
    [705 NYS2d 875]
    Seward Park Housing Corp., Appellant, v Carol Cohen et al., Respondents.
    Supreme Court, Appellate Term, First Department,
    February 25, 2000
    
      APPEARANCES OF COUNSEL
    
      Borah, Goldstein, Altschuler & Schwartz, P. C., New York City (Paul N. Gruber of counsel), for appellant. Michael K. Brown, New York City, for respondents.
   OPINION OF THE COURT

Per Curiam.

Order and final judgment dated June 19, 1998 reversed, with $30 costs, and a final judgment of possession is granted in favor of landlord on the holdover petition.

It is undisputed that tenants, in violation of an express condition of their lease, harbored a dog in the apartment premises without landlord’s permission. Civil Court dismissed the holdover petition upon its finding that the lease restriction was waived because landlord failed to commence summary proceedings within three months from the time it learned that tenants were openly and notoriously harboring the dog (Administrative Code of City of NY § 27-2009.1).

We do not agree that landlord or its agents should be charged with knowledge of the animal from September 13, 1996, when tenants allegedly acquired the dog and began walking it in and out of the building on a regular basis. The premises in question is in a complex containing over 1,700 apartments. Particularly in a project of this size, the mere fact that certain unidentified security personnel (employed by an independent agency) or members of the large maintenance staff may have casually observed tenants with their dog from time to time does not equate with a finding that the owner knew or should have known of the dog’s presence from the outset. There was uncontradicted testimony at trial that neither the guards nor porters had any responsibility to report or ferret out unauthorized pets, and their alleged “knowledge” of tenants’ dog does not establish notice to the landlord in these circumstances (Elfin Co. v Gatto, NYLJ, Nov. 26, 1979, at 6, col 1 [App Term, 1st Dept]).

We disagree with the dissent for the following reasons. First, the majority holding is not “contrary to the plain meaning of the statute and its broad remedial purpose” (infra, at 51). The purpose of the Code provision is clearly set forth in the Legislative Declaration. It is to prevent “widespread abuses” by building owners or their agents who seek to evict a tenant who has harbored a pet “for an. extended period of time” (Administrative Code § 27-2009.1 [a]). These tenants do not fall within the class sought to be protected, since they had the dog only for a short period. Thus, our result actually is consistent with the aim of the City Council and gives effect to its intention (McKinney’s Cons Laws of NY, Book 1, Statutes § 92).

Second, the cases cited in the dissent are readily distinguishable, as in each the finding of waiver was based upon the tenant’s harboring of a dog for an extended period (see, Megalopolis Prop. Assn. v Buvron, 110 AD2d 232 [six years]; Mamaroneck Gardens Realty Partners v Nye, NYLJ, Feb. 7, 1992, at 26, col 1 [several dogs for six to seven years]; Amalgamated Hous. Corp. v Rogers, NYLJ, Aug. 13, 1991, at 21, col 2 [“several years”]). By contrast, the landlord in this case first learned of the dog after approximately two months in November 1996 and asserted its rights promptly. A notice to cure was served on December 2, followed by a notice of termination on December 19 and the commencement of holdover proceedings on or about February 10, 1997. The Code requires the open and notorious harboring of a dog for a period of three months with knowledge of the owner or his agent. No such showing has been made in this case so as to constitute a waiver of the owner’s right to enforce the lease.

Third, the Administrative Code speaks of knowledge of the dog by the “owner or his or her agent” (Administrative Code § 27-2009.1 [b]). The dissent impermissibly enlarges the term “agent” to include anyone employed at the building, when the City Council did not specify servants or employees as persons whose knowledge of the pet would bind an owner. Security personnel who are independently contracted and report only on safety matters, or unionized maintenance personnel in a large complex, should not be viewed as “agents” of the landlord for purposes of waiving lease prohibitions under the Code. These employees would not be reasonably expected to report that they had seen a person walking a dog. Simply put, they would correctly see this as none of their business.

In enacting the “Pet Law,” the City Council sought to prevent landlords from using no-pet clauses in leases as a subterfuge to evict tenants who had harbored pets “for an extended period of time” but who were otherwise in full compliance with their leases (Megalopolis Prop. Assn. v Buvron, 110 AD2d 232, 236, supra). No retaliatory motive is ascribed to the landlord in this case, nor is this a situation where the landlord delayed in enforcing the lease restriction to the tenants’ prejudice. Rather, this is a case where the tenants agreed to a lease with a “no-pet” clause, and now seek to be treated differently from other tenants who are required to comply with this limitation or those who entered into possession in reliance upon the prohibition of pets in the building’s common areas.

Given that section 27-2009.1 is in derogation of otherwise enforceable lease limitations (see, 1036 Park Corp. v Rubin, 92 AD2d 452, affd 59 NY2d 877), it should not be construed in a manner which imposes a type of “waiver trap” upon unwary owners. Since tenants failed to prove by a preponderance of the evidence that landlord waived the applicable no-pet provision or that the provision should be “deemed waived” (Trump Vil. Section 3 v Sinrod, 219 AD2d 590; East Riv. Hous. Corp. v Ierardi, NYLJ, Mar. 3, 1999, at 26, col 1 [App Term, 1st Dept]), the holdover petition is granted.

Issuance of the warrant shall be stayed for 10 days after service of a copy of this order with notice of entry so that tenants may cure the breach of the lease (RPAPL 753 [4]).

Davis, J.

(dissenting). I respectfully dissent. Civil Court’s finding that landlord waived its right to enforce the no-pet provision in tenant’s lease has ample support in the record and should be affirmed.

The testimony at trial established that tenants purchased the dog, a chow named Rocky, on or about September 13, 1996, and immediately began walking him into and out of the building on a regular basis, several times a day. Two neighbors testified that from September 1996, they observed tenants (father and son) with the dog at various times of the day, entering or leaving the building through the front, back and/or side entrances, and around the building grounds as well. Both the neighbors and the tenants testified further that as early as September 1996, various building employees (security guards and maintenance workers) had seen the dog, and even petted it and/or spoken to tenants about it.

Landlord’s managing agent testified that he was not aware of the presence of the dog until November 1996, when he was notified by a Board member. The managing agent also testified that he does not live at the premises; does not have an office at the premises, although there is a maintenance department; has been at premises “maybe once” in the past two years; did not speak about the existence of dogs to either the security guards or maintenance workers; and did not make it a policy to visit the grounds to see who had dogs.

Landlord commenced this proceeding on February 10, 1997, which was within three months from the time the managing agent received notice of the presence of the dog from the Board member, but over four months after tenants began openly harboring the dog at the premises. After trial, the lower court found that the evidence was “overwhelming that from the first day respondents brought the dog home it was exposed to and seen by building personnel on a regular basis * * * Knowledge of the existence of respondent’s dog in mid September 1996 must be imputed to petitioner.” The court rejected as “not persuasive” landlord’s argument that security guards, janitors and porters at the subject building were merely independent contractors whose job description did not include informing landlord of the harboring of dogs in violation of the lease agreement.

It is well established that on a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence (Claridge Gardens v Menotti, 160 AD2d 544). Here, the evidence supports the trial court’s findings. The testimony of tenants and their witnesses, credited by the Trial Judge, established that landlord’s on-site employees knew of tenants’ open harboring of a dog for over four months prior to the commencement of this holdover proceeding. The dog was displayed on a daily basis as it entered and exited the premises and building personnel saw the dog, touched it and spoke to tenants about it. Landlord is therefore deemed to have waived the “no-pet” covenant in the lease (Amalgamated Hous. Corp. v Rogers, NYLJ, Aug. 13, 1991, at 21, col 2 [App Term, 1st Dept]; Administrative Code of City of NY § 27-2009.1). It is irrelevant that landlord had no retaliatory or other bad-faith motive when it commenced this proceeding (Metropolitan Life Ins. Co. v Friedman, 205 AD2d 303).

The majority takes no issue with the trial court’s factual finding that the dog was harbored openly and notoriously since mid-September 1996. Instead, the majority holds that these tenants are not within the class sought to be protected by the Pet Law because they did not have the dog “for an extended period of time.” The majority also holds that it was error to impart knowledge of the pet to landlord from security personnel (who were independent contractors) or low-level maintenance personnel, neither of whom were landlord’s agents or had a duty to report the existence of a dog. It is my view, however, that today’s holding is erroneous as a matter of law and will frustrate enforcement of the Pet Law by permitting a landlord to insulate itself from the law’s waiver provision.

The Pet Law provides that where a pet is harbored openly and notoriously for “a period of three months or more” and “the owner or [its] agent has knowledge of this fact,” failure to “commence” a proceeding to enforce the no-pet provision “shall” be deemed a waiver of the right to do so (Administrative Code § 27-2009.1 [b]; emphasis added).

The majority erroneously holds that the Pet Law only protects tenants who harbor a pet “for an extended period of time.” Irrespective of any language in the Legislative Declaration referring to “an extended period of time,” the Pet Law specifies in clear and unambiguous language that a waiver shall occur after a tenant harbors a pet “for a period of three months or more.” The provisions of the statute and not the Legislative Declarations are determinative (McKinney’s Cons Laws of NY, Book 1, Statutes § 122; Lederman v Board of Educ., 276 App Div 527, affd 301 NY 476). Since tenants openly harbored the dog for over three months, they are within the class sought to be protected by the law.

Moreover, to give the waiver provisions of the Pet Law any practical effect, knowledge of the pet would have to be imparted to the landlord from those employees who work for the landlord and are in and around the building on a regular basis (Mamaroneck Gardens Realty Partners v Nye, NYLJ, Feb. 7, 1992, at 26, col 1 [App Term, 9th & 10th Jud Dists]). This would include, as in this case, general maintenance workers, and security personnel, either independent contractors or in landlord’s direct employ. Particularly where, as here, there is no owner or managing agent even occasionally at the premises, a landlord who fails to instruct on-site employees to report open and notorious violations of a no-pet rule, should not be heard to complain that it did not receive notice of a particular breach. Convenient indifference should not be confused with pardonable ignorance.

The majority’s holding would permit an absentee landlord, with no managing agent regularly at the premises, to indefinitely toll the three-month period within which it must commence an action to enforce the no-pet rule by simply claiming that building personnel had no duty to report the existence of pets. Such a holding is contrary to the plain meaning of the statute and its broad remedial purpose (see, Megalopolis Prop. Assn. v Buvron, 110 AD2d 232).

Parness, P. J., and McCooe, J., concur; Davis, J., dissents in a separate memorandum. 
      
       Administrative Code § 27-2009.1 provides, inter alia:
      “Rights and responsibilities of owners and tenants in relation to pets. a. Legislative declaration. The council hereby finds that the enforcement of covenants contained in multiple dwelling leases which prohibit the harboring of household pets has led to widespread abuses by building owners or their agents, who knowing that a tenant has a pet for an extended period of time, seek to evict the tenant and/or his or her pet often for reasons unrelated to the creation of a nuisance. Because household pets are kept for reasons of safety and companionship and under the existence of a continuing housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety and welfare of tenants who harbor pets under the circumstances provided herein, it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and dislocation of tenants within this city.
      “b. Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the multiple dwelling law, the housing maintenance or the health codes of the city of New York or any other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within this three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived.”
     