Litigation

MFY works to end the root causes of inequities through impact litigation, law reform and policy advocacy. Our impact litigation focuses on two broad areas: Disability and Aging Rights and Economic Justice.

DISABILITY AND AGING RIGHTS

Class Action Lawsuit Challenges New York State’s Failure to Transition Nursing Home Residents Back Into Community Settings

In August 2015, four nursing home residents filed a class-action lawsuit in federal court against the New York State Department of Health (“DOH”) and Visiting Nurse Association Health Care Services, Inc. (“VNA”) for their administration of the Nursing Home Transition and Diversion Medicaid Waiver (NHTDW) Program. NHTDW is a program designed to help nursing home residents with disabilities who can and want to live in the community do so with support.  The named plaintiffs, represented by MFY Legal Services, Inc. and Patterson Belknap Webb & Tyler LLP, are among thousands of New York City nursing home residents who remain unnecessarily confined in institutionalized settings because the DOH and its sub-contractor, VNA, have operated this program in an ineffective, arbitrary and unlawful manner.  For example, the DOH and VNA fail to timely assess individuals for program eligibility and – even when applicants are found eligible – they often languish for years in nursing homes waiting for the next step in the process to occur.

Bagley et al v. The New York State Department of Health, 1:15-cv-04845-FB-CLP (E.D.N.Y.)

Lawsuit Attempts to Stop the Sudden Displacement of Seniors from Prospect Park Residence

When Prospect Park Residence announced it was closing, the residents and their family members were shocked and scared. With co-counsel, Legal Aid Society and Fitzpatrick, Cella, Harper & Scinto, MFY brought a lawsuit on behalf of residents to challenge the actions of the New York State Department of Health and Prospect Park Residence regarding the home’s inadequate closure plan. The residents allege that the Defendants have violated the residents’ rights to services, due process, and, if necessary, to be transferred to a care setting that is adequate, appropriate, consistent with the residents’ wishes, and the most integrated setting appropriate to their needs. Plaintiffs brought this lawsuit under the Social Services Law, the Public Health Law, the Rehabilitation Act, and the Americans with Disabilities Act. On May 22, 2014, the court entered an order requiring Prospect Park Residence to remain open, provide full services to the residents, and not illegally evict any residents pending the conclusion of this lawsuit. On November 21, 2014, the court granted our motion to stay any attempts to evict the residents pending the court’s decision in this lawsuit. On July 1, 2015, the Court denied all but one small part of the operator’s motion to dismiss and denied in its entirety the Department of Health’s motion to dismiss.

Berger et al. v. Prospect Park Residence LLC et al., 6639/2014 (Kings S. Ct.)

Class Action Lawsuit by People with Disabilities Challenges Access-A-Ride’s Policies

In May 2015, five people with disabilities filed a class-action lawsuit in federal court against New York City Transit (NYCT) for failing to provide due process to people applying or recertifying for Access-A-Ride, the City’s paratransit service for people with disabilities. The named plaintiffs, represented by MFY Legal Services, Inc., and Pillsbury Winthrop Shaw Pittman LLP,  are among the tens of thousands of New Yorkers with disabilities who rely on Access-A-Ride for transportation to medical appointments, social activities, and work.   NYCT denies or reduces services – even to those who relied on Access-A-Ride for years – without affording people meaningful notice and an opportunity to be heard.  For example, NYCT’s vague form letters denying or reducing services don’t tell people why they are being denied or that they have the right to access their records from the assessment. On November 10, 2015, the court certified this case to proceed as a class action.

Caldwell et al v. New York City Transit Authority et al

Read the Complaint

Amicus Brief Challenges Parole Revocation Process for People Adjudicated Mentally Incompetent

As part of the Correction and Community Reentry Committee of the New York City Bar Association, MFY participated in writing an amicus brief on whether a person who is adjudicated mentally incompetent may lawfully be subjected to a parole revocation proceeding by the state.  The brief argues in favor of the Respondent, Edwin Lopez (represented by the Legal Aid Society), that a person who is deemed mentally incompetent should not be subject to a parole revocation proceeding because it (1) violates due process and (2) is counter to public policy, public safety and rehabilitation.

 Read the amicus brief.

Class Action Alleges Dangerous Conditions & Civil Rights Violations in Adult Home

In May, 2012, residents of Surf Manor Home for Adults filed a class action lawsuit against the facility to address longstanding violations of their rights, including poor conditions, a perennial bed bug infestation, a lack of essential services, and verbal abuse and retaliation. The lawsuit alleges that Surf Manor, which is located in Coney Island, Brooklyn, has breached residents’ admissions agreements and the implied warranty of habitability and violated the New York Social Services Law and New York Human Rights Law. The lawsuit requests injunctive relief and damages to remedy hazardous conditions in the home and require Surf Manor to provide residents with services they are entitled to under the law. Kings County Supreme Court Justice David B. Vaughan granted residents a Temporary Restraining Order preventing Surf Manor’s administration and staff from retaliating against residents for filing this lawsuit.

Bloomfield et al. v. Surf Manor Home for Adults et al., 9038/2012, Supreme Court, Kings County

Read the Complaint

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 will finally have their day in court.

Green et al. v. Lakeside Manor, Index No. 2011/08580, Appellate Division, Second Department

Read the Appellate Decision

Read the Appellate Reply Brief

Read the Appellate Brief

Read the Trial Court Decision

Read the Complaint

ECONOMIC JUSTICE

CONSUMER

FDCPA and Related Claims Lodged Against a Debt Buyer, its Debt Collection Law Firm, and a Related Process Serving Entity
In 2009, MFY and co-counsel New Economy Project (formerly NEDAP) and Emery Celli Brinkerhoff & Abady LLP filed this class action complaint alleging that a debt collection law firm, Mel S. Harris and Associates, and a debt-buying entity, Leucadia, and a process serving company, Samserv, purposefully obtain default judgments against consumers in consumer credit transactions in New York City Civil Court by not serving defendants with court papers and obtaining default judgments using fraudulent affidavits of merit. Plaintiffs defeated a motion to dismiss in December 2010. On September 5, 2012, Judge Denny Chin, United States Court of Appeals for the Second Circuit, who kept the case after he was elevated from the United States District Court for the Southern District of New York, certified the class, which is believed to include some 100,000 New Yorkers.  In October 2013, Defendants appealed the class certification decision to the Second Circuit.  Three Amicus Curiae briefs were filed in support of plaintiffs, authored by the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC), AARP, and New York Legal Assistance Group (NYLAG), urging the Second Circuit to affirm Judge Chin’s class certification decision.  Oral argument has been scheduled for February 7, 2014.

Sykes v. Mel S. Harris, LLC, 09 Civ. 08486 (SDNY)

Read the Decision on Class Certification

Read the Decision Denying Motion to Dismiss

Read the Complaint

Read the Plaintiffs’ Appeal Brief

 Read the Amicus Brief by NYC Advocates

Read the Amicus Brief by the Consumer Financial Protection Board and Federal Trade Commission

Read the Amicus Brief by AARP, National Consumer Law Center and National Association of Consumer Advocates

NYS Court of Appeals Upholds City’s Right to Regulate Debt Collectors; MFY Filed Amicus Brief on Behalf of 17 Consumer Advocacy Groups
MFY advocated for the passage of Local Law 15 in 2009, clarifying that the City’s licensing law applies to debt buyers, and specifically requiring debt collection attorneys to be licensed by the NYC Department of Consumer Affairs (DCA).  Two collection law firms and a debt buyer filed suit against the City, arguing, among other things, for the statute to be stricken insofar as it applies to law firms because attorneys are exclusively licensed by the state judiciary.  In September 2012, a judge in the Eastern District of New York granted the Plaintiff’s motion for summary judgment (Eric M. Berman P.C. v. City of New York, No. 09-cv-3017 (E.D.N.Y. Sept. 29, 2012)), finding the municipal law was preempted by the state judiciary law.  The City appealed the decision to the United States Court of Appeals for Second Circuit, and, in May 2013, MYF Legal Services, Inc., was granted permission to file an amicus brief in support of the City.  After oral argument, the Second Circuit determined the case hinged on state law and certified two questions to the New York State Court of Appeals.  The Court of Appeals granted MFY permission to file another amicus brief on behalf of 17 consumer advocates and organizations.  In the amicus brief, Amici argued that Local Law 15 should apply to all debt collectors equally, including debt collector attorneys.  The Court of Appeals agreed, finding that: “[W]e conclude that there is no conflict between Local Law 15 and the State’s authority to regulate attorneys and, in the absence of such conflict, the City should not be prevented from taking permissible steps to curb abusive debt collection practices.”

Read the Court of Appeals decision.

Read the Amicus brief.

MFY Represents Queens Man Swindled by Car Dealership
On October 4, 2013, MFY filed a lawsuit against New York Motor Group, LLC and M&T Bank based on the Queens dealership’s fraudulent conduct towards Shahadat Tuhin, a 41-year-old Queens resident, who purchased a used car in June so he could take his chronically ill daughter to and from the hospital. After Mr. Tuhin signed a contract for $12,000, New York Motor Group’s finance manager rushed him through the signing of a series of documents, refusing to allow him to read them while misrepresenting and physically obscuring the terms. When Mr. Tuhin got home, he discovered that he had unknowingly signed documents that had doubled the price of the vehicle. Mr. Tuhin immediately contacted M&T Bank, the assignee of the financing agreement, but the bank refused to honor his request to cancel the fraudulent loan. The complaint charges both the dealership and M&T Bank with deceptive practices, fraud and breach of contract, as well as violations of the Truth in Lending Act and Regulation Z, and the Magnuson-Moss Warranty Act. It also charges Mamdoh Eltouby, the owner of New York Motor Group, with assault for attempting to run over Mr. Tuhin and other community members at a lawful, peaceful protest at the dealership, as well as an unnamed employee with battery for turning a hose on them. Mr. Tuhin is demanding revocation of the purported contract, actual and statutory damages, attorney’s fees and expenses, and an injunction preventing the defendants from engaging in similar conduct again.

Read the complaint.

EMPLOYMENT

MFY Files Amicus Brief Urging NY Courts to Adopt Stronger Standards on Retaliation
On March 22, 2016, MFY Legal Services filed an amicus curiae brief on behalf of a number of advocates.  The brief concerns how New York courts make it illegal for employers who retaliate against employees who report unlawful discrimination. The United States Supreme Court has recognized that it is a violation of federal law to take any action that could dissuade a worker from making or supporting a charge of discrimination. This brief urges the New York Supreme Court, Appellate Division, Second Department, to adopt the same standard as the Supreme Court. The brief contends that the lower court incorrectly dismissed Ms. Keceli’s employer’s actions–which according to Ms. Keceli, included harsh work assignments and unwarranted write ups—as too trivial to be illegal retaliation. 

Read the amicus brief.

MFY Supports Amicus Brief Urging Broader Application of Minimum Wage Protections under FLSA
On July 23, 2015, the National Center for Law and Economic Justice (NCLEJ) filed an amicus curiae brief in the New York State Court of Appeals on behalf of 13 economic and social justice organizations, including MFY Legal Services. The issue on appeal in Carver v. New York is whether New York State’s requirement that a former public assistance recipient who worked in exchange for his cash assistance and food stamps must reimburse the state out of lottery winnings he received after he left public assistance. The amici argue that New York State’s attempt to recover this money violates the minimum wage provisions of the Fair Labor Standards Act (FLSA) and that Mr. Carver was an employee under the FLSA’s broad and liberal definition. The Second Circuit ruled in Mr. Carver’s favor.

Read the amicus brief.

Read the Second Circuit Decision.

Worker Sues Supermarket for Unpaid Wages
On January 14, 2016, a worker represented by MFY Legal Services filed suit in U.S. District Court for the Southern District of New York, alleging that the owners of the Washington Heights supermarket where she frequently worked over 100 hours per week failed to pay her any wages, and that the only income she earned came from customer tips.

Read the complaint.

Low-Wage Workers Fight Arbitrary Barriers to Vindicating Rights
On April 22, 2014, MFY joined other advocates and worker groups as amici curiae, calling on the United States Court of Appeals for the Second Circuit in New York to allow low wage workers who allege they were illegally denied overtime to bring their claims as a class action.  As the brief explains, low-wage workers are particularly vulnerable to wage theft.  In practical terms, they often can only vindicate their rights through class actions.  The brief argues that this right should be preserved, contrary to the lower court’s ruling that recent United States Supreme Court cases take it away.  Class actions allow workers “to achieve remedies in common proceedings, share the financial burden of the litigation, and reduce the likelihood of retaliation through safety in numbers.”  It is also more efficient for the court system to deal with one case rather than dozens or hundreds of separate cases. The Second Circuit upheld the certification of the class (see unpublished summary order below.)

Read the brief.

Read the Second Circuit Summary Order.

MFY Files Class Action Suit on Behalf of Cable Installers
On March 14, 2014, MFY Legal Services and co-counsel Levy Davis & Maher LLP filed a federal lawsuit on behalf of former employees of C & I Associates, Inc., a cable installation services company, alleging that it systematically failed to pay its employees for waiting time and overtime. In May 2015, MFY filed a motion asking the court to find that the workers had established liability on most of their claims.

Read the complaint

Read the motion.

Parking Lot Attendant Sues for Unpaid Wages
In February 2014, a worker represented by MFY Legal Services filed suit in New York Supreme Court alleging that the operators of the Queens parking lot where he frequently worked over 80 hours per week failed to pay him the minimum wage and did not pay any overtime.

Read the complaint.

MFY Files Suit Against Bronx Restaurant Owner
MFY filed suit in Bronx Supreme Court on Tuesday, December 3, 2013, on behalf of a former worker of Rio Cobre Restaurant & Lounge, charging that the restaurant’s owner violated minimum wage and overtime laws, and violated the New York City Human Rights Law by firing the worker because of his sexual orientation.

Read the complaint.

NY Supreme Court Certifies Class in Wage Theft Lawsuit Against  Home Care Agency
On March 4, 2013, seven home health care workers formerly employed by BNV Home Care Agency, formerly known as Academy Care Givers, Inc., filed a class action in New York County Supreme Court against the company alleging wage theft, including failure to provide overtime and spread-of-hours pay, dating back to January 2006. The plaintiffs, who all provided personal care and assistance to disabled and elderly and disabled clients of BNV, regularly worked over 70 or 80 hours a week. The lawsuit alleges that BNV, which operates in all five boroughs and has offices in the Bronx, Brooklyn and Queens, failed to pay the plaintiffs, and all its home health care workers, numbering in the hundreds, the required wages for their long hours. On September 15, 2014, Judge Arthur Engoron granted Plaintiffs’ motion for class certification.  Abbey Spanier is co-counsel with MFY on the case. The Court preliminarily approved a class settlement. Final fiarness hearing is scheduled for February 19, 2016.

Castillo et al. v. BNV Home Care Agency , Inc. et al.

Read the complaint

Read decision denying Defendant’s Motion to Dismiss

Read the decision granting Plaintiff’s Motion for Class Certification

Read the preliminary approval of settlement.

Home Health Agency Failed to Pay Proper Wages, Alleges Class Action Lawsuit
In January 2013, a home health care worker formerly employed by First Care of New York, Inc. filed a class action lawsuit against the company for wage theft, including failure to provide overtime pay, dating back to January 2007. The lead plaintiff, who provided personal care and assistance to disabled and elderly clients of First Care, regularly worked seven days a week, 12 hours a day — as many as 84 hours a week. The lawsuit alleges that First Care, which has offices in Brooklyn, the Bronx, Manhattan, Queens and Westchester, failed to pay him, and all its home health aides, the required wages for their long hours. MFY and its co-counsel, Abbey Spanier Rodd & Abrams, LLP, filed the lawsuit in New York State Supreme Court, Westchester County. The court preliminarily approved a class settlement and the final fairness hearing is scheduled for January 8, 2016.

Castillo v. First Care of New York, Inc.

Read the Summons and Complaint

Read the class certification decision.

Read the preliminary approval of class settlement.

FORECLOSURE

MFY Represents Homeowner in Federal Suit Charging Predatory Lending Scheme against U.K. Bank
On April 30, 2014 MFY filed a federal lawsuit against Barclays Bank PLC, alleging it operated a predatory lending scheme that overwhelmingly targeted New York City’s minority borrowers.  The plaintiff in the case is a Staten Island homeowner who was duped into refinancing with Barclays’ wholly owned subprime subsidiary EquiFirst Corporation with a mortgage that was engineered to fail.

Read the complaint.

MFY Defends Dismissal of Foreclosure Action
In March 2013, MFY filed a brief in the Appellate Division, Second Department defending the dismissal of a foreclosure action it won in Kings Supreme Court on behalf of a life-long Brooklyn resident.  In the court below, MFY successfully demonstrated that the plaintiff did not have standing to bring the foreclosure in the first instance, and that its after-the-fact arguments in favor of standing were not supported by any, much less admissible, evidence.

Read brief defending Supreme Court’s dismissal of foreclosure action
Read Supreme Court’s decision

MFY Defends Sanctions Imposed on Bank for Failure to Negotiate in Good Faith
In January 2014 MFY filed the second of two briefs at the Appellate Division, Second Department, related to a consolidated appeal from an interim and final decision imposing sanctions against a foreclosing plaintiff based upon its failure to negotiate in good faith during the CPLR 3408 foreclosure conference process.  Under New York law, mortgage lenders/servicers and homeowners are obligated to negotiate in good faith to reach a mutually agreeable resolution, with the aim of keeping the borrower in his or her home.  Plaintiff, however, engaged in obstructive and dilatory tactics that stymied our client’s good faith efforts to save her home.  After more than a year of submitting and resubmitting mortgage loan modification request packages in the Foreclosure Settlement Conference Part, our client filed a motion by order to show cause in the Supreme Court requesting summary judgment and equitable relief.  The order to show cause was signed on September 25, 2012 and tolled interest that had unfairly accrued due to Plaintiff’s delay.  An October 5, 2012 interlocutory order continued the tolling of interest and noted Plaintiff’s failure to comply with court orders indicating its failure to negotiate in good faith.  In May 2013, MFY Legal Services was substituted as counsel for Smith. On July 5, 2013, King’s County Supreme Court Judge Solomon issued a decision and order holding that Plaintiff failed to negotiate in good faith and upholding the tolling of interest from September 25, 2012 through July 5, 2013.  Plaintiff separately appealed the October and July orders.  MFY Legal Services opposed both appeals, arguing the Supreme Court is authorized to redress failures to negotiate in good faith, interest tolling is a proper remedy for such violations, and the Supreme Court correctly found that Plaintiff failed to uphold its obligation and the interest tolling remedy imposed in this case was proper.  The now-consolidated appeals are currently pending in the New York Second Judicial Department Appellate Division.

Read brief defending Supreme Court’s interim sanctions decision.

Read brief defending Supreme Court’s final sanctions decision.

Read Supreme Court Final Decision.

MFY Files Suit against Mortgage Scammer
On November 18, 2013, MFY filed a lawsuit on behalf of Ms. Elva Brardo, a 60-year-old Queens County homeowner who lost thousands of dollars as part of a foreclosure rescue scam perpetrated by American Hope Group, Inc., The Donado Law Firm A Professional Corporation, and multiple individual defendants.  After charging Ms. Brardo an illegal, upfront fee, defendants falsely promised that an alleged “Securitization Mortgage Audit” would identify errors in her mortgage loan documents and this so-called erroneous information would be used to compel her lender to provide her with a more affordable monthly mortgage payment.  In addition to a loan modification, Ms. Brardo was promised legal representation to prevent foreclosure.

Even though Ms. Brardo signed a purported retainer agreement with The Donado Law Firm at American Hope’s office and authorized American Hope Group to automatically debit nearly $700 per month from her checking account in additional fees, defendants never obtained a more affordable mortgage payment for Ms. Brardo and never provided her with the promised legal representation.  In fact, Ms. Brardo never met nor spoke to any attorney.  The complaint asserts claims for violation of New York’s “distressed property consultant” law, Real Property Law § 265-b, which among other things makes it illegal to charge up-front fees for loan modification services; violation of New York’s Deceptive Practices Act, General Business Law § 349; and breach of contract. The lawsuit seeks to recover the illegal upfront fees paid to the defendants and also seeks to enjoin defendants from engaging in the deceptive acts and practices alleged.

Brardo v. American Hope Group, Inc., et al, Index No. 21154/2013, Supreme Court, Queens County

Read the complaint.

Read decision denying defendant’s motion to dismiss.

Class Action Suit for Breach of Contract Lodged against Bank of America by Homeowners in Foreclosure
In November 2010, MFY and co-counsel Abbey Spanier Rodd & Abrams, LLP filed this class action complaint alleging that Bank of America and related defendants breached their contractual obligation to permanently modify mortgage payments for New York homeowners who successfully completed the trial modification period under the federal government’s Make Home Affordable Modification Program (HAMP). Shortly after it was filed, the case was transferred from the United States District Court for the Eastern district of New York and made part of a multidistrict litigation against defendants pending in Boston.

Marie Freeman, v. BAC Home Loan Servicing, LP and Bank of America, CV 10-6380 (EDNY), a/k/a In re Bank of America Home Affordable Modification Program (HAMP) Contract Litigation MDL No. 2193 (D. Mass.)

Read the MDL Decision Denying Motion to Dismiss

Read the MDL Complaint

Read the NY Complaint

HOUSING

Federal Fair Housing Lawsuit Details Discrimination against African Americans and People with Rental Subsidies
On May 12, 2016, the Fair Housing Justice Center (FHJC), three African American testers, and a woman who was searching for housing with a rental subsidy, filed a lawsuit in federal district court (SDNY) alleging that Kosova Properties, Inc., Mulliner & Properties, Inc., Burr Properties LLC, Dardania Properties LLC, Nezaj Realty LLC, and Hamdi Nezaj discriminate on the basis of race and source of income.  Kosova Properties manages nineteen buildings with more than 285 rental units in the Bronx and Manhattan.  The lawsuit alleges that the defendants’ practices constitute discrimination based on race and source of income in violation of the New York City Human Rights Law and the federal Fair Housing Act. MFY Legal Services is representing one of the plaintiffs and Emery Celli Brinkerhoff & Abady LLP is representing four plaintiffs.

Read the Complaint.

Class Action Suit Cites Operators of Illegal Three-quarter Houses for Deceptive Practices and Violation of Tenant Protection Laws
In December 2010, MFY and pro bono co-counsel Patterson Belknap Webb and Tyler LLP brought this class action suit against three companies that rent housing units to people leaving the shelter system, substance abuse programs and prisons. It alleges that the defendants engaged in widespread deceptive practices, harassed tenants into signing away their rights, violated the rent stabilization code and laws, and unlawfully evicted tenants onto the street when they became unprofitable. RYB Realty, #1 Marketing Service, and Top of the Hob, Inc. have illegally converted several buildings into so-called “three-quarter houses,” promising to provide substance abuse counseling, social work services, referrals to vocational programs, and assistance obtaining permanent housing to formerly homeless adults and others with few to no housing options. The class has been certified to include both current and former tenants.

David et al v. #1 Marketing Service, Inc., RYB Realty LLC, Index No. 30238/2010, Supreme Court, Kings County

Read the Order Granting Preliminary Injunction

Read the Complaint

Read the Appeal Brief

Read the Appellate Decision

 

 

 

MFY Legal Services

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