13-0247 Olsen v. Stark Homes, Inc.

UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2013 4 (Argued: November 20, 2013 Decided: July 18, 2014) 5 Docket No. 13-0247 6

_________________________________________________________ 7 BARBARA OLSEN, DONALD OLSEN SR., DONALD OLSEN JR., and LONG 8 ISLAND HOUSING SERVICES, INC., 9 Plaintiffs-Appellants , 10

- v. - 11 STARK HOMES, INC. d/b/a Glenwood Village and BRIAN STARK, 12 Defendants-Appellees

. * 13

_________________________________________________________ 14 Before: KEARSE, JACOBS, and B.D. PARKER, Circuit Judges

. 15 Appeal from a judgment of the United States District Court for the Eastern District of 16 New York, Leonard D. Wexler, Judge , dismissing as a matter of law claims that defendants, in 17 rejecting the Olsen plaintiffs' attempt to acquirehousing, discriminated against them on the basis of 18 handicap or disability, in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. , and the New 19 York State Human Rights Law, N.Y. Exec. Law § 290 et seq. 20

* The Clerk of Court is directed to amend the official caption to conform with the above.Vacated and remanded. 1 STEPHEN M. DANE, Washington, D.C. (Thomas J. Keary, 2 Relman, Dane & Colfax, Washington, D.C. on the brief ), for 3 Plaintiffs-Appellants Barbara Olsen, Donald Olsen Sr., and 4 Donald Olsen Jr. 5 ERIK HEINS, Staff Attorney, Long Island Housing Services, 6 Inc., Bohemia, New York, for Plaintiff-Appellant Long Island 7 Housing Services, Inc. 8 JOHN L. CIARELLI, Riverhead, New York (Ciarelli & 9 Dempsey, Riverhead, New York), for Defendants-Appellees

. 10
KEARSE, Circuit Judge : 11 Plaintiffs Barbara Olsen ("Barbara"), DonaldOlsen Sr. ("Donald Sr."), Donald Olsen 12 Jr. ("Donald Jr." or "Donald"), (collectively "the Olsens"), and Long Island Housing Services, Inc. 13 ("LIHS"), appeal from a judgment of the United States District Court for the Eastern District of New 14 York, Leonard D. Wexler, Judge , dismissing their claims against de fendants Stark Homes, Inc. ("Stark 15 Homes"), doing business as Glenwood Village (or "G lenwood"), and Brian Stark (or "Stark"), alleging 16 denial of the application of Barbara and Donald Sr. for a lease at Glenw ood because of the handicap 17 or disability (terms used relatively interchangeablyby the parties and the courts) of their son Donald 18 Jr., and denial of reasonable accommodation for his condition, in violation of the Fair Housing Act 19 ("FHA"), 42 U.S.C. § 3604(f) (prohibiting discrimi nation because of "handicap"), and the New York 20 State Human Rights Law ("HRL"), N.Y. Exec. Law §§ 296(5) and (18 )(2) (prohibiting discrimination 21 because of "disability"). Following the close of th e evidence at trial, the district court granted 22 defendants' motion pursuant to Fed. R. Civ. P. 50(a) for judgment as a matter of law dismissing all 23 of plaintiffs' claims, ruling that there was no ev idence that defendants' rejection of the Olsens' 24 application was caused by, or based on, prohibited di scrimination. On appeal, plaintiffs contend 25

- - 2principally that the district court erred in dismissi ng their claims as a matter of law, and that it should 1 instead have granted judgment as a matter of law in favor of plaintiffs on their reasonable 2 accommodation claim. While we are not persuaded that plaintiffs were entitled to judgment as a 3 matter of law on their reasonable accommodation claim, we conclude that noneof plaintiffs' claims 4 should have been dismissed as a matter of law. Accordingly, we vacate the judgment and remand for 5 trial. 6

I. BACKGROUND 7

The broad outlines of the present controversy are not in dispute. Brian Stark is vice 8 president of Stark Homes, which owns Glenwood V illage. Glenwood is a private residential area for 9 approximately 520 mobile homes owned primarily by re sidents who are at least 55 years of age. The 10 residents lease space from Stark Homes, pursuant to a lease agreement that states, inter alia , that "[a]ll 11 residents must have attained the age of 55 to resi de in Glenwood Village. Management reserves the 12 right to reject any resident who does not qualify under [this] age restriction." (Glenwood Village 13 Residency Agreement ("Lease") at 1.) However, th e Lease also states that residents under the age of 14 55 are permitted "if it is established to the satisf action of the Community's management that the 15 presence of such persons is essential to the physical care of [sic ] economic support of the Resident." 16 (Id . at 4.) 17 In January 2008, Barbara and Donald Sr., w ho were then over the age of 60, entered 18 into a contract to buy a mobile home from one of Glenwood's residents, and they applied to Stark 19 Homes for a lease. However, Barbara and Donald Sr. stated that they needed to have their son Donald 20

- - 3Jr., who was then 42 years of age, live with them because he had been diagnosed with major 1 depression and could not live on his own. Barbara and Donald Sr. (the "senior Olsens") were 2 approved for a lease at Glenwood Village, but their application to have DonaldJr. live with them was 3 rejected. 4 Barbara tried, unsuccessfully, to get Stark to reconsider the decision and to 5 accommodate their request to have Donald Jr. live w ith them. The Olsens contacted LIHS, a private 6 not-for-profit corporation engaged in fair-hous ing advocacy, which wrote to Stark Homes on the 7 Olsens' behalf. LIHS also investigated by sendi ng "testers" to Stark Homes to explore the firm's 8 practices with respect to residency by family members under the age of 55 who were handicapped or 9 disabled. After completion of the testing investig ation, LIHS drafted and submitted to the Department 10 of Housing and Urban Development ("HUD") administrative complaints on behalf of LIHS and the 11 Olsens, and pursued those complaints before the Ne w York State Division of Human Rights, to which 12 the complaints were referred by HUD. (SeeTrial Transcript ("Tr.") 206-08.) 13 In 2009, having failed to persuade Stark Home s to approve the application with Donald 14 Jr. as a resident, plaintiffs commenced the present action alleging, to the extent pertinent to this 15 appeal, that defendants' rejection of the Olsens ' application to lease space for a mobile home at 16 Glenwood because of Donald Jr.'s handicap or di sability, and defendants' refusal to provide a 17 reasonable accommodation for his condition, violatedthe FHA and the HRL. The Olsens sought 18 declaratory and injunctive relief and damages. In addition, LIHS sought reimbursement for the 19 expenses it had incurred in its work on behalf of the Olsens. 20 The district court conducted a trial for several days in 2012; but after the close of the 21 evidence, the court dismissed the action as a matter of law, without submitting the case to the jury. 22

- - 4The trial evidence as to the pertinent details of the above events included the following. 1

A. Events Leading to the Rejection of the Olsens' Application 2 In January 2008, hoping to buy a mobile home inwhich the Olsens would live, Barbara 3 visited Glenwood Village and met with Glenwood's sales and property manager, Noreen Grossklaus 4 ("Grossklaus" or "Noreen"). Barbara testified that, from "the beginning," she told Grossklaus that 5 Donald Jr. was to live with Barbara and Donald Sr, and that "Noreen . . . said that there shouldn't be 6 a problem." (Tr. 100-01.) Grossklaus testified thatwhen she met with Barb ara "prior to her filling 7 out the application" for a Glenwood lease, Barbar a "mentioned that there would be a possibility that 8 her son may be moving in with them" (id . at 266); Grossklaus told Barbara the Olsens would need 9 approval from Stark (see , e.g. , id . at 267). 10 After Barbara and Donald Sr. revisited Glenwood with a realtor and found a mobile 11 home they wanted to buy, they entered into a contract with the owner, subject to approval by Stark 12 Homes for a lease. On January 21, Barbara and Donald Sr. went to the Glenwood office to fill out 13 their lease application. Donald Sr. testified that 14 [w]hen we got in there and sat down and filled out the application, I informed 15 Noreen that my son was--had a mental di sability and that he would have to live 16 with us. He cannot live independently. 17 (Tr. 58.) Donald Sr. testified that Donald Jr. attended therapy sessions almost every day, had been 18 hospitalized multiple times, and had made multiple attempts to commit suicide. (Seeid . at 46, 48.) 19 However, Donald Sr. did not give Grossklaus these details as to Donald Jr.'s disability because he 20 wanted to avoid embarrassment. (Seeid . at 46.) 21 Donald Sr. testified that in filling out the lease application, he did not list Donald Jr. 22

- - 5as a resident but he "mentioned it to Noreen again, stating that our son was mentally disabled and he 1 had to live with us. He cannot live on his own." (Id . at 60.) Barbara testified that they asked 2 Grossklaus whether they should list Donald Jr.'s name in the application, "[a]nd she said no, you don't 3 need to" (id . at 101), but that approval would be needed from Stark (seeid . at 102). 4 Barbara thereafter received a telephone call from Stark "ask[ing] me about my son and 5 why he had to live with us." (Tr. 82.) She testified: 6 I told him because he had mental illness and he cannot live alone monetarily. 7 Q. Did he ask anything else of you. Mrs. [Olsen]? 8 A. Yes. He asked me if I could get a letter from Donald's doctor 9 stating his disability and what it was and if he could be left alone for a short 10 period of time. 11 (Id . at 82-83.) 12 Donald Jr.'s treating psychologist was Dr. Je ffrey Romano. Donald Jr. testified: "My 13 mother told me that Mr. Stark had called and he requested a letter from Dr. Romano stating my 14 disability and if I could be left alone for a certain period of time while they're on vacation." 15 (Tr. 124-25.) Donald Jr. requested such a letter: "I asked Dr. Romano to address what my disability 16 was and if I could be left alone for a short peri od of time while my parents were on vacation." (Id

. 17 at 125.) On January 31, Donald Jr. hand-delivered to the Stark Homes office a one-page letter from 18 Dr. Romano that stated as follows: 19 I am writing on behalf of Mr. Donald Olsen, Jr. I see Mr. Olsen at 20 Opti-HealthCare Diagnostic and Treatment Center, here in Riverhead. Mr. 21 Olsen is diagnosed with Major Depression, a condition he has had for many 22 years. I understand that you have concerns regarding Mr. Olsen's ability to 23 live on his own at Glenwood. Although he is disabled, he qualifies for 24 independent living. Mr. Olsen serves as a System Mental Health Advocate 25 through Synergy Center . . . . In this role, Mr. Olsen works closely with NYS 26 Legislators in Albany, advocating for individuals with mental illness. 27

- - 6It is my clinical opinion that Mr . Olsen's ability to live independently 1 is without question. I will reconsider [sic ] your stance in this matter. 2 (Letter from Dr. Jeffrey P. Romano to To Whom It May Concern dated January 31, 2008 ("Romano 3 Letter" or "January 2008 Letter").) Although Dr. Romano gave explanations at trial for some of the 4 terms used in this letter (seePart I.C. below), the letter was hi s sole communication with defendants 5 about Donald Jr. prior to their denial of the reque st to allow Donald Jr. to live with his parents at 6 Glenwood (seeTr. 177). 7 Stark testified that Barbara and Donald Sr. "were approved on their own" if Donald 8 Jr. was not going to live with them. (Id . at 296.) Barbara had asked him "to consider her son as a 9 disabled person and to relax the rules because of his disability" (id . at 283); Stark recalled that 10 Barbara "may have" told him "that Donald's disability was depression" and was "seeking to have 11 Donald as a resident in the home" (id . at 284-85); but he otherwise di d not remember any details she 12 may have given him (seeid . at 283-84). At trial, Stark testifie d that he "asked for a doctor's note to 13 substantiate the consistency with [the Stark Homes] lease" (id . at 280), and he rejected the request for 14 an exception because Donald Jr. was not qualified under the term s of the Lease (seeid . at 281). His 15 testimony included the following: 16 Q. Question[from Stark's deposition]: 17 Isn't it a fact that the doctor's note you asked for was to address whether 18 he was able to be left alone or not? 19 And do you recall your answer? 20 The doctor's note that I asked for was evidence of his disability. 21 Period. 22 You didn't say anything else after that, did you? 23 A. If that's what I said in my deposition, that's accurate. 24

- - 7Q. Okay. Now, you eventually received the letter from Dr. Romano. 1 Correct? 2 A. Yes. 3

. . . . 4 Q. After reviewing that letter, did you conclude, did you make a 5 decision about whether Donald was disabled? 6 A. No. The key word being he qualifies for independent living. 7 Q. Okay. Well, let's read that letter. The sentence before that. Dr. 8 Romano says in the one, two, three, fourth line down, see the sentence that 9 starts although he ? 10 A. Um-hmm. 11 Q. It says he is disabled . Correct? 12 A. It says: Mr. Olsen is diagnosed with major depression, a condition 13 that he has had for many years. I understand you have concerns regarding his 14 disability to live on his own at Glenwood. Although he is disabled, he 15 qualifies for independent living. 16 Q. Okay. Up earlier, where it says Mr. Olsen is diagnosed with major 17 depression. Correct? 18 A. Yes. That is what it says. 19 Q. Okay. The sentence you just read to the jury about I understand 20 you have concerns regarding Mr. Olsen's ability to live on his own at 21 Glenwood, would you agree with that, you have those concerns? 22 A. I needed to find out if Donaldwas essential to the economic support 23 of his parents or vice versa. 24 Q. Yes, you have said that before . But do you agree with that sentence 25 from Dr. Romano's letter? 26 A. I'm not a doctor. I'm not equi pped to say if someone is depressed 27 or not. I just have to apply the language that my attorney has advised me to 28 put in a lease and see if that resident meets the clause of my lease. That's all 29 I'm qualified to do. 30

- - 8Q. Okay. Let's step back from Dr. Romano's letter and I'll just ask you 1 straight out. 2 Did you have a concern at that time about whether Donald Olsen could 3 live alone, on his own, at Glenwood? 4 A. I had a concern that he, if he was providing economic or physical 5 care to his parents and vice versa. 6 (Tr. 287-89 (italics in original).) 7 Stark did not contact Dr. Romano "to as k him what he meant by the letter." (Id

. 8 at 291.) Stark testified, "The letter from the docto r allowed me to apply the language of my lease to 9 his situation." (Id . at 289.) 10 Stark denied the request for Donald's residency in a letter that stated as follows: 11 Dear Mrs. Olson [sic ]: 12 This letter will formally notify you of Stark Homes' denial of your 13 request for residency for your son. We c ite page 1, section A of our Residency 14 Agreement which states: 15 "........ All residents must have attained the age of 55 to reside in Glenwood 16 Village. Management reserves the righ t to reject any resident who does not 17 qualify under the community's age restriction ." 18 Further page 4, section 9 cites: 19

..... "Adults under 55 may be admitted as residents, if it is 20 established to the satisfaction of the Community's management that the 21 presence of such person s is essential to the physical care or economic 22 support of the resident. The management has full authority to qualify 23 that resident and reserves the right to approve or reject that person as a 24 resident "

. 25 Thank you. 26 (Letter from W. Brian Stark to Barbara Olson [sic ] dated February 5, 2008 (italics and bolding in 27 original).) 28

- - 9After receiving this letter, Barbara called Stark and "asked him if he would reconsider. 1 He said: Absolutely not. My mind is made up. I will not change it. And I don't need any trouble in 2 this park like that. " (Tr. 83-84 (italics in original).) 3

B. Assistance and Investigation by LIHS 4 Following Stark's refusal to reconsider, Donald Jr. enlisted the assistance of LIHS (see 5 Tr. 131), which sent Stark Homes a letter requesting a relaxation of the Lease's minimum age 6 restriction in order to allow Donald Jr. to live at Glenwood with his parents. The letter, signed by 7 Senior Fair Housing Investigator Marian D. Reid, stated, inter alia , that "[f]or the past few years, 8 Donald Jr. has been living with his parents becausehe suffers from a disability"; that "it would be 9 extremely important that Donald Jr. reside with his parents because of his own disability"; and that 10 "[i]f Donald Jr. is not able to reside w ith Mr. and Mrs. Olsen, he could elapse [sic ] and again suffer 11 from a mental breakdown." (Letter from Marian D. Reid to Brian Stakes [sic ] dated March 4, 2008 12 ("LIHS Letter") at 1-2.) 13 The LIHS Letter stated that Donald Jr. wa s "a person with a disability as defined by 14 the Federal Fair Housing Amendments Act of 1988" (id . at 1) and that if a reasonable accommodation 15 were not made within 10 days, le gal action would be pursued (seeid . at 2). Stark received the LIHS 16 Letter but did not respond. (SeeTr. 291-93.) 17 Reid testified that, having failed to persuadeStark to change his decision, LIHS in late 18 March began a testing investigation at Glenwood. (See id . at 194, 200.) For suchan investigation, 19 LIHS trains testers to pose as prospective purchas ers and to inquire about the availability of housing. 20 Testers record their interactions, and a test coordi nator compares the reports to assess whether testers 21

- - 10were treated differently based on protected cl ass status. Three testers visited Glenwood. 1 The first tester ("Tester 1") visited Gl enwood on March 24, 2008. She told Grossklaus 2 and Stark she would be 55 years old in May and would be living with her sister who was 49; she 3 asked whether her sister's age posed any problem. (See Deposition of Rita Simonetti at 10.) There 4 was no indication that either Tester 1 or her sister had any disability. (Seeid . at 24.) Grossklaus said 5 the sister's age was an issue for Stark to resolve; Stark said "it wasn't going to be a problem as long 6 as there weren't any young children involved" (id . at 12). Stark then spent some 90 minutes showing 7 homes to Tester 1. 8 The second tester ("Tester 2"), who vi sited Glenwood around March 28, 2008, testified 9 that she told Stark she had just turned 54 years of age, hoped to move in by the end of May, and was 10 planning to live alone. (SeeTr. 226-29.) Stark made no comment with respect to her age except to 11 suggest that she looked younger. Stark spent an hour with her, showing various units and discussing 12 financing options; he invited Tester 2 to return to look at homes again. (Seeid . at 228-30.) 13 The third tester ("Tester 3") testified th at she visited Glenwood in July 2008 and met 14 first with Grossklaus. Tester 3 said she was over the age of 55 and was planning to reside with her 15 40-year-old mentally disabled daughter. (Seeid . at 240-41.) Grossklaus asked if the daughter was 16 violent; receiving a negative answer, Grossklaus said approval for the daughter's residence would be 17 needed from Stark. (Seeid . at 241.) After Stark arrived and, apparently, was informed by Grossklaus 18 about the daughter, he asked Tester 3 whether th e daughter was on medication. He said "he would 19 have to meet her before he c[ould] make a decision about [Tester 3] buying a unit." (Id . at 242.) 20 Stark said he had another family living there witha mentally disabled son who had been found outside 21 naked. (Seeid .) 22

- - 11C. Other Testimony by Donald Jr. and Testimony by Dr. Romano 1 Donald Jr. testified that he had attempted suicide several times. (SeeTr. 113, 116-18.) 2 After his second attempt in 2004 he was hospitalized, and the hospital refused to release him on his 3 own; he was released into the care of his parents. Donald Jr. testified thatsince that time, he has 4 always lived with his parents; he takes several medications, morning and night, under their 5 supervision. (Seeid . at 119-21.) He has worked intermittently, but has been unable to work full-time 6 in a permanent job and has been receiving social security disability income. (Seeid . at 118-19.) He 7 testified that his medication affects him in a way that leaves him unable to work. (Seeid . at 113, 8 116-17.) 9 Dr. Romano testified that Donald Jr.'s majo r depression "[a]bsolutely" affected his 10 ability to work (id . at 170-71), interfering with his ability to maintain employment (id . at 172). Dr. 11 Romano testified that he had been treating Donald Jr. since about 2007 at Opti HealthCare, an 12 outpatient mental health clinic, for major depression and anxiety. (SeeTr. 169-70.) Donald Jr. had 13 therapy sessions with Dr. Romano weekly and sessi ons at Synergy Center, another outpatient center 14 for mental health patients, daily. (Seeid . at 170; see also id . at 133 (Donald Jr. testified he attended 15 sessions at Synergy Center five times a week).) 16 Dr. Romano testified that he had written his January 2008 Letter because Donald Jr. 17 informed him that Stark Homes "had requested something from his therapist, myself, to indicate that 18 he could live, he can live in that facility ." (Id . at 172-73 (emphasis added).) After reading his letter 19 aloud, including the sentences stating that Donald Jr . "qualifie[d] for independent living" and had the 20 "ability to live independently . . . without question," Dr. Romano explained what he had meant: 21 Q. Now, at the time that you prepared this letter, were you aware that 22 Donald was living with his parents? 23

- - 12A. Yes. 1

. . . . 2 Q. . . . . At the time you wrote this letter, did you know that Donald 3 intended to live with his parents at Glenwood? 4 A. Yes, sir. 5 Q. And you used the term in there independent living . What does that 6 mean? 7 A. Well, in the case of individuals with mental health issues, 8 independent living typically means they don't need to be living in a restricted 9 environment. They're not hospitalized. They're not living in a group home 10 setting. 11 But they have supports in their life. In Don's case it would be Synergy 12 and his parents. So in that case he is living as independently as he possibly 13 can. 14 (Tr. 174-75 (italics in original).) 15 Dr. Romano testified that his January 2008 Letter saying that Donald Jr. could live 16 independently "didn't mean what [Dr. Romano] wanted it to say"; "that someone reading that letter 17 would interpret it based on what it said"; and that he "would assume" that "if Glenwood Village read 18 this letter, it is a reasonable interpretation that [D onald Jr.] could live independently without support." 19 (Id . at 178.) 20 Dr. Romano also testified about a letter hehad written to LIHS in 2009, for the purpose 21 of 22 clarifying the original letter because I hadn't made it clear that independent 23 living was not, it didn't mean that he coul d live totally on his own; that he did 24 need support. 25

. . . . 26 Q. . . . [W]hy did you prepare this letter? 27

- - 13A. There was some question--after the first letter, it was, I guess it was 1 believed that Don could live totally on hi s own without support. Or that was 2 implied, I guess. 3 And this was to clarify that he c ould live for short periods of time on 4 his own or if his parents were away, but he did need those supports, such as 5 Synergy and his parents, long term. 6 (Id . at 176.) 7

D. The District Court's Dismissal of Plaintiffs' Claims 8 Following the close of evidence, each side moved, in whole or in part, for judgment 9 as a matter of law. Defendants' motion was as follows: 10 MR. CIARELLI [Counsel for defendants] : My motion is for a directed 11 verdict, your Honor, because they haven't proven that Donald Olsen is 12 suffering from a disability. 13 There is no medical proof. There is no physician. No psychiatrist. No 14 qualified psychologist even saying that, e xpressing an opinion in this case that 15 Donald Olsen suffers from a disability. Their disability is self-defined. 16

. . . . 17 So that there is no proof in this case that would be sufficient for a 18 reasonable jury to conclude that his major life activities, he is prevented from 19 performing his major life activities. 20 Now, he drives. He goes to Albany to talk to legislators. He is an 21 activist in that psychological organization. And he chooses to volunteer to 22 cook for an agency that he participates in. 23 But that is not our burden. Our burden is to recognize an established 24 disability. And in this particular case, there is insufficient evidence in the case 25 to support that disability. 26 The statute requires that he cannot perform his life's major activities, 27 and there is nothing that is major that Mr. Olsen can't perform. 28 And as far as the discrimination is concerned, I think it is pretty 29

- - 14obvious that the only documentation pres ented to Glenwood in support of any, 1 in support of their request for an accommodation or otherwise is this letter of 2 Dr. Romano, who even Dr. Romano admits is a statement that Donald Olsen 3 could live independently, meaning without support. 4 There is no reasonable jury that could conclude that Mr. Stark was 5 required to read behind the words that were stated in that letter and try to 6 anticipate what Dr. Romano was trying to say when even Dr. Romano says 7 that somebody reading that letter would take it for what it says in the letter, 8 and that is that Donald Olsen, Jr could live independently, without question. 9 It also describes the activities that hepursues, in that letter. And it also 10 describes his major depression, which there is never any, any, whether in this 11 record or otherwise, any reliable medical support for or reliable evidentiary 12 support for the conclusion that that letter or anything that was presented to 13 Glenwood supported Donald's need to live with them. 14 (Tr. 308-10.) Defendants' attorney also argued th at "no reasonable jury could credit the Olsens' 15 testimony" because they had "lie[d] under oath" (id . at 310)--presumably referring to differences 16 between testimony in deposition and testimony at trial. 17 In opposition to defendants' motion, the Olsens' attorney argued that, as to whether 18 Donald Jr. had a disability, 19 [w]e are not required to present expert testimony on disability. The Olsens 20 testified he had major depression. Dr. Romano's letter indicates he has major 21 depression. Dr. Romano's letter says heis disabled. Dr. Romano and the 22 Olsens all testified as to the daily life activities that are affected by his 23 depression. He gets socially isolated. Itaffects his ability to sleep. It affects 24 his ability to maintain employment. It has resulted in several hospitalizations 25 and suicide attempts. He receives Social Security disability income. He takes 26 medication. He goes to weekly therapy. 27 THE COURT: But what is the doc tor, what letter did you provide to 28 the defendants from his own doctor? What did it say? 29 MR. DANE: It said Donald suffers from major depression. He has a 30 disability. He can live independently. 31 THE COURT: He can live independently. 32

- - 15And what did the doctor say when he was on the stand about that? 1 MR. DANE: Well, there are two things about that. 2 No. 1, the letter is couched in term s of can he live at Glenwood. That 3 is with his parents. 4 And the living independently Dr. Romano said means he didn't have 5 to go to a care home. He didn't have togo to be institutionalized or go into a 6 hospital. 7 Now, the defendants are saying they interpret it a different way. You 8 know, okay, that is their argument. But that doesn't mean as a matter of law 9 that he is not disabled. 10 (Tr. 311-12.) 11 The Olsens also moved for judgment in their favor as a matter of law on the reasonable 12 accommodation claim, arguing that they had proven all of the elements of that claim and that 13 defendants' reliance on the Glenwood Lease as a basi s for their refusal was insufficient as a matter 14 of law. (See id . at 314.) LIHS joined the Olsens' opposition to defendants' motion for judgment as 15 a matter of law and the Olsens' motion for judgment as a matter of law in their favor on the reasonable 16 accommodation claim (seeid .); however, LIHS conceded that if th at claim were dismissed as to the 17 Olsens, it would be dismissabl e as to LIHS as well (seeid . at 306-07). LIHS argued, however, that 18 its claim of discrimination is independent of the di scrimination claims of the Olsens, given that the 19 LIHS testers were treated differently by Stark depending on whether or not they said the under-the20 age-of-55 family members who were to live w ith them at Glenwood were disabled. (Seeid

. 21 at 314-15.) 22 The district court granted defendants' motion todismiss all of plaintiffs' claims, stating 23 as follows: 24 This is the decision of the court ba sed upon the testimony during trial and on 25

- - 16oral argument. 1 There is no causation. The case is being dismissed. 2 First, we refer to the doctor's letter of January 31, 2008, where the 3 doctor is requested to give his interpretation. 4 In the letter it says: 5 "I understand that you have concerns regarding Mr. Olsen's ability to 6 live on his own at Glenwood. Although he is disabled, he qualifies for 7 independent living." 8 Continuing on: "In [sic] my clin ical opinion, [sic] Mr. Olsen's ability 9 to live independently is without question." 10 Now, this was the letter sent to the defendants for them to make a 11 decision. It has nothing to do with whether he is disabled or not but whether 12 he can live independently, and that is what they found. 13 It is true that on March 5, 2009, after the decision was made, a new 14 letter was created by the doctor, which was never given to the defendants. 15 That letter says: 16 "Although at points in his life Mr. Olson [sic] has been able to live 17 independently, his depression has dominated his life, as evidenced by 18 numerous relapses and hospitalizations. At the present time and for the future 19 time, Mr. Olson [sic] is unable to live on his own and requires the constant 20 support of his family as well as continued psychotherapy." 21 If this letter was sent to the defendants, that would be a cause of action, 22 but not based upon the letter sent. And, not only that, the testimony of the 23 doctor. 24 "Question: As a matter of fact, do you recall saying at your deposition 25 that your definition of independent living is living without support? 26 Answer: That would be--yes. If someone was living independently, 27 the way we normally would think of it, they [would] need no supports. 28 Question: But the letter says that, 'It is my clinical opinion that Mr. 29 Olsen's ability to live independently is without question. 30 Answer: Right." 31

- - 17Then continuing. 1 "Question: So if Mr.--if Glenwood Village read this letter, it is a 2 reasonable interpretation that Mr. Olson[sic ] could live independently without 3 support." 4 And then this answer by the doctor, the expert, the treating physician, 5 called by the plaintiff [sic ]: 6 "I would assume so." 7 So this case does not turn on whether he has a psychological problem 8 or not. Can he live independently? 9 There is no evidence whatsoever th at based on his depression he was 10 treated adversely. The question was simp ly can he live independently or not, 11 did he need their support, and there is nothing in the record to support that. 12 Therefore, the case is dismissed. All actions. 13 (Tr. 315-17 (italics in original).) 14

II. DISCUSSION 15

On appeal, plaintiffs contend principally that the district court erred in dismissing their 16 claims as a matter of law, and that the court shoul d have granted judgment as a matter of law in their 17 favor on the reasonable accommodation claim. In addition, LIHS argues that even if the claims 18 brought by the Olsens were properly dismissed, there was sufficient evidence to permit LIHS's own 19 independent claim for discrimination to be submitted to the jury. It also contends that the court erred 20 in excluding evidence of findings by a New York administrative agency that defendants had 21 discriminated against the Olsens. 22 Defendants contend that the entry of judgment as a matter of law in their favor should 23

- - 18be upheld, arguing principally that the evidence was insufficient to show (a) that Donald Jr. was 1 handicapped within the meaning of the FHA, (b) if he was, that defendants knew or had reason to 2 know that he was handicapped, and (c) that they di scriminated against him on the basis of handicap. 3 They also argue that dismissal of the claims of LIHS may be upheld on the ground that LIHS failed 4 to show injury to itself sufficient to give it standing to join this action. 5 For the reasons that follow, we conclude that the district court properly declined to 6 grant judgment as a matter of law in favor of plaintiffs on the reasonable accommodation claim, but 7 that, as to all of plaintiffs' claims, the eviden ce was sufficient to preclude the granting of judgment 8 in favor of defendants as a matter of law. 9

A. Federal and State Laws Prohibiting Discrimination in Housing 10 The FHA, with exceptions not pertinent here, makes it unlawful 11 [t]o discriminate in the sale or rental, or to otherwise make unavailable or 12 deny, a dwelling to any buyer or renter because of a handicap of

-- 13 (A) that buyer or renter, [or] 14 (B) a personresiding in or intending to reside in that dwelling after it is so 15 sold, rented, or made available

. . . . 16 42 U.S.C. §§ 3604(f)(1)(A) and (B) (footnote omitted) (emphases added). HUD regulations interpret 17 dwellings to include mobile home parks. SeeImplementation of the Fair Housing Amendments Act 18 of 1988, 54 Fed. Reg. 3232, 3238 (Jan. 23, 1989) ("HUD 1989 FHA Reg."); Edwards v. Marin Park, 19 Inc. , 356 F.3d 1058, 1063 n.6 (9th Cir. 2004) ("A plot leased for siting of a mobile home is a 20 'dwelling' under the FHA."); Morgan v. Secretary of Housing and Urban Development , 985 F.2d 21 1451, 1454 n.3 (10th Cir. 1993) ("Mobile home lots for rent are considered dwellings under and 22

- - 19within the scope of the Fair Housing Act."). 1 "Handicap" is defined in the FHA to includea "mental impairment which substantially 2 limits one or more of [a] person's major life activities." 42 U.S.C. § 3602(h)(1). Under HUD 3 regulations, such an impairment includes "emotional illness," 24 C.F.R. § 100.201(a)(2); and "[m]ajor 4 life activities" are defined as "functions such as caring for one's self, performing manual tasks, 5 walking, seeing, hearing, speaking, breathing, learning and working," id . § 100.201(b). 6 Nonetheless, a housing provider is "not preclude[d] . . . from lawfully rejecting [a] 7 particular applicant," "[j]ust because [that] applicant for housing has a handicap." HUD 1989 FHA 8 Reg., 54 Fed. Reg. at 3245. The provider is simply required to use "the same standard of performance 9 and behavior (e.g. , tenant selection criteria) to which it hol ds others" with respect to such "concerns 10 as past rental history, violations of rules and laws , [and] a history of disruptive, abusive, or dangerous 11 behavior." Id

. 12 In order to make out a prima facie case of discrimination on the basis of disability in 13 violation of FHA § 3604(f)(1)(B), a plaintiff must show (1) that a person residing in or intending to 14 reside in the dwelling after its saleor rental to the plaintiff had a handicap as defined in the FHA, (2) 15 that the plaintiff sought and was qualified to purchas e or rent the housing, (3) that he was rejected, 16 and (4) that the rejection occurred in circumstances giving rise to an infe rence of discrimination on 17 the basis of the handicap of the person residing or intending to reside with the plaintiff. See generally 18 Mitchell v. Shane , 350 F.3d 39, 47 (2d Cir. 2003). If the plaintiff has made out a prima facie case, 19 the burden of production shifts to the defendants to come forward with "a legitimate, 20 nondiscriminatory reason for their decision." Regional Economic Community Action Program, Inc. 21 v. City of Middletown , 294 F.3d 35, 49 (2d Cir. 2002). The ultim ate burden of proof remains on the 22

- - 20plaintiff to show that "the defendants intenti onally discriminated against [him] on a prohibited 1 ground." Id . If the plaintiff "make[s] a substantial showing that the defendants' proffered explanation 2 was false, it is permissible for the trier of fact to infer the ultimate fact of discrimination from the 3 falsity of the [defendants'] explanation." Id . (emphasis and internal quotation marks omitted). 4 New York's HRL, with exceptions not pertinent here, contains provisions prohibiting 5 housing discrimination similar to those in the FHA: 6 It shall be an unlawful discriminatory practice for the owner . . . or managing 7 agent of, or other person having the right to sell, rent or lease a housing 8 accommodation, constructed or to be constructed, or any agent or employee 9 thereof: 10 (1) To refuse to sell, rent, lease or otherwise to deny to or 11 withhold from any person or group of persons such a housing 12 accommodation because of the . . . disability . . . of such person or 13 persons . . . . 14 N.Y. Exec. Law § 296(5)(a)(1). Claims under th e FHA and HRL § 296 are "evaluated under the same 15 framework." Mitchell v. Shane , 350 F.3d at 47 n.4. 16

B. Principles Governing Motions for Judgment as a Matter of Law 17 Rule 50(a) provides that if "a party has beenfully heard on an issue during a jury trial 18 and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find 19 for the party on that issue, the court may . . . gr ant a motion for judgment as a matter of law against 20 the party." Fed. R. Civ. P. 50(a)(1)(B). 21 [I]n entertaining a motion for judgment as a matter of law, the court should 22 review allof the evidence in the record. 23 In doing so, however, the court must draw all reasonable inferences in 24 favor of the nonmoving party, and it may not make credibility determinations 25 or weigh the evidence . . . . Credibility determinations, the weighing of the 26

- - 21evidence, and the drawing of legitimate inferences from the facts are jury 1 functions, not those of a j udge. . . . Thus, although the court should review the 2 record as a whole, it must disregard all evidence favorable to the moving party 3 that the jury is not required to believe

. 4 Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 150-51 (2000) (internal quotation marks 5 omitted) (emphases added). 6 In reviewing a district court's ruling on a motion for judgment as a matter of law, we 7 apply the same standard that is re quired of the district court. See , e.g. , Zellner v. Summerlin , 494 F.3d 8 344, 371 (2d Cir. 2007). "We 'consider the evidence in the light most favorable to the party against 9 whom the motion was made and . . . give that party the benefit of all reasonable inferences that the 10 jury might have drawn in his favor from the evidence.'" Id . (quoting Black v. Finantra Capital, Inc. , 11 418 F.3d 203, 209 (2d Cir. 2005)). "We 'disregard all evidence favorable to the moving party that the 12 jury is not required to believe.'" Zellner v. Summerlin , 494 F.3d at 371 (quoting Reeves , 530 U.S. 13 at 151). 14

C. Dismissal of the Discrimination Claims 15 The main thrust of defendants' motion for j udgment as a matter of law, as shown in the 16 transcript quoted in Part I.D. above, was that plain tiffs "ha[d]n't proven that Donald [Jr.] is suffering 17 from a disability" (Tr. 308). They argued that there was "no medical proof": "no physician[, n]o 18 psychiatrist[, n]o qualified psychologist even sayi ng that, expressing an opinion in this case that 19 Donald [Jr.] suffers from a disability" (id .); and they argued that there was no evidence that there was 20 any major life activity that Donald Jr. could not perform (id . at 309). 21 The contention that there was no medical evidence as to Donald Jr.'s disabling 22 condition was belied by the record itself, and the di strict court did not adopt that argument. Dr. 23

- - 22Romano, referred to by the district court as "the expert" (id . at 317), was Donald Jr.'s clinical 1 psychologist. Dr. Romano opined th at Donald Jr. suffered from ma jor depression and anxiety. Nor 2 did the court endorse defendants' argument that there was no major life activity that Donald Jr. could 3 not perform. Although the evidence plainly indicated that Donald Jr. was not totally dysfunctional, 4 "working" is a major life function, 24 C.F.R. § 100.201(b), and there was ev idence that even when 5 taking his prescribed medications--which Donald Sr. testified Donald Jr. would not take without 6 parental supervision--Donald Jr. could not engage in full-time or permanent work. Dr. Romano 7 testified that Donald Jr.'s depression "[a]bsolutely" interfered with his ab ility to work. (Tr. 170-71.) 8 Rather, the district court ruled that there was no evidence that Donald Jr.'s disability 9 was the reason for defendants' rejection of his parents' request that he be allowed to live with them 10 at Glenwood Village. In finding that defendants did not reject the senior Olsens' application to allow 11 Donald Jr. to live with them at Glenw ood because of Donald Jr.'s disability (see , e.g. , Tr. 315, 317), 12 the court stated that Dr. Romano's "letter [was] sent to the defendants for them to make a decision. 13 It has nothing to do with whether he is disabled or not but whether he can live independently, and that 14 is what they found" (id . at 316 (emphasis added)). But the di smissal on this ground did not apply the 15 above standards governing decisions on motions fo r judgment as a matter of law, for there was 16 evidence from which the jury could have reached contrary conclusions. 17 First, Stark testified at his deposition--and c onfirmed at trial--that "[t]he doctor's note 18 that I asked for was evidence of his disability." (Id . at 287.) Whether this sentence was meant 19 literally or instead meant that Stark asked for evidence of disability, it belies any suggestion that 20 Stark's request had "nothing to do with whether [Donald Jr. was] disabled." Second, the Romano 21 Letter in fact explicitly dealt with whether Donald Jr. was disabled. Its first substantive sentence-- 22

- - 23which was not included among the parts of the le tter read by the district court in announcing its 1 decision--stated, "Mr. Olsen is diagnosed with Major Depression, a condition he has had for many 2 years." 3 Third, there was ample evidence that the le tter was provided in response to a concern 4 expressed by Stark as to whether, if Donald Jr. livedat Glenwood with his pare nts, he would be able, 5 in light of his disability, to get along on his own fo r short periods of time if they were not there. 6 Barbara testified that Stark "asked me if I could get a letter from Donald's doctor stating his disability 7 and what it was and if he could be left alone for a short period of time ." (Tr. 83 (emphases added).) 8 Donald Jr. testified, "My mother told me that Mr. Stark had called and he requested a letter from Dr. 9 Romano stating my disabilityandif I could be left alone for a certain period of time while they're on 10 vacation " (id . at 124-25 (emphases added)), and that was the request he relayed to Dr. Romano (see 11 id . at 125). Dr. Romano confirmed th at that was the information relayed to him: that Stark Homes 12 "had requested something from his therapist, myself, to indicate that [Donald Jr.] could live, he can 13 live in that facility " (id . at 172-73 (emphasis added)). And the Romano Letter itself stated, "I 14 understand that you have concerns regarding Mr. Olsen's ability to live on his own at Glenwood " 15 (emphases added). 16 Thus, the explicit premise of the views st ated in the letter defendants received from 17 Dr. Romano was that Donald Jr. would be living "at Glenwood." The application to live at Glenwood 18 was made by Donald Jr.'s parents; there was no s uggestion whatever that Donald Jr. himself was an 19 applicant or that he would be living at Glenwood w ithout his parents. An interpretation of the letter 20 as addressing whether Donald Jr. could live alonegenerally, away from Glenwood Village, ignored 21 the letter's stated context. 22

- - 24Although defendants' motion for judgment as a matter of law argued that Stark should 1 not have been required "to read behindthe words" of Dr. Romano's letter (Tr. 309 (emphasis added)), 2 a rational juror could have found that Stark could not properly take the Romano Letter at face value 3 without considering all of its feat ures. Moreover, the jury would have been entitled to find that, in 4 order for Stark to recognize that the context of Dr . Romano's response was not in fact whether Donald 5 Jr. was capable of living alone generally, Stark ha d no need to go beyond the letter's own words; the 6 qualifying phrase "at Glenwood" spoke for itself. Dr. Romano's testimony that he "would assume" 7 it would have been reasonable for Stark Homes to interpret his letter as meaning that Donald Jr. could 8 generally live independently, away from Glenwood, without any support at all (id . at 178) was an 9 assumption the jury would not have been required to make or credit. 10 Finally, the district court's statement that D onald Jr.'s ability to "live independently . . . 11 is what [defendants] found " (id . at 316 (emphasis added)), and its ultimate finding that Donald Jr. was 12 not rejected "based upon his depression" (id . at 317), apparently credited the testimony of Stark. 13 However, as discussed in Part II.B. above, assessments of credibility are solely within the province 14 of the jury, which can choose to believe some parts and disbelieve other parts of any given witness's 15 testimony. The jury would not have been required to credit Stark's assertions that he simply 16 understood the Romano Letter to mean that Donald Jr . was able to live independently as a general 17 matter, divorced from any need to live with hi s parents who, by hypothesis, would be living at 18 Glenwood Village. Thus, the court, in ruling on defendants' motion for judgment as a matter of law, 19 was required to disregard Stark's testimony that defe ndants' rejection of Donald Jr. was unrelated to 20 his handicap. 21 With the evidence taken in the light most favorable to plaintiffs, the jury would have 22

- - 25been entitled (a) to credit Barbara's testimony that the concern Stark expressed to her was whether 1 Donald Jr. could be on his own fo r limited periods of time when his parents, with whom he would be 2 living at Glenwood Village, were away, particularlyas her version of Stark's request was supported 3 by the testimonies of Donald Jr. and Dr. Romano and by the language of the Romano Letter itself, and 4 was undisputed by Stark; (b) to take into account Stark's testimony that the senior Olsens were 5 approved to live at Glenwood withoutDonald Jr.; and (c) to infer that when Stark, in refusing to 6 reconsider his rejection of Donald Jr., told Barbara that he "d[id]n't need any trouble in this park like 7 that," that "trouble . . . like that" was a reference to Donald Jr.'s emotional illness, given that no other 8 interpretation of that statement appears in the record, and given that when LIHS Tester 1, without 9 indicating the presence of any handicap, told Stark she wanted to live at Glenwood with her sister who 10 was 49, Stark said there would be no problem. 11 Further, the jury could have viewed Stark's position, that Dr. Romano's letter meant 12 that Donald Jr. could live independently withoutany support, as unreasonable. And it could have 13 found from Stark's selective focus on statements taken out of context and from his testimony that 14 "[t]he letter from the doctor allowedme to apply the language of my lease to [Donald Jr.'s] situation" 15 (Tr. 289 (emphasis added)), that his chosen interpretation of the Romano Letter was opportunistic and 16 disingenuous. 17 The jury is not, of course, required to viewthe evidence in the light most favorable to 18 either side. But as the evidence in this case, taken inthe light most favorable toplaintiffs, as the court 19 was required to view it in considering defendants' motion, would have allowed the jury to find in 20 favor of plaintiffs, we conclude that the dismissal of the federal and state-law discrimination claims 21 as a matter of law was error. 22

- - 26That said, it is not clear that the housing discrimination laws provide Donald Jr. 1 himself with a cause of action for intentional disc rimination. For example, the FHA makes it unlawful 2 to discriminate against a "buyer or renter," 42 U.S.C. § 3604(f)(1), who "sought and w[as] qualified 3 to rent or purchase the housing," Mitchell v. Shane , 350 F.3d at 47, and Donald Jr. himself did not 4 seek to be a Glenwood lessor. However, as defendants did not raise this issue on appeal, we decline 5 to address it, and we leave it for further exploration on remand. 6

D. Dismissal of the Reasonable Accommodation Claims 7 The FHA also prohibits a housing provi der's "refusal to make reasonable 8 accommodations in rules, policies, practices, or services, when such accommodations may be 9 necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling." 42 U.S.C. 10 § 3604(f)(3)(B). The HRL likewise makes it unlawfu l "[t]o refuse to make" such accommodations. 11 N.Y. Exec. Law § 296(18)(2). 12 In order to prove a failure-to-accommodate claim, a plaintiff must show (1) that the 13 plaintiff or a person who would live with the plain tiff had a handicap within the meaning of § 3602(h); 14 (2) that the defendant knew or reasonably should have been expected to know of the handicap; (3) that 15 the accommodation was likely necessary to afford th e handicapped person an equal opportunity to use 16 and enjoy the dwelling; (4) that the accommodation requested was reasonable; and (5) that the 17 defendant refused to make th e requested accommodation. See , e.g. , Astralis Condominium Ass'n v. 18 Secretary, U.S. Department of Housing and Urban Development , 620 F.3d 62, 67 (1st Cir. 2010); 19 DuBois v. Association of Apartment Owners of 2987 Kalakaua , 453 F.3d 1175, 1179 (9th Cir. 2006). 20 "Plaintiffs must show that, but for the accommodati on, they likely will be denied an equal opportunity 21

- - 27to enjoy the housing of their choice." Ts ombanidis v. West Haven Fire Department , 352 F.3d 565, 1 578 (2d Cir. 2003) (internal quotation marks omitte d). Requested accommodations are reasonable 2 where the cost is modest and they do not pose an undue hardship or a substantial burden on the 3 housing provider. See , e.g. , Taylor v. Harbour Pointe Homeowners Ass'n , 690 F.3d 44, 49 (2d Cir. 4 2012). 5 In the present case, there app ears to be no dispute as to el ements (3), (4), and (5). 6 Given Glenwood Village's operation as a residential community for persons age 55 or older, 7 permission for Donald Jr., age 42, to live there because of his handicap would have required a 8 relaxation of the Stark Homes policy as expressed in the Glenwood Lease, which defendants refused. 9 Defendants do not contend that that requested accommodation was unreasonable; Stark testified that 10 allowing Donald Jr. to reside at Glenwood would not have imposed on Stark Homes any financial or 11 administrative burden (seeTr. 285) and would not have endangered Glenwood's status under the 12 FHA, see42 U.S.C. § 3607(b) (exempting, under certainconditions, housing intended for residents 13 age 55 or older from FHA protections for familie s with children), as a permissible 55-and-over 14 community (seeid . at 296-97). Rather, defendants' motion for judgment as a matter of law argued 15 that there was insufficient eviden ce (1) that Donald Jr. was handi capped, and (2) in light of Dr. 16 Romano's letter, that defendants should have known he could not live independently of his parents. 17 For the reasons set out in Part II.C. above, the evidence, taken in the light most 18 favorable to plaintiffs, was sufficient for the jury tofind those two elements satisfied. The jury could 19 have found that Donald Jr. suffered from major depression which, even when he took his medications 20 as prescribed, prevented him from working; and that unless he lived with his parents who would 21 supervise him in the taking of those medications morning and night, he was prone to not taking the 22

- - 28medications and would become suicidal. And a lthough defendants had not be en given details as to 1 the course and history of Donald Jr.'s condition, it would have been permissible for the jury to find 2 that defendants had been sufficiently informed as to his disability and his need to live with his parents. 3 We conclude that the district court should not have dismissed the reasonable accommodation claim 4 as a matter of law. 5 By the same token, however, we reject plaintiffs' contention that, on the reasonable 6 accommodation claim, the district court should havegranted judgment as a matter of law in their 7 favor. In connection with the motion by plaintiffs, th e court was required to view the evidence in the 8 light most favorable to defendants. Taken in th at light, the jury could have been unpersuaded that 9 defendants, to whom the senior Olsens did not provide details as to Donald Jr.'s history of 10 hospitalizations and suicide attempts, were required to accept at face value the senior Olsens' 11 representations that Donald Jr.'s mental illness n ecessitated his residing with them. The jury could 12 also have declined to view Dr. Romano's January 2008 Letter as sufficiently clear to show that 13 defendants knew or reasonably should have known thatit was necessary for Donald Jr. to live with 14 his parents and that he could not live independently. In addition, there was evidence that Donald Jr. 15 was a volunteer cook at the facility in which he had therapy sessions five times a week, that he served 16 as a mental health advocate through that facility, and that he "work[ed] closel y with [New York State] 17 Legislators in Albany, advocating for individuals w ith mental illness" (Romano Letter). Viewing that 18 evidence in the light most favorable to defendants, the jury could have been unpersuaded that Donald 19 Jr. was unable to work--the only major life activity in which plaintiffs' evidence suggested he was 20 substantially limited. 21 In sum, there were factual issues that the jury could resolve in favor of either side. 22

- - 29Accordingly, we remand plaintiffs' federal and state-law reasonable accommodation claims, as well 1 as their discrimination claims, for trial. 2

E. Other Arguments 3 As the case is to be remanded for trial, two other contentions by the parties warrant 4 brief mention. LIHS contends thatthe district court erred in re fusing to admit evidence of findings 5 made in a report of the New York State Divisi on of Human Rights ("DHR") on the administrative 6 complaints filed by LIHS. Defendants not only dis pute this contention but contend also that the 7 dismissal of any claims by LIHS should be affirmed on the ground that LIHS lacks standing to be a 8 plaintiff. 9 As to standing, the FHA provides a right of action for an "aggrieved person," 42 U.S.C. 10 § 3613(a)(1)(A), which is defined to include "any person who . . . claims to have been injured by a 11 discriminatory housing practice," id . § 3602(i)(1). This FHA definition of "aggrieved person" extends 12 "as broadly as is permitted by Article III of the Constitution." Trafficante v. Metropolitan Life 13 Insurance Co. , 409 U.S. 205, 209 (1972) (interpreting the substantially identical definition of "person 14 aggrieved" in the FHA as originally enacted, 42 U.S.C. § 3610(a) (1970)) (internal quotation marks 15 omitted). 16 Plaintiffs' complaint alleged that LIHS, as a not-for-profit corporation devoted to fair17 housing advocacy and counseling, had expended res ources in investigating and advocating on the 18 Olsens' behalf. LIHS wrote a letter to Stark Homes urging reconsideration of its denial of the Olsens' 19 application for permission for Donald Jr. to live w ith his parents at Glenwood; LIHS thereafter sent 20 testers to Glenwood to determine whether defendant s' practices were discriminatory on the basis of 21

- - 30disability. LIHS also prepared and pursued housing discrimination complaints on behalf of the Olsens 1 before HUD and DHR. LIHS alleged that these activ ities diverted resources of LIHS from its other 2 advocacy and counseling activities. 3 These are allegations of concrete and partic ularized injury to LIHS sufficient to give 4 it standing to pursue its claims for reimbur sement for the resources diverted. See , e.g. , Havens Realty 5 Corp. v. Coleman , 455 U.S. 363, 378-79 (1982) ("Havens "); Village of Bellwood v. Dwivedi , 895 6 F.2d 1521, 1526 (7th Cir. 1990) ("Havens makes clear . . . that the only injury which need be shown 7 to confer standing on a fair-housing agency is deflection of the agency 's time and money from 8 counseling to legal efforts directed against disc rimination."). "Of course, [LIHS] will have to 9 demonstrate at trial that it has indeed suffered impairment in its role of facilitating open housing 10 before it will be entitled to judicial relief." Havens , 455 U.S. at 379 n.21. 11 As to the admissibility of the DHR findi ngs, the Federal Rules of Evidence provide 12 that the hearsay rule does not exclude "[a] reco rd or statement of a public office if it sets out . . . in 13 a civil case . . . factual findings from a legally authorized investigation" and if "neither the source of 14 information nor other circumstances indicate a lack of trustworthiness." Fed. R. Evid. 803(8). Rule 15 803(8) "therefore renders presumptively admissible not merely . . . factual determinations in the 16 narrow sense, but also . . . conclusions or opi nions that are based upon a factual investigation," 17 Bridgeway Corp. v. Citibank , 201 F.3d 134, 143 (2d Cir. 2000) (int ernal quotation marks omitted); 18 but the trial judge "has the discretion, and indeed the obligation, to exclude an entire report or portions 19 thereof--whether narrow 'factual' statements or broader 'conclusions'--that she determines to be 20 untrustworthy," Beech Aircraft Corp. v. Rainey , 488 U.S. 153, 167 (1988). Once the proponent of 21 the evidence "has shown that a set of factual fi ndings satisfies the minimum requirements of Rule 22

- - 31803(8)[]," the party opposing admission bears the burden of showing a lack of trustworthiness. 1 Bridgeway Corp. v. Citibank , 201 F.3d at 143. 2 At the trial here, when LIHS asked a witne ss whether there had been an administrative 3 finding, the district court sustained defendants' objection and precluded this line of questioning, 4 stating, apparently in reference to the administrative proceedings, that "[t]here was no right to be 5 heard, no given opportunity to be h eard." (Tr. 209.) Defendants ar gue that LIHS cannot show that 6 "the court's refusal to admit the hearsay statement constituted an abuse of discretion" because LIHS 7 failed to offer the DHR report in evidence and failed to lay an evidentiary foundation for its 8 admission. (Defendants' brief on appeal at 49.) 9 The trial transcript indicates that plainti ffs may have been forestalled from laying a 10 foundation (seeTr. 209), and that there may not have b een a full exploration of the DHR report's 11 trustworthiness. We leave it to the district court to rule on the admissibility of the report, if it is 12 offered, on the basis of the record as it is developed on remand. 13

CONCLUSION 14

We have considered all of the parties' arguments on this appeal and, except as indicated 15 above, have found them to be without merit. For the foregoing reasons, the judgment dismissing 16 plaintiffs' claims is vacated, and the matter is remanded for trial. 17

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