Schneider Buchel LLP Blog

Wednesday, November 18, 2015

"The Cat is out of the Bag" by Marc H. Schneider, Esq.

Is it a crime to ignore stray animals as you pass them by? That is what a Staten Island woman named Dorothy Lee tried to argue to a Judge in a Richmond County Civil Court after Lee’s sister, a Unit Owner of a Condominium, was fined for Lee’s feeding of feral cats in a Condominium complex.  The Condominium Board first warned the Unit Owner and Lee that if they continued to feed the feral cats then they would be fined as same was a breach and violation of the Condominium’s By-Laws and House Rules.  Lee ignored the Condominium’s warning and continued to feed the feral cats. The Condominium then assessed fines and late fees for failing to pay the fines.  Lee then commenced a lawsuit against the Condominium, as she believed the fines and late fees were unjustly imposed. (See Lee v. Parkview Estates Condo., No. SCR590, 2015 WL 6872665 (N.Y. Civ. Ct. Oct. 29, 2015)). 

The Condominium’s By-Laws and House Rules were clear: feeding of feral cats was not permitted under any circumstance.  After being fined and commencing a lawsuit,  Lee attempted to avoid the fines and late fees by claiming she had an affirmative obligation to feed the feral cats and failure to do so would have caused her to violate New York State Agriculture and Markets Law §353. This law states that “A person who…deprives any animal of necessary sustenance, food or drink, or neglects, or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who willfully sets on foot, instigates, engages in, on in any way furthers any act of cruelty to any animal, or act tending to produce such cruelty, is guilty of a class A misdemeanor.

However, this law was directed at the owners of animals so that they are required to take proper care of their pets. Interestingly, Lee noted and the Court even acknowledged that the law does not state that the “animals” covered by the law must be household animals.  It simply states “animals” in general which could arguably apply to feral cats (or any stray animal).  Although the Court seemingly acknowledged the cleverness of Lee’s argument, it went on to state that “This court cannot sanction an expansion of the interpretation of the law so as to create a defense to the imposition of fines for violating a condominium rule or liability for persons who choose to be “good Samaritans”.”  The Court further stated that “to adopt the interpretation claimant is asserting, that is an affirmative duty to provide food, drink and sustenance to all animals with which a person comes in contact, would subject any homeowner to arrest for not putting food out on the chance that Garfield, Sylvester or Felix might wander onto their property looking for a meal like some impoverished Dickens character.”  The Court further stated: “Should people leave food out for the local squirrels, raccoons and opossums which visit their neighborhood on a regular basis? If they fail to do so would they be subject to arrest? To follow the claimant’s position to its logical conclusion, when I go camping I would have an obligation to leave food for the local bears. Unlike Yogi and BooBoo who might sit down on a picnic (or pic-a-nic) blanket to enjoy a meal, most of the bears I have encountered would certainly be grateful, but would more likely than not act like Oliver Twist in Mr. Bumble’s orphanage and be seeking “more.””

As such, the Court upheld the enforceability of the By-Laws and House Rules which prohibited the feeding of feral cats and Lee’s sister, as the Unit Owner, was responsible for the fines imposed.  The Court stated: “Even though the claimant and her sister had good motives and intentions, it is not a defense to their being subjected to fines and penalties for violating the condominium’s house rules.  When someone moves into a condominium they voluntarily agree to be subjected to the rules and regulations of the development.  It is actually democracy at its most basic level.  If the claimant is dissatisfied with the rules, then her remedy is to use the Bylaws to get enough other homeowners to change them.  Until that happens ownership includes compliance.  Further, as pointed out by the defendant, leaving food out may attract vermin such as rodents and which would include rats.  This would conceivably lead to penalties being assessed against the condominium for being in violation of the health code.  Unlike Disney who sees rats as potential gourmet chefs as in “Ratatouille,” the City and State of New York consider them a health problem.”The Court did however reduce some of the fines as some of the incidents cited by the Condominium occurred after Lee moved out of her sister’s Unit and some of the incidents did not have enough evidence (i.e. eyewitness testimony to substantiate the incidents).  In addition, the Court held that certain charges assessed were the incorrect amounts based upon the dollar limits in effect on the dates of the violations. 

As you can see, the Court upheld the Condominium’s governing documents and stated what is obvious to Courts, Board members and practitioners in this area of law; but that many homeowners seem to forget: when you buy into a community association, you are giving up certain rights and must comply with the community association’s documents.  If you don’t like them, you need to obtain the support needed to amend these documents.






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