Opinion
C067-2001.
Decided September 10, 2004.
On March 21, 2001, Board of Managers of Lido Beach Towers Condominium (hereinafter "Plaintiff" or "the Board") commenced an action in the Civil Part of this Court against Ruchama Gamiel (hereinafter "Defendant") for prior unpaid assessments and common charges totaling $3,930.00. Defendant owned and occupied apartment 5AA/6AA of said Condominium as a second residence — her primary residence being in Manhattan. Defendant then counterclaimed for damages for breach of contract, nuisance and negligence for an amount in excess of $100,000.00 as a result of a water leakage problem that is alleged to have caused health problems as well as property damage.
Plaintiff then moved to dismiss Defendant's counterclaims based upon the Board's immunity from suit pursuant to the Lido Beach Towers Condominium By-Laws (hereinafter "the By-laws"), or, in the alternative, to dismiss due to the lapsing of the Statute of Limitations pursuant to New York Civil Practice Law and Rules (hereinafter "CPLR") § 3211(5). Through her new attorney, Defendant cross-moved to increase the ad damnum clauses of the original three counterclaims, and to add two new supplementary counterclaims.
In January 2002, before both sides had finished making their final submissions in connection with their Motions, and in order to have all issues resolved in one forum, Defendant moved for an Order pursuant to CPLR § 325(b) to remove this action from the City Court of the City of Long Beach to the Supreme Court, County of Nassau, State of New York on the ground that the City Court did not have jurisdiction over the amount involved in the counterclaim and for leave pursuant to CPLR § 3025(b) to serve an amended Answer adding two additional counterclaims. In May 2002, Supreme Court Judge Burke denied Defendant's Motion to Remove citing § 208(b) of the Uniform City Court Act which allows counterclaims "for money only, without regard to amount" to be heard in courts of limited jurisdiction. Additionally, Judge Burke severed and denied Defendant's two supplementary counterclaims with leave to commence a separate action in Supreme Court.
In June 2002, this Court was notified that Plaintiff's insurance carrier, Legion Insurance (hereinafter "the insurer"), was in "Rehabilitation/Liquidation," and as a result, all proceedings were stayed as of March 2002. The stay was finally lifted in April 2004 after multiple extensions. On May 30, 2002, while the stay was in effect and without any prior notification to this Court, the parties entered into a Stipulation Agreement wherein Defendant paid Plaintiff all Condominium management fees, assessments and charges to date. It was agreed that said Stipulation Agreement was without prejudice "to Defendant proceeding with her counterclaims . . ., including but not limited to, pursuing her Motion to Amend the Counterclaims." Stipulation Agreement Index No.: C-067/2001, p. 1 of 2, ¶ 5 (May 30, 2002).
On May 14, 2004, a pretrial conference was held with Plaintiff's and Defendant's attorneys. At said conference, it was agreed upon that as Defendant was no longer the owner of Condominium unit 5AA/6AA, the supplementary counterclaim which would require equitable relief would no longer be in issue and that this case can now be resolved in the City Court of the City of Long Beach. Additionally, given that it had been over two years since any papers were submitted by either side and that at the time of the stay, final arguments and submissions were not made resulting in unresolved issues, it was further agreed by both parties and this Court that Defendant would be given an opportunity to supplement her previous papers in connection with the pending motions and cross-motions and Plaintiff would be given a further opportunity to reply.
Presently in this matter, Defendant is represented by Philip A. Greenberg, Esq. and the Liquidation Bureau of the New York State Department of Insurance has assigned James J. Keefe, Esq. to represent Plaintiff.
The only issues before this Court for its determination in this motion are:
(1) whether the City Court of the City of Long Beach has jurisdiction over a counterclaim which seeks an amount in excess of the legislatively established $15,000 limit (Jurisdiction);
(2) whether the Board as a collective unit is immune from suit (Board Immunity);
(3) whether the statute of limitations has elapsed (Statute of Limitations);
(4) whether the ad damnum clause of the pleadings may be amended ( Ad Damnum); and
(5) whether the rule prohibiting pets was discriminatory (Discrimination).All other issues are reserved for trial. JURISDICTION
While at this juncture no objection to jurisdiction has been presented to this Court, the unresolved history surrounding the propriety of courts of limited jurisdiction in hearing counterclaims which demand an amount in excess of the legislatively prescribed ceiling (as determined by the amount demanded in the complaint) suggests the necessity of this inquiry.
The "limitations placed upon the jurisdiction of inferior courts are not upon the theory that they are incapable of dealing with larger sums. Their power ordinarily depends upon the amount claimed in the complaint. If it asks more than the sum prescribed, no jurisdiction attaches." Byrne v. Padden, 248 N.Y. 243, at 247 (1928). The general grant of jurisdiction over common-law actions where the amount demanded in the complaint is within the legislatively established limits carries with it the power to try and render judgment upon any counterclaim that the defendant may plead in her answer to the cause of action stated in the complaint. Howard Iron Works v. Buffalo Elevating Co., 176 N.Y. 1, at 8 (1903). A defendant may interpose
"any defense that he may have to the cause of action stated in the complaint, and if it be a counterclaim exceeding $2,000, he is not forbidden to plead it, even though an affirmative judgment in his favor would result. The power of the court to render the proper judgment is not limited by the amount of the counterclaim, when jurisdiction of the action is once obtained, but the amount demanded in the prayer of the complaint is the sole test upon that question." Howard, 176 N.Y. at 6.
" Howard held that County Court has jurisdiction over a counterclaim in any amount." Marine Midland Bank, N.A. v. Bowker, 89 A.D.2d 194, at 196 (N.Y.App.Div. 3d Dep't. 1982). "After Howard was decided, the New York Constitution was amended to expressly exclude monetary limitations on counterclaims in County Court." Id.
In the matter at hand, Defendant began depositing her common charges and assessments in escrow with her attorney insisting that Plaintiff completely repair any water incursion into her apartment. Defendant's attorney notified Plaintiff that such withholding was to be paid to Plaintiff upon repair of the water incursion into her apartment. Plaintiff instituted this civil action once Defendant withheld her common charges and assessments. Consequently, Defendant counterclaimed for an amount in excess of the legislatively established limits as determined by the amount demanded in the complaint.
Case law was codified when the New York State Legislature approved the Uniform City Court Act (Act). The Act reads in pertinent part that the Court shall have jurisdiction of "any counterclaim for money only, without regard to amount." NY CLS UCCA § 208(b) (2004). When reading this act in conjunction with the case law that would have governed this case prior to codification, the intent of the state legislature becomes clear. "[O]nce jurisdiction exists it is not lost because far more than the specified sum may be involved." Byrne, 248 N.Y. at 247. "In short an inferior or local court, having once obtained jurisdiction may dispose of the entire dispute between the parties unless prohibited by Constitution or statute." Id.
Therefore, this Court has jurisdiction over Defendant's counterclaim regardless of the monetary amount involved.
BOARD IMMUNITY
"The basic agreement among the unit owners as to the manner in which the condominium shall be administered and maintained is set forth in the condominium's bylaws." Schoninger v. Yardarm Beach Homeowners' Assoc., 134 A.D.2d 1, at 6 (N.Y.App.Div. 2d Dep't 1987). "Since the bylaws are the vehicle by which unit owners forego certain individual property rights and delegate them to a board of managers, it is important that the bylaws clearly spell out the limits of the board's authority to act." Id., at 6-7. In the case at bar, the contested clause reads as follows:
The members of the Board of Managers shall not be liable to the Unit Owners for any mistake of judgment, neggence, or otherwise, except for their own individual misconduct or bad faith. The Unit Owners shall indemnify and hold harmless each of the members of the Board of Managers against all contractual liability to others arising out of contracts made by the Board of Managers on behalf of the Condominium unless any such contract shall have been made in bad faith or contrary to the provisions of the Declaration or of these By-Laws. It is intended that the members of the Board of Managers shall have no personal liability with respect to any contract made by them on behalf of the Condominium. Lido Beach Towers Condominium By-Laws, Sec. 14 Liability of the Board of Managers, p. 5.
Plaintiff avers that the first sentence of this clause "prohibits suits against the Board of Managers except for a Manager's individual misconduct or bad faith." Plaintiff's Reply Affirmation in Opposition to Cross Motion, p. 3, ¶ 7 (July 7, 2004). Defendant asserts that this suit seeks to hold the Board liable collectively for breach of contract. Defendant's Memorandum of Law, p. 4, ¶ 3 (July 7, 2004). We need look no further than the text of the By-Laws itself to resolve this issue. The subject of the first sentence is the individual members of the Board. He, she, or they are assigned immunity from suit personally sans bad faith. In the second sentence of said clause, contractual liability on behalf of the Condominium is recognized as a result of contracts entered into by the Board. Because the By-Laws exclude circumstances involving bad faith from Unit Owner indemnification, the requirement of indemnification must be for a type of contractual liability not involving bad faith. Clarifying the intent of the clause, the third sentence elucidates to what extent the individual members will be held personally liable for contracts entered into by them collectively acting as the Board. The contractual liability not involving bad faith, from which the By-Laws seek to immunize the individual members, could reasonably be the "mistake of judgment, negligence, or otherwise" foreshadowed in the first sentence of the By-Laws. Furthermore, New York courts have recognized this collective liability of Boards of Managers and established a standard by which to measure their actions.
"[W]here a challenge is made by an individual owner to an action of a condominium board of managers, whether incorporated or not, absent claims of fraud, self-dealing, unconscionability or other misconduct, the court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the condominium." Schoninger, 134 A.D.2d at 10.
When the Condominium was originally organized, it would appear that it was the intention of the unit owners to enable those owners who were elected to the Board to represent all unit owners and to serve as their agent in obtaining the benefits for all of them. See Lido Beach Towers Condominium By-Laws.
"As agents for the owners, they cannot be held responsible to them except for willful conduct or bad faith. For only under such circumstances would unit owners be willing to assume responsibility without compensation in an effort to improve the lot of all unit owners. This type of gratuitous quasi-public service should be encouraged by exoneration from personal liability rather than be discouraged by imposition of personal and individual liability." Kleinman v. High Point of Hartsdale I Condominium, 108 Misc. 2d 581 (N.Y.Sup.Ct. 1979).
Therefore, individual members of the Board are immunized from liability absent misconduct or bad faith. This suit does not name any member of the Board personally nor are any individual board members named anywhere in either party's papers. Defendant refers to "The Board of Managers of Lido Beach Towers Condominium, as the 'Condominium.'"
Defendant's Supplemental Affirmation, p. 2, ¶ 2 (June 1, 2004). Clearly, Defendant's claims are against the Board as an entity rather than against any members of the Board individually. The By-laws inherently recognize the existence of contractual liability on behalf of the Condominium and require homeowner indemnification for any damages not the result of misconduct or bad faith. Lido Beach Towers Condominium Bylaws, Sec. 14 Liability of the Board of Managers, p. 5. Thus, the Condominium may be liable for breach of contract if the Board failed to fulfill a contractual obligation to Defendant. As the By-laws obligate each unit owner to comply with their mandates for the good of the Condominium, the Condominium is likewise bound to comply as promised for the sake of each unit owner.
In applying the business judgment rule to this matter, an issue for trial remains as to whether the Board's collective actions were authorized, taken in good faith, and in furtherance of a legitimate interest of the Condominium.
STATUTE OF LIMITATIONS
An action to recover damages for personal injuries must be commenced within three years (save for the exceptions provided for in Sections 214-b, 214-c and 215). NY CLS CPLR § 214(5). The injuries alleged in the matter at hand are not in any way related to those injuries contemplated by CPLR § 214-b and § 215, therefore, these sections are inapplicable and no further discussion of them is warranted in this decision. However, CPLR § 214-c includes inhalation related personal injuries into the exposure discussed therein and, therefore, requires further analysis. NY CLS CPLR § 214-c(1). If the injury is "caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body or upon or within property," then the three year period within which an action to recover damages "must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." NY CLS CPLR § 214-c(2).
"Notwithstanding the provisions of subdivisions two and three of this section, where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced or a claim filed within one year of such discovery of the cause of the injury; provided, however, if any such action is commenced or claim filed after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the plaintiff or claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he has otherwise satisfied the requirements of subdivisions two and three of this section." NY CLS CPLR § 214-c(4).
Although Plaintiff and Defendant each asserted that the statute of limitations has or has not expired, neither party addressed upon which section they rested their case. Defendant cites Stalis v. Sugar Creek Stores, Inc., 295 A.D.2d 939 (N.Y.App. Div. 4th Dep't 2002) in support of her breach of contract claim to propose that Plaintiff's repeated failure to properly upkeep the unit recommenced the statute of limitations upon each such failure. Defendant's Memorandum of Law, p. 6-7 (July 7, 2004). However, as stated in Stalis: "[t]o the extent that the amended complaint seeks injunctive or other prospective relief, such claims therefore are not time-barred (citation omitted). In contrast, Plaintiffs' claims for damages might be time-barred, depending on their origins and nature." Stalis, 295 A.D.2d at 941. As Defendant is no longer seeking injunctive relief, we must consider the allegations contained in her personal injury counterclaims in order to determine whether CPLR § 214 or § 214-c is applicable.
Defendant's exposure did not occur consistently over a period of time. Defendant's Supplemental Affirmation, p. 4, ¶ 6 (June 1, 2004) (the sporadic supposed attempts to correct the problems in the Apartment). Based on Defendant's papers and affirmations, it was each incident that was causing her harm. Defendant's Supplemental Affirmation, p. 4, ¶ 6 (June 1, 2004) (under the guise of attempting to correct the leakage problems, often large amounts of corrosive, penetrating dust and debris were created, thereby further damaging Gamiel's health). Defendant claims that Plaintiff made her condition worse "[b]y actively generating and thereafter failing to remedy, remove and/or abate the intrusion of hazardous plaster dust, dirt, and other debris related to the Board's maintenance activity into and around Defendant's condominium unit." Defendant's Amended Verified Answer and Counterclaims, p. 4, ¶ 27 (May 21, 2004). "[T]hese supposed attempts to correct the problems by Lido Beach actually exacerbated the situation. For example, they repeatedly created extensive corrosive, penetrating pulmonary hazards throughout the Apartment." Defendant's Memorandum of Law, p. 6, ¶ 1 (July 7, 2004). As Defendant's claim is related to 'the Board's maintenance activity,' each 'supposed attempt' which 'actually exacerbated the situation' must be seen as a separate incident.
"Under CPLR 214(5), a cause of action arising out of an injection, ingestion or inhalation of a chemical substance accrues on the date such substance is introduced into the body." Bikowicz v. Nedco Pharmacy, Inc., 130 A.D.2d 89, at 92 (N.Y.App.Div. 3d Dep't, 1987); NY CLS CPLR § 214(5); see, Piper v. IBM Corp., 219 A.D.2d 56, at 59 (N.Y.App.Div. 4th Dep't 1996) (the time to sue runs from the inhalation of that harmful substance into the body). "There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury." Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, at 433 (1993), quoting Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, at 300 (1936). "In Schmidt, the plaintiff inhaled silicone dust and years later contracted a disease of the lungs." Reese v. Key Tronic Corp., 990 F. Supp. 197, at 199 (W.D.N.Y., 1997). "[I]n that case, the forces wrongfully put in motion were a result of defendant's negligence in causing the plaintiff to inhale the dust." Id., at 199-200. "The inhalation of these substances w[as] harmful to the human body, creating an acute or physical injury however small the first time they were inhaled." Id., at 202 (substances which common knowledge showed were by their very nature hazardous to the human body). Consequently, this line of cases has rendered inconsequential that part of CPLR § 214-c which computes commencement of the statute from the date of actual discovery of the injury in cases involving the inhalation of substances which are known by their very nature to be hazardous to the human body. This result arose from the Court's interpretation of reasonable diligence in the latter part of CPLR § 214-c as implied knowledge that an actionable injury occurs upon inhalation of a substance which common knowledge shows by its very nature to be hazardous to the human body. Although, accrual is said to occur "when all elements of the tort can be truthfully alleged in a complaint," the Court's interpretation of reasonable diligence apparently disregards practical considerations such as discoverable harm, proving damages, and latent effects. Piper, 219 A.D.2d at 58, quoting Snyder, 81 N.Y.2d at 432.
In the matter at hand, Defendant's injury is distinguishable from this line of cases in that she is not claiming to have inhaled a chemical substance which by its very nature causes immediate harm to the human body. Defendant's Verified Answer and Counterclaims p. 5, ¶ 20 (April 26, 2001). Defendant claims that "large amounts of corrosive, penetrating dust and debris were created, thereby further damaging [her] health, since the radical cancer treatments left her debilitated with substantially decreased lung capacity." Id.; Defendant's Supplemental Affirmation, p. 4, ¶ 6 (May 27, 2004). "The action accrues only when there is some actual deterioration of a plaintiff's bodily structure." Snyder, 81 N.Y.2d at 434, quoting Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, at 217 (1963). Because in the present case, we are dealing with the possible exacerbation of an existing condition, it is difficult to ascertain the point at which the alleged injury manifested. Determining the moment and quantity at which this combination of non-toxic substances exacerbated Defendant's condition is beyond the ability of this Court to do at this juncture. It may be that Defendant's condition would not have been distinguishably affected by the inhalation of a smaller amount of such non-toxic substances, but Defendant asserts that the alleged injury occurred because "large amounts . . . were created." Defendant's Supplemental Affirmation, p. 4, ¶ 6 (May 27, 2004). However, it would defy logic to suggest that the inhalation of large quantities of non-toxic substances could have a latent exacerbation effect after such substances cease to be inhaled. The extent of the injury's impact could not logically surface at a later time in the absence of a toxin whose effects may require time to manifest. Therefore, Defendant's claims for personal injury are governed by CPLR § 214(5).
"[P]olicy considerations clearly support application of the date of last exposure rule to actions . . . in which it is difficult to determine the point at which the harm was 'discoverable' and the injury manifest." Ward v. Desachem Co., 771 F.2d 663, at 667 (2d Cir. N.Y. 1985). This Court is cognizant of the fact that the date of last exposure rule may in certain circumstances occur after discovery of the harm, thus violating the principle of mitigation. Such may be the case here as it is unclear from Defendant's moving papers the moment at which she became aware that each incident was causing her harm or even when each incident occurred. However, Defendant's knowledge of her fragile lung condition and subsequent self-exposure is an issue for trial to be determined upon apportioning comparative negligence. Ward, 771 F.2d at 667; NY CLS CPLR § 1411.
Other than the incident spurring the withholding of common charges and assessments, which is said to have occurred sometime in the year 2000, Defendant fails to mention any date upon which injury allegedly occurred (although in her papers she alleges complaints before August 28, 1988 and shoddy repairs April 7, 1997). Defendant's Verified Answer and Counterclaims, p. 4, ¶ 14 (April 27, 2001); Defendant's Supplemental Affirmation, p. 5, ¶ 8 (June 1, 2004). Therefore, because Defendant answered and counterclaimed on April 26, 2001, and the applicable statute of limitations period is three years, recovery for any incidents occurring over three years prior to the date the counter claim was filed would be time-barred. NY CLS CPLR § 214(5). Defendant may seek recovery for any worsening of her condition that was the result of the Board's maintenance activity into and around her unit to which she was last exposed since April 26, 1998.
Therefore, any recovery sought for personal injuries prior to April 26, 1998 is time-barred.
Actions for breach of contract must be commenced within six years. NY CLS CPLR § 213. Defendant alleges a breach of contract from 1982 (Defendant purchased the unit in 1984) for Plaintiff's "failure to maintain, upkeep, and service the common areas." Defendant's Verified Answer and Counterclaims, p. 6, ¶ 24 (April 27, 2001). As the original counterclaim was commenced on April 26, 2001 said action would be time-barred prior to April 26, 1995.
Defendant's allegations of negligence for failure to "properly construct the Condominium" must be commenced within three years pursuant to CPLR § 213. Defendant's Verified Answer and Counterclaims, p. 8, ¶ 31 (April 27, 2001). Hence said action would be time barred unless the construction occurred after April 26, 1998.
An action to recover damages for property damage must be commenced within three years. NY CLS CPLR § 214(4). Defendant claims that "several items of personal property . . . were damaged or destroyed." Defendant's Memorandum of Law, p. 6, ¶ 1 (July 7, 2004). However, the date when the damage or destruction occurred is omitted as is the nature of the specific property involved. Therefore, because the counterclaim was brought on April 26, 2001, any recovery sought for damage or destruction of property that occurred prior to April 26, 1998 is time-barred.
AD DAMNUM CLAUSE
"[A] motion made by a plaintiff to increase the amount of relief requested in the ad damnum clause of the complaint, whether made before or after the verdict, may be granted in the absence of prejudice to the defendant." Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, at 20 (1981). "Permission to increase the ad damnum clause lies within the sound discretion of the court." Boehm Development Corp. v. State of N.Y., 42 A.D.2d 1018 (N.Y.App.Div. 3d Dep't, 1973). "Leave to amend the pleadings 'shall be freely given' absent prejudice or surprise resulting directly from the delay." McCaskey, Davies Associates, Inc. v. New York City Health Hospitals Corp., 59 N.Y.2d 755, at 757 (1983) citing NY CLS CPLR § 3025(b). "[M]ere delay in making a motion to increase an ad damnum clause is not per se an acceptable ground for denial; defendants must demonstrate in what manner they would be actually prejudiced thereby." Fahy v. Hertz Corp., Car Lease Div., 92 A.D.2d 581, at 583 (N.Y.App.Div. 2d Dep't, 1983).
Plaintiff contends that "[t]here is no affidavit by a physician stating the extent of physical impairment occasioned by the alleged improprieties of the MANAGERS, nor any medical proof of a causal nexus." Plaintiff's Reply Affirmation in Opposition to Cross Motion, p. 4, ¶ 13 (July 7, 2004); see Battaglia v. Elliott Development Corp., 34 A.D.2d 980 (N.Y.App.Div. 2d Dep't, 1970) (the moving papers should include a physician's affidavit demonstrating with some degree of specificity the nature of the plaintiff's injuries and a causal connection); Davis v. Troy, 57 A.D.2d 990 (N.Y.App.Div. 3d Dep't, 1977) (as to the causes of action involving personal injuries, plaintiff is also required to submit an affidavit by a physician showing the nature of the injuries and causal relation to the occurrence sued on). However, a review of these cases reveals that the Court was forced to rely solely on an affidavit of 'an attorney lacking personal knowledge' of the facts rather than 'a party with knowledge of circumstances justifying such an application.' De Carlo v. Economy Baler Div. of American Hoist Derrick Co., 57 A.D.2d 1002 (N.Y.App.Div. 3d Dep't, 1977); see also Leonard Hospital v. Messier, 32 A.D.2d 596 (N.Y.App.Div. 3d Dep't, 1969) (the attorney's affidavit cannot be accepted in lieu of the affidavit of the party); Shore v. Lubov, 46 A.D.2d 668 (N.Y.App.Div. 2d Dep't, 1974) (papers should include an affidavit of merits by plaintiff showing facts to warrant the increase). Contrarily, Defendant attached an affidavit asserting personal knowledge of the circumstances under which her 'previous attorneys did not ask for a more appropriate amount of damages.' Gamiel Affidavit, p. 5, ¶ 16 (November 21, 2001).
In order to defeat a motion to amend the ad damnum clause, the emphasis is upon a showing of prejudice that would result from granting the amendment. See Loomis, 54 N.Y.2d at 20; McCaskey, 59 N.Y.2d at 757; Fahey, 44 N.Y.2d at 935. Plaintiff relies on assertions that Defendant does not justify the request for amending the ad damnum clause rather than showing what prejudice may result from a finding in Defendant's favor. Therefore, because Plaintiff has failed to show prejudice or surprise by Defendant's proposed amendment, permission to amend the ad damnum clause is hereby granted.
DISCRIMINATION
In the case at bar the question to be answered is whether Defendant's need for a dog, because of her physical condition, is so compelling that an issue of fact is created which may override a no-pet clause in a residential lease. "[T]his court, and the Court of Appeals, have made it manifest that a landlord can legally enforce a lease providing for the prohibition of dogs, as a matter of law. Hillman Housing Corp. v. Krupnik, 40 A.D.2d 788 (N.Y.App.Div., 1972). However,
"[i]t 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: (2) [t]o 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." NY CLS Exec § 296(18)(2).
"The term 'disability' means (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment." NY CLS Exec § 292(21).
This Court sees no reason to exclude Defendant from the definition of disabled. This matter does not present a claim involving the Americans with Disabilities Act. "[T]he court is primarily concerned, for the purpose of this motion, with whether the no-pet clause invariably must be enforced as a matter of law or whether it can yield, upon proof of extreme circumstances." Ocean Gate Associates Starrett Systems, Inc. v. Dopico, 109 Misc. 2d 774, at 775 (N.Y. Misc., 1981). "This court finds that the legislative advances protecting the disabled, which evolved after the last appellate decisions in this area, require the no-pet clause to bow upon proof of a specific, particularized need to keep a dog, which need arises out of the handicap." Dopico, 109 Misc. 2d at 775. As Dopico shows, exempting a disabled person from a generally applicable regulation is a reasonable accommodation where there is a particularized showing of need for that exemption arising from the individual's disability. Doe v. Bell, 194 Misc. 2d 774, at 782 (N.Y. Misc., 2003) citing Dopico, 109 Misc. 2d 774. "Thus, persons with disabilities are entitled to accommodations from generally applicable rules that limit their ability to enjoy the use of a dwelling on the same terms as nondisabled persons." Id., 194 Misc. at 782.
Defendant "and others were 'grandfathered,' in that they could keep the dogs that they then had, when those dogs died they could not be replaced." Defendant's Cross Motion, p. 4, ¶ 11 (November 30, 2001). Defendant claims that the Board "suddenly enacted a policy whereby owners had to carry their pets in the common areas." Defendant's Cross Motion, p. 4, ¶ 12 (November 30, 2001). "Defendant was given no relief from this directive, even though the Board members were well aware that Defendant was disabled and could not possibly carry her dog." Id. After Defendant's dog passed away, she sought permission from the Board to obtain another dog out of medical necessity. "Just as her late small dog frequently alerted others when Defendant was having a medical emergency, Defendant continues to need such assistance. While the Board gave permission to someone else with a medical necessity for a dog, Defendant's request was rejected out of hand." Defendant's Cross Motion, p. 4-5, ¶ 13 (November 30, 2001), Exhibit C, Lido Beach Towers letter dated July 31, 2001. Defendant alleges that the Board discriminated against her by "denying her the same rights and privileges they grant to other owners in the building by allowing others, but not Defendant, to have a small dog or other pet, because other owners are healthy enough to be able to carry those pets in the common area." Defendant's Cross Motion, p. 5, ¶ 15 (November 30, 2001).
This Court finds Defendant's arguments, in light of the long term dispute between Defendant and the Board and considering the Board's directive that tenant's carry their pet when traversing the common areas, sufficient to raise a question of fact as to whether Plaintiff's actions were discriminatory.
CONCLUSION
In conclusion, it is hereby held that:
(1) this Court has jurisdiction over Defendant's counterclaims without regard to amount pursuant to § 208(b) of the Uniform City Court Act;
(2) at trial, the Board of Managers will be granted immunity from suit unless Defendant can show that the Board's actions were unauthorized, not taken in good faith nor in furtherance of a legitimate interest of the Condominium;
(3) Defendant's claims for personal injury, negligence, and property damage may not antedate April 26, 1998 nor may her breach of contract claim antedate April 26, 1995;
(4) permission to amend the ad damnum clause of the Defendant's counterclaims is granted; and
(5) an issue of fact remains for trial as to whether the Board's actions were discriminatory.
All parties are directed to appear before this Court on October 22, 2004 at 2:00 p.m.
This constitutes the decision and Order of the Court.