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In re Application of Kovalevich

Supreme Court, New York County

September 27, 2013

In the Matter of the Application of MARCIA KOVALEVICH, Petitioner,
v.
JOHN B. RHEA, as Chairperson and Member of THE NEW YORK CITY HOUSING AUTHORITY, and THE NEW YORK CITY HOUSING AUTHORITY, Respondents. For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules Index No. 402392/2010

Unpublished Opinion

JEANETTE ZELHOF, ESQ. MFY LEGAL SERVICES, INC. Attorneys for Petitioner

KELLY D. MACNEAL General Counsel New York City Housing Authority Attorney for Respondents

STIPULATION AND ORDER TO RESTORE CASE TO THE CALENDAR

IT IS HEREBY STIPULATED AND AGREED, by and between the parties to this action, by their respective attorneys, that:

1. This proceeding is restored to the calendar

2. The parties entered into a stipulation of settlement in April 2012 (hereinafter "the Stipulation") that was subject to the approval of the Board of the Respondent New York City Housing Authority.

3. Pursuant to the terms, of the Stipulation, this proceeding may be restored to the Court's calendar by stipulation in the event the Board does not approve the Stipulation.

4. In March 2013, the Respondent Housing Authority's Board rejected the Stipulation.

5. Facsimile signatures on this document shall be deemed sufficient, and any party may file this document.

DECISION AND ORDER

LUCY BILLINGS, J.

According to the uncontroverted opinions of petitioner's treating psychiatrist and therapist, petitioner needs a dog living with her to provide emotional support as an accommodation to ameliorate her psychiatric disability. Although the rules of respondent New York City Housing Authority, petitioner's landlord, prohibit pit bulls unless a pit bull is a service dog, which petitioner's pit bull is not, respondents have treated petitioner's emotional support dog as the equivalent and therefore permitted petitioner to keep her pit bull Cheyenne. Inherent in the emotional support that a particular animal provides to its owner is that the particular animal, here Cheyenne, becomes the owner's companion.

In a decision adopted by respondents, an Administrative Law Judge (ALJ) found, and petitioner does not dispute, that Cheyenne bit another tenant in the building where petitioner resides. Instead of prohibiting petitioner from keeping a dog as a consequence of her offense and condition of her continued tenancy, as an accommodation for her psychiatric disability the ALJ prohibited the offending dog Cheyenne, but allowed petitioner to replace Cheyenne with another dog of a comparable size and breed, even another pit bull.

This punishment is unnecessarily harsh, Wise v. Morales, 85 A.D.3d 571, 572 (1st Dep't 2011); Davis v. New York City Dept. of Hous. Preserv. & Dev., 58 A.D.3d 418, 419 (1st Dep't 2009); Robinson v. Martinez, 308 A.D.3d 355, 356 (1st Dep't 2003), and fails to accommodate petitioner's need for a dog that has become her companion to provide her emotional support. 42 U.S.C. § 3604(f)(3)(B); N.Y. Exec. Law § 296(18) (2); N.Y.C. Admin. Code § 8-107(15); Mozaffari v. New York State Div. of Human Rights, 63 A.D.3d 643, 644 (1st Dep't 2009); Taylor v. Harbour Pointe Homeowners Ass'n, 690 F.3d 44, 49 (2d Cir. 2012). See Overlook Ave. Corp. v. New York State Div. of Human Rights, 8 A.D.3d 286, 287 (2d Dep't 2004). To serve respondents' purpose of protecting other tenants, occupants, and invitees in the public housing development, it is necessary only that petitioner's dog be prevented from biting those persons to whom respondents owe a duty of reasonable protection. Cheyenne does have the history of one recent bite, but no history of any other vicious propensity such as rushing or jumping at persons. Allowing petitioner to keep Cheyenne, but requiring petitioner to keep a muzzle and leash on Cheyenne whenever the dog is inside petitioner's apartment with its entrance door open or outside the apartment on respondents' premises, is adequate to meet their purpose. 42 U.S.C. § 3604(f) (9) . E.g. Robinson v. Martinez, 308 A.D.3d at 356. See Wise v. Morales, 85 A.D.3d at 573. Respondents have not shown that this accommodation will impose undue financial or other hardship on them. N.Y.C. Admin, Code §§ 8-102(18), 8-107 (15(a); Phillips v. City of New York, 66 A.D.3d 170, 181-82 (1st Dep't 2009); Taylor v. Harbour Pointe Homeowners Ass'n, 690 F.3d at 49; Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 335 (2d Ci.r 1995) .

Consequently, the court reverses respondents' determination to the extent of allowing petitioner to keep her current dog Cheyenne as follows. C.P.L.R. § 7803(3) and (4). As conditions of petitioner's continued tenancy as long as petitioner keeps her current dog, petitioner shall maintain a muzzle and leash on the dog whenever the dog is inside petitioner's apartment with its entrance door open or outside the apartment anywhere on the premises of her public housing development. Petitioner also shall keep Cheyenne registered and otherwise in compliance with respondents' Pet Policy. V. Answer Ex. 19. If petitioner violates any of these conditions, respondents may proceed to terminate her tenancy. Davis v. New York City Dept. of Hous. Preserv. & Dev., 58 A.D.3d at 419. This decision constitutes the court's order and judgment granting the petition to the extent set forth and otherwise denying the petition and dismissing this proceeding. C.P.L.R. § 7806.


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