Richard Siegler in Co-op/Condo Buyers
You needn't disclose a disability at your co-op interview, and you can't be penalized for seeking reasonable accommodations for it. So ruled a New York State court in the 2006 case Hirschmann v. Hassapoyannes.
Merle Hirschmann owned apartment 18J in the co-op building at 201 East 66th Street, Manhattan. In April 2004, he agreed to sell the unit to Constantine Hassapoyannes for $265,000, with a closing set for June 8, 2004. Hassapoyannes wanted the apartment because of its proximity to Memorial Sloan Kettering Hospital, where he had been regularly receiving cancer treatments.
Initially, the board of 20166 Tenants Corp. approved the sale. But on the day of the closing, Hassapoyannes asked Jon Schechter, the managing agent for the building, if he could install a washer/dryer in the apartment, as a reasonable accommodation for incontinence from cancer treatment that necessitated frequent laundering of bed linens and underwear. Schechter contacted one of the board-member to discuss the matter, and the closing was delayed. Ultimately, the board withdrew its approval of Hassapoyannes' request to purchase the apartment.
Hassapoyannes contended that the board’s decision was unlawful, because it was based upon his revelation of the disability and his need for a reasonable accommodation. The board in turn told the court that it had a legitimate non-discriminatory reason – that Hassapoyannes was untruthful at his interview when he said that he understood and had no problem with the co-op’s rules, which included a prohibition on the installation of washing machines in individual apartments (notwithstanding that some apartments did have them).
The Fair Housing Act prohibits denying a dwelling to any person because of a handicap. That includes co-op apartments. Discrimination under the act includes the failure or 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.” The court said that reasonable accommodations might, in some cases, excuse actions that would otherwise constitute a violation of a lease or cooperative rules.
The court also noted that New York State and City human-rights laws prohibit an owner of a housing accommodation from making “any record or inquiry in connection with the prospective purchase, rental, or lease of such a housing accommodation which expresses, directly, or indirectly, any limitation, specification, or discrimination as to … disability.”
The board contended it did not withdraw its approval of the sale because of Hassapoyannes’ disability, or because he had requested a reasonable accommodation. Rather, the board claimed it acted based upon what it perceived as Hassapoyannes’ lack of veracity at his interview. Further, the board contended that, in light of its rule prohibiting washing machines in individual apartments (although some apartments did indeed have them), it was Hassapoyannes’ responsibility to raise the issue with the co-op at the interview.
The court said that, in general, the fair housing regulations prohibit making an inquiry regarding whether a person has a disability or inquiring as to the nature or severity of that disability. If the co-op board may not inquire about a disability, the court concluded that it should not be permitted to penalize a prospective purchaser for failing to volunteer information about that disability, as that would defeat the purpose and policy of the law,
The co-op also argued that inquiries were permitted where the information was necessary for a legitimate purpose, and that, in light of the potential plumbing problems associated with the installation of washing machines, it was necessary for the co-op board to know that Hassapoyannes would request a reasonable accommodation of a washer/dryer in his apartment. The court replied that Hassapoyannes was not questioning the validity of the co-op’s rule. He also had not questioned the rule that before permission to install a washer/dryer was granted, installation plans for the would have to be reviewed by appropriate experts.
In the court’s view, the co-op flawed in reasoning that Hassapoyannes was untruthful based upon his failure to disclose his disability until after his interview – even though the law protected him from being compelled to do so. The co-op’s speculation – that Hassapoyannes would install an illegal washing machine – was undercut by his seeking an accommodation to install a washer/dryer before closing.
The court concluded that Hassapoyannes’s failure to come forward with information concerning his need for a reasonable accommodation at the interview did not constitute a valid basis for withdrawing approval of his purchase application. The court directed the board to reinstate its approval of his application to purchase Apartment 18J and to permit the sale to go forward.
Richard Siegler is a partner at Stroock & Stroock & Lavan.
Adapted from Habitat April 2006 and October 2007. For the complete article and more, join our Archive >>
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