ESPINO v. NEW YORK CITY HOUSING AUTHORITY PATTERSON HOUSES

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Civil Court, City of New York.

Willie ESPINO, Petitioner, v. NEW YORK CITY HOUSING AUTHORITY PATTERSON HOUSES, Respondent.

808176/17

Decided: April 24, 2018

For Petitioner: Willie Espino, pro-se For Respondent: NYCHA Law Department

Procedural History and Testimony

Petitioner commenced this pro-se petition in September 2017 alleging conditions in the premises to be in violation of the Housing Maintenance Code. The premises are located at 414 Morris Avenue, Apt 5D, Bronx, New York. The unit is within Patterson Houses, managed and administered by the New York City Housing Authority (NYCHA).

On September 18, 2017, Housing Preservation Department conducted an inspection of the premises and found six different conditions including “no ramp for disabled at building.” Petitioner is a disabled veteran and must use a wheelchair. This trial concerns the non-existing ramp for the disabled at the building.

On October 2, 2017, this Court issued an Interim order directing respondent to provide a disabled ramp at the building as required by law. The case was adjourned to November 2, 2017.

On November 2, 2017, the case was adjourned for a trial on January 10, 2018. Respondent had not provided a wheelchair ramp, and stated that NYCHA is not obligated to provide such a ramp.

On January 10, 2018, respondent sought partial summary judgment dismissing the case arguing the it is not required by law to provide a wheelchair ramp. The motion was denied and the trial ensued.

Petitioner was sworn in. Petitioner's testimony was credible. Petitioner stated that in 2011 he moved into the three-bedroom apartment with his family. Petitioner testified that he requested a transfer to a building with a wheelchair ramp in 2012, 2013, 2014 and 2015. Petitioner testified that he cannot leave the building or re-enter the building unless neighbors or someone walking by is willing to help him because there is no wheelchair ramp.

Petitioner needs help to get in and out of the wheelchair to navigate the steps in front of the building. Petitioner testified that he has waited 20 minutes, 30 minutes and up to 45 minutes for someone to give him a helping hand. His home attendant will carry a piece of plywood that is then placed over the steps to maneuver the wheelchair over the steps. Petitioner must be helped down the steps to get back into the wheelchair. Petitioner explained that he must repeat these steps each time that he wants to leave the building and each time that he wants to return to his home. When petitioner wants to return home, he waits 30 minutes and even 60 minutes before someone lends a helping hand.

Petitioner stated that he feels like a “second class” person. He wants to be able to leave and enter the building without having to depend on others.

On cross examination, petitioner was asked if he had commenced another case and why now after living in this apartment since 2011. Petitioner was asked why did he take this apartment in a building without a ramp.

Petitioner answered that in 2011 he was told that he had to take the apartment or wait another five years for another apartment to become available. Petitioner stated that he started this case because he feels like a prisoner; there is not exit for him.

Respondent did not present a witness.

Discussion:

The petition before the court is filed pursuant to the Civil Court Act § 110.

New York City Civil Court Act § 110(a) provides: a part of the court shall be devoted to actions and proceedings involving the enforcement of state and local laws for the establishment and maintenance of housing standards, including but not limited to, the multiple dwelling law and the housing maintenance code, building code and health code of the city of New York.

The Congress of the United States, New York State and New York City have passed laws and codes aimed at protecting disabled individuals.

The NYC Adm. Code 27–357(d) provides that all buildings “shall have at least one primary entrance accessible to and usable by individuals who use wheelchairs.” The New York City Building Code applies to respondent.

There was no dispute that the primary entrance is not accessible to petitioner and his wheelchair because there is no ramp. Unless a neighbor or stranger is walking by at the time that petitioner is leaving or entering the building, petitioner cannot leave the building. There is no dispute that petitioner relies upon a wheelchair. Petitioner seeks a wheelchair ramp pursuant to the NYC Building Code. Petitioner seeks a reasonable accommodation to his housing.

The concept of “reasonable accommodation” under the New York City Human Rights Law, (hereinafter NYC HRL), as set forth in Administrative Code § 8–107 (15) (a), is applicable to employment, housing, and public accommodations. Riverbay Corp v. NYC Commission on Human Rights, 2011 NY Slip Op 34042 (Sup.Ct. NY Co 2011.) See, United Veterans Mut. Hous.No.2 Corp. v. New York City Comm'n of Human Rights, 207 AD2d 551 (2nd Dept. 1994) HRL 8–107(15) requires a landlord to make a reasonable accommodation to enable a person with a disability to enjoy rights if the disability is known or should have been known to the entity.

The NYC HRL provides protections for disabled individuals residing in New York City. NYC HRL § 8–102(18 ) 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.” The First Department held that “there are no accommodations that may be ‘unreasonable’ if they do not cause undue hardship.” Philips v. City of New York, 66 AD3d 170 (1st Dept. 2009).

Under NYC HRL § 8–107, to be entitled to a reasonable accommodation, the resident must have:

a) qualifying handicap;

b) the entity should have known of the disability;

c) an accommodation is necessary for disabled resident to afford an equal opportunity to use the dwelling; and

d) the accommodation is reasonable.

Petitioner is a wheelchair bound individual and satisfies prong (a) to trigger the reasonable accommodation protection. Respondent is on notice of the disability; petitioner testified that for years he has alerted respondent to his need for a wheelchair ramp, as such, prong (b) is satisfied. Prong (c) is satisfied because petitioner testified that he is unable to leave his building without assistance. He uses a motorized wheelchair and he requires assistance from people to bring down the wheelchair, and then to assist him down the steps. Petitioner testified that the ordeal to exit the building is demeaning to him. It is also dangerous, as petitioner is at a risk of further injury. Prong (d) is satisfied because the accommodation sought is reasonable. Respondent could install a temporary or removeable ramps to accommodate petitioner's need to enter and exit the building.

The applicable laws allow for exceptions or waivers to the reasonable accommodation request. Respondent did not plead an exception or a waiver. Respondent simply relied on the assertion that it, NYCHA, does not have to provide wheelchair ramps at their properties.

NYCHA's own “Reasonable Accommodation Policy for Tenants, Housing Applicants and Section 8 Voucher Holders” states that it is NYCHA's policy to provide “reasonable accommodation in housing to qualified residents” which include, but are not limited to “a modification to your apartment, development grounds, and common areas in and around your apartment building” New York State's public policy favors “reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford said person with a disability equal opportunity to use and enjoy a dwelling, including reasonable modifications to common use portions of the dwelling.” NY Exec. Law§ 296.18(2).1

During the trial, respondent did not argue that petitioner does not qualify for the reasonable accommodation. Instead, respondent argued that it is not required to provide a wheelchair access ramp at all. Respondent did not offer any justification for the refusal other than “there is no law that requires them to do so.”

The evidence shows that respondent has failed to provide a reasonable accommodation allowing petitioner full access of the building's entrance. There is no dispute that a ramp does not exist. There is no dispute that a temporary ramp was not installed to ensure that a wheelchair bound resident can leave and enter the building.

In conclusion, the Court finds that pursuant to, the New York City Building Code, respondent is required to provide a wheelchair ramp to enter and exit the building

Respondent is directed to install a temporary wheelchair ramp, within 30 days of this order, in compliance with the Building Code and its own reasonable accommodation policy.

This Decision and Order does not make a finding as to whether respondent engaged in discriminatory conduct. Such a finding is not the question presented to this Court and outside the jurisdiction of the housing part cases filed pursuant to the Civil Court Act § 110.

In case of failure to comply with this Decision/Order, petitioner may restore this matter to the calendar for all appropriate relief, including costs, sanctions and penalties for violating this Decision/Order and the prior Orders of October 2, 2017 and November 2, 2017.

This Decision/Order will be mailed to the parties.

This constitutes the Decision/Order of the Court.

So ordered,

FOOTNOTES

1.   See, Disability Housing Rights and Building Codes of New York by the Committee on Legal Issues Affecting People with Disabilities, of the City Bar, New York, New York.

Enedina Pilar Sanchez, J.