Category Archives: Animals

This was originally posted on the SGR Blog.

Was Prosecution Barred by “Choice of Evils” Justification Defense?

Luis Jimenez was indicted on several counts for striking and severely injuring a small dog with a broomstick. Jimenez argued that the indictment should be dismissed because the prosecutor did not charge the grand jury on justification under Penal Law § 35.05(2), the “choice of evils” defense. Was that instruction warranted under the circumstances of the case?

Jimenez was charged with second-degree criminal mischief under Penal Law § 145.10, aggravated cruelty to animals under Agriculture and Markets Law § 353-a, and Overdriving, Torturing, or Injuring an Animal under Agriculture and Markets Law § 353. He testified before the grand jury that J., a former acquaintance, confronted him on a sidewalk and demanded that he repay a $20 debt. When Jimenez refused, J. left and then quickly returned with two metal rods, one in each hand, and threatened to kill him if he did not pay. Jimenez picked up a broom and broke it in half to defend himself as J.’s mother and uncle appeared on the scene. At his mother’s urging, J. turned and began walking away while the uncle began “tussling” with Jimenez, attempting to disarm him of the broom handle. As Jimenez was engaged with the uncle, Gigi—a small dog who was in the mother’s care—ran up to him and started biting at his pant leg. While still physically engaged with the uncle, Jimenez swung the broom handle and hit Gigi.

This was originally published on the SGR Blog.

Did “O’Malley” Already Have One or Two?

Amy C. Farrell alleged that she was injured by O’Malley, a vicious dog belonging to Peter M. Boushie. Amy’s husband, Kevin L. Ladue, alleged that he was deprived of his wife’s services, society, and companionship as a result of her injuries. After discovery, Farrell and Ladue moved for summary judgment.

New York’s courts have long recognized that the owner of a dog who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Liability in such cases is absolute. It is not dependent upon proof of negligence on the part of the dog’s owner.

This was originally published on the SGR Blog.

Court Patiently Parses Pet Peeves

On October 27, 2018, Julie Hickson was walking her dog, Juno, through a neighborhood in the town of Chatham, Columbia County, when she approached a residence located at 144 Hudson Avenue. The residence was owned by Fredda Brown, who leased a portion of it to her daughter, Leah Brown-Oliva.

Brown-Oliva had just exited the residence with her own dog, Josie, who was secured by a retractable leash. As Brown-Oliva was closing the door behind her, Josie began running toward Hickson and Juno, pulling the retractable leash out of Brown-Oliva’s grasp. Josie and Juno quickly became engaged in a fight, as Hickson and Brown-Oliva attempted to separate the dogs. During the struggle, the retractable leash that was still attached to Josie became wrapped around Hickson’s legs, and she fell to the ground. Eventually, the dogs were separated, and Hickson and Juno walked away. Hickson later went to an urgent care center, where she was found to have fractures in both of her hands.

This was originally posted on the SGR Blog.

Would Court Intervene/Assist Recovery on Emergency Basis?

Denise McCurrie suffered from anxiety and depression and lived on disability payments. On April 16, 2021, she experienced a medical emergency at her residence, requiring the services of an ambulance. Two Emergency Medical Technicians and two police officers arrived at her home. McCurrie was transferred by ambulance to a hospital, and the police officers took her dog Roscoe to the New York City Animal Care Center. She alleged that she made the police officers aware that Roscoe was an emotional support animal.

A few days later, McCurrie contacted the police and inquired as to Roscoe’s whereabouts. She was informed that Roscoe was given to ACC, which she contacted to inquire about her dog. She was informed by ACC that Roscoe was given to a shelter, but ACC would not provide the name of the shelter to her.  Subsequently, an individual applied for and adopted Roscoe from the shelter. McCurrie diligently sought to recover Roscoe, and brought suit upon obtaining counsel.

This was originally posted on the SGR Blog.

Court Determines Which Parent has Right to Sole Possession

Our Courts regularly and routinely resolve disputed claims to possession of personal property and controverted petitions for child custody. But, as a recent case illustrates, a Court may be required to adjudicate competing applications for possession/custody of a cherished canine companion.

Matthew Mundo sued Harry Weatherson to recover possession of a Chihuahua dog named Maximus. The complaint alleged that Maximus (valued at approximately $2,500) was being wrongfully detained by Weatherson because Mundo held a superior right to possession. Mundo asserted causes of action for replevin, declaratory judgment and intentional infliction of emotional distress.