United States v. E. River Hous. Corp., 13 Civ. 8650 (ER)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtRamos, D.J.
PartiesUNITED STATES OF AMERICA, Plaintiff, v. EAST RIVER HOUSING CORP., Defendant.
Docket Number13 Civ. 8650 (ER)
Decision Date02 March 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
EAST RIVER HOUSING CORP., Defendant.

13 Civ. 8650 (ER)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 2, 2015


OPINION AND ORDER

Ramos, D.J.:

Defendant, East River Housing Corporation ("East River" or "Defendant") is a private 1,672-unit housing cooperative on Manhattan's Lower East Side. Am. Compl. ¶ 7 (Doc. 3). Stephanie Aaron ("Aaron"), Amy Eisenberg ("Eisenberg"), and Steven Gilbert ("Gilbert") (collectively, "Complainants") are proprietary lessees of East River apartments. Id. ¶¶ 8, 11, 14. All three are subject to Proprietary Leases and House Rules that prohibit tenants from keeping dogs and other animals in East River buildings without "prior written consent." Id. ¶¶ 34, 55, 70. Neither the Proprietary Leases nor the House Rules contain reference to any policies or procedures for granting reasonable accommodations to individuals who require service or emotional support animals because of a disability. Id. ¶ 32.

Complainants suffer from varying forms and degrees of psychiatric illness. Id. ¶¶ 33, 54, 69. At different times, all three brought dogs into their apartments—apparently without prior written consent—and found that, as a result, the symptoms of their illnesses were alleviated. Id. ¶¶ 36, 56-57, 71. Each complainant, after being told to "cure" the violation of his or her lease by removing the dog from his or her apartment, and being threatened with eviction, requested

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permission to keep a dog as a reasonable accommodation to his or her disability, which East River in all cases ignored or denied. Id. ¶¶ 39-45, 62-68, 74-75, 82-85.

In this action, the United States Attorney's Office for the Southern District of New York (the "Government") brings suit against East River under the Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq. as amended. The Government alleges that East River, by denying Complainants the right to keep service or emotional support animals in their apartments, discriminated against Complainants on account of their disabilities in violation of the FHA. Id. ¶¶ 86-91; 42 U.S.C. §§ 3604(f)(1)(A), (f)(2), (f)(3)(B).1 The Government also claims that East River retaliated against Gilbert in violation of 42 U.S.C. § 3617 by threatening to pursue a claim for attorneys' fees against Gilbert or to consider the cost of those fees "additional rent," and by requesting excessive and intrusive information from Gilbert and his healthcare providers in connection with his request for a reasonable accommodation.2 Am. Compl. ¶ 93. Finally, in addition to its claims on behalf of Aaron, Eisenberg, and Gilbert, the Government alleges that East River's conduct constitutes a pattern or practice of resistance to the full enjoyment of rights granted by the FHA, and/or a denial to a group of persons of rights granted by the FHA raising an issue of general public importance, in violation of 42 U.S.C. § 3614.3 Id. ¶¶ 95-97.

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At present, the Court considers three motions: the Government's motion to strike East River's Second Affirmative Defense; East River's motion for partial summary judgment as to the claims pertaining to Stephanie Aaron (the "Aaron claims") and to sever the causes of action pertaining to Eisenberg and Gilbert (the "Eisenberg claims" and "Gilbert claims"); and East River's separate motion to dismiss and/or for summary judgment on the Government's Fifth Cause of Action, which alleges a "pattern or practice" violation under § 3614. Docs. 22, 27, 30. For the following reasons, the Government's motion to strike is GRANTED, and both of Defendant's motions are DENIED.

I. Factual Background and Procedural History4

A. Stephanie Aaron

Stephanie Aaron has been the proprietary lessee of an East River apartment since at least 2003. Am. Compl. ¶ 8. Aaron suffers from "chronic major depression, anxiety, and post-traumatic stress disorder [("PTSD")]," which have "impacted her ability to socialize, maintain relationships, sleep, and concentrate" and "exacerbate[d] her asthma." Id. ¶ 33. According to the Amended Complaint, she is a person with a disability under the FHA. Id. (citing 42 U.S.C. § 3602(h)).

In August 2012, Aaron experienced a "resurgence of her depression and anxiety symptoms" and "was often physically ill, unable to socialize, and overwhelmed by her

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circumstances, which included working in a stressful work environment with an uncertain future with her employer." Id. ¶ 35. On or about August 22, 2012, Aaron took in a stray dog and named it "Rosie." Id. ¶ 36. She allegedly noticed an improvement in her mental condition within a few days and therefore decided to keep the dog. Id.

On September 14, 2012, East River sent Aaron a "10 Day Notice to Cure," stating that she had violated a substantial obligation of her tenancy by keeping an animal in her apartment and demanding that she remove the dog. Id. ¶ 37. After Aaron received the Notice to Cure, her mental condition purportedly worsened, and she paid a visit to Dr. Lori Plutchik ("Dr. Plutchik"), a psychiatrist she had visited during 2008-2011. Id. ¶ 38. On September 20, 2012, Aaron submitted a "request for reasonable accommodation" accompanied by a letter from Dr. Plutchik asking that Aaron be permitted to keep Rosie as a "service dog and emotional support animal." Id. ¶ 39. East River did not respond to this request and, instead, sent Aaron a "10 Day Notice of Termination" on October 18, 2012, stating that she would need to vacate her apartment by November 6, 2012. Id. ¶¶ 40-41. Aaron submitted a second "request for reasonable accommodation" on October 24, 2012, again attaching Dr. Plutchik's letter. Id. ¶ 42. East River denied this request by letter dated November 5, 2012 "on the ground that Dr. Plutchik's letter did not use the word 'disabled.'" Id. ¶ 43.

On November 11, 2012, Aaron received a "Notice of Petition Holdover" informing her that a "Summary Holdover Proceeding" regarding her eviction would take place on November 29, 2012 in Manhattan Housing Court ("Housing Court"). Id. ¶ 44. Via her attorney, Karen Copeland, Aaron submitted a third reasonable accommodation request on November 15, 2012, again attaching Dr. Plutchik's letter. Id. ¶ 45. In March 2013, East River moved in Housing Court for summary judgment against Aaron and for entry of a judgment of possession and

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issuance of a warrant of eviction. Id. ¶ 49. A Housing Court judge granted summary judgment in favor of East River and awarded East River a final judgment of possession on April 30, 2013. Id. ¶ 51.5

Meanwhile, on December 11, 2012, Aaron filed a verified complaint with the United States Department of Housing and Urban Development ("HUD"), alleging that East River had discriminated against her on the basis of disability by refusing to permit her to keep a dog as a reasonable accommodation to her psychiatric disability.6 Id. ¶ 47; Silverbush Cert. (Doc. 28), Ex. J. By letter dated December 12, 2012, HUD informed Aaron that it had referred her complaint to the New York State Division of Human Rights ("DHR") pursuant to 42 U.S.C. § 3610(f).7 Id., Ex. K. The letter stated that DHR would "take all further action" on Aaron's complaint unless DHR failed to begin processing it within 30 days, in which case HUD would take it up again. Id. Additionally, the letter advised Aaron that, if she did not agree with DHR's final decision, she could "appeal in accordance with [DHR's] procedures" or file a civil lawsuit in Federal District Court, but that she could not appeal DHR's decision to HUD. Id.

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DHR's resultant investigation included a review of Aaron's complaint, East River's response, letters exchanged by the parties, a medical questionnaire provided by Aaron's doctor, and interviews with Aaron herself. Id., Exs. L, M, N, O. The investigation did not entail any exchange of discovery between the parties, and DHR did not hold any hearing. Gov't's Opp'n to Def.'s Mot. for Partial Summ. J. at 3 (Doc. 40). On April 23, 2013, DHR issued a "Determination and Order After Investigation" ("Determination") stating that there was no probable cause to believe that East River had engaged in or was engaging in unlawful discriminatory practices. Doc. 28, Ex. P. The Determination declared, "While it is clear that having a dog is emotionally beneficial to Complainant and makes her happy, the evidence does not establish that it is necessary for the use and enjoyment of her residence." Id.

Yet on May 7, 2013, DHR reopened and reactivated Aaron's complaint pursuant to Rule 20(a) of its own Rules of Practice. See Frey Decl. ¶ 4 & Ex. B at 1; 9 N.Y.C.R.R. § 465.20(a) (noting that DHR may, on its own motion, whenever justice requires, reopen a proceeding, determination or record and take such action as may be deemed necessary). On May 22, 2013, DHR transferred the complaint back to HUD "for reconsideration and for such other or further action as deemed appropriate." Doc. 28, Ex. S. DHR then dismissed the reopened complaint from its own docket on grounds of "administrative convenience," concluding that "the interests of justice will best be served by HUD reactivating [Aaron's] HUD complaint, which HUD has agreed to do." Id., Ex. T, at 1. In its dismissal order, dated June 14, 2013, DHR explained that "[p]ursuant to a cooperative agreement . . . [DHR] and HUD may mutually agree that an investigation will be completed by HUD." Id. DHR further emphasized that, under § 297(9) of the New York Human Rights Law, "where [DHR] has dismissed [a] complaint on the grounds of

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administrative convenience, . . . [an aggrieved person] shall maintain all rights to bring suit as if no complaint had been filed." Id. at 2.

HUD thereafter conducted and completed its own investigation and concluded, contrary to DHR's determination, that reasonable cause existed to believe that East River had discriminated against Aaron in violation of the FHA. Am. Compl. ¶¶ 18-19; 42 U.S.C. § 3610(g)(1). On October 23, 2013, the HUD Secretary (the...

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