Appeal from two determinations and orders of the Justice Court of the Town of Southampton, Suffolk County (Barbara L. Wilson, J.), issued August 11, 2006. The court determined that respondents-appellants' respective dogs were dangerous, and issued orders concerning disposition directing that they be euthanized.

Determinations of dangerous dogs and orders affirmed without costs.

Contrary to the Town's position, this appeal from the dangerous dog determinations and orders concerning disposition of the dogs (see Agriculture and Markets Law § 121) was properly taken pursuant to Agriculture and Markets Law § 121 (5) (a), and is not subject to the constraints of Uniform Justice Court Act § 1702. We reject, however, appellants' argument that the lower court's determinations that the dogs were dangerous are not supported by the record. The record amply supports findings, under a "clear and convincing" standard of proof (see Agriculture and Markets Law § 121 [2]), that each dog engaged in an unjustified attack on the victim, and that each caused her physical injury (see Agriculture and Markets Law § 108 [24] [a]). Agriculture and Markets Law § 121 (3) (a) authorizes a court to order the humane euthanasia of a dangerous dog if the dog has "attacked a person causing serious physical injury . . . ." Here, the record supports the lower court's general finding that the dogs caused serious physical injury to the victim. We find that the substantial swelling and the scarring associated with the injury to the victim's cheek, neck, and ear area constituted "serious or protracted disfigurement" (see Agriculture and Markets Law § 108 [29]). Moreover, the victim's unchallenged testimony to the effect that her hearing was still impaired at the time of her testimony that is, 32 days after the attack was proof of serious physical injury in the form of "protracted . . . impairment of the function of [a] bodily organ" (see Agriculture and Markets Law § 108 [29]; Matter of Timothy S., 1 AD3d 908, 909 [2003]; People v Hildenbrandt, 125 AD2d 819, 820 [1986]). Hence, the [*2]aggravating circumstance of the infliction of serious physical injury was established. Furthermore, under the circumstances, the court did not improvidently exercise its discretion in ordering the euthanasia of both dogs.

Appellants also allege that the court demonstrated bias and unfairly skewed the hearing in favor of the Town. This argument is not preserved (see Tonkin v Lofthouse, 34 AD3d 1309, 1309-1310 [2006]), and we decline to reach it in the interest of justice, particularly in view of the fact that appellants' counsel told the lower court, "I believe that my clients have received a fair hearing in this case." Were we to reach the issue, we would reject appellants' argument. The court's participation in the examination of the expert witnesses for the two sides essentially consisted of attempts to clarify the testimony, and of expressions of skepticism toward appellants' theory that, in the context of this nonjury proceeding, do not warrant reversal (see Fernandez v Jordan, 34 AD2d 518 [1970], affd 28 NY2d 510 [1971]). We further note that the court's reference to a redacted portion of the victim's medical records was, under the circumstances, appropriate. With respect to the court's participation in laying the foundation for the admission into evidence of a photograph of injuries to another dog, under the circumstances, this participation does not establish bias on the part of the court. In addition, to the extent that the admission of the photograph into evidence was error, the error would not mandate reversal in light of the evidence as a whole. Finally, we
decline to reach appellants' unpreserved argument that testimony concerning prior incidents allegedly involving the two dogs at issue was irrelevant.

McCabe, J.P., Tanenbaum and Scheinkman, JJ., concur.
Decision Date: April 29, 2008