THE COUNCIL

REPORT OF THE INFRASTRUCTURE DIVISION

MARCEL VAN OOYEN, LEGISLATIVE DIRECTOR and DEPUTY CHIEF OF STAFF

COMMITTEE ON HOUSING AND BUILDINGS

Hon. Madeline Provenzano, Chair

December 14, 2004

INT. NO. 189-A By: Council Members Katz, Gioia, Martinez, Monserrate, Palma, Nelson, Koppell, Perkins, Gerson, Barron, Brewer, Addabbo, Moskowitz, Jackson, Clarke, Gentile, Lopez, DeBlasio, James, Liu, Reed, Serrano, Gonzalez, Foster, McMahon, Dilan, Recchia, Reyna, Sanders, Vann, The Public Advocate (Ms. Gotbaum), The Speaker (Council Member Miller) and Gennaro.

TITLE: In relation to clarifying the rights of pet owners in multiple dwellings.

ADMINISTRATIVE CODE: Amends section 27-2009.1 by amending subdivision b and by relettering existing subdivisions c, d and e as subdivisions f, g and h, respectively, and by adding new subdivisions c, d and e.

BACKGROUND AND ANALYSIS:

On December 14, 2004, the Committee on Housing and Buildings, chaired by Council Member Madeline Provenzano, will conduct a hearing on Int. No. 189-A. The Committee on Housing and Buildings previously conducted a hearing, on June 23, 2004, on the provisions of Int. No. 189. That bill would have amended section 27‑2009.1 of the Administrative Code of the City of New York (hereinafter “Administrative Code”) by clarifying the rights of pet owners in multiple dwellings such that when a “no pet” provision in a tenant’s lease is waived, it is waived for the duration of the tenant’s occupancy, and not merely for the life of a particular pet. The Committee heard testimony on Int. No. 189 from different perspectives, including those who support the bill and those who oppose the bill. Int. No. 189-A was drafted in response to testimony presented at that earlier hearing.

Local Law 52 and the Three-Month Waiver Provision

Administrative Code §27-2009.1 was enacted by Local Law 52 for the year 1983 (Local Law 52, “the Pet Law,”) and provides that where a tenant in a multiple dwelling harbors or has harbored a household pet or pets “openly and notoriously” for a period of three months or more after taking possession of a dwelling unit, and the owner or his or her agent has knowledge of this fact and fails within such three-month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such pets, then such lease provision shall be deemed waived. There is no explicit provision in the law for the revival or resumption of a no-pet clause once it is waived. However, tenants whose pets cause damage, create a nuisance, or “substantially” interfere with the health, safety or welfare of other occupants are not protected under the current law or Int. No. 189. Incidentally, the current law also expressly states that its provisions do not apply to the New York City Housing Authority.

Local Law 52 also contains a codified legislative declaration which specifically states that because pets “are kept for reasons of safety and companionship … it is necessary to protect pet owners from retaliatory eviction” and that “this section [27-2009.1] is necessary to prevent potential hardship and dislocation of tenants within the city.” Supporters of Int. No. 189 believe that the bill is necessary in order to clarify the rights of pet owners due to inconsistent court interpretations of Local Law 52 and as a consequence, residents of Manhattan and the Bronx can be treated differently under the law than the residents of other boroughs. The issue is whether a “no pet” clause can be revived after it is waived when the pet that was harbored dies or otherwise leaves the apartment.

In 1996, the Appellate Term for the First Department ruled in Park Holding Company v. Emicke,[1] that a landlord could enforce a “no-pets clause” contained in a lease against a tenant’s new pet. In this case, the tenants had kept a dog in their apartment since 1987. After that dog died in 1994, the tenants acquired another dog and the landlord objected to the presence of the new dog within two days of its introduction to the premises. The landlord proceeded to serve a notice to cure, notice of termination and then commenced a holdover proceeding within three months after learning of the alleged breach of the lease. The lower court dismissed the petition on the rationale that once the no-pet provision of the lease was waived under Administrative Code §27-2009.1, it was waived for “the specific tenancy in issue.”[2]

The appellate court reversed the lower court’s decision and held that the “no-pet clause” was only waived with respect to the original dog, and that the landlord had a new three-month period to enforce the no-pet clause against the second dog.[3] Thus, because the First Department only covers Manhattan and the Bronx, the rights of tenants who live there are not the same as the rights of tenants who live in Queens, Brooklyn and Staten Island.

Prior to this decision, in Brown v. Johnson,[4] under similar facts to Park Holding Company v. Emicke, another court held that “it appears that the only reasonable reading of the statute is that failure to bring a proceeding constitutes a waiver of the clause in the future. The section[5] refers to a tenant who ‘harbors or has harbored a household pet or pets.’ Inclusion of the past tense can only be meant to refer to situations such as the one at bar.”[6]

Public Policy Concerns

Pets are believed by some to provide a great source of companionship.[7] Many studies show that there are both real and/or perceived beneficial health effects of pets upon people.[8] According to an early statement by Virginia Chipurnoi, president of the Humane Society of New York, the bill “will likely save the lives of many animals, because people threatened with eviction for having a pet frequently turn their pets over to the already overburdened animal shelters.”[9] Furthermore, the Humane Society notes that approximately 40,000 cats and dogs are put to sleep every year in New York City animal shelters because they have nowhere to live.[10]

Opponents of this bill, or a bill of this nature, include both tenants and landlords. Some tenants are highly allergic to pets because of their dander and shedding. Some people are not fond of living near animals because they might create noise, dirt and odors. Some people have concerns about safety around certain animals, such as dogs with aggressive tendencies. Some landlords are concerned about related liability issues and claim the bill would impinge on their rights to use and dictate the use of their property as they see fit. Landlords point to property damage as a major reason for opposing the bill, and the difficulty involved with evicting any tenant, such as time and legal costs.

Other opponents believe this bill threatens the rights of cooperative boards and condominium boards of managers to set internal policies. In these multiple dwellings, pet policies are generally either set by board members who are shareholders in the cooperative or owners in the condominium. These policies also effect tenants who rent or sublease apartments within cooperatives or condominiums from sponsors, shareholders or apartment owners. Finally, another issue of concern that has been raised in the context of this bill is that some people are not able to adequately care for animals, even though they may want to.

Int. No. 189-A

Bill section one amends subdivision (b) of section 27-2009.1 of the Administrative Code of the City of New York to provide that where a tenant in a multiple dwelling openly and notoriously harbors a pet or pets for a period of three months or more and a landlord fails within this three month period to commence a summary proceeding or action to enforce a no pets clause in a lease, then such lease provisions shall be deemed “waived for the duration of the tenant's occupancy in such multiple dwelling for each species of household pet or pets that is harbored or was harbored in such multiple dwelling.” Language was also added to this subdivision to provide that the provisions of this subdivision apply to any tenant in a multiple dwelling who currently is harboring or has harbored a household pet or pets at any time since July nineteenth, nineteen ninety-five during their occupancy in the multiple dwelling in which they currently reside. The date was selected as it reflects the date of the lower court’s decision in Park Holding Co. v Emicke.[11]

Bill section two reletters subdivisions (c), (d) and (e) of section 27-2009.1 of the Administrative Code as subdivisions (f), (g) and (h), respectively, and adds new subdivisions (c), (d) and (e) to such section to provide that a household pet or pets that is harbored or was harbored by a tenant in a multiple dwelling pursuant to the provisions of subdivision (b) of this section may be replaced by another pet or pets, with the exception that at no time shall the total number of household pets in that multiple dwelling exceed the total number of pets that were harbored at the same time by such tenant in that multiple dwelling at any time since July nineteenth, nineteen ninety-five. The bill also now specifically states that at the option of the owner, the species of a household pet that is harbored or was harbored in a multiple dwelling may be changed with the written permission of the owner. Finally, the bill contains a clause to ensure that certain tenant’s rights are protected to the effect that “No language contained in the provisions of this section shall be construed to limit the rights provided herein under subdivisions b and c of this section to a tenant in a multiple dwelling.”

Bill section three contains an enactment clause to provide for the immediate effectiveness of this legislation and to clarify that the legislation shall apply to existing and future leases and renewals and shall also apply to existing lawful occupancies.

Update

On Tuesday, December 14, 2004, the Committee adopted this legislation by a vote of seven in the affirmative, four in the negative and no abstentions.

Accordingly, the Committee recommends its adoption.

[1] Park Holding Co. v Emicke, 168 Misc. 2d 133, 646 NYS2d 434 (App. Term 1^st Dept. 1996)

[2] Park Holding Co. v Emicke, 167 Misc. 2d 162, 634 N.Y.S.2d 910, (Civil Ct. N.Y. Co. 1995) [entered July 19, 1995], reversed, 168 Misc. 2d 133, 646 N.Y.S.2d 434 (App. Term 1^st Dept. 1996).

[3] Park Holding Co. v Emicke, 168 Misc. 2d 133, 646 NYS2d 434 (App. Term 1^st Dept. 1996). It should be noted that according to the court’s decision, “the parties’ original lease (as renewed) contained a standard provision to the effect that the landlord’s failure on a previous occasion to take any action for a violation of the terms of the lease ‘shall not prevent a subsequent act of a tenant of a similar nature from being a violation of the lease.’” Id.

[4] Brown v. Johnson, 139 Misc. 2d 195, 527 NYS2d 679 (NY City Civ. Ct. 1988).

[5] Administrative Code §27-2009.1, a/k/a, “The Pet Law.”

[6] Brown v. Johnson, 139 Misc. 2d 195, 527 NYS2d 679 (NY City Civ. Ct. 1988). In Brown v. Johnson, the court cited Megalopis Property Assn. v. Buvron, an Appellate Division case from the Second Department (which covers Queens, Brooklyn and Staten Island within New York City, along with 7 other counties outside of the City) as a basis for its holding while noting that the case wasn’t directly on point. See Megalopis Property Assn. v. Buvron, 110 AD2d 232, 494 NYS2d 14 (AD 2^nd Dept. 1985), in which the landlord sought to bring suit against a tenant after six years of openly living with a dog on the premises and the court. After acknowledging the validity of Local Law 52, the court held that a “no pet” clause is waived when a landlord fails to commence an eviction proceeding within three months after the landlord gained knowledge of a violation of a no-pet clause in a lease, even though the eviction proceeding was commenced before the law was enacted. Id.

[7] http://www.helpguide.org/aging/pets.htm.

[8] See Health Benefits of Animals, Abstracts, Articles and Bibliographies as compiled by the Delta Society at http://www.deltasociety.org/dsc000.htm.

See also http://health.discovery.com/centers/aging/powerofpets/powerofpets2.html. Ongoing research in this area is being conducted by the Center for the Interaction of Animals and Society (CIAS), a multi-disciplinary research center within the School of Veterinary Medicine at the University of Pennsylvania. http://www2.vet.upenn.edu/research/centers/cias/index.html.

[9] See, 1997 press release by the Humane Society of New York. Also see, NYC Bill to Expand Tenants’ Rights to Have Companion Animals, by Marisa Miller, http://www.satyamag.com/jan04/miller.html.

[10] See http://www.humanesocietyny.org/legislation.shtml#petshousing.

[11] Park Holding Co. v Emicke, 167 Misc. 2d 162, 634 N.Y.S.2d 910, (Civil Ct. N.Y. Co. 1995) [entered July 19, 1995], reversed, 168 Misc. 2d 133, 646 N.Y.S.2d 434 (App. Term 1^st Dept. 1996).