THE BE
ING
www. NYLJ.com
Volume 244—NO. 4
COOPERATIVES AND CONDOMINIUMS
Board Rules and Laws
To Deal With the Unruly Pet
P
et ownership is a frequent subject of House
Rules and Regulations promulgated by
co-op and condominium boards. Such rules
are particularly important because while
pets can be a “best friend,” they can also
make living conditions for neighbors unbearable,
unsafe or unhealthy. For example, the Centers for
Disease Control reports that during each year
from 2001-2006, 29.7 percent of falls, which are the
leading cause of non-fatal injuries in the United
States, were associated primarily with dogs.1
Some boards ban all pets; others restrict
the number and/or size of permitted pets,
allow only certain breeds of pets, or require
pets to be leashed when they are outside their
owner’s apartment.2 Courts generally enforce
such rules, consistent with the Court of Appeals’
holding that occupants of co-op and condominium
apartments voluntarily relinquish certain freedoms,
and have issued injunctions enforcing pet
restrictions.3
However, such rules are not always enforceable
because, under certain circumstances, federal,
state and local laws may supersede them. Further,
common law nuisance claims may be used to
override (or enforce) a board’s pet rules.
This column expands upon our earlier column
dealing with pets,4 discusses relevant case law
and statutes, and explores the options available
to boards and managers when dealing with unruly
pets, even in a “pet friendly” building.
No-Pet Buildings
The New York City Pet Waiver Law (“Pet Law”)5
provides an exception to otherwise enforceable
no-pet lease provisions. Where an apartment
occupant “openly” and “notoriously” harbors a
pet for three months and the building owner does
not commence an action to enforce the no-pet
prohibition within this three-month period, the
provision is deemed waived and the pet is allowed
to remain in the apartment. The Pet Law applies to
Richard Siegler is a partner at Stroock & Stroock
& Lavan and an adjunct professor at New York Law
School where he teaches a course on cooperative and
condominium law. Eva Talel is a partner at Stroock,
an adjunct professor at Cardozo Law School and
chairperson of the Cooperatives and Condominium Law
Committee of the New York City Bar. Stefanie Schiffer,
an associate at Stroock, and Margaret Jones, a research
librarian at the firm, assisted in the preparation of this
article. Stroock is counsel to the Real Estate Board of
New York.
NC
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By And
Richard Eva
Siegler Talel
co-ops, because the co-op and shareholder have
a landlord/tenant relationship by virtue of the
proprietary lease,6 but has been held inapplicable
to condominiums within the jurisdiction of the
Appellate Division, First Department. However, the
Pet Law is applicable to condominiums located in
the Second Department’s jurisdiction.7
Give the statute’s very short window for a board
to timely commence an action to remove a pet,
boards should take swift action to enforce their
no-pet rules. The value of prompt legal action was
demonstrated in 1725 York Venture v. Block.8 There,
a rent-stabilized tenant’s dog lunged at and clawed
a co-op apartment owner and later frightened
A board’s pet rules are not always enforceable
because, under certain circumstances, federal,
state and local laws may supersede them.
her children by leaping at another pet. Although
building employees knew of the pet’s presence
prior to these incidents, petitioner, who owned
the pet owner’s apartment, brought an action
after the first incident, alleging that the dog was
being harbored without the written permission
required by the sublease and possessed vicious
propensities.
The First Department remanded for trial the
vicious propensities issue and held that petitioner
waived enforcement of the no-pet provision
because no action was commenced within three
months of the dog’s arrival in the apartment. Had
the petitioner timely commenced an action—
when building employees first saw the dog—the
dog would have been removed without the cost
and uncertainty of a trial on its alleged vicious
propensities.
However, boards are frequently hampered from
acting promptly because of proprietary lease
provisions or bylaws that require apartment owners
to be given written notice of a default (i.e., harboring
©2010 ALM
wednesday, july 7, 2010
Expert Analysis
a pet in violation of a no-pet rule) and a period
of time, generally 30 days, to cure such default
before legal action can be instituted. As a result,
the Pet Law’s three-month suit commencement
requirement can be extremely difficult
to satisfy.
Therefore, §(d) of the Pet Law is particularly
valuable to boards because it permits pets to be
removed at any time if the pet creates a nuisance,
interferes substantially with the health or safety of
occupants, or damages the building.9 However, in
order to prevail, the board must satisfy its burden
of proof. In 980 Fifth Avenue Corp. v. Smith,10 a board
sued to remove a dog because its behavior violated
§(d). The First Department dismissed the claim,
finding the board’s only evidence of nuisance was
that some building occupants were afraid of dogs.
The court held that a dog is not a per se “nuisance,”
as a matter of law, regardless of the fears of building
occupants.
Another potential basis for removal of a pet
under §(d) is interference with the health of
occupants. While our research has not disclosed
any case where a board sought to remove a pet
because of allergic reactions to the pet experienced
by a neighboring apartment owner, query whether
a court would sustain such a claim. Federal courts
have held that environmentally triggered asthma
may constitute a legally cognizable disability.11
Further, the neighbor took health precautions by
purchasing an apartment in a no-pet building and
relying on its being pet free.
Dangerous Pets
When dogs demonstrate aggressive tendencies,
boards may seek relief under the Dangerous Dog
provisions of the New York City Administrative
Code, which defines a “vicious or dangerous
animal” as one that “menaces, threatens, attacks
or bites a person.”12 The Department of Health
(DOH) is authorized to examine the animal to
determine if it is vicious or dangerous and if the
DOH so determines, it may order the dog to be
removed from the city, require that it be muzzled in
public places, or that the owner and dog complete
an obedience course, destroy the dog, or take such
other action as it deems necessary to protect the
public.13
Dangerous pets present potential board liability
issues. In Carter v. Metro North Associates,14 a tenant
sued her landlord when another tenant’s pit bull
bit her in the face. The First Department held that
absent evidence that the landlord knew of the dog’s
vicious propensities, the landlord was not liable

for plaintiff’s injuries and the landlord’s failure to
enforce its no-pet policy was not the proximate
cause of plaintiff’s injuries. However, as the Carter
court explained, where boards know of a dog’s
vicious propensity—either by reason of prior
incidents and/or inferred from the nature of the
breed—the board is on notice that the dog has
vicious propensities and should take reasonable
steps (such as requiring that the dog be muzzled or
leashed at all times) to prevent another attack.
Boards may also be liable to invitees injured
by dogs harbored in the building. In Strunk v.
Zoltanski,15 an invitee sued the landlord after a
tenant’s dog bit him. The Second Department
upheld the claim, finding that if the landlord had
knowledge of the dog’s vicious propensities prior
to leasing the apartment to the dog’s owner, the
landlord may be liable for the injury because, by
using reasonable care, the landlord could have
removed a foreseeable risk of injury to third persons
by either declining to lease the apartment to the
dog owner or removing the dog from the premises.
The Carter and Strunk cases are potent reminders
of liability that may be imposed on a board.
Nuisance
Both co-op and condominium boards may
assert a common law nuisance claim as a basis
for removing pets. To establish a claim, the board
must prove that the animal substantially and
unreasonably interfered with the property rights
of others.16 Because dogs are not a per se nuisance,
boards must produce specific evidence of the dog’s
objectionable behavior. Moreover, boards must
establish a pattern of objectionable behavior; an
isolated barking incident or a single instance of dog
feces found in a common area is insufficient.17
Brodcom West Develop. Co. v. Best18 is an example
of a landlord’s successful prosecution of a pet-
related nuisance claim. There, a rent-subsidized
tenant’s dog was adjudged a nuisance based on
testimony regarding the dog’s disturbing behavior
over a period of years. Four tenants testified that the
dog barked at all hours of the day and night, often
disturbing them in their sleep, roamed the hallways
without a leash, frequently urinated and defecated
in common hallways, and so disturbed one tenant
that he moved out of his home of 14 years. Ruling
in favor of the landlord, the Brodcom court gave
the tenant 10 days to permanently remove the dog
from the premises or face eviction.
Disability Laws
Pursuant to the federal Fair Housing Act, and
the Human Rights Laws of New York State and
City, co-ops and condominiums may be legally
obligated to permit occupants to keep pets
despite no-pet rules.19 These laws generally require
housing providers to reasonably accommodate
disabled occupants if the occupant can establish
the disability and provide proof of a specific,
particularized need to keep the pet as necessary for
the use and enjoyment of the apartment. However,
a disabled occupant is not permitted to house a
pet that is a nuisance.
In Crotona Park West v. Aponte,20 the occupant
sought to keep a dog in her rental unit under
disability laws, notwithstanding that the dog was
allegedly creating a nuisance by its constant barking.
The court denied the tenant’s motion to dismiss
the landlord’s nuisance claim; if the landlord could
sustain its burden of proof, either the dog would
be removed or the defendant evicted. Therefore,
notwithstanding disability laws, if a pet creates a
nuisance, boards may abate the disturbance—by
removing the pet or the pet owner.
Recommendations
It is important that boards develop a viable pet
policy for the building and be vigilant in pursuing
available remedies for breach thereof. Boards
should take prompt action to address problematic
pets, lest the board becomes liable for hospital
bills, veterinary bills, or other damages if the pet
injures another person or pet, especially where a
board knows of an animal’s vicious tendencies.
We recommend that in pet-friendly buildings,
boards place restrictions in their governing
documents limiting the types, breeds, size/weight
and number of pets permitted in an apartment,
and require that pets be leashed whenever they
are in the building’s common areas, including
elevators.
Boards should take prompt action to address
problematic pets, lest the board becomes
liable for hospital bills, veterinary bills, or other
damages if the pet injures another person
or pet, especially where a board knows of an
animal’s vicious tendencies.
In no-pet buildings, boards should be mindful of
the very limited time frames within which they must
act before the pet becomes entitled to remain in the
apartment and the evidentiary burdens imposed
under the Pet Law, common law nuisance, disability
laws and the Dangerous Dog statute. In no-pet
buildings, employees and contractors should be
required/strongly encouraged to promptly bring
to the attention of the board and the managing
agent the presence of pets. Moral suasion by board
members, a complaint to the DOH or a call to 311,
if a pet owner is not responsive to board efforts,
should also be considered. Such steps should
minimize board liability and enhance the quality
of life for co-op and condominium occupants.
••••••••••••••••
•••••••••••••
1. Nonfatal Fall-Related Injuries Associated With Dogs and
Cats—United States, 2001-2006, Centers for Disease Control MMWR
Weekly, 58(11); 277-281, (March 27, 2009), available at http://www.
cdc.gov/mmwr/preview/mmwrhtml/mm5811a1.htm.
2. See, e.g., 1036 Park Corp. v Rubin, 92 A.D.2d 452 (1st Dept.
1983) (co-op had a house rule prohibiting pets); Kingsview Homes
Inc. v. Jarvis, 48 A.D.2d 881 (2d Dept. 1975) (co-op restricted pet
ownership to one animal per apartment); Ryefield II Assn. Inc. v.
Drummond, 2008 WL 544613 (Conn.Super.Ct. 2008) (condominium
association’s bylaws permitted only dogs “of gentle disposition”);
London Terrace Towers Inc. v. Davis, 790 N.Y.S.2d 813 (Civ. Ct.
N.Y.Co. 2004), (co-op’s house rule required dogs to be on leashes).
3. Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y. 2d 530, 536
(1990). See, e.g., 1036 Park Corp., 92 A.D.2d 452 (shareholder
in violation of house rules for keeping a dog was permanently
enjoined from maintaining a pet on the premises). Ryefield, 2008
WL 544613 (permanent injunction granted to enforce house rule
permitting only dogs of “gentle disposition”).
4. See, generally, Richard Siegler and Eva Talel, “Restraints on
Boards’ Pet Policies: Emotional Support Pets,” NYLJ, Jan. 3, 2007,
at 3, col. 1.
5. NYC Admin. Code §27-2009.1(b). Westchester County also has
a Pet Law, which expressly applies to co-ops. See L.L. No. 6-1988;
amended by L.L. No. 3 3-1990. Rockland County too has a Pet Law,
but it expressly excludes co-ops and condominiums. See, L.L. No.
8-1989, amended 9/5/1989. Importantly, the New York Pet Law does
not prevent a landlord from enforcing a no-pet provision against
an occupant’s successive unauthorized pets. See, Park Holding Co.
v. Emicke, 168 Misc. 2d 133, 135 (App. Term, 1st Dept. 1996) (“any
waiver under the law is more properly limited to existing pets
which are part of the household; it is not reasonably extended to
future pets which were not yet in the premises”). As a result, once
a “waived” pet dies, the landlord may bring an action to enforce
its no pet provision if the tenant attempts to harbor any other
wednesday, july 7, 2010
unauthorized pets, no matter how many pets the tenant tries to
harbor or their species or breed. While there have been a number
of attempts to amend the Pet Law so as to permit “replacement
pets” after the “waived” pet dies, none have been successful to
date.
6. See, e.g., Seward Park Housing Corp. v. Cohen, 287 A.D. 2d
157 (1st Dept. 2001); Linden Hill No. 1 Coop. Corp. v. Kleiner, 478
N.Y.S.2d 519 (Civ.Ct. Queens County 1984); Corlear Gardens Housing
Co. Inc. v. Ramos, 481 N.Y.S.2d 577 (Sup.Ct. Bronx Co. 1984).
7. Board of Managers v. Lamontanero, 206 A.D.2d 340 (2d
Dept. 1994). holding that Pet Law applies to condominiums in the
Second Department. Board of Managers of the Parkchester North
Condominium v. Quiles, 234 A.D.2d 130 (1st Dept. 1996), holding
that the Pet Law does not apply to condominiums in the First
Department. But see, Backman v. Kleidman, 2010 WL 1712245, 2010
N.Y.Slip Op. 50756(U) (Civ.Ct. N.Y.Co. April 26, 2010), distinguishing
condominium unit owners in the First Department who lease their
units and explaining that while the First Department does not
apply the Pet Law where a condominium board seeks to enforce
a no-pet provision against a unit owner, the Pet Law does apply
as between a unit owner and its tenant because a landlord/tenant
relationship exists between them.
8. 64 A.D.3d 495 (1st Dept. 2009).
9. NYC Admin. Code §27-2009.1(d). See also Megalopolis
Property Ass’n v. Buvron, 110 A.D.2d 232, 237 (2d Dept. 1985),
quoting the chairman of the Committee on Housing and Buildings
as part of legislative history of the Pet Law: “It does not protect
nuisances, where a pet is a nuisance or the pet bothers other
tenants or persons or damages property, that pet will not be
protected by this bill and the eviction could ensue if that condition
is not corrected.”
10. 295 A.D.2d 133 (1st Dept. 2002), aff’d, Index No. 124447/00
(Sup. Ct. N.Y.Co., March 4, 2002). See, also, 86 West Corp v. Singh,
NYLJ, Dec. 5, 2007, 25, at col.1 (Civ. Ct. N.Y.Co. 2007), where
a landlord commenced a holdover proceeding alleging that
respondent’s two pitbulls constituted a nuisance because they
attacked a resident’s dog, attempted to attack another resident’s
dog, lunged at building residents, and roamed freely in the
building’s common area. The court held that because none of
the alleged incidents were described with specificity, and all were
denied by the tenant, the landlord’s request for a protective order
was denied and tenant was granted discovery.
11. See, e.g., Monteroso v. Sullivan & Cromwell, LLP, 591
F.Supp.2d 567 (S.D.N.Y. 2008) (plaintiff’s claim under the Americans
with Disabilities Act of 1990 that her employer wrongfully refused
to provide a workplace accommodation for her disability—
environmentally triggered asthma from chemicals and fumes used
in the employer’s Reproduction and Copying Department—raised
a genuine issue of material fact that required a trial). Other co-
op House Rules have been challenged based on an occupant’s
alleged asthmatic or allergic condition, but the facts presented
by the occupant were deemed insufficient by the court to sustain
a claim. See, e.g., Fraken Builders Inc. v. Ciccione, NYLJ, Feb. 3,
2004 (City Ct. New Rochelle). (Court rejected tenant’s claim that
enforcing a lease provision requiring the tenant to carpet 80
percent of the apartment’s floor area would violate the warranty of
habitability because of the tenant’s asthmatic/allergic condition,
noting that installation of hypoallergenic carpeting and vacuuming
with a HEPA vacuum could reduce the dust and therefore
undermined any claim that the carpeting was detrimental
to her health).
12. NYC Admin. Code §17-342; 24 RCNY Hlth. Code §161.07(a).
13. NYC Admin. Code §17-345; 24 RCNY Hlth. Code §161.07(c).
New York City has many laws that apply to the keeping of animals
including the Dog Leash Law (24 RCNY Hlth. Code §161.05) and the
Canine Waste Law (N.Y.Pub.Health Law §1310, 24 RCNY Hlth. Code
§161.03). While enforcement of these laws is within the jurisdiction
of various city agencies, boards and apartment owners can make
complaints to DOH or by calling 311.
14. 255 A.D.2d 251 (1st Dept. 1998).
15. 96 A.D.2d 1074 (2d Dept. 1983).
16. 980 Fifth Ave Corp. v. Smith, 295 A.D.2d 133 (1st Dept. 2002).
17. See, e.g., 40 West 75th Street LLC v. Horowitz, 2009 WL
4021191 (Civ. Ct. N.Y.Co. 2009), where the court held that
petitioner’s allegation of finding feces on the floor of the apartment
was insufficient to establish a nuisance claim as it was only a single
instance of objectionable behavior, not a pattern of objectionable
conduct.
18. 2009 WL 1664450, 2009 Slip Op. 5128(U) (Civ.Ct. N.Y. Co. June
15, 2009).
19. See, 42 USC §3604; NY Exec. Law §96; NYC Admin. Code
8-107.
20. NYLJ, March 20, 2002, at 22, col. 2 (Civ. Ct. N.Y.Co. 2002).
See also, Ocean Gate Assoc. Starrett Systems Inc. v. Dopico, 109
Misc.2d 774, 775 (N.Y. City Civ.Ct. 1981) (“This court finds that
the legislative advances protecting the disabled…require the no-
pet clause to bow upon proof of a specific, particularized need to
keep a dog, which need arises out of the handicap”); One Overlook
Ave. Corp., v. N.Y.S.D.H.R., 8 A.D.3d 286 (2d Dept. 2004), applying
disability law to a co-op; Board of Managers of Lido Beach Towers
Condo. v. Gamiel, 4 Misc.3d 1022 (A) (City Ct. Long Beach 2004),
applying disability laws to a condominium; Siegler and Talel,
“Restraints on Boards’ Pet Policies: Emotional Support Pets,”
NYLJ, Jan. 3, 2007, at 3, col. 1.
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