N.Y. Agriculture & Markets Law § 123: Dangerous dogs

§ 123. Dangerous dogs. 1. Any person who witnesses an attack or

threatened attack, or in the case of a minor, an adult acting on behalf

of such minor, may make a complaint of an attack or threatened attack

upon a person, companion animal as defined in section three hundred

fifty of this chapter, farm animal as defined in such section three

hundred fifty, or a domestic animal as defined in subdivision seven of

section one hundred eight of this article to a dog control officer or

police officer of the appropriate municipality. Such officer shall

immediately inform the complainant of his or her right to commence a

proceeding as provided in subdivision two of this section and, if there

is reason to believe the dog is a dangerous dog, the officer shall

forthwith commence such proceeding himself or herself.

2. Any person who witnesses an attack or threatened attack, or in the

case of a minor, an adult acting on behalf of such minor, may, and any

dog control officer or police officer as provided in subdivision one of

this section shall, make a complaint under oath or affirmation to any

municipal judge or justice of such attack or threatened attack.

Thereupon, the judge or justice shall immediately determine if there is

probable cause to believe the dog is a dangerous dog and, if so, shall

issue an order to any dog control officer, peace officer, acting

pursuant to his or her special duties, or police officer directing such

officer to immediately seize such dog and hold the same pending judicial

determination as provided in this section. Whether or not the judge or

justice finds there is probable cause for such seizure, he or she shall,

within five days and upon written notice of not less than two days to

the owner of the dog, hold a hearing on the complaint. The petitioner

shall have the burden at such hearing to prove the dog is a "dangerous

dog" by clear and convincing evidence. If satisfied that the dog is a

dangerous dog, the judge or justice shall then order neutering or

spaying of the dog, microchipping of the dog and one or more of the

following as deemed appropriate under the circumstances and as deemed

necessary for the protection of the public:

(a) evaluation of the dog by a certified applied behaviorist, a board

certified veterinary behaviorist, or another recognized expert in the

field and completion of training or other treatment as deemed

appropriate by such expert. The owner of the dog shall be responsible

for all costs associated with evaluations and training ordered under

this section;

(b) secure, humane confinement of the dog for a period of time and in

a manner deemed appropriate by the court but in all instances in a

manner designed to: (1) prevent escape of the dog, (2) protect the

public from unauthorized contact with the dog, and (3) to protect the

dog from the elements pursuant to section three hundred fifty-three-b of

this chapter. Such confinement shall not include lengthy periods of

tying or chaining;

(c) restraint of the dog on a leash by an adult of at least twenty-one

years of age whenever the dog is on public premises;

(d) muzzling the dog whenever it is on public premises in a manner

that will prevent it from biting any person or animal, but that shall

not injure the dog or interfere with its vision or respiration; or

(e) maintenance of a liability insurance policy in an amount

determined by the court, but in no event in excess of one hundred

thousand dollars for personal injury or death resulting from an attack

by such dangerous dog.

3. Upon a finding that a dog is dangerous, the judge or justice may

order humane euthanasia or permanent confinement of the dog if one of

the following aggravating circumstances is established at the judicial

hearing held pursuant to subdivision two of this section:

(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.

An order of humane euthanasia shall not be carried out until expiration

of the thirty day period provided for in subdivision five of this

section for filing a notice of appeal, unless the owner of the dog has

indicated to the judge in writing, his or her intention to waive his or

her right to appeal. Upon filing of a notice of appeal, the order shall

be automatically stayed pending the outcome of the appeal.

4. 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.

5. (a) The owner of a dog found to be a "dangerous dog" pursuant to

this section may appeal such determination, and/or the court's order

concerning disposition of the dog to the court having jurisdiction to

hear civil appeals in the county where the "dangerous dog" finding was

made. The owner shall commence such appeal by filing a notice of appeal

with the appropriate court within thirty days of the final order

pursuant to this section. Court rules governing civil appeals in the

appropriate jurisdiction shall govern the appeal of a determination

under this section.

(b) Upon filing a notice of appeal from an order of humane euthanasia

pursuant to this section, such order shall be automatically stayed

pending final determination of any appeal. In all other circumstances,

the owner of the dog may make application to the court to issue a stay

of disposition pending determination of the appeal.

6. 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 shall be subject to a civil penalty

not to exceed four hundred dollars in addition to any other applicable

penalties.

7. 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

shall be subject to a civil penalty not to exceed one thousand five

hundred dollars in addition to any other applicable penalties. Any such

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.

8. 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.

9. 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.

10. The owner or lawful custodian of a dangerous dog shall, except in

the circumstances enumerated in subdivisions four and eleven of this

section, be strictly liable for medical costs resulting from injury

caused by such dog to a person, companion animal, farm animal or

domestic animal.

11. The owner shall not be liable pursuant to subdivision six, seven,

eight, nine or ten of this section if the dog was coming to the aid or

defense of a person during the commission or attempted commission of a

murder, robbery, burglary, arson, rape in the first degree as defined in

paragraph (a) or (b) of subdivision one, paragraph (a) or (b) of

subdivision two or paragraph (a) or (b) of subdivision three of section

130.35 of the penal law, rape in the first degree as defined in the

former subdivision one of section 130.35 of the penal law, a crime

formerly defined in subdivision one or two of section 130.50 of the

penal law or kidnapping within the dwelling or upon the real property of

the owner of the dog and the dog injured or killed the person committing

such criminal activity.

12. Nothing contained in this section shall limit or abrogate any

claim or cause of action any person who is injured by a dog with a

vicious disposition or a vicious propensity may have under common law or

by statute. The provisions of this section shall be in addition to such

common law and statutory remedies.

13. Nothing contained in this section shall restrict the rights and

powers derived from the provisions of title four of article twenty-one

of the public health law relating to rabies and any rule and regulation

adopted pursuant thereto.

14. 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.