Owner Can Deny Resident's Accommodation Request

Facts: A Section 8 resident’s son and his dog lived with the resident. The dog never attacked another person or pet, but it did display aggressive behavior towards other dogs and people—including lunging, flaring up, rearing on its hind feet, and baring its teeth. In addition, the dog often went “crazy” when other residents or dogs passed by the resident’s apartment. The resident told a neighbor that the dog was trained as a guard dog, and she asked another neighbor to adjust her dog’s walk schedule to avoid her dog. Some tenants stayed indoors if they thought that the dog was outdoors, and some expressed fear of the dog.

In December 2013, the resident’s son moved out of the apartment, but the dog stayed. In January 2014, the owner questioned the resident about the dog. The resident explained that she had a doctor’s note recognizing her need for an emotional support animal as a result of her disability, but she didn’t supply the note.

In February 2014, the owner sent a letter to the resident requiring her to remove the dog to rectify the lease violation of possessing an unauthorized pet. Two months later, the owner sent the resident a notice of termination of tenancy for violating the “no-pets” policy. Following this notice, the resident, the manager, and the owner’s attorney met informally. At the meeting, the resident maintained her need for the dog as an emotional support animal and that, as a result, a reasonable accommodation for her disability should be made to the “no-pets” policy. The attorney gave the resident the paperwork required to submit a request for a reasonable accommodation. The resident claimed that she never received the paperwork.

In June 2014, the owner served the resident papers to begin an eviction action. At this point, the resident submitted a formal request to keep her dog under the pet policy exception for reasonable accommodation. With her request, she provided a note from a health professional.

In August 2014, the owner approved the resident’s request for an assistance animal as a reasonable accommodation, but did not approve of her current dog as the specific animal because of the dog’s hostility, complaints from other residents, and the resident’s inability to restrain the dog. In addition to the residents’ complaints, the owner also relied on a hypothetical increase in its insurance and a June 2014 incident involving the police and the dog. As the eviction case proceeded, the dog continued to live with the resident.

After hearing all of the evidence, the trial court concluded that the resident breached the “no-pets” policy. The resident appealed.

Ruling: A New York appeals court agreed with the lower court’s decision.

Reasoning: If an owner has a “no-pets policy,” a resident may be given a reasonable accommodation for an assistance animal if the resident demonstrates that he or she is disabled and has a disability-related need for an assistance animal. In that case, the owner must modify or provide an exception to the “no-pets” policy to allow the resident to use an assistance animal “unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.”

In the case of a specific service animal, a reasonable accommodation may also be denied in two circumstances: (1) if the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; or (2) if the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

In this case, the parties didn’t dispute that the resident is disabled and that she has a disability-related need for an emotional support animal. The court concluded that, although the resident was entitled to a reasonable accommodation for an emotional assistance animal, the resident was not entitled to the specific animal in question. In support, the court relied on the testimony of residents establishing that the dog displayed aggressive tendencies and that the dog was “people and dog aggressive.”

The appeals court found that the lower court properly weighed the evidence regarding the dog’s aggressive behavior against the owner’s concerns for the safety and well-being of the other residents. As a result, the court concluded that the lower court did not err in upholding the owner’s denial of the resident’s reasonable accommodation request.

• Gill Terrace Retirement Apartments v. Johnson, October 2017