UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW …nylawyer.nylj.com/adgifs/decisions16/041116batts.pdf · 2016-04-08 · 2160 Matthews Street, and 2166 Matthews Avenue (the

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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

Case 1:14-cv-07398-DAB Document 55 Filed 03/31/16 Page 1 of 64

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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


22

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.


23

& 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


24

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


25

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


26

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.


27

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


28

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.


29

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


30

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.


31

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.


https://a.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=42USCAS12131&originatingDoc=I21a36f9f949411d993e6d35cc61aab4a&refType=RB&originationContext=document&transitionType=DocumentItem&contextData=%28sc.DocLink%29#co_pp_58730000872b1

32

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


33

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


34

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


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.


36

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,


37

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.


38

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


39

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


40

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.


41

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.


42

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


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.


44

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.


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.)


46

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


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.


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.


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


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


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


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.


53

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).


54

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


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


56

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


57

‘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


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,


59

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


60

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.


61

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.


62

(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.


63

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).


64

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


Documents

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW …nylawyer.nylj.com/adgifs/decisions16/041116batts.pdf · 2016-04-08 · 2160 Matthews Street, and 2166 Matthews Avenue (the