167 LLC v. MunizCivil Court of the City of New York, Bronx County2016 NY Slip Op 51745(U)37402/2016 Decided December 8, 2016
Landlord, 167 LLC, commenced a summary holdover proceeding against rent-stabilized tenants, Francisco Muniz and Martha Mendoza for harboring a pet dog in violation of the lease’s no pets clause.
Respondents, Muniz and Mendoza, asserted the affirmative defense that their landlord waived the no-pet clause provision of their lease by failing to commence an eviction proceeding within three months of learning tenants harbored a pet openly and notoriously. Muniz and Mendoza alleged that they walk their dog Bella two times day, every day in the morning and evening. Muniz and Mendoza further allege that their landlord’s agents were aware of Bella’s presence in the premises and have interacted with the dog. September 2015, agents of the landlord were in the subject premises for repairs and witnessed the dog, her toys and other dog-related items. However, Landlord did not commence the summary proceeding until June 1, 2016. Muniz and Mendoza also produced exhibits demonstrating multiple visits to a veterinarian.
Judge Diane E. Lutwak found that the Respondents provided sufficient evidence to meet their burden of proving that they harbored their dog openly and notoriously in their apartment. In contrast, Judge Lutwak found that the landlord did not produce any evidence that they knew nothing of the dog’s presence on the premises. Specifically, the landlord’s agent said no employees have seen the dog, but provided no sworn affidavits from said employees.
Judge Lutwak granted Muniz and Mendoza’s motion for summary judgment and dismissed the proceeding.