980 Fifth Avenue Corp. v. Smith

Appellate Division of the Supreme Court of New York

980 Fifth Avenue Corp. v. Smith

295 A.D.2d 133, 743 N.Y.S.2d 435, 2002 N.Y. App. Div. LEXIS 5862

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 6, 2002

StatusPublished

Cited by3 cases

This text of 295 A.D.2d 133 (980 Fifth Avenue Corp. v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

980 Fifth Avenue Corp. v. Smith, 295 A.D.2d 133, 743 N.Y.S.2d 435, 2002 N.Y. App. Div. LEXIS 5862 (N.Y. Ct. App. 2002).

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Opinion

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about December 12, 2001, which, to the extent appealed from, granted the cross motion of the Smith defendants for summary judgment dismissing the complaint, and order, same court and Justice, entered March 8, 2002, which, to the extent appealable, denied plaintiffs motion for renewal and leave to serve an amended complaint, unanimously affirmed, with costs.

A dog is not a per se nuisance (see, McCluskey v Wile, 144 App Div 470). Therefore, if plaintiff residential cooperative corporation were to claim successfully that the dog residing in defendants’ apartment constituted a nuisance, plaintiff would be required to plead and prove that the dog’s conduct in some way substantially and unreasonably interfered with the property rights of defendants’ fellow tenant-shareholders (see, Lewis v Stiles, 158 AD2d 589, 590, citing Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 571). Plaintiff, however, neither alleged nor adduced evidence which raised a triable issue about whether the dog’s conduct constituted a nuisance. Consequently, plaintiff could not rely on its house rules or proprietary lease to exclude the dog from the premises and thereby ignore the three-month limitation period (see, Administrative Code of City of NY § 27-2009.1 [b], [d]). Inasmuch as this action was commenced some eight months after defendants became tenant-shareholders and moved into their apartment at plaintiffs premises, and as the record also discloses that plaintiff was aware that defendants were openly and notoriously keeping a dog in their apartment from their tenancy’s inception, plaintiffs claim for relief is time-barred, premised as it is on its proprietary lease and house rules.

Moreover, the motion court properly found that plaintiff had waived its no-pet policy since the contract of sale for the apartment defendants purchased, as well as all prior writings between defendants and the unit’s seller plainly expressed defendants’ intention to keep a dog in the apartment. Plaintiff nonetheless approved that the shares be sold, and the lease to the unit be transferred, to defendants.

Indeed, plaintiff transferred the shares and lease to defen[134]*134dants notwithstanding their prior express refusal to accede to plaintiffs agent’s request that they sign an agreement which would have prohibited them from keeping their dog. Concur— Mazzarelli, J.P., Lerner, Rubin, Marlow and Gonzalez, JJ.

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—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about December 12, 2001, which, to the extent appealed from, granted the cross motion of the Smith defendants for summary judgment dismissing the complaint, and order, same court and Justice, entered March 8, 2002, which, to the extent appealable, denied plaintiffs motion for renewal and leave to serve an amended complaint, unanimously affirmed, with costs.

A dog is not a per se nuisance (see, McCluskey v Wile, 144 App Div 470). Therefore, if plaintiff residential cooperative corporation were to claim successfully that the dog residing in defendants’ apartment constituted a nuisance, plaintiff would be required to plead and prove that the dog’s conduct in some way substantially and unreasonably interfered with the property rights of defendants’ fellow tenant-shareholders (see, Lewis v Stiles, 158 AD2d 589, 590, citing Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 571). Plaintiff, however, neither alleged nor adduced evidence which raised a triable issue about whether the dog’s conduct constituted a nuisance. Consequently, plaintiff could not rely on its house rules or proprietary lease to exclude the dog from the premises and thereby ignore the three-month limitation period (see, Administrative Code of City of NY § 27-2009.1 [b], [d]). Inasmuch as this action was commenced some eight months after defendants became tenant-shareholders and moved into their apartment at plaintiffs premises, and as the record also discloses that plaintiff was aware that defendants were openly and notoriously keeping a dog in their apartment from their tenancy’s inception, plaintiffs claim for relief is time-barred, premised as it is on its proprietary lease and house rules.

Moreover, the motion court properly found that plaintiff had waived its no-pet policy since the contract of sale for the apartment defendants purchased, as well as all prior writings between defendants and the unit’s seller plainly expressed defendants’ intention to keep a dog in the apartment. Plaintiff nonetheless approved that the shares be sold, and the lease to the unit be transferred, to defendants.

Indeed, plaintiff transferred the shares and lease to defen[134]*134dants notwithstanding their prior express refusal to accede to plaintiffs agent’s request that they sign an agreement which would have prohibited them from keeping their dog. Concur— Mazzarelli, J.P., Lerner, Rubin, Marlow and Gonzalez, JJ.

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295 A.D.2d 133, 743 N.Y.S.2d 435, 2002 N.Y. App. Div. LEXIS 5862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/980-fifth-avenue-corp-v-smith-nyappdiv-2002.

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