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Cooperatives And Landlords Must Be Cautious When Tenants Seek To Keep Service Dogs To Assist Them With Disabilities

New York courts frequently address issues relating to dogs kept by tenants, including tenant-shareholders in cooperatives. As a general matter, a landlord, including a cooperative, may enforce a lease provision that prohibits or restricts tenants from having pets. However, the New York City “pet law” provides that if a tenant “openly and notoriously” has a pet for three months without the landlord’s taking action, the landlord is then barred from demanding that the tenant remove the pet.


Another exception to the validity of lease restrictions against animals arises when a tenant asserts that he or she has a disability and needs a service animal as a reasonable accommodation. Three recent state court decisions and a pending federal lawsuit have discussed this issue.


In East River Housing Corp. v. Aaron, Index No. 87932/12, NYLJ 1202624958690 (Civ. Ct. N.Y. Co. Oct. 17, 2013), the court directed the tenant-shareholder to remove her dog within ten days or face eviction. The tenant-shareholder was found harboring the dog and the cooperative sought her eviction in Housing Court. In response, the tenant-shareholder filed a discrimination complaint with state and federal agencies. She claimed that she suffered from the disability of depression, which the dog’s presence alleviated by providing her with emotional support, so that evicting her for having the dog would constitute a failure to reasonably accommodate her disability.


The court stayed the eviction proceedings for three months at the request of the U.S. Department of Housing and Urban Development, which was investigating the tenant’s discrimination complaint. After the three months expired, the court declined to extend the stay. Reaching the merits of the case, the court found insufficient evidence that the tenant-shareholder needed the dog as a disability accommodation. Rather, it appeared that she had simply found a stray dog whose presence made her feel better and did not want to part with it. This was not a sufficient basis to overcome the lease provision prohibiting dogs. (However, the court reportedly reinstated the stay after the federal government filed a lawsuit against the cooperative, discussed below.)


The same cooperative also prevailed in state court in East River Housing Corp. v. Gilbert, Index No. 52689/12, NYLJ 1202638977520, at *1 (Civ. Ct. N.Y. Co. Dec. 30, 2013). Again, a tenant-shareholder harbored a dog until the cooperative discovered it and commenced a Housing Court proceeding. To stave off the prospect of eviction, the tenant gave the dog away, but then filed a disability discrimination complaint. As of the date of the court decision, that proceeding had not yet been resolved. Even though the tenant had already removed the dog and the disability proceeding was pending, the Housing Court enforced a proprietary lease provision under which the cooperative was entitled to recover its attorneys’ fees caused by a tenant-shareholder’s breach of the proprietary lease. The court awarded the cooperative more than $30,000 in attorneys’ fees.

These cases reflect an increasing number of instances in which tenant-shareholders, aware that proprietary lease provisions prohibiting animals must yield when applied to service animals that assist a tenant with a disability, assert that their dogs provide them with emotional support and help ameliorate the symptoms of a mental disability. Whether an individual’s mental or emotional condition is severe enough to constitute a disability, and whether an animal is genuinely providing emotional support to a person with a disability, are necessarily more subjective determinations than in the case of the disabilities historically associated with service animals, such as blindness or deafness.


The decisions suggests that state courts may look more skeptically on the claims of tenants who assert that they are disabled and need to keep a service dog only after the cooperative or landlord has become aware of the dog’s unauthorized presence. Rather, the courts may require that a tenant-shareholder seeking to retain an emotional-support service animal demonstrate the existence of a true psychiatric disability. A judge may also find it relevant whether the tenant-shareholder advised the cooperative of his or her disability and desire to have a service dog for emotional support in addressing it before or at the time he or she acquired the dog, as opposed to trying to conceal the dog’s presence and only claiming a disability after the dog’s presence is discovered.


On December 5, 2013, the United States government filed a federal lawsuit against the cooperative involved in these two cases, asserting that it discriminated against persons with disabilities in violation of the Fair Housing Act. United States v. East River Housing Corp., No. 14 Civ. 8650 (ER). The government asserts that the cooperative lacks any written or established policy or procedures for providing reasonable accommodations for individuals who require service or support animals because of a disability and seeks declaratory, injunctive, and monetary relief.


This action suggests that in the federal government’s view, tenants whose mental health symptoms improve after they have harbored dogs without seeking advance permission may qualify as having a “disability” mandating a “reasonable accommodation,” if they can document that they have a psychiatric condition whose symptoms improved following the acquisition of the dog.  Thus, a lease provision or policy prohibiting dogs or other animals should recognize that exceptions will be made for service animals assisting persons with disabilities and should set forth a procedure for requesting such an exception.  Moreover, the policy and procedure should be consistently applied.


Another recent case, Kovalevich v. Rhea, Index No. 402392/10, NYLJ 1202624958767, at *1 (Sup. Ct. N.Y. Co. Sept. 27, 2013), involved a tenant of the New York City Housing Authority, whose leases prohibit tenants from having certain breeds of dogs, including pit bulls, unless they function as service dogs. The tenant asked to keep her pit bull because it served as an emotional support animal that ameliorated the symptoms of her psychiatric disability. The Housing Authority acquiesced, treating the pit bull as the “equivalent” of a “service dog” allowed under the lease, until the pit bull bit another resident. Following that incident, the Housing Authority directed the tenant to remove the pit bull, but gave her permission to obtain another dog, including another pit bull.


The tenant challenged the Housing Authority’s decision as too harsh. The judge agreed and allowed the tenant to keep her original pit bull, so long as the tenant kept the pit bull muzzled and leashed whenever her entrance door was open or the pit bull was outside her apartment. The procedural context for this decision was the court’s authority to review decisions of the Housing Authority, as a governmental agency, and set aside a penalty that the court believed to be excessive or unfair. The same standard might not be applied in a case involving a private landlord, but in any case involving an allegedly dangerous service animal, the court would likely seek to balance the interest of the disabled person with the animal against the interests of the landlord and the other residents.