[918 NYS2d 814]

#### 3720 Homes, Inc., Respondent, v Murray Hyman et al., Appellants.

Supreme Court, Appellate Term, First Department,

December 30, 2010

*80APPEARANCES OF COUNSEL

*Murray Hyman*and *Rita Hyman,*pro se, and *Julie Hyman, EC.,*Bronx, for Murray Hyman and another, appellants. *Sperber Denenberg & Kahan, EC.,*New York City, for respondent.

OPINION OF THE COURT

Per Curiam.

Orders dated November 7, 2008 and February 11, 2009, to the extent appealable, affirmed, with $10 costs. Appeal from that portion of the order dated February 11, 2009 denying tenants’ motion for reargument, dismissed, without costs, as taken from a nonappealable order.

We agree that this holdover eviction proceeding, based upon allegations that tenants violated house rules and their proprietary lease by having “kept or harbored” a dog in the demised cooperative apartment premises, is not susceptible to summary dismissal. In a moving affidavit submitted on their initial motion to dismiss the petition tenants, husband and wife, alleged that the dog — a Maltese named “Rocky” — is owned by their adult daughter and resides in her nearby apartment, and that the dog merely “visits” tenants in the subject apartment at unspecified times and unstated intervals.* Tenants’ moving submission also included affidavits from several neighboring tenants who attested, in identical, unelaborated statements, that Rocky’s visits occurred on a “daily” basis. These broad, unpar*81ticularized allegations, lacking evidentiary detail as to the nature and extent of the dog’s presence in tenants’ apartment or its schedule of supposed visits, fell far short of meeting tenants’ burden to eliminate all triable issues as to whether they kept or harbored the dog in violation of the proprietary lease terms. Nor did tenants’ reply affidavit, even if properly considered *(cf. Jackson-Cutler v Long,*2 AD3d 590 [2003]), cure the deficiency. Indeed, the factual averments set forth therein, acknowledging that the dog is generally walked “three times a day while visiting [tenants] . . . after lunch, at approximately 5:00 - 5:30 p.m., and less frequently at 9:00 and/or 11:00 p.m.,” actually tend to support a finding that the dog’s visits are regular and reoccurring, and thus buttress the landlord’s contention that tenants materially breached the no-pet provisions of the proprietary lease.

It need be emphasized that the relevant inquiry in this case centers not on whether the dog sleeps or resides (primarily or otherwise) in tenants’ apartment nor on who owns the dog *(see generally Dufour v Brown,*66 AD3d 1217 [2009]). Had the parties intended to limit the definitional reach of the terms “kept or harbored” to those animals who reside with and/or are owned by tenants, they could have included specific language to that effect in the proprietary lease agreement. Nor may we engraft such a limitation upon the chosen language of the lease under the guise of judicial interpretation. Were we to do so, these and other similarly situated tenants could too easily circumvent an otherwise enforceable lease provision barring pets through gamesmanship or artifice. Instead, our inquiry is more properly focused on whether the dog’s presence in tenants’ apartment is sufficiently frequent and substantial as to establish that tenants “kept” or “harbored” the dog as those terms are ordinarily used, viz., whether tenants “possessed]” or “ha[d] the care of’ the animal or “ha[d] [it] in [their] keeping” (Webster’s Third New International Dictionary 1235, 1031 [2002]). Proper resolution of that fact-laden issue must await further evidentiary development at trial. The record also raises but does not resolve several mixed questions of law and fact, including whether landlord timely commenced its eviction proceeding *(see*Administrative Code of City of NY § 27-2009.1 [b]), and whether the dog, if found to have been kept or harbored in tenants’ apartment, was an emotional support or service animal necessary to accommodate any disability that tenant Rita Hyman may be found to suffer.

*82Turning to tenants’ remaining contentions, we find no abuse of discretion in the denial of tenants’ application to stay this summary proceeding pending determination of a housing discrimination complaint contemporaneously filed by tenants with the State Division of Human Rights *(see UM Realty, L.L.C. v Myers,*2002 NY Slip Op 50704[U] [2002]; *Ennismore Apts. v Gottlieb,*NYLJ, Sept. 24, 1992, at 24, col 5 [App Term, 1st Dept]). On balance, and weighing the relevant factors *(see Gallo v Mayer,*50 Misc 2d 385 [1966], *affd*26 AD2d 773 [1966]), we agree that the “summary” remedy made available by RPAPL article 7 should not be delayed indefinitely while tenants’ agency complaint wends its way through the administrative process, particularly given the numerous and varied issues framed by the parties unrelated to any claim of discrimination. Nor did the court abuse its discretion in granting landlord’s motion to disqualify tenants’ attorney — the daughter who, tenants claim, owns the dog in question — since it is clear that she is likely to be a key evidentiary witness at trial *(see*Code of Professional Responsibility DR 5-102 [a] [22 NYCRR 1200.21 (a)]; *Lewis v Goldberg,*6 AD3d 395 [2004]).

*

 It appears that a second dog, Vegas, also purportedly owned by tenants’ daughter, accompanies Rocky on his visits to tenants’ apartment. No breach of lease claim is advanced by landlord with respect to Vegas, nor do tenants assert that the absence of any such claim defeats or impairs landlord’s right to object to Rocky’s presence.

McKeon, PJ.

(dissenting). Contrary to the view of the majority and the housing court, I do not believe that there are factual issues warranting a trial and would award summary judgment to the Hymans (tenants) since they have established by documentary evidence and affidavits that the subject premises is a pet friendly building, and that the dog which tenants are alleged to be harboring, named Rocky, actually resides with and is owned by their daughter Julie Hyman.* While landlord essentially concedes that Rocky is a visitor, it asserts that the frequency and regularity of his visits violates the proprietary lease, which requires written permission from the landlord before a tenant may “harbor” or “keep” an animal. The fundamental flaw in landlord’s position is that it ignores that the word “harbor,” as typically used in residential leases throughout the metropolitan area and in the Pet Law (Administrative Code of City of NY § 27-2009.1), has been judicially construed to describe an animal which either resides in the tenant’s household (“household pet”) or is owned by the tenant (“tenant’s pet”; “pet owner”) *(Seward Park Hous. Corp. v Cohen,*287 AD2d 157 [2001]; *Board of Mgrs. v Lamontanero,*206 AD2d 340, 341 [1994]), not an animal who visits a tenant, nor *83the tenant who permits the visit. Thus, the governing proprietary lease cannot be interpreted to require written permission for a visiting animal. I, therefore, respectfully dissent.

By way of background, tenants have resided at the subject premises for more than four decades. Several years ago, tenant Rita Hyman was involved in an automobile accident that left her with significant disabilities, and her father, a Holocaust survivor who lives in his own apartment in the subject building, lost his wife of many years to cancer. In the aftermath of these sad events, Julie Hyman began bringing her now six-year-old Maltese poodle, named Vegas, for regular visits to her parents and grandfather. No objection was voiced by landlord at the time these visits began. Years later, Julie Hyman purchased Rocky, who accompanied Vegas on these daily visits to tenants. By all accounts, the animals are well behaved and there is no claim that their presence constitutes a nuisance. For the most part, Julie Hyman leaves the animals in her parents’ apartment while she assists her mother with chores, takes her to medical appointments, or otherwise does that which a caring daughter does for an ailing mother. Additionally, the presence of the animals seems to pick up the spirits of Mrs. Hyman’s father.

Unfortunately, relations between landlord and tenants have not been good. There were disputes involving a parking space and repairs to tenants’ apartment. There were complaints to the Human Rights Commission and a companion lawsuit in addition to this proceeding brought to terminate the Hymans’ tenancy.

Any discussion about landlord’s legal position must begin with its assertion before housing court that the Pet Law is inapplicable “to the facts as asserted by Respondents. If in fact the dog is not owned by respondents [argued landlord] . . . the Administrative Code bears no relevance . . . and does not shield non-resident visitors or their pets.” While I agree that the Pet Law does not apply to visiting animals, landlord’s embrace of this interpretation apppears to undermine, not support, its legal posture in this proceeding. Put another way, what landlord cannot explain is this: if the Pet Law, by its express language, applies to tenants who “harbor” animals, how does landlord reconcile its position that tenants have “harbored” an animal in violation of their lease, yet assert that the Pet Law offers them no protection? The answer is obvious: “harbor” cannot be equated with permitting an animal to visit.

Next, landlord never explained in argument to this court why it did not include Vegas in this proceeding. Below, landlord as*84serted that it “may have waived its right to insist on the removal of the first dog,” without specifying what it believes it waived. If, as landlord urges, the Pet Law does not apply to the scenario under review, the “no waiver” provision of the lease remained enforceable and landlord was free to rely on tenants’ actions relative to Vegas in support of its quest for eviction.

Landlord appears to realize its dilemma because in argument before housing court it asserted that if the Pet Law applied to Rocky and he was observed more than three months prior to the service of the predicate notice, such sighting should not be held to provide notice because landlord could not possibly know that Rocky would be a daily visitor to the premises. Of course, landlord cannot cite a case to support this posture — there is none. But, putting the Pet Law aside, what about landlord’s claimed interpretation of its house rules requiring written permission before an animal may visit the premises? Why wasn’t that rule enforced when Rocky was first seen? Or, for that matter, when Vegas was first seen, years earlier. Of course, landlord’s inaction toward Vegas may well be evidence that landlord never required written approval before an animal could visit the premises. Indeed, landlord’s failure to cite one previous instance where it sought to evict a tenant for permitting visiting animals without written approval suggests that its interpretation of the rule is of recent vintage, since

> “[t]he practical construction or uniform conduct or practice of the parties under a contract is a consideration of much importance in ascertaining its meaning, and that consideration is entitled to great, if not controlling, weight in ascertaining the parties’ understanding of the contract terms and language, since the parties are in the best position to know what was intended by the language employed.” (17A Am Jur 2d, Contracts § 354.)

Simply put, landlord’s legal posture in this proceeding amounts to nothing more than a hodgepodge of irreconcilable legal theories, designed to achieve an outcome utterly at odds with its past practice and unsupported by legal authority. Even so, all of landlord’s legal theories lead to the same destination, an award of summary judgment to tenants.

Schoenfeld and Shulman, JJ., concur; McKeon, EJ., dissents in a separate opinion.

*

 Below, landlord sought summary judgment, its lawyer alleging in an affidavit that “the case at hand is ripe for summary judgment because there are no issues of material fact in dispute in this proceeding.”