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FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the Department of Social Services made reasonable efforts to prevent or eliminate the need for the temporary removal of the children while the neglect petition is pending. The court noted that Family Court did not have the power to find a foster home for the family’s cat:

… [T]he court lacked the authority to order it to find a foster home for respondents’ cat, and we therefore further modify the order accordingly. “Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute” … , or by the New York Constitution (see NY Const, art VI, § 13). Inasmuch as animals are property … , and Family Court does not have jurisdiction over matters concerning personal property, we conclude that the court exceeded its authority in directing petitioner to find foster care for respondents’ cat. Matter of Ruth H. (Marie H.), 2018 NY Slip Op 01840, Fourth Dept 3-16-18

FAMILY LAW (PETS, FOSTER CARE, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))/FOSTER CARE (FAMILY LAW, PETS, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))/PETS (FAMILY LAW, FOSTER CARE, FAMILY COURT DID NOT HAVE THE AUTHORITY TO FIND A FOSTER HOME FOR A FAMILY’S PET CAT (FOURTH DEPT))

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PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT).

The Fourth Department determined the duty to keep a state park safe is a proprietary function, not a governmental function. The governmental immunity doctrine does not apply. Therefore the claimant’s motion for summary judgment based upon his being bitten by a rabid fox in a park was properly granted:

“The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine . . . the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred’ ” … .

Here, claimant’s injuries allegedly resulted from defendant’s negligent failure to take adequate steps to protect park patrons from reasonably foreseeable danger, despite having actual notice of a potentially rabid animal on the park premises hours before the incident. “It is well settled that regardless of whether or not it is a source of income the operation of a public park by a municipality is a quasi-private or corporate and not a governmental function”… . Further, “a municipality is under a duty to maintain its park . . . facilities in a reasonably safe condition” … . That “duty goes beyond the mere maintenance of the physical condition of the park . . . and, although strict or immediate supervision need not be provided, the municipality may be obliged to furnish an adequate degree of general supervision which may require the regulation or prevention of such activities [or other conditions] as endanger others utilizing the park” … . Thus, we conclude that the court properly determined that claimants’ allegations that defendant failed “to minimize the risk posed with a relevant warning and effective notification to the [p]ark [p]olice” implicated defendant’s proprietary, not governmental, duties. Agness v State of New York, 2018 NY Slip Op 01747, Fourth Dept 3-16-18

COURT OF CLAIMS (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/IMMUNITY (PARK SAFETY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/ANIMAL LAW  (PARK SAFETY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/PROPRIETARY FUNCTION  (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/PARKS (COURT OF CLAIMS, PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))/RABID ANIMALS (PARK SAFETY, IMMUNITY, ANIMAL LAW, PARK SAFETY IS A PROPRIETARY FUNCTION WHICH DOES NOT TRIGGER GOVERNMENTAL IMMUNITY, PLAINTIFF BITTEN BY A RABID FOX IN A STATE PARK, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY PROPERLY GRANTED (FOURTH DEPT))

TWO ATTACKS MINUTES APART CONSTITUTED A SINGLE EVENT IN THIS DOG BITE CASE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment should not have been granted and defendants’ cross-motion for summary judgment should have been granted in this dog bite case. Defendant Garrett was dog-sitting Lily, a pit bull owned by defendant Hunt, in a fenced yard. Plaintiff brought her dog, Chloe, into the yard and Lily lunged at Chloe. A few minutes later Lily again lunged at Chloe and plaintiff was bitten. The Fourth Department found that the two attacks constituted a single event and defendants demonstrated they were not aware of Lily’s vicious propensities:

… [D]efendants established as a matter of law that they lacked actual or constructive knowledge that Lily had any vicious propensities … . We agree with defendants that the confrontation between the dogs was only one event, rather than two separate incidents as found by the court. Given the fact that only minutes passed between the two confrontations, we conclude that defendants did not acquire actual or constructive notice of any vicious propensities based on the initial confrontation. We likewise conclude that the court erred in denying that part of defendants’ cross motion for summary judgment dismissing the negligence cause of action. It is well settled that ” [c]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence’ ” … . Russell v Hunt, 2018 NY Slip Op 00750, Fourth Dept 2-2-18

ANIMAL LAW (TWO ATTACKS MINUTES APART CONSTITUTED A SINGLE EVENT IN THIS DOG BITE CASE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/DOG BITES (TWO ATTACKS MINUTES APART CONSTITUTED A SINGLE EVENT IN THIS DOG BITE CASE, DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS DOG BITE CASE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this dog bite case should have been granted. Defendants demonstrated they did not have actual or constructive notice of the dog’s vicious propensities:

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Since at least 1816 … , “the law of this state has been that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities” … . … ‘[T]here is no cause of action in negligence as against the owner of a dog who causes injury, but one may assert a claim in strict liability against a dog owner for harm caused by the dog’s vicious propensities when the owner knew or should have known of those propensities” … . S.K. v Kobee, 2018 NY Slip Op 00770, Fourth Dept 2-2-18

ANIMAL LAW (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS DOG BITE CASE (FOURTH DEPT))/DOG BITES (DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF THE DOG’S VICIOUS PROPENSITIES, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED IN THIS DOG BITE CASE (FOURTH DEPT))

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PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this car-animal accident case should not have been granted. Although, based upon the doctrine of res ipsa loquitur, the presence of defendants’ black angus bull in the roadway may have constituted negligence, plaintiff did not demonstrate she could not have avoided the accident by lowering her speed on that dark and rainy night:

Cattle are classified as “domestic animal[s]” in Agriculture and Markets Law § 108 (7), and it is well established that “a landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108 (7)—is negligently allowed to stray from the property on which the animal is kept” … . Here, “defendants were in exclusive control of the [bull] and the fences surrounding the pasture where [it was] kept” and, because cattle “do not generally wander unattended on public streets in the absence of negligence”… , we conclude that the court properly inferred defendants’ negligence as a starting point in determining their motion.

We further conclude that defendants failed to rebut the inference of negligence inasmuch as they failed to submit proof that “the animal’s presence on the [road] was not caused by [their] negligence” … , or “that something outside of [defendants’] control” allowed the bull to escape … . …

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Plaintiff’s burden on her motion was to establish both that defendants were negligent as a matter of law, and that she was free of comparative fault … . Even assuming, arguendo, that plaintiff met her burden with respect to defendants’ alleged negligence, we conclude that she failed to meet her burden with respect to her own alleged comparative negligence. … [T]here is an issue of fact whether slower travel would have enabled plaintiff to avoid the collision, and that issue must be determined by a jury … . Catalano v Heiden Val. Farms, 2018 NY Slip Op 00759, Fourth Dept 2-2-18

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/ANIMAL LAW (TRAFFIC ACCIDENTS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/RES IPSA LOQUITUR (ESCAPED ANIMALS, PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))/TRAFFIC ACCIDENTS (ESCAPED ANIMALS,  PLAINTIFF COLLIDED WITH DEFENDANTS’ BLACK ANGUS BULL IN THE ROADWAY ON A DARK RAINY NIGHT, EVEN ASSUMING DEFENDANTS’ NEGLIGENCE PURSUANT TO THE DOCTRINE OF RES IPSA LOQUITUR, PLAINTIFF DID NOT DEMONSTRATE HER FREEDOM FROM COMPARATIVE NEGLIGENCE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT))

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PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, upheld for the most part a preliminary injunction placing restrictions on protests by animal rights advocates against Central Park Sightseeing which operates horse-drawn carriages in New York City’s Central Park. The court found that Central Park Sightseeing was likely to prevail on its public nuisance and tortious interference with contract causes of action. The First Department modified the injunction’s “floating buffer zone” provision, paragraph 3, however:

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The court granted plaintiff’s motion for a preliminary injunction to the extent of enjoining and restraining defendants “and/or anyone else who becomes aware of this Decision and Order” from

“1. physically blocking, impeding, or obstructing any persons from seeking or taking, or providing … a lawful horse-carriage ride disembarking from Central Park South …;

“2. physically touching, pushing, shoving, or grabbing any such persons or horses;

“3. yelling or shouting at, or aggressively accosting, any such persons, or any carriage horses, from a distance of less than nine feet (… three yards…);

“4. physically blocking, impeding, or obstructing the progress of any such horse-carriage ride;

“5. handing literature to persons situated within a horse carriage; and

“6. counseling, facilitating, aiding, or abetting any other person from doing such things.”

The court made it clear that “[b]oth sides agree that defendants can protest, including picket, hold signs, hand out literature, bear witness, and raise their voices,” noting that “the content of the speech is not at issue here; the manner of delivery is.” …

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We … modify paragraph 3 of the injunction to prohibit any person from knowingly approaching within nine feet of another person in the loading/unloading zone, without that person’s consent, for the purpose of handing a leaflet or bill or displaying a sign or engaging in oral protest or education of such other person … . * * *

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The nine-foot zone represents a “conversational distance,” allowing normal communication … . Central Park Sightseeing LLC v New Yorkers for Clean, Livable & Safe Sts., Inc., 2017 NY Slip Op 08619, First Dept 12-7-17

 

CONSTITUTIONAL LAW (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/ANIMAL LAW (ANIMAL RIGHTS, PUBLIC PROTESTS, FIRST AMENDMENT, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FIRST AMENDMENT (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/FREE SPEECH (PUBLIC PROTEST, ANIMAL LAW, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/CIVIL PROCEDURE (PRELIMINARY INJUNCTION, FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/INJUNCTION  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))/BUFFER ZONE  (FIRST AMENDMENT, PUBLIC PROTEST, PRELIMINARY INJUNCTION REGULATING PROTESTS BY ANIMAL RIGHTS ADVOCATES AGAINST A CENTRAL PARK HORSE-DRAWN CARRIAGE SIGHTSEEING BUSINESS UPHELD, BUFFER ZONE PROVISION MODIFIED TO COMPORT WITH FIRST AMENDMENT (FIRST DEPT))

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CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT.

The Second Department determined the city, which operated an animal shelter, was not liable for a dog-bite injury to infant plaintiff. The Second Department held that the operation of the shelter was a government function and there was no special relationship between the city and the plaintiff. Therefore the city was entitled to immunity from liability:

It is undisputed that the City operates the Shelter pursuant to a statutory mandate. Specifically, Agriculture and Markets Law § 114 (former § 115) requires, inter alia, that each town or city that issues dog licenses “shall . . . establish and maintain a pound or shelter for dogs” … . This provision is contained in article 7 of the Agriculture and Markets Law, which states that the purpose of the article “is to provide for the licensing and identification of dogs, the control and protection of the dog population and the protection of persons, property, domestic animals and deer from dog attack and damage” … .

The City’s act of providing an animal shelter constitutes a governmental function and, therefore, it cannot be held liable absent the existence of a special relationship between it and the plaintiffs giving rise to a special duty of care … . ” A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation'” … . Abrahams v City of Mount Vernon, 2017 NY Slip Op 05699, 2nd Dept 7-19-17

ANIMAL LAW (CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/MUNICIPAL LAW (ANIMAL SHELTER, DOG BITE, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/IMMUNITY (CITY ANIMAL SHELTER, DOG BITE, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)/DOG BITES (MUNICIPAL LAW, CITY NOT LIABLE FOR A DOG BITE AT CITY ANIMAL SHELTER 2ND DEPT)

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CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF.

The First Department, in a full-fledged opinion by Justice Webber, determined two chimpanzees. Tommy and Kiko, were not entitled to orders transferring them from cages to a sanctuary, using the rationale behind habeas corpus. The main reason underlying the decision is the fact that similar requests for relief had been denied by other courts and nothing new was presented in support of the instant requests for relief. The court, however, did run through the arguments in support of the applicability of habeas corpus criteria in this context (not all of which are summarized here):

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“The common law writ of habeas corpus, as codified by CPLR article 70, provides a summary procedure by which a person’ who has been illegally imprisoned or otherwise restrained in his or her liberty can challenge the legality of the detention” … . While the word “person” is not defined in the statute, there is no support for the conclusion that the definition includes nonhumans, i.e., chimpanzees. While petitioner’s cited studies attest to the intelligence and social capabilities of chimpanzees, petitioner does not cite any sources indicating that the United States or New York Constitutions were intended to protect nonhuman animals’ rights to liberty, or that the Legislature intended the term “person” in CPLR article 70 to expand the availability of habeas protection beyond humans. No precedent exists, under New York law, or English common law, for a finding that a chimpanzee could be considered a “person” and entitled to habeas relief. In fact, habeas relief has never been found applicable to any animal… .

The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions. Petitioner does not suggest that any chimpanzee charged with a crime in New York could be deemed fit to proceed, i.e., to have the “capacity to understand the proceedings against him or to assist in his own defense” (CPL 730.10[1]). While in an amicus brief filed by Professor Laurence H. Tribe of Harvard Law School, it is suggested that it is possible to impose legal duties on nonhuman animals, noting the “long history, mainly from the medieval and early modern periods, of animals being tried for offenses such as attacking human beings and eating crops,” none of the cases cited took place in modern times or in New York. Moreover, as noted in an amicus brief submitted by Professor Richard Cupp, nonhumans lack sufficient responsibility to have any legal standing, which, according to Cupp is why even chimpanzees who have caused death or serious injury to human beings have not been prosecuted. Matter of Nonhuman Rights Project, Inc. v Lavery, 2017 NY Slip Op 04574, 1st Dept  6-8-17

 

ANIMAL LAW (CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/CIVIL PROCEDURE (ANIMAL LAW, HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/ANIMAL LAW (HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/HABEAS CORPUS (CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)/CHIMPANZEES (HABEAS CORPUS, CHIMPANZEES NOT ENTITLED TO HABEAS CORPUS RELIEF)

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THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE.

The First Department, in a full-fledged opinion by Justice Gische, over a two justice dissenting opinion authored by Justice Gesmer, determined the city’s decision whether to enforce animal cruelty and other laws and regulations which may pertain to the public, ritual killing of chickens in an annual religious practice (Kaporos) is discretionary and therefore cannot be enforced by a mandamus proceeding:

We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. … There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to nonadherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment … .

Consequently, the decision whether and how to enforce these laws and regulatory provisions allegedly violated during Kaporos implicates the reasoning and discretion of the City defendants and the law enforcers. None of the laws or regulations plaintiffs rely on preclude the City defendants from deciding whether or not to enforce those laws in the context of Kaporos. Plaintiffs do not have a “clear legal right” to dictate which laws are enforced and how, or against whom. Determining which laws and regulations might be properly enforced against the non-City defendants without infringing upon their free exercise of religion involves the exercise of reasoned judgment on the part of the City defendants. The outcome cannot be dictated by the court through mandamus. Alliance to End Chickens as Kaporos v New York City Police Dept., 2017 NY Slip Op 04408, 1st Dept 6-6-17

 

MUNICIPAL LAW (ANIMAL CRUELTY, RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/ANIMAL LAW (RELIGIOUS RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/RELIGION (RITUAL KILLING OF CHICKENS,  THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)/KAPOROS (ANIMAL CRUELTY, RITUAL KILLING OF CHICKENS, THE DECISION TO ENFORCE ANIMAL CRUELTY AND OTHER LAWS AND REGULATIONS WHICH MAY PERTAIN TO THE RITUAL KILLING OF CHICKENS AS A RELIGIOUS PRACTICE IS DISCRETIONARY, THEREFORE A MANDAMUS ACTION TO ENFORCE THE LAWS DOES NOT LIE)

EVEN THOUGH THE DOG HAD NEVER BITTEN ANYONE BEFORE, THE EVIDENCE SUBMITTED BY DEFENDANT DEMONSTRATED VICIOUS PROPENSITIES AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED.

The Third Department, reversing Supreme Court, determined defendant’s motion for summary judgment should not have been granted in this dog bite case. The proof did not demonstrate defendant was unaware of the dog’s vicious propensities. Defendant’s motion should have been dismissed without reference to the opposing papers:

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On his motion, along with his deposition testimony, defendant submitted the deposition testimony of his girlfriend and that of plaintiff. However, rather than showing that he was entitled to summary judgment, the deposition testimony showed just the opposite. Defendant testified that the dog was chained outside in order to alert him to the presence of people in his yard and to protect business assets on his property. He testified that the dog is “there to bark” and that barking and running to the full extent of its chain when people enter the property is the dog’s “job.” Defendant described an incident three to five years prior to the instant bite in which the dog grabbed a customer’s pant leg, though defendant claimed that the dog did not break any skin. We note that, even if the dog had not broken the person’s skin, such aggressive behavior may reflect a proclivity to act in such a way that puts others at risk of harm and can be found to be evidence of a vicious propensity … . * * *

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“Knowledge of vicious propensities may . . . be established by proof of prior acts of a similar kind of which the [defendant] had notice . . . even in the absence of proof that the dog had actually bitten someone — by evidence that it had been known to growl, snap or bare its teeth” … . The evidence submitted by defendant shows that he kept a guard dog on a chain so that it could not bite people, it had previously broken its chain to get to, and then circle, a person who came on defendant’s property, it had grabbed hold of another person’s pant leg and children had been warned to stay away from the dog. All these factors reflect a proclivity for the dog to act in a way that puts others at risk of harm and that defendant knew, or should have known, of the dog’s vicious propensity … . Olsen v Campbell, 2017 NY Slip Op 03828, 3rd Dept 5-11-17

 

ANIMAL LAW (DOG BITE, EVEN THOUGH THE DOG HAD NEVER BITTEN ANYONE BEFORE, THE EVIDENCE SUBMITTED BY DEFENDANT DEMONSTRATED VICIOUS PROPENSITIES AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)/DOG BITE (DOG BITE, EVEN THOUGH THE DOG HAD NEVER BITTEN ANYONE BEFORE, THE EVIDENCE SUBMITTED BY DEFENDANT DEMONSTRATED VICIOUS PROPENSITIES AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED)

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