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Lawsuit is filed in attempt to get dogs out of the cold

Tuesday, January 07, 2014 - Updated: 11:14 AM


FONDA -- A court hearing today was scheduled to determine whether roughly 70 border collies are removed from a dog-breeding facility in Sprakers that's accused of failing to provide adequate outdoor shelter.

Attorneys for the Lexus Project, a legal defense organization for dogs, filed a lawsuit Monday with local animal rescuer Eric Bellows. It was filed against New York State Police Superintendent Joseph D'Amico, and the owner of Flat Creek Border Collies breeding facility.

Bellows and the attorneys disagree with troopers' announcement Friday that the kennel's conditions do not violate state laws or local codes.

"If the police want to stay outside with the dogs tonight, I might be willing to agree these are acceptable conditions," said attorney Richard Rosenthal for the Lexus Project.

Rosenthal and Matthew Albert of Citizens Against Puppy Mills sought immediate recovery of the dogs Monday.

But, during a hearing held at state Supreme Court at Montgomery County Monday (within an hour of filing their complaint), the matter was adjourned until today at 1 p.m.

Judge Joseph Sise said considering the complaint wasn't filed until late Monday, adjourning the hearing would give the state attorney general's office enough time to receive and review a veterinary report compiled from authorities' on-site visit at the breeding facility Friday.

Sise recognized severe weather forecasts that have the potential to break winter temperature records in the next week.

"Mr. Rosenthal and Mr. Albert indicate that if it is true, that the dogs are in danger from the elements, coupled with what we are aware of as a 'polar vortex' is coming, as Mr. Albert indicated ... it requires an immediate hearing from the court," Sise said.

The polar vortex Sise referenced is a whirlpool of frigid, dense air that descended onto much of the U.S. Monday, distinguished by dangerous cold. Monday night's forecast for the Mohawk Valley predicted temperatures in the single digits that dropped to sub-zero when considering the wind chill. Tonight's forecast is no different.

Bellows, who operates an animal rescue in Root, was disappointed immediate action wasn't taken to remove the dogs from the property. He appeared hopeful, though.

"It's a start, but I wish we didn't have to wait," Bellows said.

In addition to the dogs' seizure, the lawsuit (an Article 78) seeks criminal charges against Herbert Weich. Calls to the Weich residence rang unanswered Monday.

Weich, who owns and operates the facility at 569 Rappa Road, was initially cleared of any wrongdoing by state troopers who investigated his operation with a veterinarian Friday.

That was apparently based on a "preliminary" report from the veterinarian, Sise said at Monday's hearing.

The preliminary report indicated "although not ideal, the dogs were not in imminent danger," Sise said. A final report was due Monday.

Sise said he was told by the assistant attorney general assigned to the case to represent state police that "if the report indicated the dogs were in danger, that further action most likely would have been undertaken by state police once the report was given."

State troopers announced Friday there were no violations of state laws or local codes at the facility. They reportedly consulted the Montgomery County District Attorney's Office in making their determination.

"The owner of the kennel has provided shelter, food and water as required," according to a news release.

Though they haven't visited the site in person, Rosenthal and Albert disagree, based on witness testimony and photographs.

"An Article 78 basically asks the court to review a determination by a governmental unit -- to stop them from doing something they shouldn't be doing, or force them to do something they're not," Rosenthal said. "In this case, it's obviously the latter."

Reports of conditions at the facility prompted public outcry and allegations of animal neglect. Hundreds of complaints started rolling in to authorities Wednesday after Bellows posted pictures of the dogs and conditions on social media that went viral.

On-site visits Friday showed the dogs are contained within an electrical fencing system, and are provided cut out barrels as shelter from recent sub-zero wintry elements.

"Seventy dogs may die unless someone steps up and forces police to enforce the law," Rosenthal said.

A call to a state police spokesman Monday indicated he was out of the office until this morning, and could not be reached for comment.

Rosenthal said local animal shelters are gearing up to foster the dogs should a warrant be issued.

Montgomery County SPCA Director Jan Zumbolo attended Monday's hearing along with representatives from other local shelters. Zumbolo said if the judge approves the warrant, the SPCA will become responsible for the dogs' care.

If that happens, Zumbolo said the SPCA will likely utilize other local shelters to foster the large volume of dogs.


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