2012-02-17 / Columnists

Sullivan’s Court

Commentary By Keith Sullivan

Q. I may have caused a bit of an issue between my neighbors and my new tenant. I am hoping you can give me some guidance on how to successfully navigate this problem I created. I own a 2-family home. I occupy the 2nd floor by myself and rent out the first floor and basement as one unit. The first floor tenant gets use of the backyard. Before moving in the tenant asked if he could bring his pet dog. It is a German Sheppard [sic] and seems friendly and harmless. However, he leaves the dog in the yard for most of the evening and all weekend long. Some of the neighbors have complained to me about the barking. Do I have any legal obligations to the neighbors or the tenant? — Charles A.

A. Dear Charles, A famous Chinese proverb says, “One dog barks at something and a hundred bark at his sound.” While a hundred barks may not be your problem, as far as your neighbors are concerned, one bark is as bad as 100 barks!

Laws apply to people, not dogs. However, there are laws that dog owners must follow. One such law is to help people who are affected nightly by barking dogs. In NY you must stop your dog from making any “unreasonable noise.” That means a dog can bark, but you cannot let him or her bark for hours and hours on end.

The law basically says that an owner, caregiver, dog walker or anyone who is in control of the dog at that moment is not allowed to let the dog bark constantly or loudly for an unreasonable amount of time. Nor are you allowed to allow the dog to bark unreasonably at the residence after 7 a.m. and before 10 p.m. for the allotted time of 10 minutes, and 5 minutes between the hours of 10 p.m. and 7 a.m. Sounds crazy, I know!

If this should occur you may call 311 or you may call your local police station. All dogs bark, it is only natural, but excessively is not acceptable. Your tenant ought to take that into consideration. Also, be sure that this really is a tenant problem and not an overlysensitive neighbor.

This year, a new offense was enacted under the New York City Administrative Code, relating to the restraint of animals while outdoors. It is now a violation to restrain an animal outdoors for longer than three continuous hours in any 12-hour period. Also, if an animal is restrained for longer than 15 minutes, it must be provided with adequate food, water and shelter.

While these are merely violations, the law has also been amended to further protect animals. In order to ad- dress this, an amendment increases the penalties for attending an animal fighting event. Previously, only those who promoted animal fighting could be charged with a felony. During raids of animal fighting events, the organizers were able to blend into the crowd as spectators, thereby evading any meaningful punishment. Under the new law, attending an event is now a Class B misdemeanor.

Q. I was told that texting while driving was just enacted as a traffic violation. I thought the use of cell phones became a law several years ago. Can you clarify? Thanks! — William K.

A. You are partly correct. Sadly, a few years ago the legislature failed to draft a proper law. This often happens, particularly when it is a “knee-jerk” type of law that is drafted and passed with lightning speed because it is an add-on to another law that is on the brink of being passed. The old law did not reference texting and did not allow a police officer to pull someone over for using the phone absent another violation.

The Vehicle and Traffic Law was amended in 2011 to make “texting” or “using a portable electronic device” while driving a primary offense. Under prior law, those who committed the offense of Use of Portable Electronic Devices could not be stopped by a police officer unless the motorist was committing some other VTL offense, such as speeding. The new law permits the officer to stop the car solely for this offense. The amendment also creates rebuttable presumption that a person who holds a portable electronic device is presumed to be using such device. The presumption can be rebutted by evidence tending to show that the operator was not using the device, perhaps by showing in Court your cell phone usage report for the time period in question.

A word of advice for us all; while driving do not facebook, tweet, check e-mail, text or allow a hands-free phone call to distract you. It’s simply not worth risking your life or someone else’s!

Keith Sullivan is a partner with Sullivan & Galleshaw, LLP and an adjunct law professor at Pace University School of Law and Brooklyn Law School and a lecturer for the NYS bar exam. He can be seen frequently providing legal analysis on various national and local networks such as FOX News, CNN, HLN, NBC and MSNBC.

You can e-mail your questions for Keith to SullivansCourt@gmail.com.

Sullivan’s Court provides general legal information only, is not intended as legal advice and does not create an attorney-client relationship.

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