Brown v. Johnson

• Decision Date: 14 March 1988
• Citation: 139 Misc.2d 195,527 N.Y.S.2d 679
• Parties: Arthur BROWN, Petitioner-Landlord, v. Mary Margaret JOHNSON, Respondent-Tenant, "John Doe", Respondent-Undertenant.
• Court: New York City Court

Page 679

527 N.Y.S.2d 679

139 Misc.2d 195

Arthur BROWN, Petitioner-Landlord, v.Mary Margaret JOHNSON, Respondent-Tenant"John Doe", Respondent-Undertenant.

Civil Court of the City of New York New York County.

March 14, 1988.

Doreen Fischman, Fischman & Fischman, New York City, for petitioner-landlord.

Darryl M. Vernon, New York City, for respondent-tenant.

LEWIS R. FRIEDMAN, Judge:

Petitioner moves for summary judgment or, in the alternative for dismissal of the affirmative defenses and counterclaim; respondent cross-moves for summary judgment.This proceeding is a holdover based on respondent's alleged harboring a pet in violation of the lease.

The parties have been in constant dispute over the "no pet" provision of respondent's lease.The most recent litigation was settled by stipulation in March 1985.In that stipulation landlord consented to tenant's keeping a pet in the apartment."The landlord's consent and permission to harbor a dog is only for the one dog that she has in accordance with applicable law and in no effect gives the right to the tenant to maintain and harbor the dog in the future if it's a nuisance.All rights governing harboring future pets shall be governed by applicable law in effect."It is undisputed that the dog which respondent had in March 1985 died in April 1985.The dog currently in issue in this proceeding was obtained in August 1987; petitioner promptly objected.

The 1985 stipulation was agreed to after the enactment of the D26-10.10 (now 27-2009.1).There seems to be little disagreement that for a nearly continuous period from 1959 to 1985respondent maintained a dog at the premises.Petitioner commenced a holdover based on the dog in August 1983 which he discontinued in October 1984.The next holdover was settled by the 1985 stipulation.Petitioner submits a long brief on the law of res judicata and its application to the 1985 stipulation.Clearly the stipulation does not preclude the current dog, since the stipulation refers to the laws in effect at the time any future pets are "harbored."The stipulation does, of course, waive any objection except nuisance as to the then existing pet, who had been in the apartment since 1975.

Administrative Code 27-2009.1 provides that the failure of the landlord to object to the presence of a pet within 90 days and no enforcement action is taken, the "lease provision shall be deemed waived."SeeMegalopolis Prop. Assn. v. Buvron, 110 A.D.2d 232, 494 N.Y.S.2d 14.Although the cases are not clear on the point, it appears that the only reasonable reading of the statute is that failure to bring a proceeding constitutes a waiver of the clause in the future.The section refers to a tenant who ...