How to Deal with the Disabled During Capital Work

A collection of issues – a disability discrimination claim with facts that were sharply in dispute, an elevator project that shut down one of the building’s two elevators for an extended period, a proprietary lease provision that was less than clear, and an insurance company’s reservation of rights with demands for the insured’s substantial participation in the settlement – all make clear the need to communicate effectively with building residents. They also underline the necessity of taking into account the needs of disabled residents when undertaking major projects.

The disabled resident in this case was a renter in a sponsor’s apartment. Even though access in and out of the building for the wheelchair-bound tenant would have been impossible while the elevator was out of service, undisputed was the tenant’s initial request to remain in the apartment when the work started. Factual disputes existed as to if and when the tenant had made demands for a reasonable accommodation and to be relocated after the work began.

After the tenant started federal court litigation, the question as to who was responsible for providing the accommodation – the sponsor or the co-op – as well as who would ultimately be financially responsible, became key issues in the case. While under state and federal statutes, all parties could be held responsible in litigation – the question was who would be financially responsible for paying the accommodation and who was liable for damages incurred.

The key section of the proprietary lease was paragraph 18(d), which holds that the shareholders are responsible for compliance with all laws with respect to occupancy or use of the apartment. The sponsor alleged that the accommodation was necessary because of work done on the elevator and not in the apartment, and it should be the cooperative that bears all financial responsibility. The complaint filed by the plaintiff, while clearly alleging discrimination, was less than clear as to whether there were claims of personal injuries involved. The liability carrier therefore disclaimed coverage; the D&O carrier reserved rights and claimed that it would not be responsible for any damages relating to personal injuries. The court ordered mediation at which time the case was settled.

Takeaway

There are many lessons to be learned from this case. Most important, when undertaking a major project that could have a disparate impact on a disabled resident, make sure the resident and the owner (if different) have a clear understanding about the scope of the project, how it will affect them, how long it may last, and how they plan on dealing with the impact of the project. While the building cannot force a disabled individual to relocate and it is up to the resident to request an accommodation, the importance of documenting all communications with the resident and shareholder cannot be understated. It would have ameliorated many of the issues in this case if there had been a written description of the scope of work, timing, and impact, along with written confirmation of all discussions and a clear written understanding between the cooperative and its non-resident owner as to the obligations of each.