Scott E. Mollen

Landlord-Tenant - Emotional Support Dog –Landlord Constructively Denied Tenant’s Request for Reasonable Accommodation in Violation of Fair Housing Act—Landlord’s Attorney Must Appear For Limited Deposition—Attorney Client and Work Product Privileges

This decision involved an apartment building’s no-dog rule. A rent controlled tenant, has “end-stage renal disease and depression” and had twice requested “permission to keep an emotional support dog in his home.” The first request was made in June 2015. A second request was made in June 2017 for a second dog after his first dog had died.

With respect to his 2017 request, the tenant submitted a doctor’s letter, which “confirmed that he received hemodialysis at home five times a week…and a letter from his therapist, noting that refusing the request for an emotional support dog would ‘be a serious threat to his health and his life.’”

The defendant landlord had asked the tenant to provide additional medical records and history, including, but not limited to “medical management provided, tests conducted with their results, glomerular filtration rate, MRI, CT scan, ultrasound, or contrast x-rays and mental health therapist session notes.” The landlord reserved its right to require that the tenant be examined by a doctor identified by the landlord and to have the tenant’s doctors and mental health provider submit to a deposition.

The tenant viewed such requests as “unduly burdensome and unreasonable given the Fair Housing Act’s (FHA) rule regarding reasonable accommodation, (USC §§3601),” and had complained to the U.S. Dept. of Housing and Urban Development (HUD). HUD determined that the landlord had “constructively denied” the tenant’s “requests for reasonable accommodation in violation of the FHA,” and commenced the subject litigation.

HUD charged the landlord with “failing to provide a reasonable accommodation,” intentional discrimination based on the tenant’s disability and unlawful interference with the tenant’s rights under the FHA and/or retaliation for the tenant having exercised his rights under the FHA. Concurrently with the subject lawsuit, the landlord pursued eviction proceedings against the tenant for violating the building’s no-dog rule.

The court addressed HUD’s motion to compel the landlord’s attorney to produce “relevant documents and appear for a deposition” and the landlord’s cross-motion for a protective order precluding the deposition.

The landlord’s attorney did not merely draft a letter for his client’s signature. He had drafted and sent a letter to the tenant that demanded detailed medical records and information allegedly needed to evaluate the request for accommodation. Additionally, the landlord identified its attorney and a landlord’s representative (representative) as “two people who received and/or participated in reviewing and responding to (tenant’s) two reasonable accommodation requests.” The representative asserted that he did not review the tenant’s medical information and that it was the landlord’s attorney who drafted the letters requesting additional medical information and who could “provide the reason behind the demands in the letters.”

The landlord objected to the request to depose its attorney, claiming that its attorney’s responses are “protected by the attorney-client privilege and/or attorney work product doctrine.” HUD countered that there’s no privilege that attaches “to the information sought and/or that any privilege has been waived” because “(landlord) relied on its counsel to make decisions about how best to respond to (tenant’s) request for accommodation.”

The court explained "the attorney-client privilege protects communications between a client and its attorney for the purpose of obtaining or providing legal assistance and advice provided those communications were intended to be and were kept confidential…. Privilege is narrowly construed because it renders relevant information undiscoverable…. Work product protection shields from discovery ‘documents and tangible things that are prepared in anticipation of litigation or for trial.’…. The protection ‘shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case’…. An attorney’s mental impressions, legal theories, and fact work product are protected under this doctrine…. When an attorney is given de facto decision-making power by a business, no privilege attaches to information and communications concerning those business decisions…. Additionally, a party cannot resist disclosure if it relies on privileged communications in support of a claim or defense. Reliance on advice of counsel as a defense constitutes a waiver of privilege with respect to the advice received.

The representative had not provided a rationale for asking for the additional medical information nor had explained why the additional information was necessary to evaluate the tenant’s request. The representative had testified that “you would have to ask my attorney.” There was also an issue as to how much information had already been provided to the landlord and based on the representative’s testimony, apparently only the landlord’s attorney could provide such information."

The court found that although the landlord’s representative reviewed the request for verification, he had relied on landlord’s attorney to determine and describe “the scope of the medical information needed to respond to (tenant’s) reasonable accommodation request, rendering (landlord’s attorney) a co-decision maker with (landlord’s representative).” Thus, the court found that the landlord “waived any applicable privilege with respect to certain information related to the responses to (tenant’s) accommodation request.”

The court also held that the work product privilege was inapplicable, since the landlord had to respond to the tenant’s request for reasonable accommodation “regardless of any litigation.”

Based on “the presumption disfavoring attorney depositions and the complexities that arise from questioning defense counsel,” the court limited HUD’s deposition of the landlord’s attorney to questions concerning medical information about the tenant which was known to the landlord’s attorney at the time he wrote the two letters requesting additional medical information, identification of medical documents that had been conveyed to the representative before finalizing each of the aforementioned letters, specific questions that the landlord had following review of the medical information already in its possession that, if answered, would permit it to determine whether the tenant had a physical or mental impairment which “substantially limited one or more life activities,” why the landlord believed its letters to the tenant were “tailored to ascertain his medical or emotional symptoms alleviated by keeping his dog and/or the assistance provided by the dog (and/or what the medical information already in (landlord’s) possession did not allow it to ascertain (tenant’s) symptoms that were alleviated by keeping his dog),” and whether the landlord would concede that any information requested was “extraneous” to determining whether the tenant had a disability at the time of the accommodation request and that the dog provided “some type of disability-related assistance or emotional support.”

The court barred HUD from asking questions about the landlord’s “legal strategy, communications about legal strategy behind the two letters, or details about the communications between (representative) and (landlord’s attorney) concerning any prior drafts of the letters, applicable legal standards under the FHA and state law, or how the two letters would meet satisfy legal standards.” The court emphasized that the deposition should “seek factual information and final rationales/decisions of (landlord) only.”

Accordingly, HUD’s motion to compel discovery was granted subject to the aforementioned limitations and landlord’s cross-motion for a protective order was denied. Furthermore, if the landlord believes that any particular communication retained “a privilege despite this ruling,” the landlord was directed to “confer with and provide a privilege log to the government.”

Comment: Is it possible that the landlord’s refusal to consent to the tenant’s request for an emotional support dog was partially motivated by the fact that the tenant lived in a rent-controlled apartment that was located in a highly desirable neighborhood? The possibility of “recapturing” a rent controlled apartment that could thereafter be rented for a much higher fair market rent leads some landlords to make “life difficult” for their rent control tenants.

U.S. v. 111 E. 88th Partners, U.S. District Court, S.D.N.Y., Case No. 16-cv-9466, decided Sept. 20, 2018, Parker, J.

Landlord Tenant—Landlord May Not Collect Rent When Building Lacked a Certificate of Occupancy—Appellate Division First Department Case Law Inapplicable Based on Second Department Precedent

A tenant had appeared, unrepresented, in a non-payment proceeding and had signed a stipulation which included a final judgment of possession. After the tenant retained counsel, she moved to vacate the judgment and warrant. She alleged that the subject building lacked a certificate of occupancy (CO).

The court granted the tenant’s motion based on documentation that demonstrated that the building lacked a CO and case law from the Appellate Division, Second Department (Second Department), which “forbids a landlord from collecting rent without a proper CO.” Decisional precedent supports “vacatur of a stipulation when an unrepresented party waives a defense.”

The landlord argued that the tenant had waived her defenses by signing a stipulation which embodied a clause which provided that the parties understood that “they have a right to a trial but instead agree that they want to settle the proceeding.” The stipulation did not specify that the tenant “waived any defenses.” The court explained that even if it had provided that the tenant waived defenses, “an unrepresented party cannot waive a defense of which she is unaware, since waiver is ‘the voluntary abandonment or relinquishment of a known right.’”

The landlord further argued that lack of a CO is not a defense, since case law only permits Multiple Dwelling Law (MDL) §302 “as a defense to payment of rent if the purported ‘illegal’ use adversely impacted the building’s structure and the health and safety of the tenants.” The landlord cited case law from the Appellate Division, First Department (First Department) in support of its argument.

The subject building is located within the Second Department. A Second Department case cited the public policy which was reflected in MDL §302, with respect to concerns as to “proper housing standards requiring sufficient light, air, sanitation and protection from fire hazards” that are “essential to the public welfare”.

The Second Department case had explained, inter alia, that the “Legislature… decided to cast upon the owner the obligation to ensure compliance by expressly depriving the owner from any entitlement to rent or other renumeration in the absence of a certificate of occupancy.” The Second Department further stated that with the exception of a situation where a tenant interferes with the owner’s attempt to legalize the premises, “it would be inconsistent with the Legislature’s command to shift this burden by estopping the tenant from relying on this statute as a defense.” Here, there was no evidence that the tenant ever prevented the Landlord from obtaining a CO.

The landlord cited a trial court decision from Staten Island for the “proposition that a literal application of MDL Sec. 302 should be abandoned in favor of equitable considerations in order to prevent unjust enrichment of a tenant.” Since the subject tenant had not prevented the landlord from obtaining the CO and the landlord relied on inapplicable First Department case law, the court dismissed the nonpayment proceeding.

The court further explained that since the registration and (CO) requirements of the MDL furthered “the public interest in the safety of buildings and their tenants, tenant’s implicit waiver, in the stipulation, of the benefit of these statutes cannot be given effect.” Finally, the court rejected the landlord’s argument that since the information about the CO was “easily obtainable,” the tenant should be permitted to waive her defense.

Cashew Holdings v. Thorpe-Poyser, Civil Court, Queens Co., Case No. 81461/16, decided Sept. 21, 2018, Kullas, J.

Landlord-Tenant—Although Documentation Requirements Were Relaxed Under DHCR’s Operational Bulletin 95-2, Landlords Still Must Establish Substantial Rehabilitation by Adequate Documentation—Counsel Criticized for Failing to Cite Adverse Authority

A tenant had appealed from an order of the Civil Court which granted a landlord’s motion for summary judgment of possession in a holdover summary proceeding. The landlord claimed that the subject apartment was exempt from rent stabilization due to a building’s “substantial rehabilitation.” The Appellate Term (court) held that there were issues of fact as to whether 75 percent of “the building-wide and apartments” were totally replaced under DHCR’s substantial rehabilitation criteria.

The holdover proceeding was based on allegations that the building was exempt from rent stabilization “due to a substantial rehabilitation of the…apartment building after January 1, 1974.” The court held that the issues were not “susceptible to summary disposition.”

The landlord’s evidence failed to establish, as a matter of law, that at least 75 percent of the building-wide and apartment systems had been totally replaced, in accordance with the “substantial rehabilitation criteria of DHCR’s Operational Bulletin 95-2.” The landlord had owned the building in the mid-1980s, “when the work was allegedly performed.” The landlord allegedly retained “no evidence of the rehabilitation, such as invoices, receipts or photographs, and relied in large part upon documents in public files.” The landlord’s contractor “also professed to have no records or independent recollection of the work.”

The court explained that although Operational Bulletin 95-2 does provide for relaxation of documentation requirements in situations where, as here, “the rehabilitation was performed prior to the implementation of the Operation Bulletin, the landlord is not relieved of the burden to establish, through adequate documentation, that substantial rehabilitation has taken place.”

The tenant raised triable issues of fact by submitting “an affidavit and report of an architect who inspected the building and six of the twelve apartments therein, and concluded, inter alia, that the plumbing in the building above the first floor; the supply lines, meters and electrical wiring; and the roof, fire escapes and interior stairways all appear to be original.”

Additionally, the court expressed its “disapproval of the failure of landlord’s attorney to cite adverse authority.” It noted that such failure was “especially glaring in this case since counsel represented the same landlord in a prior appeal before this Court, which addressed the same issues and involved similar, if not identical facts…, and, unless and until overruled or disagreed with by this court, is ‘controlling’ authority that counsel was obligated to bring to the attention of this court.”

WFCC Realty v. Lin, App. Term, 1st Dept., Case No. 570100/18, decided Oct. 4, 2018, Ling-Cohan, J.P., Gonzalez, Cooper, JJ.



Scott E. Mollen is a partner at Herrick, Feinstein.