Tenant Doesn't Prove Second Dog Needed to Accommodate Disability

Section 8 tenant sued landlord in federal court claiming discrimination based on disability. Landlord had allowed tenant to keep a dog that tenant acquired in violation of her lease because tenant claimed disability based on diabetes. Landlord later denied tenant's request to get a second dog. Tenant then took in a second dog without notifying landlord and stated in her December 2009 lease recertification that she didn't have a second dog. Landlord later learned about the second dog after neighbors complained and sent tenant a 10-day notice to cure on March 29, 2010.

Tenant claimed in response that she got the second dog on Dec. 1, 2009, and that landlord therefore had waived any right to object to it. Landlord then sued to evict tenant in housing court. Tenant in turn filed a housing discrimination complaint with HUD, which referred the matter to the New York State Division of Human Rights (DHR).

The DHR ruled against tenant and found no probable cause that discrimination had occurred. Tenant filed an Article 78 court appeal against the DHR, which was dismissed because tenant never perfected her appeal in a timely manner.

In the meantime, the housing court ruled for landlord and found that tenant could be evicted if she didn't remove the second dog within six weeks. Tenant didn't appeal that decision but sought a temporary restraining order (TRO) in her federal court action to block the eviction and removal of the second dog. The court granted the TRO but later refused to grant any further injunction and lifted the stay.

The court granted landlord's request to dismiss the case. Tenant didn't show she was likely to succeed on the merits. Tenant regularly walked her dogs, worked seven days a week as a home health aide, and commuted to work daily on public transportation. There was no proof that tenant suffered from a condition that substantially limited any major life activity. And, even if tenant was able to prove she was disabled, she was unlikely to prove that keeping a second dog was a reasonable accommodation, or that the second dog qualified as a service dog. Emotional support or comfort animals don't qualify as service animals under the Americans with Disabilities Act.

Ayyad-Ramallo v. Marine Terrace Associates LLC: Docket No. 13-CV-7038, 2014 WL 2440751 (EDNY; 5/30/14; Chen, DJ)