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DISABLING DISABILITY CLAIMS

In order to stake a claim to a regulated apartment upon the death or departure of the tenant(s) of record, the remaining occupant must satisfy certain residency requirements which are reduced when the claimant is a senior citizen (62 years of age or older) or "disabled." [For our other blog posts on the applicable standards, please use the following link: Succession ].
While the definition of a "disability" has been liberally construed, a 2005 opinion issued by the Appellate Term, First Department, has clarified the law as it applies to succession claims made by disabled individuals.
Under the governing regulations, a person claiming to be disabled must demonstrate by way of "medically acceptable clinical and laboratory diagnostic techniques" the existence of a permanent "anatomical, physiological or psychological impairment" (other than drug, alcohol or gambling addiction) which "substantially limit[s] one or more major life activities."
In Belnord Realty Assoc., L.P. v. Joseph, Ms. Joseph's "hip dysplasia and related conditions" were not found to comprise a "disability" under governing law since no substantial limitation of a major life activity was demonstrable. Apparently, her own osteopathic physician observed that Ms. Joseph functioned "reasonably well" and that she was able to walk and exercise without any "assistive device."
The appellate court was also unpersuaded by the fact that Ms. Joseph had been able to procure a handicapped parking permit or by the "mere possibility that she may have to undergo hip replacement surgery in the future."
Failing to show an entitlement to the shortened occupancy time frame, and otherwise unable to establish a right to remain in her deceased mother's rent-controlled apartment, the Appellate Term allowed the New York County Civil Court's judgment evicting Ms. Joseph from the unit to stand.
For a copy of the Appellate Term's decision in Belnord Realty Assoc., L.P. v. Joseph, please use the following link:
http://www.nycourts.gov/reporter/3dseries/2005/2005_25480.htm

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