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New York County Clerk’s Index No. 400546/2014
New York Supreme Court
APPELLATE DIVISION — FIRST DEPARTMENT
In the Matter of the Application of
JONAS APONTE,
Petitioner-Appellant,
For a Judgment Pursuant to CPLR Art. 78,
against
SHOLA OLATOYE, AS CHAIRWOMAN OF THE NEW YORK CITY HOUSING
AUTHORITY AND THE NEW YORK CITY HOUSING AUTHORITY,
Respondents.
BRIEF FOR PETITIONER-APPELLANT
Attorneys for Respondents
DAVID FARBER
Acting General Counsel
New York City Housing Authority
Jane Lippman, Of Counsel
250 Broadway, 9th Floor
New York, NY 10007
(212) 776-5259
Attorneys for Petitioners-Appellants
DENISE M. MIRANDA, ESQ.,
Managing Director
AFUA ATTA-MENSAH, ESQ.,
Director of Litigation
LEAH GOODRIDGE, ESQ.,
Staff Attorney
SAFETY NET PROJECT
Urban Justice Center
40 Rector Street, 9th Floor
New York, New York 10006
(646) 602-5637
Printed on Recycled Paper
1
PRELIMINARY STATEMENT
Mom is sick. In 2009, these three words consumed Petitioner Jonas
Aponte’s thoughts from the time his mother, Victoria Aponte, was
diagnosed with dementia. Mom lived by herself in a one-bedroom
apartment in Sedgewick Houses, New York City Housing Authority (R.
113). At one point when he visited his mother, Mr. Aponte was in a room
with her and she began to talk to someone. When he asked who she was
speaking to, she said the little children who were in the room with them. But
Mr. Aponte remembers that only he and his mother were in the room that
day (R. 71; 394).
Medical records described Ms. Aponte as “completely incapacitated
mentally” (R. 388), with “paranoid delusions” (R. 412), “profound memory
impairments, insight judgment and impulse control” (R. 388). She believed
at 87 years of age that she was pregnant (R. 394).
In 2009, Mr. Aponte was faced with a burdensome and painful
decision: should he leave his 87-year old mother suffering from dementia
unattended and alone in her apartment? Or should he move in to take care of
Mom? Without wasting any time, Mr. Aponte chose the latter.
Thereafter, Victoria Aponte submitted a request to NYCHA to add her
son to her household because she could not live alone on account of her
2
dementia. Ms. Aponte’s physician definitively stated, “In my clinical
decision, Ms. Aponte should not be living alone due to her medical
condition and needs to be under supervision constantly” (R. 380). Ms.
Aponte’s request to have Mr. Aponte live with her was a form of reasonable
accommodation. The NYCHA Assistant Housing Manager understood her
reasonable accommodation request perfectly. He typed in his case notes,
“Tenant is applying to have son live with her as her health is failing and she
cannot be alone. Permanent Permission Request submitted to manager. End
of Log” (R. 240).
Despite NYCHA’s awareness that Ms. Aponte was an elderly,
disabled tenant who “cannot be alone”, NYCHA denied Ms. Aponte’s
permanent permission request in 2010 because two adults in a one-bedroom
apartment is considered “overcrowded” under NYCHA’s occupancy rules.
In 2011, a second permanent permission request to add Mr. Aponte was
denied because Mr. Aponte signed the request on behalf of his mother (R.
313: 1-8). By this time, Ms. Aponte no longer had the mental capacity to
sign the form herself, yet NYCHA insisted that no other person could sign
the form on her behalf.
In July 2012, Ms. Aponte ultimately lost her battle with dementia,
leaving her son in her apartment (R. 238; 240). Victoria Aponte was 90
3
years old when she died (R. 238). Pursuant to NYCHA’s rules, to inherit his
mother’s apartment, Mr. Aponte must show that he (i) received prior written
consent to be a lawful resident (“permanent residency request”); (ii) is a
relative of the tenant of record who vacated; (iii) continuously lived in the
apartment for at least one year after receiving written consent; (iv) passed a
criminal background check and (v) adhered to income standards for public
housing (R. 147-150). Out of all of these requirements, NYCHA only
asserted that Mr. Aponte lacked one: he never received prior written consent
to live with his mother. This case centers on why NYCHA never granted the
written request—had NYCHA done so, Mr. Aponte would be entitled to
succession rights to his mother’s apartment.
The lower court denied Mr. Aponte’s succession rights (R. 33), and in
doing so, set a dangerous precedent that would render long-held disability
discrimination laws a nullity.
The first dangerous precedent set by the lower court is its sanction of
NYCHA’s blatant disregard for disability discrimination laws. Despite the
fact that NYCHA was put on notice that an elderly tenant had dementia and
could not live alone, NYCHA refused to accommodate Ms. Aponte.
NYCHA continuously reiterated its occupancy rules at the written
permission request stage (R. 229), hearing level (R. 312: 13-22) and Article
4
78 proceeding (R. 107). A reasonable accommodation is a “change,
exception, or adjustment to a rule, policy, practice, or service that may be
necessary for a person with a disability to have an equal opportunity to use
and enjoy a dwelling, including public and common use spaces.” United
States Department of Housing and Urban Development & United States
Department of Justice, Joint Statement, Reasonable Accommodations Under
the Fair Housing Act at 6 (May 17, 2004), available at
http://www.hud.gov/offices/fheo/library/huddojstatement.pdf. That means
that if a landlord, such as NYCHA, has an occupancy rule, the landlord is
required to make an exception to that rule for persons with a disability.
Failure to do so is discriminatory under federal and state laws. By allowing
NYCHA to steadfastly cling to its occupancy rules when it should have
accommodated a disabled tenant, the lower court effectively held that
landlords can disregard long-held disability discrimination laws.
The second dangerous precedent set by the lower court is its decision
regarding standing in associational discrimination cases. Mr. Aponte
asserted that NYCHA’s failure to provide his mother with a reasonable
accommodation adversely affected his succession rights claim (R. 362). The
lower court misinterpreted the legal standard for associational
discrimination, holding that Mr. Aponte cannot “assert a reasonable
5
accommodation claim on his own behalf based on associational
discrimination” because claimants need to show that they sustained an
“independent injury” apart from the person with a disability (R. 32). The
independent injury requirement creates a higher burden of proof because it is
an additional element in an associational discrimination claim. Local New
York disability statutes do not require this additional element (New York
City Human Rights Law [Administrative Code of the City of NY] §8-
107(15)-(20). The lower court, therefore, heightened Mr. Aponte’s burden
of proof and relied on a misguided interpretation of disability discrimination
laws.
The third dangerous precedent set by the lower court is its decision on
administrative stare decisis. A Hearing Officer held in a prior grievance
decision, The Matter of Juan Gonzalez, that NYCHA wrongfully denied a
remaining family member claim where it posited its “overcrowded” rule.
(R. 95-98). In the case now at bar, the lower court held that NYCHA is not
bound to follow this prior grievance decision because it is “incorrect”.
However, The Matter of Juan Gonzalez was never overturned by NYCHA’s
board, therefore NYCHA is, in fact, bound to follow it. The essence of an
Article 78 claim is that an agency must follow its own rules and procedures
uniformly. The lower court’s ruling that NYCHA is not bound to follow a
6
prior administrative decision is in direct contradiction with decades of
blackletter law affirming that an agency’s arbitrary and capricious decision
must be overturned.
We respectfully ask this court to rectify dangerous precedent set by
the Supreme Court in this case. Long-held protections for disabled tenants
are at stake. Mr. Aponte’s ability to rightfully maintain an affordable
apartment in an unaffordable city is at stake because NYCHA did not do
what it was supposed to do—NYCHA did not follow the law.
7
QUESTIONS PRESENTED
1. When a remaining family member commences an associational
disability discrimination claim, can NYCHA prevail where evidence
shows it did not provide reasonable accommodation and did not prove
an undue burden defense?
Supreme Court incorrectly answered: Yes.
2. Was the issue of associational disability discrimination raised at the
hearing level where Mr. Aponte testified and presented documentary
evidence that he did not acquire succession rights on account of
NYCHA’s failure to provide reasonable accommodation to his
mother?
Supreme Court incorrectly answered: No.
3. Does a non-disabled claimant asserting associational discrimination
need to allege that he suffered an “independent injury” apart from the
disabled person?
Supreme Court incorrectly answered: Yes.
4. Can NYCHA disregard a prior grievance decision that was approved
by the NYCHA board in contravention of administrative stare
decisis?
Supreme Court incorrectly answered: Yes.
8
5. Does the doctrine of estoppel preclude recognition of NYCHA’s
implicit consent to Mr. Aponte’s occupancy of his mother’s
apartment?
Supreme Court incorrectly answered: Yes.
9
STATEMENT OF FACTS
Victoria Aponte, Petitioner’s mother, was the tenant of record of a one
bedroom apartment located in the Sedgwick Houses, a NYCHA-owned
housing development (R. 106). Ms. Aponte resided in the apartment,
located at 150 West 174 Street, Bronx, New York from February 1992 until
her death on July 17, 2012 (R. 113).
In 2009, Ms. Aponte was diagnosed with advanced dementia of the
Alzheimer’s type. Ms. Aponte’s disability rendered her mentally unstable
and unable to live alone, as noted in several medical records and doctors’
letters (R. 369-380).
Shortly after his mother’s diagnosis, Mr. Aponte moved into Ms.
Aponte’s apartment out of concern (R. 275: 14-17). On or about
approximately August 24, 2010, Mr. Aponte received a letter from Dr. Valli
Grant, Ms. Aponte’s medical doctor, stating that “it [was] unsafe for [Ms.
Aponte] to live on her own” (R. 380). The letter also indicted that Ms.
Aponte would need “to be under constant supervision” (R. 380).
On or around August 24, 2010, NYCHA received a Permanent
Permission Request requesting to add Jonas Aponte as an occupant to his
mother’s apartment. (R. 114; 228-229). The NYCHA Housing Assistant
Manager, Joel Berson, entered into his case notes, “Tenant is applying to
10
have son live with her as her health is failing and she cannot live alone” (R.
240). The permanent permission request was denied by the Sedgwick
Houses Manager because allowing Mr. Aponte to live with his mother
would “create overcrowding conditions” (R. 229).
Around January 4, 2011, Ms. Aponte submitted an Occupant’s
Affidavit of Income, which included her son, Mr. Aponte, as a tenant. She
also stated, “[T]here is someone in my household with a disability, but I am
not requesting the authority to provide any accommodation at this time” (R.
176). Joel Berson crossed out Mr. Aponte’s name because he was not
authorized to reside in the apartment (R. 114; 118).
As Ms. Aponte’s condition worsened, in February 2011, NYCHA
reviewed another permanent residency request to add her son to her
household (R. 382-383). The request stated that Ms. Aponte was
“[s]uffering from dementia [and] cannot be alone” (R. 383). Shortly after,
the Sedgwick Houses Manager disapproved the permanent residency request
because he did not believe the form was signed by Ms. Aponte (R. 115;
383). The manager stated that Mr. Aponte is not allowed to request
permanent residency and could not sign for his mother (R. 383).
In July 2012, Petitioner Jonas Aponte informed the Sedgewick Houses
Management office that his mother died (R. 240). Mr. Aponte also
11
expressed that he would like to lease the apartment (R. 240). Thereafter, Mr.
Aponte was informed that an appointment was scheduled to discuss his
remaining-family-member status on August 17, 2012 (R. 87). Upon Mr.
Aponte meeting with the Sedgewick Housing Manager, Mr. Aponte was
informed that he was never given written permission to join the household—
meaning that he was an unauthorized occupant and was never part of the
household composition (R. 242).
Around January 23, 2013, NYCHA’s Bronx Borough Property
Manager met with Mr. Aponte regarding his remaining-family-member
grievance, and on February 1, 2013, Mr. Aponte was denied grievance (R.
244).
In April 2013, NYCHA commenced a holdover proceeding against
Mr. Aponte in an effort to evict him from the subject apartment (R. 116).
Concurrently, on September 13, 2013, Mr. Aponte had commenced an
appeal of NYCHA’s denial of his remaining-family- member status (R. 467-
468). At the administrative hearing, Mr. Aponte’s case consisted of his
testimony and documentation showing Ms. Aponte’s health conditions (all
of which he claimed were submitted to Sedgewick Housing Management
Office) (R. 247-277). Mr. Aponte testified that he moved into the subject
apartment in 2009 to care for his mother because she was ill (R. 275).
12
During the hearing, NYCHA Assistant Housing Manager, Mr. Joel
Berson, testified that Mr. Aponte was not listed on the Tenant Data
Summary as an occupant (R. 288: 6-23). Mr. Berson detailed NYCHA’s
policy for a one bedroom apartment, while outlining the reasoning for two
permanent residency denials: “will create overcrowding” and the belief that
Ms. Aponte had not signed the permanent residency request (R. 289: 13-23).
On December 18, 2013 after evaluation of the documentary evidence
and arguments, the Hearing Officer found that Mr. Aponte was not an
authorized member of Ms. Aponte’s apartment since he did not receive
written permission (R. 90). Furthermore, the Hearing Officer said that
adding Mr. Aponte as an occupant to the subject apartment would cause
overcrowding and violate NYCHA’ s occupancy standards (R. 90).
Consequently, Mr. Aponte was not deemed a remaining family member.
On April 17, 2014, Mr. Aponte commenced an Article 78 petition
challenging NYCHA’s denial of his remaining-family-member grievance
(R. 37-98). The Order to Show Cause sought a stay of the Bronx Housing
Court proceeding and of the enforcement against petitioner of any eviction
pending the hearing of the Article 78 proceeding (R. 37-39). The stay was
granted on April 22, 2014 (R. 26).
On September 15, 2014, on review of the Article 78 petition, Judge
13
Cynthia S. Kern “denied and dismissed [the petition] in its entirety” (R. 33).
The petition was denied on the grounds that NYCHA had a rational basis for
denying the remaining- family- member status—based on the failure to
obtain a written consent to add Mr. Aponte to his mother’s household (R.
31-32). Additionally, Judge Kern held that Mr. Aponte had no standing to
invoke a reasonable accommodation claim on behalf of himself without
proving he sustained an independent injury (R. 32).
14
ARGUMENT
POINT I
THE SUPREME COURT’S DECISION MUST BE OVERTURNED
BECAUSE IT IGNORED NYCHA’S AFFIRMATIVE DUTY TO
PROVIDE REASONABLE ACCOMMODATION BY MAKING AN
EXCEPTION TO ITS OCCUPANCY RULES
Reasonable accommodation is a “change, exception, or adjustment to
a rule, policy, practice, or service that may be necessary for a person with a
disability to have an equal opportunity to use and enjoy a dwelling.” United
States Department of Housing and Urban Development & the Department of
Justice, Reasonable Accommodations Under the Fair Housing Act, Joint
Statement at 6 (May 2004). Under this tenet, a landlord is required to set
aside its own rules and policies to accommodate a disabled tenant. See
Crossroads Apt. Assoc. v. LeBoo, 152 Misc.2d 830, 835, 578 N.Y.S.2d 1004
(City Ct, Rochester 1991) (court denied summary judgment to a landlord
seeking to dismiss a Section 504 of the Rehabilitation Act claim that the no-
pet clause in the residential lease must be waived to accommodate the
tenant’s disability). For example, to provide reasonable accommodation, a
landlord would be required to disregard a no-pet clause in a residential
breach to allow a disabled tenant to own a seeing-eye dog. See Mozaffari v.
New York State Div. of Hum. Rights, 63 A.D.3d 643, 644, 881 N.Y.S.2d 437,
15
437 (1st Dept 2009) (upholding a determination by the NY State Division of
Human Rights that landlord discriminated against a disabled tenant by
enforcing a no-pet clause where the tenant required a hearing dog).
Pursuant to NYCHA’s occupancy rules, an overcrowded apartment is
a one-bedroom occupied by two unmarried adults (R. 329). In the instant
case, Ms. Aponte sought NYCHA’s written permission to add her son to her
household permanently because of her dementia, despite the fact that his
addition would “overcrowd” the apartment under NYCHA’s policies (R. 75-
76; 84-85). Since the particular reason for the request was due to Ms.
Aponte’s disability, it was clearly a reasonable accommodation request.
This reasonable accommodation request required NYCHA to set aside its
occupancy “overcrowding” rules to allow Mr. Aponte to permanently join
his mother’s household. NYCHA’s refusal to reasonably accommodate Ms.
Aponte is the sole reason that Mr. Aponte did not acquire succession rights
(R. 116). NYCHA asserted at all stages of this litigation that Mr. Aponte
was not recognized as a remaining family member because NYCHA never
approved his mother’s prior request to add him to her household (R. 99-
122). NYCHA never asserted any other reason for the RFM denial, such as
failure to pass a criminal background check or non-familial relationship (R.
99-122).
16
The only way the Supreme Court could have lawfully ruled that
NYCHA was not obligated to provide reasonable accommodation would be
where NYCHA asserted and proved that the accommodation posed an undue
burden. See Miloscia v. B.R. Guest Holdings LLC, 33 Misc.3d 466, 473
(Sup Ct, NY County 2011) quoting Phillips 66 A.D.3d 170, 182 (1st Dept
2009) (“The NYCHRL defines ‘reasonable accommodation’ as ‘such
accommodation that can be made that shall not cause undue hardship in the
conduct of the covered entity's business. The covered entity shall have the
burden of proving undue hardship’”). However, NYCHA never asserted an
undue burden defense at the hearing or during the Article 78 proceeding (R.
120-121). NYCHA simply reiterated its occupancy rules and stated that it
would not have provided the requested accommodation. Yet the lower court
still ruled that NYCHA “properly adhered to its own rules when denying”
Ms. Aponte’s reasonable accommodation request (R. 8-9).
Below, we outline (i) that NYCHA is a covered entity under the
purview of federal and state disability laws and as such, is bound to follow
reasonable accommodation standards; (ii) NYCHA was put on notice that
Ms. Aponte had a disability and sought accommodation; (iii) NYCHA
refused to provide reasonable accommodation and (iv) even if NYCHA had
17
asserted an undue burden defense, Ms. Aponte’s accommodation request
was still reasonable.
A. NYCHA is a Covered Entity Under Federal and State
Disability Laws, and as Such, is Required to Adhere to
Reasonable Accommodation Standards
It is indisputable that NYCHA was required by law to provide Ms.
Aponte with reasonable accommodation. Two federal disability laws, the
Fair Housing Act and Section 504 of the Rehabilitation Act, mandate
housing providers to make reasonable accommodation for disabled tenants.
Two local New York codes, the New York City Human Rights Law
(Administrative Code of the City of NY, §8-107) and the New York State
Human Rights Law (Executive Law §296), also require landlords to provide
reasonable accommodation.
Apart from these recognized laws enforcing affirmative obligations on
landlords, guidelines from the U.S. Department of Housing and Urban
Development (“HUD”) make clear that “public housing agencies are subject
to civil rights requirements” including the Fair Housing Act and section 504
of the Rehabilitation Act. U.S. Department of Housing and Urban
Development, Public Housing Occupancy Guidebook, at 9 (June 2003),
available at
http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_10760.pdf
18
(accessed July 12, 2015). Therefore, there is no ambiguity about whether
NYCHA’s own rules or HUD guidelines trump disability laws because HUD
obligates NYCHA to follow applicable disability laws.
More importantly, NYCHA has its own fair housing policy which
requires the authority to “make reasonable modifications to its policies and
programs to afford qualified residents and applicants with disabilities an
equal opportunity to participate in its programs, services or activities” (R.
123).
In sum, NYCHA was required to provide Ms. Aponte with reasonable
accommodation by six distinct authorities: (i) the Fair Housing Act (42
U.S.C. 3601); (ii) Section 504 of the Rehabilitation Act (29 U.S. §794); (iii)
the New York City Human Rights Law (Administrative Code of the City of
NY, §8-107); (iv) the New York State Human Rights Law (N.Y. Executive
Law, Article 15 §296[2]); (v) Guidelines from the U.S. Department of Urban
Development (U.S. Department of Housing and Urban Development, Public
Housing Occupancy Guidebook, at 9 (June 2003), available at
http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_10760.pdf
[accessed July 12, 2015]); and finally (vi) NYCHA’s own Fair Housing
Policy (R. 123). Despite the fact that NYCHA was obligated to make an
exception to its occupancy rules by federal, state and city law, HUD
19
guidelines, and even NYCHA’s very own fair housing policy, NYCHA
refused to adhere to any of these standards.
B. NYCHA was Adequately Informed of Ms. Aponte’s
Reasonable Accommodation Request
Respondent NYCHA knew that Ms. Aponte had dementia and that
she needed her son to live with her to accommodate her disability.1
NYCHA received two permanent residency requests on behalf of Ms.
Aponte explicitly stating her disability and requested accommodation. At
the time of the first written permission request in 2010, Ms. Aponte was
approximately 87 years old (R. 385). A medical doctor warned that “it is
unsafe for her to live on her own as she is also at risk for falls” (R. 380). On
the 2010 permanent permission request form, Ms. Aponte stated she had
dementia. On the same form under the section “Reason for Requesting
Admission to Development Apartment,” Ms. Aponte wrote “I am sick.
Dementia. Need help” (R. 433).
Two days following this written request, on August 26, 2010, the
NYCHA Assistant Housing Manager, Joel Berson, wrote in his case notes,
“Tenant is applying to have son live with her as her health is failing and she
1 On eight of Victoria Aponte’s Occupant Affidavit forms, spanning a period of eight
years, Ms. Aponte checked off the box to indicate to NYCHA that she had a disability.
(R. 201-226).
20
cannot live alone” (R. 240). There was no uncertainty about whether Ms.
Aponte made a reasonable accommodation request. The NYCHA Assistant
Housing Manager clearly understood her request. Thereafter, on the 2011
permanent residency request form, the words, “Suffering from dementia.
Cannot be alone” were written under the “reason for request” section (R.
382-383).
Despite the fact that NYCHA received two clear and unambiguous
requests for reasonable accommodation on Ms. Aponte’s behalf, the lower
court’s decision suggested that NYCHA was not put on notice that Ms.
Aponte had a disability and required accommodation. The court distinctly
noted that on January 4, 2011, Ms. Aponte checked a box in her Occupant’s
Affidavit of Income that stated, “there is someone in my household with a
disability, but I am not requesting the Housing Authority to provide any
accommodation at this time” (R. 10). However, this statement is immaterial
to NYCHA’s knowledge of Ms. Aponte’s disability. The referenced
Occupant’s Affidavit was signed in January 2011 and Ms. Aponte submitted
her second permanent residency request one month thereafter in February
2011 (R. 10). Indeed, Blatch ex. rel. Clay v. Hernandez recognized that
NYCHA cannot use the fact that disabled tenants do not self-identify on
annual forms such as the Disability Status and Notice of Reasonable
21
Accommodation form. See 360 F.Supp. 2d 595, 632 (S.D.N.Y 2005). Not
only does a mental disability render tenants ill-suited to speak for themselves
but also, “the need for accommodations may not be apparent until tenancy-
threatening issues arise, and as such issues may not exist at the time of the
annual mailing.” Id.
C. NYCHA Refused to Reasonably Accommodate Ms. Aponte
It is uncontroverted that NYCHA received two permanent residency
requests (on August 24, 2010 and February 7, 2011) expressly seeking
reasonable accommodation for Ms. Aponte. NYCHA rejected both requests.
NYCHA refused the first request, citing that Mr. Aponte’s addition to the
one-bedroom “will create overcrowding conditions” (R. 433). NYCHA
refused the 2011 request citing that Mr. Aponte “cannot request permission
and cannot sign for his mother” (R. 236). No alternatives, such as a transfer
or temporary residency, were listed on the form. Both requests were simply
disapproved.
D. Ms. Aponte’s Requests for Disability Accommodation Were
Reasonable
As an initial matter, NYCHA did not assert an undue burden defense.
It is precluded from doing so now because it would pose a question of fact
rather than a question of law. Both accommodation requests for Ms. Aponte
were reasonable. This case centers around allowing one additional person to
22
move into a one-bedroom in New York City. NYCHA’s own policies
distinguish between overcrowded and extremely overcrowded (R. 329).
Two adults in a one-bedroom do not rise to the level of “extremely
overcrowded”.
NYCHA unabashedly admitted in its Respondent’s Memorandum of
Law2 that it had the capacity to grant Ms. Aponte’s request. “At most, Ms.
Aponte would have been entitled, as a reasonable accommodation, to
approval of a temporary residency for petitioner to be an authorized
occupant of her apartmen[t]” (R. 501). A temporary residency request
differs from a permanent residency request in two ways: (i) the maximum
time the new tenant can remain in the household is one year, and thereafter
the tenant of record must re-apply for authorization of the new tenant’s
occupancy and (ii) it does not ripen into succession rights (R. 141-144).
This court should not entertain NYCHA’s “no harm, no foul”
conjecture of a temporary residency request that was never even offered.
2 Both parties’ Memoranda of Law were included in the Record on Appeal for the
primary purpose of establishing that the questions presented on appeal were addressed in
the proceeding below and therefore preserved for this Court’s review. See Byrd v.
Roneker, 90 A.D.3d 1648, 1649, 936 N.Y.S.2d 434, 436 (4th Dep’t 2011) (citing Matter
of Lloyd v. Town of Greece Zoning Bd. of Appeals [appeal No. 1], 292 A.D.2d 818, 818–
819, 739 N.Y.S.2d 303 (4th Dep’t 2002), lv. dismissed in part and denied in part 98
N.Y.2d 691, 747 N.Y.S.2d 407, 775 N.E.2d 1286 (2002), rearg. denied 98 N.Y.2d 765,
752 N.Y.S.2d 4, 781 N.E.2d 916 (2002)) (Fourth Department “conclude[d] that plaintiff’s
memorandum of law was properly included in the record on appeal, but only for the
limited purpose of determining whether certain of plaintiff’s contentions are preserved
for our review”).
23
First, Ms. Aponte did not apply for temporary addition; she submitted a
permanent residency request. At this juncture, the fact remains that to
prevail, NYCHA was required to show why the permanent residency request
was posed an undue burden. NYCHA did not assert any justifications of
why the permanent residency request could not be fulfilled. A reiteration
that the occupancy rule exists is not the same as a defense of why the
occupancy rule cannot be set aside in specific instances.
Second, NYCHA’s admission that it could have allowed Mr. Aponte
to remain in the apartment temporarily undermines any arguments that the
accommodation for permanent residency request posed an undue burden.
That means that NYCHA had the power and discretion to make room for
Mr. Aponte to live in the apartment.
Third, even if offered, a temporary residency request would not have
accommodated Ms. Aponte because she did not have a temporary disability.
Ms. Aponte did not suffer from a broken leg; she suffered from dementia.
By 2011, medical staff advised that Ms. Aponte’s dementia “rendered her
completely incapacitated mentally” with “profound memory impairments”
(R. 388). Despite being put on notice of Ms. Aponte’s mental disability
numerous times, NYCHA made clear that it would not accept the written
consent application from anyone other than Ms. Aponte. For example, when
24
Mr. Aponte tried to submit the permanent residency request on his mother’s
behalf, NYCHA disapproved it, citing that he cannot sign for his mother (R.
236). That means that Ms. Aponte would have had to re-apply for the
temporary residency request every year to add her son to her lease. This
would have been an onerous burden for an elderly, tenant with dementia to
remember to re-apply every year to keep her son in her household.
The request was also reasonable because it did not conflict with any of
NYCHA’s policies—in fact, NYCHA’s own fair housing policy required the
housing authority to modify its occupancy rules to accommodate Ms.
Aponte (R. 123). Any arguments that Ms. Aponte’s reasonable
accommodation request conflicted with HUD guidelines are misguided. The
U.S. Department of Housing and Urban Development make clear in its
Guidebook that public housing authorities like NYCHA must follow
disability discrimination laws. Guidelines from the U.S. Department of
Urban Development (U.S. Department of Housing and Urban Development,
Public Housing Occupancy Guidebook, at 9 (June 2003), available at
http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_10760.pdf
[accessed July 12, 2015]). Therefore, the occupancy rules are pre-empted by
federal and state disability discrimination laws.
25
One fact remains clear throughout this case: the Supreme Court was
presented with evidence that NYCHA knew that an elderly, disabled tenant
requested reasonable accommodation on two occasions and, in response,
NYCHA consistently refused to provide it. Importantly, NYCHA never
proffered a justification of how the request posed an undue burden. When
the Supreme Court ruled that NYCHA properly adhered to its policy, it
effectively held that landlords can ignore disability discrimination laws
without even proving an undue burden defense. As such, the lower court’s
upholding of NYCHA’s overcrowding policy in the face of long-held
disability protections was an error of law which must be overturned.
POINT II
THIS COURT SHOULD ANNUL THE LOWER SUPREME
COURT’S RULING THAT PETITIONER LACKS STANDING TO
ASSERT AN ASSOCIATIONAL DISCRIMINATION CLAIM
BECAUSE IT RELIED ON A MISGUIDED INTERPRETATION OF
DISABILITY DISCRIMINATION LAWS
When a landlord fails to provide reasonable accommodation, the
“aggrieved party” with standing to sue is not limited only to disabled
persons. A non-disabled person associated with the tenant may also seek
relief under federal and state disability discrimination laws. This concept,
known as associational discrimination, has been recognized by federal and
New York courts for decades. Under associational discrimination, a white
26
roommate may sue a landlord for refusing to rent to him because his
roommate is African-American. See Dunn v. Fishbein, 123 A.D.2d 659, 660
(Sup Ct, NY County 1986) (holding that a white male had standing to assert
an associational discrimination claim where a landlord refused to rent to him
because his roommate was African-American). A doctor may sue a
commercial landlord for refusing to rent to him because his patients have
HIV/AIDS. Associational discrimination can be asserted under four
controlling authorities in the housing context: (i) Section 504 of the
Rehabilitation Act (29 U.S. §794); (ii) the Fair Housing Act (42 U.S.C.
3601); (iii) the New York City Human Rights Law (Administrative Code of
the City of NY, §8-107) and (iv) the New York State Human Rights Law
(N.Y. Executive Law, Article 15 §296[2]).
At the hearing, Mr. Aponte made an associational discrimination
claim, asserting that NYCHA’s failure to reasonably accommodate his
mother thwarted his ability to gain succession rights to his mother’s
apartment (R. 362).3 In its holding, the lower Supreme Court held that Mr.
Aponte “does not have standing to assert a reasonable accommodation claim
on his own behalf based on associational discrimination” because he must
3 In the petition, Mr. Aponte asserted that the Hearing Officer’s findings were made without
sound basis in reason and without regard to the facts…especially regarding the reasonable
accommodation request, rendering respondent’s action in denying Petitioner’s permanent
residency request arbitrary and capricious and an abuse of discretion.” (R. 41).
27
prove he “sustained an independent injury causally related to the denial of
federally requires services” of the tenant of record (R. 32). The court also
held that Mr. Aponte did not assert an independent injury (R. 32). Both of
these statements by the lower court are incorrect.
Although Mr. Aponte relied on four distinct disability discrimination
laws at the lower level, New York local laws have a lower threshold than
federal disability laws. Typically, in associational discrimination claims, the
claimant must show that they were associated with a disabled person who
was discriminated against and as a result, the claimant suffered some type of
adverse action. Federal disability laws such as Section 504 of the
Rehabilitation Act and the Fair Housing Act, require claimants to show that
in addition to just the mere adverse action, the adverse injury was
“independent” from that of the disabled person. For example, after a
hospital refused to provide accommodation to hearing-impaired parents and
their children provided sign language for them, the Second Circuit held that
the parent’s injury was the hospital’s refusal to accommodate and the
children’s “independent injury” was their absence from school to sign
language for their parents. See Loeffler v. Staten Island Univ. Hosp., 582
F.3d 268, 277 (2d Cir 2009). New York disability discrimination laws do
not require a showing of an independent injury.
28
NYCHA never asserted any other issues such as criminal
background or income limits that would preclude Mr. Aponte from acquiring
succession rights. Therefore, had NYCHA approved Ms. Aponte’s
permanent residency request, Mr. Aponte would have inherited the
apartment since he would be an authorized household member.
Below, we analyze the Supreme Court’s error in misapplying an
incorrect burden paradigm by (i) explaining that all four cited disability laws
allow non-disabled persons standing to sue under the tenet of associational
discrimination; (ii) showing that New York disability laws do not require a
showing of an independent injury and (iii) proving that Mr. Aponte
adequately asserted associational discrimination, including the independent
injury standard, at the hearing and lower level.
A. The Lower Court Erroneously Heightened Petitioner’s Burden of
Proof Under the “Associational Discrimination” Provision of the
New York Disability Discrimination Laws
1. The New York City Human Rights Law (Administrative Code)
Does Not Require Proof of an Independent Injury Element
Mr. Aponte was not required to assert an “independent injury” under
New York City Human Rights Law (herein “NYCHRL”) because this
element does not exist in the plain language of the Code. The elements of an
associational reasonable accommodation discrimination claim include a
29
showing that: (i) a person had a disability under the NYCHRL; (ii) the
housing provider had notice of the disability; (iii) the housing provider
refused to make a reasonable accommodation and (iv) plaintiff was
associated with the person with a disability. See Miloscia v. B.R. Guest
Holdings LLC, 33 Misc.3d at 474; See also N.Y. Administrative Code of the
City of NY, §8-107(15)-(20).
The NYCHRL “explicitly grants standing to sue to those who have
been discriminated against by virtue of their association with a disabled
individual.” Rivera v. Lutheran Med. Ctr., 22 Misc.3d 178, 181 (Sup Ct,
King County 2008).
The associational discrimination provision in the NYCHRL provides,
in pertinent part, that:
“Unlawful discriminatory practices shall be construed to prohibit such
discrimination against a person because of the actual or perceived race,
creed, color, national origin, disability, age, sexual orientation or alienage or
citizenship status of a person with whom such person has a known
relationship or association.” N.Y. Administrative Code 8-107(20).
This is the only provision in the Code which discusses associational
discrimination. Notably, there is no language imposing any “independent
injury” element. Therefore, the plain language of the Code does not require
a showing of the additional element of independent injury.
30
Likewise, New York courts have not interpreted the NYCHRL to
include an independent injury element. For example, in Rivera v. Lutheran
Med. Ctr., the plaintiff was discharged from his position at a medical center
over allegations that he sexually harassed a fellow employee. Rivera, 22
Misc.3d at 179 (Sup Ct, Kings County 2008). The plaintiff asserted a claim
under NYCHRL that the hospital, in fact, terminated him because of his
association with his sister-in-law who previously sued the hospital, alleging
it failed to accommodate her disability during her in-patient stay. Id. When
the hospital brought a motion to dismiss for failure to state a cause of action,
the court held that “plaintiff sufficiently stated a cause of action under the
NYCHRL” by showing (i) he was associated with a disabled person; (ii)
who was refused reasonable accommodation; and (iii) plaintiff was
adversely affected. Id. at 181. There, the plaintiff did not have to prove
independent injury to adequate state his associational discrimination claim.
Similarly, in Bartman v. Shenker, 5 Misc.3d 856, 857, 786 N.Y.S.2d
696, 697 (Sup Ct, NY County 2004), the Executive Director of a nonprofit
complained to appropriate city agencies that his commercial landlord failed
make the building inaccessible to him. The building’s entrance did not have
a ramp for the plaintiff to enter in his wheelchair. Id. Thereafter, the
commercial landlord alleged that the organization breached its lease by
31
falling into rental arrears and installing air conditioners in violation of the
building policy. Id.
The organization led by the Executive Director asserted an
associational discrimination claim under the NYCHRL, alleging that the
commercial landlord illegally retaliated against the organization by asserting
baseless claims due to its association with the Executive Director who
previously filed accessibility complaints with city agencies. Id. No
independent injury element was necessary to successfully state the
associational discrimination claim. The court held that the plaintiff asserted
a “classic disability association discrimination case”. Id. at 861.
In the case before this court now, the lower court only relied on
Filonuk v. Rhea, 84 A.D.3d 502 (1st Dept 2011) to reach its conclusion that
all associational discrimination claims encompass the “independent injury”
element. However, the plaintiff in Filonuk asserted associational
discrimination under the Fair Housing Act, not the NYCHRL.4 Brief for
4 It bears emphasis that the burden of proof for associational discrimination differs by the
controlling authority asserted. The NYCHRL and NYSHRL have a lower burden of
proof than their federal counterparts, the Section 504 of the Rehabilitation Act and the
Fair Housing Act because the former authorities do not require a showing of the
additional “independent injury” element. Loeffler v. Staten Island Univ. Hosp., 582 F.3d
268, 279 (2nd. Cir. 2009), an oft-cited case on associational discrimination, discusses the
“independent injury” standard. Although the petitioners in Loeffler asserted an
associational discrimination claim under Section 504 of the Rehabilitation Act and the
NYCHRL, Loeffler’s discussion of the independent injury element is only tied to the
Rehabilitation Act. The Second Circuit explained that under Section 504 of the
Rehabilitation Act, “nondisabled parties bringing associational discrimination claims
32
Petitioner-Appellant in Filonuk v. Rhea, available at 2011 WL 12525032,
*20 (2011). The Fair Housing Act requires the aggrieved party to show an
independent injury. As explained above, the NYCHRL does not require this
additional element.
Reading the NYCHRL as identical to the Fair Housing Act does not
comport with legislative intent. The NYCHRL is much broader and
expansive in its scope of coverage and protection than federal and even state
discrimination laws. The NYCHRL “explicitly requires an independent
liberal construction analysis in all circumstances, even where State and
federal civil rights laws have comparable language”. See Williams v. NYC
Hous. Auth., 61 A.D.3d 62, 66 (1st Dept 2009). See also Farrugia v. North
Shore Univ. Hosp., 13 Misc. 3d 740, 745 (Sup Ct, NY County 2006) (“The
Administrative Code's legislative history clearly contemplates that the New
York City Human Rights Law be liberally and independently construed with
the aim of making it the most progressive in the nation”). Given the history
and intent of the NYCHRL, it should be read as textually distinct from the
federal statutes. The lower court erroneously heightened Mr. Aponte’s
need only prove an independent injury causally related to the denial of federally required
services to the disabled persons with whom the non-disabled plaintiffs are associated.”)
Loeffler at 279.
33
burden of proof by imposing an independent injury element in the
NYCHRL.
Mr. Aponte asserted at the hearing and in his Article 78 petition (in
the accompanying attorney affirmation), all of the three elements of the
associational discrimination test under the NYCHRL. Mr. Aponte argued
that (i) his mother had dementia; (ii) his mother requested a reasonable
accommodation and NYCHA refused to provide her with a reasonable
accommodation and (iii) he is associated to his mother by familial
relationship. The only reason Mr. Aponte was not granted RFM status was
due to the denied written requests submitted to accommodate his mother.
Therefore, Mr. Aponte was adversely affected by NYCHA’s failure to
accommodate his mother. Petitioner Jonas Aponte asserted a prima facie
case under the NYCHRL and NYCHA never asserted any undue burden
defense. Therefore, the lower court should have annulled NYCHA’s
decision as an error of law.
2. The New York State Human Rights Law (Executive Law) Grants
Standing for Associational Discrimination Claims
Although the NYSHRL does not have a provision expressly providing for
associational discrimination, New York courts have long recognized that the
Code allows standing to individuals who were not directly discriminated
34
against but faced adverse effects. The New York State Human Rights Law
(“NYSHRL”) states:
“It shall be unlawful discriminatory practice for the owner of publicly
assisted housing [t]o refuse to make reasonable accommodations in rules,
policies, practices or services when such accommodations may be necessary
to afford a person with a disability equal opportunity to use and enjoy a
dwelling.” New York State Human Rights Law, N.Y. Executive Law,
Article 15 §296(2)(d).
In relevant part, the statute has a separate provision prohibiting a landlord
from discriminating against:
“Any person because of his or her race, creed, color, disability, national
origin, sexual orientation, military status, age, sex, marital status or familial
status in the terms, conditions or privileges of any publicly assisted housing
accommodations or in the furnishing of facilities or services in connection
therewith.” New York State Human Rights Law, N.Y. Executive Law,
Article 15 §296(2)(b)(emphasis added).
This court explained in Stalker v. Stewart Tenants Corp. that the above “any
person” language of the NYSHRL expands the Code’s scope of standing to
include associational discrimination and that this “expansive language
provides a remedy for any person ‘adversely affected by reason of
discrimination’ in the provision of housing in New York.” Stalker v.
Stewart Tenants Corp., 93 A.D.3d 550, 551 (Sup Ct, NY County 2012).
The Stalker interpretation is buttressed by a long line of New York
cases, spanning decades, which recognize associational discrimination under
the NYSHRL. In 1974, the Third Department heard a claim in Merrill by a
35
wife who asserted a landlord discriminated against her by refusing to rent to
her because her husband was African-American. Merrill v. State Div. of
Human Rights, 360 N.Y.S 2d. 108, 110, 45 A.D.2d 548, 550 (2nd Dept
1974). The landlord argued that the claimant did not assert a viable claim
because no discrimination had been directed towards her. Id. The court
summarily rejected this argument and held that “it reasonably appears that
there was discrimination directed toward [the claimant] because she was a
white person married to a black person, and upon that basis, there is
discrimination based on her race and color.” Id.
In 1986 in Dunn v. Fishbein, a white man successfully asserted an
associational discrimination claim under the NYSHRL that he was denied
housing on account of his roommate’s race. There, the court recognized that
though the claimant was not directly discriminated against because of his
race, he was adversely affected by his association with his roommate who
was discriminated against. See Dunn, 123 A.D.2d 659, 660 (Sup Ct, NY
County 1986) (“Jury could find that both Dunn and his roommate Pugh were
injured by the defendants who were motivated by racial bias. The fact that
Dunn is a Caucasian is of no relevance”).
In 1992, this court recognized associational discrimination under the
NYSHRL in Bernstein v. 1995 Assoc., 185 A.D.2d 160, 163, 586 N.Y.S.2d
36
115 (1st Dept 1992). In that case, a doctor who rented a commercial space
sued his landlord, alleged that the landlord sought to terminate the lease
because the medical office treated AIDS patients and performed abortions.5
Id. The First Department held that “the acts alleged stated a valid cause of
action despite the fact that [the doctor] was not the actual victim of
discrimination.” Id. at 163.
Lastly, in 2001, in Axelrod v. 400 Owners Corp., the NY Supreme
Court held that a coop shareholder who alleged the board of directors
improperly refused to approve prospective purchasers on the basis of
familial status had standing to sue under associational discrimination.
Axelrod, 733 N.Y.S.2d 587, 590 (Sup Ct, NY County 2001) (“Defendants
maintain that [shareholder] lacks standing to assert a discrimination claim in
that the alleged improper actions were not directed at her but at prospective
purchasers, who were of child bearing age. However, several cases have
allowed claims by persons who were not themselves members of the
protected class, but were personally affected, albeit indirectly, by virtue of
the alleged discrimination”).
5 Although the case is unclear, a later case clarifies that the plaintiff brought the associational
discrimination under both the NYS Human Rights Law and the NYCHRL. Bernstein v 1995 Associates,
217 A.D.2d 512, 514 (NY 1995).
37
These precedent cases shed light on how New York courts have
construed associational discrimination under the NYSHRL. Any
interpretation of the NYSHRL as more restrictive than its federal
counterparts, which already recognize associational discrimination, would be
a departure from precedent cases and legislative intent. See Wilson v.
Phoenix House, 42 Misc.3d 377, 699 (Sup Ct, NY 2013) (“The scope of the
disability discrimination provisions of the New York State Human Rights
Law [a]re similar to but broader than the Federal Americans with
Disabilities Act and §504 of the Rehabilitation Act”).
To assert a cognizable associational discrimination claim under the
NYSHRL, “a plaintiff can show that she was adversely affected by reason of
discrimination perpetrated against” another person with whom the plaintiff is
associated. Axelrod v. 400 Owners Corp., 733 N.Y.S.2d at 591. Petitioner
Jonas Aponte met this standard when he asserted at both the hearing and
Article 78 stage of litigation that (i) his mother had dementia, a recognized
disability under the NYSHRL; (ii) his mother requested to add Petitioner to
her household to accommodate her disability and Respondent NYCHA
refused; and (iii) Petitioner was adversely affected by NYCHA’s refusal to
reasonable accommodate because his ability to inherit his mother’s
apartment was thwarted as a direct result of NYCHA’s failure to
38
accommodate his mother. In sum, Mr. Aponte asserted associational
discrimination under both New York disability discrimination laws.
B. Petitioner Jonas Aponte Meets the “Independent Injury” Element
of Associational Discrimination Pursuant to Federal Disability
Discrimination Laws
1. Federal Disability Discrimination Laws Recognize Associational
Discrimination
Non-disabled persons have standing to assert associational
discrimination under both Section 504 of the Rehabilitation Act and the Fair
Housing Act. Federal courts have found that anti-discrimination statutes
which use “any person” language under persons covered expand standing to
non-disabled persons in addition to persons with disabilities. See Cortez v.
City of Porterville, 2014 WL 1101228 (ED Cal 2014) (explaining that “the
‘any person’ language in the enforcement provision indicates Congress’
intent to grant standing broadly as is permitted under Article III”); See also
Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179
F.3d 725, 731 (9th Cir 1999) (explaining that Congress determined that both
acts are to be read and interpreted consistently).
Section 504 of the Rehabilitation Act provides that remedies are
available to “any person aggrieved by an act or failure to act by any [f]ederal
provider of such assistance.” 29 U.S. 794. “Section 504 and its anti-
retaliation provision use the all-inclusive phrases ‘any person aggrieved’ and
39
‘any individual,’ and no language further limits who ‘any person aggrieved’
or ‘any individual’ may be. In particular, the statutes do not include
language requiring such individuals to have disabilities in order to have
standing.” See Barker v. Riverside County Office of Educ., 584 F.3d 821,
825 (9th Cir 2009). See also Popovich v. Cuyahoga County Ct. of Common
Pleas, 150 Fed. Appx. 424, 427 (6th Cir 2005) (holding that associational
discrimination claims “are viable under the Rehabilitation Act, just as they
are under the ADA.”); See also Bay Area Addiction Research and
Treatment, Inc. v. City of Antioch, 179 F3d 725, 731 (9th Cir 1999) (noting
congressional intent to establish parity between the ADA and Section 504 of
the Rehabilitation Act).
Under the Fair Housing Act, a “person harmed by discrimination,
whether or not the target of discrimination, can sue to recover for his or her
own injury.” San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d
470, 475 (9th Cir 1998); See also Gladstone Realtors v. Vil. of Bellwood,
441 U.S. 91 (1979) (explaining that Congress intended for standing under
the Fair Housing Act to be as broad as possible under Article III). The Act
“defines an ‘[a]ggrieved person’ as ‘any person who claims to have been
injured by a discriminatory housing practic[e].” Stalker v. Stewart Tenants
Corp., 93 A.D.3d at 550. Therefore, it is clear that both the Fair Housing Act
40
and Section 504 of the Rehabilitation Act grant standing on the basis of
associational discrimination.
2. Petitioner Jonas Aponte Adequately Asserted “Independent Injury”
for Claims under Section 504 of the Rehabilitation Act and the Fair
Housing Act
To assert an associational discrimination under Section 504 of the
Rehabilitation Act, a party “need only establish that each suffered an injury
independent from their parents that was causally related to the Hospital’s
failure to provide services to their parents.” Loeffler v. Staten Island Univ.
Hosp., 582 F.3d at 268; See also Eskenazi-McGibney v. Connetquot Central
School Dist., 2015 WL 500871, 6 (ED NY 2015) (following the Loeffler
standard and holding that Section 504 of the Rehabilitation Act allows
standing under the theory of associational discrimination).
Petitioner Jonas Aponte asserted an independent injury while he was
pro se at the hearing: the Project Grievance Summary notes, “Mr. Aponte
believes that because he claimed he was taking care of his mother, he is
automatically entitled to become head of household” (R. 362).
In the Attorney Affirmation which accompanied the Article 78
Petition, the undersigned asserted that “Petitioner’s independent injury is
that he was denied housing.” Mr. Aponte’s injury was the deprivation of
succession rights which is distinct from his mother’s injury to have her son
41
live with her for the purpose of taking care of her and that was asserted
during the hearing and Article 78 stage.
Similar to Section 504 of the Rehabilitation Act, plaintiffs asserting
associational discrimination under the Fair Housing Act need only allege
that they suffered a “distinct and palpable injury.” See Havens Realty Corp.
v. Coleman, 455 U.S. 363, 372 (1982). Here too, Mr. Aponte meets all
elements of associational discrimination under the Fair Housing Act. The
purpose of Ms. Aponte’s accommodation was to retain a person who would
live with her to take care of her. Mr. Aponte’s injury is distinct from Ms.
Aponte’s: his succession rights to his mother’s apartment were vitiated on
account of NYCHA’s failure to accommodate his mother.
POINT III
THIS COURT SHOULD ANNUL THE LOWER COURT’S RULING
BECAUSE IT INCORRECTLY HELD THAT MR. APONTE’S
REASONABLE ACCOMMODATION CLAIM WAS NOT RAISED
AT THE HEARING
The lower court’s ruling that Mr. Aponte did not a raise reasonable
accommodation claim at the administrative hearing is factually incorrect. As
argued in the sections below, Mr. Aponte adequately asserted the key
elements of an associational discrimination claim at the hearing. In any
event, this court may still review areas of law on appeal. Mr. Aponte is not
42
making a factual claim—his associational discrimination claim is a purely
legal argument and may be reviewed by this court at this stage of litigation.
A. Ms. Aponte’s Reasonable Accommodation Request Was Raised
At the Hearing in the Form of Testimony and Documentary
Evidence
As a preliminary matter, plaintiffs are not required to use
sophisticated legal language or even legal terms to adequately assert a claim.
“Pleadings should be liberally construed and a complaint should not be
dismissed for failure to state a cause of action when a cause can be discerned
in the facts alleged, no matter how poorly those facts are stated.” Greschler
v. Greschler, 71 A.D.2d 322, 325, 422 N.Y.S.2d 718 (2d Dept 1979).
In this case, Mr. Aponte was pro se and testified at the hearing
through an interpreter. Despite these two challenges, Mr. Aponte’s first
sworn statement to the Hearing Officer was, “I’d like to say, your Honor,
that I took documents to [the NYCHA Housing Manager] and to let him
know that my mother was ill” (R. 265: 13-15). Mr. Aponte then submitted
into evidence over sixty pages of medical records detailing that his mother
suffered from dementia and could not live alone on account of her dementia
(R. 369-430). Mr. Aponte also submitted into evidence two doctors’ letters
attesting that in their medical opinion, Ms. Aponte should not live alone due
to her disability (R. 369; 380).
43
Even more, the “nature of complaints” section of the Project
Grievance Summary states, “Mr. Aponte claims that he has been taking care
of his mother before her death and is entitled to a lease for the apartment”
(R. 242). Again, the sole reason Mr. Aponte was denied succession rights is
because his mother’s request to add him to her household was denied.
Clearly, the main issue was whether Mr. Aponte was entitled to succession
rights because NYCHA should have granted his mother’s original requests
to add him to the household.
Mr. Aponte’s claim that he forfeited succession rights when NYCHA
refused to reasonably accommodate his mother—or in his words that “he has
been taking care of his mother before her death and is entitled to a lease for
the apartment” (R.242)—was adequately stated at the hearing level. In sum,
Mr. Aponte explicitly stated to the Hearing Officer that he put NYCHA on
notice that his mother had a disability, thereby making her permanent
residency request a form of reasonable accommodation.
B. The Issue of Reasonable Accommodation is Reviewable On Appeal,
Assuming Arguendo, That it was Not Raised at the Hearing Level
Even if this court were to deem that reasonable accommodation was
not raised at the hearing, this court may still review areas of law on appeal
that have not been articulated at the lower level. New York courts have held
that where a party does not allege new facts, the appellate court may review
44
legal arguments “which appeared upon the face of the record and which
could not have been avoided...if brought to [opposing counsel’s] attention at
the proper juncture.” Gerdowsky v. Crain's N.Y. Bus., 188 A.D.2d 93, 97,
593 N.Y.S.2d 514 (1st Dept 1993); See also Vanship Holdings Ltd. v.
Energy Infrastructure Acquisition Corp., 65 A.D.3d 405,
408, 884 N.Y.S.2d 24, 27 (1st Dept 2009).
POINT IV
THE LOWER COURT INCORRECTLY HELD THAT NYCHA IS
NOT BOUND BY ADMINISTRATIVE STARE DECISIS
There are two authorities that dictate how NYCHA should deal with
requests to add a family member which may result in overcrowding: (i) a prior
administrative grievance hearing decision, In The Matter of Juan Gonzalez;
and (ii) NYCHA’s own manual. Despite these authorities, the lower court
incorrectly held that NYCHA was not bound to follow either of these
authorities.
In The Matter of Juan Gonzalez, the tenant of record submitted a
permanent residency request to add an additional relative to the household (R.
96-98). The request was denied because it would have resulted in an
overcrowded apartment (R. 96-98). The family also requested a transfer.
NYCHA verbally denied the transfer request, citing that “there was no reason”
to grant it. The remaining family member claimant was later denied
45
succession rights because the tenant of record never approved written consent,
allowing the RFM claimant to permanently live in the apartment. Upon
hearing the claims of the remaining family member claimant, the Hearing
Officer found that,
“The tenant was told that her apartment was too small to permit an
additional occupant and also that a transfer would not be approved because as
the sole authorized occupant she had an appropriate size apartment. This was
a Catch-22 which should have been resolved by processing the two requests
together. The former tenant did everything she could do to obtain permission
for an adult child to live with her to assist her. [I]n this scenario, it would be
inequitable to apply the one-year rule” (R. 97).
In the instant case, the lower Supreme Court held that the decision in
the grievance hearing of The Matter of Juan Gonzalez was “an incorrect prior
interpretation and application of [NYCHA’s] own rules and policies” (R. 31).
In its Respondents’ Memorandum of Law in Support of the Verified Answer,
NYCHA contended that this 2009 administrative decision was “an outlier, an
aberration and [i]ncorrect”, and therefore, it was “not bound under the
doctrine of administrative stare decisis” (R. 493). The lower court’s decision
is incorrect. Even the case cited by the court, Matter of Charles A. Field
Delivery Serv., 66 N.Y.2d 516, 518 (Ct App 1985) holds that administrative
agencies are “free, like courts, to correct a prior erroneous interpretation of
the law by modifying or overruling a past decision.” To that end, The Matter
of Juan Gonzalez could only be deemed “incorrect” if the NYCHA board
46
overturned it. However, The Matter of Juan Gonzalez was approved by the
NYCHA board and remains untouched. Therefore, NYCHA has not
“modified or overruled” this prior grievance decision. By the lower court’s
own interpretation of how administrative stare decisis works—it was
incorrect.
The lower court also held that the instant case is distinct from The
Matter Juan Gonzalez because Ms. Aponte never applied for a transfer. The
fact remains that, under the circumstances, Ms. Aponte “did everything she
could to obtain permission for [her son] to live with her to assist her” (R. 97).
Two permanent residency requests were submitted to NYCHA on Ms.
Aponte’s behalf, even while she was battling a debilitating mental illness
(432-433; 382-383). As cited in the record, no evidence even suggested that
NYCHA informed Ms. Aponte that a transfer was a viable option (R. 58).
NYCHA summarily rejected both requests (R. 433; 383). It was not Ms.
Aponte’s obligation to conjure up alternative options, such as a possible
transfer, after her initial requests were denied. The record shows that NYCHA
did not offer Ms. Aponte a transfer. This court should reverse the lower
court’s ruling.
Aside from The Matter of Juan Gonzalez, the NYCHA manual itself
points to how the agency should deal with written permission requests
47
denied due to overcrowding. “Overcrowding” is listed in the NYCHA
manual as a condition that is remedied after the remaining family member
request is granted. The NYCHA Management Manual provides,
If an RFM claimant meets all other qualifications for the offer of a lease, the
Development Housing Manager can offer the RFM claimant a lease to the
apartment in which (s)he resides. With the exception of Senior Citizen
Developments, after a lease to the current apartment in which the RFM
claimant resides is signed, apartment size/occupant issues are resolved
according to procedure as follows:
Overcrowded Apartment: If the resulting new tenancy overcrowds the
apartment (defined as ‘overcrowded’ or ‘extremely overcrowded’ in
Appendix F, Transfers-Tenant selection and Assignment Plan (TSAP)
Transfer Guide and NYCHA Occupancy Standards for Families-Public
Housing), the Development Housing Manager informs the new tenant that
(s)he may submit a request to transfer to a larger apartment.” (emphasis
added) (R. 150).
This provision of the Manual lists overcrowding as an issue that can
be resolved after NYCHA approves the remaining family member claim.
This reading in the Manual makes sense in light of how the occupancy rules
operate. When one adult lives in a one-bedroom NYCHA apartment, the
tenant is “right-sized” because the apartment size fits the number of people
occupying it (R. 109-111). Conversely, if one person lives in a three
bedroom apartment, NYCHA often “downsizes” the tenant to a one-
bedroom because the current apartment is unnecessarily large for one person
(R. 109-111). NYCHA’s occupancy rules have a severe effect on the
majority of tenants seeking to add persons to their household. A request by
48
tenant in a one-bedroom seeking to add an additional person will almost
certainly be denied to prevent the “overcrowding” of two people in a one-
bedroom.
This is why Gonzalez called NYCHA’s remaining family member
requests denied on the basis of overcrowding a “Catch 22” (R. 97). NYCHA
asserted in its Respondents’ Memorandum of Law that Petitioner was denied
RFM status because the tenant of record’s PRR was denied based on
overcrowding, and thus Petitioner was not a “lawful resident” (R. 115).
Under NYCHA’s policies, the majority of right-sized NYCHA
households seeking to add an adult person to the composition, (only done
through the Permanent Residency Request) would be denied for
“overcrowding” reasons. As a result, relatives who apply to be the remaining
family member will almost always be denied because they were not granted
“permanent residency” (written permission). Accordingly, NYCHA’s
manual policy to resolve overcrowding after granting a remaining family
member a lease makes perfect sense. Petitioner, in this case, is stuck in this
same Catch 22 heard in Gonzalez of NYCHA’s illogical interpretation of its
own rules in an attempt to support a wrongful decision.
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POINT V
THE LOWER COURT’S RULING INCORRECTLY STATED THE
LAW REGARDING IMPLICIT CONSENT
This court held in McFarlane v. New York City Hous. Auth. that
certain circumstances could relieve a remaining family member applicant of
the written consent requirement. 9 A.D.3d 289, 291 (1st Dept 2004). The
court explained:
“One type of circumstance that could be of critical importance in
establishing a right to be treated as a remaining family member despite the
absence of notice or written consent would be a showing that the Authority
was aware of the petitioner having taken up residence in the unit, and
implicitly approved it. This is so because the controlling statute and
regulations express an overriding policy that the public housing authority
administering the program should have the untrammeled authority to
monitor and approve who lives in its buildings, in order to ensure the overall
purpose of providing decent and safe housing to low income families (see 42
USC §1437[a][1][c]). Therefore, a showing that the Authority knew of, and
took no preventative action against, the occupancy by the tenant’s relative
could be an acceptable alternative for compliance with the notice and
consent requirement.” Id.
This implicit consent standard outlined in McFarlane was further upheld in
Russo v. New York City Hous. Auth., which made clear, “This Court rejects
as misguided any suggestion that the appellate courts have implicitly
overruled McFarlane by citing the rule articulated in Matter of Schorr v.
New York City Dept. of Hous. Preserv. & Dev., 10 N.Y.3d 776, 779 (App Ct
2008), that estoppel ‘cannot be invoked against a governmental agency to
prevent it from discharging its statutory duties.’” 44 Misc.3d 401, 417 (N.Y.
50
2014), aff’d in Russo v New York City Hous. Auth., 128 A.D.3d 570 (1st
Dept 2015).
In the case at bar, the issue of NYCHA’s awareness of Petitioner’s
presence was addressed at the hearing. The Hearing Officer explicitly asked
Petitioner when he moved into the apartment and Petitioner responded, “In
the middle of 2009 when my mother was already ill” (R. 275). Later in the
hearing, the NYCHA Assistant Housing Manager, Joel Berson, admits that
Mr. Aponte tendered documents to him on April 27, 2011 (R. 295). More
importantly, NYCHA admitted in its Verified Answer that “on or about
January 4, 2011, Ms. Aponte submitted her Occupant’s Affidavit of Income,
dated January 4, 2011, which included Petitioner as a person living in the
apartment. Sedgewick Houses resident Services Associate Joel Berson
crossed out this information because Petitioner was not authorized to be
residing in the apartment” (R. 114).
Although NYCHA crossed out Petitioner’s name, this does not rise to
the level of “preventative action” to remove Petitioner from the apartment.
NYCHA admitted in its answer, “Ms. Aponte died on July 17, 2012, about
which Petitioner informed the management office on July 27, 2012, at which
time Petitioner indicated that he would like a lease to the apartment” (R
115). NYCHA commenced a holdover proceeding on April 15, 2013 (R.
51
116). By NYCHA’s own admission, it knew of Petitioner’s residence in his
mother’s apartment at least two years prior to taking any legal action to
remove him from the apartment. Despite the substantial evidence which
demonstrates NYCHA’s implicit consent of Petitioner’s residency in the
subject premises, the lower court conflated estoppel theory with implicit
consent and rejected Petitioner Aponte’s arguments that “NYCHA knew
Petitioner lived in the apartment and failed to act to dispossess Petitioner
within the time frame of its internal guidelines” (R. 63).
Estoppel is where there is no written contract between two parties, but
one party partially performs the terms of the contract in reliance on the other
party’s representations that there is an oral contract. The party who relied to
his detriment can assert that the other party is “estopped” from arguing that
no contract existed because the relying party partially performed. For
example, a contractor may have a verbal agreement with a building owner to
renovate the premises of the building. In reliance of this verbal agreement,
the contractor may purchase expensive equipment and hire staff. If the
building owner subsequently denies that he and the contractor had a
contract, the contractor may assert that the building owner is “estopped”
from arguing that no contract exists. The contractor’s main assertion is that
he partially performed by purchasing tools and hiring employees.
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In contrast, implicit consent has a much lower evidentiary threshold
than estoppel. All claimants need prove under implicit consent is that a
party waives a written requirement because that party was aware of the
alleged breach of the conduct and failed to timely take action to further
prevent the breach. For example, if landlord with a no-pet clause in a
residential lease knows that a tenant owns a pet and fails to timely
commence an eviction proceeding, then the landlord is said to have
“waived” the requirement.
Mr. Aponte did not argue that NYCHA was “estopped” from asserting
the existence of a written contract. Mr. Aponte argued that NYCHA
implicitly consented to his presence and tenancy at the subject premises
because NYCHA knew he lived there for years and failed to timely take
action to remove him.
53
CONCLUSION
The Order and Judgment of the Supreme Court should be reversed
and judgment entered declaring that Mr. Aponte’s is entitled to succeed as a
Remaining Family Member to the tenancy of his deceased mother. In the
alternative, judgment should be entered vacating NYCHA’s denial of his
RFM grievance claim and remanding the case for administrative proceedings
consistent with federal, state and city disability discrimination laws.
Dated: New York, NY
July 14, 2015
Respectfully submitted,
Attorneys for Petitioner-Appellant
DENISE M. MIRANDA, Esq.
Managing Director
AFUA ATTA-MENSAH, Esq.
Director of Litigation
SAFETY NET PROJECT
Urban Justice Center
40 Rector Street, 9th Floor
New York, NY 10006
(646) 602-5637
By ____________________________
LEAH GOODRIDGE, ESQ., Staff Attorney
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