        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

266
CA 14-01289
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


BARBARA HALE GONZALEZ, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

ROYALTON EQUINE VETERINARY SERVICES, P.C.,
JEANNE BEST, DVM, NIAGARA COUNTY SOCIETY FOR THE
PREVENTION OF CRUELTY TO ANIMALS, INC., STACEY
BAILEY AND ROBERT A. WINSLOW,
DEFENDANTS-RESPONDENTS.


MUSCATO, DIMILLO & VONA, LLP, LOCKPORT (BRIAN J. HUTCHISON OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

JONES, HOGAN & BROOKS, LLP, LOCKPORT (MORGAN L. JONES, JR., OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS ROYALTON EQUINE VETERINARY
SERVICES, P.C. AND JEANNE BEST, DVM.

WILLIAM C. MORAN & ASSOCIATES, P.C., WILLIAMSVILLE (WILLIAM JAMES
HARDY OF COUNSEL), FOR DEFENDANT-RESPONDENT NIAGARA COUNTY SOCIETY FOR
THE PREVENTION OF CRUELTY TO ANIMALS, INC.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (ROBERT A. CRAWFORD, JR., OF
COUNSEL), FOR DEFENDANT-RESPONDENT STACEY BAILEY.

HISCOCK & BARCLAY, LLP, ALBANY (JONATHAN H. BARD OF COUNSEL), FOR
DEFENDANT-RESPONDENT ROBERT A. WINSLOW.


     Appeal from an order of the Niagara County Court (Sara S. Farkas,
J.), entered October 2, 2013. The order reversed an order of the
Lockport City Court.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by reinstating the order of Lockport
City Court to the extent that it granted that part of plaintiff’s
motion seeking dismissal of the counterclaim asserted by defendant
Stacey Bailey pursuant to Lien Law § 183, and as modified the order is
affirmed without costs.

     Memorandum: In 2009, defendant Jeanne Best, DVM, allegedly
observed deplorable conditions in plaintiff’s barn and contacted the
State Police, who subsequently conducted a search of plaintiff’s
premises and removed a horse and three dogs therefrom with the
assistance of defendant Niagara County Society for the Prevention of
Cruelty to Animals, Inc. (SPCA). Best fostered one of the dogs, which
                                 -2-                           266
                                                         CA 14-01289

thereafter died, and subsequently adopted the horse. Defendants
Stacey Bailey and Robert A. Winslow each fostered, then subsequently
adopted, another dog. Plaintiff commenced an action in City Court
for, inter alia, replevin, and several defendants asserted
counterclaims based on Lien Law § 183. City Court granted plaintiff’s
motion for, inter alia, partial summary judgment on her cause of
action for replevin, ordered the return of the horse and the two
living dogs, and dismissed all counterclaims. On appeal, County Court
reversed City Court’s order, finding triable issues of fact with
respect to the cause of action for replevin and reinstating the
counterclaims based on Lien Law § 183. Plaintiff contends on appeal
to this Court that she was entitled to summary judgment dismissing
those counterclaims, as well as summary judgment on her replevin cause
of action and the return of the seized animals.

     Addressing first Lien Law § 183, we note at the outset that
defendants Royalton Equine Veterinary Services, P.C., and Best have
abandoned their counterclaims based on that statute. With respect to
Bailey’s counterclaim based on section 183, we agree with plaintiff
that County Court erred in determining that City Court improperly
dismissed that counterclaim, and we therefore modify the order
accordingly. Plaintiff established the inapplicability of Lien Law §
183 inasmuch as plaintiff did not have an agreement with Bailey for
services rendered prior to the seizure of the animals (see id.), and
Bailey failed to raise a triable issue of fact in opposition (see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

     Plaintiff contends that the SPCA was required to bring a
forfeiture action to divest her of ownership of the seized animals,
and that its failure to do so renders her their rightful owner and
entitles her to summary judgment on the cause of action for replevin.
We reject that contention. The animals at issue were seized pursuant
to a warrant because plaintiff was keeping them in unhealthful or
unsanitary surroundings and was not properly caring for them (see
Agriculture and Markets Law § 373 [2]). At that point, plaintiff had
five days in which to redeem the animals before the SPCA was
authorized to make the animals available for adoption (see § 374 [2];
Montgomery County Socy. for Prevention of Cruelty to Animals v
Bennett-Blue, 255 AD2d 705, 706). Thus, contrary to plaintiff’s
contention, it was not necessary for the SPCA to bring a forfeiture
action. Rather, it was plaintiff’s burden on her motion to establish
as a matter of law that she either redeemed the animals within the
statutory redemption period or that she did not abandon them. She
failed to meet that burden, and she therefore failed to establish as a
matter of law that she was lawfully entitled to possess the animals or
that defendants had unlawfully withheld them from her (see §§ 373 [2];
374 [2], [6]; see also Khoury v Khoury, 78 AD3d 903, 904; see
generally Zuckerman v City of New York, 49 NY2d 557, 562).



Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
