Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent Javada James’ motion for summary judgment:Papers NumberedNotice of Motion & Supporting Memorandum of Law, Affirmation, Affidavit & Exhs A-S 1Affirmation in Opposition 2Memorandum of Law in Further Support of Motion & Exhs T-U 3DECISION & ORDER Upon the foregoing papers, the motion for summary judgment of respondent Javada James (hereinafter “respondent”)1 is granted as to her First Affirmative Defense of waiver under the New York City “Pet Law” and this eviction proceeding is dismissed with prejudice for the reasons that follow.BACKGROUND & PROCEDURAL HISTORYThis is a holdover proceeding brought against a Rent Stabilized tenant based on alleged failure to cure a breach of a substantial obligation of the tenancy by harboring a pet dog without the landlord’s consent in violation of a “no pets” lease provision. The Petition was preceded by a “Ten (10) Day Notice to Cure” dated April 23, 2018 and a “Thirty (30) Day Notice to Terminate” dated May 8, 2018, copies of which are attached to the Petition.Also attached to the Petition is a letter to respondent dated December 11, 2017 from the office of petitioner’s attorneys stating that they had been made aware that she was harboring a dog in her apartment in violation of her lease, acknowledging receipt of a doctor’s letter dated October 13, 2017 which stated that respondent had been “prescribed an emotional support dog”, and asking respondent to forward “said prescription along with other documentation” in order for petitioner to ascertain if her request for an emotional support animal accommodation would be granted. The letter states that if a response was not received within 10 days petitioner would commence a summary proceeding to recover possession of the apartment.The Notice of Petition and Petition are dated June 21, 2018 and were served on respondent by “conspicuous place” (“nail and mail”) service with the “nailing” on June 27, 2018 and the mailing on June 28, 2018. The Notice of Petition with proof of service was filed with the court on June 29, 2018 and the case first appeared on the Court’s calendar on July 5, 2018. The case was adjourned initially for respondent to retain counsel, which she did by the adjourned date of August 29, 2018. On that date, counsel for the parties adjourned the case to October 25, 2018 for trial or settlement; a notation on the court file jacket states that any motion was to be made pursuant to CPLR §2214. Respondent filed a Verified Answer with the court on September 10, 2018 which asserts, in addition to a “general denial” and paragraphs admitting, denying or asserting a lack of knowledge and information sufficient to form a belief as to each allegation in the Petition:a defense of failure to state the facts by failing to plead that petitioner is a participant in the “federal HOME investments partnerships program (“HOME”)”;three affirmative defenses:First: petitioner’s waiver of the right to bring this proceeding under NYC Admin. Code §27-2009.1(b) by failing to commence it within three months of having acknowledged the presence of respondent’s dog in writing on December 11, 2017;Second: petitioner’s discrimination against respondent based on her status as a person with a disability in violation of federal, state and local laws which allow a tenant to have an emotional support animal as a reasonable accommodation of a disability;Third: retaliatory eviction, based on the assertion that petitioner commenced this proceeding to retaliate against respondent for complaining to the City’s Department of Housing Preservation and Development about lack of heat and hot water;a counterclaim for attorney’s fees.Respondent filed a motion returnable October 25, 2018 seeking summary judgment under CPLR §3212 on her first and second affirmative defenses of waiver of the “no pets” clause of her lease under the New York City Pet Law, NYC Admin. Code §27-2009.1(b), and disability discrimination under federal, state and local laws, as well as on her defense of failure to state the facts as required by RPAPL §741 by failing to plead the full regulatory status of the building.Respondent supports her motion with her own sworn affidavit, her attorney’s affirmation and copies of the pleadings, her lease for the two-year period of 11/29/2017 through 11/30/2019, a dog license certificate dated 06/06/2018, expiration date 05/30/2019, from the New York City Department of Health for a female American Staffordshire Terrier named “Bella”, and various other documents including printouts of email exchanges between the parties with dates from November 21, 2017 through December 20, 2017 regarding respondent’s alleged medical need for an emotional support animal.Petitioner opposes respondent’s motion solely with an affirmation of its attorney, who argues that the motion should be denied as there are issues of fact. Regarding respondent’s “Pet Law” waiver defense, petitioner’s attorney asserts that “Petitioner was unaware of Petitioners2 harboring of the pit bull until several days before the notice to cure was created” and that “The court must decide at trial, “what Petitioner knew and when did he know it”. Regarding respondent’s disability discrimination defense, petitioner’s attorney argues that respondent has not explained why she “needs this specific breed of dog to cope with depression when there are countless other breeds of dogs with fewer propensities for violent behavior”.In reply, respondent’s attorney argues that the opposition papers are insufficient to raise any material issues of fact. Regarding the “Pet Law” defense, respondent’s attorney argues that there is no indication that petitioner’s attorney has any personal knowledge on which to base the statement that petitioner was not aware of the dog until several days before service of the Notice to Cure. Regarding the disability discrimination defense, respondent’s attorney argues that, other than a “speculative comment that [respondent] could have selected a dog breed with fewer propensities for violent behavior”, petitioner failed to submit any opposition. As for respondent’s defense of inadequate pleading of the building’s regulatory status by failing to mention that the building participates in the federal “HOME” program, petitioner did not address this at all in its opposition papers.DISCUSSIONTo obtain summary judgment, under CPLR §3212(b) the movant must establish the cause of action or defense sufficiently to warrant a court’s directing judgment in their favor as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Winegrad v. New York Univ Med Center (64 NY2d 851, 853 [1985]); Zuckerman v. City of New York (49 NY2d 557, 562, 427 NYS2d 595 [1980]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action; bare conclusions or unsubstantiated allegations are insufficient. Zuckerman v. City of New York, id.Here, there are no material issues of fact as to respondent’s First Affirmative Defense under the New York City Pet Law, NYC Administrative Code §27-2009.1, which mandates waiver of a “no pets” lease clause where a landlord has knowledge that a tenant is “openly and notoriously” harboring a household pet but fails to enforce the lease provision promptly-that is, by commencing an eviction proceeding within three months of learning of the pet’s presence in the apartment. See generally Seward Park Hous Corp v. Cohen (287 AD2d 157, 734 NYS2d 42 [1st Dep't 2001]).It is evident from the letter to respondent from petitioner’s attorney dated December 11, 2017 which is attached to the Petition that petitioner knew at least as of that date that respondent was harboring a dog. Further, in her unrefuted, sworn affidavit, supported by printouts of emails between respondent and petitioner’s agents dated during the period of November 21, 2017 through December 20, 2017, respondent asserts that before she moved in to the subject premises on December 8, 2017 she had been open with petitioner’s management company about her ownership of a dog and her “clinical need for an emotional support animal”. Nevertheless, this proceeding was not commenced until June 29, 2018, which is the date petitioner completed service of the Notice of Petition and Petition by filing proof of service with the court. See 528 E 11th St HDFC v. Durieaux (164 Misc2d 595, 625 NYS2d 431 [Civ Ct NY Co 1995]).Petitioner’s opposition consists solely of the affirmation of one of its attorneys which contains a conclusory statement that petitioner was not aware that respondent had a dog “until several days before the notice to cure was created.” Affirmation in Opposition at 9. Not only is the affirmation “without evidentiary value and thus unavailing” as petitioner’s attorney demonstrates no personal knowledge of the facts, Zuckerman v. New York supra (49 NY2d at 563, 404 NE2d at 720, 427 NYS2d at 598), but it fails to provide any explanation as to why the proceeding was not brought within three months of the letter from the attorney’s own office to respondent dated December 11, 2017.As petitioner failed to commence this proceeding within three months of the date of its unequivocal written acknowledgement of the fact that respondent was harboring a dog, as required by the NYC Pet Law, respondent’s motion for summary judgment on her First Affirmative Defense is granted and there is no need to address the other grounds for relief she raises in her motion.CONCLUSIONFor the foregoing reasons, respondent’s motion for summary judgment is granted and the proceeding dismissed with prejudice. This constitutes the Decision and Order of this Court, copies of which will be provided to the parties’ respective counsel in the courthouse.Dated: December 27, 2018Bronx, New York
