Zager v. Dimilia

CourtNew York Villiage Court
Citation524 N.Y.S.2d 968,138 Misc.2d 448
Decision Date04 January 1988
PartiesJonathan ZAGER, Plaintiff, v. Jonathan DIMILIA, Defendant.

Page 968

524 N.Y.S.2d 968
138 Misc.2d 448
Jonathan ZAGER, Plaintiff,
v.
Jonathan DIMILIA, Defendant.
Village Court of Pleasantville.
Jan. 4, 1988.

Herbert Rosedale of Parker Chapin Flattau & Klimpl, New York City, for plaintiff.

Jonathan Dimilia, pro se.

Page 969

JOHN M. NONNA, Acting Village Justice.

This is the continuing saga of McDuff and Tucker, two members of the species "canis familiaris," popularly known as "man's best friend," who had an altercation on the streets of Pleasantville in January, 1986. The Village Court previously found that defendant was liable to plaintiff for his failure to keep McDuff confined and that McDuff had broken his tether. Defendant's failure to maintain McDuff on a leash constituted a violation of Pleasantville Municipal Code § 54.25 and related provisions regulating control of animals. While affirming the Village Court's finding of liability, the Appellate Term mandated that there be a new trial to determine the appropriate damages. The Appellate Term disagreed with the Village Court's initial finding that Tucker's fair market value, considering his age and mixed breeding was $10.00. The appellate court concluded that, "where there is no known market value, actual value to the owner or 'intrinsic' value is the criteria." Zager v. Dimilia, (App. Term, decided July 17, 1987), Slip Opinion at 2.

Upon the retrial of the damages issue, plaintiff advances several theories to support his claim for $400. First, plaintiff contends that the cost of treatment constitutes Tucker's "intrinsic value." Secondly, as evidence of intrinsic value, plaintiff testified to the cost of adoption ($25.00), cost of sterilization ($25.00), and time expended training Tucker as a puppy. In addition, plaintiff asserts that Tucker's "intrinsic" value includes "his traits to Plaintiff and members of the household; Tucker's use in protecting the household and its various members and the value of the emotional bond between dog and members of plaintiff's family." Plaintiff's Memorandum on Damages, p. 4. Plaintiff expressly disavows any claim for emotional distress as a result of the injuries suffered by Tucker. Finally, for the first time, plaintiff interposes a claim for punitive damages.

The following testimony was elicited from plaintiff with respect to the question of Tucker's "intrinsic value" in addition to the cost of adoption and neutering. Plaintiff claims that he spent over one hundred hours training Tucker as a puppy. He trained Tucker to sit up, fetch and roll over. Unfortunately, due to his advanced age, Tucker can no longer perform these feats. Tucker also suffers from impaired hearing and arthritis. Plaintiff and his wife also testified that Tucker was a companion for their children and retained some value as a watchdog in that Tucker still possessed his bark (if not his bite).

This testimony does not help to establish a monetary amount for the "intrinsic" value of Tucker. On the one hand, the cost of neutering and adoption seems too low a reflection of its intrinsic value. Conversely, Tucker's relationship to plaintiff and members of his family does have value separate and distinct from sentiment, an element which the law precludes from consideration in ascertaining damages. Smith v. Palace Transportation Co., 142 Misc. 93, 253 N.Y.S. 87 (Mun.Ct.1931); Stettner v. Graubard, 82 Misc.2d 132, 368 N.Y.S.2d 132 (Town Ct.1975). However, it is impossible to reduce to monetary terms the bond between man and dog, a relationship which has been more eloquently memorialized in literature and depicted on the motion picture screen.

The cases cited in the Appellate Term's decision similarly do not offer much guidance in estimating Tucker's value to plaintiff. These decisions merely recite the traditional formula that the factors determining value include the "animal's age, health, special traits or characteristics of value without consideration of depreciation, presumably because a domestic animal's value increases, rather than declines as it becomes older and better trained." See, e.g., Hersh v. Heiffler, N.Y.L.J. 10/18/85 Page 16 col. 5 (App. Term 1985); Blauvelt v. Cleveland, 198 A.D. 229,...

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10 practice notes
  • Nardi v. Gonzalez
    • United States
    • New York City Court
    • May 31, 1995
    ...108 A.D.2d 780, 485 N.Y.S.2d 113 (1985) (dog bites woman, damages of $240,000 and $70,000 reversed as excessive); Zager v. Dimilia, 138 Misc.2d 448, 524 N.Y.S.2d 968 (1988) (McDuff bites Tucker, damages limited to veterinarian bills, no punitive damages without evidence of prior known bites......
  • Astarita v. Croton Animal Hosp., Index No. SC-313-16
    • United States
    • New York County Court
    • September 19, 2016
    ...the market value of an animal include the animal's age, health, and special traits or characteristics of value. See, Zager v. Dimilia, 138 Misc.2d 448, 524 N.Y.S.2d 968 (J. Ct. 1988). It has been held that the cost of veterinaryPage 9 treatment is the proper measure of damages for an injure......
  • Astarita v. Croton Animal Hosp., Index No. SC-313-16
    • United States
    • New York County Court
    • September 19, 2016
    ...the market value of an animal include the animal's age, health, and special traits or characteristics of value. See, Zager v. Dimilia, 138 Misc.2d 448, 524 N.Y.S.2d 968 (J. Ct. 1988). It has been held that the cost of veterinary Page 9treatment is the proper measure of damages for an injure......
  • Martinez v. Robledo, Nos. B231534
    • United States
    • California Court of Appeals
    • January 23, 2013
    ...581.) The Kimes court noted that other states have applied a similar measure of damages (citing Zager v. Dimilia (N.Y.App.Term., 1988) 138 Misc.2d 448, 524 N.Y.S.2d 968, 970 and Burgess v. Shampooch Pet Industries, Inc. (2006) 35 Kan.App.2d 458, 131 P.3d 1248). The court also cited Evidence......
  • Request a trial to view additional results
10 cases
  • Nardi v. Gonzalez
    • United States
    • New York City Court
    • May 31, 1995
    ...108 A.D.2d 780, 485 N.Y.S.2d 113 (1985) (dog bites woman, damages of $240,000 and $70,000 reversed as excessive); Zager v. Dimilia, 138 Misc.2d 448, 524 N.Y.S.2d 968 (1988) (McDuff bites Tucker, damages limited to veterinarian bills, no punitive damages without evidence of prior known bites......
  • Astarita v. Croton Animal Hosp., Index No. SC-313-16
    • United States
    • New York County Court
    • September 19, 2016
    ...the market value of an animal include the animal's age, health, and special traits or characteristics of value. See, Zager v. Dimilia, 138 Misc.2d 448, 524 N.Y.S.2d 968 (J. Ct. 1988). It has been held that the cost of veterinaryPage 9 treatment is the proper measure of damages for an injure......
  • Astarita v. Croton Animal Hosp., Index No. SC-313-16
    • United States
    • New York County Court
    • September 19, 2016
    ...the market value of an animal include the animal's age, health, and special traits or characteristics of value. See, Zager v. Dimilia, 138 Misc.2d 448, 524 N.Y.S.2d 968 (J. Ct. 1988). It has been held that the cost of veterinary Page 9treatment is the proper measure of damages for an injure......
  • Martinez v. Robledo, Nos. B231534
    • United States
    • California Court of Appeals
    • January 23, 2013
    ...581.) The Kimes court noted that other states have applied a similar measure of damages (citing Zager v. Dimilia (N.Y.App.Term., 1988) 138 Misc.2d 448, 524 N.Y.S.2d 968, 970 and Burgess v. Shampooch Pet Industries, Inc. (2006) 35 Kan.App.2d 458, 131 P.3d 1248). The court also cited Evidence......
  • Request a trial to view additional results

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