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SOME TURKEY WITH YOUR LAW?

"For the Truth the Turkey is in Comparison a much more respectable Bird, and withal a true original Native of America… He is besides, though a little vain & silly, a Bird of Courage, and would not hesitate to attack a Grenadier of the British Guards who should presume to invade his Farm Yard with a red Coat on."

(Benjamin Franklin in a 1784 letter to his daughter Sarah Bache comparing the bald eagle to the turkey).

Back in 2005, my wife and I paid a visit to the maternity ward at Staten Island University Hospital on Seaview Avenue to visit her girlfriend who had just given birth. At that time, I had not yet begun working on the Island and was unfamiliar with the area. My wife on the other hand was a lifelong resident.

Approaching the parking lot, I saw a sight which I found very peculiar. Three turkeys were walking across the street with the confidence one would expect from fowl living on a farm.

I remember yelling "Do you see this?" to which my wife replied "Yeah, so what?"

Troubled by her matter-of-fact reaction, I replied "What do you mean so what? There are turkeys walking in the middle of the street!"

I don't remember what was said next but it was probably along the lines of "please just pay the parking meter so I don't have to walk a mile to the maternity ward."

Just last month I relived those memories as I was driving on Victory Blvd near Renwick Avenue. Once again, I saw a rafter of turkeys on the curb that if I didn't know better, appeared to be waiting for the traffic light to change in their favor.

Unbeknownst to me, Staten Island has enjoyed a history of roaming turkeys from Eltingville to Dongan Hills; from Ocean Breeze to West Brighton. Legend has it that it all started back in 2000, when a local resident released her nine turkeys near the South Beach Psychiatric Center.

According to a recent survey conducted by the Department of Environmental Conservation, 61% of Staten Island residents report seeing turkeys daily while 25.5% see them weekly.

What is the legal status of fowl wandering at large upon our roadways? In 1917, the Court in Park v. Farnsworth, 98 Misc. 482, 164 N.Y.S. 735 held that a turkey straying on a public highway was a trespasser, and that the defendant, whose automobile ran over and killed the turkey, was not liable to the owner of the turkey for its value without proof of defendant's negligence, or that the killing was intentional.

The Court held "…the lives of fowls or animals are ordinarily not particularly valuable, and their rights in the highway, if they have any, must, it seems to me, give way to the superior right of the traveling public to pass with reasonable freedom and rational speed along the highway. Highways neither built nor maintained for animals or fowls to stray in. They are ‘constructed for public travel."

In what must have been a chilling moment for the turn of the century turkey, the court further opined that "(t)he defendant doubtless saw the flock of turkeys as he approached them, and could have seen and probably did see that some of them were on one side of the road and some of them on the other. I do not believe the law imposed upon him the duty of slowing down so that he might have his car under control so that he could immediately stop it, just because he might have known, and probably did know, that one of these turkeys might take a notion to cross the road at an injudicious moment."

However, in fairness, two years earlier, in 1915 the court in Collinson v. Wier, 91 Misc. 501, 154 N.Y.S. 951 held that in an action seeking damages for shooting of plaintiff's dog while it chased defendant's turkeys, evidence supported a finding that defendant was justified as an owner of turkeys may protect them against a trespassing dog. Moreover, the owner may kill the dog if necessary to protect the turkeys.

Sometimes, turkeys just have to sit back and laugh as in Jacobs v. Kent 303 A.D.2d 1000, 757 N.Y.S.2d 408 (2003) where plaintiff turkey hunter brought a negligence action against defendant turkey hunter alleging that defendant turkey hunter shot him instead of the turkey. Defendant's hunting party had established itself in the woods while looking for an area in which to hunt. According to the defendant turkey hunter, he fired into the dense underbrush after hearing a gobbling sound and seeing a flash of red. The court held that there were issues as to whether the defendant turkey hunter failed to abide by the rule that a hunter should wait until he sees a whole turkey and is able to ascertain its gender before he fires the shot.

In the category of "I bet you say that to all the turkeys," in Weiner v. Weiner 27 Misc.3d 1111, 899 N.Y.S.2d 555 (2010), an ex-wife brought an action seeking an order of protection barring her ex-husband from entering the private vacation community where she had her house. The court found that the ex-wife proved by credible evidence that the ex-husband committed the offense of fourth-degree stalking.

In seeking to explain why it was so important that he lived in his ex-wife's vacation community as opposed to any other place, the ex-husband went to great lengths to discuss the joy of seeing the spectacle of the autumn colors, deer and wild turkeys on his front lawn. The court noted that the ex-husband "seemed immune to the notion that deer and turkeys and trees with bright leaves abound just about everywhere in this part of the country."

Apparently, this judge has been to Staten Island.

- Alan Karmazin, Angiuli & Gentile, LLP

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