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New York Appellate Court Decides Dog Bite Case, Judgement for the Defendant


On 1 August 2009, the complaining witness, respondents’ neighbor, was washing his car in his own driveway when his next door neighbor exited her home. As she exited, three adult Rottweilers ran out of the house and chased a male who had apparently been visiting the woman next door. A New York Injury Lawyer said that individual seemed to be frightened by the dogs and in order to avoid what seemed to have been an imminent attack (a dog attack or an animal attack), jumped upon a vehicle owned by the complaining witness. At that time, the same three dogs turned their attention to the complaining witness. He, too, jumped on top of his car to avoid what seemed to be an attack on his person. However, this time the dogs alighted the vehicle he had been washing and one or more of the dogs bit him on numerous parts of his body. It was only after he was perched on top of his vehicle that the dogs retreated to the respondent’s home.

Subsequently, the aforesaid neighbor initiated this complaint.

During the hearing, the Court was able to observe a wound on the victim’s hand. Photographs were admitted into evidence depicting two large and seemingly deep penetrating wounds on the victim’s thigh. Other photographs were admitted into evidence showing that pieces of human flesh and fatty tissue had been ripped from the victim’s body. Furthermore, it is apparent that blood was dripping from the roof of the vehicle and down the windshield. Moreover, it is apparent to the Court that the blood was that of the victim. It should also be noted that paw prints were depicted on the hood of the freshly washed car.

The primordial concern here is whether a rational person could assume that the behavior of the victim could reasonably believe that his actions could be anticipated to be interpreted as violent, threatening or tormenting the subject dog or dogs. In this case, the victim was merely washing his car, on his own property. A Queens Personal Injury Lawyer said the Court must, in this case, take Judicial Notice that dogs are pack animals and that notwithstanding the fact that the victim is not sure which or how many of the subject Rottweilers actually bit (dog bite) him, he is certain that they all chased him and all acted together in the attack.

Undoubtedly, the Court finds that there is clear and convincing evidence that the attack on the complaining witness by his neighbor’s dogs was unjustified and unprovoked; that the subject dogs are dangerous dogs within the meaning of Agriculture and Markets Law.

Effective 15 December 2004, Agriculture and Markets Law and related statutes were extensively amended. First, the definition of a “dangerous dog” was expanded to include: any dog which (i) without justification attacks a person, companion animal, farm animal, or domestic animal, and causes physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more persons, companion animals, farm animals, or domestic animals or (iii) without justification attacks a service dog, guide dog, or hearing dog and causes physical injury or death”.

Once a judge or justice determines that a dog is dangerous by clear and convincing evidence, then, pursuant to the new version of Agriculture and Markets Law, the judge or justice shall order neutering or spaying of the dog, microchipping of the dog and one or more of those provided by law as deemed appropriate under the circumstances and as deemed necessary for the protection of the public.

Once a Court determines a dog to be “dangerous”, the aforementioned conditions must be imposed by the Court. In addition to these requirements, Agriculture and Markets Law continues to provide that under certain circumstances humane euthanasia or permanent confinement of a dog may also be directed. A Staten Island Personal Injury Lawyer said the statute makes it clear that prior to euthanasia or permanent confinement, aggravating circumstances must be established at the judicial hearing.

In the instant case, the Town seeks to have all three dogs humanely euthanized; emphasizes that the less drastic measures are not appropriate; contends that the injuries suffered by the complaining witness are “serious injuries” as that term is defined in New York Agriculture and Markets Law.

However, an examination of the statute reveals that none of the aggravating circumstances are present in the herein case which would justify an order directing the euthanization of the dogs.

The first aggravating circumstance is that the dog unjustifiably attacked a person, causing “serious physical injury or death”.

It must be noted that serious physical injury, as defined in Agriculture and Markets Law, is “physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ”. The definition of serious physical injury is essentially the same.

Based on the evidence, the court concludes that the injuries sustained by the complaining witness do not meet the threshold.

The testimony revealed that the complaining witness sustained a bite wound to his right leg, for which he was prescribed antibiotics, a small bite to his hand and missed several days of work because of the injury. There is no doubt that the complaining witness’ injuries caused him pain and suffering. The injuries were supported by the photographs presented. Nonetheless, the standard is not whether the complaining witness’ thigh and hand were injured, but rather whether those injuries rise to the level of a serious injury’ as that term is defined in Agriculture and Markets Law and New York case law.

The court finds that there was no evidence that the complaining witness sustained “protracted impairment of health”, a “protracted disfigurement” or a “protracted loss or impairment of a function of any bodily organ” as a result of the. Accordingly, the first aggravating circumstance has not been met.

The second aggravating circumstance is that the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death”. This aggravating circumstance also was not established at the hearing. Although a witness testified that one or several of the respondents’ dogs had once chased the complaining witness’ children and wife such that they ran back inside their home, that witness did not sustain any injuries as a result of that incident, let alone a serious physical injury.

Finally, the third aggravating circumstance is that the dog unjustifiably causes “serious physical injury or death to a companion animal”, is inapplicable in this case.

By reason that none of the three aggravating circumstances exists in the case at bar, the Court lacks the authority to direct humane euthanasia or permanent confinement, despite its strong belief that euthanization is the appropriate remedy. Rather, the court orders that certain conditions be met for all the three dogs: that the dogs shall either be neutered or spade (whichever is applicable) and each dog shall be fitted with a microchipping device; that the dogs be immediately evaluated by a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert; that the owner of the dog shall be responsible for all costs associated with evaluations and training ordered; that there be restraint of the dogs on a leash by an adult of at least twenty-one years of age whenever the dogs are on public premises; that muzzling the dogs whenever they are on public premises in a manner that will prevent the dogs from biting any person or animal, but that shall not injure the dogs or interfere with its vision or respiration, must be observed; that the respondents take all necessary steps to comply with Agriculture and Markets which requires owners of dangerous dogs to report the presence of a dangerous dog pursuant to the General Municipal Law; that the respondents maintain a liability insurance policy in an amount of one hundred thousand dollars for personal injury or death resulting from an attack by such dangerous dog.

Caring for animals doesn’t only require feeding them, bathing, etc. It requires a great deal of responsibility; that the animal must not be a danger to the people around. To learn more of the rights that can be exercised when animals pose a certain danger to your health or safety or when an injury has already been sustained, contact Stephen Bilkis & Associates. Whether you have been hurt in a car accident, a construction accident or medical malpractice incident, contact us for help.

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