Enforcement Delayed is Enforcement Denied

This was originally published on the SGR blog.

Some residential buildings are “pet friendly”—and some are not.  But even where a lease in New York City prohibits household pets, the Administrative Code creates a “safe harbor” for animals when the landlord  fails to start a summary (eviction) proceeding for breach of the lease within three months of learning of the violation.

A recent case, with unusual facts, demonstrates that the three month rule may be a bar to an eviction proceeding even where the tenant lies about the material  facts.

Westchester Gardens filed a summary proceeding against Pricilla Vargas. The eviction claim was based on Vargas harboring a dog in her apartment in breach of her lease.

Civil Court found two  issues to be determined:  Did Vargas establish that the dog was truly an emotional support animal that she needed in order to enjoy the use of her apartment, as she claimed? And was the proceeding started in a timely manner?

New York Courts have long recognized the validity of “no-pet clauses” in leases, and harboring a pet when a lease contains a “no-pet clause” constitutes a substantial breach. So Westchester Gardens was well within its right  to institute the  proceeding.

Vargas claimed that the dog was necessary for her well being, and for her enjoyment of the use of her apartment. In support, Vargas submitted a letter from Urban Health Plan, Inc., signed by Claire Delgado, LCSW, stating she was under their care since May 16, 2018. The letter, dated May 31, 2018, indicated that Vargas suffered from “adjustment disorder with anxiety and unresolved grief”, and “recommended that respondent be allowed to reside with her pet (1 dog) which she requires for emotional support”.

At the hearing, Vargas did not call any professional witness from Urban Health Plan, Inc., or anywhere else, to testify in her behalf. The Court had only Vargas’ testimony and the Delgado’s letter to support her claim that the dog was an emotional support animal. Vargas asked the Court to find that Westchester Gardens must make a reasonable accommodation for her in that she needed the dog in order for her to enjoy the use of her apartment.

A reasonable accommodation may be required by the State’s Human Rights Law if  a need could be established. The burden  of such proof was on Vargas. The Court found that Vargas  failed to carry the burden of establishing that the dog was an emotional support animal necessary for her to enjoy the use of her apartment.  Part of this determination was the fact that, the Court found that Vargas lied when she allegedly notified Westchester Gardens that the dog was in her apartment, by letter dated November 10, 2013, only every other weekend while her sister, who traveled for work every other weekend, was traveling, claiming the dog was the sisters dog and she was only dog-sitting.

Vargas also claimed in her testimony the dog was actually with her since 2012, when she lived in another apartment in the same building.

Westchester Gardens asserted that it first became aware that Vargas was harboring the dog in her apartment on November 17, 2017.

The New York City Pet Law,  in relevant part states:

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 … 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.

Vargas testified to having notified Westchester Gardens of the dog’s presence in her apartment by letter dated November 10, 2013.  The eviction proceeding was started in February, 2018, almost five years after notice of the dog’s presence.

The lease had a no waiver clause. But even the presence of no waiver clauses in the lease did not relieve Westchester Gardens from the three month rule.

The Court noted that the letter Vargas wrote to the then management was less than truthful. In fact, it contained a major misstatement of fact. The letter stated that the dog was her sister Damaris’ dog, that her sister’s job required her to travel every other weekend, and she was dog sitting on the weekends her sister traveled. But, at the hearing it was adduced that her sister had passed away on July 4, 2013, just over four months prior to the date of the letter.

Evidence at trial established that there were security cameras in the building and they were monitored at the security desk. It was inconceivable to the Court that Westchester Gardens, through its management companies, did not discover that the dog was in Vargas’ apartment on a regular basis from at least November, 2013, when she wrote her letter. The Court found that it was self-evident that Westchester Gardens did not institute the eviction  proceeding  against Vargas within the required 90 days from discovery of the dog.

Finding that Westchester Gardens did not timely institute the proceeding, and thus waived the no pet clause contained in Vargas’ lease, the Court dismissed the proceeding.

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