City Court of Jamestown, April 30, 2019

David Finn, plaintiff pro se.

Barbara Finn, plaintiff pro se.

Ashlynn Anderson, defendant pro se.

This is a replevin action requiring the court to determine ownership/custody of a cat. Plaintiffs moved to Wescott Street in the City of Jamestown in September of 2018. Around that time, the plaintiffs noticed a white cat frequently wandering onto their property looking for food. Plaintiffs state that the cat was quite thin, and had no identification tags. The plaintiffs assumed that the cat was a stray, named him "Sylvester," and began feeding the cat in the entryway of their home. The plaintiffs fed Sylvester frequently for several months before bringing him into their home. The plaintiffs took the cat to the veterinarian on January 14, 2019, where he was given shots, treated for fleas, dewormed, and micro-chipped. The veterinary report states that Sylvester had not been previously microchipped, but had previously been neutered prior to January 14, 2019. Plaintiff states that plaintiff reported Sylvester to be four years old. After having been an indoor cat since January 14, Sylvester accidentally got out of the house on February 2, 2019. Plaintiffs asked their neighbors, who lived across the street, if they had seen Sylvester. The neighbor stated that Sylvester belonged to his girlfriend, the defendant Ashlynn Anderson, and that she had taken the cat back.

The defendant states that the cat in question is named Marshmallow. The defendant testified that Marshmallow was given to her by a coworker in 2009. Since 2009, Marshmallow has lived in her home on Wescott Street, where the defendant has resided for about 25 years. The defendant had Marshmallow neutered as a kitten, but besides that visit, the defendant has not taken him to the vet in the 10 years that she has owned him. However, the defendant did take Marshmallow for a vet "checkup" following the commencement of this action and after speaking with an attorney. The defendant also testified that Marshmallow is an "indoor-outdoor" cat. Therefore, he may enter and exit the defendant's home using a cat door whenever he chooses. The defendant stated that at least three of the neighbors are all familiar with Marshmallow, and often feed him treats when he wanders onto their properties. Additionally, the defendant testified that she has a second cat that also operates in this way, living both inside and outside the [*2]defendant's{**64 Misc 3d at 275} home to some degree. Based on these habits, the defendant was not immediately concerned with Marshmallow's failure to return home in January of 2019. The defendant admitted that Marshmallow had absconded on previous occasions and was missing for a week or two, but eventually returned to her residence. Defendant states that she looked for Marshmallow around the neighborhood a couple weeks after his disappearance without success. The defendant stated that she did not inquire with the plaintiffs regarding Marshmallow's whereabouts. Finally, the defendant's boyfriend found Marshmallow outside on February 2, 2019, and defendant repossessed Marshmallow.

Plaintiff argues that she is the true owner of the cat based on the lack of identification, overall neglected appearance of the cat, and the effort and money expended to feed and treat the cat for any illness. Defendant argues that she has been the rightful owner of the cat for 10 years. Although the cat has lived an "indoor-outdoor" lifestyle, defendant states that she has fed him and housed him for the duration of her ownership of him. Both parties claim to love the cat, and desire him to be a part of their family. Plaintiff has filed this replevin action in order to recover possession of Sylvester (also known as Marshmallow) from her neighbor, the defendant.

Replevin is a remedy employed to "recover a specific, identifiable item of personal property." (Heckl v Walsh, 122 AD3d 1252, 1254 [4th Dept 2014]; see also 23 NY Jur 2d, Conversion, and Action for Recovery of Chattel § 89.) The term "personal property" includes chattels, and the term "chattel" refers to "things that can be used, handled, [or] transported, as horses, carriages, furniture, machinery, tools and the numberless objects to be seen about us in every-day life, the value of which is in the possession of the thing itself." (Niles v Mathusa, 162 NY 546, 550 [1900]; see also 23 NY Jur 2d, Conversion, and Action for Recovery of Chattel § 89.)

Under New York law, irrespective of how strongly people feel about their pets, cats and dogs have been viewed as "personal property—sometimes referred to as 'chattel'—just like a car or a table." (Travis v Murray, 42 Misc 3d 447, 452 [Sup Ct, NY County 2013]; see also Mullaly v People, 86 NY 365 [1881]; Schrage v Hatzlacha Cab Corp., 13 AD3d 150 [1st Dept 2004]; Rowan v Sussdorff, 147 App Div 673 [2d Dept 1911]; ATM One,{**64 Misc 3d at 276} LLC v Albano, 2001 NY Slip Op 50103[U] [Nassau Dist Ct 2001].) The standard for recovery in a replevin action being "superior possessory right in the chattel" (Pivar v Graduate School of Figurative Art of N.Y. Academy of Art, 290 AD2d 212, 213 [1st Dept 2002]). Therefore, it is "the property rights of the litigants, rather than their respective abilities to care for the dog or their emotional ties to it, that are ultimately determinative." (Travis v Murray, 42 Misc 3d 447, 453 [Sup Ct, NY County 2013].)

Nevertheless, there has been a slow evolution in New York case law towards the "de-chattelization" of household pets, and away from the "overly reductionist and utilitarian" view. (Id.) New York courts, as well as most courts across the United States, are unwilling to go so far as to adopt a child custody or "best interests" standard. (Travis v Murray, 42 Misc 3d 447, 456 [2013]; see generally Desanctis v Pritchard, 2002 Pa Super 221, ¶ 4, 803 A2d 230, 232 [2002];[*3]Clark v McGinnis, 298 P3d 1137 [Kan App 2013]; Morgan v Kroupa, 167 Vt 99, 702 A2d 630 [1997]; Houseman v Dare, 405 NJ Super 538, 966 A2d 24 [2009].)

The "best interests" standard has been rejected for several reasons. First, it is difficult if not impossible to truly determine what is in a pet's best interests as there is no proven or practical means of gauging an animal's happiness or "its feelings about a person or a place other than, perhaps, resorting to the entirely unscientific method of watching its tail wag." (Travis v Murray, 42 Misc 3d 447, 459 [Sup Ct, NY County 2013].) The subjective factors that are "key to a best interests analysis in child custody—particularly those concerning a child's feelings or perceptions as evidenced by statements, conduct and forensic evaluations—are, for the most part, unascertainable when the subject is an animal rather than a human." (Id.) Second, even if it were possible to ascertain a pet's feelings, and even if a court could make a finding of a pet's best interests, it is "highly questionable whether significant resources should be expended and substantial time spent on such endeavors . . . To allow full-blown dog custody cases, complete with canine forensics and attorneys representing not only the parties but the dog itself, would further burden the courts to the detriment of children." (Id.)

Where a "best interests" standard cannot reasonably be applied, and a strict property analysis is neither desirable nor appropriate, New York courts have developed a "quasi-interests {**64 Misc 3d at 277}based standard" that "takes into consideration, and gives paramount importance to, the intangible, highly subjective factors that are called into play when a cherished pet is the property at issue." (Travis v Murray, 42 Misc 3d 447, 455 [2013]; see also Raymond v Lachmann, 264 AD2d 340 [1st Dept 1999].) The standard that has been adopted by some recent court decisions in New York is the "best for all concerned" standard. (Raymond v Lachmann, 264 AD2d 340 [1st Dept 1999]; Travis v Murray, 42 Misc 3d 447, 455 [2013].)

In accordance with that standard, this court will analyze proof offered by each party that they will benefit from having the animal in their life, and why the animal has a better chance of living, prospering, loving and being loved in their care. (Travis v Murray, 42 Misc 3d 447, 460 [Sup Ct, NY County 2013]; see also Raymond v Lachmann, 264 AD2d 340 [1st Dept 1999].) In this way, the court hopes to take the intangible needs and interests of a pet into account along with the ordinary indicia of ownership or right to possession (title, purchase, gift, expenses, etc.). (Id.)

The decision in Travis v Murray is a good starting point on the evolution of the law's treatment of ownership or custody of pets over the last 100 years. (Travis v Murray, 42 Misc 3d 447, 455 [2013].) Our perception of pets has clearly shifted over time away from a strict property view and towards a more humanistic and interest based view. (Id.)

Why shouldn't the courts determine custody based on the "best interests" of a pet?

This court is not persuaded that a court could not evaluate the "best interests" of a pet. Instead, it is the opinion of this court that the reason not to use a strict "best interests" standard is the fundamental difference between a human child and a domesticated dog or cat. The "best interests" of the child standard is based on the implicit understanding that the ultimate goal of the courts is to ensure that the child is nurtured into independent adulthood. It is the future adult that must be the court's primary consideration, and not the interests of the father or mother. However, in the case of a pet cat or dog, the pet never becomes an independent being apart from [*4]the owner. So, if a court chooses not to apply a property-based standard, and a "best interests of the pet" standard is inappropriate, what is the standard that should be applied in an action to recover custody and possession of a beloved pet?{**64 Misc 3d at 278}

While it appears the Appellate Division, Fourth Department, has not addressed the issue, this court concludes that it is time to declare that a pet should no longer be considered "personal property" like a table or car. The Appellate Division, First Department, in a one-paragraph analysis of the contested ownership and possession of 10-year-old Lovey the cat utilized a test of what was "best for all concerned." (Raymond v Lachmann, 264 AD2d 340 [1st Dept 1999].) Those concerned were the two litigants, and Lovey the cat. (Id.)

In the instant case, this court will apply a "best interests of all concerned" standard to the facts and testimony presented at the hearing. On the one hand, the defendant in this replevin action has owned and possessed Sylvester (also known as Marshmallow) for 10 years. The defendant admitted that she had only taken Sylvester (also known as Marshmallow) to the vet once in that 10-year period (to have him spayed/neutered when he was a kitten). Additionally, the defendant allowed Sylvester (also known as Marshmallow) to come and go in the neighborhood, and the defendant was aware that Sylvester (also known as Marshmallow) was consistently fed by at least three neighbors. However, there is no real evidence of "abuse or neglect" of Sylvester (also known as Marshmallow). The court notes that Sylvester's (also known as Marshmallow's) second ever visit to a vet via the defendant only came about after the defendant consulted with an attorney regarding defense of the instant replevin action. The defendant testified that the cat has always been in decent health, and that her children are emotionally attached to Sylvester (also known as Marshmallow).

On the other hand, the plaintiffs testified that Sylvester (also known as Marshmallow) began coming to their home begging for food immediately when they moved to Wescott Street in September of 2018. The plaintiffs state that they initially let the cat into the entryway of their home to feed him. The plaintiffs believed the cat to be a stray. On or about January 14, 2019, the plaintiffs took Sylvester (also known as Marshmallow) into their home, and decided to make him an indoor cat. The plaintiffs provided Sylvester (also known as Marshmallow) with veterinary care including rabies and FVRCP vaccine (a vaccine against three potentially deadly airborne viruses). The court notes that plaintiffs believed Sylvester (also known as Marshmallow) to be a four-year-old cat at the time of the vet visit in January 2019. This suggests that the cat was in good{**64 Misc 3d at 279} health, given the fact that the cat was in fact 10 years old. On February 2, 2019, Sylvester (also known as Marshmallow) got out of the plaintiffs' home and ended up across the street at the home of the defendant.

Best Interests of All Concerned

In a very close decision, the court finds that the "best interests of all concerned" test leaves the custody of the cat, Sylvester (also known as Marshmallow), with the defendant.

The court is convinced that plaintiffs were and are genuinely concerned for Sylvester's (also known as Marshmallow's) welfare and spent time and money on his care. While the court is perplexed that the defendant never inquired with the plaintiffs regarding the cat's whereabouts between January 14, 2019, and February 2, 2019, the defendant has been responsible for the care and custody of Sylvester (also known as Marshmallow) for the last decade. Additionally, the defendant has children who have some emotional attachment to the cat. Finally, when Sylvester (also known as Marshmallow) got out of the plaintiffs' home he may have "voted with his feet" to return to his home of 10 years with the defendant and her children.

Therefore, based on an analysis of the law and the evidence presented at the hearing, this court finds in favor of the defendant, and the plaintiffs' claim is hereby dismissed.