S00122 Summary:

BILL NOS00122
 
SAME ASNo Same As
 
SPONSORORTT
 
COSPNSR
 
MLTSPNSR
 
Amd 123, Ag & Mkts L
 
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.
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S00122 Actions:

BILL NOS00122
 
01/09/2019REFERRED TO AGRICULTURE
02/11/2019COMMITTEE DISCHARGED AND COMMITTED TO DOMESTIC ANIMAL WELFARE
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S00122 Committee Votes:

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S00122 Floor Votes:

There are no votes for this bill in this legislative session.
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S00122 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           122
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 9, 2019
                                       ___________
 
        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-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02373-01-9

        S. 122                              2
 
     1  able  cause  to  believe the dog [is a dangerous dog] caused injury to a
     2  person, companion animal, farm animal or domestic  animal,  and  if  so,
     3  shall  issue  an order to any dog control officer, peace officer, acting
     4  pursuant  to his or her special duties, or police officer directing such
     5  officer to immediately seize such dog and hold the same pending judicial
     6  determination as provided in this section. Whether or not the  judge  or
     7  justice finds there is probable cause for such seizure, he or she shall,
     8  within  five  days  and upon written notice of not less than two days to
     9  the owner of the dog, hold a hearing on the  complaint.  The  petitioner
    10  shall  have the burden at such hearing to prove the dog [is a "dangerous
    11  dog"] caused injury to a person, companion animal, farm animal or domes-
    12  tic animal by clear and convincing evidence. If satisfied that  the  dog
    13  [is  a  dangerous dog] caused injury to a person, companion animal, farm
    14  animal or domestic animal, the judge or justice shall then order neuter-
    15  ing or spaying of the dog, microchipping of the dog and one or  more  of
    16  the  following  as  deemed  appropriate  under  the circumstances and as
    17  deemed necessary for the protection of the public:
    18    (a) evaluation of the dog by a certified applied behaviorist, a  board
    19  certified  veterinary  behaviorist,  or another recognized expert in the
    20  field and completion of training or other treatment as deemed  appropri-
    21  ate  by  such  expert. The owner of the dog shall be responsible for all
    22  costs associated  with  evaluations  and  training  ordered  under  this
    23  section;
    24    (b)  secure, humane confinement of the dog for a period of time and in
    25  a manner deemed appropriate by the court  but  in  all  instances  in  a
    26  manner  designed  to:  (1)  prevent  escape  of the dog, (2) protect the
    27  public from unauthorized contact with the dog, and (3)  to  protect  the
    28  dog from the elements pursuant to section three hundred fifty-three-b of
    29  this  chapter.  Such  confinement  shall  not include lengthy periods of
    30  tying or chaining;
    31    (c) restraint of the dog on a leash by an adult of at least twenty-one
    32  years of age whenever the dog is on public premises;
    33    (d) muzzling the dog whenever it is on public  premises  in  a  manner
    34  that  will  prevent  it from biting any person or animal, but that shall
    35  not injure the dog or interfere with its vision or respiration; or
    36    (e) maintenance of a liability insurance policy in  an  amount  deter-
    37  mined  by  the  court, but in no event in excess of one hundred thousand
    38  dollars for personal injury or death resulting from an  attack  by  such
    39  dangerous dog.
    40    3. Upon a finding that a dog [is dangerous] caused injury to a person,
    41  companion  animal,  farm animal or domestic animal, the judge or justice
    42  may order humane euthanasia or permanent confinement of the dog  if  one
    43  of  the  following aggravating circumstances is established at the judi-
    44  cial hearing held pursuant to subdivision two of this section:
    45    (a) the dog, without justification, attacked a person causing  serious
    46  physical injury or death; or
    47    (b)  the dog has a known vicious propensity as evidenced by a previous
    48  unjustified attack on a person, which caused serious physical injury  or
    49  death; or
    50    (c)  the dog, without justification, caused serious physical injury or
    51  death to a companion animal, farm animal or domestic animal, and has, in
    52  the past two years, caused unjustified physical injury  or  death  to  a
    53  companion  or  farm  animal  as evidenced by a ["dangerous dog"] finding
    54  pursuant to the provisions of this section.
    55  An order of humane euthanasia shall not be carried out until  expiration
    56  of  the  thirty  day  period  provided  for  in subdivision five of this

        S. 122                              3
 
     1  section for filing a notice of appeal, unless the owner of the  dog  has
     2  indicated  to the judge in writing, his or her intention to waive his or
     3  her right to appeal. Upon filing of a notice of appeal, the order  shall
     4  be automatically stayed pending the outcome of the appeal.
     5    4.  A  dog shall not be [declared dangerous] subject to the provisions
     6  of subdivision three of this section if the court determines the conduct
     7  of the dog (a) was justified because the threat, injury  or  damage  was
     8  sustained  by a person who at the time was committing a crime or offense
     9  of violence upon the owner or custodian of the dog or upon the  property
    10  of  the  owner  or  custodian  of the dog; (b) was justified because the
    11  injured, threatened or killed person was tormenting, abusing, assaulting
    12  or physically threatening the dog or its offspring, or has in  the  past
    13  tormented,  abused,  assaulted  or  physically threatened the dog or its
    14  offspring; (c) was justified because the dog was responding to  pain  or
    15  injury,  or  was protecting itself, its owner, custodian, or a member of
    16  its household, its kennels or its offspring; or  was  justified  because
    17  the  injured,  threatened  or  killed  companion  animal, farm animal or
    18  domestic animal was attacking or threatening to attack the  dog  or  its
    19  offspring.  Testimony of a certified applied behaviorist, a board certi-
    20  fied veterinary behaviorist, or another recognized expert shall be rele-
    21  vant to the court's determination as to whether the dog's  behavior  was
    22  justified pursuant to the provisions of this subdivision.
    23    5.  (a)  The owner of a dog [found to be a "dangerous dog" pursuant to
    24  this section] may appeal [such]  a  determination  under  this  section,
    25  and/or  the court's order concerning disposition of the dog to the court
    26  having jurisdiction to hear  civil  appeals  in  the  county  where  the
    27  ["dangerous dog"] finding was made. The owner shall commence such appeal
    28  by  filing  a  notice of appeal with the appropriate court within thirty
    29  days of the final order pursuant to this section. Court rules  governing
    30  civil appeals in the appropriate jurisdiction shall govern the appeal of
    31  a determination under this section.
    32    (b)  Upon filing a notice of appeal from an order of humane euthanasia
    33  pursuant to this section, such order shall be automatically stayed pend-
    34  ing final determination of any appeal. In all other  circumstances,  the
    35  owner  of  the  dog may make application to the court to issue a stay of
    36  disposition pending determination of the appeal.
    37    6. The owner of a dog who, through any act  or  omission,  negligently
    38  permits his or her dog to bite a person, service dog, guide dog or hear-
    39  ing  dog causing physical injury shall be subject to a civil penalty not
    40  to exceed four hundred dollars  in  addition  to  any  other  applicable
    41  penalties.
    42    7.  The  owner  of a dog who, through any act or omission, negligently
    43  permits his or her dog to bite a person causing serious physical  injury
    44  shall  be  subject  to  a  civil penalty not to exceed one thousand five
    45  hundred dollars in addition to any other applicable penalties. Any  such
    46  penalty may be reduced by any amount which is paid as restitution by the
    47  owner  of  the  dog  to the person or persons suffering serious physical
    48  injury as compensation for unreimbursed medical expenses, lost  earnings
    49  and other damages resulting from such injury.
    50    7-a. The owner of any dog shall be liable for all injuries and damages
    51  suffered  by any person who is bitten by the dog while in a public place
    52  or lawfully in a private place, including the property of the  owner  of
    53  the dog, regardless of the former viciousness of the dog or that owner's
    54  knowledge  of  such  viciousness.  A person is lawfully upon the private
    55  property of such owner within the meaning of this subdivision when he or
    56  she is on such property in the performance of any duty imposed upon  him

        S. 122                              4
 
     1  or her by the laws of this state or by the laws or postal regulations of
     2  the  United States, or when he or she is on such property upon the invi-
     3  tation, express or implied, of the owner of the dog, the owner or lessee
     4  of  the  property, or any person authorized to grant such permission. It
     5  shall not be a defense to liability under this section that  the  owner:
     6  (a) exercised the utmost care to prevent the dog from biting, or (b) did
     7  not  have  custody  or  control of the dog at the time of the biting. It
     8  shall not be a defense to liability under this section that the dog  did
     9  not  intend  to injure the victim, or that the dog's action was playful,
    10  mischievous, or otherwise not vicious.
    11    7-b. Every person  who  owns,  harbors,  keeps,  or  is  in  temporary
    12  possession of a dog shall be required to provide in writing the official
    13  registration  number  of the dog and that person's name and address, and
    14  the name and address of the owner of the dog if that person is  not  the
    15  owner,  to anyone whom the dog has injured or damaged, or the parents if
    16  the victim was a minor, at the time of the incident or as soon as possi-
    17  ble thereafter, whether or not requested to  provide  such  information,
    18  and to anyone who requests such information after witnessing a violation
    19  of any law involving that dog.
    20    7-c.  The  owner  of  any  dog shall provide a copy of its most recent
    21  proof of rabies vaccination to anyone whom the dog has injured,  or  the
    22  parents  of  an injured minor, at the time of the incident or as soon as
    23  possible thereafter, whether or not requested to provide  such  informa-
    24  tion. If the dog never received such vaccination, a written statement to
    25  that  effect  shall  be  provided  to the person who was injured, or the
    26  parents of an injured minor.
    27    8. The owner of a dog who, through any act  or  omission,  negligently
    28  permits  his  or  her  dog,  which had previously been determined to [be
    29  dangerous pursuant to this article] have caused physical injury, to bite
    30  a person causing serious physical injury, shall be guilty of a misdemea-
    31  nor punishable by a fine of not more than three thousand dollars, or  by
    32  a period of imprisonment not to exceed ninety days, or by both such fine
    33  and imprisonment in addition to any other applicable penalties. Any such
    34  fine  may  be  reduced by any amount which is paid as restitution by the
    35  owner of the dog to the person or  persons  suffering  serious  physical
    36  injury  as compensation for unreimbursed medical expenses, lost earnings
    37  and other damages resulting from such injury.
    38    9. If any dog, which had previously been  determined  by  a  judge  or
    39  justice  to [be a dangerous dog, as defined in section one hundred eight
    40  of this article] have caused injury as set forth in subdivision three of
    41  this section, shall without justification kill or cause the death of any
    42  person who is peaceably conducting himself or herself in any place where
    43  he or she may lawfully be, regardless of whether such dog escapes  with-
    44  out fault of the owner, the owner shall be guilty of a class A misdemea-
    45  nor  in  addition  to any other penalties. Penalties and liability under
    46  this section shall not apply where the dog was  in  the  custody  of  an
    47  animal  trainer,  animal behaviorist, groomer, veterinarian, or an agent
    48  or employee of any of the foregoing, for  the  purpose  of  rendering  a
    49  professional service in exchange for compensation.
    50    10.  The owner or lawful custodian of a [dangerous] dog who shall have
    51  caused injury as set forth in subdivision three of this section,  except
    52  in  the circumstances enumerated in subdivisions four and eleven of this
    53  section, be strictly liable for  medical  costs  resulting  from  injury
    54  caused  by such dog to a person, companion animal, farm animal or domes-
    55  tic animal.

        S. 122                              5
 
     1    11. The owner shall not be liable pursuant to subdivision six,  seven,
     2  eight,  nine  or ten of this section if the dog was coming to the aid or
     3  defense of a person during the commission or attempted commission  of  a
     4  murder, robbery, burglary, arson, rape in the first degree as defined in
     5  subdivision  one  or  two  of  section 130.35 of the penal law, criminal
     6  sexual act in the first degree as defined in subdivision one or  two  of
     7  section  130.50  of  the  penal law or kidnapping within the dwelling or
     8  upon the real property of the owner of the dog and the  dog  injured  or
     9  killed the person committing such criminal activity.
    10    12.  Nothing  contained  in  this  section shall limit or abrogate any
    11  claim or cause of action any person who is  injured  by  a  dog  with  a
    12  vicious disposition or a vicious propensity may have under common law or
    13  by  statute. The provisions of this section shall be in addition to such
    14  common law and statutory remedies.
    15    13. Nothing contained in this section shall restrict  the  rights  and
    16  powers  derived  from the provisions of title four of article twenty-one
    17  of the public health law relating to rabies and any rule and  regulation
    18  adopted pursuant thereto.
    19    14.  Persons  owning,  possessing  or  harboring  dangerous dogs shall
    20  report the presence of such  dangerous  dogs  pursuant  to  section  two
    21  hundred nine-cc of the general municipal law.
    22    15.  The  rights and remedies set forth by this section are cumulative
    23  and not exclusive of any other rights or remedies that may  be available
    24  to the injured parties, including without limitation  actions  based  on
    25  general negligence and negligence per se.
    26    § 2. This act shall take effect immediately.
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