Full Case Name:  Christopher M. Mitchell, Plaintiff, v. Madeline R. Snider, Defendant.

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Country of Origin:  United States Court Name:  Civil Court of the City of New York Primary Citation:  41 N.Y.S.3d 450 (N.Y. Civ. Ct. 2016) Date of Decision:  Friday, March 18, 2016 Judge Name:  Erika M. Edwards Jurisdiction Level:  New York Alternate Citation:  51 Misc. 3d 1229(A); 2016 WL 3191291 Attorneys:  Plaintiff's Counsel Cari B. Rincker, Esq. Rincker Law, PLLC 535 Fifth Avenue, 4th Floor New York, NY 10017 212-427-2049 and David M. Fish, Esq. 3 Park Avenue, 28th Floor New York, NY 10016 212-869-1040 Defendant's Counsel Peter M. Nissman, Esq. Law Office of Peter M. Nissman 100 Wall Street, 23rd Floor New York, NY 10005 212-750-1276 Docket Num:  CV-017738-14/NY
Summary: This is a case of an unmarried, co-habitating couple that jointly bought a dog and now dispute who should have the dog after the relationship has terminated. Mitchell brought this replevin action against his girlfriend, Snider, to recover possession of Django, their black lab. This court recognized the traditional way to treat such a case is to consider which party has superior possessory right to the dog. However, modern courts have started to recognize a special category of property in pets and have used a 'best for all concerned' analysis to decide who gets the animal. In this case, the court grants judgment for Snider in part because she had been solely responsible for the dog's care for the previous 20 months. No money was awarded to Mitchell because the expenses he paid were an expression of the parties' mutual love and desire to care for the dog.

Plaintiff, Christopher Mitchell (“Plaintiff”), brought this action against his ex-girlfriend, Defendant Madeline Snider (“Defendant”), seeking to recover possession of a five year old male black Labrador Retriever named “Django.” Plaintiff alleged that he was the sole owner of the dog, valued at $200, and he sought to recover monetary damages in the amount of $5,055.00 for Defendant's wrongful possession and detention of his dog. Defendant alleged that they were joint owners and counterclaimed for a judgment declaring that it is best for all concerned for *2 Django to remain in Defendant's sole possession.

After a trial held before this court on February 8, 2016, where both parties testified and presented documentary evidence, this court determines that both parties were joint owners of their dog, but that it is best for all concerned for Django to remain in Defendant's sole possession and care to the exclusion of Defendant. As such, the court grants judgment in favor of Defendant.

Prior to trial, the parties stipulated that the applicable standard is “the best for all concerned,” as set forth in Travis v Murray (Travis v Murray, 42 Misc 3d 447, 460 [Sup Ct, NY County 2013]). Notwithstanding the Stipulation of the parties, the court determines that this is the correct standard to be applied in dog possession cases.

In Travis, the court discussed the evolution of dog possession cases in New York and determined that courts should hold a limited one day hearing to consider what is “best for all concerned” when determining which party should possess a dog in a divorce proceeding (Id).

In non-matrimonial cases New York courts recognize that replevin is the remedy to recover possession of a dog when a party refuses to return it (Nero v Fiore, 2016 NY Misc LEXIS 627, 2016 NY Slip Op 30332[U] [Sup Ct, Suffolk County 2016]; LeConte v Lee, 35 Misc 3d 286 [Civ Ct, NY County 2011]; and Webb v Papaspiridakos, 23 Misc 3d 1136[A], 889 NYS2d 884 [Sup Ct, Queens County 2009]). Traditionally, courts considered which party has the superior possessory right to the dog, rather than his or her respective abilities to care for the dog or the emotional ties to the dog (Travis, 42 Misc 3d at 453). However, over the years, courts began to recognize that, unlike other types of property, companion animals are treated as a special category of property, which is consistent with underlying public policy to protect the welfare of animals (Feger v Warwick Animal Shelter, 59 AD3d 68, 71-72 [2d Dept 2008]; Hennet v Allan, 43 Misc 3d 542, 547 [Sup Ct, Albany County 2014]).

In Raymond v Lachmann, when determining the ownership and possession of a cat, the court recognized “the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily” (Raymond v Lachmann, 264 AD2d 340, 341 [1st Dept 1999]). The court considered intangible, subjective factors which transcended the ordinary strict property analysis used to determine ownership and superior right to possession. The court considered what was “best for all concerned,” and determined that, considering the elderly cat's life expectancy, the special relationship that existed between the cat and the person who cared for the cat, it should remain where it has “lived, prospered, loved and been loved for the past four years” (id). Several courts have applied the “best for all concerned” analysis (Nero, 2016 NY Misc LEXIS 627; Ramseur v Askins, 44 Misc 3d 1209[A], 997 NYS2d 101 [Civ Ct, NY County 2014]; Gellenbeck v Whitton, 2015 NY Misc LEXIS 637, 2015 NY Slip Op 30289[U] [Sup Ct, NY County 2015] Travis, 42 Misc 3d 447; Hennet, 43 Misc 3d 542)

In a case where both parties claimed to have purchased and selected a dog together and they both have a strong relationship with the dog and extensive involvement with the dog's care, the court was tasked to determine which party had the most genuine right of possession through his or her conduct (Hennet, 43 Misc 3d at 547-48). Such analysis required consideration of how the dog was acquired and cared for and the arrangement between the parties after one party left their joint residence (id.).

When determining whether to compensate a party for the loss of a pet, courts can only consider the fair market value of the pet (Travis, 42 Misc 3d at 452; see *3 Jason v Parks, 224 AD2d 494 [2d Dept 1996] [courts cannot consider the sentimental value of the pet in a case involving emotional distress caused by the negligent destruction of a pet]). In a matrimonial action where temporary possession of a dog was awarded to one party, the court determined that final possession of the dog would be determined at trial and a credit for any proven value of the dog against a possible distributive award or division of other tangible marital property could be awarded at that time (C.R.S. v T.K.S., 192 Misc 2d 547, 549-50 [Sup Ct, NY County 2002]).

In the instant matter, the court will consider which party should have sole possession of the dog, whether the losing party should be awarded damages, and if so, how such damages should be calculated. As an initial matter, the court will consider who owns the dog or whether the parties are co-owners. This analysis should include who paid for the dog, whether it was intended as a gift to another, whose name was listed as the owner of the dog on ownership-related documents, like vaccination, license, registration and veterinary records, who bore the primary responsibility for caring for the dog and who held themselves out as the owner through his or her words and actions.

Although important, ownership is just one factor to consider when determining who should possess the dog based on the best for all concerned analysis. The court must also consider intangible factors such as why each party would benefit from having the dog in his or her life and why the dog has a better chance of prospering, loving and being loved in the care of one party or the other (Raymond, 264 AD2d at 341; Travis, 42 Misc 3d at 460). Additionally, the court considers who is in the best position to meet the dog's daily physical and emotional needs based on a healthy, active lifestyle, time constraints, type of home and yard, emotional bond, safety concerns, financial ability, opportunities to socialize with other dogs, access to dog-friendly parks and outdoor activities and access to veterinary care and pet stores. The court will also consider each party's ability to care for the dog, including, but not necessarily limited to, feeding, watering, walking, grooming, bathing petting, playing, training, taking the dog to the veterinarian and engaging in other recreational and dog-friendly activities.

During the trial, both Plaintiff and Defendant testified. It is undisputed that Plaintiff and Defendant met in Guatemala in the summer of 2008 while they were volunteering for a nonprofit organization and they began dating in 2009 when Defendant returned to Guatemala after graduating from College. They began living together in early 2010 and bought a ten week old black male puppy Labrador Retriever named Django in April, 2011. Both parties were listed as owners on the initial pet information card and vaccination record. They both researched what breed to get, whether to adopt or buy, which breeder, trainer and veterinarian to use, how to transport the dog to the United States, how to tend to most of the dog's needs and shared all major decisions about their dog.

While living in Guatemala, Plaintiff earned a stipend as the volunteer coordinator and had flexible hours, while Defendant worked as an unpaid volunteer teacher. It was difficult for Defendant to find coverage to leave class during school hours. Therefore, Plaintiff spent more time with the dog during daytime hours and he paid for almost all of the dog's expenses. Plaintiff paid $160 to purchase the dog, he paid for the veterinary visits and for most of the food, toys and supplies. Although both parties fed, watered, trained, groomed, bathed, walked, played and engaged in recreational activities with the dog, Plaintiff handled more of the dog's needs, since he spent more time with the dog. Defendant handled other household responsibilities.

In June, 2011, the parties moved to New York so Plaintiff could attend graduate school and Defendant could attend law school. Plaintiff paid to transport the dog to New York. In *4 August, 2011, the parties and the dog moved into a one bedroom apartment in Manhattan, where Defendant still resides. Again, both parties cared for, fed, watered, groomed, walked and played with the dog, but Plaintiff spent more time with the dog and purchased most of the food, supplies and toys for the dog.

Defendant explained that Plaintiff paid for most of the dog's expenses because they preferred a particular brand of dog food and it was more convenient and economical for Plaintiff to buy the food in bulk and to buy supplies at a store near his school where he could carry the items home in a compartment attached to his bicycle. Defendant paid for the food, toys and supplies when she purchased them from a more expensive local pet store. When the parties took an extended trip abroad, Defendant's father and his girlfriend took care of the dog and Plaintiff left them detailed instructions on how to do so.

There was a noteworthy incident when Defendant alleged that Plaintiff violently kicked the dog in the ribs, causing the dog to squeal and causing Plaintiff and Defendant to argue. Plaintiff argued that he merely pushed the dog away to prevent him from eating bones on the ground. Additionally, Plaintiff purchased a dog trailer for his bicycle so he could ride with the dog, but the dog appeared to hate being confined and broke the trailer.

In May, 2013, Plaintiff ended his four year relationship with Defendant, moved to Brooklyn and began seeing his current partner that summer. Defendant was extremely upset about the break up and initially consented to permit Plaintiff to take the dog with him. Shortly thereafter, Defendant asked to see the dog and Plaintiff complied. The parties divided up their property, including the dog's supplies and toys, and they arranged to alternate time caring for the dog between each other's homes every two to three weeks. Each party was responsible for paying for the dog's expenses while the dog was within his or her care. However, the dog continued to vacation with Defendant and her family.

This arrangement worked well for about a year, until Plaintiff decided to move across country and it was no longer feasible for the parties to continue their shared care arrangement. Beginning in April, 2014, Plaintiff advised Defendant that the dog appeared to exhibit signs of separation anxiety and that it would be best if the dog had one permanent home. Defendant denied observing such signs. Plaintiff also advised Defendant that he was applying to jobs out of state and thinking about moving to Portland. Defendant feared that Plaintiff would take the dog permanently because he refused to advise Defendant of when he was moving and where he was going. Over the next couple of months Plaintiff repeatedly tried to resolve their issues by convincing Defendant to let him take the dog permanently and to continue with their temporary shared arrangement, but in June, 2014, Defendant refused to let Plaintiff take the dog. At the end of June, 2014, Plaintiff moved to Seattle with his partner. Since Defendant had refused to let him see the dog since June, he filed the law suit in July, 2014.

Plaintiff testified in substance that it would be the best for all concerned if the dog lived with him because he lives in a large house with a yard in a dog-friendly Seattle suburban community with a lot of open spaces, parks, trails and dog parks. He and his partner have a lot of time to share with the dog and the dog would have a lot of opportunity to socialize with other dogs and prosper. Defendant lives in a small apartment, works long hours and he implied that she has to send the dog to a doggy daycare and dog walker because she does not have the time to adequately care for the dog on her own.

Defendant testified in substance that it would be the best for all concerned for the dog to stay with her because for the past 20 months, she has been solely responsible for the dog's care *5 and he appears to be extremely happy and healthy. Defendant works reasonable hours at a law firm which permit her to spend a lot of time with the dog during the mornings, evenings and weekends. She feeds the dog with a special diet which includes a variety of dry and freeze dried foods, warm water, vitamins, mint dental chews and she gives him daily heart worm pills and medication when needed. Defendant walks the dog in the mornings and evenings and she retained the services of a dog walker who walks the dog alone and with other dogs during weekday afternoons. She spends a lot of time outdoors with the dog on the weekends and during vacations with her family and she makes sure that the dog sees the veterinarian on a regular basis. Over the years she has developed a strong bond with the dog and he responds to her moods. Additionally, Defendant implied that Plaintiff does not love the dog as much as she does because he never asked Defendant or her family for pictures of the dog, nor sent any toys or gifts to the dog during the 1 ½ years from the time he filed the law suit until the trial.

Based upon the testimony of both witnesses and evidence presented at trial, the court finds that both parties were co-owners of the dog. It is evident that both parties intended to be joint owners of the dog at all times until Plaintiff decided to leave the New York area and he realized that he might not be able to see the dog again. Until this point, both parties loved and cared for the dog together and they both developed a strong bond with the dog. Together they agreed to get the dog, select the dog, name the dog and list both of their names as owners of the dog on the initial vaccination records. Additionally, they both held themselves out to their family and friends as co-owners of the dog in emails and through their words and actions.

It is clear that in this case the records pertaining to ownership are not indicative of which party actually owns the dog. Plaintiff listed himself as owner when he set up accounts with the veterinarian and pet store, when he got a dog license and when he took the dog to get groomed, microchipped and neutered. Similarly, Defendant listed herself as owner when she renewed the dog license and when she set up an account with a doggy daycare and dog walking service.

Although the court credits the vast majority of Plaintiff's testimony, it finds Defendant's testimony to be more credible and persuasive regarding issues in dispute based on the totality of the evidence. For example, the parties disagreed on whose idea it was to get a dog and who did the initial research to find a breeder, neutering service, veterinarian and to determine the procedures necessary to transport the dog to the United States. Plaintiff testified that it was his idea to get a dog, but Defendant demonstrated that she sent Defendant several emails with photographs of puppies begging him to agree to let them get a dog. Similarly, Plaintiff testified that it was his dog and that he was the one who documented all of the important information pertaining to the dog. However, Defendant introduced several emails in which Plaintiff indicated that the dog belonged to both of them and that Plaintiff's purported notes about his research were predominantly based on previous emails that Defendant sent to him detailing her internet research and conversations that she had with others.

Additionally, the timing and nature of some of Plaintiff's actions may have been motivated more to harass Defendant and strengthen his court case, than to show concern for the dog's well-being. For example, although the dog resided in New York City for almost three years, Plaintiff registered the dog in his name the day after he met with Defendant and they argued about Plaintiff taking the dog permanently. Additionally, Plaintiff tried to meet with Defendant to discuss the dog having a permanent home when he knew Defendant was taking her law school final examinations. Plaintiff threatened Defendant's future career by warning her that if she did not give him the dog by a deadline which was close to the bar examination, then he *6 would file this lawsuit and she would have to disclose the suit to the Character and Fitness Committee. Additionally, Plaintiff served Defendant with the summons and complaint just days before she was going to take the bar examination. Finally, although Plaintiff claimed to love dogs, there was no testimony that he bought another dog at any time during the 20 months since he last had Django.

Furthermore, Defendant arranged for emergency contingencies and listed Plaintiff as an emergency contact with the doggy daycare and dog walker and she tried numerous times to give Plaintiff copies of the dog's health records in case of emergency. However, Plaintiff never listed Defendant's name as an emergency contact on any of the records and even though his partner cared for the dog alone at times, Plaintiff never provided Defendant's contact information to his partner, nor did he provide his contact information to Defendant in case of emergency. Also, since Plaintiff repeatedly refused to advise Defendant when he was moving or where he was going, particularly since Defendant was so thoughtful and meticulous about all important events in his life, Defendant's fears that Plaintiff would take the dog away from her and that she would have no way to find them were reasonable and understandable.

Based on the totality of the evidence, the court finds that it is best for all concerned for Defendant to retain sole possession of Django. Django has lived at the same location with Defendant without incident for 4 ½ years, except during the year when the parties alternated caring for him. Django has thrived and prospered without Plaintiff in his life for almost two years. To suddenly uproot Django and send him across the country to live with Plaintiff would disrupt the dog's daily routine, healthy and energetic lifestyle and loving and happy home. The current environment appears to enhance the chances of both Django and Defendant living a long and prosperous life together.

It is unreasonable for Plaintiff to expect to prevail under these circumstances when it was primarily his choices which led to Defendant retaining sole possession of Django. It was Plaintiff who decided to break up with Defendant and move out of their apartment. It was Plaintiff who decided to move across country and make it virtually impossible to continue their agreed upon alternating care arrangement. Additionally, it was Plaintiff who withheld the details of his move. Defendant and Django appear to have moved on with their lives and they both seem to be prospering with each other's affection and companionship.

Additionally, since the parties were co-owners of Django at the time Plaintiff paid for Django's expenses, he is not entitled to reimbursement of half of his costs since the monies were spent for the care, enjoyment and love for a shared companion pet who became an intricate part of the parties' familial relationship. Even if Plaintiff was entitled to recover damages, there was no evidence presented at trial to assist the court in calculating Django's appropriate market value. Unlike other property which the parties distributed upon their break up, Django holds a special place in their hearts. Since the court cannot consider Django's sentimental value, it is extremely difficult, if not impossible, for the court to adequately compensate Plaintiff for his loss. Although Plaintiff paid $160 for Django, it was when he was a ten week old puppy in Guatemala and he is now five years old living in New York City. We can assume that a puppy from a breeder in New York City would cost much more than a puppy from a breeder in Guatemala, however a five year old dog would cost much less than a puppy.

Here, Django will remain with Defendant and, even though Plaintiff bore the majority of expenses while the parties resided together, such expenses were an expression of the parties' mutual love, affection and desire to care for their shared pet. As such, Plaintiff is not entitled to *7 reimbursement for any of his costs and no money is awarded to Plaintiff.

Accordingly, it is hereby ORDERED that

Judgment for Defendant;

Defendant shall retain sole possession of the dog to the complete exclusion of Plaintiff; and

Plaintiff's complaint is dismissed with prejudice and without costs to either party as against the other.

This constitutes the Decision and Order of the Court.

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