Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
Decided on December 30, 2010
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
Tenants appeal from (1) an order of the Civil Court of the City of New York, Bronx County (Paul L. Alpert, J.), dated November 7, 2008, which, inter alia, denied their motion to dismiss the holdover petition and granted landlord's cross motion to disqualify tenants' attorney; and (2) an order (same court and Judge), dated February 11, 2009, which denied tenants' motion for reargument and/or renewal of the prior order.
Orders dated November 7, 2008 and February 11, 2009 (Paul L. Alpert, J.), to the extent appealable, affirmed, with $10 costs. Appeal from that portion of the order dated February 11, 2009 denying tenants' motion for reargument, dismissed, without costs, as taken from a non-appealable order.
We agree that this holdover eviction proceeding, based upon allegations that tenants violated house rules and their proprietary lease by having "kept or harbored" a dog in the demised cooperative apartment premises, is not susceptible to summary dismissal. In a moving affidavit submitted on their initial motion to dismiss the petition tenants, husband and wife, alleged that the dog -- a Maltese named "Rocky" -- is owned by their adult daughter and resides in her nearby apartment, and that the dog merely "visits" tenants in the subject apartment at unspecified times and unstated intervals.[*fn1 ] Tenants' moving submission also included affidavits from several neighboring tenants who attested, in identical, unelaborated statements, that Rocky's visits occurred on a "daily" basis. These broad, unparticularized allegations, lacking evidentiary detail as to the nature and extent of the dog's presence in tenants' apartment or its schedule of supposed visits, fell far short of meeting tenants' burden to eliminate all triable issues as to whether they kept or harbored the dog in violation of the proprietary lease terms. Nor did tenants' reply affidavit, even if properly considered (cf. Jackson-Cutler v Long, 2 AD3d 590 ), cure the deficiency. Indeed, the factual averments set forth therein, acknowledging that the dog is generally walked "three times a day while visiting [tenants] ... after lunch, at approximately 5:00 - 5:30 p.m., and less frequently at 9:00 and/or 11:00 p.m.," actually tend to support a finding that the dog's visits are regular and reoccurring, and thus buttress the landlord's contention that tenants materially breached the no-pet provisions of the proprietary lease.
It need be emphasized that the relevant inquiry in this case centers not on whether the dog sleeps or resides (primarily or otherwise) in tenants' apartment nor on who owns the dog (see generally Dufour v Brown, 66 AD3d 1217 ). Had the parties intended to limit the definitional reach of the terms "kept or harbored" to those animals who reside with and/or are owned by tenants, they could have included specific language to that effect in the proprietary lease agreement. Nor may we engraft such a limitation upon the chosen language of the lease under the guise of judicial interpretation. Were we to do so, these and other similarly situated tenants could too easily circumvent an otherwise enforceable lease provision barring pets through gamesmanship or artifice. Instead, our inquiry is more properly focused on whether the dog's presence in tenants' apartment is sufficiently frequent and substantial as to establish that tenants "kept" or "harbored" the dog as those terms are ordinarily used, viz. whether tenants "possess[ed]" or "ha[d] the care of" the animal or "ha[d] [it] in [their] keeping" (Webster's Third New International Dictionary 1235, 1031 ). Proper resolution of that fact-laden issue must await further evidentiary development at trial. The record also raises but does not resolve several mixed questions of law and fact, including whether landlord timely commenced its eviction proceeding (see Administrative Code of City of NY § 27-2009.1[b]), and whether the dog, if found to have been kept or harbored in tenant's apartment, was an emotional support or service animal necessary to accommodate any disability that tenant Rita Hyman may be found to suffer.
Turning to tenants' remaining contentions, we find no abuse of discretion in the denial of tenants' application to stay this summary proceeding pending determination of a housing discrimination complaint contemporaneously filed by tenants with the State Division of Human Rights (see UM Realty, LLC v Myers, 2002 NY Slip Op 50704[U] ; Ennismore Apts. v Gottlieb, NYLJ, Sept 24, 1992, at 24, col 5 [App Term, 1st Dept]). On balance, and weighing the relevant factors (see Gallo v Mayer, 50 Misc 2d 385 , affd 26 AD2d 773 ), we agree that the "summary" remedy made available by RPAPL Article 7 should not be delayed indefinitely while tenants' agency complaint wends its way through the administrative process, particularly given the numerous and varied issues framed by the parties unrelated to any claim of discrimination. Nor did the court abuse its discretion in granting landlord's motion to disqualify tenants' attorney -- the daughter who, tenants claim, owns the dog in question -- since it is clear that she is likely to be a key evidentiary witness at trial (see Code of Professional Responsibility DR 5-102[a] [22 NYCRR 1200.21(a)]; Lewis v Goldberg, 6 AD3d 395 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. McKEON, P.J. (dissenting):
Contrary to the view of the majority and the Housing Court, I do not believe that there are factual issues warranting a trial and would award summary judgment to the Hymans (tenants) since they have established by documentary evidence and affidavits that the subject premises is a pet friendly building, and that the dog which tenants are alleged to be harboring, named Rocky, actually resides with and is owned by their daughter Julie Hyman.[*fn2 ] While landlord essentially concedes that Rocky is a visitor, it asserts that the frequency and regularity of his visits violates the proprietary lease, which requires written permission from the landlord before a tenant may "harbor" or "keep" an animal. The fundamental flaw in landlord's position is that it ignores that the word "harbor," as typically used in residential leases throughout the metropolitan area and in the "Pet Law," has been judicially construed to describe an animal which either resides in the tenant's household ("household pet") or is owned by the tenant ("tenant's pet," "pet owner") (Seward Park Housing Corp. v Cohen, 287 AD2d 157 ; ...