Frederick A. Larson, J.
*1 This is a replevin action requiring the Court to determine ownership/custody of a cat. Plaintiffs moved to Wescott Street in the City of Jamestown in September of 2018. Around that time, the Plaintiffs noticed a white cat frequently wandering onto their property looking for food. Plaintiffs state that the cat was quite thin, and had no identification tags. The Plaintiffs assumed that the cat was a stray, named him “Sylvester”, and began feeding the cat in the entry-way of their home. The Plaintiffs fed Sylvester frequently for several months before bringing him into their home. The Plaintiffs took the cat to the veterinarian on January 14, 2019 where he was given shots, treated for fleas, de-wormed, and micro-chipped. The veterinary report states that Sylvester had not been previously micro-chipped, but had previously been neutered prior to January 14, 2019. Plaintiff states that Plaintiff reported Sylvester to be 4-years-old. After having been an indoor cat since January 14, Sylvester accidentally got out of the house on February 2, 2019. Plaintiff's asked their neighbors, who lived across the street, if they had seen Sylvester. The neighbor stated that Sylvester belonged to his girlfriend, the Defendant Ashlynn Anderson, and that she had taken the cat back.
The Defendant states that the cat in question is named Marshmallow. The Defendant testified that Marshmallow was given to her by a co-worker in 2009. Since 2009, Marshmallow has lived in her home on Westcott Street, where the Defendant has resided for about 25 years. The Defendant had Marshmallow neutered as a kitten, but beside that visit, the Defendant has not taken him to the vet in the ten years that she has owned him. However, the Defendant did take Marshmallow for a vet “checkup” following the commencement of this action and after speaking with an attorney. The Defendant also testified that Marshmallow is and “indoor-outdoor” cat. Therefore, he may enter and exit the Defendant's home using a cat-door whenever he chooses. The Defendant stated that at least three of the neighbors are all familiar with Marshmallow, and often feed him treats when he wanders onto their properties. Additionally, the Defendant testified that she has a second cat that also operates in this way, living both inside and outside the Defendant's home to some degree. Based on these habits, the Defendant was not immediately concerned with Marshmallow's failure to return home in January of 2019. The Defendant admitted that Marshmallow had absconded on previous occasions and was missing for a week or two, but eventually returned to her residence. Defendant states that she looked for Marshmallow around the neighborhood a couple weeks after his disappearance without success. The Defendant stated that she did not inquire with the Plaintiff's regarding Marshmallow's whereabouts. Finally, the Defendant's boyfriend found Marshmallow outside on February 2, 2019, and Defendant repossessed Marshmallow.
Plaintiff argues that she is the true owner of the cat based on the lack of identification, overall neglected appearance of the cat, and the effort and money expended to feed and treat the cat for any illness. Defendant argues that she has been the rightful owner of the cat for ten years. Although the cat has lived and “indoor-outdoor” lifestyle, Defendant states that she has fed him and housed him for the duration of her ownership of him. Both parties claim to love the cat, and desire him to be a part of their family. Plaintiff has filed this Replevin Action in order to recover possession of Sylvester (a.k.a. Marshmallow) from her neighbor, the Defendant.
Replevin is a remedy employed to determine “the right of possession as well as recover specific, identifiable items of personal property”. See Practice Commentary following CPLR § 7101; TAP Manutencao e Engenharia Brasil S.A. v. Intern. Aerospace Group, Corp., 127 F.Supp.3d 202 (S.D. NY 2015); Heckl v. Walsh, 122 A.D.3d 1252, 996 N.Y.S.2d 413 (4th Dep't 2014); see also 23 NY Jur Conversion, and Action for Recovery of Chattel § 89. The term “personal property” includes chattels, and the term “chattel” refers to “things that can be used, handled, or transported, as horses, carriages, furniture, machinery, tools, and numberless objects to be seen about us in everyday life, the value of which is in the possession of the thing itself.” Niles v. Mathusa, 162 N.Y. 546, 57 N.E. 184 (1900); see also 23 NY Jur Conversion, and Action for Recovery of Chattel § 89.
Under New York Law, irrespective of how strongly people feel about their pets, cats and dogs have been viewed as “personal property—sometimes referred to as “chattel”—just like a car or a table”. Travis v. Murray, 42 Misc. 3d 447, 452, 977 N.Y.S.2d 621, 625 (Sup. Ct.); ¶ 5; see also Mullaly v. People, 86 N.Y. 365 ; Schrage v. Hatzlacha Cab Corp., 13 A.D.3d 150, 788 N.Y.S.2d 4 [1st Dept. 2004]; Rowan v. Sussdorff, 147 App. Div. 673, 132 N.Y.S. 550 [2d Dept. 1911]; ATM One, LLC v. Albano, 2001 N.Y. Misc. LEXIS 910, 2001 N.Y. Slip Op. 50103[U], 2001 WL 1722773 [Nassau Dist. Ct. 2001] ). The standard for recovery in a replevin action being “superior possessory right in the chattel” Pivar v. Graduate School of Figurative Art of N.Y. Academy of Art, 290 A.D.2d 212, 213, 735 N.Y.S.2d 522 [1st Dept. 2002]. Therefore, it is “the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative.” Travis v. Murray, ¶ 5, 42 Misc 3d 447, 453, 977 N.Y.S.2d 621, 626 (Sup. Ct.).
Nevertheless, there has been a slow evolution in New York case law towards the “de-chattelization” of household pets, and away from the “overly reductionist and utilitarian” view. Id. New York Courts, as well as most Courts across the United States, are unwilling to go so far as to adopt a child custody or “best interests” standard. Travis v. Murray, 42 Misc. 3d 447, 456, 977 N.Y.S.2d 621; see generally Desanctis v. Pritchard, 2002 PA Super 221, 803 A.2d 230, 232 [Pa. Super. Ct. 2002]; Clark v. McGinnis, 298 P.3d 1137 (Kan. Ct. App. 2013); Morgan v. Kroupa, 167 Vt. 99, 702 A.2d 630 (1997); Houseman v. Dare, 405 N.J. Super. 538, 966 A.2d 24 (Super. Ct. App. Div. 2009).
The “best interests” standard has been rejected for several reasons. First, it is difficult if not impossible to truly determine what is in a pet's best interests as there is no proven or practical means of gauging an animal's happiness or “its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag.” Travis v. Murray, ¶¶ 9-10, 42 Misc. 3d 447, 459, 977 N.Y.S.2d 621, 630-31 (Sup. Ct.). The subjective factors that are “key to a best interests analysis in child custody—particularly those concerning a child's feelings or perceptions as evidenced by statements, conduct and forensic evaluations—are, for the most part, unascertainable when the subject is an animal rather than a human.” Id. Second, even if it were possible to ascertain a pet's feelings, and even if a Court could make a finding of a pet's best interests, it is “highly questionable whether significant resources should be expended and substantial time spent on such endeavors ... [t]o allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children”. Id.
Where a “best interests” standard cannot reasonably be applied, and a strict property analysis is neither desirable nor appropriate, New York Courts have developed a “quasi-interests based standard” that “takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue.” Travis v. Murray, 42 Misc. 3d 447, 455, 977 N.Y.S.2d 621; see also Raymond v. Lachmann, 264 A.D.2d 340, 695 N.Y.S.2d 308 (1st Dept. 1999). The standard that has been adopted by some recent Court Decisions in New York is the “best for all concerned” standard. Raymond v. Lachmann, 264 A.D.2d 340, 695 N.Y.S.2d 308 (1st Dept. 1999); Travis v. Murray, 42 Misc. 3d 447, 455, 977 N.Y.S.2d 621.
In accordance with that standard, this Court will analyze proof offered by each party that they will benefit from having the animal in their life, and why the animal has a better chance of living, prospering, loving and being loved in their care. Travis v. Murray, ¶ 10, 42 Misc. 3d 447, 460, 977 N.Y.S.2d 621, 631 (Sup. Ct.); see also Raymond v. Lachmann, 264 A.D.2d 340, 695 N.Y.S.2d 308 (1st Dept. 1999). In this way, the Court hopes to take the intangible needs and interests of a pet into account along with the ordinary indicia of ownership or right to possession (title, purchase, gift, expenses, etc.). Id.
The decision in Travis v. Murray is a good starting point on the evolution of the law's treatment of ownership or custody of pets over the last 100 years. Travis v. Murray, 42 Misc 3d 447, 455, 977 N.Y.S.2d 621. Our perception of pets has clearly shifted over time away from a strict property view and towards a more humanistic and interest based view. Id.
Why Shouldn't the Courts Determine Custody Based on the “Best Interests” of a Pet?
This Court is not persuaded that a court could not evaluate the “best interests” of a pet. Instead, it is the opinion of this Court, that the reason not to use a strict “best interests” standard is the fundamental difference between a human child and a domesticated dog or cat. The “best interests” of the child standard is based on the implicit understanding that the ultimate goal of the Courts is to ensure that the child is nurtured into independent adulthood. It is the future adult that must be the Court's primary consideration, and not the interests of the father or mother. However, in the case of a pet cat or dog, the pet never becomes an independent being apart from the owner. So, if a Court chooses not to apply a property-based standard, and a “best interests of the pet” standard is inappropriate, what is the standard that should be applied in an action to recover custody and possession of a beloved pet?
While it appears the Appellate Division, Fourth Department, has not addressed the issue, this Court concludes that it is time to declare that a pet should no longer be considered “personal property” like a table or car. The Appellate Division, First Department, in a one-paragraph analysis of the contested ownership and possession of 10-year-old Lovey the cat, utilized a test of what was “best for all concerned”. Raymond v. Lachmann, 264 A.D.2d 340, 695 N.Y.S.2d 308 (1st Dept. 1999). Those concerned were the two litigants, and Lovey the cat. Id.
In the instant case, this Court will apply a “best interests of all concerned” standard to the facts and testimony presented at the hearing. On the one hand, the Defendant in this replevin action has owned and possessed Sylvester (aka Marshmallow) for 10 years. The Defendant admitted that she had has only taken Sylvester (aka Marshmallow) to the vet once in that 10-year period (to have him spayed/neutered when he was a kitten). Additionally, the Defendant allowed Sylvester (aka Marshmallow) to come and go in the neighborhood, and the Defendant was aware that Sylvester (aka Marshmallow) was consistently fed by at least three neighbors. However, there is no real evidence of “abuse or neglect” of Sylvester (aka Marshmallow). The Court notes that Sylvester's (aka Marshmallow's) second ever visit to a vet via the Defendant only came about after the Defendant consulted with an attorney regarding defense of the instant replevin action. The Defendant testified that the cat has always been in decent health, and that her children are emotionally attached to Sylvester (aka Marshmallow).
*4 On the other hand, the Plaintiffs' testified that Sylvester (aka Marshmallow) began coming to their home begging for food immediately when they moved to Wescott Street in September of 2018. The Plaintiffs state that they initially let the cat into the entry-way of their home to feed him. The Plaintiffs believed the cat to be a stray. On or about January 14, 2019, the Plaintiffs took Sylvester (aka Marshmallow) into their home, and decided to make him an indoor cat. The Plaintiff's provided Sylvester (aka Marshmallow) with veterinary care including rabies and FURCP vaccine (a vaccine against three potentially deadly airborne viruses). The Court notes that Plaintiffs believed Sylvester (aka Marshmallow) to be a 4-year-old cat at the time of the vet visit in January 2019. This suggests that the cat was in good health, given the fact that the cat was in fact 10 years old. On February 2, 2019, Sylvester (aka Marshmallow) got out of the Plaintiffs' home and ended up across the street at the home of the Defendant.
Best Interests of All Concerned
In a very close decision, the Court finds that the “best interests of all concerned” test leaves the custody of the cat, Sylvester (aka Marshmallow), with the Defendant.
The Court is convinced that Plaintiffs were and are genuinely concerned for Sylvester's (aka Marshmallow's) welfare and spent time and money on his care. While the Court is perplexed that the Defendant never inquired with the Plaintiffs regarding the cat's whereabouts between January 14, 2019 and February 2, 2019, the Defendant has been responsible for the care and custody of Sylvester (aka Marshmallow) for the last decade. Additionally, the Defendant has children who have some emotional attachment to the cat. Finally, when Sylvester (aka Marshmallow) got out of the Plaintiffs' home he may have “voted with his feet” to return to his home of ten years with the Defendant and her children.
Therefore, based an analysis of the law and the evidence presented at the hearing, this Court finds in favor of the Defendant, and the Plaintiff's claim is hereby dismissed.
--- N.Y.S.3d ----, 2019 WL 1984091, 2019 N.Y. Slip Op. 29131