§ 123 — Dangerous dogs

§ 123. Dangerous dogs. 1. Any person who witnesses an attack or\nthreatened attack, or in the case of a minor, an adult acting on behalf\nof such minor, may make a complaint of an attack or threatened attack\nupon a person, companion animal as defined in section three hundred\nfifty of this chapter, farm animal as defined in such section three\nhundred fifty, or a domestic animal as defined in subdivision seven of\nsection one hundred eight of this article to a dog control officer or\npolice officer of the appropriate municipality. Such officer shall\nimmediately inform the complainant of his or her right to commence a\nproceeding as provided in subdivision two of this section and, if there\nis reason to believe the dog is a dangerous dog, the officer shall\nforthwith commence such proceeding himself or herself.\n 2. Any person who witnesses an attack or threatened attack, or in the\ncase of a minor, an adult acting on behalf of such minor, may, and any\ndog control officer or police officer as provided in subdivision one of\nthis section shall, make a complaint under oath or affirmation to any\nmunicipal judge or justice of such attack or threatened attack.\nThereupon, the judge or justice shall immediately determine if there is\nprobable cause to believe the dog is a dangerous dog and, if so, shall\nissue an order to any dog control officer, peace officer, acting\npursuant to his or her special duties, or police officer directing such\nofficer to immediately seize such dog and hold the same pending judicial\ndetermination as provided in this section. Whether or not the judge or\njustice finds there is probable cause for such seizure, he or she shall,\nwithin five days and upon written notice of not less than two days to\nthe owner of the dog, hold a hearing on the complaint. The petitioner\nshall have the burden at such hearing to prove the dog is a "dangerous\ndog" by clear and convincing evidence. If satisfied that the dog is a\ndangerous dog, the judge or justice shall then order neutering or\nspaying of the dog, microchipping of the dog and one or more of the\nfollowing as deemed appropriate under the circumstances and as deemed\nnecessary for the protection of the public:\n (a) evaluation of the dog by a certified applied behaviorist, a board\ncertified veterinary behaviorist, or another recognized expert in the\nfield and completion of training or other treatment as deemed\nappropriate by such expert. The owner of the dog shall be responsible\nfor all costs associated with evaluations and training ordered under\nthis section;\n (b) secure, humane confinement of the dog for a period of time and in\na manner deemed appropriate by the court but in all instances in a\nmanner designed to: (1) prevent escape of the dog, (2) protect the\npublic from unauthorized contact with the dog, and (3) to protect the\ndog from the elements pursuant to section three hundred fifty-three-b of\nthis chapter. Such confinement shall not include lengthy periods of\ntying or chaining;\n (c) restraint of the dog on a leash by an adult of at least twenty-one\nyears of age whenever the dog is on public premises;\n (d) muzzling the dog whenever it is on public premises in a manner\nthat will prevent it from biting any person or animal, but that shall\nnot injure the dog or interfere with its vision or respiration; or\n (e) maintenance of a liability insurance policy in an amount\ndetermined by the court, but in no event in excess of one hundred\nthousand dollars for personal injury or death resulting from an attack\nby such dangerous dog.\n 3. Upon a finding that a dog is dangerous, the judge or justice may\norder humane euthanasia or permanent confinement of the dog if one of\nthe following aggravating circumstances is established at the judicial\nhearing held pursuant to subdivision two of this section:\n (a) the dog, without justification, attacked a person causing serious\nphysical injury or death; or\n (b) the dog has a known vicious propensity as evidenced by a previous\nunjustified attack on a person, which caused serious physical injury or\ndeath; or\n (c) the dog, without justification, caused serious physical injury or\ndeath to a companion animal, farm animal or domestic animal, and has, in\nthe past two years, caused unjustified physical injury or death to a\ncompanion or farm animal as evidenced by a "dangerous dog" finding\npursuant to the provisions of this section.\nAn order of humane euthanasia shall not be carried out until expiration\nof the thirty day period provided for in subdivision five of this\nsection for filing a notice of appeal, unless the owner of the dog has\nindicated to the judge in writing, his or her intention to waive his or\nher right to appeal. Upon filing of a notice of appeal, the order shall\nbe automatically stayed pending the outcome of the appeal.\n 4. A dog shall not be declared dangerous if the court determines the\nconduct of the dog (a) was justified because the threat, injury or\ndamage was sustained by a person who at the time was committing a crime\nor offense upon the owner or custodian of the dog or upon the property\nof the owner or custodian of the dog; (b) was justified because the\ninjured, threatened or killed person was tormenting, abusing, assaulting\nor physically threatening the dog or its offspring, or has in the past\ntormented, abused, assaulted or physically threatened the dog or its\noffspring; (c) was justified because the dog was responding to pain or\ninjury, or was protecting itself, its owner, custodian, or a member of\nits household, its kennels or its offspring; or was justified because\nthe injured, threatened or killed companion animal, farm animal or\ndomestic animal was attacking or threatening to attack the dog or its\noffspring. Testimony of a certified applied behaviorist, a board\ncertified veterinary behaviorist, or another recognized expert shall be\nrelevant to the court's determination as to whether the dog's behavior\nwas justified pursuant to the provisions of this subdivision.\n 5. (a) The owner of a dog found to be a "dangerous dog" pursuant to\nthis section may appeal such determination, and/or the court's order\nconcerning disposition of the dog to the court having jurisdiction to\nhear civil appeals in the county where the "dangerous dog" finding was\nmade. The owner shall commence such appeal by filing a notice of appeal\nwith the appropriate court within thirty days of the final order\npursuant to this section. Court rules governing civil appeals in the\nappropriate jurisdiction shall govern the appeal of a determination\nunder this section.\n (b) Upon filing a notice of appeal from an order of humane euthanasia\npursuant to this section, such order shall be automatically stayed\npending final determination of any appeal. In all other circumstances,\nthe owner of the dog may make application to the court to issue a stay\nof disposition pending determination of the appeal.\n 6. The owner of a dog who, through any act or omission, negligently\npermits his or her dog to bite a person, service dog, guide dog or\nhearing dog causing physical injury shall be subject to a civil penalty\nnot to exceed four hundred dollars in addition to any other applicable\npenalties.\n 7. The owner of a dog who, through any act or omission, negligently\npermits his or her dog to bite a person causing serious physical injury\nshall be subject to a civil penalty not to exceed one thousand five\nhundred dollars in addition to any other applicable penalties. Any such\npenalty may be reduced by any amount which is paid as restitution by the\nowner of the dog to the person or persons suffering serious physical\ninjury as compensation for unreimbursed medical expenses, lost earnings\nand other damages resulting from such injury.\n 8. The owner of a dog who, through any act or omission, negligently\npermits his or her dog, which had previously been determined to be\ndangerous pursuant to this article, to bite a person causing serious\nphysical injury, shall be guilty of a misdemeanor punishable by a fine\nof not more than three thousand dollars, or by a period of imprisonment\nnot to exceed ninety days, or by both such fine and imprisonment in\naddition to any other applicable penalties. Any such fine may be reduced\nby any amount which is paid as restitution by the owner of the dog to\nthe person or persons suffering serious physical injury as compensation\nfor unreimbursed medical expenses, lost earnings and other damages\nresulting from such injury.\n 9. If any dog, which had previously been determined by a judge or\njustice to be a dangerous dog, as defined in section one hundred eight\nof this article, shall without justification kill or cause the death of\nany person who is peaceably conducting himself or herself in any place\nwhere he or she may lawfully be, regardless of whether such dog escapes\nwithout fault of the owner, the owner shall be guilty of a class A\nmisdemeanor in addition to any other penalties.\n 10. The owner or lawful custodian of a dangerous dog shall, except in\nthe circumstances enumerated in subdivisions four and eleven of this\nsection, be strictly liable for medical costs resulting from injury\ncaused by such dog to a person, companion animal, farm animal or\ndomestic animal.\n 11. The owner shall not be liable pursuant to subdivision six, seven,\neight, nine or ten of this section if the dog was coming to the aid or\ndefense of a person during the commission or attempted commission of a\nmurder, robbery, burglary, arson, rape in the first degree as defined in\nparagraph (a) or (b) of subdivision one, paragraph (a) or (b) of\nsubdivision two or paragraph (a) or (b) of subdivision three of section\n130.35 of the penal law, rape in the first degree as defined in the\nformer subdivision one of section 130.35 of the penal law, a crime\nformerly defined in subdivision one or two of section 130.50 of the\npenal law or kidnapping within the dwelling or upon the real property of\nthe owner of the dog and the dog injured or killed the person committing\nsuch criminal activity.\n 12. Nothing contained in this section shall limit or abrogate any\nclaim or cause of action any person who is injured by a dog with a\nvicious disposition or a vicious propensity may have under common law or\nby statute. The provisions of this section shall be in addition to such\ncommon law and statutory remedies.\n 13. Nothing contained in this section shall restrict the rights and\npowers derived from the provisions of title four of article twenty-one\nof the public health law relating to rabies and any rule and regulation\nadopted pursuant thereto.\n 14. Persons owning, possessing or harboring dangerous dogs shall\nreport the presence of such dangerous dogs pursuant to section two\nhundred nine-cc of the general municipal law.\n