PETS AS MEDICAL "NECESSITY"

By Marc H. Schneider

A co-op board must make a reasonable accommodation to permit a resident to keep a dog in the unit if that request is based upon a medical necessity of the resident. Under the Fair Housing Act and New York executive law, a reasonable accommodation is essentially a modification to a present house rule or other accommodation, which is necessary for the person to enjoy the benefits of the housing that he or she would otherwise not be able to enjoy without the accommodation.

Recently, a co-op board I represented requested that my firm take legal action against a shareholder based upon the shareholder’s having a dog in the co-op in violation of the co-op’s house rules prohibiting pets. Unfortunately, the board failed to advise us that the shareholder had previously requested permission to keep the dog based upon the “emotional support” that the dog provided. As a result of the board’s request, our firm sent the requisite default notice to the shareholder. The shareholder then responded saying that he had previously requested a reasonable accommodation based upon medical necessity and would sue the board if it refused the accommodation. The shareholder provided a doctor’s note as evidence of the condition. The co-op board decided the doctor’s note was insufficient and it did not believe in the need for such a pet. The co-op refused to permit the dog to remain.

Danger: ALL Dogs Give "Emotional Support"

As a result, the co-op received a complaint from the New York State Division of Human Rights claiming the board had discriminated against the shareholder in violation of the Fair Housing Act. The New York State Division of Human Rights determined "probable cause" existed. This means that after considering all the facts, it was believed there was enough information and documentation to prove that the co-op had probably discriminated against the resident by not permitting the dog to remain.

A finding of probable cause means the matter proceeds (either to a hearing before the New York State Division of Human Rights or to a lawsuit). We demanded (as the co-op has the right to) that a lawsuit be started since we believed there was a better chance for neutrality and application of the laws from a judge than there was from a New York State Division of Human Rights hearing officer.

Get Your Own Medical Expert

A lawsuit was ultimately begun in federal court. The good news was that the co-op, on our advice, immediately notified its directors and officers liability insurance carrier of the potential claim as soon as it received notification that the person was threatening a lawsuit based upon the denial of the request. As such, the insurance carrier ultimately appointed our firm to defend the lawsuit. After the initial stages of the lawsuit occurred, we requested an independent medical examination be conducted to have our own expert determine if there was a medical need for the pet. It was ultimately confirmed the pet was necessary and the case settled. The resident was afforded the reasonable accommodation and the pet was permitted to remain. However, the co-op's insurance carrier was required to pay a settlement and the co-op incurred the cost of its deductible to resolve the matter.

COMMENT Boards and their management companies should take requests for a reasonable accommodation seriously. When a request for a comfort pet is first made, the request should immediately be turned over to the co-op or condo’s attorney. Otherwise, there could be significant legal implications, including a discrimination claim. If the board lost, it could cause the co-op and/or condo and its board members to be liable for damages and attorney’s fees. And not just the co-op’s and condo’s own legal fee, but also the legal fees for the attorney who brought the claim on behalf of the resident.

When determining whether to provide a reasonable accommodation, boards must determine if: (1) there is a need; (2) there is a disability; and (3) there is a nexus between the requested accommodation and medical condition. If the disability is apparent (i.e., a blind person requesting a seeing-eye dog), the board cannot ask for anything further to support the request. Also, if a doctor sends a letter supporting the need, that, too, is sufficient.

If no medical documentation is provided or it is not apparent why the accommodation is required, the board has the right to request the information necessary to determine the reasonableness and necessity of the accommodation. However, denying the request of a person who is entitled to an accommodation can result in tens of thousands to hundreds of thousands of dollars in cost to the co-op or condo.

Attorney Marc H. Schneider is a managing partner of Schneider Mitola

Adapted from Habitat November 2009. For the complete article and more,  join our Archive >>