APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Motion by appellant for leave to reargue or, in the alternative, to appeal to the Appellate Division granted to the extent that reargument is granted and, upon reargument the decision and order of this court dated July 26, 2006 is recalled and vacated and the following decision and order substituted therefor:

Appeal from an order of the District Court of Suffolk County, First District (Madeline A. Fitzgibbons, J.), entered February 10, 2004. The order, following a hearing in accordance with section 121 of the Agriculture and Markets Law, ordered one of appellant's dogs to be euthanized and the other dog to be confined.

Order affirmed without costs.

Petitioner filed the instant complaint pursuant to Agricultural and Markets Law section 121 in which he alleged that appellant's dogs, two Pit Bulls, while loose on petitioner's property on December 13, 2003, in violation of a prior court order, attacked and severely injured petitioner's dog.

It is uncontroverted that appellant's dogs, by order dated November 12, 2003, had been declared dangerous dogs and appellant had been directed, inter alia, to confine said dogs permanently, either indoors or in a secure outdoor pen. Said order was not appealed or otherwise challenged. Subsequently, on the evening of December 13, 2003, appellant's dogs, while loose, entered upon petitioner's property. The dog ordered to be destroyed was observed on top of petitioner's dog, an English Bull dog, chewing on said dog. Appellant's other dog was not, at least at the time of petitioner's observations, involved in the attack. The attacking dog ultimately released petitioner's dog, following which, appellant's dogs ran off. Petitioner's dog was severely injured and required emergency surgery. Petitioner and his witness indicated that upon observing the attack, they were in fear of the dogs.

Since, at the time of the incident, appellant's dogs were declared to be dangerous and since appellant failed to confine said dogs as required, the penalty imposed, under the circumstances herein, was not inappropriate or excessive (Agriculture and Markets Law former § 121 [4]; Van Patten v City of Binghamton, 137 F Supp 2d 98, 106-107 [2001]; 3 NY Jur 2d, Animals § 136).

In view of the foregoing, the order is affirmed.

Rudolph, P.J., and McCabe, J., concur.

Tanenbaum, J., taking no part.

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Presiding Justice, Appellate Term

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Associate Justice, Appellate Term