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NEW YORK CITY FRIENDS OF FERRETS v. CITY OF NEW YO

February 7, 1995

NEW YORK CITY FRIENDS OF FERRETS, Plaintiff, against THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF HEALTH, and RUDOLPH GIULIANI, MARGARET A. HAMBURG, MARTIN B. KURTZ, MARK R. CHASSIN, and JOHN G. DEBBIE, in their official capacities, Defendants.


The opinion of the court was delivered by: ALLEN G. SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 BACKGROUND

 New York City Friends of Ferrets, an unincorporated association of individuals in New York City who own or wish to own ferrets as household pets, bring this action challenging the legality of the City of New York's (the "City") prohibition against the keeping of ferrets within the City limits and the requirement that in any case where a ferret is reported to have bitten a human being, the ferret be immediately surrendered to the New York City Department of Health ("DOH") and humanely destroyed in order to conduct a rabies examination. *fn1"

 The Domestic Ferret

 Webster's New World Dictionary of the American Language (College Ed. 1968) defines a ferret as "a kind of weasel, easily tamed and used for hunting or killing of rabbits, rats, etc. . . ." Two types of ferrets can be found in the United States: the black footed ferret (Mustela nigripes) and the domestic or common ferret (Mustela putorius or Mustela putorious furo). Ronald M. Novak, Walker's Mammals of the World (5th Ed. 1991), pp. 1113-1114; 11 Encyclopedia Americana 125. This action involves domestic ferrets *fn3" and, hereinafter, the term "ferret" shall refer to common or domestic ferrets. Domestic ferrets have been bred in captivity, initially for the purposes of hunting, since the fourth century B.C., and have, more recently, become a popular household pet in the United States. Additional facts relevant to the motion under consideration are discussed below.

 The City's Motion

 The City moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings. We note that the parties have submitted affidavits and other evidence to the Court to be considered on the motion to dismiss. Such materials lie outside the four corners of the pleadings; accordingly, the court must either exclude the additional materials from our consideration and decide the motion based solely upon the complaint, or convert the motion to one for summary judgment under Fed. R. Civ. P. 56, see Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988); Carter v. Stanton, 405 U.S. 669, 671, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1971); see generally 5 C. Wright & A. Miller, Federal Practice and Procedure, P 1366 (1990 & Supp. 1992) (discussing the circumstances in which a court may convert a motion to dismiss into a motion for summary judgment). The Court has determined to consider materials which the parties have submitted; therefore, we elect to convert this motion to dismiss into a motion for summary judgment, and interpret the expanded record accordingly.

 DISCUSSION

 Standard for Summary Judgment

 Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c) The Second Circuit has stated that a "moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. . ." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1222-3 (2d Cir. 1994). The burden of proof, however, lies with the moving party and we must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. Id. The moving party must satisfy its burden of demonstrating the absence of a genuine issue of material fact, which can be done by pointing out that there is an absence of evidence to support the nonmoving party's case (and as discussed above, all ambiguities are resolved in the nonmoving party's favor). Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The non-moving party then has the burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by a "showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322

 As set forth below, we find that the City has established that no issue of material fact exists as to plaintiff's claims against the City in this action.

 The Applicable Constitutional Standards

 Equal Protection

 The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guarantees that classifications imposed by law will not be used to burden a group of people arbitrarily. See, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 587, 99 S. Ct. 1355, 1367, 59 L. Ed. 2d 587 (1979). As the challenged Municipal Code provisions regulating ferret ownership do not classify people based on "suspect" criteria, such as race or nationality, they are constitutionally permissible under equal protection analysis so long they bear a rational relationship to a legitimate state interest. Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 489, 97 S. Ct. 1898, 52 L. Ed. 2d 513 (1977); see also Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970). Thus, "the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational . . ." Nordlinger v. Hahn, 120 L. Ed. 2d ...


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