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Plaintiffs Move for Order to Vacate Order of the Commissioner in Dog Bite Case


On 19 July 1987, a dog was taken to a shelter for having bitten three persons within a period of twenty-four months with sufficient severity so that medical attention was required. The dog was taken there on the day of his last dog bite incident to prevent further injury inflictions, dog attacks or animal attacks upon others, where he remains to this date.

Thereafter, petitioner moved to vacate the Order of the Commissioner of Health dated 21 August 1987 upon the ground, inter alia, that respondent had no jurisdiction over him and that the decision was in error.

Here, the issues presented are most serious because the life of the subject dog is contingent upon the results.

Only two arguments were urged by petitioner, the dog’s owner, in an effort to vacate the Order of the Commissioner of Health. First, that the Commissioner’s order to show cause notifying petitioner of the hearing was improperly served; and second, that service was improperly made because the order to show cause was not served pursuant to the rules (CPLR). Admittedly, three copies of the order to show cause were personally delivered at petitioner’s residence to petitioner’s father, who resides there. Petitioner argues that since it was a substituted service, copies of the order should also have been mailed. However, there was no allegation that petitioner did not receive the order to show cause from his father or that he did not have actual notice of the hearing. Indeed petitioner appeared represented by his attorney at the hearing at the proper place, date and time.

The Ruling:

Petitioner’s argument that the CPLR’s sections with regard to service must be followed in an administrative proceeding is without merit.

In an administrative proceeding, the standard for service is whether the notice under all the circumstances is reasonably calculated to make the parties aware of the proceeding so that they have an opportunity to be heard. The Supreme Court of the United States stated: An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. As with all administrative tribunals, the one that heard this matter derives its jurisdiction and powers from the statute which created it.

Moreover, the Health Code provides for service of a finding of violation as follows: Service of the finding of violation may be made personally upon the person alleged to have committed the violation, the permittee or registrant, upon the person who was required to hold the permit or to register, upon a member of the partnership or other group concerned, upon an officer of the corporation, upon a managing or general agent or upon any other person of suitable age and discretion. Service may also be made by certified or registered mail addressed to any person upon whom personal service could be made at the address of the alleged violator, or the address of the permittee listed in the permit issued by the Board or the Commissioner (or application therefor), to the registrant at the address in the registration forms, or at the address of the premises in question. In the case of service by mail, the return post office receipt shall be proof of the finding of violation.

Here, service was made upon a person of suitable age and discretion. Petitioner had his day in court during which he was represented by an attorney of his choice, had an opportunity to cross-examine witnesses and to present witnesses. He was even given an adjournment by the hearing examiner upon his request to get a veterinarian to examine the dog but he failed to do so. Thus, the court finds that due process was complied with by the notice procedure utilized by the Department of Health.

Should petitioner now be given another opportunity to have the subject dog examined by a veterinarian in order to prove that he is not vicious pursuant to the Health Code?

The Health Code states alternate grounds upon which a finding that an animal is vicious may be made. A finding under either section is sufficient under the law for the Department of Health to order an animal destroyed.

In the instant case, although the hearing examiner found that the subject dog was vicious and ought to be destroyed under the Health Code provisions and either finding would have justified her ruling, petitioner, at no time, has challenged such finding. Thus, petitioner’s plea for additional time to obtain a veterinarian for the purposes of determining whether or not the subject dog may properly be found to be vicious as defined in the Code is irrelevant and would be futile. The results for the dog would be the same. The dog, admittedly, having been found vicious under the Code, his fate is sealed.

As the often heard axiom of the law states that a dog is allowed one bite, sadly, the subject dog has exceeded his quota, threefold. Henceforth, the court is constrained to uphold the law and dismiss the petition.

Owning a dog is a privilege which can be taken away if it steps on the freedom of others, i.e., the safety of everyone else around. Should your right to be safe in your person be violated as a result of a dog attack incident, contact a New York Dog Attack Lawyer as soon as practicable. Contact Stephen Bilkis & Associates and consult with our NY Dog Bite Attorneys for free.

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