Leighton v. Greess

2024 NY Slip Op 32537(U)

• Court: New York Supreme Court, New York County
• Decided: July 22, 2024
• Docket: Index No. 153817/2024
• Status: Unpublished

Opinion

Leighton v Greess 2024 NY Slip Op 32537(U) July 22, 2024 Supreme Court, New York County Docket Number: Index No. 153817/2024 Judge: Suzanne J. Adams Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153817/2024 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 07/23/2024 I

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.SUZANNEJ.ADAMS PART 39M Justice --------------------------------------------------------------------X INDEX NO. 153817/2024 TAYLOR LEIGHTON MOTION DATE N/A Plaintiff, MOTION SEQ. NO. --------=--00=--1'--- - V -

NATHAN GREESS, DECISION + ORDER ON MOTION Defendant. --------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 29, 30, 31 , 32, 33, 34, 35, 36, 37, 38, 39, 40,41,42, 43, 44,45,46,47,48,49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67,68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79 were read on this motion to/for PREL INJUNCTION/TEMP REST ORDR

Upon the foregoing documents, and oral argument before the court on June 24, 2024, it is

ordered that plaintiffs motion by order to show cause is granted in part, as discussed herein below.

This is an action stating claims for replevin, conversion, and declaratory relief with respect to

ownership of a pet dog, as well as other claims arising out of intentional and negligent torts.

According to the complaint in this action, filed in April 2024, the parties herein began a romantic

relationship in or about February 2020, and began living together in a shared apartment at

561 Tenth Avenue in Manhattan in July 2020. Plaintiff alleges that he researched, selected, and

thereafter purchased a miniature poodle puppy in December 2020, which he named Raven.

Plaintiff further alleges that defendant did not contribute any funds toward Raven's purchase and

agreed that plaintiff was Raven's legal owner, and that he, plaintiff, was Raven's primary

caretaker. On March 10, 2024, the parties ended their romantic relationship and plaintiff maintains

that defendant left their shared apartment, taking Raven without plaintiffs consent, and moved

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with Raven to his father's apartment at 560 West 43 rd Street in Manhattan. Plaintiff now moves

by order to show cause pursuant to CPLR 6301, 6311 and 6312, for a preliminary injunction

ordering Raven's return to plaintiff; pursuant to CPLR 7102, for an order directing the

sheriff/marshal to seize Raven from defendant; or alternatively for a preliminary injunction

ordering the parties' joint custody of Raven pending a final determination of this action; and

pursuant to CPLR 7109 for a preliminary injunction enjoining and restraining defendant, his

agents, servants, and employees, pending the hearing and during the pendency of this action and

until final judgment herein, from removing from New York County, transferring, selling, pledging,

assigning, or otherwise disposing of Raven, until the further order of this court. Defendant opposes

the motion, disputing plaintiffs portrayal of the parties' respective financial and care-giving roles

regarding Raven, and maintains that he, defendant, was Raven's primary caretaker and paid for

the majority of Raven's care.

The gravamen of this action is the question of which party is entitled to possession of the

pet dog, Raven. Although the instant motion by order to show cause seeks preliminary injunctive

relief based upon the considerations of a traditional replevin action, recent case law (acknowledged

by both parties) has held that where consideration of parties' ownership of a companion animal is

concerned, treating a pet as mere property is no longer appropriate. See, e.g., Travis v. Murray,

42 Misc. 3d 447,456 (Sup. Ct. N.Y. County 2013) ("After reviewing the progression of the law in

both New York and other states, it can be concluded that ... a strict property analysis [to determine

pet ownership between divorcing spouses] is neither desirable nor appropriate."). Subsequent to

Travis, the New York State legislature in 2021 enacted DRL § 236(B)(5)(d)(15), which provides

guidance in determining pet custody cases, requiring courts to consider the "best interest" of a \I

companion animal. As such, that is the analysis that must obtain in this matter, precluding any

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i I I· injunctive relief that would treat Raven as mere chattel. Because the evidence before the court to

date contains significant factual questions as to what constitutes Raven's "best interest," this matter

must proceed to discovery in the normal course of litigation. Further, while the litigation

continues, the court sees fit to establish a shared custody arrangement between the parties.

Although the court in Travis opined that shared custody of a pet would not be ideal, this court is

not bound by this opinion. Moreover, if courts are to consider pets' situation more like that of

children rather than, for example, houses or cars, a shared custody arrangement would not be

inappropriate if it is in keeping with the pet's "best interest." In any event, the shared custody

arrangement at this point in time is temporary, pending the resolution of this action.

Accordingly, it is hereby

ORDERED that plaintiffs motion by order to show cause is granted only to the extent that

pending the determination of this action, the parties are granted joint custody of Raven on the terms

as set forth below, and is otherwise denied; and it is further

ORDERED that on Monday, July 29, 2024, at 7:00 a.m., defendant shall pass custody of

Raven to plaintiff inside the N.Y.P.D. Midtown South Precinct located at 357 West 35 th Street,

New York, N.Y., and two weeks later, on August 12, 2024, at 7:00 a.m., plaintiff shall pass custody

of Raven to defendant inside the Midtown South Precinct, and the parties shall continue to alternate

the passing of Raven to the other party every two weeks thereafter, on alternate Mondays at 7:00

a.m. at said N.Y.P.D. precinct, until further order of this court; and it is further

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ORDERED that within 30 days of the date of this order, the parties shall submit to the Part

Clerk of Part 39 an agreed upon Preliminary Conference Order for the judge' s review and

signature, as per the Part Rules.

This constitutes the decision and order of the court.

7/22/2024 DATE SUZANNE J. ADAMS, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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