Appeals Court Overturns Eviction for Dog

Pet-owning tenants can breathe a little easier, thanks to a decision handed down last month by a state appeals court.

In a 4-1 ruling, the Appellate Division, First Department, overturned a lower-court decision in Seward Park Housing Corp. v. Carol Cohen, and rejected the eviction of a Lower East Side couple for violating the no-pet clause in their lease. The Appellate Division held that Max and Carol Cohen’s landlord had not filed for eviction within 90 days of finding out about their dog, as required by city law.

More important, the court found that landlords are assumed to know that a tenant owns a pet if building employees, such as a superintendent or janitors, know that the pet is on the premises. "It really re-establishes the old standard that the landlord is held to constructive notice--that they should have known about it--instead of actual notice," says Karen Copeland, a lawyer who has represented numerous tenants in pet-eviction cases.

However, the decision only affects Manhattan and the Bronx, says Copeland; the appeals court covering Brooklyn, Queens, and Staten Island has ruled differently, and the issue may wind up in the state’s highest court. Bradley Silverbush, a lawyer for the landlord, told the New York Law Journal that his client will probably appeal, and has been urged to do so by members of the Rent Stabilization Association, the main landlord organization in the city.

The Cohens, who have lived in the Seward Park co-ops on Grand Street since 1960, acquired a puppy in September 1996, naming him Rocky. The landlord served an eviction notice in February 1997, five months later. The building’s manager--the landlord’s only witness in the original trial--testified that he did not find out about the dog until three months before filing for eviction.

But in the decision, Justice John T. Buckley noted that security and maintenance workers frequently saw the Cohens walking Rocky in and around their building, and often played with him. "Common sense dictates that landlords will have an agent or employee checking the property regularly," Buckley wrote. "A review of the facts in this case reveals that [the landlord] would have to close its eyes, cover its ears and hold its breath to have remained ignorant of the presence of the puppy."

Justice David Friedman dissented, arguing that that the ruling means landlords who do not live in a building "can no longer enforce no-pet clauses unless they hire employees whose function it is to actually visit the premises and ferret out lease violators."

--Steven Wishnia