ON EMOTIONAL SUPPORT ANIMALS

For NYC tenants, this case has a happy ending for the dog owner because even though she failed to prove it was a support animal, the landlord failed to abide by the 3 month limitation of Section 27-2009.1(b) of the Administrative Code and thus waived the no-pet clause.

Westchester Gardens L.P. v Vargas 2019 NY Slip Op 29058, Decided on March 5, 2019, Civil Court Of The City Of New York, Bronx ,County Weissman, J:

"In Crossroads Apartments Associates v. Kenneth LeBoo, 152 Misc 2d 830 (City Ct, City of Rochester, NY, 1991) the Court succinctly set forth the law on no pet clauses in New York, [*2]saying "New York Courts have long recognized the validity of "no-pet clauses" in leases, and harboring a pet when a lease contains a "no-pet clause" constitutes a substantial breach of the lease agreement (Knolls Cooperative Section No. II v. Cashman, 14 NY2d 579, 248 N.Y.S.2d 875, 198 N.E.2d 255; Kingsview Homes Inc. v. Jarvis, 48 AD2d 881, 369 N.Y.S.2d 201; Lincoln Cooperative Apts., Inc. v. Zaifert, 23 AD2d 796, 258 N.Y.S.2d 903; East River Housing Corp. v. Matonis, 34 AD2d 937, 312 N.Y.S.2d 461; Pollack v. J.A. Green Construction Corp., 40 AD2d 996, 338 N.Y.S.2d 486). ... Landlords may also selectively enforce the "no-pet clause" (Megalopolis Property Assoc. v. Buvron, 121 Misc 2d 662, 468 N.Y.S.2d 819; 1036 Park Corp. v. Rubin, 92 AD2d 452, 458 N.Y.S.2d 595; Trump Village Section 3, Inc. v. Moore, 84 AD2d 812, 444 N.Y.S.2d 134)." (at 832). Thus petitioner was well within its right to institute the within proceeding.

Respondent claims that the dog is necessary for her well being, and for her to enjoy the use of her apartment. In support thereof she presented a letter from Urban Health Plan, Inc., signed by Claire Delgado, LCSW, stating respondent was under their care since May 16, 2018. The letter is dated May 31, 2018, indicates respondent suffered from "adjustment disorder with anxiety and unresolved grief", and "recommended that respondent be allowed to reside with her pet (1 dog) which she requires for emotional support. Please fulfill the patient's request in order to avoid exacerbation of her medical conditions." Respondent did not call any professional witness from Urban Health Plan, Inc., or anywhere else, to testify in her behalf. Thus the Court has only respondent's testimony and Ms. Delgado's letter to support her claim that the dog is an emotional support animal. She is asking this Court to find that petitioner must make a reasonable accommodation for her in that she needs the dog in order for her to enjoy the use of her apartment.

A reasonable accommodation may be required by the State's Human Rights Law if respondent can establish a need. The burden is on the party requesting the reasonable accommodation. One Overlook Avenue Corp. v. New York State Division of Human Rights, 8 AD3d 286 (ad2d, 2004), "To show that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, the complainant must demonstrate that her son was disabled, that he was otherwise qualified for the tenancy, that because of his disability it was necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations can be made to allow him to keep the dog. Here, the complainant failed to demonstrate through either medical or psychological expert testimony or evidence that her son required a dog in order for him to use and enjoy the apartment. Accordingly, the respondent's determination was not supported by substantial evidence." (at 287, citations omitted). See also 105 Northgate Cooperative, et al. v. Donaldson, 54 AD3d 414 (AD2d Dept., 2008), and Lindsay Park Housing Corp., et al. v. New York State Division of Human Rights, et al., 56 AD3d 477 (AD2d Dept, 2008) "The Human Rights Law provides that it is an unlawful discriminatory practice to 'refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling' (Executive Law § 296[18][2] ). To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment, and the building [*3]owner refuses to make such an accommodation. ..." (at 478, citations omitted).

The Court finds that respondent has failed to carry the burden of establishing that the dog is an emotional support animal necessary for her to enjoy the use of her apartment. Part of this determination is the fact that respondent lied when she, allegedly, notified petitioner that the dog was in her apartment by letter dated November 10, 2013 (respondent's exhibit 1 admitted into evidence without objection) only every other weekend while her sister, who traveled for work every other weekend, was traveling, claiming the dog was the sisters dog and she was only dog-sitting. She also claimed in her testimony the dog was actually with her since 2012, when she lived in another apartment in the same building...."