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Court Excludes Tenant’s Medical Expert’s Testimony As Too Speculative, Undermining Claim For Service Dog As Accommodation

We have previously reported on the increasing number of disputes involving tenants’ claims that they are entitled to have otherwise-prohibited pets in their apartments because the pets provide support for an emotional disability. (For previous discussion of this subject, please see the February 2014 issue of this Client Advisory.)  Most disputes over pets harbored in no-pet buildings often arise in the context of eviction proceedings, but an increasing number of them arise in the context of discrimination litigation.  New York State Division of Human Rights v. 111 East 88th Partners, NYLJ 1202670317446 (Sup. Ct. N.Y. Co. Sept. 5, 2014), is an example


In this case, the landlord learned that the tenant had adopted a dog in violation of a no-pet clause in the lease, and served a notice of termination.  In response, the tenant filed an administrative complaint of disability discrimination in violation of federal and state law.  The landlord then commenced a holdover eviction proceeding in Housing Court, but the Housing Court stayed the case until the proceedings before the New York State Division of Human Rights matter were resolved.  The tenant was thus able to keep both his apartment and the dog until the administrative process concluded.  Often, as here, that takes a considerable length of time.


The Division of Human Rights found probable cause of discrimination and filed a court action seeking damages for the tenant.  As the case was approaching trial, the landlord moved to preclude any testimony supporting a claim that the tenant should be permitted to keep his dog as a reasonable accommodation under the discrimination laws.  The landlord argued that while the tenant had been diagnosed with depression qualifying as a disability as of the time he acquired the dog, since then the tenant’s psychotherapist had updated his diagnosis and had testified that the tenant no longer suffered from a diagnosable mental health disorder.  The psychotherapist merely opined that if the tenant were no longer allowed to keep the dog, he might again experience symptoms of depression.  The landlord urged that based on this medical testimony, the tenant’s claim that he needed the reasonable accommodation of a therapy dog was too speculative.


The court agreed and barred any testimony or evidence concerning the tenant’s alleged need for a service dog at the trial, thus undermining the case for disability discrimination. The court acknowledged that New York’s definition of “disability” includes not only an “impairment” but also “a record of impairment.”  However, the court held, the Human Rights Law requires that reasonable accommodations be provided to individuals having a current disability.  Here, the tenant had a record of prior disability but could not demonstrate a current impairment or provide non-speculative evidence as to when he might again experience symptoms or their severity.  Thus, he was unable to demonstrate that a service dog was currently “necessary for the enjoyment of the apartment” as required to demonstrate an entitlement to reasonable accommodation requested.