Expert Lawyer Gives Legal Pet Advice

Do I have a case against the pet store that sold me a sick dog?

I bought a maltese puppy in late June from Shake-A-Paw. From the moment I bought her until now my puppy has been in and out of vets due to her being sick. She has been sick from the first day I got her. Ever since then, we have not rested with the vet visits or the medical bills, and she has not had a single moment of health. She has been completely miserable. We don't know what more we can do. We've contacted the pet store in the beginning and they basically disregarded it. At this point the bills keep accumulating and she isn't getting any better. I've done research and have come across reviews around the time I purchased the puppy and other owners have also had the same situation where from the first day they got the puppy, they're sick. It breaks my heart to see my puppy like this and nothing getting resolved. Do I have a case? Or can you advise me of what to do?

I am so sorry to hear that your dog is still sick. New York’s pet sale law, among other things, provides that one of the remedies for persons who purchase a sick dog or cat from a pet dealer is reimbursement for veterinary costs to attempt to cure the animal, in an amount not to exceed the purchase price of the animal. These rights are subject to the consumer getting a certification from a veterinarian within 14 business days following the purchase of the dog or cat that the animal was unfit for sale and providing this certification to the pet dealer within 3 business days, following receipt by the consumer of the certification.

One may also have rights to reimbursement (and not necessarily limited to the amount or subject to the same time constraints stated in the pet sale law) under the Uniform Commercial Code, which pertains to the sale of goods (including animals) by merchants (persons normally engaged in the business) when the goods purchased were unmerchantable (basically unfit for sale). Consumers who cannot reach an acceptable settlement with the pet dealer may choose to sue the pet dealer. In New York, one can sue in Small Claims Court for up to $5000. The process in Small Claims Court is user friendly for individuals not represented by attorneys. If the amount of the lawsuit exceeds $5000, the case needs to be initiated in a different court.

Also worth noting is that about three years ago, former Attorney General Andrew Cuomo took action against a Long Island pet store for selling sick animals. According to the Attorney General’s press release, the pet store had to pay $35,000 in restitution to known consumers who purchased animals that were deceptively sold, plus $20,000 in penalties, fees and costs to the state.

See www.ag.ny.gov where you can get information on how to file a complaint with the Attorney General’s Office and www.ag.ny.gov/consumer-frauds/pet-lemon-law for more information about NY’s pet sale law.

Can I be evicted for having a kitten?

I did not know my lease had a no-pet clause; I have had a kitten for four months. The rental agent has called me twice about my kitten. Can I be evicted for having a kitten?

I answered a very similar question from New York before — here is that answer again: New York City and Westchester County have what has been termed “three-month laws” which basically provide that if a tenant has openly kept a common household pet in a multiple dwelling for three months or more with the knowledge of the landlord or landlord’s agent and the landlord has not commenced a legal proceeding to enforce the no-pet clause within that three month period, the no-pet clause is waived for those particular pets. People in public housing have additional rights as do people with physical or mental disabilities. Even outside of New York City and Westchester County, tenants have won cases based on language in the lease, print size of the lease and various other factors. I suggest you consult with a landlord/tenant attorney in your area.

Can I take legal action if my neighbor's dog impregnated my dog?

I have a problem: My neighbor's dogs kept dropping the board fence down. They were doing that for a month. I kept asking them to please watch out because my two dogs are female dogs in heat and their dogs are males. Now I think one of the dogs is pregnant. If any of them are, can I take some legal action to pay for any vet expenses?

The issue is not whether you can sue, but if you choose to sue whether a court will award you anything. Consider that a court could find that you should have better secured your fence so that your neighbors’ dogs could not gain entry. In other words, a court could find that you were negligent in leaving your unspayed dogs unsupervised in your yard when you knew that your neighbors have male dogs and that your fence was not sturdy enough to keep out other animals. It is also possible a court would find that your neighbors did not properly supervise their animals and should bear some responsibility. I suggest that you get your dogs spayed and fix your fence as soon as possible.

How do courts weigh the factors of ownership?

My ex and I recently split, and we have a cat together. We used to live together, but two years ago, I started law school and couldn't have cats in my school dorm, so the cat has been living with him. Now he refuses to let me even see her, and he says I have no rights to her whatsoever.

I've read your past answers, and one factor is whether the pet is a gift. When we got her, we both understood she was meant for me, so I believe she was a gift, even though he paid for her. Now he's contesting this. If I can show she was meant to be a gift, can he take her back now that it appears the circumstances have changed showing more of his ownership? Especially if I never gave up ownership?

Secondly, he argues that he was the primary caretaker. What does that mean? If we divided up the chores so that he changes the litter or fills her food, does that mean he is the primary caretaker even though it was just he was willing to do it? Also, I paid for her vet bills. Are the courts more willing to weigh financial support over being the caretaker or vice versa?

Thirdly, I live in NY and he lives in MA. Would it be better to bring an action in NY or MA?

Lastly, do the courts ever factor in anything like good faith efforts to settle the matter amicably? I have been begging him to just discuss her situation with me so we can work something out, and he has simply said it's his decision and I have no rights. Can I try mediation or arbitration first, even when he is so unwilling?

When there is no written agreement regarding who “owns” an animal or who gets to keep an animal when and if people split up, the courts must weigh the evidence and make a determination. Contesting individuals usually have a different recollection of the “facts,” making the court’s work all the more difficult.

A couple of New York pet custody cases are worth noting. In Raymond v. Lachmann, the court considered the best interests of the cat. The court stated, “Cognizant of the cherished status accorded to pets in our society, the strong emotions engendered by disputes of this nature, and the limited ability of the courts to resolve them satisfactorily ... we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.” Clearly, the court considered the cat’s best interests and decided it was best to leave the cat where he had been living for four years. However, in LeConte v. Lee, plaintiff sought the return of Bubkas, a Maltese, from his ex-girlfriend (the defendant) who refused to surrender Bubkas after pet sitting for the dog. The plaintiff had originally acquired Bubkas from his parents during the time the plaintiff and defendant were residing together. While residing together, the plaintiff and defendant shared care and custody of the dog.

Plaintiff admitted that when he and defendant separated, the dog stayed with the defendant while the plaintiff sought a home for himself and the dog. Defendant argued that plaintiff relinquished control of the dog to her since the defendant was the primary caregiver for the dog and the plaintiff left the dog with her when the relationship ended. The court held that the plaintiff had superior rights and was entitled to the return of Bubkas. The court distinguished this case from the Lachmann case citing the limited amount of time the defendant had sole possession of Bubkas and the young age of the dog. There are a growing number of pet custody cases, some considering the best interests of the animals, such as the Virginia case, Zovko v. Gregory, where the court awarded a cat, Grady, to the non-owner roommate, essentially finding that the cat’s well-being took precedence over property rights. Generally, however, courts stick to property rights in evaluating pet custody cases, but as more and more judges are recognizing that animals have personal interests that ought to be protected, we are likely (hopefully) to see more decisions taking the animals’ best interests into account. However, one should not count on that happening in any particular case.

Good faith efforts to settle would not generally be a factor in these cases. One cannot force another person into mediation and without a written agreement requiring arbitration, I doubt that route would work, either.

Can my old neighbor obtain papers for my dog they are temporarily watching?

My husband and I had to move unexpectedly. Our neighbor agreed verbally to keep our dog until we were settled where we could have him. Now his neighbor has him and is saying they're obtaining papers on him. Can they do this without our consent?