40 W. 75th St. LLC v Horowitz

[*1] 40 W. 75th St. LLC v Horowitz 2009 NY Slip Op 52356(U) [25 Misc 3d 1230(A)] Decided on November 19, 2009 Civil Court Of The City Of New York, New York County Lebovits, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2009
Civil Court of the City of New York, New York County

40 West 75th Street LLC, Petitioner,

against

Shelly Horowitz, Respondent.



L & T 077730/2009

Gerald Lebovits, J.

Petitioner in this holdover proceeding alleges that respondent harbors a dog in the apartment in violation of her lease rider. Petitioner also alleges that the dog is a nuisance: a witness allegedly saw dog feces and smelled "unpleasant and sickening odors" in the apartment.

Respondent now moves for summary judgment on three grounds: (1) the dog is a "service dog" and is protected from eviction under CPLR 3211 (c); (2) the predicate notices do not state a cause of action for nuisance because they include only one allegation of an objectionable incident; and (3) petitioner vitiated its termination notice by accepting a rent payment. Alternately, respondent moves to stay these proceedings pending the outcome of a complaint she made to the United States Department of Housing and Urban Development (HUD) in which she alleges that petitioner discriminated against her for having a dog. In its affidavit of Martha Gourelnous, petitioner cross-moves for summary judgment. Petitioner did not, however, submit a formal cross-motion.

Respondent's Motion for Summary Judgment Based on the "Pet Law"

Respondent moves for summary judgment under CPLR 3211 (c) based on New York City Administrative Code § 27-2009.1 (b), commonly called the Pet Law. In an affidavit dated September 9, 2009, petitioner's witness, Martha Gournelos, alleged that "on or about March 31, 2009, Respondent's boyfriend moved his belongings into the subject apartment." Respondent claims that this language admits that petitioner had "actual notice" of the dog's presence of the dog in the apartment from that time forward. In her affidavit, however, respondent states that she "requested permission verbally" from petitioner and "told management that I would be bringing the dog to the premises." Respondent additionally states that she has kept her dog in an "open and notorious" manner, that she "never hide[s] her [dog]," and that she has "been seen regularly by building employees and neighbors daily since mid-March" because she took her dog for daily walks. Thus, states respondent, petitioner knew about the dog for more than three months before [*2]it began this proceeding.

In response, petitioner argues in Martha Gournelos's affidavit that it never gave permission for the dog and that it did not know, actually or otherwise, about respondent's dog until June 1, 2009, when an exterminator visited respondent's apartment and saw the dog. Petitioner states that the building has no doorman or staff on premises who would have known about the dog.

Respondent's informing management that she would, at some future date, bring a dog into her apartment does not show that petitioner knew of its presence. Respondent's mere mention that she will acquire a dog is different from petitioner's actual notice that she harbors a dog. Furthermore, although respondent might have openly and notoriously taken the dog for walks, respondent provides no specific information evincing petitioner's actual knowledge of the dog. Without specific evidence from respondent regarding petitioner's actual notice of the dog, her motion for summary judgment must fail.

Respondent's Motion to Dismiss

Respondent offers three grounds to dismiss:

Her dog is a "service dog" and therefore protected and exempt from eviction by New York State Civil Rights Law §47.

Petitioner does not state a cause of action with regard to nuisance because it cites only one allegation of objectionable conduct.

Petitioner vitiated its termination notice by accepting respondent's rent after it served the termination notice and by failing to return the rent check until after the proceeding began.

Respondent alternatively moves to stay these proceedings pending the outcome of her housing-discrimination complaint.

In its cross-motion for summary judgment, petitioner responds to respondent's three grounds dismissal.

Because respondent has not demonstrated that the dog is necessary for her to use and enjoy the apartment, the dog's presence violates the lease whether or not it is a service dog.

Despite petitioner's alleging only one incident of a nuisance, its predicate notice is legally sufficient. [*3]

Because petitioner returned respondent's check and never cashed it, petitioner did not waive its right to evict respondent.

Petitioner does not respond to respondent's motion to stay this proceeding pending the outcome of the HUD hearing.

1. Respondent's Motion to Dismiss based on Service Animals' Exemption from Eviction

Respondent states that her animal is a "service dog" and that she and her dog are therefore exempt from eviction. Respondent cites New York State Civil Rights Law as the basis for her support.

Section 47.1 of New York's Civil Rights Law provides that "no person shall be denied admittance to and/ or the equal use of and enjoyment of any public facility solely because said person is a person with a disability and is accompanied by a guide dog, hearing dog or service dog." Section 47.2 includes in its definition of "public facility" "all forms of public and private housing accommodations whether permanent or temporary."

Respondent submits a letter dated April 28, 2009, from Lidia Agueda of the New York City Department of Health and Mental Hygiene's Dog License Unit. In this letter, addressed to respondent, Ms. Agueda states, "Your dog has been registered as a Service Dog in New York City Department of Health & Mental Hygiene database."

Petitioner argues that although the dog might be registered as a service dog, its status is irrelevant; because respondent harbors a dog in the apartment without petitioner's consent, petitioner claims it is still "well within its right" to seek eviction. Petitioner argues that it has "no record" of a request to waive its no-pet rule; that respondent, as a "long-time tenant of the premises," has never indicated having a disability or that she requires a service dog to help her "use and enjoy" the apartment; and that the dog is actually owned by petitioner's boyfriend, who moved into the apartment with the dog.

Dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. (Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [1st Dept 2004].)

Factual dispute exists about the dog's true owner as well as about whether the dog is required to "use and enjoy" the apartment. Although neither party cites the definition of a "service dog," the Americans With Disabilities Act defines a service animals as "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability." (28 CFR 36.104.) Because a service animal must perform tasks to benefit individuals with disabilities, one must be disabled to require a service animal. A factual dispute also exists over whether petitioner is disabled. Because there are factual disputes, a trial must be held on issues related to exemption from eviction on the ground that respondent's dog — if it is her dog — is a service animal.

[*4]2. Respondent's Motion to Dismiss based on Nuisance

Respondent argues that the "predicate notices do not state a cause of action with regard to nuisance' because they only include one allegation of one objectionable incident which was immediately rectified." She cites petitioner's affidavit from Basile "Bill" Gournelos alleging that on June 1, 2009, an "exterminator saw the dog and its feces on the floor of the apartment." One element of the "nuisance" standard is "a continuous invasion of rights" or "a pattern of continuity or recurrence of objectionable conduct." (Domen Holding Co v Aranovich, 1 NY3d 117, 124 [2003].) Petitioner alleges that respondent's dog committed only a single instance of objectionable conduct. Thus, respondent's dog did not commit repeated objectionable behavior as the nuisance standard requires.Respondent's argument that petitioner does not state a cause of action on nuisance is upheld, and its cause of action based on nuisance is dismissed.

3. Respondent's Motion to Dismiss based on Termination Notice Vitiation

Respondent states that she gave petitioner a check for July's rent and that petitioner did not return it until after it commenced the proceeding. The termination notice was dated June 30, 2009 and set a termination date of July 17, 2009. Respondent states that petitioner returned the July rent check with a letter dated July 24, 2009, and that the proceeding was commenced by filing of the petition, which was time stamped on July 22, 2009.

Courts urge "look[ing] to the individual facts of each case prior to making . . . a determination" about vitiation. (170 E. 77th 1 LLC v Berenson, 12 Misc 3d 1017, 1019 [Civ Ct, NY County 2006].) The Appellate Term has found that where a landlord "returned . . . checks uncashed . . . without unreasonable delay," inadvertent "acceptance" of rent does not vitiate a predicate notice. (Pacer Realty Assocs. v Bishop, NYLJ, Dec. 12, 1996, at 29, col. 1 [App Term, 1st Dept 1996].)

Petitioner returned respondent's single rent check. Although respondent did not physically receive the check until after this proceeding began, the funds were never transferred to petitioner and thus never "accepted." Further, petitioner returned the check within a reasonable time. Respondent's motion to dismiss is denied.

Respondent's Motion to Stay this Proceeding under to CPLR 2201

In addition to its motions to dismiss, respondent moves to stay the proceeding under CPLR 2201 pending the final determination of a discrimination proceeding she filed against petitioner. Respondent filed a formal complaint with HUD claiming housing discrimination under the Fair Housing Act (42 USC § 3601, et seq.). Respondent claimed that petitioner discriminated against her on the basis of her alleged disability. On July 29, 2009, HUD accepted the complaint and referred it to the New York State Division of Human Rights for investigation as required by the Fair Housing Act (42 USC § 3610 [F].)

In Mozaffari v Schatz (12 Misc 3d 1162 [A], 2006 NY Slip Op 51001 [U] [Civ Ct, NY County 2006]), a holdover proceeding, respondent tenant claimed that she suffered from [*5]progressive hearing loss as a result of a diabetic condition. She sought petitioner's consent to harbor a hearing dog in her apartment. Petitioner denied his consent, and respondent filed a complaint with HUD. After HUD transferred the complaint to the New York State Division of Human Rights for processing, the court granted respondent's motion to stay.

According to CPLR 2201, a court may stay its own proceeding on such terms as may be just. Where concurrent jurisdiction exists between a court and an administrative agency, the doctrine of primary jurisdiction requires the court having the judicial proceeding to defer pending resolution of the administrative proceeding. (Eli Haddad Corp. v Cal Redmond Studio, 102 AD2d 730, 730 [1st Dept 1984].) A stay is preferable when the issues to be resolved are particularly within administrative body expertise and experience. (Capers v Giuliani, 253 AD2d 630, 633 [1st Dept 1998].) When a discrimination complaint implicates the subject living accommodation, a stay will be granted unless a petitioner can establish an independent, nondiscriminatory basis to obtain possession of a subject apartment. (Ennismore Apts. v Gottlieb, NYLJ, Sept. 24, 1992, at 24, col 5 [App Term, 1st Dept].)

Because petitioner does not oppose respondent's motion to stay and because the Division of Human Rights has accepted the complaint for further investigation, it is appropriate to stay this proceeding pending a final disposition of respondent's administrative hearing. After the outcome of the hearing on the discrimination complaint, either side may move to restore. At that time, a trial will be held on the issue of exemption from eviction based on the "service animal" claim on the one remaining cause of action: whether respondent violated her lease by harboring a dog.

Dated: November 19, 2009

J.H.C.