District Court of Suffolk County, Second District, May 10, 2019

Robert Bruce Rosenthal, Kew Gardens, for respondent.

Joseph Wilson, Town Attorney, Lindenhurst (Lindsay P. Henry of counsel), for petitioner.

The above captioned respondent, Robert Newell, seeks an order of this court dismissing this "dangerous dog" petition upon several grounds including lack of subject matter jurisdiction, standing to sue, and constitutional grounds. This application is granted (on one basis only).

The threshold argument advanced is that Agriculture and Markets Law § 123 does not grant this court (the Suffolk County District Court) the subject matter jurisdiction to entertain the petition.

The issue presented is whether this District Court is a "municipal" court as envisioned by Agriculture and Markets Law § 123 (2), which provides:

"Any person who witnesses an attack or threatened attack, or in the case of a minor, an adult acting on behalf of such minor, may, and any dog control officer or police officer as provided in subdivision one of this section shall, make a complaint under oath or affirmation to any municipal judge or justice of such attack or threatened attack. Thereupon, the judge or justice shall immediately determine if there is probable cause to believe the dog is a dangerous dog and, if so, shall issue an order to any dog control officer, peace officer, acting pursuant to his or her special duties, or police officer directing such officer immediately seize such dog and hold the same pending judicial determination as provided in this section. Whether or not the judge or justice finds there is probable cause for such seizure, he or she shall, within five days and upon written notice of not less than two days to the owner of the dog, hold a hearing on the complaint." (Emphasis added.)

The respondent quite correctly asserts that this court is not a "municipal court," but rather is a state court organized and maintained by the New York State Office of Court Administration. Of considerable note is the fact that when Suffolk County amended its charter by a proposition in 1962, the western towns of Babylon, Brookhaven, Huntington, Islip and Smithtown became part of the Suffolk County District Court system. The Uniform District Court Act became effective in those towns on January 1, 1964, by virtue of section 2501 of the Suffolk County Charter (L 1958, ch 278, as amended by L 1963, ch{**64 Misc 3d at 610} 570, § 3 [eff Jan. 1, 1964]; People v Beauvil, 20 Misc 3d 1116[A], 2008 NY Slip Op 51370[U] [Westbury Just Ct 2008]; Matter of De Luca v Weiss, 40 Misc 2d 562 [Sup Ct, Suffolk County 1963], affd 19 AD2d 862 [2d Dept 1963], 13 NY2d 907 [1963]). Clearly, the use of the word "municipal" court in the dangerous dog [*2]statute is problematic. The subject "dangerous dog" statute is over 40 years old and the use of the word "municipal" was probably utilized to make the statute compatible with the then existing and now repealed "municipal court code." (See NY City Civ Ct Act § 2207.) Although the term municipality appears in dozens of New York's statutes, there exists no universally applicable definition of same, and the usual test of what constitutes a "municipality" is somewhat vague and tortured. (See generally Jericho Water Dist. v One Call Users Council, Inc., 37 AD3d 136 [2d Dept 2006].)

Fortunately, this court need not seek to definitionally construe the jurisdictional scope of section 123, as an alternative statute provides for same. The district court has limited jurisdiction and has no equity jurisdiction except as specifically conferred upon it by statute. (Mormon v Acura of Val. Stream, 190 Misc 2d 697 [App Term, 2d Dept, 9th & 10th Jud Dists 2001], citing NY Const, art VI, § 15; Petrides v Park Hill Rest., Inc., 265 App Div 509 [1st Dept 1943].) The general jurisdictional grant of the district court is found in Uniform District Court Act §§ 101-213. Section 213 provides:

"§ 213. Jurisdiction of justices of the peace

"The court shall have:

"(a) concurrently, the jurisdiction of the justices of the peace of such towns of the county as comprise the district court, and

"(b) in any such town wherein there is no justice of the peace, the jurisdiction such justice would have if there were such office and officer." (Emphasis added.)

Within the five eastern towns in Suffolk County, town and village justices are municipal courts and are authorized to entertain dangerous dog petitions. The office of Babylon Town Justice was abolished in conjunction with the legislative creation of the district court. Clearly, the New York State Legislature expressly vested the district court with the subject matter jurisdictional authority to conduct dangerous dog hearings, the same as previously existed in the town court.

The court summarily rejects the respondent's application to dismiss this petition upon "due process" federal and state {**64 Misc 3d at 611}constitutional "forfeiture" grounds for the procedural reason that the New York State Attorney General was not given notice and a 60-day opportunity to defend the constitutionality of Agriculture and Markets Law § 123. (See CPLR 1012 [b].)

This court also is not persuaded by the respondent's request to dismiss upon assorted theories that the court lacks jurisdiction to entertain the petition because it is mislabeled as a complaint, and that it fails to state a "cause of action." (CPLR 105.) Definitions subdivision (b) states that the words "summons" and "complaint" are interchangeable with "notice of petition and the petition" and also that special proceedings are considered "actions." The notarized "complaint" and "Notice of Hearing" forms utilized in this petition are official court forms which also make reference to two additional affidavits of Alexander Danishevsky and David [*3]Clark. These pleadings give respondent sufficient notice to determine what civil cause of action is being alleged against him.

Lastly, this court is asked to consider whether the petitioner's self-description as the "People of the State of New York" is an impediment to the trial of this petition, for "standing" reasons. Section 123 expressly limits the ability to commence a dangerous dog action to "any person" who witnesses an attack; any "dog control officer" or "police officer." Neither the State of New York or the "People of the State of New York" (acting through its District Attorneys or Attorney General) is an authorized petitioner. Accordingly, the court is compelled to dismiss this petition without prejudice to recommencement by a party who has standing to sue.