Op-ed: A Co-op’s failure to provide ‘reasonable accommodation’ and ensuing retaliation results in heavy fines and penalties

Hon. George M. Heymann is a retired New York City Housing Court judge. Photo courtesy of George M. Heymann.

By Hon. George M. Heymann

Special to the Eagle

Since 1988, the complainant shareholder lived in Linwood Village C Cooperative Corp. (hereinafter the “Co-op”) governed by a Board of Directors (hereinafter the “Board”).

In 2007, the complainant was diagnosed with rheumatoid arthritis which affected her ability to walk. In 2008, she was diagnosed with supraventricular tachycardia and cardiac arrhythmia causing her to have palpitations, lightheadedness and sleeplessness.

In violation of the Co-op’s “no dog” policy, the complainant acquired a dog in mid-August 2010 when her daughter, along with her dog, moved in to live with her.

Before that, the Board acknowledged the shareholder’s infirmities by providing her a parking space near her apartment for which she had a disability certificate on her vehicle. On Aug. 30, 2010, the complainant requested that the Board provide her a reasonable accommodation and allow the dog to remain in the apartment due to her disabilities.

As advised by the Board, the complainant submitted a doctor’s note regarding her condition which was submitted to both the Board and petitioner Delkap Management recommending that complainant keep the dog and also her parking spot near the apartment due to her impairments.

The petitioners (Delkap and Co-op) refused to consider the request for a reasonable accommodation, directed her to remove the dog and fined her $740 — $300 for the dog and $440 for legal fees.

The complainant immediately filed an administrative complaint with the New York State Division of Human Rights (hereinafter “SDHR”) alleging unlawful discriminatory practices in violation of the Human Rights Law [Executive Law article 15]. In response, the petitioners notified complainant that she would be evicted if the dog remained and that her parking privileges were revoked — but reinstated nine days later. The petitioners further refused to accept the shareholder’s next maintenance check and commenced a holdover proceeding for her eviction.

At a hearing before an Administrative Law Judge (hereinafter “ALJ”) the complainant’s doctor submitted unsworn letters and a completed questionnaire as requested by SDHR. The complainant testified that “since obtaining the dog, her cardiac arrhythmia, which caused her to have a rapid heart rate and experience palpitations, had significantly decreased; her ability to sleep had improved, resulting in her feeling less tired during the day; her discomfort do to her rheumatoid arthritis had improved because she was more physically active with the dog; and the dog decreased her stress, helping to improve the symptoms caused by her rheumatoid arthritis and cardiac arrhythmia.”

Erroneously, the petitioners concluded that SDHR had issued a final order in their favor and directed the complainant to immediately remove her dog. As a result, the complainant vacated her apartment. On September 24, 2013, the ALJ determined that the Co-op discriminated against the complainant “in the terms, conditions and privileges of her housing on the basis of her disability, and that she should have been allowed to keep the dog in her apartment as a reasonable accommodation for her disability.” The ALJ also found the petitioners [respondents at the hearing] retaliated against the complainant for filing her complaint with SDHR.

Based on the ALJ’s findings, which were adopted by the Acting Commissioner of the SDHR, the petitioners were fined and directed to pay $5,000 to the complainant in compensatory damages for mental anguish and $10,000 in punitive damages. Each petitioner was also assessed a $5,000 penalty payable to the State.

The petitioners commenced an Article 78 Proceeding and the Appellate Division, in Matter of Delkap Mgt., Inc. v New York State Div. of Human Rights, 2016 NY Slip Op 08073 [144 AD3d 1148], annulled the finding of discrimination on the basis of complainant’s disability, annulled all the penalties and assessments as set forth above, otherwise confirmed the findings, dismissed the proceeding and remitted the matter to SDHR for the imposition of new awards not to exceed $2,500 for compensatory damages, $2,500 for punitive damages and payment to the State by each petitioner not exceeding $2,000.

The appellate court stated that “[t]o establish that a violation of the Human Rights Law occurred and that a reasonable accommodation should have been made, the complainant was required to demonstrate that she is disabled, that she is otherwise qualified for the tenancy, that because of her disability it is necessary for her to keep the dog in order for her to use and enjoy the apartment, and that reasonable accommodations could be made to allow her to keep the dog (citations omitted).”

Here, the court found that, notwithstanding complainant demonstrated that she was disabled, a shareholder of the Co-op and stated that the dog helped alleviate her stress and other symptoms, she “failed to present medical or psychological evidence sufficient to demonstrate that the dog was actually necessary in order for her to enjoy her apartment”. The court noted that complainant lived in her apartment for 20 years without the dog and the dog lived with her for only two weeks before a request was made for reasonable accommodation. Therefore, “the SDHR’s determination of discrimination based on her disability was not supported by substantial evidence.

However, the SDHR’s determination that the complainant’s filing of a discrimination complaint for “protected behavior” was the cause of retaliation by the petitioners as supported by substantial evidence. In this case, there was a clear casual connection between complainant’s discrimination case [“a protected activity”] and the petitioner’s subsequent conduct. The petitioners failed to show a “legitimate, independent, and nondiscriminatory reason” to support their actions.

On March 26, 2019, the Court of Appeals rendered a 5-2 decision: “On review of submissions pursuant to section 500.11 of the Rules, judgment, insofar as appealed from, reversed, with costs, petition dismissed in its entirety, and cross petition granted to the extent that the determination of the New York Division of Human Rights is confirmed. The Appellate Division erroneously set aside a portion of the agency’s determination. Delkap Mgt., Inc. v New York State Div. of Human Rights, 2019 NY Slip Op 02260 [March 26, 2019]

Hon. George M. Heymann is a retired New York City Housing Court judge. Heymann is of Counsel at Finz & Finz, PC and serves as an adjunct professor of law at Maurice A. Deane School of Law at Hofstra University.