FRANCO v. BERGER (2026)

Order, Supreme Court, New York County (David B. Cohen, J.), entered October 10, 2025, which granted defendants' CPLR 3211(a)(7) motion to dismiss plaintiff's third and fourth causes of action for fraud and negligent infliction of emotional distress, unanimously affirmed, without costs.

The motion court correctly dismissed plaintiff's fraud claim as duplicative (see Abbondandolo v Hitzig, 282 AD2d 224, 225 [1st Dept 2001] ).  Plaintiff alleges that defendant Douglas O. Berger, DVM, falsely assured her that he would be present during the procedure on her pet dog Coco, which would be staged so that Coco would not have to be under anesthesia for more than two hours.  She further alleges that, if she had known that the procedure would be performed by another veterinarian in a single stage, she would not have agreed to the procedure.  However, the damages allegedly caused by these misrepresentations are identical to the damages alleged to have arisen from defendant's professional negligence which resulted in Coco's death (cf.  Simcuski v Saeli, 44 NY2d 442, 451–452 [1978] ).  Moreover, there are no damages alleged to have arisen from defendant's alleged falsification of Coco's records after her death.

Under current controlling precedent, pets are considered personal property (see Schrage v Hatzlacha Cab Corp., 13 AD3d 150 [1st Dept 2004];  Young v Delta Airlines Inc., 78 AD2d 616 [1st Dept 1980] ).  Therefore, we must affirm the court's dismissal of plaintiff's claim for negligent infliction of emotional distress.  However, recent developments in the law recognize that animals are sentient beings and suggest that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property (see e.g. Estates, Powers and Trusts Law § 7–8.1 [allowing people to create trusts for the care of pets];  Raymond v Lachmann, 264 AD2d 340, 341 [1st Dept 1999] [finding it was “best for all concerned” for a pet cat to remain with the defendant and recognizing “the cherished status accorded to pets in our society”];  Domestic Relations Law § 236[B][5][d][15] [when awarding the possession of a companion animal in a divorce action, “the court shall consider the best interest of such animal”];  Family Court Act § 842[i] [authorizing a directive in an order of protection that respondent refrain from injuring or killing a companion animal] ).  Therefore, given the evolving societal and legal view of pets over the past two decades, this remains a developing area of law appropriate for future consideration.