Opinion
Index No. 50085
03-13-2024
Elise Able v. Lynda Pruski and Allegany County SPCA
Unpublished Opinion
Keith D. Kibler, J.
The plaintiff, Elise Able, is seeking possession and ownership of an Anatolian shepherd named Chip who is currently living with the defendant, the Allegany County SPCA ("SPCA"), at its facility in Belmont. The defendant, Lynda Pruski, is the Executive Director of the Allegany County SPCA. Before the Court is the defendants' motion to dismiss Ms. Able's complaint dated January 16, 2024. The plaintiff submitted papers in opposition to the motion, which was heard on February 6, 2024
Complaint
Ms. Able alleges that Chip escaped from the SPCA's facility in May 2021. She became aware of Chip's escape about two weeks after it happened. In or about September 2021, Ms. Able became aware of a video of Chip posted on Facebook and contacted the person who posted it, Andy Whipple. In late September 2021, Ms. Able set up traps on Mr. Whipple's property to catch Chip. In early 2022, Ms. Able purchased and set up another trap.
From September 2021 to July 2023, Ms. Able would drive to Mr. Whipple's property and wait for sightings of Chip. She would also set up feeding stations and traps. She would also send money to Mr. Whipple to purchase food for Chip who ate some of it.
On July 11, 2023, after being notified that Chip was spotted, Ms. Able started to look for Chip, along with other volunteers. On July 14, 2023, a group of volunteers led by Lisa Hitchcock captured Chip. Ms. Able liaised with Ms. Hitchcock and put Chip in her truck. Ms. Able then drove Chip to the Cuba Vet Hospital Emergency Room. Ms. Pruski arrived, and Ms. Able informed Ms. Pruski that she considered Chip to be her dog and would be adopting him. Ms. Able alleged that Ms. Pruski said that she would take care of Chip and turn him back over to her. Ms. Pruski brought Chip back to the SPCA where he has been living ever since.
Motion to Dismiss
"On a motion to dismiss a complaint or counterclaim pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the opposing party the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Mazzei v. Kyriacou, 98 A.D.3d 1088, 1089 (2d Dept. 2012) (internal marks omitted).
Courts "may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." Gibraltar Steel v. Gibraltar Metal Proc., 19 A.D.3d 1141, 1142 (4th Dept. 2005) (internal marks omitted). "Affidavits and other evidentiary material may also be considered to establish conclusively that plaintiff has no cause of action." Id. (internal marks omitted). "Any facts in the complaint and submissions in opposition to the motion to dismiss are accepted as true, and the benefit of every possible favorable inference is afforded to the plaintiff." Id. (internal marks omitted).
The Development of the Law on Pets
There can be no question that the human relationship with pets today is special and often typified with unconditional love. Neil Young wrote about his pet, demonstrating the affection he had for him:" That old king was a friend of mine. Never knew a dog that was half as fine." Neil Young, Old King, on Harvest Moon (Warner Brothers 1992). There is also no question that the law on pets has evolved significantly over the past few decades. Prior to the case of Raymond v. Lachmann, 264 A.D.2d 340 (1st Dept. 1999), courts generally viewed pets as any other type of personal property and applied traditional property law to disputes regarding ownership. See, e.g., Conti v. ASPCA, 77 Misc.2d 61 (N.Y.C. Civ. Ct. 1974). In Conti, the court referenced the law on lost property and ferae naturae in deciding who owned a parrot that escaped its original owner and was later captured by another. Id.
Over time, courts recognized that pets were not just property. See, e.g., Corso v. Crawford Dog & Cat Hosp., Inc., 97 Misc.2d 530, 531 (N.Y.C. Civ. Ct. 1979) (holding "that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property"). A major development in the caselaw occurred in Raymond when the First Department was confronted with a case involving the ownership and possession of a cat.
In Raymond, the trial court noted in its decision that the parties were good friends, and Ms. Raymond occasionally asked Ms. Lachmann to board the cat for extended periods of time. Raymond v. Lachmann, Index No. 107990/97 (NY Cnty. Sup. Ct. Dec. 24, 1997). The cat had been in the sole custody of Ms. Lachmann from August 1995 through the end of the trial court litigation around December 1997. Id. The trial court applied a traditional property analysis to the matter and ordered that the cat be returned to Ms. Raymond. Id. The First Department reversed, observing "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, 264 A.D.2d at 341. The First Department opined "we think it best for all concerned that, given his limited life expectancy, Lovey [the cat], who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years [with Ms. Lachmann]." Id. (emphasis added).
Following the Raymond decision, courts used the "best for all concerned" standard when deciding pet ownership cases. See Feger v. Warwick Animal Shelter, 59 A.D.3d 68, 72 (2d Dept. 2008); L.B. v. C.C.B., 77 Misc.3d 429, 433-435 (Kings Cnty. Sup. Ct. 2022); see, e.g., Travis v. Murray, 42 Misc.3d 447 (NY Cnty. Sup. Ct. 2013); Finn v. Anderson, 64 Misc.3d 273, 277 (Jamestown Cty. Ct. 2019); Leconte v. Kyungmi Lee, 35 Misc.3d 286, 287-288 (NY Cnty. Civ. Ct. 2011). Abandonment of the pet is not a defense. Leconte, 35 Misc.3d at 288.
Another major development occurred when Section 236 of the Domestic Relations Law was modified in 2021. See L.B., 77 Misc.3d at 435-436. In matrimonial actions, courts must now "consider the best interest" of companion animals when awarding possession of them. DRL § 236(B)(5)(d)(15).
Analysis
Since this case is not a matrimonial action, the Court will not consider the best interest of the animal; instead, it will use the best for all concerned standard. One of the main factors courts consider in applying the standard is how much time each party has spent with the pet, which undoubtedly relates to the bonding of the pet and the person. See Raymond, 264 A.D. at 341 (noting that the cat has "lived, prospered, loved and been loved for the past four years" with Ms. Lachmann); Finn, 64 Misc.3d at 279 (contrasting a decade of living with one party with less than one month with another); Leconte, 35 Misc.3d at 288 (finding insufficient two brief visits comprising just less than a total of two months).
In the present case, the facts indicate that Chip started living at the SPCA in or about May 4, 2021 and escaped in late May 2021 or on June 2, 2021. Chip lived in the wild from that time until he was captured on July 14, 2023. During the time that he was living in the wild, Ms. Able tried to trap Chip and maintained feeding stations for him. Notably, Ms. Able does not allege that she ever came into close proximity to Chip or has seen him in person on any day other than on the day he was captured. There are no allegations that Chip has bonded with or shown affection to her.
Ms. Able's efforts to feed and trap Chip are very different than the relationships the parties had in the Raymond, Finn, and Leconte cases. In Raymond, the party to whom the pet was awarded, Ms. Lachmann, lived with the pet for a period of years. 264 A.D.2d at 341. Notably, the court indicated that the pet loved Ms. Lachmann and was loved by Ms. Lachmann. Id. In Finn, the court noted that the non-prevailing party was genuinely concerned for the pet's "welfare and spent time and money on his care," and the court was "perplexed" that the prevailing party did not reach out to the non-prevailing party regarding the pet's whereabouts. 64 Misc.3d at 279. In awarding the pet to the prevailing party, however, the court noted that the prevailing party's children had "some emotional attachment to the cat," and when the cat left the non-prevailing party's home, the pet went to the prevailing party's home. Id. In Leconte, the ex-girlfriend of the plaintiff had custody of the pet for "a total of almost two months" during "[t]wo brief visits," and the court contrasted this period with the four loving years Ms. Lachmann had with her pet in Raymond. 35 Misc.3d at 288.
These three cases underscore the necessity of a relationship between the person and the pet. These relationships often are full of love between the person and the pet and can have qualities of friendship. In the present case, Chip was rescued by the SPCA from euthanasia. Although the relationship between the SPCA and Chip was short-lived before Chip escaped, the relationship was beneficial to Chip. The SPCA acted as caretaker and saved Chip's life. The Court also notes Chip has been living with the SPCA from July 2023 to the present, and there are no facts alleged that Chip is currently not being well taken care of or has escaped from the SPCA since he returned there. Although Ms. Able has laudable goals and wants to help Chip, she is expressing it from a position where she does not have a relationship with Chip sufficient to allege a cause of action.
Consequently, the Court finds that, as a matter of law, Ms. Able's allegations are inadequate for her to have a superior possessory right than the SPCA and that it is best for all concerned that Chip remain with the SPCA. Therefore, it is hereby
ORDERED that the Defendants' motion to dismiss the Plaintiff's Complaint is granted.