Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
We love our pets. What happens when they are cat-napped or simply not returned? A recent case in Manhattan dealt with this fluffy issue.
Plaintiff sued for replevin against defendant seeking the ownership of a cat named Lisa/Liza that was in the possession of defendant. Replevin is a common law claim to recover personal property that was either taken wrongfully or held improperly. Pets are treated as personal property under New York law. Defendant filed a motion seeking judgment of sole and exclusive possession of the cat which was denied and the matter proceeded to a bench trial.
Each party sought to introduce documentary evidence, but the defendant failed to follow appropriate trial exhibit nomenclature by not tabb(y)ing their evidence alphabetically. The labelling was amended and changed to be marked as defendant’s exhibits A-V and were admitted into evidence.
Plaintiff adopted the cat from a shelter in Brooklyn. Plaintiff claimed that she had been the sole owner of the cat for ten (10) years. The original adoption agreement, microchip verification, and veterinary records were submitted to support plaintiff’s claim.
Plaintiff met defendant at a party. Plaintiff’s mother became very ill, and as a result she needed to return to her home country of Russia to take care of her mother. Plaintiff asked defendant to look after the cat while plaintiff was away, and defendant agreed to take the cat into her home. When plaintiff returned to New York she was unable to take the cat back immediately as she needed to host her brother as well as a friend at plaintiff’s apartment. Plaintiff visited defendant’s home and asked if defendant would be willing to keep the cat for “another week or two” while plaintiff moved out the guests that were staying over, to which defendant agreed. Plaintiff decided that she was no longer able to afford to live in New York City and rented out her apartment leaving the cat with defendant. Plaintiff relocated to Florida to temporarily stay with a friend and she eventually returned to New York. Plaintiff asked defendant to return the cat to her, but defendant refused.
At the trial, defendant testified virtually from Vancouver, Canada, as she was experiencing issues renewing her visa. Defendant claimed that when plaintiff came to visit defendant, the cat hid from plaintiff upon plaintiff’s arrival. Plaintiff asked if defendant still wanted a pet cat and stated that it may not be a good idea to constantly move the cat from place to place. Defendant noted that the cat seemed to enjoy staying at defendant’s home, upon which plaintiff allegedly asked if defendant would be willing to take care of the cat forever, to which defendant agreed. Defendant also claimed that plaintiff made minimal inquiries regarding the wellbeing or condition of the cat suggesting a lack of care or interest in the cat.
Defendant claimed there was an enforceable oral agreement between the parties that conveyed ownership of the cat from plaintiff to defendant and that defendant has a claim to ownership based on abandonment.
Under New York Law, companion animals are treated as personal property. This means that pet owners are free to convey or transfer their pets under their fundamental right of alienation of property. An enforceable contract requires an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound. In addition, there must be a meeting of the minds between all contracting parties, such that there is a “manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms”. In the alternative, defendant also argued that the cat was conveyed to defendant in the form of a gift. It has been found that “to make a valid gift there must exist the intent on the part of the donor to make a present transfer; delivery of the gift, either actual or constructive to the donee; and acceptance by the donee”. The onus is on the proponent of the gift to prove the existence of these elements by clear and convincing evidence.
The court found that there was insufficient proof that plaintiff intended to be bound by contract or by gift. “An oral agreement may be enforceable as long as the terms are clear and definite and the conduct of the parties evinces mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms”.
The evidence presented contradicted the idea of a valid contract, gift, or a claim of abandonment. The court found that plaintiff at no point ever forfeited ownership of the cat and is therefore still the legal owner of the cat.
The Court then employed a standard used in child custody cases – the best interest of the child. This measure of “best for all concerned” has become the standard when deciding pet ownership cases. The court is required to consider intangible factors such as why each party would benefit from having the cat in their life and why the cat has a “better chance of prospering, loving and being loved in the care of one party or the other”.
Defendant provided two written testimonies from expert witnesses specializing in cat behavior. (Was one of the experts the famed Dr. Seuss, renown for chronicling the behavior of Cats in Hats?).
The court found that the best outcome for all concerned is for the cat to live out the rest of its days with whom it spent the vast majority of its life. Therefore, plaintiff was entitled to the return of the cat. While there is no legal obligation to do so, this court hoped that the parties may be able to arrange a way for defendant to remain a part of the cat’s life in some capacity (cat visitation?).
Of note, defendant hired an attorney and presumably was obligated to pay attorney. There was a motion and a trial. That’s a lot of love and expense for a cat. But remember, you can’t spell homeowner without a meow.
