Comm'n on Human Rights (Orlic) v. T. K. Management, Inc.
OATH Index No. 721/05 (Apr. 14, 2005), aff'd, Comm'n Dec. (May 26, 2005), appended, aff’d sub nom, T.K. Management v. Gatling, NYLJ, Nov. 2, 2005, at 19, col. 2 (Sup. Ct. N.Y. Co. )
On remand, ALJ found that elderly complainant in human rights action was able to return to his residence, despite lengthy stays in nursing home. The requested relief of an order that the owner erect a ramp is not moot.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
COMMISSION ON HUMAN RIGHTS, EX REL.
LIVIO ORLIC ON BEHALF OF JOSIP ORLIC
Petitioner
- against -
T. K. MANAGEMENT, INC., TOM KOURKOUMELIS,
K&CBUILDING - 35, LLC
Respondents
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REPORT AND RECOMMENDATION
JOHN B. SPOONER, Administrative Law Judge
This proceeding has been referred to me on remand from the New York State Supreme Court. The case concerns a complaint originally filed in 1999 by Livio Orlic, on behalf of his father Josip Orlic, a resident of 28-08 35th Street, in Queens, New York. After a hearing, another judge of this tribunal recommended a finding that no human rights violations had occurred. Comm'n on Human Rights (Orlic) v. T. K. Management, Inc., OATH Index No. 1291/03 (Oct. 27, 2003). This recommendation was rejected by the City Commission on Human Rights (the "Commission") in a decision dated May 4, 2004. Upon an Article 78 review of that order, and upon the request of the Commission, the New York State Supreme Court remanded the case to the Commission for an additional hearing and decision, to be completed within 60 days. The hearing was required to address "the issue of complainant Josip Orlic's ability to return to and reside in the building."
After conducting a hearing, I find that Mr. Orlic is able to return to the building.
ANALYSIS
The complaint in this matter alleged that building management discriminated against Mr. Orlic by refusing to provide a reasonable accommodation for his disability, which consisted of an inability to enter and exit the building with his wheelchair. A hearing was conducted before another judge of this tribunal on June 11, 12, and 13, and July 17, 2003. In her written report and recommendation, issued on October 27, 2003, Judge Suzanne Christen concluded that the building owners had established that forcing them to install a ramp to accommodate Mr. Orlic would be an undue financial hardship and therefore recommended that the complaint be dismissed. Comm'n on Human Rights (Orlic) v. T. K. Management, Inc., OATH Index No. 1291/03 (Oct. 27, 2003).
On May 3, 2004, the Commission issued an order reversing Judge Christen, finding that the owner's proof of an undue financial hardship was inadequate and that the owner had discriminated against Mr. Orlic by refusing to construct a ramp. Nevertheless, the Commission held that, due to Mr. Orlic's recent relocation to a nursing home, the issue of ordering the owner to construct a ramp was "moot" in that the complainant "no longer resides at the building." Comm'n on Human Rights v. T. K. Management, Inc., Comm'n Decision and Order (May 3, 2004). The complainant filed an Article 78 petition in State Supreme Court, contending that the Commission lacked a legal and factual basis for its mootness decision. In that proceeding, the Commission sent the complainant a letter stating that it was re-opening the matter for a hearing to determine "whether Mr. Orlic's medical condition would permit him to return and reside in the apartment in the subject building." On January 12, 2005, State Supreme Court Justice Orin R. Kitzes issued an order remanding the case for a hearing and decision within 60 days upon the issue of whether Mr. Orlic could return to the building. Orlic v. Gatling, Index No. 13595-2004, Order (Sup. Ct. Queens Co. Jan. 12, 2005).
On remand, the hearing was conducted before me on March 9 and 22, 2005. The Commission called Dr. Michael Plokamakis, Josip Orlic's treating pulmonologist. Dr. Plokamakis testified that Mr. Orlic is 88 years old, diabetic, hypertensive, partially paralyzed on his left side, and has mild memory loss. He is currently staying at the New YorkCenter for Rehabilitation and is confined to a wheelchair, following a stroke approximately one year ago. Dr. Plokamakis stated that Mr. Orlic was able to return to his home with the assistance of a home attendant to dress, wash, and feed him on or about June 1, 2004, (Tr. 23-25, 31). Dr. Plokamakis stated that, on March 3, 2005, Mr. Orlic was admitted to the hospital with violent vomiting due to an infection. Dr. Plokamakis anticipated that Mr. Orlic's most recent infection would be treated successfully and that he would be able to return home soon (Tr. 27, 40).
Mr. Orlic's 81-year-old wife, Dinka Orlic, testified that she is currently spending about six to seven hours per day visiting and caring for her husband at the nursing home (Tr. 73). She believes that having her husband back home would make it much easier for her to manage his care (Tr. 77). She stated that she anticipates being able to care for her husband at home, as she did before January 2004 when he had his second stroke (Tr. 78). She did indicate that she needs assistance to transfer Mr. Orlic from the wheelchair to his bed and also to help him get dressed. She stated that, if Mr. Orlic were to fall down, she would be unable to get him up by herself (Tr. 80-83).
Respondent had intended to call its own expert, Dr. Akpinar, to testify that, in his view, moving Mr. Orlic from the nursing home back to his apartment would be detrimental to his health. However, Dr. Akpinar twice failed to appear for the scheduled hearing due to alleged conflicts in his schedule. Upon a request from respondent's attorney, the first scheduled appearance was adjourned from March 22 to March 31 due to the doctor's professed need to attend a meeting in California. The new date was marked final by this tribunal and respondent's attorney confirmed that the doctor would attend. On March 29, 2005, Dr. Akpinar again announced to respondent's attorney that he would be unavailable on March 31 due to another meeting and the attorney sought yet another six-day adjournment. This motion was denied in part because the grounds were identical to those for which the previous nine-day adjournment of the witness's testimony had been granted and in part because granting the motion would have made it difficult to complete the hearing and decision within the 60-day time limit. After the adjournment motion was denied, respondent rested without calling any witnesses.
As a preliminary matter, there can be little doubt that respondent's inability to present the testimony of their expert resulted in no prejudice to them. As summarized in a letter attached as exhibit 5 to respondent's post-hearing brief,[1] Dr. Akpinar, a doctor of dentistry with a specialty in "craniomandibular pain," had never examined Mr. Orlic and had only reviewed Mr. Orlic's medical records. His view that Mr. Orlic's welfare might be threatened by moving him from a nursing home facility back to the apartment where he and his wife have resided for 28 years is of marginal weight in determining the issue of whether Mr. Orlic was able to return to the apartment. Far greater deference must be given to the opinion of Mr. Orlic's treating doctor, who stated unequivocally that there was no medical need for Mr. Orlic to remain in the nursing home and no medical prohibition against his returning home. Furthermore, Mrs. Orlic made it clear that Mr. Orlic's family wished to bring him home to the Queens apartment.
Thus, as a factual matter, the uncontroverted evidence established that there was no medical reason preventing Mr. Orlic from returning to his apartment at the premises. In addition, I credited the testimony of Mrs. Orlic indicating that, assuming Mr. Orlic's condition did not deteriorate, Mr. Orlic's family intended to bring Mr. Orlic home to his and his wife's apartment once a ramp was installed. I found it plausible that at least one major reason not to bring Mr. Orlic back to the premises was due to the absence of a ramp, since it was clear that without a ramp Mrs. Orlic could not get her husband in and out of the building without additional help.
The testimony of Mrs. Orlic suggested quite credibly that the quandary facing the Orlic family was not unlike that faced by many families coping with the incapacity of an elderly family member. On the one hand, admitting Mr. Orlic to a nursing home would offer the advantage of 24-hour professional nursing care, at the possible sacrifice of his and his wife's emotional well-being. On the other hand, caring for Mr. Orlic at home would offer greater emotional security but also place a greater burden on Mr. Orlic's elderly spouse. In balancing these factors, the Orlic family expressed a desire to have Mr. Orlic home because that is the preference of Mrs. Orlic, who visits him daily and tries to assist in his care even when he is in a nursing home.
There are important policy reasons to order the installation of a ramp based upon these facts. As argued forcefully by complainant's attorneys, once a determination has been made sustaining a complaint of unlawful housing discrimination by failing to make a reasonable accommodation for a disabled resident, an order ending the discrimination and ordering the accommodation to be made should issue. If an exception is to be made that the complainant's current medical condition renders the action moot, it should be only on convincing proof that a decision on the claim "will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future." Community Housing Trust v. Dep't of Consumer and Regulatory Affairs, 257 F. Supp. 2d 208, 218 (D.C. Dist. Ct. 2003). The party asserting mootness generally "bears a heavy burden" of showing that the requirements have been met. Id. Such proof is lacking in this case. At most, the matrix of concerns and contingencies implicit in the Orlics' decision-making process about how to care for Mr. Orlic left some doubt whether Mr. Orlic would be moved back to the premises, even were the ramp to be installed. However, this absence of absolute certainty should not preclude a finding that Mr. Orlic is able to return home to his apartment and is entitled to relief from the discrimination found to have occurred when the accommodation of the ramp was refused.
It is true that, as argued by complainants' attorneys, many disabled complainants suffer from conditions requiring them to be hospitalized with some frequency. It seems unlikely that the Commission intended to permit a discriminating landlord to continue an illegal denial of access whenever a complaining resident may be hospitalized. To do so would thwart the intent of the statute and provide an incentive for building owners to delay the resolution of the discrimination complaint in the hope that, at some point, a complainant may be hospitalized, averting any possibility that past acts of discrimination would be punished or remediated.
Finally, the request by complainant's attorneys for reimbursement of $350 for the costs of copying Mr. Orlic's medical records should be granted. Although I denied this relief during the trial, indicating that it was beyond this tribunal's authority to provide, upon reflection I find that reimbursement is both appropriate and within the power of this tribunal to assess. As pointed out by complainant's counsel, in New York state courts, the costs of discovery in civil cases are generally borne by the party seeking discovery unless otherwise agreed upon. See, generally,Schroeder v. Centro Pariso Tropical, 233 A.D.2d 314, 315, 649 N.Y.S.2d 820, 821 (2d Dep't 1996); Rubin v. Alamo Rent-A-Car, 90 A.D.2d 661, 663, 593 N.Y.S.2d 284, 286 (2d Dep't 1993); Rosado v. Mercedes-Benz of North America, Inc., 103 A.D.2d 395, 398, 480 N.Y.S.2d 124, 126 (2d Dep't 1984); 48 RCNY §1-33. The $350 fee in this case was, according to complainants, a copying fee charged by the hospital to anyone who requested photocopies of medical records. The fact that complainant's counsel delivered these copied documents in discovery prior to notifying respondent's counsel of the fee does not remove respondent's obligation to pay, since it was reasonable for complainant's attorneys to provide the discovery as expeditiously as possible, given the need for Mr. Orlic to approve the release of the records and the tight time constraints of the hearing, and assume that they would be reimbursed for any copying fees assessed by the hospital. See 48 RCNY §1-33(e) (discovery may be granted upon conditions, including "payment by one party to another of stated expenses of the discovery"). For these reasons, complainant's request for the $350 out-of-pocket cost of procuring Mr. Orlic's medical records is hereby granted.
In sum, pursuant to the remand order from Justice Kitzes, I find that the evidence establishes that Mr. Orlic is able to return to his apartment and that the owner is obliged to construct a ramp.
FINDING AND CONCLUSION
Josip Orlic is able to return to his apartment at 28-08 35th Street, Queens, New York, and the requested relief of an order that the owner erect a ramp is not moot.
John B. Spooner
Administrative Law Judge
April 14, 2005
SUBMITTED TO:
PATRICIA GATLING
Commissioner
APPEARANCES:
AVERY MEHLMAN, ESQ.
RAYMOND WAYNE, ESQ.
Attorneys for Petitioner Commission on Human Rights
DENNIS R. BOYD, ESQ.
PABLO J. VALVERDE, ESQ.
Attorneys for Complainant Josip Orlic
BRYAN WILLIAMS, ESQ.
Attorney for Respondents
City of New York Commission on Human Rights’ Decision, May 26, 2005
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CITY OF NEW YORK
COMMISSION ON HUMAN RIGHTS
In the Matter of
LIVIO ORLIC ON BEHALF OF JOSIF ORLIC
Complainant
-against -
T.K. MANAGEMENT, INC.
Respondent
AMENDED DECISION AND ORDER
On November 17, 1999, Josip Orlic filed a Verified Complaint with the New York City Commission on Human Rights alleging violations of the Administrative Code of the City of New York. Specifically, the complaint alleges that Josip Orlic, who is disabled and uses a wheelchair, requested an accommodation from the respondent, owner and manager of the complainant's residence, and that the accommodation was unreasonably denied. The complaint was amended on May 15, 2001 to reflect the fact that the complainant's son, Livio Orlic, had power of attorney over the complainant's affairs.
A hearing was held on June 11, 12 & 13, 2003 and July 17, 2003 before Suzanne Christen, an Administrative Law Judge assigned to the Office of Administrative Trials and Hearings. The Administrative Law Judge issued a Report and Recommendation on October 27, 2003. The findings in the Report and Recommendation establish that the complainant is disabled, requires a wheelchair and that the modifications requested would have cost approximately $36,000. The Commission disagreed with the Administrative Law Judge's assessment of the solvency of the respondent and her recommendation that the Commission determine that requiring the respondent to accommodate the complainant would be an undue hardship. Unfortunately, soon after the Report and Recommendation was issued, the complainant was hospitalized and then moved to a nursing home. On May 13, 2004, with the complainant still residing in a nursing home, the Commission issued a Decision and Order indicating that the complainant was entitled to a reasonable accommodation and that the Commission would Order that the building be made accessible; however, since the complainant no longer resided in the building, the issue was moot (essentially that it is not reasonable to require the respondent to accommodate an individual that no longer lives in the building).
The complainant appealed this Decision and Order to the Supreme Court, QueensCounty, alleging among other things, that the complainant is medically fit to return to his apartment, but for the fact that it is inaccessible. In a letter dated September 9, 2004, based upon representations from the complainant's counsel, the Commission notified all parties that it was reopening the matter pursuant to § 8-121 of the Administrative Code of the City of New York. On January 12, 2005, Justice Orin R. Kitzes remanded the abovementioned appeal to the Commission for further proceedings to determine the complainant's medical fitness to return to the respondent's building.
A hearing on the issue of the complainant's medical condition was held on March 9 & 22, 2005, before John B. Spooner, an Administrative Law Judge assigned to the Office of Administrative Trials and Hearings. The complainant's treating physician, Dr. Michael Plokamakis, and the complainant's wife were the only witnesses at the hearing. Dr. Plokamakis testified that the complainant could return home if his building were accessible and the complainant's wife testified that she would be able to take care of him if he were home. She further testified that the family wanted the complainant to return home. ALJ Spooner issued a Report and Recommendation on April 14, 2005, wherein he determined from the evidence that the complainant is medically fit to return to the respondent's building and recommended that the Commission Order the respondent to make the building accessible.
Based upon a review of the entire record, the Commission makes the following determinations:
1. Josip Orlic is disable, but currently medically fit to return home if the building's entrance and lobby were made accessible.
2.Making the building's entrance and lobby accessible would not pose an undue hardship on the respondent.
3.The complainant has failed to provide specific evidence relating to expenses incurred for the purpose of transporting the complainant into and out of the building. The only testimony in the record relates to expenses for neighbors to assist with the care of Josip Orlic, such care included transporting him into and out of the building. The entire testimony regarding this issue is vague as to the actual amount of money expended, mostly undocumented and fails to make a distinction between expenses incurred to bring Mr. Orlic into and out of the building and the expenses required for his daily care due to his condition.
4.The delay in resolving this matter was due in large part to the Commission itself and is not attributable to the respondent.
5.The respondent had a good faith basis to challenge the complaint, including financial and feasibility defenses. Penalizing him for raising those defenses would be inappropriate.
Based upon a review of the entire record in this matter, a consideration of all possible remedies, and the above determinations, it is hereby
ORDERED that the respondent make the entrance and lobby of 28-08 35th Street, Astoria, accessible by installing a code compliant ramp at its entrance; adjusting the foyer and entrance doors, including the widening of the space between the two sets of vestibule