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

'Really Clever Arguments'

Seward Park was just one of a series of cases that has made it easier for tenants to hold onto to their emotional support animals. For example, in 1991, a Manhattan Supreme Court judge ruled in Robinson v. City of New York, 579 N.Y.S.2d 817, that a tenant did not need to take her paper-trained dog outside to do its business if the tenant was harboring it openly.

In 2008, the First Department ruled Hirschmann v. Hassapoyannes, 52 AD.3d 221, that a co-op board couldn't ask whether a buyer needed an accommodation before approving him, and couldn't rescind approval later when he revealed that he did. In that case, the buyer was asking not for a dog, but for a washing machine in his apartment. It is cited in pet cases.

"I give a fair amount of credit to good lawyering," landlord advocate Silverbush said, of tenants' lawyers. "Clever people have come up with really clever arguments." As a result, he said, his clients can't necessarily assume that they will be able to enforce a no-pet clause without a fight.

In addition to going to court, tenants or shareholders can file discrimination complaints with HUD, which may then refer the case to state's Division of Human Rights. If HUD holds onto a case, it can either proceed before an administrative law judge or in federal court, where it has the backing of the U.S. attorney.

"There's been a huge increase" in disability claims, Silverbush said, "because of how they've been handled by the state and federal agencies that have us feeling like we're walking on egg shells."

In a recent high-profile case, HUD has sued the Lower East Side's East River Housing co-op on behalf of three tenants seeking to keep emotional support dogs. Two of those tenants are represented by Copeland, and the co-op is represented by Silverbush.

Asked about the skepticism that sometimes greets support animal claims, Copeland disputed that any of her clients are gaming the system. "If I thought they were lying, I couldn't represent them," she said.

As she sees it, the law became relatively tenant-friendly after recognizing that a large number of people can, in fact, benefit medically from support animals. Tenants often can state at least enough of a case for a finding of probable cause by HUD, Copeland said, because "the threshold set by the FHA is not very difficult to meet."

"If a medical professional says there's any connection to keeping an animal, that's a prima facie case," she said.

"The very basic premise is that you just can't discriminate against someone who has any sort of disability, and those disabilities are broadly defined," Vernon said. "A lot of people … see it as a bit of a joke. They don't understand how serious chronic depression can be, how debilitating."

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