D'Angelo v Feijoo-Nickell

Supreme Court, Kings County

Decided on May 4, 2026

Index No. 505810/2026

Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the order to show cause filed on March 2, 2026, by Valerie D' Angelo (hereinafter the plaintiff) for an order directing Catherine Feijoo-Nickell (hereinafter the defendant) to return a dog named Grace to the plaintiff.

-Order to show cause

-Verified petition and affirmation

Exhibits A-I

-Emergency affirmation in support

-Affirmation in opposition, by counsel

-Affirmation in opposition, by defendant

Exhibits A-K

-Affirmation of plaintiff's counsel in reply

[*2]BACKGROUND

On February 17, 2026, Valerie D'Angelo (hereinafter the plaintiff) commenced the instant action by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). The verified complaint has alleged ninety-seven allegations of fact in support of eight denominated causes of action. The first cause of action is pursuant to CPLR 7101 in replevin for the return of chattel, namely the dog named Grace. The second cause of action is for a temporary restraining order and a preliminary injunction. The third cause of action is for an order of protection. The fourth cause of action is for a declaration that plaintiff is the rightful sole owner of a dog named Grace and that defendants have no rights to maintain possession of Grace. The fifth cause of action is for monetary damages based on larceny. The sixth cause of action is for monetary damages based on fraud. The seventh cause of action is for negligent infliction of emotional distress. The eighth cause of action is for intentional infliction of emotional distress.

The verified complaint has alleged, among other things, the following facts. On or about December 19, 2025, the plaintiff agreed to allow the defendant to "dog sit" for her dog Grace. At the time, the plaintiff was suffering from Crohn's disease and various other medical and/or emotional issues that were causing distress in her life including non-epileptic seizures. Also, on said date, various repairs were in the process of being made to the plaintiff's apartment, including repairs to her ceiling. On or about February 1, 2026, the plaintiff demanded that the defendant turn over Grace because she missed her, and again, needed the dog back for emotional support and therapeutic reasons.

The plaintiff also made phone calls to the defendant on eleven occasions, where she intended on requesting Grace's return by the defendant and left voice messages demanding Grace's return. The defendant did not return Grace to her and remains in the control of the defendant.

On March 4, 2026, Catherine Feijoo-Nickel (hereinafter the defendant) filed an answer to the verified complaint with the KCCO with eleven affirmative defenses.

On March 2, 2026, the plaintiff filed the instant order to show cause seeking an order directing the defendant to return the dog Grace to the plaintiff. The plaintiff also sought as interim relief an order directing the defendant, within 48 hours of the entry of the within Order, to turn over the dog, Grace, on an interim basis to the care of Sean Casey Animal Rescue (hereinafter SCAR), an animal shelter, which shall be directed to allow liberal supervised visitation of the dog Grace by the parties upon notice pending a hearing and final Order of the court.

On March 5, 2026, the Court signed the order (hereinafter the March 5, 2026, order) and set the return date to March 19, 2026, in Part 52 of this Court. By order dated March 19, 2026, the Court set the matter down for an evidentiary hearing to determine the instant order to show cause on March 24, 2026, at 10:30 am with the temporary restraining order remaining in place.

LAW AND APPLICATION

On March 24, 2026, the Court conducted an evidentiary hearing on the instant order to show cause, during which the temporary restraining order remained in effect.

The undisputed evidence is that on November 2, 2018, Grace was originally purchased by William Lynott from Sean Casey Animal Rescue ("SCAR"). Grace was then eight weeks old at the time. Lynott gifted Grace directly to the plaintiff. The plaintiff obtained a license for [*3]Grace and had her microchipped around that time. The plaintiff had continuous possession and dominion over Grace from then up until December 19, 2025. It is also undisputed that the plaintiff and defendant are neighbors, that they reside in the same building complex, and that the defendant's residence is two floors below the plaintiff.

At the hearing, plaintiff's counsel called the defendant to testify. The defendant testified that on December 19, 2025, the plaintiff told her that she would take Grace to a shelter if the defendant did not take her. At that time, the defendant had known the plaintiff for less than a year. The defendant agreed to take the dog. At that time the defendant understood that she would being taking care of the dog on a temporary basis. In fact, on at least two prior occasions the defendant had, at the plaintiff's request, taken the dog on a temporary basis and promptly returned the dog when the plaintiff advised her that she was ready to take the dog back.

On or about December 29, 2025, the plaintiff came to the plaintiff's apartment for the dog's vaccination records for the purposes of showing them to a dog groomer.

On February 1, 2026, the plaintiff asked for the return of Grace on a voicemail left for the defendant. On that date, the plaintiff also rang the defendant's doorbell four times demanding the return of Grace. The defendant refused to open the door and would not return Grace. The defendant believed that the plaintiff was no longer entitled to the return of the dog because the plaintiff had abandoned the dog to her.

"The elements necessary for a valid inter vivos gift are (1) intent of the donor to make an irrevocable present transfer of ownership; (2) physical or constructive delivery, sufficient to divest the donor of dominion and control over the property; and (3) acceptance of the gift by the done" (Lurie v Lurie, 200 AD3d 669, 670 [2d Dept 2021]; see Gruen v Gruen, 68 NY2d 48, 53 [1986], citing Matter of Szabo, 10 NY2d 94, 98 [1961]; Matter of Katz, 154 AD3d 687, 689 [2d Dept 2017]; Chiaro v Chiaro, 213 AD2d 369, 370 [2d Dept 1995]). "[T]he proponent of a gift has the burden of proving each of these elements by clear and convincing evidence" (Matter of Katz, 154 AD3d 687, 689 [2d Dept 2017], citing Ross v Ross Metals Corp., 87 AD3d 573, 575 [2d Dept 2011], quoting Gruen v Gruen, 68 NY2d 48, 53 [1986]).

"Abandonment has been defined as 'the relinquishing of all title, possession or claim to or of [property] -- 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'" (Zaydullina v Senichkina, 86 Misc 3d 1240[A], 2025 NY Slip Op. 51182[U], *4 [Civil Ct, New York County 2025], citing Foulke v New York C. R. Co., 228 NY 269, 273 [1920]). Like gifts, the "burden of proof of establishing abandonment is upon the party asserting it" (see Olivo v Medvedeva, 80 Misc 3d 742, 750 [Civil Ct, New York County 2022]).

After the defendant's testimony was concluded, plaintiff's counsel advised the Court that the next intended witness was the plaintiff. The Court advised the plaintiff and the defendant that the calling of the plaintiff as a witness was unnecessary.

The defendant testified credibly regarding the circumstances surrounding the passing of the possession of Grace from the plaintiff to the defendant. She also credibly testified regarding the content and substance of their communications after the passing of possession. After hearing her testimony, observing her demeanor, and fully crediting her recounting of the events and surrounding circumstances, it became obvious that the plaintiff neither gave the defendant her dog as a gift nor abandoned the dog to her care. In sum, the credible evidence has demonstrated clearly and convincingly that the dog should remain in the possession of the plaintiff while the action is pending.

There is, therefore, no factual basis for the continuation of the March 6, 2026, temporary restraining order. The March 6, 2026, temporary restraining order is hereby vacated, and the dog named Grace is to be returned forthwith to the plaintiff during the pendency of the instant action.

The Court, in light of this decision and order, sets this matter for status conference on June 5, 2026 at 11:30 a.m. , in person, in Part 52; the parties are directed to appear.

CONCLUSION

The order to show cause filed on March 2, 2026, by Valerie D' Angelo for an order directing Catherine Feijoo-Nickell to return a dog named Grace to the plaintiff is granted to the extent that the March 6, 2026, temporary restraining order is hereby vacated, and the dog named Grace is to be returned forthwith to the plaintiff during the pendency of the instant action.

The foregoing constitutes the decision and order of this Court.

ENTER:

J.S.C.