Co-ops and Condominiums

In granting summary judgment to the condominium, the court first noted that the Second Circuit had not resolved whether post-acquisition harassment is actionable under the Fair Housing Act, or whether a condominium board is liable for failure to redress harassment among unit owners. The court declined to address those questions because unit owner failed to establish that the harassment was sufficiently pervasive to create a hostile environment, that the harassment was because of his daughter's Chinese origin, or that there was a basis for imputing the harassing conduct to the condominium board. The court emphasized that unit owner continued to live in the unit for seven years after the allegedly harassing behavior started, undermining the claim that the harassment was pervasive. Moreover, unit owner proffered no evidence that any harassment was due to his daughter's Chinese origin rather than due to a feud between neighbors. Finally, the record established that the Board was complicit in any harassment. The court noted that the Board had sent a notice to residents regarding respect for others residents' quiet enjoyment of their units, banned the "interceptor" from the garden area near unit owner's unit, and fined the owner of the offending unit when he violated the rule. Under these circumstances, unit owner could not make out a Fair Housing Act claim or a claim under 42 USC sections 1981 and 1982.

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Co-Op Unit Owner Entitled to Emotional Support Dog

Matter of 1 Toms Point Lane Corp. v. New York State Division of Human Rights NYLJ 10/18/19, p. 25, col. 5 AppDiv, Second Dept. (memorandum opinion)

The co-op corporation sought judicial review of a determination by the New York State Division of Human Rights (DHR). The Appellate Division upheld the determination, concluding that the Commissioner's determination was supported by substantial evidence.

Co-op unit owner filed a complaint with DHR when the co-op refused to permit her to keep an emotional support dog in her apartment to ameliorate her generalized anxiety disorder. At a hearing before an administrative law judge, both the unit owner and the co-op offered medical testimony about unit owner's disorder. The judge credited the testimony of unit owner's treating psychologist, concluded that unit owner did suffer from the disorder, and that permitting the emotional support dog was a reasonable accommodation for unit owner's disability. The judge also awarded unit owner $1,000 for mental anguish, and $11,961 in attorneys' fees. The Commissioner upheld the determination, and the co-op sought review pursuant to Executive law section 298.

In upholding the commissioner's determination, the Appellate Division acknowledged that testimony from the co-op's expert could support a contrary determination, the court held that it was for the administrative law judge to weigh the conflicting evidence, and not for the court to substitute its judgment for that of the hearing officer.