Sattler v NYC Commission of Human Rights Notice of Motion for Leave as Amicus Curiae

    SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION - SECOND DEPARTMENT
ROBERT SATTLER,

X

Petitioner-Respondent,
NOTICE OF MOTION

-against- FOR LEAVE TO APPEAR
AS AMICUS CURIAE
Cal. No. 90-03058

THE CITY OF NEW YORK COMMISSION Westchester County
ON HUMAN RIGHTS, Index No. 118-90

Respondent-Appellant,

for an Order pursuant to Section 8-110,
NYC Administrative Code, vacating the 
Decision and Order of the Respondent- 
Commission dated November 30, 1989, in 
the matter entitled McCourv v. Sattler.
Complaint No. GA-00097031688-DN. 
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _  _ x

PLEASE TAKE NOTICE that, upon the annexed affirmation of 

Robert M. Petrucci, executed on August 8, 1990, upon the proposed 

brief dated August 8, 1990 and attached hereto as Exhibit A, and 

upon all the papers and proceedings herein, the undersigned will 

move before this Court at 45 Monroe Place, Brooklyn, New York at 

9:30 a.m. on August 17, 1990, or as soon thereafter as counsel can 

be heard, for an order granting the legal rights and advocacy 

organizations named in the proposed brief leave to appear as amici 

curiae in the above-entitled appeal, and for such other relief as 
may be just.

Dated: New York, New York
August 8, 1989

GULIELMETTI & GESMER, P.C.
by: Robert M. Petrucci, Esg.
Attorneys for Movants
401 Broadway
New York, New York 10013
(212) 219-2114



TO: HASHMALL, SHEER, BANK & GEIST
Attorneys for Petitioner-Respondent 
Attn: Jay Hashmall, Esq.
235 Mamaroneck Avenue 
White Plains, New York 10605 
(914) 319-4000

VICTOR A. KOVNER, Corporation Counsel
Attorneys for Respondent-Appellant 
Attn: Tim O 'Shaughnessy, Esq. 
Attorneys for Respondent-Appellant 
100 Church Street 
New York, New York 10007 
(212) 566-6040



SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION - SECOND DEPARTMENT
ROBERT SATTLER,

X

Petitioner-Respondent, 

-against-
AFFIRMATION IN 
SUPPORT OF MOTION 
FOR LEAVE TO APPEAR 
AS AMICUS CURIAE
Cal. No. 90-03058

THE CITY OF NEW YORK COMMISSION 
ON HUMAN RIGHTS,

Westchester County 
Index No. 118-90

Respondent-Appellant,

for an Order pursuant to Section 8-110,
NYC Administrative Code, vacating the 
Decision and Order of the Respondent- 
Commission dated November 30, 1989, in 
the matter entitled McCourv v. Sattler. 
Complaint No. GA-00097031688-DN. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _  _ x

ROBERT M. PETRUCCI, an attorney duly authorized to practice 

in the courts of the State of New York, affirms that the following 

is true under penalties of perjury pursuant to CPLR §2106:

1. I am associated with Gulielmetti & Gesmer, P.C., 

attorneys for the movants who are the legal rights and advocacy 

organizations named on the cover of the proposed brief which is 

attached as Exhibit A and I am fully familiar with the facts and 

circumstances set forth in this affirmation.

2. I submit this affirmation in support of the instant 

application by movants for leave to appear as amici curiae in the 
above entitled matter.

3. This is an appeal from a decision and judgment of the 

Supreme Court, Westchester County (Rosato, J-), granting

1



i l  i
I!

respondent 's petition and vacating appellant's decision and order 

which had determined that respondent had committed a
||

I discriminatory act in violation of the New York City Human Rights 

Law. (A true copy of the lower court's decision and judgment ! 

entered on or about March 21, 1990 is attached hereto as Exhibit 

B.)

4. Appellants served respondent with a Notice of Appeal 

from each and every part of the March 21 Judgment on or about 

April 6, 1990. (A true copy of the Notice of Appeal is attached

i j  hereto as Exhibit C.)

5. Movants seek leave to appear as amici in this appeal 

because it raises two questions of law which are of great 

importance to the members of their organizations and/or to the
I

clientele whom they serve.

6. The first is whether, as a matter of law, a dentist'sj
office may never be a public accommodation as that term is defined 
in the New York City Human Rights Law.

7. The second is whether the dental office of petitioner- 

respondent, who accepts clients by referral, is "distinctly

.I private" as the phrase is defined in the law and, therefore, 

exempt from the prohibitions against certain forms of
;

'j discrimination.

8. The movant organizations are state and nationwide legal ; 

j rights and advocacy groups which have long histories of protecting

! and furthering the rights of individuals specifically covered by 

the Human Rights Law. Collectively, they represent all classes of

I!

2



individuals which the New York City Council has explicitly 

determined require special legal protection because blatant and 

subtle discrimination has historically prevented these individuals 

from gaining equal access to public accommodations.

9. It is movants' desire to ensure that the Human Rights 

Law be given the full effect intended by the City Council. The 

Court below held that a dentist's office is not a public

| accommodation under the city law. This position and the court's 

reasoning in arriving at that conclusion will severely restrict 

the number and type of establishments which are subject to the

anti-discrimination requirements.
i

10. Additionally, a finding that petitioner-respondent's 

office is "distinctly private" and, therefore, exempt from 

regulation will severely broaden the number and type of 

establishments which are exempt from the law.

11. The construction which this Court gives to the statute 

in this appeal will be critical to movants' ability to secure 

equal access to public accommodations for all citizens.

12. Because this Court's decision can have such a 

significant impact on their ability to carry out their work, 

movants seek an opportunity to present to the Court arguments in 

support of respondent-appellant why the judgment below should be 
reversed.

13. Given the nature of movants' work, they have a 

particular familiarity with the Human Rights Law and its history 

and an expertise gained from direct participation in hundreds of

3



individual cases over decades concerning the application of laws 

banning discrimination in public accommodations.

14. Movants have recently been granted leave to appear as 

arcici curiae in cases involving similar issues by the Appellate 

Division, First Department, in Hurwitz v. N.Y.C. Commission on

Human Rights, ___ A.D.2d ___, 553 N.Y.S.2d 323 (1990) and by the

Appellate Division, Third Department, in Elstein v. State Division 

of Human Rights. ___ A.D.2d ___, 555 N.Y.S.2d 516 (1990).

15. Appellant's counsel stated to me that he would agree to 

any reasonable extension of respondent's time to file his brief 

which may be necessary as a result of granting this motion, so as 
not to cause respondent any prejudice.

WHEREFORE, I believe that the attached brief to be submitted 

will be of special assistance to this Court and I respectfully 

request that the groups named and described in the brief be 

granted leave to appear as amici curiae in this appeal.

Dated: New York, New York
August 8, 1990



SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION - SECOND DEPARTMENT
ROBERT BATTLER,

X

Petitioner-Respondent,
-against- Cal. No. 90-03058

THE CITY OF NEW YORK COMMISSION Westchester County
ON HUMAN RIGHTS, Index No. 118-90

Respondent-Appellant,
for an Order pursuant to Section 8-110,
NYC Administrative Code, vacating the 
Decision and Order of the Respondent- 
Commission dated November 30, 1989, in 
the matter entitled McCourv v. Sattler.
Complaint No. GA-00097031688-DN. 
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _  _ x

BRIEF ON BEHALF OF THE AMERICAN CIVIL LIBERTIES UNION,
THE AMERICAN JEWISH CONGRESS, THE ASIAN AMERICAN LEGAL 
DEFENSE AND EDUCATION FUND, THE CENTER FOR CONSTITUTIONAL 
RIGHTS, DISABILITY ADVOCATES, INC., THE LAMBDA LEGAL 
DEFENSE AND EDUCATION FUND, THE LEGAL ACTION CENTER OF 
THE CITY OF NEW YORK, INC., LEGAL SERVICES FOR THE 
ELDERLY, NAACP LEGAL DEFENSE AND EDUCATION FUND, INC.,
THE NATIONAL EMERGENCY CIVIL LIBERTIES COMMITTEE, THE 
NATIONAL LAWYERS GUILD, THE NOW LEGAL DEFENSE AND 
EDUCATION FUND, THE PUERTO RICAN LEGAL DEFENSE AND 
EDUCATION FUND, INC. AS AMICI CURIAE IN SUPPORT OF 
APPELLANT

GULIELMETTI & GESMER, P.C.
401 Broadway 

New York, New York 10013 
(212) 219-2114

AMERICAN CIVIL LIBERTIES UNION FOUNDATION
AIDS PROJECT 

132 West 43rd Street 
New York, New York 10036 

(212) 944-9800
NATIONAL LAWYERS GUILD 

55 Avenue of the Americas 
New York, New York 10013 

(212) 966-5000
Attorneys for Amici Curiae



TABLE OF CONTENTS
Page

INTEREST OF AMICI CURIAE ............................. 1
INTRODUCTION ..........................................  8
ARGUMENT

THE NEW YORK CITY HUMAN RIGHTS LAW 
PROHIBITS RESPONDENT FROM REFUSING TO 
TREAT A PATIENT SOLELY BECAUSE THE
PATIENT HAS A I D S .................................  11
A. A DENTIST'S OFFICE IS A PUBLIC

ACCOMMODATION UNDER THE HUMAN RIGHTS LAW. . 12
1. A dentist's office is an "establishment 

dealing in...services" within the 
meaning of the phrase as used in the
statute.................................  15

2. A dentist's office is a "clinic" within 
the meaning of the term as used in the
statute.........................  19

3. A statutory interpretation which holds 
that a dentist's office is a public 
accommodation furthers the purpose
underlying the Human Rights Law. . . .  21

4. Courts and agencies, both in and outside 
of New York have held that dentist's
offices are public accommodations. . . .  23

B. RESPONDENT'S DENTAL OFFICE, WHICH ROUTINELY 
ACCEPTS AS NEW PATIENTS MEMBERS OF THE GENERAL 
PUBLIC ON AN INDIVIDUALIZED FEE-PAYING BASIS,
IS NOT EXEMPT AS DISTINCTLY
PRIVATE........................................ 2 5

CONCLUSION 37



INTEREST OF AMICI CURIAE
Amici are legal rights and advocacy organizations committed to 

protecting and furthering the rights of individuals specifically 

covered by the New York City and New York State Human Rights Laws. 

Collectively, amici represent all of the classes of individuals 

whom the New York City Council and the New York State Legislature 

have determined require special statutory protection from 

discrimination because they have suffered and continue to suffer 

both blatant and subtle discrimination which has prevented them 

from participating fully in the social life and economic 

opportunities of this City and State.

The AMERICAN CIVIL LIBERTIES UNION is a nonprofit corporation 
founded in 1920 for the purpose of maintaining and advancing civil 

liberties in the United States without regard to political 

partisanship. It is composed of more than 200,000 members across 

the country. The New York Civil Liberties Union is its New York 

affiliate. The American Civil Liberties Union has been involved in 

numerous federal and state cases concerning the right of privacy, 

due process of law, the right to equal treatment under the law, 

freedom of speech and expression, equal access to public 

accommodations, and other issues of civil rights and liberties.

The AMERICAN JEWISH CONGRESS has sought to combat all forms of 
invidious discrimination ever since its founding in 1918. In 1946 

and again in the late 1960's, it participated in the drafting and

1



enactment of New York's anti-discrimination law and brought some of 

the first cases under that law.

The ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND (AALDEF) 

is a fifteen year old civil rights organization committed to equal 

opportunity. AALDEF's program priorities include voting rights, 

immigration rights, elimination of anti-Asian violence, labor and 

employment rights, housing, health care and land use. In its view, 

this case presents issues critical to providing fair and equal 

access to dental care for thousands of Asian Americans.

The CENTER FOR CONSTITUTIONAL RIGHTS (CCR) was founded in 1966 
as a not-for-profit tax exempt legal and educational organization. 

Since that time, it has provided representation and assistance free 

of charge to individuals and organizations who seek to bring major 

constitutional cases. CCR has been actively involved in the 

defense of the rights of minorities, women, gay men and lesbians, 

political dissenters, and others who have been denied their rights 

under the federal and state constitutions and other laws.

DISABILITY ADVOCATES, INC. was founded in 1987 as a not-for- 

profit tax exempt organization for the purpose of providing 

advocacy services for people with disabilities. It receives a 

grant from the New York State Commission on Quality of Care for the 

Mentally Disabled to protect and advocate for the rights of persons 

diagnosed as mentally ill and provides protection and advocacy 

services in the Hudson Valley Region pursuant to the Protection and

2



Advocacy for the Mentally 111 Individuals Act of 1986, 42 U.S.C.

Section 10801.

The LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. ("Lambda"), 

was founded in 1973 as a New York not-for-profit corporation to 

protect the civil rights of homosexuals and to initiate or join in 

judicial and administrative proceedings whenever legal rights and 

interests of significant number of homosexuals may be affected. 

Lambda has participated as counsel or amicus curiae in numerous 

cases involving the legal rights of lesbians, gay men, and people 

with AIDS or HIV-related conditions in state and federal courts 

across the country, including several leading cases in New York 

concerning HIV- and AIDS- related discrimination.

As an organization representing the lesbian and gay 

community's belief in broad and rigorous enforcement of human 

rights laws, Lambda has a strong interest in the outcome of this 

particular case and in the development of legal precedents that 

eliminate discriminatory denials of dental care to people with 

AIDS, lesbians and gay men.

The LEGAL ACTION CENTER OF THE CITY OF NEW YORK, INC. is a

public interest organization, one of whose primary purposes is to 

make effective the protections against discrimination based on 

disability - especially AIDS - that are conferred by the Human 

Rights Law. Litigation by the Center has helped to clarify the 

scope of the Human Rights Law and ensured that its broad remedial 

purposes are given practical effect.

3



The Center has a special commitment, supported by a grant from 

the State AIDS Institute, to ensure that persons with AIDS have 

access to essential services and overcome barriers to health care 

caused by discrimination. Thus, the Center is vitally interested 

in ensuring that this case is resolved in a manner that properly 

reflects and advances the State's commitment to eradicating 

disability-based discrimination, and to ensuring equal access to 

dental care for those with the particular disability of AIDS.

LEGAL SERVICES FOR THE ELDERLY (LSE) is the oldest legal 

services program for the elderly in the United States. LSE 

represents the elderly poor throughout the New York City area and 

has as its special focus the frail and disabled elderly. LSE was 

instrumental in drafting the "Patients' Bill of Rights," and has 

litigated on behalf of the elderly in both state and federal courts 

to protect their rights to medicare and medicaid benefits and to 

secure adequate health care for homebound patients.

LSE' s clients have a deep and continuing interest in this 

case. The disabled elderly are particularly dependent on the 

services provided by dentists in their neighborhoods as they are 

often unable to travel and are often in need of frequent dental 

attention. The result in this case will directly affect the 

ability of LSE1s clients to obtain access to necessary dental care 
for its clients.

The NAACP LEGAL DEFENSE AND EDUCATION FUND, INC. is a non­

profit corporation organized under the laws of the State of New

4



York in 1939. It was formed to enable Black Americans to secure

their constitutional and civil rights through the prosecution of 

lawsuits. For many years, the Legal Defense Fund's attorneys have 

represented parties and participated as amicus in federal and state 

courts nationwide. The Fund has a long-standing interest in the 

scope of statutes that ban discrimination in public accommodations. 

One of the most severe and demeaning practices inflicted on Black 

citizens for many years was their exclusion from facilities open to 

members of the public who were white. In addition, discrimination 

against Blacks in the furnishing of medical care has been a long­

standing and persistent problem. Therefore, the question of 

whether a private dental office is a place of public accommodation 

under New York state law is of importance to the Fund's ability to 

vindicate the rights of its clients.

The NATIONAL EMERGENCY CIVIL LIBERTIES COMMITTEE is a not-for- 
profit organization dedicated to the preservation and extension of 

civil liberties and civil rights. Founded in 1951, it has brought 

numerous actions in the federal courts to vindicate constitutional 

rights. From time to time, the National Emergency Civil Liberties 

Committee submits amicus curiae briefs to the courts when it 

believes issues of particular import to civil liberties are at 

stake, as they are in this case.

The NATIONAL LAWYERS GUILD, founded in 1937, is an 

organization of 7,000 legal practitioners in 200 chapters 

throughout the United States, more than a dozen of which are in New

5



York State. The Guild and its members have provided legal support 

to virtually every struggle in the country for economic, social and 

political justice. The Guild has a National AIDS Network which 

coordinates representation of people with AIDS or related 

conditions and publishes a comprehensive practice manual. It is 

involved in educational efforts directed at the general public to 

eliminate discrimination against those who are infected and iecure 

adequate health care for those in need.

The NOW LEGAL DEFENSE AND EDUCATION FUND is a national 

nonprofit advocacy organization dedicated to the elimination of sex 

discrimination. Since its inception in 1970, the NOW Legal Defense 

and Education Fund has been involved in numerous federal and state 

cases concerning the issues of women's health and broader and more 

progressive application of public accommodations laws.

NOW Legal Defense and Education Fund is especially concerned 

with the issues raised in this case since AIDS is the leading cause 

of death of women between the ages of 25-34 in the New York City 

metropolitan area. Women currently make up at least 10% of all the 

people with AIDS and over 80% of these women are women of color. 

Ensuring non-discriminatory access for these and all women to 

adequate health care is part of NOW LDEF's mission.

The PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, INC. was 

established in 1972 as a national, not-for-profit organization to 

protect and promote the civil rights of Puerto Ricans and other 

Latinos. The Fund's advocacy and litigation efforts focus on

6



education, employment, health care issues, and housing, as well as 

political access and representation.

7



INTRODUCTION
A broad coalition of state and national civil rights and civil 

liberties organizations appears as amicus curiae in this case to 

urge this Court to reject the lower court's conclusion that, as a 

matter of law, dentists' offices may never be public accommodations 

subject to the Human Rights Law and to reverse the lower court's 

more specific holding that petitioner-respondent Sattler's office 

is exempt from the law because he takes patients on a referral-only 

basis and implicitly falls within the statutory exception created 

for "distinctly private" accommodations.

These determinations by the court below are contrary to the 

plain language of the Human Rights Law and its interpretation by 

the New York Court of Appeals and the U.S. Supreme Court. If this 

Court adopted the lower court's position, it would severely and 

unjustly limit the reach of New York's anti-discrimination laws. 

It would also deny all members of protected classes egual access to 

dental services provided by individual dentists, even though dental 

services are often inadequate and/or unavailable at public 

institutions and the public relies on individual dentists to meet 

its dental care needs. The City Council intended that individual 

dentists provide these services without regard to real or perceived 

race, creed, color, national origin, alienage, citizenship, gender, 

marital status, sexual orientation or disability.

Particularly dangerous is the lower court's holding that the 

professional nature of Sattler's services and his referral-only

8



policy deprives his patients of the protections against 

discrimination provided by the Human Rights Law. If accepted, the 

reasoning in support of this holding would permit invidious 

discrimination by those whose services are most necessary. Not 

just dentists, but virtually all professionals would be able to 

avoid the proscriptions of the Human Rights Law with impunity. The 

City Council did not intend that a vital group of service providers 

be beyond the statute's reach. Professional businesses are not 

exempt from the obligation to serve equally and with dignity all 

members of our communities.

When state legislatures began to adopt public accommodation 

laws after the civil war, they recognized that governmental 

intervention to bar discrimination by privately-owned businesses 

was necessary to protect the public welfare. Society as a whole is 

enriched when each individual has an equal opportunity to enjoy a 

full and productive life. State legislatures and city governments 

around the country, including New York's, have progressively 

broadened the law both with respect to the facilities covered and 
the groups protected.

In response, the courts of all jurisdictions, including the 

New York Court of Appeals and the U. S. Supreme Court, have 

consistently interpreted the phrase "public accommodation" in a 

manner which gives the fullest reach to policies underlying the 

statutes. They have recognized that laws prohibiting

9



discrimination in public accommodations serve compelling state 

interests of the highest order.

The lower court's restrictive, ungrounded analysis of the 

Human Rights Law not only ignores the language and purpose of the 

particular statute, but also flies in the face of the goals which 

this nation has long expressed through anti-discrimination 

legislation. It is this tradition which amici civil rights 

organizations seek to protect.

10



ARGUMENT
THE NEW YORK CITY HUMAN RIGHTS LAW PROHIBITS 
RESPONDENT FROM REFUSING TO TREAT A PATIENT 

SOLELY BECAUSE THE PATIENT HAS AIDS
New York City Administrative Code (the "Code") bans

discrimination in public accommodations. Title 8 of the Code

("Human Rights Law") states:

It shall be an unlawful discriminatory practice for any 
person, being the owner, lessee, proprietor, manager, 
superintendent, agent or employee of any place of public 
accommodation, resort or amusement, because of the race, 
creed, color, national origin, or sex, any person, 
directly or indirectly, to refuse, withhold from or deny 
to such person any of the accommodations, advantages, 
facilities or privileges thereof....

N.Y.C. Admin. Code § 8-107(2). Section 8-108 of the Code makes

these prohibitions applicable to persons who are physically or

mentally handicapped.

Although the court below implicitly acknowledged that the 

complainant before the New York City Commission on Human Rights 

("Commission") , as an HIV seropositive individual, was disabled and 

covered by the statute, it erroneously held that respondent Sattler 

may escape liability for discriminatory conduct. In support of its 

holding, the lower court found that dental offices are not public 

accommodations covered by the Human Rights Law and that, even if 

they were, Sattler's particular office is exempt from regulation 

because he accepts patients on a referral-only basis which 

presumably means it falls within the "distinctly private" exception

11



contained in the law. See N.Y.C. Admin. Code §8-102(9). This 

analysis must be rejected.1

A. A DENTIST'S OFFICE IS A PUBLIC ACCOMMODATION UNDER THE
HUMAN RIGHTS LAW
Statutes prohibiting discrimination in public accommodations 

were adopted because governmental bodies determined that certain 

forms of discrimination are so invidious that they threaten the 

general welfare of a democratic state and of its inhabitants by 

undermining individual dignity and inhibiting wide participation in 

political, social, economic and cultural life. Heckler v. Mathews. 

465 U.S. 728, 744-745, 104 S.Ct. 1387, 1397-1398 (1984); People v. 

King, 110 N.Y. 418, 426, 18 N.E. 245, 248 (1888). This is an

extension of the common law rule, most often associated with common 

carriers and innkeepers, that the proprietor of a private 

enterprise who provides a necessary service has a duty to 

accommodate all in a fair and just manner. See Jacobson v. N.Y. 

Racing Association. Inc.. 33 N.Y.2d 144, 150, 350 N.Y.S.2d 639, 642 

(1973); In Re Cox. 474 P.2d 992, 996 (Ca. 1970); Tobriner & Grodin, 

The Individual and the Public Service Enterprise in the New 

Industrial State. 55 Cal.L.Rev. 1247, 1250 (1967). Public

accommodations statutes assure that each individual's need for 

goods and services is met; they serve "compelling state interests

1 The court below also vacated the Commission's order based 
on its finding that the agency's determination of actual discrimi­
nation was not supported by substantial evidence. Amici take no 
position on this issue.

12



Roberts v. United States Javcees. 468 U.S.of the highest order."

609, 624, 104 S .Ct. 3244, 3253 (1984).

"Public accommodations," as defined in modern statutes, refer 

to those businesses or associations which, though privately 

operated, serve or are open to the general population; as such, 

they are to some extent public because they affect the "safety, 

health. morals and welfare of the community" and are subject to the 

state's interest in ensuring that each citizen has equal access to 

them. Ness v. Pan American World Airways. 142 A.D.2d 233, 238, 535 

N .Y .S .2d 371, 374 (2nd Dept. 1988) (emphasis added) ; see generallv 

Note, Discrimination in Access to Public Places: A Survey of State

and Federal Accommodations Laws. 7 N.Y.U. Rev.L. & Soc. Change 215 
(1978) .

The court below ignores this modern concept and application 

when it holds that a dentist's office, or for that matter any 

professional office, falls outside of the definition of a public 

accommodation. Any establishment which offers goods or services of 

any kind is covered by the Human Rights Law. Id. at 218. Public 

accommodation is a "term of convenience, not limitation" which even 

covers those establishments which have "no fixed place of 

operation." U.S. Power Squadrons v. State Human Rights Appeal 

Board. 59 N.Y.2d 401, 411, 452 N.E.2d 1199, 1207, 465 N.Y.S.2d 871, 

875-876 (1983). For example, New York State abandoned limiting the 

reach of its Human Rights Law to specific places in 1960 in favor

13



of a non-exclusive, descriptive list. See L. 1960, c. 779 (eff. 

April 25, 1960) .

The definition of public accommodation in the New York City 

Human Rights Law is also very broad. Mirroring the definition 

under State law, it comprises both a long, non-exclusive list of 

examples, such as "clinics, hospitals, dispensaries" and a 

functional definition, "establishments dealing with goods or 

services of any kind." N.Y.C. Admin. Code §8-102(a) (emphasis 

added) ; see also Exec. Law §292 (2). By both using the more 

functional phrase, "establishments dealing with...services of any 

kind" and listing the specific terms "clinics, hospitals [and] 

dispensaries," the City Council manifested its intent that all 

places where medical and dental services are provided, including 

individual dentists' offices, be subject to the ban on unlawful 

discriminatory practices.

This is consistent with its purpose in enacting the statute, 

and the agencies charged with implementing the Human Rights Law 

have correctly so interpreted it. Courts of other jurisdictions 

have reached similar conclusions in examining similar laws. Given 

that individual dentists provide a large percentage of necessary 

dental care services, any other conclusion would undercut the 

purposes to be served by state regulation of private enterprises 

which are affected with a public interest.

14



1. A dentist's office is an "establishment 
dealing in... services" within the meaning of 
the phrase as used in the statute.

Contrary to the lower court's reasoning (R. 17-21), dentists' 

offices come within the statute's functional definition of public 

accommodations, that is, "all places included in the meaning of 

such terms as: ... establishments dealing with goods or services

of any kind ...." N.Y.C. Admin. Code §8-102(a). The inclusion of 

a functional definition in addition to the specific list of covered 

facilities offers a clear indication that the definition of place 

of accommodation should be interpreted broadly. See U.S. Power 

Squadrons. 59 N.Y.2d at 410, 452 N.E.2d at 1203, 465 N.Y.S.2d at

875 (interpreting identical provision of State Human Rights Law). 

Consequently, the list in the statute is intended to be viewed 

"inclusively and illustratively" and does not limit the statute to 

those facilities specifically mentioned. Id. at 409, 452 N.E.2d at 

1202-1203, 465 N.Y.S.2d at 874-875.

The breadth of the functional definition is so great that the 

courts have found a wide array of enterprises not specifically 

listed to be included within the phrase "establishments dealing 

with goods or services of any kind." See. e .g .. Power Squadrons. 

59 N . Y . 2d at 411, 452 N.E.2d at 1204, 465 N.Y.S.2d at 876 (non­

profit corporation which promotes safety and skill in boating); 

N.Y. Roadrunners Club v. State Division of Human Rights. 81 A.D.2d 

681, 437 N.Y.S.2d 519 (1st Dept. 1981), aff'd on other grounds. 55 

N.Y.2d 122, 432 N.E.2d 780, 447 N.Y.S.2d 908 (marathon race);

15



Walston & Co.. Inc, v. N.Y.C. Commission on Human Rights. 41 A.D.2d 

238, 342 N .Y .S .2d 459 (1st Dept. 1973) (brokerage firm); Dimiceli 

& Sons Funeral Home v. N.Y.C. Commission on Human Rights. N.Y.L.J., 

Jan. 14, 1987, p. 7, col. 3 (Sup. Ct. N.Y.Co.) (funeral home). The 

court below ignores these appellate precedents when it relies on 

two lower court cases (Elstein and Rochester) to assert that the 

City Council intended that the coverage be limited to services 

provided by wholesale and retail stores and not by other 

establishments. See R. 18-20.2

The lower court further implies that the functional definition 

in the Human Rights Law does not include dental offices because the 

"type of care and services" provided by a dentist's office are 

"dissimilar" to those establishments which are covered. See R.21. 

However, both the type of care and the nature of the service are 

expressly and implicitly within the intent of the law.

Medical and dental care are provided in dispensaries, clinics 

and hospitals which are establishments included in the illustrative 

statutory definition. By specifically listing these terms, the 

City Council indicated that the confidential, personal nature of

Both in Elstein and in Rochester. the court based its 
determination that the Human Rights Law only applies to retail 
establishments on the absence of a comma. This reasoning, adopted 
by the court below, is wrong. Statutory punctuation is subordinate 
to the text and is never allowed to subvert the intention of the 
lawmakers or to interfere with a reasonable statutory construction. 
Traveler's Indemnity Insurance Co. v. State of New York. 57 Misc,2d 
565, 293 N .Y .S .2d 181 (Ct. Cl. 1968), affirmed 33 A.D.2d 127, 305 
N .Y .S .2d 689 (3rd Dept. 1969), affirmed 28 N.Y.2d 561, 168 N.E.2d 
323, 319 N .Y .S .2d 609; N.Y. Statutes §§251, 253.

16



the service in a dentist-patient relationship is not a basis for 

exclusion from the reach of the anti-discrimination laws. Whether 

a dentist is on staff at a large dental care establishment or 

practices in a small office does not affect the degree of trust and 

reliance that a patient has in the dentist's judgment or the degree 

to which the services provided are professional, personal and 

confidential. See Matter of a Grand Jury Investigation of Onondaga 

County. 59 N.Y.2d 130, 134, 450 N.E.2d 678, 680, 463 N.Y.S.2d 758, 

759 (1983) (hospital can assert physician-patient privilege for 

protection of patient); CPLR §4504(a). Health care providers who 

offer medical and dental services in these settings are no less 

professional than doctors and dentists who work out of individual 

practices. Barber shops and beauty parlors which, like dentists' 

offices, provide personal services involving physical contact on an 

appointment basis are specifically listed as other examples of 

covered accommodations.

In any case, as noted above, the examples listed are 

illustrative, not exclusive, and, even though not specifically 

listed, the courts have held other establishments which provide 

personal and/or confidential services to be covered. For example, 

in Dimiceli. the court refused to exclude the personal services 

provided by a funeral parlor; in Walston. this Court held that the 

confidential services of a commodities broker fall within the scope 

of the statute. Indeed, all providers of professional services are 

covered under the broad functional definition, just as certain

17



providers of professional services are listed among the statute's 

specific examples.

Even if dental services were dissimilar to those provided at 

the places listed in the law, the court below erred by relying on 

a distinction concerning type of care and services as dispositive 

in this case. For the purposes of the Human Rights Law, there is 

no relevant difference and, therefore, no rational reason to 

distinguish professional services from businesses which provide 

other types of services. Even a single practitioner can form a 

professional business corporation and receive the same tax benefits 

and limitations on individual liability for ordinary business debts 

as do other corporations. We're Associates Co. v. Cohen. Stracher 

& Bloom. P. C. . 65 N.Y.2d 148, 153 , 490 N.Y.S.2d 743 , 746-747

(1985); see also Bus.Corp.Law §1503. By specifically extending to 

professionals an entitlement to these business benefits, the 

legislature recognized that providing professional services is 

fundamentally a business enterprise.

The City Council made no exception for professional offices in 

its definition of public accommodation as it did for libraries and 

educational institutions. The special regulation of professionals 

under the State Education Law does not pre-empt the authority of 

the Commission to act on complaints of discrimination. Hurwitz v.

N.Y.C. Commission on Human Rights. ___ A.D.2d ___, ___, 553

N.Y.S.2d 323, 324 (1st Dept. 1990). Accordingly, for-profit

18



professional establishments, like other businesses, must also be 

subject to the obligations of the Human Rights Law.

2. A dentist's office is a "clinic" within the meaning of 
the term as used in the statute.

While the court below quoted the full definition of a "public 

accommodation" contained in the law (R. 11-13), it failed to

examine whether the accepted definition of the statutory term 

"clinic" includes a dentist's office. Had it done so, the court 

could only have concluded that the City Council intended that a 

dentist's office be subject to the law's reach.

Although contained in the list of examples of public 

accommodations, a clinic is not defined in the law itself. 

Steadman's Medical Dictionary defines "clinic" as "an institution, 

building or part of a building where ambulatory patients are cared 

for." The term encompasses "the office of a group practice or even 

the office of a single practitioner." People v. Dobbs Ferry 

Medical Pavilion. Inc. 40 A.D.2d 324, 327, 340 N.Y.S.2d 108, 112

(2nd Dept. 1973). In affirming Dobbs Ferry, the Court of Appeals 

noted that the term "clinic" is "inclusive of many kinds of 

individual, partnership and group medical practice." 33 N.Y.2d 

584, 301 N.E.2d 435, 347 N.Y.S.2d 452 (1973) (emphasis added).

Thus, the standard definition of the term "clinic", accepted by the 

Court of Appeals, explicitly encompasses respondent's office.

For compelling reasons, this definition should similarly 

attach to the term as used in the Human Rights Law. When

19



interpreting a statute, the court should attempt to effectuate the 

intent of the legislature, which should be inferred, if possible, 

from the words chosen. Patrolmen's Benevolent Association v. City 

of New York. 41 N.Y.2d 205, 208, 359 N.E.2d 1338, 1340, 391 

N.Y.S.2d 544, 546 (1976). Undefined statutory terms should be 

construed according to their ordinary and accepted meaning. People 

v. Eulo. 63 N .Y .2d 341, 354, 472 N.E.2d 286, 294, 482 N.Y.S.2d 436, 
444 (1984). If a word has more than one meaning, the Court of 

Appeals has recently instructed that Courts should consider the 

consequences of the different interpretations and should choose the 

definition which advances the general purpose of the statute and 

prevents hardship and injustice; it is not the courts' role to 

"delve into the minds of the legislators" for a meaning of a 

particular term. Braschi v. Stahl Associates Co.. 74 N.Y.2d 201, 

208, 543 N .E .2d 49, 52, 544 N.Y.S.2d 784, 787 (1989).

These rules of construction have particular force in 

interpreting remedial legislation, such as the Human Rights Law, 

where the statute's terms should be interpreted broadly to 

accomplish its purpose. U.S. Power Squadrons. 59 N.Y.2d at 401, 

411, 452 N.E.2d at 1207, 465 N.Y.S.2d at 876 (interpreting State 

Human Rights Law); see also New York Life Insurance Co. v. State 

Tax Commissioner. 80 A.D.2d 675, 677, 436 N.Y.S.2d 380,383 (3rd 

Dept. 1981) affirmed. 55 N.Y.2d 758, 431 N.E.2d 970, 447 N.Y.S.2d 

245 (remedial statute to be construed in manner which will 

"suppress the evil and advance the remedy"). The Human Rights Law

20



itself mandates that the statute be liberally construed. N.Y.C. 

Admin. Code §8-112.

Defining clinic to exclude the offices of individual dentists 

would thwart the purpose and remedial nature of the Human Rights 

Law, invoke hardship on vulnerable protected classes, and permit 

unjust discrimination by a large group of service providers to go 

unchecked. Even if the term "clinic” may have other meanings, 

looking to the more restrictive definition would be inconsistent 

with the recent instructions from the Court of Appeals. Therefore, 

a dentist's office must be included within the types of 

accommodations listed and respondent's business is directly covered 

by the statute.

3. A statutory interpretation which holds that a 
dentist's office is a public accommodation 
furthers the purpose underlying the Human 
Rights Law.
In addition to the reasons based on rules of statutory 

construction already discussed, the professional nature of the 

dental services cannot be a basis for evading the Human Rights Law 

for reasons of public policy. The purpose of human rights laws is 

the elimination of discrimination in the provision of basic 

opportunities. See Koerner v. State. 62 N.Y.2d 442, 448, 467 

N .E .2d 232, 234, 478 N.Y.S.2d 584, 586-587 (1984) (purpose of State 

Human Rights Law). This is consistent with the explicit policy of 

New York State that every individual in the state be afforded an

21



"equal opportunity to enjoy a full and productive life," and that 

such equal opportunity should not be inhibited by inadequate health 

care. Exec. Law §290(3). Failing to assure equal access to 

services offered by independent professionals would permit 

invidious discrimination in the provision of this basic necessity. 

This fact alone further supports the coverage of dental offices 

under the Human Rights Law.

The rationale that dentists' offices must be excluded because 

dentists are professionals is more onerous because of its 

ramifications. Allowing dentists to discriminate on grounds 

forbidden by the statute solely because their services are 

professional, because the dentist-patient relationship is based on 

reliance, trust and confidence, or because dental services are 

unique would in effect permit members of all 21 professions named 

in Title VIII of the Education Law to discriminate without adverse 

consequences under the Human Rights Law. Thus, not only dentists, 

but also doctors, nurses, engineers, architects, accountants, court 

reporters, psychologists and social workers would be able to refuse 

their services to any person simply because that person is, for 

instance, black, Jewish, Hispanic, female, deaf or gay. The City 

Council, which recognized that "there is no greater danger" to the 

City's general welfare than discrimination based on specified 

arbitrary characteristics (N.Y.C. Admin. Code §8-101), could not 

have intended to imply an exclusion which would so undermine its 

policy to remedy discrimination.

22



This does not mean that every professional must accept any 

person who presents himself or herself for services. However, it 

does mean that dentists may not refuse care to a potential patient 

simply because of that person's membership in a protected class. 

To hold otherwise, as the court below did, would deny equal access 

to adequate dental care and subvert the Human Rights Law.

4. Courts and agencies, both in and outside of 
New York, have held that professional offices 
are public accommodations.

The agencies charged with enforcing the human rights laws in 

New York have agreed with the view that the Human Rights Law 

applies to professional offices. The Commission's determination 

with regard to respondent's office accords with its decision in 

similiar cases. See Campanella v. Hurwitz. No. GA-00021030487-DN 

(Feb. 22, 1988) (private dentist's office covered by Human Rights 

Law) ;3 Rolanti v. Dental Associates of New York. No. GA- 

00052070687-DN (Oct. 20, 1988) (group dental practice covered by

Human Rights Law) . The New York State Division on Human Rights has 

determined that doctors' offices are covered under its public 

accommodations statute, as the Commission did in this case with 

regard to dentists' offices. See Derby v. Elstein. No. 9K-P-D-87- 

117654 (March 10, 1988) (preliminary finding that professional

offices are encompassed by State Human Rights Law which covers

The Appellate Division, First Department, declined to 
prevent the Commission from exercising jurisdiction over the 
dentist in Campanella. Hurwitz v. N.Y.C. Commission on Human 
Rights, ___ A .D .2d ___, 553 N.Y.S.2d 323 (1990).

23



"establishments dealing with goods or services" and that the 

Division has jurisdiction in the matter).4

Every other jurisdiction which in the last 35 years has ruled 

directly on the regulation of health care offices has held private 

medical offices are covered under laws prohibiting discrimination 

in public accommodations. In the oldest such case, Washington v. 

Blampin. 226 Cal. App.2d 604, 38 Cal. Rptr. 235 (2d Dist. 1964), an 

action was brought against a private physician who refused to treat 

a child because she was black. The lower court dismissed on the 

grounds that a professional office was not covered by the 

California public accommodations law. But the District Court of 

Appeal reversed, holding that a physician's office was embraced by 

the statutory phrase "business establishment of every kind 

whatsoever." See also Leach v. Drummond Medical Group. 144 Cal. 

App.3rd 362, 192 Cal. Rptr. 650 (5th Dist. 1983) (private

The Supreme Court, Onondaga County, had overturned the 
Division's ruling. Elstein v. State Division of Human Rights. 
N.Y.L.J., Aug. 18, 1988, p. 2, col. 3. The Appellate Division,
Fourth Department, reversed and dismissed the petition holding that 
the agency should be permitted to make a final determination in the
matter which would then be subject to judicial review. _A.D.2d
___, 555 N.Y.S.2d 516 (1990). In any case, the lower court's
reasoning is incorrect and should not be followed. The lower court 
in Elstein based its determination on three grounds: 1) the office 
of an individual practitioner is not specifically listed in the 
statute; 2) the office is not an establishment dealing with goods 
or services of any kind because the statute only covers retail 
establishments; and 3) the confidential nature of the doctor- 
patient relationship takes it outside the realm of the Human Rights 
Law. As discussed above, all three grounds are wrong.

24



professional medical association constitutes business establishment

subject to public accommodations law) .

Similarly, in Lyon v. Grether. 239 S.E.2d 103 (Va. 1977), a

blind woman sued a physician for damages after he refused to treat

her unless she removed her seeing-eye dog from the waiting room.

The lower court dismissed the complaint, finding that a private

physician was not covered by the state's "White Cane Act" which

entitles blind people to equal access in places of public

accommodation. The Virginia Supreme Court reversed and held that

"[the physician's] office was a place to which certain members of

the general public were invited by prior appointment to receive

CGrtain treatment at certain scheduled hours" and, therefore, was

covered by the Act. Id. at 106. The Illinois Human Rights

Commission concurs. See G.S. v. Baksh. ALS No. 2810 (Sept. 26,

1988) (dentist's office covered by Illinois Human Rights Act).

With the exception of Elstein (discussed at footnote 3 above), the

court below cites no cases which directly support its holding that

dentists' offices are not covered by the Human Rights Law.

B. RESPONDENT'S DENTAL OFFICE, WHICH ROUTINELY ACCEPTS AS 
NEW PATIENTS MEMBERS OF THE GENERAL PUBLIC ON AN
INDIVIDUALIZED, FEE-PAYING BASIS, IS NOT EXEMPT AS 
DISTINCTLY PRIVATE.
The City Human Rights Law exempts from coverage an

"institution, club or place of accommodation which proves that it 

is in its nature distinctly private." N.Y.C. Admin. Code § 8-

102(9). The State Human Rights Law's definition of public

25



accommodation contains a similar exemption. Executive Law § 

292(a). In creating an exemption for those accommodations which 

are in their nature distinctly private, the City Council and the 

State Legislature sought to distinguish between those entities in 

which the public has an interest in promoting the safety, health, 

morals and welfare of the community and those entities which are so 

characterized by selectivity and exclusivity that they are outside 

the reach of the public's interest. The party seeking the 

exemption bears the burden of showing that it is not covered by the 

anti-discrimination statutes; exemptions are not granted lightly. 

Power Squadrons. 59 N.Y.2d at 412, 452 N.E.2d at 1204, 465 N.Y.S.2d 

at 876.

The court below failed to grasp the statutory distinction 

between public and distinctly private accommodations. As a result, 

it held, as one basis for granting the petition, that the 

Administrative Law Judge, whose opinion was modified and adopted by 

the Commission, inappropriately applied a distinctly private 

analysis to this case. To achieve this result, the court engaged in 

a tortured reading of Section 8-102(9) of the Code which limited 

the application of the distinctly private exemption, contrary to 

the Code's plain meaning. The lower court reasoned that the 

exemption for distinctly private accommodations did not arise in 

this instance because it concluded that the term "distinctly 

private" modifies only "institutions, clubs and places of 

accommodation" and not "retail stores and establishments dealing

26



with goods or services of any kind." R. at 16-17. Such a 

construction is illogical since retail stores and establishments 

dealing with goods or services of any kind, as well as many other 

entities, are subsumed within the Code's definition of "place of 

public accommodation, resort or amusement." If, as the court below 

says, "distinctly private" modifies the broad "place of 

accommodation," it must by necessity define those entities included 

as illustrative examples of places of public accommodation. In 

fact, the sentence containing the distinctly private exemption 

begins with a reference to the definitional phrase: "Such term 

[i.e. place of public accommodation, resort or amusement] shall not 

include ... any institution, club or place of accommodation which 

proves that it is in its nature distinctly private."

Since respondent operates an establishment which is covered by 

the law (see Point I.A, above), the Commission correctly considered 

any jurisdictional questions with respect to respondent's dental 

practice by analyzing whether it is distinctly private in nature. 

Contrary to the lower court's determination, the Commission was 

also correct in finding that respondent had not met his burden of 

demonstrating that his practice falls within the exemption for 

distinctly private accommodations. Amici urge that this Court also 

reverse the court below on this point.

The term "distinctly private" as used in an identical 

provision of the State Human Rights Law was first given 

authoritative interpretation in Matter of U.S. Power Squadrons v.

27



State Human Rights Appeal Board. 59 N.Y.2d 401, 452 N.E.2d 1199, 

465 N.Y.S.2d 871 (1983). The Court of Appeals held that the key to 

the inquiry is "selectivity" and "exclusiveness." Id. at 412, 452 

N.E.2d at 1204, 465 N.Y.S.2d at 876. The touchstone is whether the 

entity is a membership organization established and run by and for 

the benefit of the members. It is not enough that an entity be 

able to show that some or all aspects of its business are private; 

rather the court must find that the entity has met a more exacting 

burden of demonstrating that its business is distinctly private in 

nature. Id. ; N.Y.S. Club Association v. City of New York. 69 

N .Y .2d 211, 220, 505 N.E.2d 915, 919, 513 N.Y.S.2d 349, 353 (1987), 

aff'd. 487 U.S. 1, 108 S.Ct. 2225 (1988).

The New York courts have never held a business to be 

distinctly private under either the State or City Human Rights 

laws; the only institution exempted under New York law has been a 

private club. See Kiwanis Club of Great Neck, Inc, v. Board of 

Trustees of Kiwanas International. 52 A.D.2d 906, 383 N.U.S.2d 383 

(2nd Dept. 1976), aff'd. 41 N.Y.2d 1034, 363 N.E.2d 1378, 395 

N.Y.S.2d 633, cert, denied. 434 U.S. 859, 98 S.Ct. 183.

So strong is this policy against discrimination and so narrow 

is the "distinctly private" exemption, that an otherwise-exempt 

establishment, when it opens itself to the public for a particular 

event, may not discriminate in violation of the statute during that 

period. See Batavia Lodge No. 196, Loval Order of Moose v. N.Y.S. 

Division of Human Rights. 43 A.D.2d 807, 350 N.Y.S.2d 273 (4th

28



>

Dept. 1973), rev'd on other grounds. 35 N.Y.2d 143, 316 N.E.2d 318, 

359 N.Y.S.2d 25 (private club could not discriminate in providing 

services at separate, members-only bar during period when open to 

general public for fashion show.) Similarly, an apparently private 

club is not distinctly private if it charges a fee and is operated 

for a profit. See Daniel v. Paul. 395 U.S. 28, 301, 89 S.Ct. 1697, 

1699 (1968) (sports club that charge fee and operated for profit 

not exempt from Title II of the Civil Rights Act as a private club 

or establishment.)

In Power Squadrons, the Court of Appeals set out five criteria

for determining whether a provider of accommodations has shown that

it is distinctly private. Specifically, the Court may consider

whether the establishment:

(1) has permanent machinery established to 
carefully screen applicants on any basis at 
all, i.e., membership is determined by 
subjective, not objective factors; (2) limits 
the use of its facilities and the services of 
the organization to members and bona fide 
guests of members; (3) is controlled by the 
membership; (4) is nonprofit and operated for 
the benefit and pleasure of the members; and 
(5) directs its publicity exclusively and only 
to members for their information and guidance.

59 N .Y .2d at 412-413, 452 N.E.2d at 1204, 465 N.Y.S.2d at 876.

A dentist's office, such as respondent's, is not distinctly 

private under this standard. Generally, a dentist defines the 

patients to whom he or she will provide services based upon such 

factors as the patient's treatment needs, the dentist's 

availability and the patient's ability to pay a fee for the

29



dentist's services. Most dentists constantly take on new patients. 

Office policies are determined not by the patients, but by the 

dentist, with an eye towards the profit-making function of a 

business enterprise. The dentist may solicit the public through 

referrals from other health care providers or from pleased 

patients, or by other means.

Moreover, subsequent to Power Squadrons the New York City 

Council amended the Human Rights Law to further limit the term 

"distinctly private." In 1984, the City Council enacted Local Law 

63, which set forth that an institution, club or place of 

accommodation

shall not be considered in its nature 
distinctly private if it has more than four 
hundred members, provides regular meal 
service, and regularly receives payment for 
dues, fees, use of space, facilities, 
services, meals or beverages directly or 
indirectly from or on behalf of nonmembers for 
the furtherance of trade or business.

In upholding Local Law 63 as a constitutional exercise of the

City Council's power to regulate discriminatory conduct where there

is sufficient public interest, the Supreme Court balanced the

rights of club members to associate against the City's interest in

proscribing discrimination in establishments which are commercial

in nature. It stated that:

it is conceivable, of course, that an 
association might be able to show that it is 
organized for specific expressive purposes and 
that it will not be able to advocate its 
desired viewpoints nearly as effectively if it 
cannot confine its membership to those who

30



share the same sex, for example, or the same 
religion.

N.Y.S. Club Assn.. 487 U.S. at 13, 108 S.Ct. at 2234.

The language chosen by the City Council as well as the 

reasoning of the Supreme Court shows that the purpose of this 

amendment to the Code was to delineate those accommodations which 

were not distinctly private in nature, "because of the kind of role 

that strangers play in their ordinary existence ... " N.Y.S. Club 

Assn. . 487 U.S. at 12, 108 S.Ct. at 2233.5 The distinctly private 

exemption contained in the Human Rights Law does not encompass 

dental practices in general, and respondent's practice 

specifically, since these practices are composed of "strangers" who 

can pay the dental fee, appear on time for appointments, and desire 

good dental care. Rather, distinctly private accommodations are 

those that limit access to those who share a common bond— be it 

their religion, their country of origin, or particular political 

beliefs. Business establishments, like that of a dentist office, 

were not the types of accommodations which the City Council sought 

to exclude from the scope of the law.

Despite the purpose behind the distinctly private exemption, 

the court below concluded that the respondent's adherence to a

The Supreme Court observed in N.Y.S. Club Assn, that 
neither the three factors set out in Local Law 63, nor the five 
prong test enunciated in Power Squadrons were the exclusive ways in 
which an accommodation could be found to have lost the essential 
characteristics of selectivity and exclusivity which would render 
it distinctly private. N.Y.S. Club Assn. . 487 U.S. at 15, 108
S.Ct. at 2235, n. 6.

31



referral-only format was sufficient to remove his practice from the 

jurisdiction of the Human Rights Commission. However, significant 

precedent, as well as the uncontroverted facts adjudged at the 

hearing, do not support Justice Rosato's conclusion that where a 

proprietor or establishment conducts a business on a referral only 

basis, it has cloaked itself with "the essential characteristic of 

privateness —  i.e., selectivity," N.Y.S. Club Assn.. 69 N.Y.2d at 

221, 505 N .E .2d at 920, 513 N.Y.S.2d at 354 (1987).

The testimony at the hearing revealed that respondent's 

referral mechanism was a very effective means of acquiring 

patients, not of screening them out. In fact, as a result of 

respondent's reliance upon referrals his practice increased by 

hundreds of patients each year. His testimony at the hearing with 

respect to his use of referrals revealed the following: When he 

began his dental practice in 1985 he solicited patients by telling 

his friends, colleagues and relatives the had opened an office. At 

the end of his first year of practice, he had only ten patients 

(Tr. at 346-350, 352). However, using this "word of mouth" method 

of gaining business, he had hundreds of patients, possibly one 

thousand, by his second year of practice and in 1986 received 

between two and four new patients a week (Tr. at 356). Respondent 

further testified that in 1987 he had several hundred more patients 

than he had had the year before and that he received three to five 

new patients every week (Tr. at 363-364).

32



Respondent's testimony only revealed what is in many ways 

common knowledge —  that dental and medical professionals let their 

good work speak for itself in the expectation that satisfied 

patients will refer their friends to the practitioner. These facts 

do not support the conclusion of the court below that the use of 

referrals served to confine his practice to an exclusive set of 

patients. Rather, reliance upon referrals made good business 

sense. Simply because it is the custom in many of the professions 

to obtain new business through referrals is not enough, as a matter 

of law, to hold that these businesses have gained an essential 

characteristic of selectivity.

Further, the Court below erred in adopting an uncritical 

deference to the use of referrals without inquiring whether the 

respondent's reliance upon referrals amounted to an exacting and 

subjective standard imbued with selectivity that removed his 

practice from the public interest. Respondent's own testimony 

showed that he had no "plan or purpose" for excluding new patients, 

nor did he place any limit on the number of new patients he would 

accept. When asked to describe his use of referrals, respondent 

testified that a referral meant that "someone who knew me told them 

about me" (Tr. at 360) and that the majority of referrals were from 

other patients (Tr. at 394). Other than the incident contained in 

Mr. McCoury's complaint, respondent testified that the only person 

to whom he refused treatment was a woman who had such bad arthritis

33



that he judged treatment would be potentially injurious to her (Tr.

at 363).

Most telling, however, was respondent's testimony with respect 

to the purpose behind his reliance upon referrals. Besides acting 

as an effective method of obtaining new patients, the respondent 

viewed referrals as a means of gaining good patients, that is, 

patients who "follow my rules" (Tr. at 360). The only criteria 

that respondent uses in screening new patients is that they be able 

to pay his fee, that they appear for appointments on time, and that 

they desire good dental care (Tr. at 360, 410-411). In fact,

respondent has never called a referral source to verify if a new 

patient was actually referred by that person (Tr. at 395). 

Instead, he routinely sends out thank-you cards to those who refer 

patients to him, presumably to encourage further referrals (Tr. at 

427) .

On these facts, the jurisdictional significance of referrals

is identical to the sponsorship and membership application used by

a private beach club that sought to exclude black members in Castle

Hill Beach Club v. Arburv. 2 N.Y.2d 598, 142 N.E.2d 186, 162

N.Y.S.2d 1 (1957). There the Court of Appeals found that the

membership criteria utilized by the club served only to screen out

applicants who might be disorderly:

As a matter of fact and procedure, however, 
applicants were taken in on their face value, 
without interview, investigation or 
sponsorship, upon the recommendation of either

34



two members or the members' governing 
committee ...

2 N . Y . 2d at 5-6, 142 N.E.2d at 189, 162 N.Y.S.2d at 5 (emphasis

supplied).

Here, as in Castle Hill Beach Club, the respondent's criteria 

for screening new patients does not demonstrate exclusivity or 

selectivity. That he limits his practice to patients who can pay 

a fee for his services, show up on time for appointments and expect 

good dental care does not demonstrate the use of subjective 

criteria designed to assure exclusivity as set forth by the Court 

of Appeals in Power Squadrons. They are the type of requirements 

any person in business would expect of his or her customers or 

clients. They further commercial purposes, not distinctly private 

ones. For example, these three "rules" would apply in equal force 

to many of the establishments which the City Council explicitly 

listed in Section 8-109(2) of the Code as illustrations of places 

of public accommodations, e . q . . restaurants, beauty parlors, 

medical and dental clinics and other establishments, which often 

provide services on a reservation-only or appointment-only basis.

This is not to say that there may not be some circumstances 

under which a dental practice might fall outside the definition of 

public accommodation. Where, for instance, an employer or union 

employed a dentist for the benefit of its employees or union 

members, the dentist providing those services could limit his or 

her practice only to employees or union members. See. e.g.. Ness

35



CONCLUSION
Individual providers of dental services are subject to the

anti-discriminatory provisions of the Human Rights Law as a matter

of law. Failure to include these dental offices as public

accommodations would permit individual dentists to discriminate

with impunity and thereby deprive any member of a protected class

an equal opportunity to obtain adequate dental care; or perhaps,

given the scarcity of publicly-provided dental care, deprive them

of an opportunity to obtain dental care at all. Following the

lower court's reasoning would also exclude from the statute's

regulatory reach all professionals, many of whom provide some of

the most basic human services. Therefore, amici civil rights

organizations request that this Court reverse the judgment of the

court below and hold that the office of a single dentist is

included in the definition of public accommodations under the Human

Rights Law and that respondent's office is not distinctly private.
Dated: New York, New York

August 8, 1990

GULIELMETTI & GESMER, P.C.
401 Broadway
New York, New York 10013 
(212) 219-2114

Of Counsel:
Robert M. Petrucci, Esq.
Ellen Gesmer, Esq.

NATIONAL LAWYERS GUILD
55 Avenue of the Americas 
New York, New York 10013 
(212) 966-5000

Of Counsel:
Katherine Franke, Esq.

AMERICAN CIVIL LIBERTIES 
UNION FOUNDATION AIDS PROJECT
132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Of Counsel:
Nan D. Hunter, Esq.
Judith Levin, Esq.
William B. Rubenstein, Esq.

37



401 BROADWAY
NEW YORK, NEW YORK 10013-3005 
(212) 219-2114 / FAX (212) 966-2162
Ellen Gesmer 
Paul M. Gulielmetti
Maura N. Gregory 
Robert M. Petrucci

August 13, 1990

Steve Ralston
NAACP Legal Defense and Education Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013

Re: Sattler v. City of New York 
Commission on Human Rights

Dear Mr. Ralston:

Enclosed please find a copy of the motion papers which 
were filed on your behalf, seeking leave to appear as an 
amicus curiae in this case. This packet does not include 
Exhibit B, Justice Rosato's decision at the Supreme Court 
level (which I sent to you in my letter dated July 24) , or 
Exhibit C, the Commission's Notice of Appeal.

If you have any questions, please do not hesitate to 
contact me. I will let you know when we receive a 
determination from the Appellate Division.

Very truly yours,

GULIELMETTI & GESMER, P.C.

"Robert M. Petrucci

RMP:pnr 
Enc.

cc: Mitchell Karp, Esq.
N.Y.C. Commission on 
Human Rights



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WES^Ctf^S^ER COUNTY a *
Index No. 118-90 Year 19

SUPREME COURT OF THE STATE OF NEW YORK 
APPELLATE DIVISION - SECOND DEPARTMENT

ROBERT SATTLER,
Petitioner-Respondent,

-against-
THE CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS,

Respondent-Appellant,
for an Order pursuant to Section 8-110, NYC Administrative Code, 
vacating the Decision and Order of the Respondent-Commission dated 
November 30, 1989, in the matter entitled McCoury v. Sattler, 
Complaint No. GA-00097031688-DN.

NOTICE OF MOTION FOR LEAVE TO APPEAR 
AS AMICUS CURIAE

GULIELMETTI & GESMER, P.C.
Attorneys for Mo va n t s

401 BROADWAY 
NEW YORK, N. Y. 10013 

(212)219-2114

To: Hashmall, Sheer, Bank & Geist Victor A. Kovner
Corporation Counsel

Attomey(s) for Re sponden t-Appe 1 lan t

Service of a copy of the within is hereby admitted.

Dated:

Attorney (s) for

PLEASE TAKE NOTICE
□  that the within is a (certified) true copy of a

j  n o t ic e  o f  entered in the office of the clerk of the within named Court on 19
ENTRY

□
NOTICE OF 

SETTLEMENT

that an Order of which the within is a true copy will be presented for settlement to the Hon.
one of the judges of the within named Court,

at
on 19 , at M.

Dated:

GULIELMETTI & GESMER, P.C.
Attorneys for

To:
401 BROADWAY 

NEW YORK, N. Y. 10013

Attomey(s) for N 91 2 CL



Copyright 1973 © by ALL-STATE LEGAL SUPPLY CO
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4 - *■ 4 4 *
STATE OF NEW YORK, COUNTY OF ss:
I, the undersigned, am an attorney admitted to practice in the courts of New York State, and 

certify that the annexed
Attorney1* has been compared by me with the original and found to be a true and complete copy thereof.

Certification

say that: I am the attorney of record, or of counsel with the attorney(s) of record, for
. I have read the annexed

know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on 
information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon 
knowledge, is based upon the following:

1 □
a  Attorney's 
<  Verification

*  by 
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The reason I make this affirmation instead of

I affirm that the foregoing statements are true under penalties of perjury. 
Dated:

STATE OF NEW YORK, COUNTY OF
(P rin t signer’s nam e below signatu re)

□
being sworn says: I am

in the action herein: I have read the annexed 
j  individual know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on 
|  *" ,c°"on information and belief, and as to those matters I believe them to be true.
|  □  the of
1 fT T °  a corPoration, one of the parties to the action; I have read the annexed

know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on 
information and belief, and as to those matters I believe them to be true.

My belief, as to those matters therein not stated upon knowledge, is based upon the following:

Sworn to before me on ,19

(P rin t s igner’s nam e below signatu re)

STATE OF NEW YORK, COUNTY OF
being sworn says: I am not a party to the action, am over 18 years of

age and reside at
On ,1 9  , I served a true copy of the annexed

in the following manner:
J □  by mailing the same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the U.S. Postal Service
s Se,,,c' within the State of New York, addressed to the last known address of the addressee(s) as indicated below:
S By Mail '  '

"a

!  □  by delivering the same personally to the persons and at the addresses indicated below:
J? Personal 

Service

Sworn to before me on ,19

(Print signer’s name below signature)