A co-op board’s determination of an apartment owner’s request to keep a support pet was front page news in November 2012. In Woodbury Gardens, the consequences included a $58,700 settlement payment to the estate of the owner (who died shortly after the board denied her a waiver of the building’s no-pet rule), the required adoption by the board of a formal/written pet policy and three years of oversight by the U.S. Attorney’s office of the administration of that policy.1 Also in November, a condominium board sued apartment owners to compel removal of a dog which the owners claimed was required in order to assist the wife’s father who became deaf after brain tumor surgery. The board alleged that the owners never provided documentation demonstrating that the father required the dog.2

As these recent cases illustrate, boards are uncertain, and with good reason, regarding their legal obligations when owners request exemptions from a building’s “no-pet” rule based on the alleged need for a pet for emotional support. Courts allow condominium bylaws and co-op proprietary leases and house rules to restrict the presence of pets.3 However, this authority is limited by federal, state and city laws that require exemptions for persons who require a pet for the use and enjoyment of an apartment. While boards apparently have little difficulty granting waivers to blind individuals who require seeing-eye service dogs, boards do not always know how to respond to owners who claim to have impairments or conditions that require a pet in order to enjoy the use of their apartment. Further, courts and administrative tribunals have given conflicting messages as to what an owner must establish in order to keep a support pet.

This column updates our 2007 column dealing with support pets,4 and addresses the New York City Pet Waiver Law (Pet Law),5 board obligations when presented with a pet waiver request for a support pet, and permitted board inquiry into such requests, so that those entitled to support pets may keep them and those improperly requesting them may not.

Pet Waiver Law

No-pet provisions in co-ops are subject to the Pet Law. If a board fails to commence an action to enforce the no-pet provision within three months of acquiring knowledge of the “open and notorious” harboring of a pet in an apartment, the co-op waives the right to enforce the provision and the owner may keep the pet. Case law suggests a low bar for establishing “open and notorious” knowledge. In 2009, the Appellate Division, First Department, held6 that a litter box in a bathroom when a part-time building contractor made a repair in the apartment was “open and notorious” notice of cat ownership—although no cat was observed and the board was not informed of the litter box. In 2001,7 the First Department held that where long-time employees of a co-op’s independent contractor observed a dog in a no-pet building, the board had “knowledge” of the dog and waived the right to remove it. However, a board always retains the right to remove a pet if it is or becomes a nuisance.8

Applicability of the Pet Law in condominium buildings depends on their location. In the First Department (Manhattan and The Bronx), the Appellate Division has held that the Pet Law is only applicable to co-ops because the Pet Law is based on a landlord/tenant relationship, one that does not exist in condominiums.9 However, the Second Department (Richmond, Kings, Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland and Putnam Counties) holds that the Pet Law is also applicable to condominiums.10

Reasonable Accommodations

A pet ban is limited by the federal Fair Housing Act (FHA), the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL) which apply to co-op and condominium buildings and require that reasonable accommodations be made for disabled occupants. A person seeking an accommodation must establish that he or she has a disability which makes a pet necessary in order to use and enjoy the apartment, is otherwise qualified for tenancy, and reasonable accommodations can be made to allow the person to keep the pet.11 The FHA considers a person disabled if a mental or physical impairment “substantially limits a life activity.” The NYSHRL has a broader definition, including any physical or mental impairment which is demonstrable by medically accepted techniques.12 Under the NYCHRL,13 the definition of disability is consistent with the NYSHRL. However, as discussed later in this column, entitlement to accommodations may be more liberally construed then under the FHA or NYSHRL.

FHA—Recent Developments

In the Court Order and Settlement in Woodbury Gardens, a co-op apartment owner in a no-pet building who had anxiety and respiratory problems sought to keep a comfort pet after receiving board notice to remove the pet. Two months later, the owner submitted a note from a clinical social worker stating that the owner suffered from depression and the dog “raises her spirits.” A month later, three physicians submitted letters stating that the dog helped the owner’s respiratory issues and the dog was necessary for her health and well-being. The board proceeded with its eviction notice and the owner removed the dog from the apartment.

The Woodbury Gardens co-op was sued by the federal government for violating the FHA by failing to make reasonable accommodations to afford the owner the use and enjoyment of the apartment. In settling the case, the co-op agreed to adopt procedures for addressing pet waiver requests which provide insight into compliance with the FHA. The Court Order and Settlement established that the credentials required to support a pet waiver in the Woodbury Gardens co-op are those of a “licensed healthcare professional,” meaning:

______________________A person licensed by a public regulatory authority to provide medical care, therapy, or counseling to persons with mental or emotional disabilities, including, but not limited to, doctors, psychiatrists, psychologists, or social workers.14

This settlement expands the pool of professionals qualified to give a “prescription” for a support animal.

The settlement also required adoption of a written policy for addressing disability-based requests for pet waivers, including: Board determinations must be made within 30 days of receipt of a letter from a licensed health care professional stating that the owner has a disability, needs a support pet because of the disability and establishes a reasonable relationship between the disability and the support pet; the board cannot condition approval of a pet accommodation on the pet’s training or certifications; and the board must respond to complaints from building occupants that the pet has damaged property or harmed an occupant by writing to the complainant that the pet belongs to a disabled person, is protected by law and invite the complainant to meet with the board to achieve an amicable resolution.

NYSHRL—Developments

Under the NYSHRL, an owner must present medical evidence of disability and that a pet is necessary for the owner to use and enjoy the apartment. In Contello Tower II Corp. v. NYC Dept. of HPD,15 the Supreme Court, Kings County, found that no evidence supported that a dog was necessary for the use and enjoyment of the premises. The occupant’s therapist’s recommendation, that a dog could alleviate the alleged disability, did not support a claim for a pet waiver.

Similarly, in Matter of Kennedy St. Quad v. Nathanson,16 co-op apartment owners allegedly suffering from chronic depression argued that a pet’s therapeutic effects would assist in treating their condition. The Second Department held that evidence from a physician and psychologist that the dog helped ameliorate the owners’ depression was insufficient to show that the owners required the dog in order to use and enjoy the apartment.

Where evidence conflicts as to either a disability or the requirement of a pet, a trial is required. In 2012, in New York State Div. Human Rights v. 111 East 88th Partners,17 the occupant claimed to have dysthymia (mild depression) and that without a dog, he was deprived of use and enjoyment of the apartment. Contradictory medical opinions from the owner’s physicians and the landlord’s expert raised a triable issue of fact as to disability.

Boards are permitted to request additional information before acting on a pet waiver request. In Matter of 105 Northgate Coop. v. Donaldson,18 a New York State Division of Human Rights (SDHR) determination of discrimination by a co-op was reversed by the Second Department. There, the owner submitted her internist’s note stating that a pet would be beneficial for her depression. In response, the board advised her that only cats, not dogs, were permitted in the building.

The owner then sent a second note from her internist, stating that a dog would be “beneficial and necessary” to treatment of her disability. The board replied by asking for more information supporting her need for a dog. Instead of responding, the owner filed a complaint with the SDHR. The court held that the SDHR determination in favor of the owner was not supported by expert testimony and the board’s request for further information before making a decision was not a denial of her accommodation request.

NYCHRL—Developments

A January 2012 decision by the New York City Human Rights Commission (NYCHRC) determined that a tenant in a Co-op City building could keep a dog in a no-pet building, holding that the NYCHRL is to be interpreted more broadly than the FHA and NYSHRL and that under the NYCHRL, the legal standard was whether the pet “enables” a person with a disability to enjoy an apartment, without regard to whether the pet is “necessary” in order for the occupant to do so.19 The occupant was awarded damages of $50,000 for mental anguish, and a civil penalty of $40,000 was assessed against the owner/manager of the building.

Service vs. Support

The classic example of a service animal is a seeing-eye dog, which has extensive training in assisting the blind. State, federal and city laws require that service animals be allowed on public transportation and in businesses and housing.

Support pets are generally untrained. While support pets are not an accommodation available under the federal Americans with Disabilities Act, which requires that a service animal be “trained” to perform tasks for persons with a disability,20 under the FHA courts have held that support animals can constitute a reasonable accommodation for an established disability.21

Guidelines for Boards

When a board or its agent becomes aware that an occupant in a no-pet building is harboring a pet, the clock starts on the three-month period under the Pet Waiver Law within which an action to remove the pet must be brought or the right to do so is waived. However, most co-op and condominium buildings have notice requirements and cure periods before a proceeding may be brought against an owner, making it difficult for boards to commence suit within the three-month period. Therefore, it is imperative that boards of buildings to which the Pet Law applies require their agents, employees and even independent contractors to be vigilant in reporting the presence of pets.

With regard to requests for support animals in no-pet buildings, the best evidence of disability and need for a pet in order to allow an owner to use and enjoy the apartment should come from the owner’s treating physician. However, prudent boards should give consideration to pet waiver requests supported by letters from all licensed health care professionals, as well as establishing expeditious time frames for responding to requests, as detailed in the Woodbury Gardens Court Order and Settlement.

Boards may not consider the absence of a dog’s training or certification in considering a waiver request. However, if the owner’s support letter(s) are not clear or conclusive, a board may lawfully request further information from the owner. If insufficient evidence is ultimately provided, the board may deny the request. However, before doing so, a board may wish to consult with counsel as to the sufficiency of the evidence and whether further inquiry is warranted. Further, prudent boards may wish to consider how strictly to require a showing of the “necessity” of the pet by an owner requesting a pet waiver and to consult with counsel regarding the same. Denial of a pet waiver request without consideration of the issues discussed in these guidelines may be found to be a discriminatory practice with costly consequences.

Richard Siegler is of counsel to Stroock & Stroock & Lavan and is an adjunct professor at New York Law School. Eva Talel is a partner at Stroock and an adjunct professor at Cardozo Law School. Max Polsky, a law student, and Margaret Jones, a research librarian at Stroock, assisted in the preparation of this column. Stroock is counsel to the Real Estate Board of New York.

Endnotes:

1. Brendan Pierson, “Co-op Settles Lawsuit Over Refusal to Allow Companion Animal,” NYLJ, Nov. 13, 2012, at 1, col. 5; United States Attorney Announces Settlement of Fair Housing Act Case Against Co-Op Which Denied Woman her Comfort Animal (Press release, U.S. Attorney’s Office, E.D.N.Y.) Nov. 9, 2012, available at: http://www.justice.gov/usao/nye/pr/2012/2012nov09.html.

2. Kerry Burke and Hill Hutchinson, “Owners of Doberman in Battery Park City say condo board is barking up wrong tree,” New York Daily News, Nov. 28, 2012, available at: http://nydailynews.com/new-york/doberman-owners-cond-board-barking-wrong-tree-article-1.1209916; see also Summons and Complaint in Board of Managers of Cove Club Condominium v. Jacobson, Index no. 104309/2012 (Sup. Ct. N.Y. Co. Nov. 17, 2012).

3. Trump Vil. Section 3 v. Sinrod, 219 A.D.2d 590 (2d Dept. 1995).

4. See, generally, Richard Siegler and Eva Talel: “Restraints on Boards’ Pet Policies: Emotional Support Pets,” NYLJ, Jan. 3, 2007, at 3, col. 1, and “Board Rules and Laws to Deal With the Unruly Pet,” NYLJ, July 7, 2010, at 3, col. 1.

5. NYC Admin. Code §27-2009.1.

6. 184 W. 10th St. Corp. v Marvits, 59 A.D.3d 287 (1st Dept. 2009).

7. Seward Park Hous. Corp. v. Cohen, 287 A.D.2d 157 (1st Dept. 2001).

8. Park Holding Co. v. Emicke, 167 Misc.2d 162 (Civ. Ct. N.Y. Co. 1995), rev’d, 168 Misc.2d 133 (App. Term 1st Dept. 1996).

9. Board of Managers of the Parkchester North Condominium v. Quiles, 234 A.D.2d 130 (1st Dept. 1996).

10. Board of Managers v. Lamontanero, 206 A.D.2d 340 (2d Dept. 1994). See also Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996 (2nd Dept. 2010) (holding that the Westchester County Pet Law does not apply to condominiums).

11. One Overlook Ave. Corp. v. N.Y. State Div. of Human Rights, 8 A.D.3d 286 (2d Dept. 2004), lv. to appeal denied, 5 N.Y. 3d 714 (2005).

12. 42 U.S.C. §3602(h); N.Y. Exec. Law §292(21).

13. NYC Admin. Code 8-107.

14. Settlement Agreement and Order at 7, United States v. Woodbury Gardens Redevelopment Company Owners Corp., 12-cv-00711 (E.D.N.Y. Nov. 10, 2012).

15. NYLJ, Nov. 14, 2004 at 9, col. 1 (Sup. Ct. Kings Co.).

16. 62 A.D.3d 879 (2d Dept. 2009), lv. to appeal denied, 13 N.Y.3d (2009).

17. 2012 N.Y. Misc. LEXIS 2647, 24, 2012 NY Slip Op 31475U (N.Y. Sup. Ct. June 1, 2012).

18. 54 A.D.3d 414 (2d Dept. 2008).

19. Comm’n on Human Rights ex rel L.D. v. Riverbay Corp, OATH Index No. 1300/11 (Aug. 26, 2011), available at: http://archive.citylaw.org/oath/11_Cases/11-1300.pdf. The NYSHRC relied on the court’s interpretation in Philips v. City of New York, 66 A.D.3d 170 (1st Dept. 2009).

20. 28 C.F.R §36.104

21. Overlook Mut. Homes v. Spencer, 666 F.Supp.2d 850, 859 (S.D. Ohio 2009).