In the most recent court decision addressing cooperatives’ and landlords’ obligations to tenants who wish to keep a support animal in their apartments despite lease provisions or house rules barring animals, a state appellate court has overturned a determination of the New York State Division of Human Rights (SDHR) that a Cooperative discriminated against a disabled tenant-shareholder by rejecting her request to keep a support dog, but upheld a finding that the Cooperative improperly retaliated against the tenant-shareholder for filing her complaint with the SDHR. Matter of Delkap Management, Inc. v. New York State Division of Human Rights, 2016 App. Div. LEXIS 7920, 2016 N.Y. Slip Op. 8073 (2d Dep’t Nov. 30, 2016).
The complaining party in this case has resided in the Cooperative since 1988. She “was diagnosed with rheumatoid arthritis in 2007, which makes walking difficult, as well as with supraventricular tachycardia and cardiac arrhythmia in 2008, which cause palpitations, lightheadedness, and sleeplessness.” In 2010, the complainant’s daughter moved into the apartment together with her dog. Two weeks later, the complainant “requested that the Board provide her a reasonable accommodation by permitting her to keep the dog in her apartment due to a disability.” At this time, the complainant already had a disability sticker on her vehicle and the Board had provided her with a parking space close to her apartment.
The Board advised the complainant to submit a doctor’s note about her disability to the Board and the management company, which she did. According to the court, the Board and management company “subsequently refused to consider the complainant’s request for a reasonable accommodation, directed her to remove the dog, and fined her $740….” The complainant was advised that she would be subject to eviction if she did not remove the dog, and an eviction proceeding was later commenced. In addition, the complainant’s parking privileges were revoked, though they were reinstated nine days later.
The complainant then filed a charge with the SDHR alleging discrimination based on disability and retaliation. At an administrative hearing, the complainant provided evidence contending that her medical condition had improved because the dog’s presence alleviated stress and kept her active. Subsequently, the Cooperative again demanded that the complainant immediately remove the dog from her apartment, allegedly based on an erroneous belief that the administrative charge had been dismissed. At this point, the complainant moved out of the apartment.
The SDHR found that the Cooperative “had discriminated against the complainant in the terms, conditions, and privileges of 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.” In addition, the Cooperative and managing agent were found to have “retaliated against the complainant for opposing the discrimination and filing a complaint with the SDHR.” As remedies, the SDHR awarded $5,000 in compensatory damages for mental anguish and $10,000 punitive damages, assessed $5,000 civil penalties against the Cooperative and the managing agent payable to the State, and directed the Cooperative “to create and implement standard policies and procedures to evaluate shareholders’ requests for reasonable accommodations and to develop and implement training to prevent unlawful discrimination.”
The Cooperative and managing agent sought judicial review of the SDHR’s decision. With respect to the finding of disability discrimination, the court observed that “[t]o establish that a violation of the Human Rights Law has occurred and that a reasonable accommodation should have been made, the complainant was required to establish that she is disabled, that she is otherwise qualified for the tenancy, and 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.” Here, “the complainant demonstrated that she was disabled and was a shareholder in the Coop. She also submitted evidence that the dog helped her with her symptoms by easing her stress and causing her to be more active. Nonetheless, the complainant failed to present medical or psychological evidence sufficient to establish that the dog was actually necessary in order for her to enjoy the apartment. Notably, the complainant had resided in the apartment for more than 20 years without the dog. Moreover, the complainant was diagnosed with her disability several years prior to the dog being brought to the apartment by complainant’s daughter when she moved in with the complainant. The dog was present in the apartment for only two weeks before the complainant asked the Board for a reasonable accommodation. Accordingly, the SDHR’s determination of discrimination based on her disability was not supported by substantial evidence.”
Although the court found that the Board had not discriminated against the tenant-shareholder by rejecting her request to keep the dog, the court upheld the SDHR’s finding that the Board and managing agent retaliated against her for filing her complaint with the SDHR, which is an independent violation of the anti-discrimination laws. Here, the record reflected that complainant had filed her complaint with the SDHR, that the board and managing agent were aware of this fact, and there was a causal connection between this protected activity and adverse actions against the complainant, which included taking away her parking space (causing her to be unable to leave her apartment for nine days), bringing eviction proceedings against her, and ordering her to immediately remove the dog from her apartment.
Regarding the remedy, the court found that the SDHR had properly awarded compensatory and punitive damages and civil penalties, but held that the compensatory and punitive damages should be reduced to $2,500 each and the civil penalty to $2,000.
This case is a reminder that cooperatives and other landlords should consult with counsel immediately if a shareholder brings an animal into the building in breach of a lease or house rules, or seeks to be allowed to have an animal as a reasonable accommodation. In addition to advising on whether the cooperative or landlord has grounds to dispute a resident’s claim of disability or need for a service animal, counsel can assist in avoiding any action that could be characterized as retaliation against the resident for his or her legally protected conduct in seeking a reasonable accommodation or filing a complaint.