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Service Pets and “No Pet” Policies - Levine & Montana

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Lewis Montana, Principal Attorney Levine & Montana. What qualifies a shareholder to keep a service animal when a co-op has a no-dogs policy?

BACKSTORY A cooperative apartment corporation that we represent in Westchester has a house rule that expressly prohibits dogs. One of the shareholders was admittedly keeping a dog. The board alleged that such conduct was a material breach and default of the stipulations and provisions of the proprietary lease. The board served a written notice and demand to cure. The dog was not removed. The board then served upon the shareholder a written notice of termination of the proprietary lease. Time passed and the board contended that by reason of the provisions of the proprietary lease and house rules, and by reason of the notices served, the proprietary lease and the term expired.

The board then began a court proceeding, seeking possession of the apartment as well as its reasonable attorneys’ fees and disbursements. The tenant failed to respond to the petition in a timely manner, but did appear in court, offering no justifiable reason for failing to answer the petition.

The court deemed the allegations of the petition to be admitted. Westchester County has a law that will basically deem a no-pet lease provision waived if the owner or agent has knowledge of the pet and fails to bring a summary proceeding or action to enforce the provision within three months. However, the shareholder did not raise that law as a defense but instead argued that he has a disability, entitling him to keep the dog. The court has set a trial date.

COMMENT The Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act (ADA) protect the right of people with disabilities to keep emotional support animals, even if a landlord’s policy prohibits pets. Under the New York Human Rights Law, it is an unlawful discriminatory practice for the owner, such as a cooperative corporation, to refuse to make reasonable accommodations in rules, policies, practices, or services, when an accommodation may be necessary to afford the person with a disability an equal opportunity to use and enjoy a dwelling.

To qualify as a “disability” under the Human Rights Law, the condition may manifest itself in one of two ways: (1) by preventing the exercise of a normal bodily function or (2) by being demonstrable by medically accepted clinical or laboratory diagnostic techniques. The shareholder claims that he has ulcerative colitis. It is an inflammatory bowel disease that causes some or all of the colon to become inflamed. Small sores or ulcers may appear on the surface of the intestine. The shareholder intends to submit a letter from a physician stating that the dog has provided great comfort and a reduction in the shareholder’s stress level. The physician also is to state that the prospect of not having a dog is causing the shareholder considerable stress and a worsening of his gastrointestinal symptoms.

The board contends that the shareholder must better substantiate his disability so as to require the corporation to provide a reasonable accommodation of its no-dog rule. The board concedes that someone with ulcerative colitis may qualify as a person with a disability. However, the board contends that ulcerative colitis is not, by itself, a condition that requires a finding that a disability exists. Furthermore, the board asserts that the shareholder must establish that the dog is a support animal that is necessary in order for him to use and enjoy the residence. In essence, he must demonstrate a relationship between his ability to function and the companionship of the animal. At trial the board will attempt to prove, among other things, that the shareholder does not have a disability, has a full-time job, and regularly attends a fitness club. The board asserts that there must be objective medical findings to support the proposition that a separation of the shareholder from his dog will adversely affect his health. Boards need to be careful when confronted with a claimed disability, in particular when it involves a pet. If someone claims the need of a service animal, such as any guide dog, signal dog, or other animal individually trained to provide assistance to a person with a disability, then he or she is likely covered under the ADA. A service animal is not a “pet” under the law. An “assistance animal” is more broadly defined under the FHA. A board may have a difficult time establishing that an emotional support animal is an undue burden on the cooperative.

From the Desk of LM:

I handled a pro bono case for my church. The church had a contract with a vendor [who] did not pay the church. We had to sue in state supreme court. A settlement was reached with a periodic payment provision. The vendor defaulted on that agreement as well. We had to bring them back to court. The whole case took nearly a year and a half. Finally, the church received what it was entitled to. It was satisfying because I dislike businesses or others taking advantage of religious corporations or other not-for-profit-type entities.

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