People ex rel. Danishevsky v Newell

[*1] People ex rel. Danishevsky v Newell 2019 NY Slip Op 29174 Decided on May 10, 2019 District Court Of Suffolk County, Second District Hackeling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 10, 2019
District Court of Suffolk County, Second District

People of the State of New York ex rel. Alexander Danishevsky, Petitioner

against

Robert Newell, Respondent.



CV-804-18/BA



Lindsay P. Henry, Esq.

Assistant Town Attorney

Attorney for Petitioner

Babylon Town Hall

200 East Sunrise Highway

Lindenhurst, New York 11757

Robert Bruce Rosenthal, Esq.

Attorney for Respondent

120-82 Queens Blvd

Kew Gardens, New York 11415
C. Stephen Hackeling, J.

Upon the following papers numbered 1 thru 2

Read on this motion to dismiss

Notice of Motion and supporting papers 1

Notice of Cross Motion and supporting papers

Answering Affidavits and supporting papers

Affirmation in Opposition and supporting papers 2

Filed papers

Other

The above captioned respondent, Robert Newell, seeks an order of this Court dismissing this "dangerous dog" petition upon several grounds including lack of subject matter jurisdictional, standing to sue, and constitutional grounds. This application is granted (on one basis only).

The threshold argument advanced is that the New York State Agricultural and Markets Law §123 does not grant this Court (the Suffolk County District Court) the subject matter jurisdiction to entertain the petition.

The issue presented is whether this District Court is a "Municipal" Court as envisioned by New York State Agricultural and Markets Law §123(2); which provides

Any person who witnesses an attack or threatened attack, or in the case of a minor, an adult acting on behalf of such minor, may, and any dog control officer or police officer as provided in subdivision one of this section shall, make a complaint under oath or affirmation to any municipal judge or justiceof such attack or threatened attack. Thereupon, the judge or justice shall immediately determine if there is 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 or her special duties, or police officer directing such officer immediately seize such dog and hold the same pending judicial determination as provided in this section. Whether or not the judge of justice finds there is probable cause for such seizure, he or she 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. . . Emphasis Added.

The respondent quite correctly asserts that this Court is not a "municipal Court", but rather is a State Court organized and maintained by the New York State Office of Court Administration. Of considerable note is the fact that when Suffolk County amended its charter by a proposition in 1962, the Western Towns of Babylon, Brookhaven, Huntington, Islip and Smithtown became part of the Suffolk County District Court system. The Uniform District Court Act became effective in those Towns on January 1, 1964, by virtue of §2501 of the Suffolk County Charter, L. 1958, C. 278 as added by L. 1963, C. 570, §3, effective January 1, 1964. People v. Beauvil, 20 Misc 3d 1116(A) (Westbury Vil. Ct. 2008), citing to, Deluca v. Weiss, 40 Misc 2d 562 (Sp. Ct. Spec. Term Suf. Co. 1963), aff'd 13 NY2d 907 (NYAD 2d Dept. 1963), 19 AD2d 862 (NY 1963). Clearly, the use of the word "municipal" Court in the dangerous dog [*2]statute is problematic. The subject "dangerous dog" statute is over forty years old and the use of the word "municipal" was probably utilized to make the statute compatible with the then existing and now repealed "Municipal Court code". See, NY Civ. Ct. Act § 2207. Although the term municipality appears in dozens of New York's statutes, there exists no universally applicable definition of same, and the usual test of what constitutes a "municipality" is somewhat vague and tortured. See generally, Jericho Water Dist. v. One Call Users Council Inc., 37 AD3d 136 (NYAD 2d Dept. 2006).

Fortunately, this Court need not seek to definitionally construe the jurisdictional scope of §123, as an alternative statute provides for same. The District Court has limited jurisdiction and has no equity jurisdiction except as specifically conferred upon it by statute. Mormon v. Acura of Valley Stream, 740 NYS 2d 548 (App. Tem 9th & 10th Dists. 2001) citing to NY Const. Art. VI, Sec. 15; and Petrides v. Park Hill Rest., 265 App. Div. 509 (NYAD 1st Dept. 1943). The general jurisdictional grant of the District Court is found in the Uniformed District Court Act, §§ 101-213. Sec. 213 provides:

§ 213 Jurisdiction of justices of the peace.The Court shall have:(a) concurrently, the jurisdiction of the justices of the peace ofsuch towns of the county as comprise the district court, and(b) in any such town wherein there is no justice of the peace,the jurisdiction such justice would have if there were suchoffice and officer. Emphasis added.

Within the five eastern towns in Suffolk County, Town and Village Justices are Municipal Courts and are authorized to entertain dangerous dog petitions. The office of Babylon Town Justice was abolished in conjunction with the legislative creation of the District Court. Clearly, the New York State Legislature expressly vested the District Court with the subject matter jurisdictional authority to conduct dangerous dog hearings; the same as previously existed in the Town Court.

The Court summarily rejects the respondent's application to dismiss this petition upon "due process" Federal and State Constitutional "forfeiture" grounds for the procedural reason that the New York State Attorney General was not given notice and a sixty-day opportunity to defend

the constitutionality of New York State Agricultural and Markets Law § 123. See, NY CPLR §1012 (b).

This Court also is not persuaded by the respondent's request to dismiss upon assorted theories that the Court lacks jurisdiction to entertain the petition because it is mislabeled as a complaint, and that it fails to state a "cause of action". New York CPLR §105. Definitions § (b) states that the words "Summons" and "Complaint" are interchangeable with "Notice of Petition and Petition" and also that special proceedings are considered "actions". The notarized "complaint" and "Notice of Hearing" forms utilized in this petition are official Court forms which also make reference to two additional affidavits of Alexander Danishevsky and David [*3]Clark. These pleadings give respondent sufficient notice to determine what civil cause of action is being alleged against him.

Lastly, this Court is asked to consider whether the petitioner's self description as the "People of the State of New York" is an impediment to the trial of this petition, for "standing" reasons. Sec.123 expressly limits the ability to commence a dangerous dog action to "any person" who witnesses an attack; any "dog control officer" or "police officer". Neither the State of New York or the "People of the State of New York" (acting through its district attorneys or attorney general) is an authorized petitioner. Accordingly, the Court is compelled to dismiss this petition without prejudice to re-commencement by a party who has standing to sue.

Dated: May 10, 2019

_______________________________

Hon. C. Stephen Hackeling, J.D.C.