On February 17, 2008, a New York man exited his vehicle with his German shepherd breed dog named Maggie. He was taking her out for a walk when two mixed breed pit bull terrier dogs ran toward them. The two dogs took turns biting Maggie’s back end and taunting her in front. Maggie’s owner frantically tried to protect her by hitting the dogs on the head with the plastic end of Maggie’s leash. Still Maggie and her owner fought the dogs. Maggie’s owner would pry one dog off of her hindquarters and the other would bite her and hold on. During the attack, Maggie received numerous deep bite wounds and her owner was bitten so severely that his hamstring was severed. Maggie’s owner slipped on the icy sidewalk lost his footing and fell. Still fighting the two pit bull terriers, Maggie and her owner managed to fight their way back to their car and get in to it. Once they were inside the car, the two attacking dogs jumped on to the car snarling and ferociously trying to get to their victims again. Neither one of the pit bulls were on leashes. When the dogs could not get to their victims any longer, they eventually wandered off and Maggie’s owner was able to call the police.
In City Court, the prosecutor advised the court that this was not the first incident of vicious.In the state of New York, a dog can be described as vicious even if the current case is the first time that the dog has ever bitten anyone. That is “if” the complainant can show that the dog had exhibited signs of being vicious short of actually biting anyone prior to the dog bite that is in question. Some of the signs that the dog could exhibit to demonstrate viciousness would be growling at people, snarling at people, or just showing its teeth in an aggressive manner in the presence of people. Of course, a previous incident of actual biting is demonstrative of viciousness as well. Some other indicators that the Court will take in to account are things like a “Beware of Dog” sign. A “Beware of Dog” sign demonstrates a certain knowledge of the dog owner that his or her dog is likely to be vicious even if it has never bitten anyone before. In this case, the prosecution advised that on June 19, 2007, witnesses observed one of the two pit bull terriers identified as the ones involved in the attack against Maggie and her owner to have lunged at a person leaving his business barking and demonstrating an aggressive demeanor. On that date the dog was leashed.
Witnesses also linked the same two pit bull terriers to the mauling death of a kitten in a parking lot while their owner and her grandson were walking them. On September 16, 2006 one of the two pit bull terriers, who was not wearing a leash, ran out of its yard and attacked a neighbor’s dog. Neighbors in the area reported to the police that these two dogs have been seen running loose in the area terrorizing the neighborhood. Interestingly enough, although all of these incidents are fairly well documented, there were no dangerous dog proceedings begun against the dogs and their owner under Agriculture and Markets Law 121 until after Maggie and her owner were attacked.
In Court, the owner of the two pit bull terriers was ordered to have them euthanized because they were deemed to be vicious. The owner of the dogs appealed because effective December 15, 2004, the law in Agriculture and Markets Law 121 and related statutes was re written expanding the definition of a dangerous dog and the sanctions that are ordered to control them.
The amendments expanded the definition of a dangerous dog to include:
“any dog which (i) without justification attacks a person, companion animal as defined in [section 350 (5)] of this chapter, farm animal as defined in [section 350 (4)] of this chapter or domestic animal as defined in subdivision seven of this section 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” (Agriculture and Markets Law § 108  [a]).
[65 A.D.3d 366]
The main difference between this version and the previous one is that the newest version of the law makes a dog vicious if it attacks a “companion animal.” It seems clear that under this definition of dangerous dog, the two pit bull terriers that attacked Maggie and her owner are legally dangerous under the statute. The two dogs demonstrated this ferocity when they attacked the kitten, the neighbor’s dog and Maggie without justification since they are all companion animals as defined by the statute. Additionally, they attacked Maggie’s owner without provocation causing him to sustain serious physical injury.
In this case, the judge ordered euthanizing the two dogs; However, their owner points out that under the law since this is their first determination of vicious, that the court must consider alternatives written into the law before euthanizing them. Accordingly, the law stated that pursuant to the new version of the statute, the judge or justice shall “order neutering or spaying of the dog, microchipping of the dog and one or more of the following as deemed appropriate under the circumstances and as deemed necessary for the protection of the public:
“(a) evaluation of the dog 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. The owner of the dog shall be responsible for all costs associated with evaluations and training ordered under this section;
“(b) secure, humane confinement of the dog for a period of time and in a manner deemed appropriate by the court but in all instances in a manner designed to: (1) prevent escape of the dog, (2) protect the public from unauthorized contact with the dog, and (3) to protect the dog from the elements pursuant to section [353-b] of this chapter. Such confinement shall not include lengthy periods of tying or chaining;
[65 A.D.3d 367]
“(c) Restraint of the dog on a leash by an adult of at least twenty-one years of age whenever the dog is on public premises;
“(d) muzzling the dog whenever it is on public premises in a manner that will prevent it from biting any person or animal, but that shall not injure the dog or interfere with its vision or respiration; or “(e) maintenance of a liability insurance policy in an amount determined by the court, but in no event in excess of one hundred thousand dollars for personal injury or death resulting from an attack by such dangerous dog” (Agriculture and Markets Law § 121 ).
In this case, the judge did not address any of these alternatives, but simply ordered the two pit bull terriers to be put to sleep. Further the Justices in handling the appeal request to overturn the order to euthanize the two dogs found that none of the aggravating circumstances necessary to euthanize the dogs according to law are present in this case. The court evaluated each incident, the closest being the attack on Maggie’s owner. He received a torn hamstring muscle in his right leg which required prescribed antibiotics, and ibuprofen to manage the pain. He was required to attend physical therapy for six to eight weeks. At the time of this hearing, he was still going to physical therapy.
The requirements necessary to order euthanization of the dogs are that they attacked without provocation causing “serious physical injury or death” under Agriculture and Markets Law 121 [a]. Serious bodily injury is that injury that would create a substantial risk of death or does indeed cause death. An injury is also deemed serious if it causes long term disfigurement or loss of use of the limb or bodily organ. In this case, while his injury was painful and long to heal, the prognosis for Maggie’s owner is that he should recover fully with no loss of use of the limb. Therefore, this injury does not meet the necessary qualifications to order the dogs to be put to sleep.
The second aggravating circumstance that might qualify the judge under the law to order the dogs to be put to sleep rather than controlled under the detailed provisions previously discussed is that the dogs have a previously unjustified attack on a person. In this case although witness statements claim that one of the dogs was observed lunging and barking at a man, there was no physical injury associated with the incident. It does not provide the necessary elements to order a direct euthanization of the dogs without first attempting to use the confinement principles as described.
Lastly, the judge could order a direct euthanization if the pit bull terriers had caused “serious physical injury or death to a companion animal, farm animal, or domestic animal, and has, in the past two years, caused unjustified physical injury or death.” [65 AD 3d 369] In this situation, the attack on Maggie qualifies. The numerous bite wounds on Maggie’s body were close to major veins which quite likely would have caused death if they had been hit. Also, there is a tremendous potential for infection based on the nature of the bite wounds that could be considered life threatening. The only problem is that it would be considered the first such incident. The incident where the two pit bulls killed the cat does not get consideration under the law because no dangerous dog proceeding was done.
On July 2, 2009 Judge Centra of the Appellate Division of the Supreme Court of New York, Fourth Department stated that because none of the three aggravating circumstances were present in this case when it was heard by the City Court; the City Court did not have the authority to order a direct humane euthanasia. Judge Centra did say, though, that in spite of the fact that the City Court exceeded its authority in ordering euthanasia based on the legality, common sense tells us that euthanasia in this case is the appropriate remedy.
Judge Centra cites the fact that the owner of the two pit bull terriers consistently refuses to see the hazard that is caused by her dogs. In each situation, this dog owner has failed to recognize the severity of the problem with her dogs. The pit bull terrier’s owner testified that her dogs had not intended to harm the kitten when they killed it. She stated that they thought it was a toy and was just playing with it. She justified the dogs’ actions in the case of the attack or assault on Maggie and her owner by testifying that it was “simply a dog fight” and eluding that Maggie’s owner would not have been harmed if he had just released Maggie to fight with her dogs. She further blamed Maggie’s owner for purportedly escalating the situation by hitting her dogs while he was attempting to stop the attack.
This dog owner further argued that since it was her roommate who had taken the dogs out without leashes when they attacked Maggie and Maggie’s owner, that it was not her fault that the dogs were not restrained and that they should; therefore, not be euthanized. Judge Centra maintained that the evidence presented at the trial was such that even when the dog owner did have her dogs restrained by leashes, she was unable to prevent them from killing the kitten.
Judge Centra states that this statute needs to be amended to allow justices to order euthanasia of dogs involved in attacks even if it is their first documented incident under viciousness when there are aggravating circumstances that would warrant such an action. Judge Centra makes this statement because it is clear that there are aggravating circumstances in this case. There were several instances of viciousness associated with these dogs that went undocumented. Had these incidents been documented, there would have been no question that these dogs are vicious and that the owner fails to grasp the severity of the problems that they cause. Euthanasia of these dogs is the logical choice; however, because it does not meet the legality in this case, the Justices concur with the orders that the directive of humane euthanasia be removed and the order modified to reflect that.
The justices also ruled that the City Court did not err in its decision to not provide court appointed council to the dog’s owner. The justices state that since the hearing is predominantly civil, there is no right to provided council. In civil cases the dog owner only faces monetary penalties and there is no underlying risk of loss of liberty or grievous forfeiture. Therefore, there is no right of the individual for court appointed council.
The results of this appeal are that the dogs are no longer facing immediate euthanasia. The case was sent back to Little Falls City Court to be reheard since previously euthanasia was the outcome. It needs to be reheard to have consequences consistent with those spelled out in the law such as tight confinement.
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