2229-13 Apt. Corp. v Portnov

[*1] 2229-13 Apt. Corp. v Portnov 2010 NY Slip Op 50023(U) [26 Misc 3d 1209(A)] Decided on January 12, 2010 Civil Court Of The City Of New York, Kings County Heymann, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 12, 2010
Civil Court of the City of New York, Kings County

2229-13 Apt. Corp., Petitioner(s),

against

Roman Portnov & VALIANTSINA PORTNOV, Respondent(s).



65889/09



The petitioner was represented by:

Pruzan Law Firm

Sheila J. Randolph, Esq., Of Counsel

111 Livingston Street, Ste. 1100

Brooklyn, New York 11201

718-875-1245

The respondents were represented by:

Vernon & Ginsberg, LLP

Yoram Silagy, Esq., Of Counsel

261 Madison Avenue

New York, New York 10016

212-949-7300

George M. Heymann, J.

The petitioner cooperative commenced this pet holdover proceeding alleging that the respondents violated Paragraph 15 of the House Rules incorporated in the Proprietary Lease Agreement by harboring a dog in the subject premises since December 25, 2008.

A 30 Day Notice to Cure, dated and mailed February 3, 2009, directed the removal of the illegal dog no later than March 12, 2009. On March 13, 2009, a Notice of Termination of the Proprietary Lease was mailed to the respondents notifying them that their failure to comply with the Notice to Cure will result in the expiration of the lease on March 28, 2009. Thereafter, on April 6, 2009, this proceeding was commenced with the service of the Petition and Notice of Petition on the respondents by conspicuous service.

The respondents now move for summary judgment and for an award of legal fees.

I

The basis for the summary judgment motion to dismiss is that the petitioner did not commence this proceeding within three months of obtaining knowledge of the respondents' possession of their dog, thus waiving its right to enforce the "no pet" provision of the Proprietary [*2]Lease, as prescribed in §27-2009.1(b) of the Administrative Code of the City of New York ("Administrative Code"),[FN1] commonly referred to as the "Pet Law".

The respondents claim that they brought their Shih-Tzu into their apartment in July 2008; that they walked it openly and in full view of the petitioner's employees; and that their dog was a subject of discussion at meeting of the cooperative's shareholders on September 23, 2008.[FN2]

The petitioner argues that the respondents did not walk their dog openly and notoriously; that they mislead the petitioner by representing that they had been keeping the dog briefly for family members and no longer had the dog; and that a notice was sent to the respondents immediately upon discovering that the dog was living in the apartment.

The petitioner's managing agent affirms that they were aware of the dog in question in September 2008 but the respondents assured them in November 2008 that they no longer had the dog. In December 2008, the superintendent was in the subject premises and discovered the "tea-cup" size dog hidden in a closet. On January 9, 2009, the dog was again observed in the apartment and at a Board Meeting on January 17, 2009 it was determined that the respondents' statements were no longer credible and that the instant holdover proceeding should be commenced.[FN3]

Even if the Court were to accept at face value that everything asserted by the petitioner in the Affirmation and Affidavit in Opposition as true, it is constrained to conclude that the petitioner waived its right to enforce the no pet provisions of the Proprietary Lease.

In Bronx Park South I Associates v. Asceneth, NYLJ, 7/21/99, 23:2, this Court highlighted the three main components of the Pet Law waiver provision: knowledge by the landlord; harboring of the pet openly and notoriously by the tenant for three months or more; and commencement of summary proceedings by the landlord within said three month period. Paraphrasing the classic question that emanated from the Watergate investigations, this Court stated that the entire case boiled down to a single query: what did the landlord know and when did he know it.[FN4]

The petitioner avers that the respondents' dog was not walked open and notoriously where it would be observed by its employees, yet, acknowledges that said dog is the size of a "tea-cup", [*3]in contrast to the "big" Japanese Akita in Asceneth, supra. The law does not state that an animal is harbored "openly and notoriously" only when it is displayed by taking the animal outside or allowing it to roam through the building. Robinson v. City of New York , 152 Misc 2d 1007.[FN5]

The bottom line here is not whether the dog was harbored "openly and notoriously" as the petitioner insists, but whether the steps taken to commence this matter when petitioner became aware of the dog's presence in September 2008 was timely, in accordance with §27-2009.1(b) of the Administrative Code. The petitioner states that it took no action at that time because it relied on the respondents' representations that the situation was temporary. Finally, in January 2009, the petitioner concluded that the harboring of respondents' dog was permanent and decided to pursue legal action.

If calculating the three month period were to start on or after the January 23, 2009 Board vote to prosecute this matter, there would be no dispute that commencement of this proceeding would have been timely. Unfortunately for the petitioner, computation does not start at the time the petitioner decided to act but reverts back to when it initially obtained knowledge of the illegal harboring of the dog, actual or imputed.

Regardless of what may have transpired between September 2008 and January 2009, the petitioner states in its 30 Day Notice to Cure that the respondents harbored their dog "since December 25, 2008." Thus, at the very least, this, not January 23, 2009, became the undisputed base date from which the three month clock begins to run. Therefore, the Notice of Petition and Petition should have been served on or before March 24, 2009 to be timely.[FN6] See, Seward Park Housing Corp. v. Cohen, 287 AD2d 157 (AD1, 2001); Musialowski v. Perez, NYLJ, 6/26/02, 21:4.

Although the petitioner seeks to toll the three month waiver period on the ground of [*4]respondents' alleged deceit and misrepresentation, the statute does not provide for such relief.[FN7] Riverdale Park Corp. v. McDermott, NYLJ, 5/8/02, 22:1 [There is absolutely no provision in the Administrative Code for tolling the 90 day period].

II

Paragraph 28 of the Proprietary Lease allows the petitioner to seek legal fees for the institution of any action or proceeding based on the respondents' default of their lease. The petitioner demanded legal fees in the Petition. In turn, pursuant to Real Property Law §234, the respondents seek reciprocal relief for an award of legal fees in their motion.

In an off-the-record settlement conference between the parties' counsel and the Court, prior to submission of the motion for a written decision, the Court informed the petitioner's counsel that, having read through all the papers and memoranda of law, it intended to dismiss the proceeding for the reasons enunciated above in Section I.. The discussion then focused on the issue of legal fees. As the attorneys could not reach an amount that would be satisfactory to their respective clients, the Court indicated that it would set down a hearing date in its written decision.

Upon further consideration and analysis of the parties' respective positions, the Court concludes that neither side is entitled to an award for legal fees.

The only reason that this matter could not proceed to trial is that the petitioner could not cross the threshold of the three month statute of limitations created by §27-2009.1(b) to avoid a waiver of its right to evict the respondents for their failure to cure their lease violation of harboring a pet without prior permission from the landlord. Thus, while the petitioner cannot collect legal fees for their inability to successfully prosecute their claim, can the respondents, in good conscience, now argue that they are the "prevailing party" and that the "ultimate outcome" was in their favor as there was never a factual finding on the merits?

While there may have existed issues of fact as to whether the respondents acted in good faith with respect to their representations to the petitioner regarding their intentions in harboring their dog, the Court was precluded from addressing those issues. As previously noted, the "Pet Law" does not provide for any wiggle room or exceptions to its strict time frame for the commencement of holdover proceedings that are grounded in violation of the no pet clauses in a tenant's lease .Riverdale Park Corp. v. McDermott, supra.[FN8] By waiting to serve the Notice of [*5]Petition and Petition after it first became aware of the dog's existence, petitioner acted at its own peril, notwithstanding that it gave the respondents the benefit of the doubt. Perhaps they should have heeded the adage: "shoot first, ask questions later". Had petitioner taken the precautionary and affirmative steps of timely commencing this proceeding at the outset, the waiver provision of the "Pet Law" would not have come into play.

On the other hand, the respondents "success" in having this action dismissed was purely procedural and not substantive. The respondents' blatant and knowing disregard of the lease provisions which require prior written permission before harboring pets in the apartment should not, in this Court's opinion, result in a monetary windfall by awarding legal fees. In the recent decision of Virginia Jerome, as Successor Executrix of the Estate of William Stone v. George, NYLJ, 1/7/10, 34:2, the Appellate Term, 1st Dept., held that the tenant was the "prevailing party" because the Civil Court determined that he was "justifi[ed]" in refusing to execute a stabilized lease renewal tendered by the landlord. In the case at bar, the Court is hard pressed to find any "justification" for the respondents' admitted violation of the unambiguous provisions in the House Rules and /or Proprietary Lease to warrant the conclusion that they "truly prevailed" in this proceeding. Beach Haven Apts. #1, Inc. v.Cheseborough, NYLJ, 12/24/03, 30:6 (AT 2 & 11).

Therefore, while the respondents get to keep their dog, they will have to bear the costs of their own legal fees for the "privilege" of doing so, as a result of their own willful and intentional conduct in violating their Proprietary Lease.

Accordingly, the respondents' motion for summary judgment is granted to the extent that this proceeding is hereby dismissed and denied in all other respects.

This constitutes the Decision and Order of the Court.

Dated: January 12, 2010___________________________

GEORGE M. HEYMANN, JHC Footnotes

Footnote 1: §27-2009.1(b) of the Administrative Code provides:

Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following the taking of possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the multiple dwelling law, the housing maintenance or the health codes of the City of New York or any other applicable law, and the owner or his agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.

Footnote 2: No copies of any minutes of this meeting were annexed to the motion papers.

Footnote 3: No copies of any minutes of this meeting were annexed to the opposition papers.

Footnote 4: See, Heymann, Animals in the Apartment: A Landlord's Pet Peeve, NYLJ, 9/29/99, 1:2

Footnote 5: Since the NYC Pet Law refers to the harboring of all lawful "household pets", how does a tenant "openly and notoriously" harbor a cat for example? It is not unusual for many pet owners of small dogs and cats to have them house trained and keep them indoors. In such circumstances, the landlord does not acquire knowledge of the pet(s) unless making repairs in the apartment or receiving complaints from other tenants such as barking or offensive odors, etc.

In Robinson v. City of New York, supra, the dog weighed only five pounds, was paper trained and on the few occasions it went outside it was carried in a bag. As in Robinson, there does not appear to be any dispute as to when the petitioner here became aware of the dog (September 2008).

Any interpretation of the statute that mandates pet owners to publicly walk and display their pets outside of their apartments is a misreading of the phrase "openly and notoriously" as intended by the City Council.

Footnote 6: Even if the Notice of Petition and Petition and Petition were served within three months of December 25, 2008, the respondents' motion would still have merit as the Affirmation of petitioner's managing agent concedes knowledge of the dog in September 2008.

Footnote 7: In this Court's opinion, had the parties entered into a prior written agreement whereby the respondents acknowledged possession of the dog in violation of their lease and set a date certain for its removal from the subject premises, then a breach of that agreement would provide the petitioner with a valid basis to assert reliance and estoppel. A holdover proceeding brought within three months of the breach, regardless of the date of actual or imputed "knowledge" should be considered timely under such circumstances. Cf., 930 Fifth Corp. v. Miller, NYLJ, 8/14/02, 18:3 [An inducement letter signed by the tenants that they were aware of the no pet provisions of the lease was not an agreement that they would never keep a pet in their premises].

Footnote 8: The waiver provision is not applicable in situations where the harboring of a household pet causes damage to the subject premises or creates a nuisance or substantially interferes with the health, safety or welfare of other or occupants in the same or adjacent buildings. Administrative Code §27-2009.1(d)