More Tenant Actions Going to the Dogs, Lawyers Say

, New York Law Journal

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Maddy Tarnofsky, a tenant's attorney, with her dog, a 6 year old Newfoundland named Maizie
Maddy Tarnofsky, a tenant's attorney, with her dog, a 6 year old Newfoundland named Maizie

Vernon, who has been practicing landlord-tenant law since 1982, shortly after graduating from Benjamin N. Cardozo School of Law, took his first pet cases in the mid-1980s. He also credited "advances in medicine showing that the animal can be medically helpful."

Vernon pointed to another factor behind the shift, as well—the changing nature of New York real estate.

Incentives to Evict

The rise of emotional support animal claims has taken place against a backdrop of sweeping change in the New York rental market. In 1994, the state Legislature authorized luxury deregulation, which deregulates apartments if the legal monthly rent exceeds a specified cap, currently $2,500. In addition to normal annual and vacancy increases, landlords can raise the legal rent of an apartment by adding part of the cost of renovations to the rent.

The practical effect of luxury deregulation has been that in areas with high market rents, including the majority of Manhattan, a landlord can virtually always deregulate an apartment upon vacancy.

"It created tremendous incentive" to evict tenants for any reason, Vernon said.

While impossible to prove that the increase in pet litigation can be blamed on luxury deregulation, Vernon, Tarnofsky and Copeland all said that real estate interests played a role.

"It is rarely about the little dog or the little cat," Tarnofsky said. "It's usually about the rent-regulated apartment."

As discrimination claims over support animals have become more common, they've also become easier to win, thanks to a series of legal developments.

At the very beginning of his career, Vernon said,"cases were just very, very different…. The disability laws were not nearly as advanced, nor were people nearly as savvy about the medical benefits that companion animals could have."

In 1983, the city's administrative code created the "90-day rule," the single strongest line of defense for New Yorkers with pets. The ruled states that if a tenant has a pet "openly and notoriously" for 90 days, with the landlord's knowledge and the landlord does not bring an action, the landlord waives any right to enforce a no-pet policy.

At first, the rule didn't help tenants much. It was easy for an absentee landlord to say that it had no knowledge of the pet. That changed in 2001, when the Appellate Division, First Department ruled in Seward Park v. Cohen, 287 A.D.2d 157, that the knowledge of a landlord's agents—the super, the doorman, the rent collector—can be imputed to the landlord.

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