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

Editors' Note: This article has been modified to reflect a Correction.

The first time Maddy Tarnofsky told a judge that her client's Golden Retriever was actually a legally protected, reasonable accommodation for a disability, she said, the judge "laughed in my face."

It was the mid-1990s, and her client was a plastic surgeon who specialized in treating children with deformities and severe burns. She kept the dog in her office to calm her patients, but the board of the Long Island co-op where she spent part of her time was trying to make her get rid of the dog. The doctor ended up surrendering the co-op.

She might get a different result today, Tarnofsky said. At any rate, "You wouldn't have a judge laugh now," Tarnofsky said.

Bradley Silverbush, a partner at Rosenberg & Estis who represents landlords, said that the balance has shifted so far in favor of tenants that they can often prevail on flimsy claims.

"Based upon my experience, 80 percent of the dog cases I have, people are using it as a defense," he said—that is, asserting that they need a dog for medical reasons only after the landlord tries to get rid of it, rather than having been diagnosed before. Though himself a dog owner and self-described animal lover, Silverbush represents landlords in pet cases more than any other attorney in the city.

Tarnofsky, a solo practitioner, is one of at least three attorneys in New York City who specialize in helping tenants and co-op shareholders keep animals that they say they need to cope with a disability. Tarnofsky, Karen Copeland, another solo practitioner, and Darryl Vernon of Vernon & Ginsburg, a small Manhattan firm, have all been handling emotional support animal cases for close to 20 years.

While other tenant attorneys sometimes handle such cases, none has focused on them as much as have Tarnofsky, Copeland and Vernon. Vernon belongs to the New York City Bar Association's animal law committee, of which Copeland is a past member. In Copeland's words, "just because we're animal people, we know each other."

They all agree that emotional support animal claims have taken off over the last decade.

"It appears that it's taking hold," Copeland said.

She has been handling pet cases for tenants since 1996, at the beginning of her career in private practice. Before that, she worked for the Department of Housing Preservation and Development.

Copeland said she was drawn to pet work in part because she is an animal lover herself; currently she has two Shetland Sheepdogs and two cats. An early encounter with the legal system also played a role: while she was an undergraduate at the University of Massachusetts in Boston, her landlord tried to make her get rid of her dog. The Boston College Law School Legal Clinic took the case and won.

She views the recent trend toward emotional support animal claims partly as a cultural shift. Copeland is fascinated by the nature of human-animal relationships and how they benefit people psychologically; she corresponds regularly with a paleoanthropologist at Penn State University, Pat Shipman, who maintains that animal-human bonds are as hard-wired in human DNA as language and using tools.

Copeland believes that the therapeutic benefits of emotional support animals, such as service dogs, are becoming more recognized by the public. As a result, she said, tenants facing a choice between a pet and an apartment increasingly know that they have legal remedies.

"People are just picking up on it," she said. "They're reading things, hearing from their neighbors, seeing people."

Doctors, who must vouch that their patients truly need their pets, also have embraced the idea of emotional support animals, Tarnofsky noted.

"It's the rare doctor, now, that says, 'That's ridiculous, this makes no difference to my patient's condition.' I don't hear that anymore," Tarnofsky said. "Doctors are being educated, judges are being educated, legislators are being educated."

Law was a second career for Tarnofsky, who moved to New York from Chicago in 1971 to be an actress. She abandoned that path after casting directors told her she looked "too Jewish," but "not Jewish enough" for Fiddler on the Roof.

"I thought, I can't put my fate in the hands of these idiots anymore. Is there something else that I feel passionate about? And that was landlord-tenant issues."

She began her career at a small tenant firm, David Rosenholtz & Associates. Herself a dog owner and dog lover, she jumped on the first pet case that came to the firm in the mid-1980s and has sought out pet cases ever since.

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.

'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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