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' presence 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 ยง 27-2009.1[b]) -- a law which requires 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's favor.
Marvits established that the cats had continuously occupied the apartment since January 1997 and, 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's 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 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 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 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
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We extend our congratulations to our friend and colleague, Steven M. DeCastro, for his success on behalf of the tenant in this case.