FRANK v. 172

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Marilyn FRANK, Plaintiff–Appellant, v. ANIMAL HAVEN, INC., Defendant–Respondent, 172 East 4th Street Tenants Corp., et al., Defendants.

Decided: June 20, 2013

MAZZARELLI, J.P., RENWICK, MANZANET–DANIELS, GISCHE, CLARK, JJ. Law Offices of Gerald P. Gross, Cedarhurst (Elliot B. Pasik of counsel), for appellant. Skadden, Arps, Slate, Meagher & Flom LLP, New York (Marissa E. Troiano of counsel), for respondent.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered February 28, 2012, which, in this action for personal injuries sustained by plaintiff when she was bitten by a dog, granted the motion of defendant Animal Haven, Inc. (Animal Haven) to dismiss the complaint as against it, unanimously affirmed, without costs.

When defendant Skimbirauskas adopted the subject dog from Animal Haven, the parties signed a contract whereby Skimbirauskas agreed to assume a “lifetime commitment” for the responsible care of the dog. Although Animal Haven reserved the right to have the dog returned if Skimbirauskas breached the contract's provisions, the purpose of doing so was clearly to protect the well-being of the dog, not to reserve ownership. Indeed, the contract provides that Skimbirauskas explicitly “release[s] Animal Haven from all liability once the animal is in [his] possession,” and “that the adoption of this pet is at [his] own risk and that the destruction of any personal or private property is [his] responsibility.” Accordingly, dismissal of the complaint as against Animal Haven was proper since it was not the dog's owner (see CPLR 3211[a][1]; Leon v. Martinez, 84 N.Y.2d 83, 88 [1994]; see also Administrative Code of City of N.Y. § 17–802[a] [“ ‘Adoption’ means the delivery of a dog ․ deemed appropriate and suitable by an animal shelter to an individual ․ who has been approved to own, care and provide for the animal by the animal shelter” (emphasis added) ] ).

We have considered plaintiff's remaining arguments, and find them unavailing.