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 AMICI CURIAE MOBILIZATION FOR JUSTICE, DISABILITY RIGHTS ADVOCATES, COMMUNITY SERVICE SOCIETY OF NEW YORK, CENTER FOR THE INDEPENDENCE OF THE DISABLED NEW YORK, NEW YORK LAWYERS FOR THE PUBLIC INTEREST, NEW YORK LEGAL ASSISTANCE GROUP, THE URBAN JUSTICE CENTER IN SUPPORT OF RESPONDENT-APPELLANTS ( Counsel listed on inside cover) February 1, 2018 MOBILIZATION FOR JUSTICE, INC. Leah Goodridge, Esq., Supervising Attorney Sara Amri Law intern practicing pursuant to Student Practice Order Of Counsel 100 William Street, 6th Floor New York, New York 10038 Tel.: (212)417-3768 Fax: (212)417-3891 Lgoodridge@mfjlegal.org Attorneys for Amici Curiae CORPORATE DISCLOSURE STATEMENT In compliance with Rule 500.1(f) of the Rues of Practice for the Court of Appeals of the State of New York, Mobilization for Justice, Inc. (formerly MFY Legal Services) states that it has no parents, affiliates or subsidiaries. Dated: February 1, 2018 By: LEAH GOODPHBtJE, Esq. MOBILIZATION FOR JUSTICE, INC. Of Counsel to Jeanette Zelhof Attorneys for Amici Curiae 100 William Street, 6th Floor New York, NY 10038 Tel: (212) 417-3768 Fax: (212)417-3891 Lgoodridge@mfjlegal.org STATEMENT OF INTEREST CENTER FOR INDEPENDENCE OF THE DISABLED. NY The Center for Independence of the Disabled, New York (or CIDNY) serves all people with disabilities. In 2017, we reached nearly 40,000 people. We are rooted in the Independent Living Philosophy. We advocate for equal opportunity, self-determination, and self-respect for people with disabilities and seek to remove barriers to full inclusion. We actively support the right of people with disabilities to live independently in the community rather than in institutions. We teach people with disabilities ways to be heard, to advocate, and to understand the choices before them. We work together to analyze the impact of proposed policies on people with disabilities and to create solutions that are right for our community. We believe that we are the experts on our own needs and that we must organize ourselves to engage in the policymaking process to protect our rights. Our work reflects this philosophy by providing direct services, education, policy, and advocacy. We work with people with disabilities to develop a roadmap for direct assistance with meeting their goals, such as locating housing, obtaining health coverage, getting food assistance, understanding the impact of returning to work, and seeking to transition from high school to adult life. We educate people with disabilities on self-advocacy and other skills. We provide educational programs and technical assistance for government and private sector entities on disability literacy. We conduct research in partnership with University researchers, publish reports, and educate the media and the general public. We advocate for fair government policies, conduct research and address civil rights violations. Dated: January 31, 2018 New York, New York A Susan M. Dooha, J.D. Executive Director Center for the Independence Of the Disabled, NY (CIDNY) 841 Broadway, Suite 301 New York, NY 10003 TEL: 212.674.2300 FAX: 212.254.5953 CORPORATE DISCLOSURE STATEMENT OF CENTER FOR THE INDEPENDENCE OF THE DISABLED, NY Center for the Independence of the Disabled, NY (CIDNY) is a nonprofit 501(c)(3) corporation with no parents, affiliates, or subsidiaries. Dated: January _31_, 2018 New York, New York / A Susan M. DoohaTJ.D. Executive Director Center for Independence Of the Disabled, NY (CIDNY) 841 Broadway, Suite 301 New York, NY 10003 TEL: 212.674.2300 FAX: 212.254.5953 STATEMENT OF INTEREST THE COMMUNITY SERVICE SOCIETY OF NEW YORK The Community Service Society of New York (CSS) is an informed, independent, and unwavering voice for positive action on behalf of more than 3 million low- income New Yorkers. CSS draws on a 175-year history of excellence in addressing the root causes of economic disparity through research, advocacy, litigation, and innovative program models that strengthen and benefit all New Yorkers. Dated: Januaryÿ, 2018 New York, New York " ~ Judith M. Whiting General Counsel Community Service Society of New York 633 Third Ave, 10th FL New York, NY 10017 TEL: 212.614.5323 FAX: 212.260.6218 CORPORATE DISCLOSURE STATEMENT OF THE COMMUNITY SERVICE SOCIETY OF NEW YORK The Community Service Society of New York (CSS) is a nonprofit 501(c)(3) corporation. CSS has no corporate parents or subsidiaries. It does have a nonprofit corporate affiliate, Friends of RSVP, Inc., a corporation that while not officially dissolved is essentially dormant. Dated: January 29, 2018 New York, New York — 'Judith M. Whitingÿ General Counsel Community Service Society of New York 633 Third Ave, 10th FL New York, NY 10017 TEL: 212.614.5323 FAX: 212.260.6218 STATEMENT OF INTEREST DISABILITY RIGHTS ADVOCATES Disability Rights Advocates (“DRA”) is a non-profit public interest center that specializes in high-impact civil rights litigation and other advocacy on behalf of persons with disabilities throughout the United States. DRA works to end discrimination in areas such as access to public accommodations, public services, employment, transportation, education, employment, technology and housing. DRA’s clients, staff and board of directors include people with various types of disabilities. With offices in New York City and Berkeley, California, DRA strives to protect and advance the civil rights of people with all types of disabilities. Dated: January 31, 2018 New York, New York Christina Brandt-Young Senior Staff Attorney Disability Rights Advocates 675 Third Avenue, Suite 2216 New York, NY 10017 212 644 8644 (Tel.) 212 644 8636 (Fax) CORPORATE DISCLOSURE STATEMENT OF DISABILITY RIGHTS ADVOCATES Disability Rights Advocates is a nonprofit 501(c)(3) corporation with no parents, affiliates, or subsidiaries. Dated: January 31, 2018 New York, New York Christina Brandt-Young Senior Staff Attorney Disability Rights Advocates 675 Third Avenue, Suite 2216 New York, NY 10017 212 644 8644 (Tel.) 212 644 8636 (Fax) Statement of Interest of Amicus Curiae The mission of New York Lawyers for the Public Interest (NYLPI) is to advance equality and civil rights, with a focus on health justice, disability rights and environmental justice, through the power of community lawyering and partnerships with the private bar. NYLPI’s Disability Justice Program works to advance civil rights and ensure equality of opportunity, self-determination, and independence for people with disabilities. Our advocacy spans many areas, including housing, transportation, education, community integration, and equal access to government programs and services in New York City. NYLPI regularly litigates fair housing claims in state and federal courts to vindicate the rights of people with disabilities to receive reasonable accommodations. The practices and policies of landlords to accommodate the disabilities of New Yorkers broadly impact our clients. Dated: January 26, 2018 New York, New York Arify (h(j Antony P.F. Gemmell Staff Attorney, Disability Justice Program New York Lawyers for the Public Interest 151 West 30th Street, 11th FI. New York, NY 10001 Phone: 212-244-4664 Fax: 212-244-4570 CORPORATE DISCLOSURE STATEMENT OF NEW YORK LAWYERS FOR THE PUBLIC INTEREST New York Lawyers for the Public Interest is a non-profit 501(c)(3) corporation with no parents, affiliates, or subsidiaries. Dated: January 26, 2018 New York, New York Antony Gemmell Staff Attorney, Disability Justice Program New York Lawyers for the Public Interest 151 West 30th Street, 11th Floor New York, New York 10001 Phone: 212-244-4664 Fax: 212-244-4570 STATEMENT OF INTEREST NEW YORK LEGAL ASSISTANCE GROUP Founded in 1990, the New York Legal Assistance Group provides high quality, free civil legal services to low-income New Yorkers who cannot afford attorneys. Our comprehensive range of services includes direct representation, case consultation, advocacy, community education, training, financial counseling, and impact litigation. NYLAG’s Tenants’ Rights Unit provides a broad range of assistance to low- income tenants. Our goal is to preserve safe and affordable housing for vulnerable residents, prevent homelessness, ensure economic security for families, and promote stability in our communities. We also work to educate community members about their housing rights and provide information on the options available for preserving their homes. Dated: January 31, 2018 New York, New York jmjk V/ Jonathan Fox, Esq, Director Tenants’ Rights Unit New York Legal Assistance Group 7 Hanover Square, 18th Floor New York, NY 10004 (212)613-5095 CORPORATE DISCLOSURE STATEMENT OF THE NEW YORK LEGAL ASSISTANCE GROUP The New York Legal Assistance Group is a non profit 501(c)(3) corporation with no parents, affiliates, or subsidiaries. Dated: January 31, 2018 New York, New York muft. v? Jonathan Fox, Esc/. Director Tenants’ Rights Unit New York Legal Assistance Group 7 Hanover Square, 18th Floor New York, NY 10004 (212)613-5095 CORPORATE DISCLOSURE STATEMENT OF URBAN JUSTICE CENTER The Community Development Project of The Urban Justice Center is a non profit 501(c)(3) corporation with no parents, affiliates, or subsidiaries. Dated: January 31, 2018 New York, New York Sadia Rahman, Esq. Supervising Attorney Urban Justice Center Community Development Project Urban Justice Center 123 William Street, 16th Floor New York, NY 10038 (646) 459-3017 STATEMENT OF INTEREST URBAN JUSTICE CENTER Urban Justice Center (“UJC”) is a non-profit organization that serves New York City’s most vulnerable residents through a combination of direct free legal service, systemic advocacy, community education and political organizing. The Community Development Project (CDP) of the Urban Justice Center formed in September 2001 to provide free legal, technical, research, and policy assistance to grassroots community groups engaged in a wide range of community development efforts throughout New York City, including housing work. CDP represents tenant associations organized by community-based organizations in litigation to combat landlord abandonment, and correct such housing conditions as lead paint, inadequate heat and hot water, inadequate security, faulty plumbing, and unsafe elevators and staircases. In this advocacy we have been able to obtain millions of dollars worth of repairs in low-income housing throughout New York City. Dated: January 31, 2018 New York, New York Sadia Rahman, Esq. Supervising Attorney Urban Justice Center Community Development Project Urban Justice Center 123 William Street, 16th Floor New York, NY 10038 (646)459-3017 TABLE OF CONTENTS TABLE OF AUTHORITIES .i PRELIMINARY STATEMENT 1 INTERESTS OF AMICI CURIAE. 3 ARGUMENT: 9 THE APPELLATE DIVISION’S MISAPPLICATION OF THE BURDEN OF PROOF TO SHOW UNDUE HARDSHIP UNDER NEW YORK CITY HUMAN RIGHTS LAW SECTION 8-102.18 IMPAIRS THE ABILITY OF NEW YORKERS WITH DISABILITIES. INCLUDING MANY SENIORS. TO AGE IN PLACE 9 I. REASONABLE ACCOMMODATIONS ARE NECESSARY FOR SENIORS WITH DISABILITIES TO AGE IN PLACE 10 II. ACCESSIBLE. AFFORDABLE HOUSING UNITS ARE SCARCE IN NEW YORK CITY 14 III. THE ABILITY TO AGE IN PLACE IS EVEN MORE IMPORTANT FOR IMMIGRANT SENIORS WHO RELY HEAVILY ON THEIR COMMUNITIES FOR SOCIAL SUPPORT 17 CONCLUSION. .20 TABLE OF AUTHORITIES REPORTS AND STUDIES Census Bureau Reports, Mobility is Most Common Disability Among Older Americans (December 2014) 15 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 at 55 (June 2011) 15 Christian Gonzalez-Rivera, The Aging Apple: Older Immigrants A Rising Share of New York’s Seniors, Center for an Urban Future (May 2017) 17 Christian Gonzalez-Rivera, The New Face of New York’s Seniors (July 2013) ....17, 18, 19 Emily Dugdale, The Fight to “ Age-in-Place” in New York, MEDIUM (Nov. 29, 2016) 18 Farber, Nicholas & Shinkle, Douglas, AARP & National Conference of State Legislatures, Aging in Place: A State Survey of Livability Policies and Practices (December 2011) 9 Jon Pynoos, Christy Nishita, Caroline Cicero & Rachel Caraviello, Aging in Place Housing, and the Law, 16 ELDER L.J. 77, 80 (2008). 10 Katie Hafher, Researchers Confront an Epidemic of Loneliness, N.Y. TIMES (Sept. 5,2016) 19 i Mayor de Blasio’s 2014 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. Mayor of the City of New York, Housing New York: A Five Borough, Ten Year Plan at 78 (May 2014) 11 New York City Comptroller, Scott Stringer, Aging with Dignity: A Blueprint for Serving NYC’s Growing Senior Population at 15 (March 2017) passim New York City Department for the Aging, Aging in Place Guide for Building Owners: Recommended Age-Friendly Residential Building Upgrades at 6 (2016) 13 New York State Department of Health, Estimated Average New York State Nursing Home Rates 13 New York State Department of Health, Home and Community-Based Services (HCBS) Final Rule Statewide Transition Plan (STP) Webinar at 13 (February 2017) 12 Office of Mayor of the City of New York, One NYC 2016 Progress Report (2016) 14 Public Advocate for the City of New York, Leticia James, Policy Brief: Aging in Place at New York City Housing Authority (NYCHA) (July 2017) .9, 16 Sunshine Rote and Kyriakos Markides, Aging, Social Relationships, and Health among Older Immigrants, AMERICAN SOCIETY ON AGING (Mar. 4, 2014) 19 Tatiana Oriaikhi, Home Care Workers, More Than Just Companions: The Final Rule and The Fight for Home Care Stabilization, 24 ELDER L.J. 457, 460 (2017)9 ii Thomas Hall, Inclusive Design and Elder Housing Solutions for the Future, 11 NAELAJ. 61 (Spring 2015) 16 U.S. Department of Hous. and Urban Dev., Aging in Place: Facilitating Choice and Independence (2013) 13 Vera Prosper, Staying in the Community and Aging in Place in Livable New York Resource Manual: Livable New York Sustainable Communities for All Ages (Aug. 2012) . .9 Wan He & Luke Larsen, Older Americans with a Disability: 2008-2012 at 2 (December 2014) 11 iii PRELIMINARY ARGUMENT Affordable housing units in New York City are rare. The supply of affordable housing that is accessible is even more limited. As a result, seniors and individuals with disabilities are often forced into nursing homes because there is nowhere else for them to go. Despite these displacements, New Yorkers who are eligible for skilled nursing level of care can often live successfully in the community. Disability rights laws require housing providers to make reasonable accommodations. The goal of reasonable accommodation is to facilitate the integration of people with disabilities into society. Tenants in New York City who have mental or physical disabilities are protected from housing discrimination by varipus federal, state, and local laws including Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (“ADA”), the Fair Housing Act (“FHA”), the New York State Human Rights Law (“NYSHRL”), and the NYCF1RL. Four main facts are undisputed in the instant case. Appellant Irene Politis uses a wheelchair to ambulate because she cannot walk. She lives in an apartment with an inaccessible entrance. Mrs. Politis requested a wheelchair ramp as a reasonable accommodation to access her apartment. Lastly, her landlord has refused to provide her with the requested accommodation despite conceding that the modification is possible. Appellee’s refusal to provide Ms. Politis with the 1 requested accommodation will result in an unfortunate reality: Ms. Politis will have to leave her home. Mrs. Politis’ story is not unique. She is joined by thirty-six percent of seniors in New York City who also have at least one disability. One of the most common disabilities amongst seniors across the nation is ambulatory difficulty: trouble walking or climbing stairs. With a reasonable accommodation, many of these seniors can successfully remain in their homes and communities. However, when landlords refuse to provide reasonable accommodations, seniors are faced with unnecessary institutionalization. This brief, supported by organizations which have advocated for disability rights for decades, sheds light on how the refusal to provide reasonable accommodation can impede seniors with disabilities from aging in place— that is, remaining in the familiar setting of their homes and local communities rather than upending their lives. Affirming the Appellate Division’s decision in Marine Holdings v. CHR would weaken long-held NYCHRL protections and inhibit the ability of seniors with disabilities to age in place. Amici respectfully ask this Court to reverse the Appellate Division’s order. 2 INTEREST OF AMICI CURIAE The amici are all legal services providers and community organizations engaged in advocacy on behalf of seniors and people with disabilities. Mobilization for Justice Mobilization for Justice, Inc. (formerly MFY Legal Services) envisions a society in which there is equal justice for all. Mobilization for Justice’s mission is to achieve social justice, prioritizing the needs of people who are low-income, disenfranchised or have disabilities. We do this by providing the highest quality direct civil legal assistance, conducting community education and building partnerships, engaging in policy advocacy, and bringing impact litigation. Mobilization for Justice provides assistance to more than 10,000 New Yorkers each year, benefitting 20,000. We provide New Yorkers who have disabilities or who are aging with the legal assistance they need to remain in the community, including helping them access the benefits to which they are entitled, improve the accessibility of their homes, and access transportation. Because of the far-reaching implications of this matter for its clients, Mobilization for Justice has a substantial interest in its outcome. Amici curiae have a direct interest in the New York City Human Rights Law (“NYCHRL”) as applied to housing opportunities for people with disabilities. The Appellate Division incorrectly construed the NYCHRL to require that petitioner in 3 a New York City Commission on Human Rights (“CHR”) complaint prove that her requested accommodation is reasonable, and must rebut respondents’ argument that petitioner’s proposed modification of her apartment constituted an undue hardship. The Appellate Division’s interpretation of the NYCHRL does not comport with the plain language of the statute and would reduce the already limited housing opportunities for people with disabilities in New York City, thereby leaving people with disabilities more vulnerable to institutionalization. Amici are 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. New York Lawyers Assistance Group Founded in 1990, the New York Legal Assistance Group provides high quality, free civil legal services to low-income New Yorkers who cannot afford attorneys. Our comprehensive range of services includes direct representation, case consultation, advocacy, community education, training, financial counseling, and impact litigation. NYLAG’s Tenants’ Rights Unit provides a broad range of assistance to low- income tenants. Our goal is to preserve safe and affordable housing for vulnerable residents, prevent homelessness, ensure economic security for families, and 4 promote stability in our communities. We also work to educate community members about their housing rights and provide information on the options available for preserving their homes. The Community Service Society of New York (CSS) The Community Service Society of New York (CSS) is an informed, independent, and unwavering voice for positive action on behalf of more than 3 million low-income New Yorkers. CSS draws on a 170-year history of excellence in addressing the root causes of economic disparity through research, advocacy, litigation, and innovative program models that strengthen and benefit all New Yorkers. Disability Rights Advocates Disability Rights Advocates (“DRA”) is a non-profit public interest center that specializes in high-impact civil rights litigation and other advocacy on behalf of persons with disabilities throughout the United States. DRA works to end discrimination in areas such as access to public accommodations, public services, employment, transportation, education, employment, technology and housing. DRA’s clients, staff and board of directors include people with various types of disabilities. With offices in New York City and Berkeley, California, DRA strives to protect and advance the civil rights of people with all types of disabilities. 5 New York Lawyers for the Public Interest The mission of New York Lawyers for the Public Interest (NYLPI) is to advance equality and civil rights, with a focus on health justice, disability rights and environmental justice, through the power of community lawyering and partnerships with the private bar. NYLPI’s Disability Justice Program works to advance civil rights and ensure equality of opportunity, self-determination, and independence for people with disabilities. Our advocacy spans many areas, including housing, transportation, education, community integration, and equal access to government programs and services in New York City. NYLPI regularly litigates fair housing claims in state and federal courts to vindicate the rights of people with disabilities to receive reasonable accommodations. The practices and policies of landlords to accommodate the disabilities of New Yorkers broadly impact our clients. Center for the Independence of the Disabled, NY (CIDNY) Center for the Independence of the Disabled, NY (CIDNY) is a non-profit organization founded in 1978. We are part of the Independent Living Centers movement: a national network of grassroots and community-based organizations that enhance opportunities for all people with disabilities to direct their own lives. CIDNY is the voice of people with disabilities in New York City. Our staff and Board include social workers, lawyers, and other highly qualified 6 professionals, most of whom are people with disabilities. The staff all have a strong belief in self-determination and bring valuable life experiences and insights to their work. CIDNY speaks for everyone who lives with a disability, whether it came at birth, by injury, disease, or during the process of aging. Together, we educate the public. We advocate for our civil rights and a strong safety net of benefits and services. CIDNY makes sure that our voices are heard where and when issues affecting our lives are decided. The Community Development Project of the Urban Justice Center Urban Justice Center (“UJC”) is a non-profit organization that serves New York City’s most vulnerable residents through a combination of direct free legal service, systemic advocacy, community education and political organizing. The Community Development Project (CDP) of the Urban Justice Center formed in September 2001 to provide free legal, technical, research, and policy assistance to grassroots community groups engaged in a wide range of community development efforts throughout New York City, including housing work. CDP represents tenant associations organized by community-based organizations in litigation to combat landlord abandonment, and correct such housing conditions as lead paint, inadequate heat and hot water, inadequate security, faulty plumbing, and unsafe elevators and staircases. In this advocacy we 7 have been able to obtain millions of dollars’ worth of repairs in low-income housing throughout New York City. 8 ARGUMENT THE APPELLATE DIVISION’S MISAPPLICATION OF THE BURDEN OF PROOF TO SHOW UNDUE HARDSHIP UNDER NEW YORK CITY HUMAN RIGHTS LAW SECTION 8-102.18 IMPAIRS THE ABILITY OF NEW YORKERS WITH DISABILITIES, INCLUDING MANY SENIORS. TO AGE IN PLACE The term “aging in place” refers to the principle that seniors should be able to remain in their homes and communities as they grow older, and that they should be able to “do so safely regardless of their age, income, or ability.”1 The ability to age in place not only benefits seniors both socially and economically, but also reflects seniors’ desires. Research indicates that “[n]early 90 percent of people age 65 and older want to stay in their homes as long as possible” and most of them believe their home is “where they will always live.”2 The overwhelming preference of seniors to remain in their homes largely stems from the connection they feel to the homes and communities in which they have spent many years of their lives.3 1 Public Advocate for the City of New York, Leticia James, Policy Brief: Aging in Place at New York City Housing Authority (NYCHA) (July 2017) available at https://pubadvocate.nyc.gov/sites/advocate.nyc.gov/files/aging_in_place_at_nycha_- _fmal_7.25.17.pdf; see also Vera Prosper, Staying in the Community and Aging in Place in Livable New York Resource Manual: Livable New York Sustainable Communities for All Ages (Aug. 2012) available at https://aging.ny.gov/LivableNY/ResourceManual/Housing/IIIle.pdf 2 Farber, Nicholas & Shinkle, Douglas, AARP & National Conference of State Legislatures, Aging in Place: A State Survey of Livability Policies and Practices (December 2011) at 1 available at https://assets.aarp.org/rgcenter/ppi/liv-com/aging-in-place-2011-full.pdf 3 See also Tatiana Oriaikhi, Home Care Workers, More Than Just Companions: The Final Rule and The Fight for Home Care Stabilization, 24 ELDER L.J. 457, 460 (2017). For example, the home is “often near familiar places, such as restaurants and shops, which foster a connection between the elderly individual and their environment.” Id. 9 Nevertheless, seniors “often live in a physically unsupportive environment disconnected from needed services.”4 Mrs. Politis’ story shows how seniors are particularly in need of reasonable accommodations— first, by being more likely to have limited income and second, by being more likely to have a disability. The sub-sections below explain how Mrs. Politis and a great number of seniors in New York City are at risk of displacement when faced with economic instability, lack of affordable housing and disabilities. In order for the City to meet the challenges inherent in accommodating a large senior population, it must increase its efforts to preserve housing for seniors, allowing them to age in their communities. I. Reasonable Accommodations Are Necessary for Seniors with Disabilities to Age in Place Seniors are particularly affected by reasonable accommodation policies because they are more likely to have a disability. Nearly thirty-six percent of seniors in New York City live with a disability, which is approximately three times higher than the percentage of the total population. 5 Across the nation, two-thirds of people aged 65 or older reported ambulatory difficulty (challenges walking or 4 Jon Pynoos, Christy Nishita, Caroline Cicero & Rachel Caraviello, Aging in Place Housing, and the Law, 16 ELDER L.J. 77, 80 (2008) New York City Comptroller, Scott Stringer, Aging with Dignity: A Blueprint for Serving NYC’s Growing Senior Population at 15 (March 2017) available at https://comptroller.nyc.gov/wp- content/uploads/documents/Aging_with_Dignity_A_Blueprint_for_Serving_NYC_Growing_Sen ior_Population.pdf 5 10 climbing stairs).6 Since many seniors have physical disabilities, they rely on landlords to provide reasonable accommodations to their homes, as legally required, because these senior tenants often cannot afford to pay for structural modifications and encounter difficulties in finding alternative, accessible housing.7 “The home plays a crucial role in the lives of many elderly adults,” and is critical to their well-being and stability as they age.8 Displacement can be particularly disruptive for seniors. Older age is a time when one may experience the loss of former roles and status in the workplace before retirement, the loss of health, the loss of sensory abilities and mobility. Moving can be a stressful event for anyone. However, displacement— a forced move— can compound seniors’ feelings of loss of control over their lives. With reasonable accommodations, many seniors with disabilities can continue to live in their homes and remain in their communities. The consequences of a landlord’s failure to provide a reasonable accommodation to an elderly tenant can be severe: without accessible housing, 6 Wan He & Luke Larsen, Older Americans with a Disability: 2008-2012 at 2 (December 2014) available at https://www.census.gov/content/dam/Census/library/publications/2014/acs/acs- 29.pdf 7 Mayor de Blasio’s 2014 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. Mayor of the City of New York, Housing New York: A Five Borough, Ten Year Plan at 78 (May 2014) available at http://www.nyc.gov/html/housing/assets/downloads/pdf/housing_plan.pdf 8 Supra n 3 at 460 11 individuals with disabilities are often forced into institutions such as nursing homes, not because they require a nursing facility level of care, but because there is nowhere else for them to go.9 Even New Yorkers who are eligible for skilled nursing level of care can often live successfully in their homes and communities with the help of a number of federal and state programs designed for that purpose. However, these programs are available only to people who can remain in their homes, which often requires structural modification in order to become more accessible.10 Placement in an institution removes people with disabilities from their geographical communities, separating them from their families and loved ones. It may restrict their movements and their ability to travel places independently. As a result, they may lose employment or face difficulty attending regular communal gatherings such as religious services in their preferred house of worship. Institutionalization, therefore, constitutes the worst-case scenario for seniors. In 9 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 at 13 (February 2017) available at https://www.health.ny.gov/health_care/medicaid/redesign/hcbs/docs/2017-02- 16_updated_statewide_transition_plan.pdf 10 Id. 12 addition, nursing homes in New York City cost approximately $405 per day per resident.11 That cost is often paid by taxpayers through the Medicaid program. Successful aging in place requires home environments to be adapted when necessary to meet the evolving needs of aging tenants.12 By 2040, the number of individuals aged 65 and older residing in New York City is expected to increase by 40.7% to nearly 2 million people.13 In a 2016 report, New York City Comptroller Scott Stringer observed that “[t]he growth in the population over 65 will bring changes to local communities across the five boroughs and will put new, dynamic pressures on City government that can only be managed with long-range strategic planning, commitment, and resources.”14 Age-friendly residential buildings enable older adults to age in place, and can also “improve the overall health and well¬ being of older New Yorkers and maximize their social, physical, and economic participation in their communities.”15 New York City, recognizing the value of 11 New York State Department of Health, Estimated Average New York State Nursing Home Rates available at https://www.health.ny.gov/facilities/nursing/estimated_average_rates.htm. That is approximately $150,000 per year. 12 U.S. Department of Hous. and Urban Dev., Aging in Place: Facilitating Choice and Independence (2013) available at https://www.huduser.gov/portal/periodicals/em/falll 3/highlightl .html. 13 New York City Department for the Aging, Aging in Place Guide for Building Owners: Recommended Age-Friendly Residential Building Upgrades at 6 (2016) available at http://www.nyc.gov/html/dfta/downloads/pdf/publications/AIPGuide2016.pdf 14 See Stringer, supra n 5, at 7 15 See New York City Department of the Aging, supra n 13, at 7 13 keeping seniors in their homes and communities, has already adopted policies which promote the ability of older New Yorkers to age in place.16 Unfortunately, the Appellate Division’s decision in this case undermines these goals and runs counter to the plain language of NYCHRL section 8-102.18. See N.Y.C. Admin. Code § 8-102.18. If the Court of Appeals adopts the decision of the Appellate Division, tenants with disabilities, including many seniors, who are seeking reasonable accommodations under the NYCHRL may be unable to rebut their landlord’s showing of undue hardship where the rebuttal requires a higher burden. Such a decision could result in landlords forcing seniors with disabilities out of their homes, thereby cutting them off from their communities and prematurely pushing them into institutional care or even into homelessness. II. Accessible, Affordable Housing Units Are Scarce in New York City Individuals with disabilities disproportionally struggle to locate affordable housing that allows them to live and remain in their communities. In New York, individuals with disabilities are unemployed or underemployed at a much higher rate than individuals without disabilities, with a median income of $27,517 less 16 See generally Stringer, supra note 5; see also Office of Mayor of the City of New York, One NYC 2016 Progress Report (2016) available at http://www.nyc.gov/html/onenyc/downloads/pdf/publications/OneNYC.pdf (discussing current and recommended policies to promote aging in place). 14 than those without disabilities.17 In addition, from 2008 to 2012, about thirteen percent of seniors with disabilities lived in poverty compared with seven percent of those without a disability who also lived in poverty.18 Thus, the legal obligation placed upon landlords to make modifications pursuant to a reasonable accommodation request provides a fundamental safeguard for tenants with disabilities who cannot afford to pay for structural modifications and encounter difficulties in finding alternative, accessible housing.19 Despite the existence of programs designed to help seniors find affordable housing, the “demand for affordable, senior accessible units far exceed their supply.”20 For example, research indicates that the average wait time for an apartment in the Department of Housing and Urban Developments (HUD) Section 202 Supportive Housing for the Elderly Program is 7 years.21 Further, the waiting 17 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 July 21, 2017). 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. Income data is adjusted per capita household income based on 2008 Census data. 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 at 55 (June 2011) available at http://www.cidny.org/resources/News/Reports/Disability%20Matters.pdf 18 Census Bureau Reports, Mobility is Most Common Disability Among Older Americans (December 2014) available at https://www.census.gov/newsroom/press-releases/2014/cbl4- 218.html 19 Supra n 7 at 84. 20 See Stringer, supra n 5, at 11. 21 Id. 15 list for the city’s public housing program is approximately 270,000. 22 The lack of affordable housing in New York City, let alone accessible housing, makes promoting policies that enhance the abilities of seniors to age in place all the more crucial.23 Accordingly, New York City Mayor Bill de Blasio’s 2014 Housing Plan acknowledged that although “all too often, people with disabilities are unable to secure affordable and accessible housing,” the City is “committed to creating accessible apartments for New Yorkers with disabilities and removing barriers to their sharing in the City’s affordable housing resources.”24 The guiding principle of aging in place is the understanding that seniors benefit socially and economically from staying in their homes.25 Such policies encourage the independence of seniors and have been recognized as a positive alternative to “costly institutionalization.”26 22 Id. 23 Id. 24 Supra n 7 at 84. 25 Thomas Hall, Inclusive Design and Elder Housing Solutions for the Future, 1 1 NAELA J. 61 (Spring 2015). 26James supra n 1, at 1 . “[CJreating opportunities for seniors to safely and securely age in place offers the potential to create financial savings for individuals and government programs like Medicare and Medicaid, as home and community-based care programs cost less than institutional programs.” See Stringer, supra n 5 at 84. 16 III. The Ability to Age in Place Is Even More Important for Immigrant Seniors Who Rely Heavily on Their Communities for Social Support Recent estimates suggest that by 2020 the majority of New York City’s seniors will be comprised of immigrants.27 Immigrant seniors28 face particular barriers that make aging in place challenging.29 Language and cultural barriers, for example, make it more difficult for immigrant seniors to learn about and access supportive services.30 A recent report published by the Center for an Urban Future found that most immigrant seniors living in New York City are more likely to live in “linguistically isolated” households.31 Moreover, immigrant seniors are significantly more likely than non-immigrant seniors “to suffer from isolation, loneliness and depression.”32 Older immigrants are “1.5 times as likely as native- born seniors to be poor.”33 In fact, “because immigrant seniors tend to be poorer and have much less in retirement savings than their native-born counterparts, and because they tend to have a much harder time accessing existing support services 27 Christian Gonzalez-Rivera, The Aging Apple: Older Immigrants A Rising Share of New York’s Seniors, Center for an Urban Future (May 2017) available at https://nycfuture.org/research/the- aging-apple [hereinafter The Aging Apple]. 28 For purposes of the amicus brief, we define “immigrant seniors” to be people aged 65 or older who were bom in a country outside of the United States, irrespective of their immigration status. 29 Supra n 27. 30 Id. 31 Christian Gonzalez-Rivera, The New Face of New York’s Seniors (July 2013) at 25 available at https://nycfuture.org/pdftThe-New-Face-of-New-Yorks-Seniors.pdf 32 Christian Gonzalez-Rivera, Aging Apple, supra n 27. 33 Id. 17 and programs, many in this group are not only poised to strain the social safety net but fall through it entirely.”34 Seniors generally tend to rely on personal relationships with their pharmacists, health care providers, bank tellers, and local merchants to provide personalized assistance. For seniors experiencing memory loss, routine, familiar surroundings and relationships are key in maintaining independence and daily life functions. These obstacles put immigrant seniors at an even greater risk of being “cut off from the social supports that can help them live healthier, more connected lives.”35 For many immigrant seniors, social support systems are represented, in large part, by the enclaves in which they reside— neighborhoods where people are more likely to speak their native language, “sell the products they want,” and “understand their culture.”36 Notably, immigrant seniors “more than any other groups are largely dependent on the ethnic communities in which they live in [sic].”37 For older immigrants, such enclaves “provide the structural basis that 34 Christian Gonzalez-Rivera, The New Face of New York’s Seniors (July 2013) at 5 available at https://nycfuture.org/pdf/The-New-Face-of-New-Yorks-Seniors.pdf 35 Id. 36 Id. at 30. 37 Emily Dugdale, The Fight to “Age-in-Place ” in New York, MEDIUM (NOV. 29, 2016) available at https://medium.eom/@eedugdale/the-fight-to-age-in-place-in-new-york-51c1b2b8d854. 18 allows for supportive relationships and exchanges” with their neighbors acting as a “key purveyors of help and assistance.”38 Forcing immigrant seniors to move outside their communities will likely jeopardize their physical and mental health as they age.39 For example, if immigrant seniors cannot access culturally appropriate services away from their home communities, they may be “less likely to seek needed medical attention or the social opportunities outside of their homes.”40 If forced to leave their neighborhoods, they may also have difficulty finding services available in their native language, making it difficult to complete basic life activities.41 Removing immigrant seniors from their communities results in the loss of critical social supports and increases their “propensity to develop depression, become a victim of elder abuse, and to not seek medical attention and other essential services when they need them.”42 For immigrant seniors, like Mrs. Politis, the Appellate Division’s misinterpretation of section 8-102.18 will likely enable New York City landlord’s to skirt their obligations under City HRL. As a result, many older 38 See Sunshine Rote and Kyriakos Markides, Aging, Social Relationships, and Health among Older Immigrants, AMERICAN SOCIETY ON AGING (Mar. 4, 2014) available at http://www.asaging.org/blog/aging-social-relationships-and-health-among-older-immigrants. 39 Gonzalez-Rivera, New York’s Seniors, supra n 31 at 34. 40 Id. 41 Id 42 Id; see also Katie Hafner, Researchers Confront an Epidemic of Loneliness, N.Y. TIMES (Sept. 5, 2016) available at https://www.nytimes.com/2016/09/06/health/lonliness-aging-health- effects.html?_r=0 (highlight study which found a link between social isolation and declining mobility, trouble completing day-to-day activities, and death in people older than 60). 19 immigrants may be forced to leave their local communities, lose their critical social supports, and face isolation as they age. CONCLUSION For the foregoing reasons, amici curiae respectfully request that this Court reverse the decision of the Second Department and hold that Marine Holdings LLC and Wen Management Corp’s failure to install an accessible ramp violates the New York City Human Rights Law. Dated: February 1, 2018 New York, NY Respectful!; litted, LEAH GOODRIDGE, Esq. Supervising Attorney Of Counsel to Jeanette Zelhof Attorneys for Amici Curiae MOBILIZATION FOR JUSTICE, INC. 100 William Street, 6th Floor New York, NY 10038 Tel: (212) 417-3768 Fax: (212)417-3891 Lgoodridge@mfjlegal.org 20 SARA AMRI, Law intern practicing pursuant to Student Practice Order Of Counsel to Jeanette Zelhof Attorneys for Proposed Amici Curiae MOBILIZATION FOR JUSTICE, INC. 100 William Street, 6th Floor New York, NY 10038 Tel: (212) 417-3768 Fax: (212)417-3891 21 CERTIFICATION OF COMPLIANCE I certify pursuant to 500.13(c)(1) of the Rues of Practice for the Court of Appeals of the State of New York that the total word count for all of the printed text in the body of this brief, exclusive of the statement of interest, the corporate disclosure statement, the table of contents, the table of cases and authorities and the statement of questions is 4156 words. This brief complies with the typeface requirements and the type style requirements of 500.1(j) because it has been prepared in a proportionally spaced typeface using Times New Roman in 14 point font. Dated: February 1, 2018 By: LEAH GOODRIDGE, Esq. Of Counsel to Jeanette Zelhof Attorneys for Amici Curiae MOBILIZATION FOR JUSTICE, INC. 100 William Street, 6th Floor New York, NY 10038 Tel: (212) 417-3768 Fax: (212)417-3891 Lgoodridge@mfjlegal.org SARA AMRI, Law intern practicing pursuant to Student Practice Order Of Counsel to Jeanette Zelhof Attorneys for Proposed Amici Curiae MOBILIZATION FOR JUSTICE, INC. 100 William Street, 6th Floor New York, NY 10038 Tel.: (212) 417-3768 Fax: (212)417-3891