Full Case Name:  Barbara Hale GONZALEZ, Plaintiff–Appellant, v. ROYALTON EQUINE VETERINARY SERVICES, P.C., Jeanne Best, DVM, Niagara County Society for the Prevention of Cruelty to Animals, Inc., Stacey Bailey and Robert A. Winslow, Defendants–Respondents.

Share |
Country of Origin:  United States Court Name:  Supreme Court, Appellate Division, Fourth Department, New York. Primary Citation:  7 N.Y.S.3d 756 (N.Y. App. Div. 2015) Date of Decision:  Friday, May 1, 2015 Judge Name:  MEMORANDUM: Jurisdiction Level:  New York Alternate Citation:  2015 N.Y. Slip Op. 03632 Judges:  SMITH, J.P., CARNI, SCONIERS, VALENTINO, Attorneys:  Muscato, Dimillo & Vona, LLP, Lockport (Brian J. Hutchison of Counsel), for Plaintiff–Appellant. Jones, Hogan & Brooks, LLP, Lockport (Morgan L. Jones, Jr., of Counsel), for Defendants–Respondents Royalton Equine Veterinary Services, P.C. and Jeanne Best, DVM. William C. Moran & Associates, P.C., Williamsville (William James Hardy of Counsel), for Defendant–Respondent Niagara County Society for the Prevention of Cruelty to Animals, Inc. Kenney Shelton Liptak Nowak LLP, Buffalo (Robert A. Crawford, Jr., of Counsel), for Defendant–Respondent Stacey Bailey. Hiscock & Barclay, LLP, Albany (Jonathan H. Bard of Counsel), for Defendant–Respondent Robert A. Winslow
Summary: Veterinarian contacted State Police after allegedly observing deplorable conditions in Plaintiff's barn. The premises were subsequently searched, and a horse and three dogs were removed and later adopted. Plaintiff commenced an action in City Court for, inter alia, replevin, and several defendants asserted counterclaims based on Lien Law § 183. The Lockport City Court entered partial summary judgment in favor of owner and ordered return of animals. On appeal, the Niagara County Court, reversed and remanded. Owner appealed to the Supreme Court, Appellate Division, Fourth Department, New York. The Court found the Niagara County Society for the Prevention of Cruelty to Animals, Inc. (SPCA) was not required to bring a forfeiture action to divest Plaintiff of ownership of the seized animals because the animals were kept in unhealthful or unsanitary surroundings, the plaintiff was not properly caring for them, and the plaintiff failed to redeem the animals within five days before the SPCA was authorized to make the animals available for adoption. The city court’s order was affirmed as modified.

*1 In 2009, defendant Jeanne Best, DVM, allegedly observed deplorable conditions in plaintiff's barn and contacted the State Police, who subsequently conducted a search of plaintiff's premises and removed a horse and three dogs therefrom with the assistance of defendant Niagara County Society for the Prevention of Cruelty to Animals, Inc. (SPCA). Best fostered one of the dogs, which thereafter died, and subsequently adopted the horse. Defendants Stacey Bailey and Robert A. Winslow each fostered, then subsequently adopted, another dog. Plaintiff commenced an action in City Court for, inter alia, replevin, and several defendants asserted counterclaims based on Lien Law § 183. City Court granted plaintiff's motion for, inter alia, partial summary judgment on her cause of action for replevin, ordered the return of the horse and the two living dogs, and dismissed all counterclaims. On appeal, County Court reversed City Court's order, finding triable issues of fact with respect to the cause of action for replevin and reinstating the counterclaims based on Lien Law § 183. Plaintiff contends on appeal to this Court that she was entitled to summary judgment dismissing those counterclaims, as well as summary judgment on her replevin cause of action and the return of the seized animals.

Addressing first Lien Law § 183, we note at the outset that defendants Royalton Equine Veterinary Services, P.C., and Best have abandoned their counterclaims based on that statute. With respect to Bailey's counterclaim based on section 183, we agree with plaintiff that County Court erred in determining that City Court improperly dismissed that counterclaim, and we therefore modify the order accordingly. Plaintiff established the inapplicability of Lien Law § 183 inasmuch as plaintiff did not have an agreement with Bailey for services rendered prior to the seizure of the animals (see id.), and Bailey failed to raise a triable issue of fact in opposition (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Plaintiff contends that the SPCA was required to bring a forfeiture action to divest her of ownership of the seized animals, and that its failure to do so renders her their rightful owner and entitles her to summary judgment on the cause of action for replevin. We reject that contention. The animals at issue were seized pursuant to a warrant because plaintiff was keeping them in unhealthful or unsanitary surroundings and was not properly caring for them (seeAgriculture and Markets Law § 373[2] ). At that point, plaintiff had five days in which to redeem the animals before the SPCA was authorized to make the animals available for adoption (see§ 374[2]; Montgomery County Socy. for Prevention of Cruelty to Animals v. Bennett–Blue,255 A.D.2d 705, 706, 681 N.Y.S.2d 106). Thus, contrary to plaintiff's contention, it was not necessary for the SPCA to bring a forfeiture action. Rather, it was plaintiff's burden on her motion to establish as a matter of law that she either redeemed the animals within the statutory redemption period or that she did not abandon them. She failed to meet that burden, and she therefore failed to establish as a matter of law that she was lawfully entitled to possess the animals or that defendants had unlawfully withheld them from her (see§§ 373[2]; 374[2], [6]; see also Khoury v. Khoury, 78 A.D.3d 903, 904, 912 N.Y.S.2d 235; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

*2 It is hereby ORDERED that the order so appealed from is unanimously modified on the law by reinstating the order of Lockport City Court to the extent that it granted that part of plaintiff's motion seeking dismissal of the counterclaim asserted by defendant Stacey Bailey pursuant to Lien Law § 183, and as modified the order is affirmed without costs.

 

Share |