If you remember the August post about the pro se litigants fighting over their dog and calling the court for a decision (PET LAW – AND OVERZEALOUS PRO SE LITIGANTS), the case has been decided, reminding us once again that pets “are now treated as members of the family under modern, enlightened jurisprudence.”
Connolly v. NINA, 2024 NY Slip Op 51422 – Kings Co. Sup. Ct. 2024:
“This case involves a dispute over the ownership and custody of two dogs, Mary Alice, an approximately 12-year-old tan puggle,[1]
and Henry, a five-year-old white chihuahua with patches of black, who
are depicted at
https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image1.pdf.[2]
Plaintiff and Defendant both assert strong claims to the dogs, citing
ownership, emotional bonds, financial contributions, and caregiving
responsibilities. In adjudicating this matter, this Court applies the
“best for all concerned” standard established in Raymond v. Lachmann (264 AD2d 340, 341
[1st Dept 1999] [cat to remain where he lived, prospered, loved, and
was loved given his age and limited life expectancy], a seminal
appellate decision not applying pure ownership as the standard for
custody of a pet).
Plaintiff Debrasue Connolly adopted Mary Alice in September 2019 (see July 12, 2024 tr at 6, lines 18-20; plaintiff’s exhibit 7) and Henry in 2020 (see
plaintiff’s exhibit 6). Over the last few years, on various occasions,
including when Plaintiff has been hospitalized, she entrusted the dogs
to Defendant Venessa Nina, a professional pet caretaker (see July
5, 2024 tr at 6, line 1; 12, lines 13-15; 14, lines 24, through 15,
line 8; 14, line 24, through 15, line 8; 19, line 19, through 20, line
2; 23, lines 11-18; July 12, 2024 tr at 37, lines 3-5; 30, lines 22-23).
She first engaged Defendant, an animal caregiver who offers dog
walking, boarding, and training services, as a pet sitter in May 2020 (see July 5, 2024 tr at 9, lines 17-18) or “toward the end of 2019 or the beginning of 2020” (id.
at 14, line 25, through 15, line 1). Defendant has a New York City
Department of Health dog handler certification and received a qualifying
certificate of animal care and handling also (see July 18, 2024 tr at 28, lines 2-6).
On October 14, 2023, with Mary Alice and Henry accompanying her,
Plaintiff trekked out from Manhattan to the beach in Long Beach, Long
Island, fell asleep there, and awoke to find her pocketbook and phone
gone as well as Henry being in the custody of the local animal control.
Animal control called Defendant — not Plaintiff — to retrieve Henry and
Mary Alice because Defendant’s information was linked to the implanted
microchips. Defendant alleged that the microchips were in her name by
request due to the frequency of Plaintiff’s unanticipated
hospitalizations, leading to the dogs’ being sent to the pound each
time. On previous occasions, Defendant returned the dogs to Plaintiff
after having taken care of them for her. Following this incident,
however, Defendant elected to maintain custody of the dogs after the
shelter allegedly informed her that she would be charged with animal
neglect and cruelty should she again yield possession of them to
Plaintiff. Plaintiff consequently commenced a pro se suit against
Defendant to recover custody of the dogs. (See generally July 5, 2024 tr at 2-15.)
Plaintiff seeks the return of both dogs but would be amenable to the
return of Mary Alice only as she feels she is best suited to care for
Mary Alice’s conditions, including “cherry eye,” as well as from
bowleggedness. Although Plaintiff claims lawful ownership, she focused
on Mary Alice’s safety, arguing that Defendant’s care was wholly
inadequate. Plaintiff asserted Defendant was abusing Mary Alice by
taking her on long walks as she has little stamina, bringing her to dog
parks as Mary Alice allegedly cannot be around big dogs, allowing Mary
Alice to be around Defendant’s cats, administering home remedies for
Mary Alice’s cherry eye condition, and harming Mary Alice with CBD
biscuits. Defendant, however, argued that the dogs should not be
returned due to unsanitary living conditions in Plaintiff’s apartment,
the dogs being filthy when living with Plaintiff, the frequency of
Plaintiff’s sudden absences, the length of these absences, concerns for
the safety of the dogs as Plaintiff heavily relied on Defendant to care
for them during the absences, Plaintiff’s failure to socialize the dogs,
Defendant’s exposure to prosecution by animal care and control
officials if she released the dogs to Plaintiff, and the dogs being
microchipped to Defendant. In any event, the dogs are bonded and should
not be separated, maintained Defendant. (See generally id. at 13-27.)
The parties attended three evidentiary hearings, on July 5, 12, and
18 of 2024, during which they both provided testimony and documentary
evidence regarding their relationship with the dogs. Evidence presented
included, among other things, dog licensing documents, microchip
confirmations, veterinary records, letters of reference from
acquaintances, text messages between Defendant and animal rescue center
staff, voicemails Plaintiff sent to Defendant, personal financial
records, and photos.[3]
Procedural Background
This action was commenced by a pro se Plaintiff against a pro se
Defendant. Plaintiff’s documents did not properly commence the action
under New York law, as Plaintiff initiated this matter by filing an
order to show cause dated June 27, 2024, a petition, an affidavit of
emergency, and various exhibits.[4]
In New York, an action can be commenced in one of three ways: (1) by
filing a summons and complaint; (2) by filing a summons with notice; or
(3) by filing a summons with notice of motion for summary judgment and
supporting papers in lieu of a complaint (see CPLR 304, 3213).
Plaintiff did not utilize any of these methods. Additionally, Plaintiff
did not cite any statutory provision that would allow her to bring a
claim for the return of her dogs within a special proceeding, which is a
type of expedited lawsuit commenced with a petition (see CPLR 103[b], 402).
There was no question regarding jurisdiction as Defendant was
properly served. Defendant appeared and contested Plaintiff’s claim on
the merits. However, given the irregular nature of the papers that
commenced this action, the Court elected to treat the documents as the
equivalent of a summons and complaint combined with a motion for summary
judgment (see CPLR 103[c]). Under Judiciary Law § 2-b(3), “A
court of record has power . . . (3) to devise and make new process and
forms of proceedings, necessary to carry into effect the powers and
jurisdiction possessed by it.” Further, under CPLR 2101(f), “A defect in
the form of a paper, if a substantial right of a party is not
prejudiced, shall be disregarded by the court and leave to correct shall
be freely given.” Courts thereby may exercise flexibility in matters
such as this where Plaintiff sought replevin — the return of her dogs —
which requires proper commencement of an action. The Court deemed the
argument and testimony adduced to be within the context of a hearing on
Plaintiff’s motion for summary judgment (see July 12, 2024 tr at 7, lines 9-11).[5]
Summary judgment is a drastic remedy that should be granted only if
no triable issues of fact exist and the movant is entitled to judgment
as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Andre v. Pomeroy, 35 NY2d 361 [1974]).
Although typically decided on the papers, under CPLR 3212(c), “if it
appears that the only triable issues of fact arising on a motion for
summary judgment relate to the amount or extent of damages . . . the
court may, when appropriate for the expeditious disposition of the
controversy, order an immediate trial of such issues of fact raised by
the motion. . . .” While this case does not involve damages, the Court
opted for an expedited resolution. Both parties did not object to having
a trial in this manner, thereby avoiding the lengthy process of
discovery and potential delay from placement on a trial calendar.[6]
Consequently, the Court held an evidentiary hearing over the course of
three days in July to resolve the issue of custody of the dogs. The
Court also found support for proceeding in this manner in CPLR 2218,
which provides in pertinent part, “The court may order that an issue of
fact raised on a motion shall be separately tried by the court or a
referee,” as well as in the previously-cited Judiciary Law § 2-b(3)
provision, “A court of record has power . . . (3) to devise and make new
process and forms of proceedings, necessary to carry into effect the
powers and jurisdiction possessed by it.”
Legal Standard
Traditionally, New York courts viewed pets as personal property,
resolving ownership disputes based on which party held the superior
possessory right (see Travis v. Murray, 42 Misc 3d 447, 452-453
[Sup Ct, NY County 2013]). More recently, however, courts recognized
the myriad of ways in which companion animals are recognized as much
more to their owners than simple possessions (see Pron v. Tymshan,
79 Misc 3d 1235[A], 2023 NY Slip Op 50809[U] [Civ Ct, NY County 2023]).
Courts now treat companion animals as a special category of property,
which is consistent with underlying public policy to protect the welfare
of animals (see Mitchell v. Snider, 51 Misc 3d 1229[A], 2016 NY Slip Op 50877[U] [Civ Ct, NY County 2016]).
Courts have increasingly applied Raymond‘s “best for all
concerned” analysis, balancing a strict property analysis with the more
extensive interests analysis involved in child custody cases (see Pron,
2023 NY Slip Op 50809[U], *4). The “best for all concerned” standard
combines traditional property elements and intangible or subjective
factors involved in custody, such as the emotional bond between the pet
and its caretakers, the ability to meet the pet’s physical and emotional
needs, and the stability and consistency of care provided (see id.; L.B. v. C.C.B., 77 Misc 3d 429 [Sup Ct, Kings County 2022]; Mundo v. Weatherson,
74 Misc 3d 1215[A], 2022 NY Slip Op 50125[U] [Civ Ct, NY County 2022]).
“Relevant facts include those that reflect each party’s ability to meet
the animal’s physical and emotional needs, including financial
circumstances, access to outdoor activities, opportunities for exercise
and socialization, access to veterinary care and necessary supplies, and
the time required to meet these needs on a daily basis” (Pron,
2023 NY Slip Op 50809[U], *4). Modern day notions concerning disputed
custody of pets led our state’s legislature to amend the Domestic
Relations Law to mandate that when dividing marital property, “in
awarding the possession of a companion animal, the court shall consider
the best interest of such animal” (Domestic Relations Law §
236[B][5][d][15]).
In Raymond, the Court determined the custody of a cat. In
light of the cat’s age and the strong bond between the animal and its
caregiver, the Court found that the cat should remain where it had
“lived, prospered, loved and been loved for the past four years” (Raymond, 264 AD2d at 341). In Hennet v. Allan (43 Misc 3d 542
[Sup Ct, Albany County 2014]), the Court examined which party had a
more genuine right of possession based on their conduct in acquiring and
caring for the dog. This required consideration of the parties’
relationship with the dog and how care was arranged after one party left
their shared home (see Hennet, 43 Misc 3d at 548).
“Although nonhuman animals are not `persons’ to whom the writ of
habeas corpus applies, the law already recognizes that they are not the
equivalent of `things’ or `objects.’ Unquestionably, nonhuman animals
are sentient beings that, albeit without liberty rights, have been
afforded many special protections by the New York Legislature—long
considered a leader in animal welfare.” (Nonhuman Rights Project, Inc. v. Breheny, 38 NY3d 555, 575-576 [2022].)
After reciting a plethora of New York statutes protecting the interests
of animals, including the aforecited Domestic Relations Law provision,
the Court of Appeals noted, “As the foregoing statutes demonstrate, New
York law acknowledges that the relationships between humans and nonhuman
animals are varied and complex and, in many contexts, the law clearly
imposes a duty on humans to treat nonhuman animals with dignity and
respect” (id. at 576).
In line with the “best for all concerned” approach and the Court of
Appeals’ declaration that animals are not mere things or objects, this
Court assesses not just the parties’ possessory rights but also
intangible factors based on each party’s ability to meet the dogs’
physical and emotional needs. Considering the evidence presented by the
parties, this Court focuses on financial circumstances, the competing
living environments, access to outdoor activities, opportunities for
exercise and socialization, access to veterinary care and necessary
medical supplements, the time required to meet these needs on a daily
basis, and why each party would benefit from having the dogs in their
life (see Pron, 2023 NY Slip Op 50809[U], *4; Mitchell, 2016 NY Slip Op 50877, *3).
Discussion
I. Claims of Ownership
Both parties presented documentation supporting their claims of
ownership. Plaintiff testified that Mary Alice and Henry were adopted in
her name and are registered under her ownership with New York City
health authorities (see July 5, 2024 tr at 8, lines 11-18; plaintiff’s exhibit 4). Medical records submitted by Plaintiff listed her as the “owner” (see plaintiff’s exhibits 5, 6), and Plaintiff also claimed to have microchipped the dogs (see July 5, 2024 tr at 17, line 25, through 18, line 1; plaintiff’s exhibit 2).
Defendant, however, had licensed the dogs at a certain point (see id.
at 13, lines 11-13; defendant’s exhibit A). She provided documents from
24Petwatch, a registration site for pet microchips, stating that the
dogs were microchipped to her, and submitted text messages from Posh
Pets Rescue identifying her as the legal owner (see id. tr at 13, lines 7-11; 14, lines 1-7; defendant’s exhibits D, E). She submitted animal redemption forms (see defendant’s exhibit A) and reunification forms (see
defendant’s exhibit F). “These are my dogs, and if they go back into
her care and something happens to them, I’m responsible,” testified
Defendant (July 5, 2024 tr at 16, lines 12-14).
Given the contradictory records, the Court finds that traditional
markers of ownership are non-dispositive as both parties have strong
claims to ownership of Mary Alice and Henry.
II. Financial Capacity to Provide for the Dogs
Plaintiff claimed her financial resources are a significant factor in
her ability to care for Mary Alice and Henry. Access to a trust fund
left to Plaintiff by her father facilitates the ability to afford
premium dog food and veterinary care (see July 12, 2024 tr at 41,
lines 22-25; July 18, 2024 tr at 35, lines 2-23), but Plaintiff also
revealed that the trust administrator has at times denied or delayed
requests for payments (see July 18, 2024 tr at 34-37, 46-47).
“They pay my bills but it’s very difficult to get them to pay anything
so I’m having difficulty with them” (id. at 35, lines 9-11). The
trust is labeled a special needs one and it succeeded Plaintiff’s sister
as trustee after the sister resigned, by order of the Surrogate’s Court
(see id. at 36, lines 4-5, 41, line 10, through 42, line 14).
Although Plaintiff paid the dogs’ medical and general expenses,
Defendant also demonstrated that she consistently covered the dogs’
daily expenses while in her care. Defendant asserted that she provides
food, shelter, and medical treatments using her own funds (see
July 5, 2024 tr at 22, lines 13-25; July 12, 2024 tr at 40, lines 6-10,
20-21). Overall, this factor tips narrowly in favor of Defendant, whose
access to funds necessary for the dogs’ care is not limited by a third
party. Were Plaintiff’s trustee to be more accommodating, her access to a
trust containing around $500,000 (see July 18, 2024 tr at 35, line 23) would militate in favor of Plaintiff in terms of financial capability.
III. Emotional Bond, Caregiving, and Pet Life
Both parties share a deep emotional bond with the dogs, as evidenced
by testimony regarding their personal relationships with Mary Alice and
Henry. Clearly, Mary Alice and Henry served as emotional companions for
Plaintiff. “They are my babies. I love them so much. This has devastated
me. All I do is pace and drink water” (July 12, 2024 tr at 31, lines
3-5), was but one of Plaintiff’s numerous expressions of affection for
the dogs.
The following testimony encapsulates Plaintiff’s feelings toward Mary Alice:
Mary Alice is a dog who came from a history of torture. And
I’ve taken her to two specialists. I don’t know if you had a chance to
review the records that I submitted last week. She has dry eye. She’s on
her way to being blind in both eyes. She needs to go to the vet
immediately for both her eyes and her legs. I applaud Venessa for
getting the carriage but she shouldn’t need a carriage if she’s being
taken care of well. She could still walk well. She is my emotional
support dog. She is my baby. Please, she brings me so much joy. (July
18, 2024 tr at 40, lines 9-19.)
I love my dogs. And I will take wonderful care of them if
you hopefully decide to return them to me (July 5, 2024 tr at 19, lines
2-3).
Several of Plaintiff’s acquaintances also provided letters in
support, praising her care for the dogs and expressing confidence in her
love for animals (see plaintiff’s exhibit 8). A friend mentioned
that Plaintiff “took wonderful care of her dogs,” while another felt
that the loss of the dogs has been a source of distress for Plaintiff
and that getting the dogs back is important to restore her joy in life (see id.).
Notably, Turhan Moody, LMHC, who worked with Plaintiff in the Bronx II
Intense Medical Treatment Program, described Plaintiff’s love and
dedication to her pets as unquestionable (see July 18, 2024 tr at
54-56; Plaintiff’s exhibit J). Plaintiff also submitted a letter from a
member of her health team recommending the assistance of emotional
support animals to help manage her anxiety and depression (see July 18, 2024 tr at 54-56; plaintiff’s exhibit J).
Defendant maintained that she provided daily care for the dogs for
the times when Plaintiff was unable to do so either due to
hospitalization, health crises, or other reasons (see July 5,
2024 tr at 6, line 1; 12, lines 13-15; 14, line 24, through 15, line 8;
19, line 19 through 20, line 2; 23, lines 11-18; July 12, 2024 tr at 30,
lines 22-23; 37, lines 3-5).[7]
Photos of Mary Alice and Henry playing with other neighborhood dogs
as well as photos of them lying beside Defendant’s cats suggest the dogs
are well-adjusted in her care and comfortable in their current
environment (see defendant’s exhibits G11,[8] G42)[9]: https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image2.pdf
Neighborhood residents and shopkeepers enjoy holding or being with Henry (see defendant’s exhibits G44, G7, G43),[10]
a product of Defendant’s providing Henry with an active lifestyle:
https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image3.pdf
The Court credits the testimony of Defendant concerning the
circumstances under which the middle photo above was taken and notes how
keeping Henry in the local community benefits others who might not
otherwise be exposed to human-canine interaction, thus fostering the
universal precept of showing kindness to animals:
I live in Williamsburg with a lot of Hasidic Jews, and the
children don’t—usually are afraid of dogs. But my neighbor is one little
boy who’s very persistent that I let him pet. And I was like, as long
as you’re not going to get in trouble from your parents, sure, you could
pet. He was very excited to pet Henry and hold him. So I thought
snapping pictures, thought it was really cute and heartwarming. (July
18, 2024 tr at 14, line 24, through 15, line 6.)[11]
Additionally, and contrary to Plaintiff’s belief that the dogs are fearful of and therefore should not be around large dogs (see
July 12, 2024 tr at 23, lines 1-2; 31, lines 13-14), the photos depict
Henry comfortably socializing and playing with other canines at the park
— even standing on top of a large one (see id. at 35, lines 10-11; defendant’s exhibits F1, F2, F3, F4, G19, G23, G24, G25, G33, G38).[12] Mary Alice is also depicted as interacting with other dogs (see
defendant’s exhibits F1, F2, F3, F4, G18, G30, G33, G38). Socialization
is as important for domesticated animals as it is for humans. One can
readily observe from the photographic evidence that Mary Alice and Henry
are afforded more of an opportunity to socialize and play with other
dogs while under Defendant’s care than they probably would be if they
were sent back to Plaintiff:[13] https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image4.pdf
Plaintiff’s assertion that Defendant is engaging in animal cruelty by taking Mary Alice to the dog park every day (see July 5, 2024 tr an 20, lines 19-24) is belied by the photographic evidence.
Defendant further established that she purchased winter clothes for the dogs (see id.
at 8, lines 14-21; defendant’s exhibits F5, G12, 13, 15) and transports
them in a stroller as a precaution to protect from exacerbating Mary
Alice’s bowlegged condition (see July 18, 2024 tr at 26, lines 21-24; defendant’s exhibit I).
It is apparent that both parties have time to spend with Mary Alice
and Henry, although the Court is concerned with the fact that there have
been lapses when Plaintiff was unable to care for them, which
necessitated Defendant’s services. Additionally, Plaintiff’s trek out to
Long Beach from Manhattan on the Long Island Rail Road with Henry and
Mary Alice, about whom Plaintiff repeatedly expressed concern regarding
her eye and orthopedic conditions, only to fall asleep on the beach
without securing the dogs must be recognized as irresponsible behavior.
This exposed them to unnecessary risks, as proven by Henry either
wandering off or being dognapped when Plaintiff’s phone was stolen.
During the hearings, Plaintiff repeatedly characterized Defendant in a
pejorative manner, at one point claiming, “She’s a violent, hateful
individual” (July 18, 2024 tr at 6, line 7). “She’s a violent person,
she’s an angry person” (id. at 6, lines 14-15). The Court finds
no basis for these accusations. Additional charges that Defendant was
“cruel to animals” (see July 18, 2024 tr at 28, line 15) is belied by
the fact that various people have entrusted their pets to Defendant to
walk, babysit, and otherwise care for them.
The Court acknowledges Plaintiff’s emotional reliance on the dogs,
particularly given her health condition and the distress she will incur
should the dogs not be returned.[14]
However, the stability afforded the dogs in the course of Defendant’s
caregiving and the consistent positive experiences the dogs have had
under her care tip this factor in her favor. Defendant’s experience as a
professional pet caregiver, dog walker, and trainer (on and off for 20
years) as well as her ability to provide emotional support and
opportunities for Mary Alice and Henry to socialize and exercise
regularly only speaks further to her stronger claim as the more superior
caregiver.
IV. Health and Medical Needs
Mary Alice’s health is a point of contention between the parties,
particularly regarding her cherry eye condition, as shown in the photo
at right (defendant’s exhibit G13). Plaintiff stressed that Mary Alice’s
cherry eye is chronic and requires daily treatments, including Refresh
eye drops and Optix Care ointment, which she diligently administered (see
July 12, 2024 tr at 42, lines 16-17). Markedly, Defendant alleged that
Plaintiff never notified her of or provided instructions for these
treatments, so she took the initiative to administer a home remedy,
castor oil (see July 18, 2024 tr at 45, lines 10-14). Defendant
further noted that she uses a dog stroller to prevent Mary Alice from
overexerting herself on walks and provides CBD biscuits to alleviate
joint pain (see id. at 24, lines 6-23; 26, lines 21-24).[15] https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image5.pdf
Although the parties have differing approaches to medical care,
Defendant’s handling of Mary Alice’s condition has not led to any
documented deterioration in the dog’s health. The differences in their
caregiving methods — such as choice of food and treatments — reflect
personal preferences, not a lack of proper care. Plaintiff admitted that
surgery is no longer an option for Mary Alice due to her old age and
weak heart, making it clear that minimizing her discomfort is a logical
course of action[16] (see id.
at 44, lines 1-6). Hence, what makes the difference is Plaintiff’s
heavy reliance on Defendant to care for the dogs, especially during
hospitalizations, which raises concerns about Plaintiff’s long-term
ability to provide consistent medical care.[17]
V. Living Environment
Defendant’s living situation provides a stable and suitable
environment for the dogs. Her home offers ample space for roaming,
playing, and interacting with Defendant’s other pets, as depicted in
photos of the dogs lounging comfortably with Defendant’s cats (see
defendant’s exhibits G11, G42). She also emphasized that while in her
care, the dogs have received regular exercise at a nearby park, in
contrast to Plaintiffs alleged failure to regularly take the dogs out
during the day (see July 5, 2024 tr at 25, line 21, through 26,
line 9; July 18, 2024 tr at 10, lines 4). Plaintiff claimed that she did
exercise them (see July 5, 2024 tr at 26, lines 17-18; July 12, 2024 tr at 32, lines 4-6) and complained about them being over-exercised (see id.
at 17, lines 6-8 [“From the condition of my animals when I picked them
up from when they were with her, they were very, very exhausted all the
time.”]; July 12, 2024 tr at 21, line 17 [“She is taxing them, their
energy.”]; 22, lines 9-10 [“(Mary Alice) needs to rest, not going to the
dog runs.”]; 34, line 3 [“S]he taxes them. She overdoes their
energy.”]). Perusing the photos submitted by Defendant, however, the
dogs appear content (see Defendant’s exhibits F, G).
The Court acknowledges Plaintiff’s testimony in response to
Defendant’s regarding the dogs being taken out side, which included the
following:
Yes, I do the same. I take them out twice a day. They play
with each other and they — there’s a testimonial letter. They play with —
Mary Alice doesn’t play with other dogs. She can sniff a dog and, you
know, be friendly on the street, but she doesn’t — her eyes are too
tender. They get recreation with me. They have a wonderful life with me.
I’m grateful to you for not having Miss Nina bring them to court. It
would have stressed them, but you would have seen them run to me.
They’re afraid of her.
(July 18, 2024 tr at 42, line 24, through 43, line 9.)
Plaintiff’s living conditions, however, raise concerns. She has a small studio (see
July 5, 2204 tr at 22, line 9). Defendant testified that during a visit
to Plaintiff’s home she observed unsanitary conditions with the floor
covered in blankets with urine and feces (see id. at 25, lines
20-21; July 18, 2024 tr at 10, lines 1-5). After the October 2024
incident in Long Beach, “[Defendant] had to give them two baths when
[she] brought them home. They were disgusting” (id. at 27, lines
20-21). Additionally, Plaintiff’s repeated hospitalizations resulting in
the dogs being taken to shelters as well as Defendant’s care for the
dogs for sometimes up to 56 days at a time raises serious concerns about
Plaintiff’s ability to consistently provide a safe and stable home (see
July 12, 2024 tr at 37, lines 1-6). Thus, based on the testimony and
evidence presented, this factor weighs strongly in favor of Defendant.
Conclusion
In arriving at its determination, the Court has considered the
testimony and documents submitted by the parties. To the extent that
there was any discrepancy between the testimony of Plaintiff and that of
Defendant, the Court resolves it in favor of Defendant. Plaintiff’s
lack of transparency regarding the times and under what circumstances
Mary Alice and Henry had been taken in by Defendant undermined
Plaintiff’s credibility. Answering “No” to the question, “Are there
periods of time that you spend on the beach or outside of your
apartment?” (July 5, 2024 tr at 28, lines 1-3) was not really accurate,
considering Plaintiff’s hospitalizations. The Court also feels that
Plaintiff could have been more forthcoming concerning the trip to Long
Beach: why she toted the dogs out there instead of boarding them with
Defendant, whose services she had used previously; why she did not go
straight to her destination in Rockville Centre, considering that the
dogs were with her; and why she took a chance of something happening to
the dogs if she fell asleep. Further, Plaintiff did not satisfy the
Court that her apartment was not as described by Defendant: unsanitary,
with the dogs lying in urine and feces.
Defendant demonstrated a stronger ability to provide consistent care,
immediate financial support, a stable living environment, and
permanent, continuous companionship. That Mary Alice and Henry have
enjoyed socializing with other dogs (and even with their fellow cat
residents) and humans while under Defendant’s care is a very strong
consideration. Defendant’s bond with the dogs, reinforced by her
professional experience with animals, further supports the conclusion
that it is in the best interests of Mary Alice and Henry to remain in
her custody. We are approaching the one-year anniversary of the October
14, 2023 incident at Long Beach. Continuity is important is a pet’s life
(see Raymond 264 AD2d at 341
[cat to remain where he lived, prospered, loved and was loved for four
years]). Having resided with Defendant for a year straight by now, it
would be cruel to uproot the dogs at this point. Although letters in
support praised Plaintiff’s devotion and care given to her pets, in
light of Plaintiff’s past absences, there is reasonable concern about
the dogs’ future well-being should they be sent back to her, and this
Court will not subject Mary Alice and Henry to a filthy, urine- and
feces-laden household.
Dogs are now treated as members of the family under modern,
enlightened jurisprudence. Nudged by legislative advances regarding the
treatment of pets, the status of dogs under the common law has evolved.
They, no less than humans, deserve a safe, stable, stress-free home
environment where they will not be subjected to being uprooted
periodically. Defendant has and will continue to provide such an
environment, in this Court’s view. Plaintiff’s ability to provide it is
questionable. While the Court sympathizes with Plaintiff, who
predictably will sustain an emotional loss from being cut off
permanently from Mary Alice and Henry, said impact must be subordinated
to the best interests of the dogs, especially since the law calls for
the application of the “best for all concerned” standard (see id.
[emphasis added]). In this case before the Court, Plaintiff’s interests
are outweighed by those of Mary Alice and Henry. The dogs will be well
cared for by Defendant. It is in Mary Alice’s and Henry’s best interests
that they remain in the care of Defendant.
The Court declines to consider separating the dogs as it may cause
them distress after living together for so long. Shared custody or
visitation is also not considered by the Court due to the hostility
observed between the parties, principally by Plaintiff; this would inure
to the detriment of the dogs.
Accordingly, IT IS HEREBY DECLARED, ORDERED and ADJUDGED that
Plaintiff’s motion for summary judgment is DENIED; Plaintiff’s complaint
(in the form of supporting papers) is dismissed; custody of Mary Alice
and Henry, depicted hereinafter (defendant’s exhibit G6), is awarded to
Defendant; and, upon presentation of a copy of this Decision, Order, and
Judgment, any governmental agency recording Mary Alice and Henry as
being Plaintiff’s dogs shall amend their records to reflect that
Defendant is their legal guardian.
https://nycourts.gov/reporter/webdocs/ConnollyvNina_Image6.pdf
[1] A puggle is a mix of a pug and a beagle (see Puggle, Wikipedia, available at https://en.wikipedia.org/wiki/Puggle [last accessed Oct. 2, 2024]).
[2]
The photo (defendant’s exhibit F10), taken by Defendant, depicts Mary
Alice and Henry at Plaintiff’s home in Brooklyn. Defendant testified:
“All over the floor was covered in blankets, which is why I didn’t want
to stay in with them. She didn’t walk the dogs. All the surfaces were
just covered in urine.” (July 18, 2024 tr at 10, lines 3-5.)
[3]
Defendant submitted numerous photographs into evidence. Plaintiff
testified that she had no photos of the dogs — that the moving company
lost them when she moved from Brooklyn to Manhattan and that she lost
the ones on her phone when it was stolen while sleeping on the beach at
Long Beach (see July 12, 2024 tr at 19, lines 7-10; 44, lines 21-25).
[4]
The Court notes the difficulties and complexities faced by the Kings
County Supreme Court Help Center in assisting pro se litigants in
preparation for court appearances. However, the system could be
streamlined by providing unrepresented plaintiffs with a description of
how to commence litigation with the appropriate papers. This Court
emphasizes the importance of qualified representation and the need for
litigants to be properly apprised of the procedural and substantive
aspects of the law.
[5]
The Court was unable to locate a written response from Defendant to
Plaintiff’s initiating papers. The Court deems the exhibits submitted by
Defendant at the hearing to constitute answering papers. This is
consonant with the notion that “courts will routinely afford pro se
litigants . . . some latitude” (Mirzoeff v. Nagar, 52 AD3d 789, 789 [2d Dept 2008]); see Tracy v. Freshwater, 623 F3d 90, 101-103 [2d Cir 2010]
[discussion regarding solicitude accorded pro se litigants in federal
courts]). Procedural formalities should be relaxed for disputant pro se
parties in order to bring about a resolution to their legal quarrel. It
is also noted that while Plaintiff raised pro forma objections to
evidence and testimony from Defendant, she did not identify any
particular grounds rooted in the rules of evidence or other binding
protocols. Both parties acquiesced to the manner in which the Court
conducted the three-day fact-finding hearing, i.e., taking testimony,
receiving exhibits, and hearing argument. The Court recommends that the
legislature add a provision to the CPLR to enable pro se litigants to
have disputes resolved in the courts without the attendant need to
comply with the plethora of litigation mandates more relevant to actions
between attorney-represented parties. While this process might resemble
arbitration, it is noted that many pro se parties desire to have their
disputes resolved by a judge. There should be a process for a court to
adjudicate a dispute between pro se parties who, like Plaintiff, “don’t
know what the rules of evidence means” (July 18, 2024 at 10, lines
18-19).
[6] Parties may wait as long as two years for their case to go to trial due to discovery haggling and full trial calendars.
[7]
Plaintiff testified: “The only reason I kept going back to her was
because I really didn’t have anyone else. I have some difficult family
problems, and I have no one to take care of [them]” (July 5, 2024 tr at
14, lines 23-25).
[8]
Defendant’s exhibit G was a compendium of photographs. Each photo was
individually marked with a sequential number after the letter G.
[9] Contrary to Plaintiff’s protestations about the dogs living with cats (see July 5, 2024 tr at 23, lines 5-10 [“Mary Alice and Henry are terrified of cats. . . .”]; id.
at 25, lines 9-12 [“Please give them back to me. They’re with the cats.
Please give them back to me, your Honor. They’re with the cats.”]),
these photos confirm Defendant’s testimony that her cats and the dogs
get along together. The photos depict Chip, Defendant’s overweight cat,
on the bed with Mary Alice and Henry. The only problem the Court
observes with this situation is that Chip needs to go on a diet.
[10] Neighborhood folks are fans of Henry, according to Defendant (see
July 18, 2024 tr at 23, line 25, through 24, line 2; 24, line 25,
through 25, line 4). The Court doubts that Henry would be exposed to the
same type of human interaction in Plaintiff’s care.
[11] Since he is a minor, the child’s face has been blurred by the Court to preserve his privacy.
[12] Quite evidently, under Defendant’s aegis, Henry has flowered into a social butterfly.
[13]
Depicted clockwise on page 8 from the top left are Mary Alice with a
friend, Mugsy (see July 18, 2024 tr at 17, lines 1-2; defendant’s
exhibit G18); Henry with other dogs at the dog park, the black one being
Sting and the one with the red coat being Cocoa (see July 18, 2024 tr at 19, line 24, through 20, line 4; defendant’s exhibit G24); Mary Alice and Henry with Ruby (see
July 18, 2024 tr at 21, lines 21-23; defendant’s exhibit G30); Henry
standing on top of Bambi, “a German Shepherd/Rhodesian Ridgeback mix.
She’s a very large dog. . . . Henry is not afraid to jump on top of
large dogs, play with them. He has a great time,” while Sing, another
dog, looks on (July 18, 2024 tr at 17, lines 11-23; see defendant’s
exhibit G19); and Daisy, whom Henry has a crush on (see July 18,
2024 tr at 19, lines 7-8). “That’s them walking by the water. That’s
when I was training him to be . . . off leash, not go too far from me.
That was off training with Daisy. She’ll run and catch him if he goes
off,” testified Defendant (Id. at 19, lines 8-14; see defendant’s exhibit G23).
[14]
The Court takes the mental health of its employees, attorneys, and pro
se litigants seriously and does not seek to disclose more information
than necessary about anyone’s tribulations. However, it should be noted
that although Plaintiff displayed erratic and concerning behavior during
the hearings in addition to being heard casting threats in frenzied
voicemails, such was not considered in this decision as neither
implicated Plaintiff’s ability to care for the dogs.
[15] Plaintiff took umbrage at Mary Alice being given CBD, accusing Defendant of attempting to kill the dog (see
July 18, 2024 tr at 26, lines 4-9). The amount was miniscule and helped
Mary Alice keep calm, according to Defendant; she said it also helps
with joint pain (see id. at 24, lines 6-23). There is support for its usage in treating osteoarthritis in dogs (see CBD: What you need to know about its uses and efficacy,
Cornell Richard P. Riney Canine Health Center, available at
https://www.vet.cornell.edu/departments-centers-and-institutes/riney-canine-health-center/canine-health-information/cbd-what-you-need-know-about-its-uses-and-efficacy
[last accessed Oct. 2, 2024]). Therefore, this Court draws no adverse
inference from Defendant’s providing CBD biscuits to Mary Alice.
[16]
The Court is not an expert in veterinary care and will not opine on
the best treatment for Mary Alice. However, focusing on maintaining
comfort over aggressive treatments aligns with the needs of an elderly
pet.
[17]
Plaintiff herself testified, “I really didn’t have anyone else [to
care for the dogs]. I have some difficult family problems, and I have no
one to take care of —” (July 5, 2024 tr at 16, lines 23-24). The Court
is concerned that were the dogs awarded to Plaintiff and she no longer
used Defendant’s services during hospital stays, nobody else would be
available to care for the dogs and they would be taken to the pound and
perhaps euthanized — especially considering that Mary Alice presents
with obvious health issues such as her eye and orthopedic conditions.”