1 No. 152
Jon H. Hammer,
Appellant,
v.
The American Kennel Club, et al.,
Respondents.
2003 NY Int. 163
December 23, 2003
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Joseph P. Foley, for appellant.
Dale C. Christensen Jr., for respondent The American Kennel Club, Inc.
Debra I. Resnick, for respondent Brittany Club of America.
Labrador Retriever Club, Inc., et al., amici curiæ.
GRAFFEO, J.:
Plaintiff Jon H. Hammer is the owner of a pure-bred Brittany Spaniel dog with a 10-inch long natural tail. Defendant American Kennel Club (AKC) sponsors competitions that utilize a breed standard promulgated by defendant American Brittany Club (ABC). The standard penalizes Brittany Spaniels with tails longer than four inches. The issue in this appeal is whether Agriculture and Markets Law § 353 grants plaintiff, who wishes to enter his dog and compete without penalty in breed contests, a private right of action to preclude defendants from using a standard that encourages him to “dock” his Brittany Spaniel’s tail. Because we conclude that it would be inconsistent with the applicable legislative scheme to imply a private right of action in plaintiff’s favor, we affirm the Appellate Division order dismissing the complaint.
Defendant ABC is the national parent club for Brittany Spaniels and is one of 148 different breed clubs affiliated with defendant AKC. As explained in AKC’s official publication, “The Complete Dog Book,” members of breed clubs vote to adopt particular standards, which are then submitted to the AKC for approval and use in AKC-sanctioned competitions, such as The Westminster Kennel Club show. According to defendants, these standards represent the “ideal” for each breed and establish guidelines for dog show judges, breeders and purchasers of pure- bred dogs.
Defendants’ standard for Brittany Spaniels provides that dogs should be “[t]ailless to approximately four inches, natural or docked. The tail not to be so long as to affect the overall balance of the dog. * * * Any tail substantially more than four inches shall be severely penalized.” Notably, unlike other deviations from the standards, such as height and coloration, a longer tail does not disqualify a dog from competition.
In 2001, plaintiff commenced this action against defendants for declaratory and injunctive relief. The gravamen of plaintiff’s complaint is that the Brittany Spaniel breed standard encourages owners to violate Agriculture and Markets Law § 353, a penal statute prohibiting animal cruelty, because it is cruel to dock a dog’s tail. Plaintiff claims that defendants discriminate against him by excluding him from meaningful participation in AKC competitions because he is unwilling to dock his dog’s tail. He therefore seeks a declaration that the breed standard violates New York law and an injunction precluding defendants from using the allegedly illegal standard in judging breed competitions.
AKC and ABC moved separately to dismiss the action, arguing that plaintiff lacked standing to secure civil relief for the alleged violation of section 353. Supreme Court consolidated the motions and granted defendants relief, dismissing the complaint. The Appellate Division affirmed, with two Justices dissenting, and we now affirm.
Where a penal statute does not expressly confer a private right of action on individuals pursuing civil relief, recovery under such a statute “may be had only if a private right of action may be fairly implied” ( Sheehy v Big Flats Community Day, , 73 NY2d 629, 633 [1989]; see also Carrier v Salvation Army, , 88 NY2d 298, 302 [1996]). This inquiry entails consideration of three factors: “(1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme” ( Carrier, 88 NY2d at 302). In assessing whether a private right of action can be implied, we have acknowledged that
“the Legislature has both the right and the authority to select the methods to be used in effectuating its goals, as well as to choose the goals themselves. Thus, regardless of its consistency with the basic legislative goal, a private right of action should not be judicially sanctioned if it is incompatible with the enforcement mechanism chosen by the Legislature or with some other aspect of the over-all statutory scheme”
( Sheehy, 73 NY2d at 634-635; see Hoxie’s Painting Co. v Cato- Meridian Cent. School Dist., , 76 NY2d 207, 212 [1990]).
Article 26 of the Agriculture and Markets Law regulates the treatment of animals and contains provisions previously codified in the former Penal Code, Penal Law and Code of Criminal Conduct. Plaintiff relies on section 353 of that article, which states that a person who “cruelly beats or unjustifiably injures, maims, mutilates or kills any animal” or permits such treatment of any animal is guilty of a misdemeanor, contending that this criminal statute also creates a civil private right of action.
The Legislature explicitly addressed the enforcement of animal protection statutes in two provisions. Section 371 of the Agriculture and Markets Law requires police officers and constables to enforce violations of Article 26 and further authorizes “any agent or officer of any duly incorporated society for the prevention of cruelty to animals” to initiate a criminal proceeding. In addition, section 372 enables magistrates to issue search and arrest warrants “[u]pon complaint under oath * * * that the complainant has just and reasonable cause to suspect that any of the provisions of law relating to or in any wise affecting animals are being or about to be violated.” Through the adoption of these two sections, the Legislature established that enforcement authority lies with police and societies for the prevention of cruelty to animals and violations would be handled in criminal proceedings.[1]
This is not a criminal action and plaintiff is not asking law enforcement officials to charge defendants with violations of the law subject to criminal penalties. Indeed, plaintiff has not alleged that these organizations are cruelly or unjustifiably injuring or maiming any dogs and admittedly does not intend to conform his dog’s tail length to the breed standard. Therefore, neither plaintiff nor defendants have engaged in any conduct that violates the law as plaintiff interprets it.[2]
The statute does not, either expressly or impliedly, incorporate a method for private citizens to obtain civil relief. In light of the comprehensive statutory enforcement scheme, recognition of a private civil right of action is incompatible with the mechanisms chosen by the Legislature ( see Sheehy, 73 NY2d at 634-635; see also Walz v Baum, 42 AD2d 643, 644 [3d Dept 1973], lv denied , 33 NY2d 517 [1973]). Inasmuch as plaintiff concedes that his claims sounding in discrimination cannot be maintained in the absence of a private right of action under the Agriculture and Markets Law, those claims were also properly dismissed.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs. Opinion by Judge Graffeo. Chief Judge Kaye and Judges Smith, Ciparick, Rosenblatt and Read concur.
Decided December 23, 2003