ILLEGAL PET, P.2

The court stated that if the 90-day calculation were to start on or after the January 23, 2009, board vote to prosecute the shareholders, there would have been no dispute that the action was begun in a timely manner. However, computation did not start from the time the co-op decided to act. The time period had to revert to the date on which the co-op initially obtained knowledge that the illegal dog was present.

Even if the court had given the co-op every benefit, the co-op's 30-day notice to cure stated that the dog was present since December 25, 2008. Thus, even if one argued that December 25 was the date from which to measure the 90 days, the co-op's action on April 6, 2009, was started too late.

It is imperative that the co-op

act very quickly and

give the shareholder no respite.

Importantly, the court explained it couldn't waive the 90-day period even in light of the Portnovs' alleged deceit and misrepresentation, saying the pet law contains no provisions that would have allowed such a waiver. The court noted that the pet law "does not provide for any wiggle room or exceptions to the strict time frame for the commencement of holdover proceedings that are grounded in violation of no pet clauses" in leases.

The action did not proceed to trial because the co-op could not establish that the three-month statute of limitations created by the pet law was inapplicable or could be waived.

The court did announce that the Portnovs' success was purely procedural and not substantive. Had the co-op served notices immediately after it became aware of the dog's existence, the waiver provisions of the pet law would not have come into play. Instead, the co-op gave its shareholders the benefit of the doubt.

Comment: This case reminds us that the pet law, which is applicable to cooperatives (and to condominiums under certain circumstances), must be strictly followed, so that any action to evict the owner of a pet being harbored without permission has to be started within 90 days of the date on which the co-op or its employees or agents first knew about the pet.

In a co-op, it is imperative that the co-op act very quickly and give the shareholder no respite. This is because, before starting an action to evict a shareholder for a violation of the proprietary lease, most leases require that the co-op first serve a 30-day notice to cure and a 5-day notice of termination. When one adds in time allowances for service, correspondence, discussions, negotiations, and the like, the 90-day deadline is a very short time period.

We recommend that, even where a shareholder claims the pet is temporary, these notices be promptly served. The co-op can always decide to withdraw them at a later date.

Richard Siegler is a partner in the New York City law firm of Stroock & Stroock & Lavan.  Dale J. Degenshein is a special counsel for that firm.

Illustration by  Liza Donnelly

Adapted from Habitat June 2010. Join our Archive >>