New York Dog Bite Law
AGRICULTURE AND MARKETS LAW
ARTICLE 7. LICENSING, IDENTIFICATION AND CONTROL OF DOGS
NY CLS Agr & M § 121 (2003)
§ 121. Dangerous dogs
1. If any dog shall attack any person who is peaceably conducting himself in any place where he may lawfully be, such person or any other person witnessing the attack may destroy such dog while so attacking or while being pursued thereafter, and no liability in damages or otherwise shall be incurred on account of such destruction.
2. (a) If any dog shall attack, chase or worry any domestic animal, as defined in section one hundred eight of this article, while such animal is in any place where it may lawfully be, the owner or caretaker of such domestic animal, or any other person witnessing such attack may, for the purpose of preventing the killing or injury of such domestic animal, destroy such dog while so attacking, chasing, worrying or while being pursued thereafter, and no liability in damages or otherwise shall be incurred on account of such destruction.
(b) (Added, L 2000) If any dog shall attack and injure any service dog, guide dog or hearing dog, any person witnessing the attack may for the purpose of preventing the killing or injury of such service dog, guide dog or hearing dog, destroy such attacking dog and no liability in damages or otherwise shall be incurred on account of such destruction.
3. Any person may make a complaint of an attack upon a person or of an attack, chasing or worrying of a domestic animal to a dog control officer of the appropriate municipality. Such officer shall immediately inform the complainant of his right to commence a proceeding as provided in subdivision four of this section and, if there is reason to believe the dog is a dangerous dog, the officer shall forthwith commence such proceeding himself.
4. Any person may, and any dog control officer as provided in subdivision three hereof shall, make a complaint under oath or affirmation to any municipal judge or justice of such attack, chasing or worrying. Thereupon, the judge or justice shall immediately determine if there is probable cause to believe the dog is a dangerous dog and, if so, shall issue an order to any dog control officer, peace officer, acting pursuant to his special duties, or police officer directing such officer to immediately seize such dog and hold the same pending judicial determination as herein provided. Whether or not the judge or justice finds there is probable cause for such seizure, he 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. If satisfied that the dog is a dangerous dog, the judge or justice shall then order [fig 1] any dog control officer, peace officer, acting pursuant to his special duties, or police officer to [fig 2] cause the dog to be euthanized immediately, or shall order the owner to confine securely such dog permanently [fig 3] except as provided in subdivision six of this section. The owner shall confine the dog indoors or in an enclosed and locked pen or structure as provided for in the order. Such pen or enclosure shall have a secure top and sides and shall be designed to prevent an unauthorized entry of a person, the escape of the dog and to provide protection from the elements. If the owner fails [fig 4] to confine the dog as required by such order, any dog control officer, peace officer, acting pursuant to his special duties, or police officer shall destroy such dog on or off the premises of the owner.
5. (Added, L 1997) A dog shall not be declared dangerous 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 upon the owner or custodian or upon the property of the owner or custodian of the dog, or (b) was justified because the injured person was tormenting, abusing or assaulting the dog or has in the past tormented, abused or assaulted the dog; or (c) was responding to pain or injury, or was protecting itself, its kennels or its offspring.
6. (Added, L 1997) (a) In addition to an order of confinement, issued pursuant to subdivision four of this section, the judge or justice may order the owner or custodian to securely chain and muzzle the dog and require that the dog be under physical restraint of a responsible person when (i) confined in the presence of persons other than the owner or custodian, and (ii) outside such enclosure for brief periods only when and for the period necessary to urinate, defecate or receive medical treatment.
(b) The muzzle described in paragraph (a) of this subdivision shall be made in a manner that will not cause injury to the dog or interfere with its vision or respiration but shall prevent it from biting any person or animal.
7. 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 hearing dog causing physical injury shall be subject to a civil penalty not to exceed four hundred dollars in addition to any other applicable penalties.
8. (Added, L 1997) 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 eight hundred dollars in addition to any other applicable penalties.
9. (Added, L 1997) 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, to bite a person causing serious physical injury, shall be guilty of a misdemeanor punishable by a fine of not more than one 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.
10. (Added, L 1997) 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, 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 without fault of the owner, the owner shall be guilty of a class A misdemeanor in addition to any other penalties.
11. (Added, L 1997) The owner shall not be liable pursuant to subdivision 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, sodomy 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. (Added, L 1997) Nothing contained herein 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 herein 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.
HISTORY: Add, L 1978, ch 220, § 2, eff Jan 1, 1980.
Former § 121, add, L 1929, ch 173, § 2, with substance transferred from § 122, amd, L 1970, chs 928, 1002, repealed, L 1978, ch 220, § 1, eff Jan 1, 1980.
Prior § 121, add, L 1922, ch 48, eff Apr 1, 1922, repealed, L 1929, ch 173, § 1, eff June 1, 1929.
See 1978 note under Article heading.
Amd, L 1997, ch 530, § 4, eff Sept 1, 1998.
Sub 2, par (a), formerly entire sub 2, so designated sub 2, par (a), L 2000, ch 263, § 3, eff Nov 1, 2000.
Sub 2, par (b), add, L 2000, ch 263, § 3, eff Nov 1, 2000.
Sub 4, amd, L 1980, ch 843, § 114, eff Sept 1, 1980, L 1997, ch 530, § 4, eff Sept 1, 1998.
The 1997 act deleted at fig 1 "the owner or", at fig 2 "destroy the dog", at fig 3 "or at such time as otherwise specified in the order" and at fig 4 "to destroy or"
Sub 5, add, L 1997, ch 530, § 4, eff Sept 1, 1998.
Former sub 5, redesignated sub 13, L 1997, ch 530, § 4, eff Sept 1, 1998.
Sub 6, add, L 1997, ch 530, § 4, eff Sept 1, 1998.
Sub 7, add, L 1997, ch 530, § 4, eff Sept 1, 1998; amd, L 2000, ch 263, § 3, eff Nov 1, 2000.
Sub 8, add, L 1997, ch 530, § 4, eff Sept 1, 1998.
Sub 9, add, L 1997, ch 530, § 4, eff Sept 1, 1998.
Sub 10, add, L 1997, ch 530, § 4, eff Sept 1, 1998.
Sub 11, add, L 1997, ch 530, § 4, eff Sept 1, 1998.
Sub 12, add, L 1997, ch 530, § 4, eff Sept 1, 1998.
Sub 13, formerly sub 5, so designated sub 13, L 1997, ch 530, § 4, eff Sept 1, 1998.
NOTES:
CROSS REFERENCES:
This section referred to in § § 109, 119
Control of acute communicable diseases, CLS Pub Health Law Art 21 § § 2100 et seq
Rabies, CLS Pub Health Law Art 21, Title 4, § § 2140 et seq
RESEARCH REFERENCES AND PRACTICE AIDS:
3 NY Jur 2d, Animals § § 54, 135, 136
CAUSES OF ACTION:
Cause of Action Against Owner or Keeper of Domestic Animal to Recover for Personal Injuries Caused by Animal, 14 COA 685
CASE NOTES
The provisions of Agr & M Law § 121, providing for the control and destruction of dangerous dogs, does not require that an animal have actually bitten its victim in order to be subject to controlling sanctions, and a dog that while running loose on two occasions attacked but did not bite a 16-year old boy would be ordered permanently confined. Brooks v Hemingway (1980) 107 Misc 2d 190, 433 NYS2d 551.
Court erred in ordering destruction of 2 of defendant's dogs where only one dog actually engaged in any aggressive behavior, second dog's aggression was directed solely at another dog, and neither dog attacked any person or had any history of violent behavior toward human beings; under CLS Agr & M § 108, dog at which aggression was directed was not considered "domestic animal" for purposes of CLS Agr & M § 121.People v Noga (1996, Sup App T) 168 Misc 2d 131, 645 NYS2d 268.
A dog control officer does not have the status or powers of a peace officer. A peace officer listed in section 2.10 of the Criminal Procedure Law and having the duty to enforce dog control, may exercise his peace officer powers to enforce the provisions of Article 7 of the Agriculture and Markets Law. 1981 Op Atty Gen April 30 (Informal).
A town constable may provide dog control services under Article 7 of the Agriculture and Markets Law for his own town and by municipal contract for other towns. As peace officers, town constables must be trained in accordance with the provisions of section 2.30 of the Criminal Procedure Law. 1982 Op Atty Gen May 27 (informal).
A county may enact a local law regulating pit bulls which would require the owners of all pit bulls to register the dogs with an agency of county government, maintain liability insurance, muzzle the dogs in all public places, and post the property where the dog is located with a notice of "Dangerous Dog". 1991 Ops Atty Gen I 91-75.
State law has preempted the field of dog control. Local regulation of certain subjects is specifically authorized by Article 7 of the Agriculture and Markets Law. Ops Atty Gen 83-F12.
Fines imposed by town justice court for criminal offenses and speeding violations occurring within village are property of town; however, fines for violations of dog control legislation occurring within village which has dog control program are paid to village. 1987 Op St Compt No. 87-86.
CASE NOTES UNDER FORMER § 116
Where defendant tried unsuccessfully to chase away a dog that was killing fowls on his premises and thereupon shot the dog while it was actually in the act of killing his fowls, he was within his rights at common law in protecting his property upon his own premises and, moreover, was exempt from liability under § 107 and this section. Mattice v L'Amereaux (1951) 279 AD 683, 108 NYS2d 51.
Although no appeal lies from an order issued in a proceeding, this is not counter to due process of law, for statute provides for a hearing before such an order is made. Re Foote (1927) 129 Misc 2, 221 NYS 302.
There can be no appeal from a determination in a justice court. Re Foote (1927) 129 Misc 2, 221 NYS 302.
A dog or cat is not a domestic animal within the meaning of this section. Vail v Terry (1947) 190 Misc 536, 75 NYS2d 543.
One cannot be convicted of harboring a vicious dog under this section in the absence of a showing that the dog in question attacked either a person or a domestic animal as defined by § 107. Vail v Terry (1947) 190 Misc 536, 75 NYS2d 543.
There is no basis for imposing a penalty on the owner of a dangerous dog under this section. De Mers v Nocks (1966) 49 Misc 2d 667, 268 NYS2d 195.
A dog which had on several occasions entered complainant's property and approached her with growls and bared teeth constituted a dangerous dog within the meaning of this section, notwithstanding that the dog had never bitten complainant. Stating that the words "attack upon a person" are the standard to be used in determining whether or not a dog is dangerous, the court held that the term "attack" was intended to mean overt actions by a dog which might cause reasonable apprehension of harm or injury to a person, together with apparent ability in the dog to inflict such harm. People ex rel. Laborie v Habes (1967) 52 Misc 2d 768, 277 NYS2d 70.
Dogs, which attacked a young man who was peaceably conducting himself in a place where he was lawfully entitled to be, and which did not engage in a mere playful snap or accidental, spontaneous biting, but a prolonged, vicious and utterly unprovoked series of attacks were "dangerous" within the Agriculture and Markets Law, and where dogs which were captured by police were not only identified as same dogs who attacked young man, but were identified as belonging to respondent, order was entered requiring respondent for a period of 18 months, to securely confine dogs by means of a chain leash to a fenced enclosure on his property, upon default of which, dogs were to be dealt with in accordance with the law and without need of further process of court. Re Fugazy (1974) 82 Misc 2d 135, 368 NYS2d 652.
In proceeding pursuant to Agriculture and Markets Law to determine whether two dogs alleged to be owned by respondent were dangerous dogs, court took judicial notice of its own records indicating that respondent had 38 convictions for violations of leash law ordinances. Re Fugazy (1974) 82 Misc 2d 135, 368 NYS2d 652.
Standard of proof, in case in which petitioner seeks an order requiring the killing or confinement of a dangerous dog, is proof by a fair preponderance of credible evidence rather than proof beyond a reasonable doubt. Giandalone v Zepieri (1976) 86 Misc 2d 79, 381 NYS2d 621.
Dog, which broke away from its attendant, ran onto petitioner's premises and, without provocation, bit petitioner on his elbow and hand and which, without provocation, chased another person to front door of house on such premises, was a "dangerous dog" within statute providing that "If satisfied . . . that the dog is a dangerous dog, such justice or magistrate shall order the owner . . . to kill the dog immediately; or may order the owner securely to confine such dog." Giandalone v Zepieri (1976) 86 Misc 2d 79, 381 NYS2d 621.
Order for destruction of private property should recite full compliance with requirements of statute. 1943 Op Atty Gen Jan. 2.
A city may not enact an ordinance providing that any person who is disturbed by the howling of a dog may destroy such dog after once notifying the owner to cause a discontinuance of the howling. 1955 Op Atty Gen 135 (informal).
Proposed village ordinance may not provide for restraint of dogs running at large or for summary destruction of same in a manner inconsistent with provisions of Art 7 of the Agriculture and Markets Law. 1955 Op Atty Gen 193 (informal).
Fees in a proceeding in a justice court brought pursuant to this section for the confining of a dog charged with an attack on a human being must be collected in advance from the party requesting the particular service. The prevailing party may include fees paid by him in his bill of costs. 1947 Op St Compt 335.
Where a town constable is called by a county dog warden to destroy a dog that is molesting a flock of chickens, the constable is not entitled to a fee from the town. 1956 Op St Compt 340.
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