## Facts

- Alisha B. Hennet and William R. Allan, Jr. were in a nonmarital relationship for over fifteen years and lived together at 290 Settles Hill Road in Altamont, New York, from February 2009 until Allan moved out in March 2013.
- In September 2009, the parties acquired a black Labrador retriever (“Duke”); title and registration were placed in both parties’ names.
- On July 23, 2013, during refinancing of the Settles Hill Road property, Allan executed an acknowledged written statement waiving “any and all claims” against Hennet and relinquishing “any and all rights and titles” to the property and “any and all materials and possessions located therein,” further stating that all personal property remaining at the residence was Hennet’s “sole and exclusive property.”
- Allan also quitclaimed his interest in the real property to Hennet; Hennet continued to live at the residence, and Allan lived elsewhere.
- Allan admitted Duke resided at the Settles Hill Road property on July 23, 2013.
- On August 1, 2013, Allan took Duke from the property and retained possession despite Hennet’s demands for return.
- Hennet brought a replevin action to recover Duke and moved for summary judgment and for a seizure order directing the sheriff to recover the dog.

## Issues

1. Whether a dog is personal property subject to replevin and to a written property waiver.
2. Whether Allan’s July 23, 2013 acknowledged waiver unambiguously relinquished his ownership and possessory rights in Duke to Hennet.
3. Whether Allan’s asserted defenses (including fraud, mistake, duress, and unconscionability) raised triable issues precluding summary judgment.

## Decision

- The court granted Hennet summary judgment in replevin.
- The court held that, under New York law, a dog is personal property and may be recovered through replevin based on superior possessory rights.
- The court held Allan’s written waiver was unambiguous and broad enough to include Duke because Duke was personal property residing at the premises on July 23, 2013.
- The court rejected Allan’s defenses as legally and factually insufficient to create a material dispute.
- The court ordered relief under CPLR 7102 directing the sheriff to seize Duke and deliver him to Hennet.

## Legal Principles

- In New York, a dog is treated as personal property; replevin is available to recover wrongfully detained personal property based on superior right to possession.
- Unambiguous, acknowledged written waivers and relinquishments of rights to “all” personal property remaining at a residence are enforced according to their plain terms, absent a valid vitiating defense.
- To defeat summary judgment by asserting fraud, mistake, duress, or unconscionability, a party must present specific facts and evidence supporting the elements of the defense; a claimed lack of intent contrary to clear contract language is insufficient.
- Under CPLR 3212, once the movant establishes entitlement to judgment as a matter of law, the opponent must raise a material issue of fact; conclusory assertions do not suffice.
- Under CPLR 7102, a court may order seizure and delivery of chattel when the plaintiff establishes a superior possessory right and wrongful detention.

## Conclusion

The court treated the dog as personal property, enforced a broadly worded, acknowledged waiver transferring any remaining personal property at the residence to Hennet, rejected Allan’s contract defenses for lack of evidentiary support, and ordered Duke’s return to Hennet through replevin and a CPLR 7102 seizure order.


Hennet v. Allan, 43 Misc. 3d 542, 981 N.Y.S.2d 293 (Sup. Ct. Albany Cnty. 2014)