In the Matter of Marine Holdings, LLC, et al., Respondents,v.New York City Commission on Human Rights, Appellant, et al., Respondent.BriefN.Y.March 27, 2018 Reproduced on Recycled Paper APL-2017-00025 To be argued by: MACKENZIE FILLOW 15 minutes requested Court of Appeals State of New York In the Matter of MARINE HOLDINGS, LLC d/b/a MARINE TERRACE ASSOCIATES, LLC and WEN MANAGEMENT CORP., Petitioners-Respondents, against NEW YORK CITY COMMISSION ON HUMAN RIGHTS, Respondent-Appellant. REPLY BRIEF RICHARD DEARING DEVIN SLACK MACKENZIE FILLOW of Counsel July 31, 2017 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellant 100 Church Street New York, New York 10007 Tel: 212-356-4375 or -2500 Fax: 212-356-1148 mfillow@law.nyc.gov TABLE OF CONTENTS Page i TABLE OF AUTHORITIES ........................................................ ii PRELIMINARY STATEMENT ................................................... 1 ARGUMENT IF ANYTHING, THE LANDLORDS’ BRIEF CONFIRMS THAT THERE IS SUBSTANTIAL EVIDENCE FOR THE COMMISSION’S DETERMINATION ............................................................ 3 A. The landlords fundamentally misapprehend the substantial evidence standard. .................................... 3 B. The landlords fail to acknowledge the presumption of reasonableness and the undue hardship standard. ....................................................................... 5 C. The record contains substantial evidence supporting the Commission’s determination that the landlords did not carry their burden. .................... 7 D. The landlords’ contrary claims did not compel an undue hardship finding. ............................................... 9 E. The landlords’ misunderstandings lead them to inadvertently concede that their showing fell short of what was required. ................................................. 12 CONCLUSION .......................................................................... 15 CERTIFICATE OF COMPLIANCE .......................................... 16 TABLE OF AUTHORITIES Page(s) ii Cases 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176 (1978) ........................................................... 4, 5, 9 Miller v. DeBuono, 90 N.Y.2d 783 (1997) ......................................................... 4, 9, 11 Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494 (2011) ................................................................... 4 Statutes New York City Human Rights Law ................................... 1, 5, 6, 13 PRELIMINARY STATEMENT The landlords’ brief to this Court misunderstands, as did the decision below, the basic legal principles that apply when a tenant with a disability requests an accommodation in New York City. First, the landlords argue against the extremely deferential standard of review. But courts must defer to Commission decisions so long as they are supported by substantial evidence, which requires only that the Commission’s decision be reasonable and plausible. It does not require preponderance-level proof, as the landlords appear to believe. Second, the landlords have the burden of proof backwards. The New York City Human Rights Law presumes that all accommodations are reasonable and puts the burden of proving otherwise squarely on the landlords. Yet the landlords repeatedly fault the Commission for failing to submit evidence. The Commission was not required to present any evidence on the issue of undue hardship, and any gaps in the evidence are a problem for the party with the burden of proof: here, the landlords. 2 Unfortunately for the tenant in this case, Mrs. Politis, the court below made the same mistakes, reversing the burden of proof and failing to defer to the Commission’s reasoned decision. The installation of a wheelchair-accessible entrance is a routine project used frequently to accommodate persons with mobility- related disabilities. Indeed, the landlords here have done the same work in the past at a similar cinderblock building— apparently without the assistance of a structural engineer, without evacuating any tenants, and without imposing any hardship at all on their business. Testimony that such work is “infeasible,” when it has in fact been done by these same landlords, was insufficient to prove undue hardship. The landlords’ brief also confirms that their structural infeasibility argument is really about money. But the landlords cannot claim financial hardship while refusing to present any evidence about the cost of a proposed accommodation or the financial health of their business. This Court should reverse the order below and restore the Commission’s decision. 3 ARGUMENT IF ANYTHING, THE LANDLORDS’ BRIEF CONFIRMS THAT THERE IS SUBSTANTIAL EVIDENCE FOR THE COMMISSION’S DETERMINATION A. The landlords fundamentally misapprehend the substantial evidence standard. The landlords continue to press a mistaken understanding of how the substantial evidence standard works in general, and how it applies to an affirmative defense like undue hardship in particular. Repeatedly characterizing their proffered evidence as “substantial,” the landlords maintain that “there is substantial evidence in the record as a whole that the requested accommodation is structurally infeasible” (Resp. Br. at 1, 5). But of course that could be true and reversal still be required, because the landlords are asking the wrong question. The right question is whether substantial evidence supports the Commission’s determination rejecting the undue hardship defense. And as explained in our opening brief, the substantial evidence standard recognizes that an administrative record often supports more than one reasonable conclusion (see App. Br. at 31- 34). The sole question for the reviewing court is whether the 4 conclusion the Commission has settled on has some substance behind it—something more than “bare surmise, conjecture, speculation or rumor,” but “less than a preponderance of the evidence.” 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180 (1978). Put bluntly, it is “of no consequence” whether other reasonable conclusions were also available. Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 500 (2011). Indeed, it is irrelevant whether alternative conclusions were more reasonable than the one chosen. See Miller v. DeBuono, 90 N.Y.2d 783, 793 (1997). No matter how much the landlords may wish it to be so, the question here is not whether there is substantial evidence to support their claimed “structural infeasibility” defense. The Court can assume that to be the case. But whether a hypothetical determination accepting the landlords’ defense may also have been reasonable is beside the point. All that matters is that substantial evidence supports the Commission’s contrary determination. This Court has been clear: if the record leaves “room for choice”—and the record here at a minimum did that— 5 the Commission’s choice prevails. 300 Gramatan, 45 N.Y.2d at 180. B. The landlords fail to acknowledge the presumption of reasonableness and the undue hardship standard. The landlords’ misunderstanding does not stop there. They also give too short shrift to the substantive question before the Commission, which of course shapes substantial evidence review. The landlords never even acknowledge that the Commission was required to approach the case with a presumption that the accommodation requested by Mrs. Politis was reasonable (see App. Br. at 8-10, 35-36). They barely acknowledge that undue hardship is an affirmative defense. When these points are accepted, not ignored, it lays bare the landlords’ sleight of hand in suggesting that the question is whether the Commission “disprove[d] the substantial evidence of undue hardship [they] put forward” (Resp. Br. at 35). The City Council did not settle on a pro-accommodation framework by accident. It deliberately crafted the City Human Rights Law to depart from its federal and state counterparts by 6 first presuming that every accommodation is reasonable, and then requiring the landlord to overcome the presumption by “proving” that an accommodation “shall”—not may—“cause undue hardship in the conduct of [its] business.” N.Y.C. Admin. Code § 8-102(18). The Council also consciously placed the burden squarely on the shoulders of the landlord. See id. The burden never shifts.1 In this way, the City Council intentionally tilted the law strongly in favor of tenants with disabilities, giving less weight to the fact that landlords will bear some inconvenience and cost, and more weight to the goal of ensuring that all New Yorkers are afforded equal and independent access to their homes. The Council’s allocation of the burden also makes sense, as explained in our opening brief (see App Br. at 39-40), because a landlord has far superior access to information about the relationship between an accommodation and its business than a tenant does. 1 In other areas—indeed, for other aspects of disability discrimination claims resting on the failure to accommodate—the Council allocated the burden differently. For instance, the Council does not expect a landlord to establish that a tenant does not have a disability or need some accommodation. On those points, the burden lies with the complainant. Here, there is no dispute that Mrs. Politis has a disability (R. 281-82) and cannot access her apartment independently without an accommodation (R. 289). 7 In any case, since the landlords never grapple with the presumption of reasonableness or the fact that they were asserting an affirmative defense, they offer no rejoinder to our point that, in practice, substantial evidence review is only more deferential in this context (see id. at 34). Coupling the deferential substantial evidence standard and the demanding undue hardship standard, the question for a reviewing court becomes: did the record compel the agency to conclude that a landlord surmounted the presumption of reasonableness and established that the accommodation would cause undue hardship? And here, the answer to that question is clearly no, as Supreme Court recognized in upholding the Commission’s considered finding that the landlords did not cross that threshold (R. 22). C. The record contains substantial evidence supporting the Commission’s determination that the landlords did not carry their burden. The landlords are left to argue that the record afforded no room to conclude that they fell short in proving that the accommodation would cause an undue hardship. But when the whole record is considered, and the landlords’ extra-record 8 assertions are set aside (like their brief’s claim that 150 tenants would have to be evacuated (Resp. Br. at 3, 44)), it is plain that the Commission’s conclusion was not only reasonable—though that is enough to uphold it—but also the most reasonable conclusion. The record before the Commission showed that an ordinary handyman completed a similar project at another building in the same apartment complex, cutting through the same type of cinderblock wall to turn a window into a door and installing a wheelchair-accessible ramp (R. 393-94, 419, 433, 864, 893-95). There is no evidence that the handyman required the assistance of a structural engineer. From these undisputed facts, it was reasonable to infer that similar work could be done on Mrs. Politis’s building, which after all was built of the same material and in the same year as the other building. An expert in architecture confirmed the inference, testifying that a similar window-to-ramp modification on Mrs. Politis’s apartment would be a fairly minor project, would not require evacuating other tenants, and would call for at most a single day 9 of shoring (R. 524, 526, 528-29, 583). An architect engaged by the landlords conceded that the modification was feasible (R. 382-83, 860-61). A structural engineer—engaged by the landlords post- complaint and their only witness at the hearing—conceded that the proposed work could be done if cost were no issue (R. 720-21). Witnesses also testified that modifications of this kind are commonplace and uncomplicated (R. 230, 233-34, 258, 382-83, 501-02, 526, 528-29). This evidence is nowhere near “imaginary.” 300 Gramatan, 45 N.Y.2d at 180. It is real and substantial and more than enough to make the Commission’s ultimate conclusion—that the landlords did not surmount the presumption and prove undue hardship— “reasonable and plausible.” Miller, 90 N.Y.2d at 793. D. The landlords’ contrary claims did not compel an undue hardship finding. In response, the landlords failed to present any evidence that the work done at the management office building—made of the same cinderblock—was complicated, required the evacuation of any tenants, or caused any hardship at all to their business. 10 None of the landlords’ employees remembered anything about that work except that it was done by a handyman (R. 397, 865). Unable to show that the work on the management office was burdensome, the landlords switched direction. They hired a structural engineer, who claimed that the proposed work was “structurally infeasible” because cinder block “always crumble[s]” and therefore requires complicated needle shoring (R. 654). According to him, whether or not the window needed to be widened or gas lines were nearby, shoring would be needed because cinder block is “very crumbl[y]” and “[y]ou cannot cut [it]” (R. 705). The engineer was baffled at how the work on the management office had been completed, even though there were no gas lines below it, because he “never recommend[s] any opening in cinder blocks” (R. 685-86, 731). The engineer was not involved in that work and had “no idea” whether the window had to be widened or not (R. 714-15). As the ALJ observed, the expert just “did not study the management office modification” (R. 838). 11 Faced with competing evidence—on the one hand, solid proof that the landlords had previously cut through a cinder block wall to install a door and ramp, and on the other hand, an opinion by an engineer who could not explain the past modification but opined that a similar modification now would be “infeasible”—the Commission found that the landlords did not meet their burden of proving undue hardship. This assessment of the evidence was certainly “reasonable and plausible” and therefore entitled to deference. Miller, 90 N.Y.2d at 793. Regardless, the landlords do not dispute that, even if they could prove the structural infeasibility of the particular accommodation requested by Mrs. Politis, that would not relieve them of their obligation to provide Mrs. Politis with another reasonable accommodation (see App. Br. at 36 n.9). See also Jacobson, 22 N.Y.3d at 835 (requiring a covered employer prove “the unavailability of any safe and reasonable accommodation”) (emphasis added)). The only other option suggested by the landlords—relocating the Politises far from their community and asking them to forfeit their section 8 benefits in the process—was 12 not reasonable (R. 48-49). The landlords did not challenge that finding below (R. 18), and cannot do so now. E. The landlords’ misunderstandings lead them to inadvertently concede that their showing fell short of what was required. Because the landlords misapprehend the standard of review and the substantive standard underneath it, their own arguments often illustrate the shortcomings in their showing. Take their contention that there was “not a shred of evidence” in the record establishing how the window-to-ramp modification to the management office was done (Resp. Br. at 36). We agree. But like the ALJ, the landlords get the significance of the “utter absence of evidence” backwards (R. 838). The lack of evidence harms the landlords’ position, because they had the burden of proof. Long before the hearing, the landlords knew that a key question would be why it would cause them undue hardship to offer Mrs. Politis a modification like the one done on the management office (R. 872-75). The burden was theirs. If they wanted to claim that the work on the management office was fundamentally different, or was itself prohibitively expensive or 13 complicated, it was incumbent on them to present supporting evidence. They did not. Just as telling is the landlords’ effort to sneak a financial hardship argument through the backdoor now that the front door is closed to them (Resp. Br. at 5, 7, 11, 14). To be sure, there is not just one way to show undue hardship, but cost is often a significant component (see App. Br. at 9-10). After all, many of the factors enumerated in the statute get at that very question.2 But here, the landlords long ago made the strategic decision to abandon any claim of financial hardship (see id. at 20-21, 37- 38). Their brief suggests they regret the decision: they now claim that our observations on this point are “baseless” (Resp. Br. at 14); and they argue that the accommodation requested by Mrs. Politis is “financially infeasible” because it is purportedly “structurally infeasible” (id. at 5). Their regret, while understandable, does not free them to litigate financial hardship at this late stage. 2 Those factors include, for example, the “cost of the accommodation,” “the overall financial resources of the covered entity,” “the overall financial resources of the facility or facilities involved,” “the effect on expenses,” and the “fiscal relationship of the facility or facilities in question to the covered entity.” N.Y.C. Admin. Code § 8-102(18). 14 To be clear, the landlords “put on no evidence of the ‘nature or cost of the accommodations’ or their ‘overall financial resources’” (R. 844; see also R. 35 n.1). The projected cost of the proposed modification was not then and never has been disclosed, and the landlords “offered no financial statements of any kind for the record” (R. 844). Instead, the landlords made explicit what they now disclaim, “assert[ing] pretrial that they were not in fact claiming financial feasibility as a defense” (id.). Their only witness at trial had no knowledge of their finances and failed to identify the cost of the proposed work. It is thus accurate—not baseless—to say that the landlords cannot dispute that any cost would be reasonable and have no meaningful impact on their finances (see App. Br. at 37). That presents a big problem for the landlords: their expert conceded that any construction difficulties could be surmounted if cost were not an issue (R. 720-21). And cost wasn’t an issue, because the landlords elected to take that issue off the table. They must live with that decision, which alone provided a sufficient basis to reject 15 their undue hardship defense on this record, even setting aside the wealth of other evidence that led to the same place. CONCLUSION The order of the Appellate Division should be reversed. Dated: New York, NY July 31, 2017 RICHARD DEARING DEVIN SLACK MACKENZIE FILLOW of Counsel Respectfully submitted, ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellant By: __________________________ MACKENZIE FILLOW Assistant Corporation Counsel 100 Church Street New York, NY 10007 212-356-4378 mfillow@law.nyc.gov 16 CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared using Microsoft Word 2010, and according to that software, it contains 2,576 words, not including the table of contents, the table of cases and authorities, the statement of questions presented, this certificate, and the cover. ____________________________________ MACKENZIE FILLOW