Surviving Emotional Support Animal Requests

When a newly married couple applied to a Riverdale co-op with an emotional support animal request, their board faced a situation that most no-pet buildings aren't prepared for — and the fallout landed them before the Human Rights Commission. Eric Goidel, senior partner at Borah Goldstein Altschuler Nahins & Goidel, walks through the case step by step, explaining the unconventional strategy he recommended and why it matters for any board navigating ESA requests. The lesson here isn't just about pets — it's about documentation, process, and knowing where the real legal exposure lives before a complaint ever gets filed. 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: Pets in no-pet buildings. Now there's a topic that can polarize just about everybody. In this situation, we typically think of an existing shareholder in a no-pet building who claims he or she now needs a service or emotional support animal. But times are changing, and now prospective purchasers are submitting a request accommodation and a waiver of the no-pet policy before they even become shareholders

Folson Group: At the Folson Group, our mission is to help boards make smart decisions every day. From end-to-end property management searches and construction project management to cost optimization, we help boards achieve sustainable savings, on-time projects, and long-term performance that speaks for itself 

Carol Ott: I'm Carol Ott with Habitat Magazine, and my guest today is Eric Goidel, senior partner at Borah Goldstein Altschuler Nahins & Goidel, who will help boards figure out how to proceed.

Welcome, Eric. 

Eric Goidel: Carol, great to see you again. 

Carol Ott: So let's start off by I'm gonna ask you, can you explain this new phenomenon and how this complicates the issue? 

Eric Goidel: So Carol over the years, I've been doing this for 40 years now, I'd say there are three categories of shareholders or prospective shareholders who might want to get a reasonable accommodation for a pet in a no-pet building.

And when I'm talking about this with you today, I'm referring to emotional support animals as distinguished from service animals that provide some life function where obviously there's no issue w- with that. The first category would have been shareholders who've been a shareholder for a number of years, and all of a sudden they have a need, they have a claimed need for an emotional support animal.

Those tend to be very legitimate because these people have honored the no-pet policy of the apartment corporation for many years, and some- something has changed in their life that warrants them making that request. Then we had a category which I saw, starting in a few years ago, of shareholders who were brand-new shareholders who just came into the co-op maybe a month or two after closing making the request, and that was one of these things like, "So I'm now a shareholder, you can't do to me what you might have been able to do to me before I became a shareholder."

And then you have to evaluate that clearly on, on the merits, and some of those merits are dubious, and that's why they didn't make the request at the time that they submitted the application. Now, though, in the past couple of years, I'm seeing these applications that are coming in where simultaneously with the submission of the basic application with the references, the finances, et cetera, a request is being made, and that shareholder is basically daring, I'll say, the co-op to turn down the overall application.

Then it gives them the ability to make a claim that their turn down was pretextual and cer- and was really to turn down the pet, but they found some other reason to turn down the application in the four corners of the application. So I'm deviating, in the past year or two, I've decided to deviate in my recommendations to co-op boards that where I normally, again, for the better part of 40 years, recommended that they perform these objective tests, financials credit checks- Criminal background checks, which now you can't do upfront, but you could do on the back end after a conditional approval.

But I am now suggesting that where you get a simultaneous request by a prospective purchaser for an emotional support animal, that you actually do that review first before you get to the other merits of the application. What- why am I suggesting that is, I- if the board is going to ultimately approve the pet, but perhaps because of the quality of the application ultimately turn down the application, be it on finances or some other fairly objective criteria, I wanna try and take away the argument that they make, not that they can't make the argument, but if they file a human rights complaint saying that we turned down the application because of that they were a- wanted a pet in a no pet building now we could point to the fact that the board approved the pet, then processed the rest of the application.

It's not fail-safe, but it focuses the Human Rights Commission more on the merits of the application than on the issue of the dog, because we've gotten past that. 

Carol Ott: Just walk me through how is a board who now has not met the shareholder, because they're still gonna review all the financial and stuff, financial paperwork before they have a meeting with the shareholder h- or prospective shareholder.

How is that board gonna evaluate a request for an emotional support animal? I don't quite get that. 

Eric Goidel: So what we can do with some limitations is first of all, there has to be a request made by the prospective purchaser or an existing shareholder, that doesn't vary, where they have to make the request for the pet.

It has to be accompanied by some level, and the bar is fairly low, Carol, but it has to be accompanied by some level of medical documentation showing the need for the emotional support animal, how having this pet treats or ameliorates some condition, and we can't get too deep into the conditions because of the HIPAA rules and the like.

But the medical professional and the quality of medical professional, I'm not trying to denigrate a profession. It could be a medical doc- it could be anywhere from a medical doctor to a psychotherapist to a social w- to even a social worker. So the requirement that someone get something from a me- licensed medical doctor does not necessarily exist, but there has to be some demonstration of some condition that can be improved.

The other thing, though, that the Human Rights Commission ignores, which they really shouldn't, is there is also under the law supposed to be some connection between the emotional support animal and the ability of that shareholder or renter, what- whatever the case may be, to enjoy the use of their apartment.

So it's not only that it provides... It shouldn't only be that. It's not only that it provides emotional, some emotional support, but it somehow makes them enjoy the use of their apartment. That is over, often overbooked by the human rights, by the Human Rights Commission. 

Carol Ott: Have you had clients where this has gone to the Human Rights Commission with a prospective purchaser?

Eric Goidel: So yes, so I actually have one that's pending now with a co-op up in up in the Riverdale section, which is now being handled by the DNO carrier. And in that situation, I had made the recommendation 'cause I kinda, after years of experience, I kinda saw this coming a-as as I would say that this person was very aggressive so that if there was a turn down because of the pet, that we were gonna wind, definitely wind up at the Human Rights Commission.

I, I was mistaken. We still wound up at the Human Rights Commission. But what we did was the board reviewed the request for the pet. We asked for some additional documentation, which we received. It satisfied what we felt the Human Rights Commission would see as acceptable documentation.

The board approved, pre-approved the pet, and then we said, "But we have to look at the rest of the application." so then this person the... it was a new- newly married hu- newly married couple who had previously been living at home in their respect with their respective parents. Their income was fine except their expenses were out- outsized, and we didn't see, the board didn't see how if they didn't rein in the expenses how they could pay the maintenance because they weren't paying any rent anywhere currently.

So while they promised that they would, be a little more frugal on their expenses, the board wanted to have some security here. So I suggested again that we give them the choice, and this board has done this in the past as other co-ops do, of either depositing a maintenance escrow, a one-year maintenance escrow which the co-op would hold for perhaps two years till we saw a consistent payment payment arrangement, or produce a family member, one of the parents who would guarantee the maintenance obligation.

We gave them the option. They balked at either option and walked away from the contract and claimed, and then filed the human rights complaint claiming that our we discriminated against them based upon their ethnic background and that it was really a subterfuge for turning down the pet. But again, I feel even though we approved the pet but I feel that in the end when we're before the Human Rights Commission, the Human Rights Commission will recognize that the board approved the pet and will then just be focused on whether we imposed a requirement on this protected class of individual who could file a complaint because they weren't off the Mayflower, they didn't come off the Mayflower.

And we can and we can defend it on the basis of the fact that we can document that in a number of, any number of cases over a period of years, we have made similar requests from people similarly situated in a financial position, and taking the dog literally off the table, right? 

Carol Ott: I'm curious, these are no-pet buildings.

Eric Goidel: These are no-pet buildings. I've had some complaints where we have pet buildings. And one, for example, is a garden apartment complex in Bayside, Queens, that actually allows two dogs per apartment. A shareholder got a third dog and claimed that was their emotional support animal. And obviously the board's response was why can't dog number one or number two be your emotional support animal?"

And that, and the response was, "Dog number three reminds me of my deceased husband." I don't wanna go into the details on that, what the reminder was. And the Human Rights Commission, we went to mediation, conciliation actually, and the hearing and the conciliator there and the Human Rights Commission said it is possible that you, yes, you do allow two dogs, so you're not a no dog complex, but it is possible for the third dog to be the emotional support animal."

And the board made the decision that they don't have a dog in that fight and they didn't want it, and it wasn't worth, it wasn't worth, going the distance on that, so that person has three dogs. I think we had an agreement that once dog number one or number two died, that they couldn't replace, one of those.

They have to go back to two. 

Carol Ott: That husband-friendly dog would still do the trick. 

Eric Goidel: Ho- hopefully she didn't get remarried. 

Carol Ott: In a no pet building, there are obviously, I assume, enough shareholders who really don't wanna live with a pet. Their rights they seem to have lost their rights in this- Yes

conversation. 

Eric Goidel: Yes. So I actually, I'm in another q- vignette, which is v- which I found to be one of the most interesting, and I always say if I ever write a book, this'll be one of the chapters, have, had a, have, still have the co-op, but this goes back many years, where it's a building, a development with one large high-rise building but a number of townhouses, and the and the townhouses front on the street and most people park either in the back in a drive- in a driveway, outdoor parking lot, or they park on the street, and those who park on the street have to walk up a walkway to their townhouses, and there are window bays in every townhouse.

There's 18 townhouses and each one has a window bay. And one shareholder got a cat for a child that they claimed had a disability once we brought a holdover for the ele- for them getting a pet in violation of the no pet policy, and they filed a complaint with the Human Rights Commission.

But we had a shareholder who lived immediately adjacent in the adjoining townhouse who had a phobia of pets of and cats in particular because when this person, who was about 70 at the time, when she was about five years old, a friend of hers got scratched or bitten by a cat and died of toxoplasmosis.

And so she developed this phobia back from when she was a young child to the point where if she parked her car and went to walk down her walkway and she caught a glimpse of the cat sitting in the window bay, she would have to go back to her car and sit there for an hour. And so we had, I'll call it dueling disabilities before the Human Rights Commission.

And in that case, the Human Rights Commission did the right thing, which was that they realized that this person moved into the development because it was a no-pet development and relied upon that, and they accepted her disability from childhood as opposed to the child's disability today 

Carol Ott: Wow. For boards who do get applications from purchasers to bring in their pets in, and it's a no pet building, what's your advice for them in how to handle this so that they don't end up in front of the Human Rights Commission and they still protect the residents of their no pet building?

Eric Goidel: Unfortunately it's, the deck is stacked against buildings in New York City that that have no pet policies where someone makes a request, whether it's an existing shareholder or a or a prospective purchaser. You need to, first of all, you need to have a, I'll call it a disability policy that you could point to where you have a process, w- whether it's a disability for pets or whether it's asking for a handicap accessible ramp or something like that, you should have a policy in place, 'cause the agency is gonna ask you whether you have a policy in place, and if you don't, there's gonna be a strike, a bit of a strike against you.

The Human Rights Commission also has this voluminous handbook on dealing with people with disabilities and I'd be happy to furn- you know, furnish that to you so maybe you could put a link up a link up when this gets published. And they insist that you must... They suggest, they don't insist, but if you don't then you get punished for it.

You, you should maintain what's ca- what they call a cooperative dialogue with the applicant, with the party making the request. And by cooperative dialogue, I don't mean that, that because it's a cooperative you have a dialogue. You're supposed to try and come to a consensus as to what has gone, what has been requested, how maybe you could vary the policy with minimal inconvenience to those in the co-op who wanted to be free from pets, and there is that cohort cohort as well which kinda gets lost in the shuffle.

But you wanna be able to demonstrate this because in the end, if you decide to fight the case in the Human Rights Commission and you lose, having those policies in place, having that cooperative dialogue will mitigate the potential damages that you might have to pay to either the applicant/shareholder or compet- or damages to the Human Rights Commission, which they're entitled to co- to collect.

Carol Ott: Is the board entitled to meet the pet and approve an emotional support pet prior to approving it? 

Eric Goidel: If you're asking me can the board meet the pet so yes. In this case, by the way, in the case that I talked about where we the co-op in Riverdale where they approved the pet but then had the financial issue, they were...

the pet was asked to come to the interview, and the pet was well-spoken and the pet was well, the pet was well-behaved the pet was well-behaved. And so the board actually had no problem with the pet, and when it comes out and i- if we, if it goes the distance and there's a finding of probable cause, they're gonna say that this pet was well-behaved.

They... The pet may have been on Benadryl, which is one of the, real estate brokers, by the way, Carol, real estate brokers will tell people, "If you're required to bring your pet to the interview, put your pet on Benadryl." and it's a, it's a trick of the trade, it's a trick of the trade.

But yeah, you're entitled to meet the pet, but I don't know. Unless if the pet is, jumps all over everybody or bites the president yeah, that, that may be a different story, 

Carol Ott: right? But for purchasers in particular who are requesting an accommodation, you can't meet the pet without the purchasers, and typically your lawyer will advise you don't meet the purchasers until you've approved them.

Eric Goidel: Correct. Correct. But we, but correct. So w- but we, w- in this situation we had them bring the pet to the interview after the fact. 

Carol Ott: Okay. Give me a final takeaway for boards. How should they proceed, in this territory where they don't wanna end up in front of the Human Rights Commission?

Give me one final takeaway. 

Eric Goidel: So what I would say is boards need to proceed with caution. Although you have a no pet policy, the bar is extremely low before the Human Rights Commission as to what trumps a no, a no pet policy. So if you've received fairly competent medical documentation, and what I mean is, sometimes sometimes you get something off the internet.

There are these companies on the internet that for $100 will give you a letter, and that to me is insufficient and requires further probing. But if you get something that seems competent in terms of medical documentation, I would fold my cards u- usually in that situation. 'Cause the Human Rights Commission is judge, jury, and executioner.

Everything's handled internally basically from probable cause to prosecution. The case a- and the handling of the case so the deck is o- the deck is stacked against the landlord in most situations. 

Carol Ott: Okay. On that note- We'll go out and walk our pets.

Eric Goidel: Okay. 

Carol Ott: Yeah. Thank you so much for joining us. It's been really insightful. 

Eric Goidel: Carol, thank you again