In a recent decision, the New York Supreme Court, upheld a liquidated damages clause in a dog adoption contract.
Companion Animal Network (CAN) adopts animals pursuant to a contract with the proviso that the rescue retains ownership rights, basically only leasing the animal for life to the adopter for a $35 fee. The contract provides for a means of terminating the agreement and returning the animal. Ninety days notice of termination and return of the animal is required. A very low cost boarding arrangement is provided for the adoptor who may need to return the animal but cannot give the 90 day notice.
The contract contains a liquidated damages clause of $1500, meaning the parties agree that if the adopter breaches, he or she will pay $1,500. These liquidated damages clauses are common in contracts where the amount of damages may be difficult to determine.
In this case the adopter, Nancy Kelcho, adopted Choo, on April 17, 2003 under the terms of this agreement.Â Three years later she called Garo Alexanian of CAN and said, "I’m selling my house and I have to get rid of the dog." Â Upon being reminded of the contract terms, Kelcho suddenly said "Oh, my door is ringing, I’ll call you back" and hung up.
Alexanian followed up with a call to Kelcho Â two weeks later. Kelcho said, "I had to put my Choo Choo down because he started attacking me." Kelcho hung up again on Alexanian who immediately called her back. She never called back and refused to return calls from CAN.
Because Kelcho breached the contract in failing to return the dog as required, CAN filed suit in small claims court against Kelcho to obtainÂ the liquidated damages in the amount of $1700.
The small claims court judge, Gerard J. Dunbar, found the "claim of breach of contract is ineffective in light of the credible testimony that [Kelcho] was forced to turn the dog (Chow/Akita) over to [animal control] after it attacked her 3 times".Â
During the trial Judge Dunbar refused to admit into evidence as hearsay the dog’s CAN ID tag and the Animal Control ID card. Â
Also, Kelcho admitted the dog had only scratched her. No medical attention was required. Kelcho produced no photo of the alleged scratch. She never produced evidence the dog attacked her or anyone else once, let alone 3 times. She claimed in one attack the dog tore her pants, but she never produced the torn trousers. Â The dog had no bite history. Â There was no evidence the dog would be deemed "dangerous", let alone that it must be euthanized rather than returned to CAN.
Indeed, both Kelcho and Judge Dunbar seemed biased by the dog’s Akita/Chow breed, pointing it out as a basis to conclude the dog must have attacked her. Â
CAN also said the judge simply personally did not think a dog’s life is worth $1500. Â CAN claimed Judge Dunbar "sneer[ed]" at its claims against Kelcho.
The New York Supreme Court reversed Judge Dunbar’s decision and found Kelcho must pay CAN $1500.
Will Kelcho think twice before destroying a dog she decides she no longer wants? It’s hard to say. She does, however, have another dog.
But maybe Judge Dunbar and others like him will not be so quick to "sneer" at cases that seek to place a value on companion animals’ lives.
Two other courts have upheld CAN’s contracts.