Petitioners are the owners and landlords of Unit PH-C on the penthouse floor of 27 West 72nd Street, a market-rate rental condominium in New York County. Respondent, the record tenant, entered into possession under lease made in July 2009. Petitioners served respondent with a cure notice in November 2009 based on respondent's alleged violation of Article 38 of the lease agreement, which provides that respondent "may not keep any pets in the apartment." Petitioners later served respondent with a termination notice based on respondent's alleged failure to comply with the cure notice.

It is undisputed that respondent keeps a cat in his apartment.

Respondent moves for summary judgment on the ground that petitioners waived their right to enforce the no-pet provision of the parties' lease under Section 27-2009.1 of the Administrative Code of the City of New York, called the "Pet Law." The Pet Law provides that a landlord waives its right to object to the existence of a pet if a proceeding is not commenced within three months of the owner's, or an agent's, learning about a pet's existence. Petitioners cross-move for summary judgment. Both motions are consolidated for disposition. Petitioners also move to dismiss respondent's affirmative defenses.

To prevail on a motion for summary judgment, the moving party must demonstrate that it is entitled to judgment as a matter of law. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silliman v Twentieth Century Fox Film Corp., 3 NY2d 395, 404 [1957].) This standard requires that the proponent of the motion for summary judgment make a prima facie showing of [*2]entitlement to judgment as a matter of law by advancing sufficient "evidentiary proof in admission form" to demonstrate the absence of any material issues of fact." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)

In this case, it is undisputed that Benjamin Prado, the on-site building supervisor/superintendent, knew that respondent kept a cat in his dwelling for more than three months before this proceeding began. Petitioners argue, however, that any knowledge by the condominium's superintendent about the existence of a cat belonging to respondent cannot be imputed to petitioners for the purpose of effecting a waiver of the Pet Law. According to petitioners, the superintendent was not employed directly by petitioners but by the condominium board of managers. Accordingly, petitioners argue that the superintendent had no duty to report the existence of the cat to petitioners. Petitioners also claim that the superintendent learned about the cat because he performed work for respondent outside the scope of his employment duties fro the condominium.

Petitioners cite several cases for the proposition that the Pet Law does not apply to condominiums: Bd. of Managers of the Parkchester N. Condominium v Quiles (234 AD2d 130, 36 [1st Dept 1996]; Bd. of Managers of Suffolk Homes Condominium v Cheng (21 Misc 3d 1145 [A], 2008 NY Slip Op 52500 [U], *3 [Sup Ct, NY County Dec. 2, 2008]). But these cases stand for the principle that in the First Department, the Pet Law does not apply if a condominium board is enforcing a no-pet clause against a unit's fee owner. That circumstance is different from the facts here.

Summary judgment is denied for both respondent and petitioners because an issue of fact arises about petitioners' relationship with Prado, the building supervisor/superintendent, and petitioners' relationship with the board of managers, which petitioners claim is Prado's direct employer. This court cannot determine from the parties' papers whether a principal-agent relationship existed between Prado and the petitioners. If that relationship did exist, the Pet Law applies, and petitioners might have waived their right to evict respondent under the parties' lease.

Respondent's four other affirmative defenses are dismissed. Respondent argues that petitioners did not properly serve the petition and notice of petition. According to respondent, the attempts to serve him were made without due diligence and were not served by affixing upon the door and were only received by regular mail. The affidavit of service of Jazmin Patino, a licensed process server, indicates that service was properly effected. A proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction. Where, however, a respondent rebuts an affidavit of service with a sworn denial of service, the petitioner must establish jurisdiction by a preponderance of the evidence at a traverse hearing. (See e.g. Skyline Agency v. Ambrose Coppotelli, 117 AD2d 135, xx [2d Dept. 1986].) Because respondent has offered only conclusory allegations and not a specific explanation about how or why service was defective, the claim is rejected. No traverse hearing will be held. [*3]

Respondent further contends that he is permitted to keep his cat in his unit because the "condominium documents allow pets in the units." This court disagrees with respondent's interpretation of the condominium's Rules and Regulations. Paragraph 12 of the Rules and Regulations provide that permission to keep dogs, caged birds, cats, and fish in a residential unit is a right accorded to the unit owner, such as petitioners. Given the lease between petitioners and respondent, petitioners lawfully chose not to permit respondent to keep the cat in the unit.

Respondent claims that petitioners, through their real estate agent, consented, before respondent moved into the premises, to respondent's harboring a cat. This claim is rejected; it contradicts the terms of the lease agreement executed between petitioners and respondent, Paragraph 3 of which unambiguously provides that "you may not keep any pets in the Apartment."

Respondent also argues that the proceeding should be dismissed due to waiver, laches, and consent because (1) petitioners "accepted rent from respondent with full knowledge that respondent was harboring a cat in his unit," (2) respondent "relied on petitioner's conduct of allowing respondent to keep his cat and in reliance moved into the subject apartment," and (3) respondent purportedly "would be irreparably harmed if petitioner is allowed to reverse its position." This argument is rejected. Respondent offers no fact indicating that petitioners personally knew that respondent was harboring a cat in his unit.

This proceeding is adjourned for trial to May 13, 2010.

This opinion is the court's decision and order.

Dated: April 26, 2010

J.H.C.