Feger v. Warwick Animal Shelter

OPINION OF THE COURT

Leventhal, J.

The defendants Warwick Animal Shelter and Thomas Loughlan (hereinafter the defendants) moved, inter alia, for a protective order to prevent disclosure of the identities of the donor and adoptive owner of a cat sought by the plaintiff. The issue raised on this appeal is whether the Supreme Court properly exercised its discretion in granting that branch of the defendants’ motion.

The plaintiff alleges that her cat “Kisses,” a valuable purebred white Persian, was taken from her home in August of 2002 by an undisclosed individual. She claims that 10 days after the cat was stolen, she discovered a picture on the Warwick Animal Shelter’s Web site of a cat named “Lucy,” which she alleges was her cat “Kisses.” The plaintiff contacted the shelter the following day and was informed that “Lucy” had already been offered for adoption. Pursuant to its privacy policy, the shelter refused to divulge the identity of the donor or the adoptive owner. The shelter claims that “Lucy” was not the same cat as “Kisses” and had been brought to the shelter by an individual who could no longer keep a cat because of difficulties with a landlord. In an attempt to accommodate the plaintiff, the shelter had the adoptive owner provide it with a photo of “Lucy” and had the cat examined by a veterinarian. The defendants contend that “Lucy” was found not to have several of the defining physical characteristics listed by the plaintiff in a description of “Kisses.”

The plaintiff commenced this action against the shelter and one of its employees. The complaint alleged seven causes of action that, inter alia, sought damages in the sum of $86,000 (a total representing the value of the cat and lost litters) and the return of the cat. The plaintiff claims that the shelter was negligent and violated local and federal laws by spaying the cat and allowing the cat to be adopted. The plaintiff alleged that the cat was taken and brought to the shelter by an employee of the shelter, by an employee of a service provider of the shelter, or by an employee of a Warwick, New York law firm who received it from an employee at an affiliated law firm located near the plaintiffs home in New Jersey. The defendants took the position that no laws were broken, that “Lucy” was not “Kisses,” and that the plaintiff was not entitled to the identity of the donor or the party that adopted the cat.

The defendants moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them and for a protective order against the plaintiffs discovery demand which sought the identities of the donor and adoptive owner. The plaintiff cross-moved for summary judgment. In an order dated March 2, 2005, the Supreme Court denied the plaintiffs cross motion and granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them. The Supreme Court did not rule on that branch of the motion which was for the protective order, as the issue was academic.

The plaintiff appealed and this Court reinstated some of the causes of action (see Feger v Warwick Animal Shelter, 29 AD3d 515 [2006]). Thereafter, in the order appealed from, the Supreme Court granted that branch of the defendants’ motion which was for a protective order to prevent disclosure of the identities of the donor and adoptive owner of the cat. We modify.

While CPLR 3101 (a) requires “full disclosure of all matter material and necessary in the prosecution or defense of an action,” CPLR 3103 (a) authorizes the court to “make a protective order denying, limiting, conditioning or regulating the use of any disclosure device.” In making this determination as to whether disclosure is warranted, the court employs a test of “usefulness and reason” (Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 70 [1992]), balancing the importance to the plaintiffs claim of the information sought versus the consequences of disclosure. The trial court possesses broad discretion to deny demands that are unduly burdensome or that seek irrelevant or improper information (see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d at .70). It is well established that the “ ‘supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court and, absent an improvident exercise of that discretion, its determination will not be disturbed’ ” (Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007], quoting Mattocks v White Motor Corp., 258 AD2d 628, 629 [1999]).

Here, the Supreme Court providently exercised its discretion in granting a protective order as to the identity of the adoptive owner. The record fails to demonstrate that the identity of the adoptive owner was material and necessary to the plaintiffs claim. Additionally, public policy considerations support the determination to deny disclosure under these circumstances.

The trial court held that “as a matter of public policy the names of adoptive pet owners should be kept confidential in order to foster the adoption process.” We agree that allowing for disclosure could lead to the collapse of what the Supreme Court called the “animal adoption infrastructure.” It is evident that if the identity of adoptive pet owners were subject to discovery under the circumstances here, it is likely that others would be less inclined to adopt because of concerns that they could be subjected to harassment or intimidation by prior putative owners. Absent an adoption alternative, animals undoubtedly will be destroyed. The protection of the identities of the adoptive pet owners involved in the animal adoption process promotes the placement of animals in homes and prevents the needless euthanizing of otherwise healthy animals. Other states have made determinations to deny disclosure on similar policy grounds (see generally Johnston v Atlanta Humane Socy., 173 Ga App 416, 326 SE2d 585 [1985]; Lamare v North Country Animal League, 170 Vt 115, 743 A2d 598 [1999]).

Companion animals are a special category of property and are afforded many protections, under the law (see generally Morgan v Kroupa, 167 Vt 99, 702 A2d 630 [1997] [where the court recognized the unique status of domestic pets in declining to apply the available lost property statutes]; Bueckner v Hamel, 886 SW 2d 368, 377 [Tex 1994, Andell, J., concurring]). This State has a longstanding history of protecting animals. In recent years these laws have been expanded and strengthened. In 1866, New York was the first state to charter the American Society for the Prevention of Cruelty to Animals. In 1867, New York passed a law outlining what constituted animal cruelty and provided for penalties for those violating the law. This law, inter alia, prevented overdriving and overloading animals, dog fighting, cock fighting, impounding animals without providing sufficient food and water, and abandoning animals (L 1867, ch 375). The current cruelty laws in New York follow a similar framework but go further. For example; the current laws now include prohibitions on leaving certain animals outdoors without proper shelter and clipping or cutting the ears of dogs without anesthesia, and provide minimum standards of care that pet dealers must provide animals in their custody (see Agriculture and Markets Law §§ 353-b, 356, 365, 400-407).

Additionally, under Not-For-Profit Corporation Law § 1403, the establishment of societies for the prevention of cruelty to children is contained in the same subdivision as the creation of societies for the prevention of cruelty to animals. The Legislature certainly does not equate children with animals. Yet the Legislature’s formatting of this statute in such a manner demonstrates society’s distaste for cruelty to animals (see N-PCL 1403).

The reach of our laws has been extended to animals in areas which were once reserved only for people. For example, the law now recognizes the creation of trusts for the care of designated domestic or pet animals upon the death or incapacitation of their owner (see EPTL 7-8.1). Companion animals may now be included as protected parties when orders of protection are issued in domestic disputes (see Family Ct Act § 842). Furthermore, the courts have recognized the “cherished status” accorded to pets in our society in awarding possession of a cat in a custody dispute based in large part on what was in the best interest of the animal (Raymond v Lachmann, 264 AD2d 340, 341 [1999]).

These laws indicate that companion animals are treated differently from other forms of property. Recognizing companion animals as a special category of property is consistent with the laws of the State and the underlying policy inherent in these laws to protect the welfare of animals. It would be contrary to this principle to cause the needless euthanasia of animals by discouraging animal adoptions, which would likely be the case if a protective order were to be denied in similar circumstances.

As to the identity of the donor of the cat, since the plaintiff alleges the shelter was aware that the cat was wrongfully taken from its owner, a reasonable resolution would be to allow the plaintiff to ascertain if the donor was, as alleged, an employee of the shelter, an employee of a service provider of the shelter, or an individual employed by the law firm of Stage, Nathans & Ziobro in Warwick, New York. If the donor was such an individual as alleged, then his or her identity should be disclosed. If the donor was not associated with the shelter or the law firm, disclosure of the identity of the donor would not be warranted.

Therefore, the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the motion of the defendants Warwick Animal Shelter and Thomas Loughlan which was for a protective order to prevent disclosure of the identity of the donor of the cat and substituting therefor a provision granting that branch of the motion only if the donor was not an employee of the defendant Warwick Animal Shelter, an employee of a service provider of Warwick Animal Shelter, or an individual employed by the law firm of Stage, Nathans & Ziobro in Warwick, New York, and otherwise denying that branch of the motion; as so modified, the order is affirmed.