Opinion
364 CA 17–01744
05-04-2018
In the Matter of TOWN OF CONCORD, Petitioner–Respondent, v. Kristine EDBAUER, Respondent–Appellant.
KRISTINE EDBAUER, RESPONDENT–APPELLANT PRO SE. HODGSON RUSS LLP, BUFFALO (AARON M. SAYKIN OF COUNSEL), FOR PETITIONER–RESPONDENT.
KRISTINE EDBAUER, RESPONDENT–APPELLANT PRO SE.
HODGSON RUSS LLP, BUFFALO (AARON M. SAYKIN OF COUNSEL), FOR PETITIONER–RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent appeals from an order of County Court that affirmed the judgment of Justice Court (hereafter, court) directing the euthanization of her dog. Preliminarily, we reject respondent's contention that petitioner failed to meet its initial burden of establishing that her dog is a "dangerous dog" pursuant to Agriculture and Markets Law § 123(2) (see § 108[24][a] ). At the hearing before the court, the victim testified that the dog lunged at her without provocation, and bit her face, neck, arm, and hand, causing injuries that required external and internal stitches to close. Inasmuch as there is no evidence that the dog "was responding to pain or injury, or was protecting itself" ( § 123[4][c] ; see People v. Jornov, 65 A.D.3d 363, 366, 881 N.Y.S.2d 776 [4th Dept. 2009] ), we conclude that the court's determination that the dog is a "dangerous dog" is supported by the requisite clear and convincing evidence ( § 123[2] ).
We reject respondent's further contention that County Court erred in affirming the judgment of the court directing euthanasia. The evidence establishes that the dog is a dangerous dog, and that "the dog, without justification, attacked a person causing serious physical injury or death" ( Agriculture and Markets Law § 123[3][a] ). The victim was treated at two different hospitals for her injuries, and she received more than 36 internal and external stitches in her face and neck. The victim's "serious or protracted disfigurement" constituted a serious physical injury (§ 108[29]; see People v. Reitz, 125 A.D.3d 1425, 1425, 3 N.Y.S.3d 228 [4th Dept. 2015], lv denied 26 N.Y.3d 934, 17 N.Y.S.3d 97, 38 N.E.3d 843 [2015], reconsideration denied 26 N.Y.3d 1091, 23 N.Y.S.3d 648, 44 N.E.3d 946 [2015] ; People v. Robinson, 121 A.D.3d 1405, 1407, 995 N.Y.S.2d 372 [3d Dept. 2014], lv denied 24 N.Y.3d 1221, 4 N.Y.S.3d 609, 28 N.E.3d 45 [2015] ), thus presenting an aggravating circumstance pursuant to which the court was authorized to direct humane euthanasia (see § 123[3][a] ).