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Dangerous Dog Hearing Under Agriculture And Markets Law §123

DANGEROUS DOG HEARING UNDER AGRICULTURE AND MARKETS LAW §123

Case #:   CV-8656-14/CE
Date:   Friday, October 31, 2014
Court:   Suffolk County First District Court, Ronkonkoma, New York
Facts:   This proceeding was commenced by petitioner Rosa Rodriguez, hereinafter “Ms. Rodriguez” or “Petitioner” pursuant to Section123 Agricultural and Markets Law (“AML”) for a determination that a certain Pit Bull owned by respondent Edwin Mejia is a “dangerous dog” within the meaning of the statute. A hearing was held on October 31, 2014. The Court reserved decision at the conclusion of the trial.

Petitioner’s first witness, Carlos Aucancela testified that on October 31, 2014 at approximately 5:30 P.M. that both he and his 11 year old brother Israel Aucancela, were at his friend respondent Edwin Mejia’s residence at 371 Hancock Street, Brentwood, N.Y. 11717, playing “X-Box” on the television. He further testified that at first, defendant’s one year old brown pit bull “Milo” (weighting 60-70 lbs) had scratched on the door to be let inside; and, when let in, sniffed the children who were playing there, except that he “jumped-up” on his brother Israel who was “poked” by the pit bull in his eye, at which point the pit bull was let outside again.

When the pit bull dog “Milo” was again let in, he was leashed to a horizontal pole in a closet in the same room where the children were playing. Carlos indicated that his brother had eaten no food, and had done nothing to make contact or provoke the pit bull “Milo”. While watching the video games Israel Aucancela decided to move his chair closer, at which time the respondent’s pit bull “Milo” attacked his brother Israel causing serious physical injury and multiple deep lacerations to the face and lips (Exhibit #1) requiring emergency surgery and plastic surgery.

Carlos Aucancela further testified that he placed a towel to try and control his brothers bleeding, Kelvin Mejia put the pit bull dog “Milo” outside, and the police were notified and responded to the scene (Exhibit #2).

Israel Aucancela testified that he had not seen “Milo” before, was eating no food, and when he went to move his chair when he stood up, “Milo” jumped up and bit him.

Respondents Edwin and Jose Mejia did not refute any of the petitioner’s evidence and testimony, Edwin Mejia testified that “Milo” was his dog and produced records printed October 25, 2014 to indicate when “Milo” received his last vaccinations.

Jose Mejia testified that he owned the premises located residence at 371 Hancock Street, Brentwood, New York; and, that he was not present at the time of the occurrence.

It is petitioner’s burden to prove by clear and convincing evidence that a dog is a “dangerous dog” within the meaning of the statue AMS §123. Section 108 (24)(a) of the Agriculture and Markets Law, defines a “dangerous dog” as any dog which (1) without justification attacks a person, companion animal as defined in subdivision five of section three hundred fifty of this chapter, farm animal as defined in subdivision four of section three hundred fifty of this chapter or domestic animal as defined in subdivision seven of this section and causes physical injury or death, or (ii) behaves in a manner which a reasonable person would believe poses a serious and unjustified imminent threat of serious physical injury or death to one or more persons, companion animals, farm animals, or domestic animals. Furthermore, a dog determined to be a dangerous dog may be humanely euthanized where certain aggravating circumstances are established, including where a dangerous dog attacks a person without justification causing “serious physical injury or death”, AML §123 (3)(a).

Based upon the credible testimony and evidence presented, the Court finds that the petitioner has sustained his burden of proof by clear and convincing evidence that the respondent’s brown Pit Bull dog “milo” is a dangerous dog. The Court further finds no credible evidence that the petitioner behaved in any way that warranted or justified the unprovoked attack of the Pit Bull.

Nonetheless, the Court is disturbed by the lack of adequate supervision of this Pit Bull and another attack of any kind will not be tolerated. Further, the Court finds that the physical injury sustained herein by the Petitioner does constitute a “serious physical injury” pursuant to Section 108(29) of the Agriculture and Markets Law, and in light of the circumstances established by this, unprovoked attack, that pursuant to Section 123 (3) (c) of the Agricultural and Markets Law, that the respondents’ Pit Bull “Milo” be humanely euthanized within 30 days from the date of service of a copy of this order and proof of euthanization be filed with the Court and the Town Clerk of Islip within 45 days of service of a copy of this order by the Court.

Finally, a copy of this Order will be forwarded by the Court to the Town Clerk of the Town of Islip, 655 Main St., Islip, NY 11751 for filing pursuant to General Municipal La §209-cc, See AML § 123 (14), and the Animal Shelter.

The foregoing constitutes the decision and order of this Court.

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