United States: Altered States

Originally published in Habitat Magazine in December, 2017

What must a co-op or condo board do to modify its policies for a disabled occupant? And whose obligation is it to propose a "reasonable" accommodation? These were issues discussed in the case of Steinberg-Fisher v. North Shore Towers Apartments Inc.

Arlene Steinberg-Fisher is a shareholder at North Shore Towers in Queens. The co-op allows shareholders to make alterations to their apartments, provided they sign an alteration agreement that includes a provision that alterations are to be completed within 90 days. If the alterations are not completed on time, there is a financial penalty. Apparently, this 90-day requirement did not appear in the alteration agreement signed by Steinberg-Fisher, and it seems there was a dispute as to whether the board had the right under its proprietary lease to regulate non-structural alterations.

When the board told Steinberg- Fisher that it would begin charging fees because her alteration had overrun the 90-day limit, the alteration work halted. Steinberg-Fisher advised the board, with back-up letters from her doctor, that she had been clinically diagnosed with attention deficit hyperactivity disorder and a sleep disorder, which interfered with her ability to comply with rigorous time schedules. Because of those conditions, she asked the board to modify its alteration policies by granting her a "reasonable accommodation," a legal term. Notwithstanding Steinberg-Fisher's request, there is nothing in the decision to indicate that the board changed its position concerning the timing of the completion of the alterations. Steinberg- Fisher filed a complaint with the state Division of Human Rights (DHR), alleging the board discriminated against her by requiring her to work within time constraints.

The DHR found there was "no probable cause" to believe that the board had discriminated against Steinberg- Fisher. This finding meant the case was dismissed and would not proceed to a hearing. The DHR made its decision in part because Steinberg-Fisher would not agree to any time limitations, which it found unreasonable.

The DHR is one of the governmental agencies charged with determining whether there has been discrimination in housing. Its decisions are given considerable deference, and courts cannot override them – unless the plaintiff can show that the DHR acted arbitrarily, capriciously or irrationally.

Steinberg-Fisher challenged the DHR's determination in court, and the court did find that the determination was arbitrary and capricious. The court was concerned that the co-op board failed to set forth a "sound non-discriminatory explanation" for its actions. It was also concerned that, because the DHR made its finding early in the case, Steinberg-Fisher did not have the ability to present her case at a hearing, where the DHR would hear testimony from witnesses. The court sent the case back to the DHR. The co-op and the DHR appealed.

The appellate court explained that Steinberg-Fisher was required to show that she is disabled, that because of her disability an accommodation was necessary for her to use and enjoy her apartment, and that the accommodation she sought was reasonable. It then concluded that the DHR's findings were not supported by the record before it. Specifically, the appellate court noted that the DHR found that renovations had been ongoing since 2003. However, the record showed that there was minimal work performed in 2003, the apartment sat empty, and the renovation project was dormant for long periods of time.

Further, the appellate court determined that it was undisputed that the co-op board was presented with evidence of Steinberg-Fisher's disability and its impact on her ability to adhere to rigid time frames. Yet, the board "refused her any accommodation whatsoever" from the 90-day rule. In this regard, the court also explained that the board offered only conclusory statements in support of its failure to accommodate Steinberg-Fisher. The appellate court agreed with the lower court, and the case was returned to the DHR to determine the validity of Steinberg- Fisher's claim.

The Takeaway

Alteration work that drags on with no end in sight is a problem in all buildings. Neighbors are disturbed by noise, odors, and workers, and building systems (especially elevators) often endure additional strain. On the other hand, if a shareholder is physically or psychologically incapable of complying with policies, the policies must be reasonably modified.

It seems this case is one where the courts would have liked to see the parties engage in an "interactive process." It is a construct often used in employment cases, where the parties collaborate to arrive at a solution acceptable to all. It has been applied in the housing context for the last several years, and it appears that the court here was indeed bothered that the parties went, almost immediately, into "litigation mode." It seems Steinberg-Fisher wanted unlimited time, and the board was unwilling to budge from the 90-day limit.

When a reasonable accommodation is requested – especially one, as here, in which the need for some accommodation appears to be unchallenged – it is important that the parties speak with one another in an attempt to find a solution acceptable to all. That approach can often obviate the need to involve the DHR or the courts altogether, which is always preferable.


For Steinberg-Fisher:
Taylor, Eldridge & Endres

For North Shore Towers Apartments:
Errol A. Brett

For the Division of Human Rights:
Caroline J. Downey

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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