S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7454

                            I N  S E N A T E

                               May 3, 2016
                               ___________

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:

  Section 1. Section 123 of the agriculture and markets law, as  amended
by  chapter  392  of  the  laws  of 2004, such section as renumbered and
subdivisions 1 and 2 as amended by section 18 of part T of chapter 59 of
the laws of 2010, and subdivisions 7 and 8 as amended by chapter 526  of
the laws of 2005, is amended to read as follows:
  S  123.  Dangerous  dogs.  1.  Any  person  who witnesses an attack or
threatened attack, or in the case of a minor, an adult acting on  behalf
of  such  minor,  may make a complaint of an attack or threatened attack
upon a person, companion animal as  defined  in  section  three  hundred
fifty  of  this  chapter,  farm  animal as defined in such section three
hundred fifty, or a domestic animal as defined in subdivision  seven  of
section  one  hundred  eight of this article to a dog control officer or
police officer of the appropriate municipality. Such officer shall imme-
diately inform the complainant  of  his  or  her  right  to  commence  a
proceeding  as provided in subdivision two of this section and, if there
is reason to believe the dog [is a dangerous dog]  CAUSED  INJURY  TO  A
PERSON,  COMPANION  ANIMAL,  FARM ANIMAL OR DOMESTIC ANIMAL, the officer
shall forthwith commence such proceeding himself or herself.
  2. Any person who witnesses an attack or threatened attack, or in  the
case  of  a minor, an adult acting on behalf of such minor, may, and any
dog control officer or police officer as provided in subdivision one  of
this  section  shall,  make a complaint under oath or affirmation to any
municipal judge or justice of such attack or threatened attack.   There-
upon, the judge or justice shall immediately determine if there is prob-
able  cause  to  believe the dog [is a dangerous dog] CAUSED INJURY TO A
PERSON, COMPANION ANIMAL, FARM ANIMAL OR DOMESTIC  ANIMAL,  and  if  so,
shall  issue  an order to any dog control officer, peace officer, acting
pursuant to his or her special duties, or police officer directing  such

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD13690-01-6

S. 7454                             2

officer to immediately seize such dog and hold the same pending judicial
determination  as  provided in this section. Whether or not the judge or
justice finds there is probable cause for such seizure, he or she shall,
within  five  days  and upon written notice of not less than two days to
the owner of the dog, hold a hearing on the  complaint.  The  petitioner
shall  have the burden at such hearing to prove the dog [is a "dangerous
dog"] CAUSED INJURY TO A PERSON, COMPANION ANIMAL, FARM ANIMAL OR DOMES-
TIC ANIMAL by clear and convincing evidence. If satisfied that  the  dog
[is  a  dangerous dog] CAUSED INJURY TO A PERSON, COMPANION ANIMAL, FARM
ANIMAL OR DOMESTIC ANIMAL, the judge or justice shall then order neuter-
ing or spaying of the dog, microchipping of the dog and one or  more  of
the  following  as  deemed  appropriate  under  the circumstances and as
deemed necessary for the protection of the public:
  (a) evaluation of the dog by a certified applied behaviorist, a  board
certified  veterinary  behaviorist,  or another recognized expert in the
field and completion of training or other treatment as deemed  appropri-
ate  by  such  expert. The owner of the dog shall be responsible for all
costs associated  with  evaluations  and  training  ordered  under  this
section;
  (b)  secure, humane confinement of the dog for a period of time and in
a manner deemed appropriate by the court  but  in  all  instances  in  a
manner  designed  to:  (1)  prevent  escape  of the dog, (2) protect the
public from unauthorized contact with the dog, and (3)  to  protect  the
dog from the elements pursuant to section three hundred fifty-three-b of
this  chapter.  Such  confinement  shall  not include lengthy periods of
tying or chaining;
  (c) restraint of the dog on a leash by an adult of at least twenty-one
years of age whenever the dog is on public premises;
  (d) muzzling the dog whenever it is on public  premises  in  a  manner
that  will  prevent  it from biting any person or animal, but that shall
not injure the dog or interfere with its vision or respiration; or
  (e) maintenance of a liability insurance policy in  an  amount  deter-
mined  by  the  court, but in no event in excess of one hundred thousand
dollars for personal injury or death resulting from an  attack  by  such
dangerous dog.
  3. Upon a finding that a dog [is dangerous] CAUSED INJURY TO A PERSON,
COMPANION  ANIMAL,  FARM ANIMAL OR DOMESTIC ANIMAL, the judge or justice
may order humane euthanasia or permanent confinement of the dog  if  one
of  the  following aggravating circumstances is established at the judi-
cial hearing held pursuant to subdivision two of this section:
  (a) the dog, without justification, attacked a person causing  serious
physical injury or death; or
  (b)  the dog has a known vicious propensity as evidenced by a previous
unjustified attack on a person, which caused serious physical injury  or
death; or
  (c)  the dog, without justification, caused serious physical injury or
death to a companion animal, farm animal or domestic animal, and has, in
the past two years, caused unjustified physical injury  or  death  to  a
companion  or  farm  animal  as evidenced by a ["dangerous dog"] finding
pursuant to the provisions of this section.
An order of humane euthanasia shall not be carried out until  expiration
of  the  thirty  day  period  provided  for  in subdivision five of this
section for filing a notice of appeal, unless the owner of the  dog  has
indicated  to the judge in writing, his or her intention to waive his or
her right to appeal. Upon filing of a notice of appeal, the order  shall
be automatically stayed pending the outcome of the appeal.

S. 7454                             3

  4.  A  dog shall not be [declared dangerous] SUBJECT TO THE PROVISIONS
OF SUBDIVISION THREE OF THIS SECTION if the court determines the conduct
of the dog (a) was justified because the threat, injury  or  damage  was
sustained  by a person who at the time was committing a crime or offense
OF  VIOLENCE upon the owner or custodian of the dog or upon the property
of the owner or custodian of the dog;  (b)  was  justified  because  the
injured, threatened or killed person was tormenting, abusing, assaulting
or  physically  threatening the dog or its offspring, or has in the past
tormented, abused, assaulted or physically threatened  the  dog  or  its
offspring;  (c)  was justified because the dog was responding to pain or
injury, or was protecting itself, its owner, custodian, or a  member  of
its  household,  its  kennels or its offspring; or was justified because
the injured, threatened or  killed  companion  animal,  farm  animal  or
domestic  animal  was  attacking or threatening to attack the dog or its
offspring. Testimony of a certified applied behaviorist, a board  certi-
fied veterinary behaviorist, or another recognized expert shall be rele-
vant  to  the court's determination as to whether the dog's behavior was
justified pursuant to the provisions of this subdivision.
  5. (a) The owner of a dog [found to be a "dangerous dog"  pursuant  to
this  section]  may  appeal  [such]  A determination UNDER THIS SECTION,
and/or the court's order concerning disposition of the dog to the  court
having  jurisdiction  to  hear  civil  appeals  in  the county where the
["dangerous dog"] finding was made. The owner shall commence such appeal
by filing a notice of appeal with the appropriate  court  within  thirty
days  of the final order pursuant to this section. Court rules governing
civil appeals in the appropriate jurisdiction shall govern the appeal of
a determination under this section.
  (b) Upon filing a notice of appeal from an order of humane  euthanasia
pursuant to this section, such order shall be automatically stayed pend-
ing  final  determination of any appeal. In all other circumstances, the
owner of the dog may make application to the court to issue  a  stay  of
disposition pending determination of the appeal.
  6.  The  owner  of a dog who, through any act or omission, negligently
permits his or her dog to bite a person, service dog, guide dog or hear-
ing dog causing physical injury shall be subject to a civil penalty  not
to  exceed  four  hundred  dollars  in  addition to any other applicable
penalties.
  7. The owner of a dog who, through any act  or  omission,  negligently
permits  his or her dog to bite a person causing serious physical injury
shall be subject to a civil penalty not  to  exceed  one  thousand  five
hundred  dollars in addition to any other applicable penalties. Any such
penalty may be reduced by any amount which is paid as restitution by the
owner of the dog to the person or  persons  suffering  serious  physical
injury  as compensation for unreimbursed medical expenses, lost earnings
and other damages resulting from such injury.
  7-A. THE OWNER OF ANY DOG SHALL BE LIABLE FOR ALL INJURIES AND DAMAGES
SUFFERED BY ANY PERSON WHO IS BITTEN BY THE DOG WHILE IN A PUBLIC  PLACE
OR  LAWFULLY  IN A PRIVATE PLACE, INCLUDING THE PROPERTY OF THE OWNER OF
THE DOG, REGARDLESS OF THE FORMER VICIOUSNESS OF THE DOG OR THAT OWNER'S
KNOWLEDGE OF SUCH VICIOUSNESS. A PERSON IS  LAWFULLY  UPON  THE  PRIVATE
PROPERTY OF SUCH OWNER WITHIN THE MEANING OF THIS SUBDIVISION WHEN HE OR
SHE  IS ON SUCH PROPERTY IN THE PERFORMANCE OF ANY DUTY IMPOSED UPON HIM
OR HER BY THE LAWS OF THIS STATE OR BY THE LAWS OR POSTAL REGULATIONS OF
THE UNITED STATES, OR WHEN HE OR SHE IS ON SUCH PROPERTY UPON THE  INVI-
TATION, EXPRESS OR IMPLIED, OF THE OWNER OF THE DOG, THE OWNER OR LESSEE
OF  THE  PROPERTY, OR ANY PERSON AUTHORIZED TO GRANT SUCH PERMISSION. IT

S. 7454                             4

SHALL NOT BE A DEFENSE TO LIABILITY UNDER THIS SECTION THAT  THE  OWNER:
(A) EXERCISED THE UTMOST CARE TO PREVENT THE DOG FROM BITING, OR (B) DID
NOT  HAVE  CUSTODY  OR  CONTROL OF THE DOG AT THE TIME OF THE BITING. IT
SHALL  NOT BE A DEFENSE TO LIABILITY UNDER THIS SECTION THAT THE DOG DID
NOT INTEND TO INJURE THE VICTIM, OR THAT THE DOG'S ACTION  WAS  PLAYFUL,
MISCHIEVOUS, OR OTHERWISE NOT VICIOUS.
  7-B.  EVERY  PERSON  WHO  OWNS,  HARBORS,  KEEPS,  OR  IS IN TEMPORARY
POSSESSION OF A DOG SHALL BE REQUIRED TO PROVIDE IN WRITING THE OFFICIAL
REGISTRATION NUMBER OF THE DOG AND THAT PERSON'S NAME AND  ADDRESS,  AND
THE  NAME  AND ADDRESS OF THE OWNER OF THE DOG IF THAT PERSON IS NOT THE
OWNER, TO ANYONE WHOM THE DOG HAS INJURED OR DAMAGED, OR THE PARENTS  IF
THE VICTIM WAS A MINOR, AT THE TIME OF THE INCIDENT OR AS SOON AS POSSI-
BLE  THEREAFTER,  WHETHER  OR NOT REQUESTED TO PROVIDE SUCH INFORMATION,
AND TO ANYONE WHO REQUESTS SUCH INFORMATION AFTER WITNESSING A VIOLATION
OF ANY LAW INVOLVING THAT DOG.
  7-C. THE OWNER OF ANY DOG SHALL PROVIDE A  COPY  OF  ITS  MOST  RECENT
PROOF  OF  RABIES VACCINATION TO ANYONE WHOM THE DOG HAS INJURED, OR THE
PARENTS OF AN INJURED MINOR, AT THE TIME OF THE INCIDENT OR AS  SOON  AS
POSSIBLE  THEREAFTER,  WHETHER OR NOT REQUESTED TO PROVIDE SUCH INFORMA-
TION. IF THE DOG NEVER RECEIVED SUCH VACCINATION, A WRITTEN STATEMENT TO
THAT EFFECT SHALL BE PROVIDED TO THE PERSON  WHO  WAS  INJURED,  OR  THE
PARENTS OF AN INJURED MINOR.
  8.  The  owner  of a dog who, through any act or omission, negligently
permits his or her dog, which had  previously  been  determined  to  [be
dangerous pursuant to this article] HAVE CAUSED PHYSICAL INJURY, to bite
a person causing serious physical injury, shall be guilty of a misdemea-
nor  punishable by a fine of not more than three thousand dollars, or by
a period of imprisonment not to exceed ninety days, or by both such fine
and imprisonment in addition to any other applicable penalties. Any such
fine may be reduced by any amount which is paid as  restitution  by  the
owner  of  the  dog  to the person or persons suffering serious physical
injury as compensation for unreimbursed medical expenses, lost  earnings
and other damages resulting from such injury.
  9.  If  any  dog,  which  had previously been determined by a judge or
justice to [be a dangerous dog, as defined in section one hundred  eight
of this article] HAVE CAUSED INJURY AS SET FORTH IN SUBDIVISION THREE OF
THIS SECTION, shall without justification kill or cause the death of any
person who is peaceably conducting himself or herself in any place where
he  or she may lawfully be, regardless of whether such dog escapes with-
out fault of the owner, the owner shall be guilty of a class A misdemea-
nor in addition to any other penalties. PENALTIES  AND  LIABILITY  UNDER
THIS  SECTION  SHALL  NOT  APPLY  WHERE THE DOG WAS IN THE CUSTODY OF AN
ANIMAL TRAINER, ANIMAL BEHAVIORIST, GROOMER, VETERINARIAN, OR  AN  AGENT
OR  EMPLOYEE  OF  ANY  OF  THE FOREGOING, FOR THE PURPOSE OF RENDERING A
PROFESSIONAL SERVICE IN EXCHANGE FOR COMPENSATION.
  10. The owner or lawful custodian of a [dangerous] dog WHO shall  HAVE
CAUSED  INJURY AS SET FORTH IN SUBDIVISION THREE OF THIS SECTION, except
in the circumstances enumerated in subdivisions four and eleven of  this
section,  be  strictly  liable  for  medical costs resulting from injury
caused by such dog to a person, companion animal, farm animal or  domes-
tic animal.
  11.  The owner shall not be liable pursuant to subdivision six, seven,
eight, nine or ten of this section if the dog was coming to the  aid  or
defense  of  a person during the commission or attempted commission of a
murder, robbery, burglary, arson, rape in the first degree as defined in
subdivision one or two of section 130.35  of  the  penal  law,  criminal

S. 7454                             5

sexual  act  in the first degree as defined in subdivision one or two of
section 130.50 of the penal law or kidnapping  within  the  dwelling  or
upon  the  real  property of the owner of the dog and the dog injured or
killed the person committing such criminal activity.
  12.  Nothing  contained  in  this  section shall limit or abrogate any
claim or cause of action any person who is  injured  by  a  dog  with  a
vicious disposition or a vicious propensity may have under common law or
by  statute. The provisions of this section shall be in addition to such
common law and statutory remedies.
  13. Nothing contained in this section shall restrict  the  rights  and
powers  derived  from the provisions of title four of article twenty-one
of the public health law relating to rabies and any rule and  regulation
adopted pursuant thereto.
  14.  Persons  owning,  possessing  or  harboring  dangerous dogs shall
report the presence of such  dangerous  dogs  pursuant  to  section  two
hundred nine-cc of the general municipal law.
  15.  THE  RIGHTS AND REMEDIES SET FORTH BY THIS SECTION ARE CUMULATIVE
AND NOT EXCLUSIVE OF ANY OTHER RIGHTS OR REMEDIES THAT MAY  BE AVAILABLE
TO THE INJURED PARTIES, INCLUDING WITHOUT LIMITATION  ACTIONS  BASED  ON
GENERAL NEGLIGENCE AND NEGLIGENCE PER SE.
  S 2. This act shall take effect immediately.