DECEMBER 2011

 

Ganfer & Shore, LLP is pleased that five members of the firm have been designated this year as “New York Super Lawyers.” Ganfer & Shore's “Super Lawyers” included Steven J. Shore, a litigation partner and the managing partner of the firm, who also was named as one of the “Top 100” attorneys in New York City. Other members of the firm selected were real estate partner Matthew J. Leeds and litigation partners Mark A. Berman and Ira Brad Matetsky. Our newest litigation partner, Justin R. Bonanno, was designated as a “Rising Star.” The selection of “Super Lawyers” is based on a survey of thousands of fellow lawyers in New York.

            By this time, it is general knowledge that federal, state, and city laws require that housing providers must make reasonable accommodation for the needs of persons with disabilities. What constitutes a reasonable accommodation in given circumstances is usually determined on a case-by-case basis. Generally, residential building owners have been able to satisfy the “reasonable accommodation” requirement by providing disabled residents with access to the building through a side entrance or service entrance, which in many cases may already have a ramp that is used for deliveries. Recently, however, a court ruled that a building’s front entrance must be made handicapped-accessible at the request of a disabled resident, unless doing so would be physically impracticable or cost-prohibitive. Riverbay Corp. v. New York City Commission on Human Rights, N.Y.L.J. Oct. 11, 2011 (Sup. Ct. Bronx Co. Sept. 9, 2011)

 

            The case involved a wheelchair-bound resident of Co-op City in the Bronx who filed a charge of discrimination with the City Human Rights Commission, alleging that the Cooperative had violated the Human Rights Law by failing to make reasonable accommodation for his disability because the Cooperative had refused to make its front entrance wheelchair-accessible. The Cooperative responded that the side doors to the building were fully accessible and argued that this satisfied its obligation to provide the resident with access.

 

            The Human Rights Commission sided with the disabled resident. The record reflected that the Cooperative had sought estimates for making the main entrance accessible by either installing “handicap use” doors in the front entrance or installing automatic door openers on existing doors. Based on estimates between $16,000 and $20,000, the Cooperative decided not to proceed and advised the resident to use the side entrance instead. When the complaint was filed, the resident had to obtain assistance from building staff each time he wished to enter, though while the proceeding was pending an automatic door opener was installed on the side entrance. The resident contended that he did not feel safe using that entrance and that having to use it “made him feel like a second-class citizen.” There were no architectural impediments to making the front entrance accessible. 

 

The Human Rights Commission interpreted the law “as requiring that housing providers… make the main entrance to a building accessible unless doing so creates an undue hardship, or is architecturally infeasible.” The Commission found that because neither of these circumstances existed, the Cooperative had violated the law. It ordered the Cooperative to install handicap-accessible doors to the front entrance, awarded the resident $51,000 in damages, and imposed an additional $50,000 fine.

 

The Cooperative appealed the Commission’s decision to New York State Supreme Court, but the court upheld the Commission’s decision, finding that the resident was entitled to an “unsegregated accommodation.” Using the side doors required the resident to travel fifty feet beyond the front of the premises. Unlike the front entrance, which had a glass window that allowed residents to see the entire entryway and security guard, the side entrance door was metal and had a small window pane too high up for the resident to see through. The side entrance had no video monitor system or intercom system like that installed in the main entrance, and accessing the side entrance required the resident to carry a remote control device anytime he left the building. Unlike in previous cases relied on by the Cooperative, in this case there was no evidence that making the front entrance accessible would be impossible, impose an undue burden, or provide a negligible additional benefit to disabled persons. Here, providing full wheelchair access was not unduly burdensome and the proposed alternatives were not equally safe or effective. 

 

However, the court found that the damages and fine imposed by the Commission were excessive. It reduced the damages to $16,000 and the fine to $5,000.

 

 

The Office of the Attorney General has issued Cooperative Policy Statement #10, requiring that as of January 1, 2012, sponsors must prepare digital copies of cooperative and condominium offering plans and amendments and make them available to prospective purchasers. The requirement applies to offering plans filed on or after November 1, 2011. 

 

Previously, sponsors were required to provide only hard copies of offering plans and amendments to potential purchasers.  The new policy has been adopted in light of advances in technology and given that these documents tend to be voluminous, expensive to produce, and not environmentally friendly.  Potential purchasers will have the right, at their election, to receive the documents in hard copy or in digital form.

 

The policy statement contains specific requirements of form for the digital documents, including that (i) the sponsor must certify that the digital copy of the offering plan or amendment is identical to the hard copy; (ii) all digital copies must be formatted in searchable .pdf format; (iii) the digital copies must include an initial table of contents that allows the readers to access the offering plan and each amendment separately; (iv) all digital copies must be distributed with a cover letter in the form provided by the Office of the Attorney General; and (v) the sponsor is required to execute and maintain an affidavit of service for any distribution of digital copies, in the form provided by the Office of the Attorney General for a period of 6 years.

 

A copy of Cooperative Policy Statement #10 can be found online on the Attorney General’s website at http://www.ag.ny.gov/bureaus/real_estate_finance/pdfs/CPS-10_final.pdf.