Seward Park Housing Corp. v. Cohen

287 A.D.2d 157, 734 N.Y.S.2d 42, 114 A.L.R. 5th 789, 2001 N.Y. App. Div. LEXIS 12140

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 13, 2001
• Status: Published

Opinions

OPINION OF THE COURT

Buckley, J.

This is a holdover summary proceeding by petitioner landlord to evict respondent tenant for harboring a dog. This case presents two questions arising from interpretation of a 1983 New York City ordinance.¹ The questions are:

(1) Where a tenant openly and notoriously harbors a pet for three months, with the actual knowledge of servants and employees at the building who are not required by the landlord to report this harboring, does the non-resident managing agent, nevertheless, by ordinance, have imputed knowledge of such harboring?

(2) Where the managing agent has such imputed knowledge, but fails to commence a proceeding to enforce a no-pet covenant within the three-month time limitation of the ordinance, has the landlord thereby waived its right to enforce the covenant?

For the reasons stated below, we answer these questions in the affirmative, reverse the divided Appellate Term (184 Misc 2d 245) and dismiss the petition, as did Civil Court.

A.

Forty-three years ago, Max Cohen, a sportswear cutter in the garment industry, his wife, Carol, and children, Ronald and Kenneth, moved into an apartment on the 19th floor of 415 Grand Street, a multiple dwelling on the Lower East Side of Manhattan owned by petitioner, a publicly funded cooperative corporation.

Max and Carol Cohen were tenants under a written lease which commenced on July 1, 1960 and ended on June 30, 1963, continuing thereafter on a month-to-month basis. Carol died in 1992. In 1996, Max, then age 65 and retired, continued to live in the apartment with his son, Kenneth. On September 13, 1996, Max purchased a four-month-old chow puppy for companionship, naming it Rocky and bringing Rocky home to live in the apartment. Before this, fellow building tenant Lisa Grossman was harboring a dog in her apartment and previously had a pending action against her commenced by petitioner landlord. The case ended with a stipulation that she could keep her dog in her apartment. Lisa Grossman had discussed her case with Max.

Cohen’s lease contains a no-pet clause which reads that “(n)o animals of any kind shall be kept or harbored in the demised premises.” The lease expressly precludes waiver of such no-pet clause by failure to enforce or by any other method unless confirmed in writing signed by petitioner. The managing agent first learned, in late November 1996, of the dog’s presence in Max’s apartment. Petitioner landlord commenced this proceeding on February 10, 1997.

At the trial, the managing agent of petitioner corporation and its only witness testified that the employees of Cambridge Security, the maintenance personnel and the porters are not required to report tenant harboring of pets. He further claimed that such a duty was not part of their guidelines, nor of the union contract. There was no proof offered by petitioner as to the applicable guidelines or union contracts. Also, there was no proof offered that any person or persons on the property, including resident board members, were charged with the duty of reporting such lease violations. Petitioner’s managing agent neither resides in the cooperative nor maintains an office there and has been at the building only once in the preceding two years. Petitioner has no policy regarding the reporting of tenant pets by its employees or the security guards, who are employees of Cambridge Security. The managing agent had no knowledge that any of his employees, or the security guards, knew of Cohen’s harboring of Rocky in September or October 1996.

Respondent Max Cohen, his son, Kenneth Cohen, and fellow building tenants Lisa Grossman and Ira Langman, testified that Max and Kenneth have walked Rocky, in and about the building, in the cooperative’s yards during normal hours, three times a day since September 13, 1996, starting out from Max’s 19th floor apartment, and that the security guards, maintenance workers and porters at the building, on a daily basis, saw Max and Kenneth with Rocky, spoke with Max and Kenneth about Rocky, petted Rocky and played with Rocky. This testimony of Max’s and Kenneth’s openly notorious harboring of the puppy and the actual knowledge of the security guards, maintenance workers and porters of this harboring was uncontroverted at the trial.

The decision of the trial court states, in part, as follows:

“In the instant proceeding, it is undisputed that building personnel not only visually observed the dog but physically interacted with the pet on various occasions.

“The credible evidence and testimony at trial was overwhelming that from the first day respondents brought the dog home it was exposed to and seen by building personnel on a regular basis. This Court finds that petitioner is bound by the acts of its employees. Knowledge of the existence of respondents’ dog in mid-September 1996 must be imputed to petitioner. Petitioner’s argument that security guards, janitors and porters at the subject building were merely independent contractors whose job description did not include informing petitioner of the harboring of dogs in violation of lease agreements, thereby tolling the statutory waiver period is not persuasive.

“This Court determines that petitioner has waived its right to enforce a no-pet provision in respondents’ occupancy agreement pursuant to Ad. Code § 27-2009.1. Accordingly, this proceeding is dismissed.”

The Civil Court’s fact findings are supported by the record and warrant the conclusion that petitioner waived its ability to enforce the no-pet clause.

B.

While a dog may be man’s best friend, landlords often discourage tenants from keeping pets. Opposition to pets often takes the form of no-pet clauses contained in the standard residential lease. Such clauses often preclude a waiver of a no-pet clause, either by the landlord’s failure to enforce it, or by any other method unless confirmed in a writing signed by the landlord.

In 1983, the New York City Council, responding to widespread abuses by landlords who sought to evict tenants who harbored pets for an extended period of time, despite no-pet lease clauses, and without prior complaints by the landlord, enacted an ordinance (Local Law No. 52 [1983] of City of NY) which became Administrative Code § 27-2009.1. Its purpose, set forth in section 27-2009.1 (a) in sum, is twofold: (1) to protect pet owners from retaliatory eviction; and (2) to safeguard the health, safety and welfare of tenants who harbor pets. The ordinance sought to balance the rights of a landlord who acted promptly to evict a tenant upon learning the tenant harbored the pet, against the rights of a tenant who harbored such pet with the knowledge of the landlord, for an extended period of time (three months), without action being initiated by the landlord.

The no-pet waiver rule was intended to require that landlords enforce a no-pet clause promptly or be deemed to have waived that breach of the lease (Megalopolis Prop. Assn. v Buvron, 110 AD2d 232, 235-236 [implied waiver given retroactive effect]). The waiver applies to all “dwellings” which includes the cooperative apartment of respondent (Administrative Code §§ 27-2003, 27-2004 [a] [3]). It is undisputed that the rule, if the petitioner had knowledge and failed to commence the proceeding within the time provided by the ordinance, applies against petitioner to benefit respondent.

In Megalopolis Prop. Assn. v Buvron (supra, at 234), the Court observes that the ordinance applies to all existing leases:

“The law, which was to take effect immediately, applies to all existing leases * * *. [I]t expressly covers a tenant who openly and notoriously has harbored a household pet for a period of three months or more following taking possession of a unit, when a landlord, who has knowledge of the pet, has failed, within this three-month period of harboring, to commence a summary proceeding or action to enforce the lease provision prohibiting the keeping of such a pet” (emphasis in original).

The Court further held that the ordinance does not unconstitutionally impair the landlord’s preexisting contract rights.

The City Council sought to allow a tenant the security and companionship of a pet when a landlord was not timely enforcing a no-pet lease covenant. As stated at the September 22, 1983 meeting of the Committee on Housing and Buildings by its then chairman and the prime sponsor of the ordinance,

“‘[W]e are not eliminating the landlord’s right to enforce a contract that says no pets, but at least the landlord will have to be up front through its agent, superintendent, in saying we are not a pet building, we don’t permit pets. If you want to have a pet, we will not welcome you into our building because we will enforce it. If they don’t enforce it within the first three months or they wink at it, then the pet is there and cannot be removed’ ” (quoted by Megalopolis Prop. Assn. v Buvron, at 236 [emphasis added]).

An analysis of the ordinance provided for the Committee on Housing and Buildings by City Council’s legal staff stated that it

“creates a difficult burden for landlords with respect to its scienter requirements * * * [since it] imputefs] an employee’s knowledge to his employer.” (New York City Local Law Bill Jacket, 1983 Local Law No. 52, at 7 [emphasis added].)

This implied waiver made no-pet covenants unenforceable after three months of obvious pet ownership despite the parol evidence rule or lease merger clauses. All extant leases were thereby amended by operation of law to render no-pet clauses waivable under the terms of the ordinance (Megalopolis Prop. Assn. v Buvron, supra), including the proprietary leases of petitioner cooperative, since the pet law applies to cooperative housing (Clearview Gardens Corp. v Volpicelli, 213 AD2d 582). This ordinance specifically excludes buildings owned and managed by the New York City Housing Authority from this legislation. If the City Council had wished to exclude cooperatives from this ordinance it could easily have so specified. But it did not. Therefore, the exclusion of one implies the inclusion of all others (Clearview Gardens v Volpicelli, supra; see, Board of Mgrs. v Lamontanero, 206 AD2d 340; see also, Linden Hill No. 1 Coop. Corp. v Kleiner, 124 Misc 2d 1001; Corlear Gardens Hous. Co. v Ramos, 126 Misc 2d 416).

In Metropolitan Life Ins. Co. v Friedman (205 AD2d 303 [Met Life]), we decided that plaintiff landlord’s failure to commence an action within three months after learning that defendants-tenants were harboring a dog in their apartment must be deemed a waiver of the “no-pets” provision in the parties’ lease. Our decision in Met Life is contrary to Park Holding Co. v Lavigne (130 Misc 2d 396), an earlier decision of the Appellate Term. Having departed from the clear text of the ordinance in Park Holding, the Appellate Term rendered the ordinance “toothless.” We find our 1994 decision in Met Life to be controlling, and Appellate Term’s 1985 decision in Park Holding should not be followed.

The dissent’s reliance on Baumrind v Fidelman (183 AD2d 635) is misplaced. The dissent urges us to extend the holding in Baumrind to the case at bar. Were we to do so, we would gut the no-pet waiver ordinance. Instead, based upon our holding in Met Life and relying on the literal interpretation of this ordinance, we limit Baumrind to its facts. In Baumrind, the facts were unique and the decision turned on a stipulation of discontinuance without prejudice.

C.

The plain meaning of this ordinance is to impute the actual knowledge of the landlord’s servants and employees at the building to the non-resident managing agent under the facts of this case.

“Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation.” (McKinney’s Cons Laws of NY, Book 1, Statutes § 76.)

This Code provision is unambiguous. Section 27-2009.1 (b) states:

“Where a tenant * * * openly and notoriously for a period of three months * * * harbors * * * a household pet * * * and the owner or his or her agent has knowledge of this fact, and such owner fails within this 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.”

“Open and notorious” is defined as “[a]cts on the land of another sufficient to alert the owner of a claim to his land which may ripen into title under adverse possession.” (Black’s Law Dictionary 1090 [6th ed 1990].)

The waiver rule as enacted relies on objective, easily provable elements. Its key words, “openly and notoriously,” are taken from the well-settled law of adverse possession. An adverse claimant, by his or her unequivocal acts, must have “open and notorious” possession of the land so that the real owner of the land will have knowledge of this hostile claim, and will thereby be required to act to assert his or her legal title. This “open and visible or notorious” use is also required to establish an easement by prescription (2 NY Jur 2d, Adverse Possession, § 43).² It is essential that the owner have knowledge of the adverse possession or use. Actual knowledge is, of course, sufficient. Where, however, there has been no actual knowledge, it can be shown that the possession or use was so open, notorious and visible as to support an inference that the owner must or should have known of it. Knowledge can be either actual or imputed (2 NY Jur 2d, Adverse Possession, § 44).

“Notorious possession” is defined as “a requisite of adverse possession, such possession that is so conspicuous that, it is generally known and talked of by the public or the people in the neighborhood. Possession or character of holding in its nature having such elements of notoriety that the owner may be presumed to have notice of it and of its extent.” (Black’s Law Dictionary 1063 [6th ed 1990].)

The use of the phrase “openly and notoriously” in section 27-2009.1 (b) of the ordinance, therefore, shows a legislative intention to presume knowledge on the part of the landlord. In this ordinance, proof of “openly and notoriously” harboring of the pet in the apartment “for a period of three months or more” raises a presumption of knowledge by the owner or his managing agent of this fact (cf., Di Leo v Pecksto Holding Corp., 304 NY 505, 512 [if “open and notorious” element is proven the burden shifts to disprove actual knowledge]; Treadwell v Inslee, 120 NY 458, 465 [knowledge of open and notorious conduct presumed]; Ward v Warren, 82 NY 265, 267-270 [knowledge presumed]).

Our interpretation of this ordinance is consistent with basic rules of statutory interpretation. (See McKinney’s Cons Laws of NY, Book 1, Statutes §§ 97, 98.) Conversely, if we require actual knowledge by the corporate landlord or his non-resident managing agent before the three-month “clock” starts ticking, the words “openly and notoriously” in the ordinance become meaningless. This is contrary to the clear intention and evident remedial purposes of the ordinance. This would .lead to an absurd consequence. It renders the “open and notorious” language superfluous, imposing on tenants a requirement not found in the ordinance, viz.: to prove actual knowledge of the landlord or managing agent.

Common sense dictates that landlords will have an agent or employee checking the property regularly. The Council’s assumption in its ordinance conforms with common sense, providing an easily understood and objective determination of an instance when a waiver should be implied. From this we conclude that the three-month Statute of Limitations requires routine awareness on the part of the landlord. The ordinance leaves to the landlord’s common sense what needs to be done for the landlord to become apprised of such a situation so that the landlord can, within this time, “commence a summary proceeding or action” (§ 27-2009.1 [b]).

The legislative declaration in section 27-2009.1 (a) states that this ordinance is necessary “to safeguard the health, safety and welfare of tenants who harbor pets.” Using these words with “openly and notoriously” is consistent with applying the word “agent” in broad terms to include the maintenance staff, porters and security guards, who have actual knowledge that Cohen had harbored the dog in his apartment since September 13, 1996. Adopting a narrow definition of “agent” in the ordinance, however, would require us to ignore the actual knowledge of the maintenance staff, porters, and security guards that Cohen had harbored the dog in his apartment since September 13, 1996. The use of the phrase “openly and notoriously” in section 27-2009.1 (b) of the ordinance does show an intention to the contrary. This use is inconsistent with, and therefore refutes, the argument that security, maintenance personnel and porters are not “agents” for purposes of section 27-2009.1 (b).

Section 27-2009.1 (c) deems any express or other restriction of tenants’ rights void as against public policy. Its clear intent is to protect from erosion the specific rights of tenants. In light of this “anti-restriction” provision under section 27-2009.1 (c), it would be incongruous for the municipal code to impose a duty on a landlord to take prompt legal action triggered by knowledge of its agent and at the same time find employees or servants best situated to acquire such knowledge incapable of communicating with their employer, or not duty-bound by the ordinance to do so. Such a result would ignore common sense and thwart the ordinance’s remedial purposes. Here, the tenant’s pet was observed daily by the landlord’s employees. The trial court properly found these employees to be agents within the meaning of the Code and therefore, correctly deemed this tenant’s no-pet clause waived.

This ordinance sets forth rules which, of necessity, must be expressed literally. Three months means three months. The dissent’s failure to offer a measure of when we can and cannot apply the literal terms of this ordinance highlights the problems created by abandoning the ordinance’s literal language. This amounts to selective judicial enforcement of legislative commands. Because we find this ordinance to be free from ambiguity and to express clearly the legislative intent, we cannot condone the resorting to other means of interpretation (McKinney’s Cons Laws of NY, Book 1, Statutes §76). But, even if we did find this ordinance unclear, we would reach the same result.

D.

The enactment of this ordinance was a valid exercise of police power by the City Council since it serves a legitimate public purpose (Megalopolis Prop. Assn. v Buvron, supra, at 237). The ordinance places the burden of timely enforcement on the landlord. Thus, it logically follows that where a tenant openly and notoriously harbors a pet for three months, with the actual knowledge of servants and employees at the building, even though not required by the landlord to report this harboring, the non-resident managing agent, nevertheless, by ordinance, has imputed knowledge of such harboring.

It is reasonable to treat both the landlord’s own employees and the employees of its long-term independent contractor as statutory agents for acquiring information. The Code provision is generic. It is set in the context of an obligation imposed by law to require that the landlord promptly enforce a restrictive covenant. If not promptly enforced, the covenant is waived. Employees and also security guards were present to be “the eyes and ears” of petitioner. These servants and assistants are hired to and expected to report various types of information to the managing agent. An agent is presumed to communicate to his employer what he learns in the discharge of his expected duties (Center v Hampton Affiliates, 66 NY2d 782, 784; Gropp v Great Atl. & Pac. Tea Co., 141 App Div 372, 376, revd on other grounds 205 NY 617).

This Code provision does not say that only the managing agent can acquire knowledge about pets. Indeed, when the Code intends to deal with a narrower class of landlord agents, it does so explicitly (see, e.g., Administrative Code § 27-2095 [a] [1] [service of process on managing agent]; § 27-2098 [a] [3] [managing agent must be identified in registration statement, authorized to effect emergency repairs, have certain qualifications]). It makes no distinctions based on the number of apartments. It does not distinguish among kinds of agents whose knowledge starts “the ball rolling” time-wise.

Were we to find the employees and security guards not to be “agents” within the meaning of this ordinance, their knowledge acquired as servants or employees of independent contractors within the course and scope of their duties should still be imputed to petitioner’s managing agent. After all, the managing agent was responsible for supervising the performance of the employees and security guards in carrying out petitioner’s duties pursuant to its lease with Cohen. And, under the ordinance, petitioner was obliged to “fish or cut bait,” either timely enforcing this restrictive covenant or being “deemed” to have waived it (cf., Soreca v New York City Hous. Auth., 177 AD2d 254; Gibbs v Grenadier Realty Corp., 173 AD2d 171; 1700 York Assocs. v Kaskel, 182 Misc 2d 586, 590).

While personnel and porters were not required expressly by the managing agent to identify or report lease violations, the issue is not whether the managing agent required them to report, but whether their actual knowledge should be imputed to the managing agent. Here, where there is no resident managing agent, it is reasonable to impute the knowledge gained by the landlord’s agents to petitioner, as is clearly the legislative intent of the ordinance.

“The general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated to it.” (Center v Hampton Affiliates, supra, at 784; Farr v Newman, 14 NY2d 183, 187.)

Imputing to petitioner and its managing agent the knowledge acquired by these employees while the employees were performing their duties for petitioner is proper since “[n]otice to an agent while acting within the scope of his duties constitutes notice to a principal.” (Ford v Grand Union Co., 268 NY 243, 252.)

The tenants had no reason to believe that the agents would not tell the landlord. There was no conflict of interest between the agents and the landlord, and there was no collusion between the agents and the tenants (cf., Henry v Allen, 151 NY 1, 9; Dollard v Roberts, 130 NY 269, 273-274). If the ordinance provides tenants with protection by deeming a waiver, it is not up to this Court to substitute its own judgment by questioning who qualifies to be an agent.

Acceptance of petitioner’s constricted reading of “agent” would encourage all absentee landlords to treat the ordinance with contempt. They would be able to stop permanently the running of the three-month period within which a holdover proceeding must commence just by not requiring prompt reporting of unwanted pets. Untimely attention to open and notorious pet harboring, or restriction of acquisition of knowledge of pet harboring, would bring us back “to Square One.” It would re-create the pre-ordinance situation in which no-pet clauses lay dormant, ready for abuse, and would circumvent the remedial Code provision.³

Moreover, here, the managing agent of petitioner testified that the security, maintenance personnel and porters were not required to report tenant harboring of pets. He claimed that such duty was not part of their guidelines nor of the union contracts. Yet petitioner offered no other proof as to the existence or contents of guidelines or union contracts. Here, the trial court was justified in finding this testimony not persuasive. An unfavorable inference may be drawn when, as in this case, a party fails to produce evidence which is within its control and which it is naturally expected to produce (Ausch v St. Paul Fire & Mar. Ins. Co., 125 AD2d 43, 48, lv denied 70 NY2d 610; 2 Wigmore, Evidence § 285 [Chadbourn rev 1979]; Prince, Richardson on Evidence § 3-139 [Farrell 11th ed]; 57 NY Jur 2d, Evidence and Witnesses, § 124).

The landlord may not avoid having imputed knowledge of the tenant harboring the pet by turning a “blind eye” to this open and notorious fact. Twenty-three years ago, Judge Gabrielli, for a unanimous Court in Cohen v Hallmark Cards (45 NY2d 493, 500) observed that:

“The question of imputation of knowledge is a question of fact which must be resolved in light of all the circumstances of the case. We would note, however, that in many instances the imputation of knowledge, and its concomitant responsibility, may not be avoided by the simple expedient of closing one’s eyes, covering one’s ears, and holding one’s breath.”

The infrequent, selective and dilatory enforcement of no-pet clauses is an abuse which this ordinance was intended to remedy. This ordinance

“contemplates that where a tenant openly harbors a pet, visible to persons working on-site for the landlord * * * [a] landlord that maintains contact with the building through its on-site employees may not shield itself from the law by closing off that only channel of communicátion for obtaining notice of pets” (1700 York Assocs. v Kaskel, 182 Misc 2d 586, 590).

A review of the facts in this case reveals that petitioner would have had to close its eyes, cover its ears, and hold its breath to have remained ignorant of the presence of respondent’s puppy.

The present action was not “commenced” within the three months permitted for enforcement (Administrative Code § 27-2009.1 [b]; Megalopolis Prop. Assn. v Buvron, supra). As a holdover petition brought in Civil Court, this action was commenced pursuant to specific statutes which unambiguously define “commencement” as service of petition and notice of petition (RPAPL 731; CCA 400). Petitioner served the petition and notice of petition commencing this proceeding no earlier than February 10, 1997. This was more than three months after September 13, 1996: (1) when respondent tenant openly and notoriously first harbored his pet; (2) when petitioner landlord’s servants and employees had actual knowledge of such harboring, and thus; (3) when the managing agent of petitioner landlord had imputed knowledge of such harboring. Petitioner failed to commence this proceeding within three months after acquiring knowledge of such breach of the lease; so, enforceability was deemed waived pursuant to ordinance.

Since we find the actual knowledge of petitioner’s employees and servants imputable, and since we find no reason to depart from the three-month commencement rule, we reverse and dismiss the petition, as did the trial court.

Accordingly, the order of the Appellate Term of the Supreme Court, First Department, entered February 25, 2000, which reversed an order of the Civil Court, New York County (Howard Malatzky, J.), entered June 19, 1998, dismissing the petition and granting a final judgment of possession in favor of respondent tenant, should be reversed, on the law, without costs, and the petition dismissed.

APPENDIX

The Ordinance.

The legislative declaration portion of the implied waiver ordinance, Administrative Code § 27-2009.1 (a), states:

“The council hereby finds that the enforcement of covenants contained in multiple dwelling leases which prohibit the harboring of household pets has led to widespread abuses by building owners or their agents, who knowing that a tenant has a pet for an extended period of time, seek to evict the tenant and/or his or her pet often for reasons unrelated to the creation of a nuisance. Because 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 under the circumstances provided herein, it is hereby found that the enactment of the provisions of this section is necessary to prevent potential hardship and dislocation of tenants within this city.”

The implied waiver is at section 27-2009.1 (b) and provides:

<rWhere 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 other applicable law, and the owner or his or her agent has knowledge of this fact, and such owner fails within this 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.”

The Code deems any express or other restriction of tenants’ rights void as against public policy under section 27-2009.1 (c):

“It shall be unlawful for an owner or his or her agent, by express terms or otherwise, to restrict a tenant’s rights as provided in this section. Any such restriction shall be unenforceable and deemed void as against public policy.”

1 . The ordinance, Administrative Code of the City of New York § 27-2009.1, is attached here as an appendix.

2 . Adverse possession is for the most part regulated by statute while prescription is regulated by common law (id., § 2; see generally RPAPL 501; see also Real Property Law § 260; CPLR 212 [a]). The dissent compares the imputed knowledge of a landowner whose neighbor has possessed property for 10 years to a landlord whose tenant has possessed a dog for three months. In fact, the time in each case is strictly a legislative determination.

3 . The suggestion of the dissent that, “[a]II that the tenant need do is notify the landlord of the presence of a pet,” is not responsive and begs the question. Such shifting of the burden from landlord to tenant would amount to judicial legislation.