| Matter of 105 Northgate Coop. v Donaldson |
| 2008 NY Slip Op 06646 [54 AD3d 414] |
| August 19, 2008 |
| Appellate Division, Second Department |
| In the Matter of 105 Northgate Cooperative et al.,Petitioners, v Michelle Cheney Donaldson et al.,Respondents. |
—[*1] Caroline J. Downey, Bronx, N.Y. (Michael K. Swirsky of counsel), for respondent MichelleCheney Donaldson.
Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner ofthe New York State Division of Human Rights dated October 2, 2006, which, after a hearingbefore an administrative law judge, found that the petitioner 105 Northgate Tenants Corp.discriminated against the complainant in the terms, conditions, and privileges of the rental of ahousing accommodation because of disability, and unlawfully refused to reasonablyaccommodate the disability, by withholding permission for the complainant to own and maintaina companion dog, and awarded the complainant the sums of $5,000 in compensatory damagesand $5,000 in punitive damages.
Adjudged that the petition is granted, on the law, with costs, and the determination isannulled.
In March 2005 the complainant submitted, to the petitioners, a brief note from her interniststating that having a pet would be "medically and psychologically beneficial" for her "chronicdepression." In response, the petitioner 105 Northgate Tenants Corp. (hereinafter Northgate)advised her, by letter dated March 24, 2005, that the rules of the cooperative housing corporationthat it operated permitted her to have up to two cats, but that dogs were prohibited. In a letterdated April 12, 2005, the complainant made a second request, this time specifically asking forpermission to have a dog. With her second letter, the complainant submitted another brief notefrom her internist, which [*2]included a conclusory assertion thatthe complainant's "having a dog is both theraputic [sic] and necessary in working throughher disability." Northgate responded with a letter, dated April 22, 2005, requesting more detailedinformation supporting the complainant's need to have a dog. Three weeks later, without havingprovided Northgate any further information, the complainant filed a verified complaint with theNew York State Division of Human Rights (hereinafter the SDHR) alleging that, in violation ofthe Human Rights Law (Executive Law § 296), the petitioners had engaged in "anunlawful discriminatory practice relating to housing because of disability."
After a hearing held before an administrative law judge, the Commissioner of the SDHR,Michelle Cheney Donaldson, upheld the complaint and awarded the complainant the sums of$5,000 in compensatory damages and $5,000 in punitive damages. The petitioners commencedthe instant proceeding to review the determination. We grant the petition and annul thedetermination.
On the record presented, the complainant failed to demonstrate, through either medical orpsychological expert testimony or evidence, that she required a dog in order to use and enjoy herapartment unit (see Matter of OneOverlook Ave. Corp. v New York State Div. of Human Rights, 8 AD3d 286, 287[2004]), and failed to establish that, by requesting more information, the petitioners had deniedher request for a reasonable accommodation. Accordingly, the challenged determination was notsupported by substantial evidence (cf. 300 Gramatan Ave. Assoc. v State Div. of HumanRights, 45 NY2d 176 [1978]). Prudenti, P.J., Fisher, Miller and Balkin, JJ., concur.