Disabled seniors

[Shelley]

I have lived in my apartment for 27 years. My parents also live here. Recently they both became mobility impaired i.e. disabled. I am an original tenant and we rent our apartment from the sponsor. Recently I requested a reasonable accomodation for the disabled,as per the Fair Housing Act. The coop board denied my request. I filed a complaint with HUD - it was sent to NYS Division of Human Rights. Currently the Div of HR is completing their report. In the meantime, the coop board (not my landlord) has threatened eviction over an awning that was installed before we moved here. I reported this to NYS Div of HR. Then the coop reported that I abandoned a car in a CVS parking lot (this lot is not theirs and they have no jurisdiction). I did not abandon a car, it was designated as a charitable donation and the charity picked it up. In their report they actually said they were reporting this to HUD. I filed a complaint with NYS Div of HR for harrassment and retaliation for filing a complaint with a governmental agency and told NYDHR that the fact that the coop threatened to report a car in the CVS lot to HUD proved that the harrassment and retaliation by the coop was directly linked to my complaint against them with HUD. I know these people will never stop harassing me. What can I do about this? It seems to me they are delibertly violating the law. I am so exhausted. I am the sole caretaker for my parents. Eviction would kill them. I am so scared and tired that I can't even cry. Please give me some suggestions on what to do.

[Aubergine]

Have you been served with a notice to cure or a notice of petition?

[Shelley]

No. They sent a notice of default and then after the investigators from NYSDHR came to do a field visit thye sent a notice of termination.

[Shelley]

One other thing. I called the NYS Attorney General's Real Estate Division. The AAG told me that I am a "protected tenant" under 352eee and they cannot evict me, especially for something as stupid as an awning that I didn't install in the first place. But what I am concerned about is the level of abuse they are subjecting me to. They don't seem to care that it is against the law to harass and retaliate against a person who files a good faith complaint with a governmental agency. I am afraid of what they will do next.

[Aubergine]

If you are taken to court over the awning or some other reason, you should be aware of the defense of "retaliatory eviction." Real Property Law section 223-b (online at http://caselaw.lp.findlaw.com/nycodes/c99/a7.html ) prohibits a LL from serving a notice to quit or commencing an eviction proceeding against a tenant in retaliation for:

"a. A good faith complaint, by or in behalf of the tenant, to a governmental authority of the landlord`s alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; or

b. Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement, under section two hundred thirty-five-b of this chapter, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or first degree; or

c. The tenant`s participation in the activities of a tenant`s organization."

If you are served with court papers, you should try to get a lawyer to represent you. Find legal services offices that serve your area at www.lawhelp.org/ny or if you find out you do not qualify for or cannot obtain free legal services, contact a private attorney who represents residential tenants for a living.

[Shelley]

Thank you very much. That information was very helpful.

[Anna]

You lived there 27 years & are protected by GBL 352eee (isn't that 352eeee?): so you are rent stabilized and choose not to purchase when your bldg was converted to co-op.

Why are you in contact with the coop board?
Unless the co-op corporation is the owner of those shares, they cannot evict you: they are not your landlord. Whoever owns the shares to your apt is your LL, probably the sponsor of the conversion or an investor.
Only your LL could move you to another apt.

Also: who is/are the actual tenants? you AND your parents, just you, just your parents?

Here's an article and the decision re moving from one apt to another to accommodate a disability:

http://www.knowledgeplex.org/news/118587.html

It was also featured in

REALTY LAW DIGEST
Scott E. Mollen
New York Law Journal
August 3, 2005

Owner May Be Required by Fair Housing Act to Allow Disabled Rent-Stabilized Tenant to Move to Lower-Floor Apartment

A tenant commenced an action, alleging that her landlord failed to accommodate her disability by refusing to permit her to move to a vacate lower-level unit in her rent-stabilized apartment building at her current rent, in violation of Title VII of the Civil Rights Act of 1968, also known as the Fair Housing Act (FHA), as amended by the Fair Housing Amendments Act of 1988, 42 USC 3601 et seq. (FHAA). The tenant claimed that if she moved, her current unit would be subject to a significant vacancy increase under New York's Rent Stabilization Law (RSL) and such increase would offset any financial burden to the landlord from the proposed accommodation. The landlord moved to dismiss, arguing that the requested accommodation is not contemplated under the FHAA. The court denied the landlord's motion to dismiss and determined to hold a hearing as to the "reasonableness" of the tenant's requested accommodation.

The tenant is 66 years old and had lived at the apartment building for about 24 years. The building is a four-story walk-up. The tenant is a cancer patient who underwent several surgeries in 2004. The tenant claimed as a result of her surgeries, climbing stairs to get to her apartment which is located on the top floor is "very painful and stressful." The tenant claimed that she only leaves her apartment when necessary and is dependent on the assistance of neighbors. The tenant has very modest economic resources.

In the early summer of 2004, an apartment on the second floor of her building became vacant and the tenant asked if she could move into such apartment. The tenant claimed that the owner did not respond to her request. Thereafter, a rent-stabilized apartment on the first floor became vacant. The tenant claimed that her lawyers transmitted a letter of understanding to the landlord setting forth an agreement that the tenant would move into the first-floor apartment, but that she receive no response. The landlord claimed that they had offered a lease to the tenant at about $1,000 per month, which represents the unit's former rent, $833.58, plus a 20 percent vacancy increase permitted under the RSL. The tenant's current rent is $820.64 per month.

The court had previously granted a Temporary Restraining Order (TRO) that enjoined the landlord from leasing vacant apartments on the first and second floors. The landlord moved to dismiss, arguing that they did not discriminate because they offered to rent to the tenant, the second-floor apartment at its legal stabilized rent. The tenant had filed an amended complaint which she additionally alleged that the landlord's refusal to provide her with a vacant apartment "exploited her disability in violation of 42 USC 3604(f)(1)(A)."

At a hearing, the landlord argued that it had complied with the FHA by offering an apartment on the ground floor at the rent permissible under state law. The tenant argued that the FHA's "reasonable accommodation provision required her landlord to offer the unit ... at her current rent." The tenant reasoned that there would be little financial burden to the landlord, once the tenant moved into the ground-floor apartment the landlord could raise the rent on the tenant's former unit. With the agreement of the parties, the TRO had been lifted with respect to the second-floor apartment, but maintained with respect to the first-floor apartment.

The court explained that the FHAA extended the FHA's principle of equal opportunity in housing "to individuals with handicaps, making it unlawful to 'discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection with such dwelling, because of a handicap of that person."

The court noted that whether a requested accommodation is required under the FHAA, is "highly fact-specific, requiring case-by-case determination." "A defendant must incur reasonable costs and take modest, affirmative steps to accommodate the handicapped as long as the accommodations sought do not pose an undue hardship or a substantial burden."

The court then explained that:

To make out a claim of discrimination based on failure to reasonably accommodate, a plaintiff must demonstrate that: (1) he suffers from a handicap as defined by the FHAA; (2) defendants knew or reasonably should have known of the plaintiff's handicap; (3) accommodation of the handicap "may be necessary" to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation.

Essentially, the landlord argued that the tenant's request to move into the ground-floor apartment at her current rent, rather than the unit's maximum legal rent, did not come within the FHAA's concept of accommodation because the tenant sought to accommodate her poverty rather than her disability and offering the apartment at its maximum permissible legal rent under the state's disability-neutral rent-stabilization laws fulfills a landlord's obligation under the FHAA. The court also addressed the issue of whether the proposed "apartment swap" is an accommodation to the tenant's "dwelling" as envisioned under the FHAA.

After reviewing the statutory language and decisional precedent, the court found that the requested accommodation "would reduce the barriers to [tenant's] isolation from her community" and further the "spirit and purpose of the FHAA." Moreover, courts outside the U.S. Court of Appeals for the Second Circuit have determined that a "request to transfer to other units within an apartment building is cognizable under the FHAA."

Additionally, the court held that "consistent with the statutory definition of 'dwelling,' the generous construction afforded to the FHAA, and case law wherein courts considered similar accommodation requests," the tenant's request to move to a lower-floor unit within her building "potentially affords her the opportunity to use and enjoy her 'dwelling' within the meaning of the FHAA."

With respect to the owner's contentions that the tenant must assume the costs associated with her proposed accommodation and the landlord has complied with the FHAA by offering the ground-floor apartment at its maximum legal rent, the court explained that it is the "housing provider, and not the disabled individual who is potentially required to assume the costs of a proposed accommodation," i.e., under the FHAA, a landlord may be "required to incur reasonable costs to accommodate a tenant's handicap, provided such accommodations do not pose an undue hardship or a substantial burden."

The court said that the tenant's request for an accommodation for her disability at no additional rental expense, is "exactly the type of accommodation that falls within the purview of the FHAA."

The landlord had argued that since the RSL and regulations affect handicapped and non-handicapped residents equally, the tenant is not entitled to a waiver of the vacancy increase to which the landlord would be entitled under the RSL.

By offering the ground floor apartment at its maximum legal rent, the landlord believed that it had fulfilled the FHAA's mandate to provide an "equal opportunity" to the tenant by putting her on the "same footing as a non-disabled individual." The landlord believed that giving the tenant the ground-floor apartment at less than the legal rate would provide the tenant with a "preference, rather than an equal opportunity, to use and enjoy that apartment."

The court said that the landlord's position was "largely rejected" in U.S. Airways v. Barnett,535 US 391 (2002). Therein, the court held that "the simple fact that an accommodation would provide a 'preference'--in a sense that it would permit the worker with a disability to violate a rule that others must obey--cannot, in and of itself, automatically show that the accommodation is not 'reasonable.'"

The court stated that the mere fact that the tenant sought a preference not provided to non-handicapped individuals "does not preclude this court from proceeding to an inquiry into the reasonableness" of the tenant's request. The court noted that the landlord was not mandated under the RSL to charge the tenant the maximum legal rent. The landlord argued that any purported profit from re-renting the tenant's current apartment is illusory because, unlike the ground-floor apartment, the tenant's current unit requires extensive renovations and because four floor walk-ups are more difficult to rent than first-floor units.

The court then stated that "[a]lthough the defendants raise legitimate concerns that [tenant's] accommodation is unduly burdensome, the court is currently presented with the limited issue of whether the plaintiff's request is an 'accommodation' within the meaning of the FHAA." Since the request falls within the FHAA's concept of accommodation, the court held that it may proceed to an inquiry into whether the accommodation would be reasonable.

Accordingly, the court denied the landlord's motion to dismiss and determined that it would hold a hearing on the issue of the reasonableness of the tenant's request and whether there is an undue burden on the landlord. The court directed that the hearing address the vacancy increase that the landlord would receive from the tenant's current apartment, the "rentability" of the ground-floor unit over the current apartment, the maximum legal rent for the ground-floor rent and the administrative burden, if any, that the landlord would incur in providing the tenant with a preferential rent and any other issues relating to the reasonableness of the tenant's request.

Bentley v. Peace and Quiet Realty 2 LLC, New York Law Journal, May 18, 2005, p. 23, col. 1, U.S.D.C., EDNY, Garaufis, J.

[Shelley]

You lived there 27 years & are protected by GBL 352eee (isn't that 352eeee?):
Yes it is now 352eeee.
so you are rent stabilized and choose not to purchase when your bldg was converted to co-op.
We are not technically rent stabilized as I understand it. However, we did win an unconscionable rent increase complaint and the landlord is limited to only a maximum of a 10% rent increase each year. And, believe me he takes it to the max.

Why are you in contact with the coop board?
I am not in contact with the board. I filed a discrimination complaint for their refusal of a reasonable request for accomodation of the disabled.

Unless the co-op corporation is the owner of those shares, they cannot evict you: they are not your landlord. Whoever owns the shares to your apt is your LL, probably the sponsor of the conversion or an investor.

Yes that is correct the sponsor owns the shares. But the coop is moving to evict the landlord, who by the way owns other units.
The AAG said that will never happen. But I don't know....

Only your LL could move you to another apt.
We don't want to move to another apartment. We are asking for a key to a gate that will allow a closer distance off and on the property from the front entrance of our building. Right now we have to travel a very long distance to the back of the building and up a hill to get off and on the property. My parents are virtual shut ins because of this.

Also: who is/are the actual tenants? you AND your parents, just you, just your parents?
Actual tenants are my parents, I am their caretaker and have power of attorney.

[Shelley]

If we should be denied by NYSDHR, although it would be really crazy to deny our extremely reasonable request, does anyone know how we would appeal that decision?

[Aubergine]

See the NYS Division of Human Rights web page, "How to File a Complaint" (http://www.dhr.state.ny.us/complaints.html):

To file a complaint, please contact the nearest Regional Office. You can also request a flyer for more information on filing a complaint, or you can obtain material by completing the form below.

IF YOU FEEL YOU HAVE BEEN DISCRIMINATED
AGAINST . . .

. . . because of your race, creed, color, national origin, sexual orientation, predisposing genetic characteristics, military status, sex, age, marital status, disability, predisposing genetic characteristics or prior arrest or conviction record, or if you believe you have been retaliated against for opposing unlawful discriminatory practices, you may be able to file a complaint with the State Division of Human Rights. The New York State Human Rights Law forbids discrimination in employment, apprenticeship and training; purchase and rental of housing and commercial space; places of public accommodation, resort and amusement; non-sectarian; tax-exempt educational institutions; and all credit transactions.

HOW TO FILE A COMPLAINT:

Contact the nearest regional office of the Division of Human Rights. There is no filing fee. You may retain private counsel, but it is not necessary. You may file a complaint within one year of the unlawful discriminatory act. When you do:

1. Have names, titles, addresses, and phone numbers of all persons alleged to have discriminated against you.

2. Bring along any documentation that supports the allegation made in your complaint.

3. 3. If possible, supply the correct names and addresses of any witnesses to the alleged act(s) of discrimination.

INVESTIGATIVE PROCEDURE:

The regional office will:

1. Receive your complaint of discrimination and notify the respondent(s).

(A respondent is a person or entity about whose action you complain). If you are unable to file a complaint in person, call the office, explain the details, and request that a complaint be prepared and forwarded to you for review and notarized signature.

2. Resolve questionable issues of jurisdiction.

3. If you so request, the Division will forward a copy of your complaint to the Equal Employment Opportunity Commission (EEOC) or the U.S. Department of Housing and Urban Development (HUD).

4. Investigate through appropriate methods (written inquiry, field investigation, investigatory conference, etc.)

5. If appropriate, the Division will attempt to settle the matter through conciliation.

6. If it cannot, the Division will determine whether or not there is probable cause to believe that an act of discrimination has occurred, and will notify you and the respondent(s) in writing.

PROCEDURE FOLLOWING AN INVESTIGATION:

If there is a finding of no probable cause, or lack of jurisdiction, the complainant may appeal to the State Supreme Court within 60 days.

If the determination is one of probable cause, the regional office attempts conciliation as follows:

1. Prepares proposed terms of conciliation

2. If the respondent accepts, the regional office submits an agreement to you. You are allowed up to 15 days to accept or object to the proposed terms of conciliation.

3. If conciliation efforts fail, the case is recommended to public hearing.

PUBLIC HEARING:

1. A Division attorney will represent your case or you may elect to retain outside counsel.

2. A notice of Hearing is issued at least one week in advance. The case may be adjourned only for a good cause.

3. An Administrative Law Judge presides over the hearing. It may last one or more days, not always consecutive.

4. A Proposed Order is prepared and, on request, is sent to the parties for comment.

5. A Commissioner's Order either dismisses the complaint or finds discrimination. In the latter case, it orders the respondent to cease and desist and take appropriate action. The Division may order damages and/or back pay. The Order may be appealed by either party to the State Supreme Court within 60 days.

COMPLIANCE HEARING:

Within one year, the Compliance Investigation Unit checks whether the respondent has complied with the provisions of the Order.

The "appeal to the State Supreme Court" referred to is a proceeding under article 78 of the Civil Practice Law and Rules. Note the very short statute of limitations for bringing such an appeal -- 60 days.

<small>[ November 20, 2005, 09:36 PM: Message edited by: aubergine. ]</small>

[Anna]

" We don't want to move to another apartment. We are asking for a key to a gate that will allow a closer distance off and on the property from the front entrance of our building. Right now we have to travel a very long distance to the back of the building and up a hill to get off and on the property. My parents are virtual shut ins because of this."

If this is your FHAA request for reasonable accommodation for disability, then it certainly seems to me, a reasonable person, that your LL & the co-op board should give you the key & you should win your complaint/lawsuit.

Do/did you have help filing the complaint?
Even if your parents do not quualify for legal representation from the Legal Aid Society (who represented Bentley), they should be eligible for help (but perhaps not representation in court) from another legal services non-profit. Find one here, select both Housing & Disability.

codes: Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act ("FHA"), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. 3601 et seq. ("FHAA").

[Shelley]

I filed the complaint myself on behalf of my father. I have power of attorney. We don't have any representation yet.
Incidently, another resident filed the same complaint on behalf of their mother. She lives in my parents building. But I think their complaint only just got to NRSDHR and I don't know if they will be joined together.

I was wondering if anyone has any suggestions about the harassment and intimidation issue. On Saturday I received a nasty letter from the coop managing agent falsely accusing me of abandoning a car in a parking lot that belongs to CVS. In other words where the car was is none of their business. It has nothing to do with the coop. Further they sent a copy of this note to my landlord about something unrelated to my tenancy. I have permission to park in the CVS lot overnight AND the car was not abandoned it was given as a charitable contribution and had already been taken by the charity when I got the nasty note. What is of interest is this: In the note the managing agent stated, "I have instructed the cooperatives [sic] attorney to make HUD aware of your actions."
That would be laughable since this has nothing to do with HUD, except that I say it shows a consciousness of their retaliatory intentions. This comes after I have already made a complaint that they have harassed and retaliated against me regarding my awning.

Also, how does one file an Article 78 proceeding? Can you direct me to where I can learn about that?

And, thank you so much for everyone's help. This is a real and good education for me.

[Aubergine]

You don't need to start an article 78 proceeding yet, because you haven't lost at the NYSDHR. Cross that bridge when you get to it.

About the issues in your last post, which repeats things that you said in your first post -- try to get legal assistance and if you can't and need other ideas, ask here again. Harrassment in itself is probably not going to be cause for any other relief. You should send additional information to NYSDHR to add to your file.

<small>[ November 21, 2005, 07:42 PM: Message edited by: aubergine. ]</small>

[Downtown]

You had posted earlier that the co op board is trying to evict LL... Also the harrassment.
Should really have an atty....if for nothing more than to write board that harrassing elderly couple with baseless accusations will not be tolerated. Any further harrassment will be legally pursued.
What is the status of board and LL ie: eviction.

[Shelley]

The LL is actually on my side in this. According to the AAG the LL is not going to be evicted and either are we. Nothing has advanced to court yet.