New York Attorney

Thứ Năm, 4 tháng 11, 2010

Missouri passes Puppy Mill Legislation

A ballot proposition advanced by the Missourians for the Protection of Dogs group was voted in by citizens on November 2, 2010 and will require new rules for dog-breeders in Missouri and will amend Missouri law to require large-scale dog breeding operations to provide each dog under their care with sufficient food, clean water, housing and space; necessary veterinary care; regular exercise and adequate rest between breeding cycles. The amendment further prohibits any breeder from having more than 50 breeding dogs for the purpose of selling their puppies as pets. The amendment also creates a misdemeanor crime of “puppy mill cruelty” for any violations.

Thứ Tư, 3 tháng 11, 2010

I’m concerned about providing for my pet’s care after my death. Is it legal to provide for pets in a will or trust?

Answer. Yes, New York State recognizes the validity of a trust for pets. A trust of this nature can be established where a chosen trustee oversees the expenditure of money and provides for the care of a pet. A pet trust allows for your specific wishes with regard to your pet’s care to be met.

Some of the key issues to consider in establishing a pet trust are:

Choice of a trustee;
Clearly defining the obligations of the trustee;
Protection of trust assets; and
Providing for a charitable contribution of the remaining funds upon the pet’s death.

A complaint has been filed with a court seeking to declare my pet dog as being dangerous. What does this mean? What are my rights?

Answer. In New York, a judge, after a hearing can declare a dog to be dangerous. This determination is made if the judge determines the dog to have bitten a person, another animal or to have vicious tendencies.

If found dangerous, the judge may order the owner to: euthanize the dog at the owner’s expense; purchase expensive liability insurance; construct a fence to contain the dog; or muzzle the dog.

Just as in a traditional trial, you have the right to be represented by an attorney at the hearing, the right to call witnesses and to present expert proof that your family pet is not a dangerous dog.

If a dangerous dog complaint is filed against you, an attorney familiar with the local and state dangerous dog statutes should be consulted to ensure you and your family pet are protected.

Animal Law Update Summer 2010

Animal Law Update

By: Jonathan G. Schopf, Esq.

Pattison, Sampson, Ginsberg & Griffin, PC

Legislative Update:

Animal Fighting: Animal fighting is already a felony in New York[1] however a person’s attendance at such an “event” is only punishable by a violation. The New York State Legislature is considering a bill (A. 6287-B) which would make attending an animal fight a misdemeanor offense[2]. The Senate has passed its version of the bill, however the Assembly has not.

Oreo’s Law: After revision, on June 29^th Oreo’s Law passed the Senate and was then returned to the assembly. Oreo’s law (S. 5794 A) “allows the release of any animal to another pound, shelter, society for the

prevention of cruelty to animals, duly incorporated humane society, or duly

incorporated animal protective association for the sole purpose of placing such

animal in an adoptive home, when such action is reasonably believed to improve

the opportunity for adoption.”

               Oreo’s Law was first proposed after a decision was made by the New York City ASPCA to euthanize an abused dog (Oreo) when another animal not-for-profit organization was willing to save the dog’s life. [3]

Pet Trusts: Effective May 5, 2010, the New York Estates Powers and Trust Law ₴7-8.1, which provides for honorary trusts for pets, was changed by renaming the section to Trusts for Pets, thus doing away with the “honorary” designation and by eliminating the twenty-one year duration of such a trust.

Animal Law cases of interest:

Pet Trusts: Speaking of pet trusts, Miami heiress Gail Posner passed away in May and left the bulk of her estate, including a mansion and a $3 Million trust fund to her beloved Chihuahua, Conchita. Posner’s only son, Ben Carr, who was only bequeathed a paltry $1 Million, has filed suit against his mother’s former staff members accusing them of manipulation of his mother’s estate plan.

Will Contests: In June, the Dutchess County Surrogates Court, Pagones, J., admitted a contested will into probate that contained bequests to animal welfare organizations. Such will was the third of a series of wills executed by the decedent in a short period of time prior to her passing. In an extremely well written decision[4] discussing testamentary capacity and the standards of proof for a finding of undue influence, Judge Pagones found that by a comparison of the three wills that the decedent indicated a clear and consistent intent to leave the bulk of her estate to organizations involving animals. This and other convincing evidence led the Judge to admit the will to probate.

Animal Cruelty: The United States Supreme Court issued its decision in the case of United States v. Stevens[5], which was a constitutional challenge to a 1999 law that criminalized the sale of depictions of animal cruelty. By a 8-1 vote, the Court held that the law violates the 1^st Amendment and in unenforceable.

This unfortunate decision by the Court overturns the conviction of Robert Stevens, who was sentenced to prison for making and selling videos of dog fights. The original intent of the law was to ban so called “crush” videos, which depict puppies, kittens, baby chicks and other small animals being crushed to death, typically beneath the spiked heel of a woman’s shoe.

It is believed that a narrower law tailored to depictions of extreme animal cruelty could still be constitutional and a proposal to that effect has been introduced in the House of Representatives.

Animal Cruelty Conviction : In May, horse breeder and owner, Ernie Paragallo was sentenced to the maximum term of imprisonment, two years, for the starving of thoroughbreds at his farm in Greene County. County Judge George Pulver also ordered Paragallo to pay a fine of $33,000. Additionally a hearing will be held to determine the amount Paragallo will be ordered to pay the Columbia-Greene County Humane Society and the Equine Rescue Resource, who financed the recovery and treatment of the 177 emaciated horses found at Paragallo’s farm.

Driven to Distraction: In more humorous news, last summer, Patricia Edwards was pulled over in South Dakota for driving under the influence ... of cats. She was living and driving in her car with her 15 cats, who she says were well cared for. The cats were seized and impounded, with the daily cost of their care running up a tab. Edwards tried to get them back before they were adopted out to other homes, but the court denied her request based on the grounds that she had no way to pay the shelter back for their care. The case was appealed all the way up to the state supreme court and a decision was recently handed down.

In the end, in a hotly contested 3-2 decision, the majority of the court didn’t directly focus on possible hoarding issues, or the legal issues surrounding seizure of animals. The appellate court focused on the dangers of driving while distracted by cats.[6]

In the majority opinion, the court disagreed with Edward’s argument that her cats had been seized without cause. The court stated that the seizure was justified as 15 cats wandering around the car is "beyond the unsanitary aspects of the situation [and] it presented a significant safety risk to the public."

The court went on to explain why Edwards was such a threat to the public welfare and to her cats. "Because of the cats in the back window, Edwards failed to see the patrol car behind her and nearly backed into it. What if, instead of the officer's patrol car, a less visible child on a skateboard or bicycle had passed by at that same moment?" The court further found that exigent circumstances existed to seize the cats, as the law “must be read to refer to emergency situations where impoundment without a warrant or court order is necessary to protect the well-being of the animal.”

[1] ₴351 NYS Agriculture and Markets Law

[2] Similar laws in NJ and CT make this a felony.

[3] Last June Oreo was thrown from the rooftop of a six-story building in Brooklyn and sustained near death injuries. She was dubbed the “miracle dog” by the ASPCA who brought her back to health and prosecuted her abuser. The ASPCA made the publicly unpopular decision to end her life when she exhibited understandable signs of aggression towards humans.

[4] In the matter of the Estate of Boyd, 2010 WL 2243349.

[5] Slip Op. No. 08–769

[6] State of South Dakota v. Fifteen Impounded Cats, 2010 SD 50

uage: > S m �� Pl� t-language:EN-US;mso-bidi-language:AR-SA'>[3] Rossi v. Mohawk and Hudson River Humane Society, 2009 WL 960204 (NDNY)

[4] Humane Society of

United States

v. Brennan, 881 NYS2d 533 (3^rd Dept. 2009)

[5] People v. Jornov, 881 NYS2d 776 (4^th Dept. 2009) and see NYS Agriculture and Markets Law §121

[6] Save the Pine Bush, Inc. v. Common Council of City of Albany, 865 NYS2d 365 (3^rd Dept. 2008)

[7] Pet owners in 19 states and Ontario filed dozens of lawsuits against Menu Foods in the weeks that followed the March 16, 2007, nationwide recall of approximately 60 million containers of chemically tainted dog and cat food. The consolidated class action settled in 2008 for an unspecified amount. The estimated costs to Menu Foods in recalling the tainted food alone was approximately $55 Million.

[8] Mr. Douris is a disabled veteran confined to a wheelchair. His service dog moves, pushes and pulls his wheelchair as Mr. Douris is unable to do so due to his disability.

[9] Hoffa v. Bimes, 954 A.2d 1241 (Pa.Super., 2008).

[10] Id.

[11] Rule v. Fort Dodge Animal Hosp., Inc., 604 F.Supp.2d 288 (D.Mass., 2009).

Animal Law Update November 2010

Animal Law Update

By: Jonathan G. Schopf, Esq.

Pattison, Sampson, Ginsberg & Griffin, PC

www.schopf@psgglaw.com

Suffolk County Creates Nation’s First Animal Abuser Registry

On October 12^th ground breaking legislation was unanimously passed in Suffolk County to create the first animal abuser registry in the nation. The legislation requires adults who live in Suffolk County and who have been convicted of an animal abuse crime to register for a period of five years following such conviction.

An accompanying resolution scheduled to be voted on next month would require that animal shelters and businesses who sell animals to check the registry prior to adopting out or selling an animal and would prohibit such businesses from adopting or selling animals to registered abusers.

County legislators cited the strong correlation between animal abuse and domestic violence as one reason among many to pass the legislation.

Dog Licensing

The second most important animal law news this fall is the decision by the New York State Department of Agriculture and Markets to discontinue that agency’s involvement in the issuance and regulation of dog licenses[1]. The department has cited cost savings as the impetus for this decision.

Beginning in 2011 the department will no longer issue or regulate the licensure of dogs in the state of New York. The department will also cease to maintain its statewide database of licensed dogs which contains the rabies immunization status for such dogs. Instead each individual municipality will be responsible for its own database, procuring its own dog tags and setting licensing fees. This has raised a number of questions among dog owners and municipalities.

The bad news for dog owners is that now there will be no state regulations as to the cost of a dog license, although this is no doubt good news for the towns, cities and villages of New York State who will now be able to keep all the license fees collected instead of sharing the fees with the county and state as is the current procedure. The bad news for local municipalities is that municipal dog control officers will no longer have the benefit of a statewide rabies database.

Municipalities and their legal counsel should begin to consider the ramifications of this pending change to be prepared for questions from residents, a shift in revenue and possibly increased legal compliance issues.

US v. Stevens con’t

In the last Animal Law Update the US Supreme Court’s decision regarding so called “crush videos” in United States v. Stevens[2] was discussed. As predicted, on July 21, 2010, in response to the Supreme Court’s ruling, Representative Gallegly (R-CA) introduced H.R. 5566 which the U.S. House of Representatives voted 416-3 to approve. The new bill amends the Crush Act to give it a much narrower focus, but would still prohibit distributing, selling or offering to distribute or sell any depictions of animals being crushed, drowned, suffocated, impaled, or burned where such actions are illegal.

Breed Specific Legislation

On July 20, 2010 after some highly publicized local outrage the Village of Rockville Centre on Long Island repealed a local law which went into effect on June 8, 2010 and effectively banned ownership of Rottweilers and American Pit Bull Terriers. The public outcry was justified as New York State is one of thirteen states that prohibit breed specific legislation. The prohibition is contained at §107(5) of the Agriculture and Markets Law and provides that no municipal dog control program shall regulate dogs in a manner that is specific to breed.

Amendment of §§ 118 and 374 of the Ag and Markets Law

Substantive changes will soon be in effect which will give shelters, municipalities and humane societies the ability to release custody and control of all types of animals to other shelters and protective societies for the purpose of enhanced opportunities to adopt out animals. The prior laws restricted the transfer of dogs and cats by a pound or shelter to anyone other than an owner or a direct adoption to a new owner.

Other significant changes include removing the terms “dog” and “cat” and replacing it with the more encompassing term of “animal.”

[1] The Ag and Markets department currently oversees the licenses of approximately 600,000 dogs outside of the City of New York.

[2] Slip Op. No. 08–769

Animal Law Update May 2010

Animal Law Update

By: Jonathan G. Schopf, Esq.

Pattison, Sampson, Ginsberg & Griffin, PC

What is animal law, and more importantly, what is an animal lawyer? For the most part the practice of an animal lawyer is no different than that of the average general practitioner -- with a twist. Animal law is expansive and covers almost every aspect of the law. It is a rapidly emerging practice area, which confronts our conventional thinking and presents ethical and morally complex issues that must be carefully considered by clients, lawyers and the judiciary.

Although animal law has been practiced in one form or another for decades it was legitimized in the eyes of practitioners in 2002 when the New York State Bar Association formed the Special Committee on Animals and the Law^{^[1]} and further legitimized in 2004 when the first Tort Trial and Insurance Practice Section Animal Law Committee was established by the American Bar Association. One of the most exciting things about the practice of animal law is that it is fresh, new and allows a practitioner to be creative within the existing legal structure to advocate for animals and their owners^{^[2]}.

Over the last year, in New York State important cases affecting animals and the role animals play in our society were decided in practice areas ranging from bankruptcy^{^[3]}, food safety^{^[4]}, appellate interpretation of the NYS Dangerous Dog Law^{^[5]}, and environmental conservation^{^[6]}. In recent years nationally recognized legal issues implicating animals brought new levels of public scrutiny with the conviction of football star Michael Vick surrounding his operation of an underground dog fighting ring and the Menu Foods, Inc. class action law suit, which sought damages for chemically tainted pet food^{^[7]}. The public’s interest in celebrity overlapped with the legal issues involved in the administration of the estate of Leona Helmsley who, upon her passing in 2007, bequeathed a $12 million trust to her beloved Maltese,
“Trouble”. Upon reflection it should come as no surprise to a practitioner that all law encompasses animal law. Attorneys who do not consider themselves animal lawyers will, undoubtedly, face a legal issue involving animals over the course of their careers

A brief review of judicial decisions across the nation reveals the grayness of this legal area as judges struggle with following centuries old decisional case law while making concessions for a modern view of animals and their owners. The purpose of this quarterly column will be to report these decisions which effect animals and their owners as well as to explore national trends in the way the legal status of animals are perceived.

For example, on February 5, 2010 the Commonwealth Court of Pennsylvania handed down a decision in the matter of Douris v. Department of Public Welfare, No. 1377 C.D. 2009 (Pa Cmwlth, Feb. 5, 2010). Mr. Douris brought his action pro se in an attempt to overturn an administrative decision of the department that denied him additional food stamp benefits to provide sustenance for his service dog. Mr. Douris also argued that the department discriminated against him in violation of the Americans with Disabilities Act due to the department’s determination, after a hearing, that Mr. Douris’ service dog was not a human being or a member of Mr. Douris’ household within the meaning of the USDA’s food stamp regulations and applicable federal law^{^[8]}.

The Court, while strongly sympathizing with Mr. Douris’ plight in an eleven page decision which discusses the interplay between federal benefit regulations and the legal classification of service animals, denied his petition and held that the service dog was not a dependent member of his family. The court also held that petitioner’s argument regarding discrimination in violation of the Americans with Disabilities Act was without merit. An appeal is pending.

As in the Douris case cited above, decisions in animal law cases time and time again implicitly acknowledge the inherent conflicts created by a modern view of animals relationship and value to society and the conflicting centuries old case law which in most instances denies animals or their owners’ recovery in most actions involving torts^{^[9]}, breaches of contracts^{^[10]}and products liability^{^[11]}. Such decisions by their very nature tend to bring an element of unpredictability and procedural danger into this practice area. The realities of the practice of animal law require that an attorney carefully consider the legal and procedural elements of a potential animal law case and at the same time “think outside the box” about how to best accomplish a client’s goals.

-About the author-

Jonathan Schopf is an associate attorney with the Troy, New York firm of Pattison, Sampson, Ginsberg & Griffin, PC. His primary practice involves advising educational institutions and technology companies in developing successful strategies for risk management and proactive liability protection. He represents such clients in both state and federal courts in litigation involving insurance coverage, commercial transactions, technology-transfer, and labor and employment disputes. He also has a general practice and frequently represents individual and municipal clients in transactional matters as-well-as tax certiorari litigation, employment discrimination, business law, Article 81 guardianships and constitutional law.

Mr. Schopf maintains an ever expanding niche practice in the area of animal law and animal rights litigation which focuses on advocating for clients and the welfare of their companion animals in a variety of legal contexts. He is an attorney-member of the Animal Legal Defense Fund and the author of “Animal Law Update”, which is published quarterly in the Albany County Bar Association’s newsletter.

[1] Now referred to as The Committee on Animals in the Law after being granted Standing Committee status by NYSBA in November of 2008.

[2] Although animals are still legally considered property in NY, some who advocate for animal rights refer to owners as guardians or custodians.

[3] Rossi v. Mohawk and Hudson River Humane Society, 2009 WL 960204 (NDNY)

[4] Humane Society of

United States

v. Brennan, 881 NYS2d 533 (3^rd Dept. 2009)

[5] People v. Jornov, 881 NYS2d 776 (4^th Dept. 2009) and see NYS Agriculture and Markets Law §121

[6] Save the Pine Bush, Inc. v. Common Council of City of Albany, 865 NYS2d 365 (3^rd Dept. 2008)

[8] Mr. Douris is a disabled veteran confined to a wheelchair. His service dog moves, pushes and pulls his wheelchair as Mr. Douris is unable to do so due to his disability.

[9] Hoffa v. Bimes, 954 A.2d 1241 (Pa.Super., 2008).

[10] Id.

[11] Rule v. Fort Dodge Animal Hosp., Inc., 604 F.Supp.2d 288 (D.Mass., 2009).