Brooks v. Hemingway
| Decision Date | 24 November 1980 |
| Citation | 107 Misc.2d 190,433 N.Y.S.2d 551 |
| Parties | In the Matter of the Complaint of Edward A. BROOKS, Jr., Complainant, v. Thomas B. HEMINGWAY, Respondent. |
| Court | New York District Court |
This is a special proceeding under Section 121 of the Agriculture and Markets Law. The complainant avers that the dog which is owned by the respondent, a male with the body structure of a German Shepherd-type, is a dangerous dog within the meaning of the law, and seeks to have the animal permanently confined or destroyed.
While there was some question during the hearing as to the identification of the animal in question, it was clear to the court that the golden labrador-malemute mixed breed dog conceded to have been owned by the respondent, and named "Jimbo", was the animal which is the subject of these proceedings.
Testimony, in support of the complaint revealed that on two separate occasions, the animal which weighs between 75 and 100 lbs., while running loose and unattended, attacked the complainant's sixteen year old son in a menacing manner as he was riding his bicycle, "barking ... growling ... and snarling." The first incident caused the young man to fall from his bicycle and to injure his leg and knee. On the second occasion, the dog was one of a pack of three dogs which forced the young man to take defensive action against the animals in order to protect himself from what he perceived to be an impending attack.
In opposition, the respondent presented evidence that his dog is usually confined in a kennel or secured by means of a chain, although admittedly sometimes loose and "... perhaps a little rough ... playful ... and goes after bikes ...". Two neighbors, who testified in support of the respondent, indicated that they never observed any vicious acts by the dog, and that the dog is usually confined or attached to a lead, but that on occasion the dog "escapes".
Section 121 of the Agriculture and Markets Law provides in pertinent part as follows:
There is ample precedent for the ordered destruction or permanent confinement of a dog whose attacks culminate in a biting incident. However, the question of whether a dog which attacks a person, but does...
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