Plaintiff, Michael Argentieri, by and through his former Attorney, Matthew Albert, on [*2]May 11, 2022, filed a Summons and Complaint (NYSCEF Doc. No.1) with Exhibit A annexed thereto (NYSCEF Doc. No. 2), setting forth causes of action for conversion, replevin, and for infliction of emotional distress, as a result of Defendant allegedly taking custody of the dog "Sable" and preventing Plaintiff from having access to Sable. Accordingly, Plaintiff is seeking a judgment awarding Plaintiff sole custody of Sable.

Plaintiff moved this Court by Order to Show Cause (NYSCEF Doc. No.3) pursuant to CPLR §6301 and 6313(a) wherein he sought the issuance of a Temporary Restraining Order (hereinafter "TRO") and/or a Preliminary Injunction, to:

1. Temporarily stay and enjoin the Defendant from relocating, selling, or transferring any ownership interest in the dog Sable (NYSCEF Doc. No. 4 at Para. 4); and

2. Transfer the dog (Sable) to the possession of the Plaintiff during the pendency of this action (NYSCEF Doc. No. 4 at Para. 8); and/or

3. imposing a visitation schedule in which Plaintiff and Defendant have three days off/four days access to the dog Sable pending the disposition of this action (Id.).

Plaintiff's former attorney, on May 11, 2022, filed an Attorney Affirmation in Support of the Order to Show Cause (NYSCEF Doc. No. 4), along with the supporting Affidavit of Michael Argentieri (NYSCEF Doc. No. 5).

On May 12, 2022, the Honorable Paul B. Wojtaszek, J.S.C., granted Plaintiff's Order to Show Cause setting forth a submission schedule and a Special Term return date of June 8, 2022 (see NYSCEF Doc. No. 9).

Defendant, Gina Dagostino, in reply to the Order to Show Cause, filed a responding Affidavit (NYSCEF Doc. No. 12) on June 23, 2022, with Exhibits A-H annexed thereto (NYSCEF Doc Nos. 14-21). Defendant, Gina Dagostino, by and through her counsel, Randy Gugino, also filed a Verified Answer with affirmative defenses and counterclaim (NYSCEF Doc No. 13) on June 23, 2022, for replevin seeking a dismissal of Plaintiff's action and a judgment awarding sole custody of Sable to Defendant.

On June 23, 2022, the Honorable Paul B. Wojtaszek recused himself from this proceeding and the matter was transferred to the undersigned. See NYSCEF Doc No. 22.

Plaintiff filed a Reply Affirmation on July 7, 2022, in further support of his application for injunctive relief (NYSCEF Doc. No. 24).

By correspondence dated July 9, 2022, the Plaintiff informed the Court that he terminated the services of his attorney, Matthew Albert, on that same date (NYSCEF Doc No. 25). On August 4, 2022, the Court granted an Order approving same (NYSCEF Doc No. 56).

On September 2, 2022, the Court conducted a full day hearing in regard to Plaintiff's Order to Show Cause. Plaintiff appeared pro se and Defendant having appeared and being represented by her attorney, Randy Gugino, Esquire. Testimony was taken by the Court. Both the Plaintiff and the Defendant gave testimony, as well as a number of witnesses; namely Town of Hamburg Police Officers Patrick Eagan and Christian Vogel, Town of Hamburg Dog Control Officer Richard Stoberl, and Town of West Seneca Police Officer Josh Biasillo. Plaintiff's Exhibits 2, 6, 7, 9 and 10, as well as Defendants Exhibits A, C, D, E and F, were all admitted into evidence.

All of the above were taken into consideration by the Court in reaching its determination as to Plaintiff's request for preliminary injunctive relief. The Court found that Sable was currently healthy and being appropriately cared for in his current setting, with the Defendant. The Court acknowledged that it was well aware that the Plaintiff deeply loves and is attached to [*3]Sable, however, the Court determined that Plaintiff had not met his burden, as he had not established by clear and convincing evidence, a likelihood of success on the merits of this action, at that time, and had not established that awarding custody of Sable at that particular time, solely to Plaintiff, would be in the best interests of all concerned. Accordingly, the Court denied Plaintiff's Motion for a TRO and Preliminary injunction and held that Sable should remain in the custody of the Defendant pending the outcome of this action. See NYSCEF Doc. Nos. 64 & 65. The Court pointed out to the parties that the determination was an interim determination pending the final outcome of this matter. Id.

Plaintiff then filed a Motion to Reargue and Renew on September 23, 2022 (NYSCEF Doc. No. 66). Plaintiff, by and through his newly retained attorney, Craig H. Bernhardt, filed a Notice of Motion to Reconsider Plaintiff's Order to Show Cause on October 17, 2022 (NYSCEF Doc. No. 68). Defendant, by and through her attorney, Randy H. Gugino, filed a Supplemental Answering Affidavit to Plaintiff's Motion on November 29, 2022 (NYSCEF Doc. No. 73 — 76).

An Order of the Court was entered on December 12, 2022, granting Plaintiff's Motion to Renew and setting forth relief including "access" of the Plaintiff to "Sable", amongst other terms and provisions set forth therein. See NYSCEF Doc. Nos. 81 & 82.

A Note of Issue requesting a jury trial was filed by Plaintiff on February 2, 2023 (NYSCEF Doc. No. 83). A Notice of Motion to Strike Note of Issue requesting the jury trial was filed on February 2, 2023 (NYSCEFG Doc. No. 84-86). A Memorandum of Law in Opposition to Plaintiff's Motion to Strike Note of Issue Requesting Jury Trial was filed by Defendant on March 17, 2023 (NYSCEF Doc. No. 88 - 92). By Order of August 8, 2023, the Court granted Plaintiff's Motion to Strike Note of Issue, striking Defendant's demand for a jury trial and ordered that the pending litigation be resolved by way of a bench trial. See NYSCEF Doc. No. 142. By way of Stipulation, the parties then waived their right to appeal the Court's August 8, 2023 Order, and stipulated to resolving the pending litigation by way of a bench trial. See NYSCEF Doc. No. 172. The parties further stipulated to the Court transcript of the Order to Show Cause hearing held on September 2, 2022, and all exhibits in support of and in opposition to said Order to Show Cause, being admitted into evidence at the trial of this matter. Id.

This Court held a bench trial from September 11, 2023 through September 13, 2023. The above-referenced Stipulation (NYSCEF Doc. No. 172) was entered into evidence on September 11, 2023, as well as the entire transcript of the September 2, 2022 proceeding before this Court, including Plaintiff's Exhibits 1 through 10, and Defendant's Exhibits A through H, all of which were previously received into evidence at the September 2, 2022 proceeding.

Counsel for the Plaintiff has represented to this Court that although the Plaintiff has set forth causes of action for conversion and infliction of emotional distress, this case is solely about possession of the dog Sable, namely replevin.

In 1979 the Court in Corso v. Crawford, 415 N.Y.S.2d 182 stated, "This Court now over rules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property. To say it is a piece of property and no more is a repudiation of our humaneness."

In 1999 the New York State Supreme Court, Appellate Division, First Department, issued a decision departing from the traditional property analysis of a chattel and classified a pet [*4](in that case, a cat) as a special type of property, acknowledging that pets cannot be treated the same as our other worldly possessions. Raymond v. Lachmann, 264 AD2d 340. In that case, the Court created a new equitable standard for deciding ownership disputes over household pets — the "best for all concerned" standard. This standard was adhered to in Travis v. Murray, 977 N.Y.S.2d 621 (2013) employing the "best for all concerned" standard. The Travis Court stated, "a strict property analysis [in determining a pet dispute] is neither desirable nor appropriate." This standard was adhered to in 2019 in the matter of Finn v. Anderson, 101 N.Y.S.3d 825, 827, where the Court stated "New York Courts have developed a 'quasi-interests 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.'" The Court went on to state that the standard that has been adopted by some recent Court decisions in New York is the "best for all concerned" standard. Id. at 828, citing Raymond v. Lachmann, 264 AD2d 340, 695 N.Y.S.2d 308 (1st Dept. 1999); Travis v. Murray, 42 Misc 3d 447, 455, 977 N.Y.S. 2d 621 (2013).

Accordingly, when analyzing a case involving the custody of a pet involving a non-married couple, the standard that has been adopted in New York is the "best for all concerned" standard. See Raymond v. Lachmann, 264 AD2d 340, 695 N.Y.S.2d 308 (1st Dept. 1999); Travis v. Murray, 42 Misc 3d 447, 455, 977 N.Y.S. 2d 621 (2013). The Plaintiff and the Defendant in the instant matter must prove that it is the "best for all concerned" for one of them to take sole possession of the dog Sable in order for either of them to succeed on their respective claims for replevin.

The Court will consider who owns the dog or whether the parties are co-owners by analyzing who paid for the dog, whether it was intended as a gift to another, whose name was listed as the owner of the dog on ownership related documents, such as vaccination, license, registration and veterinary records, who bore the primary responsibility for caring for the dog and who held themselves out as the owner of the dog through his or her words and actions. See Mitchell v. Snider, 51 Misc 3d 1229, 41 N.Y.S.3d 450, 2016 NY Slip Op. 50877. "Although important, ownership is just one factor to consider when determining who should possess the dog based on the best for all concerned analysis." Id.

When determining what is the "best for all concerned," the Court must also consider intangible factors such as why each party would benefit from having the dog in his or her life and why the dog has a better chance of prospering, loving and being loved in the care of one party or the other. Id., citing Raymond v. Lachmann, 264 AD2d at 341; Travis v. Murray, 42 Misc 3d at 460. The Court will consider who is in the best position to meet the dog's daily physical and emotional needs based upon a healthy, active lifestyle, time constraints, type of home and yard, emotional bond, safety concerns, financial ability, opportunities to socialize with other dogs, access to dog-friendly parks and outdoor activities and access to veterinary care and pet stores. Additionally, the Court will consider each party's ability to care for the dog. Id.

This Court is fully aware of the view of certain Courts that when deciding who is entitled to custody of a pet, a Court must award same to either one party or another due to the concern that a shared custody determination would result in "strain on the parties and the judicial system" because of the potential for ongoing litigation involving compliance with a shared possession agreement. See Hennett v. Allan, 981 NYS2d 293, 43 Misc 3d 542, 548 (Sup. Ct. Albany County 2014). However, it is this Court's opinion that there can be situations in which it may be the "best for all concerned" for both litigants (and for the pet), after assessing all the requisite [*5]factors, to equally share possession and custody of a pet that they have both equally shared and loved for years, and have engaged in a pattern and practice of equally doing so over the entire time they have jointly had custody of the pet. Not to equate the custody of a pet to the custody of a child, but by way of example, in cases involving the custody of a child, Courts do not simply grant exclusive custody to one parent over another solely because a joint custody arrangement may result in strain on the parents and the judicial system with ongoing litigation involving compliance with same. Courts handle such issues and disputes regularly. Courts are open for business, and in the event a Court awards joint custody in a case involving the custody of a pet, Courts are ready and able to assist in resolving any issues/disputes that may arise, as a Court would do in cases involving a child. This is what the judicial system is here for. Each case is unique, as each involves a multitude of complex factors, feelings, emotions and life situations, for both the litigants as well as for the pets involved. To remove a loved and cherished pet from someone's life, and to remove someone from a pet's life that said pet has cherished and loved for years, solely to avoid the possibility of "strain" on the parties and on the judicial system seems shallow, inhumane and unwarranted in certain cases.

Plaintiff and Defendant have known each other since they were children. They have never been married to each other. The parties re-acquainted on social media in 2016 and they began dating in August of 2016 and carried on a long-distance relationship for approximately one year. During that time, Plaintiff was residing in New York City and Defendant was residing in Western New York. The parties would speak on the phone at times for upwards of two to three hours. The parties at times would discuss their love for dogs and discussed the possibility of acquiring a dog. Defendant was working four twelve-hour shifts and, as Plaintiff testified to and the Court believes, Defendant was not in a position to acquire a dog (Trial Ex. 37, p. 163 at lines 1-3; p. 150 at line 12). Plaintiff resided in New York City which was not conducive to acquiring a dog (Trial Ex. 37, p. 162 at line 20). The parties discussed that by residing together in Western New York, they could acquire a dog (Trial Ex. 37, p.162 at lines 20-25).

As the Plaintiff's lease in New York City was to set to expire on October 1, 2017, the parties decided to move in together into Defendant's home in Western New York and they would acquire a dog. Defendant testified that she previously discussed that Sable would be "our dog" since the Plaintiff would be residing with her (Trial Ex. 37, p. 150 at lines 10-11).

Defendant reached out to the Buffalo Animal Shelter regarding available dogs (Trial Ex. 37, p. 163 at lines 3-6) and learned of a dog named Rocco that was available for adoption (Trial Ex. 37, p. 163 at line 7). Defendant sent a text message to Plaintiff regarding Rocco and Plaintiff responded that we need to get that dog (Trial Ex. 51), to which defendant responded, "I'm trying." Rocco ended up being adopted by another family.

On Thursday, September 28, 2017, Defendant was on a train to New York City to help pack Plaintiff's belongings and move him back to Western New York. Defendant sent Plaintiff a text message from the train regarding the dog currently known as Sable, which she had just learned was available, advising that she and Plaintiff ("we") could do a meet and greet with Sable on Sunday, October 1, 2017 (Trial Ex. 41). Defendant testified that she submitted an application, specific to Sable, to the Buffalo Animal Shelter while on the train (Trial Ex. 37, p. 121 at lines 14-20). When Defendant arrived in New York City on September 28, 2017, she e-[*6]mailed a blank adoption application to Plaintiff (Trial Ex. 24). Although Defendant testified at trial that she never sent an application to Plaintiff, and that she had never received an e-mailed application from Judy Bunge (Sable's foster mom), the evidence (Trial Ex. 24) establishes that she in fact did so. Trial Exhibit 24, as well as Plaintiff's testimony, confirm that Judy Bunge e-mailed the blank application to Defendant at 9:56 p.m. and the Defendant immediately e-mailed it to Plaintiff at 10:02 p.m. on Thursday, September 28, 2017 (Trial Ex. 24). The parties each completed their respective applications, however, the Defendant took the application she completed and submitted it to Sable's foster mother, Judy Bunge, on Sunday, October 1, 2017. The parties returned to Buffalo the following day on Friday, September 29, 2017 (Trial Ex. 45 — dated photo leaving NYC) and two days later, on Sunday, October 1, 2017, they went to the home of Judy Bunge to meet Sable.

It is undisputed that Plaintiff paid cash to Judy Bunge for Sable, and it is also undisputed that the Adoption papers were solely in Defendant's name. Upon Plaintiff paying the fee and the Defendant signing the adoption papers, both parties took their first photo together with Sable (Trial Ex. 50) and took Sable to Ted's Hot Dog's. (Trial Ex. 37 at lines 22-25). Subsequent to acquiring Sable, and as proof of Plaintiff's state of mind, he sent messages to his daughter and friend that he and Defendant had added a new member to the family (Trial Ex. 18 & 19). The parties cohabitated with Sable for approximately two (2) years, until the summer of 2019.

After Sable was acquired, the Defendant went to the Town of Evans to license her on October 18, 2017, and put only her name on the license. After Plaintiff questioned it, Defendant returned to the Town of Evans on February 2, 2018, and added Plaintiff's name to the license (Trial Exhibit 33). Defendant testified that she added Plaintiff's name simply to "shut him up." However, the fact of the matter is that she added his name to the license three and a half months after acquiring Sable and did so after Plaintiff requested same.

While the parties cohabitated with Sable, Plaintiff would take Sable for a run in the mornings and was able to spend all day with Sable (Trial Ex. 37, page 153 at lines 6-7). He took Sable to the dog park, Doggie Day Cares, and to the gym, wherever he could (Trial Ex. 37, page 152 at lines 23-25; p. 153 at lines 6-21). He would take Sable to the Supermarket, to PetSmart, and to Home Depot (Trial Ex. 37, page 153 at lines 22-25). The evidence establishes that Plaintiff spent more time with Sable than the Defendant (Trial Ex. 37, p. 155 at lines 12-13) during that time. The Court acknowledges that Plaintiff had more time to spend with Sable due to the fact that he did not work at times and when he did work, he did not work the same number of hours as Defendant.

Plaintiff testified that Sable was his best friend (Trial Ex. 37, page 155 at line 17). The Court does not doubt the Plaintiff's testimony in that regard. Plaintiff even created a "day in the life of Sable" video (Trial Exhibit 29). During the two years the parties cohabitated, Sable and Plaintiff played in the yard, watched television together, Sable laid next to Plaintiff while he did schoolwork, Sable slept next to Plaintiff on his side of the bed waking up right next to him every morning (Trial Ex. 37, page 12 at lines 21-24).

The Defendant testified at trial that she takes Sable for walks and enjoys walking her. The parties both invested time, finances, and emotion into Sable (Trial Ex. 37, page 171 at lines 20-23).

In the summer of 2019 Plaintiff moved out of the Defendant's house. For the next two and a half years the parties shared custody of Sable. They shared Sable every 3-4 days a week, and during Covid Plaintiff had Sable 5-6 days a week because Defendant was doing hair out of [*7]her home (Trial Ex. 37, p. 189 at lines 15-18; p. 43 at lines 10-13). The 2 ½ year text message exchange between the parties was entered into evidence as Trial Exhibit 36. The Court agrees with Plaintiff that a reading of those text messages reveals that 99% of the text messages over the 2 ½ year period of time pertain to Sable and what time or day she will be picked up or dropped off and where. The Court also agrees with Plaintiff that a review of the entire exchange reveals a cordial, friendly relationship with Defendant asking about Plaintiff's parents; Defendant offering to help Plaintiff following his surgery; Defendant offering to take Plaintiff to dinner for his birthday; Plaintiff shoveling the Defendant's driveway; Defendant cutting Plaintiff's hair every other week; discussing vet needs; messages about Plaintiff being able to get Sable's food cheaper through Chewy (confirmed by Defendant text messaging within Trial Exhibit 36 and Trial Exhibit 37, p. 57 at lines 12-22); Plaintiff being able to get Sable's chicken (Trial Ex. 53); and so on.

During the 2 ½ years the parties resided apart and shared Sable, Plaintiff testified at trial that he walked Sable daily, exercised Sable, took Sable to dog parks, Home Depot, to work, to the gym, and that Sable is always with him. Nothing really changed for Sable (Trial Ex. 37, p. 155 at lines 11-17). Plaintiff produced photographs and videos of Sable seeing Santa, riding in the car, playing in his yard, running at dog parks, etc. The videos reveal Plaintiff carrying on full blown conversations with Sable (Trial Ex. 20 and 29). It is clear to this Court from watching the videos that Sable appears to be thoroughly enjoying herself and smiling from ear to ear when he is spending time with the Plaintiff. And the Plaintiff does as well when he is with Sable. Additionally, Plaintiff's physician, Dr. Rhodes, certified that Plaintiff utilizes an emotional support dog for his post-traumatic stress disorder. (Trial Ex. 55).

As the Defendant resided in West Seneca and Plaintiff resided in Hamburg, Sable was licensed by the respective jurisdictions to each of them, Plaintiff as Sable's owner in Hamburg and Defendant as Sable's owner in West Seneca (Trial Ex. 23 and E). During the 2 ½ year period of time, Plaintiff purchased his own food for Sable (Trial Ex. 32) and all of Sable's flea and tick medication, Advantix (Trial Ex. 31). Plaintiff paid for all of Sable's day care needs (Trial Exhibit 40). Plaintiff paid for veterinary bills as well (Trial Ex. 37, p. 171 at lines 20-22).

Defendant contends, and the Court agrees, that she made the majority of veterinary appointments for "Sable" and that she paid the majority of the veterinary bills for Sable's care. Defendant's exhibits C, D and F were admitted into evidence, in context with the September 2, 2022 proceeding, and on Stipulation of the attorneys at the onset of trial. The vast majority of the invoices/records contained within the Defendants exhibits "C", "D" and "F" set forth the client's name as Gina Dagostino and/or are addressed solely to her. The Defendant also testified that she made all of the obedience classes attended by "Sable" and solely made the arrangements for "Sable" to attend same. This Court recognized in its decision dated September 16, 2022, page 6, NYSCEF Doc. No. 65, on the cross examination of the Defendant, the Plaintiff established that he contributed to paying some of the veterinary bills, however, based upon the evidence submitted at the Order to Show Cause TRO and Injunction hearing, it was clear that the Defendant paid the majority of same.

It is also clear to the Court that both parties, although not exactly equally, contributed financially to Sable's care.

Defendant maintains, and the Court agrees, that Defendant has a nicer house than Plaintiff and has a larger yard for Sable to play in. However, the Court agrees with Plaintiff that he has created, to the best of his ability, a loving home for Sable. Plaintiff produced photographs [*8]revealing that Sable has a bed in nearly every room of his home; he fenced his entire backyard in so Sable can play freely outside; he has a sign on the front of his home that states, "A Spoiled Rotten Dog Lives Here" (Trial Ex. 20, 29 & 58). Plaintiff testified that during the time the parties lived apart he opened his own doggie day care, "Mickey Dogs," for the sole purpose of being able to spend every moment of every day with Sable (Trial Ex. 37, p. 13 at lines 15-18 & Trial Ex. 11). He operated Mickey Dogs from June of 2019 through April of 2021 (Trial Ex. 35).

On April 12, 2022, the above relationship took a turn when Plaintiff and Defendant met at the Village Vet in Hamburg for a scheduled vet appointment. Both parties testified they met in the parking lot. Plaintiff had Sable's leash when they entered the facility. They checked in and waited, they entered the exam room, and an examination was conducted. When the examiner left the room an argument ensued. Plaintiff testified that he noticed his Hamburg License Dog Tag was not on Sable and that started the argument because they were sitting there and he said where's my tag, she took it off (Trial Ex. 37, p. 167 at lines 21-25). He testified his tag was on Sable the night prior when defendant picked Sable up (Trial Ex. 37, p. 167 at lines 22-23). Defendant testified at the Order to Show Cause hearing, "I took the collar off of her that had the tag that you put on it yes" (Trial Ex. 37, p. 30 at lines 24-25).

As stated above, both parties had dog tags/licenses for Sable. Accordingly, they both held themselves out as "owners" of Sable not only through their actions, but also through their words.

Defendant understood that Plaintiff had tagged Sable in Hamburg as proof of ownership. Defendant testified, " . . . you insisted upon doing it because you wanted proof that Sable was yours, so you got a second license for her" (Trial Ex. 37, p. 33 at lines 16-17). Clearly, Defendant was aware Plaintiff licensed and tagged Sable in Hamburg for purposes of establishing ownership.

Defendant was only permitted to leave the Village Vet in Hamburg with Sable because she had removed Plaintiff's tag for Sable the night prior. Dog Warden Stoberl testified that he allowed the Defendant to leave with the dog because Plaintiff's tag was not on the dog. (Trial Ex. 37, p. 84 at lines 15-17). Defendant thereafter refused to allow Plaintiff and Sable to see each other and the instant action was commenced by Plaintiff.

Pursuant to this Courts Order of December 12, 2022, the parties have been on a shared access schedule of Sable since that time. See NYSCEF Doc. No. 81. The Court Order staggered pick-ups and drop-offs of Sable so as to avoid any contact between the parties, among other provisions. Id. Sable has continued to prosper throughout.

The Court agrees with Plaintiff that the Defendant has violated this Courts Order on various occasions without consequence. The Court has given the Defendant great deference and latitude in this regard due to the fact that she has been and continues to be undergoing significant medical treatment for a life-threatening condition/diagnosis.

Throughout the shared access schedule, Plaintiff testified that he purchased all of his own food for Sable, and that he has properly vetted and solely paid for vetting costs. Plaintiff takes Sable to Banfield Vet (Trial Ex. 21). He testified that he works two jobs, Zoladz Limousine and Fisher Transportation. He has the flexibility of working as much or as little as he desires. He has the ability to take Sable to work with him at Fisher and produced a photo of him and Sable working together (Trial Ex. 20). He testified that when he has Sable, she is always with him and they do the things Sable loves, such as going to dog parks, Home Depot, etc.

The defendant testified she takes Sable for walks. The Court truly believes that the Defendant does more with Sable than simply taking her for walks. However, the Defendant's testimony was quite limited in that regard. The Court is aware of the significant medical treatment Defendant is undergoing and will give Defendant deference as a result of same in that she may not remember and was not as elaborative as the Plaintiff was during her testimony in describing the daily interactions she has had with Sable and activities they do together.

The Plaintiff produced witnesses at the trial of this matter. Marcia Rafter-Ritchie, the owner of "The Family Companion", Western New York's Premier Professionals in Pet Training and Behavior Health, testified. She holds an Associates of Applied Science degree in veterinary science, which she acquired in 1977. She has been an obedience and conformation dog show competitor since 1979 and a professional pet obedience instructor in Buffalo, New York, since 1984. Ms. Ritchie testified she was among the first instructors to receive national certification through the Association of Pet Dog Trainers (APDT), of which she is a charter member. She is a member of the organizing committee of the Academy of Veterinary Behavior Technicians. Ms. Ritchie testified to having spent time with Plaintiff and Sable at Plaintiff's home. She testified that Plaintiff has created a loving home life for Sable. When asked to assume that the parties to this action have shared custody of Sable for the past six years and specifically what is in Sable's best interest, Ms. Ritchie testified that in her opinion, having both parties to this litigation in Sable's life is in the best interest of Sable. Ms. Ritchie further testified that in her opinion, it is in Sable's best interest not to disrupt Sable's current shared access routine. The Defendant has testified that if she is awarded custody of Sable, Plaintiff and Sable will never see each other again, thereby disrupting Sable's routine and removing Michael from Sable's life.

According to Ms. Ritchie, this is not in Sable's best interest. Plaintiff has testified that if he is awarded custody of Sable, he will continue to allow the Defendant to see Sable and continue the current shared access schedule.

Defendant also called Holly Donohue to testify. Ms. Donohue testified that she is the owner of a La De Da Pet Spa in Orchard Park and K9 Barks N Brews in Hamburg. Ms. Donohue testified she is an avid animal lover running two businesses centered around canines. She testified that her education and training are in the field of animal behavior. She testified that she raised German Shepherds her whole life. She testified that Michael Argentieri appeared at K9 Barks N Brews with Sable for a meet and greet session where she monitored their interaction. She testified that based upon her observations, education and experience, Michael Argentieri is Sable's "alpha human" in that Sable would not take her eyes off of him. When presented with the facts and circumstances pending in the instant action Ms. Donohue testified that it would not be in Sable's best interest to disrupt her current shared access routine. She testified it was in Sable's best interest to have both parties to the litigation in Sable's life.

Nicole Hynes testified at trial. She is a mental health counselor having counseled Plaintiff bi-weekly for an approximate 18-month period of time. Ms. Hynes testified that the conversations had with Plaintiff primarily centered around Sable and that upon being separated from Sable his mental health and well-being deteriorated. She testified that Plaintiff requires Sable in his life for his health and well-being and that in the event Sable is removed from his life, his health and well-being will suffer. She testified that once Plaintiff and Sable were reunited through the Court's shared access schedule Plaintiff's health and well-being were restored. She has stated that Plaintiff has identified Sable as his emotional support dog and the presence of Sable in Plaintiff's life is necessary for his emotional/mental health. See Trial Ex. [*9]12. Her testimony clearly establishes that having Sable in his life for his health and well-being is in Plaintiff's best interest.

Defendant called three of her friends to testify at the trial of this action. The three individuals testified to a couple of arguments that occurred between the Plaintiff and Defendant. As pointed out by the Plaintiff's counsel, the parties began dating in August 2016. These three individuals, collectively, were able to point to no more than three arguments between the parties that occurred over the course of seven (7) years. The incidents referenced were related to issues involving Sable.

The Court understands that Defendant's position is that she and Plaintiff cannot have joint custody of Sable because she believes Plaintiff is unstable as a result of the couple of arguments and incidents that occurred between the parties over the years. Defendant's position is that Plaintiff's conduct during the various episodes described in detail at the September 2, 2022 proceeding, as testified to by the dog warden and police officers, and verified by the Village Veterinary, including the incident at the Catt-Rez gas station and with Matthew Mann, all center around Plaintiff's fixation with the Defendant, and give serious indication that the Plaintiff is not stable, and that he is both confrontational and combative, when he perceives that something is being taken away from him that he feels he is rightfully entitled to whether that be "Sable, or the Defendant herself."

The Court viewed the alleged incident that took place at the Defendant's residence where Plaintiff knocked on Defendant's front door and was singing to Sable, which allegedly alarmed the Defendant. Plaintiff was not banging on Defendant's door, he was not yelling, he calmly knocked on the door, and he was singing to Sable until he realized that Plaintiff was not going to answer the door and he left. Nothing in the video showed any action or conduct by Plaintiff that would cause the Defendant or a reasonable person to become scarred or alarmed, as Defendant has alleged.

The argument at the Village Veterinary Clinic became heated because Plaintiff realized Defendant had removed his tag off of Sable and he believed she was trying to take Sable away from him permanently — which is what occurred.

Lastly, the incident at the Catt-Rez gas station is an example of Plaintiff overacting and losing his temper towards Plaintiff which was as a result of Plaintiff not answering his calls/texts, thereby, in Plaintiff's mind, preventing him from being given access to Sable. Plaintiff lost his cool because of same and an argument ensued which resulted in the parties, and Mr. Mann, going to Defendant's home where Plaintiff was given access to Sable.

The arguments/incidents referred to above were the result of Plaintiff being denied access to Sable. As stated above, these are only three incidents/arguments pointed to byDefendant that occurred between the parties over the course of a seven-year period.

Defendant also contends that she offers and has provided a stable environment for Sable, she is and has always been employed, she has and currently owns her own residence, and she has by all accounts provided the care and supervision of Sable since acquiring her. The Court agrees. She alleges that Plaintiff on the other hand, by all accounts, has never maintained a stable job, has provided no proof of income, filing of tax returns, or financial ability to provide for Sable and has taken on the task of providing for his elderly mother as well. The Plaintiff's living conditions are inferior to that of the Defendants. Plaintiff testified that he has desires to become an "actor", but other than tending bar or working at a limousine service, does not offer the Court any evidence, testimony or proof that he is in fact financially able to provide for Sable.

In assessing the "best for all concerned" standard, the Court finds that the Plaintiff has a home, he is connected to Western New York, and he has gainful employment. He is not as financially successful as Defendant, nor does he have a home that is as nice as Defendant's, however, however he is living a crime free life and doing the best he can in the Court's eyes. Catalano Motors Inc. produced documentary evidence that Plaintiff had rented a building from them for over three years, they had no problems with Plaintiff, that rent was always paid on time and they considered Plaintiff a prime tenant who was dependable and honest (Trial Ex. 60). Donald Zoladz of Zoladz Limousine produced documentary evidence that Plaintiff was employed by him since November of 2019; was a valuable and trusted employee with 24/7 access to his shop, vehicles and gas cards; handled cash payments on his behalf; always presented with a professional attitude, is levelheaded with a good demeanor; and had been a college student since hire. (Trial Ex. 16).

Plaintiff attended and obtained an Associate in Science Degree in Liberal Arts and Science-General Studies from Erie Community College on May 20, 2020, and an Associate in Science Degree in Communication and Media Arts on May 6, 2021, with overall GPA's of 3.4 and 3.3 respectively, and as a Dean's List Recipient (Trial Ex. 35). He operated his own business, Mickey Dogs, from June of 2019 to April of 2021 so as to be able to spend every moment of every day with Sable (Trial Ex. 11 & 35). He attended Buffalo State College obtaining a B.A. in Communication Studies in 2023 recognized by the National Communications Associates Honor Society (Trial Ex. 35). He has worked in the local film industry with aspirations to develop his communications and journalism skills through acting (Trial Ex. 35). He owns his 2006 Corvette outright; owns his Chrysler outright; owns a Lincoln navigator; has a credit score of 760; and honored his lease obligations even through Covid (Trial Ex. 37, p. 192 at lines 13-25; p. 193 at lines 1-6).

Plaintiff testified at trial that he currently held two employment positions, Zoladz & Fisher, with the flexibility to work as much or as little as he needs. He has had no difficulty providing for Sable during the Court's shared access Order. He vets Sable regularly at Banfield (Trial Ex. 21). While the parties lived apart for 2 ½ years and shared Sable he paid for all of his own food (Trial Ex. 32), all of Sable's Advantix medication (Trial Ex. 31), paid his share of vet bills (Trial Ex. 37, p. 171 at lines 20-22), and paid for all of Sable's daycare needs (Trial Ex. 40). He testified regarding the loving home he has created for Sable (affirmed by Marcia Ritchie) and produced many photos and videos of his interactions with Sable (Trial Ex. 20 & 29).

Plaintiff testified that once Sable was taken from him by the Defendant, he became consumed by her loss. He was not sleeping, he was overeating, and he was not exercising (Trial Ex. 37, p. 173 at lines 2-5).

When asked by the Court if Plaintiff would allow Defendant to see Sable if he had custody, he responded by stating "[A]bsolutely," the best interests for Sable is to be with everybody. He also stated ". . . I'm not going to do that to Sable" (Trial Ex. 37, p. 177 at lines 1-9). Plaintiff argues that despite everything the Defendant has done to him, he is capable of putting Sable's best interests (same routine as past six years and having both parties to the action in her life — according to two dog behavior experts - Marcia Ritchie and Holly Donahue) above his own and the Defendant is not.

Defendant maintains that with respect to veterinarian records, "all of which I have attended, arranged for, and paid for, exclusively." In essence, defendant maintains that she exclusively attended every vet appointment. The Village Vet records document that Michael [*10]Argentieri was present at several vet appointments and that on some occasions he was solely present or involved in phone exchanges. Defendant's affidavit states that she exclusively paid for every vet appointment. At the order to show cause hearing and at trial, Defendant testified that Michael paid her money for some vet appointments. Plaintiff testified that he paid for half of all vet appointments. Indeed, the Village Vet records confirm Plaintiff was present on April 12, 2022; the January 11, 2022 record states "Mrs. Owner requested inj., Mr. Owner says try the tabs"; the April 28, 2020 note regards a conversation with Plaintiff as referencing "he" as owner; the March 2, 2020 reveals Plaintiff was at the vet with Sable alone; the February 13, 2020 record refers to a conversation with owner referring to Plaintiff; the September 18, 2018 note references a referral to trainer Marcia Ritchie at The Family Companion (testified on behalf of plaintiff) among others; the October 11, 2017 note (10 days post-acquisition of Sable) states, "owners have been seeing some mucus at home" (Trial Ex. 22); Police Officer Eagan testified that the Village Vet had Plaintiff's Hamburg license for Sable on file with their business, not defendants license (Trial Exhibit 37, p. 66 at lines 15 - 17).

Defendant testified at the order to show cause hearing that during the time she and Plaintiff resided together there were "times" Mike insisted on contributing to vet bills but she paid the majority (Trial Ex. 37, p. 145 at lines 14-18). Plaintiff testified he paid half (Trial Ex. 37, p. 171 at lines 20-22). A review of the Village Vet records (Trial Ex. 22) reveals that during the time the parties resided together Sable had only gone to the Vet on three occasions, October 11, 2017; September 18, 2018; and September 6, 2019. Accordingly, the Court finds that although both parties financially contributed to Sable's veterinary costs, the Defendant contributed more.

Evidence of joint ownership is exhibited where Defendant considers October 1, 2017, the day they brought Sable home, to be one of their "anniversaries" (Trial Ex. 49). Moreover, the Defendant handed Plaintiff a Father's Day card on Father's Day stating it is from Sable (Trial Ex. 61). Defendant referred to Sable as being Mike's girl (Trial Ex. 42). When Defendant first discovered Sable was available Defendant texted Plaintiff saying "we" can meet her Sunday (Trial Ex. 41). Defendant added Plaintiff's name to the license soon after acquiring Sable (Trial Ex. 33). The parties took the initial adoption photo together (Trial Ex. 38). Moreover, Defendant never disputes Plaintiff licensing Sable in Hamburg as proof of ownership once they moved apart (Trial Ex. 23). Defendant left Plaintiff's Hamburg ownership tag on Sable all the way up until April 11, 2022. Defendant emailed Plaintiff a blank copy of Sable's adoption application the moment she arrived in New York on September 28, 2017, so they could complete it (Trial Ex. 24). Defendant asked Plaintiff if he was able to get Sable's food through Chewy cheaper (Trial Ex. 36). Defendant texted Plaintiff asking if he was able to obtain Sable's chicken (Trial Ex. 53). Defendant allowed Plaintiff to pay for all of Sables Advantix medication (Trial Ex. 31). And most persuasive to this Court as evidence of joint ownership is the fact that once the parties moved apart, they swapped Sable back and forth for 2 ½ years weekly, all of which is not disputed and is documented in the voluminous text exchanges between the parties (Trial Ex. 36).

There is no doubt in the Court's mind that this dog, Sable, was and is their dog together. Whether one party paid more in veterinary bills (Defendant), or one party spent more time with Sable (Plaintiff), the fact of the matter is that they are both Sable's parents from the moment Sable was acquired. Each of the parties love and cherish Sable dearly, and Sable them. They worked as a team for years raising and loving Sable, each providing in ways the other could not, [*11]whether it be because one had more money than the other or one had more time to spend with Sable than the other or because one had a nicer home than the other. This has been established by a review of the voluminous text messages between the parties over the course of years. See Ex. 36. Both parties can and have provided suitable homes for Sable, and both can provide for Sable financially as well. They have been able to continue to jointly own and possess and raise Sable for years cooperatively. A couple of arguments/incidents over a seven year period do not change that.

As pointed out by Plaintiff, at paragraph 9 of her sworn statement, Defendant indicated that she was on 7 or 8 different medications which had various side effects, including weakening of her achilleas tendons, severe migraines, insomnia, and on occasion she could only sleep 2 hours out of every 48 (NYSCEF Doc. No. 102 / Trial Ex. 46). That as a result of her medical condition, she could not maintain a set work schedule and is fitting appointments in when she can. At paragraph 5 Defendant confirmed her diagnosis, medical appointments and scheduling were time consuming and affecting her physically and emotionally. At paragraph 10 it is relayed that her life expectancy is unknown. This Court is of the opinion, based upon the testimony and evidence presented, that Plaintiff can and would assist Defendant with caring for Sable in the event that her condition were to worsen and her ability to care for Sable became limited.

Again, as stated by counsel for the Plaintiff, "God forbid the defendants condition should deteriorate. What would become of Sable?" To think that if this Court were to award sole and exclusive possession and custody of Sable to Defendant, and something were to happen to her, Sable would be left without either Plaintiff or Defendant in her life. That is a potential situation which can be and should be avoided as it would clearly not be the "best for all concerned."

Sable is approximately ten (10) years old. As a German Shepard she is approaching the end of her life expectancy. To remove her from one of her owners, or to remove one of her owners from her, at her age, and after all of these years together, would be unconscionable and not be the "best for all concerned."

The parties clearly entered into an oral contract to acquire Sable, to jointly raise Sable, and after their break-up, agreed to share joint custody of Sable which they continued to do for years. Therefore, neither party is entitled to exclusive possession and custody of Sable over that of the other. It is the "best for all concerned" that the parties share joint custody of Sable, with equal access and responsibility, consistent with the terms and conditions set forth in the Court's Order of December 12, 2022 (NYSCEF Doc. No. 81 & 82).

As for the parties Applications for Quantum Meruit Counsel Fees, the Court denies both Applications as the Court finds that neither party engaged in frivolous conduct and finds that there is no legal basis upon which to award fees to either party in this matter.

Accordingly, after due deliberation having been had, it is hereby ORDERED, ADJUDGED AND DECREED, that:

1) the Parties claims for Replevin are dismissed, with prejudice; and

2) to the extent not addressed above, all other claims brought by the parties are dismissed, with prejudice; and

3) the parties are hereby Ordered to share joint custody of Sable, with equal access and responsibility, consistent with the terms and conditions set forth in the Court's Order of December 12, 2022 (NYSCEF Doc. No. 81 & 82), excluding the out of state travel prohibition; and

4) the parties Applications for Quantum Meruit Counsel Fees are denied.