CNY Fair Hous., Inc. v. Welltower Inc., 5:21-cv-00361 (BKS/ML)
| Docket Number | 5:21-cv-00361 (BKS/ML) |
| Decision Date | 28 February 2022 |
| Citation | 588 F.Supp.3d 282 |
| Parties | CNY FAIR HOUSING, INC. ; The Fair Housing Partnership of Greater Pittsburgh, Inc.; Housing Research & Advocacy Center, Inc., d/b/a Fair Housing Center for Rights & Research, Inc.; Housing Opportunities Made Equal of Buffalo, Inc.; Housing Opportunities Made Equal of Greater Cincinnati, Inc.; Phyllis Bartoszewski; Lois Harter; Deanna Town, Plaintiffs, v. WELLTOWER INC. ; WellClover Holdings LLC ; Clover Management, Inc.; Clover Communities Camillus LLC; Clover Communities Salina LLC; Clover Communities New Hartford, LLC; Clover Communities Clay LLC; Clover Communities Johnson City, LLC; Clover Communities Southwestern LLC; Clover Communities Sweethome, LLC ; Lackawanna Senior Housing LP, Defendants. |
| Court | U.S. District Court — Northern District of New York |
For Plaintiffs: Conor J. Kirchner, Matthew Casey Weissman-Vermeulen, CNY Fair Housing, Inc., 731 James St., Ste. 200, Syracuse, NY 13203, Reed N. Colfax, Sara K. Pratt, Relman, Colfax PLLC, 1225 19th St., N.W., Ste. 600, Washington, DC 20036.
For Defendants: Gregory P. Photiadis, Elizabeth A. Kraengel, Duke, Holzman, Photiadis & Gresens LLP, 701 Seneca St., Ste. 750, Buffalo, NY 14210, Scott M. Badami, William Christian Moffitt, Fox Rothschild LLP, 10 Sentry Parkway, Ste. 200, Blue Bell, PA 19422.
I. INTRODUCTION
Plaintiffs CNY Fair Housing, Inc.; The Fair Housing Partnership of Greater Pittsburgh, Inc.; Housing Research & Advocacy Center, Inc., d/b/a Fair Housing Center for Rights & Research, Inc.; Housing Opportunities Made Equal of Buffalo, Inc.; Housing Opportunities Made Equal of Greater Cincinnati, Inc. ("the Organizational Plaintiffs"); Phyllis Bartoszewski; Lois Harter; and Deanna Town ("the Individual Plaintiffs"), bring this action, asserting claims under the Fair Housing Act of 1968 ("FHA"), New York Human Rights Law, and Ohio Civil Rights Law.2 (Dkt. No. 1). Defendants move to dismiss certain of Plaintiffs’ claims and certain Defendants under Fed. R. Civ. P. 12(b)(2) and 12(b)(6) for lack of personal jurisdiction, failure to state a claim, and lack of Article III standing. (Dkt. No. 22). Plaintiffs responded in opposition to Defendants’ motion, (Dkt. No. 27), and Defendants have replied, (Dkt. No. 34). For the reasons below, Defendants’ motion to dismiss is granted in part and denied in part.
II. FACTS3
The five Organizational Plaintiffs are nonprofit fair housing organizations based in New York, Ohio, and Pennsylvania. The mission of CNY Fair Housing in Syracuse, New York is "to ensure fair housing opportunity for all people in Central and Northern New York"; it works to eliminate housing discrimination, including disability discrimination. (Dkt. No. 1, ¶ 11). The mission of Housing Opportunities Made Equal of Buffalo, Inc. ("HOME of Buffalo") in Buffalo, New York is to promote diversity and to "ensure all people have an equal opportunity to live in the housing and communities of their choice"; it provides enforcement, education, and advocacy. (Id. ¶ 14).
The mission of Housing Research & Advocacy Center, Inc., d/b/a the Fair Housing Center for Rights & Research, Inc. ("The Fair Housing Center") in Cleveland, Ohio is to, inter alia, "protect and expand fair housing rights" through research, educational programs, public policy, and enforcement activities. (Id. ¶ 13). Housing Opportunities Made Equal of Greater Cincinnati, Inc. ("HOME of Cincinnati") in Cincinnati, Ohio, "provides fair housing education and enforcement throughout the Cincinnati region." (Id. ¶ 15). Its mission is "based on the belief that housing is a hub of opportunity and the gateway to a better life"; it conducts enforcement and education. (Id. ). The Fair Housing Partnership of Greater Pittsburgh, Inc. ("The Fair Housing Partnership") in Pittsburgh, Pennsylvania is "dedicated to creating and preserving equal housing choice in southwestern Pennsylvania." (Id. ¶ 12).
The individual Plaintiffs—Phyllis Bartoszewski, Lois Harter, and Deanna Town—are all residents of Camillus Pointe4 Senior Apartments in Camillus, New York; they all have disabilities that affect their mobility. (Id. ¶¶ 16–18).
Welltower Inc. ("Welltower") is a Real Estate Investment Trust based in Toledo, Ohio that "invests with leading senior housing operators ... to fund real estate infrastructure." (Id. ¶ 22). In July 2019, Welltower acquired "Clover Group."5 (Id. ). Welltower "owns and controls entities that own the senior properties at issue in this matter." (Id. ). WellClover Holdings LLC ("WellClover") "owns and operates many of the properties in this matter." (Id. ¶ 23). Clover Management, Inc. is a "real estate development and management company" which manages "all of the senior properties at issue in this matter." (Id. ¶ 24).
Plaintiff named eight entities that own senior apartments in New York: Clover Communities Camillus LLC, which owns Camillus Pointe Senior Apartments, (Id. ¶ 37); Clover Communities Salina LLC, which owns Buckley Square Senior Apartments, (Id. ¶ 38); Clover Communities New Hartford, LLC, which owns New Hartford Square Senior Apartments, (Id. ¶ 39); Clover Communities Clay LLC, which owns Morgan Square Senior Apartments, (Id. ¶ 40); Clover Communities Johnson City, LLC, which owns Reynolds Point Senior Apartments, (Id. ¶ 41); Clover Communities Southwestern LLC, which owns South Pointe Senior Apartments, (Id. ¶ 42); Clover Communities Sweethome, LLC, which owns Sweethome Senior Apartments, (Id. ¶ 43); and Lackawanna Senior Housing LP, which owns Orchard Place Senior Apartments, (Id. ¶ 44).
Plaintiffs allege that the "Clover Group" has purchased or developed more than 6,500 apartment units in six states and manages around 6,000 units in large apartment complexes. (Id. ¶ 47). "Many of those complexes are specifically designated for seniors over the age of 55." (Id. ).
Most Clover Group complexes are three-stories high and "garden style." (Id. ¶ 50). The complexes are spread out, with units "dispersed over a large area." (Id. ). Residents and visitors who use mobility assistance devices often cannot find parking that will accommodate them, or cannot count on having access to an accessible space or a space near their unit or an elevator. (Id. ¶ 49). Available spots "can be hundreds of meters from the entrance or elevator to a particular unit." (Id. ¶ 50).
Clover Group has a "first-come, first-served parking policy at all of its senior living properties," and residents "cannot have reserved or designated parking." (Id. ¶ 49). Residents or applicants are sometimes told that a "reasonable accommodation for a designated parking space could be granted," but only if they pay a $350 fee and/or provide "excessive and inappropriate" medical documentation, when their disability and need for accommodation are "obvious." (Id. ¶ 54).
Clover Group also has a policy of adding $15–$25 to the monthly rent for first-floor units or units on the second or third floor located near an elevator. (Id. ¶ 55). People with mobility disabilities have a "disproportionate need" for these units. (Id. ). Clover Group only applies this pricing scheme to its senior living complexes, not its family housing communities. (Id. ¶ 56). This extra rental payment, which is often unaffordable, is "disproportionately born" by residents with disabilities. (Id. ). This policy has been "continuously maintained" and "unchanged" since at least 2018. (Id. ¶ 57).
The Individual Plaintiffs live at Camillus Pointe Senior Apartments, a Clover Group senior living property located in Camillus, New York, and owned by Defendant Clover Communities Camillus LLC. (Id. ¶¶ 37, 58). Many Camillus Pointe residents, including the Individual Plaintiffs, have had "requests for designated parking spaces denied," and other tenants with disabilities have been told that they must "pay a rent surcharge for apartments on the first floor and for apartments near the elevator, even when the location is necessary for the residents because of their disabilities." (Id. ¶ 58, 82). All of the Individual Plaintiffs have mobility disabilities; all have "had their requests for reasonable accommodations denied," and, as a result, "have experienced great physical difficulty traveling to and from their apartment units." (Id. ¶ 58). Two of the Plaintiffs pay a monthly premium to live on the first floor. (Id. ¶¶ 65, 74).
Plaintiff Phyllis Bartoszewski is 77 years old and has lived at Camillus Pointe since 2018. (Id. ¶¶ 16, 59). Bartoszewski has rheumatoid arthritis, stenosis of the spine, sciatica, and pleurisy—disabilities that limit her mobility. (Id. ¶ 59). She has "difficulty breathing" and can only walk "seven to eight feet" without help, so she uses a cane in her home and a walker when she leaves her apartment. (Id. ). She has had a disability parking placard issued by the DMV since 2017. (Id. ). Her disabilities are "obvious and apparent," and she has informed Camillus Pointe staff about them. (Id. ). Bartoszewski must park close to the main entrance of the building in order to access her apartment "without significant difficulty," however, she is only able to park in these spots "less than half the time." (Id. ¶ 60).
Bartoszewski asked Tanya Trice, the on-site manager at Camillus Pointe, for an assigned disability parking space within a week of moving in. (Id. ¶ 61). Trice told her that Camillus Pointe does not provide designated parking spots because "there were too many residents" with disabilities and "not enough spaces available." (Id. ). In late 2018, CNY Fair Housing submitted a request on behalf of the Individual Plaintiffs, including Bartoszewski, for assigned parking spaces as reasonable accommodations for their disabilities. (Id. ¶ 62). Trice wrote to multiple residents, stating that they could be provided with an...
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