Claimant, Dorothy Lee, commenced this day small claims action against the defendant, Parkview Estates Condominium, seeking to have penalties and late fees assessed against her, and which she paid, reversed. A trial was held on September 25, 2015. Claimant appeared without counsel. The defendant was represented by an attorney.

Certain facts are not in dispute. Claimant is the owner of the premises 93 Parkview Loop, Staten Island, New York. In April 2013, April 2014, and June 2014, the defendant assessed fines [*2]against claimant because her sister, who was living with her at the time, was feeding stray cats on the porch of the premises. In March 2013, defendant notified the claimant that feeding stray animals was in violation of the Bylaws and House Rules of the condominium and unless the activity stopped, she would be fined. When claimant did not stop feeding the cats, defendant assessed the fines which totaled $350.00.

Although claimant timely paid her monthly common charges, she refused to pay the fines and thereby incurred late charges of $300.00 (10 months @ $30.00 a month). Because claimant is owner of the premises she is the responsible party under the terms of the Bylaws and House Rules of the defendant condominium.

Claimant asserts that the Bylaws/House Rules violate Agriculture and Markets Law §353 in that it subjects anyone who fails to assist a hungry animal to potential criminal charges. The statute provides:

Overdriving, torturing and injuring animals; failure to provide proper sustenance.

A person who overdrives, overloads, tortures or cruelly beats or unjustifiablyinjures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or 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 wilfully 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 and for purposes of paragraph (b) of subdivision one of section 160.10 of the criminal procedure law, shall be treated as a misdemeanor defined in the penal law....

Defendant has submitted a copy of the revised offering plan and bylaws which is undated, but after review of it, must be concluded was issued in the 1980's. Defendant also produced two amendments of the House Rules. The revised offering plan contains no restrictions or references to pets or the feeding of animals. The only mention is in Article VIII, House Rules, Section, which prohibits a unit owner's pets from creating a nuisance or being kept in an illegal manner. The original Bylaws in Article IX, Default, permits the imposition of a $20.00 delinquency fee if a homeowner fails to pay any "sums, charges or assessments" when due.

The first amendment is effective as of June 1, 2010. It provides that late fees of $30.00 a month on "common charges." It also fixed fines for the violation of the House Rules and Bylaws at $50.00 for the first offense; $100.00 for the second offense; and $200.00 for the third and all subsequent fines.

The second amendment is effective as of September 29, 2014. It amends "Section 25" of the rules. The rule prior to that date notified homeowners that New York City regulations required "animals to be leashed and have current tags." It also provided that the prior language of "no pigeons or other birds or animals shall be fed in the yards or other common areas..." be amended to "no pigeons, fowl or animals be fed in the yards or other common areas throughout Parkview Estates." This amendment reduced the late fees for common charges to $25.00 per thirty days. The previously established rate for fines remained the same.

The facts of this case present a unique situation and perhaps a case of first impression in that the claimant is asserting that under Agriculture and Markets Law §353, she has an affirmative duty to feed stray or feral cats. The statute in the past has been used almost exclusively to punish people who fail to take care of animals. The language does not restrict itself to the owner of an animal nor does it restrict itself to any particular animal. It covers all animals as the statute defines an "animal" as "every living creature except a human being" [Agriculture and Markets Law §350(1)].

The Court of Appeals in Hammer v American Kennel Club, 1 NY3d 294 (2003), addressed the issue of whether Agriculture and Markets §353 created a private right of action. The plaintiff in that case sought to have the court declare the breeding standards of the defendant as violating the statute in that it forced persons owning a particular breed to engage in procedures that mutilated the dog. The court concluded that it should not judicially sanction a private right of action when the legislative intent was not to create one and enforcement of the act was only to be by governmental authorities. It held:

The statute does not, either expressly or impliedly, incorporate a method for private citizens to obtain relief. In light of the comprehensive statutory scheme, recognition of a private right of action is incompatible with the mechanism chosen by the Legislature.

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" and a penalty for those who choose not to. As well intentioned as the actions of claimant's sister were in feeding stray cats and even catching at least one to neuter, 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.

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."

To follow claimant's reasoning, if persons placed food out to comply with the Agriculture and Markets Law which attracted rodents or rabid animals, that person would be violating local health laws and subjecting themselves potential civil liability under those statutes and should someone be bitten by such an animal, to a personal injury lawsuit.

On the other hand, I am surprised some local cash strapped government has not hit on this as a revenue raising scheme. The animal food enforcement police could sit in the park and issue fines to senior citizens who failed to share their popcorn with the pigeons.

Claimant and her sister should be applauded for their interest in the care and welfare of animals. However, the fact that there are strays wandering around in need of care and shelter is more a comment on the species excluded from the definition of animals than the ones included.

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 NYC Health Code lists in its definition of "pests" the "Order Rodentia, including but not limited to the Norway rat,..." [24 Rules of the City of New York (RCNY) §151.01]. The State Multiple Dwelling Law (MDL) §80(6) provides: "Every dwelling erected after January first nineteen hundred forty-seven, shall be so constructed as to be rat-proof." While MDL §4(4) defines a "dwelling" as "any building or structure or portion thereof which is occupied in whole or in part as a home, residence or sleeping place of one or more human beings." It is not restricted to "multiple dwellings."

The New York City Administrative Code §27-2018 provides:

Rodent and insect eradication; mandatory extermination

a. The owner or occupant in control of a dwelling shall keep the premises free from rodents and from infestations of insects and other pests and from any condition conducive to rodent or insect and other pest life.

The New York City Administrative Code §27-2019 provides:

All...food, animal feed and any other substance which may afford harborage or provide food for such rodents or insects or other pests shall be kept stored or handled by the owner and tenants of every dwelling in such manner as the department may require. The department may make orders to eliminate rat harborages to the person who is responsible for the conditions....

Other laws in the City require "premises to be kept free of rodents, insects and other pests and free of any condition conducive to rodent, insect and pest life [24 RCNY §47-51]. The failure to comply would subject any person to a civil penalty [NYCAC §17-133.1]. Had the feeding of stray cats undertaken by claimant's sister attracted rodents or other pests, not only [*3]would the claimant be subject to penalty but the condominium could also be penalized if it the pests were in common areas.

The defendant was well within its rights to institute a reasonable restriction on residents which prevented them from feeding any animals outside that owner's physical unit. The costs of removing any such infestation in common areas would then have to be borne by all of the unit owners and not just the one doing the feeding. Because the Pied Piper of Hamelin is not available, and the likelihood of retaining some Staten Island musicians such as Wu Tang Clan or Ingrid Michaelson to perform a similar task is very slim, leads to the conclusion the defendant was within its rights to levy a fine against the claimant.

Claimant and her sister testified that the sister lived with her between 2012 and 2013. In March 2013 the sister moved to another unit in the condominium not owned by the claimant. Claimant admits that her sister kept feeding the cats after she vacated claimant's unit. It is not clear whether she fed them at the claimant's unit or at the one she moved into.

Based on the foregoing, during the period in question, 2012 to March 2013, when claimant's sister resided with her and claimant would be responsible for any violation of the House Rules. The Amendment effective June 1, 2010 covered the period in question. It prohibited feeding animals in the yards or other common areas.

The first notice of violation to the claimant is a letter dated March 11, 2013. At that time no fine was issued. The first fine of $50.00 is assessed in a letter dated April 8, 2013. At that time, claimant's sister was no longer living at the premises. The only reason to assess the fine against the claimant would be to conclude it is for activities which occurred during the time period before the April 2013 letter.

The next violation letter is dated March 26, 2014 over one year later and assessed a $100.00 fine, the rate for a second offense. The third notice is dated May 19, 2014 and imposed a $200.00 penalty. Clearly at the time these were assessed, claimant's sister was living in another unit and not with the claimant. Claimant has no obligation for her sister's actions on those dates absent a showing the feeding was on claimant's property. There is no evidence that is the situation. In fact, defendant did not have any eyewitness testimony to substantiate the events. The claimant and her sister admitted the occurrences.

Under the House Rules, the late charge until September 29, 2014 was $30.00 a month. Defendant had a right to impose a late charge.

It should be noted that although defendant asserts that the claimant violated the New York City "Leash Law," that statute only applies to dogs and does not apply to cats [24 RCNY§161.05]. It is not applicable to the situation.

Based on the foregoing, claimant is responsible for the first $50.00 fine and for the late charges assessed between August 2014 and May 2015 when the entire amount was paid because she never paid the initial fine. The fact that the late fees for the period are almost as great as the [*4]fines assessed does not negate defendant's right to impose those charges. However, pursuant to the Amendments, the late charges starting in October 2014 should only have been $20.00 a month and not the $30.00 charged. This is because the original Bylaws permit the imposition for any sums due, while the two amendments permit the assessment of late charges for nonpayment of common charges only. The Amendments do not specifically permit late charges being assessed for all sums due the condominium from a unit owner, therefore the original rate applies and not the amended.

Judgment for claimant. She has proven her prima facie case to the extent that she was only responsible for the first fine and for the late charges imposed. She is responsible for the first $50.00 penalty only and late fees of $20.00 for ten months. The total she should have been charged is $250.00 and not $650.00. Defendant may have to assess the penalties claimant's sister incurred after March 2013 on the owner of the unit the sister rented.

Judgment for claimant in the amount of $400.00 with interest from May 14, 2015 the date she paid the $650.00, together with costs and disbursements. That is the amount she overpaid.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.