Applications of the Pet Law in tenant-landlord disputes

Real Estate Weekly, Nov 3, 1999 by Edward L. Schiff

Judge Sarah Lee E. Evans of the Civil Court of the City of New York faced the frequently litigated issue of the application of the "Pet Law" [New York City Administrative Code Section 27-2009.1(b)] in landlord/tenant disputes.

The facts in the case of 69 West 105 Corp. v Fuentes, (NYLJ August 4, 1999, Pg 23, Col 4) are: Fuentes, a prospective tenant, submitted her application to rent a rent stabilized apartment in which she represented that she owned one cat and one dog, which she intended to bring into the apartment. A lease was accordingly prepared to reflect the fact that Fuentes, as a tenant, would be occupying the apartment with one cat and one dog.

Some time after the tenant moved in, the landlord learned that she actually lived with four dogs. As a result, the landlord commenced eviction proceedings against Fuentes on the grounds that she violated a substantial obligation of the lease in keeping these four dogs. The tenant, on the other hand, defended her position and moved for summary judgment to dismiss the landlord's holdover petition, claiming that she is protected by the "Pet Law," which provides that if a lease contains a "no pet" clause, the landlord must commence eviction proceedings against a tenant who harbors a pet within three months of learning of the presence of the pet. If the eviction proceedings are not started within that period, the landlord's objection to the pet is deemed to have been waived.

Fuentes alleged that the landlord did not start the eviction action within the specified three-month period, and as result, the Pet Law protects her from eviction.

The landlord's position was that the Pet Law did not apply to Fuentes because she had intentionally misrepresented the number of dogs which would be living in the apartment when she submitted her lease application before she moved into the building. In addition, after she moved in, when the landlord specifically asked her about the dogs in her apartment, the tenant replied that the dogs did not live there but that the they belonged to a friend and that Fuentes was merely looking after them. According to the landlord, the tenant first admitted owning four dogs only after these eviction proceedings commenced.

Thus, there was a clear dispute as to whether the Pet Law applied at all to this lawsuit. Judge Evans explained that the Pet Law is a remedial statute enacted by the New York City Council to ameliorate a problem created by landlords who used the form lease "no pet" clause as a vehicle to evict long-term tenants who lived with pets for a period of years. The enactment of the Pet Law was necessary to protect pet owners from retaliatory eviction and to prevent potential hardship and dislocation of tenants. The law therefore provided that unless the landlord commenced holdover proceedings within three months of learning of the pets, the tenant was free to continue to harbor the pets and no violation of lease would take place.

Judge Evans stated that her analysis of the Pet Law and the cases involving harboring of pets led her to conclude that the Pet Law deals only with leases which contain a "no pet" provision which prohibits the harboring of pets. However, the Fuentes lease in this lawsuit does not contain such a provision. In fact, the lease specifically allows the tenant to harbor a dog and a cat. Therefore, the judge held that Fuentes should be held to her representation to the landlord in the lease application that only one dog and one cat would live in the apartment. To do otherwise, Judge Evans said, would be contrary to the intent of the legislature when it enacted the Pet Law to protect pet owners from retaliatory eviction and to safeguard the health and welfare of tenants under the circumstances outlined in the law.

Judge Evans ruled that the Pet Law does not apply to this tenant since she had been given permission to harbor pets.

Judge Evans went on to say that nonetheless, she could not award landlord summary judgment in this eviction proceeding. She stated that the landlord must prove that even if the tenant did violate the pet clause, there still was the question as to whether that violation constituted a violation of a substantial obligation of the lease. Judge Evans therefore ruled that a trial must be held at which the landlord must prove that harboring four dogs represented a violation of substantial obligation of the tenant under the lease.