In the Matter of Marine Holdings, LLC, et al., Respondents,v.New York City Commission on Human Rights, Appellant, et al., Respondent.

Brief

N.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. BRIEF FOR APPELLANT RICHARD DEARING DEVIN SLACK MACKENZIE FILLOW of Counsel May 30, 2017 ZACHARY W. CARTER Corporation Counsel of the City of New York Attorney for Appellant 100 Church Street New York, New York 10007 Tel: 212-356-4378 or -2500 Fax: 212-356-1148 mfillow@law.nyc.gov TABLE OF CONTENTS Page i TABLE OF AUTHORITIES .......................................................... PRELIMINARY STATEMENT ................................................... 1 QUESTION PRESENTED .......................................................... 4 STATEMENT OF THE CASE .................................................... 5 A. The special protections of the New York City Human Rights Law and the Commission’s role in safeguarding them ........................................................ 5 B. The City Human Rights Law’s demanding “undue hardship” standard ....................................................... 8 C. Irene Politis’s need for an accommodation to access her home equally and independently ......................... 11 D. The landlords’ refusal to make a common modification to accommodate Mrs. Politis ................. 14 1. The landlords’ modification of another building in the same apartment complex .................................. 14 2. The determination of the landlord’s architect that the requested modification was feasible ................. 16 3. The landlords’ efforts to displace the Politises from their home rather than provide the requested accommodation ....................................... 17 4. An engineer’s claim that the modification would cost an “unfeasible” amount ................................... 19 E. The landlords’ attempted pivot from financial hardship to “structural infeasibility” ......................... 20 TABLE OF CONTENTS (cont’d) Page ii F. The conflicting decisions below .................................. 26 1. The ALJ’s report and recommendation .................. 26 2. The Commission’s determination ........................... 27 3. Supreme Court’s decision ........................................ 29 4. The Appellate Division’s reversal ........................... 30 JURISDICTIONAL STATEMENT ........................................... 30 ARGUMENT ............................................................................. 31 SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSION’S FINDING THAT THE LANDLORDS FAILED TO CARRY THEIR BURDEN OF ESTABLISHING UNDUE HARDSHIP .......................... 31 A. The question before the court was whether there was any room to conclude that the landlords failed to establish undue hardship, not whether that was the best conclusion. ..................................................... 32 B. Ample evidence afforded the Commission more than fair leeway to conclude that the landlords did not discharge their burden. .............................................. 35 C. The Appellate Division’s ruling undermines the rights of tenants with disabilities and hinders the Commission’s work. .................................................... 42 CONCLUSION .......................................................................... 45 CERTIFICATE OF COMPLIANCE .......................................... 46 TABLE OF AUTHORITIES Page(s) iii Cases 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176 (1978) ..................................................... 32, 33, 34 Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131 (2d Cir. 1995) ......................................................... 11 Commission v. Co-op City, OATH Index No. 1831/10 (Nov. 18, 2010) ........................................................................... 10 Commission v. T.K. Mgmt, OATH Index No. 191/03 (May 3, 2004). ............................................................................ 10 Commission v. T.K. Mgmt, OATH Index No. 721/05 (April 14, 2005). ......................................................................... 10 Jacobsen v. NYC Health & Hosps. Corp., 22 N.Y.3d 824 (2014) ............................................................. 9, 35 Louis Harris & Assocs. v. deLeon, 84 N.Y.2d 698 (1994) ................................................................. 40 Miller v. DeBuono, 90 N.Y.2d 783 (1997) ................................................................. 33 Orlic v. Gatling, 44 A.D.3d 955 (2d Dep’t 2007) ..................................................... 8 Riverbay Corp. v. N.Y.C. Comm’n on Human Rights, 2011 N.Y. Slip Op. 34042(U), (Sup. Ct. Sept 9, 2011) .............. 10 T.K. Mgmt. v. Gatling, 2005 N.Y. Misc. LEXIS 3593 (Sup. Ct. Nov. 2, 2006) ............... 10 TABLE OF AUTHORITIES (cont’d) Page(s) iv Statutes Fair Housing Act, 42 U.S.C. § 3602 ............................................... 35 New York State Human Rights Law, Exec. Law § 296 ................. 35 N.Y.C. Admin. Code § 8-101 ............................................................. 6 N.Y.C. Admin. Code § 8-102 ................................................. 9, 10, 36 N.Y.C. Admin. Code §§ 8-105 ........................................................... 7 N.Y.C. Admin. Code § 8-107 ......................................................... 6, 9 N.Y.C. Admin. Code § 8-120 .......................................................... 7,8 N.Y.C. Admin. Code § 8-130 ............................................................. 5 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ....................................................................... 36 42 U.S.C. § 3602(h) ......................................................................... 35 Rules and Regulations 28 C.F.R. § 36.304 .......................................................................... 37 C.P.L.R. 5602 .................................................................................. 31 47 R.C.N.Y. §§ 1-75 & 1-76............................................................... 8 Other Authorities Adrien Weibgen, The Right to Be Rescued, 124 YALE L.J. 2406 (2015) ......................................................................... 13 Amy Zimmer, Meet the Man Making NYC More Accessible for New Yorkers with Disabilities (Aug. 16, 2016) ....................................................................................... 7 TABLE OF AUTHORITIES (cont’d) Page(s) v Marty Ahrens, Physical Disability as a Factor in Home Fire Deaths (June 2014) ............................................................ 13 New York City Commission on Human Rights, 2016 Annual Report .............................................................................. 7 Power Plant Rattles Astoria, NBC NEWS (July 27, 2011) .............. 14 Richard Shepard, Astoria, a Greek Isle in the New York City Sea, N.Y. TIMES, Nov. 15, 1991 .......................................... 11 University of New Hampshire Institute on Disability, 2016 Annual Disability Statistics Compendium (2017) ........................................................................................... 6 William C. Hollis, Rights of People with Disabilities to Emergency Evacuation, 5 J. HEALTH CARE L. & POL’Y 524 (2002) ................................................................................... 13 PRELIMINARY STATEMENT Irene Politis is paralyzed below her diaphragm. Five small steps prevent her from exiting her apartment on her own, leaving her trapped, lonely, and worried for her safety. Exercising her rights under the New York City Human Rights Law, she asked her landlords—respondents Marine Holdings LLC and Wen Management Corp.—to extend her an accommodation to allow her to access her home independently. While the accommodation proposed—installation of a wheelchair-accessible entrance with a ramp—would surely have been effective, it also would have been nothing special. In New York City, such conversions are routine, and ordinarily impose no meaningful burden on large landlords. Indeed, even under federal law, understood to be less protective than the City Human Rights Law, this kind of accommodation is presumed to be easy to accomplish without much expense. But the landlords here nonetheless refused Mrs. Politis’s request, forcing her to turn to the New York City Commission on Human Rights. At first, the landlords defended their refusal on the ground that the work would be too costly. But, unwilling to 2 prove-up the cost or open their books to allow the Commission to test their doubtful claim, the landlords changed tack. Pivoting, the landlords argued that the work was “structurally infeasible,” even though they conceded it could be done. In this regard, the landlords were hamstrung by their own choice to take financial burden out of the picture; they had effectively conceded that the accommodation would neither be expensive nor impair their bottom-line, no matter what difficulties they claimed might be encountered during construction. As the matter came to the Commission for adjudication, the overarching question was whether the landlords had denied Mrs. Politis a reasonable accommodation. But because the City Human Rights Law departs from its federal and state counterparts by presuming that every accommodation is reasonable, the real question was whether the landlords had carried their heavy burden of establishing that the requested accommodation would impose an undue hardship on their business. On that affirmative defense, the Commission concluded that the landlords had fallen short. 3 The Appellate Division, Second Department, set aside that considered judgment, faulting the Commission for failing to point to substantial evidence “rebutting” the landlords’ structural infeasibility claim. But in framing the inquiry in that way, the court failed to honor the deferential standard of review and the demanding substantive standard underneath it. Under a correct understanding of both, the Commission’s determination could not be set aside unless there was no room in the record to support its resolution of the undue hardship question. Not only was there room for that conclusion, it was the most reasonable conclusion to reach. After all, the landlords conceded financial reasonableness. And while the landlords claimed that the proposed work posed structural difficulties, their own architect found the work was feasible and the only witness they proffered likewise conceded that it could be done. Proving the point, a similar modification had been done on another building in the same apartment complex, and the landlords offered no satisfying explanation why the modification was feasible there and infeasible here. Multiple witnesses also testified that the 4 accommodation sought by Mrs. Politis is commonplace, uncomplicated, and inexpensive. On this record, there was ample evidence behind the Commission’s rejection of the landlords’ undue hardship defense. The City Council intended for landlords to make accommodations like the one Mrs. Politis requested. This Court should reverse the order below, and restore the Commission’s determination and award. QUESTION PRESENTED Did substantial evidence support the Commission’s determination that the landlords failed to establish their affirmative defense that accommodating Ms. Politis would cause undue hardship to their business, where (a) the landlords conceded that no financial burden would follow from the proposed accommodation, (b) a similar modification had been made to a building in the same apartment complex, (c) three witnesses testified that the accommodation—a window-to-door conversion and ramp—is commonplace and uncomplicated, (d) the landlords’ own architect reported that the project was feasible, and (e) the 5 landlords’ sole witness, a structural engineer, initially reported that the project would be financially burdensome, not structurally infeasible? STATEMENT OF THE CASE A. The special protections of the New York City Human Rights Law and the Commission’s role in safeguarding them The New York City Human Rights Law is arguably the most powerful and comprehensive civil rights law in the nation. Not satisfied with approaches taken elsewhere, the City Council endowed the law with “uniquely broad and remedial purposes.” N.Y.C. Admin. Code § 8-130; see also N.Y.C. Local Law No. 85 of 2005 (requiring the law to “be construed liberally for the accomplishment of [its] uniquely broad and remedial purposes”). The law thus provides broader protections than its federal and state counterparts. The City Council tasked the New York City Commission on Human Rights with eliminating housing and other forms of discrimination. N.Y.C. Admin. Code § 8-101. As part of its broad mandate, the Commission enforces the provisions of the City 6 Human Rights Law ensuring that landlords extend reasonable accommodations to tenants with disabilities. Id. § 8-107(15). While the law affords aggrieved tenants a private right of action, private attorneys are hard to come by in the housing discrimination context—where high monetary payouts are few and far between— especially for tenants with disabilities, who are twice as likely to live in poverty.1 The Commission thus performs a necessary and singular role in this area: it investigates complaints, strikes agreements with landlords, and, when necessary, litigates and adjudicates disputes. The Commission’s Project Equal Access aims to quickly resolve disability-based complaints, including those about housing accommodations, without litigation (Record on Appeal (“R.”) 230- 31).2 Staffed with experts on accommodation issues, the Project 1 See University of New Hampshire Institute on Disability, 2016 Annual Disability Statistics Compendium at 32-33 (2017), available at https://perma.cc/4DDC-K3V7. 2 See also Amy Zimmer, Meet the Man Making NYC More Accessible for New Yorkers with Disabilities (Aug. 16, 2016), available at http://dnain.fo/2bHO19T. 7 investigates about 200 complaints per year (R. 231-32).3 Many involve situations like the one presented in this case, where an individual is effectively trapped at home because of the lack of an independent means of egress (R. 230-31). The Project has persuaded hundreds of landlords to accommodate tenants without the need to resort to litigation (R. 232). Many of these resolutions have involved the conversion of windows into doors (R. 241-42, 258, 276), and the installation of ramps, which—in the Commission’s experience—are cheap and easy to install (R. 253-54). When the Project is unable to negotiate a resolution, the Commission’s Law Enforcement Bureau may take legal action on behalf of the complainant. N.Y.C. Admin. Code §§ 8-105(4)-(6), 8- 120. When an investigation leads to a probable cause determination, cases are referred to the New York City Office of Administrative Trials and Hearings (OATH), where an administrative law judge (ALJ) holds an evidentiary hearing and 3 See also New York City Commission on Human Rights, 2016 Annual Report at 33-34, available at https://perma.cc/D3SF-URG2. 8 prepares a non-binding report and recommendation. Id. § 8-120(a); 47 R.C.N.Y. §§ 1-75 & 1-76. But the ultimate determination always remains with the Commission, which is free to reject the ALJ’s recommendation in whole or in part based on its independent evaluation of the evidence. Orlic v. Gatling, 44 A.D.3d 955, 957 (2d Dep’t 2007). B. The City Human Rights Law’s demanding “undue hardship” standard New York City should be as accessible to the hundreds of thousands of residents with disabilities as it is to any New Yorker. But an unfortunate truth remains: for too many of our neighbors, the city is a formidable place to live, often requiring the kindness of strangers or the humiliation of being carried like a child in order to complete the seemingly simple task of entering one’s home. The reality of being a person with a disability in the city is that tasks many of us complete without a thought, for some, require intricate planning and preparation. A bedrock principle of civil rights is that there can be no true equality without equal access. To achieve true equality of access in 9 housing, the City Human Rights Law mandates that landlords reasonably accommodate tenants with disabilities. N.Y.C. Admin. Code § 8-107(15). The law sets high expectations for landlords: it presumes that every accommodation is reasonable unless it “shall” impose an “undue hardship in the conduct of [the landlord’s] business,” with the burden of proving undue hardship on the landlord. Id. § 8-102(18); Jacobsen v. NYC Health & Hosps. Corp., 22 N.Y.3d 824, 841 (2014) (discussing undue hardship in employment context). Because the statute focuses in large part on the landlord’s “business,” most if not all of the considerations relevant to undue hardship are designed to ferret out how an accommodation will impact a landlord’s finances and operations. The law lists factors the Commission should consider, such as “the nature and cost of the accommodation,” the impact on “operations,” and “the overall financial resources” not only of the specific facility involved, but also of the entity as a whole. N.Y.C. Admin. Code § 8-102(18). In many undue hardship cases, a landlord points to the cost of an accommodation and the impact on its financial health. After 10 all, the statute codifies common-sense insights: the more resources a landlord has, the less likely it will face an undue hardship; and the less costly an accommodation, the less likely it will constitute an undue hardship. Thus, it behooves landlords claiming undue hardship to come forward with detailed information about the cost of a requested accommodation and its broader financial impact on their business. Not infrequently, the defense rises and falls on such details.4 Indeed, even under federal law, considered less protective of those with disabilities, the proponent of an “undue hardship” must “perform a cost/benefit analysis,” which requires a “refined analysis,” the submission of financial information, and projections of costs and expenses. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 139, 143 (2d Cir. 1995). 4 See, e.g., Comm’n v. T.K. Mgmt., OATH Index Nos. 191/03 (May 3, 2004), available at https://perma.cc/ZZA4-7L9G, & 721/05 (Apr. 14, 2005), available at https://perma.cc/F4YS-WWCW (rejecting landlord’s claim it operated at a loss based on a tax fiction, when property earned over $250,000 in three years), upheld by T.K. Mgmt. v. Gatling, 2005 N.Y. Misc. LEXIS 3593, at *11 (Sup. Ct. Nov. 2, 2006); Comm’n v. Co-op City, OATH Index No. 1831/10 (Nov. 18, 2010) (R. 1155-72) (rejecting claim that work accommodation could only be done “at high cost” where landlord failed to turn over financial information), upheld by Riverbay Corp. v. N.Y.C. Comm’n on Human Rights, 2011 N.Y. Slip Op. 34042(U), at 16 (Sup. Ct. Sept. 9, 2011) (R. 1127-40). 11 C. Irene Politis’s need for an accommodation to access her home equally and independently This case arises from the landlords’ failure to accommodate the needs of Irene Politis. Mrs. Politis is paralyzed from the diaphragm down and uses a wheelchair to get around (R. 281-82). In 1985, Mrs. Politis and her husband—who are from Greece— moved into an apartment in Astoria (id.), one of the largest Greek communities in the United States (R. 304).5 Mrs. Politis does not speak English (id.). The Politises’ apartment is on the first floor of an apartment building in a seven-building complex. After entering the ground- level building entrance, one must climb five steps to reach the door of the apartment; there is no wheelchair-accessible entrance (R. 284). Because Mrs. Politis cannot navigate the steps, she can enter and exit her apartment only when her husband (or occasionally her son) carries her (R. 289). Once she is outside, Mrs. Politis uses a motorized wheelchair to get around independently 5 See also Richard Shepard, Astoria, a Greek Isle in the New York City Sea, N.Y. TIMES, Nov. 15, 1991 (“[I]t’s like being in Athens.”). 12 and lead an active life (R. 283-84). She does errands, visits friends and family who speak Greek, and goes to a Greek church (R. 298, 337). When the family first moved into the apartment, Mr. Politis could carry Mrs. Politis up and down the stairs on demand. As time has passed, however, Mr. Politis has found it more difficult to do this (R. 295, 316-17). A few years ago, he fell and injured his back while carrying Mrs. Politis down the stairs (R. 319). Mrs. Politis described her husband’s nerves as “shattered” from having to carry her in and out of their home for nearly 30 years (R. 295). Nowadays, due to age and his back injury, Mr. Politis only takes Mrs. Politis outside two or three times a week, leaving Mrs. Politis trapped at home for days on end, waiting for someone to carry her outside (R. 295-96, 316-17, 320). Mrs. Politis described the feeling of not being able to leave her apartment as “the worst thing” (R. 296). Indeed, when she looks at the five steps that stand between her and independence, it is “like the whole world is falling in on [her]” (id.). 13 When Mrs. Politis does manage to get outside, she has to stay out until someone can carry her back in. She often soils herself while waiting (R. 281, 309). Mrs. Politis also legitimately fears for her safety (R. 310, 323-26). Tenants with disabilities face a heightened risk of injury or death from fire and other hazards,6 and Mrs. Politis has seen that risk firsthand. In 2009, the fire department ordered the evacuation of her building due to a gas leak, but she was trapped inside, unable to leave (R. 323-25). Similarly, in 2011, there was an explosion at a Con Edison facility just steps away from the Politises’ apartment (R. 325-26).7 Mrs. Politis cannot evacuate when such events happen unless her husband is home to help her (R. 326). 6 See generally William C. Hollis, Rights of People with Disabilities to Emergency Evacuation, 5 J. HEALTH CARE L. & POL’Y 524, 525 (2002); Adrien Weibgen, The Right to Be Rescued, 124 YALE L.J. 2406, 2411 (2015); Marty Ahrens, Physical Disability as a Factor in Home Fire Deaths (June 2014), available at https://perma.cc/Y7VR-T6RB. 7 See Katy Tur, Explosion at Power Plant Rattles Astoria, NBC NEWS (July 27, 2011), available at https://perma.cc/UB9H-U5GM. 14 D. The landlords’ refusal to make a common modification to accommodate Mrs. Politis 1. The landlords’ modification of another building in the same apartment complex In 2008, the Politises asked the landlords to install a wheelchair-accessible entrance to their building (R. 304). When the landlords refused, the Politises contacted the Commission for assistance (R. 305, 432). Two Commission employees—Robert Tilley, then a human rights specialist, and Ted Finkelstein, the director of Project Equal Access—visited the apartment complex to determine whether an accommodation could be made (R. 233, 432). They found that the front entrance was too narrow to accommodate a ramp, but they proposed converting a window in the Politises’ unit into a door and installing a ramp at that door (R. 132-33, 893-95). The Commission investigators proposed this idea because they saw that the landlords had implemented that very solution at a similar building in the same apartment complex (R. 433, 893- 95). In 2001, the landlords adapted that apartment for use as a management office; in doing so, they converted a window to a door 15 and installed a wheelchair-accessible ramp (R. 393, 419, 864, 895), as shown in this photo: (R. 895). A handyman did the work (R. 397), which was so unmemorable that the landlords were unable to find any employees or tenants who could recall the details (R. 399, 865). From their review of the work done at the landlords’ management office, Tilley and Finkelstein determined that a similar change could be made to the Politises’ unit (R. 233-34, 433). They suggested this resolution to the landlords (R. 872-75). 16 2. The determination of the landlord’s architect that the requested modification was feasible The landlords hired an architectural firm, Ehasz Giacalone, to conduct a “feasibility study” addressing what accommodations could be made for Mrs. Politis (R. 858, 871). The architect who conducted the study, Louis Giacalone, determined that Mrs. Politis’s apartment could be made accessible by removing the kitchen window, enlarging the opening somewhat to reach the floor, and installing an accessible door and ramp (R. 860). Giacalone also found that the site topology of the rear of the building would “readily accommodate” a ramp (R. 861). He noted that construction might become “quite involved,” but that it was nonetheless structurally feasible (R. 862). Although the landlords had represented that they would inform the Commission of the report (R. 439), they evidently had a change of heart when their own architect concluded that the requested accommodation was feasible after all. From that point forward, the landlords made every effort to keep the report from the Commission—asserting, unsuccessfully, that it was attorney 17 work product—until its production was compelled at the OATH hearing (R. 827). 3. The landlords’ efforts to displace the Politises from their home rather than provide the requested accommodation Two weeks after their architect told them the accommodation was feasible, the landlords hired a lawyer, who told the Commission that the cost of the work—which was not then and never has been disclosed—was “unreasonable” (R. 881). The landlords further feared that accommodating Mrs. Politis would encourage other tenants to request accommodations (id.). Regrettably, landlords often find it is easier to displace a tenant than it is to accommodate one. Here, rather than implementing the accommodation their architect deemed feasible, the landlords instead proposed to relocate the Politises to an apartment in one of their many other buildings (id.). They suggested two possibilities, one in Jamaica and another in Central Islip (R. 882). Neither was a realistic alternative. The Politises depend on a section 8 rental subsidy that is tied to their current apartment, 18 sharply limiting their ability to move (R. 314, 331-33, 884). When Mr. Politis contacted the housing authority, he was told that he would lose the benefit if the family relocated (R. 338). Even setting aside their financial situation, the Politises were reluctant to move out of Astoria, the Greek community where they have lived for nearly three decades (R. 337). Their friends, family, doctors, and church are all in Astoria, and Mrs. Politis—who does not speak English—can communicate with the many Greek-speaking residents there (id.). The Jamaica apartment was 12 miles away—by New York City standards, a different country—and the Central Islip apartment was 50 miles away—a different planet (R. 882). These distances look even greater from the perspective of a wheelchair. For over a year, the landlords took no action to make the Politises’ apartment wheelchair accessible (R. 883-85). Their singular focus was on moving the family out (id.). In a step that has never been explained, let alone justified, the landlords installed two surveillance cameras outside the Politises’ apartment (R. 308). One camera was installed in such a manner 19 that it could record inside the apartment when the door was ajar (id.). Cameras were not installed at any other unit in the apartment complex (R. 309). 4. An engineer’s claim that the modification would cost an “unfeasible” amount Four months after Mrs. Politis filed a formal complaint with the Commission, the landlords hired Gennady Saratovsky, a structural engineer, to assess the feasibility of the requested accommodation (R. 915-20). The report Saratovsky prepared is rife with conclusory statements and vague observations. In it, Saratovsky concluded that the proposed work was “financially unfeasible” (R. 920). He did not, however, identify the cost. The Politises’ building is made of cinder concrete, which Saratovsky claimed is a “weak” material (R. 915). His report asserted that cutting into the wall to convert a window into a door could cause the wall to collapse (R. 915-16). To prevent that, he claimed, temporary shoring would have to be installed, which would require an “immense” but unspecified “expenditure of time and funds” and the evacuation of the building (R. 915). 20 Saratovsky’s report further suggested that installation of a ramp outside the building would involve excavation by hand, the removal of bushes, and the installation of an irrigation drain (R. 916-19). Installing a drain, he claimed, would require “a considerable” but unspecified “amount of capital” (R. 919). Without ever specifying the cost of the project, or how it would impact the landlords’ business, Saratovsky opined that the project would be “financially unfeasible” (R. 920). Notably, his report failed to acknowledge the similar work done at the nearby building that now contains a management office. It also failed to indicate how long that work took, how much it cost, or whether the building was evacuated during the construction. E. The landlords’ attempted pivot from financial hardship to “structural infeasibility” After finding probable cause to believe that the landlords denied Mrs. Politis a reasonable accommodation, the Commission referred the matter to OATH for a report and recommendation (R. 929). There, the landlords refused to produce any and all information about their finances (R. 35 n.1). In doing so, they 21 abandoned their original contention that the cost was “unreasonable” (R. 881), and now claimed instead that converting a window into a door would be “structurally infeasible” (R. 757). The landlords thus deliberately removed exceptional financial burden from the picture. By their own choosing, there was no dispute that the cost of the accommodation was reasonable, and there was no dispute that their finances would be unaffected. With these concessions, the landlords relied solely on their newly-minted structural infeasibility argument to carry their heavy burden of establishing undue hardship. To support their “structural infeasibility” argument, the landlords called Saratovsky to testify, whose report had concluded that the work would be “financially unfeasible” (R. 920) (emphasis added). Saratovsky now claimed that installing a door and ramp might take three months (R. 667). He repeated assertions in his report—that the building is made of cinder block, and that expanding the window would require “special shoring” to reinforce the building while construction was taking place (R. 653, 660-63). And he suggested that installing beams would require cutting 22 through all the apartments or “building another building inside the building,” potentially blocking corridors and posing a fire hazard (R. 660-67). Saratovsky also testified that gas lines were located in the basement below the Politises’ unit (R. 664). He thought it might be necessary to cut the gas lines “at certain times,” though he never specified when or for how long, and asserted that the entire building might need to be temporarily evacuated (R. 669). He further claimed that the apartments adjacent to the Politises’ would need to be evacuated throughout construction because shoring beams would interfere with access to those units (R. 669- 70). Finally, he posited that even installing a ramp outside would be difficult, because it might sink into the soil and require deep footing (R. 677-79). Saratovsky conceded, however, that he had never worked on a project that involved installing a door in a cinder block wall (R. 618). When asked about the modification done at the management office in the same apartment complex, which is also made of cinder block (R. 686), Saratovsky admitted he did not 23 know how that work was done (R. 686, 714-15). He speculated that fewer beams might have been needed to shore up the walls there because there are no gas lines below the management office (R. 688-89). But he stuck to his claim that cinder block, by its nature, requires complicated shoring to prevent collapse (R. 706). Unlike his report—which, again, claimed only that the work would be “financially unfeasible” (R. 920)—Saratovsky testified at the OATH hearing that the project was “not feasible” and “impossible” (R. 676-77, 719). But he ultimately conceded in his testimony that the proposed project could be done if money were no object (R. 721)—evidently unaware that the landlords had waived any defense based on cost. The landlords further conceded that a handyman had performed the work on the management office (R. 393-94, 397, 419). Though they claimed it was “structurally infeasible” to perform the same work on the Politises’ unit, the landlords produced no evidence about the difficulty of that work, how long it took, or whether it interfered with their business in even the slightest respect (R. 865-66). 24 Meanwhile, Commission employee Finkelstein testified that, in the Commission’s experience, similar modifications are common and inexpensive. He had seen such modifications made in several other buildings in the 30 years he worked for the Commission (R. 230, 233-34, 258). In fact, in the year before he testified, he had seen two or three window-to-door conversions, which “didn’t seem that complex,” in similar buildings in Brooklyn (R. 241-42, 276-77). Consistent with this experience, two architects—Louis Giacalone and Leon Geoxavier—agreed that converting a window to a door is feasible and fairly common in New York City. Giacalone, an architecture expert who did the initial feasibility study that the landlords had tried to withhold, explained that the Politises’ kitchen was a “fairly logical place” to convert a window into a door, and that there was room for a ramp outside (R. 369). He was unsure whether “additional structural enhancements,” like shoring, would have to be made (R. 378). But Giacalone testified that removing pieces of wall is quite common (R. 382-83). 25 In fact, in any renovation of an existing building, removing a wall is “almost invariably” required (id.). Geoxavier submitted a report and testified as an expert in architecture and disability accommodations (R. 500). He had worked on projects where openings were created in walls of apartment buildings, and had just recently created a new door in a load-bearing wall of a five-story building containing 40 apartments (R. 501-02). Temporary shoring—which was installed in a few hours—helped support the building while the door was created (id.). No tenants were evacuated (R. 502). Geoxavier testified that the conversion proposed for Mrs. Politis’s apartment was a “relatively small” project and “not … very complicated at all” (R. 526, 528). Having reviewed Saratovsky’s proffered report, Geoxavier disagreed with the notion that cinder block is a “weak” material (R. 519-20), and that the soil around the building could not bear the ramp (R. 527-28). He explained that any risk of damage was the kind of theoretical risk inherent in any construction project—that is, “very, very low” (R. 583). 26 According to Geoxavier, some shoring might be required, but evacuations were “[a]bsolutely not” necessary (R. 524). Indeed, he testified that any shoring could be set up and removed in a single day for $2,000 to $3,000 (R. 526). After all, he explained, in New York City, “[r]amps are built all the time, [and] windows are enlarged or turned into doors quite frequently” (R. 529). F. The conflicting decisions below 1. The ALJ’s report and recommendation In a non-binding report and recommendation, the ALJ faulted the Commission for failing to “contradict” or “rebut” the landlords’ affirmative defense that the proposed accommodation was structurally infeasible (R. 845). Despite acknowledging that the landlords had found it feasible to cut through a similar wall, made of the same material, in another building at the same apartment complex (R. 839), the ALJ believed she could not “presume congruity” between the two buildings because the Commission did not present evidence about how that modification was performed (id.). “The absence of evidence is not evidence,” she noted (id.). 27 The ALJ further found that the landlords’ proposal to relocate the Politises to Jamaica or Central Islip was reasonable (R. 845-46). It was not the landlords’ fault, she believed, that the Politises were dependent on a section 8 voucher (R. 846). The ALJ did not address whether it was reasonable to relocate Mrs. Politis so far from her longstanding and Greek-speaking community. 2. The Commission’s determination The Commission rejected the recommendation, finding that the ALJ misapprehended the burden of proof when she expected the Commission to “rebut” the landlords’ undue hardship defense and present evidence about the modification to the management office (R. 41-45). The Commission noted that, because it was the landlords’ burden to prove undue hardship, it was also their burden to reconcile the proven feasibility of that prior modification with the claimed infeasibility of the accommodation proposed for Mrs. Politis (R. 44). The Commission accepted the broad strokes of the ALJ’s credibility findings but had a different take on the weight and meaning of the evidence in the record. It found that the totality of 28 the record evidence confirmed that the proposed accommodation not only could be done, but in fact had been done at a similar building in the same apartment complex (R. 45). Given that fact, it was incumbent on the landlords to establish that the renovation to the Politises’ apartment was so materially different and exponentially more difficult to amount to an undue hardship. The Commission found that the landlords failed to do so (R. 46). The Commission also determined that proposing to relocate the Politises to Jamaica and Central Islip did not constitute a reasonable accommodation (R. 48). It noted that the Politises depended on a non-transferrable section 8 voucher, and the landlords’ proposal would dislocate the Politises from the community where they had established deep roots (id.). As a remedy for the landlords’ then-years-long failure to accommodate Mrs. Politis, the Commission mandated that the accommodation be made, awarded Mrs. Politis compensatory damages in the amount of $75,000 for mental anguish, and imposed $125,000 in civil penalties (R. 52, 57). The compensatory award was based upon the severity and duration of the unlawful 29 acts, as well as awards in similar cases (R. 50). The penalty was based on the landlords’ response to Mrs. Politis’s accommodation request, which included their unexplained and unjustified installation of a video camera to monitor her, and their failure to produce evidence in a timely manner (R. 54-57). 3. Supreme Court’s decision Supreme Court determined that the Commission’s decision was supported by substantial evidence (R. 17-22). It began its analysis by noting the deferential standard of review of administrative determinations, like this one, made after an evidentiary hearing (R. 17). The court observed that the Commission, not the ALJ, renders the ultimate determination (R. 10). And that determination must be upheld so long as it is supported by substantial evidence (id.). The court found the Commission’s determination had such support (R. 22). It was undisputed that the landlords had expanded a window into a door at a similar building in the same complex, work that was carried out by a handyman, not a structural engineer or an architect (id.). Faced with an example of 30 a project showing that the work was feasible, the Commission’s finding that the landlords did not carry their burden of proving undue hardship was supported by substantial evidence (id.). Supreme Court upheld the $125,000 civil penalty in full (R. 26). But it found the compensatory damages award to be excessive and reduced it by $15,000 to $60,000 (R. 24). 4. The Appellate Division’s reversal The Appellate Division, Second Department, reversed in a brief decision (R. 1376-78). Like the ALJ, the Appellate Division misunderstood where the burden lay. Without mentioning the modification done to the management office, the court concluded that “the record did not contain any substantial evidence rebutting [the landlords’] showing that it would be structurally infeasible to install a handicapped accessible entrance to the complainant’s apartment” (R. 1378). None of the cases it cited addressed reasonable accommodations or undue hardship (id.). JURISDICTIONAL STATEMENT On February 14, 2017, this Court granted the Commission leave to appeal from the Appellate Division’s February 1, 2016 31 order, which finally determined this proceeding. The Court therefore has jurisdiction under C.P.L.R. 5602(a)(1)(i). ARGUMENT SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSION’S FINDING THAT THE LANDLORDS FAILED TO CARRY THEIR BURDEN OF ESTABLISHING UNDUE HARDSHIP The Appellate Division committed two fundamental errors that amplified one another. It began by adopting a mistaken view of the “substantial evidence” standard: that standard doesn’t permit a court to decide which of two competing interpretations of the evidence is more reasonable; it asks only whether the agency’s interpretation was a reasonable one. The court then compounded that threshold error by creating a new obligation on the Commission (or the complaining party in a private suit) to “rebut” undue hardship claims in reasonable accommodation cases. In fact, the burden of proving undue hardship always remains with the landlords. The immediate result of these errors is that Mrs. Politis will continue to be denied equal and independent access to her home. 32 While that alone is lamentable, the impact of the decision goes much further. The legal framework imagined by the Appellate Division deviates sharply from the one articulated in the City Human Rights Law and raises serious concerns with respect to the law’s future utility in ensuring equal and independent housing access for people with disabilities. The order below must be reversed. A. The question before the court was whether there was any room to conclude that the landlords failed to establish undue hardship, not whether that was the best conclusion. Though the Appellate Division paid lip service to the substantial evidence standard, it failed to apply it. As this Court has explained, “substantial evidence” is a term of art defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180 (1978). This is a deferential standard: substantial evidence must be “[m]ore than seeming or imaginary, [but] it is less than a preponderance of the evidence.” Id. “[I]t demands only that a 33 given inference is reasonable and plausible, not necessarily the most probable.” Miller v. DeBuono, 90 N.Y.2d 783, 793 (1997) (quotation marks omitted). Therefore, if there is conflicting evidence in the record and “room for choice” among competing inferences, a court must defer to the agency’s choice among the competing inferences. 300 Gramatan, 45 N.Y.2d at 180. The substantial evidence standard is extremely deferential for good reason. When a determination flows from an evidentiary hearing, it presupposes a substantial investment of resources by the agency and other participants. Agencies that address similar questions time and again bring their broader experiences to bear and offer a practical perspective on common claims and evasions that reviewing courts may not share. When courts freely second- guess determinations made by agencies under their legislatively- prescribed authority and within their areas of expertise, it does a disservice to the agency, other participants, and the legislative judgment itself. It affects the judiciary too, by undermining the finality that administrative determinations should have in the run 34 of cases and encouraging parties to relitigate disputes in the courts. The substantial evidence standard becomes only more deferential, in practice, when the case turns on a demanding affirmative defense like undue hardship. Because the landlord bears the burden to rebut the presumption that a proposed accommodation is reasonable by establishing that it would work an undue hardship, the Commission has no burden to present evidence on undue hardship. So the proper question on article 78 review in an undue hardship case is whether the administrative record compelled the conclusion that the landlord met its heavy burden of establishing undue hardship. Stated differently, the question becomes whether there is no room for a reasonable person to conclude that the landlord failed to cross that threshold. See 300 Gramatan, 45 N.Y.2d at 180. If there is any room for choice, then the court’s inquiry is at an end, even if it might have reached a different conclusion. 35 B. Ample evidence afforded the Commission more than fair leeway to conclude that the landlords did not discharge their burden. This Court need not, therefore, decide that the Commission’s conclusion that the landlords failed to meet their burden was the most reasonable interpretation of the record (though it was). The question that this Court must decide is whether any evidence reasonably supports the conclusion. The answer is plainly yes, as Supreme Court acknowledged in a thorough decision upholding the Commission’s decision (R. 8). A reflection of its pro-accommodation tilt, the City Human Rights Law sets up an imposing hurdle for landlords who want to avoid accommodating a tenant. See Jacobsen, 22 N.Y.3d at 834-35 (addressing standard in employment context). Other civil rights laws require the tenant to demonstrate, in the first instance, that a sought-after accommodation is reasonable.8 But the City Human Rights Law is different, and deliberately so. See id. (comparing 8 The Fair Housing Act is one example. See 42 U.S.C. § 3602(h). The State Human Rights Law is another, at least as to common areas. Exec. Law § 296(18)(2). Outside common areas, the State law expects tenants to show that modifications are “necessary” (and even then only obligates a landlord to “permit” reasonable modifications, not to provide them). Id. § 18(1). 36 State and City approaches); see also N.Y.C. Local Law No. 85 of 2005. To promote true equality of access in housing, the City’s law begins with the presumption that every accommodation is reasonable. A landlord can only rebut this presumption by proving that the requested accommodation would pose an “undue hardship” on its business. N.Y.C. Admin. Code § 8-102(18).9 Below, the Appellate Division faulted the Commission for not “rebutting” the landlords’ claim of structural infeasibility (R. 1378). But the court cited no authority for imposing such a burden on the Commission. None of the cases cited by the court address reasonable accommodations or a landlord’s claim of undue hardship (id.). The court may have been influenced by the McDonnell Douglas burden-shifting framework under Title VII. But that 9 We note, moreover, that even when a landlord can establish that a particular accommodation would impose an undue hardship, that does not relieve the landlord of its obligation to provide a reasonable accommodation. Here, the only other “accommodation” that the landlords purportedly considered was their proposal to relocate the Politises to Jamaica or Central Islip. But in the lower courts, the landlords did not challenge the Commission’s finding that that their proposal was unreasonable (R. 18). Thus, even if the construction of a ramp imposed an undue hardship—and it doesn’t—the landlords still would have violated their duty to accommodate. 37 framework has no place here. The law’s plain terms leave no doubt as to what is expected of landlords. Even under federal law, which is less generous than City law, the installation of ramps and widening of entrances are presumed to be “readily achievable, i.e. easily accomplishable and able to be carried out without much difficulty or expense.” 28 C.F.R. § 36.304(b). The record reflects the landlords’ failure to prove undue hardship. They made no effort to establish either the cost of the requested accommodation or the impact on its finances, waiving any financial hardship defense. Thus, on top of the baseline presumption that every accommodation is reasonable, the landlords piled two more: the cost of the particular accommodation requested here was entirely reasonable, and there would be no negative impact on their finances or bottom-line. The landlords instead predicated their entire defense on a theory of pure “structural infeasibility,” even though their own expert confirmed that the proposed accommodation could be done if money were no object (R. 721). His testimony shows that the landlords’ “structural infeasibility” defense is just a backdoor 38 attempt to show that the work would be too expensive—which indeed is what the expert’s own report initially said and what the landlords initially claimed before the Commission (R. 881). But the landlords later chose to take financial hardship off the table, seemingly to avoid the review of financial matters that would be required to assess such a claim. They thus have no case if, as their own expert conceded, any difficulties could be surmounted at considerable expense. That concession alone provided reason enough for the Commission to reject their “structural infeasibility” defense on this record. But even setting that to one side, the feasibility of the proposed accommodation is evident from the fact that these very same landlords have done the very same work in the very same apartment complex. The evidence showed that, like the Politises’ apartment, the management office unit is composed of cinder block; that an ordinary handyman converted a window into a door and installed a ramp there; and that it is in daily use and shows no sign of cracks or damage. 39 The landlords failed to present—as the burden of proof required them to do—a shred of evidence that the construction done at the management office building was overly complicated, required the evacuation of any tenants, or caused any hardship to their business. The ALJ correctly observed that the landlords’ structural engineer expert “did not study the management office modification” (R. 838). But the ALJ got the significance of this point backwards. “[T]he utter absence of evidence on how that modification was performed” was indeed damning, but to the landlords’ undue hardship defense. This is because the landlords at all times retained the burden of proof regarding the defense (R. 45). Not only does the law make it clear that the burden rests with the landlord, but such an allocation makes sense. In nearly all instances, a landlord is “in the better position to assess the feasibility of possible accommodations and to know how they will impact its business operations.” Louis Harris & Assocs. v. deLeon, 84 N.Y.2d 698, 706 (1994). This case illustrates the point: the landlords had far superior, if not exclusive, access to information 40 about the modification of the management office because they arranged and paid for the work to be done and continued to have unfettered access to the office (R. 393-94, 864-65). When information held by parties helps their cause, they are usually eager to share it. And the converse also holds: when parties withhold information that they alone possess, it is a fair inference that the information would not bear out their claim. Rather than confront the issue of the prior modification head-on, the landlords tried to skirt it and portray the two buildings as incomparable. They suggested, in particular, that the window to the Politises’ apartment would need to be widened and that the presence of gas lines below presented challenges (R. 1125). But their structural engineer admitted that he did not know whether the window to the management office had been widened, and he failed to explain how or why the absence of gas lines would be a game-changer under his theory (R. 688-89). To the contrary, he opined that any effort to cut through cinder block would render work infeasible because such work, by its nature, requires elaborate shoring (R. 706). The landlords never explained 41 how that sweeping opinion jibes with the fact that the management office was similarly modified: either that project did not require shoring and thus the expert overstated the need for it, or the project did require shoring and yet was not “infeasible,” as the landlords now claimed. On this record, the most that could be said is that one could reasonably draw conflicting conclusions about whether the landlords satisfied their heavy burden. But that is only a reason to uphold the Commission’s determination, not to upset it. Only by disregarding the deferential substantial evidence standard and diluting the demanding undue hardship standard could the Appellate Division have found that there was no room for the Commission to conclude that the landlords fell short.10 10 The Appellate Division did not address the Commission’s award of $75,000 in compensatory damages (which Supreme Court reduced to $60,000) and $125,000 in civil penalties. Like the Commission’s merits decision, the award was entitled to deference and should be restored. 42 C. The Appellate Division’s ruling undermines the rights of tenants with disabilities and hinders the Commission’s work. The Appellate Division’s decision materially alters the balance struck by the City Human Rights Law at the expense of people with disabilities. Indeed, it gives landlords a new tool to resist providing accommodations based on the argument that the burden of establishing undue hardship has been lowered. The Commission—or plaintiffs with disabilities in private suits—will now have the burden of rebutting even unsupported claims that accommodations might be somewhat difficult even if they are financially reasonable. Such a framework runs contrary to the text and purpose of the City Human Rights law. Landlords, some of whom have vast resources, will benefit for the first time from the burden-shifting the court’s decision seems to require. The Commission, on the other hand, which has limited resources, will find itself in intractable negotiations and litigation, because in the Appellate Division’s view, the Commission is now seemingly charged with disproving claims of undue hardship. 43 But the most harmful impact of this Court’s decision will be felt by the people the law is meant to protect. More individuals with disabilities will remain trapped in their homes, unable to see a doctor, spend time with their families, or even simply to get fresh air. Others might find themselves unable to access public accommodations like stores and restaurants by landlords making newly-entrenched claims of hardship. And while this case involves technical questions of law and the standard of review of administrative decisions, each complaint of discrimination represents real-life suffering. Mrs. Politis’s experience is a case in point. She could have had a ramp installed to access apartment long ago. Instead, in the nine years since she filed her complaint with the Commission, she has been relying on her husband to carry her up and down the stairs of her apartment building. Unfortunately, Ms. Politis’s case is not uncommon. In the same way that she has suffered as a result of the landlords’ intransigence, many others will suffer if landlords believe that the City Human Rights Law now gives them newfound license to refuse accommodations. 44 If the Commission’s work is impeded, many individuals with disabilities will have no realistic alternative to obtain redress. Because housing discrimination claims typically have small monetary value and are raised frequently by persons of limited resources, few private attorneys take the cases and even fewer complaints are filed in court. The Commission is often a place of last resort for individuals suffering discrimination. The overall impact of the Appellate Division’s decision, if it is left to stand, will be fewer accommodations and more litigation by landlords seeking to avoid accommodating tenants with disabilities. The ruling hinders the Commission’s ability to ensure that all New Yorkers have the ability to achieve equal and independent access to their homes. This Court should reverse, and restore the understanding of the City Human Rights Law that the City Council always intended. 45 CONCLUSION The order appealed from should be reversed. Dated: New York, NY May 30, 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 46 CERTIFICATE OF COMPLIANCE I hereby certify that this brief was prepared using Microsoft Word 2010, and according to that software, it contains 8,576 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