County Court, Monroe County, December 15, 2020

Matthew Albert for appellant.

Raja Sekharan, Deputy Town Attorney, Webster, for respondent.

Defendant-appellant Tricia Batz appeals from a decision and order of Webster Town Court (Corretore, J.) dated October 15, 2019, which found Ms. Batz's dog, Max, to be a dangerous dog under Agriculture and Markets Law § 123. Appellant argues that the plaintiff-respondent failed to establish that the victim suffered "physical injury," as that term is defined in the Agriculture and Markets Law.

The hearing court properly set forth that the respondent, as plaintiff below, had the burden of proving by clear and convincing evidence that the dog is a "dangerous dog." (Agriculture and Markets Law § 123 [2].) A dangerous dog, as relevant here, is "any dog which (i) without justification attacks a person . . . and causes physical injury." (Agriculture and Markets Law § 108 [24] [a].) "Physical injury" means "impairment of physical condition or substantial pain." (Agriculture and Markets Law § 108 [28].)

The lower court did not find that the victim suffered substantial pain but determined that there was clear and convincing evidence "that the dog, Max, did bite Mr. Whelehan. And that there was an impairment of Mr. Whelehan's physical condition as a result of the bite. And that there was no justification as its outlined in the law." (Tr at 51, lines 15-19.)

Appellant contends that the hearing court "incorrectly stated that the term physical injury is not defined by the AML" and noted that the term physical injury is defined as impairment of a physical condition or substantial pain. Actually, the hearing court correctly noted that the term "impairment" as it relates to "impairment of a physical condition" is not "something that is defined within the [Agriculture and Markets Law]" (tr at 50, lines 12-13). The court, focusing on the term "impairment," announced that it would apply the definition of impairment as articulated in People v Cruz (48 NY2d 419 [1979]) as it relates to driving while ability impaired in violation of Vehicle and {**70 Misc 3d at 1042}Traffic Law § 1192 (1). The hearing court then evaluated the proof to see whether there was clear and convincing evidence that the victim's physical condition had been "affect[ed] to any degree" (tr at 50, line 16).

The definition of "physical injury" in the Agriculture and Markets Law is identical to the definition of "physical injury" in the Penal Law (see Penal Law § 10.00 [9]). In a recent dog bite case the [*2]Appellate Division, Fourth Department clarified that the Penal Law definition of serious or protracted disfigurement, rather than the Insurance Law definition, is appropriate for determining whether a person sustained a serious physical injury warranting the euthanasia of a dog (Matter of Workman v Dumouchel, 175 AD3d 895 [4th Dept 2019]).

Although the Appellate Division was considering the aggravating circumstances under which a dangerous dog may be euthanized (Agriculture and Markets Law § 123 [3]), I see no reason that the Penal Law definition should not apply to the lesser standard of finding that a dog is a "dangerous dog" as that term is defined in the Agriculture and Markets Law. This conclusion is supported by the reality that a dog must first be classified as a "dangerous dog" (Agriculture and Markets Law § 123 [2]) before a court can consider whether any of the aggravating factors enumerated in subdivision (3) of Agriculture and Markets Law § 123 apply. Therefore, applying the Penal Law definition of both "physical injury" and "serious physical injury" as it relates to classification of a dog as a "dangerous dog" under the Agriculture and Markets Law provides clarity, simplicity and consistency.

The hearing court did not apply the Penal Law definition to the facts in this case to determine whether the victim suffered impairment of a physical condition. Therefore, the decision and order of the Webster Town Court is vacated and the matter is remitted for that court to render a decision and order in accordance with this decision.