Enforcing a Pet Prohibition; Pets in the Elevators

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Enforcing a Pet Prohibition

May a tenant maintain a pet in an apartment even after she signed an agreement stating that she “will not hereafter permit the dog to be present in [her] apartment under any circumstances”? That was the question the court continues to consider in NAR Apartments, LLC v. Ippolito.

NAR owned a 25-unit rental apartment building located at 517 East 13th Street in New York. Patricia Ippolito was the tenant of Apartment 3B, and had lived there since 1998. NAR and Ippolito entered into a lease that included a rider, which stated, in part: “Dogs or animals of any kind shall not be kept or harbored in the Apartment...”

The provision further stated, in capital letters, that adherence to this provision was a “material requirement of each lease” and that if the tenant failed to comply with the provisions it would be considered a “serious violation of an important obligation by tenant under this lease.” Accordingly, the provision permitted the landlord to “elect to end this lease based on” the tenant harboring a pet.

In January 2010, Ippolito adopted a four-year-old Yorkie and brought her into the apartment without informing NAR or seeking permission. NAR became aware of the dog when its managing agent heard the dog barking.

NAR wrote to Ippolito on February 22, 2010, confirming a prior conversation in which Ippolito conceded that she had a dog. NAR demanded that she remove the animal immediately. Ippolito responded on the same date and stated that the dog was a rescue dog, rarely barked, was not aggressive, and was housebroken, and that neither Ippolito nor her roommate had received any complaints about it. Ippolito promised in the letter that she or her roommate would take the dog to a dog day-care center during work hours. Nowhere in this letter did Ippolito claim she required the dog for emotional support.

The next day, NAR sent another letter to Ippolito, noting that it would not accept rent from her until it had written confirmation that the dog was no longer in the apartment. NAR then began eviction proceedings.

On March 1, Ippolito advised NAR that the dog had been removed, and NAR inspected the apartment. NAR provided Ippolito with a letter agreement dated March 3, which Ippolito signed. The agreement stated that Ippolito would “not hereafter permit the dog to be present in [the] apartment under any circumstances” and that Ippolito would not “maintain or permit to maintain or allow any dog to visit or reside in [the] apartment at any time for any purpose whatsoever.” Ippolito signed and indicated that she understood the terms of the agreement.

Ippolito subsequently claimed that she signed the letter agreement under duress and that NAR had placed her in the “terrifying position of facing homelessness or parting with [her] dog.” Ippolito claimed she sought the advice of counsel after she had signed the agreement. By a letter dated June 8, 2010, Ippolito’s counsel claimed that the agreement and NAR’s coercion of Ippolito were acts of unlawful discrimination since Ippolito was a disabled person. The letter claimed that Ippolito suffered from depression and was disabled under federal, state, and city laws. Further, counsel claimed that the dog was a medically necessary source of emotional support.

Counsel attached a copy of a letter from a psychiatrist, Bradford Goff, who stated that Ippolito had been in his care since 2007 and that she had a long history of depression. Goff stated that it was his opinion that pets in the home had a positive effect on Ippolito, as the dog provided needed emotional support. Goff asserted that Ippolito’s condition worsened when the dog was removed from the apartment, to the point that her condition interfered with her work. Counsel thus advised NAR that if it did not agree to Ippolito’s request for a reasonable accommodation within 10 days, she would pursue a claim against NAR.

NAR began this action on June 15; Ippolito filed a complaint alleging discrimination with the Division of Human Rights on August 6. In an earlier decision, the court allowed NAR to depose Goff and obtain pertinent medical records. The court also rejected Ippolito’s argument that she had signed the letter agreement under duress; she had argued that NAR forced her to give up her rights to a reasonable accommodation. In that prior decision, the court discussed that at the time Ippolito signed the letter agreement, she had never claimed that she was disabled and required the dog as an emotional support animal. However, in the prior decision, the court noted that issues of fact existed as to whether Ippolito was actually disabled and whether she required a dog as a reasonable accommodation.

By the motion being decided, Ippolito sought to amend her answer to assert a cross-claim for compensatory and punitive damages and attorneys’ fees based upon NAR’s failure to grant her a reasonable accommodation. She also sought to assert a claim that NAR prosecuted this action in retaliation for Ippolito claiming that she had the right to a reasonable accommodation, i.e., that she could maintain the dog.

The court discussed the standard for amending a pleading. Leave to amend was to be freely given absent demonstrable prejudice. However, if the proposed amendment plainly lacked merit, it was improper for the court to grant leave. Here, the court found that Ippolito was entitled to amend her answer to include a claim that she was entitled to a reasonable accommodation. Factual issues remained as to the existence and/or extent of her disability and the necessity of harboring a dog as an emotional support animal.

The court also determined that NAR was entitled to dismissal of Ippolito’s claim for damages as a result of retaliation. As set forth in an established legal doctrine, starting litigation was a protected activity. The court discussed that an exception to the doctrine existed when a party showed that the action was a sham or objectively baseless. Here, the court did not find that NAR’s commencement of the suit was objectively baseless. There was no dispute that Ippolito had agreed, in writing, not to keep a dog. At the time she signed, she had not told NAR that she required the dog for emotional support. Accordingly, the court found that Ippolito could not show that NAR’s action was a sham or brought to harm Ippolito.

Comment: Although this particular case is between a residential landlord and rental tenant, it is applicable to co-ops and condos and their apartment owners. Cases in which apartment residents who live in “no pet” buildings and request the right to maintain a pet as a reasonable accommodation because they serve as emotional support animals are often complicated.

The matters are usually decided on a case-by-case basis, and the rules are evolving. In some matters, courts (and the State Division of Human Rights and city Commission on Human Rights – both venues where residents can file a complaint) may elect not to pursue an inquiry if the resident submits a letter from a doctor or psychologist asserting that the resident requires a pet as a reasonable accommodation and as an emotional support animal.

Here, the court made clear that it was permitting the landlord to obtain discovery – both in the form of medical/psychological records and a deposition of the resident’s psychologist – so that the court could make an ultimate determination as to “the existence and/or extent of [the resident’s] purported disability, as well as the necessity of harboring a dog as an emotional support animal, assuming [the resident] is in fact disabled.”

Further, this case raises an important issue for lessors and boards – to what extent can they rely on an agreement made with an occupant who later asserts that she is disabled and requires the very thing that they agreed to forego in the agreement as a reasonable accommodation. This issue, too, will be decided on a case-by-case basis, although we do not know the weight given by this court to the fact that the defendant signed the letter agreement without counsel. Nevertheless, it is apparent that, upon assertion of a claim of disability, the courts will allow further inquiry so that a resident may or may not be held to their agreement.

Pets in the Elevators

May a shareholder sue her cooperative corporation and its individual board members if she is required to use the service elevator when taking her dog in and out of the building? That was the question asked in Weston Murphy v. 14 Sutton Tenants Corporation.

Elizabeth Weston Murphy is a shareholder at 14 Sutton Place, a cooperative owned by 14 Sutton Tenants Corporation. The corporation mandated that Weston Murphy use the service elevator when she was accompanied by her dog, while all other dog owners (except one other) used the passenger elevator. The board based its action on belief that the dog, Theo, was ill-behaved. Weston Murphy brought an action breach of fiduciary duty and intentional infliction of emotional distress by the cooperative and its individual directors. The underlying complaint was founded in discrimination and disparate treatment. The corporation and the board members moved to dismiss the action.

The corporation and board mem-bers relied on the Business Judgment Rule as set forth in the seminal Court of Appeals case Levandusky v. One Fifth Avenue Owners Corp. In sum, the rule prohibits the courts from inquiring into the actions of corporate directors when the actions are taken in good faith and in the exercise of honest judgment and in the lawful and legitimate furtherance of corporate purposes.

In this case, the corporation and board members justified their business judgment by citing numerous incidents where Weston Murphy violated the rules and the existence of numerous ongoing complaints by neighbors.

The corporation and board members made a motion to dismiss the action based on a claim that the complaint failed to state a cause of action. The court discussed the standard on such motions – the pleading was to be afforded a liberal construction, the facts were to be accepted as true, and the plaintiffs were to be given the benefit of every possible favorable inference. The court was to determine whether the claims fit into any cognizable legal theory. The court explained that it was to determine merely whether the pleading contained a cause of action, not whether the plaintiff had stated a claim.

Given this standard, the court then reviewed the complaint as it related to the individual board members. The court explained that when dealing with liability of individual board members, courts dismiss complaints that fail to allege with specificity the questionable actions by the individuals. The court explained that, even though the board members may have taken action to deliberately single out a shareholder for harmful treatment, that did not, in and of itself, expose the individual board member to liability.

Here, the court granted the motion to dismiss as to the individual defendants, and denied the motion as to the co-op, finding that Weston Murphy had pleaded a cause of action against the co-op, which could not be decided in connection with this motion to dismiss.

Comment: As we can see from the NAR decision, issues concerning pets are often litigated. Here, the plaintiff believes she was being singled out for improper treatment by the board and its individual directors when the board demanded that she use the service elevator when traveling with her dog.

However, her suit against the individual board members was dismissed since she did not plead that any of them did anything other than act in their capacity as board members. Without allegations of personal wrongdoing, courts readily grant motions to dismiss claims against the individuals and – as it did here – permit the case to proceed against the co-op corporation.

Attorneys

NAR Apartments, LLC v. Ippolito
For Plaintiff:
Alan E. Rabunski and Cohen Hurkin Ehrenfeld Pomerantz & Tenenbaum
For Defendant:
Vernon & Ginsburg

Weston Murphy v. 14 Sutton Tenants Corporation
For Plaintiff:
The Price Law Firm
For Defendants:
Belkin, Burden, Wenig & Goldman