A Manhattan judge who said he would determine the ownership of “Stevie” the dog according to the “best interests of all concerned”—including the dog—has changed his position.
Supreme Court Justice Arthur Engoron said he had “simply erred” and that “the correct law is the law of property, and this court will determine and award possession of Stevie according to that law, and no other.”
Engoron, initially ruling in March in Gellenbeck v. Whitton, 154365/2014, had adopted the approach described in Justice Matthew Cooper’s decision in Travis v. Murray, 42 Misc 3d 47 (Sup. Ct., NY County 2013).
Under the Travis standard, Engoron said, “the parties each have the burden of proving why Stevie would have ‘a better chance of living, prospering, loving and being loved’ in the care of one partner as opposed to the other.”
But in July, Justice Geoffrey Wright rejected Travis’ logic in Szubski v. Conrad, 151930/15 (Sup. Ct., NY County, July 13, 2015), saying only property law could apply.
The plaintiffs moved for reconsideration and, in an opinion that became available last week, Engoron repudiated his earlier ruling. He said he could not “harmonize” the two decisions, concluding that “animals do not have rights,” and therefore, the “all” in the best interest of all concerned standard could not include Stevie, a female Basenji mix.
“Some, including this court, would say that a Rousseauian ‘social contract’ confers rights,” Engoron wrote. “But, alas, only human beings are deemed to have contract rights enforceable at law.”
“If a ‘Supreme Being’ has bestowed rights on animals, they need to be enforced elsewhere than in ‘Supreme Court,'” the judge said. “If dogs were deemed to have rights, why not cats, raccoons, squirrels, fish, ants, cockroaches? Could you be imprisoned for swatting a fly? Where will it all end?”
Quoting from Shakespeare’s “The Merchant of Venice,” Engoron acknowledged that certain animals enjoy a special status. “If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die? And if you wrong us, shall we not revenge?”
Engoron sought to allay criticism from “vociferous animal rights activists” by noting his own “prior ownership of Humphrey the basset hound and Wabber the tabby cat, which were beloved beyond all reason.” But granting Stevie standing to have his interests considered “is unwieldy and unworkable, and would open up all manner of mischief.”
The dispute arose out of an action for partition of a Greenwich Village studio apartment jointly owned by plaintiff Roger Gellenbeck and defendant Michael Whitton.
In his earlier ruling, Engoron said the pair “were in 13-year close and committed relationship and registered with the city of New York as domestic partners in 2009.”
In May 2014 Gellenbeck filed the case seeking a judicially ordered sale of the co-op apartment and division of the proceeds. It also sought a judicial declaration that Gellenbeck owns the dog.
Gellenbeck and Whitton continue to live together in the studio under an injunction issued by Engoron that provides Stevie is to be cared for by either party, depending on their schedules.
Whitton is a retail marketing consultant who works from home according to his attorney, Manhattan solo Daniel LoPresti.
Stevie was adopted five years ago from Stray From the Heart, a dog rescue service, after being found abandoned in Brooklyn, LoPresti said. “The adoption papers the rescue shelter requires show my client adopted Stevie,” he said.
Papers filed by Gellenbeck’s attorneys say Stevie was given to Gellenbeck as a birthday present.
Gellenbeck is represented by Steven Landy & Associates. David Wolf, an associate at the firm, declined to comment.
LoPresti said Stevie has been prescribed as his client’s emotional support animal. “We think we could prevail under either theory the judge propounded,” he said.
In a previous ruling, Engoron ordered the apartment to be sold and the proceeds to be divided as determined by a referee.
Engoron ordered a full-day hearing to be held Dec. 10 to determine ownership of Stevie.
BY Ben Bedell, New York Law Journal