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NYC Pet Law - Having a Dog under a No-Pet Lease - Eviction Proceedings and Strategy - Section 27-2009.1 of the NYC Administrative Code.

1st Published on 11/06/03; Last Update: 12/16/08 21:07

When a Tenant Buys a Dog in New York City - No-Pet Provision in Lease

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Before starting the overall discussion below, 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:

• Information by the New York Human Society about proposed law number 380 in a section entitled "LEGISLATIVE ALERT - ATTENTION NYC RESIDENTS NYC PETS IN HOUSING /INTRO. NO. 380 (May 29, 2003)"

• A useful article about the New York Pet Law entitled "Pets in NYC Housing" prepared by Calle & Lee, LLC, a New York law firm

• A useful article about the New York Pet Law, entitled "New York City: The Pet Law § 27-2009.1 of Administrative Code of the City of New York - Keeping Spot, Fluffy & Polly Home... A Briefing Paper from NYCDH", apparently prepared by the New York City Department of Health

• A useful article about the New York Pet Law prepared by pet attorney Karen Copeland, Esq.

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:

• Substantive Defenses: (i) Grandfather Clause - Enables Tenant to Replacement; (ii) Medical or Psychological Need; (iii) Waiver by Landlord
• Calculating the 3-Month Period - Very Tricky and Not Necessarily Obvious - Making the Issue Triable in Many Instances
• When an Eviction Proceeding is "Commenced"
• The Eviction Proceeding Outlined - Various Technicalities to Keep in Mind
• Obtaining Legal Advice and Legal Representation; Other Sources
• Material Facts and Legal Issues to Keep in Mind for Your Attorney
• Material Evidence Which Was Rejected at Trial - as Hearsay
• The Things You Can Do to Maximize Your Chances of Winning
• Pretrial Discovery Recommended
• List of Defenses to Maintain for any Appeal
• Be Prepared to Appeal if You Should Happen to Lose the Eviction Proceeding in the Housing Court - List of Potential Issues for Appeal
• Attorneys' Fees Generally Paid by the Losing Party - Some Pet Law Cases
• A Final Word

Substantive Defenses: (i) Grandfather Clause - Enables Tenant to Replacement; (ii) Medical or Psychological Need; (iii) Waiver by Landlord

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.

Calculating the 3-Month Period - Very Tricky and Not Necessarily Obvious - Making the Issue Triable in Many Instances

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.

When an Eviction Proceeding is "Commenced"

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.

The Eviction Proceeding Outlined - Various Technicalities to Keep in Mind

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:

• 3/23/03 - Dog is purchased and brought to tenant's apartment
• 3/31/03 - Evening doorman sees dog - the only doorman, who works from 4pm to 1am, 6 days per week
• 4/3/03 - superintendent sees dog
• 4/4/03 - doorman and superintendent report existence of dog to the landlord
• 4/8/03 - landlord tells tenant on sidewalk that tenant has to get rid of dog because of the no-pet lease clause - tenant says he will get back to the landlord with an answer, but in fact does not intend to do so, and accordingly does not get back
• 4/15/03 - landlord waits no longer and sends letter to tenant warning tenant to get rid of dog. This letter is not a statutory requirement - tenant gets letter and fires back angry letter.
• 4/18/03 - tenant writes angry letter to landlord in response to 4/15/03 letter stating that it is the tenant's right to have a dog because of the tenant's history of dog ownership [in fact the law required that a replacement dog be purchased more quickly than I purchased the replacement dog]
• 5/8/03 - landlord hires attorney
• 5/15/03 - Landlord's attorney sends 10-Day Notice to Cure Violation to the tenant [a statutory requirement]. Tenant does nothing. Also, it should be stated that the tenant should not do anything to make the landlord believe that the dog is being removed from the building, in which case the 3-month period would have to start all over again at some later time, when the tenant had the dog in the building with the intention of keeping it in the building.
• 6/10/03 - Landlord's attorney sends 7-day notice to evict tenant from apartment [a statutory notice] - tenant did nothing [except hire an attorney]
• 6/17/03 - 6/27/03 - Landlord's attorney tried without success to serve tenant personally - but was unable to do so
• 7/10/03 - Landlord's attorney had process server nail and mail Notice of Petition and Petition to tenant's door [a statutory requirement if personal service cannot be had]. This is the point at which the eviction proceeding was "commenced", according to the trial judge.
• 7/14/03 - Landlord filed Proof of Service in Court within the 3 business days required by the statute

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.

Obtaining Legal Advice and Legal Representation; Other Sources

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.

Material Facts and Legal Issues to Keep in Mind for Your Attorney

There are some things which you should remember to investigate and then tell your attorney:

• whether the landlord has accepted your rent check after sending you the 10-Day Notice to Cure, 7-Day Notice to Vacate, or the Notice of Petition and Petition - acceptance of a check may vitiate and render moot these litigation notices and other papers as no longer valid after the landlord has accepted payment of rent for a period after such litigation document was served on the tenant. This would be true if the rent check or checks was not deposited. Also, I would argue that billing you for rent during this period should amount to the same effect.
• Whether the landlord is suing other tenants with dogs and settling with the tenants permitting them to keep their dogs in exchange for paying higher rent. Even if the landlord agrees to capital improvements to theoretically justify the increased rent, it would still be something aking to extortion.

Material Evidence Which Was Rejected at Trial - as Hearsay

There were several rulings at trial which made the case more difficult:

• The receipt for the purchase of the dog was not admitted into evidence; I had wanted the receipt into evidence to prove the date of purchase of the dog. the Judge called the receipt hearsay
• The papers constituting "title" for the dog were not admitted into evidence; these papers also gave the date of purchase of the dog. The Judge called such title papers hearsay
• A receipt dated 4/6/03 for purchase of various dog items (dog food, leashes, animal toy) was not admitted into evidence as hearsay. This receipt would have been useful to show that I had dog on 4/6/03. I was allowed to testify that I bought items for the dog on such date (without admitting the receipt into evidence). Also, after the purchase I went to a widely-publicized yellow-ribbon small-town event in New Jersey which was admitted into evidence, also to show that I owned the dog on that date.
• Witnesses (friends and fellow-dog owners on the block) came into court to testify about seeing the dog being walked on the street - hence openly keeping the dog - but they were not allowed to calculate the date by reference to our statement to them at the time that we owned the dog, for example, for 3 days. They had to try to place the date independently. One witness remembered that on that date he attended a birthday party, an annual event, and remembered the date for such reason.

The Things You Can Do to Maximize Your Chances of Winning

Looking back, I wish I had done the following things, which would have made it easier for me to win, I believe:

• Used a camera or digital video camera to record our walking of the dog on the sidewalk, and in the lobby of the building, with something to be able to fix the date. Some cameras may fix the date, but then was the camera fixed correctly. Also some photographs may bear the date of development, but was this date just some more hearsay? If you show a magazine cover or newspaper, one could argue (even if you could read the date) that this could have been done weeks after the date of the publication). You should try to be creative here.
• Also, you should try to get pictures of the doorman, superintendent, other employees of the building - perhaps across the street while you are walking the dog, even if he cannot see the dog. The picture shows that such employee was there when you had the dog. The point, however, is how do you date the picture.
• You might have dog pictures each day (or weekly) from the date you bought the dog up to the present, which might help date the dog (and then may not, as too difficult).
• You should definitely purchase dog items in a local store as soon as you acquire the dog, and save the receipt - at least you can recollect the date from the receipt, even if the receipt is not admitted into evidence.
• Also, you should go to the vet as soon as you get the dog, and keep the receipt, which will remind you of the date you went to the vet with your new dog.
• You should take pictures of other dog-walkers showing your new dog and their dog, in support of later claims during trial that you walked the dog openly on such and such a date, and to bolster the testimony of other dog owners at your trial.
• Remember, you are going to have to create a record which shows open and notorious keeping of a dog, but at the same time during that critical 6-week period you don't want the landlord actually finding out. This is a tought task, but this is the way the law is written and carried out through trial at court.
• Also, don't make outlandish claims in Court. I had a way to fix a specific meeting I had with the landlord (by reference back about 1 week from the date of the 4/15/03 letter from the landlord). Don't create details which you cann't remember because it may sound fishy, and contrived. Have some good reason for remembering dates, and you can do this especially when you plan to do this from the start.
• Keep a log of events to enable you to refresh your memory. You might have neighbors (dog walkers) initial your book and date the time of entry to show that they saw you and your dog on a certain date.
• Be creative and figure out how to prove you had the dog openly. Think about the dog's barking. You might go to neighbors and ask if the dog is bothering them, and create an entry in your log. Don't accidentally knock on the door of the landlord or superintendent!
• Make a motion for summary judgment arguing (with supporting evidence) that you bought the dog and kept it openly for the requisite period, and putting in affidavits from persons in the neighborhood who can swear to your non-hiding of the dog.
• Make a motion to dismiss the action for failure to serve the Petition and Notice of Petition properly, and for lack of jurisdiction, assuming the facts warrant such a motion. If you win the motion, it will generally be too late for the landlord to institute a new proceeding within the required 3-month period. If you have grounds for a dismissal of the proceeding, you should not fail to make the motion. There is no reason you should have to run the risk of eviction if you have grounds for asserting lack of service (which also means lack of personal jurisdiction).

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.

Pretrial Discovery Recommended

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.

List of Defenses to Maintain for any Appeal

Here are various defenses to consider:

statute of limitations (faiing to commence the eviction proceeding in time)

Failure to serve you properly or at all, including the failure to "nail" the notice of petition and petition upon your door

Waiver by your prior ownership of a dog

Breach of contract by owner who has let you have a dog for years, which should amount to a "practical construction" of the lease agreement by reason of such accomodation;

Other tenants have dogs

Need of the dog because of health or psychological state of one or more members of the household

New York Pet Law which has a limited grandfather clause for purchasing a new pet when the older pet has died

Abuse of process

Improper motivation in commencing the eviction proceeding - want to turn over your rent-stabilized apartment and increase the rent

Failure to identify the apartment correctly (which happened in our case, only 1/2 of the apartment identification was used)

Check to make sure that the proceeding was "commenced" within the 3-month period, otherwise, put in a defense of statute of limitation, and a related defense that the proceeding was not commenced within 3 months of finding out about the dog

Be Prepared to Appeal if You Should Happen to Lose the Eviction Proceeding in the Housing Court - List of Potential Issues for Appeal

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:

• The date of commencement of the eviction proceeding (the tenant wants the eviction proceeding to be "commenced" for substituted service - where the tenant is not served personally - as of the filing of the required proof of service in the Housing Court - the Judge in my case held that service was when the Notice of Petition and Petition were allegedly affixed to my apartment door (which we never had any indication ever occurred - thus a defense which should be asserted of lack of service and lack of personal jurisdiction)
• prior and long-time ownership of dog by tenant allows the tenant to purchase another dog without any time limitation - under various legal theories such as waiver by landlord, practical construction of lease, construction of the New York Pet Law, "grandfather" argument, and others legal arguments - the Appellate Term in New York, New York (i.e., Manhattan) has held differently from the Appellate Terms covering the other boroughs of New York City - and this issue needs to be taken up on appeal to the Appellate Term and possibly beyond to reverse that unfortunate, pro-landlord ruling, and allow tenants in Manhattan the same replacement pet protection afforded by decisions covering tenants in the other four boroughs of New York City
• Any asserted defenses which failed to prevail in the Housing Court - protect all such defenses with appropriate proof or offers of proof to enable these defenses to be asserted, if necessary, on appeal - DO NOT PERMIT THESE DEFENSES TO BE LOST THROUGH LACK OF ASSERTION

Attorneys' Fees Generally Paid by the Losing Party - Some Pet Law Cases

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.

A Final Word

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:

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Carl E. Person, Editor, LawMall, carlpers@ix.netcom.com
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