United States: It's A Dog's Life

Last Updated: September 6 2019
Article by Victor Metsch

Westchester Plaza Holdings, LLC filed a summary holdover proceeding to evict Gertrude Sherwood and her son, Sheldon Sherwood, on the ground that they had failed to cure their violation of the no-pet clause in the parties’ lease. Specifically, Westchester Plaza claimed that  the Sherwoods had violated their lease by harboring a dog without landlord’s permission. and sought a final judgment of possession of their rental apartment. Gertrude did not appear in the action. Sheldon appeared and asserted that the dog was an emotional support animal entitling him to keep  the pet in the apartment under the State's Human Rights Law.

A non-jury trial was held before the Court. Westchester Plaza called Jana Schmidt, its in-house counsel, who testified that she was informed sometime in late February or March of  2019 that the Sherwoods were harboring a dog in the apartment in contravention of the parties’ lease. Schmidt further testified that, after being informed of the dog in the apartment, she directed her staff to investigate. She also testified that she was informed by her staff that visual observation and video confirmed that a dog was being harbored in the apartment by the Sherwoods. Schmidt further testified that neither  of them asked for permission to have a dog in their apartment.

Westchester Plaza also called Jeannette James, its property manager, who testified that she first witnessed Sheldon walking the dog inside and outside of the building in either February or March of 2019.

There was no dispute that the Sherwoods' lease prohibited keeping a dog in their apartment. The no-pet clause  stated that “[d]ogs… shall not be kept or harbored in the Apartment, unless in each instance it be expressly permitted in writing by Owner.”

Notwithstanding the no-pet clause, Sheldon admitted that he brought the dog to reside in the apartment sometime in February of 2019 without the written permission of Westchester Plaza. Sheldon testified that he suffered from kidney problems and depression and, based on his condition, he should be allowed to keep the dog for his emotional support. In support of his position, Sheldon testified that he was advised by his therapist from the Westchester County Jewish Services, Marjorie Dinjee, that he should obtain a dog for emotional support. Sheldon further testified that, after obtaining the Staffordshire Bull Terrier in February of 2019, he applied to the US Service Animal Registry and received a Service Animal Registration certificate and photo ID for his dog as an Emotional Support Animal.

Sheldon argued that a reasonable accommodation should have been made under the State’s Human Rights Law.

“No-pet” clauses are enforceable and compliance is a substantial obligations of a tenancy. To establish that a violation of the Human Rights Law occurred, and that a reasonable accommodation should have been made, Sheldon had to demonstrate that he was disabled and that, because of his disability, it was necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations could be made to allow him to keep the dog.

A reasonable accommodation could be required by the Human Rights Law if Sheldon could establish a need. The burden was on Sheldon, the party requesting the reasonable accommodation, to show that a violation of the Human Rights Law occurred and that a reasonable accommodation could have been made.

Gertrude was required to demonstrate that her son was disabled; he was otherwise qualified for the tenancy; because of his disability it was necessary for him to keep the dog in order for him to use and enjoy the apartment; and reasonable accommodations could be made to allow him to keep the dog.

The Court found that Gertrude failed to demonstrate through either medical or psychological expert testimony or evidence that Sheldon required a dog in order for him to use and enjoy the apartment. Accordingly, such a  conclusion was not supported by substantial evidence.

The Human Rights Law provides that it is an unlawful discriminatory practice to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling. To establish a violation of the Human Rights Law for failure to provide a reasonable accommodation, the complainant must establish a disability, the accommodation is necessary in order for the complainant to use and enjoy his or her apartment, and the building owner refused to make such an accommodation.

The Court found that Sheldon failed to submit evidence that the dog helped him with his symptoms of depression and kidney disease. Additionally, he failed to present any medical or psychological evidence to demonstrate that the dog was actually necessary in order for him to enjoy the apartment.

Moreover, Sheldon did not call any professional witness from Westchester County Jewish Services, or anywhere else, to testify on his behalf. Thus the Court had only Sheldon's testimony and his documentary evidence registering his dog as an emotional support animal with an internet company, USA Service Dog Registration, to rely on. The Court noted that the registration of a dog with this entity can be completed by anyone after paying a fee and there is no case law or statute requiring this Court to accept that entities determination that a dog is deemed to be an emotional support animal.

As such, the court found that Sheldon failed to carry the burden of establishing, through either medical or psychological expert testimony, that the dog was an emotional support animal necessary for him to enjoy the use of his apartment.

Accordingly, the Court entered a final judgment of possession in favor of Westchester Plaza. Since this proceeding was based upon a claim that Gertrude had breached a provision of the lease, the Court granted a 30 day stay of issuance of the warrant, during which time the breach could be corrected, presumably by keeping the dog out of the apartment.

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