Comm n on Human Rights ex rel. Thomas v. Mutual Apartments Inc. OATH Index No. 2399/14, mem. dec. (Sept. 2, 2014)

Transcription

1 Comm n on Human Rights ex rel. Thomas v. Mutual Apartments Inc. OATH Index No. 2399/14, mem. dec. (Sept. 2, 2014) Petitioner s motion to compel discovery is denied as it requested information about accommodation requests made by tenants at another building owned by Mutual Apartments. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of COMMISSION ON HUMAN RIGHTS EX REL. THOMAS Petitioner -against- MUTUAL APARTMENTS, INC., PRESTIGE MANAGEMENT INC., and SHIRLEY SMOOT Respondents MEMORANDUM DECISION AND ORDER FAYE LEWIS, Administrative Law Judge This is a case brought by the New York City Commission on Human Rights ( the Commission ), on behalf of Carol Thomas and Cinnamon Thomas, alleging that respondents unlawfully discriminated against complainants in the terms, conditions, and privileges of their housing accommodation, by failing to provide them with a reasonable accommodation for their disabilities, in violation of sections 8-107(5)(a) and 8-107(15)(a) of the New York City Human Rights Law. More specifically, the Commission alleges that respondents failed to accommodate complainants request for permission to have an emotional support dog reside with them in their unit, and instead commenced an eviction proceeding. Respondents deny the allegation of discrimination. They contend that complainants do not suffer from any disability that would require a service or emotional support dog and did not seek permission prior to bringing the dog into their apartment. By motion filed on August 21, 2014, petitioner moved to compel discovery, alleging that respondents had failed to respond to its request for interrogatories, production of documents, and a witness list. The next day, following a conference call, respondents counsel ed responses to the interrogatories and transmitted responsive documents via federal express. Counsel also provided the names of two witnesses whom respondents expected to call, and

2 - 2 - indicated that respondents might be calling an expert as a third witness. I advised respondent s counsel that I expected that respondents would provide the name of its expert witness by September 3, Petitioner felt that the response was incomplete and sought to compel full compliance with its discovery requests. Respondents filed an affirmation in opposition on August 26, 2014, petitioner submitted a reply on August 28, 2014, and respondents submitted a response via e- mail on August 29, Throughout this time, counsel also submitted a number of s which helped to clarify their positions. As a result of the exchange of s and litigation documents, respondents have largely complied with petitioner s discovery requests. Petitioners had objected that only respondent Smoot had answered the interrogatories ( of Ms. Flyer, Aug. 25, 2014 at 1:04 p.m.), but respondents clarified that Ms. Smoot spoke on behalf of respondent Mutual Apartments, and her answers were the same that Mutual Apartments would give ( of Mr. Denenberg, Aug. 25, 2014 at 3:29 p.m.). Further, while Prestige Management maintained its legal position that it was not a proper party and did not have to answer the interrogatories nor the document requests, it provided responses to the interrogatories and document requests in question, with one exception ( s of Ms. Buyuklieva, Aug. 29, 2014 at 9:25 a.m. and 10:17 a.m.). In its reply memorandum, petitioner sought to compel Prestige Management to respond to interrogatories 6, 7, 8, 9, 10 and 11 as modified, and two additional interrogatories. Petitioner also sought to compel Prestige Management to respond to document requests one and seven. In its s on August 29, 2014, Prestige Management provided the requested responses, with the exception of interrogatory number 11, as amended, and indicated that it did not have any documents in its possession. Therefore, the only item requiring a ruling is interrogatory 11, as amended. In this interrogatory, petitioner asks that respondent Prestige Management (which is the managing agent for Navy Yard Housing), identify all tenants who made accommodation requests to keep an emotional support animal within the past five years, and provide all documentation regarding those requests. Respondent Prestige Management asserts that these requests are irrelevant as Navy Yard Housing is owned by a different owner, and also contends that it is not a proper party to this case and cannot be compelled to answer the interrogatories. Respondents assertion that Prestige Management is not a proper party to this proceeding is mistaken. There are three respondents named in the complaint: Ms. Smoot, Prestige

3 - 3 - Management, and Mutual Apartments, Inc. The parties agree that Mutual Apartments is the cooperative entity that owns the building in question. In their answer to the complaint, respondents acknowledge that Prestige Management is the managing agent for Mutual Apartments and that Ms. Smoot is employed by Prestige Management as the onsite manager for Mutual Apartments. Respondents contend that Prestige Management is not a proper party because Prestige, through its manager simply acts on the Board of Directors decisions and instructions (Affirmation in Opposition, Aug. 26, 2014, 15). However, under that very characterization, Prestige Management, though the actions of Ms. Smoot, acts as an agent for Mutual Apartments. As an agent, Prestige Management is liable for the actions of Mutual Apartments. See Comm n on Human Rights v. Shahbain, OATH Index No. 2439/13 at 7 (Feb. 13, 2014); see also Warshaw v. Mendelow, 2011 N.Y. Misc. LEXIS 7015 at *21 (Sup. Ct. N.Y. Co. 2011) (an agent must have authority, whether apparent, actual or implied to bind the principal). Moreover, respondents contention that Prestige Management is not a proper party ignores the plain language of Sections 8-107(5)(a)(1) and (a)(2) of the Human Rights Law, which provides that it is an unlawful discriminatory practice for the... managing agent... to... discriminate against any person because of such person s... disability. The courts have recognized that managing agents are liable for discrimination under Section 8-107(5) of the Human Rights Law. See Bartman v. Shenker, 5 Misc.3d 856, 863 (Sup. Ct. N.Y. Co. 2004) (denying motion to dismiss discrimination complaint against managing agent of building owner, finding... the Administrative Code... extend[s] liability for discriminatory acts to agents of the owner ). Where the proof supports such a finding, managing agents have been found liable for violations of the Human Rights Law. See Comm'n on Human Rights ex rel Shmushkina v. New Brooklyn Realty, OATH Index Nos. 2541/08, 2542/08 & 2543/08, mem. dec. (Jan. 2, 2009); Comm'n on Human Rights ex rel. Martin v. Hudson Overlook, LLC, OATH Index No. 137/06 (Aug. 30, 2006), adopted, Comm n Dec. & Order (Dec. 5, 2006). Thus, as a matter of pleading, Prestige Management is a proper party to the complaint. However, respondents should not be compelled to answer interrogatory eleven, as amended. In this interrogatory, petitioner requests that Prestige Management be directed to identify all tenants who made accommodation requests to keep an emotional support animal at Navy Yard Housing and to provide any such communications or other documentation. Petitioner contends that this information is relevant to the imposition of a civil penalty because it could

4 - 4 - show the potential impact of respondents discriminatory actions. Although not specifically enunciated, it appears that petitioners request is predicated on the theory that if requests to maintain emotional support animals were made at Navy Yard housing and denied, this would show a pattern of discriminatory behavior, which would be relevant to civil penalty. This argument is flawed. The existence of prior findings of discrimination against the respondents is a consideration in assessing civil penalty. See Comm n on Human Rights ex rel. L. D. v. Riverbay Corp., OATH Index No. 1300/11 at 27 (Aug. 26, 2011), adopted, Comm n Dec. & Order (Jan. 9, 2012) ( Prior findings of discrimination aggravate civil penalties because they reveal willfulness; someone who has previously been found guilty of discrimination can no longer claim ignorance of the law ). However, consideration of prior unadjudicated discriminatory conduct is not relevant for penalty purposes, and we have declined to order discovery of information that could arguably show such conduct. See Comm n on Human Rights ex rel. Aldad v. North Shore Towers, OATH Index No. 2157/13, mem. dec. at 4 (Aug. 30, 2013) (citing cases). Moreover, even if respondents were to supply information showing that residents of the Navy Yard made accommodation requests for emotional support animals which were denied, that by itself would be insufficient to establish discrimination, and would instead require a minitrial as to the particular circumstances involved, which would unduly expand the scope of this trial, which pertains to alleged discrimination against two complainants only. See Aldad at 4. Accordingly, petitioner s request to compel discovery is denied insofar as it seeks information from Prestige Management about accommodation requests made by tenants at the Navy Yard Housing. September 2, 2014 Faye Lewis Administrative Law Judge APPEARANCES: NEW YORK CITY COMMISSION ON HUMAN RIGHTS Attorneys for Petitioner BY: LAURA FLYER, ESQ.

5 SPERBER, DENENBERG & KAHAN, P.C. Attorneys for Respondent BY: SETH DENENBERG, ESQ. IVELINA BUYUKLIEVA, ESQ