner has offered only conclusory assertions that this constituted an improper shifting of the burden of proof to petitioner. As such, the second cause of action is without merit.

Petitioner submitted a video tape recorded outside of petitioner's residence which included the sound of the dogs barking . It was observed that at times the barking was barely audible. At other times it was louder. However, most of the time it was no louder than other background noises, such as passing cars or wind chimes. Petitioner also submitted medical records reflecting complaints of sleep deprivation and muscle soreness allegedly caused by sleeping on a couch to get away from the noise. The petitioner's doctor did not offer a professional medical opinion as to the cause of petitioner's complaints and it appears that if he had, the opinion would have been based solely upon petitioner's subjective complaints, rather than any objective evidence. Moreover, the Animal Control Officer advised petitioner to call him when the dogs were barking excessively so that he could visit the site to determine the extent and volume of the noise. Petitioner never called until the day after the dogs barked to complain. Since it is uncontroverted that the dogs only bark at night, such failure precluded any impartial assessment of the degree of noise caused by the barking.

Petitioner also submitted a petition, one page of which indicated that it sought to compel the Animal Control Officer to enforce the dog law prohibiting excessive barking. Respondent Brennan noted that the petition was undated, had numerous illegible signatures, did not provide the distances between the signatories' homes and the subject farm, and did not contain any signatures from adjoining land owners, other than petitioner and her family.Respondent Brennan found that there was no evidence that the Serinos have been cited for a violation of state or federal law, that an action in Town Court alleging that the use of the dogs violated the Town's dog ordinance was dismissed and that no new notice of violation had been issued. He further found that there was no evidence that the use of the dogs had actually caused any bodily harm or property damage off the farm, that the use of the dogs was reasonable and effective, and that there were coyotes in the area, making the use of the dogs reasonably necessary. The Court finds that the record provides a rational basis for such findings and the conclusion that the use of the two Great Pyrenees dogs to protect alpacas on the Serino property is a sound agricultural practice (see Pure Air and Water of Chemung County v Davidsen, 246 AD2d 786 [3d Dept 1998]). It is therefore determined that the first and second causes of action fail to state a cause of action. [*3]

The third cause of action seeks a declaration that Agriculture and Markets Law § 308 is unconstitutional because it deprives petitioner of her right to sue to enforce her right of quiet enjoyment of her property. Respondent Brennan seeks dismissal of such cause of action on the ground that the right to quiet enjoyment of property has nothing to do with noise pollution. While technically the right to quiet enjoyment of real property refers to the right to be free from interference with the use or possession of property by the grantor (see 43 NY Jur 2d Deeds § 79), it has been held that a claim of a violation of the right to quiet enjoyment of property sufficiently alleges a cause of action to enjoin a private nuisance (see Korenman v Zaydelman, 237 AD2d 711, 712 [3d Dept 1997]). Therefore, the third cause of action may be deemed to allege an unconstitutional deprivation of the right to enforce petitioner's property rights with no right to a hearing.

The Appellate Division, Third Department, has held that there is no property right in having a court determine a private nuisance suit (see Pure Air and Water of Chemung County v Davidsen, 246 AD2d at 787) and therefore no due process right to a hearing. Such holding is determinative of petitioner's third cause of action, thereby requiring a declaration that the statute does not unconstitutionally deprive petitioner of any property right or of due process. In any event, the Court notes that petitioner was granted a significant opportunity to submit proof that the dogs barking constituted a violation of the town's dog ordinance or caused her bodily harm or property damage, and further, that the determination of respondent Brennan was subject to judicial review.

Accordingly it is hereby,

ORDERED and ADJUDGED, that the first and second causes of action of the petition are hereby dismissed, and it is further,

DECLARED, that Agriculture and Markets Law § 308 does not violate any of petitioner's constitutional rights.

This shall constitute the decision, order and judgment of the Court. All papers together with the original of this Decision/Order/Judgment are returned to the attorney for respondent Brennan who is directed to enter this Decision/Order/Judgment without notice and to serve petitioner with a copy of this Decision/Order/Judgment with notice of entry.


Dated: November 17, 2006S/____________________________________

Troy, New YorkGeorge B. Ceresia, Jr.

Supreme Court Justice Footnotes

Footnote 1: It is noted that petitioner has failed to submit proof of service upon the Attorney General as required by CPLR § 7804 (c). The Court recognizes the strong public policy behind this requirement, especially when the constitutionality of a state statute is challenged (see e.g. CPLR § 1012 (b). However, respondent Brennan, who is represented by counsel, has not raised this issue and has therefore waived it.