D. Tort Law
Beyond statutory remedies, there have been tort law developments worthy of note. In July 2012, the Appellate Division, First Department, ruled that “participation of an individual director in a corporation’s tort is sufficient to give rise to individual liability” in the context of claims of coop discrimination under housing and retaliation provisions of the SHRL and CHRL.126
In Lugo v. St. Nicholas Associates,127 the plaintiff, a home health care aide, was injured while lowering her client, using a wheelchair, down the two steps leading to the street from the office of a physician in a Manhattan building. Plaintiff sued the building owner, building management company, and physician for negligence—not claiming any defect in or negligent maintenance of the steps, but, rather, asserting that the failure to provide a ramp violates a standard of care owed to an individual with a disability and to one associated with such an individual; plaintiff further argued that both the standard of care and the cause of action implicitly were created or evidenced by the ADA, the SHRL and the New York City Building Code. The motion court held that the ADA’s requirements that places of public accommodation remove architectural barriers and not discriminate against those associated with people with disabilities evidence a standard of care on which plaintiff had standing to sue for negligence. Since neither the SHRL nor the City Building Code128 created a standard of care applicable to one associated with a person having a disability, plaintiff could not prevail under those laws.
While plaintiff’s reliance on the ADA sufficed in the motion court’s opinion, that court’s reasoning indicates plaintiff also might have relied on the CHRL, rather than on the SHRL, since, unlike the SHRL, the CHRL both requires reasonable accommodation129 and protects those associated with a person with a disability.130 Although the First Department disagreed with that part of the motion court’s decision that the ADA could provide a standard for tort liability, the Appellate Division did so on the bases that: (1) in the ADA, “Congress did not include a private right of action even for direct and intentional discrimination”; thus, (2) “there is no discernible reason why … ADA [should be used] as a safety standard”; (3) “[n]or has the New York State Legislature seen fit to expand the scope of a building owner’s duty beyond that of common law in this respect.”
In Lugo, however, only the...
