Pet Police

If a shareholder claims it is necessary for the well being of his child, may the shareholder keep a dog in a co-op that prohibits pets? That was the central issue in Matter of Contello Towers Corporation v. New York City Department of Housing Preservation and Development.

The co-op sought judicial review of a decision by the New York City Department of Housing Preservation and Development (HPD), issued on August 7, 2003, that denied the co-op’s application for a certificate of eviction against Ilona Shur, the tenant-shareholder.

On November 7, 2001, the co-op, a housing company organized under the Mitchell-Lama law, entered into an occupancy agreement with Shur for apartment 10F at 2015 Shore Parkway in Brooklyn. Among the provisions in the occupancy agreement was a prohibition against keeping dogs or cats. Shur moved into the premises at the end of January 2002 with her young daughter, Alison. At the suggestion of a therapist who had been treating Alison after she exhibited anxiety and depression about the time of their move, Shur purchased a dog to help alleviate her daughter’s distress.

After receiving information that Shur kept a dog in the apartment, the co-op served a notice of intent to evict, dated May 23, 2002, which stated: “... you have violated and continue to violate a substantial obligation of your tenancy at the Subject Apartment in that, without permission of the landlord and in violation of your occupancy agreement, you have allowed a dog to be harbored in your apartment...”

The co-op advised Shur of her right to appear before a hearing officer designated by HPD to explain or deny the charges against her and retain counsel to represent her in the proceeding. A session was held before an administrative hearing officer (AHO) on May 15, 2003, at which Shur and Alison’s therapist testified, along with the co-op’s site manager for the subject building and an expert witness retained by the co-op to review and analyze the findings of Alison’s therapist.

Shur testified that when she informed Alison of the move to the co-op, her daughter “went ballistic” and complained that she didn’t want to leave her former neighborhood and friends. Shur testified that Alison then became “very reluctant,” “wouldn’t talk much,” “would hide her food,” and complained of stomach pains, prompting Shur to take Alison to a doctor, who advised them that “everything is fine.”

With respect to school performance, Shur testified that Alison “was doing very [poorly] in school. She missed a lot of days and the teachers were complaining that she wasn’t organized and she wouldn’t listen during the class and she wouldn’t play with other kids.” Shur testified that, after buying the dog, Alison “was doing much better,” that “the teacher was amazed [at] how she improved in school,” and that Alison made new friends in classes.

Alison’s therapist testified that, in January 2002, Alison was suffering from “adjustment disorder with depressed mood” and that she had recommended a pet as a “transitional object” to help alleviate Alison’s anxiety about the move to the new apartment. She noted that Shur had reported that Alison was “doing better” after obtaining the dog. The therapist also testified that not only dogs but other pets, such as gerbils or birds, could serve as “transitional objects,” that a dog was not an absolutely necessary treatment for Alison, and that she would not have mentioned obtaining a dog had she known they were forbidden in the building.

Dr. Stephen P. Herman, a psychiatrist, testified as an expert witness on behalf of the co-op. When asked if getting a dog was a necessary treatment for adjustment disorder, Herman replied: “No. There’s no specific recommendation in any literature, any clinical practice I’m aware of that says if a child has adjustment disorder you get the child a dog. In fact, there’s no psychiatric disorder of any kind in which getting someone a pet is a specific part of the treatment. It might be helpful depending on certain situations. But there’s nothing in standard practice.”

After receiving testimony and evidence, the AHO issued a decision, dated August 7, 2003, which denied a certificate of eviction, finding that the co-op was required to excuse Shur from its “no-pet” policy as a reasonable accommodation for Alison, a “disabled tenant.” The AHO noted the testimony of the therapist that Alison suffered from “adjustment disorder with depressed mood”; that, after the dog had been obtained, Alison’s condition and school performance improved; that Alison made new friends and felt more secure with improved self-esteem after obtaining the dog; and that when she was faced with the prospect of losing the dog, Alison’s symptoms began to reappear.

The AHO further noted the testimony of the co-op’s witness, a child psychiatrist, that, although he deemed that a pet was not necessary for the treatment of adjustment disorder with depressed mood, he did not disagree with the treatment plan of Alison’s therapist.

The AHO concluded: “Pursuant to the New York City Human Rights Law, the term ‘disability’ means any physical, medical, mental or psychological impairment... Here, Alison clearly has a psychological impairment that pre-dated the move to Contello Towers. Although it was foolish of Shur to buy a dog prohibited at the building, the animal has helped in the treatment of her daughter’s symptoms and allows Alison to use and enjoy the subject premises.”

In its petition, the co-op contended that the AHO’s order was arbitrary, capricious, and not in accordance with the facts and evidence presented. Citing the Americans with Disabilities Act (ADA), the co-op argued that the record did not indicate that Alison was disabled since there was no showing of an impairment affecting a “major life activity” (i.e., walking, speaking, hearing, or learning), and, that even if performance in school is considered a major life activity, the record did not demonstrate that Alison’s performance in school had been substantially limited by her alleged condition. The co-op also contended that allowing a dog in the apartment was not a “reasonable accommodation” since it was not necessary to afford Alison an equal opportunity to use and enjoy the dwelling.

In opposition to the petition, HPD contended that (1) the proceeding came too late, since the co-op had failed to go after the tenant Shur before the expiration of the four-month statute of limitations for such proceedings, and (2) the AHO’s order was based on the record. Shur was granted leave to intervene in the proceeding and joined HPD in its argument with respect to the co-op’s failure to join her as a necessary party.

In its decision, the court said that it would first address the arguments of HPD and Shur regarding timeliness whether it was too late for Shur to be i.e., “joined” in these proceedings. At the outset, it noted that Shur had been joined in the proceedings, upon motion to intervene, by an order dated April 28, 2004, and had submitted opposition papers to the petition. The essential contention of HPD and Shur was that the failure of the co-op to cite Shur within the four-month limitations period required dismissal.

On this matter, CPLR 1001 (a) says: “Parties who should be joined. Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so he may be made a defendant.”

While the court said that the co-op was correct that there was no explicit provision in the CPLR requiring “joinder” of the subject tenant in a proceeding to obtain a certificate of eviction from HPD, the tenant could nevertheless be considered a person “who might be inequitably affected by a judgment in the action.” It had been held that a tenant was a necessary party in a proceeding to review the denial of a certificate of eviction, noted the court.

However, while the court concluded that Shur may be considered a necessary party, such did not necessarily require dismissal of the proceeding since she was not an indispensable party and the action could have continued in her absence. CPLR 1003 states that “nonjoinder” of a party who should be joined under CPLR 1001 is a ground for dismissal of an action without prejudice, unless the court allows the action to proceed without that party under the provisions of that section.

CPLR 1001 (b) provides: “When joinder excused. When a person who should be joined under subdivision (a) has not been made a party and is subject to the jurisdiction of the court, the court shall order him summoned. If jurisdiction over him can be obtained only by his consent or appearance, the court, when justice requires, may allow the action to proceed without his being made a party. In determining whether to allow the action to proceed, the court shall consider:

“1. whether the plaintiff has another effective remedy in case the action is dismissed on account of the nonjoinder;

“2. the prejudice, which may accrue from the nonjoinder to the defendant or to the person, not joined;

“3. whether and by whom prejudice might have been avoided or may in the future be avoided;

“4. the feasibility of a protective provision by order of the court or in the judgment; and

“5. whether an effective judgment may be rendered in the absence of the person who is not joined.”

In this matter, the co-op would not have another effective remedy if this proceeding were dismissed and an Article 78 proceeding were the only avenue by which the co-op could obtain relief from HPD’s determination and the co-op was precluded by the four-month statute of limitations from beginning the proceeding again. In the event Shur was not joined, prejudice would be minimal since her interest in the affirmation of the AHO’s order was shared by HPD, which was actively opposing the petition to annul the determination.

Furthermore, an effective judgment protecting Shur’s interest and affirming HPD’s denial of a certificate of eviction could be obtained in this matter. The court, therefore, found that the balance of factors for the determination of whether the action should proceed under CPLR 1001 (b) favored the co-op. In other words, while Shur was a necessary party, she was not an indispensable party.

Turning to the merits of the petition, the court said that its function in an Article 78 proceeding was to determine, upon the proof before the administrative agency, whether the determination had a rational basis in the record or was arbitrary and capricious. The court cited a prior case where it was held that: “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.”

Under the New York City Civil Rights Law, the co-op was required to “make reasonable accommodation to enable a person with a disability to satisfy the essential prerequisites of a job or enjoy the right or rights in question provided that the disability is known or should have been known” by the co-op. Similarly, the New York State Human Rights Law provides that it is “an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right of ownership of or possession of or the right to rent or lease housing accommodations ... [t]o refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling.”

Another section of the law forbids the “owner ... of publicly-assisted housing accommodations ... (from) refus(ing) to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling.”

Under the New York City Civil Rights Law, which was cited by the AHO in her determination, a “disability” included a “mental or psychological impairment.” The Americans with Disabilities Act provides a broader definition, stating that a disability includes a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.”

Under the definitions outlined in the code of federal regulations, the phrase “physical or mental impairment” includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism, while the phrase “major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

The term “substantially limits” means, in pertinent part, “[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.”

Prior cases have held that a no-pet clause must “bow upon proof of a specific, particularized need to keep a dog, which need arises out of the handicap.” An obvious example would be for the co-op to make an exception to its “no-pet” policy if a hearing-impaired tenant required the use of a specially trained dog to alert him or her of a smoke alarm or doorbell. However, in order to show that a reasonable accommodation should be made in the matter at bar, HPD had to demonstrate that Alison was disabled; that she was otherwise qualified for the tenancy; that, because of her disability, it was necessary for her to keep the dog in order for her to use and enjoy the apartment; and that reasonable accommodations could be made to allow her to keep the dog.

With the above principles in mind, the court found that the determination by HPD was arbitrary, capricious, and not rationally based in the record. At the outset, the court noted that there was very little testimony adduced at the hearing to support a finding that Alison suffered from a “disability,” i.e., that her emotional problems constituted an impairment that substantially limited one or more of her “major life activities.” HPD maintained that Alison was limited in the major life activities of “learning” and “caring for [herself]” in that she was unable to pay attention at school, had trouble sleeping, and was hiding food instead of eating it. However, the testimony was only sufficient, at best, to demonstrate that these were occasional, rather than ongoing problems, and thus had never “substantially limited” Alison’s ability to learn, sleep, or eat.

With respect to HPD’s contention that Alison performed poorly in school, it was noted that there nothing to substantiate it in the form of documentary evidence (e.g., report cards, teacher/principal letters) from any of the schools attended by Alison.

At any rate, even assuming that the AHO was correct in finding that Alison suffered from a “disability,” there was no evidence in the record to establish that allowing an exception to the pet prohibition in this instance was necessary to afford Alison equal opportunity to use and enjoy the apartment. Indeed, Alison’s own therapist testified at the hearing that the dog was not “an absolute[ly] necessary treatment,” and that if she knew beforehand that dogs were prohibited she would have never suggested that Alison own one, nor even mention a dog during her sessions.

Additionally, the co-op’s expert witness, a psychiatrist, testified that there was no specific recommendation in literature or clinical practice that a dog is an appropriate or necessary treatment for a child with adjustment disorder. Notably, in her determination, the AHO never made an explicit finding that the dog was necessary to afford Alison equal opportunity to use and enjoy the apartment, but instead stated that the dog “has helped in the treatment of her symptoms and allowed Alison to use and enjoy the subject premises.”

Clearly, the court said, it was rational to conclude from the record that the dog was a benefit to Alison, and it was reasonable to assume that removal of the dog from the apartment would create additional anxiety for Alison. However, in the court’s view there was simply no evidence in the record to demonstrate that the dog was required for Alison to use and enjoy the premises, thus necessitating a “reasonable accommodation” by the co-op under New York city, state, or federal law, or that Alison’s condition was untreatable in the dog’s absence.

Accordingly, the Article 78 petition was granted, the August 7, 2003 determination of the AHO was annulled, and the matter was remanded to HPD for further proceedings related to the issuance of a certificate of eviction.

Comment: This case is one of many faced regularly by both co-op and condo boards each year in which an occupant seeks to justify keeping a pet where pets are prohibited. Since these house rules are generally permissible with some exceptions for pets protected under the New York City Pet Waiver Law (because of a continuous known presence for more than 90 days), most challenges to such rules fail.

Recently, challenges have relied on disabilities or hardships to trump the prohibitions. Although a trained seeing-eye dog for a blind person would invariably be permitted under the ADA, mental depression or distress is more difficult to measure. Here, the degree of distress did not rise to a level sufficient to override the building-wide prohibition.