A city court judge in Mount Vernon has struck a blow for landlords over the “open and notorious” exception to no-pet policies.
As every savvy New York renter knows, pet restrictions can be bent. There is even case law that supports recalcitrant pet owners.
If a landlord knows that a tenant is harboring a pet openly and notoriously – so detectable that it cannot be ignored – but does not promptly enforce a no-pet clause, the restriction can be waived.
Hope Horizon Realty evicted Karen A. Johnson and Marie Patterson last year from an apartment at 101 Elm Ave. for violating their lease’s no-pet clause.
They harbored cats from 2001 to 2016 but failed to establish, Judge Adrian N. Armstrong ruled on Aug. 21, that the cats were kept in the open or were notorious.
Attempts to contact the women for comment were unsuccessful. The names of their cats and their pedigrees were not disclosed in the judge’s ruling.
The tenants claimed that Hope Horizon had acted in bad faith because the landlord had become aware of the cats more than three months before the eviction.
One cat had become a permanent resident in 2001. Another took up residency in 2008. Johnson testified that she never hid them.
The women argued that maintenance workers who entered the apartment would have seen the traditional accouterments of household pets, such as the litter box and jungle gym.
And there were occasions when one of the cats escaped to the third-floor hallway.
But the superintendent, two maintenance workers and management personnel testified that they had never seen the cats or evidence of the cats, until the apartment was inspected on May 22, 2016.
Maintenance worker “Jomo” Obi noticed the cats and immediately reported the transgression to the office, and the tenants were put on notice to remove the cats.
Johnson responded by email that she would do so, the judge noted, but admitted at trial that she had never permanently removed them.
No fair interpretation of the evidence can support a finding, Armstrong concluded, that the presence of the cats was open, notorious and visible.
The tenants did win a small victory.
They had kept the apartment while the case was pending, and now they owe $7,321 in rent through August. They claimed that the apartment was in poor condition and they should receive an abatement.
The Mount Vernon Building Department had issued notices of violations last year citing problems with plaster, paint, light fixtures, tiles and water penetration in the walls. A housing inspector testified that the violations were corrected in a timely manner.
But there also was a fire in the dwelling below the apartment in July 2016 that caused smoke damage and a dangerous condition, displacing the tenants for several days.
Armstrong awarded them a $1,500 credit, reducing their balance to $5,821.