First published: May 2025
Doggie DNA
THE LESSON FOR BOARDS While rules and regulations can sometimes be used to curb certain behaviors, boards should be made aware that seeking judicial intervention to enforce them regulation may nevertheless be problematic. Here, the board’s adoption of the dog breed restriction created a presumption of viciousness while also creating a potentially irreconcilable conflict with applicable law. By not commencing an action within the statutory three-month period, the board was 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.” In this case, the facts did not support such a determination.
When setting house rules and regulations on pets, boards need to pay strict attention to wording. As 360 E. 72nd St. Owners Inc. v. Wolkoff illustrates, boards can run into trouble when their pet policy goes beyond prohibiting certain breeds of dogs. Sometimes, less is more.
THE DETAILS
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 the co-op’s counsel notified the defendant that she was in violation of the house rule and demanded that she remove the dog from the building within 30 days. Wolkoff refused and in October 2021, the board served a notice to cure and a notice of termination of her proprietary lease and commenced the instant action seeking a permanent injunction compelling the immediate removal of the pit bull.
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. Its 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 the 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 in the building resulted in a waiver of its right to enforce the breed restriction. Further, the defendant denied the allegation involving the process server and noted that the single allegation of 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. The court concluded that the board failed to establish that the dog's conduct created a nuisance. The court cited the testimony of numerous witnesses who had positive interactions with the defendant’s dog. Moreover, not a single witness testified that they had seen the dog behave violently.
With regard to the three-month rule, 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, and that the board had failed to do so.
COUNSEL
For 360 E. 72nd St.: Meister Seelig & Fein LLP
For Wolkoff: Karen Copeland
