In 2009, Judge Shafer of the Supreme Court, New York County ruled in favor of the non-profit corporation, Stray from the Heart, Inc. (“Stray”), in its Article 78 application – an action brought to challenge the activities of an administrative agency in court – to compel the City of New York to comply with the statutory requirement that it provide full service animal shelters in all five boroughs of New York City.  Matter of Stray from the Heart, Inc. v. Department of Health & Mental Hygiene of the City of New York, 2009 N.Y. Slip Op. 52092(U), 25 Misc.3d 1214(A).

In 2000, New York City’s Committee on Health determined that the overpopulation of stray dogs posed a serious threat to the public’s health, safety and welfare.  As a result, the City passed Local Law 26 of 2000, the Animal Shelters and Sterilization Act (the “Act”) and incorporated it into New York City’s Administrative Code at §§17-801 through 17-809.  The Act required the City to ensure that a “full-service animal shelter” be maintained in each of the five New York City boroughs, twenty-four hours per day, seven days per week.  The Act defined “full-service animal shelter” as “a facility … that houses lost, stray or homeless animals and (1) accepts dogs and cats [24 hours per day, 7 days per week]; (2) has an adoption program open [24 hours a day, 7 days per week]; and (3) provides sterilization services for dogs and cats.”  See §§17-802(c); 17-809.  The Act also required that all animals be sterilized before leaving the shelter, except in certain specified situations.

The City was required to be in full compliance with the Act by January, 2005.  When the statutory deadline passed, the City still had no shelters that were open twenty-four hours per day and there were no shelters at all within the Bronx or Queens.

Stray is a non-profit volunteer organization that rescues, rehabilitates and places homeless dogs.  Stray, as the Petitioner, sued the City of New York alleging that the City’s failure to comply with the Act “created a dangerous public health threat and overburdens citizens and private rescue organizations, such as the petitioner, which are forced to bear costs of rescuing, sheltering, treating and sterilizing unwanted animals.  Petitioner seeks restitution to recover its expenses.”  Id. at *1.

The court held that Stray had standing to bring the action to compel the City to comply with the Act.  An Article 78 proceeding was the appropriate means for Stray to seek to compel the City to perform a statutory duty that is ministerial in nature and does not require the exercise of judgment or discretion by a City officer.  Stray’s standing was based upon the ground that it provided services to homeless animals which the City failed to provide as required by the Act.

The court held that the City, “blatantly failed to comply with the mandatory requirements of the Act, which unambiguously requires shelters in each borough, not in 3 out of 5, open 24 hours per day, not 12 or ‘as needed.’  While it is true that the creation of a shelter involves discretionary decision-making, the process by which an imposed duty is implemented is irrelevant.”  Id. at *2.

The court continued, “[C]ompliance with almost any statutory directive will involve some measure of discretion exercised by those implementing its terms, but this will not render nonjusticiable a claim which asks the courts to compel compliance with a statute that is otherwise mandatory on its face.”  Id.  In other words, courts may “compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so.”  Id.

The court granted Stray’s Petition and directed the City of New York to “submit a plan for the immediate implementation of their compliance with the statutory directives of the Animal Shelters and Sterilization Act, Local Law 26 of 2000 within 60 days.”  Id. at *3.  The court also awarded Stray its costs for providing the services the City failed to provide as incidental damages – reasonable expenses incurred by one party as a result of another party’s failure to do what they were supposed to do – and referred the case to a Special Referee for calculation of those incidental damages.


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