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Co-op Board Bitten After Denying Request for a Service Dog

Ira Brad Matetsky in Legal/Financial on April 11, 2019

New York City

Dog Discrimination
April 11, 2019

Enforcing a no-animals policy, it turns out, is no simple matter. In recent years, a growing number of co-op shareholders and condo unit-owners have asserted their right to have a service or support animal in their apartment as an accommodation for a physical and/or mental disability – even in buildings that prohibit animals. When the board refuses to allow the animal to be present, the resident may bring legal proceedings alleging that the refusal violates the board’s obligation to provide reasonable accommodations to residents with disabilities under federal, state, and/or city civil rights and human rights laws. In several high-profile cases, governmental authorities have also brought lawsuits on behalf of people whose requests for a service dog were refused, sometimes resulting in substantial settlements.

Last month’s decision by the New York State Court of Appeals – the state’s highest court – in Delkap Management, Inc. vs. New York State Division of Human Rights is the most recent example. In this case, a shareholder in a “no-dogs” cooperative requested permission to have a service dog. The shareholder asserted that she needed the dog as a reasonable accommodation for disabilities caused by arthritis and heart problems. She submitted a letter from her physician supporting the request. 

The co-op board denied permission for the service dog, even though it had previously granted a request for another reasonable accommodation – a parking spot close to the building – in recognition of the same disabilities. The board then notified the shareholder that if she did not remove the dog, she would be evicted. The board also temporarily rescinded the parking accommodation. 

The shareholder filed a complaint with the Division of Human Rights, which enforces the state’s anti-discrimination laws. After an investigation, the division found that the co-op board and its management company had discriminated against the shareholder, and, in rescinding the parking spot, they had unlawfully retaliated against her. Such retaliation is an independent violation of human rights laws, whether or not the underlying discrimination complaint is sustained. 

As a remedy, the division awarded the complaining shareholder $5,000 in compensatory damages plus $10,000 in punitive damages. It also imposed $5,000 penalties against the cooperative and the management company, and required mandatory anti-discrimination training for their personnel. 

The cooperative and management company filed an appeal to the Appellate Division of Supreme Court. In a unanimous decision, the Appellate Division sustained the agency’s finding of unlawful retaliation, but it annulled the finding of disability discrimination. The court found 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. 

The Division of Human Rights appealed that decision to the Court of Appeals, which reversed the Appellate Division’s decision on the discrimination claim and confirmed the Human Rights Division’s decision in full. The Court of Appeals’ ruling was consistent with a long line of decisions from that court opining that administrative bodies such as the Division of Human Rights have specialized expertise and that their decisions should ordinarily be respected by the courts.  As a result, the court reinstated the Human Right Division’s finding that the tenant-shareholder was subjected to both disability-based discrimination as well as retaliation, and the full amount of the penalties was imposed. 

This case is a reminder to co-op and condo boards that if a resident’s requested accommodation is denied and governmental agencies become involved, the courts are likely to defer to the governmental agency’s view of the case. That view, quite often, will be that the board is required to allow such accommodations upon any plausible showing that the shareholder is disabled, such as a medical professional’s endorsement of the service-animal request. 

Ira Brad Matetsky is a partner in the Litigation Department and the Cooperative and Condominium Housing Practice Group at the law firm Ganfer Shore Leeds & Zauderer.

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