This article was originally published in the New York Law Journal.
By Victor M. Metsch and Eliot H. Zuckerman
Cats and Dogs in the Courts
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 December 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) [12/30/10], Appellate Term 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.
Civil Courtafforded 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 [12/30/10] was “based upon allegations that tenants violated house rules and their [cooperative apartment] proprietary lease by having ‘kept or harbored’ a dog in the demised 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 Courtdenied the tenants’ motion to dismiss the holdover petition. Appellate Term 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: “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, viz. whether tenants ‘possess[ed]’ or ‘ha[d] the care of’ the animal or ‘ha[d] [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 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) [12/30/10] involved an appeal, after submission on stipulated facts, from a 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 found that the tenant’s proposed affirmative defense that the “no-pet clause” was unconscionable was “palpably insufficient or patently devoid of merit;” and “[i]n light of the particular facts of [the] case,” stayed issuance of the warrant of eviction for sixty days “so that tenant may cure the breach of the lease”, presumably by removing the pet from the apartment.
Granada Condominium III Association v. Palomino, 78 A.D.3d 996, 2010 WL 4793102, 2010 NY Slip Op. 08699 (2d Dept.) 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 inNanuet,New York. Supreme Court ,WestchesterCounty, granted defendant-tenant’s motion to dismiss the complaint. The Second Department reversed.
In Palomino, the Appellate Division held that Supreme Court erred in determining that the Westchester County “Pet Law” applied to condominiums and their unit owners, based upon its determination that the “plain and unambiguous language [of the Westchester County law] expressly provides that it applies to ‘tenant[s] 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.”
In 184 West 10th Street Corp. v. Marvits, 29 Misc.3d 134(A), 2010 WL 4668427, 2010 NY Slip Op 51970(U) (App.T. 1st Dept), the tenant had succeeded on her claim that the landlord had waived application of the “Pet Law.”
Civil Courtin Marvits denied the tenant’s application for attorneys’ fees. On appeal, Appellate Term 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.”
Petitioners in Backman v. Kleidman, 27 Misc.3d 1215(A), 910 N.Y.S.2d 760, 2010 WL 1712245 (N.Y. City Civ. Ct.) Kleidman 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”.
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 “[i]f 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, by-laws and house rules. Supreme Court granted judgment in favor of the condominium and the unit owner appealed.
The condominium’s by-laws 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 by-laws of the subject condominium, in particular, the Second Department rejected the board’s position that it could amend the by-laws at will to ban pets in the complex; and that, in order to do so, such an amendment to the by-laws would require approval of 80% 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.
Lessons Learned
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 are 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 LLP