Opinion
No. L & T 81193/2014.
01-14-2015
CENTRAL HARLEM ASSOCIATES LLC, Petitioner–Landlord v. Gertrude DAVIS 210 West 146th Street–Apt 3–K New York, New York 10039, Respondent–Tenant. “John Doe” and “Jane Doe”, Respondent–Undertenants.
Eric Kahan, Esq., Sperber Denenberg & Kahan, PC, New York, NY, Attorneys for Petitioner. Gertrude Davis, New York, NY, Respondent Pro Se.
Eric Kahan, Esq., Sperber Denenberg & Kahan, PC, New York, NY, Attorneys for Petitioner.
Gertrude Davis, New York, NY, Respondent Pro Se.
SABRINA B. KRAUS, J.
BACKGROUND
The underlying summary holdover proceeding was commenced by CENTRAL HARLEM ASSOCIATES LLC (Petitioner) against GERTRUDE DAVIS (Respondent) seeking to regain possession of 210 West 146th Street–Apt 3–K, New York, New York 10039 (Subject Premises) based on the allegations that Respondent, the rent-stabilized tenant of record, has breached her lease by harboring a dog in the Subject Premises.
PROCEDURAL HISTORY
Petitioner issued a Ten Day Notice to Cure dated August 19, 2014. The Notice alleged that Respondent was violating paragraph 11 and rule 9B of her lease agreement, by keeping a dog in the Subject Premises without the written permission of Petitioner, and that Respondent held a dog party in the yard of the Subject Building on Saturday July 26, 2014. The Notice provided that Respondent was to cure the violation by September 5, 2014. The Notice was served by certified and first class mail on August 21, 2014.
Petitioner issued a notice of termination dated September 16, 2014, asserting that the dog
remained in the Subject Premises and terminating Respondent's tenancy as of September 30, 2014. The notice was served on September 16, 2014 by certified and first class mail.
The petition is dated October 13, 2014, and the proceeding was initially returnable October 27, 2014. The notice of petition and petition were served by conspicuous place delivery on October 21, 2014, with a subsequent mailing on October 22, 2014. Proof of service was filed with the Notice of Petition on October 22, 2014.
On January 14, 2015, the proceeding was assigned to Part L for trial.
Petitioner agreed on the record prior to the commencement of trial that Respondent could amend her deemed general denial to assert two affirmative defenses. Respondent asserted that she had the dog for over 90 days prior to the commencement of this proceeding, and that she should be afforded the right to keep the dog as a service dog as a reasonable accommodation for her alleged disability.
The trial commenced on the 14th and continued and concluded on January 15, 2015, and the court reserved decision.
FINDINGS OF FACT
Respondent is the tenant of record of the Subject Premises, pursuant to an original lease dated February 2, 1994 (Ex 1). Petitioner is the current landlord of the Subject Premises, pursuant to the most recent renewal dated February 1, 2013 (Ex 2). Rule 9 of Respondent's original lease agreement provides that dogs may not be kept in the Subject Premises absent the owner's written consent.
On or about September 16, 2013, Respondent got a dog, Dutchess a Yorkshire Terrier. Respondent brought Dutchess for her first doctor's visit on September 16, 2013 (Exs D & E–3). Dutchess has been openly and notoriously kept by Respondent in the Subject Premises since that date. From September through December 2013, Dutchess was not walked, but was carried in and out of the Subject Building. From January 2014 forward, Ducthess was walked in and out of the building twice a day. On Mondays through Fridays, Dutchess was typically walked by Respondent at 4:30 pm and at 7 pm.
Respondent's testimony that the building Super, Michael Lloyd, consistently saw the dog, knew the dog by name and was aware that the dog belonged to Respondent was credible and uncontested by Petitioner.
Respondent treats Dutchess like her own child. Dutchess is often dressed up and always on a leash when walked. Photos of Dutchess in the common areas of the building on various dates in all different outfits, and with different bows for her hair were admitted into evidence (Ex A).
Other witnesses credibly testified on Respondent's behalf that Dutchess was frequently seen in front of the Subject Building and coming in and out of the building, when being walked by Respondent.
There is a security guard stationed in the lobby of the building on weekends.
There are cameras in the lobby and elevator of the Subject Building.
Petitioner's sole witness at trial was Mitchell Britton (Britton), a security director for the Subject Building. Britton testified that the cameras in the public areas of the building have been in place since June 2014. There are only 43 units in the building. Britton can access the camera footage at any time on his phone and maintains a regular presence at the building since July 2014. Britton regularly reviews footage from the cameras two to three times a week. Both Britton and the Security Guards regularly patrol the common areas of the subject building.
Petitioner not only failed to call the Super as a rebuttal witness, Petitioner failed to call a single witness that had any knowledge of what took place in the building prior to June 2014.
On July 26, 2014, Respondent had a birthday party for Dutchess in the backyard of the building, which was attended by other dogs and residents of the building. There were elaborate decorations, presents and a birthday cake.
The court notes that the elaborate birthday party on July 26, 2014, was 88 days prior to the service of the notice of petition and petition and the commencement of this proceeding.
DISCUSSION
Respondent failed to offer any admissible evidence in support of her claim that Dutchess is a support animal. That affirmative defense is dismissed. Respondent did however, meet her burden of establishing that she openly and notoriously had Dutchess in the Subject Premises for well over 90 days prior to the commencement of the proceeding.
The Administrative Code of the City of New York § 27–2009.1(b) provides in pertinent part:
Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets ... and the owner or his or her 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.
In Seward Park Housing Corp v. Cohen (287 A.D.2d 157 ) the court in interpreting this provision held that it “....shows a legislative intention to presume knowledge on the part of the landlord. In this ordinance, proof of openly and notoriously' harboring of the pet in the apartment for three months or more' raises a presumption of knowledge by the owner or his managing agent of this fact (Id at 164, citations omitted ).”
Respondent established that she openly and notoriously harbored the dog from September 16, 2013 forward. This along with Respondent's unrebutted testimony of the actual knowledge of the building superintendent establishes that Petitioner had actual or constructive knowledge that Respondent had a dog for nearly one year prior to the commencement of this proceeding.
Based on the foregoing, the petition is dismissed.
This constitutes the decision and order of this court.
Parties may pick up their exhibits from the courthouse, in the clerk's office in the second floor, window 9, within thirty days of receipt of this decision. After said date the documents may be destroyed in accordance with administrative directives.
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