At the nonjury trial of this replevin action on April 3, 2023, plaintiff presented sworn testimony in support of her action to recover a dog, Princess, from defendant and in defense of defendant’s counterclaim. Plaintiff called one witness, K.R., who presented sworn testimony, and plaintiff submitted nine documents that were admitted in evidence as plaintiff’s exhibits 1 through 9, consisting of a receipt without a monetary amount, veterinary invoices, and text messages. Defendant presented sworn testimony in her defense and in support of her counterclaim for $775.48 for reimbursement of expenses and called two witnesses, Angela McLoyd Lashley and Tanisha Robinson, who presented sworn testimony. Defendant also submitted 12 documents that were admitted in evidence as defendant’s exhibits A through L, consisting mostly of photographs, text messages, and receipts. Prior to the start of the trial the court conducted a swearability hearing to determine whether K.R., plaintiff’s six-year-old daughter, was competent to give sworn testimony. “There is no precise age at which an infant is competent to testify under oath. The test is always an individual one” (Carrasquillo v. City of New York, 22 Misc 3d 171, 175 [Sup Ct, Kings County 2008]; see also People v. Fuller, 50 NY2d 628, 636 [1980]). Although the CPLR is silent on this issue, a witness who is less than nine years old is presumed incompetent to testify under oath in a criminal proceeding “unless the court is satisfied that he or she understands the nature of an oath” (CPL 60.20 [2]). In this case, “[t]he child’s responses to the court’s questions at a hearing established that she sufficiently understood the difference between truth and falsity, the significance of a promise to tell the truth, and the wrongfulness and consequences of lying” (People v. Reyes, 143 AD3d 414, 414 [1st Dept 2016]; see also Taylor v. Family Dollar Stores of NY, Inc., 63 Misc 3d 1230[A], 2019 NY Slip Op 50797[U], *6 n 3 [Civ Ct, Bronx County 2019]). Thus, K.R. was permitted to testify under oath. Plaintiff testified that she originally gave Princess, which is her daughter’s dog, to defendant in August 2020 so that defendant could train Princess since defendant has two dogs of her own. Plaintiff further testified that defendant, who was attending school in Buffalo, New York, was supposed to return Princess to her after three months, which would have been around Thanksgiving 2020. Plaintiff further testified that defendant later demanded reimbursement for $350.00 that defendant had spent on veterinary treatment and vaccines for Princess before defendant would return the dog to her. Plaintiff further testified that, although Princess was one month past due for her vaccines, she specifically advised defendant not to get the dog any vaccines because she was going to get them for Princess when the dog was returned to her. Plaintiff further testified that at one point she went to defendant’s house in New York, New York, with her brother and boyfriend to pay defendant the money she owed her because she understood that defendant was in the city with Princess at the time. Plaintiff further testified that the visit escalated into an altercation with defendant’s mother and father, which resulted in the police being called and her being arrested, although the case was later dismissed. Plaintiff further testified that she purchased Princess in Ohio, which was a five to six hour drive. Plaintiff further testified that she is currently employed full time. Plaintiff further testified that Princess was never abused and that the dog once knocked over a bowl of ammonia and some of it got in the dog’s eyes, but that after she rushed Princess to the hospital the dog received treatment and made a full recovery. Plaintiff further testified that she wants Princess back because her daughter asks her everyday about the dog. K.R testified that when defendant took Princess she was crying because she knew that defendant was not going to give the dog back. Defendant testified that in August 2020 plaintiff, her cousin, asked her to take Princess and train the dog and that it was understood that she would return Princess to plaintiff in either November or December 2020 since defendant was attending college in Buffalo. Defendant further testified that when she first received Princess she noticed that the dog smelled badly and was always scratching her eyes and ears. Defendant further testified that she took Princess to a veterinarian, where the dog was diagnosed with an ear infection and treated. Defendant further testified that the veterinary bill was $250.00 and she asked plaintiff to reimburse her for that but that plaintiff advised her that she did not have the money at the time. Defendant further testified that she and plaintiff had agreed that plaintiff would pay for all of Princess’s expenses, such as grooming, food, menstrual diapers, and wee-wee pads, but that plaintiff did not. Defendant further testified that, although plaintiff had advised her not to get Princess any vaccines, she had to get the dog certain vaccines in order to have her groomed and also because Princess was living with defendant in a house where there were other dogs. Defendant further testified that she advised plaintiff that she would return Princess to plaintiff when plaintiff reimbursed her for the dog’s expenses. Defendant further testified that she was sick over Thanksgiving and could not return home to New York, New York, at that time anyway. Defendant further testified that in December 2020 plaintiff, plaintiff’s brother, and plaintiff’s boyfriend went to her house in New York, New York, and attempted to force their way inside, injuring defendant’s father. Defendant further testified that Princess was nine months old when she first received the dog and that Princess is now three years old. Defendant further testified that as of January 2022 she had spent over $1,700.00 on Princess’s food, grooming, and veterinary care. Defendant further testified that she is currently living with her mother and Princess in New York, New York, and that she is employed full time after graduating from college. Defendant further testified that she does not want to return Princess because she has an emotional attachment to the dog. Angela McLoyd Lashley, defendant’s mother, testified that in August 2020 plaintiff asked defendant to take Princess and train the dog. Ms. Lashley further testified that when Princess arrived at her house the dog was very sick, was scratching herself, smelled badly, and was filthy. Ms. Lashley further testified that defendant took Princess to a veterinarian, where the dog was diagnosed with, among other things, an ear infection. Ms. Lashley further testified that she paid for Princess’s veterinary treatment and later paid for Princess’s food, grooming, and veterinary care. Ms. Lashley further testified about the incident at her house involving her husband and plaintiff, plaintiff’s brother, and another man who attempted to force their way inside her house, injuring her husband. Ms. Lashley further testified that she loves Princess and that her and defendant took good care of the dog. Ms. Lashley further testified that plaintiff does not really care about Princess, did not take good care of the dog, and does not really want the dog back. Ms. Lashley further testified that Princess is currently living with her and defendant and two other dogs that she owns, and that Princess loves defendant and sleeps with her and does not respond to anyone else. Ms. Lashley further testified that defendant rescued Princess from being beaten and kept in a cage all day and that she noticed that the dog does not like to be around plaintiff. Ms. Lashley further testified that Princess is very skittish and was clearly abused before defendant received the dog from plaintiff. Tanisha Robinson, defendant’s sister, testified about the incident at defendant’s house involving her stepfather and plaintiff and two other men who attempted to force their way inside defendant’s house, injuring her stepfather. Ms. Robinson further testified that defendant created an environment for Princess, who is a very fearful dog. Ms. Robinson further testified that Princess was abused and “evidently had ammonia thrown into its eyes.” Ms. Robinson further testified that Princess has become part of the family and that the dog is totally attached to defendant and that defendant has put a lot of work into training the dog. Ms. Robinson further testified that plaintiff does not really want Princess back and is just upset about being arrested in connection with the incident at defendant’s house. Traditionally, companion animals have been treated as personal property under New York law (see Mullaly v. People, 86 NY 365, 368 [1881]; Schrage v. Hatzlacha Cab Corp., 13 AD3d 150, 150 [1st Dept 2004]). “[A]s with other personal property, courts resolved disputes by evaluating which party had the superior possessory right to the animal” (Mundo v. Weatherson, 74 Misc 3d 1215[A], 2022 NY Slip Op 50125[U], *3 [Civ Ct, NY County 2022]; see also Gutierrez v. Cioffi, 69 Misc 3d 148[A], 2020 NY Slip Op 51437[U], *1 [App Term, 1st Dept 2020]). “Replevin is the means by which non-matrimonial actions regarding ownership and possession of dogs have generally come before New York courts” (Travis v. Murray, 42 Misc 3d 447, 452 [Sup Ct, NY County 2013]; see also Mundo, 2022 NY Slip Op 50125[U], *3). As the Court of Appeals has held, “[r]eplevin is strictly a possessory action and plaintiff, to recover, must show a possessory right recognized by law” (Hofferman v. Simmons, 290 NY 449, 455 [1943]). In recent years, however, New York courts, “[c]ognizant of the cherished status accorded to pets in our society” (Raymond v. Lachmann, 264 AD2d 340, 341 [1st Dept 1999]), have begun to recognize that “[c]ompanion animals are a special category of property” (Feger v. Warwick Animal Shelter, 59 AD3d 68, 71 [2d Dept 2008]; see also Travis, 42 Misc 3d at 456, 458). Indeed, one New York court has held that “[a]fter reviewing the progression of the law in both New York and other states, it can be concluded that in a [pet-custody case]…a strict property analysis is neither desirable nor appropriate” (Travis, 42 Misc 3d at 456). The Travis court further held that “the opinion by the First Department in Raymond can be read as a firm declaration that household pets enjoy a status greater than mere chattel” (Id. at 458; see also Feger, 59 AD3d at 72). Raymond, a watershed pet-custody case, was the first case in which a New York appellate court applied a standard now known as the “best for all concerned” standard in deciding who was awarded possession of a cat (Raymond, 264 AD2d at 341). The Raymond court’s “best for all concerned” standard has subsequently been followed by numerous New York courts (see Acosta v. Shaw, NYLJ, Feb. 21, 2023 at 17, col 1 [Sup Ct, Queens County 2023, Ventura, J.]; Travis, 42 Misc 3d at 460; Mundo, 2022 NY Slip Op 50125[U], *5; Mitchell v. Snider, 51 Misc 3d 1229[A], 2016 NY Slip Op 50877[U], *6 [Civ Ct, NY County 2016]; Ramseur v. Askins, 44 Misc 3d 1209[A], 2014 NY Slip Op 51068[U], *4 [Civ Ct, Bronx County 2014]). Furthermore, while this case is not a matrimonial case, since 2021 “New York matrimonial courts no longer have to grapple with how to decide pet custody cases” (L.B. v. C.C.B., 77 Misc 3d 429, 435 [Sup Ct, Kings County 2022]). Matrimonial courts, “in awarding the possession of a companion animal,” are now required to “consider the best interest of such animal” (Domestic Relations Law §236 [B] [5] [d] [15]). The court, therefore, agrees that the “best for all concerned” standard, first articulated in Raymond and refined in Travis, “[strikes] the best balance between a strict property analysis and the more extensive interests analysis involved in child custody cases” (Mundo, 2022 NY Slip Op 50125[U], *3). Plaintiff’s testimony was clear, specific, and mostly credible, and, under a strict application of replevin, she established, by a preponderance of the evidence, a superior possessory right to Princess. Nevertheless, “[a]lthough important, ownership is just one factor to consider when determining who should possess the dog based on the best for all concerned analysis” (Mitchell, 2016 NY Slip Op 50877[U], *3; see also Travis, 42 Misc 3d at 456). “The court must also consider intangible factors such as why each party would benefit from having the dog in…her life and why the dog has a better chance of prospering, loving and being loved in the care of one party or the other” (Mitchell, 2016 NY Slip Op 50877[U], *3; see also Mundo, 2022 NY Slip Op 50125[U], *3). With this in mind, it is clear to the court that awarding plaintiff possession of Princess is not what is “best for all concerned” (Raymond, 264 AD2d at 341). “Although the court credits the vast majority of [p]laintiff’s testimony, it finds [d]efendant’s testimony to be more credible and persuasive regarding issues in dispute based on the totality of the evidence” (Mitchell, 2016 NY Slip Op 50877[U], *5). Ms. Lashley’s and Ms. Robinson’s testimony was also clear, specific and credible. Noticeably absent from plaintiff’s testimony, moreover, was any expression of genuine affection for Princess or genuine concern for the dog’s well-being. The evidence established that plaintiff voluntarily gave Princess to defendant because plaintiff was either unable or unwilling to train the dog, and that Princess has now been in defendant’s possession for almost three years and that defendant has provided for all of the dog’s physical and emotional needs during that time. The evidence further established that Princess was nine months old, untrained, and in poor health, either from neglect or abuse, when defendant first received the dog, and that Princess is now almost four years old, trained, healthy and thriving, very attached to defendant, has become a member of defendant’s family, and even has two dog companions. Removing Princess from defendant’s home at this point, as if the dog was a borrowed but unreturned blender, would completely disregard the bond that has naturally formed between Princess and defendant and would undoubtedly cause the dog as well as defendant much anxiety. While the court notes that defendant did improperly retain possession of Princess initially, the court finds, and it does not do so lightly, that it is “best for all concerned that…[Princess]…remain where [she] has lived, prospered, loved and been loved for the past [almost three] years” (Raymond, 264 AD2d at 341). Accordingly, the court finds on the main action in defendant’s favor and on the counterclaim in plaintiff’s favor, and it is hereby ORDERED that the main action is dismissed and that defendant shall remain in sole possession of Princess, and the Clerk is directed to enter judgment on the main action in defendant’s favor; and it is further ORDERED that the counterclaim is dismissed as moot and the Clerk is directed to enter judgment on the counterclaim in plaintiff’s favor. This constitutes the decision and order of the court. Dated: June 9, 2023
