Shapiro v. Cadman Towers, Inc.

• Decision Date: 21 March 1995
• Docket Number: D,No. 654,654
• Citation: 51 F.3d 328
• Parties: , 9 A.D.D. 547, 6 NDLR P 183 Phyllis SHAPIRO and United States of America, Plaintiffs-Appellees, v. CADMAN TOWERS, INC. and Sydelle Levy, Defendants-Appellants. ocket 94-6053.
• Court: U.S. Court of Appeals — Second Circuit

Page 328

51 F.3d 328

63 USLW 2599, 9 A.D.D. 547, 6 NDLR P 183

Phyllis SHAPIRO and United States of America, Plaintiffs-Appellees, v. CADMAN TOWERS, INC. and Sydelle Levy, Defendants-Appellants.

No. 654, Docket 94-6053.

United States Court of Appeals, Second Circuit.

Argued Nov. 29, 1994.

Decided March 21, 1995.

Alan G. Blumberg (Szold & Brandwen, P.C., New York City, of counsel), for defendant-appellant.

David Goldfarb (Goldfarb & Abrandt, New York City, of counsel), for plaintiff-appellee Phyllis Shapiro.

Mark L. Gross, Dept. of Justice, Washington, DC (Zachary W. Carter, U.S. Atty., E.D.N.Y. Brooklyn, NY, Deval L. Patrick, Asst. Atty. Gen.; and David K. Flynn, Dept. of Justice, Washington, DC, of counsel), for plaintiff-appellee U.S.

Before: LUMBARD and MINER, Circuit Judges, and SAND, District Judge. ^*

MINER, Circuit Judge:

Defendants-appellants Cadman Towers, Inc., a 400-unit city-aided cooperative apartment building in Brooklyn, and Sydelle Levy, the president of the cooperative's Board of Directors, appeal from an order entered on January 25, 1994 in the United States District Court for the Eastern District of New York (Sifton, J.) granting a preliminary injunction in favor of plaintiff-appellee Phyllis Shapiro, a Cadman Towers cooperative apartment owner who is afflicted with multiple sclerosis. The injunction, issued pursuant to the anti-discrimination provisions of the Fair Housing Amendments Act of 1988, 42 U.S.C. Sec. 3604(f), requires Cadman Towers, Inc. and Levy (collectively "Cadman Towers") to provide Shapiro with a parking space on the ground floor of her building's parking garage. For the reasons that follow, we affirm the order of the district court.

BACKGROUND

In the late 1970s, plaintiff-appellee Phyllis Shapiro was diagnosed as suffering from multiple sclerosis ("MS"), a disease of the central nervous system. One of Shapiro's doctors, Lave Schainberg, describes the type of MS suffered by Shapiro as one that follows a "relapsing progressive course where the patient goes downhill in a stepwise fashion over many years and eventually, in 30 or 35 years, becomes totally confined to a wheelchair." While MS ordinarily is characterized by an "unpredictable course," the disease generally "manifest[s] itself by difficulty in walking, urinary problems, sensory problems, visual problems, and fatigue." Factors such as stress, cold temperatures, or infection tend to aggravate the symptoms. At times, Shapiro suffers physical weakness, difficulty in walking, loss of balance and coordination, fatigue, and severe headaches. During good periods, she can walk without assistance; at other times, she needs a cane or a wheelchair. Shapiro also suffers from severe bladder problems, resulting in incontinence. She presently catheterizes herself to relieve the buildup of urine.

In 1990, Shapiro moved into a two-bedroom apartment in Cadman Towers. During her first two years there, Shapiro used public transportation and private car services to commute to her job as a guidance counselor at a middle school and to various social events. However, each of these modes of transportation presented various difficulties to Shapiro because of her disease.

In early 1992, Shapiro acquired an automobile. Parking space in her Brooklyn Heights neighborhood, as in most parts of New York City, is extremely scarce. Initially, Shapiro parked her car on the street, taking advantage of a city-issued "handicapped" sticker that exempted her from normal parking rules and regulations. Even with that, however, it still was extremely difficult for her to find a parking spot, as many other persons who work or live in her neighborhood also have special parking privileges. Shapiro testified that the long delay in finding a parking space and walking to her building resulted in numerous urinary "accidents." When she used an indwelling catheter, this delay would cause the bag to fill up, resulting in pain and leakage.

The Cadman Towers apartment complex where Shapiro lives consists of two buildings and two parking garages. At 101 Clark Street, where Shapiro's apartment is located, there are 302 apartments and 66 indoor parking spaces. At 10 Clinton Street, there are 121 apartments and 136 parking spaces. The parking rate at either location is approximately $90 per month, considerably less than the $275 charged by the closest commercial garage.

Due to the disparity in numbers between apartments and parking spaces, Cadman Towers generally has adhered to a first-come/first-served policy when allocating parking spaces. Pursuant to this policy, an individual desiring a parking space makes a written request to have his or her name placed on a waiting list. An applicant first waits for a space at 10 Clinton, and, after being assigned one at that location, becomes eligible to await assignment of a space at 101 Clark. Parking-space users were required to live in Cadman Towers, and each apartment could be allocated only a single space. There were, however, exceptions to the building's usual policy. Six apartments had two parking spaces, apparently under a grandfathering arrangement, and at least one elderly resident was permitted to have her son, who works nearby, use her parking space. Also exempted from the first-come/first-served policy are three spaces given without charge to certain building employees as part of their compensation.

In February of 1992, Shapiro requested that a parking spot in the 101 Clark Street garage be made available to her immediately on account of her disability. This request was denied by the cooperative's Board of Directors, and Shapiro was advised to place her name on the appropriate waiting list. Her present counsel and her brother, who also is an attorney, then wrote to the Board, requesting that Ms. Shapiro receive an immediate parking spot. After receiving these letters and consulting with counsel, Cadman Towers took the position that any duty under the Fair Housing Act to accommodate Shapiro's disability did not come into play until she was awarded a parking space in the normal course. Once Shapiro became entitled to a parking space, the building would then attempt reasonably to accommodate her disability, perhaps by assigning her a parking space near her apartment.

On June 11, 1992, Shapiro filed a complaint with the Department of Housing and Urban Development ("HUD"), alleging housing discrimination under the Fair Housing Amendments Act. After an investigation, HUD issued a charge of discrimination on November 29, 1993. Shapiro elected, pursuant to 42 U.S.C. Sec. 3612(a), to have her claims addressed in a civil action filed in the district court. On December 20th, she filed a complaint, pursuant to 42 U.S.C. Sec. 3613, alleging that Cadman Towers' refusal to provide her with an immediate parking space violated the anti-discrimination provisions of the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. Sec. 3604(f). With her complaint, Shapiro also filed a motion for a preliminary injunction. On December 28, 1993, the United States filed a complaint against Cadman Towers, pursuant to 42 U.S.C. Sec. 3612(o), alleging housing discrimination on the same grounds pleaded by Shapiro, and the two cases were consolidated.

After conducting an evidentiary hearing, the district court granted Shapiro's motion for a preliminary injunction on January 21, 1994. The injunction prohibited Cadman Towers from refusing to provide Shapiro with an immediate parking space on the ground floor of the garage at 101 Clark Street. The district court found that Shapiro would suffer irreparable harm absent injunctive relief, because without a parking space she is subjected to continued risk of injury and humiliation from her inability to walk distances and her incontinence. Shapiro v. Cadman Towers, Inc., 844 F.Supp. 116, 122 (E.D.N.Y.1994). The court also determined that Shapiro was likely to succeed on the merits of her claim, concluding that the concept of reasonable accommodation "will in all probability require modification of defendants' first come/first served policy." Id. at 127. The court also determined that Shapiro would be entitled to preliminary relief under the alternative test that requires plaintiff to show "sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Id. at 127 n. 13. The court found that Cadman Towers would not suffer any significant harm in giving Shapiro a parking space for the duration of the litigation, because any of the three building employees could be relocated to a commercial garage at a de minimis cost. Id. The court also noted that the building could free up seven spaces simply by enforcing its own rules that each apartment should be allocated

only one parking space and that spaces should only go to residents. Id.

DISCUSSION

1. Legal Standards for Preliminary Injunctions

The standard for issuance of a preliminary injunction is well settled in this Circuit:

The party seeking the injunction must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief.

Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991). "This second 'serious questions' prong is also frequently termed the 'fair ground for litigation' standard." Able v. United States, 44 F.3d 128 (2d Cir.1994) (per curiam). Because Cadman Towers' challenged policy is not "government action taken ... pursuant to a statutory or regulatory scheme," id., the injunction issued by the district court is sustainable if either standard is met, see id. We review the district court's issuance of an injunction for an abuse of discretion. Resolution Trust, 949 F.2d at 626. "Such an abuse of...