Hollandale Apartments v. Bonesteel

173 A.D.3d 55

100 N.Y.S.3d 711

HOLLANDALE APARTMENTS & HEALTH CLUB, LLC, Respondent,

v.Michael BONESTEEL, Appellant, et al., Defendant.

526907

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 28, 2019

Decided and Entered: May 9, 2019

Disability Rights New York, Albany (Scott M. Wells of counsel), for appellant.

Pentkowksi, Pastore & Freestone, Clifton Park (Michael J. Hutter of Powers & Santola, LLP, Albany, of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Lynch, Clark and Aarons, JJ.

OPINION AND ORDER

Garry, P.J.Plaintiff owns and operates an apartment complex in the Town of Clifton Park, Saratoga County, with a policy that prohibits tenants from keeping dogs on the premises. Defendant Michael Bonesteel (hereinafter defendant) began renting an apartment from plaintiff in 2011 under a one-year lease that was renewed for additional one-year terms until November 2014, and thereafter for three-month terms. In November 2013, defendant's therapist sent a letter to plaintiff recommending that defendant should obtain an emotional support animal to assist him with his chronic mental illness, and defendant requested that plaintiff make an exception to its no dog policy as a reasonable accommodation for his disability. Plaintiff denied this request, but offered that it would allow a bird or cat, or allow him an early termination of his lease, should he wish.

Following a complaint from defendant, defendant Attorney General opened an investigation pursuant to Executive Law § 63 to determine whether the denial was discriminatory. After the investigation, the Attorney General sent plaintiff a proposed assurance of discontinuance to settle the matter. Plaintiff rejected the proposed resolution and, in June 2014, commenced this action seeking a judgment declaring that plaintiff's refusal to permit defendant to have an emotional support dog was not in violation of the Fair Housing Act (see 42 USC § 3601 et seq. [hereinafter FHA] ) and the Human Rights Law (see Executive Law art 15 [hereinafter HRL] ).¹ Thereafter, in October 2014, plaintiff notified defendant that it was reducing his lease renewal term to three months. Defendant joined issue and filed counterclaims asserting that plaintiff discriminated against him in violation of the FHA and the HRL by denying his request for an emotional support dog and that the reduction of his lease term was retaliatory. Supreme Court granted a motion by the Attorney General to intervene in the action, and the Attorney General answered and asserted counterclaims on similar grounds to those raised by defendant. Following a nonjury trial, the court issued a judgment that declared that plaintiff's actions did not violate the FHA and the HRL and dismissed the counterclaims. Defendant appeals.²

As a threshold matter, although not raised by the parties, we address the question whether plaintiff's claims in the declaratory judgment action are justiciable. It is a fundamental principle of our jurisprudence that courts do not give advisory opinions – that is, determinations that purport to resolve issues that depend on events that may never occur and are outside the control of the parties (see Cuomo v. Long Is. Light. Co. , 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546 [1988] ; New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527, 529–531, 399 N.Y.S.2d 621, 369 N.E.2d 1155 [1977] ; Self–Insurer's Assn. v. State Indus. Commn., 224 N.Y. 13, 16–17, 119 N.E. 1027 [1918] ). Further, "[i]f [an] anticipated harm is insignificant, remote or contingent[,] the controversy is not ripe" ( Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 520, 505 N.Y.S.2d 24, 496 N.E.2d 183 [1986] [internal citation omitted], cert denied 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 578 [1986] ).

Here, when plaintiff filed the declaratory judgment action, it had already denied defendant's request for an exception to the no dog policy. Defendant had not renewed the request or violated the denial, nor had he commenced any court action. Whether he would eventually do so was then an event that might never occur, and whether the outcome of such an action would be adverse to plaintiff was, and still is, outside the parties' control. Although defendant had filed administrative complaints against plaintiff,³ they were not yet final, no enforcement actions had been taken and no agency "ha[d] taken a definitive position that inflict[ed] an actual, concrete injury" ( id. at 522, 505 N.Y.S.2d 24, 496 N.E.2d 183 [internal quotation marks and citation omitted]; see Matter of Adirondack Council, Inc. v. Adirondack Park Agency, 92 A.D.3d 188, 191–192, 936 N.Y.S.2d 766 [2012] ). Significantly, plaintiff's complaint makes no allegation that plaintiff was harmed in any concrete fashion by defendant's request for an exception to the no dog policy, or that any such harm was impending; it merely asserted that defendant was not entitled to the exception and asked for an anticipatory determination that its refusal did not violate the FHA or the HRL. In effect, plaintiff's complaint asked Supreme Court to render an advisory opinion, and "[t]he giving of such opinions is not the exercise of the judicial function" ( Self–Insurer's Assn. v. State Indus. Commn., 224 N.Y. at 16, 119 N.E. 1027 ). Thus, the declaratory judgment action is premature and nonjusticiable, and must be dismissed (see Cuomo v. Long Is. Light. Co., 71 N.Y.2d at 358, 525 N.Y.S.2d 828, 520 N.E.2d 546 ; Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL–CIO v. Cuomo, 64 N.Y.2d 233, 240, 485 N.Y.S.2d 719, 475 N.E.2d 90 [1984] ; Matter of Jenkins v. Leach Props. LLC, 151 A.D.3d 1419, 1420, 57 N.Y.S.3d 559 [2017] ). Defendant's counterclaims, by contrast, allege concrete injuries – the denial of defendant's request for an emotional support dog and plaintiff's allegedly retaliatory conduct in reducing his lease term – as to which our resolution "[will] have an immediate practical effect on the conduct of the parties" ( New York Pub. Interest Research Group v. Carey, 42 N.Y.2d at 530, 399 N.Y.S.2d 621, 369 N.E.2d 1155 ). Accordingly, we will examine the merits of the counterclaims.

The FHA defines discrimination against a disabled person⁴ by an owner of rental housing, as pertinent here, as "a refusal 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" ( 42 USC § 3604 [f][3][B] ). The corresponding provision in the HRL uses nearly identical language (see Executive Law 296[18][2] ).⁵ To prove a discrimination claim based upon a failure to accommodate a person's disability, the person must establish that he or she is disabled within the meaning of the statute, that the charged party knew or reasonably should have known about the disability, "that the accommodation was likely necessary to afford the [disabled] person an equal opportunity to use and enjoy the dwelling," that the requested accommodation was reasonable and that the charged party refused to make the accommodation ( Olsen v. Stark Homes, Inc., 759 F.3d 140, 156 [2d Cir.2014] ; see Fair Housing Justice Ctr. v. Cuomo, 2018 WL 4565152, *12, 2018 U.S. Dist. LEXIS 163276, *37 [S.D.N.Y., Sept. 10, 2018, No. 18–CV–3196 (VSB) ] ).

As a preliminary matter, we note that the parties have strictly limited their arguments on appeal on the question of discrimination to two narrow and carefully circumscribed issues: (1) whether defendant has a qualifying disability within the meaning of the FHA and the HRL and (2) whether the accommodation he requested was "necessary to afford [him] equal opportunity to use and enjoy [his] dwelling" as provided in the statutes ( 42 USC § 3604 [f][3][B]; see Executive Law § 296[18][2] ). Both parties have emphasized that they do not wish this Court to address any other aspect of the statutes' application to the facts presented, such as whether the requested accommodation is "reasonable," and neither party has addressed any such issues in their briefs. Accordingly, we limit our analysis to the two specific issues presented.

Turning first to the question of defendant's disability, a person has a qualifying disability within the meaning of the FHA, as pertinent here, when he or she has "a physical or mental impairment which substantially limits one or more of such person's major life activities" ( 42 USC § 3602 [h][1] ). Defendant and his therapist, as well as other witnesses, testified at the trial, and the parties stipulated to certain facts. Taken together, this evidence established that defendant was diagnosed with major depressive disorder in 2005, and he is also diagnosed with generalized anxiety disorder. At the time of trial, he had been in ongoing treatment with the therapist, a clinical psychologist, since June 2005, and also treated with a psychiatrist who prescribed and managed his medication. The therapist described the diagnostic criteria for major depression and detailed the specific symptoms that defendant displayed – such as extreme sadness, lack of motivation, difficulty in taking pleasure in anything and sleep disturbances. Defendant left his full-time position as a technical project manager in 2005 due to difficulties with concentration, motivation and communication related to his depression and, since then, has received Social Security disability benefits. His therapist testified that, in brief episodes of improvement, he has occasionally applied for jobs, held temporary employment for limited periods and attempted to do volunteer work, but that he has never been able to sustain these efforts for long.

Until 2011, defendant resided with his wife and daughter in the family home, where a son also resided before leaving for college. The family owned dogs, and defendant was primarily responsible for their care. In 2011, he moved to plaintiff's...