Dangerous Dog Complaint Involving Pitbull Terrier
| Date: |
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Tuesday, August 28, 2012 |
| Court: |
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Suffolk County Second District Court, Lindenhurst, New York |
| Plaintiff Attorney: |
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Anthony T. Ballato, Massapequa, NY |
| Facts: |
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INDEX NO. BAC 1589-12
DECISION AFTER HEARING
On August 20, 2012 the petitioner Robert Favuzzi filed a dangerous dog complaint (Agriculture and Markets Law §123(1)) alleging that a white and brown brindle pitbull terrier dog, allegedly owned by the respondents James Foster and Dianne Foster, attacked and caused physical injury to the petitioner on August 15, 2012. The court scheduled a hearing on the complaint for August 24, 2012 pursuant to Agriculture and Markets Law §123(2). On the hearing date the petitioner appeared with counsel, the named respondents did not appear. However, Ralph Foster, the father of the respondent James Foster, did appear at the hearing. Mr. Foster testified that his adult son James Foster is the owner of the white and brown brindle pitbull terrier dog. Mr. Foster asserted that the respondent Dianne Foster is not a co-owner of the dog, but acknowledged she is the grandmother of respondent James Foster. The complaint is therefore dismissed as against the respondent Dianne Foster. Ralph foster did confirm that the dog is a male, approximately six (6) years old, white and brown brindle pitbull terrier, names “Esco”. The pitbull terrier dog is not currently licensed by the Town of Babylon as required by Babylon Town Code §106-7(A). The following findings of the court are based upon the credible testimony and evidence presented at the hearing.
On August 15, 2012 the petitioner was visiting a friend who owned the premises located at 847 Beach Street, Lindenhurst, N.Y. The petitioner was at the rear of his parked motor vehicle when the pitbull terrier dog Esco broke free of restraint and escaped from the property of Ralph Foster located at 837 Beach Street. The pitbull terrier immediately ran towards and attacked the petitioner. The dog, unprovoked, jumped on the petitioner, knocking him to the ground, caused lacerations and multiple puncture wounds to the petitioner’s hand, forearm and thumb and fractures to his fingers. The petitioner’s witness, who was present at the time of the attack, substantiated the petitioner’s version of the events and further testified that the respondent James Foster took no action despite his presence at the time of the attack. The petitioner received medical attention for his injuries at Good Samaritan Hospital. No medical bills were introduced into evidence (see Agriculture and Markets Law §123(10)).
It is the opinion of the court that the petitioner has sustained his burden of proof by clear and convincing evidence demonstrating that the white and brown brindle pitbull terrier dog, named Esco, unjustifiedly attacked and caused physical injury to the petitioner (Agriculture and Markets Law §108(24)(a)(i)). Based upon the proof presented the court finds the white and brown brindle pitbull terrier dog, names Esco, to be a dangerous dog as such term is defined by Agriculture and Markets Law §108 (24)(a)(i) and §123(2). There was no testimony or proof that the white and brown brindle pitbull terrier dog has been previously declared a dangerous dog. Although there was testimony referencing two prior attacks by the pitbull terrier, there was no clear and convincing proof establishing that the dog had a known vicious propensity. In this regard a vicious propensity is evidenced by a previous unjustified attack on a person which caused serious physical injury or death (Agriculture and Markets Law §123(3)(b)). There was no proof to establish that the referenced prior attacks were unjustified and caused serious physical injury. Thus, the court finds no aggravating circumstances were established at the hearing.
Accordingly, pursuant to Agriculture and Markets Law Law §123(2) the court is mandated, and under the circumstances and as is necessary for the protection of the public, it is hereby:
ORDERED the that the white and brown brindle pitbull terrier dog, named Esco, at the respondent James Foster’s own expense, shall be neutered and a microchip shall be implanted by a licensed veterinary surgeon, within thirty (30) days from the date of mailing of this order by the court. Proof of the neutering and microchip implantation shall be filed by the respondent James Foster with the clerk of the court within the thirty (30) day period, and it is further;
ORDERED that at all times when the white and brown brindle pitbull terrier dog, names Esco, is not leashed, the respondent James Foster shall securely confine the dog either within the residential premises located at 837 Beach Street, Lindenhurst, N.Y. or outside in the rear yard, secured by an enclosed pen, constructed with a cement base, closed top, chain link fence on all sides with protection from the elements and a located gate which prevents the escape of the dog and protects the public from unauthorized contact with the dog. The enclosed pen shall be construed within sixty (60) days from the date of mailing of this order by the court and proof of such construction shall be filed by the respondent James Foster with the clerk of the court within the sixty (60) day period, and it is further;
ORDERED that at all times when the white and brown brindle pitbull terrier dog, names Esco, is on public property, then said dog shall be muzzled in a manner to prevent the dog from biting any person or animal and restrained on a leash by an adult of at least twenty-one years of age, and it is further;
ORDERED that the respondent James Foster shall maintain a liability insurance policy in the amount of no less than $100,000.00 for personal injury or death resulting from an attack by the white and brown brindle pitbull terrier dog, named Esco, which insurance policy is also required under Babylon Town Code §106-8.1. The respondent James Foster shall file proof of the liability insurance policy with the clerk of the court within thirty (30) days from the date of mailing of this order by the court, and it is further;
ORDERED that in the event the respondent James foster fails to timely comply as required by this order, then the court hereby directs that any dog control officer or peace officer shall either seize or destroy, if necessary, the white and brown brindle pitbull terrier dog, names Esco, on or off the premises at 837 Beach Street, Lindenhurst, N.Y. without further order of the court.
The clerk of the court shall transmit a copy of this order to the Commissioner of Agriculture and Markets, the Town Clerk for the Town of Babylon and the Town of Babylon Animal Shelter.
Dated: August 28, 2012
David A. Morris
J.D.C. |
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