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New York Court Discusses Most Extreme Sanction in Dog Bite Cases


On two separate occasions, a dog which weighs between 75 and 100 lbs., while running loose and unattended, attacked the complainant’s sixteen year old son in a menacing manner as he was riding his bicycle. The dog was barking, growling and snarling. The first incident caused the young man to fall from his bicycle and to injure his leg and knee. On the second occasion, the dog was one of a pack of three dogs which forced the young man to take a defensive action in order to protect himself from what he perceived to be an impending animal attack.

Thereafter, a special proceeding under Section 121 of the Agriculture and Markets Law was instituted. The complainant avers that the dog which is owned by the respondent, a male with the body structure of a German Shepherd-type, is a dangerous dog within the meaning of the law, and seeks to have the animal permanently confined or destroyed.

During the hearing, while there was some question as to the identification of the animal in question, it was clear to the court that the golden labrador-malemute mixed breed dog conceded to have been owned by the respondent was the animal which is the subject of the proceedings.

In opposition, respondent presented evidence that his dog is usually confined in a kennel or secured by means of a chain, although admittedly sometimes loose and perhaps a little rough, playful and goes after bikes. Two neighbors, who testified in support of the respondent, indicated that they never observed any vicious acts by the dog, and that the dog is usually confined or attached to a lead, but that on occasion the dog escapes.

The Ruling:

Although there is ample precedent for the ordered destruction or permanent confinement of a dog whose attacks culminate in a biting incident, the question of whether a dog attack on a person without any dog bite incident, on a public way, as opposed to a private property, can or should be so treated, appears to remain unanswered in the herein jurisdiction.

In a similar case, an animal entered the property of the petitioner on three separate occasions, approaching her with growls and bare teeth, but there was no evidence of biting. Regardless, the court, referring to a person’s inherent right to use his own property, immune from hostile assaults, ordered the dog confined by the respondent, although the dog in question was found to be friendly to others and playful with children.

Thus, the standard, as set forth by the legislature, is not whether the animal is friendly to some, or even to most, persons, but whether it attacks even one person who is conducting himself in any place where he may lawfully be. While the statute fails to define attack, the Oxford English Dictionary, Oxford University Press, 1971, defines attack in reference to animals as: The commencement of destructive action. Such definition, coupled with the definition of dangerous as fraught with danger or risk; perilous, hazardous, risky, unsafe, provides the key to the legislative intent and the standard by which a court can declare a dog to be dangerous within the meaning of the statute. An attack need not culminate in the ultimate hostile contact between dog and human-the bite-for a dog to be declared dangerous. It is the action of the animal which gives rise to apprehension on the part of a reasonable person that such contact is imminent which is proscribed by the statute. To require more would be to revive the “one free bite” rule which has long since been rejected in this jurisdiction. A person need not wait till he or she is injured or maimed before taking defensive action against a menacing animal, nor need a court look into such injury before ordering the actions which are authorized by statute.

In a free society, there is a constant balancing of freedoms and privileges in order to insure that the exercise of a privilege by one does not infringe upon the freedom of another. The privilege to keep a domestic animal carries with it the obligation to insure that the actions of that animal, as friendly as they may appear to the owner, do not interfere with the ordinary rights of another, i. e., to safely use a public roadway unhindered by a loose dog. As a matter of fact, permitting a dog to run loose constitutes a violation of a local ordinance in the town of Islip. The town of has seen fit to adopt a local law making it a punishable offense to permit a dog to run at large. It is indefensible to assert that other dogs are permitted to run loose in the neighborhood in violation of the said ordinance.

While the subject dog’s conduct certainly does not warrant the most extreme action sanctioned by the Agriculture and Markets Law, the two incidents at issue do warrant the permanent confinement of the subject animal. Henceforth, respondent is directed to secure or confine his dog at all times when he is not being walked at the end of a leash. If respondent fails to do so, he runs the risk of being imposed the most extreme sanction authorized by law, i.e., destruction of the dog.

Dog owners must ensure the safety of everyone who comes in contact with their dog. Even though a dog appears to be friendly and all, like the above mentioned case, still, a dog owner must take the necessary precautions to ensure safety; otherwise, liability may arise. For free legal advice on similar matters, contact a Suffolk County Dog Attack Attorney or a Suffolk County Dog Bite Attorney at Stephen Bilkis & Associates.

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