Four-Legged Identity Crisis

In the world of vertical living, a dog isn’t often just a dog. Many co-ops require them to be classed as pets or perhaps emotional support animals, particularly when they first move in. But when owners really want furry friends, labels can suddenly become murky, and what once was a pet is now something else. A recent case, Board of Managers of the Broad Exchange Building Condominium v. Nicole Lambert, illustrates how this all-too-common occurrence can play out and when boards need to intervene.

Parker Moves In 

In January 2022, Ms. Lambert bought a $2.5 million penthouse with a terrace from the sponsor of the Broad Exchange Building condominium in Manhattan’s financial district. The condominium’s governing documents stipulated that owners couldn’t have more than two dogs living with them, and that all purchasers were required to submit a Pet Registration Form before the unit’s closing date. Ms. Lambert submitted this form, registering Parker, her 7-pound toy poodle. However, Ms. Lambert brought in seven additional dogs with her. These animals began to bother her neighbors, who complained about noise at all times of the day and night and a fly infestation caused by feces and urine on her terrace. Beginning in April 2022, Ms. Lambert was notified many times that she was violating the bylaws and house rules. Finally, in June 2022, the board filed suit for declaratory and injunctive relief and damages.

An Issue Moves to Court 

The board moved for a mandatory preliminary injunction to compel Ms. Lambert to maintain not more than two pets, to remove the other dogs from her unit, and to enjoin her from keeping any pets that cause a nuisance to others who live and work in the condominium. She contended that only one of her dogs was a pet and the others were service animals that she requires to cope with a psychiatric disability. She counterclaimed that the board had discriminated, failed to provide a reasonable accommodation and retaliated under federal, state and local law. While the court granted the board’s motion for a preliminary injunction, it denied the board’s motion to dismiss the counterclaims. It said that Ms. Lambert needed to retain a dog behavior specialist to reduce the barking of her dogs; that she needed to hire a contractor to soundproof the shared walls of her unit; and that only two dogs were to be on the terrace at any time. It ordered the board to post an undertaking in the amount of $50,000 as security for any damages Ms. Lambert might incur if it were later found that the preliminary injunction was wrongfully granted. In denying dismissal of the counterclaims, the court found that Ms. Lambert’s allegations surrounding her alleged disability, the board’s knowledge of the disability, and the board’s conduct were sufficient to demonstrate discriminatory intent at the early stage of the litigation when such allegations are deemed to be true. 

What a Board Should Know 

It is important that boards respond promptly to complaints from unit-owners to prevent nuisance situations from spiraling out of control and to avoid being sued by unit-owners for failure to enforce the rules. In this case, the board quickly mustered a barrage of complaints from unit-owners and neighbors from the adjacent building, including photos and videos documenting the offending conduct. But without seeking a temporary restraining order at the outset, the offending conduct was allowed to carry on from June 2022 until the issuance of the preliminary injunction in March 2023. Moreover, the court did not order that Ms. Lambert remove any dogs from her unit. Because the parties will now proceed to litigate the validity of Ms. Lambert’s discrimination claims, the dogs may remain in place for a long time before their final status is resolved. But if the board ultimately prevails on its claims that Ms. Lambert has violated the bylaws and house rules, it may be entitled to recover its reasonable attorneys’ fees from Ms. Lambert. Unit-owners who own noisy or vicious pets often argue that they are service animals or emotional support animals, and boards will typically need to consult with counsel to ascertain whether the applicable requirements have been met to avoid running afoul of anti-discrimination law.

Attorneys:

For the condo: Rivkin Radler; Braverman Greenspun in defense of counterclaims. 

For Nicole Lambert: Adam Leitman Bailey

Scott Pashman is a member of the law firm Cozen O’Connor.