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Jacobsen v. Schwarz |
Plaintiff appeals an order granting defendant's motion for summary judgment that dismissed her personal injury case. The plaintiff commenced this action after she was bitten by defendant's dog while working on a computer at defendant's house. This court found that summary judgment was not appropriate because the defendant warned plaintiff that the dog was possessive about her ball and not to touch it. These warnings along with the dog's actions with the ball may give rise to a finding that the defendant knew or should have known that the dog possessed a vicious propensity or a proclivity to act in a way that puts others at risk of harm.
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Jackson v. Georgalos |
Plaintiff appealed an order granting defendants' motion for summary judgment dismissing the complaint. The personal injury action arises from an incident where defendants' dog, who was barking at the time, jumped on the screen door causing the door to open, whereupon the dog ran out of the house. When the plaintiff turned to get away from the dog, her ankle twisted, causing her to fall on the steps and become injured. To recover in New York on such an action, a plaintiff must prove that the dog had vicious propensities and that the owner of the dog, or a person in control of the premises where the dog was, knew or should have known of such propensities. The court held that plaintiff did not raise a triable issue of fact as to whether the defendant was aware of the dog's alleged propensity to run out of the house and chase after people. Defendants' motion summary judgment and dismissal was affirmed. |
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Iris Lewis v. Al DiDonna, Pharmacist; James DiDonna, Pharmacist; Eckerd Drug Store of Stone Ridge, New York; Eckerd Corporation |
In this case, the plaintiff brought her dog of nine years to a veterinarian and was given a prescription for an anti-inflammatory drug called Feldene to treat the dog’s condition. After the dog died of renal failure complications, plaintiff discovered that the Feldene prescription was mislabeled by the pharmacist. The Supreme Court, Appellate Division for the Third Judicial Department held that the allegations in plaintiff’s verified complaint sufficiently allege defendant’s wanton and reckless disregard of plaintiff’s rights to survive a motion to dismiss. Further, the court noted that while plaintiff did not appeal the dismissal of her cause of action for loss of companionship, the court made it clear that loss of companionship is not cognizable cause of action in the state of New York.
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In the Matter of the Application of Richard M. COPLAND, as an Executor of the estate of Lenore Lewis Abels, Deceased |
Co-executor of an estate petitioned the Westchester County Surrogate's Court for a decree in accordance with EPTL 7–8.1[d] reducing the amount of money to be transferred from the estate to the trustees of a testamentary pet trust established under the decedent's will. Since the decedent gave very specific instructions as to how she wanted her cats to be cared for and the petition was in opposition to the decedent’s wishes, the court denied the reduction. |
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In re Clinton Cty. |
Synopsis from the court: County filed notice of claim, directed toward estate of cattle farmer who had passed away after he was charged with animal cruelty, seeking reimbursement for costs incurred in connection with care of seized cattle. The Surrogate's Court, Clinton County, Timothy J. Lawliss, J., held that: (1 ) county failed to establish that it was entitled to any relief based upon a theory of quantum meruit, and (2) even assuming that service providers, and thus county upon payment of service providers' bills, enriched farmer, county was not entitled to recover based upon a theory of unjust enrichment because criminal charges against farmer were dismissed upon his death. Notice of claim denied and dismissed.
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Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty |
Animal rights protestors appealed the decision of the Supreme Court, Westchester County that permanently enjoined the protestors from engaging in protest activity that constituted a private nuisance (to wit, participating in targeted protest at the home of the plaintiff Mark L. Bibi). This court found that the protestors failed to refute the evidence from the lower court that showed the plaintiffs were entitled to a permanent injunction as a matter of law (including evidence of the appellant's federal conviction conspiracy to violate the Animal Enterprise Protection Act of 1992). While the court did find that the appellant-protestor's incarceration did not render the appeal academic, imposition of the injunction was a reasonable and constitutional restriction on protest activity.
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Humane Soc. of U.S., Inc. v. Brennan |
In this New York case, the petitioners, various organizations and individuals generally opposed to the production of foie gras (a product derived from the enlarged livers of ducks and geese who were force fed prior to slaughter) submitted a petition to respondent Department of Agriculture and Markets seeking a declaration that foie gras is an adulterated food product within the meaning of Agriculture and Markets Law §§ 200. The respondent Commissioner of Agriculture and Markets refused to issue a statement to the requested declaration. On review to this court, petitioners sought a judicial pronouncement that foie gras is an adulterated food product. This court held that petitioners lacked standing because they did not suffer an injury within the zone of interests protected by State Administrative Procedure Act §§ 204.
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Hollendale Apartments & Health Club, LLC v. Bonesteel |
The Plaintiff owns and operates an apartment complex with a policy that prohibits defendants from keeping a dog on the premises. The Defendant, Bonesteel, began renting an apartment at Plaintiff's complex in 2011 under a one-year lease. Defendant continued to renew his one-year lease for additional one-year terms until 2014. Defendant's therapist sent a letter to the Plaintiff requesting an exception to the no dog policy so that the Defendant could have an emotional support animal. The Plaintiff denied the request but stated that it would allow a bird or cat or an early termination of Defendant's lease. The Plaintiff filed an action seeking a judgment declaring that the Plaintiff's refusal to permit the Defendant to have an emotional support dog was not in violation of the Fair Housing Act (FHA) and the Human Rights Law (HRL). The Plaintiff subsequently reduced the Defendant's lease renewal term to three months. The Defendant filed counterclaims on grounds of discrimination. The Supreme Court of New York also granted a motion allowing the Attorney General to intervene. The Attorney General asserted counterclaims on similar grounds to those raised by the Defendant. After a nonjury trial, the trial court issued a judgment that the Plaintiff's actions did not violate the FHA and the HRL. The Defendant then appealed. On appeal, the Supreme Court addressed the question of whether the Plaintiff's claims were justiciable even though the matter was not raised by the parties. Since the Plaintiff had already denied the Defendant's request for an exception to the policy when it filed the action and no harm to the Plaintiff occurred or was impending, it was essentially asking the Court to issue an advisory opinion which is not an exercise of judicial function. Therefore, the Court dismissed the Plaintiff's declaratory judgment. The Court then considered the Defendant's counterclaims since concrete injuries were alleged. The only two arguments addressed were whether the Defendant actually had a qualifying disability within the meaning of the FHA and the HRL and whether the accommodation requested was necessary to afford the Defendant an equal opportunity to use and enjoy his dwelling. The Court concluded that the Defendant met his burden to establish that he is disabled within the meaning of the FHA and HRL. The Court also found that the Defendant "offered sufficient evidence that having an emotional support dog would affirmatively enhance his quality of life by ameliorating the effects of his disability, and thus demonstrated necessity within the meaning of the FHA and the HRL." Lastly, the Court found that the Plaintiff retaliated against the Defendant by reducing his lease renewal terms to three months. Accordingly, Defendant was entitled to judgment in his favor on the retaliation counterclaims. |
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Hewitt v. Palmer Veterinary Clinic, PC |
This is an action for negligence and premises-liability brought by a plaintiff, who was attacked by another patron's dog in the waiting room of defendant veterinary clinic. Plaintiff alleges defendant had a duty to provide a safe waiting area, which was breached by allowing the aggressive dog to attack her. Defendants allege that it had no knowledge of the dog's prior aggressive tendencies, and moved for summary judgment. The Supreme Court granted defendants motion for summary judgment, and the plaintiff appealed. The court found that a lack of notice of the dog's vicious propensities does not alleviate defendant's liability to provide a safe waiting area, and modified the lower court's granting of summary judgment. |
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Hayes v. Akam Associates, Inc. |
In this case, plaintiffs sought recovery for property damage and for emotional distress and loss of companionship of their dog Toto, who died as a result of a fire in the building where plaintiffs resided. Plaintiffs were not home at the time of the fire. Upon their return, they learned their dog had died as a result of smoke inhalation. Plaintiffs found Toto’s body lying on the road, covered with a sheet. Plaintiffs alleged that their dog, who they considered a member of their family, had died as a consequence of the defendants’ negligence in inspecting, maintaining, supervising, operating, and controlling the building. In its opinion, the court stated that there was a well-settled common law precedent that pets are personal property and for that reason, damages for emotional injury were not allowed when a companion animal dies. The court declined to follow the cases that considered loss of companionship in determining the value of a pet and dismissed the causes of action seeking damages for the emotional injuries the plaintiffs alleged were caused by the loss of their dog. Defendants' motion for summary judgment dismissing the complaint was granted. |
