Pet Law Update

PET LAW UPDATE
A case decided late last year by the appellate division of the Supreme Court which governs Manhattan and the Bronx, Seward Park Housing Corp. v. Cohen, provides new guidelines for dealing with pets. The appeal involved a holdover summary proceeding by a co-op to evict a tenant for harboring a dog. The court answered the following two questions arising from interpretation of the 1983 New York City Pet Waiver Law:

(1) When a tenant openly and notoriously harbors a pet for three months, with actual knowledge of servants and employees at the building who are not required by the co-op landlord to report this harboring, does the non-resident managing agent, by ordinance, have imputed knowledge of the pet?

(2) When the managing agent has such knowledge but fails to begin a proceeding to enforce a "no-pet" covenant within the three-month time limit of the ordinance, has the co-op waived its right to enforce the covenant?

Forty-three years ago, Max Cohen, a sportswear cutter in the garment industry, his wife, Carol, and children, Ronald and Kenneth, moved into an apartment on the 19th floor of 415 Grand Street, a multiple dwelling on the Lower East Side of Manhattan owned by Seward Park, a cooperative. Max and Carol Cohen were tenants under a lease, which started on July 1, 1960 and ended on June 30, 1963, continuing thereafter on a month-to-month basis. Carol died in 1962. In 1996, Max, then age 65 and retired, continued to live in the apartment with his son, Kenneth. On September 13, 1996, Max purchased a four-month-old chow puppy, naming him Rocky and bringing him to live in the apartment. Before this, fellow building tenant Lisa Grossman had a dog in her apartment and previously had a pending action against her by Seward Park. The case ended with a stipulation that she could keep her dog. Grossman had discussed her case with Max Cohen.

Cohen's lease contained a pet prohibition clause stating that no animals of any kind could be "kept or harbored in the demised premises." The lease expressly precluded waiver of such no-pet clause by failure to enforce or by any other method unless confirmed in writing signed by petitioner. In late November 1996, the managing agent first learned of the dog's presence in Max's apartment. Seward Park began a proceeding on February 10, 1997.

At the trial, the managing agent served as the only witness, testifying that the employees of Cambridge Security, the maintenance personnel, and the porters are not required to report a tenant who has pets. He further claimed that such a duty was not part of their guidelines or of the union contract. There was no proof offered by Seward Park as to the applicable guidelines or union contracts.

Also, there was no proof offered that any person or persons on the property, including resident board members, were charged with the duty of reporting such lease violations. The co-op's managing agent neither resided in the co-op nor maintained an office there and had been at the building only once in the preceding two years. Seward Park had no policy regarding the reporting of tenant pets by its employees or the security guards.

The managing agent had no knowledge that any of his employees or the security guards knew of Cohen's harboring of Rocky in September or October 1996. Max Cohen, his son, Kenneth Cohen, and fellow building tenants Lisa Grossman and Ira Langman, testified that Max and Kenneth had walked Rocky, in and about the building, in the co-op's yards during normal hours, three times a day since September 13, 1996, starting out from Max's 19th floor apartment. They said that the security guards, maintenance workers, and porters at the building, saw the dog on a daily basis, spoke with Max and Kenneth about Rocky, and petted and played with Rocky. This testimony on Max's and Kenneth's openly notorious harboring of the puppy and the actual knowledge of the security guards, maintenance workers and porters of this harboring was not contradicted at the trial.

The decision of the trial court stated, in part: "In the instant proceeding, it is undisputed that building personnel not only visually observed the dog but physically interacted with the pet on various occasions.

"The credible evidence and testimony at trial was overwhelming that from the first day respondents brought the dog home it was exposed to and seen by building personnel and on a regular basis. This Court finds that petitioner is bound by the acts of its employees. Knowledge of the existence of respondent's dog in mid-September 1996 must be imputed to petitioner. Petitioner's argument that security guards, janitors and porters at the subject building were merely independent contractors whose job description did not include informing petitioner of the harboring of dogs in violation of lease agreements, thereby tolling the statutory waiver period is not persuasive. This Court determines that petitioner has waived its right to enforce a no-pet provision in respondent's occupancy agreement. Accordingly, this proceeding is dismissed."

The appellate court said that the civil court's fact findings were supported by the record and warranted the conclusion that Seward Park had waived its ability to enforce the no-pet clause. The court said that, while a dog may be a man's best friend, landlords often discourage tenants from keeping pets. Opposition to pets often takes the form of pet-prohibition clauses contained in the standard residential lease. Such clauses often preclude a waiver of a no-pet clause, either by the landlord's failure to enforce it, or by any other method, unless confirmed in writing signed by the landlord.

In 1983, the New York City Council, responding to widespread abuses by landlords who sought to evict tenants who harbored pets for an extended period of time, despite no-pet lease clauses, and without prior complaints by the landlord, enacted an ordinance which became Administrative Code Section 27-2009.1. Its purpose, set forth in Section 27-2009.1 (a) in sum, was twofold:

• to protect pet owners from retaliatory eviction; and
• to safeguard the health, safety, and welfare of tenants who harbor pets. The ordinance sought to balance the rights of a landlord who acted promptly to evict a tenant upon learning that the tenant harbored the pet, against the rights of a tenant who harbored such pet with the knowledge of the landlord, for an extended period of time (three months), without action being initiated by the landlord.

The "no-pet waiver rule" was intended to require that landlords enforce a no-pet clause promptly or be deemed to have waived the breach of the lease. The waiver applies to all "dwellings," including the co-op apartment of Cohen. If Seward Park had knowledge and failed to begin the proceeding within the time provided by the ordinance, the rule applied, said the court, and it benefited Cohen.

In an earlier case, the court observed that the ordinance applied to all existing leases. The law, which was to take effect immediately, applies to all existing leases. It expressly covers a tenant who openly and notoriously has harbored a household pet for a period of three months or more after taking possession of a unit. It applies when the landlord, who has knowledge of the pet, has failed within this three-month period of harboring, to begin a summary proceeding or action to enforce the lease provision prohibiting the keeping of such a pet.

A prior case also held that the ordinance did not unconstitutionally impair the landlord's preexisting contract rights.

The city council sought to allow a tenant the security and companionship of a pet when a landlord was not timely in enforcing a non-pet lease covenant. As stated at the September 22, 1983 meeting of the Committee on Housing and Buildings by its then chairman and the prime sponsor of the ordinance:

"[W]e are not eliminating the landlord's right to enforce a contract that says no pet, but at least the landlord will have to be up front through its agent, [the] superintendent, in saying we are not a pet building, we don't permit pets. If you want to have a pet, we will not welcome you into our building because we will enforce it. If they don't enforce it within the first three months or they wink at it, then the pet is there and cannot be removed."

An analysis of the ordinance provided for the Committee of Housing and Buildings by the city council's legal staff stated that it "creates a difficult burden for landlords with respect to its scienter requirements… [since it] impute[s] an employee's knowledge to his to his employer."

This implied waiver made no-pet covenants unenforceable after three month of obvious pet ownership despite the evidence rule or lease merger clauses. All extant leases were thereby amended by operation of law to render no-pet clauses waivable under the terms of the ordinance, including the proprietary leases of Seward Park, since the pet law applied to cooperative housing. The ordinance specifically excluded buildings owned and managed by the New York City Housing Authority from this legislation. If the city council had wished to exclude co-ops from this ordinance it could easily have specified that.

In the court's view, the plain meaning of this ordinance was to impute the actual knowledge of the landlord's servants and employees at the building to the non-resident managing agent under the facts of this case. It said: "Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation."

The code provision was unambiguous. Section 27-2009.1 (b) states:

"...where a tenant "openly and notoriously for a period of three months… harbors a household pet…and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pet such lease provision shall be deemed waived."

"Open and notorious" is defined as acts "on the land of another sufficient to alert the owner of a claim to his land which may ripen into title under adverse possession," said the court.

The court noted that the waiver rule, as enacted, relied on objective, easily provable elements. Its key words, "openly and notoriously," were taken from the well-settled law of adverse possession. An adverse claimant, by his or her unequivocal acts, must have "open and notorious" possession of the land so that the real owner of the land will have knowledge of this hostile claim, and will thereby be required to act to assert his or her legal title.

This "open and visible or notorious use" is also required to establish an easement by prescription. It is essential that the owner have knowledge of the adverse possession or use. Actual knowledge is, of course, sufficient. Where, however, there has been no actual knowledge, it can be shown that the possession or use was so open, notorious, and visible as to support an inference that the owner must or should have known of it. Knowledge can be either actual or imputed.

"Notorious possession" is defined as "a requisite of adverse possession, such possession that is so conspicuous that it is generally known and talked of by the public or the people in the neighborhood. Possession or character of holding in its nature having such elements of notoriety that the owner may be presumed to have notice of it and of its extent."

The use of the phrase "openly and notoriously" in Section 27-2009.1(b) of the ordinance, therefore, showed, in the court's view, a legislative intention to presume knowledge on the part of the landlord. In this ordinance, proof of "openly and notoriously" harboring of the pet in the apartment "for a period of three months or more" raises a presumption of knowledge by the owner or his managing agent of this fact.

The court's interpretation of this ordinance was consistent with basic rules of statutory interpretation. Conversely, if the court required actual knowledge of the corporate landlord or his non-resident managing agent before the three-month "clock" starts ticking, the words "openly and notoriously" in the ordinance would become meaningless. This was contrary to the clear intention and evident remedial purposes of the ordinance. This would lead to an absurd consequence. It would render the "open and notorious" language superfluous, imposing on tenants a requirement not found in the ordinance: to prove actual knowledge of the landlord or managing agent.

The court said that common sense dictates that landlords will have an agent or employee checking the property regularly. The council's assumption in its ordinance conforms to common sense, providing an easily understood and objective determination of an instance when a waiver should be implied. From this, the court concluded that the three-month statute of limitations required routine awareness on the part of the landlord. The ordinance left to the landlord's common sense what needs to be done for the landlord to become apprised of such a situation so that the landlord can, within this time, commence a summary action or proceeding.

The legislative declaration in Section 2009.1(a) stated that this ordinance was necessary "to safeguard the health, safety and welfare of tenants who harbor pets." Using these words with "openly and notoriously" is consistent with applying the word "agent" in broad terms to include the maintenance staff, porters, and security guards, who had actual knowledge that Cohen had harbored the dog in his apartment since September 13, 1996. Adopting a narrow definition of "agent" in the ordinance, however, would require the court to ignore the actual knowledge of the maintenance staff, porters, and security guards that Cohen had harbored the dog in his apartment since September 13, 1996.

The use of the phrase "openly and notoriously" in Section 27-2009.1(b) of the ordinance showed an intention to the contrary. The use was inconsistent with, and therefore refuted, the argument that security, maintenance personnel and porters were not "agents" for purposes of Section 27-2009.1(b).

Section 27-2009.1(c) deems any express or other restriction of tenants' rights void as against public policy. In the court's view, its clear intent was to protect from erosion the specific rights of tenants. In light of this "anti-restriction" provision under Section 27-2009.1(c), the court considered that it would be incongruous for the municipal code to impose a duty on a landlord to take prompt legal action triggered by knowledge of its agent and, at the same time, find employees or servant best situated to acquire such knowledge incapable of communicating with their employer, or not duty-bound by the ordinance to do so.
Such a result would ignore common sense and thwart the ordinance's remedial purposes. Here, the landlord's employee observed the tenant's pet daily. The trial court properly found these employees to be agents within the meaning of the code and, therefore, correctly deemed this tenant's no-pets clause waived.

The court noted that the ordinance set forth rules, which, of necessity, must be expressed literally. Three months means three months. Because the court found the ordinance to be free from ambiguity and to express clearly the legislative intent, it would not condone resorting to other means of interpretation. But, even if the court did find this ordinance unclear, it said that it would reach the same result.

The court held that the enactment of the ordinance was a valid exercise of police power by the city council since it serves a legitimate public purpose. The ordinance places the burden of timely enforcement on the landlord. Thus, it logically follows that where a tenant openly and notoriously harbors a pet for three months, with the actual knowledge of servants and employees at the building, even though not required by the landlord to report this harboring, the non-resident managing agent, nevertheless, by ordinance, has imputed knowledge of such harboring.

It was reasonable to treat both the landlord's own employees and the employees of its long-term independent contractor as statutory agents for acquiring information. The code provision is generic. It is set in the context of an obligation imposed by law of requiring that the landlord promptly enforce a restrictive covenant. If not promptly enforced, the covenant would be waived. Employees and also security guards were present to be "the eyes and ears" of Seward Park. These servants and assistants were hired to and expected to report various types of information to the managing agent. The court noted that an agent is presumed to communicate to his employer what he learns in the discharge of his expected duties.

This code provision did not say that only the managing agent could acquire knowledge about pets. Indeed, when the code intended to deal with a narrow class of landlord agents, it did so explicitly. It makes no distinctions based on the number of apartments. It does not distinguish among kinds of agents whose knowledge starts "the ball rolling" time-wise. Were the court to find the employees and security guards not to be "agents" within the meaning of this ordinance, the knowledge acquired as servants or employees of independent contractors within the course and scope of their duties should still be imputed to Seward Park's managing agent.

After all, the managing agent was responsible for supervising the performance of the employees and security guards in carrying out Seward Park's duties pursuant to its lease with Cohen. And, under the ordinance, the co-op was obliged to "fish or cut bait," either enforcing this restrictive covenant in a timely manner or being "deemed" to have waived it.

While personnel and porters were not required expressly by the managing agent to identify or report lease violation, the issue was not whether the managing agent required them to report, but whether their actual knowledge should be imputed to the managing agent. Here, where there is no resident managing agent, the court said that it was reasonable to impute the knowledge gained by the landlord's agents to the co-op, as is clearly the legislative intent of the ordinance.

The general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated to it. Imputing to the co-op and its managing agent the knowledge acquired by these employees while the employees were performing their duties for the petitioner is proper since notice to an agent while acting within the scope of his duties constitutes notice to a principal.

The tenants had no reason to believe that the agents would not tell the landlord. There was no conflict of interest between the agents and the landlord, and there was no collusion between the agents and the tenants. If the ordinance provides tenants with protection by deeming a waiver, it was not up to the court to substitute its own judgment by questioning who qualified to be an agent.

Acceptance of the co-op's constricted reading of "agent" would, in the court's mind, encourage all absentee landlords to treat the ordinance with contempt. They would be able to stop permanently the running of the three-month period within which a holdover proceeding must begin just by not requiring prompt reporting of unwanted pets. The court said that untimely attention to open and notorious pet harboring, or restriction of acquisition of knowledge of pet harboring, would bring the parties back "to Square One." It would recreate the pre-ordinance situation in which no-pets clauses lay dormant, ready for abuse, and would circumvent the remedial code provision.

Moreover, here, the managing agent of Seward Park testified that the security, maintenance personnel, and porters were not required to report tenant harboring of pets. He claimed that such duty was not part of their guidelines nor of the union contracts. Yet, Seward Park offered no other proof as to the existence or contents of guidelines or union contracts. Here, the trial court was justified in finding this testimony not persuasive in the view of the appellate court. It said that an unfavorable inference might be drawn when, as in this case, a party fails to produce evidence which is within its control and which it is naturally expected to produce.

The landlord could not avoid having imputed knowledge of the tenant harboring the pet by turning a "blind eye" to this open and notorious fact. The infrequent, selective and dilatory enforcement of no-pet clauses was an abuse, which this ordinance was intended to remedy. This ordinance

"...contemplates that where a tenant openly harbors a pet, visible to persons working on-site for the landlord … [a] landlord that maintains contact with the building through its on-site employees may not shield itself from the law by closing off the only channel of communication for obtaining notice of pets…"

A review of the facts in this case revealed that the co-op would have had to close its eyes, cover its ears, and hold its breath to have remained ignorant of the presence of Cohen's puppy, said the court.

The present action was not "commenced" within the three months permitted for enforcement. As a holdover petition brought in civil court, this action was begun under specific statutes, which unambiguously define "commencement" as service of petition and notice of petition. The co-op served the petition and notice of petition commencing this proceeding no earlier than three months after September 13, 1996; (1) when Cohen openly and notoriously first harbored his pet; (2) when the co-op's servants and employees had actual knowledge of such harboring, and thus; (3) when the managing agent of the co-op had imputed knowledge of such harboring.

The court held that the co-op failed to begin the proceeding within three months after acquiring knowledge of such breach of the lease; so, enforceability was deemed waived under the ordinance. Since the court found the actual knowledge of the co-op's employees and servants imputable, and since it found no reason to depart from the three-month commencement rule, it reversed and dismissed the petition, as did the trial court.

Comment: The subject of pets continues to be a troublesome one for the courts. This lengthy decision should help to resolve some of the uncertainty that has prevailed, although it applies only to pets in Manhattan and the Bronx. The last word on this subject, of course, lies with the court of appeals, which may be needed to resolve disputes between the two appellate divisions, which govern New York City. In any event, the result of this case is to make it more difficult for a co-op to enforce no-pet rules. Indeed, the case is a warning to co-ops that they must act promptly (within 90 days) and by appropriate legal action to challenge an unauthorized pet.