New York County Clerk’s Index No. 400546/2014

New York Supreme Court

APPELLATE DIVISION — FIRST DEPARTMENT

In the Matter of the Application of

JONAS APONTE,

Petitioner-Appellant,

For a Judgment Pursuant to CPLR Art. 78,

against

SHOLA OLATOYE, AS CHAIRWOMAN OF THE NEW YORK CITY HOUSING

AUTHORITY AND THE NEW YORK CITY HOUSING AUTHORITY,

Respondents.

BRIEF FOR PETITIONER-APPELLANT

Attorneys for Respondents

DAVID FARBER

Acting General Counsel

New York City Housing Authority

Jane Lippman, Of Counsel

250 Broadway, 9th Floor

New York, NY 10007

(212) 776-5259

Attorneys for Petitioners-Appellants

DENISE M. MIRANDA, ESQ.,

Managing Director

AFUA ATTA-MENSAH, ESQ.,

Director of Litigation

LEAH GOODRIDGE, ESQ.,

Staff Attorney

SAFETY NET PROJECT

Urban Justice Center

40 Rector Street, 9th Floor

New York, New York 10006

(646) 602-5637

Printed on Recycled Paper

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PRELIMINARY STATEMENT

Mom is sick. In 2009, these three words consumed Petitioner Jonas

Aponte’s thoughts from the time his mother, Victoria Aponte, was

diagnosed with dementia. Mom lived by herself in a one-bedroom

apartment in Sedgewick Houses, New York City Housing Authority (R.

113). At one point when he visited his mother, Mr. Aponte was in a room

with her and she began to talk to someone. When he asked who she was

speaking to, she said the little children who were in the room with them. But

Mr. Aponte remembers that only he and his mother were in the room that

day (R. 71; 394).

Medical records described Ms. Aponte as “completely incapacitated

mentally” (R. 388), with “paranoid delusions” (R. 412), “profound memory

impairments, insight judgment and impulse control” (R. 388). She believed

at 87 years of age that she was pregnant (R. 394).

In 2009, Mr. Aponte was faced with a burdensome and painful

decision: should he leave his 87-year old mother suffering from dementia

unattended and alone in her apartment? Or should he move in to take care of

Mom? Without wasting any time, Mr. Aponte chose the latter.

Thereafter, Victoria Aponte submitted a request to NYCHA to add her

son to her household because she could not live alone on account of her

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dementia. Ms. Aponte’s physician definitively stated, “In my clinical

decision, Ms. Aponte should not be living alone due to her medical

condition and needs to be under supervision constantly” (R. 380). Ms.

Aponte’s request to have Mr. Aponte live with her was a form of reasonable

accommodation. The NYCHA Assistant Housing Manager understood her

reasonable accommodation request perfectly. He typed in his case notes,

“Tenant is applying to have son live with her as her health is failing and she

cannot be alone. Permanent Permission Request submitted to manager. End

of Log” (R. 240).

Despite NYCHA’s awareness that Ms. Aponte was an elderly,

disabled tenant who “cannot be alone”, NYCHA denied Ms. Aponte’s

permanent permission request in 2010 because two adults in a one-bedroom

apartment is considered “overcrowded” under NYCHA’s occupancy rules.

In 2011, a second permanent permission request to add Mr. Aponte was

denied because Mr. Aponte signed the request on behalf of his mother (R.

313: 1-8). By this time, Ms. Aponte no longer had the mental capacity to

sign the form herself, yet NYCHA insisted that no other person could sign

the form on her behalf.

In July 2012, Ms. Aponte ultimately lost her battle with dementia,

leaving her son in her apartment (R. 238; 240). Victoria Aponte was 90

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years old when she died (R. 238). Pursuant to NYCHA’s rules, to inherit his

mother’s apartment, Mr. Aponte must show that he (i) received prior written

consent to be a lawful resident (“permanent residency request”); (ii) is a

relative of the tenant of record who vacated; (iii) continuously lived in the

apartment for at least one year after receiving written consent; (iv) passed a

criminal background check and (v) adhered to income standards for public

housing (R. 147-150). Out of all of these requirements, NYCHA only

asserted that Mr. Aponte lacked one: he never received prior written consent

to live with his mother. This case centers on why NYCHA never granted the

written request—had NYCHA done so, Mr. Aponte would be entitled to

succession rights to his mother’s apartment.

The lower court denied Mr. Aponte’s succession rights (R. 33), and in

doing so, set a dangerous precedent that would render long-held disability

discrimination laws a nullity.

The first dangerous precedent set by the lower court is its sanction of

NYCHA’s blatant disregard for disability discrimination laws. Despite the

fact that NYCHA was put on notice that an elderly tenant had dementia and

could not live alone, NYCHA refused to accommodate Ms. Aponte.

NYCHA continuously reiterated its occupancy rules at the written

permission request stage (R. 229), hearing level (R. 312: 13-22) and Article

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78 proceeding (R. 107). A reasonable accommodation is a “change,

exception, or adjustment to a rule, policy, practice, or service that may be

necessary for a person with a disability to have an equal opportunity to use

and enjoy a dwelling, including public and common use spaces.” United

States Department of Housing and Urban Development & United States

Department of Justice, Joint Statement, Reasonable Accommodations Under

the Fair Housing Act at 6 (May 17, 2004), available at

http://www.hud.gov/offices/fheo/library/huddojstatement.pdf. That means

that if a landlord, such as NYCHA, has an occupancy rule, the landlord is

required to make an exception to that rule for persons with a disability.

Failure to do so is discriminatory under federal and state laws. By allowing

NYCHA to steadfastly cling to its occupancy rules when it should have

accommodated a disabled tenant, the lower court effectively held that

landlords can disregard long-held disability discrimination laws.

The second dangerous precedent set by the lower court is its decision

regarding standing in associational discrimination cases. Mr. Aponte

asserted that NYCHA’s failure to provide his mother with a reasonable

accommodation adversely affected his succession rights claim (R. 362). The

lower court misinterpreted the legal standard for associational

discrimination, holding that Mr. Aponte cannot “assert a reasonable

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accommodation claim on his own behalf based on associational

discrimination” because claimants need to show that they sustained an

“independent injury” apart from the person with a disability (R. 32). The

independent injury requirement creates a higher burden of proof because it is

an additional element in an associational discrimination claim. Local New

York disability statutes do not require this additional element (New York

City Human Rights Law [Administrative Code of the City of NY] §8-

107(15)-(20). The lower court, therefore, heightened Mr. Aponte’s burden

of proof and relied on a misguided interpretation of disability discrimination

laws.

The third dangerous precedent set by the lower court is its decision on

administrative stare decisis. A Hearing Officer held in a prior grievance

decision, The Matter of Juan Gonzalez, that NYCHA wrongfully denied a

remaining family member claim where it posited its “overcrowded” rule.

(R. 95-98). In the case now at bar, the lower court held that NYCHA is not

bound to follow this prior grievance decision because it is “incorrect”.

However, The Matter of Juan Gonzalez was never overturned by NYCHA’s

board, therefore NYCHA is, in fact, bound to follow it. The essence of an

Article 78 claim is that an agency must follow its own rules and procedures

uniformly. The lower court’s ruling that NYCHA is not bound to follow a

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prior administrative decision is in direct contradiction with decades of

blackletter law affirming that an agency’s arbitrary and capricious decision

must be overturned.

We respectfully ask this court to rectify dangerous precedent set by

the Supreme Court in this case. Long-held protections for disabled tenants

are at stake. Mr. Aponte’s ability to rightfully maintain an affordable

apartment in an unaffordable city is at stake because NYCHA did not do

what it was supposed to do—NYCHA did not follow the law.

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QUESTIONS PRESENTED

1. When a remaining family member commences an associational

disability discrimination claim, can NYCHA prevail where evidence

shows it did not provide reasonable accommodation and did not prove

an undue burden defense?

Supreme Court incorrectly answered: Yes.

2. Was the issue of associational disability discrimination raised at the

hearing level where Mr. Aponte testified and presented documentary

evidence that he did not acquire succession rights on account of

NYCHA’s failure to provide reasonable accommodation to his

mother?

Supreme Court incorrectly answered: No.

3. Does a non-disabled claimant asserting associational discrimination

need to allege that he suffered an “independent injury” apart from the

disabled person?

Supreme Court incorrectly answered: Yes.

4. Can NYCHA disregard a prior grievance decision that was approved

by the NYCHA board in contravention of administrative stare

decisis?

Supreme Court incorrectly answered: Yes.

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5. Does the doctrine of estoppel preclude recognition of NYCHA’s

implicit consent to Mr. Aponte’s occupancy of his mother’s

apartment?

Supreme Court incorrectly answered: Yes.

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STATEMENT OF FACTS

Victoria Aponte, Petitioner’s mother, was the tenant of record of a one

bedroom apartment located in the Sedgwick Houses, a NYCHA-owned

housing development (R. 106). Ms. Aponte resided in the apartment,

located at 150 West 174 Street, Bronx, New York from February 1992 until

her death on July 17, 2012 (R. 113).

In 2009, Ms. Aponte was diagnosed with advanced dementia of the

Alzheimer’s type. Ms. Aponte’s disability rendered her mentally unstable

and unable to live alone, as noted in several medical records and doctors’

letters (R. 369-380).

Shortly after his mother’s diagnosis, Mr. Aponte moved into Ms.

Aponte’s apartment out of concern (R. 275: 14-17). On or about

approximately August 24, 2010, Mr. Aponte received a letter from Dr. Valli

Grant, Ms. Aponte’s medical doctor, stating that “it [was] unsafe for [Ms.

Aponte] to live on her own” (R. 380). The letter also indicted that Ms.

Aponte would need “to be under constant supervision” (R. 380).

On or around August 24, 2010, NYCHA received a Permanent

Permission Request requesting to add Jonas Aponte as an occupant to his

mother’s apartment. (R. 114; 228-229). The NYCHA Housing Assistant

Manager, Joel Berson, entered into his case notes, “Tenant is applying to

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have son live with her as her health is failing and she cannot live alone” (R.

240). The permanent permission request was denied by the Sedgwick

Houses Manager because allowing Mr. Aponte to live with his mother

would “create overcrowding conditions” (R. 229).

Around January 4, 2011, Ms. Aponte submitted an Occupant’s

Affidavit of Income, which included her son, Mr. Aponte, as a tenant. She

also stated, “[T]here is someone in my household with a disability, but I am

not requesting the authority to provide any accommodation at this time” (R.

176). Joel Berson crossed out Mr. Aponte’s name because he was not

authorized to reside in the apartment (R. 114; 118).

As Ms. Aponte’s condition worsened, in February 2011, NYCHA

reviewed another permanent residency request to add her son to her

household (R. 382-383). The request stated that Ms. Aponte was

“[s]uffering from dementia [and] cannot be alone” (R. 383). Shortly after,

the Sedgwick Houses Manager disapproved the permanent residency request

because he did not believe the form was signed by Ms. Aponte (R. 115;

383). The manager stated that Mr. Aponte is not allowed to request

permanent residency and could not sign for his mother (R. 383).

In July 2012, Petitioner Jonas Aponte informed the Sedgewick Houses

Management office that his mother died (R. 240). Mr. Aponte also

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expressed that he would like to lease the apartment (R. 240). Thereafter, Mr.

Aponte was informed that an appointment was scheduled to discuss his

remaining-family-member status on August 17, 2012 (R. 87). Upon Mr.

Aponte meeting with the Sedgewick Housing Manager, Mr. Aponte was

informed that he was never given written permission to join the household—

meaning that he was an unauthorized occupant and was never part of the

household composition (R. 242).

Around January 23, 2013, NYCHA’s Bronx Borough Property

Manager met with Mr. Aponte regarding his remaining-family-member

grievance, and on February 1, 2013, Mr. Aponte was denied grievance (R.

244).

In April 2013, NYCHA commenced a holdover proceeding against

Mr. Aponte in an effort to evict him from the subject apartment (R. 116).

Concurrently, on September 13, 2013, Mr. Aponte had commenced an

appeal of NYCHA’s denial of his remaining-family- member status (R. 467-

468). At the administrative hearing, Mr. Aponte’s case consisted of his

testimony and documentation showing Ms. Aponte’s health conditions (all

of which he claimed were submitted to Sedgewick Housing Management

Office) (R. 247-277). Mr. Aponte testified that he moved into the subject

apartment in 2009 to care for his mother because she was ill (R. 275).

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During the hearing, NYCHA Assistant Housing Manager, Mr. Joel

Berson, testified that Mr. Aponte was not listed on the Tenant Data

Summary as an occupant (R. 288: 6-23). Mr. Berson detailed NYCHA’s

policy for a one bedroom apartment, while outlining the reasoning for two

permanent residency denials: “will create overcrowding” and the belief that

Ms. Aponte had not signed the permanent residency request (R. 289: 13-23).

On December 18, 2013 after evaluation of the documentary evidence

and arguments, the Hearing Officer found that Mr. Aponte was not an

authorized member of Ms. Aponte’s apartment since he did not receive

written permission (R. 90). Furthermore, the Hearing Officer said that

adding Mr. Aponte as an occupant to the subject apartment would cause

overcrowding and violate NYCHA’ s occupancy standards (R. 90).

Consequently, Mr. Aponte was not deemed a remaining family member.

On April 17, 2014, Mr. Aponte commenced an Article 78 petition

challenging NYCHA’s denial of his remaining-family-member grievance

(R. 37-98). The Order to Show Cause sought a stay of the Bronx Housing

Court proceeding and of the enforcement against petitioner of any eviction

pending the hearing of the Article 78 proceeding (R. 37-39). The stay was

granted on April 22, 2014 (R. 26).

On September 15, 2014, on review of the Article 78 petition, Judge

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Cynthia S. Kern “denied and dismissed [the petition] in its entirety” (R. 33).

The petition was denied on the grounds that NYCHA had a rational basis for

denying the remaining- family- member status—based on the failure to

obtain a written consent to add Mr. Aponte to his mother’s household (R.

31-32). Additionally, Judge Kern held that Mr. Aponte had no standing to

invoke a reasonable accommodation claim on behalf of himself without

proving he sustained an independent injury (R. 32).

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ARGUMENT

POINT I

THE SUPREME COURT’S DECISION MUST BE OVERTURNED

BECAUSE IT IGNORED NYCHA’S AFFIRMATIVE DUTY TO

PROVIDE REASONABLE ACCOMMODATION BY MAKING AN

EXCEPTION TO ITS OCCUPANCY RULES

Reasonable accommodation is a “change, exception, or adjustment to

a rule, policy, practice, or service that may be necessary for a person with a

disability to have an equal opportunity to use and enjoy a dwelling.” United

States Department of Housing and Urban Development & the Department of

Justice, Reasonable Accommodations Under the Fair Housing Act, Joint

Statement at 6 (May 2004). Under this tenet, a landlord is required to set

aside its own rules and policies to accommodate a disabled tenant. See

Crossroads Apt. Assoc. v. LeBoo, 152 Misc.2d 830, 835, 578 N.Y.S.2d 1004

(City Ct, Rochester 1991) (court denied summary judgment to a landlord

seeking to dismiss a Section 504 of the Rehabilitation Act claim that the no-

pet clause in the residential lease must be waived to accommodate the

tenant’s disability). For example, to provide reasonable accommodation, a

landlord would be required to disregard a no-pet clause in a residential

breach to allow a disabled tenant to own a seeing-eye dog. See Mozaffari v.

New York State Div. of Hum. Rights, 63 A.D.3d 643, 644, 881 N.Y.S.2d 437,

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437 (1st Dept 2009) (upholding a determination by the NY State Division of

Human Rights that landlord discriminated against a disabled tenant by

enforcing a no-pet clause where the tenant required a hearing dog).

Pursuant to NYCHA’s occupancy rules, an overcrowded apartment is

a one-bedroom occupied by two unmarried adults (R. 329). In the instant

case, Ms. Aponte sought NYCHA’s written permission to add her son to her

household permanently because of her dementia, despite the fact that his

addition would “overcrowd” the apartment under NYCHA’s policies (R. 75-

76; 84-85). Since the particular reason for the request was due to Ms.

Aponte’s disability, it was clearly a reasonable accommodation request.

This reasonable accommodation request required NYCHA to set aside its

occupancy “overcrowding” rules to allow Mr. Aponte to permanently join

his mother’s household. NYCHA’s refusal to reasonably accommodate Ms.

Aponte is the sole reason that Mr. Aponte did not acquire succession rights

(R. 116). NYCHA asserted at all stages of this litigation that Mr. Aponte

was not recognized as a remaining family member because NYCHA never

approved his mother’s prior request to add him to her household (R. 99-

122). NYCHA never asserted any other reason for the RFM denial, such as

failure to pass a criminal background check or non-familial relationship (R.

99-122).

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The only way the Supreme Court could have lawfully ruled that

NYCHA was not obligated to provide reasonable accommodation would be

where NYCHA asserted and proved that the accommodation posed an undue

burden. See Miloscia v. B.R. Guest Holdings LLC, 33 Misc.3d 466, 473

(Sup Ct, NY County 2011) quoting Phillips 66 A.D.3d 170, 182 (1st Dept

2009) (“The NYCHRL defines ‘reasonable accommodation’ as ‘such

accommodation that can be made that shall not cause undue hardship in the

conduct of the covered entity's business. The covered entity shall have the

burden of proving undue hardship’”). However, NYCHA never asserted an

undue burden defense at the hearing or during the Article 78 proceeding (R.

120-121). NYCHA simply reiterated its occupancy rules and stated that it

would not have provided the requested accommodation. Yet the lower court

still ruled that NYCHA “properly adhered to its own rules when denying”

Ms. Aponte’s reasonable accommodation request (R. 8-9).

Below, we outline (i) that NYCHA is a covered entity under the

purview of federal and state disability laws and as such, is bound to follow

reasonable accommodation standards; (ii) NYCHA was put on notice that

Ms. Aponte had a disability and sought accommodation; (iii) NYCHA

refused to provide reasonable accommodation and (iv) even if NYCHA had

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asserted an undue burden defense, Ms. Aponte’s accommodation request

was still reasonable.

A. NYCHA is a Covered Entity Under Federal and State

Disability Laws, and as Such, is Required to Adhere to

Reasonable Accommodation Standards

It is indisputable that NYCHA was required by law to provide Ms.

Aponte with reasonable accommodation. Two federal disability laws, the

Fair Housing Act and Section 504 of the Rehabilitation Act, mandate

housing providers to make reasonable accommodation for disabled tenants.

Two local New York codes, the New York City Human Rights Law

(Administrative Code of the City of NY, §8-107) and the New York State

Human Rights Law (Executive Law §296), also require landlords to provide

reasonable accommodation.

Apart from these recognized laws enforcing affirmative obligations on

landlords, guidelines from the U.S. Department of Housing and Urban

Development (“HUD”) make clear that “public housing agencies are subject

to civil rights requirements” including the Fair Housing Act and section 504

of the Rehabilitation Act. U.S. Department of Housing and Urban

Development, Public Housing Occupancy Guidebook, at 9 (June 2003),

available at

http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_10760.pdf

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(accessed July 12, 2015). Therefore, there is no ambiguity about whether

NYCHA’s own rules or HUD guidelines trump disability laws because HUD

obligates NYCHA to follow applicable disability laws.

More importantly, NYCHA has its own fair housing policy which

requires the authority to “make reasonable modifications to its policies and

programs to afford qualified residents and applicants with disabilities an

equal opportunity to participate in its programs, services or activities” (R.

123).

In sum, NYCHA was required to provide Ms. Aponte with reasonable

accommodation by six distinct authorities: (i) the Fair Housing Act (42

U.S.C. 3601); (ii) Section 504 of the Rehabilitation Act (29 U.S. §794); (iii)

the New York City Human Rights Law (Administrative Code of the City of

NY, §8-107); (iv) the New York State Human Rights Law (N.Y. Executive

Law, Article 15 §296[2]); (v) Guidelines from the U.S. Department of Urban

Development (U.S. Department of Housing and Urban Development, Public

Housing Occupancy Guidebook, at 9 (June 2003), available at

http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_10760.pdf

[accessed July 12, 2015]); and finally (vi) NYCHA’s own Fair Housing

Policy (R. 123). Despite the fact that NYCHA was obligated to make an

exception to its occupancy rules by federal, state and city law, HUD

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guidelines, and even NYCHA’s very own fair housing policy, NYCHA

refused to adhere to any of these standards.

B. NYCHA was Adequately Informed of Ms. Aponte’s

Reasonable Accommodation Request

Respondent NYCHA knew that Ms. Aponte had dementia and that

she needed her son to live with her to accommodate her disability.1

NYCHA received two permanent residency requests on behalf of Ms.

Aponte explicitly stating her disability and requested accommodation. At

the time of the first written permission request in 2010, Ms. Aponte was

approximately 87 years old (R. 385). A medical doctor warned that “it is

unsafe for her to live on her own as she is also at risk for falls” (R. 380). On

the 2010 permanent permission request form, Ms. Aponte stated she had

dementia. On the same form under the section “Reason for Requesting

Admission to Development Apartment,” Ms. Aponte wrote “I am sick.

Dementia. Need help” (R. 433).

Two days following this written request, on August 26, 2010, the

NYCHA Assistant Housing Manager, Joel Berson, wrote in his case notes,

“Tenant is applying to have son live with her as her health is failing and she

1 On eight of Victoria Aponte’s Occupant Affidavit forms, spanning a period of eight

years, Ms. Aponte checked off the box to indicate to NYCHA that she had a disability.

(R. 201-226).

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cannot live alone” (R. 240). There was no uncertainty about whether Ms.

Aponte made a reasonable accommodation request. The NYCHA Assistant

Housing Manager clearly understood her request. Thereafter, on the 2011

permanent residency request form, the words, “Suffering from dementia.

Cannot be alone” were written under the “reason for request” section (R.

382-383).

Despite the fact that NYCHA received two clear and unambiguous

requests for reasonable accommodation on Ms. Aponte’s behalf, the lower

court’s decision suggested that NYCHA was not put on notice that Ms.

Aponte had a disability and required accommodation. The court distinctly

noted that on January 4, 2011, Ms. Aponte checked a box in her Occupant’s

Affidavit of Income that stated, “there is someone in my household with a

disability, but I am not requesting the Housing Authority to provide any

accommodation at this time” (R. 10). However, this statement is immaterial

to NYCHA’s knowledge of Ms. Aponte’s disability. The referenced

Occupant’s Affidavit was signed in January 2011 and Ms. Aponte submitted

her second permanent residency request one month thereafter in February

2011 (R. 10). Indeed, Blatch ex. rel. Clay v. Hernandez recognized that

NYCHA cannot use the fact that disabled tenants do not self-identify on

annual forms such as the Disability Status and Notice of Reasonable

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Accommodation form. See 360 F.Supp. 2d 595, 632 (S.D.N.Y 2005). Not

only does a mental disability render tenants ill-suited to speak for themselves

but also, “the need for accommodations may not be apparent until tenancy-

threatening issues arise, and as such issues may not exist at the time of the

annual mailing.” Id.

C. NYCHA Refused to Reasonably Accommodate Ms. Aponte

It is uncontroverted that NYCHA received two permanent residency

requests (on August 24, 2010 and February 7, 2011) expressly seeking

reasonable accommodation for Ms. Aponte. NYCHA rejected both requests.

NYCHA refused the first request, citing that Mr. Aponte’s addition to the

one-bedroom “will create overcrowding conditions” (R. 433). NYCHA

refused the 2011 request citing that Mr. Aponte “cannot request permission

and cannot sign for his mother” (R. 236). No alternatives, such as a transfer

or temporary residency, were listed on the form. Both requests were simply

disapproved.

D. Ms. Aponte’s Requests for Disability Accommodation Were

Reasonable

As an initial matter, NYCHA did not assert an undue burden defense.

It is precluded from doing so now because it would pose a question of fact

rather than a question of law. Both accommodation requests for Ms. Aponte

were reasonable. This case centers around allowing one additional person to

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move into a one-bedroom in New York City. NYCHA’s own policies

distinguish between overcrowded and extremely overcrowded (R. 329).

Two adults in a one-bedroom do not rise to the level of “extremely

overcrowded”.

NYCHA unabashedly admitted in its Respondent’s Memorandum of

Law2 that it had the capacity to grant Ms. Aponte’s request. “At most, Ms.

Aponte would have been entitled, as a reasonable accommodation, to

approval of a temporary residency for petitioner to be an authorized

occupant of her apartmen[t]” (R. 501). A temporary residency request

differs from a permanent residency request in two ways: (i) the maximum

time the new tenant can remain in the household is one year, and thereafter

the tenant of record must re-apply for authorization of the new tenant’s

occupancy and (ii) it does not ripen into succession rights (R. 141-144).

This court should not entertain NYCHA’s “no harm, no foul”

conjecture of a temporary residency request that was never even offered.

2 Both parties’ Memoranda of Law were included in the Record on Appeal for the

primary purpose of establishing that the questions presented on appeal were addressed in

the proceeding below and therefore preserved for this Court’s review. See Byrd v.

Roneker, 90 A.D.3d 1648, 1649, 936 N.Y.S.2d 434, 436 (4th Dep’t 2011) (citing Matter

of Lloyd v. Town of Greece Zoning Bd. of Appeals [appeal No. 1], 292 A.D.2d 818, 818–

819, 739 N.Y.S.2d 303 (4th Dep’t 2002), lv. dismissed in part and denied in part 98

N.Y.2d 691, 747 N.Y.S.2d 407, 775 N.E.2d 1286 (2002), rearg. denied 98 N.Y.2d 765,

752 N.Y.S.2d 4, 781 N.E.2d 916 (2002)) (Fourth Department “conclude[d] that plaintiff’s

memorandum of law was properly included in the record on appeal, but only for the

limited purpose of determining whether certain of plaintiff’s contentions are preserved

for our review”).

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First, Ms. Aponte did not apply for temporary addition; she submitted a

permanent residency request. At this juncture, the fact remains that to

prevail, NYCHA was required to show why the permanent residency request

was posed an undue burden. NYCHA did not assert any justifications of

why the permanent residency request could not be fulfilled. A reiteration

that the occupancy rule exists is not the same as a defense of why the

occupancy rule cannot be set aside in specific instances.

Second, NYCHA’s admission that it could have allowed Mr. Aponte

to remain in the apartment temporarily undermines any arguments that the

accommodation for permanent residency request posed an undue burden.

That means that NYCHA had the power and discretion to make room for

Mr. Aponte to live in the apartment.

Third, even if offered, a temporary residency request would not have

accommodated Ms. Aponte because she did not have a temporary disability.

Ms. Aponte did not suffer from a broken leg; she suffered from dementia.

By 2011, medical staff advised that Ms. Aponte’s dementia “rendered her

completely incapacitated mentally” with “profound memory impairments”

(R. 388). Despite being put on notice of Ms. Aponte’s mental disability

numerous times, NYCHA made clear that it would not accept the written

consent application from anyone other than Ms. Aponte. For example, when

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Mr. Aponte tried to submit the permanent residency request on his mother’s

behalf, NYCHA disapproved it, citing that he cannot sign for his mother (R.

236). That means that Ms. Aponte would have had to re-apply for the

temporary residency request every year to add her son to her lease. This

would have been an onerous burden for an elderly, tenant with dementia to

remember to re-apply every year to keep her son in her household.

The request was also reasonable because it did not conflict with any of

NYCHA’s policies—in fact, NYCHA’s own fair housing policy required the

housing authority to modify its occupancy rules to accommodate Ms.

Aponte (R. 123). Any arguments that Ms. Aponte’s reasonable

accommodation request conflicted with HUD guidelines are misguided. The

U.S. Department of Housing and Urban Development make clear in its

Guidebook that public housing authorities like NYCHA must follow

disability discrimination laws. Guidelines from the U.S. Department of

Urban Development (U.S. Department of Housing and Urban Development,

Public Housing Occupancy Guidebook, at 9 (June 2003), available at

http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_10760.pdf

[accessed July 12, 2015]). Therefore, the occupancy rules are pre-empted by

federal and state disability discrimination laws.

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One fact remains clear throughout this case: the Supreme Court was

presented with evidence that NYCHA knew that an elderly, disabled tenant

requested reasonable accommodation on two occasions and, in response,

NYCHA consistently refused to provide it. Importantly, NYCHA never

proffered a justification of how the request posed an undue burden. When

the Supreme Court ruled that NYCHA properly adhered to its policy, it

effectively held that landlords can ignore disability discrimination laws

without even proving an undue burden defense. As such, the lower court’s

upholding of NYCHA’s overcrowding policy in the face of long-held

disability protections was an error of law which must be overturned.

POINT II

THIS COURT SHOULD ANNUL THE LOWER SUPREME

COURT’S RULING THAT PETITIONER LACKS STANDING TO

ASSERT AN ASSOCIATIONAL DISCRIMINATION CLAIM

BECAUSE IT RELIED ON A MISGUIDED INTERPRETATION OF

DISABILITY DISCRIMINATION LAWS

When a landlord fails to provide reasonable accommodation, the

“aggrieved party” with standing to sue is not limited only to disabled

persons. A non-disabled person associated with the tenant may also seek

relief under federal and state disability discrimination laws. This concept,

known as associational discrimination, has been recognized by federal and

New York courts for decades. Under associational discrimination, a white

26

roommate may sue a landlord for refusing to rent to him because his

roommate is African-American. See Dunn v. Fishbein, 123 A.D.2d 659, 660

(Sup Ct, NY County 1986) (holding that a white male had standing to assert

an associational discrimination claim where a landlord refused to rent to him

because his roommate was African-American). A doctor may sue a

commercial landlord for refusing to rent to him because his patients have

HIV/AIDS. Associational discrimination can be asserted under four

controlling authorities in the housing context: (i) Section 504 of the

Rehabilitation Act (29 U.S. §794); (ii) the Fair Housing Act (42 U.S.C.

3601); (iii) the New York City Human Rights Law (Administrative Code of

the City of NY, §8-107) and (iv) the New York State Human Rights Law

(N.Y. Executive Law, Article 15 §296[2]).

At the hearing, Mr. Aponte made an associational discrimination

claim, asserting that NYCHA’s failure to reasonably accommodate his

mother thwarted his ability to gain succession rights to his mother’s

apartment (R. 362).3 In its holding, the lower Supreme Court held that Mr.

Aponte “does not have standing to assert a reasonable accommodation claim

on his own behalf based on associational discrimination” because he must

3 In the petition, Mr. Aponte asserted that the Hearing Officer’s findings were made without

sound basis in reason and without regard to the facts…especially regarding the reasonable

accommodation request, rendering respondent’s action in denying Petitioner’s permanent

residency request arbitrary and capricious and an abuse of discretion.” (R. 41).

27

prove he “sustained an independent injury causally related to the denial of

federally requires services” of the tenant of record (R. 32). The court also

held that Mr. Aponte did not assert an independent injury (R. 32). Both of

these statements by the lower court are incorrect.

Although Mr. Aponte relied on four distinct disability discrimination

laws at the lower level, New York local laws have a lower threshold than

federal disability laws. Typically, in associational discrimination claims, the

claimant must show that they were associated with a disabled person who

was discriminated against and as a result, the claimant suffered some type of

adverse action. Federal disability laws such as Section 504 of the

Rehabilitation Act and the Fair Housing Act, require claimants to show that

in addition to just the mere adverse action, the adverse injury was

“independent” from that of the disabled person. For example, after a

hospital refused to provide accommodation to hearing-impaired parents and

their children provided sign language for them, the Second Circuit held that

the parent’s injury was the hospital’s refusal to accommodate and the

children’s “independent injury” was their absence from school to sign

language for their parents. See Loeffler v. Staten Island Univ. Hosp., 582

F.3d 268, 277 (2d Cir 2009). New York disability discrimination laws do

not require a showing of an independent injury.

28

NYCHA never asserted any other issues such as criminal

background or income limits that would preclude Mr. Aponte from acquiring

succession rights. Therefore, had NYCHA approved Ms. Aponte’s

permanent residency request, Mr. Aponte would have inherited the

apartment since he would be an authorized household member.

Below, we analyze the Supreme Court’s error in misapplying an

incorrect burden paradigm by (i) explaining that all four cited disability laws

allow non-disabled persons standing to sue under the tenet of associational

discrimination; (ii) showing that New York disability laws do not require a

showing of an independent injury and (iii) proving that Mr. Aponte

adequately asserted associational discrimination, including the independent

injury standard, at the hearing and lower level.

A. The Lower Court Erroneously Heightened Petitioner’s Burden of

Proof Under the “Associational Discrimination” Provision of the

New York Disability Discrimination Laws

1. The New York City Human Rights Law (Administrative Code)

Does Not Require Proof of an Independent Injury Element

Mr. Aponte was not required to assert an “independent injury” under

New York City Human Rights Law (herein “NYCHRL”) because this

element does not exist in the plain language of the Code. The elements of an

associational reasonable accommodation discrimination claim include a

29

showing that: (i) a person had a disability under the NYCHRL; (ii) the

housing provider had notice of the disability; (iii) the housing provider

refused to make a reasonable accommodation and (iv) plaintiff was

associated with the person with a disability. See Miloscia v. B.R. Guest

Holdings LLC, 33 Misc.3d at 474; See also N.Y. Administrative Code of the

City of NY, §8-107(15)-(20).

The NYCHRL “explicitly grants standing to sue to those who have

been discriminated against by virtue of their association with a disabled

individual.” Rivera v. Lutheran Med. Ctr., 22 Misc.3d 178, 181 (Sup Ct,

King County 2008).

The associational discrimination provision in the NYCHRL provides,

in pertinent part, that:

“Unlawful discriminatory practices shall be construed to prohibit such

discrimination against a person because of the actual or perceived race,

creed, color, national origin, disability, age, sexual orientation or alienage or

citizenship status of a person with whom such person has a known

relationship or association.” N.Y. Administrative Code 8-107(20).

This is the only provision in the Code which discusses associational

discrimination. Notably, there is no language imposing any “independent

injury” element. Therefore, the plain language of the Code does not require

a showing of the additional element of independent injury.

30

Likewise, New York courts have not interpreted the NYCHRL to

include an independent injury element. For example, in Rivera v. Lutheran

Med. Ctr., the plaintiff was discharged from his position at a medical center

over allegations that he sexually harassed a fellow employee. Rivera, 22

Misc.3d at 179 (Sup Ct, Kings County 2008). The plaintiff asserted a claim

under NYCHRL that the hospital, in fact, terminated him because of his

association with his sister-in-law who previously sued the hospital, alleging

it failed to accommodate her disability during her in-patient stay. Id. When

the hospital brought a motion to dismiss for failure to state a cause of action,

the court held that “plaintiff sufficiently stated a cause of action under the

NYCHRL” by showing (i) he was associated with a disabled person; (ii)

who was refused reasonable accommodation; and (iii) plaintiff was

adversely affected. Id. at 181. There, the plaintiff did not have to prove

independent injury to adequate state his associational discrimination claim.

Similarly, in Bartman v. Shenker, 5 Misc.3d 856, 857, 786 N.Y.S.2d

696, 697 (Sup Ct, NY County 2004), the Executive Director of a nonprofit

complained to appropriate city agencies that his commercial landlord failed

make the building inaccessible to him. The building’s entrance did not have

a ramp for the plaintiff to enter in his wheelchair. Id. Thereafter, the

commercial landlord alleged that the organization breached its lease by

31

falling into rental arrears and installing air conditioners in violation of the

building policy. Id.

The organization led by the Executive Director asserted an

associational discrimination claim under the NYCHRL, alleging that the

commercial landlord illegally retaliated against the organization by asserting

baseless claims due to its association with the Executive Director who

previously filed accessibility complaints with city agencies. Id. No

independent injury element was necessary to successfully state the

associational discrimination claim. The court held that the plaintiff asserted

a “classic disability association discrimination case”. Id. at 861.

In the case before this court now, the lower court only relied on

Filonuk v. Rhea, 84 A.D.3d 502 (1st Dept 2011) to reach its conclusion that

all associational discrimination claims encompass the “independent injury”

element. However, the plaintiff in Filonuk asserted associational

discrimination under the Fair Housing Act, not the NYCHRL.4 Brief for

4 It bears emphasis that the burden of proof for associational discrimination differs by the

controlling authority asserted. The NYCHRL and NYSHRL have a lower burden of

proof than their federal counterparts, the Section 504 of the Rehabilitation Act and the

Fair Housing Act because the former authorities do not require a showing of the

additional “independent injury” element. Loeffler v. Staten Island Univ. Hosp., 582 F.3d

268, 279 (2nd. Cir. 2009), an oft-cited case on associational discrimination, discusses the

“independent injury” standard. Although the petitioners in Loeffler asserted an

associational discrimination claim under Section 504 of the Rehabilitation Act and the

NYCHRL, Loeffler’s discussion of the independent injury element is only tied to the

Rehabilitation Act. The Second Circuit explained that under Section 504 of the

Rehabilitation Act, “nondisabled parties bringing associational discrimination claims

32

Petitioner-Appellant in Filonuk v. Rhea, available at 2011 WL 12525032,

*20 (2011). The Fair Housing Act requires the aggrieved party to show an

independent injury. As explained above, the NYCHRL does not require this

additional element.

Reading the NYCHRL as identical to the Fair Housing Act does not

comport with legislative intent. The NYCHRL is much broader and

expansive in its scope of coverage and protection than federal and even state

discrimination laws. The NYCHRL “explicitly requires an independent

liberal construction analysis in all circumstances, even where State and

federal civil rights laws have comparable language”. See Williams v. NYC

Hous. Auth., 61 A.D.3d 62, 66 (1st Dept 2009). See also Farrugia v. North

Shore Univ. Hosp., 13 Misc. 3d 740, 745 (Sup Ct, NY County 2006) (“The

Administrative Code's legislative history clearly contemplates that the New

York City Human Rights Law be liberally and independently construed with

the aim of making it the most progressive in the nation”). Given the history

and intent of the NYCHRL, it should be read as textually distinct from the

federal statutes. The lower court erroneously heightened Mr. Aponte’s

need only prove an independent injury causally related to the denial of federally required

services to the disabled persons with whom the non-disabled plaintiffs are associated.”)

Loeffler at 279.

33

burden of proof by imposing an independent injury element in the

NYCHRL.

Mr. Aponte asserted at the hearing and in his Article 78 petition (in

the accompanying attorney affirmation), all of the three elements of the

associational discrimination test under the NYCHRL. Mr. Aponte argued

that (i) his mother had dementia; (ii) his mother requested a reasonable

accommodation and NYCHA refused to provide her with a reasonable

accommodation and (iii) he is associated to his mother by familial

relationship. The only reason Mr. Aponte was not granted RFM status was

due to the denied written requests submitted to accommodate his mother.

Therefore, Mr. Aponte was adversely affected by NYCHA’s failure to

accommodate his mother. Petitioner Jonas Aponte asserted a prima facie

case under the NYCHRL and NYCHA never asserted any undue burden

defense. Therefore, the lower court should have annulled NYCHA’s

decision as an error of law.

2. The New York State Human Rights Law (Executive Law) Grants

Standing for Associational Discrimination Claims

Although the NYSHRL does not have a provision expressly providing for

associational discrimination, New York courts have long recognized that the

Code allows standing to individuals who were not directly discriminated

34

against but faced adverse effects. The New York State Human Rights Law

(“NYSHRL”) states:

“It shall be unlawful discriminatory practice for the owner of publicly

assisted housing [t]o refuse to make reasonable accommodations in rules,

policies, practices or services when such accommodations may be necessary

to afford a person with a disability equal opportunity to use and enjoy a

dwelling.” New York State Human Rights Law, N.Y. Executive Law,

Article 15 §296(2)(d).

In relevant part, the statute has a separate provision prohibiting a landlord

from discriminating against:

“Any person because of his or her race, creed, color, disability, national

origin, sexual orientation, military status, age, sex, marital status or familial

status in the terms, conditions or privileges of any publicly assisted housing

accommodations or in the furnishing of facilities or services in connection

therewith.” New York State Human Rights Law, N.Y. Executive Law,

Article 15 §296(2)(b)(emphasis added).

This court explained in Stalker v. Stewart Tenants Corp. that the above “any

person” language of the NYSHRL expands the Code’s scope of standing to

include associational discrimination and that this “expansive language

provides a remedy for any person ‘adversely affected by reason of

discrimination’ in the provision of housing in New York.” Stalker v.

Stewart Tenants Corp., 93 A.D.3d 550, 551 (Sup Ct, NY County 2012).

The Stalker interpretation is buttressed by a long line of New York

cases, spanning decades, which recognize associational discrimination under

the NYSHRL. In 1974, the Third Department heard a claim in Merrill by a

35

wife who asserted a landlord discriminated against her by refusing to rent to

her because her husband was African-American. Merrill v. State Div. of

Human Rights, 360 N.Y.S 2d. 108, 110, 45 A.D.2d 548, 550 (2nd Dept

1974). The landlord argued that the claimant did not assert a viable claim

because no discrimination had been directed towards her. Id. The court

summarily rejected this argument and held that “it reasonably appears that

there was discrimination directed toward [the claimant] because she was a

white person married to a black person, and upon that basis, there is

discrimination based on her race and color.” Id.

In 1986 in Dunn v. Fishbein, a white man successfully asserted an

associational discrimination claim under the NYSHRL that he was denied

housing on account of his roommate’s race. There, the court recognized that

though the claimant was not directly discriminated against because of his

race, he was adversely affected by his association with his roommate who

was discriminated against. See Dunn, 123 A.D.2d 659, 660 (Sup Ct, NY

County 1986) (“Jury could find that both Dunn and his roommate Pugh were

injured by the defendants who were motivated by racial bias. The fact that

Dunn is a Caucasian is of no relevance”).

In 1992, this court recognized associational discrimination under the

NYSHRL in Bernstein v. 1995 Assoc., 185 A.D.2d 160, 163, 586 N.Y.S.2d

36

115 (1st Dept 1992). In that case, a doctor who rented a commercial space

sued his landlord, alleged that the landlord sought to terminate the lease

because the medical office treated AIDS patients and performed abortions.5

Id. The First Department held that “the acts alleged stated a valid cause of

action despite the fact that [the doctor] was not the actual victim of

discrimination.” Id. at 163.

Lastly, in 2001, in Axelrod v. 400 Owners Corp., the NY Supreme

Court held that a coop shareholder who alleged the board of directors

improperly refused to approve prospective purchasers on the basis of

familial status had standing to sue under associational discrimination.

Axelrod, 733 N.Y.S.2d 587, 590 (Sup Ct, NY County 2001) (“Defendants

maintain that [shareholder] lacks standing to assert a discrimination claim in

that the alleged improper actions were not directed at her but at prospective

purchasers, who were of child bearing age. However, several cases have

allowed claims by persons who were not themselves members of the

protected class, but were personally affected, albeit indirectly, by virtue of

the alleged discrimination”).

5 Although the case is unclear, a later case clarifies that the plaintiff brought the associational

discrimination under both the NYS Human Rights Law and the NYCHRL. Bernstein v 1995 Associates,

217 A.D.2d 512, 514 (NY 1995).

37

These precedent cases shed light on how New York courts have

construed associational discrimination under the NYSHRL. Any

interpretation of the NYSHRL as more restrictive than its federal

counterparts, which already recognize associational discrimination, would be

a departure from precedent cases and legislative intent. See Wilson v.

Phoenix House, 42 Misc.3d 377, 699 (Sup Ct, NY 2013) (“The scope of the

disability discrimination provisions of the New York State Human Rights

Law [a]re similar to but broader than the Federal Americans with

Disabilities Act and §504 of the Rehabilitation Act”).

To assert a cognizable associational discrimination claim under the

NYSHRL, “a plaintiff can show that she was adversely affected by reason of

discrimination perpetrated against” another person with whom the plaintiff is

associated. Axelrod v. 400 Owners Corp., 733 N.Y.S.2d at 591. Petitioner

Jonas Aponte met this standard when he asserted at both the hearing and

Article 78 stage of litigation that (i) his mother had dementia, a recognized

disability under the NYSHRL; (ii) his mother requested to add Petitioner to

her household to accommodate her disability and Respondent NYCHA

refused; and (iii) Petitioner was adversely affected by NYCHA’s refusal to

reasonable accommodate because his ability to inherit his mother’s

apartment was thwarted as a direct result of NYCHA’s failure to

38

accommodate his mother. In sum, Mr. Aponte asserted associational

discrimination under both New York disability discrimination laws.

B. Petitioner Jonas Aponte Meets the “Independent Injury” Element

of Associational Discrimination Pursuant to Federal Disability

Discrimination Laws

1. Federal Disability Discrimination Laws Recognize Associational

Discrimination

Non-disabled persons have standing to assert associational

discrimination under both Section 504 of the Rehabilitation Act and the Fair

Housing Act. Federal courts have found that anti-discrimination statutes

which use “any person” language under persons covered expand standing to

non-disabled persons in addition to persons with disabilities. See Cortez v.

City of Porterville, 2014 WL 1101228 (ED Cal 2014) (explaining that “the

‘any person’ language in the enforcement provision indicates Congress’

intent to grant standing broadly as is permitted under Article III”); See also

Bay Area Addiction Research and Treatment, Inc. v. City of Antioch, 179

F.3d 725, 731 (9th Cir 1999) (explaining that Congress determined that both

acts are to be read and interpreted consistently).

Section 504 of the Rehabilitation Act provides that remedies are

available to “any person aggrieved by an act or failure to act by any [f]ederal

provider of such assistance.” 29 U.S. 794. “Section 504 and its anti-

retaliation provision use the all-inclusive phrases ‘any person aggrieved’ and

39

‘any individual,’ and no language further limits who ‘any person aggrieved’

or ‘any individual’ may be. In particular, the statutes do not include

language requiring such individuals to have disabilities in order to have

standing.” See Barker v. Riverside County Office of Educ., 584 F.3d 821,

825 (9th Cir 2009). See also Popovich v. Cuyahoga County Ct. of Common

Pleas, 150 Fed. Appx. 424, 427 (6th Cir 2005) (holding that associational

discrimination claims “are viable under the Rehabilitation Act, just as they

are under the ADA.”); See also Bay Area Addiction Research and

Treatment, Inc. v. City of Antioch, 179 F3d 725, 731 (9th Cir 1999) (noting

congressional intent to establish parity between the ADA and Section 504 of

the Rehabilitation Act).

Under the Fair Housing Act, a “person harmed by discrimination,

whether or not the target of discrimination, can sue to recover for his or her

own injury.” San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d

470, 475 (9th Cir 1998); See also Gladstone Realtors v. Vil. of Bellwood,

441 U.S. 91 (1979) (explaining that Congress intended for standing under

the Fair Housing Act to be as broad as possible under Article III). The Act

“defines an ‘[a]ggrieved person’ as ‘any person who claims to have been

injured by a discriminatory housing practic[e].” Stalker v. Stewart Tenants

Corp., 93 A.D.3d at 550. Therefore, it is clear that both the Fair Housing Act

40

and Section 504 of the Rehabilitation Act grant standing on the basis of

associational discrimination.

2. Petitioner Jonas Aponte Adequately Asserted “Independent Injury”

for Claims under Section 504 of the Rehabilitation Act and the Fair

Housing Act

To assert an associational discrimination under Section 504 of the

Rehabilitation Act, a party “need only establish that each suffered an injury

independent from their parents that was causally related to the Hospital’s

failure to provide services to their parents.” Loeffler v. Staten Island Univ.

Hosp., 582 F.3d at 268; See also Eskenazi-McGibney v. Connetquot Central

School Dist., 2015 WL 500871, 6 (ED NY 2015) (following the Loeffler

standard and holding that Section 504 of the Rehabilitation Act allows

standing under the theory of associational discrimination).

Petitioner Jonas Aponte asserted an independent injury while he was

pro se at the hearing: the Project Grievance Summary notes, “Mr. Aponte

believes that because he claimed he was taking care of his mother, he is

automatically entitled to become head of household” (R. 362).

In the Attorney Affirmation which accompanied the Article 78

Petition, the undersigned asserted that “Petitioner’s independent injury is

that he was denied housing.” Mr. Aponte’s injury was the deprivation of

succession rights which is distinct from his mother’s injury to have her son

41

live with her for the purpose of taking care of her and that was asserted

during the hearing and Article 78 stage.

Similar to Section 504 of the Rehabilitation Act, plaintiffs asserting

associational discrimination under the Fair Housing Act need only allege

that they suffered a “distinct and palpable injury.” See Havens Realty Corp.

v. Coleman, 455 U.S. 363, 372 (1982). Here too, Mr. Aponte meets all

elements of associational discrimination under the Fair Housing Act. The

purpose of Ms. Aponte’s accommodation was to retain a person who would

live with her to take care of her. Mr. Aponte’s injury is distinct from Ms.

Aponte’s: his succession rights to his mother’s apartment were vitiated on

account of NYCHA’s failure to accommodate his mother.

POINT III

THIS COURT SHOULD ANNUL THE LOWER COURT’S RULING

BECAUSE IT INCORRECTLY HELD THAT MR. APONTE’S

REASONABLE ACCOMMODATION CLAIM WAS NOT RAISED

AT THE HEARING

The lower court’s ruling that Mr. Aponte did not a raise reasonable

accommodation claim at the administrative hearing is factually incorrect. As

argued in the sections below, Mr. Aponte adequately asserted the key

elements of an associational discrimination claim at the hearing. In any

event, this court may still review areas of law on appeal. Mr. Aponte is not

42

making a factual claim—his associational discrimination claim is a purely

legal argument and may be reviewed by this court at this stage of litigation.

A. Ms. Aponte’s Reasonable Accommodation Request Was Raised

At the Hearing in the Form of Testimony and Documentary

Evidence

As a preliminary matter, plaintiffs are not required to use

sophisticated legal language or even legal terms to adequately assert a claim.

“Pleadings should be liberally construed and a complaint should not be

dismissed for failure to state a cause of action when a cause can be discerned

in the facts alleged, no matter how poorly those facts are stated.” Greschler

v. Greschler, 71 A.D.2d 322, 325, 422 N.Y.S.2d 718 (2d Dept 1979).

In this case, Mr. Aponte was pro se and testified at the hearing

through an interpreter. Despite these two challenges, Mr. Aponte’s first

sworn statement to the Hearing Officer was, “I’d like to say, your Honor,

that I took documents to [the NYCHA Housing Manager] and to let him

know that my mother was ill” (R. 265: 13-15). Mr. Aponte then submitted

into evidence over sixty pages of medical records detailing that his mother

suffered from dementia and could not live alone on account of her dementia

(R. 369-430). Mr. Aponte also submitted into evidence two doctors’ letters

attesting that in their medical opinion, Ms. Aponte should not live alone due

to her disability (R. 369; 380).

43

Even more, the “nature of complaints” section of the Project

Grievance Summary states, “Mr. Aponte claims that he has been taking care

of his mother before her death and is entitled to a lease for the apartment”

(R. 242). Again, the sole reason Mr. Aponte was denied succession rights is

because his mother’s request to add him to her household was denied.

Clearly, the main issue was whether Mr. Aponte was entitled to succession

rights because NYCHA should have granted his mother’s original requests

to add him to the household.

Mr. Aponte’s claim that he forfeited succession rights when NYCHA

refused to reasonably accommodate his mother—or in his words that “he has

been taking care of his mother before her death and is entitled to a lease for

the apartment” (R.242)—was adequately stated at the hearing level. In sum,

Mr. Aponte explicitly stated to the Hearing Officer that he put NYCHA on

notice that his mother had a disability, thereby making her permanent

residency request a form of reasonable accommodation.

B. The Issue of Reasonable Accommodation is Reviewable On Appeal,

Assuming Arguendo, That it was Not Raised at the Hearing Level

Even if this court were to deem that reasonable accommodation was

not raised at the hearing, this court may still review areas of law on appeal

that have not been articulated at the lower level. New York courts have held

that where a party does not allege new facts, the appellate court may review

44

legal arguments “which appeared upon the face of the record and which

could not have been avoided...if brought to [opposing counsel’s] attention at

the proper juncture.” Gerdowsky v. Crain's N.Y. Bus., 188 A.D.2d 93, 97,

593 N.Y.S.2d 514 (1st Dept 1993); See also Vanship Holdings Ltd. v.

Energy Infrastructure Acquisition Corp., 65 A.D.3d 405,

408, 884 N.Y.S.2d 24, 27 (1st Dept 2009).

POINT IV

THE LOWER COURT INCORRECTLY HELD THAT NYCHA IS

NOT BOUND BY ADMINISTRATIVE STARE DECISIS

There are two authorities that dictate how NYCHA should deal with

requests to add a family member which may result in overcrowding: (i) a prior

administrative grievance hearing decision, In The Matter of Juan Gonzalez;

and (ii) NYCHA’s own manual. Despite these authorities, the lower court

incorrectly held that NYCHA was not bound to follow either of these

authorities.

In The Matter of Juan Gonzalez, the tenant of record submitted a

permanent residency request to add an additional relative to the household (R.

96-98). The request was denied because it would have resulted in an

overcrowded apartment (R. 96-98). The family also requested a transfer.

NYCHA verbally denied the transfer request, citing that “there was no reason”

to grant it. The remaining family member claimant was later denied

45

succession rights because the tenant of record never approved written consent,

allowing the RFM claimant to permanently live in the apartment. Upon

hearing the claims of the remaining family member claimant, the Hearing

Officer found that,

“The tenant was told that her apartment was too small to permit an

additional occupant and also that a transfer would not be approved because as

the sole authorized occupant she had an appropriate size apartment. This was

a Catch-22 which should have been resolved by processing the two requests

together. The former tenant did everything she could do to obtain permission

for an adult child to live with her to assist her. [I]n this scenario, it would be

inequitable to apply the one-year rule” (R. 97).

In the instant case, the lower Supreme Court held that the decision in

the grievance hearing of The Matter of Juan Gonzalez was “an incorrect prior

interpretation and application of [NYCHA’s] own rules and policies” (R. 31).

In its Respondents’ Memorandum of Law in Support of the Verified Answer,

NYCHA contended that this 2009 administrative decision was “an outlier, an

aberration and [i]ncorrect”, and therefore, it was “not bound under the

doctrine of administrative stare decisis” (R. 493). The lower court’s decision

is incorrect. Even the case cited by the court, Matter of Charles A. Field

Delivery Serv., 66 N.Y.2d 516, 518 (Ct App 1985) holds that administrative

agencies are “free, like courts, to correct a prior erroneous interpretation of

the law by modifying or overruling a past decision.” To that end, The Matter

of Juan Gonzalez could only be deemed “incorrect” if the NYCHA board

46

overturned it. However, The Matter of Juan Gonzalez was approved by the

NYCHA board and remains untouched. Therefore, NYCHA has not

“modified or overruled” this prior grievance decision. By the lower court’s

own interpretation of how administrative stare decisis works—it was

incorrect.

The lower court also held that the instant case is distinct from The

Matter Juan Gonzalez because Ms. Aponte never applied for a transfer. The

fact remains that, under the circumstances, Ms. Aponte “did everything she

could to obtain permission for [her son] to live with her to assist her” (R. 97).

Two permanent residency requests were submitted to NYCHA on Ms.

Aponte’s behalf, even while she was battling a debilitating mental illness

(432-433; 382-383). As cited in the record, no evidence even suggested that

NYCHA informed Ms. Aponte that a transfer was a viable option (R. 58).

NYCHA summarily rejected both requests (R. 433; 383). It was not Ms.

Aponte’s obligation to conjure up alternative options, such as a possible

transfer, after her initial requests were denied. The record shows that NYCHA

did not offer Ms. Aponte a transfer. This court should reverse the lower

court’s ruling.

Aside from The Matter of Juan Gonzalez, the NYCHA manual itself

points to how the agency should deal with written permission requests

47

denied due to overcrowding. “Overcrowding” is listed in the NYCHA

manual as a condition that is remedied after the remaining family member

request is granted. The NYCHA Management Manual provides,

If an RFM claimant meets all other qualifications for the offer of a lease, the

Development Housing Manager can offer the RFM claimant a lease to the

apartment in which (s)he resides. With the exception of Senior Citizen

Developments, after a lease to the current apartment in which the RFM

claimant resides is signed, apartment size/occupant issues are resolved

according to procedure as follows:

Overcrowded Apartment: If the resulting new tenancy overcrowds the

apartment (defined as ‘overcrowded’ or ‘extremely overcrowded’ in

Appendix F, Transfers-Tenant selection and Assignment Plan (TSAP)

Transfer Guide and NYCHA Occupancy Standards for Families-Public

Housing), the Development Housing Manager informs the new tenant that

(s)he may submit a request to transfer to a larger apartment.” (emphasis

added) (R. 150).

This provision of the Manual lists overcrowding as an issue that can

be resolved after NYCHA approves the remaining family member claim.

This reading in the Manual makes sense in light of how the occupancy rules

operate. When one adult lives in a one-bedroom NYCHA apartment, the

tenant is “right-sized” because the apartment size fits the number of people

occupying it (R. 109-111). Conversely, if one person lives in a three

bedroom apartment, NYCHA often “downsizes” the tenant to a one-

bedroom because the current apartment is unnecessarily large for one person

(R. 109-111). NYCHA’s occupancy rules have a severe effect on the

majority of tenants seeking to add persons to their household. A request by

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tenant in a one-bedroom seeking to add an additional person will almost

certainly be denied to prevent the “overcrowding” of two people in a one-

bedroom.

This is why Gonzalez called NYCHA’s remaining family member

requests denied on the basis of overcrowding a “Catch 22” (R. 97). NYCHA

asserted in its Respondents’ Memorandum of Law that Petitioner was denied

RFM status because the tenant of record’s PRR was denied based on

overcrowding, and thus Petitioner was not a “lawful resident” (R. 115).

Under NYCHA’s policies, the majority of right-sized NYCHA

households seeking to add an adult person to the composition, (only done

through the Permanent Residency Request) would be denied for

“overcrowding” reasons. As a result, relatives who apply to be the remaining

family member will almost always be denied because they were not granted

“permanent residency” (written permission). Accordingly, NYCHA’s

manual policy to resolve overcrowding after granting a remaining family

member a lease makes perfect sense. Petitioner, in this case, is stuck in this

same Catch 22 heard in Gonzalez of NYCHA’s illogical interpretation of its

own rules in an attempt to support a wrongful decision.

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POINT V

THE LOWER COURT’S RULING INCORRECTLY STATED THE

LAW REGARDING IMPLICIT CONSENT

This court held in McFarlane v. New York City Hous. Auth. that

certain circumstances could relieve a remaining family member applicant of

the written consent requirement. 9 A.D.3d 289, 291 (1st Dept 2004). The

court explained:

“One type of circumstance that could be of critical importance in

establishing a right to be treated as a remaining family member despite the

absence of notice or written consent would be a showing that the Authority

was aware of the petitioner having taken up residence in the unit, and

implicitly approved it. This is so because the controlling statute and

regulations express an overriding policy that the public housing authority

administering the program should have the untrammeled authority to

monitor and approve who lives in its buildings, in order to ensure the overall

purpose of providing decent and safe housing to low income families (see 42

USC §1437[a][1][c]). Therefore, a showing that the Authority knew of, and

took no preventative action against, the occupancy by the tenant’s relative

could be an acceptable alternative for compliance with the notice and

consent requirement.” Id.

This implicit consent standard outlined in McFarlane was further upheld in

Russo v. New York City Hous. Auth., which made clear, “This Court rejects

as misguided any suggestion that the appellate courts have implicitly

overruled McFarlane by citing the rule articulated in Matter of Schorr v.

New York City Dept. of Hous. Preserv. & Dev., 10 N.Y.3d 776, 779 (App Ct

2008), that estoppel ‘cannot be invoked against a governmental agency to

prevent it from discharging its statutory duties.’” 44 Misc.3d 401, 417 (N.Y.

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2014), aff’d in Russo v New York City Hous. Auth., 128 A.D.3d 570 (1st

Dept 2015).

In the case at bar, the issue of NYCHA’s awareness of Petitioner’s

presence was addressed at the hearing. The Hearing Officer explicitly asked

Petitioner when he moved into the apartment and Petitioner responded, “In

the middle of 2009 when my mother was already ill” (R. 275). Later in the

hearing, the NYCHA Assistant Housing Manager, Joel Berson, admits that

Mr. Aponte tendered documents to him on April 27, 2011 (R. 295). More

importantly, NYCHA admitted in its Verified Answer that “on or about

January 4, 2011, Ms. Aponte submitted her Occupant’s Affidavit of Income,

dated January 4, 2011, which included Petitioner as a person living in the

apartment. Sedgewick Houses resident Services Associate Joel Berson

crossed out this information because Petitioner was not authorized to be

residing in the apartment” (R. 114).

Although NYCHA crossed out Petitioner’s name, this does not rise to

the level of “preventative action” to remove Petitioner from the apartment.

NYCHA admitted in its answer, “Ms. Aponte died on July 17, 2012, about

which Petitioner informed the management office on July 27, 2012, at which

time Petitioner indicated that he would like a lease to the apartment” (R

115). NYCHA commenced a holdover proceeding on April 15, 2013 (R.

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116). By NYCHA’s own admission, it knew of Petitioner’s residence in his

mother’s apartment at least two years prior to taking any legal action to

remove him from the apartment. Despite the substantial evidence which

demonstrates NYCHA’s implicit consent of Petitioner’s residency in the

subject premises, the lower court conflated estoppel theory with implicit

consent and rejected Petitioner Aponte’s arguments that “NYCHA knew

Petitioner lived in the apartment and failed to act to dispossess Petitioner

within the time frame of its internal guidelines” (R. 63).

Estoppel is where there is no written contract between two parties, but

one party partially performs the terms of the contract in reliance on the other

party’s representations that there is an oral contract. The party who relied to

his detriment can assert that the other party is “estopped” from arguing that

no contract existed because the relying party partially performed. For

example, a contractor may have a verbal agreement with a building owner to

renovate the premises of the building. In reliance of this verbal agreement,

the contractor may purchase expensive equipment and hire staff. If the

building owner subsequently denies that he and the contractor had a

contract, the contractor may assert that the building owner is “estopped”

from arguing that no contract exists. The contractor’s main assertion is that

he partially performed by purchasing tools and hiring employees.

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In contrast, implicit consent has a much lower evidentiary threshold

than estoppel. All claimants need prove under implicit consent is that a

party waives a written requirement because that party was aware of the

alleged breach of the conduct and failed to timely take action to further

prevent the breach. For example, if landlord with a no-pet clause in a

residential lease knows that a tenant owns a pet and fails to timely

commence an eviction proceeding, then the landlord is said to have

“waived” the requirement.

Mr. Aponte did not argue that NYCHA was “estopped” from asserting

the existence of a written contract. Mr. Aponte argued that NYCHA

implicitly consented to his presence and tenancy at the subject premises

because NYCHA knew he lived there for years and failed to timely take

action to remove him.

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CONCLUSION

The Order and Judgment of the Supreme Court should be reversed

and judgment entered declaring that Mr. Aponte’s is entitled to succeed as a

Remaining Family Member to the tenancy of his deceased mother. In the

alternative, judgment should be entered vacating NYCHA’s denial of his

RFM grievance claim and remanding the case for administrative proceedings

consistent with federal, state and city disability discrimination laws.

Dated: New York, NY

July 14, 2015

Respectfully submitted,

Attorneys for Petitioner-Appellant

DENISE M. MIRANDA, Esq.

Managing Director

AFUA ATTA-MENSAH, Esq.

Director of Litigation

SAFETY NET PROJECT

Urban Justice Center

40 Rector Street, 9th Floor

New York, NY 10006

(646) 602-5637

By ____________________________

LEAH GOODRIDGE, ESQ., Staff Attorney