Dangerous Dog Hearings: Your Rights under Section 123 of the NY Agriculture and Markets Law
Have you been summoned to court for a Dangerous Dog hearing? It is important that you contact an attorney today to preserve your rights.
Your rights under Section 123 of the Agriculture and Markets Law:
You have the right to a hearing within 5 days of the seizure of your dog;
You have the right to be represented by an attorney at all stages of the proceeding;
You have the right to confront your accuser in court and to cross-examine witnesses;
You have the right to call witnesses on your behalf, including experts such as a person who specializes in animal behavior or a veterinarian; and
You have the right to contest these charges.
§123 of the Agriculture and Markets Law is a long, somewhat technical statute. It was slightly amended and renumbered effective 1/1/2011. The statute was formerly numbered Agriculture and Markets Law §121, as such, many municipal forms and citations still incorrectly refer to §121. This may be a jurisdictional issue should a ticket be issued under the wrong statute, however as of yet there have been no reported decisions on such an event.
It is important to remember that the Agriculture and Markets dangerous dog statute may be expanded upon by local law, and that local municipalities may have their own separate legal definitions of “dangerousness” or "viciousness" as well as their own laws governing animals. Typically these laws seek to control dogs which are described as ones who commit “harassment”, “intimidation”, “vicious acts” or a host of other descriptive terms. It is important to know what statute is being charged, state or local, and the penalties which can be imposed. The statute which gives local towns this authority is located at §122 of the Agriculture and Markets Law.
For the purposes of this website, the remainder of this article will discuss §123 of the Agriculture and Markets Law in its current form. The statute is best explained by being broken down into its subparts:
§123(1) of the statute provides for the various persons who may bring a dangerous dog complaint for the reasons listed in the subdivision (i.e. attack or threatened attack against a person, companion animal, farm animal or domestic animal as defined in the Agriculture and Markets Law). The complaint may be brought by a local Dog Control Officer or by a private citizen.
§123(2) is the longest portion of the statute and the most frequently utilized by a Local Dog Control Officer to bring charges against a person and to impound that person’s animal pending hearing. The highlights of the statute are as follows:
Imposes a duty upon a police officer or Dog Control Officer to bring a complaint if the officer witnesses an attack or threatened attack by a dog. Interestingly §123(2) does not define what an attack is, nor who or what the attack must have been against.
The complaint shall be made to a local judge.
The judge should immediately determine if there is probable cause to find the dog to be dangerous, if such a finding is made, then the judge can issue an order directing the Dog Control Officer or Police Officer to seize the dog, pending a hearing.
The hearing must be held within 5 days of the seizure and the owner or harborer of the dog must be given at least 2 days notice of the hearing.
At the hearing the burden is on the petitioner to prove that the dog is dangerous by clear and convincing evidence.
If the judge determines that the dog is dangerous then the judge must order the dog to be spayed or neutered and that the dog be microchipped (the statute does not say what microchipping is, we will assume that it is microchipping for identification).
The judge also has the discretion to order that the dog be evaluated by a animal behaviorist, that the dog be securely and humanely confined at all times, that the dog be on a leash under the control of a person at least twenty-one years of age at all times, that the dog be muzzled in public and/ or that the owner maintain a liability insurance policy not to exceed $100,000 on the dog.
§123(3) expands the penalties that the judge can impose is certain “aggravating factors” are shown at the hearing. These factors include (a) the dog, without justification, attacked a person causing serious physical injury or death; or (b) the dog has a known vicious propensity as evidenced by a previous unjustified attack on a person, which caused serious physical injury or death; or (c) the dog, without justification, caused serious physical injury or death to a companion animal, farm animal or domestic animal, and has, in the past two years, caused unjustified physical injury or death to a companion or farm animal as evidenced by a “dangerous dog” finding pursuant to the provisions of this section.
§123 also provides for an automatic stay of the euthanasia if a notice of appeal is filed. The appeal period is thirty days from the date of the order.
§123(4) provides a variety of affirmative defenses to the dogs actions which can be raised by the respondent. The law provides that a dog shall not be declared dangerous if the court determines the conduct of the dog (a) was justified because the threat, injury or damage was sustained by a person who at the time was committing a crime or offense upon the owner or custodian of the dog or upon the property of the owner or custodian of the dog; (b) was justified because the injured, threatened or killed person was tormenting, abusing, assaulting or physically threatening the dog or its offspring, or has in the past tormented, abused, assaulted or physically threatened the dog or its offspring; (c) was justified because the dog was responding to pain or injury, or was protecting itself, its owner, custodian, or a member of its household, its kennels or its offspring; or was justified because the injured, threatened or killed companion animal, farm animal or domestic animal was attacking or threatening to attack the dog or its offspring. Testimony of a certified applied behaviorist, a board certified veterinary behaviorist, or another recognized expert shall be relevant to the court's determination as to whether the dog's behavior was justified pursuant to the provisions of this subdivision.
§123(5) Governs appeals from a dangerous dog determination.
§123(6) and (7) imposes a special civil liability upon the owner of a dog if the owner of a dog who, through any act or omission, negligently permits his or her dog to bite a person, service dog, guide dog or hearing dog causing physical injury. Upon a determination of this occurrence, the owner would be subject to a civil penalty not to exceed four hundred dollars in addition to any other applicable penalties.
(7) enhances the penalty if the owner of a dog who, through any act or omission, negligently permits his or her dog to bite a person causing “serious physical injury” as that term is defined in the statute, he or she would be subject to a civil penalty not to exceed one thousand five hundred dollars in addition to any other applicable penalties. The law also provides that the civil penalty may be reduced by any amount which is paid as restitution by the owner of the dog to the person or persons suffering serious physical injury as compensation for unreimbursed medical expenses, lost earnings and other damages resulting from such injury.
§123(8) allows the imposition of criminal penalties if the owner of a dog who, through any act or omission, negligently permits his or her dog, which had previously been determined to be dangerous pursuant to this article, to bite a person causing serious physical injury, shall be guilty of a misdemeanor punishable by a fine of not more than three thousand dollars, or by a period of imprisonment not to exceed ninety days, or by both such fine and imprisonment in addition to any other applicable penalties. Any such fine may be reduced by any amount which is paid as restitution by the owner of the dog to the person or persons suffering serious physical injury as compensation for unreimbursed medical expenses, lost earnings and other damages resulting from such injury.
§123(9) also provides for enhanced criminal penalties if any dog, which had previously been determined by a judge or justice to be a dangerous dog, as defined in section one hundred eight of this article, shall without justification kill or cause the death of any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, regardless of whether such dog escapes without fault of the owner, the owner shall be guilty of a class A misdemeanor in addition to any other penalties.
§123(10)-(13) imposes strict liability for medical expenses upon anyone who owns or harbors a dog found to be dangerous who harms a person. The sections also provide for defenses. It is important to note that a court decision has found that a local court can order judgment for medical expenses in an unlimited amount arising from a dangerous dog attack, Christensen v. Lundsten, 863 NYS2d 886 (2008). Also, recent court decisions have raised the possibility that one does not have to have a previous determination that a dog is dangerous for strict liability for medical expenses to attach, Budway v. McKee, 27 Misc. 3d 316 (2010).
§123(14) sets forth a reporting requirement which requires persons owning, possessing or harboring dangerous dogs shall report the presence of such dangerous dogs pursuant to section two hundred nine-cc of the general municipal law. Practitioners should also be aware that many municipalities have enacted similar requirements.
Disclaimer: This article is intended to be educational and is not intended to be legal advice, which can only be given after an attorney-client relationship is established.
