Civil Court of the City of New York, New York County, November 30, 2022

Roven Law Group P.C. (Janice G. Roven of counsel) for defendants.

Plaintiff, Eric Olivo, commenced the instant action against defendants sounding in replevin and conversion for the wrongful detention of an animal (to wit, a cat named "Buffy"). Plaintiff seeks an order of summary judgment against the defendants, an "Order of seizure of the Chattel wrongfully held by the defendants," a dismissal of the defendants' counterclaims, and "for such other and further relief as this honorable Court[ ] deems just[,] proper and equitable."

Defendants, Yelena Medvedeva (defendant Yelena) and Wendy Fazekas (defendant Wendy), answer that plaintiff breached their contract and abandoned Buffy, and that they are entitled to retain Buffy, and cross-moved to dismiss the complaint and to dismiss (sic) plaintiff's summary judgment motion.

All parties rely on the same three exhibits attached to each of their moving and cross-moving papers in support of the foundation of their respective claims. The first two, and attached to plaintiff's moving papers as exhibit B, are a "Cat/Kitten Adoption Agreement" dated October 23, 2019, and signed by the plaintiff and both defendants; and a "Cat Adoption Agreement" dated November 9, 2019, and signed by the plaintiff alone. (The defendants attach the "Cat/Kitten Adoption Agreement" as exhibit C to their cross papers; and the "Cat Adoption Agreement" as their exhibit B.) The third document, attached to plaintiff's papers as exhibit D, is the "Amendments to the original Cat Adoption Agreement" dated July 14, 2020, and signed by plaintiff alone. (The defendants attach the "Amendments to the original Cat Adoption Agreement" as their exhibit M.)^[FN1]

These three exhibits shall hereinafter and collectively be referred to as the "Pet Adoption Agreement."

{**80 Misc 3d at 745}All parties agree to the following facts:

• The parties entered into a Pet Adoption Agreement;

• Plaintiff paid defendants $50.00 as an "Adoption Donation";

• Plaintiff took possession of the cat Buffy in or about October/November 2019;

• Plaintiff delivered Buffy to be boarded on June 22, 2020, because plaintiff was going to be out of New York State in Texas for a period of time;

• The defendants arranged the boarding of Buffy for plaintiff;

• The plaintiff signed "Amendments to the original Cat Adoption Agreement" on July 14, 2020; and

• Buffy has not been returned to plaintiff.

Plaintiff alleges separately in his moving papers the following:

• Plaintiff is the lawful owner of Buffy;

• On October 12, 2020, he was notified that he breached the Adoption Agreement and Buffy would not be returned to him;

• Plaintiff demanded the return of Buffy and the defendants have refused.

In addition, plaintiff's affidavit and his supporting text messages attached thereto further indicate that he represented to defendants that he was going out of town from June 20th to August 20th. However, plaintiff remained in Texas until October 2020. He sent a text to defendant Medvedeva on October 12, 2020, stating, "Hi, I will be coming home next week and I want to pick up [Buffy]. . . . I do not want any trouble just to get back what's mine. . . . Please."

Defendants separately allege in their affidavits in opposition and in support of their cross-motion the following:

• The parties entered into a Cat/Kitten Adoption Agreement;

• Defendants agreed to help board Buffy for two months;

• Defendants took possession of Buffy on July 16th after being boarded with foster families;

• Defendants determined that plaintiff breached {**80 Misc 3d at 746}material provisions of the Adoption Agreement;

• Defendants allege the plaintiff abandoned Buffy;

• Defendants advised plaintiff that the "placement of Buffy in his care was revoked";

• Defendants notified plaintiff that the Adoption Agreement was terminated;

• Defendants approved another family for Buffy's adoption and an adoption agreement was signed by another family;

• While defendants argue that "Plaintiff abandoned [Buffy]," they also acknowledge that "Plaintiff was in touch" with them while he was away for four months.

It is axiomatic that

"[o]n a motion for summary judgment, the moving party must 'make a 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.' If the moving party produces the required evidence, the burden shifts to the nonmoving party ' "to establish the existence of material issues of fact which require a trial of the action." ' " (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 175 [2019] [citation omitted], quoting Alvarez v Prospect Hosp., 68 NY2d 320 [1986].)

Plaintiff's motion for summary judgment made out a prima facie showing of entitlement to summary judgment, namely the agreement of the parties for his adopting Buffy and his [*3]possession of Buffy pursuant to the Pet Adoption Agreement, that Buffy was entrusted to defendants for temporary boarding, that plaintiff demanded Buffy's return, and that the defendants failed and refused to return Buffy to plaintiff. The burden now shifts to the defendants to show sufficient facts to demonstrate an issue of fact requiring a trial.

In response to plaintiff's motion, defendants cross-moved for summary judgment, arguing that they were entitled to summary judgment dismissing the complaint because plaintiff breached the Pet Adoption Agreement and abandoned Buffy.^[FN2] Defendants cited the parties' agreement with respect to Buffy{**80 Misc 3d at 747} and recounted numerous factual instances in support of their allegations that plaintiff breached their agreement by a failure to be financially responsible for Buffy, failure to provide Buffy with veterinary care, failure to treat Buffy in a humane and responsible manner, failure to provide companionship, and failure to provide food, and that defendants were not in possession of Buffy as defendants approved another family for Buffy's adoption and an adoption agreement was signed by another family.

Defendants allege that "[b]etween June 22, 2020 and July 15, 2020, the Plaintiff breached several provisions of the Adoption Agreement" and "[o]n or about July 16, 2020 [Defendants] notified the Plaintiff about the revocation and the Adoption Agreement termination." (Defendants' allegations of a breach of a boarding/foster agreement or adoption policies not referenced directly or by attachment to the Pet Adoption Agreement, or failure of plaintiff to disclose information are discounted in their entirety as being outside the four corners of the Pet Adoption Agreement.)^[FN3]

In support of defendants' argument that plaintiff was in breach of the Pet Adoption Agreement, they stated that plaintiff failed to provide financial stability beginning on June 24, 2020, because after defendant Yelena sent a text to plaintiff indicating that an Uber ride will need to be reimbursed and two small bags of litter would need to be reimbursed, plaintiff stated, "I am low on cash at the moment haven't been working." On June 27, 2020, defendant Yelena provided plaintiff with a breakdown of her expenses incurred on behalf of Buffy, "$138 . . . Uber round trip," "$20 Petco" and "$115 Petco." After a discussion between the parties regarding an acceptable payment method for plaintiff, who was in Texas, defendant Yelena indicated on June 29, 2020, that plaintiff could send the payment by{**80 Misc 3d at 748} Western Union. Thereafter defendant Medvedeva acknowledged by text to plaintiff on July 1, 2020, that she received plaintiff's payment. Defendants' allegation that plaintiff failed to be financially responsible for Buffy is without merit; plaintiff immediately reimbursed defendants for their expenses incurred for Buffy.

Next, defendants argue that plaintiff breached the agreement by failing to provide Buffy with food. In support of this point, both defendants allege that "upon Buffy's delivery to the foster/boarding care on June 22, 2020 Buffy was visually underweight, and appeared much skinnier than originally on the day of adoption." This is equally without merit as neither defendant was at the foster/boarding home on June 22, 2020, there is no indication in the Adoption Agreement as to what Buffy's weight was at the time of the adoption, and there is no indication as to what Buffy's weight was at any time while in defendants' control from June 22, 2020, onward.

Defendants further allege that plaintiff violated the Adoption Agreement by citing to undisclosed policies that are not found in the agreement concerning a "landlord pet policy verification." However, defendant Yelena concedes that she "personally delivered Buffy to [*4]Plaintiff" on November 19, 2019, and she provides as an exhibit a photo of plaintiff and Buffy in plaintiff's home. Further, in the Amendments to the original Cat Adoption Agreement dated July 14, 2020, plaintiff gives permission for his mother to keep Buffy in her apartment "(Address: [redacted] New York NY [redacted]) and provide him with all necessary care until I return from my trip on 08/20/2020." No part of the Pet Adoption Agreement requires that defendants are entitled to "a home visit/inspection" to plaintiff's mother's home. Plaintiff specifically allowed for "home visits for the next six months after I return from my trip covering the period from August 20, 2020 to February 2021."

Defendants allege that plaintiff violated the "Veterinary Care" provision of the Adoption Agreement. That provision states that "I agree . . . to provide [Buffy] with . . . veterinary care." The "Cat Adoption Agreement" portion of the parties' Pet Adoption Agreement provides that "I understand that Foster Parent recommends that I have a veterinarian examine this animal within 14 days of adoption." (Emphasis added.) The "Cat/Kitten Adoption Agreement" portion of the Adoption Agreement provides that "[we] recommend you seek veterinary care within 2-4 weeks of this adoption, at your expense." {**80 Misc 3d at 749}(Emphasis added.) Finally, the "Amendments to the original Cat Adoption Agreement" state, "I promise to take Buffy to the veterinarian for his health checkup and immunization. The visit shall be scheduled within 10 days after I return from my trip on August 20, 2020." While the first two (contradictory) provisions were only recommended, this final provision was an obligation. However, it became impossible for plaintiff to fulfill as defendants determined that plaintiff was in violation of the Adoption Agreement on July 16, 2020, just two days after plaintiff signed the "Amendments to the original Cat Adoption Agreement" and they thereafter refused to return Buffy to plaintiff.

[1] The defendants' arguments that plaintiff was in violation of the parties' Pet Adoption Agreement while Buffy was under their control is without merit and therefore this court does not find plaintiff in breach of the Pet Adoption Agreement.

Defendants allege plaintiff

"was away from June 22, 2020 to or about October 20, 2020. [He] was away for four months (not two months as he previously stated). Although the Plaintiff was in touch, it was clear that he could not care for the cat because of his busy baseball games and training schedule. In essence, the Plaintiff abandoned the cat." (Emphasis added.)

The question before the court is does the record reflect that plaintiff abandoned Buffy at any time on or after June 22, 2020, when Buffy was in defendants' control, and, at least for some portion of that time, defendants' custody?

For more than 100 years, the definition of abandonment in New York jurisprudence has been found to lie in as follows: "The abandonment of property is the relinquishing of all title, possession or claim to or of it—a virtual intentional throwing away of it. It is not presumed. Proof supporting it must be direct or affirmative or reasonably beget the exclusive inference of the throwing away." (Foulke v New York Consol. R.R. Co., 228 NY 269, 273 [1920].) "Usually the issue of abandonment presents a question of fact to be determined by all the facts and circumstances surrounding the finding." (Anderson v Pettit, 62 Misc 2d 763, 766 [Sup Ct, Cayuga County 1970].) "Proof [of abandonment] must be direct or affirmative, or must reasonably give rise to the exclusive inference of the intentional{**80 Misc 3d at 750} relinquishment of the property or right involved, as no abandonment or intention to abandon will be presumed." (1 NY Jur 2d, Abandoned, Lost, and Escheated Property § 54, citing Foulke, 228 NY 269.) However, to support the conclusion that there has been an abandonment, there must be some clear and unmistakable affirmative act or [*5]series of acts demonstrating an intention to repudiate ownership. (See Foulke, 228 NY 269; see also Weil v Atlantic Beach Holding Corp., Sup Ct, Nassau County, Special Term, Part II, Apr. 22, 1954, Stoddart, J., judgment mod on other grounds 285 App Div 1080 [2d Dept 1955], judgment mod on other grounds 1 NY2d 20 [1956].) Finally, "[t]he burden of proof of establishing abandonment is upon the party asserting it." (New York Connecting R. Co. v Queens Used Auto Parts, Sup Ct, Queens County, June 5, 1947, Garvin, J., judgment mod on other grounds 273 App Div 908 [2d Dept 1948], judgment affd 298 NY 830 [1949]; Weil v Atlantic Beach Holding Corp., Sup Ct, Nassau County, Special Term, Part II, Apr. 22, 1954, Stoddart, J., judgment mod on other grounds 285 App Div 1080 [2d Dept 1955], judgment mod on other grounds 1 NY2d 20 [1956].)

[2] Plaintiff did not abandon Buffy on June 22, 2020, the beginning of the period when defendants allege that, "in essence," he abandoned Buffy. Both parties agree that plaintiff, through the arrangements made with defendants, delivered Buffy to be boarded—only with a foster family for two months.

However, that period had barely begun to commence when on July 7, 2020, plaintiff sent a text to defendants stating: "Hi Wendy, I would like to set something up to have a family member of min[e] pick up Buffy." Thereafter on July 8, 2020, defendant Wendy set July 11, 2020, for plaintiff's family to pick up Buffy "between 1:00-1:30 @ the Petco in Brooklyn, 1610 Ave Y." The exchange of Buffy did not take place; on July 10, 2020, defendant Yelena texted plaintiff stating that due to "terrible thunderstorms and heavy rain in PA since this morning," she would not be able to make the trip from Pennsylvania with Buffy to New York. "So my trip to NY cannot happen today, I will get back to you later." Plaintiff responded with, "Ok Yelena, yes we will talk more later. I have someone waiting for Buffy."

On July 11, 2020, plaintiff sent a text saying, "Hey Yelena, do you know when you will be heading down to the city? Need to let the person know they are waiting." Defendant Yelena responded, "Not yet, I will let you know soon. Thx." On July 13, 2020, plaintiff next wrote, "It has been over a week and I want{**80 Misc 3d at 751} Buff back. Still have not received a day and tired of the guessing games. Someone has been waiting to get him."

Next, on July 16, 2020, plaintiff wrote, "Yelena, what happened? You were about to drop off my cat. Get my hopes up saying you're bringing Buff back? What are you doing, to me, it's not fair."

Defendants responded on July 19, 2020, with the following email:

"Hello Eric, I need to notify you that your Cat Adoption agreement was already breached. We did a further investigation and found another important breach of contract. Therefore your contract is terminated and my communication with you is over. Any further attempts to communicate with me or any Rescue team member will be considered a harassment and will be reported to police. Please provide with the address where refund for $253 should be mailed."

Plaintiff did not thereafter return to New York from Texas until October 2020. On October 12, 2020, plaintiff wrote the defendants:

"Hi, I will be coming home next week and I want to pick up my cat. I don't know what happened when my mother was supposed to pick him up but that had nothing to do with me. I have done nothing wrong but fight for my cat. We had such a close bond you saw that. Never hurt Buffy or did anything wrong. We spoke on whatever changes needed to be made with his food. I do not want any trouble just to get back what's mine. It's been a long (extended) summer and want to be with my buffy. Please."

On November 30, 2020, plaintiff commenced the instant action.

Defendants initially agreed to board Buffy on plaintiff's behalf for two months beginning June 22, 2020. Yet, on July 19, 2020, and after numerous requests by plaintiff to have Buffy returned to a family member on his behalf, defendants refused, indicating that he was in breach of their Pet Adoption Agreement. As set forth in detail above, plaintiff was not in breach of the Pet Adoption Agreement. Thereafter, refusing to return Buffy, they also threatened that "any further attempts to communicate with [defendants] or any Rescue team member{**80 Misc 3d at 752} will be considered a harassment and will be reported to police." While plaintiff could have communicated to defendants that he would be unable to further address this with them until he returned in October, instead of August, he did communicate with defendants that he wanted to personally pick up Buffy from them when he returned the following week after October 12, 2020. Given that the record of communications between the parties shows that plaintiff never intended to relinquish Buffy, defendants failed to provide any proof that could reasonably give rise to the exclusive inference that plaintiff intentionally relinquished Buffy to them.

Finally, within a month of plaintiff's return to New York, he commenced the instant action asserting his right to have Buffy returned to him.

The evidence herein directly contradicts the idea of abandonment. Therefore, this court decides that plaintiff did not abandon Buffy.

Plaintiff's allegations sound in both conversion and replevin.

" 'A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession.' " (William Doyle Galleries, Inc. v Stettner, 167 AD3d 501, 505 [1st Dept 2018], quoting Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006].)

In the instant action, there is no doubt that plaintiff took possession of Buffy from defendants pursuant to the Cat/Kitten Adoption Agreement and the Cat Adoption Agreement, thereby establishing plaintiff's possessory right or interest in Buffy. Next, defendants arranged on plaintiff's behalf to board Buffy. Finally, and upon plaintiff's demand, defendants refused to return Buffy to plaintiff. Thus, the elements of a conversion have seemingly been met. However, "[w]here a party's interests in property have been sold, there can be no interference with their property rights and a conversion claim may not be maintained." (Reif v Nagy, 175 AD3d 107, 120 [1st Dept 2019].)

Further, "the rule in this State is that a cause of action for replevin against the good-faith purchaser of a stolen chattel accrues when the true owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it." (Solomon R. Guggenheim Found. v Lubell, 77 NY2d{**80 Misc 3d at 753}311, 317-318 [1991].) Therefore, "demand upon, and refusal of, a person in possession of a chattel to return it are essential elements of a cause of action in replevin." (McGough v Leslie, 65 AD3d 895, 896 [1st Dept 2009] [citations omitted].)

Here, defendants state: "That on or about July 16, 2020 Buffy was transferred from the foster family to the care of our Cat Rescue Group. That later we approved another family for Buffy's adoption, and the Adoption Agreement was signed by that family."

[3] On this record there is insufficient evidence presented by plaintiff for a replevin determination as the defendants claim that they are no longer in possession of Buffy.

Upon the foregoing cited papers and proof submitted, summary judgment relief is denied as to plaintiff because the issue as to whether defendants or a third party have possession of Buffy cannot be decided on the record presented and without discovery. Further, summary judgment relief is denied to defendants as they failed to establish that plaintiff breached the Pet Adoption Agreement and/or abandoned Buffy.

Ordered that discovery is to proceed pursuant to New York City Civil Court Act article 11.

Ordered that the issues of conversion, replevin, seizure of chattels, and monetary damages are preserved.