Feds sue housing co-op for not allowing “comfort dog”

by Walter Olson on February 19, 2012

In 2005 Jack and Sandra Biegel purchased a unit in Long Island’s Woodbury Gardens, which had a no-pet policy. The next year they acquired a miniature schnauzer to assist with Sandra’s multiple ailments, which included depression and strained breathing. She died the next year. Now the federal government is taking Jack’s side against the co-op in its effort to enforce its rules. [NY Daily News]

{ 25 comments }

1 smart dude 02.19.12 at 3:14 pm

Every pet in existence is a “comfort animal,” The federal government is arguing in effect that there can no longer be any restrictions on pet ownership.

By the way, could not the late Mrs. Biegel have been allergic to dogs, with her labored breathing going fatally and rapidly downhill after purchase of the verboten schnauzer?

That being said, the condo behaved exceedingly stupidly by sucessfully going after a bill for $2,305.48 after Mrs. Biegel’s tragic demise.

2 Greg 02.19.12 at 6:06 pm

@smart dude: I don’t think it’s proper to make assumptions like that, considering we have no clue what was going on.

3 asdfasdf 02.19.12 at 6:45 pm

A dying, elderly woman acquires a dog to help with her strained breathing and depression. The co-op board forces her to give up the dog, and she dies a month later. The co-op board then sued the woman’s husband for legal fees. He paid them, and the filed a complaint.

It’s extremely difficult to have the slightest sympathy for the co-op board here. As far as I’m concerned, if they want to try and use technicalities in the legal system to intimidate dying, elderly tenants into giving up pets, then they should be perfectly prepared to have to defend themselves against a well-funded litigant.

In the (rather unlikely) event that the co-op board is legally in the right, I hope they enjoy proving it. Maybe they can sue the Federal government for legal fees if they “win.”

4 Rich 02.19.12 at 7:18 pm

Why should you and I as taxpayers represented(?) by the federal government have a dog in this fight?

5 Anna 02.20.12 at 1:53 am

The co-op board IS in the right. They may be callous bastards but that has nothing to do with the facts of the case. The couple moved in knowing the no pets rule. If someone cannot handle the rules laid down by a co-op for whatever reason, they should not move in.
While the old lady’s plight tugs at the emotions, it does not give her the right to violate the rules of a contract she and her husband agreed to when they started living at the co-op. They also are not respecting the rights of the other tenants to a dog free existence…what if the other tenants have phobias, allergies, noise, and odor issues? My brother was deathly afraid of dogs: he was bitten by a rabid dog as a small child and never got over the panic attacks whenever he saw or heard a dog. He lived exclusively in places where pets were not allowed. If this couple and others like them are allowed to alter pre-existing rules whenever it suits them, then there is no safe haven for him and others like him.

6 Hugo S. Cunningham 02.20.12 at 7:21 am

As a dog-owner, I agree a condo board has the right to announce and enforce a no-dog rule against new residents. Nevertheless, no competent lawyer would have allowed them to dun the widower for a lousy $2K post-mortem.
My late father handled airplane claims. Once he was approached by an airplane club who wanted to sue the estate of a late member who, it looked clear, had deliberately crashed one of their planes as a suicide method. My father persuaded them to drop it; the risk was too great that grieving family members, quiet now, would be goaded into hiring an ambulance-chaser with claims the plane was defective.

7 J.T. Wenting 02.20.12 at 8:09 am

So they allowed the purchase of an animal by the couple, then decided later that the animal had to go.
Sounds like a case for the animal welfare clauses to me, as the common way to “dispose” of animals is to dump them in the street or have them put down.

IMO (though I don’t know the law on this) they can’t cancel a permission for an animal once granted. They could of course disallow a permission for another animal once the current one dies (though parties could argue that once they allowed the one, there’s precedent and the entire clause banning animals can no longer be considered binding).

8 gitarcarver 02.20.12 at 9:30 am

So they allowed the purchase of an animal by the couple, then decided later that the animal had to go.

The Daily News has another article on this where they say the dog was originally owned by the couple’s daughter. The woman watched the dog, and fell in love with it.

Putting two and two together, it might be the woman was watching the dog, fell in love with it, and then purchased it from her daughter. When the purchase took place the articles do not say, but the HOA had conversations with the couple early in the process and sent letters to them within a month of the dog being at the home.

I have a feeling this story appears on “Overlawyered” because 1) a person(s) signed a contract and decided not to abide by it. 2) The federal government getting involved in a lawsuit against a HOA for enforcing the agreement. 3) The ambiguity of laws concerning “comfort animals.” 4) Suing the estate of a woman for the lawyer fees. 5) The intersection of people who demand a “reasonable accommodation” at the expense of other people in the retirement community who may have negative health reactions to animals, which is why they moved to the community in the first place.

9 Jack Wilson 02.20.12 at 10:53 am

When empathy replaces law, then one side of the argument gets screwed.

10 ParatrooperJJ 02.20.12 at 12:30 pm

Sorry, federal ADA law overrules coop contrants and policies.

11 gitarcarver 02.20.12 at 1:09 pm

Sorry, federal ADA law overrules coop contrants and policies.

The ADA does not cover “comfort animals,” only “service animals.”

The suit is being brought under the “Fair Housing Act” which does cover “comfort animals.” The question is then “what is a ‘reasonable accommodation’ in this case?”

For example, if the dog was let loose in the common areas to do its “business” and no one picked up after it, is it “reasonable” to have other owners in the co-op lose their right to enjoyment of the property because they are stepping in dog poo all the time?

That is the problem with “reasonable accommodation.” It is an ambiguous term that is not defined and so people don’t know where the “bright line” is.

12 asdfasdf 02.20.12 at 2:52 pm

The evidence is that the dog helped the critically ill woman with depression and with breathing. That triggers Fair Housing Act and ADA claims. Condo board has perfect right to try and contest the evidence by bringing up the usual “oh what a terrible dog” that boards typically do, that’s their right.

What I find absolutely unbelievable is that neither Olson or even some of the reflexively anti-government-lawsuit advocates here seem to understand that the equities of situation weigh so heavily against the condo board that they absolutely deserve to get sued.

Normally in unfair government lawsuits a private entity is minding its own business, behaving reasonably, and getting sued unfairly.

Here, the private entity obviously did not act reasonably. It is not reasonably to demand legal fees from a guy who bought a dog to ease his wife’s suffering and help her health, and whose wife had just died. It may be legal to do so (although I sincerely doubt it) but it’s not reasonable.

If the condo board wants to act unreasonably and stand on the letter of the law, then they better be very, very sure that the letter of the law actually supports them. And if they want to dun a widower for legal fees for his trying to help his dying wife, they better be absolutely prepared to pay legal fees of their own when it turns out their own hands are unclean. And trying to evict a tenant who uses a medically necessary dog creates quite legally unclean hands.

If you want to take the position that the government files too many suits, there are thousands of suits out there you can use. This isn’t one. This is a poster child for helpful government regulation protecting the interests of disabled or dying tenants who would not have the resources to defend themselves. If you defend the condo board here (based, of course, on the info in the article) you’re just proving to most people that strong government tenants’ protections are in fact needed.

13 Jerryskids 02.20.12 at 4:57 pm

That is the problem with “reasonable accommodation.” It is an ambiguous term that is not defined and so people don’t know where the “bright line” is.

A “problem”? Really? And’ “bright line”‘? Obviously you are still holding onto the antiquated idea that ‘equality before the law’ means that the law is fair when it applies equally to everyone, as if Justice were blindfolded. The law is fair only insofar as the law is applied by a formula that takes into account your race, sex, age, ethnicity, IQ, nationality, gender, sexual orientation, income level, education, degree of differently-ableness, religion, allergies, resting heart rate, shoe size, phrenological bump pattern and whatever else anybody else wants to throw into the mix. All animals are equal but some animals are more equal than others, dontcha know.

14 Jerryskids 02.20.12 at 5:12 pm

And barely do the words get out of my mouth than someone helpfully defines “reasonable” for us. Thank you, asdfasdf. Glad that is all settled now. Have you informed the Courts that this issue is now moot?

15 smart dude 02.20.12 at 6:01 pm

“The evidence is that the dog helped the critically ill woman with depression and with breathing.”

Really? Where is the evidence for this? It is not in the Daily News article.

I can appreciate how a doggie might possibly help depression, but there are lots of people allergic to dogs. For such folks, animal dander can actually compromise breathing.

16 gitarcarver 02.20.12 at 11:50 pm

If you defend the condo board here (based, of course, on the info in the article) you’re just proving to most people that strong government tenants’ protections are in fact needed.

I would agree with your assessment except while you believe the wronged party here was the woman, I have a tendency to believe the wronged party was that other 159 unit owners who were keeping the contract they had signed in good faith with the co-op. Why are their rights any less important or valid than the woman?

While you believe the condo has the ability to try and prove the dog was “bad,” I question why they should have to. Why should the law allow a person to violate a contract at the risk of others in the same community who had signed the same contract?

That is the real problem here, asdfasdf. The government has set up a system where you have two parties sign an agreement and one is held to that agreement and the other is not. I don’t see a lot of fairness in that position.

17 asdfasdf 02.22.12 at 6:30 am

The government has set up a system where you have two parties sign an agreement and one is held to that agreement and the other is not.

The “agreement” between the tenants or condo residents and the board incorporates legal requirements like the FHA and the ADA. A person buying a condo has a right to assume the board will follow federal law and will give residents the benefit of its protections.

Freedom of K is implicated only because FHA and ADA requirements are not waiveable. Here, there is no freedom of K issue because all parties to the agreement knew that it was governed by federal law.

Still, I think it would be hilarious if the condo board tried to use your “freedom of K” argument to the judge. If they are retaining the same counsel who advised them to sue the widower for legal fees, they may well try to do so.

18 Jack Wilson 02.22.12 at 10:21 am

Does ADA actually have specific requirements that can be read and followed by mortal man? Or are the rules so vague that they can only be determined by endless lawsuits and rulings from federal ministries?

19 gitarcarver 02.22.12 at 10:58 am

asdfasdf ,

Basically we differ in that you believe the FHA law which allows people to trample on the rights of others is just. I do not believe that.

20 asdfasdf 02.22.12 at 7:37 pm

Basically we differ in that you believe the FHA law which allows people to trample on the rights of others is just. I do not believe that.

This begs the question of the unjustness of the FHA. I think you are conflating several different arguments here:

(1) FHA violated parties’ agreement as to “no pets”, so it would be unjust to enforce it.

(2) FHA regulations should be waivable by K.

(3) FHA regulations on medically necessary pets should be changed.

The argument (1) is simply incorrect. The parties understood and priced in that their agreement was covered by the FHA. Whether (2) is true normatively has no bearing here because the parties did not waive the FHA and there is no reason to think they would have wanted to. It’s an interesting argument for the future, but not for this case.

(3) is only relevant here if you believe that because the regulation is unwise, it should not be enforced. But failing to require a party to abide by the FHA here contradicts your view of the sanctity of agreements: the agreement was made on the basis the FHA applied, and to nullify the FHA ex post would defeat the parties’ agreement.

21 Bill Alexander 02.23.12 at 9:37 am

Many of the commenters seem to miss the point that the dog is not a comfort or service animal for the resident, but rather for the now deceased wife. It appears they allowed the dog as long as she was alive. I know how difficult it would be to get rid of the dog, but how is it an FHA violation?

22 Hugo S. Cunningham 02.23.12 at 11:06 am

If the housing coop included an owner who was allergic to dogs, the “no dogs” agreement should privilege his medical need over that of newcomers who signed the agreement without intending to follow it. (But note I said “should”; actual current law might be different.)

23 gitarcarver 02.23.12 at 5:17 pm

asdfasdf ,

Uh no.

1) The regulations by the FHA in this area intrude upon the rights of people to make contracts with each other.
2) See #1.
3) FHA regulations on “comfort pets” should not exist.

Basically your premise is “the law exists, all bow down to the law.”

Sorry, but I don’t buy into that.

24 DensityDuck 02.23.12 at 5:40 pm

asdfasdf, please cite the part of the ADA that defines “service animal”, and then explain how this particular animal fits that definition.

Be careful that you don’t inadvertently create a legal doctrine that requires passenger airlines to transport livestock because the owner claims it’s a “service animal”. (Which has happened.)

25 Melvin H. 02.23.12 at 11:28 pm

Didn’t one of the (Few) good (relatively speaking) things about the ADA-AA limit the definition of “service animal” to a VERY few animals like dogs ?

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