Petitioner commenced this personal use holdover proceeding seeking to recover apartment 4A at 273 South 2nd Street, Brooklyn, New York 11211 "for the use and occupancy of a member of his immediate family as her primary residence...".

On August 20, 2007, this Court rendered a decision ( __ Misc 3d __, 2007 NY Slip Op 27356 ) which denied the respondent's motion for dismissal of the petition or in the alternative [*2]granting partial summary judgment on the issue of the respondent's "disability" and calendared the matter for trial on September 20, 2007.

Thereafter, on September 12, 2007, the respondent moved this Court for an order staying its decision pending the outcome of an appeal filed with the Appellate Term, 2nd Department, on September 11, 2007. The petitioner opposes the motion.

In the previous decision, this Court did not dismiss the petition for failure to serve a proper "Golub" Notice as the predicate notice requested that the respondent immediately notify the petitioner if she is either a senior citizen or disabled. Either or both conditions require that affirmative steps be taken by the respondent to prove her senior status (not applicable here) or, as in this case, that she is disabled within the definition of the Rent Stabilization Code [RSC].^[FN1]

The respondent's instant motion again raises the argument that "there is no need for a hearing to establish disability in Housing Court when the Social Security Administration has already made a finding of disability. As the language of the Social Security Act [SSA] mirrors that of the Rent Stabilization Code [RSC], the Respondent here should be found disabled within the meaning of the Rent Stabilization Code as well." (Resp. Atty. Aff. ¶ 5)

As the Court noted in its first decision, "[d]espite the more stringent' standards of the SSA than the RSC regarding whether an individual qualifies as disabled' to prevent eviction from his or her rent stabilized premises for the landlord's personal use, this Court is not prepared to accept as a fait accompli an uncertified printout, without more, as a basis to deny the petitioner an opportunity to legally recover his premises when the respondent's lease expired."

The respondent contends that "[t]here is no issue of fact regarding Respondent's disability because we have presented more than enough regarding the existence of the disability, the nature of it, and its extent." (Resp. Atty. Aff. ¶ 8, emphasis added)

Contrary to this statement, the only proof submitted was a xeroxed copy of a printout showing SSI payments with the words "disabled person" on it. The nature and extent of that "disability", which is what the petitioner is questioning, has never been presented to either the petitioner's attorney or the Court.

The respondent asserts that "[i]t is inappropriate to question the supremacy of the Social Security Administration, an agency charged with making determinations of disability on a daily basis. This Court has no expertise to second-guess the medical findings of the Social Security Administration merely because it would be convenient for the landlord. Housing Court judges are not qualified to make medical determinations where a disability decision has already been made. Housing Court judges are not trained in the complex medical field, and the Housing Court should not substitute its opinion for the reasoned decision of the SSA. Under the Supremacy Clause, the decision already made by the federal government controls. Since the SSA has resolved the issue of disability, there is no disability issue in controversy." (Resp. Atty. Aff. ¶ 6)

This Court does not agree with that position. In the first place, there is nothing in the [*3]RSC definition of "disabled person" that requires this Court to automatically accept the determination of "disability" by any other local, state or federal agency as the sine qua non that the individual is, in fact, disabled for the purposes of the RSC. If the Legislature had intended that to be the case, it could have added a provision to that effect into the statutory definition. Merely because one statute "mirrors the concept" of the other (See, Gogu v. Ely, 152 Misc 2d 169, 575 NYS2d 238 [Civ. Court, 1991]) does not render them identical for all purposes.

Secondly, the respondent's assertion that "Housing Court judges are not qualified to make medical determinations where a disability decision has already been made" and that "Housing Court judges are not trained in the complex medical field" belies the fact that the RSC does not require such medical expertise by judges in rendering such a finding. If, in any given situation, there is no prior determination of disability by another agency and a tenant's medical condition is called into question, who but the Housing Court judge is there to make such a finding? The RSC does not require the Housing Court judge, as the finder of fact, to defer to another agency with the "expertise" to reach a determination in that regard. By the same token, it is not the function of the SSA to determine a person's "disability" with regard to what, if any, impact it will have on the person's housing status. The role of the SSA in determining "disability" is mutually exclusive of the purposes of the RSC. The former is designed to assist an individual in obtaining federal funds to enable him or her to have the means to pay for food, shelter, etc. The latter was enacted by the state to protect a tenant's rights with respect to his or her housing. They are not co-dependent on one and other.

In its original motion, the respondent relied on the case of Gogu v. Ely, supra, wherein the court accepted the SSA finding of disability to conclude that the tenant was "disabled" under the RSC because, as stated above, the definition "mirrors the concept focused in the SSA". In the instant motion, the respondent states that "Housing Court judges in Kings County routinely held that an SSI determination renders tenants disabled as defined by the RSC in the owner's use context." (Resp. Atty. Aff. ¶ 15, citing Gogu v. Ely, supra ) In support of that statement, the respondent provides only two (2) Housing Court decisions which do nothing more than either cite or parrot the language of Gogu v. Ely, supra, to reach the same conclusion. In neither case, however, did the court dismiss the proceeding.

With all due respect to counsel for the respondent and my colleagues in those decisions, there was no additional guidance or framework or explanation set forth therein to warrant this Court to join the parade in following Gogu v. Ely, supra.

Here, the petitioner questions the nature and extent of the respondent's "disability" and this Court firmly believes that such information should be forthcoming if challenged, especially since it is the respondent who is raising her "disability" as an affirmative defense.

The respondent argues that "an Order to Show Cause is necessary to prevent her from having to release her medical history when there is really no need for such disclosure. For public policy reasons, Respondent should not be faced with a choice between loss of her home and release of her private medical records." (Resp. Atty. Aff. ¶ 10) The respondent maintains that because the petitioner brought this case, as opposed to a case that would be initiated by her for damages from an accident, for example, the Court has now placed her in the position of having to grant access to confidential records which affects her privacy concerns. Respondent's argument is misplaced. Since, as more fully set forth in the decision being appealed, the respondent has the burden to affirmatively raise her disability as a defense to a personal use [*4]holdover proceeding, it is the Legislature, and not the Court, that created this situation. If the respondent wishes to avail herself of her right to challenge the petition on these grounds, she cannot use her "disability" as both a sword and a shield. The respondent has already placed her medical condition in play by setting forth her conditions in her affidavit in the original motion to dismiss. Therefore, at this juncture, the issue of privacy is no longer relevant. If the respondent was not truthful or forthcoming in her affidavit about the extent of her medical condition then it will be an issue for the trial judge to decide whether there should be any preclusion of additional evidence pertaining to conditions that were not revealed.

This motion to stay this proceeding pending the final outcome of the appeals process is, in effect, a motion to reargue and re-litigate the Court's decision not to accept the limited evidence presented to find her "disabled" as a matter of law.

Accordingly, the motion to stay this proceeding pending appeal is denied. The parties are directed to appear in Part C on October 8, 2007 at 9:30 A.M. at which time the matter will be referred to the Expediter for immediate trial.

This constitutes the Decision and Order of the Court.

Dated: September 27, 2007___________________________________

George M. Heymann, JHC