Opinion
058297/06.
Decided September 22, 2008.
The Finkelstein Firm LLP, New York City (Robert Finkelstein of counsel), for petitioner.
Jeffrey S. Ween Associates, New York City (Jeffrey S. Ween and Hattie F. Ragone of counsel), for respondents.
Respondents, Patricia and Michael Schatz, move for summary judgment to dismiss this owners'-use holdover proceeding. Respondents, husband and wife, have resided at 111 Chambers Street, Apartment 2, in New York County, for over 35 years. In October 2005, petitioner refused to renew their rent-stabilized lease on the alleged ground that he intends to use their apartment for his personal use. According to respondents, Patricia Schatz is disabled as defined under Rent Stabilization Code (9 NYCRR) (RSC) § 2520.6 (q) because she is hard of hearing and suffers from type II diabetes.
Respondents argue that Ms. Schatz's impairments, which she contends are permanent, prevent her from engaging in any substantial, gainful employment. If respondents are correct that Ms. Schatz is disabled, petitioner may not refuse to renew respondents' lease respondents unless, under RSC § 2524.4 (a) (2), petitioner offers respondents "an equivalent or superior housing accommodation at the same or lower regulated rent in a closely proximate area."
Petitioner argues that a trial is necessary because the proof that Ms. Schatz suffers from a disability that prevents her from being gainfully employed is solely within her possession. Petitioner also argues that Ms. Schatz left the workforce voluntarily because her spouse can support her financially — that Ms. Schatz has chosen not to work. Petitioner contends that her alleged disability has nothing to do with her supposed inability to be gainfully employed. Petitioner argues, moreover, that Ms. Schatz has made little effort to retrain. If only Ms. Schatz knew sign language, according to Petitioner, she would have no difficulty finding work.
I.Background
In June 2005, Ms. Schatz wrote to petitioner that she is applying to International Hearing Dog, Inc., for a hearing-assistance dog because she was having difficulty with her hearing. Ms. Schatz requested permission from petitioner to harbor a hearing dog in her apartment. Petitioner refused her request. On October 26, 2005, petitioner informed respondents that he intended to use the apartment for his personal use and that he would not renew her lease. On October 31, 2005, Ms. Schatz filed with the New York State Division of Human Rights (DHR) a complaint alleging that petitioner engaged in unlawful discrimination by refusing her request to harbor a hearing-assistance dog in her apartment.
On February 27, 2006, petitioner filed this owners'-use holdover proceeding. In their answer, the second affirmative defense, respondents assert the RSC § 2524.4 (a) (2) tenant-disability exception to a landlord's right to recover premises for personal use. By letter dated March 30, 2006, petitioner advised DHR that he no longer objected to Ms. Schatz's use of a hearing dog but would not concede that Ms. Schatz is disabled.
Respondents sought to stay this proceeding pending the outcome of Ms. Schatz's complaint before DHR. On May 26, 2006, the Honorable Pam Jackman Brown granted a stay. Ms. Schatz then proceeded with her complaint before DHR.
On August 16, 2007, after a hearing, DHR determined that Ms. Schatz is disabled — hard of hearing — within the meaning of the Human Rights Law. DHR determined that petitioner violated Executive Law § 296.2 when he refused to accommodate Ms. Schatz's request for a hearing-assistance dog. DHR determined that Ms. Schatz is entitled to a reasonable accommodation. It permitted Ms. Schatz to harbor a hearing-assistance dog in her apartment despite a lease provision that otherwise forbade her to have a pet.
On January 25, 2008, respondents moved for summary judgment on the sole ground of collateral estoppel: that DHR found Ms. Schatz disabled. On March 3, 2008, this court denied respondents' motion, finding collateral estoppel inapplicable because in defining "disability," DHR relied on the Executive Law, not RSC § 2520.6 (q), a narrower statute.
Respondents now move once again for summary judgment under CPLR 3212. Respondents argue that RSC § 2524.4 (a) (2) provides an exception to a landlord's right to recover the apartment for personal use — a tenant's disability. Respondents argue that based on the papers, no material issues of fact warrant a trial.
II.Facts Presented in this Summary Judgment Motion
In her affidavit supporting her summary-judgment motion, Ms. Schatz explains that she has two impairments: She is hard of hearing and has type II, adult-onset-insulin-dependent, diabetes. The court does not know her exact age, but Ms. Schatz says she is over 60-years-old. Over the years, Ms. Schatz avers, her impairments have worsened and her condition has deteriorated. When she was younger, she attended the Fashion Institute of Technology. She spent many years as a designer in the fashion industry. She was a designer for the Tepper Company working on a Ralph Lauren license. She then worked as a designer on the Maximillian fur line. When she was about 33-to 35-years-old, she noticed something wrong with her hearing; she felt as if she had cotton in her ears. In 1983, Dr. Alan Austin Scheer, a surgeon specializing in correcting hearing loss, informed her that her condition is genetic — her mother was deaf — and inoperable; she has degenerative cells in the cochlear. Ms. Schatz says that Dr. Sheer's diagnosis was that she will be totally deaf. Over time, Ms. Schatz has gone from having a hearing aid in one ear to powerful hearing aids in both ears.
Ms. Schatz further asserts in her affidavit that because of her gradual hearing loss, she had trouble performing her job functions as a designer, such as communicating with customers: She made errors on orders. Her clients became upset at her for misunderstanding their orders. Because her hearing impairment impeded her work, Ms. Schatz started her own fashion-design business sometime in 1987-1988. She surrounded herself with personnel who knew about her disability; the environment was smaller and less stressful than what existed in the large companies for which she had worked in the past. Ms. Schatz maintained her own business for three years. After she closed her fashion-design business, she opened a small jewelry store on Long Island, New York. The store was small and narrow. She positioned the showcases in a way that customers would have to face her when speaking to her. In 1993, Ms. Schatz was diagnosed with type II diabetes and became insulin dependent. She takes insulin every day. In 1994, she closed her store because her hearing had deteriorated and she could no longer work.
Ms. Schatz states that she has not worked since 1994. She is a stay-at-home wife. At home, she cannot hear the telephone ring unless she is within arm's length of the telephone. She cannot hear the doorbell or a boiling tea kettle. She watches television in silence, using the closed-caption feature. She focuses on body language to understand people when they speak to her. Ms. Schatz avers she reads lips but that she is not very good at it. She needs someone to accompany her when she goes grocery shopping. She cannot hear car horns, ambulances, or fire-truck sirens.
Ms. Schatz explains in her affidavit that because of her hearing, she has had a difficult time finding alternative employment and retraining. Unclear is when Ms. Schatz tried to retrain, but she asserts she took knitting classes in Sag Harbor, New York, during the summer months. She took craft classes at the Learning Annex, although she does not state when she took them. Because she could not hear her instructors, Ms. Schatz says, she did not benefit from the classes.
Ms. Schatz avers that in 2005 she applied to International Hearing Dog, Inc. (IHDI), for a hearing-assistance dog. Ms. Schatz explains that IHDI has been operating for 26 years and has placed more than 975 dogs throughout the United States and Canada. IHDI trains hearing-assistance dogs for several months before they place the dogs. Ms. Schatz believed that a hearing-assistance dog would help her negotiate traffic and alert her to sounds. Because IHDI's waiting list to receive a dog was long, she went to the Canine Hearings Companions, Inc. In January 2007, she received a hearing dog — Money Penney, a variant of the James Bond fictional character Jane Moneypenny — from Canine Hearings Companions.
Respondents submit an affidavit from Ms. Schatz's doctor, Dr. Susan S. Friess, to substantiate her disability. Dr. Friess is a clinical diagnostic audiologist. She contends that she evaluated Ms. Schatz's hearing and performed an audiogram in June 2006. Dr. Friess compared her findings with other audiological assessments performed earlier by Dr. Scheer and Dr. Barbra Gussman. Dr. Scheer, the clinical audiologist, performed the first audiogram on Ms. Schatz. Dr. Gussman, a clinical audiologist, conducted the second audiogram on Ms. Schatz. Dr. Scheer's testing and report, which Dr. Friess evaluated, revealed that Ms. Schatz has severe hearing loss in both ears. She cannot hear at sound levels below 90-95 decibels; normal hearing is at 0-20 decibels. At 95 decibels, most people cannot function well even with hearing aids. Dr. Friess states that according to Dr. Gussman's report, Ms. Schatz has nerve damage to her ears. Removing wax or performing surgery will not improve her hearing. Dr. Gussman's evaluation revealed that Ms. Schatz's hearing loss is severe. Based on Dr. Gussman's report, Dr. Friess believes that Ms. Schatz cannot hear everyday sounds. Ms. Schatz hears sounds at a whisper level.
In Dr. Friess's opinion, as conveyed in her affidavit, Ms. Schatz's ability to have conversations with others is limited. Ms. Schatz hears less than 40 percent of words. Hearing aids have not significantly helped her. Hearing aids increase the volume level of sound but not her ability to understand the sound she hears. For example, Dr. Friess says, Ms. Schatz will see a fire truck coming down the street, but she cannot hear the siren. Dr. Friess explained that she retested Ms. Schatz after six months. Dr. Friess determined that hearing aids are not helping Ms. Schatz significantly. Hearing aids help her only for "simple conversation, in a quiet room, face to face with the speaker." She found that Ms. Schatz's hearing in her left ear remained the same, whereas her hearing in her right ear diminished. (Dr. Friess's Affidavit at ¶ 14.)
In her expert medical opinion, Dr. Friess believes that Ms. Schatz cannot be gainfully employed even with hearing aids. Dr. Friess contends that Ms. Schatz "cannot be employed where there is a requirement that Ms. Schatz interact with others." (Dr. Friess's Affidavit at ¶ 15.) Dr. Friess notes that Ms. Schatz's "ability to understand conversation, even at close proximity makes it near impossible for her to be involved in any job that involves speaking with other people." ( Id.) Dr. Friess concludes that Ms. Schatz's "inability to discriminate sounds and the concomitant inability to understand conversation makes it virtually impossible for her to maintain any type of gainful employment that involves other people." ( Id. at ¶ 16.)
Dr. Karen Hopenwasser, Ms. Schatz's psychiatrist, agrees with Dr. Friess's assessment that Ms. Schatz cannot be gainfully employed. Dr. Hopenwasser testified at DHR about Ms. Schatz's employment possibility; respondents include that testimony with their motion. Dr. Hopenwasser explained at the hearing that Ms. Schatz's hearing impairment "has been a factor in employment difficulties and is a contributing factor to her being unable to be employed at this point." ( See Exhibit C, Hopenwasser Transcript, at 341, lines 21-24.) Dr. Hopenwasser testified that Ms. Schatz's difficulty in hearing people, like customers in the business world, is extremely stressful to Ms. Schatz. In Dr. Hopenwasser's opinion, individuals with a disability who are over 55-years-old find it difficult to be "retrained and have new employment." ( Id. at 343, lines 13-14.) When an individual has a disability, the person's age "compounds that problem." ( Id. at line 17.)
In her affidavit, Ms. Schatz states that she has been receiving treatment and prescription medication from Dr. Hopenwasser for anxiety and depression.
Ms. Schatz also suffers from thyroid cancer. Surgeons have removed her thyroid gland. She has provided a copy of the pathology report from Beth Israel Medical Center; the report states that she had a "total thyroidectomy": On or about March 7, 2008, doctors removed a papillary carcinoma of her thyroid. (Respondents' Exhibit O.) She has undergone iodine radiation treatment. Respondents state that if this court denies their summary-judgment motion, they will seek leave to amend their answer to include her thyroid-cancer condition.
III.Conclusions of Law
A.Motion for Summary Judgment
Ms. Schatz has produced admissible evidence proving that no triable issues of fact exist. On a motion for summary judgment, the movant must give the court admissible evidence sufficient to demonstrate an absence of any triable issues of fact, thereby demonstrating entitlement to judgment as a matter of law. ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; but cf. Borg v Santos , 17 Misc 3d 472 , 478 [Hous Part, Civ Ct, Kings County 2007] [denying tenant's summary-judgment motion because her proof, without any corroborating information, did not definitively establish that she was a disabled person under RSC § 2520.6 (q)].) In Borg v Santos, the tenant submitted an uncertified printout indicating that she was a "disabled individual" who received Social Security Income benefits. ( 17 Misc 3d at 475.) The Borg court held that "[d]espite the more stringent' standards of the SSA [Social Security Act] than the RSC regarding . . . disabled' . . . this court is not prepared to accept as a fait accompli an uncertified printout, without more, as a basis to deny the petitioner an opportunity to legally recover his premises when the respondent's lease expired." ( Id. at 478.) Unlike the tenant in Borg, Ms. Schatz, the moving party, has presented admissible evidence to demonstrate the absence of triable fact issues. She has offered corroborating information — an affidavit from Dr. Friess, transcripts from DHR, and medical records — to substantiate her disability.
Petitioner, the nonmoving party, has not produced any proof in admissible form to establish triable issues of fact warranting a trial. To defeat a summary-judgment motion, the nonmoving party must produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial. ( Zuckerman v City of New York, 49 NY2d 557, 562.) Affidavits, transcripts of examinations before trial, and hearing transcripts are admissible proof. ( Id.) Insufficient for the nonmoving party are "mere conclusions, expressions of hope or unsubstantiated allegations." ( Id.) Petitioner has not offered an affidavit from a medical expert that Ms. Schatz might not be disabled. Petitioner argues in conclusory form that a trial is needed because the proof that Ms. Schatz is disabled is solely in her possession. Petitioner expresses his hope that, at trial, he will show that Ms. Schatz is not disabled. Petitioner's conclusions and expressions of hope are not enough to defeat Ms. Schatz's summary-judgment motion. The court must accept Ms. Schatz's facts as she presents them.
Petitioner has not moved for disclosure to inquire into her disability. ( Cf. Toa Construction Co. v Tsitsires , 4 AD3d 141 , 142 [1st Dept 2003 mem] [allowing landlord to obtain disclosure to learn about tenant's alleged disability].) Given the lengthy history of Ms. Schatz's case in the Housing Part and the hearing at DHR, petitioner had ample opportunity to move for disclosure. Petitioner knows how Ms. Schatz would testify at trial — petitioner heard her testimony at DHR. Given that petitioner has not sought disclosure, he may not argue now that he requires a trial to disprove Ms. Schatz's disability — a disability solely within her ken, according to petitioner.
Nor has petitioner controverted Ms. Schatz's claims that she is disabled. ( Cf. Mandell v Cummins, 2001 NY Slip Op 40103(U), 2001 WL 968362, 2001 NY Misc Lexis 479 [Hous Part, Civ Ct, NY County 2001] [denying petitioner's motion to dismiss respondent's affirmative defense that respondent's gay life partner was disabled under RSC because petitioner had not opposed respondent's evidence].) In Mandell v Cummins, respondent asserted that his life partner suffered from AIDS, Kaposi's sarcoma, multiple myeloma, bipolar depression, cervical spine plasmacytoma, and severe back pain; respondent submitted an affidavit from his partner's physician. ( See id. at *3, 2001 WL 968362, at *2, 2001 NY Misc Lexis 479, at *3.) Because the petitioner had not "controverted these claims," the court granted the petitioner's request for disclosure to determine the "extent of . . . [the] alleged disability." ( Id., 2001 WL 968362, at *2, 2001 NY Misc Lexis 479, at *3.) Here, petitioner did not submit affidavits from medical experts to controvert Ms. Schatz's claims. Petitioner has asserted that an economics expert would determine whether Ms. Schatz can be employed, but petitioner has not provided an affidavit to that effect. Because petitioner has not controverted Ms. Schatz's claims and conclusions at this preliminary summary-judgment stage, petitioner is now precluded from doing so.
B.Ms. Schatz's disability
The court concludes based on sound medical evidence that Ms. Schatz is disabled under the Rent Stabilization Code because she is hard of hearing and suffers from type II diabetes. Her impairments result from an anatomical and physiological condition, and her impairments are permanent. Considering her age, education, and work experience, her impairments prevent her from engaging in any substantial, gainful employment. No material issue of fact warrant a trial. Respondents' motion for summary judgment is granted.
Petitioner may not refuse to offer a renewal lease to respondent, "a . . . disabled person, . . . unless the owner offers to provide and, if requested, provides an equivalent or superior housing accommodation at the same or lower regulated rent in a closely proximate area." (RSC [ 9 NYCRR] § 2524.4 [a] [2].) Under the RSC, a disabled tenant is
"a person who has an impairment which results from anatomical, physiological or psychological conditions, other than addiction to alcohol, gambling, or any controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques, and which are expected to be permanent and which prevent such person from engaging in any substantial gainful employment." ( Id. at § 2520.6 [q].)
Courts have had difficulty defining whether an impairment prevents a person from engaging in "any substantial gainful employment" under the Rent Stabilization Law. Courts have therefore looked to the Social Security Act (SSA) for guidance. ( See e.g. Caruso v Russell P. Lefrois Builders, Inc., 217 AD2d 256 [4th Dept 1995]; Gogu v Ely, 152 Misc 2d 169 [Hous Part, Civ Ct, Queens County 1991].) The SSA defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." ( 42 USC § 423 [d] [1] [A].) Applicants for Social Security benefits must establish that they are unable to obtain any other kind of substantial, gainful employment in the national economy, considering their age, education, and work experience. ( Id. at 423 [d] [2] [A].)
Ms. Schatz's impairments prevent her from engaging in any substantial, gainful employment. ( See Caruso, 217 AD2d at 259 [finding that tenant's "opportunities for reemployment [after falling from a ladder] are minimal to nonexistent"]; Gogu, 152 Misc 2d at 171 [holding, after trial, that tenant was disabled — limited intellectual capacity — under both RSC and SSA and finding that her disability prevented her from engaging in substantial, gainful employment].) In Caruso, the Appellate Division, Fourth Department, found that the tenant could not be gainfully employed: "[L]ittle likelihood of improvement with further treatment [exists for tenant]. Plaintiff [tenant] has not been able to return to work and will require psychological and psychiatric treatment along with physical and pain management therapy for the rest of his life." ( 217 AD2d at 259.) In Gogu, likewise, the court noted that "[i]t is not inconceivable that Respondent [tenant] could continue to hold the same position at the school cafeteria for the rest of her life due to her limited capacity." ( Id. at 170.) The Gogu court also noted that although the tenant had a driver's license, traveling would be "impeded by her limited ability to follow directions." ( Id.) The Gogu court determined that the term "disability" within the RSC's meaning "mirrors the concept focused in the Social Security Act." ( Id.) The court found that tenant's condition is "a mental impairment of substantial duration" under the SSA. ( Id.)
The RSC protects disabled persons from eviction. Owners may recover an apartment for their or family's use, but not if it puts disabled persons in jeopardy of losing their homes. ( See e.g. Budhu v Grasso, 125 Misc 2d 284, 287 [Hous Part, Civ Ct, Queens County 1984] [" Eviction is a serious hardship for . . . the disabled. Moving . . . may be nearly impossible for the disabled."'], quoting New York State Assembly Memorandum in support of legislation.) The RSC "would not prevent a landlord from obtaining an apartment, but would merely bar him from doing so at the expense of . . . disabled persons.'" ( Id., quoting New York State Assembly Memorandum in support of legislation].)
Ms. Schatz's impairments — hard of hearing and type II diabetes — result from anatomical or physiological conditions, and her impairments are permanent. She demonstrated these impairments through medically acceptable clinical and laboratory diagnostic techniques. In 1983, Dr. Scheer's diagnosis was that Ms. Schatz's hearing loss was inoperable; she has degenerative cells in the cochlear. Dr. Friess avers that Ms. Schatz has severe hearing loss in both ears; Ms. Schatz has nerve damage to her ears. Removing wax or performing surgery will not improve her hearing. Her condition is genetic — her mother was deaf. Ms. Schatz's hearing has diminished over time. She used to wear one hearing aid in one ear; now she wears powerful hearing aids in both ears. In 1983, Dr. Scheer's diagnosis was that Ms. Schatz will be totally deaf. Also in 1993, Ms. Schatz was diagnosed with type II, adult onset, diabetes. Ms. Schatz is insulin dependent. Her type II diabetes is expected to be permanent.
Given Ms. Schatz's age, experience, and education, her impairments prevent her from engaging in substantial and gainful employment. Like the tenants in Caruso and Gogu, Ms. Schatz's impairment will not improve, and her opportunities for reemployment are minimal to nonexistent. Ms. Schatz is over 60 years old. She attended the Fashion Institute of Technology; she worked in the fashion industry for many years; she worked on the Ralph Lauren and Maximillian fur lines. Because of her hearing impairment and her type II diabetes, she was having difficulty communicating with clients and coping with her environment. She opened two businesses that she eventually closed. She has not be able to return to work since 1994. She has not led a normal life at home, let alone in the workforce. Ms. Schatz cannot hear the telephone or doorbell ring. She cannot hear voices above a whisper. She cannot travel by herself. Her hearing-assistance dog guides her when she travels.
Dr. Friess and Dr. Hopenwasser both agree that Ms. Schatz's impairments prevent her from engaging in substantial gainful employment. Her hearing impairment has caused much stress in her life. According to Dr. Hopenwasser, her hearing "has been a factor in employment difficulties and is a contributing factor to her being unable to be employed at this point." ( See Exhibit C, Hopenwasser Transcript, at 341, lines 21-24.) In Dr. Hopenwasser's opinion, individuals — like Ms. Schatz — who are disabled and over 55-years-old have difficulty being retrained and employed. She cannot work in an environment where she would be required to speak with other people. Few are the jobs in which employees will not interact with others, unless the employee works from home.
No evidence exists, as petitioner asserts, to suggest that Ms. Schatz left the workforce voluntarily. Ms. Schatz has attempted in good faith to obtain alternative employment. When she could no longer work in the fashion industry because of her hearing, she started her own fashion-design store. Because her hearing was impeding her work, she closed her business and started a small jewelry store. When she could no longer work with customers, she closed her jewelry store. She tried to reeducate herself: She took classes at the Learning Annex and knitting classes. Because she could not hear her instructors, she stopped taking classes. Ms. Schatz left the workplace because she could no longer hear.
Also irrelevant is that Ms. Schatz has not learned sign language. Petitioner contends that Ms. Schatz has made little effort in retraining. Petitioner suggests that if only Ms. Schatz knew sign language, she would be employed. But if Ms. Schatz knew sign language, she could communicate only with someone who knows sign language. The court cannot hold it against Ms. Schatz that she does not know sign language. To require an ability to sign would impose on her the requirement that she work in an environment where her colleagues and customers know sign language. That requirement would exceed the test that for people not to be considered disabled, they be able to secure substantial and gainful employment in the national economy.
No correlation exists, moreover, between Ms. Schatz's spouse's ability to support her financially and that Ms. Schatz is no longer working. Merely suggesting, as petitioner does, that Ms. Schatz's husband is economically stable is insufficient to controvert Ms. Schatz's assertion that she is disabled. The RSC does not provide an exception to a disabled person who relies on a spouse for assistance. The court may not penalize Ms. Schatz for being fortunate enough to have a spouse who can, does, and will provide for her in sickness and in health.
The court will not reach whether Ms. Schatz's cancer condition will improve. Petitioner asserts that given the size of Ms. Schatz's tumor and the recovery rate — 100 percent — Ms. Schatz is not disabled. The court has already found Ms. Schatz is hard of hearing with type II diabetes. No need arises for this court to allow Ms. Schatz to amend her answer to include her cancer condition. The issue is academic.
Petitioner may not recover Ms. Schatz's apartment for his personal use. Doing so would cause Ms. Schatz — a disabled person — to lose her home. Petitioner may, perhaps, obtain another apartment in the subject building, but not Ms. Schatz's apartment.
Respondents' motion for summary judgment is granted. Petitioner has 30 days to offer respondents "an equivalent or superior housing accommodation at the same or lower regulated rent in a closely proximate area." (RSC [9 NYCRR] § t 2524.4 [a] [2].) If petitioner makes this offer within 30 days, this proceeding will be adjourned for all purposes, including a trial. If petitioner does not make this offer within 30 days, this proceeding will be dismissed. The 30-day period begins after service of this decision and order with notice of entry.
This opinion is the court's decision and order.