Dog DNA

360 E. 72ND ST. OWNERS INC. V. WOLKOFF

WHAT HAPPENED: In 2013, the board at 360 E. 72nd St. adopted a house rule qualifying its “pet friendly” status by prohibiting certain breeds of dogs, including pit bulls, due to concerns about potential aggressiveness. In 2016, the board further revised the pet policy to require the completion of a pet registration form requiring the breed to be identified and to authorize the removal of a pet that “behaves in a dangerous or threatening manner to shareholders or their guests.”

The defendant, Sabrina Wolkoff, never completed the pet registration form for her dog and never identified the breed. In May 2021, the co-op requested that she submit the results of a DNA test to confirm and identify her dog’s breed. Those results indicated that her dog was 91% “American Staffordshire Terrier,” which is one of four recognized pit bull breeds. 

In June 2021, in response to the DNA test results, the co-op’s counsel notified the defendant that she was in violation of the house rule prohibiting pit bulls and demanded that she remove the dog from the building within 30 days. Wolkoff refused and, in October 2021, after the co-op served a notice to cure and a notice of termination of her proprietary lease,  it commenced the instant action seeking a permanent injunction compelling the immediate removal of the pit bull from the building.

IN COURT: The board’s cause of action alleged that the harboring of a restricted breed was a breach of the proprietary lease and house rules, and the vicious propensity of the dog’s breed was sufficient to warrant removal. The plaintiff’s complaint included a single allegation evidencing the dog’s “potential aggressiveness” involving the dog’s (unsuccessful) attempt to attack and bite the process server in the hallway outside defendant’s apartment.

Wolkoff responded that the co-op’s failure to act within the first three months of having actual knowledge of the dog being harbored in the building resulted in a waiver of the co-op’s right to enforce the breed restriction and, in any event, the dog’s breed alone is not evidence of nuisance, objectionable behavior, or any vicious propensity. Further, the defendant denied the allegation involving the process server and noted that the co-op’s single allegation of any objectionable behavior should be insufficient to support a claim that the dog constituted a nuisance.

After approximately two years in court, the defendant again moved for the dismissal of the proceeding. In rendering its decision, the court relied heavily on the testimony of several witnesses for each of the parties. The court concluded that the plaintiff's case had more to do with “how dangerous pit bulls in general can be,” rather than demonstrating how the defendant's dog was a nuisance. The court cited the testimony of numerous witnesses, some of whom were called by and employed by the plaintiff, who had positive interactions with the defendant’s dog. Moreover, not a single witness testified that they had seen the dog behave violently over a period of several years.

With regard to the three-month rule set forth in NYC Administrative Code § 27-2009.1, the court concluded that the strict interpretation of the statute requires the commencement of a summary proceeding or action within that time period, and not merely the sending of letters or attempting to terminate the proprietary lease. The court was not persuaded that there should be a distinction between a “pet friendly” and a “no pet” building, nor was the court persuaded that co-ops should be exempt from the law.

TAKEAWAY: Boards should be mindful of the pitfalls of adopting and enforcing rules and regulations which may conflict with applicable law (or even the facts of a given situation). While rules and regulations can sometimes be used to curb certain behaviors, boards should be made aware that seeking judicial intervention to enforce such rule or regulation may nevertheless be problematic. This paradigm should be considered when weighing the potential benefits of adopting the rule versus the potential drawbacks. Here, the board’s adoption of the breed restriction created a presumption of viciousness while also creating a potentially irreconcilable conflict with applicable law. 

First, the board did not commence an action within the statutory three-month period, rendering its position entirely dependent on its ability to demonstrate through evidence and testimony that the dog “caused damage to the premises, created a nuisance or interfered with the health, safety or welfare of other residents of the building.” 

Second, the facts did not support such a determination (the existence of which would have rendered moot the board’s failure to have timely commenced an action within the statutory three-month period). Thus, the board’s application of the rule to facts that did not align with the requirements of the law resulted in the court’s rejection of the board’s arguments. It remains to be seen what result the plaintiff's appeal will yield, but I would expect a “pet friendly” outcome.