Keys to enforcing the no-pet clause of a residential lease.

Most landlords in New York City are aware that a landlord waives the right to enforce a "no pet" clause in the lease if the landlord fails to commence summary proceedings within three months after the landlord has knowledge of a pet being harbored in an apartment. The issue of what constitutes "knowledge" on the part of the landlord was raised it the case of Seward Park Housing Corp. v. Cohen, 705 N.Y.S.2d, 875, where the Appellate Term of the Supreme Court, New York County ruled on this issue.

Carol Cohen, a tenant/shareholder in the Seward Park Development (a cooperative), containing more than 1700 apartments, brought a dog into her apartment on September 13, 1996. She began walking the dog in and out of the building on a regular basis before the eyes of many tenants, as well as the security personnel and members of the large maintenance staff employed by the landlord. In fact, members of the staff occasionally stopped the dog and petted it

Seward Park is managed by an agent who does not live at the development, although there is an office in the development for the maintenance department. The agent had been at the development only infrequently and did not speak of the existence of dogs to either the security guards or maintenance workers. The management agent did not make it a practice to visit the grounds to see who has dogs.

The management agent was not aware of the dog until November, 1996, when he was notified by a member of the board of directors of Seward Park. Immediately thereafter, a notice to cure was served on Cohen followed [by a notice of termination. The commencement of the holdover proceeding took place on February 10, 1997, about four months after the dog was brought into the development.

In the lawsuit, Carol Cohen claimed that inasmuch as the landlord failed to commence the holdover proceedings within three months after it had knowledge of the presence of the dog, the landlord must be deemed to have waived the "no pet" provisions of the lease. The landlord's knowledge was derived from the knowledge of the security guards and maintenance staff who encountered the dog.

Civil court judge Howard Malatzky agreed with the tenant/shareholder and dismissed the holdover petition, ruling that the dog was maintained, in an open and notorious manner and that the landlord had knowledge of the presence of the dog since its employees were aware of the dog from the time the dog was brought into the development.

The landlord then appealed to the Appellate Term which, by a two-to-one decision, reversed Judge Malatzky and held that the mere fact that the security guards and maintenance staff knew of the existence of this dog, in a 1700 hundred apartment complex, does not establish notice to the landlord which would trigger the waiver of the no pet clause of the lease. The security guards and the maintenance staff had no responsibility to report or to ferret out unauthorized pets. Their awareness of the tenant! shareholder's dog does not establish "knowledge" on the part of the landlord.

The court went on to state that the purpose of this waiver of a no-pet provision of a lease as set forth in the administrative code of the City of New York was clearly articulated by the New York City Council when it adopted this law. Its intent was to prevent widespread abuses by landlords who seek to evict tenants who have harbored pets "for an extended period of time", and often for reasons unrelated to the creation of nuisances by the pets. The Council went on to state that since it was necessary to protect pet owners from retaliatory evictions that this provision was adopted.

Under the circumstances of this case, since the tenant had the dog for only a very short period, the decision of the majority of Appellate Term is actually consistent with the aim of the City Council and gives effect to its intentions.

The court also stated that the landlord acted immediately upon receiving notice of the existence of the dog. This is quite different from the usual case of this nature where the waiver of the "no pet" clause was based upon the tenant's harboring of a dog for an extended period of time, usually many years.

The third reason the Appellate Term reversed Judge Malatsky's decision was that the statue requires that the owner or his or her agent must learn of the harboring of a pet within three months before eviction proceedings are initiated. In this case, security personnel who report only on safety matters, or maintenance personnel who deal with providing building services, should not be viewed as "agents" of the landlord for purposes of waiving lease prohibitions of pets. These employees would not be reasonably expected to report that they had seen a person walking a dog. Simply put, they would correctly see this as none of their business.