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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NEW YORK: PART 55- - - - - - - - - - - - - - - - - - - - - - ) DECISION, ORDER andIn the Matter of the Application of )JUDGMENTANTHONY J. FOX, )
)
Petitioner, )
)
For a Judgment under Article 78 of the )Civil Practice Law and Rules )
)
-against- )Index No. 400036/07)
NEW YORK STATE DIVISION OF HUMAN )
RIGHTS and NEW YORK CITY HOUSING ) UNFIlc:: u "1\~"___ .AUTHORITY n'
proceeding, seeking a judgment reversing the determination of
respondent New York state Division of Human Rights dated November
20, 2005.
In September .2004, petitioner, who is a quadriplegic,
applied to resp?ndent New York City Housing Authority (NYCHA) for
a one bedroom apartment which was handicapped-accessible with
space for a Hoyer Lift and a mobile toilet. Petitioner does not
yet have an apartment.
On August 23, 2006, petitioner filed a complaint with
the State Division of Human Rights charging NYCHA with unlawfully
discriminating against petitioner because of his disability in
violation of the New York State Human Rights Law and the Federal
Fair Housing Law. The complaint alleges that the failure of
NYCHA to afford petitioner the aforementioned apartment
constitutes discrimination based on petitioner's disability.
By order dated Noyember 20, 2005, petitioner's
complaint was dismissed. The order states in pertinent part:
Complainant has alleged that the failure ofrespondent to afford him with a handicappedaccessible apartment with sufficient spacefor a Hoyer lift and mobile toiletconstitutes discrimination based on hisdisability. However complainant, whopresently resides in his mother's sixth floorwalk up apartment, already has been grantedthe highest level medical priority to whichhe is entitled. While the complainant doeshave the right to a housing prioritypredicated upon his disability, he does nothave the right to be placed on the top of thelist. Complainant already has received fromrespondent the highest priority to which heis entitled, an N-3 Health Emergencypriority. Complainant could have received aneven higher priority, an N-l, by entering thefamily unification program. However,complainant stated both in conference ,withthe Division and in his rebuttal that he doesnot want to pursue this option and prefersretaining his status as single.
Additionally, complainant stated to theDivision that the crux of his complaint wasthat he believes he was misinformed aboutSection 8. However, complainant had a priorSection 8 voucher which he allowed to lapsebecause he failed to timely rent anapartment. It is also noted that complainantmay choose a borough other than Manhattan fora housing preference and hence furtherincrease his probability of obtaining publichousing accommodations.
Complainantranking fordisability,that he was
has received the highest prioritywhich he is entitled due to hisand has proffered no evidencethe victim of any disparate
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treatment or discrimination at the behest of
respondent precipitating from his status as adisabled individual. As such, there isinsufficient evidence presented in this caseto sustain a determination of probable cause.
State Division of Human Rights order of November 20, 2005.
In Matter of McFarland v New York State Division of
Human Riahts, the Appellate Division, First Department wrote
that:
Where, as here, a determination of noprobable cause is rendered without holding apublic hearing pursuant to Executive Law §297 (4) (a), the appropriate standard ofreview is whether the determination was
arbitrary and capricious or lacking arational basis. (Matter of Hone v New YorkState oiv. of Human Riahts, (223 AD2d 761,762 [3d Dept 1996]; Matter of Giles v StateDiv. of Human Riahts, 166 AD2d 779, 780 [3dDept 1990].)
241 AD2d 108 (lst dept 1998) Here, petitioner has not submitted
anything that shows that the determination was arbitrary and
capricious or that it lacks a rational basis. Petitioner has not
even submitted anything that would show that he was the victim of
any disparate treatment or discrimination at the behest of
respondent precipitating from his status as a disabled
individual. Accordingly, it is
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,
ORDERED and ADJUDGED that the petition is denied and
the proceeding is dismissed with costs and disbursements to
respondents.
Dated: June J"J-, 2007
ENTER:
J.s.~.,fANei5. SOLOMON
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