DISABILITY AND AGING RIGHTS
Suit Claims Adult Home Failed to Provide Legally-Mandated Number of Phones and Charged Residents for “Toll-free” Telephone Calls
Green v. Lakeside Manor et al. This case, filed in 2007, concerns Lakeside Manor’s failure to provide telephone service as required by the plaintiffs’ admission agreements and in violation of the warranty of habitability and the Americans with Disabilities Act. The plaintiffs won their appeal to the Appellate Division, Second Department, in a decision dated December 12, 2012. The decision reversed the trial court’s decision dismissing the complaint. The Appellate Division once again affirmed adult home residents’ private right of action under the Social Services Law for violations of their admissions agreements and breaches of the warranty of habitability. Most significantly, the court found that, with respect to the plaintiffs’ discrimination claim under the Fair Housing Act, “[t]he defendants’ own submissions demonstrated the existence of a triable issue of fact as to whether the plaintiffs’ disabilities were a ‘motivating factor’ behind the defendants’ alleged failure to provide the mandated level of telephone service.” After more than five years of litigation, the plaintiffs finally had their day in court. Despite evidence that the Department of Health had found the defendants in violation of the telephone regulation, the trial court found there was no such violation and dismissed the case. The plaintiffs decided not to appeal.
Green et al. v. Lakeside Manor, Index No. 2011/08580, Appellate Division, Second Department
Settlement Ensures Fair Housing for People Who Use Wheelchairs at Adult Care Facility
In February 2014, four adult home residents were facing eviction because they used wheelchairs. After Regency of Boro Park was taken over by new management, staff began telling residents who use wheelchairs that they should not use the first floor common areas, they should not attend certain social events, and they would have to move out of the home. Residents soon received termination notices citing discriminatory state regulations that prohibit the retention of residents who are “chronically chairfast” and “unable to walk without assistance.” The residents, who had lived in the home without incident for many years, made reasonable accommodation requests asking Regency to seek a waiver of these regulations from the New York State Department of Health. The plaintiffs brought this action under the Fair Housing Act alleging disability-based discrimination, including Regency’s failure to respond to their reasonable accommodation requests. In December 2015, the parties reached a settlement. The defendants have agreed to pay damages and attorney fees, to adopt non-discrimination policies that make it clear that they do not prohibit or discourage people who use wheelchairs or have other physical disabilities from living at Regency, to adopt a reasonable accommodation policy, and to undergo a training on fair housing and disability rights.
Kramer et al v. Chesty Properties, LLC, 14-cv-01344 (E.D.N.Y.)
Lawsuit Alleges Adult Homes Violated the Fair Housing Act
In May 2011, MFY asserted claims under the Fair Housing Act (FHA) and New York State law on behalf of an adult home resident who was discouraged from obtaining housing at Madison York Rego Park Adult Home and steered her to Elm York Home for Adults, where she was financially exploited Elm York and an affiliated day treatment program. The complaint alleges that Defendants discriminate against and exploit people who have disabilities in their provision of housing and housing-related services. For example, upon learning that the plaintiff had a retirement account, the adult home proceeded to exploit her need for assistance by, among other things, forcing her to execute a back-dated admission agreement at a higher rent. Patterson Belknap Webb & Tyler LLP joined as co-counsel shortly after the case was filed. During 2013, this case was resolved to the satisfaction of all parties.
Cohen v. Elm York, et al., 11-cv-2437 (EDNY)
Landmark Settlement for NYC Adult Home Residents Ensures that NY State will Offer Housing in the Community and Services to Enable Independence and Integration
On July 23, 2013, three adult home residents filed this lawsuit on behalf of a class of similarly situated residents. The class action lawsuit claimed that New York State violated the Americans with Disabilities Act (ADA) by failing to give adult home residents an opportunity to live in the most integrated setting appropriate to their needs. The U.S. Department of Justice filed a similar lawsuit against New York State. A settlement was filed the same day, and it resolved both lawsuits. This landmark settlement ensures that thousands of residents of large adult homes will have the opportunity to live in their own homes with the services they need to succeed and be part of their communities. The settlement follows years of litigation in a related case, Disability Advocates, Inc. v. Paterson. In 2009, after a trial, a federal court held that New York’s practice of segregating thousands of people with mental illness in large adult homes is discrimination in violation of the ADA. In 2012, that decision was vacated on appeal on a technical ground, but the trial court’s finding of discrimination was not questioned.
The fairness hearing was held on January 9, 2014. Sixty residents from all over New York City came and presented testimony to the Court. All but two spoke in favor of the settlement. On March 17, 2014, the Court approved the settlement. Residents with serious mental illness in 23 New York City adult homes now have the opportunity to move to community housing if they qualify and want to move. Community housing will come with the appropriate support services that residents want and need to succeed. The State will fund at least 2,000 units of supported housing for adult home residents and more if needed. Every adult home resident who qualifies will have the choice to move to community housing within five years. MFY represented the adult home residents with co-counsel Disability Rights New York, the Bazelon Center for Mental Health Law, New York Lawyers for the Public Interest, Urban Justice Center and Paul, Weiss, Rifkind, Wharton & Garrison, LLP.
O’Toole et al v. Cuomo et al., 13-cv-4166 (EDNY).
Settlement Ensures Non-Discrimination in Senior Living Residences and Adult Home Facility
In May 2013, the Fair Housing Justice Center (FHJC) filed a lawsuit in the Southern District of New York against The Esplanade Residences, five senior residences with more than 600 apartments in Staten Island, Manhattan, Westchester County, and Rockland County. The lawsuit alleged that The Esplanade Residences discriminated against prospective renters on the basis of disability, race, and religion, in violation of local, state, and federal fair housing laws. For example, the lawsuit alleged that The Esplanade Manhattan refused to rent to prospective residents who use wheelchairs and, if existing residents start using a wheelchair, they had to eat in a separate dining room with other residents who use wheelchair and their aides.
This lawsuit was settled on December 11, 2014. The settlement requires, among other things, that the defendants comply with fair housing laws; adopt policies to prevent future discrimination; obtain fair housing training; prominently market themselves as an equal housing opportunity provider; and pay $297,500 in damages, attorney fees, and costs. These provisions are designed to ensure future compliance with fair housing laws. With co-counsel Emery Celli Brinckerhoff & Abady, LLP, MFY represented the FHJC.
Fair Housing Justice Center v. Esplanade Venture Partnership et al., 13 Civ. 3600 (S.D.N.Y.)
Settlement Ensures Non-Discrimination for NYCHA Section 8 Tenants who are Blind
In November 2010, Justin Williams, who is blind, sued the New York City Housing Authority (NYCHA) for failing to provide him with important notices in an accessible format. Mr. Williams had been a Section 8 tenant for fifteen years, and NYCHA was aware that he was blind. Mr. Williams’ lawsuit claimed that NYCHA’s policy of mailing only written notices to Section 8 tenants did not reasonably accommodate people with visual impairments, in violation of the Americans with Disabilities Act, the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. NYCHA asked the court to dismiss the case, but the court denied its motion.
This lawsuit was settled on January 13, 2014. Under the settlement, NYCHA will affirmatively adopt and implement policies and procedures providing reasonable accommodations for Section 8 applicants and participants who are visually impaired, including disability discrimination training for NYCHA staff. Available alternate formats will include, but will not be limited to: audio compact disc; data disc in a locked pdf format; a follow-up telephone call to read a notice within five business days from the date of the notice; Braille; large print notice; and notification to an alternative representative. With co-counsel Seyfarth Shaw LLP, Staten Island Legal Services, and Legal Services NYC, MFY represented Mr. Williams.
Williams v. Rhea, et al., 10-CV-5440 (EDNY)
Suit Claims that New York State Violates the ADA by Failing to Provide Integrated, Community-Based Housing for Adult Home Residents
In June 2003, MFY and pro bono co-counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP filed this Americans with Disabilities Act (ADA) lawsuit on behalf of adult home residents. The Bazelon Center for Mental Health Law, Disability Advocates, Inc., New York Lawyers for the Public Interest, and Urban Justice Center are also co-counsel on the case. After a 2009 trial, the United States District Court for the Eastern District of New York held that New York State discriminated against adult home residents and violated the ADA by not providing services to 4,300 residents in the most integrated setting appropriate to their needs. In its remedial order, the court ordered New York State to provide, inter alia, supported housing for these adult home residents. In April 2012, the Court of Appeals for the Second Circuit reversed the District Court decision and dismissed the case on procedural grounds, finding that Disability Advocates, Inc. lacked standing to bring the claims. The Second Circuit did not question the District Court’s findings that adult homes are institutions and that New York State is violating the Americans with Disabilities Act. MFY continued to work with adult home residents and its litigation partners to end the unnecessary institutionalization of adult home residents by reaching a settlement in a related case, O’Toole et al. v. Cuomo et al.
Disability Advocates, Inc. v. Paterson et al., 653 F.Supp.2d 184 (EDNY 2009); 2010 WL 786657 (EDNY Mar. 1, 2010); — F.3d —-, 2012 WL 1143588 (2nd Cir. 2012).
MFY Files Amicus Brief Arguing that Tenants who are Elderly or have Disabilities should not be Evicted because of Unfair Settlements or De Minimis Defaults.
In July 2012, MFY sought leave to file an amicus curiae brief on behalf of the NYC Department for the Aging, the NYC Department of Health and Mental Hygiene, and ten advocacy organizations in a case before the Appellate Division, First Department. The brief argued that judges have the authority and responsibility to consider factors such as a tenant’s age, length of tenancy, and disability as they preside over the enforcement of settlements in landlord-tenant disputes. Although the motion for leave was ultimately denied, the desired effect of the brief has been largely realized through other decisions such as Harvey 1390 LLC v. Bodenheim, 96 A.D.3d 664, 948 N.Y.S.2d 32 (App. Div. 1st Dep’t 2012).
Wadsworth Ventura Associates 367 LLC v. Frias, Index No. 570204/2010 (App. Div. 1st Dep’t).
Tenants Sue NYCHA to Create an Accessible Entrance to their Building
In August 2012, Fulton Houses tenants who have disabilities filed a lawsuit against the New York City Housing Authority (NYCHA) and its Chairman, John B. Rhea, for failing to create and maintain an accessible entrance to their building. For years, the tenants and others complained to NYCHA about the entrance, but NYCHA did not take any actions to fix the problem. This lawsuit, filed on behalf of the tenants in U.S. District Court, Southern District sought declaratory and injunctive relief as well as compensatory and punitive damages under the Americans with Disabilities Act, the Rehabilitation Act, and the New York City Human Rights Law. During 2013, the parties reached a settlement in which NYCHA agreed to create an accessible ramp and pay the plaintiffs $70,000 in damages and attorney fees.
Demech et al v. Rhea, et al., 12-CV-6179 (SDNY).
Adult Home Found to Have Grossly Overcharged Resident for Air Conditioning
In July 2010, MFY won a default judgment on behalf of an adult home resident that declared her air conditioning contract with the adult home unconscionable. After a damages inquest was held and proposed findings of fact were submitted, the Supreme Court awarded the adult home resident $2,945 in damages. The court’s monetary award was based on its finding that $50 per month would have been a reasonable rate to cool the resident’s room. The adult home had charged the adult home resident as much as $250 per month.
Spiegel v. Amsel, Index No. 18545/2010, Supreme Court, Kings County
Suit Alleges Unpaid Wages and Race and Sex Discrimination by Manhattan Catering Business
On March 8, 2013 MFY filed a lawsuit in the Southern District of New York on behalf of two immigrant workers alleging minimum wage, overtime and spread of hours violations, as well as sex, race and national origin discrimination against their former employer. The women worked at a Manhattan catering business and performed domestic work at the home of the business’s owner and at the owner’s residential businesses. The complaint alleges that even though they regularly worked over 40 hours a day, they were never paid overtime or spread of hours payments for shifts lasting longer than ten hours. The complaint also alleges that the women endured discrimination by the business owner, who called them names like “dirty Mexican,” and “whore” on a regular basis, and that the chef at the business sexually harassed the plaintiffs, including exposing himself to them multiple times.
Immigrants Sue Former Employer for Harassment
On November 27, 2013, immigrant factory workers filed suit against their former employer. The complaint charges that the women suffered years of harassment that included sexual touching, kissing, and sexual and racial comments at the hands of the Plant Manager; when they complained the owner, rather than addressing the harassment gave them more and heavier work. The suit also alleges that the Plant Manager ultimately fired all the women at the factory, stating that he had decided to send all the “f—king ladies home.” The workers are represented by MFY and Washington Square Legal Services, Inc. This case has been resolved.
MFY Represents Superintendent in Unpaid Wages and Age Discrimination Case
On March 26, 2014, a Washington Heights superintendent represented by MFY filed a claim for unpaid wages and age discrimination. The complaint alleges: He worked and lived in the residential apartment building for 24 years. In the fall of 2013, a new landlord pressed him to retire and then fired him, replacing him with a younger employee. The landlord also brought an action to evict him and his family. The landlord also failed to pay him overtime for the hours he worked. The case was resolved in a confidential settlement.
Food Cart Workers Awarded $60,000 in Unpaid Wages
MFY represented two street food cart vendors in claims for unpaid wages and overtime. On July 14, 2014, a Manhattan judge awarded the vendors over $60,000 for unpaid wages, overtime, and penalties. The judge found that they had worked 12 hours per day, six days per week in all types of weather, including severe snow conditions. The vendors often received partial or no payment for their work, and never received legally required overtime pay. Contrary to the business owners’ claims that they were a “mom-and-pop establishment,” the judge found that they operated several food carts and employed numerous non-family members.
Court of Appeals Decision Protects Rent Stabilized Tenants in Bankruptcy
In August 2014, MFY and Legal Services-NYC submitted an amicus brief to the New York Court of Appeals in the case of Santiago-Monteverde v. Pereira. The case, certified to the Court by the Second Circuit Court of Appeals, concerns protections for rent-stabilized tenants in bankruptcy, and MFY’s brief urges the court to find that rent-stabilized leases are not assets subject to liquidation in a bankruptcy proceeding.
The Bankruptcy Code gives the bankruptcy trustee the power to “assume and assign” unexpired leases of the debtor. Some bankruptcy trustees have taken the position that this permits them to assume a debtor’s rent-stabilized lease and assign it, for a substantial amount of money, back to the landlord, subjecting tenants to eviction. While beneficial for the trustee, the creditors and the landlord, this practice can leave people without a place to live, and worse off than if they had never filed for bankruptcy. This practice denies the promise of a fresh start to two million New Yorkers residing in rent-stabilized apartments. MFY filed the amicus brief in support of the debtor-appellant, who is appealing a decision allowing the trustee to strike the debtor’s claim that her lease is exempt. MFY’s brief describes the scope and importance of rent stabilization, argues that rent-stabilized leases convey rights on tenants which are not subject to liquidation, and explains why permitting assumption and assignment of a rent-stabilized lease undermines the policies behind both bankruptcy law and rent regulation.
On November 20, 2014, the New York Court of Appeals ruled that rent-stabilized leases are a public benefit and as such are exempt from a debtor’s bankruptcy assets.
MFY Files Amicus in Support of NYS Department of Financial Services’ Crackdown on Payday Lending
Payday loans, which are exorbitantly expensive financial products that carry fees that often amount to an annual percentage rate (APR) of 390% to 780%, violate New York’s usury laws and are illegal in this state. The fact that such loans are illegal has not stopped Internet payday lenders from marketing themselves as providers of short-term cash to New Yorkers who become ensnared in a debt trap and worse off than if they had never taken the loan to begin with. To combat this scourge, the New York State Department of Financial Services (DFS) sent letters to 35 online payday lenders in August 2013 demanding that they cease and desist offering illegal payday loans to New Yorkers. In response to this crackdown, two payday lending companies based on Native American reservations and affiliated companies filed suit against DFS in the Southern District of New York, seeking a preliminary injunction. That request was denied and the tribes appealed to the Second Circuit. MFY, along with New Economy Project and DC37 filed an amicus curiae brief in support of DFS on November 13, 2013, explaining in detail the harms that our clients have suffered as a result of usurious internet payday loans, and arguing why New York has a compelling state interest in regulating high-cost loans that harm its residents.
Operators of Unlawful Three-Quarter Houses Violate Rent Stabilization Law
In April 2011, MFY and pro bono co-counsel Weil Gotshal & Manges brought this class action lawsuit against operators of an unlawful three-quarter house in a rent regulated single room occupancy building. The suit seeks declaratory and injunctive relief to stop the defendants from denying tenants their rights under the rent stabilization law, unlawfully harassing and evicting tenants, compelling them to sign unconscionable contracts, and unlawfully forcing them to attend a treatment program operated by the defendant. The tenants cycle through shelters and treatment programs and are forced back onto the street as soon as they successfully complete substance abuse programs. In August 2011, Kings County Supreme Court Justice Bernadette Bayne dismissed the suit, but in January 2013 the appeals court reversed that decision and ordered the case to proceed with a new judge.
DiGiorgio v. 1109-1113 Manhattan Avenue Partners, LLC, Index No. 8235/2011, Supreme Court, Kings County
MFY Files Suit Against Landlord Who Repeatedly Brought Eviction Cases Against Elderly Tenants
MFY filed suit on behalf of elderly Chinatown tenants who are seeking an injunction and damages after their landlord repeatedly brought eviction cases against them for rent they did not owe. The case was resolved to the satisfaction of all parties.
MFY Submits Appellate Brief on Behalf of a Victim of “Sewer Service”
On June 25, 2013, MFY completed an appeal to the Appellate Term of the Second Department on behalf of Ionna Jimenez, a 30-year-old mother of three. Ms. Jimenez first learned a default judgment had been entered against her when reviewing her credit report in 2010. In 2005, a debt buyer, Palisades Collection, obtained a default judgment against Ms. Jimenez without serving her with court papers and without giving her notice of the lawsuit. When she discovered the judgment, Ms. Jimenez promptly attempted to vacate the default judgment on her own, based on improper service. The judge denied her request, and when Ms. Jimenez asked again, the judge denied her request again, even though Ms. Jimenez had never lived at the address where service was allegedly effected. MFY’s brief on behalf of Ms. Jimenez argues that the civil court judge twice applied the wrong legal standard for vacating a default judgment when a defendant alleges that she has not been served. Unfortunately, this is a common misapprehension of the law that harms thousands of low-income unrepresented consumers who have been the victims of sewer service.
MFY Joins Amicus Brief Urging U.S. Supreme Court to Reject Fair Housing Act Challenge
In October 2013, MFY joined the American Civil Liberties Union and eight other organizations, including the National Consumer Law Center, in filing a joint brief with the United States Supreme Court in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. urging the court to recognize that “disparate impact” claims can be made under the federal Fair Housing Act. The Act prohibits discrimination in the sale or rental of housing. Every federal appeals court that has considered the issue now before the Supreme Court has interpreted the Act to prohibit policies that have a discriminatory impact upon minority groups, regardless of whether they were adopted with a discriminatory intent. The amicus brief argues that a discriminatory impact cause of action under the Act is consistent with Congressional intent and necessary to address critical housing discrimination issues such as predatory lending.
Largest New York Foreclosure Law Firm Violated FDCPA, Alleges Class Action Lawsuit
In August 2011 MFY and co-counsel Harwood Feffer LLP filed this class action on behalf of New York State homeowners facing foreclosure, alleging that New York’s largest foreclosure law firm, Steven J. Baum, P.C., and its namesake, Steven J. Baum, violated the Fair Debt Collections Practices Act and GBL § 349 by filing foreclosure actions but refusing to file a Request for Judicial Intervention required by state procedural rules to move a case out of the clerk’s shadow docket and into the Foreclosure Conference Parts established by the New York Legislature in 2008 to address the looming foreclosure crisis. The delay in prosecuting the underlying state foreclosure suits causes class members’ loan balances to swell due to the imposition of late interest, attorney’s fees, inspection fees and other fees that will render class members’ mortgage loans unaffordable and incapable of modification.
Cole v. Steven J. Baum, P.C., 11 CV 3779 (EDNY)
Sixth Circuit Vacates Certification of Nationwide Class, Rejects Inadequate Settlement and Remands
In June 2011, MFY objected to a proposed settlement of several private class action lawsuits pending in the United States District Court for the North District of Ohio that potentially affects 253,247 New Yorkers. The suits, filed against the debt buyer Midland Funding LLC, and related entities Encore Capital Group, Inc. and Midland Credit Management, Inc., accused the debt-buying companies of violating the Fair Debt Collection Practices Act and various state statutes. MFY filed objections to the terms of the settlement on behalf of two clients because of concerns about the broad language of the settlement agreement and the significant rights that class members would be giving up in return for a paltry sum of money. Despite MFY’s objections and amicus curiae briefs filed in support of MFY’s position by the New York State Attorney General (on behalf of 38 state attorneys general), the Federal Trade Commission, and the Center for Responsible Lending, the terms of the settlement agreement were approved by the district court. MFY co-counseled with the National Consumer Law Center on a joint appeal on behalf of objectors to the Sixth Circuit Court of Appeals. In February 2013, the Sixth Circuit issued a decision granting the relief requested by MFY and its co-objectors. Holding that the district court “abused its discretion in finding that the settlement was fair, reasonable and adequate,” the court rejected the class action settlement. The appellate court also held that the district court abused its discretion in certifying a nationwide settlement class, finding that the class representatives did not adequately represent unnamed class members and, in fact, that their interests were antagonistic. Finally, the Sixth Circuit found that the notice to class members lacked due process because it failed to explain that by not objecting to the settlement, a class member would lose the right to use Midland’s false affidavits against Midland as a defense to the underlying state court debt collection action. The case was remanded to the district court for further proceedings consistent with the decision.
Martha Vassalle v. Midland Funding LLC, 11-3814, United States Court of Appeals for the Sixth Circuit
Home Care Workers Win Unpaid Overtime in Class Action
In November 2011, MFY and pro bono co-counsel Debevoise & Plimpton LLP filed this class action complaint, which alleged that plaintiff class members were never paid overtime, despite frequently working 60 or more hours per week. The complaint sought unpaid overtime wages and class action status, as well as injunctive relief against defendant to ensure future compliance with New York State’s wage and hour laws. Plaintiff and the members of the class provide crucial care for elderly, infirm and homebound patients in and around New York City, and are part of one of the fastest-growing occupations in the United States. In June 2012, prior to certification as a class, the four named plaintiffs reached an agreement and received a back wage settlement.
Montero-Bernandez v, BNV Home Care Agency, Inc., Index No. 653305/2011, Supreme Court, New York County
Class Action Suit Settled on behalf of Underpaid Workers Who Were also Denied Overtime
In May 2010, MFY and co-counsel National Employment Law Project (NELP) and Abbey Spanier Rodd & Abrams, LLP filed this class action complaint alleging that plaintiff and her co-workers were consistently underpaid for their work and never paid overtime, despite frequently working 60 or more hours per week. The complaint sought unpaid wages and class action status, as well as injunctive relief against defendant to ensure future compliance with New York State’s wage and hour laws. Plaintiff and the members of the class provide crucial care for elderly, infirm and homebound patients in and around New York City, and are part of one of the fastest-growing occupations in our country. In June 2012, the case was settled for $1,090,000, which will be distributed to class members on a pro-rata basis based on overtime hours worked and not paid. The settlement also prohibits McMillan’s from retaliating against employees who complain about wages and hours and requires the company to appoint an administrator to handle complaints about payment of wages or reimbursement of expenses. This was the first lawsuit against a New York home care agency to successfully reach classwide settlement over violations of state wage-and-hour laws.
Montero v. McMillan’s Home Care Agency, Inc., Index No. 104779-2010, Supreme Court, New York County