Originally published by Law360
A New York appellate court has upheld a property owner's
claim of "structural infeasibility" in refusing to
construct an accessible entrance, effectively breathing new life
into a defense that owners and tenants often rely on when
conditions prevent them from satisfying the stringent accessibility
standards in federal, state and local anti-discrimination
laws.
In its March 30, 2016, decision in Matter of Marine Holdings LLC v. New York City
Commission on Human Rights, the New York State Appellate
Division, Second Department, upheld a property owner's
assertion that it would be structurally infeasible to install an
accessible entrance at a tenant's apartment.
The decision is significant because it demonstrates that this
important defense is viable and that full compliance with the
accessibility standards is not always attainable.
The tenant at issue in Matter of Marine Holdings LLC lives in a
housing complex and uses a wheelchair due to a spinal cord injury
that left her paralyzed. She claimed the property owner
discriminated against her in violation of the New York City Human
Rights Law by denying her request a ramp to provide wheelchair
access to her apartment (her unit is located five steps above the
ground floor).
Legal Principles, Procedural History and Reasoning
Under the Human Rights Law, a housing provider (or other place
of public accommodation) may not discriminate against a person
because of his or her disability, and is required to make a
reasonable accommodation to enable that person to enjoy the right
in question. As a general matter, the installation of a ramp (or
other accessibility improvement) may be a reasonable accommodation
unless it would cause an undue hardship to the housing provider (or
other place of public accommodation).
The New York City Commission on Human Rights — the agency
charged with enforcing the Human Rights Law — has cited
architectural infeasibility as a means of establishing the undue
hardship defense. A substantially similar defense of structural
impracticability may be asserted under the related federal law
— the Americans with Disabilities Act — applicable to
places of public accommodation like restaurants and retail stores,
among other types of facilities.
In Matter of Marine Holdings LLC, the commission initially held a
hearing before an administrative law judge where both the
commission and the property owner presented evidence. During the
hearing, the ALJ considered expert testimony from both parties
regarding the feasibility of converting the tenant's kitchen
window into a rear door and locating a ramp there. The proposed
work would involve cutting into the load bearing exterior wall of
the building, making the opening longer and wider to accommodate an
accessible door, and installing an exterior ramp.
The property owner's structural engineer opined that the
proposed ramp was structurally infeasible due to the weak
structural material of the cinder block building, the need for
complicated pin shoring and the risk of sinkage. Further, the
structural engineer concluded that the proposed project was
potentially hazardous due to the gas lines in the basement directly
beneath the tenant's unit. The commission's expert, an
architect, disputed the findings of the property owner's
structural engineer.
The ALJ ultimately found the property owner's structural
engineer to be more credible and compelling than the
commission's architect. Accordingly, the ALJ determined that
the property owner had established that it was structurally
infeasible to create an accessible entrance by cutting through the
building's load bearing exterior wall. Therefore, the ALJ
concluded that the tenant's requested accommodation was not
reasonable because it would impose an undue hardship upon the
property owner, and the ALJ recommended that the tenant's
complaint be dismissed.
The commission rejected the ALJ's report and recommendation,
awarded the tenant $75,000 in damages for mental anguish, imposed a
$125,000 penalty upon the property owner for failing to install the
proposed accessible ramp, and ordered the property owner to install
the ramp. The property owner then challenged the commission's
decision and order by filing an Article 78 petition with the New
York State Supreme Court, Queens County. The Supreme Court upheld
the commission's determination, except for making a $15,000
reduction to the tenant's damages award.
The property owner subsequently appealed the Supreme Court decision
to the Appellate Division. The Appellate Division reversed the
Supreme Court's decision, finding that there was no substantial
evidence in the record to rebut the property owner's showing
that it would be structurally infeasible to install an accessible
entrance to the tenant's apartment. Accordingly, given the
Appellate Division's decision, the property owner is not
required to install the proposed accessible ramp or to pay any
damages or penalties.
Implications for Places of Public Accommodation
This decision is a victory for all places of public
accommodation, particularly restaurants and retail stores in New
York City, because disabled plaintiffs filing accessibility
complaints frequently challenge the accessibility of these
establishments' public entrances. Often, such plaintiffs demand
permanent solutions that involve the installation of a ramp or
platform lift regardless if the desired solutions may be achieved
from a structural standpoint. Similar to the undue burden defense
contained within the Human Rights Law, full compliance with the
accessibility requirements set forth in the ADA Standards for
Accessible Design is not required if an entity demonstrates that it
is structurally impracticable to meet those requirements.
To that end, the Appellate Division's decision is noteworthy
because there is limited case law considering the defense of
structural impracticability due to the fact that the significant
majority of these types of cases are resolved prior to judicial
decision.
While the Appellate Division's decision breathes new life into
the concept of structural impracticability and is important from a
legal perspective, practitioners and places of public accommodation
should exercise caution. The decision is not necessarily binding
upon a federal court, and it did not involve the interpretation of
the ADA and the applicable ADA Standards for Accessible Design.
Nonetheless, the applicable state and local laws are construed
similarly to (if not more broadly than) the ADA, and, therefore,
the decision is persuasive authority.
Additionally, the decision is significant from a practical
perspective because it demonstrates how critical expert witnesses
are to the determination of claims at issue in accessibility
discrimination cases.
With ADA Title III lawsuits on the rise and New York having the
third greatest number of these cases on the docket, restaurants and
retailers in New York City should expect continued targeting by
plaintiffs who demand the installation of permanent ramps or
platform lifts, among other changes, to their premises.
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