Real Cases in Real Estate By Andrea Lee Negroni, Esq. – July 22, 2013 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – July 22, 2013 Update

Updates for the Week of July 22, 2013

New York Court Considers Landlord’s Denial of Tenant’s Request for “Emotional Support Animal” in a No-Pets Apartment. Gregory Reich claimed his landlord discriminated unlawfully when it refused to allow him to keep an “emotional service” dog in his Manhattan apartment. The New York Division of Human Rights sued the landlord on Reich’s behalf, on the theory that his disability wasn’t being accommodated in violation of the human rights law. Reich had kept another dog in his apartment for nearly nine years under a waiver of the no-pets clause in his lease. After that dog was euthanized, Reich asked his landlord for permission to keep another dog; the landlord denied the request and threatened to evict him.

Reich had a history of depression, which he claimed was a disability. His psychotherapist said the dog helped lift Reich’s spirits. Reich’s depression, combined with diabetes, obesity, low self esteem and hypertension, entitled him to a service animal, according to his lawsuit. The landlord disputed the fact Reich had a disability and also disputed whether the dog was a necessary treatment. The landlord’s medical expert testified that even with the dog, Reich’s physical condition was not improved and that his symptoms were commonly controlled through medication, diet, exercise, and lifestyle changes. The landlord’s expert also said that Reich was not a cooperative patient.

The issue in the case was whether Reich had a disability or not, and whether the landlord considered Reich’s request for a reasonable accommodation of his disability (in the form of a service animal despite the no-pets clause in his lease). The legal test of whether the New York Human Rights Law is violated is this: “To show that a violation … occurred and that a reasonable accommodation should have been made … the complainant … must demonstrate through either medical or psychological expert testimony or evidence that he is qualified for the tenancy, that because of his disability it is necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations can be made to allow him to keep the dog.” Moreover, the term “disability” under New York’s human rights law is broader than the term under the ADA. Unlike the ADA, the state definition of disability covers a range of conditions ranging “from those involving the loss of a bodily function to those which are merely diagnosable medical anomalies which impair bodily integrity…”

Ultimately, the court could not determine if the dog was necessary to enable Reich to use and enjoy his dwelling, so it rejected the landlord’s motion for summary judgment.

Reich v. 111 E. 88th Partners, Supreme Court of New York (2012 NY Misc. LEXIS 2647), June 1, 2012. [enhanced version available to subscribers]

Real Cases in Real Estate is a periodic update on real estate law, with legal principles illustrated and explained by lawsuits from around the country. The topics are wide-ranging for appeal to a broad spectrum of readers including lawyers, homeowners, investors and the general public. Andrea Lee Negroni, a Washington DC attorney and legal writer with 25 years of experience in financial services and mortgage law, contributes the case summaries.

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