| Matter of Lindsay Park Hous. Corp. v New York State Div. of HumanRights |
| 2008 NY Slip Op 08492 [56 AD3d 477] |
| November 5, 2008 |
| Appellate Division, Second Department |
| In the Matter of Lindsay Park Housing Corp. et al.,Petitioners, v New York State Division of Human Rights et al.,Respondents. |
—[*1] Caroline J. Downey, Bronx, N.Y. (Michael K. Swirsky of counsel), for respondent New YorkState Division of Human Rights.
Proceeding pursuant to Executive Law § 298 to review a determination of the NewYork State Division of Human Rights dated June 8, 2007, which, after a hearing, found that thepetitioners had discriminated against Evelyn Lymus in the use and enjoyment of her housingaccommodation because of her age and disability when they revoked her parking space on thestated ground that she did not own a motor vehicle, awarded her $5,000 for mental anguish and$10,000 in punitive damages, and directed that the petitioners grant Evelyn Lymus the nextavailable paid parking space, and the respondent New York State Division of Human Rightscross-petitions pursuant to Executive Law § 298 to enforce the determination.
Adjudged that the petition is granted, on the law, with costs, the cross petition is denied, thedetermination is annulled, and the complaint is dismissed.
At the time of the hearing, the complainant was 77 years old and had lived in the petitioners'building for 37 years. At the time she first entered into an agreement for a parking space, she wasa licensed driver and owned a car registered in the State of New York. However, when shebecame visually impaired in 1994 or 1995 she was no longer a licensed driver and no longerowned a motor vehicle. After complainant no longer owned a vehicle, her home attendants andguests used her parking space.[*2]
In 2002 an audit of all parking license agreementsrevealed that the complainant no longer owned a vehicle and the petitioners notified her that herparking license would be revoked. In a letter appealing from that determination, her attorneystated that the complainant needed the parking space "to facilitate the visits" of her caregivers,who used the parking space "regularly." Her appeal was denied, and the revocation took effect onMarch 31, 2003.
At the hearing, the complainant's sister testified that since the complainant lost her parkingspace, she had to park on the street when she visited the complainant. The complainant's sisterwould drive her to her doctor and to other appointments. If the sister was unable to find a parkingspace close by, she would stop in a "little walkway" in the building parking lot, leave the car, goinside the building, and bring the complainant to the car. The building security guard wouldallow her to do that, once he was assured that she was not staying.
The petitioners noted that no temporary parking was provided for caregivers. The "yellow"area where the complainant's sister parked temporarily was used for discharging and loadingpassengers and groceries.
At the conclusion of the hearing, the Administrative Law Judge determined that thepetitioners "did not provide a reasonable accommodation for complainant's disability in violationof the Human Rights Law." We annul the determination.
The Human Rights Law provides that it is an unlawful discriminatory practice to "refuse tomake reasonable accommodations in rules, policies, practices, or services, when suchaccommodations may be necessary to afford said person with a disability equal opportunity touse and enjoy a dwelling" (Executive Law § 296 [18] [2]). To establish a violation of theHuman Rights Law for failure to provide a reasonable accommodation, the complainant mustestablish a disability, the accommodation may be necessary in order for the complainant to useand enjoy his or her apartment, and the building owner refuses to make such an accommodation(see Matter of One Overlook Ave. Corp.v New York State Div. of Human Rights, 8 AD3d 286 [2004]). Under certaincircumstances, a building owner may be required to grant a disabled tenant a parking space forhis or her own use, as a reasonable accommodation for the tenant's disability (see Shapiro vCadman Towers, Inc., 51 F3d 328 [1995]; Hubbard v Samson Mgt. Corp., 994 FSupp 187 [1998]).
However, the complainant is not seeking parking for herself, but rather for her caregivers.This is an entirely different service, not provided to nondisabled tenants who may also havecaregivers such as babysitters (seeMatter of Canales v Hernandez, 13 AD3d 263 [2004]).
Further, the complainant failed to demonstrate that she was denied a reasonableaccommodation for her disability (seeMatter of 105 Northgate Coop. v Donaldson, 54 AD3d 414 [2008]). There is noevidence that the complainant requested a reasonable accommodation: what she requested wascontinuation of her license for a parking space. Further, the evidence established that vehicleswere permitted to stop in the "yellow" area of the parking lot for discharging and loadingpassengers such as the complainant.
In view of the foregoing, the challenged determination is not supported by substantialevidence and must be annulled, the petition granted, the cross petition denied, and the complaintdismissed (see Matter of 105 NorthgateCoop. v Donaldson, 54 AD3d 414 [2008]). Santucci, J.P., Dillon, Dickerson andChambers, JJ., concur.