Squawking Their Way to Federal Court: The $800K Emotional Support Parrot Case

Mishandling anything to do with emotional support pets can have huge financial consequences. The Rutherford, a New York City co-op, recently learned that the hard way when a resident's noisy emotional support birds caused neighbor complaints. The board acted improperly and Attorney William McCracken, partner at Moritt Hock & Hamroff, breaks down what happened, how the board could have avoided  this costly mistake, and the lessons to be learned. Habitat's Carol Ott conducts the interview.

The business of running a building is demanding work that requires making endless decisions — some that can quickly lead your board into a quagmire of legal difficulties. Legal Talk interviews New York's leading co-op/condo attorneys to find solutions, and get some guidance, on these challenges. For more co-op and condo insights, sign up to receive Habitat's free newsletters or become a Habitat subscriber today!

Transcript

Carol Ott: Welcome to Legal Talk, a conversation about governance issues that New York's co-op and condo boards are tackling today. I'm Carol Ott with Habitat, the New York City magazine for co-op and condo board directors, and my guest today is Bill McCracken, a partner in the law firm, Moritt Hock. One of the most challenging issues in co-ops and condos is emotional support animals and who really needs one.

The Rutherford, a pet friendly co-op in New York City, thought that emotional support parrots was going a bit too far, but they were wrong, and the financial consequences were huge. Bill, can you tell us what the board did or clearly didn't do that landed them in federal court? 

William McCracken: Sure. First of all, Carol, thanks for having me as always.

This is a really interesting case. I think that in our field you occasionally have cases that become shorthand for points of law and issues, like you have most famously probably the Pullman case. And I really do think that the Rutherford case may become shorthand for how to deal or how not to deal with issues of emotional support animals.

Because you have this sort of crazy fact pattern of a woman who moved into the building and had all these parrots with her, succession of parrots in her apartment. And she adopted a parrot in I think about 2015 that was apparently particularly loud. And these parrots, three of them, would squawk all night, all day, all night.

And you can imagine if you're living next door to that in a co-op in New York City, I mean it would become intolerable. There's a lot of back and forth. And eventually the board issued a notice to cure saying that this was a nuisance, that it's unreasonable noises and things like that.

And when she didn't respond to that, they actually started a proceeding to evict her. 

Carol Ott: Normally if another shareholder had said, there's a nuisance going on. And whatever that process had played out and there was no response.

The board's actions right then. Was that proper? 

William McCracken: Sure. And I think one of the tough things about this case is I think that at every step, the board had reason to believe that it was doing things the right way. You do have a proprietary lease, you do have an obligation to give people quiet enjoyment of their apartments.

However, once they went into court, once the plaintiff or the shareholder with the parrots notified the co-op that these were actually emotional support animals, that she had a letter from a Columbia professor certifying that these were emotional support animals, that took them into a different world.

And what happened unfortunately for the co-op is they didn't really react to it in the way that they should have done. And for anybody who's reading this, there are lots of really important lessons to take, in how you deal with this sort of situation. 

Carol Ott: So let's start with the first lesson.

William McCracken: Sure. The first lesson is every board member reading this, you have to have a reasonable accommodation policy in your house rules or in your policies for your building. And a reasonable accommodation policy, you don't have to know what it means, but it's a form document. It's like a 15 page document, and it will give you a step by step process by which how to deal with these requests for an accommodation.

Carol Ott: So the Rutherford was a pet friendly building so people could have pets. They probably felt that's our policy. 

William McCracken: They absolutely felt that. Look, it's a pet friendly building. Why do we need a policy? But the reality is there may be all sorts of rules that are implicated by a person with a disability that needs an accommodation, like in this case, the noise rules or some sort of access issues.

So just because you happen to have a pet friendly building does not mean that you should not have a reasonable accommodation policy because all sorts of rules can be implicated by people with disabilities that need an emotional support animal or what have you. 

Carol Ott: So let me just ask you, I am assuming the Rutherford's proprietary lease addressed noise.

And the first complaint, or the first issue was these parrots were noisy. Probably neighboring tenants had difficulty with that. So the board probably believed, here they were tossing up, do we do what our proprietary release says? Or once this woman said, these are emotional support parrots, where were they supposed to land? 

William McCracken: That's the key issue. I think the key legal issue here is disability laws, is among other things, federal law and federal law is going to trump whatever is in your proprietary lease. So the proprietary lease exists of course, but if federal law is telling you to go about things a different way, you have to follow federal law.

And in this case, the board was telling the shareholder, you have to get an alteration agreement. You have to pay our legal fees, you have to figure out how to install soundproofing. These are things under federal law. And if you follow the policies and the HUD guidelines, the co-op would've understood that these are the things that the co-op needs to do at the co-op's expense and not try and push it on to the person who's just trying to live with their disability.

So it's an inversion of the normal practice in a co-op, but it's something that's vitally important for co-ops to understand: when you're dealing with a situation, it's not enough to just read your lease and go buy your normal policies. You have to go outside that and address the federal law issues and the guidelines and how to handle people living with disabilities.

And because they didn't do that, they eventually had the government sue them and had this big consent decree where they had to pay a lot of money and, find themselves where they are. 

Carol Ott: Just in terms of the money that they had to pay. This is the federal government who's telling them how much money they had to pay and to whom?

William McCracken: Correct. The federal government stepped in eventually as a plaintiff. This is US v. Rutherford. It's not the shareholder suing the Rutherford. It's the the United States Government Department of Justice. They step in, that's one of the things that can happen here. And they have unlimited resources.

They have a million lawyers that they throw at this and very strong papers examining in minute detail everywhere where the co-op did wrong. And it's a tough read from a lawyer's point of view because you do read this. And as we started at the beginning of the conversation, the co-op really did feel, I think, that they were doing things the right way.

And to be told by the government, actually you did everything wrong. And to end up having to pay this huge settlement has to be really tough for them, but. 

Carol Ott: I'm just curious, why did this shareholder go to the federal government? Where else do shareholders normally go when they're being discriminated against? 

William McCracken: You can read your reasonable accommodation policy. There are resources for shareholders with disabilities at the city, state, and federal level. And the reason why the federal government in this case is a quirk of how the facts unfolded here and tactical choices that the parties made.

But the city has, like I said, they have resources and they could bring an action, an administrative proceeding, the state and also the federal government. Lots of resources available for people with disabilities who feel that they've been basically discriminated against. 

Carol Ott: And did this shareholder or the shareholder's lawyer take her to the federal level?

William McCracken: Carol, I believe that it was actually a choice that the co-op made when they were in mediation or settlement discussions, that they opted to bring this into federal court, which, may or may not have been the right choice in the end. I also think it's important to note here that nowhere in the case, nowhere did the federal government or the court say that parrot squawking at all hours of the night is not something to be addressed.

Carol Ott: But the point is there are ways that you can address it possibly, maybe. And the way to explore that, you have to follow a certain procedure and it can't just be you dump it all on that shareholder and say you figure it out, or else you're out. 

If you were gonna say to the board, let's do this the right way. What is the right way? 

William McCracken: I think leaving aside all the sort of technicalities, that there is a process. There are guidelines that HUD produces that you can follow by step and follow. Your policy will give you a lot of step by step on how to address it in the moment , going through it. But I think the main lesson for board members, like the first lesson is that disabilities do exist. They are a real thing and you cannot be cynical about this sort of thing. Emotional support parrots, it's funny when your board president is not taking it seriously and being cynical about it and making jokes about it. And he put his building and himself actually in legal jeopardy by not taking it seriously, taking it at face value and trying to figure out how to follow the rules, regulations, and laws that govern these sorts of problems. So that would be my first takeaway for any board members looking at this is, put aside whatever your personal feelings are about, getting letters from doctors.

And we've heard all these stories about, very cynical thing, but that won't help your building comply with the law. 

Carol Ott: In your experience, do many co-ops have a reasonable accommodation policy? 

William McCracken: In my experience, anytime that we review somebody's house rules and proprietary lease and things like that, and we don't necessarily always see everything and it's not necessarily our place.

We get asked to do things, but we always strongly recommend that they adopt one. Sometimes people don't. I think that the sort of robust 15 page policy that we're talking about these days, it didn't exist 10, 15 years ago. So it's something that, it's okay if your co-op doesn't have it, but they really do need to have it because you never know what could come up.

And it's much better to have the policy in place before something like this starts than try to do it in midstream. 

Carol Ott: And this policy, does it lay out steps so that if you have a shareholder who says, I have an issue, I need a reasonable accommodation, it will tell you. And if you follow those steps, you're in the clear? 

William McCracken: There's no guarantees in life, but yes. If you follow those steps and you do them properly and appropriately, you should be guided to a place where the person with a disability is able to live their life with a disability, but you also have a process for addressing things like the parrot squawking in the middle of the night and waking everybody else up.

And in a situation like that, there's no easy solution. But when you're talking about reasonable accommodations, there's a way to try and get to a place that hopefully works for everybody. 

Carol Ott: To get to that place. I'm just curious. If the Rutherford had said, we understand the parrots are your support animals. Is it the co-op's responsibility to to put in soundproofing, and they would have to pay for it? 

William McCracken: Correct. Which is, like I said, that's an inversion of the normal process. If someone needs to do something in their apartment, normally in a co-op, you say, okay, do it. It's on your dime. And not only that I'm going to charge you back the co-op's legal fees because we have to look at it.

So that's normal process for alterations and what have you in a co-op. But here, because the co-op has a federal law obligation, federal, state, local obligation to provide a place for people with disabilities to live, and that may include a reasonable accommodation, which is really an exception to the normal rules.

They have that obligation. And maybe that obligation includes installing soundproofing, seeing if that works. If that doesn't work, then you go to the next step . Again, there's no guarantee that it won't work. But there's no way you can go to a judge and say we did everything we could, but, we have to get rid of this person and not having done everything you can in the right way.

Carol Ott: And let me just ask you, parrot pets are unusual, but what is often typical, aside from other animals, is somebody could say, I need a ramp. And what if your building just could not accommodate a ramp? 

William McCracken: I don't think the law requires people to do things that cannot be done. 

And they also don't require things that affect the health and safety of people. For example, you can have emotional support animals that attack the neighbor's kids. Federal law is not gonna tell you tough luck kid. There are protections, but you, it can't just be this amorphous it's too loud here.

William McCracken: Then you get into the weeds of the fact specific issues. But it's, again, it's supposed to be a reasonable accommodation. And then the question will become, ripping up our sidewalk and spending three years to build a ramp, is that reasonable or not? Can we put in an elevator or a lift or what have you?

Or maybe we just can't. 

Carol Ott: Can you just tell our audience what the fines were to the Rutherford? 

William McCracken: I think it was, it $165,000 in pain and suffering for the shareholder. And then they gave something like a guarantee that the shareholder would get a certain price for their apartment. I think it was $585,000. So it was, upwards of $800,000 in financial obligation that the co-op took on for this. 

Carol Ott: And is that coming from their insurance or their pockets?

William McCracken: I don't know the specific answer to that, but carriers are not keen to, to insure people who are violating federal disability laws. So I suspect that they had a problem there. 

Carol Ott: And would you suspect that they would have a problem getting reinsured? 

William McCracken: I would suspect that, yes. But again, I don't know for sure.

Carol Ott: Okay. Just wanna sum it up. Is there a final sort of one takeaway that you could tell our audience? 

William McCracken: I think the first, I, there are two takeaways, but, have a reasonable accommodation policy and take this stuff seriously. That's as easily as I can summarize it. 

Carol Ott: And as simple. Thank you very much for joining us today. 

William McCracken: Thank you, Carol.