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Volume 244—NO. 4 wednesday, july 7, 2010

COOPERATIVES AND CONDOMINIUMS Expert Analysis


Board Rules and Laws
To Deal With the Unruly Pet

P
et ownership is a frequent subject of House a pet in violation of a no-pet rule) and a period
Rules and Regulations promulgated by of time, generally 30 days, to cure such default
co-op and condominium boards. Such rules before legal action can be instituted. As a result,
are particularly important because while the Pet Law’s three-month suit commencement
pets can be a “best friend,” they can also requirement can be extremely difficult
make living conditions for neighbors unbearable, to satisfy.
unsafe or unhealthy. For example, the Centers for Therefore, §(d) of the Pet Law is particularly
Disease Control reports that during each year valuable to boards because it permits pets to be
from 2001-2006, 29.7 percent of falls, which are the By And removed at any time if the pet creates a nuisance,
leading cause of non-fatal injuries in the United Richard Eva interferes substantially with the health or safety of
States, were associated primarily with dogs.1 Siegler Talel occupants, or damages the building.9 However, in
Some boards ban all pets; others restrict co-ops, because the co-op and shareholder have order to prevail, the board must satisfy its burden
the number and/or size of permitted pets, a landlord/tenant relationship by virtue of the of proof. In 980 Fifth Avenue Corp. v. Smith,10 a board
allow only certain breeds of pets, or require proprietary lease,6 but has been held inapplicable sued to remove a dog because its behavior violated
pets to be leashed when they are outside their to condominiums within the jurisdiction of the §(d). The First Department dismissed the claim,
owner’s apartment.2 Courts generally enforce Appellate Division, First Department. However, the finding the board’s only evidence of nuisance was
such rules, consistent with the Court of Appeals’ Pet Law is applicable to condominiums located in that some building occupants were afraid of dogs.
holding that occupants of co-op and condominium the Second Department’s jurisdiction.7 The court held that a dog is not a per se “nuisance,”
apartments voluntarily relinquish certain freedoms, Give the statute’s very short window for a board as a matter of law, regardless of the fears of building
and have issued injunctions enforcing pet to timely commence an action to remove a pet, occupants.
restrictions.3 boards should take swift action to enforce their Another potential basis for removal of a pet
However, such rules are not always enforceable no-pet rules. The value of prompt legal action was under §(d) is interference with the health of
because, under certain circumstances, federal, demonstrated in 1725 York Venture v. Block.8 There, occupants. While our research has not disclosed
state and local laws may supersede them. Further, a rent-stabilized tenant’s dog lunged at and clawed any case where a board sought to remove a pet
common law nuisance claims may be used to a co-op apartment owner and later frightened because of allergic reactions to the pet experienced
override (or enforce) a board’s pet rules. by a neighboring apartment owner, query whether
This column expands upon our earlier column a court would sustain such a claim. Federal courts
dealing with pets,4 discusses relevant case law have held that environmentally triggered asthma
A board’s pet rules are not always enforceable
and statutes, and explores the options available may constitute a legally cognizable disability.11
to boards and managers when dealing with unruly because, under certain circumstances, federal, Further, the neighbor took health precautions by
pets, even in a “pet friendly” building. state and local laws may supersede them. purchasing an apartment in a no-pet building and
No-Pet Buildings relying on its being pet free.
her children by leaping at another pet. Although Dangerous Pets
The New York City Pet Waiver Law (“Pet Law”)5 building employees knew of the pet’s presence
provides an exception to otherwise enforceable prior to these incidents, petitioner, who owned When dogs demonstrate aggressive tendencies,
no-pet lease provisions. Where an apartment the pet owner’s apartment, brought an action boards may seek relief under the Dangerous Dog
occupant “openly” and “notoriously” harbors a after the first incident, alleging that the dog was provisions of the New York City Administrative
pet for three months and the building owner does being harbored without the written permission Code, which defines a “vicious or dangerous
not commence an action to enforce the no-pet required by the sublease and possessed vicious animal” as one that “menaces, threatens, attacks
prohibition within this three-month period, the propensities. or bites a person.”12 The Department of Health
provision is deemed waived and the pet is allowed The First Department remanded for trial the (DOH) is authorized to examine the animal to
to remain in the apartment. The Pet Law applies to vicious propensities issue and held that petitioner determine if it is vicious or dangerous and if the
waived enforcement of the no-pet provision DOH so determines, it may order the dog to be
Richard Siegler is a partner at Stroock & Stroock
because no action was commenced within three removed from the city, require that it be muzzled in
& Lavan and an adjunct professor at New York Law months of the dog’s arrival in the apartment. Had public places, or that the owner and dog complete
School where he teaches a course on cooperative and the petitioner timely commenced an action— an obedience course, destroy the dog, or take such
condominium law. Eva Talel is a partner at Stroock, when building employees first saw the dog—the other action as it deems necessary to protect the
an adjunct professor at Cardozo Law School and dog would have been removed without the cost public.13
chairperson of the Cooperatives and Condominium Law and uncertainty of a trial on its alleged vicious Dangerous pets present potential board liability
Committee of the New York City Bar. Stefanie Schiffer, propensities. issues. In Carter v. Metro North Associates,14 a tenant
an associate at Stroock, and Margaret Jones, a research However, boards are frequently hampered from sued her landlord when another tenant’s pit bull
librarian at the firm, assisted in the preparation of this acting promptly because of proprietary lease bit her in the face. The First Department held that
article. Stroock is counsel to the Real Estate Board of provisions or bylaws that require apartment owners absent evidence that the landlord knew of the dog’s
New York. to be given written notice of a default (i.e., harboring vicious propensities, the landlord was not liable
wednesday, july 7, 2010

for plaintiff’s injuries and the landlord’s failure to notwithstanding disability laws, if a pet creates a unauthorized pets, no matter how many pets the tenant tries to
harbor or their species or breed. While there have been a number
enforce its no-pet policy was not the proximate nuisance, boards may abate the disturbance—by of attempts to amend the Pet Law so as to permit “replacement
cause of plaintiff’s injuries. However, as the Carter removing the pet or the pet owner. pets” after the “waived” pet dies, none have been successful to
court explained, where boards know of a dog’s date.
Recommendations 6. See, e.g., Seward Park Housing Corp. v. Cohen, 287 A.D. 2d
vicious propensity—either by reason of prior 157 (1st Dept. 2001); Linden Hill No. 1 Coop. Corp. v. Kleiner, 478
incidents and/or inferred from the nature of the It is important that boards develop a viable pet 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).
breed—the board is on notice that the dog has policy for the building and be vigilant in pursuing 7. Board of Managers v. Lamontanero, 206 A.D.2d 340 (2d
vicious propensities and should take reasonable available remedies for breach thereof. Boards Dept. 1994). holding that Pet Law applies to condominiums in the
steps (such as requiring that the dog be muzzled or should take prompt action to address problematic Second Department. Board of Managers of the Parkchester North
Condominium v. Quiles, 234 A.D.2d 130 (1st Dept. 1996), holding
leashed at all times) to prevent another attack. pets, lest the board becomes liable for hospital that the Pet Law does not apply to condominiums in the First
Boards may also be liable to invitees injured bills, veterinary bills, or other damages if the pet Department. But see, Backman v. Kleidman, 2010 WL 1712245, 2010
by dogs harbored in the building. In Strunk v. injures another person or pet, especially where a 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
Zoltanski,15 an invitee sued the landlord after a board knows of an animal’s vicious tendencies. units and explaining that while the First Department does not
tenant’s dog bit him. The Second Department We recommend that in pet-friendly buildings, apply the Pet Law where a condominium board seeks to enforce
upheld the claim, finding that if the landlord had a no-pet provision against a unit owner, the Pet Law does apply
boards place restrictions in their governing as between a unit owner and its tenant because a landlord/tenant
knowledge of the dog’s vicious propensities prior documents limiting the types, breeds, size/weight relationship exists between them.
to leasing the apartment to the dog’s owner, the and number of pets permitted in an apartment, 8. 64 A.D.3d 495 (1st Dept. 2009).
9. NYC Admin. Code §27-2009.1(d). See also Megalopolis
landlord may be liable for the injury because, by and require that pets be leashed whenever they Property Ass’n v. Buvron, 110 A.D.2d 232, 237 (2d Dept. 1985),
using reasonable care, the landlord could have are in the building’s common areas, including quoting the chairman of the Committee on Housing and Buildings
removed a foreseeable risk of injury to third persons elevators. 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
by either declining to lease the apartment to the tenants or persons or damages property, that pet will not be
dog owner or removing the dog from the premises. protected by this bill and the eviction could ensue if that condition
The Carter and Strunk cases are potent reminders is not corrected.”

of liability that may be imposed on a board. Boards should take prompt action to address 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,
problematic pets, lest the board becomes NYLJ, Dec. 5, 2007, 25, at col.1 (Civ. Ct. N.Y.Co. 2007), where
Nuisance a landlord commenced a holdover proceeding alleging that
liable for hospital bills, veterinary bills, or other respondent’s two pitbulls constituted a nuisance because they
Both co-op and condominium boards may damages if the pet injures another person attacked a resident’s dog, attempted to attack another resident’s
assert a common law nuisance claim as a basis dog, lunged at building residents, and roamed freely in the
or pet, especially where a board knows of an building’s common area. The court held that because none of
for removing pets. To establish a claim, the board the alleged incidents were described with specificity, and all were
must prove that the animal substantially and
animal’s vicious tendencies. denied by the tenant, the landlord’s request for a protective order
unreasonably interfered with the property rights was denied and tenant was granted discovery.
11. See, e.g., Monteroso v. Sullivan & Cromwell, LLP, 591
of others.16 Because dogs are not a per se nuisance, In no-pet buildings, boards should be mindful of F.Supp.2d 567 (S.D.N.Y. 2008) (plaintiff’s claim under the Americans
boards must produce specific evidence of the dog’s the very limited time frames within which they must with Disabilities Act of 1990 that her employer wrongfully refused
to provide a workplace accommodation for her disability—
objectionable behavior. Moreover, boards must act before the pet becomes entitled to remain in the environmentally triggered asthma from chemicals and fumes used
establish a pattern of objectionable behavior; an apartment and the evidentiary burdens imposed in the employer’s Reproduction and Copying Department—raised
isolated barking incident or a single instance of dog under the Pet Law, common law nuisance, disability a genuine issue of material fact that required a trial). Other co-
op House Rules have been challenged based on an occupant’s
feces found in a common area is insufficient.17 laws and the Dangerous Dog statute. In no-pet alleged asthmatic or allergic condition, but the facts presented
Brodcom West Develop. Co. v. Best18 is an example buildings, employees and contractors should be by the occupant were deemed insufficient by the court to sustain
of a landlord’s successful prosecution of a pet- required/strongly encouraged to promptly bring a claim. See, e.g., Fraken Builders Inc. v. Ciccione, NYLJ, Feb. 3,
2004 (City Ct. New Rochelle). (Court rejected tenant’s claim that
related nuisance claim. There, a rent-subsidized to the attention of the board and the managing enforcing a lease provision requiring the tenant to carpet 80
tenant’s dog was adjudged a nuisance based on agent the presence of pets. Moral suasion by board percent of the apartment’s floor area would violate the warranty of
testimony regarding the dog’s disturbing behavior members, a complaint to the DOH or a call to 311, habitability because of the tenant’s asthmatic/allergic condition,
noting that installation of hypoallergenic carpeting and vacuuming
over a period of years. Four tenants testified that the if a pet owner is not responsive to board efforts, with a HEPA vacuum could reduce the dust and therefore
dog barked at all hours of the day and night, often should also be considered. Such steps should undermined any claim that the carpeting was detrimental
disturbing them in their sleep, roamed the hallways minimize board liability and enhance the quality to her health).
12. NYC Admin. Code §17-342; 24 RCNY Hlth. Code §161.07(a).
without a leash, frequently urinated and defecated of life for co-op and condominium occupants. 13. NYC Admin. Code §17-345; 24 RCNY Hlth. Code §161.07(c).
in common hallways, and so disturbed one tenant 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
that he moved out of his home of 14 years. Ruling Canine Waste Law (N.Y.Pub.Health Law §1310, 24 RCNY Hlth. Code
in favor of the landlord, the Brodcom court gave 1. Nonfatal Fall-Related Injuries Associated With Dogs and
Cats—United States, 2001-2006, Centers for Disease Control MMWR §161.03). While enforcement of these laws is within the jurisdiction
the tenant 10 days to permanently remove the dog Weekly, 58(11); 277-281, (March 27, 2009), available at http://www. of various city agencies, boards and apartment owners can make
complaints to DOH or by calling 311.
from the premises or face eviction. cdc.gov/mmwr/preview/mmwrhtml/mm5811a1.htm.
14. 255 A.D.2d 251 (1st Dept. 1998).
2. See, e.g., 1036 Park Corp. v Rubin, 92 A.D.2d 452 (1st Dept.
Disability Laws 1983) (co-op had a house rule prohibiting pets); Kingsview Homes 15. 96 A.D.2d 1074 (2d Dept. 1983).
Inc. v. Jarvis, 48 A.D.2d 881 (2d Dept. 1975) (co-op restricted pet 16. 980 Fifth Ave Corp. v. Smith, 295 A.D.2d 133 (1st Dept. 2002).
ownership to one animal per apartment); Ryefield II Assn. Inc. v. 17. See, e.g., 40 West 75th Street LLC v. Horowitz, 2009 WL
Pursuant to the federal Fair Housing Act, and 4021191 (Civ. Ct. N.Y.Co. 2009), where the court held that
Drummond, 2008 WL 544613 (Conn.Super.Ct. 2008) (condominium
the Human Rights Laws of New York State and association’s bylaws permitted only dogs “of gentle disposition”); petitioner’s allegation of finding feces on the floor of the apartment
City, co-ops and condominiums may be legally London Terrace Towers Inc. v. Davis, 790 N.Y.S.2d 813 (Civ. Ct. was insufficient to establish a nuisance claim as it was only a single
N.Y.Co. 2004), (co-op’s house rule required dogs to be on leashes). instance of objectionable behavior, not a pattern of objectionable
obligated to permit occupants to keep pets conduct.
3. Levandusky v. One Fifth Ave. Apt. Corp., 75 N.Y. 2d 530, 536
despite no-pet rules.19 These laws generally require (1990). See, e.g., 1036 Park Corp., 92 A.D.2d 452 (shareholder 18. 2009 WL 1664450, 2009 Slip Op. 5128(U) (Civ.Ct. N.Y. Co. June
housing providers to reasonably accommodate in violation of house rules for keeping a dog was permanently 15, 2009).
enjoined from maintaining a pet on the premises). Ryefield, 2008 19. See, 42 USC §3604; NY Exec. Law §96; NYC Admin. Code
disabled occupants if the occupant can establish WL 544613 (permanent injunction granted to enforce house rule 8-107.
the disability and provide proof of a specific, permitting only dogs of “gentle disposition”). 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
particularized need to keep the pet as necessary for 4. See, generally, Richard Siegler and Eva Talel, “Restraints on
Misc.2d 774, 775 (N.Y. City Civ.Ct. 1981) (“This court finds that
Boards’ Pet Policies: Emotional Support Pets,” NYLJ, Jan. 3, 2007,
the use and enjoyment of the apartment. However, at 3, col. 1. the legislative advances protecting the disabled…require the no-
a disabled occupant is not permitted to house a 5. NYC Admin. Code §27-2009.1(b). Westchester County also has pet clause to bow upon proof of a specific, particularized need to
a Pet Law, which expressly applies to co-ops. See L.L. No. 6-1988; keep a dog, which need arises out of the handicap”); One Overlook
pet that is a nuisance. Ave. Corp., v. N.Y.S.D.H.R., 8 A.D.3d 286 (2d Dept. 2004), applying
amended by L.L. No. 3 3-1990. Rockland County too has a Pet Law,
In Crotona Park West v. Aponte,20 the occupant but it expressly excludes co-ops and condominiums. See, L.L. No. disability law to a co-op; Board of Managers of Lido Beach Towers
sought to keep a dog in her rental unit under 8-1989, amended 9/5/1989. Importantly, the New York Pet Law does Condo. v. Gamiel, 4 Misc.3d 1022 (A) (City Ct. Long Beach 2004),
not prevent a landlord from enforcing a no-pet provision against applying disability laws to a condominium; Siegler and Talel,
disability laws, notwithstanding that the dog was an occupant’s successive unauthorized pets. See, Park Holding Co. “Restraints on Boards’ Pet Policies: Emotional Support Pets,”
allegedly creating a nuisance by its constant barking. v. Emicke, 168 Misc. 2d 133, 135 (App. Term, 1st Dept. 1996) (“any NYLJ, Jan. 3, 2007, at 3, col. 1.
The court denied the tenant’s motion to dismiss waiver under the law is more properly limited to existing pets
which are part of the household; it is not reasonably extended to Reprinted with permission from the July 7, 2010 edition of the NEW YORK LAW
the landlord’s nuisance claim; if the landlord could future pets which were not yet in the premises”). As a result, once JOURNAL © 2010. ALM Media Properties, LLC. All rights reserved. Further duplication
sustain its burden of proof, either the dog would a “waived” pet dies, the landlord may bring an action to enforce without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.
its no pet provision if the tenant attempts to harbor any other com. # 070-07-10-15
be removed or the defendant evicted. Therefore,