Matter of Kovalevich v Rhea

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Matter of Kovalevich v Rhea 2013 NY Slip Op 32473(U) September 27, 2013 Supreme Court, New York County Docket Number: 402392/2010 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY t. PRESENT: PART Ifft Justice Index Number : 4023921201 O INDEX N O . - - - - - KOVALEVICH, MARCIA vs. RHEA, JOHN B. SEQUENCE NUMBER : 002 RESTORE ACTION TO CALENDAR MOTION DATE _ _ __ MOTION SEQ. NO. - - - The following papers, numbered 1 to ..l:._ , were read on this motion toltf ~ ~ ~ 1 Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - Replying Aff'.davits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ __,l=----1No(s). _____ __ ,... I No(s). - - - - - Upon the foregoing papers, it is ordered~ 1JMJ. ~4 ~: 'fliu'> ~I~ iS re.!,,~ ~ fr> -fkL ~I~ 91JfJuUAt'IJY, ()JM}.~ ~ ~VAflrJV1I (W- U)lPll1"' (jl4fd'~ f1.u_ patfl(}YI fP f'HL /.f'~ fJC1" {i¥fu fJ'Ut 0~ &W~ fJ.tt pd?frtJ.,. ()AM}. tJifflM'.SSL-5 'fiw6 ~~· c .f. 1.-.fl.. !J l&'03{J)~ C'+)j w 0 1~oft. f;; .., :::> e 0 w a:: a:: w LL UNFlLED JUDG~~~h1 county Clerk w a:: >- . :. :. ..J ~ ..J z not been entere To be served based her~on. and notice of entry cannot thorized representative must obtain e_ntry, couns~\~r ~~dgment Clerk's Desk (Room appear m person a e . · · ¢. -i:. This judgment i ,as :::> 0 LI. (/) '-' <( UJ r. ..1416~ w a: ~ (!) UJ z a:: - _. <( 0 z 0 j:.: ,,, \'! ~,···· ....,._,;o:·~..... ..... ~· ~~· . ··"" ~ ...... - tL ¢ ¢ ~ ..J ~ w Cf) ' ..J 0 LL ~ ~ a:: 0 0 :!E LL Dated: L-V"J Y';rrll~ 5 '{ J-v1[I3 - - - - - - - - - - ' J.S.C. i .. ' "' 0 1, CHECK ONE: ..................................................................... [g"'°CASE DISPOSED 0DENIED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: GRANTED 3. CH ECK IF APPROPRIATE: ................................................ SETTLE ORDER 0DONOTPOST ~·· ' '. NON-FINAL DISPOSITION ~GRANTED IN PART DorHER D SUBMIT ORDER FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 ---------------------------------------~-----------------------------x In the Matter of the Application of MARCIA KOVALEVICH, Index No. 402392/2010 (Billings, J.) Petitioner, For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules STIPULATION AND ORDER TO RESTORE CASE TO THE CALENDAR -against- JOHN B. RHEA, as Chairperson and Member of THE NEW YORK CITY HOUSING AUTHORITY, and THE NEW YORK CITY HOUSING AUTHORITY, Respondents. -----------------------------------------------------------------------x IT IS HEREBY STIPULATED AND AGREED, by and between the parties to this action, by their respective attorneys, that: Pavt t.f-4' f /JC/-/ t.3 P ~:J(J ~.tfl' 1. This proceeding is restored to the calenday 1t'\ 2. The parties entered into a stipulation of settlement in April 2012 (hereinafter "the Stipulation") that was subject to the approval of the Board of the Respondent New York City Housing Authority. 3. Pursuant to the terms,ofthe Stipulation, this proceeding may be restored to the Court's calendar by stipulation in the event the Board does not approve the Stipulation. 4. Stipulation. In March 2013, the Respondent Housing Authority's Board rejected the ¢ [* 3] 5. Facsimile signatures on this document shall be deemed sufficient, and any party may file this document. Dated: New York, N.Y. April l. 2013 JEANETTE ZELHOF, ESQ. MFY LEGAL SERVICES, INC. KELLY D. MACNEAL General Counsel New York City Housing Authority Attorneys for Petitioner 299 Broadway, 4th Floor New York, N.Y. Tel: Fax: Attorney for Respondents 250 Broadway, 9th Floor New York, N.Y. 10007 10018 (212)417-3736 (212) 417-3891 By:Wt2L Tel: (212) 776-5019 Fax: ( 12) 776-5404 ----- . By: _ __.....-r-.,..,_..-r----'------ DINAH LUCK So Ordered: Lucy Billings, J.S.C. LUCY BILLINGS J.S.C. [* 4] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 ------------------------------------x In the Matter of the Application of Index No. 402392/2010 MARCIA KOVALEVICH, DECISION and ORDER Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules - against JOHN B. RHEA, as Chairperson and member of the NEW YORK CITY HOUSING AUTHORITY, and the NEW YORK CITY HOUSING AUTHORITY, Respondents ---------------------------------------x LUCY BILLINGS, J.: According to the uncontroverted opinions of petitioner's treating psychiatrist and therapist, petitioner needs a dog living with her to provide emotional support as an accommodation to ameliorate her psychiatric disability. Although the rules of respondent New York City Housing Authority, petitioner's landlord, prohibit pit bulls unless a pit bull is a service dog, which petitioner's pit bull is not, respondents have treated petitioner's emotional support dog as the equivalent and therefore permitted petitioner to keep her pit bull Cheyenne. Inherent in the emotional support that a particular animal provides to its owner is that the particular animal, here Cheyenne, becomes the owner's companion. In a decision adopted by respondents, an Administrative Law Judge (ALJ) found, and petitioner does not dispute, that Cheyenne kovalvch.152 1 [* 5] bit another tenant in the building where petitioner resides. Instead of prohibiting petitioner from keeping a dog as a consequence of her offense and condition of her continued tenancy, as an accommodation for her psychiatric disability the ALJ prohibited the offending dog Cheyenne, but allowed petitioner to replace Cheyenne with another dog of a comparable size and breed, even another pit bull. This punishment is unnecessarily harsh, Wise v. Morales, 85 A.D.3d 571, 572 (1st Dep't 2011); Davis v. New York City Dept. of Hous. Preserv. & Dev., 58 A.D.3d 418, 419 (1st Dep't 2009); Robinson v. Martinez, 308 A.D.3d 355, 356 (1st Dep't 2003), and fails to accommodate petitioner's need for a dog that has become her companion to provide her emotional support. 42 U.S.C. § 3604(f) (3) (B); N.Y. Exec. Law§ 296(18) (2); N.Y.C. Admin. Code§ 8-107(15); Mozaffari v. New York State Div. of Human Rights, 63 A.D.3d 643, 644 (1st Dep't 2009); Taylor v. Harbour Pointe Homeowners Ass'n, 690 F.3d 44, 49 (2d Cir. 2012). See Overlook Ave. Corp. v. New York State Div. of Human Rights, 8 A.D.3d 286, 287 (2d Dep't 2004). To serve respondents' purpose of protecting other tenants, occupants, and invitees in the public housing development, it is necessary only that petitioner's dog be prevented from biting those persons to whom respondents owe a duty of reasonable protection. Cheyenne does have the history of one recent bite, but no history of any other vicious propensity such as rushing or jumping at persons. Allowing petitioner to keep Cheyenne, but requiring petitioner to keep a muzzle and kovalvch.152 2 [* 6] leash on Cheyenne whenever the dog is inside petitioner 1 s apartment with its entrance door open or outside the apartment on respondents' premises, is adequate to meet their purpose. U.S.C. § 3604(f) (9). 356. ~Robinson 42 v. Martinez, 308 A.b.3d at See Wise v. Morales 1 85 A.D.3d at 573. Respondents have not shown that this accommodation will impose undue financial or other hardship on them. N.Y.C. Admin. Code§§ 8-102(18) 1 8- 107(15(a); Phillips v. City of New York, 66 A.D.3d 170, 181-82 (1st Dep't 2009); Taylor v. Harbour Pointe Homeowners Ass'n, 690 F.3d at 49; Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 335 (2d Ci.r 1995). Consequently, the court reverses respondents' determination to the extent of allowing petitioner to keep her current dog Cheyenne as follows. C.P.L.R. 7803(3) and (4). § As conditions of petitioner 1 s continued tenancy as long as petitioner keeps her current dog 1 petitioner shall maintain a muzzle and leash on the dog whenever the dog is inside petitioner's apartment with its entrance door open or outside the apartment anywhere on the premises of her public housing development. Petitioner also shall keep Cheyenne registered and otherwise in compliance with respondents' Pet Policy. V. Answer Ex. 19. If petitioner violates any of these conditions 1 respondents may proceed to terminate her tenancy. Davis v. New York City Dept. of Hous. Preserv. & Dev., 58 A.D.3d at 419. This decision constitutes the court's order and judgment granting the petition to the extent kovalvch.152 3 [* 7] d otherwise denying set forth an proceeding. PATED: C.P.L.R. § . . d dismissing this the petl.t1on an 7806. September 27, 2013 LUCY BILLINGS, J.s.c. UNFILED JUDGMENT This judgment has not been entered by the Coonty Clerk and notice of enby cannot be served based hefoon.. To obtain entry, counsel or authorized representative must appear in person at the Judgmeat Cleck's Desk. {Roon! 1416).. /:'v~ ~ Ill . ......,. 4 kovalvch.152 . .· . ,..-_,._J.t>.·..-"""'''--,, ....~~,,~~

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