Case Notes in

Pets

First published: Sep 2020
Board of Managers of Fishkill Woods Condominium v. Gottlieb

Once again, we are reminded that the declaration and bylaws of a condominium constitute a contract between the unit-owner and the condominium association. While courts will occasionally look to the Business Corporation Law (which governs cooperatives), when it comes to governance issues in a condominium, the courts rely on the contract itself – the governing documents – when reviewing issues such as those raised in this case.

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First published: Mar 2012
Weston Murphy v. 14 Sutton Tenants Corporation

As we can see from the NAR decision, issues concerning pets are often litigated. Here, the plaintiff believes she was being singled out for improper treatment by the board and its individual directors when the board demanded that she use the service elevator when traveling with her dog. However, her suit against the individual board members was dismissed since she did not plead that any of them did anything other than act in their capacity as board members. Without allegations of personal wrongdoing, courts readily grant motions to dismiss claims against the individuals and – as it did here – permit the case to proceed against the co-op corporation.

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First published: Mar 2012
NAR Apartments, LLC v. Ippolito

Although this particular case is between a residential landlord and rental tenant, it is applicable to co-ops and condos and their apartment owners. Cases in which apartment residents who live in “no pet” buildings and request the right to maintain a pet as a reasonable accommodation because they serve as emotional support animals are often complicated. The matters are usually decided on a case-by-case basis, and the rules are evolving. In some matters, courts (and the State Division of Human Rights and city Commission on Human Rights – both venues where residents can file a complaint) may elect not to pursue an inquiry if the resident submits a letter from a doctor or psychologist asserting that the resident requires a pet as a reasonable accommodation and as an emotional support animal. Here, the court made clear that it was permitting the landlord to obtain discovery – both in the form of medical/psychological records and a deposition of the resident’s psychologist – so that the court could make an ultimate determination as to “the existence and/or extent of [the resident’s] purported disability, as well as the necessity of harboring a dog as an emotional support animal, assuming [the resident] is in fact disabled.” Further, this case raises an important issue for lessors and boards – to what extent can they rely on an agreement made with an occupant who later asserts that she is disabled and requires the very thing that they agreed to forego in the agreement as a reasonable accommodation. This issue, too, will be decided on a case-by-case basis, although we do not know the weight given by this court to the fact that the defendant signed the letter agreement without counsel. Nevertheless, it is apparent that, upon assertion of a claim of disability, the courts will allow further inquiry so that a resident may or may not be held to their agreement.

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First published: Jun 2010
2229-13 Apt. Corp. v. Portnov

This case reminds us that the pet law, which is applicable to cooperatives (and to condominiums under certain circumstances), must be strictly followed so that any action to evict the owner of a pet that is being harbored without permission, has to be started within 90 days of the date on which the co-op, its employees, or agents first knew about the pet. In a co-op, it is imperative that the co-op act very quickly and give the shareholder no respite. This is because, before starting an action to evict a shareholder for a violation of the proprietary lease, most leases require that the co-op first serve a 30-day notice to cure and a 5-day notice of termination. When one adds in time allowances for service, correspondence, discussions, negotiations, and the like, the 90-day deadline is a very short time period. We recommend that, even where a shareholder claims the pet is temporary, these notices be promptly served. The co-op can always decide to withdraw them at a later date. We note that the court provided another alternative to immediate service of notices and the start of an action: entry into an agreement with a date by which the pet must be removed from the premises. While we are in favor of settlement agreements, again, a co-op must watch its time periods so that, if no agreement is signed despite a shareholder’s promises, the co-op has enough time to serve a notice to cure, notice of termination, and notice of petition and petition (or summons and complaint) to meet the stringent requirements of the pet law. As to attorneys’ fees, the court decided not to reward the shareholders for misleading the co-op. While the court believed it was constrained under the pet law to allow the dog to remain in the apartment, it concluded that there was no determination “on the merits” so that there was no “prevailing party.” In this way, it was able to decline to award legal fees to the shareholders.

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First published: Apr 2005
Matter of Contello Towers Corporation v. New York City Department of Housing Preservation and Development

This case is one of many faced regularly by both co-op and condo boards each year in which an occupant seeks to justify keeping a pet where pets are prohibited. Since these house rules are generally permissible with some exceptions for pets protected under the New York City Pet Waiver Law (because of a continuous known presence for more than 90 days), most challenges to such rules fail. Recently, challenges have relied on disabilities or hardships to trump the prohibitions. Although a trained seeing-eye dog for a blind person would invariably be permitted under the ADA, mental depression or distress is more difficult to measure. Here, the degree of distress did not rise to a level sufficient to override the building-wide prohibition.

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First published: Dec 2004
Board of Managers of Lido Beach Towers Condominium v. Gamiel

The motion court failed to actually decide both the immunity of the board and whether the “pet carry” rule discriminated against a unit-owner with a medical necessity. It required a trial to ascertain the facts giving rise to each issue. However, from the views expressed by the court, it seems likely that the board’s immunity will be upheld and that an exception to the rule will be granted if a discriminatory motive on the board’s part can be shown.

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First published: Nov 2004
Board of Managers of Lido Beach Towers Condominium v. Gamiel

The motion court failed to actually decide both the immunity of the board and whether the “pet carry” rule discriminated against a unit-owner with a medical necessity. It required a trial to ascertain the facts giving rise to each issue. However, from the views expressed by the court, it seems likely that the board’s immunity will be upheld and that an exception to the rule will be granted if a discriminatory motive on the board’s part can be shown.

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First published: Mar 2002
Seward Park Housing Corp. v. Cohen

The subject of pets continues to be a troublesome one for the courts. This lengthy decision should help to resolve some of the uncertainty that has prevailed, although it applies only to pets in Manhattan and the Bronx. The last word on this subject, of course, lies with the court of appeals, which may be needed to resolve disputes between the two appellate divisions, which govern New York City. In any event, the result of this case is to make it more difficult for a co-op to enforce no-pet rules. Indeed, the case is a warning to co-ops that they must act promptly (within 90 days) and by appropriate legal action to challenge an unauthorized pet.

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