Pets should be recognized as a “special category of property,” according to Albany County Supreme Court Justice Michael C. Lynch in his February 19, 2014 decision in Hennet v. Allan. As a result, he ordered a hearing to determine which member of this broken-up couple would be awarded sole possession of “Duke,” their black Labrador retriever.

The parties, Alisha and William, were involved in a non-marital relationship for over fifteen years, living together for the last four at their Altamont residence. Alisha commenced this replevin action seeking to recover possession of Duke. William had taken Duke from the residence on August 1, 2013, more than four months after he moved out on March 22, 2013.

Duke had been purchased in September, 2009. While there was a dispute as to which party purchased the dog, Duke’s title and registration had been placed in their joint names.

On July 23, 2013, Alisha refinanced the parties’ residence. At that time, William had deeded over his interest and signed an acknowledged release:

I, William Allan, Jr., waive any and all rights and titles to the [Altamont] property . . . along with any and all materials and possessions located therein.

As of today, July 23, 2013, I William Allan, Jr., have removed all personal property from above said property and forever relinquish rights and claims anything left behind. All personal property remaining at above said residence is therefore sole and exclusive property of Alisha Hennet.

The only issue before the Court was a determination of the parties’ respective claims to Duke. Alisha maintained that since William admitted Duke had resided at the residence on July 23, 2013, he lost any claim to Duke under the terms of the release. In opposition, William maintained that he only signed the release as part of the refinancing closing, being expressly advised that “the Release Agreement had nothing to do with my personal property and was required in order to transfer my interest in the real property only.”

Justice Lynch rejected William’s attack on the release. The express terms of the release contradicted William’s suggested limitation of the personal property to which it applied. William’s acknowledged reading of its express terms negated any claim of a plausible reliance on Alisha’s purported misrepresentation.

However, Justice Lynch held that Duke was not covered by the release. Duke was not mere personal property. Although dogs, traditionally, have been defined as “personal property,” the recent trend, however, has been to treat companion dogs as more than just property.

Justice Lynch discussed Justice Cooper’s “thoughtful and careful analysis” recently in Travis v. Murray, the subject of my December 9, 2013 blog post. Justice Cooper had concluded that a strict property analysis should not be used to resolve a dispute between divorcing spouses over possession of their dachshund, instead opting to apply a “best for all concerned” standard, rejecting the application of a “best interests” custody standard as unworkable.

[It is suggested that Justice Cooper probably went further than he had to. As a court has the power to equitably distribute a divorcing couple’s property, and to determine questions of possession, it was not necessary to expand the notion of property to craft relief. Here, as the parties had not been married, they were not entitled to the benefits of the Domestic Relations Law.]

Justice Lynch noted:

Courts are essentially at a crossroads in determining whether a strict property analysis should still govern disputes between dog owners. . . .

Today, we should take the next step in recognizing that pets are more than just “personal property” when it comes to resolving a dispute between owners.

He concluded that the reference to “personal property” in the release did not extend to Duke.

Certainly, the attachment each party professes to have with Duke would only be consistent with recognizing that Duke falls within a “special category of property” that is simply not covered by the release.

In the absence of conclusive documentary proof, the Court ordered that a hearing be held to determine which party should be awarded sole possession of Duke. The Court stated that it would review the circumstances as to how Duke was acquired and cared for, and the actual arrangement between the parties for spending time with Duke after defendant left the parties’ residence.

The significant strain on the parties and the judicial system created by this dispute warranted a final resolution now, without the prospect of ongoing litigation involving compliance with a shared possession arrangement. Since both parties professed a strong relationship with Duke and extensive involvement in his care,  the Court was left with endeavoring to render a fair determination as to which party through his or her conduct has the most genuine right of possession.

Michael D. Assaf, of Assaf & Siegal, PLLC, of Albany, represented Ms. Hennet. F. Matthew Jackson, of O’Connell & Aronowitz, P.C., represented Mr. Allan.