First published: Apr 2022
Eight Dogs
Boards should ensure that any change in building rules is well documented and circulated among its residents as well as its employees to avoid confusion in the applicability of rules and obligations.There are a myriad of different regulations and cases applicable to the harboring of pets. Consideration must be given to whether the building rule – whether it prohibits pets altogether, requires permission from the board, or imposes specific restrictions – is clear, enforceable, and applies evenly to all of its residents. Boards must be vigilant in pursuing enforcement of its rule, as failing to do so may lead to a waiver of that right. Boards must also thoughtfully consider and carefully balance the need for a reasonable accommodation with the safety and expectations of the other residents, and craft a mutually acceptable solution. Regardless of a building’s position or regulations governing the existence of the pet in the apartment, or the possible claims of waiver or reasonable accommodation, the board retains the ability to address any nuisance caused by the pet in the apartment, such as excessive barking, aggressive behavior, offensive odors, and property damage, which should not be tolerated.
79 W. 12th St. Corp. v. Kornblum
What Happened Mrs. Kornblum purchased co-op apartment 3E in 1999, and since then it has been solely occupied by her daughter, Erica, who suffers from a lifelong mental illness. When Erica moved in, she had three cats, and in 2010 acquired her first dog. It wasn’t until 2017 that the co-op discovered Erica actually owned eight dogs. The co-op claims that these dogs have been an ongoing source of annoyance to the co-op’s residents, particularly to the owner of the apartment immediately below 3E. The co-op sued Erica and her mother, saying that they had violated the House Rules which were part of the original lease by failing to obtain permission for Erica’s dogs, and by failing to remove all but three of those dogs in response to a demand from the board.
You Should Know The co-op had a “pet consent rule” as part of the House Rules that were a part of Mrs. Kornblum’s proprietary lease. The rule said that no animal could be kept in an apartment without permission of the board, which was revocable. In 2005, the co-op distributed new House Rules which replaced the earlier version. This version kept the original “pet consent rule” which was a part of Mrs. Kornblum’s proprietary lease. In 2010, the co-op again revised the House Rules, but the board claimed that these were never formally adopted. The 2010 version did not require residents to obtain board consent prior to acquiring pets. During court proceedings, the board admitted that other residents, including members of the board, had acquired pets without seeking or obtaining consent prior to the 2010 revision to the House Rules.
In the Court The co-op sued the shareholder for violation of the proprietary lease for failure to obtain board approval for the animals. The defendant filed a motion to dismiss the complaint on the grounds that: (a) the consent provision in the earlier House Rules no longer applied; (b) the animals were necessary as a reasonable accommodation for her daughter’s disability; and (c) the co-op had waived its right to enforce the provisions under the Pet Waiver Law. The lower court improperly denied the motion.
On appeal, the court held that because the co-op did not rebut the applicability of the 2010 House Rules (under which consent was not required) and failed to raise an issue of fact as to whether the 2010 House Rules had been adopted, the complaint should have been dismissed.
COUNSEL for Defendant-Appellant Kornblum VERNON & GINSBURG / For Defendant-Appellant Erica Stein PATTERSON BELKNAP WEBB & TYLER & MOBILIZATION FOR JUSTICE / For Plaintiff-Respondent KAUFMAN, FRIEDMAN, PLOTNICKI & GRUN
