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Court says tenant is dog-gone.

An appellate court was recently called upon to answer the question: "When is a noisy dog no longer noisy?" Or, in more legal terminology: "When has a tenant effectively cured a violation of a substantial obligation of the tenancy?"

The Appellate Term, First Judicial Department, in a strongly worded unanimous decision, recently held that a temporary cessation to violation was insufficient to create the requisite cure, such that a permanent remedy was directed by the Court.

In Riveredge Apts., Inc. v. Levay, the Appellate Term confronted the following events: The owner had commenced a holdover proceeding against the tenant as a result of the aggressive and objectionable behavior of the tenant's two dogs. The Civil Court held for the owner after trial, but, pursuant to RPAPL [section]753(4), stayed the issuance of the warrant of eviction for 10 days to enable the tenant to cure the breach. The trial court did not specifically require the tenant to remove the dogs from the premises.

During the 10-day cure period, the tenant apparently controlled his pets, such that no incidents were reported. Three months later, the tenant moved to have the judgment vacated. The owner produced a series of witnesses in opposition, including two tenants, a resident superintendent and a building porter, all of whom gave sworn testimony as to the tenant's inability to control the dogs in the public hallways and lobby, the dogs' aggressive conduct and the detrimental impact that this uncontrolled animal behavior had upon the building's residents and employees.

Nonetheless, the trial court granted the tenant's application, such that the judgment and warrant were vacated and the holdover petition dismissed. The trial court held that its particular focus was upon the 10-day "cure" period, such that any breaches subsequent to that period were of "de minimis" legal import.

Belkin Burden Wenig & Goldman, LLP representing the owner on appeal. Partner Magda Cruz, arguing the appeal, asserted that the lower court had erred in finding that a meaningful "cure" had been effectuated by the tenant. Noting that the "Landlord presented documentary and testimonial evidence that tenant's continuing lease violations during the months following the trial were not insubstantial," the Appellate Term unanimously reversed, reinstating the judgment.

The appellate court held that "In this fact pattern, a proper cure of the breach required tenant's permanent removal of the dogs, not merely tenant's control of his dogs during the post-judgement 10-day cure period."

The Appellate Term held that because the underlying holdover proceeding was predicated upon a breach of a "correctable lease violation," and "in view of tenant's long-term stabilized tenancy," the tenant was given a final opportunity to cure the breach "by removal of the dogs."

As a dog owner, it is not particularly pleasant for me to see an owner parted from their pets. However, a dog owner is, ultimately, responsible for his or her pet's behavior. The Appellate Term correctly and cogently recognized that a brief period of pet-control exhibited by the tenant was not tantamount to a true cure.

The temporary abeyance in objectionable incidents did not (nor should it) mean that, following a brief 10-day period, the building's residents and employees should, once again, have aggressive animal behavior inflicted upon them. Nor did it mean that the owner should be relegated to commencing a new holdover proceeding premised upon the post-judgment conduct of the dogs. Based upon the totality of the evidence, the Appellate Term properly found that the violation of the tenancy (by reason of the continuing objectionable animal behavior) had not been truly cured. As a result, a permanent solution was directed - the dogs must leave within 10 days or the tenancy will be forfeited.
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Title Annotation:appellate court rules on a case involving a tenant's failure to control his dogs; Real Estate Review
Author:Belkin, Sherwin
Publication:Real Estate Weekly
Article Type:Column
Geographic Code:1U2NY
Date:Nov 4, 1998
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