Opinion
1431-19
08-23-2019
WESTCHESTER PLAZA HOLDINGS, LLC, Petitioner-Landlord, v. Gertrude SHERWOOD & Sheldon Sherwood, Respondents-Tenants.
Gutman, Mintz, Baker & Sonnenfeldt, LLP, Attorneys for Petitioner, 813 Jericho Turnpike, New Hyde Park, N.Y. 11040 Gertrude Sherwood & Sheldon Sherwood, Pro-se Respondents, 40 East Sydney Avenue, Apt. 18B, Mount Vernon, NY 10550
Gutman, Mintz, Baker & Sonnenfeldt, LLP, Attorneys for Petitioner, 813 Jericho Turnpike, New Hyde Park, N.Y. 11040
Gertrude Sherwood & Sheldon Sherwood, Pro-se Respondents, 40 East Sydney Avenue, Apt. 18B, Mount Vernon, NY 10550
Adrian N. Armstrong, J.
On or about May 29, 2019, the Petitioner Westchester Plaza Holdings, LLC (Westchester Plaza) commenced this holdover summary proceeding seeking to evict the Respondent, Gertrude Sherwood and her Occupant son, Sheldon Sherwood (Occupant) on the ground that they had failed to cure their violation of the no-pet clause in the parties' lease. Specifically, Westchester Plaza claims that tenants had violated their lease by harboring a dog without landlord's permission, and seeks a final judgment of possession of the subject apartment, and a money judgment in the amount of $3,467.00 for use and occupancy through August 2019. Respondent has not appeared in this action, however, Occupant has appeared and asserted that the dog complained of is an emotional support animal entitling him to keep said pet in the subject premises.
A non-jury trial was held before this Court on August 22, 2019. Petitioner called Jana Schmidt, its in-house counsel who testified that she was informed sometime in late February or March of this year that Respondent and Occupant were harboring a dog in the subject apartment in contravention of the parties' lease. She further testified that after being informed of the dog in the subject apartment, she directed her staff to investigate. She testified that she was informed by her staff that visual observation and video confirmed that a dog was being harbored in the subject premises by the Respondent and her Occupant son. Ms. Schmidt further testified that neither Respondent nor her Occupant son asked for permission to have a dog in their apartment. Lastly, Ms. Schmidt testified that the Resident Ledger (Petitioner's 4 in Evidence) reflected that Respondent owed $3,467.00 in use and occupancy through August 2019. Petitioner also called Jeannette James, its property manager who testified that she first witnessed the Occupant walking the dog inside and outside of the building in either February or March of this year.
There is no dispute that respondents' lease (Petitioner's 1 in Evidence) prohibits keeping a dog in their apartment. The no-pet clause reads that "[d]ogs ... shall not be kept or harbored in the Apartment, unless in each instance it be expressly permitted in writing by Owner." Notwithstanding the no-pet clause, Occupant admitted that he brought the dog to reside in the apartment sometime in February of 2019 without the written permission of Westchester Plaza. Occupant testified that he suffers from kidney problems and depression and based on his condition he should be allowed to keep the dog for his emotional support. In support of his position, he testified that he was advised by his therapist from the Westchester County Jewish Services, Marjorie Dinjee, that he obtain a dog for emotional support. Occupant further testified that after obtaining the Staffordshire Bull Terrier in February of 2019, he then applied to the US Service Animal Registry, and received a Service Animal Registration certificate and photo ID (Respondent Exhibit A in Evidence) for his dog as an Emotional Support Animal.
"No-pet" clauses have been held to be enforceable and to be substantial obligations of the tenancy ( Pollack v. Green Constr. Corp. , 40 AD2d 996 [1972], affd 32 NY2d 720 [1973] ; Matter of Paulsen Real Estate Corp. v. Grammick , 244 AD2d 340 [1997] ). To establish that a violation of the Human Rights Law (Executive Law art 15) occurred and that a reasonable accommodation should have been made, the Occupant must demonstrate that he is disabled and that because of his disability it is necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations could be made to allow him to keep the dog. A reasonable accommodation may be required by the State's Human Rights Law if respondent can establish a need. The burden is on the party requesting the reasonable accommodation (see Executive Law § 296 [2] [a] Matter of One Overlook Ave. Corp. v. New York State Div. of Human Rights , 8 AD3d 286, 287 [2004] ). "To show that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, the complainant must demonstrate that her son was disabled, that he was otherwise qualified for the tenancy, that because of his disability it was necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations can be made to allow him to keep the dog. Here, the complainant failed to demonstrate through either medical or psychological expert testimony or evidence that her son required a dog in order for him to use and enjoy the apartment. Accordingly, the respondent's determination was not supported by substantial evidence." ( Id at 287 ; see also Matter of 105 Northgate Coop. v. Donaldson , 54 AD3d 414 [2d Dept 2008] ; Matter of Lindsay Park Hous. Corp. v. New York State Div. of Human Rights , 56 AD3d 477 [2d Dept 2008].) "The Human Rights Law provides that it is an unlawful discriminatory practice to ‘refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling’ ( Executive Law § 296 [18] [2] ). To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation may be necessary in order for the complainant to use and enjoy his or her apartment, and the building owner refuses to make such an accommodation." (Matter of Lindsay Park Hous. Corp. at 478.)
Here, the Occupant failed to submit evidence that the dog helped him with his symptoms of depression and kidney disease. Additionally, he failed to present any medical or psychological evidence to demonstrate that the dog was actually necessary in order for him to enjoy the apartment ( Matter of Kennedy St. Quad, Ltd. V Nathanson , 62 AD3d 879, 880 [2d Dept 2009] ). Moreover, Occupant did not call any professional witness from Westchester County Jewish Services, or anywhere else, to testify on his behalf. Thus the court only has Occupant's testimony and his documentary evidence registering his dog as an emotional support animal with an internet company, USAServiceDogRegistration, to rely on. It should be noted that the registration of a dog with this entity can be completed by anyone after paying a fee and there is no case law or statute requiring this Court to accept this entities determination that a dog is deemed to be an emotional support animal.
As such, the court finds that Occupant has failed to carry the burden of establishing through either medical or psychological expert testimony that the dog is an emotional support animal necessary for him to enjoy the use of his apartment. During the pendency of this action Respondent and Occupant remained in possession of the premises and petitioner is also now entitled to a money judgment in the amount of the outstanding rents and use and occupancy. Petitioner's rent ledger reflects that $3,467.00 is due through August 2019. Respondent has not appeared in this action and Occupant has not disputed this amount. Accordingly, final judgment of possession to petitioner with use and occupancy in the amount of $3,467.00 representing all rent through August 2019. Since this proceeding is based upon a claim that Respondent has breached a provision of the lease, the Court shall grant a 30 day stay of issuance of the warrant, during which time the Respondent may correct such breach and pay the outstanding arrears.
This constitutes the decision and order of the Court.