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Feger v. Warwick Animal Shelter

December 23, 2008

DARLENE FEGER, APPELLANT,
v.
WARWICK ANIMAL SHELTER, ET AL., RESPONDENTS, ET AL., DEFENDANT.



APPEAL by the plaintiff, in an action, inter alia, to recover possession of chattel, from an order of the Supreme Court, Orange County (Lawrence I. Horowitz, J.), dated September 21, 2006, and entered in Orange County, which granted that branch of the motion of the defendants Warwick Animal Shelter and Thomas Loughlan which was for a protective order.

The opinion of the court was delivered by: Leventhal, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J.P., ROBERT A. SPOLZINO, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Index No. 3730/03)

OPINION & ORDER

The defendants Warwick Animal Shelter and Thomas Loughlan (hereinafter the defendants) moved, inter alia, for a protective order to prevent disclosure of the identities of the donor and adoptive owner of a cat sought by the plaintiff. The issue raised on this appeal is whether the Supreme Court properly exercised its discretion in granting that branch of the defendants' motion.

The plaintiff alleges that her cat "Kisses," a valuable pure breed white Persian, was taken from her home in August of 2002 by an undisclosed individual. She claims that 10 days after the cat was stolen, she discovered a picture on the Warwick Animal Shelter's website of a cat named "Lucy," which she alleges was her cat "Kisses." The plaintiff contacted the shelter the following day and was informed that "Lucy" had already been offered for adoption. Pursuant to its privacy policy, the shelter refused to divulge the identities of the donor or the adoptive owner. The shelter claims that "Lucy" was not the same cat as "Kisses" and had been brought to the shelter by an individual who could no longer keep a cat because of difficulties with a landlord. In an attempt to accommodate the plaintiff, the shelter had the adoptive owner provide them with a photo of "Lucy" and had the cat examined by a veterinarian. The defendants contend that "Lucy" was found not to have several of the defining physical characteristics listed by the plaintiff in a description of "Kisses."

The plaintiff commenced this action against the shelter and one of its employees. The complaint alleged seven causes of action that, inter alia, sought damages in the sum of $86,000 (a total representing the value of the cat and lost litters) and the return of the cat. The plaintiff claims that the shelter was negligent and violated local and federal laws by spaying the cat and allowing the cat to be adopted. The plaintiff alleged that the cat was taken and brought to the shelter by an employee of the shelter, by an employee of a service provider of the shelter, or by an employee of a Warwick, New York law firm who received it from an employee at an affiliated law firm located near the plaintiff's home in New Jersey. The defendants took the position that no laws were broken, that "Lucy" was not "Kisses," and that the plaintiff was not entitled to the identity of the donor or the party that adopted the cat.

The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them and for a protective order against the plaintiff's discovery demand which sought the identities of the donor and adoptive owner. The plaintiff cross-moved for summary judgment. In an order dated May 4, 2004, the Supreme Court denied the plaintiff's cross motion and granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. The Supreme Court did not rule on that branch of the motion which was for the protective order, as the issue was academic.

The plaintiff appealed and this Court reinstated some of the causes of action (see Feger v Warwick Animal Shelter, 29 AD3d 515). Thereafter, in the order appealed from, the Supreme Court granted that branch of the defendants' motion which was for a protective order to prevent disclosure of the identities of the donor and adoptive owner of the cat. We modify.

While CPLR 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action," CPLR 3103(a) authorizes the court to "make a protective order denying, limiting, conditioning or regulating the use of any disclosure device." In making this determination as to whether disclosure is warranted, the court employs a test of "usefulness and reason" (Scalone v Phelps Memorial Hosp. Ctr., 184 AD2d 65, 70), balancing the importance to the plaintiff's claim of the information sought versus the consequences of disclosure. The trial court possesses broad discretion to deny demands that are unduly burdensome or that seek irrelevant or improper information (see Scalone v Phelps Memorial Hosp. Ctr., 184 AD2d at 70). It is well established that the " supervision of disclosure and the setting of reasonable terms and conditions therefor rests within the sound discretion of the trial court, and, absent an improvident exercise of that discretion its determination will not be disturbed'" (Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531, quoting Mattocks v White Motor Corp., 258 AD2d 628, 629).

Here, the Supreme Court providently exercised its discretion in granting a protective order as to the identity of the adoptive owner. The record fails to demonstrate that the identity of the adoptive owner was material and necessary to the plaintiff's claim. Additionally, public policy considerations support the determination to deny disclosure under these circumstances.

The trial court held that "as a matter of public policy the names of adoptive pet owners should be kept confidential in order to foster the adoption process." We agree that allowing for disclosure could lead to the collapse of what the Supreme Court called the "animal adoption infrastructure." It is evident that if the identity of adoptive pet owners were subject to discovery under the circumstances here, it is likely that others would be less inclined to adopt because of concerns that they could be subjected to harassment or intimidation by prior putative owners. Absent an adoption alternative, animals undoubtedly will be destroyed. The protection of the identities of the adoptive pet owners involved in the animal adoption process promotes the placement of animals in homes and prevents the needless euthanizing of otherwise healthy animals. Other ...


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