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, 2018COURT OF APPEALS OF THE STATE OF NEW YORK APL-2017-00025 In the Matter of the Application 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, and IRENE POLITIS, Respondent. BRIEF OF DISABILITY RIGHTS NEW YORK AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS DISABILITY RIGHTS NEW YORK BY: SIMEON GOLDMAN SARA LISS Attorneys for Amicus Curiae 725 Broadway, Suite 450 Albany, New York 12207 Tel.: (518) 432-7861 Fax: (518) 427-6561 sim.goldman@dmy.org TABLE OF CONTENTS TABLE OF CONTENTS iTABLE OF AUTHORITIES 1INTEREST OF AMICUS ARGUMENT CONCLUSION 3 6 TABLE OF AUTHORITIES Cases Irene Politis v. Marine Terrace Holdings, LLC, NYC Comm, on Human Rights, OATH Index No. 11-1673/74, 2012 WL 1657556 (April 24, 2012) 4 Marine Holding LLC v. NYC Comm, on Human Rights, 28 NYS 3d 711 (2d Dept. 2016) 4 Marine Holding LLC v. NYC Comm, on Human Rights, No. 2010-10950 (Sup. Ct. Queens Cty. Mar. 14, 2013) 4 Olmsteadv. L.C., 527 U.S. 581 (1999) 5 Romanello v. lntesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 884-85 (2013) Statutes 7 42 U.S.C. § 12101(a)(5) 4 Other Authorities “Housing New York: A Five Borough, Ten Year Plan,” NYC.GOV, http://www.nyc.gov/html/housing/assets/downloads/pdf/housing_plan.pdf84 (2015) “Local Disability Data for Planners,” http://disabilityplanningdata.com/site/state_population_table.php?state=newyork 6 i (last visited February 2, 2018). 6 Center for Independence of the Disabled, New York, “Disability Matters: Unequal Treatment and the Status of People with Disabilities in New York City and New York State, https://www.cidny.org/wp-content/uploads/2017/07/Disability- Matters-l.pdf (June 2011). 6 Jim Zarroli, “As More People Move In, New York City Suffers Affordable Housing Crisis,” NPR, http://www.npr.org/2016/03/08/469692197/as-more- people-move-in-new-york-city-suffers-affordable-housing-crisis (Mar. 8, 2016) 5 New York City Housing Authority, “Expanding and Preserving Public Housing,” http://wwwl.nyc.gov/site/nycha/about/expanding-preserving-public- housing.page, last visited February 1, 2017 6 New York State Department of Health, “Home and Community-Based Services (HCBS) Final Rule Statewide Transition Plan (STP) Webinar,” https://www.health.ny.gov/health_care/medicaid/redesign/hcbs/docs/2017-02- 16_updated_statewide_transition_plan.pdf (Feb. 16, 2017) 5 Rafael Cestero, “The Right Path to Affordable Housing,” N.Y. DAILY News, http://www.nydailynews.com/opinion/path-affordable-housing-article-1.3171281 (May 17, 2017) 6 ii INTEREST OF AMICUS Disability Rights New York ("DRNY") is the federally authorized Protection and Advocacy System for people with disabilities in New York. DRNY provides free legal services and other advocacy services to advance and protect the rights of people with disabilities. DRNY provides these services under federal grant funded mandates that have been established by Congress to protect and advocate for the rights, safety, and autonomy of people with disabilities. DRNY is committed to providing all New Yorkers with disabilities the opportunity to enjoy the benefits and privileges of community life, and to opposing laws or policies that result in the perpetuation of unnecessary and unjust institutionalization. DRNY has a direct interest in the New York City Human Rights Law (“City HRL”) as applied to housing opportunities for people with disabilities. The Appellate Division incorrectly construed the City HRL to require the tenant, Irene Politis, to prove that her requested accommodation is reasonable and rebut the landlords’ Marine Holdings LLC, d/b/a, Marine Terrace Associates, LLC, and Wen Management Corp. argument that such a modification constitutes an undue hardship. The Appellate Division’s interpretation of the City HRL does not comport with the plain language of the statute. If upheld, it would reduce the 1 already limited housing opportunities for people with disabilities in New York City and leave people with disabilities more vulnerable to institutionalization. PRELIMINARY STATEMENT This brief addresses the issue of who has the burden of proving that an accommodation is reasonable under the City HRL. Ms. Politis uses a wheelchair, lives in an apartment complex with an inaccessible entrance, and cannot exit her apartment independently. Ms. Politis requested that her kitchen window be converted into an accessible exit. The landlords asserted that this modification posed an undue hardship. The New York City Commission on Human Rights (“CHR”) held that under the City HRL, “the covered entity shall have the burden of proving undue hardship; therefore, a person seeking a reasonable accommodation is not required to disprove, rebut, or ‘effectively contradict’ a covered entity’s assertion of undue hardship.” Irene Politis v. Marine Terrace Holdings, LLC, NYC Comm, on Human Rights, OATH Index No. 11-1673/74, 2012 WL 1657556 at *10 (April 24, 2012). The Queens County Supreme Court affirmed. Marine Holding LLC v. NYC Comm, on Human Rights, No. 2010-10950 (Sup. Ct. Queens Cty. Mar. 14, 2013). The Second Department overturned those rulings because “the record did not contain any substantial evidence rebutting the landlords’ showing that it would be structurally infeasible to install a handicapped 2 accessible entrance to the tenant’s apartment.” Marine Holding LLC v. NYC Comm, on Human Rights, 28 NYS 3d 711, 714 (2d Dept. 2016). The Second Department committed reversible error by ignoring the plain language of NYC Admin. Code § 8-102.18. ARGUMENT Without accessible housing, individuals with disabilities are unnecessarily forced into and trapped in institutions such as nursing facilities. For many years Federal law and New York State policy have required the integration of people with disabilities into their communities.1 New Yorkers who require the level of care historically found in skilled nursing facilities need accessible housing to access federal and state programs which provide this care in their homes.2 1 See Olmstead v. L.C., 527 U.S. 581, 600 (1999) (the “unjustified institutional isolation of persons with disabilities” violates the ADA). The ADA explicitly states that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(5). New York State’s “Olmstead Plan,” provides a road map for transitioning people with disabilities out of institutional settings and into the community, as well as metrics for assessing the rate of transition. “Report and Recommendation of the Olmstead Cabinet: A Comprehensive Plan for Serving New Yorkers with Disabilities in the Most Integrated Setting.”https://vvvvvv.nv.gov/sites/nv.uov7filcs/ atoms/files/Olmstcad Pinal Report 2013.pdf (October 2013). For instance, New York State’s 1915(c) Medicaid Waivers (the Care at Home Waivers I and II, and Nursing Home Transition and Diversion Waiver programs) provide home- and community- based care equivalent to a nursing home level of care. New York State Department of Health, “Home and Community-Based Services (HCBS) Final Rule Statewide Transition Plan (STP) Webinar,” https://vvwvv.hcalth.nv.gov/health care/medicaid/redesign/hcbs/docs/2017-02- 16 undated statewide transition nlan.pdf 13 (Feb. 16, 2017). 2 3 The supply of affordable housing in New York City is severely limited.3 The lack of affordable housing disproportionately impacts people with disabilities because they are unemployed or underemployed at a much higher rate than individuals without disabilities.4 People with disabilities have a median income $27,517 less than those without disabilities.5 Furthermore, affordable, accessible housing units in New York City are rare.6 Most of New York City’s housing was built long before Congress amended the Fair Housing Act in 1988 to require that new residential construction be accessible to people with disabilities. 7 People with disabilities often require 3 See Jim Zarroli, “As More People Move In, New York City Suffers Affordable Housing Crisis,” NPR, http://www.npr.org/2016/03/08/469692197/as-more-people-move-in-new-york- city-suffers-affordable-housing-crisis (Mar. 8, 2016), Rafael Cestero, “The Right Path to Affordable Housing,” N.Y. DAILY News, http://www.nydailynews.com/opinion/path- affordable-housing-article-1.3171281 (May 17,2017). 4 According to pooled Census data from 2005 to 2007, the employment rate of people with disabilities in Bronx County is 26.7% as opposed to 65.8% for people without disabilities; in Kings County, 28.9% versus 67.3%; New York County; 32.3% versus 75.8%; Queens County, 35.8% versus 70.9%; and Richmond County, 28.9% versus 69.6%. “Local Disability Data for Planners,” http://disabilityplanningdata.com/site/state_population_table.php?state=newyork (last visited February 2, 2018). Census data from 2010-2012 shows that the employment rate for people with disabilities in New York State is 30.2% as opposed to 71.8% for people without disabilities. 5 Center for Independence of the Disabled, New York, “Disability Matters: Unequal Treatment and the Status of People with Disabilities in New York City and New York State, https://www.cidnv.oru/wp-content/uploads/2017/07/Disabilitv-Matters-l .pdf 54 (June 2011). Income data is adjusted per capita household income based on 2008 Census data. 6 Mayor de Blasio’s 2015 housing plan notes that housing availability for people with disabilities is decreased by the limited availability of accessible buildings and units for lower-income New Yorkers. “Housing New York: A Five Borough, Ten Year Plan,” NYC.GOV, http://www.nyc.gov/html/housing/assets/downloads/pdf/housing_plan.pdf 84 (2015). 7 For instance, the New York City Housing Authority reports that 80% of its buildings are over 40 years old. New York City Housing Authority, “Expanding and Preserving Public Housing,” 4 reasonable modifications to their homes in order to remain in the community but cannot afford to pay for structural modifications. Instead, they rely upon their landlords to make and to pay for those modifications, as required by the City HRL. When a landlord refuses, most people with disabilities are not able to afford to hire private counsel, expert architects or engineers, or identify and obtain the necessary records from the landlord to affirmatively prove undue hardship. Shifting the burden away from landlords will tacitly encourage landlords to refuse to provide necessary modifications simply because they know that a person with a disability will not be able to mount a legal challenge. In acknowledging the significant barriers faced by people with disabilities, the New York City Council designed the City HRL to afford significantly broader protections than the State Human Rights Law.8 NYC Admin. Code § 8-102.18 is unique among disability laws applicable in New York State in its provision that “[t]he term ‘reasonable accommodation’ means such accommodation that can be made that shall not cause undue hardship in the conduct of a covered entity’s business. The covered entity shall have the burden of proving undue hardship” http://vvwvv1■nvc.ciov/site/nvcha/about/expandinu-Dreserving-public-housing.paae.last visited February 1, 2017. 8 Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 884-85 (2013) (citing Local Law No. 85 [2005] of City of N.Y. § 7, amending Admin. Code § 8-130 (declaring that the provisions of the City HRL “shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws ... have been so construed”)). 5 (emphasis added). Neither the federal or state law include such a provision. The fact that the City HRL explicitly places the burden of proof on the landlord indicates a clear legislative intent by the City of New York that tenants not bear that burden. Affirming the Appellate Division’s decision will leave some of New York’s most vulnerable residents unable to avail themselves of the protections carved out for them under City HRL. The New York City Council took measures specifically to avoid this outcome. Section 8-102.18 clearly and unambiguously provides that the burden of proving undue hardship lies solely with the landlord. By shifting the burden to tenants, the Appellate Division imposes an additional bander for people with disabilities which will likely lead to the needless institutionalization of people with disabilities. CONCLUSION For the foregoing reasons, amicus curiae respectfully requests that this Court reverse the decision of the Second Department and hold that Marine Holdings LLC’s failure to install an accessible ramp violates the New York City Human Rights Law. February 2, 2018 Albany, New York 6 Respectfully Submitted, Simeon Goldman Sara Liss Attorneys for Amicus Curiae DISABILITY RIGHTS NEW YORK 725 Broadway, Suite 450 Albany, New York 12207 Tel.: (518) 432-7861 Fax: (518) 427-6561 sim.goldman@dmy.org 7 NEW YORK STATE COURT OF APPEAL CERTIFICATE OF COMPLIANCE I hereby certify that pursuant to 22 NYCRR 500.i(j) that the foregoing brief was prepared on a computer using Microsoft Word 2013. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Point size: Line Spacing: Times New Roman 14 Double Word Count. The total number of words in this brief, inclusive of point headings and exclusive of pages containing the table of contents, table of authorities, proof of service, this certificate, and the cover, is 1,531. COURT OF APPEALS OF THE STATE OF NEW YORK APL-2017-00025 In the Matter of the Application of MARINE HOLDINGS LLC D/B/A MARINE TERRACE ASSOCIATES, LLC AND WEN MANAGEMENT CORP., Petitioners-Appellants, -against- NEW YORK CITY COMMISSION ON HUMAN RIGHTS, Respondent— Respondent, and IRENE POLITIS, Respondent. AFFIDAVIT OF SERVICE I, Sara Elizabeth Liss, being duly sworn, deposes and says: 1. Iam over 18 years of age. 2. My office of business is located at 25 Chapel Street, Suite 1005, Brooklyn, New York 11201. 3. On February 21, 2018, at approximately 10:24 A.M., I served two (2) copies of the Brief of Disability Rights New York as Amicus Curiae in Support of Respondents on MacKenzie Fillow and Zachary W. Carter located at New York City Law Department, 100 Church Street, New York, New York 10007 by personally delivering the same. Sara Elizabeth Liss, Esq. 0?/ÿ" daySworn to before me this of , 2018 1'm. Notary Public NOTARY PUBLIC. STATE OF NEWYORK Registration No. 02FL6154226 J Qualified in Kings County /X mission Expires October 23, 20 COURT OF APPEALS OF THE STATE OF NEW YORK APL-2017-00025 In the Matter of the Application of MARINE HOLDINGS LLC D/B/A MARINE TERRACE ASSOCIATES, LLC AND WEN MANAGEMENT CORP., Petitioners-Appellants, -against- NEW YORK CITY COMMISSION ON HUMAN RIGHTS, Respondent— Respondent, and IRENE POLITIS, Respondent. AFFIDAVIT OF SERVICE I, Sara Elizabeth Liss, being duly sworn, deposes and says: 1. I am over 18 years of age. 2. My office of business is located at 25 Chapel Street, Suite 1005, Brooklyn, New York 11201. 3. On February 21, 2018, at approximately 9:50 A.M., I served two (2) copies of Brief of Disability Rights New York as Amicus Curiae in Support of Respondents on Avery S. Mehlman, Esq., Herrick, Feinstein LLP located 2 Park Avenue, 23rd Floor, New York, NY 10016 by personally delivering the same. A ( Sara Elizabeth Liss, Esq. Sworn to before me this _ÿ/_'day of ffrUM'Y , 2018 [otary Public MARC J. FLIEDNER _ NOTARY PUBLIC. STATE OF NEW YORK Registration No. 02FL6154228 Qualified in Kings County / ' Commission Expires October 23, 20— 1