Resident Not Allowed to Keep Second Dog

Facts: A resident with diabetes lives in a Section 8 building. The lease expressly prohibits dogs or cats as pets. At some point while living in her unit, the resident got a dog. The owner allowed the resident to keep the dog as an accommodation for unspecified reasons. In July 2009, the resident took in a second dog without notifying the management. The resident also signed a recertification of her lease in December 2009, in which she stated that she didn’t have a second dog in the unit.

In March 2010, the owner was informed by an anonymous letter that the resident kept a second dog in her unit, and that the dog was disturbing the neighbors. In April 2010, the owner sent her a letter notifying her that she had 10 days within which to cure the lease violation by removing the dog, or face eviction.

The resident responded with a letter in which she stated that she had acquired the dog on Dec. 1, 2009, and that, as a consequence, any attempt to remove the dog would be in violation of New York City’s pet law, which provides that an owner waives its right to remove pets, even where pets are prohibited, after the tenant has possessed the pet openly and notoriously for 90 days. The resident’s letter didn’t reference her purported disability or state that the second dog was a service or comfort dog.

The owner started an eviction proceeding and, two weeks later, the resident filed a housing discrimination complaint with HUD. The resident asked the court for a temporary restraining order from eviction and was granted one upon showing that her dog may have been serving as a service animal who alerted the resident when her blood sugar became low. The temporary restraining order was necessary because the resident faced imminent eviction, and the court required adequate time to consider the resident’s preliminary injunction motion.

Ruling: A New York district denied the resident’s preliminary injunction request and granted the owner’s motion to dismiss the resident’s discrimination complaint.

Reasoning: An investigation by the city’s Division of Human Rights (DHR) revealed that the resident requested that the owner allow her to have a second dog as an emotional support animal in addition to her first dog. The DHR found that there was no basis to find that she requires a second dog as an emotional support animal that enables her use and enjoyment of the unit.

The court noted that emotional support or comfort animals don’t qualify as service animals under the ADA. An animal that simply provides comfort or reassurance is equivalent to a household pet, and doesn’t qualify as a service animal under the ADA. Accordingly, because she couldn’t establish a likelihood of success on the merits that her second dog qualifies as a service animal on some other basis, she failed to establish her entitlement to a preliminary injunction preventing the owner from evicting her or removing the second dog from her unit. Therefore, the temporary restraining order was vacated, and the preliminary injunction request was denied.

• Ayyad-Ramallo v. Marine Terrace Associates, May 2014