Co-Op's Strict Breed Restriction Leads to Court Dismissal in Pit Bull Case

When setting house rules and regulations on pets, boards need to pay strict attention to wording. As 360 E. 72nd St. Owners Inc. v. Wolkoff illustrates, boards can run into trouble when their pet policy goes beyond prohibiting certain breeds of dogs. Sometimes, less is more.

 

THE DETAILS 

In 2013, the board at 360 E. 72nd St. adopted a house rule qualifying its “pet friendly” status by prohibiting certain breeds of dogs, including pit bulls, due to concerns about potential aggressiveness. In 2016, the board further revised the pet policy to require the completion of a pet registration form requiring the breed to be identified and to authorize the removal of a pet that “behaves in a dangerous or threatening manner to shareholders or their guests.”

The defendant, Sabrina Wolkoff, never completed the pet registration form for her dog and never identified the breed. In May 2021, the co-op requested that she submit the results of a DNA test to confirm and identify her dog’s breed. Those results indicated that her dog was 91% American Staffordshire Terrier, which is one of four recognized pit bull breeds. 

In June 2021 the co-op’s counsel notified the defendant that she was in violation of the house rule and demanded that she remove the dog from the building within 30 days. Wolkoff refused and in October 2021, the board served a notice to cure and a notice of termination of her proprietary lease and commenced the instant action seeking a permanent injunction compelling the immediate removal of the pit bull.

 

IN COURT

The board’s cause of action alleged that the harboring of a restricted breed was a breach of the proprietary lease and house rules, and the vicious propensity of the dog’s breed was sufficient to warrant removal. Its complaint included a single allegation evidencing the dog’s “potential aggressiveness” involving the dog’s (unsuccessful) attempt to attack and bite the process server in the hallway outside the defendant’s apartment.

Wolkoff responded that the co-op’s failure to act within the first three months of having actual knowledge of the dog being in the building resulted in a waiver of its right to enforce the breed restriction. Further, the defendant denied the allegation involving the process server and noted that the single allegation of objectionable behavior should be insufficient to support a claim that the dog constituted a nuisance.

After approximately two years in court, the defendant again moved for the dismissal of the proceeding. The court concluded that the board failed to establish that the dog's conduct created a nuisance. The court cited the testimony of numerous witnesses who had positive interactions with the defendant’s dog. Moreover, not a single witness testified that they had seen the dog behave violently.

With regard to the three-month rule, the court concluded that the strict interpretation of the statute requires the commencement of a summary proceeding or action within that time period, and not merely the sending of letters or attempting to terminate the proprietary lease, and that the board had failed to do so.

 

THE LESSON FOR BOARDS 

While rules and regulations can sometimes be used to curb certain behaviors, boards should be made aware that seeking judicial intervention to enforce them regulation may nevertheless be problematic. Here, the board’s adoption of the dog breed restriction created a presumption of viciousness while also creating a potentially irreconcilable conflict with applicable law. 

By not commencing an action within the statutory three-month period, the board was entirely dependent on its ability to demonstrate through evidence and testimony that the dog “caused damage to the premises, created a nuisance or interfered with the health, safety or welfare of other residents of the building.” In this case, the facts did not support such a determination. 

 

COUNSEL

For 360 E. 72nd St.:  Meister Seelig & Fein LLP

For Wolkoff: Karen Copeland 

 

Lloyd F. Reisman is a partner at the law firm Belkin Burden Goldman. The statements and views in this article are his own and not necessarily those of the firm.

Are People Who Live in Dog-Friendly Buildings Happier? 

The answer is a no-brainer for dog owners, although some of their neighbors might still be on the fence.

By Susan Lehman 

April 24, 2020  The New York Times

People who own dogs live longer. They’re healthier. They’re calmer. Their children are less prone to allergies. And they have government-sanctioned reasons to leave the house while sheltering in place. 

But what about real estate? Are people who live in pet-friendly buildings happier? Are their apartments more valuable? 

Anecdotal evidence strongly suggests that they are. 

Dogs aren’t big on social distancing. They lick, sniff and slobber on one another — and on people — in elevators, lobbies and common areas in pet-friendly buildings. Conversation, friendships and romance between owners often form as a result. 

 

“Pets are playful, so buildings with pets have more colors and are brighter and more fun to live in. Pets add vibrancy,” said Dr. Zaynab Satchu, a veterinarian in New York and co-founder of Bond Vet. “Dogs bridge the gap between busy people who wouldn’t otherwise meet.”

Dr. Satchu said she wouldn’t know 80 percent of her Brooklyn neighbors were it not for Tillie, her mini-goldendoodle. 

A lot of other dog owners agree. “My social life doubled when I got a dog,” said Lara Benusis, who lives in Long Island City with Kim-Chee, a Pomeranian terrier. Ms. Benusis is in a Ph.D. program in bio-behavioral sciences and teaches yoga. 

Before she began sheltering-in-place, Candy Pilar Godoy, a freelance photography producer who lives in Hell’s Kitchen, wrote about her travels with her two dogs, Boogie, a pug, and Marcelo, a Chihuahua. 

“I speak to my neighbors who have dogs way more than I speak to the others,” Ms. Godoy said. “We exchange tips, see each other at the local dog park, and our dogs are even friends. They stop to say hello and sniff each other in the hallway. The camaraderie of being dog lovers makes us allies — especially at board meetings.”

So maybe it shouldn’t have been a surprise when a well-established New York building changed its policies after decades of refusing to allow pets. 

Stewart House, a white-brick residential co-op building in Greenwich Village with more than 350 apartments, took the plunge two years ago. It has large apartments with gracious layouts, and lots of closets, an enclosed garden, on-site parking and other white glove amenities. 

Informally known among realtors as the “House of No,” Stewart House has long enforced various restrictive rules: no washer-dryers, no sublets, no guarantors, no pieds-à-terre, and, no pets. (At one point in the building’s history, hamsters and fish were outlawed as well as dogs and cats.) 

 

But, in 2018, Stewart House relaxed its policy and for the first time since it opened in 1960, allowed dogs, at least certain kinds of dogs. (Cats, birds, fish, frogs, turtles, tortoises, lizards, guinea pigs, chinchillas and gerbils are also allowed, subject to the building’s application and approval process and governing rules.) 

Erin Hussein, the co-op board president who also works in alumni relations, said the change was prompted by the building’s interest “in being more inclusive, and more responsive to a wider range of tenants, some of whom want dogs.” Many shareholders say the change also had to do with service dogs, which are protected by New York housing law. As such, several service dogs were earlier able to sidestep the ban and move into the building.

Changing the rules and allowing dogs — subject to breed and size restrictions — gave the building power to control the types of dogs allowed in the building. Dogs that weigh 30 pounds or more are not allowed. Neither are Dobermans, Rottweilers or toy poodles. Dachshunds, chow chows, Jack Russell terriers, Old English sheepdogs, Lhasa Apsos and Dalmatians and other breeds considered “excessively prone to barking or being aggressive,” are also prohibited. (Ms. Hussein noted that the building also limits residents to two cats, “and you can only have two hamsters.”) 

Well-attended, full-building meetings in the Stewart House lobby preceded the change. There were raised voices, heartfelt exchanges. Stephen Perlo, a dog-less Stewart House resident and an agent at Corcoran, said: “People were fearful, especially people who don’t have dogs, afraid of what might or could happen if the building were overrun with dogs, but that hasn’t happened.” 

The changes resulted in no more than a few dozen new canine neighbors. The new neighbors were “Labs, doodles, very small dogs, the kind you see in most apartment buildings,” said Summer Zimberg, a Stewart House board member and a broker at Brown Harris Stevens. “The dogs have brought an overwhelmingly welcoming, inclusive and modern feel to the building,” she said. “The vibe in the building has changed. It’s a friendlier place, more social.” 

Dogs often play the dual roles of member of the clan and social ambassador, especially in New York City. 

“For many people, pets are members of the family, sometimes the only friend or family a person has,” said Karen Copeland, a New York lawyer who specializes in animal issues, including housing, custody and discrimination cases, and dangerous-dog proceedings. She said that New York housing and civil rights laws are increasingly protective of pet owners’ rights; as a result, she said, “Manhattan has pretty much gotten to be a pet-friendly little island.” 

Pet amenities — including on-site spas, roof top runs, “yappy hours,” a bone-shaped swimming pool for dogs — in some of the city’s new rental buildings suggest just how pet friendly Manhattan has become. 

Jonathan Miller, the president of Miller Samuel Real Estate Appraisers & Consultants, said that approximately 70 percent of all New York apartment sales are in pet-friendly buildings and that the number has remained fairly constant since 2011. 

Brokers say more and more buyers want to live in pet-friendly buildings, and that the law of supply and demand suggests these buildings enjoy enhanced value. 

“Are pets allowed? That’s the first thing potential buyers ask when I show them an apartment,” said Susan Abrams, a broker with Warburg Realty. “If one in three people have a dog or may want one, that eliminates one in three buyers” for the non-pet-friendly buildings. 

In addition to improving their owners’ social lives, dogs have also proven to be good for business. 

“Having a dog in New York is life-changing,” said Joanne Greene, a Brown Harris Stevens broker, who said Mac, her three-year-old labradoodle is “the service dog I didn’t know I needed.” Ms. Greene said she too has a new social life, thanks to Mac, and has also done business with neighbors she met through him. “I just sold an apartment to someone I met because Mac likes Ginger,” a neighboring hound. 

Then there are the opportunities for dogs to play matchmakers. 

“Dogs create warmth,” according to Pearson Marx, a writer who lives in a pet-friendly building on the Upper East Side with Cleo, a pit bull mix she adopted from a kill shelter. “They are instant icebreakers.” 

In New York, Ms. Marx said, doormen have assumed the function neighbors once had. “If your husband has a heart attack, or there is a giant cockroach in your apartment, you call the doorman, not your neighbor. We are so busy looking at our phones, rushing around, most of us don’t even know who are neighbors are — unless you have a dog.” 

Ms. Marx credits Cleo with introducing her a few years ago to a tall lovely man who lives in her building. The man liked Cleo and wanted a dog, but didn’t know if he had the time to care for a pet. Ms. Marx told him that just about any dog in a shelter would cut off its right paw to have just 10 minutes of his time. 

Soon after, she saw the man walking a rescue dog of his own. “It was the beginning of a lovely, comforting friendship,” Ms. Marx said. “We look out for each other,” adding that her new friend even set her up with a dog rescuer whom she dated for a while. 

The coronavirus has given rise to an enormous demand for companion animals, so much so that it may now be easier to find a vacant apartment than a dog to foster. 

On its website, the ASPCA Adoption Center in New York City said it is currently closed to the public, but noted that there was an urgent need for loving cat adopters in the Los Angeles area. 

The transformation of Stewart House into a pet-friendly building was made after the careful consideration of shareholders who both did and did not have pets. 

The residents with dogs have formed an informal community group and look out for one another, said Lori Solomon, one of the members of the group. When she broke her arm and couldn’t walk Marley, a cockapoo, several of her new friends in the building helped out. 

Anita Isola, a retired lawyer who does not have a dog, said, “The dogs open up connections,” adding that she has met many neighbors since the dogs arrived and keeps a bone in her apartment for her favorite pup who sometimes comes to visit. 

The board implemented a series of rules to protect the interests of non-pet-friendly neighbors. Building rules require owners to use the service elevator and prohibit lingering in the lobby, and prohibit nonresident dogs from entering the building at any time, even with a paid dog walker. 

Dog owners say they hear occasional grumbling and, especially when it is wet outside, get dirty looks in the elevators. One tenant mentioned complaints about owners and dogs hanging around the doorman’s station, in violation of the building’s rules prohibiting lingering in common areas. As a result, doormen are no longer allowed to give the dogs bones. 

But the consensus, even among those who opposed the change, seems to be that changing the pet policy at Stewart House was a matter of keeping up with the times. 

“Sure, there are people who have allergies or are scared of dogs. We’re living it,” said Martin Tessler, a retired businessman and a self-described member of the old guard (many of whom bought into the building because it did not allow pets). “I’m not complaining, just observing that things change.” 

Dogs, in the view of some, don’t just make people happier, they make them better. 

Rabbi Gadi Capela, of the Congregation Tifereth Israel in Greenport, N.Y., moved from Manhattan to Long Island a couple of years ago. He believes that dogs bring us closer to God. 

“Dogs don’t stand on ceremony. They accept you as you are,” the rabbi said. “They do not carry grudges. They are happy creatures who live in the moment. God wants us to live in the moment. Dogs teach us how.” 

Man hits Parks Department horse in face, but can’t be charged: sources By Rich Calder and Max Jaeger July 29, 2019 | 3:47pm |  Man hits Parks Department horse in face, but can’t be charged: sources Instead, the officers slapped Ruiz with a $100 ticket for allegedly smoking a hookah in the park and a disorderly-conduct violation punishable by up to 15 days in jail or a fine of up to $250, according to copies of the citations. The Parks Department claimed it didn’t put its hoof down because Teddy wasn’t seriously injured. “Teddy is a valued member of our Parks Enforcement Patrol team. As such, his safety is of concern and we are happy that he was not seriously injured during this unacceptable incident,” said spokeswoman Crystal Howard. But the head of the DC 37 Local 983 union representing PEP officers said they didn’t make the collar because the cops have told them the charges wouldn’t stick and the city is afraid of lawsuits claiming false arrest. “Our members are no longer making the arrests because now they have to worry about a liability issue of making a false arrest,” said the union’s president Joe Puleo. “It’s about time that the Parks Department stop putting these horses in harm’s way.” Animal-rights lawyer Karen Copeland of Manhattan was outraged that Ruiz didn’t face stiffer penalties, arguing that the uniformed parks officers were “acting under the color of authority” when their animal was attacked. “That’s striking out at that authority,” she said, comparing it to bashing a police cruiser with a hammer. “I think it was also animal cruelty. It was unprovoked and there’s absolutely no defense to an act against an animal like that.” Copeland noted that, if not for Teddy’s training and the control exercised by his rider, the horse could have reared back and bolted — potentially injuring both of them and bystanders. Ruiz could not be reached for comment.   ” - Rich Calder and Max Jaeger

New York Post

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