Fair Hous. Justice Ctr., Inc. v. JDS Dev. LLC

• Decision Date: 09 March 2020
• Docket Number: 19 Civ. 1171 (AT)
• Citation: 443 F.Supp.3d 494
• Parties: FAIR HOUSING JUSTICE CENTER, INC., Plaintiff, v. JDS DEVELOPMENT LLC; 616 First Avenue LLC ; 202 8th LLC; Shop Architects LLP; Property Markets Group, Inc.; Cetra/CRI Architecture, PLLC; Werber Management, Inc.; and 202 Park Slope LLC, Defendants.
• Court: U.S. District Court — Southern District of New York

443 F.Supp.3d 494

FAIR HOUSING JUSTICE CENTER, INC., Plaintiff,

v.JDS DEVELOPMENT LLC; 616 First Avenue LLC ; 202 8th LLC; Shop Architects LLP; Property Markets Group, Inc.; Cetra/CRI Architecture, PLLC; Werber Management, Inc.; and 202 Park Slope LLC, Defendants.

19 Civ. 1171 (AT)

United States District Court, S.D. New York.

Signed March 9, 2020

Alice Goldman Reiter, Heather Clare Gregorio, Mariann Meier Wang, Cuti Hecker Wang LLP, New York, NY, for Plaintiff.

Shannon Therese O'Connor, Goldberg Segalla LLP, Syracuse, NY, Allison Elizabeth Ianni, Goldberg Segalla, LLP, Garden City, NY, Reshma Khanna, Goldberg Segalla LLP, New York, NY, for Defendants JDS Development LLC, 616 First Avenue LLC, 202 8th LLC.

Michael James Vardaro, Roy Howard Schwartz, Zetlin & De Chiara LLP, Westbury, NY, for Defendant Shop Architects LLP.

Mercedes Colwin, Christopher Aaron Seacord, Jeffrey Adam Camhi, Gordon Rees Scully Mansukhani, LLP, New York, NY, for Defendant Property Markets Group, Inc.

Jennifer E. Sherven, Taylor Michelle Ferris, Kaufman Dolowich & Voluck LLP, Woodbury, NY, for Defendants Werber Management, Inc., 202 Park Slope LLC.

OPINION AND ORDER

ANALISA TORRES, District Judge:

This motion to dismiss raises the question of when the limitations period starts to run for Fair Housing Act ("FHA") disability discrimination claims premised on that law's requirement that "the design and construction of covered multifamily dwellings" meet certain accessibility requirements. 42 U.S.C. § 3604(f)(3)(C). Plaintiff, Fair Housing Justice Center, Inc., sent testers to a residential building developed by Defendant Property Markets Group, Inc. ("PMG") and others. Compl. ¶ 42, ECF No. 94. Plaintiff claims that those testers discovered a number of features of the building that were not compliant with the FHA, as well as the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 209 et seq. , and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107 et seq. Id. ¶¶ 43, 50–54, 60–65, 69–75. PMG moves to dismiss the amended complaint solely on statute of limitations grounds, arguing that the statute of limitations for any design-or-construction claim under those laws runs from the date that the last unit in the building was rented or sold. ECF No. 110; Def. Mem. at 2, ECF No. 111. But that position is not consistent with the text, background, and purpose of the FHA, and is contrary to state and local law. Accordingly, for the reasons stated below, PMG's motion is DENIED.

BACKGROUND

The following facts are drawn from Plaintiff's amended complaint, and accepted as true for the purposes of this motion. See Doe v. Columbia Univ. , 831 F.3d 46, 48 (2d Cir. 2016) ("On a motion under Rule 12(b)(6) to dismiss a complaint for failure to state a claim, the only facts to be considered are those alleged in the complaint, and the court must accept them, drawing all reasonable inferences in the plaintiff's favor, in deciding whether the complaint alleges sufficient facts to survive.").

202 8th Street (the "Park Slope Building") is a 12-story, 51-unit rental residential building in Park Slope, Brooklyn. Compl. ¶¶ 40–41. It was developed by two of the Defendants: JDS Development LLC, and PMG, id. ¶¶ 14, 18, and owned by 202 8th LLC, an LLC associated with JDS Development, id. ¶ 15. It opened for occupancy in 2011. Id. ¶ 41. In September 2013, 202 8th LLC sold the Park Slope Building to 202 Park Slope LLC, another Defendant, which is associated with Defendant Werber Management Inc. Id. ¶¶ 19–20; Deed, ECF No. 112 Ex. A.¹

Plaintiff is an advocacy organization that "work[s] to level the housing playing field for all New Yorkers by investigating and enforcing through litigation compliance with federal, state, and local fair housing laws." Compl. ¶ 4. Plaintiff investigates potential unlawful inaccessibility in residential buildings by "dispatch[ing] individuals as ‘testers’ – persons who pose as relatives or friends of prospective renters or homebuyers with disabilities for the purpose of obtaining information about the dwellings, including by taking measurements of particular components of the common areas and individual residential units." Id. ¶¶ 29–30. See Havens Realty Corp. v. Coleman , 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (" ‘[T]esters’ are individuals who, without an intent to rent or purchase a home or apartment, pose as renters or purchasers for the purpose of collecting evidence of unlawful ... practices.").

On August 29, 2018, Plaintiff sent two testers to the Park Slope Building. Compl. ¶ 42. The testers posed as brothers interested in viewing one-bedroom and two-bedroom apartments on behalf of a relative who uses a wheelchair. Id. The testers met with a leasing agent, who showed them several apartments. Id. ¶ 43. Inspection of the building and those apartments by the testers revealed the following inaccessible elements:

[1] The main entrance door, which is operated in a push/pull manner, was extremely heavy and did not have the capacity to open automatically. The leasing agent informed the testers that there is a door man on duty only from 7:00 a.m. until 11:00 p.m.;

[2] the mailboxes were obstructed by a 9-inch shelf under the lowest mailbox, and the highest mailbox was too high;

[3] the interior doorways to all the bathrooms and bedrooms in all three units they visited were too narrow;

[4] in at least one of the apartments they viewed, the walk-in closet doorway was too narrow;

[5] in at least one of the units they visited, the terrace had a high threshold;

[6] environmental controls in each of the three apartments the testers viewed were not in an accessible location;

[7] in at least one of the apartments they viewed, there was insufficient room in the galley kitchen; and

[8] the bathrooms lacked clear floor space.

Id.

Plaintiff filed suit against JDS Development and PMG (as well as other Defendants not relevant to this motion) on February 7, 2019. ECF No. 1.

DISCUSSION

I. Motion to Dismiss Standard

To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ "

Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). On such a motion, the Court may consider only the complaint, documents attached to the complaint, matters of which a court can take judicial notice, or documents that Plaintiff knew about and relied upon. See Chambers v. Time Warner, Inc. , 282 F.3d 147, 153 (2d Cir. 2002). The Court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-movant. ATSI Commc'ns, Inc. , 493 F.3d at 98. "Although the statute of limitations is ordinarily an affirmative defense that must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the defense appears on the face of the complaint." Thea v. Kleinhandler , 807 F.3d 492, 501 (2d Cir. 2015)

II. Fair Housing Act

PMG argues that Plaintiff's action is barred by the FHA's two-year limitations period. That provision provides:

An aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into under this subchapter, whichever occurs last, to obtain appropriate relief with respect to such discriminatory housing practice or breach.

42 U.S.C. § 3613(a)(1)(A). PMG contends that Plaintiff's suit falls outside the statute of limitations because an FHA claim arising out of the design or construction of a residential building accrues—and thus, the limitations period begins to run—either when the last certificate of occupancy for the building is issued, or the last unit in the building is sold. Def. Mem. at 4–5. PMG states that the building as a whole was sold in September 2013, and that the final certificate of occupancy was issued in December 2013, making Plaintiff's February 2019 suit untimely. Id. at 5–6.

Plaintiff argues that PMG misapprehends the law. Plaintiff maintains that a design-or-construction claim does not accrue at the time that a building is sold or fully occupied, but rather remains available either until the plaintiff experiences the discrimination, or until the violation is remedied. Pl. Opp. at 2, ECF No. 133.

The Second Circuit has not addressed the question of when the limitations period begins to run, and each position finds support in opinions from other courts. PMG's argument closely tracks the holding of the en banc Ninth Circuit in Garcia v. Brockway , 526 F.3d 456 (9th Cir. 2008) (en banc ). The Ninth Circuit held that because the discriminatory practice at issue in a design-or-construction suit "is the failure to design and construct a multifamily dwelling according to FHA standards ... [t]he statute of limitations is thus triggered at the conclusion of the design-and-construction phase, which occurs on the date the last certificate of occupancy is issued." Id. at 461. PMG's position is also similar to that taken by the Sixth Circuit in an unpublished opinion in Fair Housing Council, Inc. v. Village of Olde St. Andrews, Inc. , 210 F. App'x 469, 480 (6th Cir. 2006). There, the Sixth Circuit held that "[i]n the context of the construction and design of multifamily dwelling units that are inaccessible to disabled individuals, the discriminatory act occurs during the sale or rental of that unit. Thus, once a unit has been sold or rented, the discriminatory act is complete," and the two-year limitations period begins to run. Id. The court recognized that "where the plaintiff alleges that the owner or developer engaged in a policy or practice throughout the entire development of constructing housing units that fail to comply with the FHA, the...