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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------X PASQUALE PICARO, PRUDENCIO VALLE, JUDITH BRATNICK, SANDY CAUSE, individually and as next friend to Minor Child S.C., LILLIAN ANTHONY, AMOGHENE UMUDE, DOMINGO OSORIO, OLGA ORTIZ, SHARYAN VASQUEZ, 14-CV-7398 (DAB) MELISSA VANDERHORST, MEMORANDUM & ORDER individually and as next friend to Minor Child A.V., SHAKEI GADSON, LETITIA JAMES, as Public Advocate for the City of New York, and CENTER FOR INDEPENDENCE OF THE DISABLED, NEW YORK,
Plaintiffs,
v.
PELHAM 1130 LLC, PELHAM 1135 LLC, PELHAM 1540 LLC, MATTHEWS 2160 LLC, JOSHUA GOLDFARB, PHILIP GOLDFARB, MARC GOLDFARB, THOMAS FRYE, GOLDFARB PROPERTIES INC., PELICAN MANAGEMENT INC., NEW YORK CITY DEPARTMENT OF BUILDINGS, and RICK D. CHANDLER, as Commissioner of the New York City Department of Buildings,
Defendants. -------------------------------X DEBORAH A. BATTS, United States District Judge.
Before the Court is a Motion to Dismiss the Amended
Complaint, filed by Defendants New York City Department of
Buildings and Rick D. Chandler, as Commissioner of the
Department of Buildings. Government Defendants seek dismissal
on the grounds that Plaintiffs have not stated claims for
violations of the Americans with Disabilities Act and the Fair
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Housing Act, that Plaintiffs Letitia James and the Center for
Independence of the Disabled do not have standing to assert
claims against the Government Defendants, and that the Court
should decline to exercise supplemental jurisdiction over the
New York City claims. Plaintiffs oppose the Government
Defendants’ Motion. For the reasons stated below, the Government
Defendants’ Motion to Dismiss is GRANTED.
I. BACKGROUND
A. Procedural History
On September 12, 2014, Plaintiffs Pasquale Picaro,
Prudencio Valle, Judith Bratnick, Sandy Cause, individually and
as next friend to minor child S.C., and Letitia James, the
Public Advocate of the City of New York, brought this action
against Defendants Pelham 1135 LLC, Pelham 1130 LLC, Matthews
2160 LLC, Joshua Goldfarb, Philip Goldfarb, Marc Goldfarb,
Thomas Frye, Goldfarb Properties, Inc., and Pelican Management
Inc. (collectively, “Landlord Defendants”), and the New York
City Department of Buildings and its Commissioner Rick D.
Chandler (collectively, “Government Defendants”).
Plaintiffs Picaro and Valle also made a Motion for
Preliminary Injunction, which was heard before Judge J. Paul
Oetken on September 18, 2014, seeking to enjoin the Landlord
Defendants from shutting down the elevator at 1135 Pelham
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Parkway North for planned repairs for up to five months. On
September 19, 2014, Judge Oetken denied Plaintiffs’ Motion
without prejudice premised on Landlord Defendants’ providing
reasonable accommodations to Plaintiffs as offered at the
hearing on the Motion.
On April 21, 2015, after obtaining leave from the Court,1
Plaintiffs filed an Amended Complaint, adding additional
Plaintiffs who are disabled individuals as well as caregivers to
such individuals -- Lillian Anthony, Amoghene Umude, Domingo
Osorio, Olga Ortiz, Sharyan Vasquez, Melissa Vanderhorst,
individually and as next friend to minor child A.V., and Shakei
Gadson2 –– and an organizational Plaintiff, the Center for
Independence of the Disabled, New York (“CIDNY”), as well as an
additional Landlord Defendant, Pelham 1540 LLC.
Plaintiffs assert that Landlord Defendants violated the
Fair Housing Act (“FHA”) and Fair Housing Amendments Act of 1988
(“FHAA”), and their underlying regulations,3 as well as New York
1 The Landlord Defendants also cross-moved to dismiss the claims against the Government Defendants or, in the alternative, to sever the claims against the Government Defendants. The Court denied Landlord Defendants’ Motion on the grounds that they did not have standing to challenge the claims against the Government Defendants. 2 Unless otherwise noted, the Court refers to all Plaintiffs other than CIDNY and Public Advocate Letitia James collectively as “Individual Plaintiffs.” 3 Unless otherwise noted, the Court refers to the FHA, FHAA and their underlying regulations collectively as the “Fair Housing Act” or the “FHA.”
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State Human Rights Law (“NYSHRL”) and New York City Human Rights
Law (“NYCHRL”). Plaintiffs also allege that Landlord Defendants
failed to secure the proper permit to conduct elevator work
pursuant to the New York City Building Code at 1135 Pelham
Parkway North. Plaintiffs assert claims against the Government
Defendants for violation of the FHA, the Americans with
Disabilities Act (“ADA”), and the NYCHRL for aiding and abetting
the discriminatory actions of the Landlord Defendants.
On June 26, 2015, Government Defendants filed the instant
Motion to Dismiss. On July 30, 2015, Plaintiffs opposed the
Government Defendants’ Motion to Dismiss. The Motion was fully
submitted on August 13, 2015.
B. Factual Background
For the purpose of the Motion to Dismiss, the Court assumes
as true the factual allegations in Plaintiffs’ Amended
Complaint. Plaintiffs’ claims arise out of elevator repairs and
construction in five apartment buildings, 1135 Pelham Parkway
North, 1130 Pelham Parkway South, 1540 Pelham Parkway South,
2160 Matthews Street, and 2166 Matthews Avenue (the
“Properties”), which are owned and/or operated by the Landlord
Defendants.
Individual Plaintiffs are residents of the Properties or
are associated with residents of the Properties. Individual
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Plaintiffs Pasquale Picaro, Prudencio Valle, Judith Bratnick,
minor child S.C., Lillian Anthony, Domingo Osorio, Olga Ortiz,
Sharyan Vasquez, minor child A.V., and Shakei Gadson have
various disabilities which restrict their mobility, including,
inter alia, muscular dystrophy, bilateral retinoblastoma (cancer
of the eye), spinal cord injuries, congestive heart failure,
asthma, scoliosis, and other limb, back, and joint issues. (Am.
Compl. ¶¶ 15, 16, 17, 18, 19, 22, 40). Plaintiffs Sandy Cause,
Amoghene Umude, and Melissa Vanderhorst are relative caretakers
of Plaintiffs minor child S.C., Lillian Anthony, and minor child
A.V., respectively. (Id. ¶¶ 16, 17, 19.)
Plaintiff Letitia James is the Public Advocate for the City
of New York (“James” or the “Public Advocate”). (Am. Compl. ¶
23.) According to the Amended Complaint, James is charged with
receiving and attempting to resolve complaints regarding City
services and agencies. (Id.) Since taking office in January
2014, James has received hundreds of complaints regarding the
Department of Buildings, including related to access for people
with disabilities. (Id.) Plaintiffs allege that the Office of
the Public Advocate has expended resources attempting to resolve
complaints from the Landlord Defendants’ tenants, and will
continue to do so until a remedy is obtained. (Id.)
Plaintiff Center for the Independence of the Disabled is a
non-profit organization that provides services and advocacy to
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promote independent living for individuals with disabilities.
(Am. Compl. ¶ 24.) According to the Amended Complaint, over
half of CIDNY’s board members and over seventy percent of the
organization’s staff are people with disabilities. (Id.)
CIDNY’s activities include providing direct services to New York
tenants with disabilities, advising government officials and
businesses on disability-related issues, and providing training
and technical assistance. (Id. ¶¶ 25, 26.) Plaintiffs allege
that CIDNY expends time and resources assisting individuals with
disabilities who are affected by long-term elevator shutdowns to
obtain reasonable accommodations. (Id. ¶ 27.) Plaintiffs
assert that CIDNY is forced to provide such assistance because
the City’s elevator permitting process does not provide for
reasonable accommodations for individuals with disabilities.
(Id.)
Defendant Department of Buildings is charged with enforcing
the New York City Construction Code, Building Code, Electrical
Code, Zoning Resolution, New York State Labor Law, and New York
State Multiple Dwelling Law. (Id. ¶ 38) The DOB reviews and
issues certificates of occupancy and permits for building and
construction. (Id.) Defendant Rick D. Chandler is the DOB
Commissioner. (Id. ¶ 39.)
During the summer of 2014, Landlord Defendants removed from
service all available elevators in the Properties, leaving the
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Individual Plaintiffs and others in the buildings without
elevators for months. (Id. ¶¶ 81, 83.) The elevator outages at
the five Properties restricted the disabled Individual
Plaintiffs’ access to and from their apartments, forcing some to
use stairs which were congested with construction workers and
equipment, causing others who were unable to use stairs to
remain in their apartments for weeks or months at a time, and
requiring additional caretaking by associated individuals of the
disabled Individual Plaintiffs. (Id. ¶¶ 93-94, 96.) Plaintiffs
also allege that the elevator outage exacerbated the Individual
Plaintiffs’ health conditions. (Id. ¶ 83.)
According to Plaintiffs, the Landlord Defendants or their
representatives had notice of the Individual Plaintiffs’
disabilities. (Id. ¶ 84.) Plaintiffs further allege, upon
information and belief, that Defendant Philip Goldfarb directed
that notices be posted in each of the Properties instructing
tenants with disabilities to contact Defendant Joshua Goldfarb
to discuss obtaining reasonable accommodations, and that
Defendants Philip and Marc Goldfarb were directly involved in
negotiating such accommodations. (Id. ¶ 85.)
Each of the Individual Plaintiffs requested accommodations
from the Landlord Defendants or their representatives, most of
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which were denied or ignored.4 (Id. ¶¶ 101, 111-113, 119-120,
133-134, 145-146, 156-159.) The Landlord Defendants made some
offers of accommodations, such as relocating the affected
Plaintiffs to lower floor apartments in different buildings.
However, the Plaintiffs to whom accommodations were offered
rejected them as unreasonable for various reasons, including the
condition or size of the replacement apartments and their higher
rents. (See, e.g., id. ¶ 120, 146.) In addition, Landlord
Defendants offered at least one Plaintiff the opportunity to
terminate his lease prematurely without financial penalty. (Id.
¶ 159-161.) Plaintiffs assert that as of late August 2014,
“Landlord Defendants took the position that the only form of
accommodation they would offer tenants was permanent
relocation.” (Id. ¶ 184.)
Beginning in July 2014, based on complaints made to the
Public Advocate’s Office, Plaintiff James sent representatives
to tenant meetings, conducted a survey of tenants, and visited
the Properties to inspect the conditions. (Id. ¶ 182.) The
survey found that more than 10% of the 82 tenants surveyed
4 As noted above, Judge Oetken ordered that Landlord Defendants provide reasonable accommodations to Plaintiffs Picaro and Valle, as offered at the hearing on Plaintiffs’ Motion for Preliminary Injunction. According to the Amended Complaint, the Parties are continuing to negotiate a stipulation to voluntarily dismiss Plaintiffs Picaro’s and Valle’s claims against the Landlord Defendants. (Id. ¶ 181.)
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identified as having a disability, and “experienced
discrimination or hardship” due to the elevator outages. (Id. ¶
183.)
James also contacted the DOB to inquire about its
procedures for long-term elevator outages. (Id. ¶ 185.) James
learned that the DOB “Elevator Application” requires
certification by owners seeking to repair elevators that they
are in compliance with “NYC Handicap Provisions.” (Id. ¶ 186.)
When asked about what the certification required, DOB told James
that owners taking elevators out of service for repairs must
give notice to tenants, and that the DOB does not ensure
accessibility rules are followed, nor require that owners seek
waivers of accessibility rules during outages. (Id. ¶ 187.)
As of September 12, 2014, the DOB had no record of Landlord
Defendants’ having filed a permit to perform elevator repair
work at 1135 Pelham Parkway North. (Id. ¶ 91.) The Amended
Complaint is silent as to whether Landlord Defendants filed
permits or submitted “Elevator Applications” for the repairs of
the elevators at the other four Properties, and as to whether
the DOB issued such permits.
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C. New York City Construction Codes5
Title 28 of the New York City Administrative Code contains
the New York City Construction Codes (“Construction Codes” or
the “Code”), which includes four subparts: the New York City
Plumbing, Mechanical, Fuel Gas, and Building Codes. N.Y.C.
Admin. Code § 28-101.1.6 The intent of the Construction Codes is
to:
provide reasonable minimum requirements and standards, based on current scientific and engineering knowledge, experience, and techniques, and the utilization of modern machinery, equipment, materials, and forms and methods of construction, for the regulation of building construction in the City of New York
5 The Court takes judicial note of the 1968 Building Code, Title 27 of the New York City Administrative Code, and the 2008 Construction Codes, Title 28 of the New York City Administrative Code, the Building Code, and the Rules of the City of New York. A court may take judicial notice of relevant statutory materials on a motion to dismiss. See Castellano v. Bd. of Trs. of the Police Officers’ Variable Supplements Fund, 937 F.2d 752, 754 (2d Cir. 1991), cert. denied, 502 U.S. 941 (1991) (taking judicial notice of statutory material on a motion to dismiss). 6 The Construction Codes, as set forth in Title 28, became effective July 1, 2008. N.Y.C. Admin. Code § 28-101.4. The 2008 Construction Codes supplemented the prior 1968 Building Code, which is codified in Title 27 of the New York City Administrative Code. N.Y.C. Admin. Code § 27-103. Title 27 remains in effect to the extent provided for by Title 28. Id. Although Title 28 provides for some optional use by owners of the 1968 Building Code on prior code buildings, installation and alteration of elevators is expressly excepted, and is governed by Chapter 30 and Appendix K of the 2008 Building Code. N.Y.C. Admin. Code § 101.4.3(3). The Construction Codes were again amended in 2014. However, because this matter concerns events occurring in or before 2013, the Court relies on the 2008 Construction Codes.
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in the interest of public safety, health and welfare, and with due regard for building construction and maintenance costs.
N.Y.C. Admin. Code § 28-101.2.
Pursuant to Chapter 26, Section 643 of the New York City
Charter, the Department of Buildings, headed by a Commissioner,
shall enforce, with respect to buildings and structures, such provisions of the building code, zoning resolution, multiple dwelling law, labor law and other laws, rules and regulations as may govern the construction, alteration, maintenance, use, occupancy, safety, sanitary conditions, mechanical equipment and inspection of buildings or structures in the city.
See also N.Y.C. Admin. Code § 28-103.1.
The Construction Codes prohibit any construction or repairs
to any building or mechanical system within a building without a
written permit issued by the Commissioner of the DOB. N.Y.C.
Admin. Code § 28-105.1. The DOB is charged with receiving and
reviewing applications and construction documents, and issuing
permits in accordance with the Code. N.Y.C. Admin. Code § 28-
103.11. An application for a permit must include a signed
statement by the applicant that “to the best of the applicant’s
knowledge and belief, the construction documents comply with the
provisions of this code or the 1968 building code, if
applicable, and other applicable laws and rules.” N.Y.C. Admin.
Code § 28-104.8.1. The Code establishes penalties for any
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person who commences work before obtaining the necessary permit.
N.Y.C. Admin. Code § 28-112.4. The Code further states:
The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other law or rule. Permits presuming to give authority to violate or cancel the provisions of this code or other law or rule shall not be valid.
N.Y.C. Admin. Code § 28-105.8.
The Construction Codes classify work permits into ten
categories, including “new building permits,” “alteration
permits” for the alteration of buildings or structures, and
“service equipment permits” for the installation or alteration
of service equipment, such as elevators. N.Y.C. Admin. Code §
105.2. In addition, “construction documents for alterations of
buildings in which any dwelling unit will be occupied during
construction shall include a tenant protection plan.” N.Y.C.
Admin. Code § 104.8.4. The tenant protection plan (“TPP”) shall
state “the means and methods to be employed to safeguard the
safety and health of the occupants,” including provision for
egress, fire safety, health requirements, compliance with
housing standards, structural safety, and noise restrictions.
Id.
Chapter 11 of the Building Code, entitled “accessibility”
controls the “design and construction of facilities for
accessibility to persons with physical disabilities.” N.Y.C.
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Bldg. Code §§ 1101.1.7 This Chapter requires that building
design and construction be done in accordance with the Code and
the International Code Council’s American National Standard code
related to “accessible and usable buildings and facilities,”
referred to as ICC A117.1. N.Y.C. Bldg. Code §§ 1101.2.
Existing buildings are exempt from Chapter 11 requirements,
except that they must comply with § 28-101.4 requiring
certification of compliance with the Code. N.Y.C. Bldg. Code §
1103.2.2. Among other requirements, Chapter 11 provides that
there be “accessible routes” between the building and public
transportation, parking, and public streets or sidewalks, as
well as accessible entrances to and routes within a property.
N.Y.C. Bldg. Code §§ 1104.1, 1105.1. Elevators on accessible
routes must be accessible. N.Y.C. Bldg. Code § 1109.6. Chapter
11 further requires that “at least one accessible route shall
connect each accessible level . . . in multilevel buildings and
facilities,” and that dwelling units have accessible features,
such as door clearance and height-compliant kitchen counters.
N.Y.C. Bldg. Code §§ 1104.4, 1107.1.
7 Plaintiffs’ Amended Complaint outlines a series of accessibility requirements enacted as Public Law 58 of 1987, which amended Title 27 (the 1968 Building Code). (Am. Compl. ¶¶ 70-80.) Because the Court has questions as to the applicability of Title 27 to the instant matter, see supra note 6, and because the 2008 Construction Codes contain equally, if not more, stringent accessibility requirements, the Court relies on the latter for its analysis here.
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Title 28, Article 304 of the Construction Codes, and
Chapter 30 of the Building Code concern “elevators and conveying
systems.” Similar to Chapter 11, Chapter 30 contains a
subsection entitled “accessibility,” which requires that
elevators shall conform to the International Code Council’s
standards related to “accessible and usable buildings and
facilities.” N.Y.C. Bldg. Code § 3001.3. Applications for
permits related to elevators must include “compliance with the
accessibility features” of the Code. N.Y.C. Bldg. Code §
3001.10. As to elevator repairs, all defects found during an
elevator inspection must be repaired within 120 days, and
hazardous conditions must be corrected immediately. N.Y.C.
Admin. Code § 28-304.6.6.8
Finally, the Rules of the City of New York permit the
imposition of civil penalties for maintaining a “condition
dangerous to human life or safety,” which includes an “elevator
out-of-service when there is only one elevator in the building.”
1 R.C.N.Y. § 11-02(a). The Rules provide that a person who
fails to remove the violation after being served with a notice
8 As of September 30, 2015, when all elevators servicing a building are expected to be out of service for two or more hours, notice to occupants must be posted at least twenty-four hours before the start of the work. N.Y.C. Admin Code § 28-304.10.2. The Court is aware of no provision in the Codes addressing access to dwellings within buildings during such elevator outages.
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of noncompliance is subject to civil penalties of at least
$150.00 per day. 1 R.C.N.Y. § 11-02(b). Waiver of civil
penalties is available when there is “work in progress for the
replacement or installation of a new elevator or major
renovation requiring the elevator to be deactivated during the
work.” 1 R.C.N.Y. §§ 11-02, 103-02(k)(2)(iii).
II. DISCUSSION
Government Defendants move to dismiss on three main
grounds: (1) Plaintiffs fail to state a claim under the ADA; (2)
Plaintiffs fail to state a claim under the FHA; and (3) the
Court should decline to exercise jurisdiction over the NYCHRL
claims. In addition, Government Defendants argue that Plaintiffs
Public Advocate Letitia James and CIDNY do not have standing to
assert claims against the Government Defendants.
A. Legal Standard for Motion to Dismiss
To survive dismissal pursuant Rule 12(b)(6), the plaintiff
must have pleaded “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “A claim has facial plausibility,” the
Supreme Court explained,
[W]hen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard
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is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 556–57). “[A] plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555
(internal quotation marks and citation omitted). “In keeping
with these principles,” the Supreme Court stated,
[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 679. These well-pleaded factual allegations
must tender more than “‘a formulaic recitation of the elements
of a cause of action’” or “‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id. at 678 (quoting Twombly,
550 U.S. at 555, 557).
In considering a motion under Rule 12(b)(6), the Court must
accept as true all factual allegations set forth in the
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complaint and draw all reasonable inferences in favor of the
plaintiff. See Twombly, 550 U.S. at 555. However, this
principle is “inapplicable to legal conclusions,” Iqbal, 556
U.S. at 678, which, like the complaint’s “labels and
conclusions,” Twombly, 550 U.S. at 555, are disregarded. Nor
should a court “accept [as] true a legal conclusion couched as a
factual allegation.” Id.
B. Legal Standard for Americans with Disabilities Act Claims
Title II of the Americans with Disabilities Act states “no
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a). Further, the
Department of Justice’s implementing regulations state that “[a]
public entity, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other
arrangements, on the basis of disability [d]eny a qualified
individual with a disability the opportunity to participate in
or benefit from the aid, benefit, or service.” 28 C.F.R. §
35.130(b)(1)(i). In addition, “[a] public entity shall not
exclude or otherwise deny equal services, programs, or
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activities to an individual or entity because of the known
disability of an individual with whom the individual or entity
is known to have a relationship or association.” 28 C.F.R. §
35.130(g).
“In the ADA, Congress provided a broad mandate to
effectuate its sweeping purpose to forbid discrimination against
disabled individuals in major areas of public life, including
public services.” Mary Jo C. v. New York State & Local Ret.
Sys., 707 F.3d 144, 160 (2d Cir. 2013) (citing PGA Tour, Inc. v.
Martin, 532 U.S. 661, 675 (2001))(internal alterations and
quotations omitted). Therefore, “[p]ublic entities ‘shall
operate each service, program, or activity, so that the service,
program, or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with disabilities.’”
Disabled in Action v. Bd. of Elecs. of New York, 752 F.3d 189,
197 (2d Cir. 2014)(citing 28 C.F.R. § 35.150(a)).
To establish a claim for discrimination under Title II of
the ADA, “plaintiffs must demonstrate that (1) they are
‘qualified individuals’ with a disability; (2) that the
defendants are subject to the ADA; and (3) that plaintiffs were
denied the opportunity to participate in or benefit from
defendants’ services, programs, or activities, or were otherwise
discriminated against by defendants, by reason of plaintiffs’
disabilities.” Noel v. New York City Taxi & Limousine Comm'n,
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687 F.3d 63, 68 (2d Cir. 2012)(citing Henrietta D. v. Bloomberg,
331 F.3d 261, 272 (2d Cir. 2003)).
1. Qualified Individuals
The ADA defines a “qualified individual with a disability”
as:
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
42 U.S.C. § 12131(2).
Under the ADA, a “disability” is a “physical or mental
impairment that substantially limits one or more major life
activities of [an] individual, a record of such an impairment,
or being regarded as having such an impairment.” 42 U.S.C. §
12102.
2. Services, Programs, or Activities
Neither the ADA nor its implementing regulations define the
term “service, programs, or activities.” Innovative Health
Sys., Inc. v. City of White Plains, 117 F.3d 37, 44 (2d Cir.
1997), recognized as superseded on other grounds, Zervos v.
Verizon N.Y., Inc., 252 F.3d 163, 171 n. 7 (2d Cir. 2001). The
Second Circuit has interpreted the phrase “services, programs,
or activities” as “a catch-all phrase that prohibits all
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discrimination by a public entity, regardless of the context.”
Id. Further, it noted that “the plain meaning of ‘activity’ is
a ‘natural or normal function or operation.’” Id. (citation
omitted). The Department of Justice’s ADA Guide for Small Towns
provides a number of examples of government programs and
services: “[a]pplying for a building permit or business license,
playing ball in the local park, marching in the Memorial Day
parade, attending an annual street festival or a town meeting,
or calling 9-1-1 for emergency police, fire, or rescue.” U.S.
Dep’t of Justice, ADA Guide for Small Towns, ADA.gov, 1 (2007),
http://www.ada.gov/smtown.htm. Nevertheless, “the scope of
Title II is not limitless.” Noel, 687 F.3d at 68 (internal
citation and quotations omitted).
The regulations are clear that public entities may not
discriminate through “contractual, licensing, or other
arrangements.” 28 C.F.R. § 35.130(b)(1)(i); see also U.S. Dep’t
of Justice, ADA Technical Assistance Manual (“TAM”), II-3.7200,
http://www.ada.gov/taman2.html (“A public entity may not
discriminate on the basis of disability in its licensing,
certification, and regulatory activities.”). In addition, a
public entity may not “administer a licensing or certification
program in a manner that subjects qualified individuals with
disabilities to discrimination,” nor “establish requirements for
the programs or activities of licensees or certified entities
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that subject qualified individuals with disabilities to
discrimination on the basis of disability.” 28 C.F.R. §
35.130(b)(6). However, the regulations also state that the
“programs or activities of entities that are licensed or
certified by a public entity are not, themselves, covered” by
the regulation. Id.
Housing discrimination falls within the scope of the ADA.
The ADA prohibits governmental entities from “implementing or
enforcing housing policies in a discriminatory manner against
persons with disabilities.” Tsombanidis v. W. Haven Fire Dep’t,
352 F.3d 565, 573 (2d Cir. 2003), recognized as superseded on
other grounds, MHANY Mgmt., Inc. v. Cnty. of Nassau, No. 14-
1634-CV (L), 2016 WL 1128424, at *31 (2d Cir. Mar. 23, 2016).
Thus, the Second Circuit has held that the ADA applies to zoning
decisions, including municipal determinations about whether to
issue building permits or grant variances from zoning
restrictions. Id. at 574; Forest City Daly Hous., Inc. v. Town
of N. Hempstead, 175 F.3d 144, 151 (2d Cir. 1999); Innovative
Health Sys., 117 F.3d at 45-46. However, neither the Supreme
Court nor the Second Circuit has addressed the precise question
of whether government issuance of building or construction
permits to a building owner or landlord constitutes a “service,
program, or activity,” provided to the tenants of such building;
nor have those Courts decided whether the permit issuing agency
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is liable under the ADA if the owner later discriminates against
the tenant based on disability.
C. Legal Standard for Fair Housing Act Claims
The Fair Housing Act makes it unlawful “[t]o refuse to sell
or rent . . . or otherwise make unavailable or deny, a dwelling
to any person” based on race, sex, or other protected
classifications. 42 U.S.C. § 3604(a). In addition, the FHA
prohibits discrimination “in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection therewith.” 42 U.S.C.
3064(b). Section 3604(f) extends these protections to people
with disabilities, making it unlawful to “discriminate in the
sale or rental, or to otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a handicap of that
buyer or renter, a person residing in or intending to reside in
that dwelling after it is so sold, rented, or made available; or
any person associated with that buyer or renter.” 42 U.S.C.
3604(f); see also Taylor v. Harbour Pointe Homeowners Ass’n, 690
F.3d 44, 49 (2d Cir. 2012).
Municipal entities may be liable for discrimination under
the FHA. Both the Supreme Court and the Second Circuit have
held that municipal zoning and building permitting decisions are
subject to the FHA, in addition to the ADA. Tex. Dep’t of Hous.
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& Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S.
Ct. 2507, 2521-22 (2015); MHANY Mgmt., 2016 WL 1128424, at *13;
Tsombanidis, 352 F.3d at 574. Additionally, district courts in
this Circuit have considered FHA claims related to
discriminatory provision of city police services to public
housing authority residents, and county licensing requirements
for substance abuse recovery houses. See Davis v. City of New
York, 902 F. Supp. 2d 405, 436 (S.D.N.Y. 2012); Human Res.
Research & Mgmt. Grp., Inc. v. Cnty. of Suffolk, 687 F. Supp. 2d
237, 253-54, 267 (E.D.N.Y. 2010).
D. Disability Discrimination Under the ADA and FHA
Under both the ADA and the FHA, Plaintiffs may establish
discrimination using three available theories: (1) intentional
discrimination (disparate treatment); (2) disparate impact; and
(3) failure to make a reasonable accommodation. Tsombanidis,
352 F.3d at 573.
Claims of intentional discrimination or disparate treatment
based on disability under the ADA and FHA are analyzed using the
familiar McDonnell Douglas burden-shifting framework. See Reg’l
Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d
35, 48 (2d Cir. 2002) (citing McDonnell Douglas Corp., v. Green,
411 U.S. 792, 802-03 (1973)). To establish a prima facie case
of intentional discrimination, a plaintiff must show that the
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plaintiff’s disability was a “motivating factor” behind the
defendant’s conduct. Tsombanidis, 352 F.3d at 579; see also
Reg’l Econ. Cmty., 294 F.3d at 49 (“[P]laintiffs must present
evidence that animus against the protected group was a
significant factor in the position taken by the municipal
decision-makers themselves or by those to whom the decision-
makers were knowingly responsive.”)(internal citation and
quotation omitted)(emphasis in original). In evaluating a claim
of intentional discrimination, a court may consider various
factors, including, but not limited to: “(1) the discriminatory
impact of the governmental decision; (2) the decision’s
historical background; (3) the specific sequence of events
leading up to the challenged decision; (4) departures from the
normal procedural sequences; and (5) departures from normal
substantive criteria.” Tsombanidis, 352 F.3d at 580 (citing
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 266–68 (1977)). If the plaintiff makes out a prima facie
case, the burden shifts to the defendant to provide a
“legitimate, nondiscriminatory reason for their decision.”
Reg'l Econ. Cmty., 294 F.3d at 49 (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). If the
defendant provides such a reason, the burden shifts back to the
plaintiff to show that the defendant discriminated against
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plaintiff on a prohibited ground, that is, that the defendant’s
proffered reason was pretextual. Id.
“The prima facie case under McDonnell Douglas, however, is
an evidentiary standard, not a pleading requirement.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). At the
pleadings phase, a plaintiff is “not required to plead a prima
facie case under McDonnell Douglas . . . to defeat a motion to
dismiss.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
84 (2d Cir. 2015) (citing Littlejohn v. City of New York, 795
F.3d 297, 311 (2d Cir. 2015)). The allegations in the complaint
“need only give plausible support to a minimal inference of
discriminatory motivation.” Littlejohn, 795 F.3d at 311.9
9 In Littlejohn v. City of New York, in reconciling the seemingly relaxed pleading standard of Swierkiewicz and the “plausibility” standard of Iqbal, the Second Circuit held that “Iqbal’s requirement applies to Title VII complaints of employment discrimination, but does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas quartet.” Id. at 310. Thus, “[t]he facts alleged must give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation.” Id. at 311. However, “[t]o the same extent that the McDonnell Douglas temporary presumption reduces the facts a plaintiff would need to show to defeat a motion for summary judgment prior to the defendant’s furnishing of a non-discriminatory motivation, that presumption also reduces the facts needed to be pleaded under Iqbal.” Id. at 310 (emphasis in original). Thus, plaintiff “need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination,” but instead “need only give plausible support to a minimal inference of discriminatory motivation.” Id. at 311.
Since Littlejohn, the Second Circuit has applied the relaxed pleading standard to discrimination claims arising under the ADA
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Plaintiffs alleging claims of discrimination under the ADA
and FHA may also do so under a disparate impact theory.10 The
Second Circuit has also outlined a burden-shifting approach for
disparate impact claims.11 “Under this test, a plaintiff must
first establish a prima facie case by showing, ‘(1) the
occurrence of certain outwardly neutral practices, and (2) a
significantly adverse or disproportionate impact on persons of a
and the Age Discrimination in Employment Act (“ADEA”). Dawson v. New York City Transit Auth., 624 F. App’x 763, 766-67 (2d Cir. 2015)(Summary Order)(ADA claims); Dooley v. JetBlue Airways Corp., No. 15-1356-CV, 2015 WL 9261293, at *4 (2d Cir. Dec. 18, 2015) (Summary Order) (ADA claims); Johnson v. Andy Frain Servs., Inc., No. 15-1143, 2016 WL 210098, at *1 (2d Cir. Jan. 19, 2016)(Summary Order)(ADEA claims). In addition, courts in this District have applied the relaxed requirement to claims under the ADA, the ADEA, 42 U.S.C. § 1981, and the Equal Credit Opportunity Act (“ECOA”). See Moore v. Verizon, No. 13-CV-6467 (RJS), 2016 WL 825001, at *8, 10 (S.D.N.Y. Feb. 5, 2016) (ADA and ADEA claims); Coleman v. Nonni's Foods, LLC, No. 15 CV 2791 (VB), 2015 WL 8773467, at *2 (S.D.N.Y. Dec. 14, 2015) (§ 1981 claims); Frederick v. Capital One Bank (USA), N.A., No. 14-CV-5460 AJN, 2015 WL 5521769, at *4 (S.D.N.Y. Sept. 17, 2015) opinion amended on reconsideration, 2015 WL 8484560 (S.D.N.Y. Dec. 8, 2015)(ECOA claims). Given the widespread application of Littlejohn to cases using the McDonnell Douglas approach to claims of discrimination, the Court here assumes that Littlejohn applies to both the ADA and FHA claims. 10 Though the Second Circuit had previously so held, in 2015, the Supreme Court held that disparate impact claims are cognizable under the FHA. Tex. Dep't of Hous. & Cmty. Affairs, 135 S. Ct. at 2520. 11 It is not clear from Littlejohn or subsequent Second Circuit decisions whether the relaxed pleading standards for disparate treatment claims using the McDonnell Douglas burden-shifting framework, apply to pleadings alleging disparate impact claims, which are analyzed using a different burden-shifting analysis.
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particular type produced by the defendant’s facially neutral
acts or practices.’” MHANY Mgmt, 2016 WL 1128424, at *30,
(citing Reg’l Econ. Cmty., 294 F.3d at 52-53; Tsombanidis, 352
F.3d at 575). The plaintiff must “prove that practice actually
or predictably results in discrimination.” Tsombanidis, 352
F.3d at 575 (internal citations and quotations omitted). In
addition, “the plaintiff must show a causal connection between
the facially neutral policy and the alleged discriminatory
effect.” Id.
If the plaintiff makes a prima facie showing of disparate
impact, the burden shifts back to the defendant to show that the
“challenged practice is necessary to achieve one or more
substantial, legitimate, nondiscriminatory interests of the
respondent or defendant.” MHANY Mgmt., 2016 WL 1128424, at *30
(citing 24 C.F.R. § 100.500(c)(1)-(2)). At this stage, “housing
authorities and private developers must be allowed to maintain a
policy if they can prove it is necessary to achieve a valid
interest.” Tex. Dep’t of Hous. & Cmty. Affairs, 135 S. Ct. at
2523. If the defendant meets this burden, “the burden of proof
shifts back to the plaintiff to show that the ‘substantial,
legitimate, nondiscriminatory interests supporting the
challenged practice could be served by another practice that has
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a less discriminatory effect.” 12 MHANY Mgmt., 2016 WL 1128424,
at *30, 33 (citing 24 C.F.R. § 100.500(c)(3)).
Finally, a plaintiff may make out a claim of discrimination
against a public entity under the ADA or FHA by showing that the
defendant failed to make reasonable accommodations which would
“provide qualified individuals with an equal opportunity to
receive benefits from or to participate in programs run by such
entities.” Tsombanidis, 352 F.3d at 573. “[A] governmental
entity engages in a discriminatory practice if it refuses to
make a ‘reasonable accommodation’ to ‘rules, policies, practices
or services when such accommodation may be necessary to afford
[a handicapped person] equal opportunity to use and enjoy a
dwelling.’” Id. at 578 (citing 42 U.S.C. § 3604(f)(3)(B) and 42
U.S.C. § 12131(2); see also Reg’l Econ. Cmty, 294 F.3d at 45. A
plaintiff proceeding on a reasonable accommodation theory need
12 Under Huntington Branch, NAACP v. Town of Huntington, after the plaintiff met its burden, the burden then shifted to defendant to “prove that its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.” 844 F.2d 926, 936 (2d Cir. 1988)(emphasis added). However, the Second Circuit, adopting regulations promulgated by the Secretary of Housing and Urban Development (“HUD”), recently held that the burden of “proving an available alternative practice that has less disparate impact and serves Defendants’ legitimate nondiscriminatory interests” is placed on the plaintiff. MHANY Mgmt., 2016 WL 1128424, at *31, 33.
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not also show disparate impact; that is, plaintiff need not
identify a “‘comparison class’ of ‘similarly situated
individuals given preferential treatment.’” Henrietta D. v.
Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003) (citing Olmstead v.
L.C., 527 U.S. 581, 598 (1999) (plurality op.)).
To avoid a finding of discrimination based on failure to
provide a reasonable accommodation, “[a] defendant must incur
reasonable costs and take modest, affirmative steps to
accommodate the handicapped as long as the accommodations sought
do not pose an undue hardship or a substantial burden.”
Tsombanidis, 352 F.3d at 578; see also Disabled in Action, 752
F.3d at 197. However, to prevail, plaintiffs “must first
provide the governmental entity an opportunity to accommodate
them through the entity’s established procedures used to adjust
the neutral policy in question.” Tsombanidis, 352 F.3d at 578.
This is because “[a] governmental entity must know what a
plaintiff seeks prior to incurring liability for failing to
affirmatively grant a reasonable accommodation.” Id. at 579;
see also Taylor, 690 F.3d at 49-50 (finding no liability of
homeowners’ association for failure to provide reasonable
accommodation where plaintiff never requested accommodation and
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it was unclear from what rule or practice homeowner sought
accommodation).13
In the housing context, the ADA and FHA “‘require that
changes be made to such traditional rules or practices if
necessary to permit a person with handicaps an equal opportunity
to use and enjoy a dwelling.’” Tsombanidis, 352 F.3d at 578
(citing Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 333 (2d
Cir. 1995)). For example, plaintiffs have stated cognizable
claims for municipal failures to provide variances or exceptions
from zoning rules to permit construction or placement of homes
for people with disabilities, see id. at 574, Innovative Health
Sys., 117 F.3d at 48-49; failure of a cooperative apartment
owner to provide a first-floor parking spot, Shapiro, 51 F.3d at
333-34; and failure of a local housing authority to accommodate
a mobility-impaired plaintiff’s request to relocate from an
upper-floor to a lower-floor apartment, see Logan v.
Matveevskii, 57 F. Supp. 3d 234, 256, 262-63 (S.D.N.Y. 2014)
(collecting cases).
13 The Second Circuit has made clear that this does not amount to an exhaustion requirement. Instead, the plaintiff need only “use the proper procedure to seek an exception or variance.” Tsombanidis, 352 F.3d at 579 n.8.
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E. Application to Plaintiffs’ Americans with Disabilities Act Claims
Plaintiffs assert claims against the Government Defendants
for violation of Title II of the Americans with Disabilities
Act, and the underling regulation, 28 C.F.R. § 35.130(a), for
their failure to apply the City’s accessibility laws to
construction and permit applications to ensure that Plaintiffs
were able to enter and exit their apartments during long-term
elevator shutdowns. Government Defendants do not contest that
they are public entities and therefore subject to the ADA. They
also assume, without admitting, that Plaintiffs are “qualified
individuals” under the ADA. (Gov’t. Defs.’ Mot. to Dismiss 9-
10.)14 Thus, only the third element of Plaintiffs’ ADA claim is
at issue. Government Defendants argue that Plaintiffs have
failed to state a claim because Plaintiffs “have not been denied
the opportunity to participate in or benefit from [Government]
Defendants’ services, programs, or activities,” nor otherwise
been discriminated against by the Government Defendants by
reason of their disabilities. (Id. 10.) The Court agrees.
14 The Court finds that the Individual Plaintiffs have pleaded adequately that they are “qualified individuals with disabilities” or are associated with such qualified individuals. See 42 U.S.C. § 12131(2); 28 C.F.R. § 35.130(g). The issue of standing as to Plaintiffs James and CIDNY is addressed below.
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1. Whether the Government Defendants Perform Services, Programs, or Activities
First, as noted above, the question of whether the issuance
of building or construction permits to a building owner or
landlord constitutes a “service, program, or activity” provided
to tenants is a question of first impression in this Circuit.
The Court finds that under the circumstances alleged in the
Amended Complaint, the Government Defendants’ actions do not
constitute a “service, program, or activity” under the ADA.
Plaintiffs’ Amended Complaint outlines various provisions
of Title 27 and 28 of the New York City Administrative Code
related to accessibility that they claim apply to elevator
repairs. In their Opposition to Defendants’ Motion to Dismiss,
Plaintiffs characterize these Construction and Building Code
provisions as the City’s “Housing Accessibility Program.”
However, as Defendants argue, this phrase is notably absent from
the Amended Complaint, as well as from the 1968 Building Code or
2008 Construction Codes themselves. (Gov’t. Defs.’ Reply 1.)
Because Plaintiffs have not cited clear authority establishing a
“housing accessibility program,” the Court must examine the
relevant provisions of the Codes Plaintiffs cite to determine
whether they do, indeed, create such a “program.”
The stated intent of the Construction Codes is to “provide
reasonable minimum requirements and standards . . . for the
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regulation of building construction in the City of New York in
the interest of public safety, health and welfare, and with due
regard for building construction and maintenance costs.” See
N.Y.C. Admin. Code § 28-101.2. In addition to this public
purpose, the Code also seeks to incorporate scientific and
engineering knowledge, as well as consideration of costs, into
regulation of building and construction. (Id.) Accessibility
is not expressly mentioned in the statement of intent. Although
the presence of accessibility requirements throughout the Codes
does evince an intent to ensure accessibility in building and
construction, its absence from the statement of intent, and the
breadth of coverage of the Codes, weighs against a finding that
the Codes should be considered a City “program” to ensure
accessible housing.
Indeed, in addition to the various provisions about
accessibility, the Codes also contain hundreds of pages of
detailed specifications unrelated to accessibility regarding,
for example, mirrors and emergency signage required in
elevators, fire department use and access, and locations of
vents and sprinklers. See, e.g., N.Y.C. Bldg. Code § 3001.6,
3002.3, 3006.2, 3006.5, 3007.2. The Codes also regulate non-
residential building and construction, a fact which belies the
argument that the Codes establish any kind of “housing program”
whatsoever. See N.Y.C. Bldg. Code § 302.1 (listing
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classifications of structures covered by the Code, including
assembly, building, educational, factory and industrial,
institutional, mercantile, residential, and storage).
Nor have Plaintiffs plausibly alleged that the Department
of Buildings or the Commissioner of the DOB is charged with, or
is actually providing, any services to Plaintiffs. Plaintiffs
argue that Government Defendants “have committed themselves to
providing New York City residents with the service of ensuring
access to and from their homes during times of construction.”
(Plfs.’ Opp. to Mot. to Dismiss 12.) Absent from the Amended
Complaint, however, are any plausible allegations supporting
this assertion, such as a description of how the DOB provides
such services. Were the Court to find that the DOB had so
committed itself, it would expect that the DOB employ additional
staff dedicated to assisting disabled individuals with entering
and exiting their homes, or that it would have protocols or a
budget for doing so. Plaintiffs have made no such allegations.
Although, no doubt, Plaintiffs would seek this type of service
as a remedy in this action, they have not pointed to any
provision of the Code or other City law that currently imposes
such a duty, nor any facts to support a finding that the DOB has
voluntarily taken on such a commitment.15
15 The DOB cannot be charged with failing to enforce requirements that do not exist. To the extent that Plaintiffs’ argument
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35
To support their case for municipal liability, Plaintiffs
rely on several cases in which the City was found to be
discriminating in the provision of a service or program based on
disability. However, these cases are distinguishable from the
case at hand. In Brooklyn Center for Independence of the
Disabled v. Bloomberg (“BCID”), the Court applied the ADA to the
City’s emergency preparedness planning, including its provision
of evacuation and shelter services. 980 F. Supp. 2d 588
(S.D.N.Y. 2013). Particularly relevant to this case is Judge
Furman’s finding, after a bench trial, that the City’s
evacuation plan, which failed to accommodate the needs of
disabled tenants in multi-story buildings when an emergency
rendered elevators inoperable, violated the ADA. Id. at 602,
643-44.
However, in that case, there was no dispute that the City’s
emergency preparedness program constituted a service, activity
or program under the ADA. Id. at 640. Judge Furman found that
the City’s emergency preparedness program “consist[ed] of
numerous plans, guides, strategies, playbooks, scripts, and
protocols designed, among other things, to guide evacuation,
centers on the absence of provisions in the Codes to address extended elevator outages or other situations restricting disabled individuals’ access to their homes, the Court agrees that it is a valid policy concern. However, such a concern is properly directed at the legislature, not the Court.
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transportation, and shelter during an emergency; to disseminate
emergency information during a disaster; and to aid the City and
its residents in recovering from an emergency.” Id. at 598-99.
The Court also found that the emergency plans involved
coordination between a number of City agencies and actors. The
plans included, at a minimum: the Office of Emergency Management
(“OEM”), which had over 200 employees including a designated
Special Needs Coordinator, and was responsible for preparing the
City’s emergency plans, conducting training, and overseeing the
City’s emergency education and outreach programs; the New York
City Fire Department, which was the lead agency responsible for
building evacuations; the New York City Police Department,
which, among other things, canvassed buildings to help identify
people in need, assisted with transportation, and relayed
emergency information; and officials from the Mayor’s Office for
People with Disabilities, which “helps to ensure that City
services and programs more generally address the needs of people
with disabilities.” Id. at 596, 599-600, 602.
BCID is easily distinguishable from the instant case.
First, the wide array of plans, protocols, strategies, and
guides for government action present in BCID are lacking here.
That the Codes are peppered with accessibility requirements does
not turn this patchwork of Code provisions into a comprehensive
government “program” of the type present in BCID. Furthermore,
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unlike in BCID, where there were numerous City agencies and
actors that were assigned specific tasks and responsibilities
related to emergency planning, here, Plaintiffs have not alleged
the existence of even one DOB staff member specifically
responsible for ensuring building access to people with
disabilities. The general allegations about the DOB’s and the
Commissioner’s responsibilities to enforce the hundreds of
requirements in the Codes do not support a finding that they are
tasked with monitoring private actors to ensure disabled
individuals access to their homes during construction.
Plaintiffs also rely on United Spinal Ass’n v. Bd. of
Elections of New York, 882 F. Supp. 2d 615 (S.D.N.Y. 2012) aff'd
sub nom. Disabled in Action v. Bd. of Elections of New York, 752
F.3d 189 (2d Cir. 2014). In that case, this Court granted
summary judgment in favor of plaintiffs, finding that there were
“pervasive and recurring barriers to accessibility on election
days at poll sites designated by the [Board of Elections].” Id.
at 624. Again, there was no dispute in that case that the
voting process, and within that, the Board of Elections’
operation of voting sites, constituted a government service or
program. Thus, United Spinal does little to support Plaintiffs’
claim that the Government Defendants’ are required to provide
the “service” of ensuring disabled tenants access to and from
their homes during construction.
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The parties’ briefing also raises the more specific
question of whether the DOB’s issuance of permits constitutes a
“service, program, or activity” that is covered by the ADA.
Plaintiffs are correct that “enforcement of construction codes
or zoning laws in a manner that results in discrimination
against disabled people” is actionable under the ADA. (Plfs.’
Opp. to Mot. to Dismiss 13 n.9 (citing Innovative Health Sys.,
117 F.3d at 44)); see also Forest City Daly Hous., 175 F.3d at
151. In Innovative Health, the Second Circuit held that the ADA
applies to zoning decisions, and that the city zoning board’s
denial of an application for a building permit to a drug and
alcohol rehabilitation center constituted discrimination based
on the applicant’s chemical-dependent status. 117 F.3d at 49.
However, Innovative Health is inapposite here.
As Defendants argue and Plaintiffs readily admit, this is
not a case in which Plaintiffs assert that the DOB granted or
denied applications for permits or licenses on the basis of
Plaintiffs’ disabilities. (Plfs.’ Opp. to Mot. to Dismiss 15.)
There would be no doubt that such a claim would be actionable
under the ADA. Instead, the crux of Plaintiffs’ claim is that
in granting permits to the Landlord Defendants without ensuring
that they would carry out the elevator repairs in a non-
discriminatory way, the Government Defendants themselves carried
out a program or activity which discriminated against the
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Plaintiffs. Government Defendants argue that this claim is
foreclosed by 28 C.F.R. § 35.130(b)(6), which while prohibiting
public entities from administering a program discriminatorily,
also states that the “programs or activities of entities that
are licensed or certified by a public entity are not,
themselves, covered” by the regulation. The Court agrees that
the Plaintiffs have not alleged sufficient facts to support
liability of the DOB for the discriminatory activities of the
Landlord Defendants.
This result is supported by Second Circuit precedent. In
Noel v. New York City Taxi and Limousine Comm’n, the Second
Circuit held that the New York City Taxi and Limousine
Commission (“TLC”) did not violate the ADA by regulating the
private taxi industry in a way that permitted the taxi industry
to deny meaningful access to disabled passengers. 687 F.3d at
72. The Second Circuit rejected the district court’s reasoning
that the TLC “‘is a public entity carrying out a public
regulatory function that affects and confers a benefit on New
York City taxicab riders,’ and therefore may not discriminate in
any of its functions — including its regulatory activities — and
must ensure persons with disabilities have meaningful access to
taxis in New York City.” Id. at 67.
In so holding, the Circuit explained that the regulations
make clear that “the persons who are protected are those who are
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seeking licenses,” rather than those benefiting from the service
or program of the licensee. Id. at 69. Citing the Technical
Assistance Manual of the U.S. Department of Justice, the Circuit
noted that “[a]lthough licensing standards are covered by
[T]itle II, the licensee’s activities themselves are not
covered. An activity does not become a ‘program or activity’ of
a public entity merely because it is licensed by the public
entity.” Id. at 70 (citing TAM II–3.7200)(emphasis in
original). Further, “even if [a] private industry . . . fails
to provide meaningful access for persons with disabilities, a
licensing entity . . . is not therefore in violation of Title
II(A), unless the private industry practice results from the
licensing requirements.” Id.16 Nor is the pervasiveness of the
regulation of an industry sufficient to make it a program or
activity of a public entity. Id. at 72. Thus, the Circuit
concluded, “Title II(A)'s prohibition on discrimination by
16 As an illustration, the DOJ Technical Assistance Manual states: “A State prohibits the licensing of transportation companies that employ individuals with missing limbs as drivers. XYZ company refuses to hire an individual with a missing limb who is ‘qualified’ to perform the essential functions of the job, because he is able to drive safely with hand controls. The State’s licensing requirements violate title II. BUT: The State is not accountable for discrimination in the employment or other practices of XYZ company, if those practices are not the result of requirements or policies established by the State.” TAM II-3.7200.
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public entities does not compel public entities to police
compliance by the private entities they license.” Id. (citing
28 C.F.R. § 35.130(b)(6)). See also id. (citing favorably Tyler
v. City of Manhattan, 849 F. Supp. 1429, 1442 (D. Kan.
1994))(noting that Title II and its implementing regulations do
“not go so far as to require public entities to impose on
private establishments, as a condition of licensure, a
requirement that they make their facilities physically
accessible to persons with disabilities.”)).
Here, the DOB is charged with regulating the primarily
private construction and building industry.17 Although
Government Defendants regulate the industry through enforcement
of the Construction Codes and issuance of building permits,
inspections, and certificates of use and occupancy, the
activities of the Landlord Defendants are not imputed to the
Government Defendants because “the programs or activities of
licensees or certified entities are not themselves programs or
activities of the public entity merely by virtue of the license
or certificate.” Id. at 70 (citing Tyler). Furthermore,
Plaintiffs’ argument that the DOB provides a service since it is
the exclusive agency in charge of issuing permits for
17 This case does not raise the question of the DOB’s liability for ensuring accessibility in public construction or building, for example, in publicly-owned and operated housing.
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construction and building is unavailing. (Plfs.’ Opp. to Mot. to
Dismiss 21.) In the absence of allegations that the purported
discrimination by the Landlord Defendants was a result of
compliance with DOB’s requirements or a contractual relationship
with the DOB, the pervasiveness of the regulation of the private
building industry is not sufficient to convert the Landlord
Defendants’ alleged discrimination into discrimination by the
Government Defendants. See Noel at 72.
Plaintiffs also seek to avoid application of Noel, and thus
the result it dictates, by arguing that the Defendants have
misconstrued their claims. Specifically, Plaintiffs argue that
28 C.F.R. § 35.130(a), prohibiting the discriminatory denial of
meaningful access to a government program or service, rather
than 35.130(b), prohibiting discrimination in licensing,
applies. However, as explained above, Plaintiffs’ repeated
assertion that the DOB provides a service or program because it
is “explicitly charged with ensuring building accessibility for
disabled individuals” is not supported by the Codes, nor any
other legal authority that Plaintiffs have cited. In the
absence of such support, the Court believes that the application
of 28 C.F.R. § 35.130(b) is appropriate to Plaintiffs’ claims.
For the reasons explained above, the Court finds that the
Government Defendants’ regulation of the construction industry
and issuance of permits to the Landlord Defendants, do not
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43
constitute a “service, program, or activity” of the Government
Defendants for the purpose of Plaintiffs’ ADA claims.
2. Whether the Government Defendants Denied Plaintiffs the Benefit of Services or Programs, Or Discriminated Against Plaintiffs Based on the Their Disabilities
Even if the Court found that Plaintiffs had plausibly
alleged that the Construction Codes established a “housing
accessibility program,” Plaintiffs must also allege that they
were “excluded from participation in or [] denied the benefits
of the services, programs, or activities,” or that they were
“subjected to discrimination” by the Government Defendants by
reason of their disabilities. 42 U.S.C. § 12132. Because the
City Charter, Construction Codes and Building Code provide the
statutory basis for the purported “housing accessibility
program,” Plaintiffs would need to allege that the Government
Defendants’ carrying out of their duties under the Charter and
enforcement of the Codes was done in a discriminatory manner and
caused Plaintiffs’ injuries.18
18 The Court notes that disparate treatment, disparate impact, and reasonable accommodation theories are all viable under the ADA. Tsombanidis, 352 F.3d at 573. Though the Plaintiffs claim that the Landlord Defendants failed to provide reasonable accommodations to Plaintiffs, they allege no such claim against the Government Defendants. As to the ADA claim, Plaintiffs argue only that they were denied participation in the benefits of the “housing accessibility program” without specifying the nature of the discrimination.
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As an initial matter, the Construction Codes require that
applicants for building or construction permits certify that
they are in compliance with the Codes as a condition of securing
a permit. N.Y.C. Admin. Code § 28-104.8.1; (Am. Compl. ¶ 186).
In addition, the Construction Codes provide that:
The issuance or granting of a permit shall not be construed to be a permit for, or an approval of, any violation of any of the provisions of this code or of any other law or rule. Permits presuming to give authority to violate or cancel the provisions of this code or other law or rule shall not be valid.
N.Y.C. Admin. Code § 28-105.8. Thus, pursuant to the
unambiguous text of the Construction Codes, the issuance of a
permit by the DOB does not authorize any discriminatory action
by the recipient of the permit and, indeed, upon any such
violation, the permit becomes presumptively invalid. Assuming,
then, that the Government Defendants issued permits to the
Landlord Defendants after receiving the required certification
from the Landlord Defendants, the permits would become invalid
if and when the Landlord Defendants violated any provision of
the Code, including by denying Plaintiffs’ access to their homes
during construction. Thus, the text of the Codes forecloses the
possibility that issuance of the permits to Landlord Defendants,
without more, would constitute discrimination by the Government
Defendants.
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45
In this case, the Amended Complaint does not allege any
additional discriminatory action on the part of the Government
Defendants. Indeed, nowhere does the Amended Complaint allege
that the Landlord Defendants applied for or that the Government
Defendants issued permits, with or without the requisite
applications or certifications from the Landlord Defendants. If
the Government Defendants never received any permit
applications, nor issued permits, then there would be no basis
to sue them.19 Nor do Plaintiffs allege that the Government
Defendants sanctioned the Landlord Defendants’ working on the
elevators without permits. Plaintiffs have not pointed to any
policy or licensing requirement of the Government Defendants
which, if followed, would cause the Landlord Defendants’
purported discriminatory conduct. Though the Court must assume
as true Plaintiffs’ allegations and make reasonable inferences
in their favor, the Court cannot create allegations out of whole
cloth. Nevertheless, for the purpose of deciding this Motion,
the Court assumes that the Government did issue permits for all
of the Properties.
19 As to the repairs of the elevators in 1130 Pelham Parkway South, 1540 Pelham Parkway South, 2160 Matthews Avenue, and 2166 Matthews Avenue, the Amended Complaint is silent as to whether the Landlord Defendants did, in fact, certify compliance and obtain permits for elevator repairs. Plaintiffs allege only that as of September 2014, there was no DOB record of the Landlord Defendants having filed for a permit with respect to repairs at 1135 Pelham Parkway North. (Am. Compl. § 91.)
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Defendants argue that Plaintiffs have mischaracterized the
accessibility standards. (Gov’t. Defs.’ Mot. to Dismiss 12-13.)
The Court understands this argument to suggest that because
there were no Code provisions applicable to the elevator repairs
here, the Government Defendants cannot be held liable for
failing to enforce them. Specifically, the Government
Defendants assert that the accessibility requirements apply to
completed work, rather than accessibility during construction.
Although the Court believes it unlikely that all accessibility
requirements disappear during construction, Plaintiffs have not
directed the Court to any Code provisions regarding
accessibility during construction that the Government Defendants
have failed to enforce. While the Rules of the City of New York
create civil penalties when the only elevator in a building is
out-of-service, calling it a “condition dangerous to human life
and safety,” there is no requirement that that the DOB impose
such penalties. 1 R.C.N.Y. § 11-02(a)(1). Further, as
Defendants rightly point out, owners may seek waivers from those
penalties when there is “work in progress for the replacement or
installation of a new elevator or major renovation requiring the
elevator to be deactivated during the work.” 1 R.C.N.Y. § 103-
02(k)(2)(iii).20
20 The 2014 Construction Code requirement that building owners notify occupants of extended elevator outages was allegedly
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47
The Court need not decide here whether the accessibility
requirements apply during construction because Plaintiffs do not
allege any wrongdoing on the DOB’s part. There are no
allegations here as to whether the Landlord Defendants sought or
the DOB granted a waiver of penalties or other requirements in
this case. Plaintiffs allege only that the DOB told the Public
Advocate that “owners taking elevators out of service for
repairs are merely required to give notice to tenants,” and that
the DOB does not “require owners to seek a waiver of the
accessibility laws.” Neither of these allegations suggests any
wrongdoing on the part of the Government Defendants. (Am.
Compl. ¶ 187.)
The Court also agrees that the requirement that permit
applications be accompanied by tenant protection plans does not
appear to apply to applications for “service equipment permits,”
which includes installation or alteration of elevators, but only
to “building alteration permits.” See N.Y.C. Admin. Code §§
104.8.4, 105.2. However, even if a TPP were required in this
circumstance, in the absence of any allegation that the
Government Defendants ignored application protocols, the Court
followed here. N.Y.C. Admin Code § 28-304.10.2; see supra note 8; (Am. Compl. ¶ 85.) The provision does not address accessibility during those outages, let alone impose on the Department of Building any liability for failure to ensure such access.
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48
does not find it appropriate to impute the alleged failure of
the Landlord Defendants to comply with the application
requirements to the Government Defendants. Thus, the Court need
not decide at this time whether the Landlord Defendants were
required to submit a tenant protection plan in their
applications for permits related to elevator outages at the
Properties.
Finally, even if the Plaintiffs had sufficiently pleaded
the Government Defendants’ failure to enforce applicable Code
provisions, Plaintiffs have not alleged causation between the
Government Defendants’ alleged failures and Plaintiffs’
injuries. More specifically, Plaintiffs have not plausibly
alleged that the Government Defendants’ issuance of building
permits caused the extended elevator outages in the Properties,
or sanctioned the Landlord Defendants’ alleged failure to
provide reasonable accommodations to enable Plaintiffs to access
their homes. The Court is sympathetic to the Plaintiffs’
concerns regarding access to their homes during elevator
construction. Nevertheless, the Court has difficulty
conceptualizing how the Plaintiffs can causally link the
Government Defendants actions or inactions, either as a legal or
factual matter, with the Landlord Defendants’ denial of access
to and from the Plaintiffs’ homes during elevator construction.
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49
Accordingly, the Government Defendants’ Motion to Dismiss
Plaintiffs’ ADA claims as to them is GRANTED.
F. Application to Plaintiffs’ Fair Housing Act Claims
Plaintiffs also claim that the Government Defendants’
failure to apply the City’s accessibility standards to
construction and elevator permit applications violates the Fair
Housing Act, 42 U.S.C. § 3604(f). The Government Defendants
move to dismiss the FHA claim on the basis that the issuance of
permits does not relate to the availability of housing for sale
or rent under 42 U.S.C. § 3604(f)(1), nor the “provision of
services or facilities in connection with such dwelling” under
42 U.S.C. § 3604(f)(2). The Court agrees.
As explained above in the discussion of Plaintiffs’ ADA
claims, see supra § II.E.1, Plaintiffs have not plausibly
alleged that the Government Defendants are, indeed, providing a
municipal service to Plaintiffs. Nor are Plaintiffs alleging
that the Government Defendants are providers of housing, which
would also trigger FHA liability. See, e.g., Clifton Terrace
Assocs., Ltd. v. United Techs. Corp., 929 F.2d 714, 719 (D.C.
Cir. 1991)(private contractor providing elevator repair services
does not have a duty to provide non-discriminatory services to
tenants because § 3604(b) and (f)(2) “are directed at those who
provide housing and then discriminate in the provision of
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50
attendant services or facilities, or those who otherwise control
the provision of housing services and facilities.”)
Again, the Court reiterates the point that this is not a
case in which Plaintiffs are applicants for permits themselves,
and are alleging discrimination in the grant or denial of
applications, or where the Government Defendants are providing
housing or elevator services themselves. In such cases, the
Government Defendants would likely be found to be providing
“services or facilities in connection” with housing.
Nevertheless, based on the circumstances alleged in Plaintiffs’
Amended Complaint, the Court finds that the Government
Defendants’ enforcement of the Construction Codes and issuance
of permits to the Landlord Defendants does not relate to the
availability of housing, nor constitute “services or facilities
in connection” with housing.
Even assuming that the Government Defendants were providing
housing or a service or facility in connection with housing,
Plaintiffs would still need to plausibly allege that they were
discriminated against based on their disabilities by the
Government Defendants.
Plaintiffs assert that Governments are liable under a
disparate impact theory, arguing that the Government Defendants’
“facially neutral policy of approving construction and elevator
permits without requiring a TPP or other protections for tenants
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51
with disabilities discriminates against people with
disabilities.” (Plfs.’ Opp. to Mot. to Dismiss 16.)
Specifically, the Amended Complaint alleges that of the 82
tenants surveyed by the Public Advocate, more than 10%
identified as having a disability, and “experienced
discrimination or hardship” due to the elevator outages. (Am.
Compl. ¶ 183.) While Plaintiffs have not alleged the existence
of a comparison group, the Court can reasonably infer that
without accommodations, people with mobility impairments would
be disparately impacted by an extended elevator outage.
Nevertheless, based on the facts alleged in the Amended
Complaint, it is not the neutral enforcement of the Codes by the
Government Defendants that caused the alleged disparate impact
on Plaintiffs and other disabled individuals, but instead the
Landlord Defendants’ decision to conduct extended elevator
repairs at the Properties. As with Plaintiffs’ ADA claims, the
Court struggles to find causation between the Government
Defendants’ enforcement of the Codes and Plaintiffs’ injuries.
Again, the Codes state that issuance of a permit should not “be
construed to be a permit for, or an approval of, any violation
of any of the provisions of this code or of any other law or
rule,” and that upon any such violation, the permit becomes
invalid. N.Y.C. Admin. Code § 28-105.8. Thus, based on
Plaintiffs’ allegations, it cannot be said that the issuance of
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52
the permits allowed, let alone caused, the Landlord Defendants
to violate any accessibility requirements. The Court has no
basis for finding that the Government Defendants’ neutral
enforcement of the Construction Codes caused Plaintiffs’
injuries.21
G. Standing of Plaintiffs James and CIDNY
1. Legal Standard for Standing
Standing is “the threshold question in every federal case,
determining the power of the court to entertain the suit.” Nnebe
v. Daus, 644 F.3d 147, 156 (2d Cir. 2011)(citation omitted).
“To satisfy constitutional standing requirements, a plaintiff
must prove: (1) injury in fact, which must be (a) concrete and
particularized, and (b) actual or imminent; (2) a causal
connection between the injury and the defendant’s conduct; and
(3) that the injury is likely to be redressed by a favorable
decision. Kreisler v. Second Ave. Diner Corp., 731 F.3d 184,
187 (2d Cir. 2013)(citing Field Day, LLC v. Cty. of Suffolk, 463
21 Furthermore, Plaintiffs have provided no authority for the theory that an agency vested with enforcement authority is liable for the private violation of any code provision it is charged with enforcing. Such a scheme would have far-reaching implications for a City agency responsible for enforcing hundreds of rules against the thousands of building owners in New York City.
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F.3d 167, 175 (2d Cir. 2006) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992))).
Under the FHA, standing is conferred to “any person who -
(1) claims to have been injured by a discriminatory housing
practice; or (2) believes that such person will be injured by a
discriminatory housing practice that is about to occur.””
Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y.,
111 F. Supp. 3d 459, 489-90 (S.D.N.Y. 2015) (citing LeBlanc–
Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995)(quoting
42 U.S.C. § 3602(i))). Thus, “[a]s long as the plaintiff
suffers actual injury as a result of the defendant's conduct, he
is permitted to prove that the rights of another were
infringed.” Id. at 490 (citing Gladstone Realtors v. Vill. of
Bellwood, 441 U.S. 91, 103 n. 9 (1979)).
Standing under the ADA is similarly broad. The ADA
provides “remedies, procedures, and rights . . . to any person
alleging discrimination on the basis of disability in violation
of section 12132.” Fulton v. Goord, 591 F.3d 37, 42 (2d Cir.
2009) (citing 42 U.S.C. § 12133); see also Innovative Health
Sys., 117 F.3d at 47. Standing under both the ADA and the FHA
are to be construed as broadly as is constitutionally permitted.
See Fulton, 591 F.3d at 42; Fair Hous. in Huntington Comm. Inc.
v. Town of Huntington, N.Y., 316 F.3d 357, 362 (2d Cir. 2003).
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An organization may assert standing based on its
association with individuals with disabilities or directly on
its own behalf. “When an association asserts standing solely as
the representative of its members, it must allege that its
members, or any one of them, are suffering immediate or
threatened injury as a result of the challenged action of the
sort that would make out a justiciable case had the members
themselves brought suit.” Disability Advocates, Inc. v. New
York Coal. for Quality Assisted Living, Inc., 675 F.3d 149, 156-
57 (2d Cir. 2012)(citing Warth v. Seldin, 422 U.S. 490, 511
(1975)). Furthermore, “non-membership organizations may sue in
a representative capacity when they function effectively as a
membership organization.” Id. at 157 (citations and alterations
omitted). The Second Circuit has not determined the requisite
“indicia of membership,” but has suggested that they may include
the level of representation, control and influence on the
organization’s priorities. Id. at 158 (discussing sister
Circuit’s formulations of “indicia of membership”).
In general, “[a]n association has standing to bring suit on
behalf of its members when: (a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks
to protect are germane to the organization's purpose; and (c)
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit. Id. at 157
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55
(citing Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333,
343 (1977)). The “first two of these requirements are
constitutional limitations, whereas the third requirement is a
‘prudential limitation’ that may be abrogated by Congress.” Id.
Because the ADA and the FHA “are not subject to any of the
prudential limitations on standing that apply in other
contexts,” an associational plaintiff asserting ADA or FHA
claims need only meet the first two requirements. See Fulton,
591 F.3d at 42 (ADA); Fair Hous. in Huntington, 316 F.3d at 362
(FHA).
An organization may also bring “suit on its own behalf so
long as it can independently satisfy the requirements of Article
III standing.” Nnebe, 644 F.3d at 156 (citing Havens Realty
Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982)). The Second
Circuit has held that “only a ‘perceptible impairment’ of an
organization's activities is necessary for there to be an
‘injury in fact.’” Id. (citing Ragin v. Harry Macklowe Real
Estate Co., 6 F.3d 898, 905 (2d Cir. 1993)).
2. Application to Plaintiff CIDNY
Plaintiffs assert that CIDNY has standing both in its own
right for its own organizational injuries, and based on
associational standing. Plaintiffs allege that CIDNY provides
direct services to New York tenants with disabilities, advises
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government officials and businesses on disability-related
issues, and provides training and technical assistance. (Am.
Compl. ¶¶ 25, 26.) Plaintiffs also allege that CIDNY expends
time and resources assisting individuals with disabilities who
are affected by long-term elevator shutdowns to obtain
reasonable accommodations. (Id. ¶ 27.) Finally, Plaintiffs
assert that CIDNY is forced to provide such assistance because
the City’s elevator permitting process does not provide for
reasonable accommodations for individuals with disabilities.
(Id.) In addition, CIDNY alleges that over half of CIDNY’s
board members and over seventy percent of the organization’s
staff are people with disabilities. (Id. ¶ 24.)
As to CIDNY’s organizational standing, CIDNY has
sufficiently alleged an “injury-in-fact” because it expends its
organizational resources on assisting individuals with
disabilities to address long-term elevator shutdowns, including
through direct services, trainings, and government advocacy. In
Nnebe, the Second Circuit found that a taxi workers’ alliance
suffered injury-in-fact when it expended resources to counsel
its members facing suspension, explain suspension rules to
drivers, and assist drivers in obtaining attorneys. 644 F.3d at
157. The Circuit found that the alliance had experienced “some
perceptible opportunity cost expended . . . because the
expenditure of resources that could be spent on other activities
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‘constitutes far more than simply a setback to [the alliance’s]
abstract social interests.’” Id. (citing Havens Realty Corp.,
455 U.S. at 379). Indeed, another Court in this District has
already found that the same organization that appears in this
matter, CIDNY, had standing in its own right. See Brooklyn Ctr.
for Indep. of the Disabled v. Bloomberg, 290 F.R.D. 409, 417
(S.D.N.Y. 2012) (holding that CIDNY had organizational standing
because it “expended considerable resources counseling
constituents, gathering and coordinating information, and
documenting problems with the City's plans.”). There is no
question that CIDNY’s expenditures assisting Individual
Plaintiffs in this matter, and the “consequent drain on the
organization’s resources” constitute a “concrete and
demonstrable injury to the organization’s activities.” Havens
Realty Corp., 455 U.S. at 379.
As to associational standing, though there are no
allegations that CIDNY is a membership organization, another
court in this District previously held that CIDNY has the
requisite “indicia of membership,” because it is a service
provider to people with disabilities, and because over half of
its board members and seventy percent of its staff are people
with disabilities. Brooklyn Ctr. for Indep. of the Disabled,
290 F.R.D. at 416. The Court agrees. In addition, CIDNY has
sufficiently alleged that “the interests it seeks to protect are
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58
germane to the organization's purpose.” CIDNY is a disability
rights organization, and seeks to protect individuals with
disabilities’ ability to access their homes during elevator
repairs.
Nevertheless, the Court finds that CIDNY does not have
standing against the Government Defendants, either in its own
right or through associational standing, because the injuries it
alleges are not “fairly traceable” to the Government Defendants’
activities. As explained above, the DOB’s issuance of permits
to Landlord Defendants does not cause the Landlord Defendants’
alleged discrimination. Nor do the Government Defendants cause
CIDNY’s expenditure of resources, which appear to be aimed at
representing tenants in landlord-tenant disputes, providing
workshops for consumers, providing trainings, and seeking
reasonable accommodations from private landlords. Plaintiffs’
allegation that “CIDNY is forced to provide direct assistance to
individuals with disabilities when government entities fail to
do so” is also not sufficient to show causation. (Am. Compl. ¶
27.) Plaintiffs have pointed to no authority requiring the
Government Defendants to provide such direct assistance; thus,
their failure to do so cannot be said to be the cause of CIDNY’s
injuries.
Nor is it clear that the injuries alleged are redressible
by a favorable decision in this matter. As noted above,
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Plaintiffs have alleged no applicable Code provisions that the
Government Defendants have failed to enforce, nor other services
that the Government Defendants are required, but have failed to,
provide, such that a favorable decision would change the
Government Defendants’ enforcement actions. Therefore, the Court
finds that CIDNY does not have standing to sue the Government
Defendants.
3. Application to Plaintiff James
As to Plaintiff James, Plaintiffs assert that she has
standing to sue in her own right because the Office of the
Public Advocate has expended resources “attempting to resolve
the complaints of Landlord Defendants’ tenants.” (Am. Compl. ¶
23.) Specifically, Plaintiffs allege that after receiving a
complaint about one of the Landlord Defendants’ buildings, the
Public Advocate visited the Properties, sent a representative to
tenants’ meetings, and conducted a survey of tenants
experiencing problems due to the elevator outages. (Id. ¶¶ 182,
183.) The Court finds that these expenditures constitute an
injury-in-fact. Havens Realty Corp., 455 U.S. at 379.
However, as with CIDNY, the Public Advocate has not
sufficiently alleged that her expenditure of resources is
“fairly traceable” to the Government Defendants’ activities.
Though Plaintiffs allege that James has received hundreds of
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complaints about the Department of Buildings since taking office
in 2014, and that her office inquired into DOB policies during
its investigation, the investigation activities alleged here
concern complaints about the Landlord Defendants’ Properties,
including visiting the Properties and surveying residents
therein. (Am. Compl. ¶¶ 182, 183.) Thus, it cannot be said
that the Public Advocate’s expenditures are fairly traceable to
the Government Defendants’ enforcement of the Code or issuance
of building permits, but rather the Landlord Defendants’
actions.
Furthermore, Plaintiffs have not sufficiently plead
redressability, stating only that the Public Advocate’s office
will “continue to expend resources on similar complaints
[against Landlord Defendants] unless a favorable decision is
reached in this case.” (Am. Compl. ¶ 23.) It is not clear how
any remedy against the Government Defendants would redress the
Public Advocate’s complaints against the Landlord Defendants.
Accordingly, the Court finds that the Public Advocate does not
have standing to sue the Government Defendants in this matter.22
22 It is also not clear that the Public Advocate has legal authority to sue City agencies. Under New York law, whether a government entity has the capacity to sue does not require “that in every instance there be express legislative authority. Rather, the capacity to sue may also be inferred as a necessary implication from the agency's powers and responsibilities, provided, of course, that there is no clear legislative intent negating review.” Cmty. Bd. 7 of Borough of Manhattan v.
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H. NYCHRL and “New York City Accessibility Laws” Claims
Where a federal court has original jurisdiction, the court
may exercise supplemental jurisdiction over “all other claims
that are so related to the claims in the action within such
original jurisdiction that they form part of the same case or
controversy under such original jurisdiction.” 28 U.S.C. §
1367(a).
A court may decline to exercise supplemental jurisdiction
if the claims fall within one of the statutory exceptions:
(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or
Schaffer, 84 N.Y.2d 148, 156 (N.Y. 1994) (internal citations and alterations omitted). The City Charter, which sets forth the duties and responsibilities of the Public Advocate, states that the Public Advocate shall “receive individual complaints concerning city services and other administrative actions of city agencies; and investigate and otherwise attempt to resolve such individual complaints.” 2 N.Y.C. City Charter § 24(f)(3)-(4). It also sets forth the Public Advocate’s procedure for addressing complaints, which includes reporting to the appropriate agency and making recommendations for resolution of the complaint, then reporting to the City Council and Mayor if the agency fails to appropriately respond. Id. § 24(g). The Charter is silent on the Public Advocate’s capacity to sue. Because the Court finds that Plaintiff James has not sufficiently alleged standing, the Court declines to answer the related question of whether she has the legal capacity to sue under New York law.
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(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). When deciding whether to exercise
supplemental jurisdiction, a federal court should “consider and
weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity.”
Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106,
117 (2d Cir. 2013) (citing Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988)). Federal courts should avoid deciding
state law “both as a matter of comity and to promote justice
between the parties, by procuring for them a surer-footed
reading of applicable law.” Valencia ex rel. Franco v. Lee, 316
F.3d 299, 305 (2d Cir. 2003) (citing United Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726 (1966)).
The Court declines to exercise supplemental jurisdiction
over Counts Six and Seven, the NYCHRL claims and the “New York
City Accessibility Laws” claims. The Court believes that there
are complex questions of New York City law that may implicate
the City’s administration of local government, and which would
be more appropriately addressed at the state or local level.
These include whether there is a private right of action to sue
for violations of the Codes, and whether claims against City
agencies and officials for private actors’ violations of the
Codes are cognizable under the NYCHRL. See Seabrook v.
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Jacobson, 153 F.3d 70, 72 (2d Cir. 1998) (“Where a pendent state
claim turns on novel or unresolved questions of state law,
especially where those questions concern the state's interest in
the administration of its government, principles of federalism
and comity may dictate that these questions be left for decision
by the state courts.” See also New York Mercantile Exch., Inc.
v. IntercontinentalExchange, Inc., 497 F.3d 109, 119 (2d Cir.
2007) (“In general, where the federal claims are dismissed
before trial, the state claims should be dismissed as well.”)
(internal citation omitted); Bad Frog Brewery, Inc. v. New York
State Liquor Auth., 134 F.3d 87, 102 (2d Cir. 1998). In
addition, given the early stage of the litigation, the Court
finds that judicial economy and convenience would not be served
by exercising supplemental jurisdiction over the City law claims
against the Government Defendants given that the federal claims
against them are dismissed herein. See Valencia, 316 F.3d at
306 (“[W]here the federal claims had been dismissed at a
relatively early stage and the remaining claims involved issues
of state law that were unsettled, we have concluded that the
exercise of supplemental or pendent jurisdiction was an abuse of
discretion.”) (citing Giordano v. City of New York, 274 F.3d at
754).
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Accordingly, the NYCHRL claim and claims under the “New
York City Accessibility Laws” against the Government Defendants
are DISMISSED without prejudice.
III. CONCLUSION
For the reasons stated above, the Government Defendants’
Motion to Dismiss is GRANTED with prejudice as to Counts Four
and Five, the ADA and FHA claims, and without prejudice as to
Counts Six and Seven, the NYCHRL and “New York City
Accessibility Laws” claims. The remaining parties are directed
to appear for a conference in Courtroom 24B on May 5, 2016 at
10:30 A.M.
SO ORDERED.
Dated: New York, NY March 31, 2016
Case 1:14-cv-07398-DAB Document 55 Filed 03/31/16 Page 64 of 64