April 1, 2019

A Cup of Joe | Can A Landlord Remain Silent When Asked for an Accommodation By a Disabled Tenant?

In this week’s case we meet Roseann Birch; her pet, Lola, a 10-lb. Shitzu;  and 3 members of a coop board: Norman Karin, Vincent Trotta, and Herbert Kamens. Roseann is an elderly tenant lived in the coop for 20 years. She is disabled, walking with a cane because of painfully debilitating arthritis. Roseann was issued a handicap placard for her car and a DMV “Disabled” license plate. She has parking spot that is close to her building.

One day, Roseann’s doctor diagnosed her with cardiac arrhythmia, rapid heart beating and heart palpitations, which was causing her to feel light-headed. The effects of cardiac arrhythmia impacted Roseann’s ability to have restful sleep at night and caused her to feel extremely tired during the day. Roseann was depressed and exhausted for a long time. Until her daughter came to visit. Her daughter did not come alone. She brought along a dog, Lola, to keep her mother company. Something happened.

Lola slept in Roseann’s bed the first night and, for the first time in several years, Roseann had a peaceful and nearly uninterrupted sleep. The same thing happened the next night, and then again the night after that. It was, to Roseann, a miracle. After 2 weeks, Roseann informed  board member Vincent Trotta that Lola was living with her and explained to Vincent the miracle that Lola was. Vincent reminded Roseann that the coop had a no-cat, no-dogs policy, and that Roseann would have to provide the board with a doctor’s note explaining why she needed the dog.

Within the next hour, Roseann was at the doctor’s office to get the note. The doctor’s note was given to Trotta that very day, just like he asked.  Denying the accommodation, Board President Norman Karin stated that if Roseann was granted permission to harbor a dog, it would open a Pandora’s box of accommodation requests from other coop tenants. Roseann heard nothing from the board for 2 days. On the second day, Roseann received a $300.00 fine from her coop’s board for violating the no-dogs policy.  Roseann sent another doctor’s note to the board in support of her request. The board was silent. Roseann filed a complaint of discrimination with the New York State Division of Human Rights.  One week later, the board commenced eviction proceedings. And a few days later the Board revoked Roseann’s parking privileges. Roseann was now trapped in her apartment.

After a few months, the board contacted Roseann and told her that she lost her case at the Division of Human Rights and that Lola had to leave in 2 weeks. They were lying. But Roseann believed them and informed the board that she was moving. Roseann had become tired of the fight because her neighbors were taking sides and she felt humiliated and nervous when she went down the hallways and when she went to sit on the bench in the courtyard.  And because her car was now too far away for her to walk to.

Finally a decision did come from the Division of human Rights. In favor a Roseann and Lola. The Division ruled that because the board did not even try to engage in a conversation about the accommodation request, they were in violation of N.Y.’s anti-discrimination law. The coop board failed to engage in a “Good-Faith Interactive Process. Here is the punishment:

The board had to pay Roseann $5,000 as compensatory damages for mental anguish and humiliation;  and, they had to pay Roseann $10,000 as punitive damages.

Also, the board had to pay $5,000 civil fines to the State of New York  for having violated the Human Rights Law. And the board was ordered to create standard policies and procedures consistent with the New York State Human Rights Law to evaluate shareholders requests for a reasonable accommodation.

The case was appealed to the appellate division where the amounts awarded were reduced; however, our Court of Appeals reversed the appellate court and reinstated the fines levied by Division.  Roseann and Lola won.

Here is the short decision of the Court of Appeals



Here is a link to the NYSDHR Determination with the whole story:  https://dhr.ny.gov/sites/default/files/pdf/Commissioners-Orders/birch_v_delkap_mgmt_et.pdf

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