Support Animals As an Accommodation for Persons with Disabilities

The New York Civil Rights Law, section 47, explicitly provides protection to disabled persons who need service dogs:

No person shall be denied admittance to and/or the equal use of and enjoyment of any public facility solely because that person is a person with a disability and is accompanied by a guide dog, hearing dog, or a service dog.

This section applies to housing, and very few disputes have arisen over the rights of a person needing a hearing or guide dog. Perhaps because the acceptance of guide dogs has been more embedded in our culture than the acceptance of other types of accommodation animals, it would likely be hard to find a housing provider that would not allow a guide dog.

The New York City Administrative Code, Title A, (NYC Code § 8-107) provides that it is unlawful to discriminate concerning housing accommodations (subd. 5). This applies to various categories including “actual or perceived race, creed, color, national origin, color, gender, age, sexual orientation, marital status, partnership status, or alienage or citizenship status,” as well as disability.

Under the discrimination laws, in addition to compensatory and punitive damage awards, legal fees may also be awarded (see, e.g., Executive Law § 292).

Case Law

Courts have recognized the right of a person with a documented disability to maintain an emotional support animal despite lease provisions or co-op rules barring pets. The case of H.U.D. and Exelberth v. Riverbay Corp., H.U.D. ALJ 02-93-0320-1-9894; FH-FLRPTR 25, 080 (H.U.D. Office of ALJ 1994) is instructive on several levels. In Riverbay, a federal administrative law judge held that the co-op had to permit an emotionally disabled woman to maintain her dog in her apartment even though the state courts had already obtained a final judgment of possession, and even after warrant of eviction had been issued. The judge concluded that the state court determination was not entitled to res judicata effect because HUD was not a party to the state court proceeding. As a result, the disabled woman remained in her home, with her dog, and with a monetary award.

The opinion details how an animal can provide emotional and medical benefits. It also shows how mental disabilities can severely impact one's life and be a disability under the law.

Proof Issues

Nevertheless, New York case law makes it clear that a person cannot maintain a service dog unless the person provides medical or psychological testimony to demonstrate both a disability and medical need for the companion animal. In Kennedy Street Quad, Ltd. v. Nathanson, 62 A.D.3d 879, the Second Department overturned an administrative determination, after a hearing, that the complainants' dog should be allowed as a reasonable accommodation for their symptoms of depression, emphasizing that the complainants:

… failed to present any medical or psychological evidence to demonstrate that the dog was actually necessary in order for them to enjoy the apartment. Accordingly, the SDHR's determination was not supported by substantial evidence (see Matter of Jennings v New York State Off. of Mental Health, 90 NY2d 227, 239 [1997]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]; Matter of 105 Northgate Coop. v Donaldson, 54 AD3d 414, 416 [2008]; Matter of Genovese Drug Stores, Inc. v Harper, 49 AD3d 735 [2008]; Matter of One Overlook Ave. Corp. v New York State Div. of Human Rights, 8 AD3d 286 [2004]).

As in Nathanson itself, the cases the court cited are cases where the complainants generally failed to demonstrate with medical or psychological expert testimony both a disability and medical need for the companion animal.

More recently, in In the Matter of Delkap Managment, Inc. v. New York State Division of Human Rights, 144 A.D.3d 1128, the Second Department, citing Nathanson, found that the complainant, while proving that she was disabled, did not present “medical or psychological evidence sufficient to demonstrate that the dog was actually necessary in order for her to enjoy the apartment. Notably, the complainant had resided in the apartment for more than 20 years without the dog. Moreover, the complainant was diagnosed with her disability several years prior to the dog being brought to the apartment by the complainant's daughter when she moved in with the complainant.”

However, the court did determine that the coop had retaliated against the complainant when she filed her complaint. The retaliation included taking away her parking space, refusing to accept her maintenance checks, filing eviction proceedings and falsely telling her that the State Division of Human Rights had ruled against her.

Nathanson and Delkap should not be read to mean that even if a person is disabled, and an accommodation animal would be medically helpful, he or she must also show some additional proof that the accommodation animal is also necessary to use and enjoy the apartment. Once a person has shown that an accommodation would be medically helpful to his or her proved disability, there cannot be a separate and additional requirement showing how the accommodation animal is required to use and enjoy one's home. The disabled person cannot be put to the choice of losing his or her accommodation animal or losing his or her apartment. Such a choice would be the equivalent of saying that someone who needs a ramp to get in and out of his or her home, or a handrail to be able to use the shower, must move elsewhere to have these accommodations.

Legalizing a Reasonable Accommodation Animal

Some people apply in advance for permission to maintain a service animal before bringing it into the building. When someone instead gets an accommodation animal without asking first, and only seeks permission after an objection, a board will often think that the disability claim is fabricated and only asserted because the unit owner was, so to speak, caught. There are, however, many times that unit owners either assume animals are allowed because others are seen around, or they do not know that their rights are not self-operative.

The best method for all concerned is to begin with a request for a reasonable accommodation in the form of a sufficiently detailed letter. The nature of the disability and how it impacts major life activities should be described and supported with attached medical documentation. The medical evidence should also describe how the animal will be medically helpful.

The housing provider's response may be to ask for more information. Sometimes a blanket HIPPAA form is given for the applicant to sign. This might be appropriate, and it might be too broad. The parties should, in short, stick to what is relevant and ask for, and provide, just that.

Conclusion

For the benefit of the disabled, as well as all involved in such matters, and society as a whole, being aware of the laws through counsel seasoned in these areas is crucial. It would certainly seem in the best interests of housing providers to resolve these matters in compliance with the applicable laws.

***** Darryl M. Vernon, a member of New York Real Estate Law Reporter's Board of Editors, is a partner at Vernon & Ginsburg.