STATE OF NEW YORK ________________________________________________________________________ 731 2017-2018 Regular Sessions IN SENATE January 4, 2017 ___________ 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04624-01-7

S. 731 2 1 person, companion animal, farm animal or domestic animal, and if so, 2 shall issue an order to any dog control officer, peace officer, acting 3 pursuant to his or her special duties, or police officer directing such 4 officer to immediately seize such dog and hold the same pending judicial 5 determination as provided in this section. Whether or not the judge or 6 justice finds there is probable cause for such seizure, he or she shall, 7 within five days and upon written notice of not less than two days to 8 the owner of the dog, hold a hearing on the complaint. The petitioner 9 shall have the burden at such hearing to prove the dog [is a "dangerous 10 dog"] caused injury to a person, companion animal, farm animal or domes- 11 tic animal by clear and convincing evidence. If satisfied that the dog 12 [is a dangerous dog] caused injury to a person, companion animal, farm 13 animal or domestic animal, the judge or justice shall then order neuter- 14 ing or spaying of the dog, microchipping of the dog and one or more of 15 the following as deemed appropriate under the circumstances and as 16 deemed necessary for the protection of the public: 17 (a) evaluation of the dog by a certified applied behaviorist, a board 18 certified veterinary behaviorist, or another recognized expert in the 19 field and completion of training or other treatment as deemed appropri- 20 ate by such expert. The owner of the dog shall be responsible for all 21 costs associated with evaluations and training ordered under this 22 section; 23 (b) secure, humane confinement of the dog for a period of time and in 24 a manner deemed appropriate by the court but in all instances in a 25 manner designed to: (1) prevent escape of the dog, (2) protect the 26 public from unauthorized contact with the dog, and (3) to protect the 27 dog from the elements pursuant to section three hundred fifty-three-b of 28 this chapter. Such confinement shall not include lengthy periods of 29 tying or chaining; 30 (c) restraint of the dog on a leash by an adult of at least twenty-one 31 years of age whenever the dog is on public premises; 32 (d) muzzling the dog whenever it is on public premises in a manner 33 that will prevent it from biting any person or animal, but that shall 34 not injure the dog or interfere with its vision or respiration; or 35 (e) maintenance of a liability insurance policy in an amount deter- 36 mined by the court, but in no event in excess of one hundred thousand 37 dollars for personal injury or death resulting from an attack by such 38 dangerous dog. 39 3. Upon a finding that a dog [is dangerous] caused injury to a person, 40 companion animal, farm animal or domestic animal, the judge or justice 41 may order humane euthanasia or permanent confinement of the dog if one 42 of the following aggravating circumstances is established at the judi- 43 cial hearing held pursuant to subdivision two of this section: 44 (a) the dog, without justification, attacked a person causing serious 45 physical injury or death; or 46 (b) the dog has a known vicious propensity as evidenced by a previous 47 unjustified attack on a person, which caused serious physical injury or 48 death; or 49 (c) the dog, without justification, caused serious physical injury or 50 death to a companion animal, farm animal or domestic animal, and has, in 51 the past two years, caused unjustified physical injury or death to a 52 companion or farm animal as evidenced by a ["dangerous dog"] finding 53 pursuant to the provisions of this section. 54 An order of humane euthanasia shall not be carried out until expiration 55 of the thirty day period provided for in subdivision five of this 56 section for filing a notice of appeal, unless the owner of the dog has

S. 731 3 1 indicated to the judge in writing, his or her intention to waive his or 2 her right to appeal. Upon filing of a notice of appeal, the order shall 3 be automatically stayed pending the outcome of the appeal. 4 4. A dog shall not be [declared dangerous] subject to the provisions 5 of subdivision three of this section if the court determines the conduct 6 of the dog (a) was justified because the threat, injury or damage was 7 sustained by a person who at the time was committing a crime or offense 8 of violence upon the owner or custodian of the dog or upon the property 9 of the owner or custodian of the dog; (b) was justified because the 10 injured, threatened or killed person was tormenting, abusing, assaulting 11 or physically threatening the dog or its offspring, or has in the past 12 tormented, abused, assaulted or physically threatened the dog or its 13 offspring; (c) was justified because the dog was responding to pain or 14 injury, or was protecting itself, its owner, custodian, or a member of 15 its household, its kennels or its offspring; or was justified because 16 the injured, threatened or killed companion animal, farm animal or 17 domestic animal was attacking or threatening to attack the dog or its 18 offspring. Testimony of a certified applied behaviorist, a board certi- 19 fied veterinary behaviorist, or another recognized expert shall be rele- 20 vant to the court's determination as to whether the dog's behavior was 21 justified pursuant to the provisions of this subdivision. 22 5. (a) The owner of a dog [found to be a "dangerous dog" pursuant to 23 this section] may appeal [such] a determination under this section, 24 and/or the court's order concerning disposition of the dog to the court 25 having jurisdiction to hear civil appeals in the county where the 26 ["dangerous dog"] finding was made. The owner shall commence such appeal 27 by filing a notice of appeal with the appropriate court within thirty 28 days of the final order pursuant to this section. Court rules governing 29 civil appeals in the appropriate jurisdiction shall govern the appeal of 30 a determination under this section. 31 (b) Upon filing a notice of appeal from an order of humane euthanasia 32 pursuant to this section, such order shall be automatically stayed pend- 33 ing final determination of any appeal. In all other circumstances, the 34 owner of the dog may make application to the court to issue a stay of 35 disposition pending determination of the appeal. 36 6. The owner of a dog who, through any act or omission, negligently 37 permits his or her dog to bite a person, service dog, guide dog or hear- 38 ing dog causing physical injury shall be subject to a civil penalty not 39 to exceed four hundred dollars in addition to any other applicable 40 penalties. 41 7. The owner of a dog who, through any act or omission, negligently 42 permits his or her dog to bite a person causing serious physical injury 43 shall be subject to a civil penalty not to exceed one thousand five 44 hundred dollars in addition to any other applicable penalties. Any such 45 penalty may be reduced by any amount which is paid as restitution by the 46 owner of the dog to the person or persons suffering serious physical 47 injury as compensation for unreimbursed medical expenses, lost earnings 48 and other damages resulting from such injury. 49 7-a. The owner of any dog shall be liable for all injuries and damages 50 suffered by any person who is bitten by the dog while in a public place 51 or lawfully in a private place, including the property of the owner of 52 the dog, regardless of the former viciousness of the dog or that owner's 53 knowledge of such viciousness. A person is lawfully upon the private 54 property of such owner within the meaning of this subdivision when he or 55 she is on such property in the performance of any duty imposed upon him 56 or her by the laws of this state or by the laws or postal regulations of

S. 731 4 1 the United States, or when he or she is on such property upon the invi- 2 tation, express or implied, of the owner of the dog, the owner or lessee 3 of the property, or any person authorized to grant such permission. It 4 shall not be a defense to liability under this section that the owner: 5 (a) exercised the utmost care to prevent the dog from biting, or (b) did 6 not have custody or control of the dog at the time of the biting. It 7 shall not be a defense to liability under this section that the dog did 8 not intend to injure the victim, or that the dog's action was playful, 9 mischievous, or otherwise not vicious. 10 7-b. Every person who owns, harbors, keeps, or is in temporary 11 possession of a dog shall be required to provide in writing the official 12 registration number of the dog and that person's name and address, and 13 the name and address of the owner of the dog if that person is not the 14 owner, to anyone whom the dog has injured or damaged, or the parents if 15 the victim was a minor, at the time of the incident or as soon as possi- 16 ble thereafter, whether or not requested to provide such information, 17 and to anyone who requests such information after witnessing a violation 18 of any law involving that dog. 19 7-c. The owner of any dog shall provide a copy of its most recent 20 proof of rabies vaccination to anyone whom the dog has injured, or the 21 parents of an injured minor, at the time of the incident or as soon as 22 possible thereafter, whether or not requested to provide such informa- 23 tion. If the dog never received such vaccination, a written statement to 24 that effect shall be provided to the person who was injured, or the 25 parents of an injured minor. 26 8. The owner of a dog who, through any act or omission, negligently 27 permits his or her dog, which had previously been determined to [be 28 dangerous pursuant to this article] have caused physical injury, to bite 29 a person causing serious physical injury, shall be guilty of a misdemea- 30 nor punishable by a fine of not more than three thousand dollars, or by 31 a period of imprisonment not to exceed ninety days, or by both such fine 32 and imprisonment in addition to any other applicable penalties. Any such 33 fine may be reduced by any amount which is paid as restitution by the 34 owner of the dog to the person or persons suffering serious physical 35 injury as compensation for unreimbursed medical expenses, lost earnings 36 and other damages resulting from such injury. 37 9. If any dog, which had previously been determined by a judge or 38 justice to [be a dangerous dog, as defined in section one hundred eight 39 of this article] have caused injury as set forth in subdivision three of 40 this section, shall without justification kill or cause the death of any 41 person who is peaceably conducting himself or herself in any place where 42 he or she may lawfully be, regardless of whether such dog escapes with- 43 out fault of the owner, the owner shall be guilty of a class A misdemea- 44 nor in addition to any other penalties. Penalties and liability under 45 this section shall not apply where the dog was in the custody of an 46 animal trainer, animal behaviorist, groomer, veterinarian, or an agent 47 or employee of any of the foregoing, for the purpose of rendering a 48 professional service in exchange for compensation. 49 10. The owner or lawful custodian of a [dangerous] dog who shall have 50 caused injury as set forth in subdivision three of this section, except 51 in the circumstances enumerated in subdivisions four and eleven of this 52 section, be strictly liable for medical costs resulting from injury 53 caused by such dog to a person, companion animal, farm animal or domes- 54 tic animal. 55 11. The owner shall not be liable pursuant to subdivision six, seven, 56 eight, nine or ten of this section if the dog was coming to the aid or

S. 731 5 1 defense of a person during the commission or attempted commission of a 2 murder, robbery, burglary, arson, rape in the first degree as defined in 3 subdivision one or two of section 130.35 of the penal law, criminal 4 sexual act in the first degree as defined in subdivision one or two of 5 section 130.50 of the penal law or kidnapping within the dwelling or 6 upon the real property of the owner of the dog and the dog injured or 7 killed the person committing such criminal activity. 8 12. Nothing contained in this section shall limit or abrogate any 9 claim or cause of action any person who is injured by a dog with a 10 vicious disposition or a vicious propensity may have under common law or 11 by statute. The provisions of this section shall be in addition to such 12 common law and statutory remedies. 13 13. Nothing contained in this section shall restrict the rights and 14 powers derived from the provisions of title four of article twenty-one 15 of the public health law relating to rabies and any rule and regulation 16 adopted pursuant thereto. 17 14. Persons owning, possessing or harboring dangerous dogs shall 18 report the presence of such dangerous dogs pursuant to section two 19 hundred nine-cc of the general municipal law. 20 15. The rights and remedies set forth by this section are cumulative 21 and not exclusive of any other rights or remedies that may be available 22 to the injured parties, including without limitation actions based on 23 general negligence and negligence per se. 24 § 2. This act shall take effect immediately.