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State v. Smith

July 25, 1996

STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT,
v.
EVELYN SMITH, DEFENDANT-APPELLANT.



On appeal from Hoboken Municipal Court.

Approved for Publication October 18, 1996.

J. L. Fuentes, J.s.c.

The opinion of the court was delivered by: Fuentes

OPINION

J. L. FUENTES, J.S.C.

This case presents an issue of first impression to the New Jersey judiciary: namely, the interpretation of N.J.S.A. 4:19-17 through 4:19-36 (the Vicious and Potentially Dangerous Dog Act), which governs vicious and potentially dangerous dogs. Specifically, appellant, Ms. Evelyn Smith, has appealed the ruling of the Hoboken Municipal Court finding her pet dog, Big Head, to be vicious under N.J.S.A. 4:19-22. If the appeal is unsuccessful, the dog would have to be destroyed. N.J.S.A. 4:19-20.

This court finds that the City of Hoboken failed to comply with the procedural requirements of the statute. Consequently, the municipal court lacked the subject matter jurisdiction to entertain this action and to pass judgment under the Vicious and Potentially Dangerous Dog Act. This court further finds that the parties voluntarily entered into an agreement constituting a settlement of the issues raised by this appeal. Therefore, the judgment of the Municipal Court of Hoboken is reversed, and any action ordered pursuant thereto is rendered null and void. This court finds the settlement to be a legally binding agreement between the parties and orders its specific enforcement.

I. PROCEDURAL HISTORY AND FINDINGS OF FACT

On April 26, 1995, Ms. Smith took her dog, Big Head, an adult mixed-breed *fn1, for a walk in a fenced-in vacant lot fronting Jefferson Street in Hoboken. The dog was not leashed or otherwise restrained, as Ms. Smith believed that the lot was completely and securely sealed from the street and sidewalk outside. Unfortunately, this was not the case; the dog found an opening in the fence, rushed onto the sidewalk, and bit Mrs. Dorothy Petruzelli on the left hand. The victim, who had not in any way provoked the dog or threatened Ms. Smith, suffered serious injury to her hand and was rushed to St. Mary's Hospital in Hoboken for emergency treatment. She also received lacerations to her face which required stitches. Mrs. Petruzelli underwent two subsequent surgeries on her left hand at Columbia Presbyterian Hospital in New York City and has endured extensive rehabilitation. Despite these efforts, she has experienced a significant loss of use to her left hand.

The Hoboken Board of Health was notified of this dog bite incident by St. Mary's Hospital on April 27, 1995. That same day, Mr. Frank Sasso, Hoboken's Health Officer, had delivered to Ms. Smith a letter ordering her to appear at a hearing scheduled for May 8 pursuant to Hoboken City Code § 93-24. The hearing was held as scheduled, and a summons was issued charging Ms. Smith with a violation of N.J.S.A. 4:19-20. Hearings were then held in Hoboken Municipal Court on the following dates: June 22, July 11, July 19, August 8, and August 10, 1995. At some point in June 1995, appellant agreed to place the dog in a private kennel pending the decision of the municipal court. The municipal court issued its decision on August 10, finding the dog to be vicious under the terms of the Act, and notice of appeal was filed on August 18, 1995. On March 11, 1996, appellant filed a motion seeking a modification of the municipal court's order requiring that the dog remain in a kennel pending the outcome of this appeal. The Motion was denied on March 20, 1996. *fn2

II. LEGAL ANALYSIS

A thorough textual analysis of the Act compels the court to reverse the municipal court's ruling in this case; for while the court purported to act consonant with the dictates of N.J.S.A. 4:19-20 and 4:19-22, in reality the actions of both the City of Hoboken and the municipal court created a crazy quilt of missteps and omissions which in no way satisfied the requirements of the statute.

A. Subject Matter Jurisdiction

According to N.J.S.A. 4:19-19, an action pursuant to the Vicious and Potentially Dangerous Dog Act begins when an "animal control officer . . . seize[s] and impound[s] a dog" based on reasonable cause to believe that the dog is vicious or potentially dangerous under any one of four enumerated factors. *fn3 In this case, the pertinent factors would have been subsection (a) of N.J.S.A. 4:19-19, "[reasonable cause to believe that the dog] attacked a person and caused death or serious bodily injury . . . to that person," and/or subsection (b), "[reasonable cause to believe that the dog] caused bodily injury . . . to a person during an unprovoked attack and poses a serious threat of harm to ...


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