Page 14 - CooperatorNews July 2021

Cooperative and Condominium Law
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cesarano &khan1_8 use this_:cesarano &khan 4 7/22/15 4:59 PM Page 1
board may well have to articulate a reason
in response to the lawsuit.”
In general, Simpson describes a three-
step process for analyzing such cases al-
leging intentional discrimination: “ e
three-step process requires that, rst, the
plainti establish a prima facie case of dis-
crimination. If the plainti sustains this
burden, the defendant must o er rebuttal
evidence articulating a legitimate, inde-
pendent, nondiscriminatory reason for its
actions. Once defendant does so, in order
to prevail plainti must prove, by a pre-
ponderance of the evidence, that the de-
fendant’s stated reasons are only a pretext
for discrimination.”
In short, explains Simpson, if a mem-
ber of a protected class is turned down
by a co-op board and then sues the so-op
under existing case law, showing that she/
he was objectively quali ed (had the nan-
cials, intended use as a primary residence,
no reason to believe there would be objec-
tionable behavior) and was turned down, if
there’s an inference that there was unlawful
discrimination (if someone not in the same
protected class successfully purchased, for
example), then the co-op board will have
to come forward with legitimate reasons
for the denial. e upshot is that, if sued, a
co-op board cannot stay silent about their
reasons for rejecting an applicant.
Is New Legislation Needed?
With current New York City anti-
discrimination regulations for housing
among the toughest in the nation, Green-
stein considers whether additional legisla-
tion is necessary. “I do not believe so,” he
says. “We represent a signi cant number
of cooperative corporations, and over de-
cades of counseling them I have not had
more than a handful of complaints alleg-
ing discrimination relating to the rejection
of purchasers.” Out of those, he notes that
“In each instance, the state and city com-
missions found no wrongdoing. e leg-
islative reasons given for this law rely on a
belief that admissions committees ‘gener-
ally’ decide if a purchaser will be rejected
PROPOSED...
continued from page 6
or accepted, and assumes a bias or unfair
motivation which led to rejection.”
“While admissions committees do play
an important role in many buildings, it’s
a board decision,” continues Greenstein.
“Another reason for the legislation is the
belief that by not being required to give
the reason, a board can invent a reason
later on if they are challenged. Supporting
actions to prevent and punish boards that
discriminate should not be based upon
such assumptions — and particularly that
people serving on boards as volunteers will
potentially fail to tell the truth, whether it
be at commission hearing or before a judge
gathering the facts and hearing the testi-
mony. ere are plenty of remedies for the
parties who feel they have been discrimi-
nated against, and there are a number of
decisions by the commissions and courts
which support such action. I feel that this
legislation is not necessary, will encour-
age litigation, and discourage people from
serving on the boards of cooperatives.”
Will it Stand?
e more esoteric question perhaps is
whether, if passed, such a law would stand
the scrutiny of the judicial review. “On
its face,” says Simpson, “requiring that
people with lesser nancials be accepted
would not seem to impair the integrity of
contracts, because no existing contract is
being interfered with. But I would expect
co-op owners to push back hard on such a
proposal, because it would be asking that
existing co-op owners take on additional
nancial risk,” relative to possible nancial
emergencies the co-op might experience
in the future.
Greenstein concurs. “Not without
legislation, and if enacted, I do not see it
standing if the cooperative is a private co-
operative. ere are cooperatives — such
as Mitchell Lama co-op buildings — which
have legal requirements limiting incomes
of eligible purchasers and the sales prices
of apartments. e shareholders of a num-
ber of these buildings have voted to have
them go private,” in recent years.
■
Noncompliance Is Not an Option
If a property does not submit their data,
they will likely be looking at nes as there
are penalties for non-compliances for
LL97, which then translates to non-com-
pliance for the letter grade laws, explains
Cebula. While it’s not required to report
this information, gathering and record-
ing it is strongly recommended to avoid
non-compliance nes down the road.
Every building is given its own allow-
able emission limit - which are subject to
change from year to year - and consistent
noncompliance with those set limits may
subject a building to high penalties and a
reduced energy grade.
In the nal analysis, as with any other
requirement under New York City regula-
tions and laws, the best path is to provide
the information sought by the City. Board
members should rest easy that their man-
agement persons are on top of this. If you
self-manage and are subject to the regula-
tions, the best bet may be to hire an energy
consultant and get your lings in on time.
■
LOCAL LAW 97...
continued from page 6