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

166
CA 11-01107
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


THE ERIE COUNTY SOCIETY FOR THE PREVENTION OF
CRUELTY TO ANIMALS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BETH L. HOSKINS, DEFENDANT-RESPONDENT.


LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (RALPH C. LORIGO OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

THOMAS J. EOANNOU, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Joseph R.
Glownia, J.), entered August 13, 2010. The order, among other things,
directed plaintiff to return a specified number of horses to
defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order that, inter alia,
directed it to return 40 horses to defendant, which were seized
pursuant to a warrant. After receiving complaints that defendant had
failed to provide adequate care for the animals housed on her
property, plaintiff executed a warrant and thereby seized 73 horses
and 51 cats from defendant. The animals were kept in plaintiff’s
custody and, according to the complaint, defendant violated
Agriculture and Markets Law § 353 and was charged by the Erie County
District Attorney with 10 misdemeanor counts of cruelty to animals.
This action was commenced by plaintiff seeking, inter alia,
reimbursement in a minimum amount of $125,000 “for all reasonable
expenses incurred in caring for and sheltering the subject animals
since the date of seizure.” Plaintiff’s contention that Supreme Court
lacked statutory authority under the Agriculture and Markets Law, or
otherwise, to order that seized animals be returned to their owner is
raised for the first time on appeal and thus is not properly before us
(see Ciesinski v Town of Aurora, 202 AD2d 984, 985). In any event,
plaintiff’s contention lacks merit. While plaintiff’s ability to
obtain a warrant to enter private property and seize privately owned
animals is necessarily dependant on statutory authority (see
Agriculture and Markets Law §§ 353, 372), the ability of an owner to
seek the return of the seized property and a court’s inherent
authority to order that such property be returned is founded on
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                                                        CA 11-01107

principles of due process (see Fuentes v Shevin, 407 US 67, 86, reh
denied 409 US 902; see generally Property Clerk of Police Dept. of
City of N.Y. v Harris, 9 NY3d 237, 246). Indeed, the Supreme Court
has expressly stated that due process protection extends to “[a]ny
significant taking of property” (Fuentes, 407 US at 86). We have
considered plaintiff’s remaining contentions and conclude that they
are without merit.




Entered:   January 31, 2012                    Frances E. Cafarell
                                               Clerk of the Court
