Bill Text: NY S07454 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to liability for owners of dogs for injuries caused by such dog; provides liability for any injuries caused by a dog without any prior determination of propensity or dangerousness.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2016-05-03 - REFERRED TO AGRICULTURE [S07454 Detail]
Download: New_York-2015-S07454-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7454 IN SENATE May 3, 2016 ___________ Introduced by Sen. ORTT -- read twice and ordered printed, and when printed to be committed to the Committee on Agriculture AN ACT to amend the agriculture and markets law, in relation to dog attacks The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 123 of the agriculture and markets law, as amended 2 by chapter 392 of the laws of 2004, such section as renumbered and 3 subdivisions 1 and 2 as amended by section 18 of part T of chapter 59 of 4 the laws of 2010, and subdivisions 7 and 8 as amended by chapter 526 of 5 the laws of 2005, is amended to read as follows: 6 § 123. Dangerous dogs. 1. Any person who witnesses an attack or 7 threatened attack, or in the case of a minor, an adult acting on behalf 8 of such minor, may make a complaint of an attack or threatened attack 9 upon a person, companion animal as defined in section three hundred 10 fifty of this chapter, farm animal as defined in such section three 11 hundred fifty, or a domestic animal as defined in subdivision seven of 12 section one hundred eight of this article to a dog control officer or 13 police officer of the appropriate municipality. Such officer shall imme- 14 diately inform the complainant of his or her right to commence a 15 proceeding as provided in subdivision two of this section and, if there 16 is reason to believe the dog [is a dangerous dog] caused injury to a 17 person, companion animal, farm animal or domestic animal, the officer 18 shall forthwith commence such proceeding himself or herself. 19 2. Any person who witnesses an attack or threatened attack, or in the 20 case of a minor, an adult acting on behalf of such minor, may, and any 21 dog control officer or police officer as provided in subdivision one of 22 this section shall, make a complaint under oath or affirmation to any 23 municipal judge or justice of such attack or threatened attack. There- 24 upon, the judge or justice shall immediately determine if there is prob- 25 able cause to believe the dog [is a dangerous dog] caused injury to a 26 person, companion animal, farm animal or domestic animal, and if so, 27 shall issue an order to any dog control officer, peace officer, acting 28 pursuant to his or her special duties, or police officer directing such EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13690-01-6S. 7454 2 1 officer to immediately seize such dog and hold the same pending judicial 2 determination as provided in this section. Whether or not the judge or 3 justice finds there is probable cause for such seizure, he or she shall, 4 within five days and upon written notice of not less than two days to 5 the owner of the dog, hold a hearing on the complaint. The petitioner 6 shall have the burden at such hearing to prove the dog [is a "dangerous7dog"] caused injury to a person, companion animal, farm animal or domes- 8 tic animal by clear and convincing evidence. If satisfied that the dog 9 [is a dangerous dog] caused injury to a person, companion animal, farm 10 animal or domestic animal, the judge or justice shall then order neuter- 11 ing or spaying of the dog, microchipping of the dog and one or more of 12 the following as deemed appropriate under the circumstances and as 13 deemed necessary for the protection of the public: 14 (a) evaluation of the dog by a certified applied behaviorist, a board 15 certified veterinary behaviorist, or another recognized expert in the 16 field and completion of training or other treatment as deemed appropri- 17 ate by such expert. The owner of the dog shall be responsible for all 18 costs associated with evaluations and training ordered under this 19 section; 20 (b) secure, humane confinement of the dog for a period of time and in 21 a manner deemed appropriate by the court but in all instances in a 22 manner designed to: (1) prevent escape of the dog, (2) protect the 23 public from unauthorized contact with the dog, and (3) to protect the 24 dog from the elements pursuant to section three hundred fifty-three-b of 25 this chapter. Such confinement shall not include lengthy periods of 26 tying or chaining; 27 (c) restraint of the dog on a leash by an adult of at least twenty-one 28 years of age whenever the dog is on public premises; 29 (d) muzzling the dog whenever it is on public premises in a manner 30 that will prevent it from biting any person or animal, but that shall 31 not injure the dog or interfere with its vision or respiration; or 32 (e) maintenance of a liability insurance policy in an amount deter- 33 mined by the court, but in no event in excess of one hundred thousand 34 dollars for personal injury or death resulting from an attack by such 35 dangerous dog. 36 3. Upon a finding that a dog [is dangerous] caused injury to a person, 37 companion animal, farm animal or domestic animal, the judge or justice 38 may order humane euthanasia or permanent confinement of the dog if one 39 of the following aggravating circumstances is established at the judi- 40 cial hearing held pursuant to subdivision two of this section: 41 (a) the dog, without justification, attacked a person causing serious 42 physical injury or death; or 43 (b) the dog has a known vicious propensity as evidenced by a previous 44 unjustified attack on a person, which caused serious physical injury or 45 death; or 46 (c) the dog, without justification, caused serious physical injury or 47 death to a companion animal, farm animal or domestic animal, and has, in 48 the past two years, caused unjustified physical injury or death to a 49 companion or farm animal as evidenced by a ["dangerous dog"] finding 50 pursuant to the provisions of this section. 51 An order of humane euthanasia shall not be carried out until expiration 52 of the thirty day period provided for in subdivision five of this 53 section for filing a notice of appeal, unless the owner of the dog has 54 indicated to the judge in writing, his or her intention to waive his or 55 her right to appeal. Upon filing of a notice of appeal, the order shall 56 be automatically stayed pending the outcome of the appeal.S. 7454 3 1 4. A dog shall not be [declared dangerous] subject to the provisions 2 of subdivision three of this section if the court determines the conduct 3 of the dog (a) was justified because the threat, injury or damage was 4 sustained by a person who at the time was committing a crime or offense 5 of violence upon the owner or custodian of the dog or upon the property 6 of the owner or custodian of the dog; (b) was justified because the 7 injured, threatened or killed person was tormenting, abusing, assaulting 8 or physically threatening the dog or its offspring, or has in the past 9 tormented, abused, assaulted or physically threatened the dog or its 10 offspring; (c) was justified because the dog was responding to pain or 11 injury, or was protecting itself, its owner, custodian, or a member of 12 its household, its kennels or its offspring; or was justified because 13 the injured, threatened or killed companion animal, farm animal or 14 domestic animal was attacking or threatening to attack the dog or its 15 offspring. Testimony of a certified applied behaviorist, a board certi- 16 fied veterinary behaviorist, or another recognized expert shall be rele- 17 vant to the court's determination as to whether the dog's behavior was 18 justified pursuant to the provisions of this subdivision. 19 5. (a) The owner of a dog [found to be a "dangerous dog" pursuant to20this section] may appeal [such] a determination under this section, 21 and/or the court's order concerning disposition of the dog to the court 22 having jurisdiction to hear civil appeals in the county where the 23 ["dangerous dog"] finding was made. The owner shall commence such appeal 24 by filing a notice of appeal with the appropriate court within thirty 25 days of the final order pursuant to this section. Court rules governing 26 civil appeals in the appropriate jurisdiction shall govern the appeal of 27 a determination under this section. 28 (b) Upon filing a notice of appeal from an order of humane euthanasia 29 pursuant to this section, such order shall be automatically stayed pend- 30 ing final determination of any appeal. In all other circumstances, the 31 owner of the dog may make application to the court to issue a stay of 32 disposition pending determination of the appeal. 33 6. The owner of a dog who, through any act or omission, negligently 34 permits his or her dog to bite a person, service dog, guide dog or hear- 35 ing dog causing physical injury shall be subject to a civil penalty not 36 to exceed four hundred dollars in addition to any other applicable 37 penalties. 38 7. The owner of a dog who, through any act or omission, negligently 39 permits his or her dog to bite a person causing serious physical injury 40 shall be subject to a civil penalty not to exceed one thousand five 41 hundred dollars in addition to any other applicable penalties. Any such 42 penalty may be reduced by any amount which is paid as restitution by the 43 owner of the dog to the person or persons suffering serious physical 44 injury as compensation for unreimbursed medical expenses, lost earnings 45 and other damages resulting from such injury. 46 7-a. The owner of any dog shall be liable for all injuries and damages 47 suffered by any person who is bitten by the dog while in a public place 48 or lawfully in a private place, including the property of the owner of 49 the dog, regardless of the former viciousness of the dog or that owner's 50 knowledge of such viciousness. A person is lawfully upon the private 51 property of such owner within the meaning of this subdivision when he or 52 she is on such property in the performance of any duty imposed upon him 53 or her by the laws of this state or by the laws or postal regulations of 54 the United States, or when he or she is on such property upon the invi- 55 tation, express or implied, of the owner of the dog, the owner or lessee 56 of the property, or any person authorized to grant such permission. ItS. 7454 4 1 shall not be a defense to liability under this section that the owner: 2 (a) exercised the utmost care to prevent the dog from biting, or (b) did 3 not have custody or control of the dog at the time of the biting. It 4 shall not be a defense to liability under this section that the dog did 5 not intend to injure the victim, or that the dog's action was playful, 6 mischievous, or otherwise not vicious. 7 7-b. Every person who owns, harbors, keeps, or is in temporary 8 possession of a dog shall be required to provide in writing the official 9 registration number of the dog and that person's name and address, and 10 the name and address of the owner of the dog if that person is not the 11 owner, to anyone whom the dog has injured or damaged, or the parents if 12 the victim was a minor, at the time of the incident or as soon as possi- 13 ble thereafter, whether or not requested to provide such information, 14 and to anyone who requests such information after witnessing a violation 15 of any law involving that dog. 16 7-c. The owner of any dog shall provide a copy of its most recent 17 proof of rabies vaccination to anyone whom the dog has injured, or the 18 parents of an injured minor, at the time of the incident or as soon as 19 possible thereafter, whether or not requested to provide such informa- 20 tion. If the dog never received such vaccination, a written statement to 21 that effect shall be provided to the person who was injured, or the 22 parents of an injured minor. 23 8. The owner of a dog who, through any act or omission, negligently 24 permits his or her dog, which had previously been determined to [be25dangerous pursuant to this article] have caused physical injury, to bite 26 a person causing serious physical injury, shall be guilty of a misdemea- 27 nor punishable by a fine of not more than three thousand dollars, or by 28 a period of imprisonment not to exceed ninety days, or by both such fine 29 and imprisonment in addition to any other applicable penalties. Any such 30 fine may be reduced by any amount which is paid as restitution by the 31 owner of the dog to the person or persons suffering serious physical 32 injury as compensation for unreimbursed medical expenses, lost earnings 33 and other damages resulting from such injury. 34 9. If any dog, which had previously been determined by a judge or 35 justice to [be a dangerous dog, as defined in section one hundred eight36of this article] have caused injury as set forth in subdivision three of 37 this section, shall without justification kill or cause the death of any 38 person who is peaceably conducting himself or herself in any place where 39 he or she may lawfully be, regardless of whether such dog escapes with- 40 out fault of the owner, the owner shall be guilty of a class A misdemea- 41 nor in addition to any other penalties. Penalties and liability under 42 this section shall not apply where the dog was in the custody of an 43 animal trainer, animal behaviorist, groomer, veterinarian, or an agent 44 or employee of any of the foregoing, for the purpose of rendering a 45 professional service in exchange for compensation. 46 10. The owner or lawful custodian of a [dangerous] dog who shall have 47 caused injury as set forth in subdivision three of this section, except 48 in the circumstances enumerated in subdivisions four and eleven of this 49 section, be strictly liable for medical costs resulting from injury 50 caused by such dog to a person, companion animal, farm animal or domes- 51 tic animal. 52 11. The owner shall not be liable pursuant to subdivision six, seven, 53 eight, nine or ten of this section if the dog was coming to the aid or 54 defense of a person during the commission or attempted commission of a 55 murder, robbery, burglary, arson, rape in the first degree as defined in 56 subdivision one or two of section 130.35 of the penal law, criminalS. 7454 5 1 sexual act in the first degree as defined in subdivision one or two of 2 section 130.50 of the penal law or kidnapping within the dwelling or 3 upon the real property of the owner of the dog and the dog injured or 4 killed the person committing such criminal activity. 5 12. Nothing contained in this section shall limit or abrogate any 6 claim or cause of action any person who is injured by a dog with a 7 vicious disposition or a vicious propensity may have under common law or 8 by statute. The provisions of this section shall be in addition to such 9 common law and statutory remedies. 10 13. Nothing contained in this section shall restrict the rights and 11 powers derived from the provisions of title four of article twenty-one 12 of the public health law relating to rabies and any rule and regulation 13 adopted pursuant thereto. 14 14. Persons owning, possessing or harboring dangerous dogs shall 15 report the presence of such dangerous dogs pursuant to section two 16 hundred nine-cc of the general municipal law. 17 15. The rights and remedies set forth by this section are cumulative 18 and not exclusive of any other rights or remedies that may be available 19 to the injured parties, including without limitation actions based on 20 general negligence and negligence per se. 21 § 2. This act shall take effect immediately.
