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In re Steinberg-Fisher

Supreme Court of New York, Second Department

April 12, 2017

In the Matter of Arlene Steinberg-Fisher, petitioner-respondent,
v.
North Shore Towers Apartments, Inc., et al., appellants, et al., respondent. Index No. 7466/14

          Errol A. Brett, Floral Park, NY, for appellant North Shore Towers Apartments, Inc.

          Caroline J. Downey, Bronx, NY (Marilyn Balcacer of counsel), for appellant New York State Division of Human Rights.

          Taylor, Eldridge & Endres, P.C., Smithtown, NY (J. David Eldridge of counsel), for petitioner-respondent.

          MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In a proceeding pursuant to Executive Law § 298 and CPLR article 78 to review a determination of the New York State Division of Human Rights dated March 12, 2014, dismissing the petitioner's administrative complaint upon a finding of no probable cause to believe that North Shore Towers Apartments, Inc., engaged in an unlawful discriminatory practice, North Shore Towers Apartments, Inc., and the New York State Division of Human Rights separately appeal, as limited by their respective briefs, from so much of a judgment of the Supreme Court, Queens County (Raffaele, J.), dated August 21, 2014, as granted the petition and remitted the proceeding to the New York State Division of Human Rights for further proceedings.

         ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs.

         The petitioner filed a complaint with the New York State Division of Human Rights (hereinafter the Division) against North Shore Towers Apartments, Inc. (hereinafter North Shore), a cooperative apartment building with more than five units, in which she leases an apartment as a shareholder. The petitioner alleged that North Shore discriminated against her by not granting her an accommodation from its rule requiring that before any alterations to an apartment could be made, a shareholder must execute an alteration agreement, providing, inter alia, that all alterations had to be completed within 90 days from the start date, or the shareholder would be subjected to financial penalties. Before filing her complaint with the Division, the petitioner presented North Shore with a detailed letter from her doctor stating that she suffers from attention deficit hyperactivity disorder and a sleep disorder, which prevent her from being able to complete tasks within strict time constraints.

         No one has disputed that the petitioner suffers from a disability within the meaning of Executive Law § 296(18)(2). Nevertheless, the Division dismissed the complaint, finding no probable cause to believe that North Shore engaged in an unlawful discriminatory practice based on the petitioner's disability. The Division found that the petitioner's request for an accommodation was not reasonable because she "refused to agree to any time limitations whatsoever" and "that the renovations in [the petitioner]'s apartment have been ongoing since 2003."

         The petitioner then commenced this proceeding pursuant to Executive Law § 298 and CPLR article 78, seeking review by the Supreme Court of the Division's determination. In a judgment dated August 21, 2014, the court granted the petition, finding the decision of the Division to be arbitrary and capricious, set aside the dismissal of the petitioner's complaint, and remitted the matter to the Division for further proceedings. We affirm insofar as appealed.

         Pursuant to Executive Law § 296(18)(2):

         "It shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right of ownership of or possession of or the right to rent or lease housing accommodations: To refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling, including reasonable modification to common use portions of the dwelling."

         To establish that a violation of the Human Rights Law (Executive Law article 15) occurred and a reasonable accommodation should have been made, the petitioner was required to show that she is disabled, that she is otherwise qualified for the tenancy, that because of her disability an accommodation is necessary in order for her to use and enjoy the apartment, and that the accommodation sought was reasonable (see Matter of Delkap Mgt., Inc. v New York State Div. of Human Rights, 144 A.D.3d 1148, 1150-1151; Matter of Kennedy St. Quad, Ltd. v Nathanson, 62 A.D.3d 879, 880).

         Where, as here, "the [Division] renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis" (Matter of Walker v NYS Div. of Human Rights, 129 A.D.3d 980, 981; see Matter of Sahni v Foster, 145 A.D.3d 733; Matter of Orosz v New York State Div. of Human Rights, 88 A.D.3d 798, 798-799). The Division's determination is "entitled to considerable deference due to its expertise in evaluating discrimination claims" (Matter of Camp v New York State Div. of Human Rights, 300 A.D.2d 481, 482).

         The Supreme Court properly found that the Division's determination of no probable cause was without regard to the facts and was arbitrary and capricious because it lacked a sound basis (see Matter of Mambretti v New York State Div. of Human Rights,129 A.D.3d 1696, 1697; Moore v State Div. of Human Rights,110 A.D.2d 507, 508; Bachman v State Div. of Human Rights, 104 A.D.2d 111, 114-115). The Division's factual findings that the petitioner refused to agree to any time limitation and that the renovations have been ongoing since 2003 are not supported by the record. There was evidence that an attorney for the petitioner sent the managing agent for North Shore a letter proposing that the petitioner be permitted three 90-day periods to complete the alterations, subject to possible force majeure extensions. The petitioner also submitted evidence that North Shore rejected her offer out of hand and that it required that the alteration agreement "be executed as presented." Notably, in her ...


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