The attack occurred on Sept. 23, 2001. Spencer, a pit bull terrier with a knack for getting out of confined spaces, finished chewing through the screen door of his Park Slope owner's co-op. In a flash, the dog was outside on the co-op patio, sizing up the competition. It was Sunny, a nine-year-old Shetland sheep dog, sitting with his owner. Spencer lunged, and, for several hair-raising minutes, it took the combined efforts of Sunny's owner and several other shareholders to extricate the sheep dog from the pit bull's jaws. When it was over, there were nearly a dozen stitches in Sunny's neck and a $1,100 vet bill. Enough was enough, the 12th Street co-op board decided. It was time for Spencer to go.
Spencer's owner fought the eviction notice, but this past November, a little more than a year after the attack and only moments before the co-op was ready to walk into the court, the pit bull terrier's owner conceded he had violated the co-op's bylaws by failing to keep his pet restrained. He moved Spencer out of the building.
"This situation was unfortunate, because people didn't take care of their responsibility of having a dog. And that's what it comes down to. It's nothing other than that," observes board member Michael Zackman, who says the co-op has always welcomed pets. "Just for the safety of everyone, the board had to act. Also, we are liable if it happened again, and we didn't act." Zackman says that the board relied on its counsel, Kenneth Beal, a partner at Beal & Beal, to handle the issue.
Beal says it was a matter of liability. "If this dog ever attacked again, then the board would be legally and fiscally on the hook." The board could be held responsible for failing to enforce its own policy that dogs be leashed and with owners at all times when they are out of their apartments.
New York City has a liberal pet ownership policy dating back to the 1980s, when the city council moved to stop landlords from evicting long-time tenants with pets as a way to clear out units and raise apartment rents. Nonetheless, co-op boards are being challenged by shareholders for allowing dangerous dogs to live in residential buildings.
What's worse, for boards, "the courts are beginning to acknowledge that it doesn't require a bite to make the landlord liable," observes attorney James Samson, a partner at Bangser Klein Rocca & Blum. All it takes is the landlord having "notice of the vicious tendencies of the dog. If a dog barks, growls, and jumps, that is notice. These cases are being fought on a case-by-case basis," and damages to the victims are accruing, "because juries and judges are feeling sorry for people who get hurt. One free bite doesn't really exist anymore. You can't wait if you know if the dog has vicious propensities. If the dog barks and growls and jumps, that is notice."
The plaintiffs in such situations are relying on the 1991 addition to the city's administrative code, known as the "Dangerous Dog Regulation and Protection Law." At minimum, the law prohibits maintaining a dangerous dog - defined as a dog that menaces, unprovoked, a human or another dog - without muzzling it and containing it. And while courts liberally interpret the pet law that allows for dogs in "no pet" buildings, "all bets are off when you are dealing with a nuisance dog," warns attorney Robert Tierman, a partner at Litwin & Tierman.
"If a dog is causing a nuisance, a landlord or a co-op board can take action at any time against a shareholder," Tierman notes. "There are hundreds of personal injury cases each year resulting from dog bites, and if a building knew that somebody had a dangerous dog, and that dog bit someone in the building or acted aggressively and the board didn't act, there is a good chance the court would find for the plaintiff."
The dangerous dog law is being used more and more frequently by landlords to evict dogs from buildings, he adds. Boards can apply to the health commissioner on a ruling on whether a dog is dangerous. If the commissioner finds the dog to be so, the co-op can start proceedings to evict the dog.
"If we didn't do anything, and didn't take any measure to have the dog permanently removed, from what I was able to research, then we would be held accountable," says Beal of the 12th Street co-op in Park Slope. "The dog was loose, in violation of the house rule" and "it was our position that the owners were not maintaining control over the animal by keeping it in the apartment."
The co-op's case against Spencer was buttressed by the evidence of, in Beal's words, "a good five witnesses" ready to testify to the dog's proclivity for menacing behavior. In addition, this past April, six months after the attack on the sheep dog, the pit bull terrier was spotted loose again in the Park Slope co-op, with no owner or leash in sight.
Zackman says that he tries to live as peaceably as possible with his fellow shareholders, and that from time to time he has to remind other dog-owners in the building of the rules that dogs must be leashed. "No one likes to play police," the board member points out. Yes, people have complained about Spencer being off the leash, before the attack on Sunny, Zackman admits, but "a dog like that, when it gets off the leash, it looks intimidating, not like a cutesy little dog running around on the patio. I've been here 20 years and, fortunately, there has never been a problem until the problem we had with Spencer. And the dog isn't here anymore."