Dep t of Health & Mental Hygiene v. Schoentube OATH Index No. 1677/17 (Mar. 10, 2017)

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1 Dep t of Health & Mental Hygiene v. Schoentube OATH Index No. 1677/17 (Mar. 10, 2017) Evidence established that two dogs, Jacob and Panda, are dangerous under the New York City Health Code because they mauled and caused the death of a woman. ALJ recommended humane euthanasia of both dogs as the only appropriate remedy. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF HEALTH AND MENTAL HYGIENE Petitioner -against- DAWN SCHOENTUBE Respondent REPORT AND RECOMMENDATION NOEL R. GARCIA, Administrative Law Judge This proceeding was referred by the Department of Health and Mental Hygiene ( Department ) pursuant to section of the New York City Health Code (the Health Code ), title 24, Rules of the City of New York ( RCNY ) (Lexis 2017), against Dawn Schoentube, respondent owner of two dogs named Jacob and Panda. Respondent identified the breed of the two dogs as German shepherd and American bull. The Department alleges that Jacob and Panda are dangerous dogs within the meaning of section of the Health Code and pose a risk to public safety because they mauled and caused the death of Daisie Bradshaw, who was respondent s mother (ALJ. Ex. 1). Petitioner seeks a recommendation that the two dogs be removed from respondent s ownership and surrendered for the purpose of humane euthanasia, pursuant to section (g)(1). Respondent argues that the dogs were provoked by Ms. Bradshaw, and that the attack was an accident. A trial on the charges was held on March 3, Petitioner presented the testimony of two witnesses: Mr. Okesola, a Department public health sanitarian who is also in charge of dangerous dog investigations, and Mr. Malloy, an animal shelter manager for the Animal Care

2 - 2 - Centers of New York City (Tr. 10, 24-25). Petitioner also relied upon two Department bite reports and Ms. Bradshaw s death certificate (Pet. Exs. 1, 2). Respondent appeared and testified at trial. Respondent was unrepresented by counsel, but was represented by her spouse, who stated he is an independent paralegal (Tr. 5). ANALYSIS Under the Health Code, a dangerous dog is one that menaces, threatens, attacks or bites a person or persons, or which kills or inflicts physical injury upon any persons, when such persons are peacefully conducting themselves in any place where they may lawfully be, and any dog owned or harbored for the purpose of dog fighting. Health Code A Department record made by a police officer of a dog bite or other injury is prima facie evidence that a dog is dangerous. Id. The fact that Jacob and Panda mauled and caused the death of Ms. Bradshaw was not disputed. Respondent testified that for about 5 years, from October 2011 to September 2016, she and the two dogs lived in the basement studio apartment of her mother s Staten Island home, while Ms. Bradshaw lived on the floors above (Tr , 55-56). By October of 2016, respondent was in the process of moving to a different apartment, but still kept her two dogs and some of her belongings in the basement apartment (Tr ). On October 25, 2016, the date of the incident, respondent entered her mother s residence and searched for her (Tr ). She eventually found Ms. Bradshaw in the basement apartment on the side of [respondent s] bed (Tr. 52). Respondent testified she went into shock when she found her mother, had no idea if Ms. Bradshaw was injured, and could not recall if she saw any blood (Tr ). However, respondent admitted that she ran outside to call the police and reported to them that her mother was dead (Tr ). Respondent further testified that Jacob and Panda were the only dogs in the basement that day, and that the two dogs were removed from the residence by the police and taken to an animal shelter (Tr. 53). According to the Department s bite reports for both Jacob and Panda, [o]fficers were called to the home where they found the victim deceased. Police stated the body had deep lacerations, both dogs were covered in blood (Pet. Ex. 1). Ms. Bradshaw s death certificate states that the immediate cause of death was Multiple Blunt Force And Penetrating Injuries Of

3 - 3 - Torso And Extremities (Pet. Ex. 2). Under the box labeled How Injury Occurred, the death certificate states that the deceased was Mauled By Dog(s). In all, the evidence established that Jacob and Panda attacked, mauled and caused the death of Ms. Bradshaw, and are therefore dangerous animals under the Health Code. Respondent s argument that Ms. Bradshaw provoked the attack, either because she had a seizure that startled the dogs or because the dogs believed she was an intruder, was unconvincing and too speculative to credit (Tr. 8, 30, 54). For instance, respondent argued, without any supporting evidence, that Ms. Bradshaw was taking medication that either treated epilepsy or caused seizures as a side effect (Tr. 8, 46). Yet respondent admitted on crossexamination that Ms. Bradshaw was not epileptic and that she had never had a seizure in her life, rendering the suggestion that Ms. Bradshaw suffered from a seizure on the day in question as nothing more than unpersuasive conjecture (Tr ). In any event, even if the dogs had attacked and killed Ms. Bradshaw as she experienced a seizure, such an extreme response would similarly establish that the dogs are dangerous and constitute a threat to public safety. Respondent s other theory, that the dogs attacked Ms. Bradshaw because they perceived her as a stranger and a threat, was similarly unpersuasive (Tr. 8-9, 54, 64). Respondent argued that the dogs were just doing their jobs in attacking Ms. Bradshaw because she could have been a burglar (Tr. 8-9, 63-64). Respondent claimed that her mother never went to her basement apartment and that Ms. Bradshaw must have been confused or disoriented when she did so on the day in question (Tr , 57, 62). Respondent s representative speculated that Ms. Bradshaw went to the basement to turn off the lights (Tr. 63). However, it is contrary to common sense that Ms. Bradshaw and the dogs lived a floor apart in the same house for five years, and that apparently Ms. Bradshaw had access to the basement apartment, yet the dogs perceived her as an intruder on the day of the incident (Tr. 57). In fact, as alluded to by respondent s representative, respondent s testimony suggested that Ms. Bradshaw entered the basement area on three prior occasions to turn off the basement lights (Tr , 62-63). More importantly, regardless of the reason Ms. Bradshaw went to the basement of her house, such an action was not a provocation that justified the deadly attack that Jacob and Panda inflicted upon her.

4 - 4 - Further, the evidence established that the dogs continue to behave in an aggressive manner. Mr. Malloy, the animal shelter manager, credibly testified that he was familiar with Jacob and Panda because the police brought the two dogs to his shelter and he sees them every day (Tr. 25). He explained that both dogs are very reactive to anything that passes by and that being reactive is barking, growling, biting at the bars of the kennel. He stated that Panda has a pretty bad eye infection, and that they have attempted to place medicine in his eyes, but due to safety issues they have been unable to do so (Tr. 26). Mr. Malloy testified that while some dogs from his shelter are adopted, Jacob and Panda could not be placed in a home because, due to their mental state, he could not guarantee that the dogs would not do this again. Mr. Malloy stated that these dogs should be euthanized just due to safety issues (Tr. 27). Lastly, while respondent argued that Mr. Malloy and the Department bite reports misstated the breed of her dogs, this discrepancy is immaterial because the evidence proved that Jacob and Panda were the dogs that killed Ms. Bradshaw (Tr ). While I credit respondent s testimony that Jacob and Panda are brothers, and that they are German shepherd and American bull, I also credit her testimony that they were the only dogs in the basement on the day in question, and that they were removed by the police and placed in a shelter (Tr , 53-54). Accordingly, the evidence established that Jacob and Panda are dangerous dogs under the Health Code and are a risk to public safety. FINDING AND CONCLUSION The Department established by a preponderance of the evidence that Jacob and Panda are dangerous dogs within the meaning of section of the Health Code and are a risk to public safety. RECOMMENDATION The Department seeks permanent removal of the dogs from respondent s ownership and humane euthanasia of the dogs on the grounds that Jacob and Panda mauled and killed a person and continue to display aggressive behavior. The Department also asserts that returning the dogs

5 - 5 - to the community creates too great a risk to the public that the dogs may commit another similar attack (Tr. 62). Under the Health Code, the Commissioner may order any action deemed necessary to control a dangerous dog and prevent injuries to persons. Those options include ordering a dangerous dog be surrendered for the purpose of humane euthanasia. Health Code (g) (options also include permanently removing the dog from the City; muzzling him when in public; evaluation by an animal behaviorist to determine whether the animal may be re-trained; spaying or neutering if not previously altered; microchipping the dog to enable identification; or confinement in a place where there are sufficient barriers between the dog and passersby). A preponderance of the evidence established that humane euthanasia is the only appropriate remedy here. Most compelling for this determination is the undisputed evidence that Jacob and Panda killed Ms. Bradshaw, raising the significant possibility that the dogs might commit another severe or deadly attack if returned back into the community. Also compelling is that the dogs continue to be aggressive, to the point that Panda s infection has not been treated for safety reasons. Respondent did not provide any reasonable alternative to humane euthanasia, and did not acknowledge the potential danger her dogs posed to the public if they were returned to her. Instead, respondent defended her dogs for just doing their jobs when they attacked Ms. Bradshaw, suggesting that the dogs were encouraged to behave in this fashion, and that respondent is unwilling or unable to control the dogs (Tr. 8-9, 63-64). Further, the other listed options under the Health Code are not sufficient to protect public safety, or to avert another tragedy as the one that occurred here. I therefore recommend that the two dogs, Jacob and Panda, be removed from respondent s ownership and that they should both be humanely euthanized. March 10, 2017 Noel R. Garcia Administrative Law Judge

6 - 6 - SUBMITTED TO: MARY TRAVIS BASSETT, M.D., M.P.H. Commissioner APPEARANCES: THOMAS MERRILL, ESQ. Attorney for Petitioner RAYMOND G. SCHOENTUBE Representative for Respondent

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