S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    122
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 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:
   §  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-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02373-01-9

 S. 122                              2
 
 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
 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

 S. 122                              3
 
 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.
   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

 S. 122                              4
 
 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
 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.

 S. 122                              5
 
   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
 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.
   § 2. This act shall take effect immediately.