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    So you want to keep a pet, but your lease has a "No Pet" Clause
    by Karen Copeland, Esq.

    Defenses to a holdover proceeding based upon the harboring of a pet in violation of a "No Pet" lease provision.

    Two types of laws give an individual tenant, renter or cooperative shareholder the right to keep a pet, even if there is a "no pet" provision in the proprietary lease, occupancy agreement, house rules, or lease.

    The first, and most widely known types of laws are municipal or local "Pet Laws" which deem that any such "no pet" provision is waived for the duration of the tenancy if the landlord fails to enforce the provision by commencing an action or proceeding within three months of the tenant's open and notorious harboring of the pet.

    The second category of laws which would enable a tenant to keep a pet in spite of a "no pet" rule are the federal state, and local laws which prohibit discrimination against the disabled. Such laws mandate that a housing provider grant a "reasonable accommodation" necessary for a disabled person to "use and enjoy" his or her home.

    Recent developments in each type of law have enabled many individuals to keep pets, even in the face of considerable opposition by Boards and neighbors. While individual co-op boards and landlords may be within their rights to enact and enforce a "no pet" clause, such prohibitions fail in the face of superseding laws which give tenants the right to keep pets in their homes under certain circumstances, which are discussed here.

    The "Pet Law"

    In New York City (Administrative Code of the City of New York Section 27-2009.1) and Westchester County (Laws of Westchester County Section 694), statutes commonly known as the "Pet Law" give tenants in all multiple dwellings, including cooperatives and most condominiums, as well as rental housing, and government subsidized housing, the right to keep a pet, even if there is an applicable "no pet" clause in the lease.

    Under the "Pet Law", if a landlord fails, within three months of his knowledge of a tenant's open and notorious harboring of a pet, to enforce any applicable "no pet" provision, then any such provision is deemed void. The law applies to unit owners, as well as renters, in co-ops and condos, whether private or government subsidized.

    When is the proceeding "commenced" for purposes of the Pet Law?

    Appellate Division case law has confirmed that the proceeding is commenced by the service of the Petition and Notice of Petition. (RPAPL Section 731; CPLR Section 401) The case is not commenced by letters, or service of the predicate Notice to Cure or Notice of Termination. Thus, if the landlord fails to serve the Petition and Notice of Petition within three months of has actual or constructive knowledge of the pet, any "no pet" clause is deemed void pursuant to the Pet Law.

    The exception to this rule is if the tenant lies about the pet, says he will settle the case, says the dog is only temporary, or makes any representation about the removal of the pet that the landlord relies upon that representation in refraining from proceeding to enforce the "no pet" clause. In such a case the Court may look to the date of the service of the Notice to Cure for the date of commencement of the proceeding. So, if the landlord asks about the dog the recommended response is: "It's my dog. I'm keeping it."

    What happens if a tenant has had a pet for many years, but the pet dies? Can the tenant get a new pet to replace the old one under the "Pet Law"?

    For years, case law had confirmed that any "no pet" clause was waived years ago by the keeping of a first pet. Once the "no pet" clause has been waived for the duration of the tenancy, it is not revived by the introduction of any new pet, whether it be a replacement for a deceased pet, a second pet, or possibly even one of a different species than the first. Recently appellate case law has limited the New York City Pet Law waiver to a "per pet" basis. In other words, the reintroduction of each new pet revives the three month waiver "Pet Law" period in which the landlord may enforce a "no pet" clause. Legislation is currently pending before the City Council to codify the "per tenancy" waiver interpretation.

    In addition, recent decisions suggest that if a pet is kept for a period in excess of six years, the landlord may be barred from enforcement of a no-pet clause by the six year statue of limitations which applies to actions based upon contracts. That pet and any subsequent replacements may have the benefit of the defense of the statute of limitations if pets were kept for a period in excess of six years with no significant hiatus between pets. The landlord may be barred from enforcing the no pet provision due to the six year Statute of Limitations which applies to contracts, even if the landlord acts immediately, within the three month Pet Law waiver period to enforce a no pet clause against the second dog,

    There is no requirement under the Pet Law that the permission of the landlord be sought prior to introducing a pet into the home. As long as the Board's employees and agents are aware of the dog by your "open and notorious" behavior, constructive knowledge of the pet will be attributed to the Board, or landlord, in a court of law, for purposes of determining when the three month period commences.

    It's important to prove when the tenant got the pet, and when the landlord, by way of its agents and employees, became aware of the pet, and that the keeping of the pet was "open and notorious".

    The following suggestions may help to prove in court when a pet first entered the building and when the landlord became aware of it.

    1. The best proof is any communication from the landlord which shows that he knew of the dog or dogs for more than three months. Sometimes the landlord will even let three months pass between the time of service of the Notice to Cure and the service of the Petition and Notice of Petition commencing the holdover proceeding.
    2. Another form of proof is the testimony of any neighbors who are willing to come into court to testify. the neighbors should be able to testify how long you had the dog, and if the pet were seen by the landlord's employees. (Sorry, letters and petitions from neighbors generally are not admissible in a trial.)
    3. Create a paper trail of dated government documents and medical bills to indicate duration of pet ownership. Save the adoption certificate, license, bill of sale, or American Kennel Club papers you receive.
    4. Bring the dog to the veterinarian immediately. Save all bills and records of inoculations, rabies tags, spaying or neutering certificates.
    5. Take pictures of the pet in the apartment and in the building, and date them when you get them from developing. Every picture is worth a thousand words, so be creative. A photo of you, the dog, and the doorman next to the building Christmas display would show that the building's agents were aware of the dog at a certain point in time, for example. Every cat sits in the window: how about a photo, from the outside of the building, of your cat sitting in the window of your apartment, to prove "open and notorious" harboring of the cat? At least one case has been proven by the tenant's keeping careful photographic records of her dog's growth, from tiny puppy to full grown dog, in the apartment and around the neighborhood.
    6. Save any letters or complaints from the Board or management pertaining to the pet.
    7. Keep a log in a notebook, used exclusively for this purpose, in which you record any date that workers were in your apartment and saw the dog, or if the super or doorman saw the dog. Make sure that all entries are made on or near the time of the occurrence.

    Anti-Discrimination Statutes

    Cooperative and condo owners with a physical or mental disability are also protected by the federal Fair Housing Act and the City of New York Civil Rights Act. These laws provide that disabled individuals be given a "reasonable accommodation" to 'use and enjoy' their homes by "housing providers", including co-ops and condos. The failure of a landlord, cooperative or condo board to grant such a "reasonable accommodation" might be found to be an act of discrimination against a disabled person in violation of the aforementioned statutes.

    Federal and local case law has recognized that the keeping of a pet can be such a "reasonable accommodation" under the statutes. If a tenant can prove that he has any physical or mental impairment, (and, additionally, which interferes with a major life activity, under the federal law) and has a medical need to keep the pet, which must be proven with the testimony and support of a medical professional then the landlord must permit him to keep it.

    Failure of the landlord to grant such a reasonable accommodation to keep a pet is an "unlawful discriminatory practice" under the law, equivalent to refusing to put in a ramp for a wheelchair bound tenant.

    The co-op board, or individual unit owner who rents his unit could be liable for compensatory and punitive damages in state or federal court, as well as hefty fines which may be levied by such regulatory agencies as the federal Department of Housing and Urban Development, or the City of New York Commission on Human Rights for failure to grant such an accommodation to a disabled tenant.

    The federal Fair Housing Act, and the New York City Civil Rights Law require that a housing provider give a "reasonable accommodation" to a disabled individual to use and enjoy his or her home by keeping a medically necessary companion animal.

    The term "disabled" pertains to all kinds of mental and physical disabilities, not just such obvious disabilities as blindness or paralysis. The laws also cover people with conditions such as mental illness, chronic depression, diabetes, hearing loss, AIDs, arthritis. If the tenant can prove disability, (being on Social Security Disability is probably dispositive proof of disability in itself) and prove a medical need for a pet, then the landlord must permit the tenant to keep the pet, or face punitive damages under the statutes preventing discrimination against the disabled. The medical necessity of keeping a pet may be demonstrated, for purposes of filing a complaint with HUD or the City of New York Human Rights Commission, by a doctor's note attesting to the benefits provided by the pet. Your doctor must also be willing to testify at a hearing, although such cases usually settle quickly due to the serious "down-side potential" faced by a landlord.

    The law includes, but is not limited to, "seeing eye" dogs, and "hearing" dogs, but also companion animals who provide the service of emotional support to their disabled owners. For example, a key case recently before HUD fined a co-op board several thousands of dollars for refusing to grant the reasonable accommodation of non-enforcement of an applicable "no pet" clause to a tenant with chronic depression to keep her pet Yorkshire terrier, for the unconditional love the dog provides, which her psychiatrist attested that the tenant needed.

    If the Board or landlord refuses permission to keep an emotional support assistance pet, or refuses to rent to a disabled person who has shown a medical need to keep an animal, the aggrieved person may file a complaint against the Board with the City Civil Rights Commission or the State Attorney General Civil Rights Office, or file a complaint in federal and state courts for punitive damages for an unlawful discriminatory practice. The statutes may also be used as a defense to an eviction proceeding.

    These laws apply equally to the cooperator who rents his unit. The Board may scoff at being asked to refrain from enforcing their "no pet" rules for the benefit of a tenant with a disability such as chronic depression. Nevertheless, such a denial may cost thousands of dollars in fines and punitive damages if the tenant can prove her case to HUD, or in a federal court.

    ----------------
    This article is intended to be of general information and is not a substitute for legal advice. If you are being sued, see an attorney at once to help you to defend yourself and assert your rights under the law.

    Karen Copeland is an attorney in private practice focusing on issues pertaining to companion animals in housing. Formerly, she was a staff attorney for the Housing Litigation Bureau of the Department of Housing Preservation and Development of the City of New York. She may be reached at (212) 560-7154. Copyright Karen Copeland 1998; Karen Copeland gave me permission to put this on the website.

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