Recitation, as required by CPLR §2219(a), of the papers considered in the review of Respondent’s Motion. PAPERS NUMBERED Respondent’s Notice of Motion, Affirmation in Support, & Exhibits (“A”-”F”) 1, 2, 3 Affirmation in Opposition, Affidavit in Opposition & Exhibits (“1″-”3″) 4, 5 Affirmation in Reply & Exhibits (“A”-”C”) 6 DECISION/ORDER This Holdover proceeding is based upon respondent’s harboring a “large Pitbull dog” in violation of various lease provisions.1 Respondent appeared though the Legal Aid Society and raised several defenses to wit: (a) That this action for harboring a dog cannot be maintained by petitioner, since under §27-2009.1 of the New York City Administrative Code the action was waived based upon the open and notorious harboring of the dog by respondent for more than three months prior to the commencement of this proceeding; (b) That the dog is needed by respondent’s disabled daughter2; and (c) if respondent were to lose at trial, she would be entitled to a post-judgment “cure” period. Respondent now moves to dismiss the proceeding based upon her First Affirmative Defense that she openly and notoriously harbored her dog for more than three months prior to commencement of this proceeding. Section 27-2009.1(b) of the New York City Administrative Code, states: “Where a tenant in a multiple dwelling openly and notoriously for a period of three months or more following taking possession of a unit, harbors or has harbored a household pet or pets, the harboring of which is not prohibited by the multiple dwelling law, the housing maintenance or the health codes of the city of New York or any applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within a three month period to commence a summary proceeding or action to enforce a lease provision prohibiting the keeping of such household pets, such lease provision shall be deemed waived”. Respondent, in support of the motion asserts that she maintained her dog in the subject premises since first taking occupancy in August 2014, (see paragraph “3″ of the Rodriguez Affidavit). Respondent also asserts that she maintained her dog since August 2014 and regularly walked the dog from her apartment, throughout the building, and out on the street. Respondent further asserts that petitioner’s office staff, superintendents, maintenance staff, and security all observed her dog in the subject premises on multiple occasions as well as interacted with her, (see paragraphs “4″ and “5″ of the Rodriguez affidavit). Respondent also bases the defense of waiver upon documentary proof of petitioner’s knowledge of her dog to wit: a post eviction stipulation dated May 16, 2018 from a prior nonpayment proceeding, which respondent entered into nine months prior to commencement of this proceeding3. That stipulation in pertinent part states: “Resp understands and agrees that she cannot have a dog in the apartment, petitioner alleges that resp. has a dog (pitbull)”, (see paragraph “8″ of exhibit “D” to respondent’s motion). In response to these assertions by respondent, petitioner’s agent focuses entirely on the nonpayment stipulation and asserts that petitioner was “notified” in November 2018 (six months after the stipulation) that respondent was still maintaining her dog, and therefore, the commencement of this proceeding on February 15, 2019 was timely (see paragraph “12″ of the Harper affidavit). Nowhere, however, does anybody on behalf of petitioner counter respondent’s assertions that she maintained her dog open and notoriously from the inception of her tenancy. Petitioner fails to address, let alone rebut, these assertions. In Seward Park Hous. Corp v. Cohen, 287 AD2d 157 (App Div. 1st Dep’t, 2001), the court held that the subject building’s maintenance personnel and porters, employees of the managing agent, and the security guards, employees of a company retained by the managing agent, were “agents” of the landlord and managing agent purposes of the imputation of knowledge under the Pet Law statute. The court rejected the landlord’s narrow interpretation of the term “agent” and the landlord’s reliance on the fact that neither it nor the managing agent required the building personnel to report animals, which would have allowed the landlord to turn a “blind eye” to a tenant’s open and notorious harboring of a pet and would have thwarted the statute’s remedial purposes, see 1775 York Venture (supra). From the unrebutted facts it is clear that even dehors the stipulation from the nonpayment, petitioner had already waived its objection to tenant’s dog back in 2014. Essentially petitioner’s inclusion of a statement regarding respondent’s dog in the context of a post eviction stipulation was nothing more than a backdoor attempt to revive the three-month window period already waived for years by petitioner. In Bray Realty, LLC v. Pilaj, 54 Misc3d 7, 42 BYS3d 711, (2016) the Appellate term second Department rejected a landlord’s argument that the three-month period was tolled for a second proceeding after the first was dismissed because of defective predicate notices. The court specifically rejected the landlord’s reliance on Baumrind v. Fidelman, 183 AD2d 635, (App Div, 1st Dep’t, 1992) which petitioner in this proceeding argues is “controlling”. The court in Bray Realty LLC noted that the Baumrind case “has since been expressly limited to its unique facts, including that the first proceeding had concluded in a stipulation of discontinuance without prejudice” (cites omitted). The provision that petitioner inserted, in a post eviction stipulation with a pro-se litigant under the pressure of seeking reinstatement to an apartment, had no effect in reviving the three-month period. Even assuming arguendo, the validity of the provision, it does not contain the representation that petitioner claims it relied upon i.e. that respondent had removed her dog. That provision simply contains, as noted above, an acknowledgement by tenant that she has a dog and that she knows she cannot maintain one. Nowhere does tenant represent that she has, or will, remove the dog. It is clear that petitioner knew of the dog’s existence prior to the nonpayment stipulation as petitioner identified the breed of dog when inserting that provision. Petitioner chose to sit back and not take action for months from the time of the stipulation and waived any objection to respondent’s dog. In fact, it is unrebutted that petitioner sat back for years and did nothing. For all of the stated reasons this court grants respondent’s motion dismissing with prejudice this proceeding based on respondent’s First Affirmative Defense of waiver. This constitutes the Decision and Order of the Court. SO-ORDERED Dated: September 9, 2019
