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Civil Court, City of New York.

WESTCHESTER GARDENS L.P., Petitioner, v. Priscilla VARGAS, “Jane Doe”, Respondent.


Decided: March 05, 2019

Petitioner was represented by: Kucker & Bruh, LLP Respondent was represented by: Self Represented

The within summary holdover proceeding is predicated on respondent harboring a dog in her apartment in contravention of her lease. Petitioner had a Notice to Cure (the Cure) served upon respondent, alleging that she was harboring a dog in her apartment, that same was discovered on November 17, 2017, and then had a Notice of Termination (the Termination) served upon respondent alleging respondent failed to cure the lease violation pursuant to the Cure, and then had a Petition and Notice of Petition served upon respondent. There were numerous defaults by respondent in appearing, an inquest was held on May 2, 2018, and a default judgment entered against respondent. The warrant never issued and respondent moved to vacate that judgment by Order to Show Cause on June 7, 2018, adjourned to and decided on July 5, 2018, and a hearing was scheduled to determine if the dog was, in fact, an emotional support animal as respondent claimed in her show cause. That hearing was held on August 9, 2018 (counter number 2:49:21 - 3:14:40), adjourned to August 22, 2018, on which date respondent failed to appear and a default judgment was entered, which was vacated on respondent's motion on September 5, 2018, the Court determining it was better to decide the matter on its merits rather than on a default. The hearing was continued on September 24, 2018 (counter number 10:16:35 - 10:31:50), and the Court reserved decision on that date.

The Court finds that there are actually two issues to be determined: first is, did respondent establish that the dog is truly an emotional support animal that she needs in order to enjoy the use of her apartment, as she claims; and, the second issue is, did petitioner start their proceeding in a timely manner. The Court will address these issues in order.

In Crossroads Apartments Associates v. Kenneth LeBoo, 152 Misc 2d 830, 578 N.Y.S.2d 1004 (City Ct., City of Rochester, N.Y., 1991) the Court succinctly set forth the law on no pet clauses in New York, saying “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 of the lease agreement (Knolls Cooperative Section No. II v. Cashman, 14 N.Y.2d 579, 248 N.Y.S.2d 875, 198 N.E.2d 255; Kingsview Homes Inc. v. Jarvis, 48 A.D.2d 881, 369 N.Y.S.2d 201; Lincoln Cooperative Apts., Inc. v. Zaifert, 23 A.D.2d 796, 258 N.Y.S.2d 903; East River Housing Corp. v. Matonis, 34 A.D.2d 937, 312 N.Y.S.2d 461; Pollack v. J.A. Green Construction Corp., 40 A.D.2d 996, 338 N.Y.S.2d 486)․ Landlords may also selectively enforce the “no-pet clause” (Megalopolis Property Assoc. v. Buvron, 121 Misc. 2d 662, 468 N.Y.S.2d 819; 1036 Park Corp. v. Rubin, 92 A.D.2d 452, 458 N.Y.S.2d 595; Trump Village Section 3, Inc. v. Moore, 84 A.D.2d 812, 444 N.Y.S.2d 134).” (at 832, 578 N.Y.S.2d 1004). Thus petitioner was well within its right to institute the within proceeding.

Respondent claims that the dog is necessary for her well being, and for her to enjoy the use of her apartment. In support thereof she presented a letter from Urban Health Plan, Inc., signed by Claire Delgado, LCSW, stating respondent was under their care since May 16, 2018. The letter is dated May 31, 2018, indicates respondent 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. Please fulfill the patient's request in order to avoid exacerbation of her medical conditions.” Respondent did not call any professional witness from Urban Health Plan, Inc., or anywhere else, to testify in her behalf. Thus the Court has only respondent's testimony and Ms. Delgado's letter to support her claim that the dog is an emotional support animal. She is asking this Court to find that petitioner must make a reasonable accommodation for her in that she needs 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 respondent can establish a need. The burden is on the party requesting the reasonable accommodation. One Overlook Avenue Corp. v. New York State Division of Human Rights, 8 A.D.3d 286, 777 N.Y.S.2d 696 (2004), “To show that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, the complainant must demonstrate that her son was disabled, that he was otherwise qualified for the tenancy, that because of his disability it was necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations can be made to allow him to keep the dog. Here, the complainant failed to demonstrate through either medical or psychological expert testimony or evidence that her son required a dog in order for him to use and enjoy the apartment. Accordingly, the respondent's determination was not supported by substantial evidence.” (at 287, 777 N.Y.S.2d 696, citations omitted). See also 105 Northgate Cooperative, et al. v. Donaldson, 54 A.D.3d 414, 863 N.Y.S.2d 469 (Dept., 2008), and Lindsay Park Housing Corp., et al. v. New York State Division of Human Rights, et al., 56 A.D.3d 477, 866 N.Y.S.2d 771 (Dept, 2008) “The Human Rights Law provides that it is an unlawful discriminatory practice to ‘refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling’ (Executive Law § 296[18][2]  ). To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment, and the building owner refuses to make such an accommodation․” (at 478, citations omitted).

The Court finds that respondent has failed to carry the burden of establishing that the dog is an emotional support animal necessary for her to enjoy the use of her apartment. Part of this determination is the fact that respondent lied when she, allegedly, notified petitioner that the dog was in her apartment by letter dated November 10, 2013 (respondent's exhibit 1 admitted into evidence without objection) 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. She also claimed in her testimony the dog was actually with her since 2012, when she lived in another apartment in the same building. This begs the question that, if respondent was lying then about why, and how much time the dog was with her in the subject apartment, why didn't petitioner institute the within proceeding years ago, instead of five years after respondent's letter. The Court will return to this issue further on in the decision. Having determined that respondent did not meet her burden of establishing the animal is an emotional support animal, the Court now turns to the second issue, did petitioner start its proceeding timely.

Petitioner asserts that it first became aware that respondent was harboring the dog in her apartment on November 17, 2017. Section 27-2009.1(b) of the Administrative Code of the City of New York, known as the New York City Pet Law, 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, 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.”

Commencement of a summary proceeding is upon service of a notice of petition and petition, RPAPL § 731. Respondent testified to having notified the petitioner of the dog's presence in her apartment by letter dated November 10, 2013 as noted and referred to above. And, respondent also testified that she obtained the copy of that letter, that was admitted into evidence, from petitioner's office, and no testimony refuting this was offered. The proceeding was not commenced until February, 2018, almost five years after petitioner had knowledge of the dog's presence. Merely serving a notice to cure within the three month time period subsequent to a landlord acquiring knowledge of a tenant's pet is insufficient to avoid waiver under the Pet Law. The proceeding must be commenced within the three months of the owner or agent's knowledge, or the pet clause in the lease is waived. “The no-pet waiver rule was intended to require that landlords enforce a no-pet clause promptly or be deemed to have waived that breach of the lease,” Seward Park Housing Corp. v. Cohen, 287 A.D.2d 157, 734 N.Y.S.2d 42 (1st Dept., 2001) citing Megalopolis Prop. Assn. v. Buvron, 110 A.D.2d 232, 494 N.Y.S.2d 14 (2nd Dept., 1985). The First Department found the owner waived the no-pet clause for failure to timely commence a proceeding, though the notice to cure was served within the three month period following discovery of the dog.

Even the presence of no waiver clauses in the lease will not relieve a petitioner of the effect of Section 27-2009.1(b) of the Administrative Code as courts have held that failure to commence a proceeding within three months of discovery of a pet constituted waiver of a no-pets clause in a lease, even when the lease states that any waiver of the no-pets clause must be in writing. In Seward Park v. Cohen, supra, the tenant's lease expressly precluded waiver of the no-pet clause unless confirmed in writing signed by petitioner. The court also found waiver of the no-pet clause despite a provision in the lease prohibiting dogs without the owner's written permission in 1725 York Venture v. Block, 64 A.D.3d 495, 884 N.Y.S.2d 6 (1st Dept., 2009).

The Court notes that the letter respondent wrote to the then management, her exb. 1, was less than truthful, in fact, it contained a major misstatement of fact. In her letter she wrote 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 respondent's letter. But, also deduced at trial is that there are security cameras in the building and they are monitored at the security desk. It is inconceivable to the Court that petitioner, through it's management companies, both the current one and the prior one, did not discover that this dog was in respondent's apartment on a regular basis from at least November, 2013, when respondent wrote her letter, allegedly “per the director”, and November, 2017, when Mr. William Riley, the Property Specialist (as petitioner designated him in the Cure) “witnessed” respondent harboring the dog in her apartment. It is self-evident that petitioner did not institute this proceeding within the require 90 days from discovery of the dog.

Accordingly, it is the finding of this Court that petitioner did not timely institute the proceeding and thus waived the no pet clause contained in respondent's lease and cannot maintain this proceeding. The petition is dismissed.

This is the decision and order of the Court. Copies are being mailed to both sides.

Steven Weissman, J.

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