Did You Miss Dog’s Death Sentence Was Vacated by Appellate Court

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New York’s Appellate Division, Fourth Department, has saved a dog named Brady from being euthanized after a Town court judge determined that it was vicious.

The order affirmed an order of the Justice Court of the Town of Ogden (Michael Schiano, J.) entered November 30, 2018, which determined that respondent’s dog is a dangerous dog and directed that the dog be euthanized.

In Town of Ogden v Lavilla, the Town sought an order declaring that Brady was a “dangerous dog” and sought to have him put down, as a result of Brady’s attack on a person. After a hearing, the Town judge declared that he had only “two options” — euthanasia or permanent confinement. The Appellate Division disagreed.

“A dangerous dog,” held the Appellate Division, “is one that “without justification attacks a person . . . and causes physical injury” (citing Agriculture and Markets Law § 108 [24] [a] [i]), i.e., “impairment of physical condition or substantial pain” (§ 108 [28]). “The burden of proof is on the petitioner, who must prove by clear and convincing evidence that the dog meets the criteria of a dangerous dog. If, after a hearing, the court is satisfied that the petitioner has met that burden, the court must order spaying or neutering, microchipping, and at least one of several enumerated options as deemed appropriate under the circumstances and necessary for the protection of the public.”

Those options are the evaluation of the dog by a board certified veterinary behaviorist and completion of training as recommended by that expert, humane confinement, leashing, muzzling, and maintenance of an insurance policy.

But, held the Court, the court lacks the power to order euthanasia, unless the petitioner establishes an “aggravating circumstance” set forth in Agriculture and Markets Law § 123. Such circumstances include where the dog, without justification, attacked a person, causing serious physical injury, which includes “protracted disfigurement.” Emotional trauma is not a factor in determining whether the victim has been disfigured, according to the statute.

But even if an “aggravating circumstance” is proven, euthanasia is not required. “The Agriculture and Markets Law provides that the municipal court may order humane euthanasia or permanent confinement of the dog if one of the aggravating circumstances is established at the judicial hearing.” Thus, even if an aggravating circumstance is established, the municipal court may direct appropriate measures—such as spaying, neutering, microchipping, or training as recommended by a veterinary expert—if the court deems such measures necessary and adequate for the protection of the public.

The Appellate Division ruled that the Town court judge “repeatedly misstated the applicable law. Before the hearing commenced, the court stated that, if it determined Brady was a dangerous dog, the court had only two options— euthanasia or permanent confinement. After the hearing, before delivering its decision from the bench, the court stated that it ‘can’ order euthanasia ‘upon a finding the dog is dangerous.'” But “mere dangerousness,” held the Appellate Division, does not empower the court to order euthanasia or permanent confinement, which may be imposed only upon the establishment of an aggravating circumstance. Even where an aggravating circumstance is established, euthanasia and permanent confinement are not the court’s only options.

“As a result of its mistaken understanding of the applicable law, the court ordered euthanasia without determining whether petitioner had established the existence of an aggravating circumstance and without considering other available relief.”

The case was remanded back to the Town Court for a determination whether the Town established the existence of an aggravating circumstance and for the imposition of remedial measures as permitted by statute and “as deemed appropriate under the circumstances.”

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Craig Bushon

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