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Habitat Magazine July/August 2020 free digital issue

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ARCHIVE ARTICLE

Undue Hardship

A recent Nassau County case, Dorsey v. Hawthorne Garden Owners Corp, held that a co-op was not required to incur unreasonable expenses merely because a shareholder alleges a disability, which makes entering and exiting an apartment house difficult. The court considered what was meant by the Americans with Disabilities Act (ADA) standard of a “reasonable accommodation.”

Dorsey owned co-op apartment shares in the defendant’s co-op under the terms of a propriety lease between the co-op and Dorsey in the two-story brick building located at 159 Smith Street, Freeport, New York. Hawthorne was a co-op that owned property consisting of seven attached two-story buildings consisting of 78 units. Another defendant, Dorothy Thomas, was the president of the co-op.

Dorsey alleged in her complaint that she was disabled within the meaning of the ADA and could not use her legs, but had to use a wheelchair. She alleged that the steps from the first floor of the building to the common area and the steps down to the public sidewalk were not wheelchair-accessible and that, therefore, her health and safety were in danger in case of emergency.

Although she had requested that the co-op install a handicap-accessible entrance and exit to the building since October 1996, it had refused to do so. She argued that Hawthorne was, therefore, in violation of the Federal Housing Law and the New York State Uniform Fire Prevention and Building Code. Dorsey had brought this action for a permanent mandatory injunction, compelling defendants to construct and install a handicap accessible ramp or lift system under the Fair Housing Act or the New York State Uniform Fire Prevention and Building Code for Dorsey and others who used a wheelchair in entering or exiting the premises.

On a motion by the defendants for summary judgment, the defendants made a prima facie case by the pleadings, their attorneys’ affirmation setting forth the applicable law on the subject matter, the affidavit of Victor Dadras, the defendants’ architect, and certain attachments, particularly one listing the statement of revenues, expenses, and budget for five years ending April 30 of Hawthorne. That document showed that the defendants were not legally obligated to construct or install a handicap–accessible entrance to the building under the circumstances of this case.

42 USCA, Section 3604(f)(2) of the Fair Housing Act made 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 or facilities in connection with such dwelling, because of a handicap of (A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person.”

42 USCA, Section 3604(f)(3)(B) further makes unlawful “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”

In an analogous case, where the plaintiffs contended that the defendant’s refusal to make the building entrance accessible to wheelchairs constituted a failure to make a “reasonable accommodation” in violation of the above-quoted provisions, the court, in dismissing plaintiffs’ Fair Housing Act claims, stated: “[t]he plain language of the statute defines this requirement in terms of reasonable accommodations in ‘rules, policies, practices, or services,’ 42 U.S.C. §3604(f)(3)(B) and, by contrast with §3604(f)(2), notably fails to mention ‘facilities.’ To undertake to construct an entirely new facility in an existing building does not, under these circumstances, qualify as an ‘accommodation’ of a ‘rule, policy, practice or service,’ when the term ‘construction’ is nowhere to be found and the term ‘facility’ is excluded.”
Moreover, even if one were to assume that Section 3604(f) could in some circumstances be read to require a landlord to undertake new construction, such accommodation must still be “reasonable” and therefore not “pose an undue hardship or a substantial burden,” (“[a]lthough the reasonable accommodation provision can and often will require a landlord to incur some expense, it does not require adjustments or modifications to existing programs that would be substantial, or would fundamentally alter the nature of the program, or pose an undue hardship or substantial burden”).
Here, installation of an entrance ramp at a minimum cost of $25,000 would not constitute a “reasonable” accommodation, particularly in light of unrebutted evidence that defendant has incurred financial losses in the operation of the building over the last three years.” An accommodation for handicapped persons is unreasonable and thus not required by the Fair Housing Amendments Act if it either imposes undue financial or administrative burdens or requires fundamental alterations in the nature of the program.

The Federal Second Circuit Court of Appeals, in another case, held that a co-op can only be required to accommodate a handicapped person “provided such accommodations do not pose an undue hardship or a substantial burden.” In addition, in order for a co-op to be required to undertake new construction, such accommodation must be “reasonable” and, therefore, not “pose an undue hardship or a substantial burden.”

The court said that the ADA did not apply to co-op buildings because they did not constitute “public accommodations” subject to the ADA’s prohibition on discrimination: In any event, the court said that the analysis of whether an accommodation is reasonable, even if it were a “public accommodation,” would be the same under both the Fair Housing Act and the ADA and would apply to both.

Hawthorne had retained an expert architect who had done a feasibility assessment as to constructing a ramp, elevator, or platform lift and he had determined that with respect to this building, such was not feasible. The affidavit of architect Victor Dadras showed that the co-op could not reasonably construct a handicap-accessible entrance to the building where Dorsey resided. The court concluded that, because of the design of the front entrance of the building and space constraints, the entrance could not reasonably be modified to make it handicap-accessible.

Further, even if a ramp could be constructed, it would create an undue hardship on the building. The co-op would have had to take over the apartments of other shareholders and undertake major construction, costing a prohibitive amount of money. Indeed, Hawthorne’s statement of revenues and expenses annexed to the architect’s affidavit showed that the co-op had been running a deficit for the past five years (i.e., 1997-2001) and the budget for 2002 indicated that the co-op was required to raise maintenance fees because of a projected deficit in 2002 of $45,661.

Balancing the burdens to accommodate against the benefits to the plaintiff as proposed in a previous case, the court said that it would clearly be an undue burden on the co-op and the affected shareholder whose apartment would be taken from him. In the court’s view, an accommodation should not “extend a preference to handicapped residents [relative to other residents] as opposed to affording them equal opportunity.” Hence, the cost of purchasing those shares and undertaking major construction would be a prohibitive, undue burden.

Although Dorsey had also pleaded in her complaint a violation of the New York State Uniform Fire Prevention and Building Code Act, that statute was concerned with construction standards and was not applicable to Dorsey’s claims and the relief requested by her. A case decided earlier dealing with the same issue stated:

“It seems obvious that the Construction Code was not formulated for the special benefit of a particular class, but rather was designed to provide reasonably uniform standards for construction and construction material and reasonable safeguards generally for the safety, health and welfare of the occupants of buildings. No legislative intent is apparent to create a statutory cause of action in favor of any member of the public who may be injured by a violation of the Construction Code. No duty of compliance is expressly imposed on anyone.”

The court said that the burden fell on the opposing party to come forward and lay bare her proof in evidentiary form and raise an issue of fact to send the case for trial. Here, in opposition to defendants’ motion for summary judgment, Dorsey submitted her unsworn conclusory statement dated December 15, 2001, annexing several exhibits. Namely, an unsworn proposal from Day Accessibility Mobility Solutions Inc., an unsworn accessibility study for Hawthorne, showing it could cost $56,292.50 to make the building handicapped accessible by architects David & Swift, with attachments and an unsworn letter from the mayor of the incorporated village of Freeport, William F. Glacken, with attachments.

Unverified proposals, unsworn expert’s opinions, and an unsworn letter are inadmissible as evidence and do not create issues of fact. Dorsey had failed to demonstrate an acceptable excuse for her failure to meet a strict requirement of tender in admissible form. Thus, the court said that the only opposition submitted by Dorsey was incompetent.

Moreover, the reply affidavit of architect Victor Dadras sworn to January 31, 2002 showed that Swift’s proposal was not reasonably feasible for this type building without taking space from adjoining and existing residential units, including major construction work on the vestibule and front entrance at a cost much greater than $56,292.50 as alleged by Swift. Thus, in the court’s view, Dorsey was unable to show a violation of law by the defendants. Accordingly, summary judgment was granted in favor of the defendants, dismissing Dorsey’s complaint as having no merit.

Comment: Contrary to popular belief, neither an existing co-op nor a condo is required to incur unreasonable expenditures to make its building handicapped-accessible. Case law reveals that accommodations for handicapped persons are not required if they impose undue financial burdens or require fundamental alterations. Of course, newly constructed buildings are required to provide handicapped accessible facilities since such facilities can easily be accommodated within a new construction budget.

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