Opinion
05Cv.182.
Decided September 14, 2005.
This is a proceeding brought by Harmir Realy Co. ("Landlord") to enforce a provision of its lease with respondent Jesse Zagarella ("Tenant") precluding Tenant from harboring a dog in the subject apartment. The facts are largely undisputed. On September 28, 2001, Landlord and Tenant entered into a written lease ("the lease") covering and apartment in a multifamily building situated in the Village of Hastings on Hudson. The lease contained a clear prohibition against the harboring of pets, particularly dogs. Tenant signed the lease and, in addition, initialed a space under a bold stamp indicating "NO PETS." Landlord's Brief, dated June 7, 2005, Exhibit 1. In early January, 2005, Tenant acquired a dog and brought it to live in his apartment, contrary to the written prohibition in the lease. Tenant's harboring of the dog has been "open and notorious" from the beginning, and it appears that the Landlord's representative has been aware of the dog's presence from early January. On February 10, 2005, a representative of Landlord wrote a letter to Tenant demanding that Tenant "remedy this situation . . . so that no legal action will be required." Landlord's Reply Brief, dated August 29, 2005, Exhibit 1. Tenant responded to that letter on February 22, 2005, in essence refusing to comply with the Landlord's demand that the dog be removed from the apartment and explaining his position. On March 8, 2005, Landlord served Tenant with a 10 Day Notice to Cure. On April 11, 2005, Landlord served Tenant with a Notice of Termination. On May 11, 2005, Landlord served the Tenant with the Petition and Notice of Petition that commenced this proceeding.
The affidavit of service accompanying them indicates that the Petition and Notice of Petition were served on Tenant by substituted service rather than personal service, meaning that service was actually not complete until May 17, 2005 when the proof of service was filed with the Court. RPAPL § 735 (2) (b). The difference between May 11 and May 17, however, does not affect the outcome of this case, so the earlier date, when a copy of the Petition and Notice of Petition were left at the premises with a person of suitable age and discretion, will be used for discussion.
The only issue remaining in this case involves the effect of § 695.11 of the Administrative Code of Westchester County on Landlord's right to enforce the pet prohibition in the lease. Section 695.11 provides in relevant part as follows:
In his June 8, 20005 written submission to the Court, Tenant raised an additional defense of common law waiver and estoppel with respect to the enforcement of the pet prohibition in his lease on the ground that other tenants in the same building complex have pets and Landlord has allegedly not enforced the provision against them. The Court ruled, as a matter of law, that the enforcement or non-enforcement of the individual provisions of other the separate leases did not provide a basis for Tenant to argue that the provision in his lease had been waived. In fact, in view of the impact of § 695.11 of the Administrative Code of Westchester County, it may well that Landlord has been legally precluded from enforcing the "no pet" provision of other leases. To rule that such preclusion permanently prevents Landlord from ever enforcing any "no pet" provision in any lease in the subject building complex would give § 695.11 much more far reaching impact than could possibly have been intended by the County Legislature.
1. Where a tenant in a multiple dwelling, openly and notoriously for a period of three (3) months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the Health Code of Westchester County or any other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner and/or agent fails within this three-month period to commence a summary proceeding or action to enforce the lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.
The issue, then, is whether Landlord "commenced" this proceeding within the three month period required by § 695.11 [1], as it contends, or failed timely to commence the proceeding, as Tenant contends, thereby waiving its right to enforce the "no pet" clause of the lease.
The answer to that question would appear to be simple. RPAPL § 731 states that "The special proceeding prescribed in this article shall be commenced by petition and a notice of petition." It therefore seems apparent that the commencement of this action was untimely, since the Petition and Notice of Petition were served on May 11, 2005, concededly more than three months after Landlord became aware of Tenant's dog. Indeed, May 11 is more than three months after Landlord's February 10, 2005 letter advising Tenant that "[w]e have been informed that you are harboring a dog in your apartment." Landlord's Reply Brief Exhibit 1.
Landlord argues, however, that for purposes of § 695.11 of the Administrative Code of Westchester County, a summary proceeding is actually commenced by the earlier required preliminary steps of serving the tenant with 10 Notice to Cure Default of Rent Stabilized Tenancy, followed by a Notice of Termination. Despite the apparent contradiction in that position, it appears to be the interpretation of a parallel provision of the New York City Administrative Code adopted by Appellate Term for the 2nd and 11th Judicial Districts within the Second Department. See Amalgamated Warbasse House, Inc. v. Blekher, NYLJ 11/1/91, 25:3 (App. Term 2nd 11th Judicial Districts); Lebron Enterprises, Inc. v. Capasso, NYLJ 12/10/87, 16:2 (App. Term 2nd 11th Judicial Districts).
The opposite conclusion was reached in a more recent decision of the Appellate Term for the First Judicial Department, which covers the 1st and 12th Judicial Districts. In applying the same parallel provision of the New York City Administrative Code, that Court held as follows:
A summary proceeding is not "commenced" until the notice of petition and petition are served. . . . When service of the notice of petition and petition is made other than by personal delivery to respondent, it is not complete until the filing of proof of service (RPAPL 735[2][b]. . . . In this case, neither the requisite mailing nor the filing was accomplished by [the required date]. Accordingly the proceeding was not timely commenced.
Park Holdings Co. v. Grossman, NYLJ 4/2/93, 25:2 (App. Term 1st Dep't) (citations omitted).
Landlord argues that because this Court sits in the same Judicial Department as the Appellate Term for the 2nd and 11th Judicial Districts, this Court is bound to follow its decisions and not that of the Appellate Term for the First Judicial Department. This Court, however, sits in the 9th Judicial District, which has a separate Appellate Term than the 2nd and 11th Judicial Districts. Thus, the decisions of the Appellate Term for the 2nd and 11th Districts are no more binding authority than the decision of the Appellate Term for the First Judicial Department. No controlling decision of the Appellate Term for the 9th and 10th Judicial Districts has been brought to the Court's attention, and the Court is not aware of any. Therefore, the decisions of other Appellate Terms must be considered for their persuasive authority.
The Court finds the reasoning of the Appellate Term for the First Department in Park Holding Corp. more persuasive in that it is more consistent with the statutory language of both the RPAPL and § 695.11. To hold that a proceeding is "commenced" by the sending of notices that are clearly preliminary steps to the commencement of a proceeding is inconsistent with both the specific language of the applicable law and its spirit. Indeed, the very Notice of Termination sent by the Landlord in this case makes it clear that no proceeding had been commenced by its service. It informs the Tenant of the following: "UNLESS YOU REMOVE FROM THE SAID PREMISES ON APRIL 30, 2005, THE DAY YOUR TENANCY IS TERMINATED, THE LANDLORD WILL COMMENCE SUMMARY PROCEEDINGS OF EVICTION . . . "Landlord's Reply Brief dated August 29, 2005, Exhibit 3. Thus, Landlord specifically acknowledged that it had not yet commenced a summary proceeding and should not be heard to protest to the contrary.
As a result of the above determination, this proceeding is dismissed.