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Perspectives

Court of Appeals Reinstates Human Rights Division’s Decision That Cooperative Discriminated by Denying Request for Service Dog

Recent years have seen an increasing trend in which tenants, including tenant-shareholders in cooperatives, assert the right to have a service animal in their apartment as an accommodation for a physical and/or mental disability of the tenant, even in buildings that otherwise prohibit animals.  A cooperative’s or other landlord’s refusal to allow the service animal as a reasonable accommodation can lead to private and/or governmental litigation asserting violation of the federal, state, or city civil rights and human rights laws.

The March 26, 2019 decision of the Court of Appeals – New York’s highest court – in Matter of Delkap Management, Inc. v. New York State Division of Human Rights, 2019 N.Y. LEXIS 616, 2019 N.Y. Slip Op. 2660 (2019), is the most recent example.  A tenant-shareholder in a “no dogs” Cooperative requested permission to have a service dog as a reasonable accommodation for disabilities caused by arthritis and heart problems.  She submitted a letter from her treating physician supporting the request.  The Board denied permission for the service dog, even though it had earlier granted another accommodation, a parking spot close to the building, recognizing the disability.  The Cooperative then notified the shareholder that if she did not remove the dog she would be evicted, and temporarily rescinded the parking accommodation.

The State Division of Human Rights found that the Cooperative and its management company had discriminated against the tenant-shareholder by denying the reasonable accommodation, and also unlawfully retaliated against her for requesting it. The relief awarded included $5,000 in compensatory damages, $10,000 in punitive damages, $5,000 penalties against the Cooperative and the management company, and mandatory training requirements for their personnel.  On appeal, the Appellate Division sustained the agency’s finding of retaliation but annulled the finding of disability discrimination, holding that “the complainant failed to present medical or psychological evidence sufficient to demonstrate that the dog was actually necessary in order for her to enjoy the apartment” given that she had lived there for 20 years without the dog and the dog was brought into the apartment by the complainant’s daughter.

On further appeal, however, the Court of Appeals held by a 5-to-2 vote that “[t]he Appellate Division erroneously set aside a portion of the agency’s determination” and confirmed the Human Rights Division’s decision in full, including the finding of disability-based discrimination as well as the penalties imposed.