Can I Keep My Cat? A Michelle Itkowitz Article in Bushwick Daily

December 30, 2019

A shorter version of this Article originally appeared in Bushwick Daily, where Michelle Itkowitz is the “Tenant’s Rights Adviser”.

Hi, I’m Michelle Itkowitz, an instructor on the Tenant Learning Platform and Bushwick Daily’s Tenant’s Rights Adviser. This is the third article in a series that will bust some common myths contained in your apartment lease. As a New York City tenant, you have many rights. And no matter what your lease says, those rights cannot be taken away.

What Your Lease Says

You vaguely knew that the lease you signed in a building with three or more apartments said, “no pets.” But you just couldn’t help but bring home those two adorable stray kittens you found on the corner of Wilson and Gates late one cold night two years ago. Those kittens grew into beautiful cats—probably the best roommates you’ve ever had.

One day, your faucet started dripping. So, you called your landlord to come and fix it. The landlord’s plumber came in and did the repair. But apparently, the plumber has a big mouth and told the landlord that he saw a cat litter box in the bathroom.

Three days later, you get a scary, threatening letter from the landlord, telling you that your lease says, “no pets,” and you have to get rid of your precious feline companions. Your lease doesn’t end for ten months and you have no plans to move. Is it time to find your cats a new home upstate?

Well, It’s Time to Bust Another Lease Myth! – The Three-Month Rule

Let’s say that you live in a building with three or more apartments in it. If the landlord knows (or should know) about a pet in an apartment, and three months goes by without the landlord suing you, then the pet can stay, and case dismissed! This applies even if there is a no-pets clause in your lease. This situation is commonly referred to as the “Three-Month Rule.” N.Y. Code § 27-2009.1 (Rights and responsibilities of owners and tenants in relation to pets).

By “suing you” we mean that the landlord must, as per the statute, “commence summary proceedings” (i.e. service of the notice of petition and petition). Seward Park Housing Corp. v. Cohen, 287 AD2d 157 (1st dept. 2001).

The Three-Month Rule only applies if you live in a building with three or more apartments in it. This includes co-ops. See Linden Hill No. 1 v. Kleiner, 124 Misc.2d 1001 (NYC Civ. Ct. Queens Cty 1984).

In our above example, we used a cat. But the law applies to any household pet that is not otherwise prohibited by law, so dogs and rabbits are also good to go.

The Three-Month Rule does not apply if your pet creates a nuisance or interferes with the health, safety or welfare of others. Be a good neighbor and make sure your pet is housebroken and trained.

Openly and Notoriously

For the Three-Month Rule to protect you and your pet, you must be keeping the pet “openly and notoriously,” which is a legal way of saying that you are not trying to keep the pet a secret from your landlord. A good example of this is if you are openly walking your dog in and out of the building every day. In this case, the landlord is presumed to know that the dog is there (and probably has stopped to pet it). But see Gidina Partners LLC v. Marco, 11 Misc3d 21 (AT 1st 2005) (Dog was not openly and notoriously kept in the apartment when the tenant was boarding the dog elsewhere.)

But how could a tenant prove that she was not trying to hide her cat from the landlord? Cats don’t (usually) get walked outside, though we’ve seen it in Bushwick.

But cats do get carried in and out of the building to go to the vet. Also, if the landlord calls you or sends you a letter asking you to get rid of your cats, and the landlord sues you more than three months after that phone call, text, email, or letter, then it’s easy to prove that the lawsuit is too late! Obviously, the landlord knew about the kitties more than three months ago, when she was first complaining about them. See 280 E. Burnside Assoc. v. James, 12/27/2018 NYLJ, almID/1547461235NY332932018 (NYC Civ Ct. Bronx Cty.) (Tenant wins on 90-day pet law defense; Landlord knew about the pet based on correspondence when tenant moved in and waited a year to bring the case.); Westchester Gardens L.P., Petitioner, v. Priscilla Vargas, 2019 WL 1087844 (NYC Civ Ct. Bronx Cty.) (“Accordingly, it is the finding of this Court that petitioner did not timely institute the proceeding and thus waived the no pet clause contained in respondent’s lease and cannot maintain this proceeding. The petition is dismissed. This case shows LL know about the dog 5 years ago because of a letter.”)

In terms of cats, “openly and notoriously” keeping them has been held to mean that if any employee or agent of the landlord is in your apartment and at least has the opportunity to see anything that indicates that you have a cat (like a litter box or cat toy), that’s good enough to start the clock running on the Three Month Rule. A litter box in bathroom, is an “unmistakable indicium of cat ownership.” It doesn’t matter if cats are shy and hide. The cat itself does not need to be displayed in public. 184 West 10^th Street Corp. v. Marvits, 59 AD3d 287 (2009). Thus, the Marvits case recognized that cats are shy by nature and tend to hide from new people (so relatable). This is true even if that agent or employee does not have a big mouth like the plumber in our above example and fails to tell the landlord. 1700 York Associates v. Kaskel, 182 Misc. 2d 586 (N.Y. City Civ. Ct. 1999). In fact,

Who is an agent or employee of the landlord? It can be:

A managing agent. 930 Fifth Corp. v. Miller, 2002 WL 229505 (N.Y. App. Term 2002).
A superintendent. 1700 York Associates v. Kaskel, 182 Misc. 2d 586 (N.Y. City Civ. Ct. 1999) (holding that notice to a building superintendent of the presence of a tenant’s pet is deemed notice to the landlord, and this is true even if the superintendent in fact never reported the pet to the landlord and even if the landlord had specifically set forth a policy that reporting the presence of pets in tenants’ apartments is not part of the superintendent’s responsibilities).
Other employees. Seward Park Housing Corp. v. Cohen, 287 A.D.2d 157 (1st Dep’t 2001).
Doorman, 1725 York Venture v. Block, 64 AD3d 495 (1st 2009).
A building contractor, 184 West 10^th Street Corp. v. Marvits, 59 AD3d 287 (2009).
Security guards, Met Life Ins. Co. v. Datta, 2002 WL 221077 (AT 1st 2002).

Other Things to Know About the Three-Month Rule

The NYC Council made this rule because it noted that, “household pets are kept for reasons of safety and companionship and under the existence of a continuing housing emergency it is necessary to protect pet owners from retaliatory eviction and to safeguard the health, safety, and welfare of tenants who harbor pets…” Thank you, NYC, for recognizing the value of furry friends.

It does not matter if your lease says, “no pets.” Any such restriction in a lease in a building with three or more units shall be unenforceable and deemed void as against public policy.

Finally, you should note that, “Any waiver under the law is more properly limited to existing pets which are part of the household; it is not reasonably extended to future pets which were not yet in the premises … .” Park Holding Co. v. Emicke, 168 Misc. 2d 133, (App. Term 1st 1996).

For Those Not Protected By the Three Month Rule

It is important to keep two things in mind, however.

FIRST: The Three-Month Rule does not protect people living in apartments in one- or two-family homes. But wherever you live, keep in mind that you do not need to make any quick decisions about your pets if you get a letter like the one we described above.

The landlord must take you to court before he can evict you—a process which, under the best of circumstances, takes a few months. Remember, in NYC, a landlord can never lock you out of your apartment without first taking you to court and getting a judgment of possession against you. Never ignore legal papers from your landlord.

SECOND: Even if the Three-Month Rule does protect you during your lease, if you are not rent-stabilized or protected by some other program, it is always possible that your landlord could eventually refuse to renew your lease when it expires if he or she is still unhappy about the pet.

Therefore, if possible, you should try to negotiate with your landlord and allay her fears about your pet in these situations. If the landlord is refusing to renew, send her a cute picture of the pet and assure her that the pet is not damaging the apartment or bothering other people. Remind the landlord that you have been a great tenant, and the kitties you know are better than the kitties you haven’t met yet!