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Makel v. Krotoff


March 3, 2009


On appeal from the Division on Civil Rights, HP21W0-06302.

Per curiam.


Submitted February 10, 2009

Before Judges Fuentes and Chambers.

In September 2006, complainant Rudolph Makel became a tenant in a four unit apartment building owned by respondent Sophia Krotoff. When respondent declined to renew the lease a year later, complainant moved out. In January 2008, complainant filed a formal complaint with the Division on Civil Rights (Division), contending that respondent had discriminated against him in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, in failing to renew the lease because of his physical disability, namely liver cirrhosis, and his receipt of rental assistance payments.

The Division conducted an investigation into these allegations pursuant to N.J.A.C. 13:4-4.1(b). The investigation revealed that respondent had accepted rental assistance payments from complainant when his lease commenced in September 2006, that she had accepted rental assistance payments from another tenant in the past, and that at the time of the investigation she was accepting rental assistance payments on behalf of another tenant. The respondent indicated that she was unaware that complainant had a disability until the complaint was filed. Complainant provided no evidence that he had a disability or that he needed an accommodation.

Respondent indicated that complainant's lease was not renewed due to the numerous complaints she had received about complainant's behavior from other tenants and her caretaker for the apartment building. The Division's investigator interviewed tenants in the building who indicated that they were disturbed by complainant's conduct in playing loud music, cursing at them, leaving signs and posters on their doors calling them Communists, and keeping bird feeders that attracted bears. Due to his harassment, they no longer held barbecues in the backyard.

The investigator concluded:

[T]he investigation did not substantiate Complainant's claim that Respondent forced him to vacate his apartment on September 30, 200[7], due to physical disability (Liver Cirrhosis) and his source of lawful income or rent subsidy. The evidence supported Respondent's assertion that Complainant's lease was not renewed due to lease violations and his offensive behavior toward the landlord Sophia Krotoff and other tenants.

As a result of this investigation, the Division issued a finding dated April 29, 2008, that there was no probable cause to support the allegations of the complaint. See N.J.A.C. 13:4-10.2(a) (providing that upon the completion of an investigation of a complaint of discrimination the Director shall issue a finding of "whether or not probable cause exists to credit the allegations of the verified complaint"). A finding of no probable cause is a final order. N.J.A.C. 13:4-10.2(e).

Complainant appeals the Director's finding of no probable cause to this court.

In our review we must accord deference to the agency's decision, and will reverse only where the agency's determination is "arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole." N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)) (alteration in original). A finding of no probable cause will be issued when the investigative findings show "that there is not a reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious person in the belief" that the LAD has been violated. N.J.A.C. 13:4-10.2(c). After a careful review of the record, we conclude that the record amply supports the Division's determination that there is no probable cause for the allegations in the complaint.



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