Joined: 21 Jan 2002
Location: New York City
|Posted: Sat Jul 15, 2006 12:37 pm Post subject: Keeping a pet when the lease says "No Pets"
|So you want to keep a pet, but your lease has a "No Pet" Clause
by Karen Copeland, Esq.
Defenses to a holdover proceeding based upon the harboring of a pet in violation of a "No Pet" lease provision.
Two types of laws give an individual tenant, renter or cooperative shareholder the right to keep a pet, even if there is a "no pet" provision in the proprietary lease, occupancy agreement, house rules, or lease.
The first, and most widely known types of laws are municipal or local "Pet Laws" which deem that any such "no pet" provision is waived for the duration of the tenancy if the landlord fails to enforce the provision by commencing an action or proceeding within three months of the tenant's open and notorious harboring of the pet.
The second category of laws which would enable a tenant to keep a pet in spite of a "no pet" rule are the federal state, and local laws which prohibit discrimination against the disabled. Such laws mandate that a housing provider grant a "reasonable accommodation" necessary for a disabled person to "use and enjoy" his or her home.
Recent developments in each type of law have enabled many individuals to keep pets, even in the face of considerable opposition by Boards and neighbors. While individual co-op boards and landlords may be within their rights to enact and enforce a "no pet" clause, such prohibitions fail in the face of superseding laws which give tenants the right to keep pets in their homes under certain circumstances, which are discussed here.
The "Pet Law"
In New York City (Administrative Code of the City of New York Section 27-2009.1) and Westchester County (Laws of Westchester County Section 694), statutes commonly known as the "Pet Law" give tenants in all multiple dwellings, including cooperatives and most condominiums, as well as rental housing, and government subsidized housing, the right to keep a pet, even if there is an applicable "no pet" clause in the lease.
Under the "Pet Law", if a landlord fails, within three months of his knowledge of a tenant's open and notorious harboring of a pet, to enforce any applicable "no pet" provision, then any such provision is deemed void. The law applies to unit owners, as well as renters, in co-ops and condos, whether private or government subsidized.
When is the proceeding "commenced" for purposes of the Pet Law?
Appellate Division case law has confirmed that the proceeding is commenced by the service of the Petition and Notice of Petition. (RPAPL Section 731; CPLR Section 401) The case is not commenced by letters, or service of the predicate Notice to Cure or Notice of Termination. Thus, if the landlord fails to serve the Petition and Notice of Petition within three months of has actual or constructive knowledge of the pet, any "no pet" clause is deemed void pursuant to the Pet Law.
The exception to this rule is if the tenant lies about the pet, says he will settle the case, says the dog is only temporary, or makes any representation about the removal of the pet that the landlord relies upon that representation in refraining from proceeding to enforce the "no pet" clause. In such a case the Court may look to the date of the service of the Notice to Cure for the date of commencement of the proceeding. So, if the landlord asks about the dog the recommended response is: "It's my dog. I'm keeping it."
What happens if a tenant has had a pet for many years, but the pet dies? Can the tenant get a new pet to replace the old one under the "Pet Law"?
For years, case law had confirmed that any "no pet" clause was waived years ago by the keeping of a first pet. Once the "no pet" clause has been waived for the duration of the tenancy, it is not revived by the introduction of any new pet, whether it be a replacement for a deceased pet, a second pet, or possibly even one of a different species than the first. Recently appellate case law has limited the New York City Pet Law waiver to a "per pet" basis. In other words, the reintroduction of each new pet revives the three month waiver "Pet Law" period in which the landlord may enforce a "no pet" clause. Legislation is currently pending before the City Council to codify the "per tenancy" waiver interpretation.
In addition, recent decisions suggest that if a pet is kept for a period in excess of six years, the landlord may be barred from enforcement of a no-pet clause by the six year statue of limitations which applies to actions based upon contracts. That pet and any subsequent replacements may have the benefit of the defense of the statute of limitations if pets were kept for a period in excess of six years with no significant hiatus between pets. The landlord may be barred from enforcing the no pet provision due to the six year Statute of Limitations which applies to contracts, even if the landlord acts immediately, within the three month Pet Law waiver period to enforce a no pet clause against the second dog,
There is no requirement under the Pet Law that the permission of the landlord be sought prior to introducing a pet into the home. As long as the Board's employees and agents are aware of the dog by your "open and notorious" behavior, constructive knowledge of the pet will be attributed to the Board, or landlord, in a court of law, for purposes of determining when the three month period commences.
It's important to prove when the tenant got the pet, and when the landlord, by way of its agents and employees, became aware of the pet, and that the keeping of the pet was "open and notorious".
The following suggestions may help to prove in court when a pet first entered the building and when the landlord became aware of it.
1. The best proof is any communication from the landlord which shows that he knew of the dog or dogs for more than three months. Sometimes the landlord will even let three months pass between the time of service of the Notice to Cure and the service of the Petition and Notice of Petition commencing the holdover proceeding.
2. Another form of proof is the testimony of any neighbors who are willing to come into court to testify. the neighbors should be able to testify how long you had the dog, and if the pet were seen by the landlord's employees. (Sorry, letters and petitions from neighbors generally are not admissible in a trial.)
3. Create a paper trail of dated government documents and medical bills to indicate duration of pet ownership. Save the adoption certificate, license, bill of sale, or American Kennel Club papers you receive.
4. Bring the dog to the veterinarian immediately. Save all bills and records of inoculations, rabies tags, spaying or neutering certificates.
5. Take pictures of the pet in the apartment and in the building, and date them when you get them from developing. Every picture is worth a thousand words, so be creative. A photo of you, the dog, and the doorman next to the building Christmas display would show that the building's agents were aware of the dog at a certain point in time, for example. Every cat sits in the window: how about a photo, from the outside of the building, of your cat sitting in the window of your apartment, to prove "open and notorious" harboring of the cat? At least one case has been proven by the tenant's keeping careful photographic records of her dog's growth, from tiny puppy to full grown dog, in the apartment and around the neighborhood.
6. Save any letters or complaints from the Board or management pertaining to the pet.
7. Keep a log in a notebook, used exclusively for this purpose, in which you record any date that workers were in your apartment and saw the dog, or if the super or doorman saw the dog. Make sure that all entries are made on or near the time of the occurrence.
Cooperative and condo owners with a physical or mental disability are also protected by the federal Fair Housing Act and the City of New York Civil Rights Act. These laws provide that disabled individuals be given a "reasonable accommodation" to 'use and enjoy' their homes by "housing providers", including co-ops and condos. The failure of a landlord, cooperative or condo board to grant such a "reasonable accommodation" might be found to be an act of discrimination against a disabled person in violation of the aforementioned statutes.
Federal and local case law has recognized that the keeping of a pet can be such a "reasonable accommodation" under the statutes. If a tenant can prove that he has any physical or mental impairment, (and, additionally, which interferes with a major life activity, under the federal law) and has a medical need to keep the pet, which must be proven with the testimony and support of a medical professional then the landlord must permit him to keep it.
Failure of the landlord to grant such a reasonable accommodation to keep a pet is an "unlawful discriminatory practice" under the law, equivalent to refusing to put in a ramp for a wheelchair bound tenant.
The co-op board, or individual unit owner who rents his unit could be liable for compensatory and punitive damages in state or federal court, as well as hefty fines which may be levied by such regulatory agencies as the federal Department of Housing and Urban Development, or the City of New York Commission on Human Rights for failure to grant such an accommodation to a disabled tenant.
The federal Fair Housing Act, and the New York City Civil Rights Law require that a housing provider give a "reasonable accommodation" to a disabled individual to use and enjoy his or her home by keeping a medically necessary companion animal.
The term "disabled" pertains to all kinds of mental and physical disabilities, not just such obvious disabilities as blindness or paralysis. The laws also cover people with conditions such as mental illness, chronic depression, diabetes, hearing loss, AIDs, arthritis. If the tenant can prove disability, (being on Social Security Disability is probably dispositive proof of disability in itself) and prove a medical need for a pet, then the landlord must permit the tenant to keep the pet, or face punitive damages under the statutes preventing discrimination against the disabled. The medical necessity of keeping a pet may be demonstrated, for purposes of filing a complaint with HUD or the City of New York Human Rights Commission, by a doctor's note attesting to the benefits provided by the pet. Your doctor must also be willing to testify at a hearing, although such cases usually settle quickly due to the serious "down-side potential" faced by a landlord.
The law includes, but is not limited to, "seeing eye" dogs, and "hearing" dogs, but also companion animals who provide the service of emotional support to their disabled owners. For example, a key case recently before HUD fined a co-op board several thousands of dollars for refusing to grant the reasonable accommodation of non-enforcement of an applicable "no pet" clause to a tenant with chronic depression to keep her pet Yorkshire terrier, for the unconditional love the dog provides, which her psychiatrist attested that the tenant needed.
If the Board or landlord refuses permission to keep an emotional support assistance pet, or refuses to rent to a disabled person who has shown a medical need to keep an animal, the aggrieved person may file a complaint against the Board with the City Civil Rights Commission or the State Attorney General Civil Rights Office, or file a complaint in federal and state courts for punitive damages for an unlawful discriminatory practice. The statutes may also be used as a defense to an eviction proceeding.
These laws apply equally to the cooperator who rents his unit. The Board may scoff at being asked to refrain from enforcing their "no pet" rules for the benefit of a tenant with a disability such as chronic depression. Nevertheless, such a denial may cost thousands of dollars in fines and punitive damages if the tenant can prove her case to HUD, or in a federal court.
This article is intended to be of general information and is not a substitute for legal advice. If you are being sued, see an attorney at once to help you to defend yourself and assert your rights under the law.
Karen Copeland is an attorney in private practice focusing on issues pertaining to companion animals in housing. Formerly, she was a staff attorney for the Housing Litigation Bureau of the Department of Housing Preservation and Development of the City of New York. She may be reached at (212) 560-7154. Copyright Karen Copeland 1998; reproduced on TenantNet by permission, all other rights reserved.
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Joined: 22 Jul 2002
|Posted: Fri Aug 04, 2006 9:52 pm Post subject: NYC Pet Law
HOUSING MAINTENANCE CODE
MAINTENANCE, SERVICES, AND UTILITIES
Obligations of Owner and Tenant: Duty to Repair
Sec. 27-2009.1 Rights and Responsibilities of Owners and Tenants in Relation to Pets
a. Legislative declaration. The council hereby finds that the enforcement of covenants contained in multiple dwelling leases which prohibit the harboring of household pets has led to widespread abuses by building owners or their agents, who knowing that a tenant has a pet for an extended period of time, seek to evict the tenant and/or his or her pet often for reasons unrelated to the creation of a nuisance. Because household pets are kept for reasons of safety and companionship and under the existence of a continuing housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety and welfare of tenants who harbor pets under the circumstances provided herein, it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and dislocation of tenants within this city.
b. Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the Multiple Dwelling Law, the Housing Maintenance or the Health Codes of the City of New York or any other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.
c. It shall be unlawful for an owner or his or her agent, by express terms or otherwise, to restrict a tenant's rights as provided in this section. Any such restriction shall be unenforceable and deemed void as against public policy.
d. The waiver provision of this section shall not apply where the harboring of a household pet causes damage to the subject premise, creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure.
e. The New York City Housing Authority shall be exempt from the provisions of this section.
note: Westchester county has a similar law: Westchester County Law §695.01 et seq.
Joined: 22 Jul 2002
|Posted: Fri Aug 04, 2006 9:59 pm Post subject:
|See also brochure re Pet Law:
Keeping Spot and Fluffy Home: Companion Animals in NYC Apartments, 2003 Edition, by the Association of the Bar of the City of New York:
and other Animal Rights brochures:
* Providing For Your Pet in the Event of Your Death or Hospitalization (includes new information for New York State)
* Bringing Rex Home: A Veterinarian/Boarding Kennel's Right to Hold Your Pet Because of an Unpaid Bill in New York
* Access Rights of People with Disabilities and Their Service Animals
* Animal Fighting and Cruelty Cases in New York: A Guide for Judges, Prosecutors and Defense Counsel
Joined: 03 Apr 2005
|Posted: Sat Sep 09, 2006 5:12 pm Post subject:
|Keeping Spot and Fluffy Home: Companion Animals in New York City Apartments
Almost two decades have passed since New York City enacted the Pet Law (§§ 27-2009.1 of the Administrative Code of the City of New York) protecting pets and their guardians, during which time courts and agencies have resolved dozens of legal issues involving the rights of New York City apartment dwellers to keep companion animals.
At the outset, people should not be discouraged by clauses in their leases that appear to prohibit pets or to require written permission. Various laws, including the Pet Law and laws protecting people with disabilities, may override no-pet clauses in leases, rendering the no-pet clause unenforceable. And the no-pet clause itself is not always as prohibitive as it seems. Unfortunately, people are often not aware of the laws pertaining to tenants and their companion animals, and may unnecessarily, and painfully, give up their pets.
Sound legal advice obtained early in the course of events is essential; if it does become necessary for the pet guardian to go to court, the chances of winning the case with attorneys’ fees awarded are often good. Knowing some of the laws yourself will help. What follows is a summary of those laws.*
Question No. 1. What is the Pet Law?
In its plainest reading, the Pet Law provides that once a pet lives in a multiple dwelling (a building with three or more residential units) for three or more months, openly and notoriously (not hidden from the building’s owners, their agents, and on-site employees), then any no-pet clause in a lease is considered waived and unenforceable.1
The law applies in New York City. Westchester County has a similar law.2 New York City Housing Authority housing, which is not subject to the Pet Law but is subject to federal law concerning pets in housing,3 is discussed in Question No. 15. Pet guardians living in buildings with fewer than three units may have other defenses that were used by all pet guardians before the Pet Law was enacted. (See Question No. 13 for more details.)
The Pet Law applies in cooperative apartments.4 However, as to condominiums, because of conflicting decisions in the courts the Pet Law does apply to condominiums in Brooklyn, Queens and Staten Island, but does not apply to condominiums in Manhattan and the Bronx! Coops and condos will be discussed in more detail in Question No. 8.
Question No. 2: What does it mean to keep your pet openly and notoriously?
“Notorious” does not mean that your pet is an outlaw. As with much legal jargon, the words “open” and “notorious” have been interpreted by the courts, and have generally been held to mean visible and apparent, i.e., not hidden. Thus, in interpreting the Pet Law, most judges have tried to determine simply whether or not the pet was hidden in any active way.
For example, in Matter of Robinson v City of New York,5 the landlord argued that because Cindy Robinson’s small dog, Miss Muffy, was paper trained and did not go for regular walks, the dog was therefore not kept openly and notoriously. The court disagreed and found that a pet does not have to go for daily walks to be open and notorious. Any other rule, the court said:
|"would lead to a conclusion that all small dogs or other animals whose masters elected to treat only as house pets could not have the benefit of the [Pet L]aw’s waiver even though they had been seen and noted by management personnel . . . such a reading is arbitrary and capricious also because it would seem to work most harshly against tenants who are house bound for one reason or another, such as age or disability, and who choose to have small dogs (or cats) as a companion without the need to walk them." |
So, you can keep a house-bound pet openly, if you do not hide the pet. When building personnel come to your apartment for repairs or inspections, keep the pet, as well as evidence of the pet (e.g., toys and dishes), in plain sight, or where you normally keep them.
Question No. 3: In addition to keeping my pet openly for three months (i.e., not hiding my pet), am I also obliged to make certain that the actual owners and building agents have been told about him or her?
No. While you may need to make sure someone employed by or connected with the building sees your pet, it does not have to be the owner or managing agent.
In Seward v Cohen,6 an appellate court ruled that when building employees (even those employed as independent contractors) know of the pet, that starts the three months running. Thus, the actual owners or managers of the building do not need to know.
The court also said that just keeping your pet openly and notoriously for three months may also be sufficient to trigger a waiver regardless of whether any building personnel actually knew about the pet because, in that case, they should have known. It was also found by a court in Park Holding Co. v Tzeses7 that the statute was intended to create an either/or requirement -- either someone connected with the building knew about the pet for three or more months or the pet was simply kept openly for three or more months. However, a tenant would always have an easier time in court if he or she can prove that someone from the building actually knew about the pet. It may be useful to keep notes on when and where an employee or other agent of the owners or management observed (or should have observed) your pet, and who else was present at the time, to assist the court in determining if the building agents knew or should have known about the pet because of long-time open and notorious harboring of that pet.
Question No. 4. What if my landlord threatens that he or she will sue me for legal fees and evict me if I do not “get rid” of my pet?
You should not be intimidated by such tactics. You may have a very good case, and if you win, you may win legal fees. Don’t forget that, even if you do not prevail in the lower court, you can appeal. And in any case, even if you lose, the court will generally give you time to “cure” (e.g., place your pet in a good home) after the court renders a judgment. While in such an event you can lose legal fees, you will probably not lose your apartment if you comply with the court’s order to remove your pet. To be careful, you should contact a lawyer seasoned in this area the moment a claim arises.
Question 5. Can my landlord evict me if I timely remove my pet from my apartment after he or she sends me a notice demanding that I remove my pet within a specified period of time?
No. You complied with your lease obligations by curing as requested. You should keep in mind, however, that if you did have rights to keep your pet, you may very well have hurt them by removing your pet.
Question No. 6: Will the three-month period be extended if I enter into settlement talks with my landlord?
In one of the earlier cases under the Pet Law, it was ruled that if a landlord delays starting suit to remove your pet beyond the three month period because the landlord reasonably believes that there will be a settlement, then the three-month period may begin to run only after settlement talks end.8 However, a higher court subsequently ruled9 that this case should not be followed. Nonetheless, since settlement talks may still be detrimental to your rights under the Pet Law, it is best to consult a legal expert in this area as early as possible.
Similarly, if your landlord calls or writes to you about your pet, you should immediately consult an attorney. Save all letters and note the details of all discussions.
Question No. 7. When and how must the landlord start a legal action under the Pet Law?
Under the Pet Law, a landlord must actually commence a suit within the three-month period to enforce the landlord’s rights and not simply serve notice that he or she intends to bring suit.10 Commencement of a lawsuit means service of a “summons and complaint” or of a “notice of petition and petition.”
One should be aware, however, that where the landlord’s suit is dismissed on technical grounds, such as improper service of legal papers, a new suit commenced by the landlord may be considered timely as long as the original one was.11
|[Note -- As of September 2005, "commencement" occurs upon filing, rather than service, of the papers initiating a lawsuit in NYC Civil Court.] |
Question No. 8: Does the Pet Law apply to cooperatives and condominiums?
The Pet Law states that it applies to tenants with leases in multiple dwellings. People who live in cooperatives have proprietary leases. So, about a year after the Pet Law was enacted, the courts held that the Pet Law indeed does apply to cooperative buildings. In Corlear Gardens Housing Co., Inc. v Ramos,12 the court stated that “all tenants, including cooperative tenants, are in need of the protection of the Pet Law.”13 Thus, as long as the cooperative has three or more residential units, the Pet Law applies.
Condominiums present a different issue, because even though a condominium’s by-laws and rules can restrict pets much like a lease, there is no document entitled a “lease” between the unit owner and the condominium board. However, an Appellate Court covering Brooklyn, Queens, and Staten Island,14 has held that the Pet Law applies to condominiums, while the Appellate Division covering the Bronx, and Manhattan came to the opposite conclusion, ruling that the Pet Law does not apply to condominiums.15 Thus, for now, the application of the Pet Law to condominium owners will depend on where you live. Ironically, while a condominium owner may not be covered by the Pet Law, a person who is renting, or subletting, a condominium and is not the owner of the unit is subject to a lease agreement (even if oral) and will, therefore, most likely have the protection of the Pet Law.
Question No. 9: Am I allowed to get a new pet?
You may have been able to keep your first pet in your apartment but the time may come when your first pet is no longer with you and you realize that you want very much to have another pet, or that you wish to get an additional pet. Are you allowed by law to have one? Do the three months have to start all over again each time you get another pet?
Courts in New York had held for more than a decade that once the no pet clause is waived or found to be unenforceable for your pet, it could not be revived for a subsequent pet. Thus, the next pet had been regularly allowed, whether or not the three months had run a second time. However, the Appellate Term for Manhattan and the Bronx held in 1996 that the waiver of the clause for your first pet will not act as a waiver of the no-pet clause for your second pet.16 Thus, under current law, for people living in Manhattan and the Bronx, the three months has to run all over again for any new pet.
Question No. 10: For the Pet Law to apply, must I first prove my landlord’s bad faith motive, i.e., that my pet is being used by the landlord as an excuse to evict me?
Throughout the history of the Pet Law, co-ops, condos, and landlords have argued that the Pet Law should be enforced only when there is proof that the building is retaliating against the tenant for some reason other than a real desire to remove the tenant’s pet. However, nothing in the statute requires such a reading. Indeed, New York already has a statute protecting tenants from retaliatory eviction.17
But most importantly, a court in Metropolitan Life Insurance v Friedman18 held that proof of a retaliatory motive is not required. The court stated:
Thus, if your landlord is retaliating against you for something you have the legal right to do (such as making a good faith complaint to a governmental authority) you may have an additional defense in an eviction proceeding, but you do not have to first prove this to win under the Pet Law.
|"We reject plaintiff’s argument that the statutory three-month period is inapplicable absent the finding that a no-pet provision is being used as a pretext for a retaliatory eviction or some other bad faith motive." |
Question No. 11. What happens if my pet is deemed a “nuisance?”
If your pet is a nuisance, the Pet Law will not help you. Thus, the landlord can bring a claim that your pet is a nuisance even after three months have passed. Your pet may be deemed a nuisance for substantially interfering with your neighbors’ use of their apartments (e.g., frequent urination or defecation in the hallway or lobby, constant barking, attacking other tenants, or strong, objectionable odors coming from your apartment). If many of your neighbors come to court complaining that their rights as tenants are substantially impaired by your pet’s behavior, then the court will generally find that your pet is indeed a nuisance. However, courts have held that an isolated incident (such as an occasional accident in the lobby) does not make your pet a nuisance.
If your pet is a nuisance, you should get the expert help of an animal behaviorist and/or a trainer who may be able to correct the problem. If your pet’s behavior changes quickly enough, a court may find that you need not lose your home or your pet.
Question No. 12: If I am disabled and have a companion and/or service animal, what are my rights?
In addition to any rights you have under the Pet Law, you may be protected by Federal, State and local laws allowing you to keep your animal.
Most people are aware that the law protects your right to keep a hearing assistance or seeing eye guide dog in your home. However, people with other disabilities who have a service animal are also protected. For example, New York Civil Rights Law § 47 provides that “no person shall be denied admittance to and/or the equal use of and enjoyment of any public facility solely because said person is a person with a disability and is accompanied by a guide dog, hearing dog, or a service dog.” This applies to housing and includes service dogs for a wide range of physical, mental and medical impairments. The law also covers service dogs living with a person while the dogs are in training. Federal19 and local laws also provide protection for persons with disabilities who have service animals.
Under the federal Fair Housing Act20 people with disabilities have been successful in arguing that, in certain circumstances, landlords must allow them to have a pet who provides them with emotional support as a reasonable accommodation.21 In this situation, the pet does not have to be qualified as a guide dog, hearing dog, or other type of service animal. Disabilities do not necessarily have to be physical and may include such conditions as depression. Therefore, if a pet is determined to be medically necessary by your health care provider, a court may hold that the pet must be permitted to live in your home with you. Similar rights may also exist under State and City law.
Here too it is important to get early legal counseling because a landlord must be advised of your disability and of your right to have an emotional support animal. If your landlord refuses to make a reasonable accommodation after being notified of your rights, relief can be sought in Federal and State courts or at the United States Department of Housing and Urban Development (HUD) Office of Fair Housing and Equal Opportunity Enforcement.
For a full description of your rights contact an attorney knowledgeable in this area, or, for advice, you can contact: ASPCA Legal Department, 424 East 92nd Street, New York, NY 10128; Delta Society, 289 Perimeter Road, Renton, WA, 98057; Canine Companions for Independence, Northeast Regional Training Center, P.O. Box 205, Farmingdale, NY, 11735; Guiding Eyes for the Blind, 611 Granite Springs Road, Yorktown Heights, NY, 10598; or Canine Hearing Companions, 247 East Forest Grove Road, Vineland, NJ, 08360.
Question No. 13: What if I do not live in a building with three or more units and thus am not protected by the Pet Law?
In situations in which the Pet Law does not apply, there is still hope. First, the laws protecting the rights of people with disabilities apply regardless of the size of the building.
Also, since the laws of New York give a landlord the right to proceed summarily, (i.e., get a determination more quickly than in most courts,) this right is balanced with strict rules.22 Thus, even before the Pet Law was passed, courts held that if a lease does not clearly tell the tenant that he or she may be evicted for having a pet, the tenant can not be evicted on that ground.
Just as the lease clause must be abundantly clear, the predicate notice (i.e., the notice to cure or terminate that is usually required before a law suit may begin) must also be unequivocal, and a court may hold that the particular lease clause that is allegedly violated must be cited in the notice.
If rent is accepted after the termination date, but before commencement of the suit, the notice will be considered void and the landlord must start again.
New York law23 provides that a residential lease (or other consumer contract) that has printed type smaller than eight points or is unclear is not admissible in evidence. So, if the no-pet provision is visibly unclear, or the print is too small, then the landlord will not be able to place the lease in evidence to prove a case against a person harboring a pet.
Question No. 14: What may happen if I live in a building with three or more units but fewer than six units?
If you live in a building with three or more units but fewer than six units you are protected by the Pet Law, but your rights to renew your lease generally may be limited. If you live in such a building you should contact an attorney immediately if your landlord contacts you about your pet.
Question No. 15: What happens if I live in New York City Housing Authority housing?
Some 180,000 apartments owned and operated by the New York City Housing Authority (NYCHA) are exempt from the benefits of the Pet Law.
However, due to a new federal law24 allowing pets in federal housing under certain conditions, NYCHA has promulgated a pet policy which is currently allowing tenants to have one cat or one dog (who is not expected to weigh more than 40 pounds when fully grown). NYCHA is also allowing some pets who were already living in NYCHA housing when the new policy was enacted to stay.
Under the current pet policy, you will be required to register any cat or dog in your household and pay a one time non-refundable pet registration fee which will be waived for people in senior buildings and people with service animals. All cats and dogs over three months must be spayed or neutered and be vaccinated against rabies.
Also, all of the provisions protecting the rights of people with disabilities outlined in Question 12 are applicable in NYCHA apartments.
If you live in NYCHA apartment, and you are given a notice to appear before the building’s management or other agent because you have a pet, you should immediately contact an attorney. Do not go to management alone and without getting legal advice.
IT CANNOT BE OVEREMPHASIZED that, regardless of the type of housing involved, legal advice from an expert in issues pertaining to animals should be obtained as soon as problems arise regarding your pet and before you are about to get a new apartment or pet. Sound legal counsel obtained early may prevent or minimize problems, whereas negotiating with management or owners yourself could have a detrimental effect on your case.
* This brochure is not offered as legal advice and should not be relied upon for particular matters without the independent advice of counsel qualified in these issues. The law in this area changes frequently, and the information provided herein may be out of date. For counsel you can contact the Legal Referral Service of the Association of the Bar of the City of New York and the New York County Lawyers’ Association or your local bar association or humane organization
This brochure was printed with the generous support of the American Society for the Prevention of Cruelty to Animals.
1 Section 27-2009.1 of the New York City Administrative Code provides:
|. . . “b. Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of the unit harbors, or has harbored a household pet or pets . . . and the owner or his or her agent has knowledge of this fact, and such owner fails within this three-month period to commence a summary proceeding or action to enforce the lease provision prohibiting the keeping of such household pet, such lease provision shall be deemed waived. . . . c. It shall be unlawful for an owner or his or her agent, by express terms or otherwise, to restrict a tenant’s rights as provided in this section. Any such restriction shall be unenforceable and deemed void as against public policy.” |
2 Westchester County Law §695.01 et seq.
3 42 USC §1437z-3.
4 In Corlear Gardens Housing Co., Inc. v Ramos, 126 Misc 2d 416, 481 NYS2d 577 (Sup. Ct. Bronx Co. 1984), the court made three basic and crucial findings. First, the Pet Law did not violate the Urstadt Law, which “was not intended to place restrictions on a municipality other than with respect to rent control regulation. . . . The Urstadt law was passed by the legislature to restrict municipalities from enacting more stringent economic and rent controlled restrictions and in order to encourage the construction of new housing in the City of New York . . .”. Second, the court found that there was no reason to exclude cooperative owner-shareholders and tenants from the Pet Law. Last, the court found that the Pet Law was retroactive because it was remedial legislation. The court cited Garsen v Nimmo, NYLJ 2/14/84 p.14 col.4, 12 HCR 27B, which found that the Pet Law law was retroactive “in light of the law’s remedial purpose as expressed in the stated legislative declaration -- to wit that under the existence of the continued housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety and welfare of tenants who harbor pets . . . [and] to prevent potential hardship and dislocation of tenants within this city (See Gordon & Gordon v Madavin, Ltd., 108 Misc2d 349, affd 85 AD2d 937; Tegreh Realty Corp. v Joyce, 88 AD2d 820).” And apart from the above cases, the legislative declaration of the Pet Law states that “because household pets are kept for reasons of safety and companionship . . . it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and physical dislocation of tenants in this city” (New York City Admin. Code §27-2009.1).
5 152 Misc2d 1007, 579 NYS2d 817 (Sup. Ct. NY Co. 1991).
6 287 AD2d 157, 734 NYS2d 42 (1st Dept. 2001).
7 17 HCR 251 (Civ. Ct. NY Co.), affd NYLJ 4/13/89, p.22, col. 6 (App. Term, 1st Dept. 1988). The lower court in Tzeses stated:
|“Section 27-2009.1: A landlord waives the right to enforce a no-pet clause by failing to commence suit within three months after learning of an animal’s presence. The waiver applies where landlord lacks actual knowledge but is chargeable with such knowledge by the tenant’s conduct, e.g., frequent goings and comings in view of building employees. [Note: the statute speaks of the tenant’s harboring the pet ‘openly and notoriously . . . and the owner or its agent hav[ing] knowledge of this fact’]. Thus, the defense is established even if tenant proves only constructive notice [citations omitted].” |
8 In Park Holding v Lavigne, 130 Misc2d 396, 498 NYS2d 248 (App. Term, 1st Dept. 1985) the Appellate Term held that a belief that the matter was about to be settled allowed the landlord to refrain from instituting court proceedings, as long as the service of the notice to cure and notice to terminate had come within the three month period. However, subsequently, the Appellate Term, in Park Holding Co. v Tzeses, supra, and Arwin 74th Street Co. v Rekant, NYLJ 12/19/88 p.23, col.4 (App. Term 1st Dept.), affd 151 AD2d 1056 (1st Dept. 1989) held that an action or proceeding is “commenced” (for purposes of the Pet Law) by service of process of the actual lawsuit, which must be done within three months absent Lavigne circumstances and, most importantly, a higher court has since ruled that Park v Lavigne should not be followed. Seward v Cohen, supra.
9 Seward v Cohen, 287 AD2d 157, 734 NYS2d 42 (1st Dept. 2001).
10 In Arwin 74th Street Co. v Rekant, supra, the Appellate Division, First Department affirmed the Appellate Term’s holding that the failure to commence a suit, even where predicate notices have been served, will cause a waiver of any no pet provision to occur under the Pet Law.
11 See Baumrind v Fidelman, 183 AD2d 635, 584 NYS2d 545 (1st Dept. 1992). Justice Kupferman dissented and would have reversed for the reasons stated in the lower court ruling of Judge Mark H. Spires, i.e., that the failure to properly serve the papers commencing the proceeding within the three months causes a waiver under the Pet Law.
12 126 Misc2d 416, 481 NYS 2d 577 (Sup. Ct. Bronx Co. 1984).
13 126 Misc2d at 419, 481 NYS2d at 579.
14 In Board of Managers v Lamontanero (supra), the Appellate Division, Second Department stated: “The legal status of the occupant of a multiple dwelling unit (i.e., whether he pays rent, owns cooperative shares, or is the owner in fee simple of a condominium unit) is not relevant to the purposes of the statute, which include preventing abuses in the enforcement of covenants prohibiting the harboring of household pets and preventing the retaliatory eviction of pet owners for reasons unrelated to the creation of nuisance. “We conclude that it would be pernicious to create an exception for condominiums from the generally beneficial requirements of Article 27 of the Administrative Code [the Pet Law]. In addition to substantive harms, an exception for condominiums could lead to anomalies such as permitting the tenant of a condominium owner to invoke the protection of the ‘Pet Law,’ while the condominium owner himself could not.”
15 The Appellate Division, First Department, in Board of Managers of the Parkchester North Condominum v Nicholas Quiles, 234 AD2d 130, 651 NYS2d 36 (1st Dept. 1996) held that the Pet Law is not applicable to condominiums, reasoning that, by its terms, the Pet Law only applies where there is a landlord-tenant relationship and this is not true of condominiums. The court noted that the law refers only to “covenants contained in multiple dwelling leases and that condominums are a form of fee ownership.” The First Department expressly stated its disagreement with the Second Department: “We disagree with the Second Department that condominiums should be deemed covered by the Pet Law because not explicitly excluded.”
One curious note here is that, in Seward v Cohen, supra, the Appellate Division, First Department, cited Lamontanero to support the proposition that the exclusion of the NYC Housing Authority implies the inclusion of “all others” to explain its conclusion that co-ops were covered by the pet law.
16 Park Holding Co. v Emicke, 168 Misc2d 133, 646 NYS2d 434 (App. Term, 1st Dept. 1996). Prior to Emicke, several lower courts had held to the contrary. For example, in Brown v Johnson, 139 Misc.2d 195 (Civil Ct. NY Co. 1988) the court held that “it appears that the only reasonable reading of the statute is that failure to bring a proceeding constitutes a waiver of the clause in the future. The Section refers to a tenant who harbors or has harbored a household pet or pets. The inclusion of the past tense can only mean the reference to situations such as the one at bar” at 680. Similarly, in McCullum v Brotman, NYLJ 5/11/88, p.14, col. 4, the court held that once there is a waiver with the first pet, such waiver “is the relinquishment of a legal right. The courts have held that once a right has been waived, it cannot be revived to the detriment of a party who has relied on a waiver.” And the lower court in Park Holding Co. v Emicke, 167 Misc.2d 162 (Civil Ct. NY Co. 1995), rev’d 168 Misc.2d 133 (App. Term, 1st Dept. 1996) had held that once the waiver occurs, the no pet clause is waived not only for the current, but also for future pets. Finally, the Appellate Division, Second Department ruled in Megalopolis Prop. Assn. v Buvron, 110 AD2d 232, 494 NYS2d 14 (2d Dept. 1985), that once the three months passed, and no suit was commenced, then the “lease provision shall be deemed waived.” This appears to stand for the proposition that once the waiver has occurred, it is not to be taken away.
17 See Real Property Law §223-b, which prohibits landlords from commencing a suit to recover an apartment when they are retaliating against a good faith complaint by a tenant to a governmental authority, or for other actions taken in good faith to secure certain rights of a tenant. If this section is violated by the landlord, then a suit may not be maintained even if the three months have not expired.
18 205 AD2d 303, 613 NYS2d 8 (1st Dept. 1994).
19 Americans with Disabilities Act. 42 USC 12101, et seq.
20 42 USC §3604.
21 See, generally, “Discrimination: The Emotional Support Pet as a Reasonable Accommodation Under Federal Law” by Karen Copeland, Esq., in Landlord-Tenant Practice Reporter, Vol. I, Issue 1, December 1999.
22 Real Property Actions and Proceedings Law, Article 7, sets forth generally the right of a landlord to maintain a summary proceeding (see also CPLR, Article 4).
23 Civil Practice Laws and Rules § 4544.
24 42 USC §1437z-3.
Joined: 21 Jan 2002
Location: New York City
|Posted: Wed Jun 23, 2010 3:53 pm Post subject:
June 23, 2010, 11:06 am
Keeping a Best Friend, Over a Co-op’s Objections
New York Times
By ISOLDE RAFTERY
If there’s one rule any resident at 407 Central Park West knows, it’s that no dogs are allowed.
So when Donald W. Reilly, a former Marine, returned home from the Gulf Coast after Hurricane Katrina in 2005 with a beagle puppy, several of his neighbors were surprised. Several told their co-op board representative, who demanded that his landlord take action. Letters were exchanged, with Mr. Reilly explaining his situation, but nothing happened.
His situation was this: He was disabled, living in a rent-stabilized apartment, and the dog was his emotional support. He had been living in the building since 1968, long before the building converted to a co-op, and he remembered the days when dogs were commonplace in the building. Even with the co-op rule, he did not think the pup would pose a problem.
But it did. And like many disputes among apartment dwellers, there were other issues: Some neighbors said Mr. Reilly was a problem, often sawing and doing loud work into the night. After several years of back-and-forth, Mr. Reilly received word that he would have to move out by Christmas Day 2008 or face eviction proceedings.
Rules were rules, the board said, but Mr. Reilly, 71, viewed the action as discrimination. Facing eviction, he and his lawyer filed a petition with the Department of Housing and Urban Development, asking that he be allowed to keep his beagle, P. T.
Last month, he won his case, along with $6,000 in lawyer’s fees from his landlord and the co-op board.
Mr. Reilly is among 25 to 50 residents every year who appeal to the agency, asking to keep a pet as an emotional support. Amendments to the federal Fair Housing Act of 1968 allow disabled people to keep service animals in their homes, no matter the building’s rules. Emotional support animals fall into that category.
Fifteen years ago, there were few petitions to keep emotional support animals. But that changed in the 2000s, said Jo-Ann Frey, the director of the Office of Fair Housing and Equal Opportunity, a division of HUD.
“We all know about having a guide dog, so that’s not a secret,” Ms. Frey said. “But emotional support animals are becoming more prevalent.”
Caring for animals forces tenants out of their pajamas and out of the building, she said. Mr. Reilly, for example, walks P. T. twice a day to Central Park, where he socializes with other dog owners.
Securing this allowance isn’t easy, however. Doctors are interviewed, and lawyers are hired to negotiate. Landlords are often reluctant, worried that if one tenant is allowed a pet, other residents will want one as well.
“They’re not on board with an emotional support animal because they see it as a way to get around a no-pet policy,” Ms. Frey said.
Mr. Reilly’s disability dates back to his days in the Marines, when he was found to have narcolepsy, a sleep disorder that caused him to fall asleep suddenly during the day for up to a minute. He was honorably discharged. He also has diabetes and high blood pressure. He takes 10 different medications a day.
When Hurricane Katrina hit in the summer of 2005, he signed up to volunteer with an emergency response team out of Battery Park City. He knew how to run small boats.
In the Gulf Coast, he discovered unimaginable devastation and came upon four abandoned beagle puppies. Unable to resist their floppy ears and pleading eyes, he scooped them up.
He gave three away to military families and kept the quietest, whom he named Pierre Gustave Tonton Beauregard, for the Confederate general. (The general’s real name was Pierre Gustave Toutant Beauregard; in French, “tonton” is an affectionate term for uncle.)
When Mr. Reilly was given notice that he had to leave his apartment, he did what he did every day he talked to fellow dog owners in Central Park. Someone suggested he contact Maddy Tarnofsky, one of three lawyers in New York who specialize in pet eviction cases.
Ms. Tarnofsky, too, lives in a rent-stabilized apartment on Central Park West with her dog, a Newfoundland named Maizie. (That’s short for Miss Mazeppa, one of the three strippers in the Broadway musical “Gypsy.”)
“If someone comes to me and says, ‘I’m depressed,’ I say, ‘Go out on the sidewalk in New York City 9 out of 10 people are depressed,” Ms. Tarnofsky said. “There needs to be some connection made between the presence of the animal in the apartment and the management of the person’s condition. The presence of the animal will help them to cope with their symptoms.”
Ms. Tarnofsky believed that Mr. Reilly, who pays $700 a month for his one-bedroom at the back of the building, would win his case. Since she started specializing on pet cases, none of her clients has lost a pet. She has helped people with H.I.V. and cancer, and on two occasions, for couples who could not conceive.
She filed a complaint with the Fair Housing office after Mr. Reilly’s first court appearance on the eviction proceeding.
Janusz B. Sikora, the assistant secretary for the co-op board, said Mr. Reilly’s complaint took him by surprise.
“We didn’t want to push him out of the building whatsoever,” Mr. Sikora said.
As usual, there was more to the story than met the eye, and there were issues with Mr. Reilly beyond the dog.
“He thinks the law does not apply to him,” Mr. Sikora said. “He does renovations, and he does not ask the landlord. Tenants complain about sawing, hammering and alterations. You’re not supposed to make noises after 10 p.m.”
Mr. Reilly, for his part, would move if he could afford it. He would like a bigger apartment at least one more room for an office and friendlier neighbors. They’re just not the way they used to be, he said, before gentrification. Back then, they said more than a frigid hello in the elevator.
Cordial relations aside, Mr. Reilly isn’t planning on leaving. Nor is the dog. The settlement allows for Mr. Reilly to get another dog after P. T., so long as it isn’t one of a long list of large dogs.
“With him around, I pay attention to him and his needs I don’t worry about getting embroiled in my situation,” Mr. Reilly said. “In that regard he keeps me sane, you know, instead of spending time sitting around all by myself worrying how I’m going to pay the rent.”
He looked at P. T., who looked away.
“I know you’re not dead,” Mr. Reilly said. He laughed.
“I’m glad he’s so funny, because laughing is wonderful,” he said. “I laugh a lot because he’s around.”
He paused. “It’s a drag to sink into the torpor of not being used. If no one in the world wants you, it does nasty things to yourself.”
Christine Haughney contributed reporting.
Joined: 21 Jan 2002
Location: New York City
|Posted: Thu Apr 14, 2011 5:37 am Post subject: Pet Litigation: A Real Dogfight
|Pet Litigation: A Real Dogfight
New York Law Journal
Victor M. Metsch and Eliot H. Zuckerman
March 25, 2011
Disputes under the "Pet Law"about the right to keep animals in multiple dwellings are both ubiquitous and hard fought through motions, trials and appeals. Three such cases were decided by the Appellate Term, First Department, on Dec. 30, 2010. And last year saw many other cases determining the right to keep dogs in rental apartments and residential cooperatives and condominiums.
Barking Up the Legal Tree
The outcome of these cases is always singular and turns on the particular or peculiar facts involved; the governing lease; cooperative apartment or residential condominium documents; and the applicable local law. As discussed below, each of the cases involves a unique issue of contract or statutory interpretation.
Most cases involving alleged violations of multiple dwelling lease prohibitions against "harboring" household pets in apartments in New York City arise under the so-called "Pet Law" (New York City Administrative Code Section 27-2009.1). The code proscribes the enforcement of such restrictions, and deems the provision waived, "[w]here a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets" and the "owner fails within th[e] three month period to commence a summary proceeding or action to enforce" such lease provision. The "waiver" provision does not apply where the household pet "creates a nuisance or interferes substantially with the health, safety or welfare of other tenants or occupants of the same or adjacent building or structure."
Threshold issues regularly arise concerning whether the apartment is a covered multiple dwelling; whether a unit in a multiple dwelling is exempt from coverage; whether the "harboring" was "open and notorious"; whether waiver of the clause is trumped by a claim of nuisance; and whether the pet is a "service animal" protected by federal, state or local law.
Recent 'Pet' Peeve Litigation
In 86 W. Corp. v. Singh, 2010 NY Slip Op 52265(U) (App. Term 1st Dept. Dec. 30, 2010), Appellate Term, First Department, sustained the trial court's finding that the tenants breached a substantial obligation of their lease by failing to comply with certain dog "leashing" requirements; and rejected the tenant's argument that the breach of the lease was de minimus.
New York City Civil Court afforded the tenants an opportunity to cure by removing the two pet dogs. However, Appellate Term found that "the potential cure the trial court afforded tenants…was inappropriate" because "the pets [had] been registered and certified as service dogs for tenants by the New York City Department of Health and Mental Hygiene [and] did not create a nuisance condition." Accordingly, in order "to avoid the needless and unwarranted forfeiture of a dwelling…the appropriate cure was to require tenants to comply with the leashing requirements." Appellate Term permanently stayed execution of the warrant of eviction "on condition that tenants continue to comply with the leashing requirements."
3720 Homes Inc. v. Hyman, 2010 NY Slip Op 20527 (App. Term. 1st Dept. Dec. 30, 2010), was based upon allegations that tenants violated house rules and their cooperative apartment proprietary lease by having "'kept or harbored'" a dog in the cooperative apartment premises. Tenants asserted that the dog -- a Maltese named 'Rocky' -- was "owned by their adult daughter and reside[d] in her nearby apartment, and that the dog merely 'visits' tenants in the subject apartment at unspecified times and unstated intervals."
Civil Court denied the tenants' motion to dismiss the holdover petition. Appellate Term, First Department, affirmed, noting "broad, unparticularized allegations, lacking evidentiary detail as to the nature and extent of the dog's presence in tenants' apartment or its schedule of supposed visits, fell far short of meeting tenants' burden to eliminate all triable issues as to whether they kept or harbored the dog in violation of the proprietary lease terms." To the contrary, the court found that tenants' "factual averments…acknowledging that the dog is generally walked 'three times a day while visiting tenants…actually tend to support a finding that the dog's visits are regular and reoccurring, and thus buttress the landlord's contention that tenants materially breached the no-pet provisions of the proprietary lease."
The Hyman court decision turned on the meaning of the provision of the proprietary lease prohibiting tenants from keeping or harboring animals in their apartments. The court noted, "Had the parties intended to limit the definitional reach of the terms 'kept or harbored' to those animals who reside with and/or are owned by tenants, they could have included specific language to that fact in the proprietary lease agreement." Accordingly, the court's "inquiry [was] more properly focused on whether the dog's presence in tenants' apartment is sufficiently frequent and substantial" as to establish that the Hymans "kept" or "harbored" the dog as those terms are ordinarily used, i.e.. whether tenants possessed or had the care of the animal or had it in their keeping.
In addition to concluding that "[p]roper resolution of [the] fact-laden issue must await further evidentiary development at trial," the Hyman court also noted two other issues that remained to be resolved: first, whether the landlord timely commenced the eviction under the three-month rule of the administrative code; and second, whether the dog, if kept or harbored in tenants' apartment as alleged, "was an emotional support or service animal necessary to accommodate any disability that tenant Rita Hyman may be made to suffer."
Parenthetically and particularly unusual for decisions at Appellate Term, in Hyman Presiding Justice Douglas E. McKeon vigorously disagreed in a lengthy dissent holding that: "I do not believe that there are factual issues warranting a trial and would award summary judgment to the [tenants] since they have established by documentary evidence and affidavits that the subject premises is a pet friendly building, and that the dog which tenants are alleged to be harboring…actually resides with and is owned by their daughter[.]" The dissent also noted that: "The fundamental flaw in landlord's position is that it ignores that the word 'harbor,' as typically used in residential leases through the metropolitan area and in the 'Pet Law,' has been judicially construed to describe an animal which either resides in the tenant's household…or is owned by the tenant…, not an animal who visits a tenant, nor the tenant who permits the visit."
200 Assoc., LLC v. Haupt, 2010 NY Slip Op 52271(U) (App. Term 1st Dept. Dec. 30, 2010), involved an appeal, after submission on stipulated facts, from a New York City Civil Court judgment in a summary (holdover) proceeding awarding possession to the landlord. Tenant had conceded in the stipulated facts that "(1) she harbored two dogs in violation of the 'no-pet' clause in the parties' lease; (2) this holdover proceeding was timely commenced under Administrative Code…; and (3) her 'disability discrimination' defense has been waived."
Appellate Term, First Department, found that the tenant's proposed affirmative defense that the "no-pet clause" was unconscionable was "palpably insufficient or patently devoid of merit," and in light of "the particular facts" of the case, stayed issuance of the warrant of eviction for 60 days "so that tenant may cure the breach of the lease," presumably by removing the pet from the apartment.
In 184 West 10th Street Corp. v. Marvits, 29 Misc.3d 134(A), 2010 WL 4668427, 2010 NY Slip Op 51970(U) (App. Term, 1st Dept.), the tenant had succeeded on her claim that the landlord had waived application of the "Pet Law."
Civil Court in Marvits, however, denied the tenant's application for attorney's fees. On appeal, Appellate Term, First Department, held that "[t]enant's ultimate success on her Pet Law waiver defense…warrants an award of attorneys' fees in her favor pursuant to the governing lease agreement and the reciprocal provisions of Real Property Law §234."
Boards and Associations
Granada Condominium III Association v. Palomino, 78 A.D.3d 996, 2010 WL 4793102, 2010 NY Slip Op. 08699 (2d Dept.), concerned the applicability of Westchester County's Pet Law to condominiums and their unit owners. Palomino was an action by a condominium association against a unit owner for violating the condominium's rule prohibiting unit owners from harboring pets that regularly frequent the outside of the unit. The complex was located in Nanuet. Supreme Court, Westchester County, granted defendant-tenant's motion to dismiss the complaint. The Second Department reversed.
The Appellate Division held that Supreme Court erred in determining that the Westchester County "Pet Law" applied to condominiums and their unit owners. The Second Department determined that the "plain and unambiguous language" of the Westchester County law expressly provides that it applies to tenants "in a multiple dwelling" and that "its protections extend only to tenants governed by leases Including proprietary leases in cooperatives." Accordingly, the Appellate Division drew an "irrefutable inference…that the omission of condominiums and condominium owners was so intended by the Westchester County Legislature."
Petitioners in Backman v. Kleidman, 27 Misc.3d 1215(A), 910 N.Y.S.2d 760, 2010 WL 1712245 (N.Y. City Civ. Ct.), were owners and landlords of a penthouse condominium; and respondent was their tenant under a lease that provided that the tenant "may not keep any pets in the apartment." Tenant kept a cat in his apartment; the unit owners/landlords served a notice to cure, and a special proceeding followed based upon the tenant's alleged failure to comply with the cure notice.
Tenant in Kleidman moved for summary judgment on the ground that the owners/landlords waived their right to enforce the no-pet provision of the parties' lease by not objecting to the existence of the pet within three months of the owner or agent learning about the pet's existence.
The Kleidman court held that the Pet Law does not apply if a condominium board waives a no-pet clause against a unit's fee owner. However, the court also held that the law does apply if the fee owner enforces such a clause against a tenant.
On the merits in Kleidman, it was undisputed that "the on-site building supervisor/superintendent…knew that respondent kept a cat in his dwelling for more than three months before [the] proceeding began"; however, petitioner argued "that any knowledge by the condominium's superintendent about the existence of a cat belonging to respondent cannot be imputed to petitioners for the purpose of effecting a waiver of the Pet Law."
New York City Civil Court denied cross-motions for summary judgment "because an issue of fact arises about petitioners' relationship with…the building supervisor/superintendent, and petitioners' relationship with the board of managers [such that the court could not] determine from the parties' papers whether a principal-agent relationship existed between [the building supervisor/superintendent] and the petitioners"concluding "if that relationship did exist, the Pet Law applies, and petitioners might have waived their right to evict respondent under the parties' lease."
In Board of Managers of Village View Condominium v. Forman, 78 A.D.3d 3d 627, 911 N.Y.S.2d 378 (2d Dept. 2010), the board of managers of a condominium complex filed an action against a unit owner seeking a declaratory judgment that the unit owner was in violation of the condominium's declaration, bylaws and house rules. Supreme Court, Queens County, granted judgment in favor of the condominium, and the unit owner appealed.
The condominium's bylaws did not include any restrictions on pet ownership and stated that unit owners "and their pets" shall not disturb the other unit owners. However, House Rule No. 1, promulgated by the board, stated that: "Positively no pets are allowed in the building for any reason" [boldface in original]. Based on the rule, the board demanded that defendant remove her small (four-pound) dog from the premises (purchased after a previous dog had died). When the unit owner refused to do so, litigation ensued.
After a lengthy discussion of condominium ownership, in general, and the bylaws of the subject condominium, in particular, the Second Department rejected the board's position that it could amend the bylaws at will to ban pets in the complex, and that, in order to do so, such an amendment to the bylaws would require approval of 80 percent of the unit owners at a duly noticed meeting. Accordingly, the court declared House Rule No. 1, completely banning pets from the condominium, to be invalid and declared that the board was not entitled to enforce that rule.
When representing a prospective residential tenant or purchaser of a cooperative apartment or condominium unit, find out whether your client has or wants a pet or expects to live in a pet-free building -- and then determine:
• Does the building permit or prohibit pets; and, even if pets are permitted, are there any restrictions that apply (number or size of pets etc.)?
• The rules of the building one way or the other notwithstanding, are there any applicable or governing laws, rules or regulations that trump the building-centric rules?
• Are the rules of record enforced by management (i.e., a building rule prohibiting pets may be waived)?
• Were the residential cooperative or condominium rules (if any) properly enacted or are they subject to legal challenge?
• Has there been any litigation, or is any litigation pending or threatened, about the right to exclude or harbor pets?
When representing a rental apartment building owner or a residential condominium or cooperative that prohibits pets:
• Periodically post the rules in the lobby, elevators and common rooms.
• Instruct the doormen, concierges, superintendents or other building staff to report, and to keep a log of, pets regularly seen in or around the building.
• Advise the owner or board promptly to notice the harboring of pets -- and that "Pet Law" proceedings must be commenced within three months, failing which the objection is waived.
• Remind the owner or board that claims that a dog or cat is a "service animal" must be documented by the tenant within the three-month period.
Victor M. Metsch and Eliot H. Zuckerman are senior litigation and real estate partners, respectively, at Hartman & Craven.
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