The underlying case was settled by way of an agreement (dated July 31, 2006) which provided the tenant would "not permit his dogs to defecate or urinate in the [apartment or common areas of the building] and/or if same occurs shall promptly [and] properly clean so as to avoid issuance of any odor. If [tenant] or any authorized individual is in [the apartment] said clean-up to be done immediately."
For a period of two years, any breach by the tenant was to be treated with "zero tolerance" and would result in the issuance of a warrant of eviction on as little as five days' notice.
As luck would have it, about a month later (August 22, 2006), one of the tenant's Afghans defecated on the unit's hallway floor and there the deposit remained for about a three week period - until the tenant returned from a Caribbean vacation.
When the cooperative alleged breach and sought to evict the tenant for his noncompliance with the parties' agreement, the New York County Civil Court was of the opinion the tenant had not seen the "accident" occur (as he had been leaving for a vacation) and removed the pile upon his return -- thus satisfying the "immediate" clean-up requirement.
On appeal, the Appellate Term, First Department, reversed.
The AT1 didn't buy the tenant's "professed unawareness of the dog's mess," since it had been "conspicuously deposited immediately outside tenant's bedroom." Undeniably, the tenant's "ignorance defense" didn't pass the smell test:
In evaluating tenant's breach using the "zero tolerance" standard formulated by the parties, it is not unreasonable to charge tenant with knowledge of what he ought to have discovered through the ordinary use of his senses.
The appellate court also professed concern for the sanctity of the agreements reached in Housing Court, and noted owners would be discouraged from amicably resolving disputes if settlements were dishonored and unenforced by our courts.
In an attempt to forestall an eviction, the case was taken to the Appellate Division, First Department, which was also unreceptive to the tenant's explanations. In a decision released on September 18, 2008, the AD1 concluded as follows:
The Appellate Term correctly held that under the terms of the parties' stipulation, tenant's admitted presence in the apartment at the time his dog defecated on the floor required that the mess be immediately cleaned up. Tenant's claim that the dog must have defecated while he and his girlfriend were in another area of the apartment and in a hurry to make a plane, and that they were unaware of the mess until they returned from vacation three weeks later, is unavailing ( see Hotel Cameron, Inc. v Purcell, 35 AD3d 153 [2006]), especially in view of the clause that the stipulation was to be applied with "zero tolerance" and that no violation was to be deemed "de minimus" (sic) ( see 1029 Sixth v Riniv Corp., 9 AD3d 142 , 149 [2004], appeals dismissed 4 NY3d 795 [2005]).
To download a copy of the Appellate Division's decision in this case, please use this link: 565 Tenant's Corp. v. Adams
To download a copy of the Appellate Term's decision, please use this link: 565 Tenant's Corp. v. Adams
To view a copy of the Civil Court's Decision/Order in this case, please use this link: 656 Tenant's Corp. v Adams (Civil)
To view our related posts on this topic, please use this link: Stipulations