 Sirii Marvits -- a 71-year-old woman who has lived in a rent-controlled West Village apartment for 43 years -- shares her home with two cats, Apollo and Athena.
In February of 2005, Marvits' landlord, 184 W. 10th St. Corp., started a holdover proceeding against her, alleging that her animals violated the lease's "no pets" provision. After finding that the landlord had waived the violation because of New York City’s “Pet Law," (NYC Administrative Code § 27-2009.1[b]) -- a law which requires that an eviction case be started within three months of a landlord’s knowledge of a pet's existence -- a New York County Civil Court judge ruled in Marvits’ favor. Marvits established that the cats had continuously occupied the apartment since January 1997 and that, on numerous occasions, the building's managing agent, super, together with independent contractors and other employees had been in the apartment for inspections and repairs, and on all those occasions, the animals and their accoutrement had been visibly apparent. Seven months after Marvits’ victory, the landlord made a motion to "reargue" the outcome pursuant to CPLR 2221(d) and, surprisingly, the court reversed its earlier decision and awarded possession to the owner. An appeal to the Appellate Term, First Department, ensued. Characterizing it as a “threshold matter,” the AT1 noted that the “motion to reargue” should have been denied as untimely. The majority was also of the opinion that the landlord had waived any objections to the cats’ existence as early as August 2000 when the landlord’s agent, super and contractors made multiple visits to the unit. Not everyone on the panel agreed with that outcome. Justice William P. McCooe noted that an objection as to the reconsideration request's timeliness had not been raised below and thus could not be considered on appeal. He was also of the opinion that an “agency” relationship between the landlord and an independent contractor (Dennis Tsomas) did not exist, since the latter reported to the premises only when called. Surprisingly, Justice Douglas E. McKeon, another member of the panel, countered in a concurring opinion that, in New York State, there is “no temporal litmus test before an independent contractor becomes an agent for another.” Quite disconcerting, no? If there’s no “temporal litmus test” then no independent contractors would ever be viewed as “independent.” Owners would be liable for acts of these “third parties” whenever their services were utilized. (Respectfully, that ain’t the law as we currently know it.) In addition to that “agency” issue, the AT1 judges battled over whether a "waiver" by the landlord had been triggered. McKeon noted that, on the numerous occasions, when the super or the managing agent were in the apartment, the cats were always present. Furthermore, when repairs were performed to the unit, the litter box and feed bowls were readily visible. McCooe, on the other hand, read that same record quite differently. Since the cats fled when strangers entered and their paraphernalia were hidden -- on top of the refrigerator or placed in the bathtub, covered by a non-transparent shower curtain -- McCooe believed that the tenant had failed to demonstrate the timing of landlord’s knowledge of the pets’ existence. Ladies and gentlemen, this is one cat-fight that’s headed straight to the Appellate Division! To download a copy of the Appellate Term's decision, please use this link: 184 W. 10th St. Corp. v. Marvits * * * We extend our congratulations to our friend and colleague, Steven M. DeCastro, for his success on behalf of the tenant in this case.
As I was walking to the train station this morning, I happened upon a couple of notices posted on a local mailbox. Here's one of those messages in its entirety:
Now I can understand posting something about a missing "companion animal" -- like a dog or cat -- but a misplaced bootie? (It better be diamond encrusted or something.) And, if a bootie is that important, our time might be better spent if we called upon the "Gifted Miya of Nepal, India." Miya's ad claims that she's a "clairvoyant" who has been tested by the "Beverly Hills ESP Laboratory."* And, as luck would have it, Miya is having a "Holiday Special," $20 for a 15 minute reading. And, "Bring A Friend & Get 2 Readings For The Price of One." (What a steal!) If anyone is interested in joining me and the magnificent Miya -- as we reach out to Houdini to help locate our neighbor's treasured black bootie -- give me a holler. (But please don't delay. The "2 for 1" deal expires January 15, 2008.) ______________________ *Surprisingly, we couldn't find a listing or website for that Beverly Hills ESP "lab."
 For a time, Cornell University’s Animal Science Teaching and Research Center paid for the care of a population of feral cats living in the Center’s diary barns.
In response to health and safety concerns, the Center implemented a policy aimed at reducing the feline population. When employees were instructed to suspend feedings while the Center trapped and dispersed the animals, John Beck, a part-time Center employee, continued to feed them with food he purchased. Beck also reported the Center’s actions to the local Society for the Prevention of Cruelty to Animals which ultimately concluded that the policy did not comprise a form of animal cruelty. When Beck's cruelty allegations appeared in a local newspaper, he was fired for insubordination. After Beck filed suit alleging negligence and prima facie tort, the Center convinced a Tompkins County Supreme Court justice to dismiss the case. On appeal, the Appellate Division, Third Department, affirmed, explaining that while depriving animals of food or drink may constitute a misdemeanor, the law does not confer a basis for securing civil damages or other relief on that ground. And, despite Beck’s allegation that his dismissal violated the University’s termination policy, the record demonstrated that the institution retained the right to fire part-time employees at any time, for any reason. According to the AD3, “an at-will employee has ‘no viable claim for a wrongful discharge or breach of contract against an employer and a prima facie tort claim cannot be utilized to circumvent the unavailability of those claims.’” So, as far as Beck is concerned, the cats are out of the bag. “Time spent with cats is never wasted.” – Sigmund Freud For a copy of the Appellate Division's decision, please use this link: Beck v. Cornell University
People have an incredible bond with their companion animals and, when disputes arise, many are often surprised to learn that the law affords these creatures and their custodians a limited array of rights and remedies. By way of example, in Appell v. Rodriguez, Kathleen and Christopher Appell purchased a Great Dane puppy from Olena Rodriguez. Apparently, the parties' contract of sale required the Appells to report any health problems to Rodriguez within three business days of purchase. But it was not until some two weeks later that the Appells learned that their pooch suffered from a congenital condition described as a "severe hip dysplasia." Although Rodriguez reportedly offered to have the animal examined by her veterinarian, the Appells elected to have the dog undergo corrective surgery and subsequently demanded a refund of the purchase price as well as the costs of the surgery. When their demands went unheeded, a small claims case in the Justice Court of the Town of Southampton ensued and the Appells were only awarded a refund of the purchase price (presumably due to their failure to comply with the contract's terms and conditions). On appeal, here's what the Appellate Term, 9th and 10th Judicial Districts, noted in its affirmance: Dogs have been held to constitute "goods" within the meaning of section 2-105 of the Uniform Commercial Code, and defendant, a private breeder, is a "merchant" within the meaning of UCC 2-104 (1) ... Consequently, the award in favor of plaintiffs may be sustained based upon a finding of defendant's breach of the implied warranty of merchantability (UCC 2-314). The evidence submitted by plaintiffs at trial adequately established that the dog suffered from severe hip dysplasia, a congenital condition which, by its nature, had to have existed at the time of sale, and could not have resulted from any mistreatment while under the care of plaintiffs. Accordingly, the court's conclusion that plaintiffs were entitled to recover the $1,500 purchase price (UCC 2-714 [1]) was supported by the record and rendered "substantial justice between the parties" (UJCA 1804).
I'm sure the outcome (and wording) of this case will dog quite a few people. For a copy of the Appellate Term's decision in Appell v. Rodriguez, please click on the following link: http://www.nycourts.gov/reporter/3dseries/2007/2007_50051.htm
Darlene Feger sued the Warwick Animal Shelter in Orange County Supreme Court for money damages and to recover possession of "Kisses," her stolen cat. Apparently, the shelter accepted the white purebred Persian cat knowing that the animal had been purloined. And, to confound matters further, it was also alleged that Kisses had been released for adoption and her new custodians now called her "Lucy."
After preliminary motion practice, the Supreme Court dismissed Ms. Feger's case against the Animal Shelter finding "statutory immunity" pursuant to the Agriculture and Markets Law section 374(3). On appeal, the Appellate Division, Second Department, found that while Ms. Feger could not recover "emotional" or "punitive" damages, she could still pursue her case for the animal's recovery. However, since there was still a question as to whether "Lucy" and "Kisses" were the identical cat, a trial was needed to resolve that aspect of the dispute.
What's stolen Kisses worth?
And, will the Supreme Court compel the animal's new custodians to fork over Kisses?
Stay tuned!
For a copy of the Appellate Division's decision in the Feger v. Warwick Animal Shelter, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03534.htm
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