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Before starting the overall discussion, I want you to know that you should hire a knowledgeable attorney immediately, and definitely before you buy a dog, to maximize your chances in keeping both your new dog and your old apartment. The reasons for this will become clear throughout the article. The law needs to be explained carefully to anyone undertaking to buy a dog because of the serious threat that you could lose the right to continue residing in your apartment or other multiple dwelling in New York (especially in Manhattan). Now that this has been said and emphasized, let's continue with the discussion.
For various reasons - mainly related to higher profits - most apartment leases in rent-controlled and rent-stabilized buildings in New York City contain a provision prohibiting ownership of pets.
The profit potential for a landlord comes in evicting a tenant whose apartment is subject to the NYC rent-controlled or rent-stabilized statutes, which generally permits the landlord to increase the rent for such apartment for the next tenant, or possibly to try to have the apartment decontrolled and re-rented at market rents.
I am a lawyer with more than 30 years experience in litigation and trials, including several years in real estate and landlord-tenant litigation, which gives me an important perspective, both as a litigating lawyer, and as a tenant (with a lawyer) defending an eviction proceeding commenced to enforce the landlord's no-pet clause.
We purchased our dog as of right, we thought, because we had always owned a dog in the building, for about 30 years, with only two exceptions (brief periods of 1 month and then 18 months after our first and second dogs died, before purchasing replacement dogs). The eviction proceeding was brought by reason of our third dog (a "Sheltie" or Shetland Sheep Dog, also popularly called a miniature Collie).
Many pets (such as cats, fish, hamsters, parrots) are difficult to detect, and to such extent a no-pet clause is difficult to enforce and usually meaningless. Dogs, however, are different. Because of the need to take them outside and, to a lesser extent, the sound-level of their barking, the presence of a dog in an apartment is difficult to hide.
Under the New York Pet Law (Section 27-2009.1 of the NYC Administrative Code), within 3 months (not 90 days, but 3 months) after a landlord or his agent (such as doorman or superintendent) knew or should have been aware of the presence of a dog in the apartment of a tenant - the landlord must COMMENCE a proceeding to evict the tenant for breach of the no-pet lease provision.
It is important to understand the law. It is somewhat tricky. Some excellent sources for information about the Pet Law and litigation thereunder are:
I have just gone through an eviction proceeding for purchasing a dog (on 3/23/03) and keeping it in my rent-stabilized apartment. The eviction proceeding went to trial and a judge (without any jury) decided the matter in my favor, on 10/28/03.
As a result of this terrible and drawn-out experience (from 3/03 to 10/03), I am writing this mini-website, to provide information which will be of value to other tenants in NYC who may want to buy a dog (and are faced with a no-pet provision in their lease). The NYC law also applies to provisions in co-op buildings and possibly condos, as well as rent-stabilized, rent-controlled buildings, and multiple dwellings which are not subject to rent control.
Also, as a countermeasure, I commenced a countersuit against the landlord, which I withdrew without prejudice after winning the eviction proceeding. A copy of the complaint brought in a different court (the Supreme Court, County of New York) can be seen and downloaded at A copy of my counterclaim complaint commenced in a different court because of the lease which prohibits any monetary counterclaims from being brought in any eviction proceeding.
There currently is a bill pending in the New York City Council which would make the NYC Pet Law more favorable to tenants. Any person interested in this mini-website must seek to learn whether any amendments to the NYC Pet Law have been enacted by the City Council. It is reported that landlords are bringing pressure on City Council members not to enact the proposed amendments.
In this overall topic of the NYC Pet Law and eviction proceedings relating thereto, there are some main points to discuss, as follows:
The first thing for you to consider is whether you have any substantive defenses (i.e., reasons under law which would enable you to buy and keep the dog). I am not trying to be all-inclusive at this point, but want to point out that there is a grandfather clause under the NYC Pet Law which permits a tenant to obtain a replacement dog within 30 days of the death of the tenant's dog.
Also, the NYC Pet Law permits a tenant to obtain a new dog if the tenant has medical or psychological need for the dog. In such a case, you would have to document this need and be able to have the medical doctor, psychologist or psychiatrist testify at trial. A letter or affidavit will not suffice at trial because it would be hearsay, and the landlord would not be able to cross-examine the letter or affidavit.
If your landlord has signed something in writing which is a waiver of the no-pet provision you would have a defense. If the waiver is not in writing, you are entering the costly field of litigation and trial to try to establish that there is a waiver, taking into account various past court decisions which do not give much help to the tenant.
There are other possible defenses such as (i) intending to increase the rent rather than to get rid of the pet; (ii) fraudulent advertising under Sections 349, 350 and 350-a of the New York General Business Law; (iii) abuse of process; (iv) malicious prosecution (after the tenant has won the eviction proceeding); (iv) RICO and New York's "Little RICO" statute; (v) breach of contract; (vi) construction of the lease in light of the tenant's dealings with the landlord; (vii) fraud by the landlord; and (viii) other defenses which do not presently come to mind.
The 3-month period requires you to count back from the date that the eviction proceeding has been "commenced" against you, the tenant. In the next section you will learn what "commenced" means. Once you understand the date that the eviction proceeding has been commenced, such as on July 10, 2003, you go back 3 months, which is April 10, 2003, at which date (or later) the landlord wins if the landlord proves that it knew or should have known about the existence of the new dog on or after April 10, 2003, but not before.
If, on the other hand, the tenant proves that the landlord (through its doorman, superintendent, managing agent, or other employees) either knew or should have known about the existence of the newly-acquired dog prior to April 10, 2003, then the tenant should win.
The whole trial (which lasted 5 days, afternoons only), was centered on the issue of when the landlord knew or should have known about the newly-acquired dog (purchased 3/23/03 and taken into the apartment on that same day, a Sunday).
The two alternatives in the phrase "knew or should have known" may not be treated equally by the judge, who may focus only on "knew" and not on "should have known", in which case the tenant's burden of proof will be materially increased.
"Knew" means actual knowledge of the doorman or superintendent, managing agent or other employee of the building. This may be difficult to prove because you can expect that the building's employees, owners and agents will testify that they did not see or hear the dog until sometime within the 3-month period.
The tenant then has to call witnesses (including the tenant and members of the tenant's family, friends of the tenant who visited the building and saw the dog, dog-walkers on the street who the tenant met shortly after buying the dog, and others who had knowledge of the newly-purchased dog).
The main problem with witnesses is trying to get them to recall a specific date without reference to a hearsay statement by the tenant that he/she bought the dog 3 days ago. When the witness is not allowed to rely on such hearsay to set the date for seeing the dog, it becomes far more difficult to prove the date at which the witness first saw the dog.
Before buying the dog, a tenant should consider how to document the events which will prove that the dog was being kept openly, for all to see (including the landlord's agents, doormen, managers and other employees).
Of course, you could knock on the door of the owner and tell him you just bought the dog, which would result predictably in a lawsuit against the tenant well within the 3-month limitations for commencement of the suit.
The tenant, because of the no-pet provision in the lease, has to do a tightrope act, of keeping the dog openly, but at the same time without having the landlord find out right away. The first few weeks are critical, of keeping the dog openly and at the same time not having the landlord find out. [I wish to note at this point that my own experience differed. I thought we had an unchallengable right to have the new dog because or out 30 years of dog ownership in the building - but I was wrong. Accordingly, I did not do what you need to do.]
The reason for this brief tightrope-walking act is understood only after you understand when an eviction proceeding is "commenced". For historical reasons designed to protect tenants from eviction without full compliance with various technical requirements, an eviction proceeding is not commenced upon service of the first of various documents required to be served on the tenant.
An eviction proceeding is "commenced" when the "Notice of Petition" (comparable to a summons) and "Petition" (comparable to a complaint) are personally served on the tenant or (in lieu of personal service) when a copy of the Notice of Petition and Petition are affixed to the tenant's door and mailed to the tenant (called "nailing and mailing" service).
This is what the Appellate Term of the Supreme Court has said in several opinions which were reported in the New York Law Journal. It is not clear to me, however, that this is the law because it is inconsistent with a long string of decisions which say that an action is commenced under the New York Real Property and Procedures Law ("RPAPL") when proof of service is filed with the Court clerk.
In my case, proof of service (by alleged nailing and mailing - I say alleged because there was no "nailing" that I ever saw) occurred on 7/14/03, but the Court held that by reason of these New York Law Journal decisions the "commencement" of the eviction proceeding occurred on 7/10/03 (the date of alleged "nailing and mailing"). This decision gave the landlord 4 extra days in our case, so that the landlord had 3 months and 4 days from the date of filing of the proof of service (rather than the statutory 3 months).
As it turned out, these 4 additional days made no difference in our case.
I point out this 4-day difference (the difference could be as much as 5 or 6 days - depending on weekends, holidays, and whether the full 3 business days were used between service and the required filing of proof of service within 3 days) because I believe that in an appeal a higher court could hold that "commencement" is upon filing of proof of service, not at the service of the papers (personally or by nailing and mailing), for reasons discussed above.
To commence an eviction proceeding under New York law, the landlord is required to do various things. To help you understand how the 3-month period fits in to the overall dog-purchase, eviction proceeding scenario, I am going to provide a hypothetical timetable, pointing out which events are statutory and which are not:
The first of the statutory-required communications to the tenant occurred on 5/15/03 and commencement of the proceeding occurred on 7/10/03, which is almost 2 months of legal communications to "commence" the eviction proceeding.
If the tenant is able to inhibit detection by the landlord for perhaps 5-6 weeks, but still keeping the dog openly, and if the landlord does not rush to accomplish each stage of the required service and filing procedures, the passage of time will prevent the landlord from commencing the eviction proceeding within the statutory-required 3-month period, as was the case in my situation.
Evictions are highly technical, and if you acquire a new dog to be kept in a building under a no-pet lease, you should obtain a qualified lawyer as soon as possible, even before you make the purchase. You should let the lawyer look at the lease and consider the facts which you present, to find out whether you have any absolute right to keep the new dog, and if not, whether you have any defenses to any eviction proceeding which the landlord might commence against you.
You can obtain a list of attorneys who are familiar with dog cases by searching the internet. The New York ASPCA maintains a list.
Actually, you are not limited to avowed dog-litigation lawyers. A good real estate or landlord-tenant lawyer will suffice. There are many things which your lawyer should know and be able to do, and picking a good landlord-tenant lawyer is more important than selecting a lawyer who is familiar with dog-related eviction cases. Of course, finding a good landlord-tenant lawyer with experience in dog-related eviction cases would be the best.
You will probably wind up paying between $175 and $300 per hour. The eviction proceeding could cost $5,000 to $10,000 or more. If you win, you should be able to recover your legal fees from the landlord, but if you lose you might have to pay your landlord's legal fees, which will probably be higher than your legal fees.
There are some things which you should remember to investigate and then tell your attorney:
There were several rulings at trial which made the case more difficult:
Looking back, I wish I had done the following things, which would have made it easier for me to win, I believe:
Another point should be discussed, which is strategic placing of the dog during the critical period of the first 6 weeks, which undoubtedly is why the Pet Law requires that the dog be kept in the apartmently "openly". The statute doesn't say that the dog has to be in the apartment or outside the apartment 24 hours per day, and it would seem lawful and appropriate if a tenant did have the dog for some hours per day at some other place, to reduce the likelihood of detection of the dog by an employee of the building, and reporting the presence of the dog to the building owner. We did not go through this at all because of our mistaken belief that we were entitled to a replacement dog. We owned 2 dogs for span of 30 years and believe our new dog was grandfathered in (and even wrote to the landlord about this right of ours) and only found out there was no such right when talking with a lawyer for the first time after the landlord started sending notices to us.
We did not have any discovery in our case but you will find that having discovery will make it easier for you to prove your case. You can take depositions of the landlord, his superintendent, the doormen, and other employees in the building to be able to push the date of knowledge back to the earliest applicable date or even before (because of some memory failure by the witness). Also, you can take depositions of other dog walkers, and be able to use the depositions in lieu of live testimony upon a showing that you could not find them to testify at trial.
During this discovery you could take the deposition of the pet store owner or sales clerk (noticing it for their place of business to enable you to expect their cooperation).
Anyway, this is what I wish I had done.
I understood from the outset of the eviction proceeding that there were certain issues which might (or probably would) be decided adversely in the lower court (the Housing Court), and that I might have to take one or more of such issues up to a higher court on appeal if I lost the initial eviction proceeding. These issues are:
Board of Managers v. Lamontanero, 206 A.D.2d 340, *; 616 N.Y.S.2d 744, **; 1994 N.Y. App. Div. LEXIS 7121, *** (2d Dept. 1994) held that losing party (condominium Board of Managers) was responsible to pay the condo owner's legal fees after the eviction proceeding was dismissed against the condo owner (for failing to commence the eviction proceeding within 3 months from discovery of the dog). Legal fees were awarded by reason of the condominium agreement which provided for legal fees to be awarded the winner in any action brought under the condominium agreement.
In ATM One, LLC v. Albano, 2001 NY Slip Op 50103U, *; 2001 N.Y. Misc. LEXIS 910, ** (Distr. Ct. of NY, 1st Distr. Nassau Co., 2001) the court evicted the tenant for having a dog in violation of a lease provision, held that no defenses applied, but held that in the Court's discretion it would not require the tenant (a single mother with a small child) to pay the landlord's attorney's fees, even though the lease provided that attorney's fees would be paid by the tenant if it lost (and hopefully would require the landlord to pay the tenant's legal fees if the tenant won).
To the same effect is 1st Department case Park Holding Company v. Emicke, 168 Misc. 2d 133, *; 646 N.Y.S.2d 434, **; 1996 N.Y. Misc. LEXIS 257, *** (1st Dept. 1996) (eviction and attorneys' fees to be paid by the tenant, as provided in the lease). This is the case which needs to be reversed in order to give Manhattan apartment dwellers the same rights to obtaining a replacement dog as exist in the other boroughs of New York City.
By reason of the following provision in the condominium agreement,
In any proceeding arising from an alleged default by a unit owner, the prevailing party shall be entitled to recover the cost of the proceeding and such reasonable attorneys' fees as may be determined by the Court.
the Court held that attorney's fees were payable by the condominium board to the dog-owning condominium owner. The Board of Managers, acting on behalf of the unit owners of Patchogue Homes Corp. Condominium #2 v. Lamontanero, 152 Misc. 2d 874; 579 N.Y.S.2d 557, *; 1991 N.Y. Misc. LEXIS 743, ** (Sup. Ct., Civ. Term, Queens Co. 1991).
You should carefully review your lease agreement to determine what your lease says about legal fees. More than likely, the landlord has a provision in the lease agreement entitling the landlord to legal fees if the landlord prevails in litigation with the tenant, and the question really is what does the lease say as to attorney's fees if the tenant prevails. Some courts say that it should work both ways.
When you read and understand everything set forth in this website, including the material referenced by link, you should have a formidable understanding of the problems involved, perhaps more knowledge and insight than some attorneys (without actual pet-law experience) who might be involved representing tenants. My suggestion is that the tenant keep close tabs on the case and demand copies of all pleadings, motions, stipulations, correspondence and other material documents which are transmitted to opposing counsel, the court or filed in the case. This is the only way you can keep track of what is happening. Also, make sure you have meetings or telephone conferences with your attorney to ensure that he/she is actually pursuing your claims and defenses, so that you don't waive any of them without your knowledge and approval.
Good luck!
Note: If you want to discuss your own situation, I am available to do this by telephone call, to my telephone number 212-307-4444. I charge $6/minute for my time with you on the telephone, payable in advance through PayPal. For further instructions, please go to my website Instructions for Speaking with Your Telephone Lawyer. Or, call me at any time during 9:00 a.m. to 6:00 p.m. Eastern Standard Time to arrange for the call and the amount of advance fee to be paid (either by PayPal or a credit card as either member or non-member of PayPal, click on the Buy Now (PayPal) Button below:
Carl E. Person, Editor, LawMall, carlpers@ix.netcom.com