For a time, Cornell University’s Animal Science Teaching and Research Center paid for the care of a population of feral cats living in the Center’s diary barns.

In response to health and safety concerns, the Center implemented a policy aimed at reducing the feline population. When employees were instructed to suspend feedings while the Center trapped and dispersed the animals, John Beck, a part-time Center employee, continued to feed them with food he purchased. Beck also reported the Center’s actions to the local Society for the Prevention of Cruelty to Animals which ultimately concluded that the policy did not comprise a form of animal cruelty.

When Beck's cruelty allegations appeared in a local newspaper, he was fired for insubordination.

After Beck filed suit alleging negligence and prima facie tort, the Center convinced a Tompkins County Supreme Court justice to dismiss the case.

On appeal, the Appellate Division, Third Department, affirmed, explaining that while depriving animals of food or drink may constitute a misdemeanor, the law does not confer a basis for securing civil damages or other relief on that ground.

And, despite Beck’s allegation that his dismissal violated the University’s termination policy, the record demonstrated that the institution retained the right to fire part-time employees at any time, for any reason.

According to the AD3, “an at-will employee has ‘no viable claim for a wrongful discharge or breach of contract against an employer and a prima facie tort claim cannot be utilized to circumvent the unavailability of those claims.’”

So, as far as Beck is concerned, the cats are out of the bag.

“Time spent with cats is never wasted.”

 – Sigmund Freud

For a copy of the Appellate Division's decision, please use this link: Beck v. Cornell University

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

Bishop and Storm were sentenced to death by a Suffolk County District Court Judge for attacking, and seriously injuring, Sophie.

How is such a draconian result possible, you ask?

Well, Bishop and Storm were "repeat offenders" and since Sophie had been their third victim, the District Court Judge declared the miscreant pair to be "dangerous" and ordered them "humanely destroyed."

New York courts are empowered by state law to direct that "dangerous dogs" be euthanized when "aggravating circumstances" warrant that penalty's imposition. These circumstances include:

• an unjustified attack which causes serious physical injury or death to a human being;
• a prior unjustified attack which causes physical injury or death to a human being; or
• a prior unjustified attack which caused serious physical injury or death to a "companion animal, farm animal or domestic animal" which resulted in a "dangerous dog" finding.*

On appeal, the Appellate Term, 9th and 10th Judicial Districts, found none of these "aggravating circumstances" present when the District Court directed the animals' destruction. As a result, the appellate court spared Bishop and Storm an untimely demise, but promulgated an extensive series of requirements as a condition for allowing their continued existence. We thought they were interesting, so here they are:

1) that said dogs shall be neutered and microchipped, and proof of neutering and microchipping filed with the court below, within 30 days of the service of the order entered hereon with notice of entry; 2) that said dogs, when in public, shall be muzzled as provided by Agriculture and Markets Law § 121 (2) (d) and restrained by a person not less than 21 years of age; 3) that when not so restrained, said dogs shall be confined within the owner's house or in a locked pen constructed of cyclone fencing or substantially similar metal-based material, the sides of which are to be so affixed to posts and to a concrete footing and/or pad that the dogs cannot push through, climb over or dig out of such pen, which is to be no less than six feet in height and provided with appropriate shelter from the elements in accordance with Agriculture and Markets Law § 353-b, plans for said pen and shelter to be submitted to the court below for review to determine compliance herewith within 90 days of service of the order entered hereon with notice of entry, and construction to be completed within a reasonable period to be determined by the court below; and 4) that defendant shall maintain a liability insurance policy in an amount of no less than $75,000 for personal injury or death resulting from attack by either or both of said dogs, proof of said coverage to be filed with the court below within 60 days of service of the order entered hereon with notice of entry, and yearly thereafter so long as either or both said dogs shall be housed within the jurisdiction of the court below ....

The result seems rather dogged, wouldn't you agree?

To download a copy of the Appellate Term's decision, please use this link: Cuozzo v. Loccisano

______________________

*Agriculture and Markets Law section 121(3) provides as follows:

Upon a finding that a dog is dangerous, the judge or justice may order humane euthanasia or permanent confinement of the dog if one of the following aggravating circumstances is established at the judicial hearing held pursuant to subdivision two of this section:

(a) the dog, without justification, attacked a person causing serious physical injury or death; or

(b) the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death; or

(c) the dog, without justification, caused serious physical injury or death to a companion animal, farm animal or domestic animal, and has, in the past two years, caused unjustified physical injury or death to a companion or farm animal as evidenced by a "dangerous dog" finding pursuant to the provisions of this section. An order of humane euthanasia shall not be carried out until expiration of the thirty day period provided for in subdivision five of this section for filing a notice of appeal, unless the owner of the dog has indicated to the judge in writing, his or her intention to waive his or her right to appeal. Upon filing of a notice of appeal, the order shall be automatically stayed pending the outcome of the appeal.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

Darlene Feger sued the Warwick Animal Shelter in Orange County Supreme Court for money damages and to recover possession of "Kisses," her stolen cat. Apparently, the shelter accepted the white purebred Persian cat knowing that the animal had been purloined. And, to confound matters further, it was also alleged that Kisses had been released for adoption and her new custodians now called her "Lucy."

After preliminary motion practice, the Supreme Court dismissed Ms. Feger's case against the Animal Shelter finding "statutory immunity" pursuant to the Agriculture and Markets Law section 374(3). On appeal, the Appellate Division, Second Department, found that while Ms. Feger could not recover "emotional" or "punitive" damages, she could still pursue her case for the animal's recovery. However, since there was still a question as to whether "Lucy" and "Kisses" were the identical cat, a trial was needed to resolve that aspect of the dispute.

What's stolen Kisses worth?

And, will the Supreme Court compel the animal's new custodians to fork over Kisses?

Stay tuned!

For a copy of the Appellate Division's decision in the Feger v. Warwick Animal Shelter, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03534.htm

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

Are you ready for a decision that reads like an unbelievable children's story?

On September 27, 2001, Larry Bard, a self-employed carpenter, had an encounter with a hornless dairy bull named "Fred." At about 9:00 AM, while on his knees removing bolts fastened to the concrete bed of a stall at Hemlock Valley Farms in Otsego County, Bard was surprised by Fred's sudden appearance and "beller." As Bard rose from the floor, Fred--who was positioned only a few feet away--charged and slammed Bard into some pipes. Eventually, Bard was able to escape, but not before incurring fractured ribs, a lacerated liver, and the worsening of a preexisting cervical spine condition.

Claiming entitlement to compensation for his injuries based on theories of strict liability and negligence, Bard and his wife later sued Hemlock Farms in the Otsego County Supreme Court. After motion practice, the Supreme Court found that Bard had not stated a basis for relief and dismissed the case. On appeal, the Appellate Division, Third Department, felt it was "compelled" to agree with the outcome and affirmed the dismissal.

Since New York law defines a bull as a "domestic animal," an owner is not "strictly liable" for injuries caused by such a creature unless the owner knew or should have known of its "vicious and violent propensities"--elements that could not be satisfied here since Fred reportedly never injured another person or animal nor behaved in a hostile or threatening manner prior to the incident with Bard. While Bard's evidence consisted of an expert's affidavit which concluded that bulls are "generally dangerous and vicious animals," the Appellate Division found the affidavit "insufficient to raise a question of fact" or, in other words, not strong enough to allow Bard's case to proceed.

The Appellate Division refused to recognize particular types or breeds of domestic animals as more "dangerous" than others. In this regard, the court noted:

As this Court has consistently, and recently, reiterated, the particular type or breed of domestic animal "alone is insufficient to raise a question of fact as to vicious propensities"...In other words, "there is no persuasive authority for the proposition that a court should take judicial notice of the ferocity of any particular type or breed of domestic animal"...Thus here, the professor's affidavit attesting to the alleged viciousness of breeding bulls in general was insufficient to raise a question of fact...Accordingly, summary judgment was properly granted to defendants.

On May 2, 2006, the New York State Court of Appeals affirmed the Appellate Division's order, and went a step further. In its decision the court opted to foreclose an injured party's ability to bring a common-law negligence claim against the owner of a domestic animal. Notwithstanding the fact that some twenty U.S. states follow the "Restatement (Second) of Torts," which provides that an owner may still be found guilty of ordinary negligence, even in the absence of vicious propensity, when the owner "intentionally causes the animal to do harm, or is negligent in failing to prevent harm," the state's highest court declined to follow that rule.

In a strongly worded dissent, Judge Robert S. Smith objected to the unfairness of the standard which the court was espousing. The dissenter observed as follows:

The rule the majority adopts is contrary to simple fairness. Why should a person who is negligent in managing an automobile or a child be subject to liability, and not one who is negligent in managing a horse or bull? Why should a person hit by a subway train be able to recover and one hit by a breeding bull be left without a remedy? I think there are no good answers to these questions, and it is possible to imagine future cases that will put the rule adopted by the majority under strain. Suppose, for example, a variation on the facts of Collier: What if defendant there had encouraged a child to play not with a grown dog, but with a litter of puppies, thus predictably provoking an otherwise gentle mother dog to rage? Or suppose facts...where a bull was stirred to attack because his owner negligently caused him to be driven through an area where fresh blood was on the ground? In such a case, we could either deny recovery to a deserving plaintiff, despite negligence more blatant than what Jahnke [Fred's owner] is accused of here, or we could invent a "mother dog" exception or a "fresh blood" exception to the rule adopted in this case. I think it would be wiser to follow the Restatement rule, as has almost every other state that has considered the question.

While the dissenter raises some interesting points, it remains the law of this state that in the absence of proof as to an animal's "vicious propensity," a negligence case may not be maintained. And that, my friends, is no bull.

For a copy of the Court of Appeals's decision in Bard v. Jahnke, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03440.htm

For a copy of the Appellate Division's decision in Bard, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2005/2005_01979.htm

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

We couldn't let the day pass without commenting on the usually high number of animal-cruelty decisions that were published this past week.

On Thursday, March 30, 2006, we reported on the Appellate Division's criminalization of "goldfish abuse." Just one day later, on Friday, March 31, 2006, the New York Law Journal (on page 24, column 1) published People v. Mary Dawn SItors, a decision by the Honorable Judge George R. Bartlett, III, of Schoharie County, wherein the Court was asked to determine whether the starvation of horses comprised a violation of New York State's animal-cruelty law.

Section 353 of the Agriculture and Markets Law provides as follows:

"A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who willfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal or any act tending to produce such cruelty, is guilty of a misdemeanor...."

Despite the statute's unequivocal language, a Town Justice determined that "so long as the animals are alive, there cannot be a finding of animal cruelty ...."

On appeal, rational minds prevailed and Judge Bartlett set aside the Town Court's determination. Judge Bartlett found that animal cruelty encompasses a "broad range of acts or omissions" and cited to a long line of cases which instruct that "'cruelty to an animal includes every unjustifiable act, omission or neglect causing pain, suffering or death which is caused or permitted. The test of cruelty is the justifiability of the act or omission' (citations omitted)."

We shudder to think what mischief our fellow citizens will think up next. And, after all that political-correctness hoopla that preceded the Christmas holiday season, should we now counsel the Easter Bunny to seek protective custody?

Posted by Lucas A. Ferrara, Esq. at 9:19 PM | Permalink | TrackBacks (0) | Comments (0)

Many of us, at one point or another, have owned a goldfish (or two) or know of a family member or friend who shares a home with those lovable cold-blooded creatures. But I'm willing to wager that most of our readers are unaware that goldfish now have "rights" under New York State law.

In a decision released on March 28, 2006, the Appellate Division, First Department, concluded that those who kill or abuse goldfish can be found guilty of a crime; a felony. To reach that end result, the court looked at a state statute known as the Agriculture and Markets Law, which provides, in part, as follows:

A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty. For purposes of this section, aggravated cruelty shall mean conduct which: (i) is intended to cause extreme physical pain; or (ii) is done or carried out in an especially depraved or sadistic manner.

The term "companion animal," as used in the preceding paragraph, is statutorily defined as follows:

"Companion animal" or "pet" means any dog or cat, and shall also mean any other domesticated animal normally maintained in or near the household of the owner or person who cares for such other domesticated animal. "Pet" or "companion animal" shall not include a "farm animal" as defined in this section.

While the defendant's counsel argued that fish are not "companion animals" because they are not "domesticated and because there is not reciprocity or mutuality of feeling between a fish and its owner," the appellate court quickly flushed these and other arguments down the proverbial toilet.

For a copy of the Court's decision, please click this link:
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_02315.htm

Posted by Daniel Finkelstein, Esq. at 3:20 PM | Permalink | TrackBacks (0) | Comments (2)