New York Miscellaneous Reports


IN THE MATTER OF GROAT v. BRENNAN, 4134-06 (11-17-2006)
Respondents. 4134-06. Supreme Court of the State of New
York, Albany County. Decided November 17, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] James Kleinbaum, Esq., Chatham, New York,
Attorney for Petitioner.

Joan A. Kehoe, Esq., Albany, New York, Attorney For
Respondent Brennan, (Danielle C. Cordier, Esq. of Counsel).


Petitioner commenced the instant hybrid article 78
proceeding and action for a declaratory judgment
challenging respondent Brennan’s Sound Agricultural
Practice Opinion number 06-3, which found that the use by
the Serino respondents of two Great Pyrenees dogs as
livestock guard dogs for their herd of alpacas was a sound
agricultural practice. The practical result of such
determination is that petitioner is precluded from
maintaining a private nuisance suit against the Serino
respondents pursuant to Agriculture and Markets Law
§ 308 (3). The first cause of action alleges that
the determination is not supported by the facts. The second
cause of action alleges that respondent Brennan improperly
imposed the burden of proof on petitioner to establish that
the use of the dogs was not a sound agricultural practice.
The third cause of action seeks a declaratory judgment
declaring that Agriculture and Markets Law § 308 is
unconstitutional because it deprives petitioner of her
right to sue to enforce her right of quiet enjoyment of her
property without due process[fn1]

The scope of judicial review of respondent Brennan’s
determination is limited to whether it is affected by an
error of law, is arbitrary and capricious; that is, it has
no rational basis, or constitutes an abuse of discretion
(see Matter of Incorporated Vil. of Lynbrook v. New York
State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979];
Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF,
AFL-CIO v. Cuevas, 276 AD2d 184, 187 [3d Dept 2000]; see
also Matter of Upstate Milk Coops. v. Gerace, 117 AD2d 938,
939 [3d Dept 1986]).

The record establishes that respondent Brennan conducted a
very thorough investigation with respect to the historical
use of livestock guard dogs in general, the Great Pyrenees
breed in particular, and considered studies documenting the
effectiveness of livestock guard dogs in reducing predation
by species such as coyotes. The record shows that Great
Pyrenees dogs have been considered a major benefit to
herding agriculture for over 1,000 years. The record also
supports a finding that the immediate area of the Serino
farm does have coyotes, and that while the Serinos did not
lose any alpacas to predation prior to acquiring the dogs,
alpacas are very susceptible to such attacks. It is further
noted that the type of alpacas kept by the Serino
respondents are valued at between $10,000 and $15,000 each.
Thus, the loss of even a single alpaca would be very
significant. It is thus clear that the use of Great
Pyrenees dogs to guard livestock is an effective and very
longstanding agricultural practice.

In determining whether a particular practice is “sound”
within the meaning of Agriculture and Markets Law §
308, respondent Brennan was required to consider the
guidelines recommended by the Advisory Council on
Agriculture. Such guidelines provide that the practice
should be legal, should not cause bodily harm or property
damage off the farm, should be reasonably effective in
achieving the intended results and should be necessary. The
Serino respondents provided factual information showing that
they had tried using llamas as guard animals, which did not
work out well. They also indicated that they could not
readily put the alpacas in a barn at night because they did
not take well to such enclosures. Moreover, the record
indicates that the Serino respondents do not have a
suitable barn structure for protecting the herd from
predators. The Serino respondents also represented that the
dogs only barked occasionally. Such claim was supported by
information from other neighbors.

Respondent Brennan’s investigation included surveying the
adjoining neighbors and interviewing the Animal Control
Officer for the Town of Kinderhook. Petitioner and her
family were the only persons to complain about the noise
from the dogs barking. Other neighbors who live in similar
proximity to the farm did not find the barking excessive in
terms of either volume or duration. The Court finds that
such results were sufficient to constitute a prima facie
showing of a sound agricultural practice, thereby shifting
the burden of coming forward with evidence to the
petitioner. Petitioner has offered only conclusory
assertions that this constituted an improper shifting of
the burden of proof to petitioner. As such, the second
cause of action is without merit.

Petitioner submitted a video tape recorded outside of
petitioner’s residence which included the sound of the dogs
barking . It was observed that at times the barking was
barely audible. At other times it was louder. However, most
of the time it was no louder than other background noises,
such as passing cars or wind chimes. Petitioner also
submitted medical records reflecting complaints of sleep
deprivation and muscle soreness allegedly caused by
sleeping on a couch to get away from the noise. The
petitioner’s doctor did not offer a professional medical
opinion as to the cause of petitioner’s complaints and it
appears that if he had, the opinion would have been based
solely upon petitioner’s subjective complaints, rather than
any objective evidence. Moreover, the Animal Control
Officer advised petitioner to call him when the dogs were
barking excessively so that he could visit the site to
determine the extent and volume of the noise. Petitioner
never called until the day after the dogs barked to
complain. Since it is uncontroverted that the dogs only
bark at night, such failure precluded any impartial
assessment of the degree of noise caused by the barking.

Petitioner also submitted a petition, one page of which
indicated that it sought to compel the Animal Control
Officer to enforce the dog law prohibiting excessive
barking. Respondent Brennan noted that the petition was
undated, had numerous illegible signatures, did not provide
the distances between the signatories’ homes and the
subject farm, and did not contain any signatures from
adjoining land owners, other than petitioner and her
family.Respondent Brennan found that there was no evidence
that the Serinos have been cited for a violation of state
or federal law, that an action in Town Court alleging that
the use of the dogs violated the Town’s dog ordinance was
dismissed and that no new notice of violation had been
issued. He further found that there was no evidence that
the use of the dogs had actually caused any bodily harm or
property damage off the farm, that the use of the dogs was
reasonable and effective, and that there were coyotes in
the area, making the use of the dogs reasonably necessary.
The Court finds that the record provides a rational basis
for such findings and the conclusion that the use of the
two Great Pyrenees dogs to protect alpacas on the Serino
property is a sound agricultural practice (see Pure Air and
Water of Chemung County v. Davidsen, 246 AD2d 786 [3d Dept
1998]). It is therefore determined that the first and
second causes of action fail to state a cause of action.

The third cause of action seeks a declaration that
Agriculture and Markets Law § 308 is
unconstitutional because it deprives petitioner of her
right to sue to enforce her right of quiet enjoyment of her
property. Respondent Brennan seeks dismissal of such cause
of action on the ground that the right to quiet enjoyment
of property has nothing to do with noise pollution. While
technically the right to quiet enjoyment of real property
refers to the right to be free from interference with the
use or possession of property by the grantor (see 43 NY Jur
2d Deeds § 79), it has been held that a claim of a
violation of the right to quiet enjoyment of property
sufficiently alleges a cause of action to enjoin a private
nuisance (see Korenman v. Zaydelman, 237 AD2d 711, 712 [3d
Dept 1997]). Therefore, the third cause of action may be
deemed to allege an unconstitutional deprivation of the
right to enforce petitioner’s property rights with no right
to a hearing.

The Appellate Division, Third Department, has held that
there is no property right in having a court determine a
private nuisance suit (see Pure Air and Water of Chemung
County v. Davidsen, 246 AD2d at 787) and therefore no due
process right to a hearing. Such holding is determinative
of petitioner’s third cause of action, thereby requiring a
declaration that the statute does not unconstitutionally
deprive petitioner of any property right or of due process.
In any event, the Court notes that petitioner was granted a
significant opportunity to submit proof that the dogs
barking constituted a violation of the town’s dog ordinance
or caused her bodily harm or property damage, and further,
that the determination of respondent Brennan was subject to
judicial review.

Accordingly it is hereby,

ORDERED and ADJUDGED, that the first and second causes of
action of the petition are hereby dismissed, and it is

DECLARED, that Agriculture and Markets Law § 308
does not violate any of petitioner’s constitutional rights.

This shall constitute the decision, order and judgment of
the Court. All papers together with the original of this
Decision/Order/Judgment are returned to the attorney for
respondent Brennan who is directed to enter this
Decision/Order/Judgment without notice and to serve
petitioner with a copy of this Decision/Order/Judgment with
notice of entry.

[fn1] It is noted that petitioner has failed to submit proof
of service upon the Attorney General as required by CPLR
§ 7804 (c). The Court recognizes the strong public
policy behind this requirement, especially when the
constitutionality of a state statute is challenged (see
e.g. CPLR § 1012 (b). However, respondent Brennan,
who is represented by counsel, has not raised this issue
and has therefore waived it.