Posted on April 3 at 10:56 a.m. (Suggest removal)

More excerpts of Mr. Tully and Martin v. Columbia Greene Humane Society, Inc.: Plaintiffs' defense attorney moved to dismiss the charges and the District Attorney then withdrew the charges without prejudice. In January 2003, Tully notified plaintiffs' attorney that he was going to reinstate the criminal charges unless plaintiffs agreed not to sell any dogs for three years. Reviewing the other causes of action, we note that plaintiffs' complaint contends, among other things, that before Tully went to their premises on October 31, 2002, Heller's dog had been examined by a veterinarian and found not to have any contagious or infectious disease. Plaintiffs produced an affidavit from a veterinarian supporting such contention and denying Tully's assertion that this veterinarian had told him that plaintiffs had animals with a contagious disease. There are thus factual allegations supporting plaintiffs' contention that Tully had no basis for charging them with willfully selling a dog with an infectious disease to Heller and for using the threat of immediate incarceration on that charge as a ground to gain possession of plaintiffs' 15 dogs. Based upon these facts and the further detailed allegations in the complaint, we find the remaining causes of action against Tully and the Society are sufficient to survive at this procedural juncture. While Tully and defendant Ronald Perez Jr., who is president of the Society, referred to Tully as an officer, plaintiffs asserted that he was merely a peace officer who volunteered for the Society. Tully did not contest this characterization by plaintiffs. A letter in the record on the Society's stationery from the treasurer of the Society characterizes Tully as an "Investigator" and "volunteer" and, tellingly, his name is not listed among the nearly 30 officers, board members and committee members printed on the stationery.

On Peace-Officer Powers

Posted on April 3 at 10:48 a.m. (Suggest removal)

Concerning Mr. Tully, the SPCA, and the wearing of a side arm, I think the following is on point: Supreme Court, Appellate Division, Third Department, New York. Martin v. Columbia Greene Humane Society, Inc.New York 793 N.Y.S.2d 586 (2005)Summary:A woman who purchased a sick dog complained about the dog's health to a humane society volunteer. The humane society volunteer performed an investigation and revealed that the dog breeders had failed to file health certificates or report dogs dying of contagious diseases. The dog breeders surrendered fifteen puppies on their premises and agreed not to sell any more dogs for three years. If the dog breeders did not comply the criminal charges against them would be reinstated by the humane society investigator. The dog breeders brought an action claiming malicious prosecution, abuse of process, tortious interference with business relations and section 1983 violations. Defendants motion to dismiss was denied.The Court of Appeals affirmed in part holding the complaint failed to state a claim for malicious prosecution and the humane society volunteer was entitled to statutory immunity as an unpaid officer of a not-for-profit corporation.
Judge Lahtinen delivered the opinion of the court.Appeal from an order of the Supreme Court (Connor, J.), entered January 20, 2004 in Columbia County, which denied defendants' motion to dismiss the complaint.Plaintiffs are in the business of selling dogs and, in October 2002, one of their customers, Lynn Heller, complained to defendant Columbia Greene Humane Society, Inc. (hereinafter the Society) that a dog she had recently purchased from plaintiffs appeared sick. Defendant Matthew Tully--a volunteer at the Society who performs investigations and is a peace officer--interviewed plaintiffs and allegedly learned that they had failed to file health certificates for out-of-state dogs they sold and also had neglected to report to the Department of Agriculture and Markets certain instances of dogs dying of contagious diseases while in their possession during 2001 (see Agriculture and Markets Law §§ 73, 74; 1 NYCRR 65.2). According to plaintiffs, Tully returned to their home on October 31, 2002 and told them that, unless they immediately signed a document surrendering the 15 puppies on their premises to the Society, he would arrest them upon a misdemeanor charge of violating Agriculture and Markets Law § 357. They allege in their verified complaint that Tully, who is also an attorney, told them that it would be one or two days before they were arraigned, that he would ask for high bail and that he would "demand that [their five] children be placed by the Department of Social Services until plaintiffs made bail."

On Peace-Officer Powers