Supreme Court, New York County
Woods v. KittyKind, Inc.
2005 WL 1404712 (N.Y.Sup.,2005 (not reported))
The plaintiff wanted to recover possession of her cat that was allegedly: stolen from her home, accepted by an animal shelter with knowledge of the theft, and adopted by another party. The plaintiff moved to compel the shelter to disclose the identity of her cat's adopter. The judge granted the motion because the identity of the adopter was relevant to the action since the plaintiff's allegation that the shelter knowingly accepted a stolen cat invalidated the adoption.
MARYLIN G. DIAMOND
delivered the opinion of the court.
Opinion of the Court:
[*1] In this action, plaintiff seeks the recovery of her lost cat. She claims that she first discovered that the cat was missing on September 27, 2004 when she returned home from a weekend trip. She asserts that she immediately made substantial efforts to locate the cat, such as posting signs in her neighborhood and contacting the local ASPCA. Plaintiff alleges that sometime during the first week of October, 2004, she was informed that her cat had been taken to the not-for profit animal shelter maintained by defendant KittyKind, Inc. inside a PetCo store in Manhattan. The plaintiff further alleges that KittyKind improperly allowed defendant “Jane Doe” to adopt the cat after failing to take the legally-required steps to locate the cat’s rightful owner. Plaintiff also alleges that KittyKind has refused to give her the name and address of the defendant “Jane Doe,” thus impeding her ability to recover the cat and/or serve “Jane Doe” with the summons and complaint. The complaint asserts two causes of action. The first cause of action is against KittyKind and seeks a permanent injunction restraining KittyKind from allowing any animals in its custody to be adopted without waiting a minuium of five days and without checking the lost animal registries. The second cause of action is against defendant “Jane Doe” and seeks the return of the plaintiff’s cat.
Plaintiff now moves for an order compelling KittyKind to disclose in writing the identity, legal name, telephone number and address of the defendant Jane Doe. KittyKind has cross-moved to dismiss the complaint.
In opposing the plaintiff’s application and cross-moving to dismiss, KittyKind has submitted an affirmation from its attorney, Beth C. Seligman, in which she states that, under the applicable law, five days after a stray cat lacking a collar or other means of identification has been rescued from the street, a shelter such as KittyKind may put the animal up for adoption. According to Ms. Seligman, the original owner thereafter loses all rights to recover possession of the animal. Ms. Seligman contends that the law was followed with respect to the cat in question, that plaintiff has thus lost her ownership rights and that she is therefore not entitled to obtain any personal information about the person who took custody of the cat.
There are two serious deficiencies in the defendant’s papers. First, Ms. Seligman has not cited any statute, regulation or case law which supports her argument that once a party has been properly given custody of a cat or dog which was believed to be abandoned, the original owner loses his or her custody rights to the animal. There is a distinction between allowing a shelter to make a lost animal available for adoption and extinguishing the original owner’s rights to the animal. One does not necessarily follow from the other. Indeed, under the common law, an original owner’s title to even a wild animal captured by another party is not lost if there is no animus revertendi (return to its wild state) or any likelihood of recapture. See Brown on Personal Property (1955), § 10, pp. 18-19.
[*2] In any event, the second problem with defendant’s papers is that Ms. Seligman’s assertion that KittyKind satisfied all applicable laws regarding a waiting period before putting the cat in question up for adoption is not based on her personal knowledge and therefore lacks any probative value. See, e.g., Sutton v. East River Savings Bank, 55 N.Y.2d 550, 554 (1982); Zuckerman v. City of New York, 49 N.Y.2d, 557 (1980). Notably, the defendant has failed to provide the court with any relevant business records or an affidavit from anyone who is administratively responsible for processing any animals in the shelter, much less the animal in question. In view of the plaintiff’s obvious need to obtain the requested information about the person who adopted the animal, her motion should be granted and the defendant’s cross-motion denied.
Accordingly, plaintiff’s motion is granted to the extent that within ten days of receipt of a copy of this order with notice of entry, defendant is hereby directed to provide plaintiff’s counsel with the name and address of the defendant “Jane Doe.” KittyKind’s cross-motion to dismiss is denied. KittyKind shall answer the complaint within 20 days of receipt of a copy of this order with notice of entry.
The parties shall appear for a preliminary conference on June 7, 2005 at 10:30 am in Room 412, 60 Centre Street, New York, New York.