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LLC v. McKinnon

Civil Court of the City of New York, Bronx County

August 30, 2013

769 Realty Associates, LLC, Petitioner,
Ron McKinnon, Respondent-Tenant.

Unpublished Opinion

Javier E. Vargas, J.

Upon the foregoing papers and for the following reasons, the motion by Respondent-Tenant Ron McKinnon ("Tenant"), for leave to amend his Answer, is granted in part and denied in part.

By Petition dated October 22, 2012, Petitioner-Landlord 769 Realty Associates, LLC. ("Landlord") commenced the instant holdover summary proceeding seeking possession of premises located at 769 Bryant Avenue, Apartment 1C, in Bronx, New York, which are currently occupied by Tenant and subject to the Rent Stabilization Laws. Tenant, who is allegedly disabled, receives Social Security Disability benefits as his income and a Section 8 Rent Subsidy administered by the New York City Housing Authority. Prior to commencement of the proceeding, on September 24, 2012, Landlord served Tenant with a Ten-Day Notice to Quit, alleging that Tenant was creating a nuisance pursuant to Rent Stabilization Law (9 NYCRR) § 2524.3(b):

By allowing your three large pitbulls to run free off their leashes terrifying other tenants in the building. On a daily basis, you allow your dogs to run unrestrained when walking them in the morning. The culmination of this behavior occurred on June 29, 2012, when one of your dogs attacked someone else's dog in the building lobby.

In January 2013, Tenant eventually filed an Answer pro se affirming that he has a legal claim to keep his three dogs despite the Landlord's claims and that the predicate notice was vague. He also counterclaimed for $5, 000 against the Landlord for slander and pain and suffering.

Motion practice then ensued. Initially, Tenant moved for a dismissal of the Petition pursuant to CPLR 3211(a)(2), on the grounds that the predicate notice failed to state sufficient facts to establish a nuisance claim, or, in the alternative, for leave to seek discovery and a Bill of Particulars from the Landlord pursuant to CPLR 408. By Order dated January 31, 2013, my predecessor judge denied the motion due to the existence of triable issues of fact, but permitted limited discovery. Tenant, meanwhile, retained counsel, Legal Services of New York City, Bronx County. Thereafter, Landlord served Tenant with a Verified Bill of Particular further elucidating its nuisance claims, and produced a surveillance video of the alleged incident of the dog attack in question; Tenant also responded to a Notice to Admit certain facts, including that he suffers from "physical and emotional disabilities." Despite several appearances and adjournments due to Legal Services employment strike, no settlement was reached.

By Notice of Motion returnable July 30, 2013, Tenant now moves, pursuant to CPLR 3025(b), for leave to amend his Answer by adding three affirmative defenses relating to: (1) Landlord's waiver of its right to object under New York City Administrative Code § 27-2009.1(b) based upon Tenant's "open and notorious" harboring of his Pitbulls for over eight years; (2) his Pitbulls being "a necessary part of his treatment and control over [his disabilities and medical] conditions;" and (3) that, assuming arguendo a finding of a nuisance, the Court should provide a period to cure the nuisance pursuant to Real Property Actions and Procedure Law (RPAPL) § 753(4). Tenant verified the truth of the statements contained in the Proposed Amended Answer attached to the moving papers.

In opposition, Landlord complains that this motion should be denied outright because it is unduly prejudicial, has been belatedly filed on the eve of trial and that, in any event, the asserted affirmative defenses lack merit and/or are inappropriately interposed.

It is well established that the Rent Stabilization Code and case law allow for the termination of a tenancy when a tenant creates a nuisance by engaging in "a pattern of continuity or recurrence of objectionable conduct" that substantially threatens the health, safety and comfort of other building occupants (Domen Holding Co. v Aranovich, 1 N.Y.3d 117, 124 [2003], citing Frank v Park Summit Realty Corp., 175 A.D.2d 33, 34 [1st Dept 1991], mod on other grounds 79 N.Y.2d 789 [1991]; see Rent Stabilization Code [9 NYCRR] § 2524.3[b]). Courts have recognized that harboring certain pets and failing to properly control them may constitute a nuisance (see 405 E. 56th St., LLC v Morano, 19 Misc.3d 62 [AT 1st 2008] [nuisance for allowing dogs to jump on other tenants and other harassing behavior requiring police presence]; Landmark Props. v Olivo, 5 Misc.3d 18 [AT 2nd 2004]). Given the possible forfeiture of living premises in landlord and tenant proceedings, leave to amend a pleading "shall be freely given upon such terms as may be just" (CPLR 3025[b]; see Civil Court Act § 909). "In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Lucido v Mancuso, 49 A.D.3d 220 [2008], appeal withdrawn 12 N.Y.3d 804 [2009], quoting G.K. Alan Assoc., Inc. v Lazzari, 44 A.D.3d 95, 99 [2007]; see Trataros Constr., Inc. v New York City Hous. Auth., 34 A.D.3d 451, 452-453 [2006]). Additionally, "[t]he legal sufficiency or merits of a proposed amendment to a pleading will not be examined unless the insufficiency or lack of merit is clear and free from doubt" (Sample v Levada, 8 A.D.3d 465, 467-468 [2004]; see Sleepy's, Inc. v Orzechowski, 7 A.D.3d 511 [2004]).

Applying the foregoing principles to the matter at bar, Tenant has sufficiently established an entitlement to partially amend his Answer. In light of the seriousness of the allegations and the possible forfeiture of the premises herein, Tenant should be permitted to raise all applicable defenses which are not "palpably insufficient or patently devoid of merit." As Landlord concedes — and this Court agrees — the Proposed Amended Answer's First and Second Points of Law are appropriately raised and shall remain therein. Different conclusions result from the three separate Affirmative Defenses. The First Affirmative Defense raises the issue of consent to harboring a dog despite the governing lease language prohibiting pets. However, Landlord concedes and does not dispute that Tenant had his dogs "openly and notoriously" for several years under Administrative Code § 27-2009.1(b). As such, that defense is "patently devoid of merit" and it is hereby stricken from the Answer.

With respect to the Second Affirmative Defense, Tenant argues that he suffers from disabilities and "several diagnosed medical conditions" requiring his dogs as a "necessary part of his treatment and control over those conditions." When a nuisance or other objectionable behavior can be traced to the existence of a disability, the Fair Housing Act protects disabled people from discrimination by requiring the landlord to make "reasonable accommodations" for the tenant (see 42 USC § 3601 et seq.; American with Disabilities Act, 42 USC § 3602[h][1]). "Reasonable accommodations" include permitting the harboring of a dog for therapeutic reasons as long as the tenant sufficiently establishes its necessity with medical or other evidence (see Landmark Props. v Olivo, 5 Misc.3d at 18).

Although vaguely stated in his Proposed Amended Answer and Response to Notice to Admit, Tenant has repeatedly affirmed that he suffers from physical and emotional disabilities that affect his well-being and, indeed, he currently receives Social Security Disability benefits. These allegations appear sufficient to sustain this Defense. Of course, Landlord should be entitled to limited discovery as to the nature and extent of Tenant's medical conditions and disabilities for the last two years, and his current need for the three Pitbulls as well as their relevant training or certificates as treatment dogs, if any. Tenant shall provide such disclosure to Landlord within 20 days of service of this Order with Notice of Entry upon him.

Finally, in his Third Affirmative Defense, Tenant argues that he is entitled to a period to cure his objectionable conduct pursuant to RPAPL 735(4) and CPLR 2201, should the Court find that his dogs in fact created a nuisance. Contrary to Landlord's contentions, the opportunity to cure provided by RPAPL 753(4) has been applied to summary eviction proceedings based on allegations that the tenant has created a nuisance or violated the lease, at least where the type of activity complained of is curable (see Lexington Ave. Props. v Charrier, NYLJ, Jan. 29, 1986, at 11, col 4 [AT 1st]; cf. Cabrini Terrace Joint Venture v O'Brien, 71 A.D.3d 486 [2010]). Whether it is properly characterized as an affirmative defense or a remedial measure to be applied by the Court in due course, it is appropriately pled in this case as a viable alternative and should be considered by the Court after the completion of the trial.

In accordance with the foregoing, Tenant's motion is granted in part and denied in part, and leave to amend his Answer is granted as herein provided within five days of service upon him of this Order with Notice of Entry.

The matter is adjourned to October 3, 2013 at 9:30 a.m. for all purposes. The foregoing constitutes the decision and order of the Court.

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