DECISION/ORDER [*2]

Zwack, J.:

Plaintiffs Debbie Stoddard and Zachary Ryan Murray commenced this action for replevin pursuant to CPLR 7101 seeking the return of their cat "Freedom". Plaintiffs allege that Freedom was wrongfully taken to the Mohawk Hudson Humane Society, and the subsequent "adoption" by defendants Brian W. VanZandt and Stephanie Fay, of Freedom does not divest plaintiffs of their lawful ownership of the cat, a cat they owned, cared for and loved for 11 years.

Plaintiffs commenced this action on or around December 4, 2012 ^[FN1], seeking equitable relief in the form replevin (return of the cat); wrongful possession; trespass and physical interference; and wrongful conversion. In their complaint and moving papers, plaintiffs aver that they lost saw Freedom, an indoor and outdoor cat, on September 26, 2012. Plaintiffs further allege that, upon information and belief, defendants took possession of Freedom on September 26, 2012, bringing the cat to the Society on or about September 28, 2012, and later adopting Freedom from the Society on October 5, 2012. When plaintiffs discovered the whereabouts of their pet, they asked for Freedom back, but defendants refused. Plaintiffs allege they are entitled to the cat back, as it was wrongfully taken from them, and wrongfully detained after its true ownership was discovered. Inasmuch as defendants have answered the complaint and refused to return the cat, plaintiffs request that this Court exercise it's equity powers ^[FN2] and issue an order directing the Sheriff to pick up the cat and return it to them.

In response to plaintiffs' summary judgment motion, defendants allege that they observed the cat in the rain wandering around the parking lot of their apartment complex at Horizon View Apartments in East Greenbush, New York. The cat had no collar or tags, was wet and appeared to be abandoned. The cat was friendly, and they brought the cat to their apartment to dry it off and give it a meal. After making inquiries of the complex manager as to ownership, and determining that no resident was missing a cat, they took the cat to the Society. The cat was thereafter tested for a microchip, and when none was found, was put on the Society's webpage as a "found" animal. Later deciding that they would like to adopt the cat, defendants returned to the Society and adopted the cat on October 5, 2012.

Summary judgment is appropriate where there is no issue of fact to be tried and the evidence requires the court to direct judgment as a matter of law (Friends of Animals, Inc v. Associated Fur Mfrs., 46 NY2d 1065 [1979]) and it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The focus should be on issue identification rather than issue determination (Sternbach v Cornell University, 162 AD2d 922, 923 [3d Dept 1990]). "[T]he proponent of a summary judgment motion must make a [*3]prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding (see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994]; Boyce v Vazquez, 249 AD2d 724, 725 [3d Dept 1998]).

It is commonly accepted that animals are not personal property as that is defined by New York Personal Property Law Section 251(1). In fact, cats fall into the category of "companion animals" which entitles them to special protections under New York Law, including the right to be a beneficiary of an estate, and the subject of an order of protection. Societies for the prevention of cruelty to animals are created under the same section of the Not-For-Profit-Law, 1403 (Ferger v. Warwick Animal Shelter, 59 AD3d 68 [2d Dept 2008]).

New York's Agriculture and Markets Law ("A & M") contains several provisions designed to protect and promote the welfare of companion animals. Sections 332-407 deal with such issues as leaving a pet outdoors without proper protection, anesthesia use in certain procedures and the standards of care pet dealers must provide for animals in their care. Particularly, Section 347(2) allows a duly incorporated humane society to make a pet that has not been claimed by it's owner available for adoption after five days.

The law is clear that a pet not claimed by its owner within five days can be adopted, which is what happened in this case. This final adoption extinguished any ownership rights in plaintiffs. This is entirely consistent with New York State's public policy which seeks to encourage pet adoption (Ferger, supra).

Plaintiff has failed to make out a prima facie showing of entitlement to summary judgment as a matter of law. Searching the record, the court is constrained to award summary judgment dismissing the complaint to defendants. Under the facts of the case, the court finds no indication that the cat was unlawfully "possessed" or "restrained" by defendants. The Court itself does not even know what "cat trespass" would entail. Admittedly, the cat was outside alone in the rain and defendants offered it shelter. After attempting to ascertain the cats owner, even though they thought the cat a stray due to the absence of a collar, defendants did what the law provides — bringing the cat to a humane society. Seven days later, the Society allowed defendants to adopt the cat.

For their part, plaintiffs did not even realize their cat was not coming back until it was already at the Society. While they made efforts to find the cat, they did not check the Society's webpage, which had their pet's imagine displayed. Plaintiffs own actions, or inactions as the case may be, directly caused their loss — the cat had no collar or micro-chip for identification — and the cat was allowed to roam the neighborhood freely. While plaintiffs never imagined this scenario, and the Court surely appreciates that it is indeed heartbreaking event, it was an [*4]inevitable consequence of their inattention to their cat. Here, mindful of the public policy purposes of A & M Section 347(2), which affords companion animals the benefits of adoption and placement in homes as an alternative to euthanization when found lost or abandoned, the Court declines to allow plaintiffs to have return of the cat and thereby set aside the defendants' adoption of the cat from the Society.

Accordingly, it is

ORDERED, that plaintiffs motion for summary judgment is denied, and it is further

ORDERED, that defendants are granted reverse summary judgment and the complaint is dismissed.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the self represented defendants. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Defendants are not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry, and are directed to enter this Decision and Order within 20 days and serve the attorney for plaintiffs with a copy of this Decision and Order, with Notice of Entry, within 10 days of Entry.

Dated:June 4, 2013,

Troy, New York

____________________________

Henry F. Zwack

Acting Supreme Court Justice

Papers Considered:

Notice of Motion, dated May 14, 2013; Affidavit of Jonathan G. Schopf, Esq, sworn to May 13, 2013; Affidavit of Debbie Stoddard, sworn to May 13, 2013; Affidavit of Zachary Ryan Murray, sworn to May 13, 2013, together with Exhibits "A" through "H" ; Memorandum of Law of by Jonathan G. Schopf, Esq., dated May 14, 2013; sworn to May 13, 2013.

Reply Affidavit of Stephanie Fay, sworn to May 22, 2013, together with Exhibits [*5]"1" through "3"; Reply Affidavit of Bryan VanZandt, sworn to May 22, 2013, together with Exhibits "1" through "6"; Defendant's Memorandum of Law dated May 22, 2013, together with Exhibits "1" through "6";

Reply Affirmation by Jonathan G. Schopf, Esq., dated May 28, 2013 together with Exhibits "A" through "C"