Opinion
No. CV–005186–14/BX.
07-15-2014
Daniel RAMSEUR, Plaintiff, v. Yvette ASKINS, Defendant.
Opinion
Plaintiff, Daniel Ramseur (“Plaintiff”) commenced this replevin action to recover possession of chattel-Deva, a two year old Shih Tzu-retained by his aunt, Defendant, Yvette Askins (“Defendant”). The Court held a trial on Plaintiff's claim on May 1, 2014, at which both parties appeared without counsel.
FINDINGS OF FACT
Based upon the credible testimony at trial the Court adduced the following facts:
During the summer in 2012, Plaintiff purchased Deva, who was approximately three months old at the time for his granddaughter. After acquiring Deva, Plaintiff took her to his mother's home where he was living. Plaintiff took Deva to a veterinarian for her vaccinations and asked Defendant's son, Divere, to walk her three times a day for him. After a few weeks Divere, started working and was no longer able to walk Deva for Plaintiff. Also around this same time, Plaintiff moved out of his mother's home and into his uncle's home, leaving Deva behind with his mother because his uncle already had a dog.
Shortly after Plaintiff moved out of his mother's home, Plaintiff's mother asked Defendant (her sister) if she would give Deva a bath and Defendant agreed. That same day, Plaintiff's mother dropped Deva off at Defendant's home and she never returned to pick her up.
In March, 2014, both Plaintiff and his mother asked Defendant to return Deva to Plaintiff because Plaintiff wanted to breed her. Defendant refused to give Deva to Plaintiff. Also in March, 2014, Plaintiff contacted Defendant's son, Lamont, via text message requesting that Deva be returned to him so that he could breed her and indicating that he would return her after she had puppies. Lamont responded to Plaintiff's text that he did not want Deva bred. Since Defendant and her family's refusals to return Deva to Plaintiff, the parties and their families no longer speak to each other as a result of the dispute.
Plaintiff's mother testified on his behalf and Lamont testified on Defendant's behalf. Defendant indicated to the Court she wanted her daughter to testify as well but the Court determined after Defendant made an offer of proof that her testimony would be cumulative, and therefore, unnecessary. See Finkelstein Newman Ferrara v. Avemm Corp., 36 Misc.3d 144(A) (App T, 1st Dep't 2012).
For the first couple of months that Deva was in Defendant's care, Plaintiff and his mother supplied Defendant with dog food for Deva but not in sufficient amounts to keep her adequately fed. Plaintiff would occasionally visit Defendant's home and play with Deva during the visit and Plaintiff had her groomed once.
Defendant has four adult children living with her, all of whom participate in caring for Deva. Defendant's household purchases dog food for Deva, pays to have her groomed, and feeds and walks her daily. All of the members of Defendant's household are closely bonded with Deva and she is closely bonded with them.
Deva is particularly close with Defendant and Lamont. While Defendant was away for a brief vacation in March, 2014, Deva refused to eat and Defendant's children had to hand feed until Defendant returned. Even when Defendant is gone for briefer periods, upon her return, Deva becomes very excited. Defendant, who lost her hearing in one ear, has now come to depend on Deva to alert her when someone rings her intercom or knocks at her door. Lamont occasionally takes Deva to work where she will spend some time with him. In addition to Defendant and her family, neighbors in Defendant's building and block are familiar and friendly with Deva.
In contrast to Defendant and her family's interactions with Deva, Plaintiff's are few since he left her with his mother in the summer of 2012. Plaintiff testified that he now lives with his wife whom he married in October, 2013, and her adult son. Plaintiff testified that his wife consented to him bringing Deva home although Plaintiff's wife did not testify at trial nor did her son. Plaintiff testified that his wife has “seen Deva” and her son has never met Deva. Plaintiff did not testify whether he knew how his wife's son felt about Deva joining the household.
ANALYSIS
Under New York law, companion animals such as Deva are treated as personal property. Schrage v. Hatzlacha Cab Corp., 13 AD3d 150 (1st Dep't 2004). But because companion animals are afforded many protections under the law, they fall within a special category of property that is treated differently from other types of property such as a television set. Ferger v. Warwick Animal Shelter, 59 AD3d 68, (2nd Dep't 2008) (observing that trusts may now be created for pets upon the death or incapacitation of their human companions and pets may now be included in orders of protection issued by Family Court). The challenge for courts has been what standard to apply when determining ownership of this special category of personal property.
In Travis v. Murray, 42 Misc.3d 447 (Sup Ct, N.Y. Co 2013), the court, in the context of a divorce action, was called upon to decide with whom Joey, a miniature dachshund, should live. After a thoughtful and extensive survey of the law concerning pets, the Travis Court determined that the most appropriate standard to apply when deciding with whom a pet should reside is the one found in the First Department case, Raymond v. Lachmann, the “best for all concerned” standard. Id. At 460. The First Department's full holding in Raymond is:
Cognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey [the cat], who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.
Raymond v. Lachmann, 264 A.D.2d 340, 341 (1st Dep't 1999).
The Travis court detailed the factors that it would consider in applying the “best for all concerned” standard and indicated that it would hold a hearing at which the parties would be given an opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. Travis, 42 Misc.3d at 460. The factors the Court set out include who bore the major responsibility for meeting Joey's needs (i.e. feeding, walking, grooming and taking him to the veterinarian) and who spent more time with Joey on a regular basis. Id.
Other courts have cited Raymond for the proposition that the appropriate standard is a “best interest of the animal” standard. See Feger, 59 AD3d at 72 (deciding appropriateness of a protective order to prevent disclosure of the identities of the donor and adomptive owner of a cat sought by plaintiff); LeConte v.. Lee, 35 Misc.3d 286, 288 (Civ Ct, N.Y. Co 2011) (deciding replevin action between former paramours). This Court agrees with the Travis court that the courts in Feger and LeConte “apparently confused the [Raymond ] decision's use of the term best for all concerned' with the more familiar term best interest,” and that the court in LeConte “nonetheless engaged in a thoughtful analysis of matters bearing on the well-being of the dog Bubkus ...” Travis, 42 Misc.3d at 458 FN 5.
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Another recent New York Supreme Court decision reached a similar conclusion as the court in Travis. In Hennet v. Allan, the court, deciding who between two former co-habituating paramours should have possession of a dog, also determined that a hearing is appropriate “to render a fair determination as to which party through his or her conduct has the most genuine right of possession. This inquiry necessitates a review of the circumstances as to how Duke was acquired and cared for, and the actual arrangement between the parties for spending time with [the dog] ...” 543 Misc.3d 542, 981 N.Y.S.2d 293, 298, 2014 N.Y. Slip Op 24040 (Sup Ct, Albany Co 2014).
This Court finds given that companion animals fall within a “special category of property,” the “best interest for all concerned” standard is the appropriate analysis when determining competing claims of ownership of a pet. Moreover, the straightforward factors that should be considered when applying this standard set out by the court in Travis gives parties and courts clear direction when deciding with whom a treasured pet should reside. Accordingly, the Court will now consider which party bore the major responsibility for meeting Deva's needs and which spent more time with Deva on a regular basis.
When Plaintiff initially acquired Deva, he took some preliminary steps to meet her needs such as taking her to the veterinarian and arranging to have Defendant's son walk her. However, Plaintiff conceded that he acquired Deva not for himself but for his granddaughter and he did not testify as to his grand daughter's age (and therefore, whether she was old enough to take on the responsibility of dog ownership) and where she resided. The Court concludes that Plaintiff did not give enough forethought into who would care for Deva before he purchased her because when he left his mother's residence he did not take her with him, he did not make any arrangements for her care upon his departure and his mother either could or would not care for her as evidenced by her leaving Deva with Defendant.
Once Plaintiff's mother left Deva with Defendant in the summer of 2012, Defendant and her family have been meeting Deva's daily needs. While Plaintiff and his mother initially provided some food for Deva, Defendant and her family have been primarily responsible for purchasing her food, walking and grooming her. But Defendant and her family's involvement in Deva's life goes beyond just meeting her physical needs. The many photographs of Defendants' family members with Deva and Defendant's credible testimony that Deva shows signs of anxiety in her absence demonstrate that Deva is loved by Defendant and her family and they are in turn loved by Deva. Removing Deva from the home where she has grown and thrived for approximately two years would likely cause her a great deal of distress. See http://ww w.aspca.org/pet-care/virtual-pet-behaviorist/dog-behavior/ re-homing-your-dog (“Moving to a brand new home can be very stressful for a dog.”)
Moreover, although Plaintiff testified that he wants Deva returned to him, he never actively participated in her care and the other members of Plaintiff's household have had little to no contact with her. Indeed, the credible evidence at trial showed that Plaintiff wanted Deva returned to him not because he wants her as a companion but because he wants to make money from breeding her.
Given that the preponderance of the credible evidence at trial established that Defendant and her family have been meeting Deva's needs for nearly her entire life, that Defendant and her family are closely bonded to Deva and she to them, that Deva is thriving with Defendant and her family, that Plaintiff has been mostly absent from Deva's life and has abdicated her care to others, primarily Defendant and her family, that removing Deva from Defendant's home would likely cause her a great deal of anxiety and that Plaintiff does not want Deva returned because he wants her as a companion but to breed her, the Court holds that it is best for all concerned that Deva remain in Defendant's “possession.”
Accordingly, it is hereby
DECIDED, ORDERED and ADJUDGED that Defendant has the right to continued “possession” of Deva and that Plaintiff's replevin complaint is dismissed with prejudice.
This constitutes the Decision, Order and Judgment of the Court.