Background:

Plaintiff Neil Walash seeks recovery of an English bulldog named "Mo." This replevin action for the return of "Mo" has its genesis in a matrimonial action pending before this court. It is undisputed that plaintiff's wife, Samantha Walash, surrendered "Mo" to Pet Spa and Resort, Inc. in Franklin, New Jersey for the purpose of finding an adoptive owner for "Mo" , and that defendant Nikki Kilgour subsequently adopted the dog. However, it is the surrounding facts underlying "Mo"'s adoption that remain largely in dispute and go the heart of the instant controversy.

In August, 2010, Samantha Walash brought "Mo" to Pet Spa and Resort. She had been a regular customer for many years, as she often brought her dogs there to kennel them while on vacation. According to Carolyn Wright, Pet Spa's owner, Ms. Walash made it "abundantly clear" she was surrendering possession and title to "Mo" for the purpose of adoption. Affidavit of Carolyn Wilkins, sworn to June 10, 2011 (Deft.'s Exhibit A, ¶3-4).

Text messages and emails between Mr. Walash and Ms. Walash indicate some ongoing communication regarding the dog, "Mo." For example, an exchange of text messages on September 5, 2010 has Neil inquiring "Where r the dogs now?" and Samantha responding "Pet spa". Neil then texts, "I don't think it was a gud idea to bring dogs to kennel. They were just there for 10 days." Samantha responds, "Ok" without further explanation. (Deft's Exhibit B).

In November, 2010, Ms. Walash filed for divorce against Mr. Walash in this court (Index No. 12085/2010).

On November 30, 2010, plaintiff's attorney, Carla Wise, Esq. wrote to Robert [*2]Rametta, Esq. regarding various matrimonial issues. In the letter, Ms. Wise wrote, "In addition, the dog is missing. The dog is a pet of both parties and Mr. Walash would certainly like to know where the dog is." The attorney made further reference to Samantha Walash's violation of the automatic orders in numerous ways. (Deft's Exhibit E)

On December 10 - 11, 2010, the following email exchange occurred between the parties regarding "Mo":

Neil: ......I have asked for nothing but one thing. Where is

our dog Mo? I have asked several times but you

never respond. I would appreciate this one courtesy

so I can spend some time with him. It would really

mean a lot to me....

Samantha: ....I will see that you get to spend some time

with Mo when I return (from Hawaii).

Neil:Please have Mo returned to me at our home

by Sunday afternoon.

On January 3, 2011, Neil emailed Samantha, "Need copy of bill and Mo's location."

Carolyn Wright's affidavit confirms in or about October, 2010, she began placing advertisements to locate an adoptive owner for "Mo." She received and rejected many applications until finding a family for "Mo" "that would look out for his best interests." She finally came across the application of Nikki Kilgour, the defendant, whom she believed fit that description. (Deft's Exhibit A, ¶5-6)

On February 18, 2011, Nikki Kilgour signed an adoption contract for "Mo". On the same date, Samantha Walash signed a statement as follows:

To whom it may concern:

I, Samantha Walash, am the sole owner of Mo, a five year

old, blonde and white, neutered male English Bulldog. Mo

is in excellent health. He has never had any health issues.

I am releasing him to Nikki Kilgour. Nikki is responsible for

Mo's healthy, safety and well being. If for any reason, Nikki

is unable to care for or keep Mo, he will be returned to The

Pet Spa and Resort, 322 Route 94 North, Hardyston, Sussex

County, NJ 07416, 973-827-8881.

Very truly yours,

Samantha Walash

(Plaintiff's Exhibit C)

Nikki Kilgour states in an affidavit, sworn to on June 11, 2011, that she relied on the above statement of sole ownership. She avers, "On or about February 18, 2011, after viewing documentation showing that Samantha Walash was the previous owner of the dog now in possession by the Pet Spa and Resort, I signed the necessary [*3]paperwork and adoption contract. " (Kilgour affidavit, ¶5, attached to Aff. In Opp.)

Rather ironically, on February 7, 2011, shortly prior to the above statement being executed, Ms. Walash obtained an Order to Show Cause for pendente lite relief. She sought to enjoin her husband from removing or transferring any items of personal or real property acquired during the marriage.

On the return date to the Order to Show Cause, March 18, 2011, the parties appeared in this court. When asked where "Mo" was and whether he was alive, Samantha replied through her counsel, Mr. Rametta, that he had been "donated" to Bulldog Rescue in Long Island and was "adopted" by another family. The court directed she immediately notify the Bull Dog Rescue by letter that she had no right, permission, or authority to transfer "Mo" and further requesting "Mo" be returned. (Plaintiff's Exhibit B)

Later that day, Ms. Walash signed the following affidavit:

I, Samantha J. Walash, being duly sworn, depose and say

that I found homes for my four English Bulldogs after my husband

left us. In question is our dog, "Mo" who has been placed at the

Pet Spa in Sussex, New Jersey when I was hospitalized. There was

no one to care for him. In February, 2011, I found a loving family

with children and English Bulldogs that wanted to love and care for Mo.

It was not possible to bring my dogs to Hawaii because of the danger

to the dog's health.

Based on the foregoing, I surrendered ownership of Mo

to a family that was found through Pet Spa and Long Island

Dog Rescue. Mo was surrendered by me to this family

without any malice and only was done in the best interest

of the dog.

Mo was surrendered without consent of my husband, Neil

Walash, If there is anything that I need to do to get Mo returned,

please advise. I am going through a divorce and Mo is a marital asset.

(Plaintiff's Exhibit D)

It is not know whether this affidavit was provided to Pet Spa or the defendant.On May 31, 2011, plaintiff obtained the instant Order to Show Cause temporarily enjoining defendant from removing "Mo" from her residence in Dutchess County pending further proceedings herein. Plaintiff alleges he did not know of "Mo s" whereabouts, or that Ms. Walash had placed "Mo" for adoption until the parties appeared before the court on March 18th and Ms. Walash was ordered to reveal "Mo's" whereabouts. As confirmation of his not knowing Mo's whereabouts until March 18, 2011, plaintiff included a series of emails between the couple in which he repeatedly inquired as to Mo's location.

In opposition, defendant contends: 1) plaintiff knew of Mo's delivery to Pet Spa as early as September 5, 2010, as evidenced by the text message from Ms. Walash to plaintiff that day. (Deft.'s Exhibit B); 2) plaintiff has no standing to bring a replevin claim against defendant in there is no privity of relationship, contractual or otherwise, between [*4]the two parties. Defendant argues plaintiff's sole recourse is to seek economic compensation from Samantha Walash through equitable distribution in the divorce action; 3) the Automatic Orders went into effect after the divorce action was filed in November, 2010; since Ms. Walash relinquished title and possession of "Mo" in August, 2010, the Automatic Orders do not apply to the transfer of "Mo"; 4) as a "true owner," Samantha Walash conveyed good title to Nikki Kilgour, a third party. Therefore, plaintiff has no superior possessory right to the chattel over the possessory right of the defendant. An additional issue that must be addressed is whether defendant has a superior right of possession as an adoptive pet owner who is non-complicit regarding the original owner's actions.

In her affidavit, Kilgour described the manner in which she adopted "Mo". She acknowledges after speaking with plaintiff on March 18, 2011, she and her family were "heart broken" about plaintiff's separation from Mo, but she had a change of heart when she was shown the text messages between plaintiff and Samantha. She states, "I quickly learned that Neil Walash in fact did have knowledge regarding the whereabouts of the dog and "Mo" and had failed to retrieve him." It is defendant's position that the best interests of Mo will be served by his remaining with her and her family. (Kilgour Aff, ¶8-9, Deft.'s Aff. In Opp.)

Analysis

The following questions are raised in this proceeding:

1.Is "Mo" properly the subject of a replevin action?

2.Does the Uniform Commercial Code apply?

3.Has plaintiff made a timely demand?

4.Does plaintiff have a superior right of possession?

5.Must "Mo" be returned to plaintiff?

6.If "Mo" is ordered returned to plaintiff, is defendant entitled to compensation from plaintiff?

As to Question 1, this replevin action is properly brought in that Mo is a "unique chattel", as required pursuant to CPLR Article 71. Morse v. Penzimer, 58 Misc 2d. 156(Sup. Ct., Oneida Co., 1968); see also JKG v. SG, 31 Misc 3d 636 (Civil Ct., NY Co., 2011); Webb v. Papaspiridakos, 23 Misc 3d 1136(A) (Sup. Ct., Queens Co., 2009); Central Westchester Humane Society v. Hilleboe, 202 Misc 881, 884 (Sup. Ct., West. Co., 1952).

As to question 2, this case is not subject to the provisions of the Uniform Commercial Code. Defendant is not a buyer in the ordinary course of business, as defined in UCC §1-201(9), as there was no consideration provided, as defined therein. Likewise there was no purchase as defined in UCC §1-201(32) nor value paid, as defined in UCC §1-201(44)(d). Accordingly, the decision in this case will be based upon the common law. See Siegel, New York Practice, §337 (4th Ed., 2005)..As to question 3, plaintiff, by virtue of bringing this action, has made a timely demand, such that he is well within the three year statute of limitations (CPLR §214[3]). Moreover, he is not guilty or laches in that he has timely moved for relief upon learning of the facts of the adoption. Defendant's argument that plaintiff failed to retrieve "Mo" on or after [*5]September 5, 2010 when he learned of the dog's location from a text message from Ms. Walash is meritless. The record, as set forth above, amply demonstrates plaintiff's considerable efforts spanning a period of months to recover possession of "Mo" from his wife. Plaintiff's efforts were regrettably met with deception and resistance as evidenced by Ms. Walash's continual failure to disclose her surrender of "Mo" for adoption in August, 2010 to Pet Spa & Resort. Upon learning of "Mo's whereabouts in March, 2011, plaintiff asserted his claim of superior right of possession without delay.As to question 4, the court recognizes that there is no larceny here, in that Mo was marital property, obtained during the marriage. There is, however, a violation of the automatic orders contained in DRL §236, Part B, §2, as confirmed by her written statement, dated February 18, 2011 [Pltf's Exhibit C], where she proclaims herself to be "the sole owner of Mo" and releases him for adoption to defendant (Pltf.'s Exhibit C), and her subsequent affidavit, sworn to on March 18, 2011 [Pltf.'s Exhibit D]. The court finds she has unlawfully disposed of marital property, in that "Mo" was the personal property owned by the parties, notwithstanding the license for Mo was issued solely in her name (Deft.'s Exhibit D).^[FN1] It is axiomatic that property obtained by the parties is presumptively marital property regardless of the form in which title is held. DRL §236, Part B (c)..

As to question 5, the affirmations of counsel, neither of whom are witnesses to the events, are not competent evidence of the facts in dispute. What remains are the affidavits of four individuals with varying degrees of personal knowledge of the facts: Neil Walash, Nikki Kilgour, Samantha Walash and Carolyn Wilkins. In addition there is the February 18, 2011 statement of Ms. Walash. These submissions raise substantial issues of fact as to the parties' knowledge of the facts regarding Mo's availability for adoption by his owner(s). Additionally, there are unresolved issues of fact as to what Ms. Kilgour and Carolyn Wilkins knew and what information they acted upon prior to "Mo's adoption by defendant.

The court recognizes, as justice requires, there is a balancing of equities, in part, depending on defendant's claimed status as a blameless adoptive pet owner. This assessment can only be made after there has been fact finding that goes into greater depth than what is presently contained in the parties' submissions.

As to questions 5 and 6, the ultimate questions in this controversy, the answers must be held in abeyance, pending a full and complete presentation of the facts.

Accordingly, counsel are directed to appear for a preliminary conference on September 16, 2011 at 9:30 A.M. at which time a hearing will be scheduled. Counsel shall be prepared to discuss at that time measures to be taken to afford plaintiff access to "Mo" pending the outcome of this proceeding.

The foregoing constitutes the decision and order of the court.

Dated: Goshen, New York

September 6, 2011 [*6]

LAWRENCE H. ECKER, J.S.C.