New York State Div. of Human Rights v 111 Est 88th Partners
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New York State Div. of Human Rights v 111 Est 88th Partners 2012 NY Slip Op 31475(U) June 1, 2012 Sup Ct, New York County Docket Number: 402894/07 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 61512012 [* 1] K A SUPRErmE COURT OF THE STATE OW NEW YQRK Index Number : 402894/2007 PART NEW YORK STATE DIVISION ,I0 VS. 111 EAST 88TH PARTNERS SEQUENCE NUMBER : 002 SUMMARY JUDGMENT on tonor Upon ths fomgolng ppq,it Im ordrnd that thb motlon k 3UN 0 12013 ........... ........................... 0 CASE MSPOSED MOTION I : [3ORANTED S 9. CHCCKM APPROPRIATE: .............. DENIED 3. CHECK IF APPROPRIATE: ................................................ S F l T L ORDeR ~ E 1. CHECKONE: 0DO NOT POST 0GRANTED IN PART 0SlJBlAlT ORDER 0 PIWC~AR~APWINTMENT OTHER REFERWE . [* 2] SUPREME COURT THE QTATM OF NMW YORK OF COUNTY NEW YORWIAS PART OF 10 -- ----- "-------- . . - X I - . DECI~ION~ORDER Index No.: 402894107 Seq. No.: 002 The New York State Division of Human Rights on the complaint of Gregory Reich, Plaintiff (s), PRESENT: -against- J.S.C. 11 1 East 88thPartners, Defendant (a). -----x l - l - . - l l l Recitation, as required by CPLR § 2219 [a] of the papers consldered in the review of this (these) motlon(s): Papem Numbsred Defs nlm (CPLR 3212) w/GRC amd, SSS afflrm, exhs (on sep backs) . . . . . . . . . 1,2,3 Pltfs xlm (partial 3212)w/RAG, GR, JK afids, exhs (sep backs) . . . . . . . . . . 4,5,6,7,8 hs * . , . . 9 DeFs affirm in further support and in opp to x/m w/SSS . . . . .:. 70 Pltfs affid In further support of x/m w/GC affld . . . . . . . Pltf's reply w/RAG, JK affid (sep backs), exha . . . . . . . . . . . . . . . . . . . . . . . . . . . I 1 12 ! rl.r.g.dn . 3UN 0 5 2m' .WW#IK'......... m!xA Pltfs post OA submission . . . . . . . . . . . . . . . . . . . . . . . . . 13 . . 14 Defs post OA submission . . . . . . . . . . . . . . . . . . Steno Minutes 2/16/12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Varlousstipsofad] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 'mmm'' Upon the foregoing papers, the decision and order of the court is 8s follows: GISCHE J.: This action I brought by the New York State Division of Human Rights ("DHR" s sometimes "plaintiff) on behalf of Gregory Reich ("Reiah")stating that defendant 111 East 88" Partners ("landlord") unlawfully discriminated against Reich, its tenant, by refusing to provide him with reasonable accommodations on the bash of a disability (Executive Law 55 290, 296, 297 akla the "Human Rights Law") (herelnafter "Exec Law -Page 1 of 10- [* 3] §-" or "NYSHRL"). The complaint seeks a declaratlon that the owner violated these laws, an order directing the owner to allow the tenant to have a sewlce/support pet and keep the pet he now has, compensatory damages, punitive damages, a permanent injunction and an order requiring the owner, its agents, and employees to attend a DHR approved training program. The landlord has answered the complaint and now seeks summary judgment in its favor on two grounds. First, that Reich does not suffer from a disabiltty, as defined under the NYSHRL and second, Reich's pet is not actually "necessary" for hlm to enjoy and use the premises. DHR has cross moved for partial summary judgment and a declaration that Reich has a "disability"as that term is defined by Exec Law 9 292.21. DHR also seeks the dismissal of the landlord's legal fees claim against it. The landlord opposes DHR's cross-motion in all respects. Since the requirementsof CPLR 5 3212 [a] have been met, summary Judgment relief is available and these motions will be decided on their merits (CPLR 3212 [a]; Brill Y. Citv of New York, 2 NY3d 648 [2004]). Facts Unless otherwise stated, the following facts are established, undlsputd or unrefuted: Reich is the tenant of Apartment 2F at 11IEast 88'hStreet, New York, New York ("apartment"), which is rent regulated. He has lhred in the apartment since his birth, In 1995, Alan Miller, Reich's partner, moved into the apartment with him. Both -Page 2 of 19- [* 4] sides agree the apartment is subject to a no pets requirement. There is, however, a dog - - Maddy - - occupying Reich s apartment. Reich obtained Maddy, 8 Siberian husky, on or about September 2, 2000. Before Maddy, Reich owned another dog (Orion) which lived with Reich and Miller from September 1997 through July 2008, when the dog had to be euthanized. Reich contends that he is disabled and he needs Maddy (or another emotional support animal) to make him feel safe and protected, as well as to malnhin and promote his emotional and physical well-being. He claims that he asked the landlord to make a reasonable accommodation, which was to let him keep the dog, but that the landlord denied that request by proceeding to evict him based upon his violation of the no-pets clause in his lease. When Reich sent the landlord his request for an accommodation, he also sent a letter from his psychotherapist, Jerry Katz. Katz, a licensed cllnical social worker ( LCSW), stated in that letter that he began treating Reich on February 18, 2002. He diagnosed Reich with Dysthymic Disorder (DSM-IV: 300.4) which is characterized by depressed mood for most of the day, for more days than not, for at leaat two years, manifested by overeating, low self-esteem, low energy and feelings of hopelessness. The letter, dated October 24, 2006, goes an to state that Reich is a diabetic. According to Katz, the dog provides Reich with unconditional affection and comfort, also lifting his spirits. Once Reich learned that the landlord was proceeding with its eviction of him, he filed a complaint with DHR under Article 15 of the Executive Law [Case No.: 101148791 alleging that the landlord had violated the NYSHRL (Exec Law 5 298 [18][2]). Following -Page 3 of 19- [* 5] its investigation (Exec Law 5 297), DHR issued a Determination of Probable Cause on February 22, 2007. Exec Law 5 297 [9] provides that any party to a housing discrimination complaint shall have the right to bring such cause of action before a court of appropriate jurisdiction. The landlord, by Notice dated April 5, 2007, elected to have Reich's claim adjudicated in a civil court, prompting DHR to commence this action and assign counsel to Reich. Among the factual allegations in the complaint are that Reich: "suffers from both physical and mental disabilities, including dysthymic disorder, depression, diabetes, dyslipidernia, and obesrty" and that "[he] obtained a dog as an emotional support pet." In his BIII of Particulars, in addition to these ailmanta, Reich states he suffers from "hypertension, fatty liver disease, obes'ity, and a blocked artery that has required insertion of a stent." He references statements by Dr. Anelise Engal, a medical doctor, who is his private physician, as well as statements made by Katz. Reich also states that: [his] mental disabilities affect his physical disabilities and heatth. Reich's mental disabilities manifest themselves in, among other things, negatively affecting his ablltty, will and dwlre to treat, manage and control his overall physical condition, including his diabetes, diest, weight and other physical disabilities. Reich's mental disabilities also result in feeling of helplessness and fear and results in periods when Reich engages in little or no actlvlty and/or aimply remains in his apartment... The Bill of Particulars alleges that the dog wlli, among other things: mitigate Reich's depression and dysthymia whlch will motivate Relch to keep himself healthy and alive and control his diabetes heart condition and physical disabilities; improve Reich's spirits and mood; allow him to feel better about himself; allow him to feel safe; assist and allow him to remain in a relationship and interact with -Page 4 of 19- [* 6] his partner Alan Miller.., walk and get exercise; afford Reich an equal opportunrty to use and enjoy his apartment and allow him to control his diabetes and heart condition by getting proper amount of restful sleep.. . During discovery, Reich provided his medical record and laboratory reports. He also provided Katz s treatment notes from 2002 to 2010. In his treatment notes of March 6, 2002, Katz states that pursuant to DSM-IV, Reich has the following diagnoses: Axis I as 300.4 or Dysthymic Disorder; Axis II Personality Disorder: Narcissist Personality Disorder; and Axis Ill: Physical Conditions as Type II Diabetes. The lab reports show the results of Reich s glucose and trlglycerlde levels. Dr. Engel s examinations also contain personal information about Reich s weight, eating habits, etc. Arguments The landlord maintains that it did not violate the NYSHRL because Reich does not suffer from a disability, as defined under Exec Law 5 292.21, but even if he does suffer from the disability claimed, Reich has not and cannot prove that Maddy is necessary for his actual enjoyment of the premises or that the condition cannot be otherwise controlled, for example, through medication, The landlord denies that the medical evidence Reich has provided warrants a determinationthat a reasonable accommodation should have been made by defendants so that Reich can keep a dog in his apartment. According to the landlord, the medical records and reports that Reich relies on are not only insufficient to support Reich s claims, they actually support defendant s contention that Maddy is no more than a household pet that Reich seeks to keep, dmpite rules to the contrary, and because he is enraged that anyone would deny him -Page 5 of 19- [* 7] c ) something he wants, It is also the landlord s contention that Maddy s presence neither improves nor mitigates Relch s claimed mental or physical disabilities and that during the time period Reich had no dog ( l a after Orion, but before Maddy), Reich s condition did not deteriorate, but actually showed improvement, judging by the lab reports, therapeutic notes, etc. Reich has provided. The landlord contends that Katz s treatment notes are not objective medical findings but simply a catalog of that what his patients (in this case, Reich) tells him and that Reich has failed to provide any empirical medical evidence that an emotional support pet ameliorates symptoms of Dysthymia. The landlord has obtained a medical expert who has rendered an opinion on the issues before the court. Dr. Gary R. Collins states he is a medical doctor, board certified in psychiatry. In his affidavit, Dr. Collins sets forth an extensive list of qualifications and accomplishments to date. Presently Dr. Collins has a private pradce in adult psychotherapy, psycho pharmacologic treatment and forensic consultation. He states that a regular part of his practice is dlagnosing and rullng out common medical problems when evaluating a patient and making psychiatric evaluations. Such medical problems include diabetes, obesity, hypertension and fatty liver disease- ailments which Reich contends he suffers from, Dr. Collins states he has reviewed Katz s treatment notes and concludes, based upon his review of those notes, other documents, hls professional experienae and knowledge that even If Reich suffers from Dysthymia , it is not a disability, nor a mental This is a form of depression. -Page 6 of 1Q- [* 8] impairment resulting from any anatomical, physiological, genetic or neurological condition. Thus, according to Dr. Collins, this disorder does not prevent normal body function and it is a unremarkable condltlon, readily treatable through a comblnation of psychotherapy and medication. According to Dr. Collins, an emotional support pet IS not part of t h e treatment plan guidelines established by the American Psychiatric Association. With respect to Reich's physical ailments (diabetes, hypertension, dyalipidemia etc.) Dr. Collins opines that such health Issues are conventionally controlled through diet and exercise, as recommenced by the American Diabetes Association and other respected health Institutions. Dr. Collins states that Dr. Engel's notes show that Reich is not a cooperative patient because Reich refuse8 to exercise (for example. will not walk down one flight of stairs), he doe8 not watch his diet nor does he monitor his blood glucose. According to Dr. Collins, Reich's physical condition did not improve after he adopted Maddy, although he claims he gets more exercise since then. Even assuming Relch has a narcissistic personality disorder ("NPD"), Dr. Collins oplnes that DSM-IV does not Indicate the use of an emotional support pet 86 treatment for any of the personallty disorders it encompaases. Dr. Collins states he has read articles written by Katz on the subject of parsonalrty disorders and nowhere does Katz recommend the use of support animals 88 part of his treatment plan. Dr. Collins opines that Katz's therapeutic relationship with Reich has become unbalanced and problematic because Katz i being manipulated by his patient and has expressed these conwrns in s his notes. Dr. Collins compares the answers provided by Dr. Engel on a form questionnaire -Page 7 of 19- [* 9] provided by DHR (dated December 29, 2006) to Reich's medical records and lab reports. He opines that Dr. Engel's answers to a certain questionnaire, for example "yes" that a support animal assisted Reich because It Improved his depression and health, are not only unsigned statements, but disproved by objective medical evidence which show that Reich had no improvement In his physical condition. In a second affidavit dated October 28, 201I, Collins states that, based on Dr. Reich's sworn affidavit setting forth his current symptoms, including his depression on the weekends, he has reconsidered his initial opinion that Raich is dysthymic. He now opines that because the distinguishing symptom of dysthymia is feeling down for most of the day and for more days than not, Reich is not dysthymic and disputes that diagnosis. Although Reich had a waiver of the nepet clause for Orion, he did not obtain a similar waiver for Maddy. Thus, the landlord argues that not only did Reich obtain the new dog in total disregard for the clause, he actually got the dog because Miller wanted it, not because Reich needed it. DHR has cross moved for partial summary judgment (CPLR 5 3212 [e]) and a declaration that Reich has a "disability" as said term is defined in the NYSHRL, because Dysthymia is a mental impairment "demonstrable by medically accepted clinical or laboratory diagnostic techniques." DHR points out that Dr.Collins' opinion, s that Dysthymia i "common" or "treatable" is meaningless because the text of Exec Law 5 292.21 does not make such distinctions nor are the definitions, principles and cases involving the ADA applicable because the NYSHRL are broader. DHR states that under the Rule 14 of the condominium, the board can consent -Page 8 of 19- [* 10] to animals, without even having to consider whether this is a reasonable accommodation. In any event, DHR maintains that a "no pet" clause does not trump the provisions of the NYSHRL and that the board has refused to even consider under the statute or its discretion whether the accommodation requested is reasonable. DHR contends the landlord's request for legal fees I without any bash and s plaintiffs motion for summary judgment should be granted, dismissing the claim for legal fees for that reason alone. Katz was deposed for two days and has provided two sworn affidavits in support of plaintiffs motion, In his first affidavit dated August 23,201 1, Katz sets forth his qualiflcationsand describes his practice. Like Dr. Collins, ha works with adult and provides psychotherapy. He states that he and Dr. Collins "concur" that Reich suffers from a form of depression (dysthymia) and points out that their diagnosis is based upon symptoms and criieria set forth in the DSM-IV. He indicates that where they principally disagree i whether dysthymia i a "dlsability"within the meaning of the NYSHRLs, s s whether an emotional support pet is an accepted treatment for that disability and, if so, whether Reich's request that he be allowed to keep his dog is a reasonable accommodation that should be granted. Katz opines that just because Dysthymia can be treated with therapy and/or medication, this makes it no less of a disability and ha described how Reich has difficulty interacting with humans, but derives emotional support from his dog, transcending the normal sense of happiness most people derive from having a "regular" pet. Katz stated that the dog relieves some of Reich's isolation, helps him sleep and gives him a reason leave his apartment because he has to walk the dog. He explained -Page 9 of 19- [* 11] that the reason Reich's symptoms did not worsen, but remained stable during the 3 month period he did not have a dog is that Reich was expecting and looking forward to getting a new dog. Katz stated in his August 23, 201 1 (and at his deposition) that his notes consist of what occurred during Reich's sessions and he does not include patient treatment plans in his notes. He states this explains why Dr. Collins could not find a recommendation by him that Reich get a dog. Katz points out that the DSM-IV and other manuals Dr. Collins cites are generalized, across the board recommendations, but do not eliminate a practitioner's discretlon in designing, providing and implementing individualized treatment plans. Referring to his March 6, 2002 therapy notes, Katz stated that he has always diagnosed Reich as having (under Axis I) Dysthymia. However, he also made a tentative Axis II diagnosis of Reich havlng a "closeted" narcissistic personalrty disorder (NPD). He denies that he later changed his diagnosis from NPD to schizoid personality disorder ("SPD")to appease Reich or because he was prmsured. In addition to his March 6, 2002 notes, Katz identifles other notes where, as far back as October 6, 2008, he began to make "schizoid interpretations" about Reich. According to Katz, some of the symptoms of NPD and SPD overlap and can be easily mistaken for one another. H states, however, that the angry conduct Ralch exhibits is not associated with NPD, e but with SPD and that such rage and anger did not immadfately manifest itself. In reply to Dr. Collin's updated opinion, Katz provides a second affidavit dated November 16,201 1. He states that after reading Dr.Collins' affidavit, he has reevaluated and reconstdered his original opinion and agrees with Dr. Collins, that -Page 10 of 19- [* 12] Reich is not Dysthymic, although he did suffer from Dysthymia from at leaat 2002 through mid-to-late 2010. He now believes that Reich's Dysthymia disguised an underlying schizoid disorder and Reich actually has SPD. Dlscuaslon A movant seeking summary judgment in tts favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate, any material issues of fact from the case" (Ylnenrad v, New YQrk Univ. Med, m.,64 N.Y.2d 851, 853 [1985]). The evidentiary proof tendered, however, must be in admissible form (Friends of Animals v. Assoc, Fur Mulanufa-, 46 N.Y.2d 1066 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarer v. Prnspect HOSQ 68 N.Y.2d 320,324 ., [19881; Zuckarman v. Citv of New York, 49 N.Y.2d557 [l WO]). To show that a violation of the NYSHRL occurred and that a reasonable accommodation should have been made with respect to his or residence, the complainant (here, Relch) must demonstrate through either medical or psychological expert testimony or evidence that he is qualmed for the tenancy, that because of hk disability it is necessary for him to keep the dog in order for him to use and enjoy the apartment, and that reasonable accommodations can be made to allow him to keep the dog (One 0verlook , ve, Corp. v, New York State piv. of Human Rp~j&, 8 A.D.3d 286 A [2"dDept 20041 (internal citation omitted) Iv den 5 NY3d 174 [2005]). By law, a landlord is required to make "reasonable accommodations" to its rules so that disabled persons have "quai opportunity to use and enjoy" the rented premises (Exec Law 5 296 [2- a][dJ[2]).Fallure to do so is an unlawful discriminatory practice (Exec Law 5 296 [2-a]). -Page 11 of 19- [* 13] J " Once an individual files an adrnintstrative complaint with DHR, the claim i s investigated by DHR and the parties have an opportunrty to make submissions and participate in the process. Where (as here) there is a finding of probable cause for the administrative complaint, then the claim either proceeds to an administrative hearing or, at the election of any party, a complaint is brought by DHR so the claim can be adjudicated in court. Pursuant to DHR's rules, only the parties and their attorneys participate in the preliminary proceedings during which time DHR inquires into the alleged facts (9 NYCRR 405.8, subd. (a), pars. (1-3); McGrath v, New York State .. grvision of- I d ' 52 A.D.2d 1027 [F'Dept 19761). A finding of probable cause or no probable cause can only be challenged via a summary proceeding brought under Exec Law 5 298. \ Not only did the landlord fail to challenge the probable muse determination DHR made by timely commencing such a proceeding, even If it had been made, the scope of judicial review under the NYSHRL is extremely narrow and DHR's determination, that there was probable cause, would not be annulled if supported by substantial evidence m u c h v, New York State Biv. of Hirrnm Riahb, 73 A.D.3d 930 [2nd Dept. 20101; MMurana v. Kramarskv, 88 A.D.2d 1009 [3' Dept IQSZ]). DHR's investigation may be by any method deemed suitable in the discretion of the regional director (9 NYCRR 465.6). Hawing failed to bring a summary proceeding under Exec Law 5 298, the landlord cannot now circumvent that procedure by asking the court to look beyond the complaint DHR has filed on Reich's behalf to attack the merits of DHR's probable cause determination. U -Page 12 of 19- [* 14] The landlord claims, however, that DHR i now raising new allegations, in s support of Reich's complaint for an emotional support dog and in opposltion to plaintiffs cross motion for partial summary judgment, that were never raised before and are being asserted for the first time. Had this cam been adjudicated before an administrative law judge, DHR could have amended Its complaint at any t h e , even after the hearing (9 NYCRR 465,4[a]). Once DHR has made a probable cause determination, any amendments made thereafter are not subJect any further investigations or to determinations of probable cause (g NYCRR 465.4 [d]). Furthermore, the administrative law judge is free to amend the complaint to conform to the proof (9 NYCRR 465.12 [fJ[14]). Where, as here, DHR proceeds to litigate a matter In court, like any other litigant, DHR cannot raise new theories of recovery not pleaded in the complaint in order to oppose a motion for summary judgment and create triable issues of fact (Qstrov vk Rorbruch, 91 A.D.3d 147 [lot 20121). However, the court may, in its discretion, Dept always allow a complaint to be amended to conform to the evidence either before or after the trial (CPLR 3025 [c]; Loomls v, Civefla Corinno GQnst. Cora, 5 4 NY 2d 18 [1981]).A relevant consideration is whether there is any prejudice or surprise to the adverse party &oom is v. Civetta Coinno Const. C mL supra). DHR's complaint states that Reich's "mental disabilities affect his physical disabilities and health. Reich's mental disabilities manifest themselves in, among other things, negatively affecting his ability, will and desire to treat, manage and control his overall physical condition, including his diabetes, diet, weight and other physical -Page 13 of 19- . -. - . .. - . .. .... -. . . . .. - . [* 15] disabilities. Reich's mental disabilities also result in feeling of halplessnessand fear and results in periods when Reich engages in little or no activity and/or simply remains in his separate axe6 of apartment..." In 2002, Katz's inltial diagnosis of Reich was under NO the DSM-IV: Dysthymia under Axis I and a tentative diagnosis of a "closeted" narcissistic personality disorder (NPD) under A i il. xs In his supporting affidavit, Dr. Collins originally agreed with Katz, that Reich exhibited the symptoms of Dysthymia. Dr. Collins, however, strongly disagreed with how Reich was being treated, opining that medication, a better diet and more vigilance on Reich's part might "cure" Reich of this 3common"and "treatable" disorder. Dr. Collins particularly disagreed with Reich's profeseed need for an emotional support animal and Katz's endorsement of such treatment. When Dr. Colllns rendered that first opinion he had all of Reich's medical and therapeutic records before him, as well as the transcript of Reich's EBT. It was only a h Reich cross rnovebd for summary judgment that Dr. Collins reconsidered his inltlal opinion and expressed doubt that Reich was Dysthymic at all. In response to Or. Collin's revised opinion, Katz rnodlfled his own diagnosis, stating that he was always sure Reich had another underlying dlsorder. He stated that although Reich's Dysthymia had apparently resolved itself, this had only revealed or yielded to an underlying Schizoid disorder. Katz indicated the resolution of the Dysthymla was fairly recent and had occurred well after this case was undennray. The allegations in the complaint are broad enough to encompass DHR's present claim on behalf of Reich, that he has PSD. Dysthymia and PSD are both psychiatric diagnoses. Thus, Reich still maintains that he has a mentaVpsychiatric disability which -Page 14 of 19- [* 16] necessitates a reasonable accommodation by the landlord In order for him to use and enjoy his apartment. Katz's Axis IItype diagnosis is not, as the landlord claims, completely "new" or a recent fabricatlon to help Raich's case, As far back as 2002, Katz believed Reich had at least one other disorder In addition to Dysthymia. Katz has described how (in his opinion) mental disorders and personalky disorders may be hard to diagnose, not only because they have similar symptoms and mimic one another, but also because a patient's mental and physical health I fluid and evolvlng, not static. s Regardless of whlch mentaVpsychiatrlc problem Relch actually suffers from at the present time, the symptoms he exhibits, the feelings he claims to have, and the aatians he is observed to take (Le. he is distrustful, he isolates himself and has self destructive habits such as excessive eating, etc.) appear to pemlst. Even defendant's own expert doea not opine that Rsich is a well adjusted adult. In oppmition to the landlord's motion for summary judgment dismissing the complaint, DHR has shown s that, contrary to the landlord's positlon, piaintlff I not raising an entirely new theory of disability thereby expanding the scope of liability. The revised diagnosis is based upon evidence DHR provided defendant in discovery. That evidence was readily available to defendant's expert when he prepared his oplnion and defendant has failed to show prejudice or surprise. Therefore, plaintiff will be allowed to conform the pleadings to the proof pursuant to CPLR 3025 [c]. A separate but closely related issue is whether Reich suffers from a "disability* as that term is used in the NYSHRL. The NYSHRL is applied consistently with the Federal civil rights laws @osenbla# v. Blvana & Cohen, p,C ., 946 F.Supp. 298 [SDNY -Page 15 of 19- [* 17] 19961). The New York courts require the same standard of proof for claims brought under NYSHRL as for those brought under Tltle Vll (seeJohnson v . Lew, 812 F.Supp.2d 167 [E.D.N.Y. 201 11). Although the elements of a prlme fecie case for ADA claims are also applicable to claims under the NYSHRL, New York State's definition of "disability" is broader and more generous than that in the ADA @oe Y, Deer Mountam &av Carnn. b., 682 F.Supp.2d 324,350 [SDNY 20101 (internal cttations omitted); bvls v. BoweS, 159 F.3d 1346 [2"dClr (N.Y.) 1Bg8] n.0.r.). Unlike the ADA, NYSHRL's definition of disability "covers a range of conditions varying in degree from those involving the loss of a bodily function to those which are merely diagnosable medical anomalies which impair bodily integrity and thus may lead to more sarious conditions in the future" (Davis v. man Rhhts v. Xerox , 159 F.3d 1346 [2"dCir (N.Y.) 19981 (n.0.r.)citing State Div, , 65 N.Y.2d 213 [1985]). This is not a summary proceeding to review DHRs probable cause determination. However, in finding probable cause of an unlawful discriminatory practice, DHR necessarily made a preliminary administrative assessment of Reieh's claim that he suffersfrom a "disabiliv within the meaning of the statute. That preliminary assessment is entitled to some deference and, in the absence of conclusive, evidence in admissible form to the contrary, this alone raises triable issues of fact that preclude the grant of summary judgment to the defendant and, therefore, that motion is denied. In support of his cross motion for a declaration that he suffers from a dlsabiltty, Reich provides all his medical and therapeutic data, such as lab reports, Katr's initial -Page 16 of 10- [* 18] diagnostic impresslon and his therapy notes. He also provides his own deposition testimony describing what he feels and what life is like for him. Rei& has been in treatment for mental and physical ailments for several years. No triable issus of fact is raised by the landlord that Dysthymia or PSD are not impairments which are "demonstrable by medically accepted clinical or laboratory techniques.. ." (State Div, Hum Rts v, Xerox Cow., 65 NY2d 213 [19851). Although in opposition to the cross motion the landlord contends that the medical and other evidence that Reich has provided is inadequate, the landlord has not clearly articulated in what way. Unlike the complainant in One Overlook Ave. Corn v, NYS DlV of Hiirnan Rinhtg (8 AD3D 286 [Znd Dept 20041 Iv den 5 NY3d 714 [2005]) ("m Qyerlook"), Relch has provided medical and psychological evidence in support of his claim of a disability. The court in a Overloolq did not decide that Dysthymia o some s r other mental impairment or personalrty disorder is not a "disabillty" within the meaning of the NYSHRL. Comments by Dr. Collins, that Reich's problems are "common" and "treatable"via conventional methods, has no bearing on whether Reich suffers from "a physical, mental or medical impairment ... which prevents thcs exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques ... " (Exec Law 5 292). Dr. Collins does, however, question whether Reich has the disorder Katz ha8 diagnosed him with and he challenges KaWs methodology, This disagreement between the professionals raises triable issws of fad that defeat the cross motion as well and it is denied. -Page 17 of 19- [* 19] Exec Law § 296.18 [2] imposes a requirement that a person with a disabilrty requesting an accommodation must show that "such accommodation may be necessary to afford said person with a disabiltty equal opportunity to use and enjoy a dwelling..." The accommodation sought by Reich is a dog. Landlord seeks summary judgment on the issue of whether the dog is "actually mcessary'' for Reich to 'use end enjoy"his apartment. According to the landlord, Rei& can manage just fine without Maddy, she offers little relief from his symptoms, an motional support pet i an s unconventional treatment for his disability, assuming it exists, and he I not using s Maddy in a way that other persons with support animals use their pets. For example, Reich leaves Maddy at home and does not taka her to work with him. Whether a requested accommodation is required is "highly fact-specific, requiring case-by-case deterrninatiodt2 Llislbbardvmmt Sa e -as n n C m 994 FSupp. ., 187, 190 [SDNY 19981). Furthermore the nature of the accommodation is framed by the nature of the particular handicap or disabllity alleged W b w d v, Samson Manaaemenf Corn, supra). Given the dispute about Reich's disability, any decision about whether Maddy is actually necessary for him to "use and enjoy" his apartment and whether the accommodation requested le reasonable cannot be decided at this time. Therefore, the landlord's motion for summary judgment on these issues is denied. 'Although this case involves the Fair Housing Act, a8 previously indicated, the New York courts require the same standard of proof for claims brought under NYSHRL as for those brought under Title VI1 (see Johnson v. L e u, 812 F.Supp.2d 167 [E.D.N.Y. 201 I]). -Page 18 of 19- [* 20] In Its answer and motion for summary Judgment,the landlord seeks legal fees against DHR, Exec Law 5 297.10 provides that legal fees may be assessed against DHR only if the complainant is employed by DHR and the complaint is against DHR in iter capacity as employer. Since those are not the facts of this case, DHR s motion for summary judgment dismissing the landlord s request for legal fees is granted. That relief is, therefore, severed and dismissed. Conclusion The landlord s motion for summary judgment is denied In all respects. DHRs cross motion for partial summary judgment is granted only to the extent that the request for legal fees In the answer is severed and dfsmissed. The cross motion is otherwise denied. DHR s request to amend its cornplalnt to conform to the proof is, however, granted and the complaint Is deemed so amended. According to SCROLL, this case I scheduled for mediation on June 4, 2012. 5 Once that Is completed, this case I ready to be tried since discovery I complete and s s the Note of Issue was filed. Plaintiff shall SBWB & & c h rdsr on the clerk in the Po @Edam Office of Trial Support so the case can be sched Any rellef requested but not spe ** % ; This constitutes the decision and order of Dated: New Yo&, New York June 1,2012 #@reby denied. % So Ordered: k Hon. Judith -Page 19 of 19- W
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