Georgoutsos v Animal Care & Control of NY City

[*1] Georgoutsos v Animal Care & Control of NY City 2007 NY Slip Op 51291(U) [16 Misc 3d 1105(A)] Decided on June 27, 2007 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2007
Supreme Court, Kings County

Peter Georgoutsos, Plaintiff,

against

Animal Care & Control of New York City (a.k.a. Brooklyn Shelter & Adoption Center, Defendant.



21139/07



Appearances:

Plaintiff

Gabriel Tapalaga, Esq.

Tapalaga & Associates, PC

NY NY

Defendants

Paula Van Meter, Esq.

Michael A. Cardozo

Corporation Counsel of the City of New York

NY NY

Arthur M. Schack, J.

Plaintiff's order to show cause to compel defendant to release plaintiff's dog, Spartacus, a cane corso breed, held by defendant under Tag No. A710880, at its Brooklyn animal shelter is granted. The Court grants this relief for a temporary restraining order because plaintiff has demonstrated to the Court that if his dog is released to him sterilized, he will suffer irreparable injury; that the equities are balanced in plaintiff's favor; and plaintiff will have a likelihood of success on the merits. CPLR § 6301; Moody v Filipowski, 146 AD2d 675 (2d Dept 1989); Mclaughlin, Piven, Vogel, Inc. v W. J. Nolan & Co., Inc., 114 AD2d 165 (2d Dept 1986). [*2]

The New York State Agricultural and Markets Law, dealing with the agriculture industry and animals, clearly allows for the State to exercise its police powers over animals. § 3 of the Agricultural and Markets Law states that "[s]uch laws and all governmental measures adopted pursuant thereto should receive a liberal interpretation."

In its legislative findings for Local Law 26 of 2000, "the Animal Shelters and Sterilization Act," codified in New York City Administrative Code § 17-801 to § 17-804, et. al., The New York City Council found that the law was enacted to limit the reproduction of "unwanted, stray or abandoned dogs and cats." Further, the City Council acknowledged risks in surgical sterilization of animals.

After a review of the papers by opposing counsel and oral argument, the Court finds that Spartacus is not unwanted, is not a stray and not abandoned. Spartacus and his owner were apparently victims of a crime on May 28, 2007. The defendant's position is that Spartacus shall remain in defendant's custody until healthy enough to be sterilized. His owner can then have him back sterilized, or adopted, or euthanized. Therefore, Spartacus may be the victim of a second "crime."

Further, plaintiff has met the requirements of an exception to New York City Administrative Code § 17-804, with veterinary certification that a sterilization procedure would endanger the dog's life. See NYC AC § 17-804.

Therefore, since plaintiff's dog is wanted, not a stray, not abandoned, and is not a candidate for immediate sterilization surgery, the Court grants this temporary restraining order to plaintiff for the release forthwith of Spartacus to plaintiff, his owner, with all his natural born anatomy intact.

The Court is concerned that defendant, whose service theme is "we create happiness by bringing pets and people together" is not meeting its theme.

This matter is adjourned to June 25, 2007 at 10:30 A.M. for a hearing on the issuance of a preliminary injunction.

This order shall be entered forthwith.

ENTER

__________________________

HON. ARTHUR M. SCHACK

J. S. C.

THIS IS A DUPLICATE ORIGINAL OF MY HANDWRITTEN SHORT-FORM ORDER, DATED JUNE 15, 2007

DATED: June 27, 2007___________________________

HON. ARTHUR M. SCHACK [*3]

J. S. C.