
    [852 NYS2d 557]
    184 West 10th Street Corp., Respondent, v Siiri Marvits, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 20, 2007
    
      APPEARANCES OF COUNSEL
    
      Law Office of Steven DeCastro, New York City, for appellant. Borah, Goldstein, Altschuler, Schwartz & Nahins, New York City (Paul N. Gruber of counsel), for respondent.
   OPINION OF THE COURT

Per Curiam.

Order dated April 13, 2006, reversed, with $10 costs, motion denied and verdict reinstated. The Clerk is directed to enter a final judgment in favor of tenant dismissing the petition.

This holdover summary proceeding, based upon allegations that the elderly rent-controlled tenant was harboring two cats in violation of the “no pet” rider to her 1964 lease agreement, was commenced in February 2005 and was tried to completion over two court days in April 2005. The focus of the trial was on tenant’s affirmative defense that landlord waived the lease violation by failing to commence the proceeding within three months after knowledge of the breach (see Administrative Code of City of NY § 27-2009.1 [b]). The trial court initially ruled in favor of tenant on the waiver issue and dismissed the holdover petition. In a written decision dated May 20, 2005, the court found credible the tenant’s unrebutted testimony that the cats, Apollo and Athena, continuously occupied the subject apartment since at least January 1997; that the prior managing agent (Schlatter) and building superintendent (Dempsey) inspected the apartment in August 2000 in connection with contemplated repair work to the bathroom ceiling, with both employees walking through “every room” of the apartment and the superintendent spending about a half hour inside the bathroom with a contractor “writing up what had to be done”; that the principal (So-mos) and four employees of a contracting firm hired by the former landlord replaced the circuit breakers throughout the entire apartment on two successive dates in mid-October 2003, with Somos returning the following week to repair a broken pipe in the kitchen; and that on all such occasions the cats were present in the apartment and that traditional accouterments of household pets, including a litter box in the bathroom and feeding bowls in the kitchen, were in plain view. Based upon its favorable assessment of the credibility of tenant and her witness (a neighbor), the “testimonial and documentary evidence” presented by tenant, and the landlord’s failure to rebut such evidence, the court determined that landlord waived its right to enforce the no-pet covenant of the lease.

In January 2006, more than seven months after entry of the final judgment in tenant’s favor, landlord, citing to CPLR 2221 (d), moved to “reargue,” urging the court to reconsider its initial ruling on the waiver issue. In the April 13, 2006 order here under review, the court granted “reargument,” reversed course on the waiver issue, and awarded a possessory judgment to landlord. The court gave little explanation for its change of heart on the waiver issue, stating without any specific record reference or elaborative analysis that its review of the trial transcript revealed that tenant “did not testify with as much certainty about the visits of the agents of the previous owner as the court recalled when it made its initial decision,” and indicating its view that our then recent decision in Gidina Partners LLC v Marco (11 Misc 3d 21 [2005]), necessarily precluded a finding of waiver in the case at bar. On tenant’s appeal, we reverse and, consistent with the trial court’s initial, fully supported finding of waiver, dismiss the petition.

Although the point is not directly raised by tenant, we note as a threshold matter that landlord’s posttrial motion, erroneously denominated as one for leave to reargue, was, in effect, a motion, pursuant to CPLR 4404 (b), to set aside the verdict. Inasmuch as the motion was made more than seven months after rendition of the court’s verdict, it should have been denied as untimely (see CPLR 4405; Casey v Slattery, 213 AD2d 890, 891 [1995]), landlord having failed to offer any reason, much less “an overriding and persuasive reason” (Barnes v Oceanus Nav. Corp., Ltd., 21 AD3d 975, 977 [2005]) warranting its consideration.

In any event, no sound substantive basis was shown by landlord, or identified by the trial court, for the belated vacatur of the court’s initial finding of statutory waiver. As the court appropriately recognized in its initial, unappealed ruling, the tenant’s credible, consistent, and uncontradicted account of the multiple visits to her apartment made by the prior landlord’s managing agent, superintendent, and contractors in 2000 and 2003 strongly supports an inference that the prior landlord knew or should have known of the presence of tenant’s cats, first complained of in December 2004. Even were we to assume that none of the building personnel and agents who ventured throughout the tenant’s small, two-room apartment actually saw the cats due to the animals’ “shy” nature, the obvious presence of various pet paraphernalia — particularly the litter box “visibl[y]” situated in the bathroom — was sufficient to alert the prior owner’s agents that tenant had a pet or pets. As the trial court appropriately recognized in its initial written decision, the landlord’s unexplained failure to elicit testimony from any of the prior owner’s representatives as to their knowledge of tenant’s cats warranted the drawing of an unfavorable inference (see Seward Park Hous. Corp. v Cohen, 287 AD2d 157, 168 [2001]). In the absence of any such countervailing evidence by landlord, it is not unfair to suggest that the prior owner “would have had to close its eyes, cover its ears, and hold its breath to have remained ignorant of the presence of [tenant’s cats]” (Seward Park Hous. Corp. v Cohen, 287 AD2d at 169).

Nor is our decision in Gidina Partners LLC v Marco (11 Misc 3d 21 [2005]), issued during the long hiatus between the conclusion of the trial proceedings below and landlord’s posttrial motion, in any way at odds with the trial court’s initial finding of waiver. In Gidina, the only evidence bearing on the critical “open and notorious” issue was testimony elicited by tenants indicating that their dog — a small, “quiet” schnauzer — was walked from the brownstone premises there involved at an unspecified time or times once a day for a five-day period and that the dog was “boarded” elsewhere for an identified time period thereafter. Since the dog in Gidina was only in “open view” on a few “isolated occasions,” and given the absence of any showing that the dog’s presence inside the apartment was “otherwise detectible,” we found the trial proof in that case insufficient to support a knowing waiver on the landlord’s part. Thus, Gidina is clearly distinguishable on its facts from the case at hand, where the occupancy of tenant’s cats must have been known to the predecessor owner, whose agents and employees regularly entered the interior of tenant’s apartment. Contrary to the view expressed by the court below on “reargument,” nothing in the language of our decision in Gidina reflects an intention to adopt a different evidentiary standard for “owners of smaller dogs and other smaller animals” than applies to “owners of larger animals.” Nor can Gidina be read to implicitly overrule prior case law, properly relied upon by the court in its initial written decision, holding that a waiver under the Pet Law is effectuated where, as here, the presence of a “house pet” is known or readily knowable to a building owner, even though the animal is not publicly displayed (see Matter of Robinson v City of New York, 152 Misc 2d 1007, 1010-1011 [1991]).

McKeon, P.J. (concurring).

For those of us who have been privileged to have a career in the law, there is the occasional frustration when it seems that a manifest injustice has been done to one utterly undeserving of such a fate. This is such a case. While I join in the reasoning of the court’s memorandum decision, I feel compelled to write separately to underscore my concerns with the procedural and substantive errors made below, errors which, if unremedied, would lead to the needless and unwarranted eviction of an elderly tenant.

The guilty pleas recently entered into by Michael Vick and his cohorts for their barbarous acts serve as a grim reminder that a humane nation considers cruelty to animals so abhorrent that it criminalizes such conduct. The silver lining in that sordid affair has been the expression by many Americans that the inherent decency of a people must embrace the kindly treatment of pets.

And so one need not be a pet lover to appreciate that for many there is a special love that attaches to owning a pet, that companion and source of joy who can separate the sad and solitary from a world of loneliness and despair, serve as a playmate for a son or daughter, or just be a devoted friend whose loyalty remains steadfast in good times and bad. Indeed, so strong can be the bond between owner and pet that society recognizes the need for laws to protect each from the unscrupulous who would prey on one’s love for an animal to achieve their own selfish ends.

New York City recognized the need for such legislation when “[i]n 1983, the New York City Council, responding to widespread abuses by landlords . . . enacted an ordinance ... to allow [the] tenant the security and companionship of a pet when a landlord was not timely enforcing the no-pet lease covenant” (Seward Park Hous. Corp. v Cohen, 287 AD2d 157, 161 [2001]).' This ordinance became known as the “Pet Law.” Its purpose was to prevent landlords from using pet ownership as a subterfuge to conceal an otherwise retaliatory eviction or effort to regain possession of an apartment from a tenant, who, because of longevity of tenancy, enjoyed the benefit of a regulated below market rent.

It is against this backdrop that tenant Siiri Marvits, a resident of 184 West 10th Street, New York, New York, since 1962, stands on the verge of eviction from her rent-controlled apartment of 43 years. Over the last decade she has provided a home to two cats, Athena and Apollo. All agree (landlord, trial court and dissent) that the cats are quiet animals, described in the record as meek and shy. There is no claim that they pose a nuisance to Ms. Marvits’ neighbors. Nonetheless, when Ms. Marvits refused to part with her pets, landlord commenced this holdover proceeding, asserting that the presence of the cats in the apartment violated the no pet rider of her lease.

Initially, the trial court dismissed the petition, holding that petitioner “waived its right to bring this summary holdover proceeding based on the Pet Law.” However, almost a year later, in response to landlord’s belated motion to reargue, the court below reversed itself (“commendably” so, says the dissent), citing Gidina Partners LLC v Marco (11 Misc 3d 21 [2005]), a decision from this court, as the justification for its action.

In Gidina Partners, a tenant brought a 19-pound dog into his apartment in October 2002. For a five-day period, November 4 to November 8, 2002, the dog was walked at an unspecified time or times once a day in front of the brownstone premises there involved. Shortly thereafter, tenant boarded the dog outside the premises. This court ruled that tenant failed to establish that the commencement of the holdover proceeding was untimely. These facts, I regret to say, were mischaracterized by the court below, in its revised decision, as follows: “If regularly walking a nineteen-pound dog does not act as a waiver of the ‘Pet Law,’ keeping cats in an apartment since 1997 without any public display cannot possibly constitute open and notorious conduct.” The sporadic dog walking vaguely described in Gidina Partners can hardly be deemed to be a “regular[ ]” activity or have any meaningful legal relevance to the factual scenario of a tenant who harbored cats for almost a decade. Try as they might, the court below and the dissent cannot spin Gidina Partners as creating a new standard for small animals or use it to justify a grant of reargument or subsequent possessory judgment in favor of landlord in this proceeding. Simply said, Gidina Partners involved a tenant who did not satisfy the three-month rule in the Pet Law and has as much to do with the facts of this appeal as apples do to oranges.

And so the legal posture of the court below and dissent is, in a nutshell, that the landlord has not waived its right to assert the no pets clause in Ms. Marvits’ lease. As their argument goes, the Pet Law offers Ms. Marvits no relief because she failed to establish, at the trial of this holdover proceeding, that the cats were displayed “openly and notoriously” or that landlords, past or present, had knowledge that she was harboring cats. Thus, they place their judicial seal of approval on the cruel Hobson’s choice offered to Ms. Marvits by her landlord: leave or give up the cats — as if there is any doubt as to what her choice will be. In doing so, each transforms the “Pet Law” into a worthless piece of paper, placing countless New Yorkers who own “house pets,” from parakeets to cats, at the mercy of their landlords.

Apparently eager to alert the reader that, in the dissent’s view, Ms. Marvits’ unfortunate lot has been caused by her own words, the dissent opens: “I respectfully dissent and accept the tenant’s testimony in its entirety.” However, a review of the salient points of that testimony, rather than supporting the view of the trial court or the dissent, clearly establishes that the landlord knew, or should have known, about the presence of the cats in the apartment thereby foreclosing Ms. Marvits’ eviction by reason of the Pet Law. Ms. Marvits credibly testified as follows:

1. She has lived in the apartment since August 1, 1962;

2. She has two cats named Athena and Apollo who have lived with her since 1997. Athena has kidney disease;

3. The cats are fed in the kitchen and their bowls are kept on top of the refrigerator. The litter box is kept in the bathroom;

4. In 2000, the then managing agent Maureen Schlatter, the superintendent Bill Dempsey, and a contractor were in the apartment to inspect the bathroom’s ceiling which had fallen. Repairs commenced about a week later. One wall in the bathroom was also tiled;

5. On October 16 and 17, 2003, Dennis Tsomas of All Town Construction replaced circuit breakers in the apartment;

6. Later in October 2003, Mr. Tsomas repaired a broken pipe underneath the kitchen sink;

7. In November 2004, the present superintendent Mr. Garcia was in the apartment; and

8. Ms. Marvits had cats in the apartment prior to Athena and Apollo.

Try as the dissent might to minimize the work done in tenant’s apartment, the fallen ceiling, the retiling of a bathroom wall, the replacement of circuit breakers and the repair of a broken pipe were significant tasks which required many hours of repair over several days. Twice, the dissent references tenant’s inability to say whether any of the workers saw the cats when they were in the apartment. This is troubling since I am unaware of an evidentiary basis — where there has been no verbal expression — that permits one to testify as to what another has seen or not seen.

The dissent cites as an “issue” of disagreement with the majority “characterizing Tsomas as an agent of the landlord.” On this, the dissent stands alone. Neither the landlord, in its brief, nor the court below, in either of its opinions, joins .in this argument. The dissent also uses the phrase “long term” to impose a “duration test” before an independent contractor can be considered an agent. Most respectfully, there is no temporal litmus test in New York before one becomes an agent for another. Most managing agents for landlords are independent contractors who become a building’s agent at the moment of their retention. There is no waiting period. Significantly, as the dissent admits, Tsomas’ business, All Town Construction, was the exclusive entity hired to make routine repairs at the building. The notice sent by the landlord to all tenants, tenant’s exhibit C in evidence, instructs tenants to directly communicate with All Town for the scheduling of repairs. This is important because by allowing tenants to communicate directly with All Town, the landlord ostensibly established All Town as its agent for purposes of making repairs in the building. Indeed, it is well settled that agency may be applied from a party’s words and conduct viewed in light of the surrounding circumstances (see Hallock v State of New York, 64 NY2d 224 [1984]; Morales v Cozy Brokerage, 170 AD2d 201 [1991]; Federal Ins. Co. v Diamond Kamvakis & Co., 144 AD2d 42 [1989]). Moreover, if landlord had been truly interested in identifying tenants who harbored pets, it could have directed All Town and Tsomas to report such information. There is no evidence that it did so. In any event, by designating All Town as its exclusive repairer, landlord was bound by the observations of All Town personnel, whether reported or not.

Next, the dissent contends that the burden of proof on waiver never shifts from tenant to landlord. Sure it does. Under the Pet Law, a tenant need not establish that a landlord had actual knowledge of the presence of the pet (Seward Park Hous., 287 AD2d at 164). Where, as here, neighbors knew about the cats and employees and agents of landlord were present in the apartment when the cats were there, not only did the burden of proof shift to landlord to explain its claimed ignorance, tenant was likely entitled to the benefit of an adverse inference by landlord’s failure to call Tsomas, or his workers, to describe what was seen in tenant’s apartment on those occasions when they were there (id. at 168).

Indeed, the court in Matter of Robinson v City of New York (152 Misc 2d 1007, 1010 [1991]), a case characterized as “factually distinguishable” by the dissent, said as much when it cited, as a basis for its opinion, that “after the tenant’s case was completed,” landlord “made no effort to call any of their employees” to describe their observations in tenant’s apartment.

Significantly, the dissent mistakenly confuses the nature and quantum of proof necessary to establish an “open and notorious” harboring of a pet as contrasted with an owner’s knowledge of that fact. They are completely different tests. In the former, as the dissent concedes, tenant did offer testimony by a neighbor that he knew about tenant’s cats. Indeed, the neighbor fed them. The fact that the presence of the cats was generally known in the building is sufficient to establish notoriety and gives rise to a “presumption” that the owner knew of their presence (Seward Park Hous., 287 AD2d at 164). So, too, the fact that the cats lived with Ms. Marvits for years should be a factor giving rise to a presumption of knowledge by the owner. Parenthetically, if, as the owner contends, it was concerned about the presence of pets in the building, it had years, in the case of Ms. Marvits, to perform routine inspections which would have readily discovered the presence of Athena and Apollo in the apartment. “[T]he three-month Statute of Limitations requires routine awareness on the part of the landlord. The ordinance leaves to the landlord’s common sense what needs to be done for the landlord to become apprised of such a situation” (id. at 165).

Presumably, landlord knew that which the court in Robinson recognized when it observed, regarding house pets such as cats, that “the law does not state that an animal is harbored openly and notoriously only when it is displayed by taking the animal outside or allowing to roam through the building” (Robinson, 152 Misc 2d at 1010-1011). And so, to make matters worse, the court below, in its revised opinion, fashioned a new test: “owners of smaller dogs and other smaller animals such as cats now must be more open and notorious than owner’s of larger animals” — whatever that may mean.

Perhaps the holding of an “open house” where a cat owner introduces the pet to building staff and neighbors will satisfy the new test formulated by the trial court. The reality is that it is all but impossible for a cat owner to comply with the standards sought to be imposed by the court below and the dissent, unless, of course, the litter box becomes a thing of the past and countless feline owners are forced to go the way of their canine friends, to be seen, leash in hand, walking their cats, as the lyrics of the song go, “on the sidewalks of New York.” While that might remedy some of the dissent’s concerns about the Pet Law, the fact is a dog will always be a dog, a cat will always be a cat, but Athena and Apollo will never be Rover or Spot.

And so it comes down to this: some years ago, a kind hearted tenant, now in the twilight of her years, adopted two cats in need of a home. The animals were no bother to anyone. Many years have come and gone, until a landlord stood in a courtroom and proclaimed that his only design was to separate two old cats from his building. Of course, one more cynical than I might conclude that this proceeding’s aim is not so much to separate Ms. Marvits from her pets as it is to separate her from her rent-controlled apartment of more than four decades. All of us should learn from our mistakes, courts included. Thus, there ought not be a repeat of the words of the Appellate Division: “[T]he Appellate Term rendered the [Pet Law] ‘toothless’ ” (Seward Park Hous., 287 AD2d at 163). Ms. Marvits deserves better than that, as do all New Yorkers who have opened their homes and hearts to a pet.

The order under review should be reversed, the petition dismissed and final judgment in favor of tenant reinstated.

McCooe, J. (dissenting).

I respectfully dissent and accept the tenant’s testimony in its entirety. Nevertheless, I disagree that the tenant has sustained her burden of proof that the cats were displayed “openly and notoriously” and that the landlords, past or present, had knowledge that she was harboring cats. I disagree that if the independent contractor or its employees had knowledge that it would be imputed to the landlord. I agree that if the landlord’s agents or employees had knowledge it would be imputed to the landlord.

Administrative Code of City of New York § 27-2009.1 (b) provides in relevant part:

“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” (emphasis supplied).

The first point raised by the majority relates to the landlord’s posttrial motion where the housing court commendably reversed itself. This issue was never raised or considered, directly or indirectly, in this court or the court below. Therefore it was not preserved for appellate review (Bingham v New York City Tr. Auth., 99 NY2d 355, 359 [2003]). Without reaching the merits, in Barnes v Oceanus Nav. Corp., Ltd. (21 AD3d 975, 977 [2d Dept 2005]) cited by the majority, the court affirmed the grant of the late motion. Furthermore this landlord had filed a timely notice of appeal.

The second point raised in the majority opinion is that the housing court gave “little explanation for its change of heart on the waiver issue.” I disagree. The Judge gave two reasons for changing his decision. The first was that he had incorrectly stated that after the tenant testified the “petitioner had the burden to rebut respondent’s claim by calling the prior management or its appropriate agents as witnesses.” Waiver is an affirmative defense. Furthermore there was no evidence to rebut. The second reason given was that subsequent to his first decision, the Appellate Term decided Gidina Partners LLC v Marco (11 Misc 3d 21 [App Term, 1st Dept 2005]). The housing court judge, correctly citing Gidina, stated that “[t]he Court must follow the law as given by the higher Courts.”

These two points raised by the majority beg the issue before us. The issue is whether on this record the tenant has sustained her burden of proving knowledge by the landlord’s agents or employees of the open and notorious harboring of the cats in the apartment by the tenant.

The tenant testified that the cats usually hide if they do not know the person entering the apartment. The cats eat from plastic food bowls which are washed and placed on top of the refrigerator after a feeding. There is also a litter box in the bathroom next to the toilet. If repairs were being done in the apartment, this litter box would be placed in the bathtub which had a nontransparent shower curtain.

Regarding the waiver defense, tenant testified that in August 2000 the former managing agent and superintendent entered her apartment because part of the bathroom ceiling fell. At that time the cats were in the apartment, the food bowl was on top of the refrigerator and the litter box was in the bathroom. In October 2003, Dennis Tsomas, a contractor hired by the landlord, entered the apartment on several occasions with three workers to replace the circuit breakers and a broken pipe. The tenant did not know where the cats were in the apartment on these occasions but the litter box was in the bathroom and the food bowls were either put away or on the refrigerator. She was asked if any employee or contractor saw the cats and she said “I don’t know.”

Tenant’s exhibit C in evidence indicates that Dennis Tsomas was the principal of All Town Construction, license No. 1023795 with a Queens address. The tenant testified that the written procedure in exhibit C was for the tenants to call him directly “[flor scheduling minor repairs.” The lease required the tenant to do her own painting.

On cross-examination, tenant admitted that the cats usually hide if they do not know someone and that she did not know if the manager and superintendent saw the cats or the litter box when they entered the apartment in August 2000 or if Mr. Tsomas saw the cats when he worked in the apartment on two occasions in October 2003. On redirect, tenant stated that the superintendent had been in her bathroom for half an hour after the ceiling collapsed in August 2000. This visit in 2000 is the only visit by the landlord or agent to the apartment contrary to the “regularly” term employed by the majority.

Matter of Robinson v City of New York (152 Misc 2d 1007, 1009 [Sup Ct, NY County 1991, Schlesinger, J.]) relied upon by the majority and the housing court’s first decision is factually distinguishable since that tenant testified that her dog “was seen, petted and commented upon by various employees” of the landlord. This is a third reason why the housing court correctly reversed itself.

Ken Wollenberg, a friend of the tenant, testified that his wife was a former neighbor of tenant and that he would feed the cats when the tenant was out of town. This occurred in August 2000 and once “three years before that.” When he entered the apartment on other occasions he did not see the cats because they were very shy and usually hide.

Based upon the tenant’s testimony, she has failed to establish that the presence of the cats “was so open and notorious” as to establish “actual knowledge” that the landlord, its agents or employees knew that the tenant harbored cats (Seward Park Hous. Corp. v Cohen, 287 AD2d 157, 165 [2001]). The tenant’s evidence in Seward Park and Matter of Robinson was that the landlord’s employees actually interacted with the dogs which factually distinguishes this case.

I respectfully disagree with the majority on three legal issues. The first is the shifting of the burden of proof previously referred to. The second is characterizing Tsomas as an agent of the landlord. The third is the failure to apply the “actual knowledge” requirement to the landlord’s employees as stated in Seward Park. Furthermore there is not even constructive knowledge since any claimed evidence of knowledge is purely speculative. Accepting the tenant’s testimony that the former landlord was in the apartment in 2000 for 30 minutes looking at the ceiling damage, there is no evidence that he or his agents saw the cats or their accouterments.

Tsomas is readily distinguishable from the security personnel in Seward Park characterized by that court as “employees of its long term independent contractor as statutory agents for acquiring information.” (Id. at 166.) Tsomas’ employees or any unidentified contractor were not employed at the premises on a full-time basis but responded only when called to make repairs. Tsomas was not “long term” since he first made repairs in 2003 to this apartment and was not supervised by the landlord. In any event, he was only there a total of three days.

Administrative Code § 27-2009.1 (b) specifically refers to knowledge acquired by “the owner or his or her agent.” The persons performing repairs in the apartment were not agents, servants or employees of the landlord but independent contractors hired to perform a specified task on a short term basis and had no duty to report the presence of cats on the premises even if they saw them.

The trial court’s determination that the landlord did not waive its right to enforce the no pet provision of the governing lease agreement represents a fair interpretation of the evidence and should not be disturbed (318 E. 93 v Ward, 276 AD2d 277 [1st Dept 2000]). The tenant offered scant evidence on the “open and notorious” element of the statutory waiver defense (Administrative Code of City of NY § 27-2009.1 [b]). The tenant testified that her cats never ventured outside the apartment and usually hid when strangers entered the apartment. The tenant did not know if landlord’s employees or its agents ever saw the cats’ litter box or the bowls in her apartment during the 30 minute stay in the apartment in 2000 and she failed to show that their presence was “otherwise detectible” (Gidina Partners LLC v Marco, 11 Misc 3d 21 [App Term, 1st Dept 2005]). The tenant failed to meet her burden of proof (90th Realty Co. v Scolnick, NYLJ Apr. 3, 1995, at 28, col 3 [App Term, 1st Dept]) that the landlord had knowledge that the tenant harbored cats for a period of three months.

The concurring opinion does not advance any new legal arguments. Nevertheless it should be addressed.

With all due respect to my colleague and for the reasons previously given, I disagree with the concurring opinion on the applicable law relating to principal-agent, independent contractor and burden of proof. Furthermore the cases relied upon involve a physical interaction, such as petting, between the agent or employee of the landlord and the animal.

The concurring opinion states that there is “no temporal litmus test before an independent contractor becomes an agent for another.” The passage of time does not transform an independent contractor into an agent. The words “long term” employed by the dissent refer to the language used by the Appellate Division in Seward Park (Seward Park, 287 AD2d at 166). In any event, Tsomas only responded when called and was not on the premises 24 hours a day, 7 days a week like the security guards in Seward Park. It is undisputed that he was only in the apartment a total of three days in October 2003.

The obvious question is why the people who are claimed to be agents of the landlord were not called as witnesses by the tenant rather than speculate as to their testimony. The only evidence of knowledge of the presence of the cats is that of a husband of a former neighbor and he is not an agent of the landlord. The “openly and notoriously” element is completely absent. Factually, it should be clear that the visit by the superintendent Mr. Garcia in November 2004 was the event that triggered this proceeding.

The Administrative Code requires the tenant to. prove that a pet was harbored “openly and notoriously” and that “the owner or . . . agent . . . has knowledge of this fact.” (Administrative Code § 27-2009 [b].)The only witnesses who testified that they even saw the cats were the tenant and the former neighbor’s husband. The balance of the tenant’s case is speculative and mischaracterizes independent contractors and neighbors as agents of the landlord. The tenant has not sustained her burden of proof.

Courts are bound by all of the terms of the Administrative Code and cannot judicially nullify the terms “openly and notoriously,” “knowledge” and “agent” to reach a desired result even if it causes “frustration” and a perceived “manifest injustice.” The role of the court is to interpret and not legislate. The City Council is the proper forum to address any claimed “injustice” caused by the Administrative Code.

The judgment for the landlord should be affirmed.

Davis, J., and McKeon, EJ., concur, McKeon, EJ., in a separate opinion; McCooe, J., dissents in a separate opinion. 
      
       The failure to include independent contractors is presumed to be intentional (McKinney’s Cons Laws of NY, Book 1, Statutes § 74).
     