Opening Acts: October 10, 2019

Photo © by Bernard Kleina

October 10, 2019

Plaintiffs Prevail: Court Denies Motion to Dismiss


On September 30, 2019 Federal District Judge Vernon S. Broderick denied a motion to dismiss in connection to a federal lawsuit filed by the Fair Housing Justice Center (FHJC) and two individual plaintiffs alleging that the New York State Department of Health (DOH) and four Adult Care Facilities (ACFs) discriminate against people with disabilities who use wheelchairs.

An undercover testing investigation, conducted by the FHJC, ensued after receiving complaints of discrimination from adult home residents. The investigation revealed that defendants Village Housing Development Fund; Elm York, LLC; Madison York Assisted Living Community, LLC; and Madison York Rego Park LLC, maintained and enforced blanket policies barring wheelchair users, regardless of their individual needs or abilities, and steered applicants who use wheelchairs to nursing homes. The lawsuit also alleges that the New York State Department of Health (DOH) promoted disability discrimination through its regulations and policies, including its policy permitting ACFs to ban wheelchair users from admission.

The defendants sought to have the case dismissed, arguing, among other things, that FHJC lacked standing to bring claims and that subsequent amendments to state regulations rendered FHJC’s claims moot. In a lengthy and detailed opinion, Judge Broderick rejected these arguments, allowing the case to move forward and indicated that “Plaintiff FHJC had standing to bring all of its claims.”

In the decision, Judge Broderick also cited direct quotes from the recorded conversations between FHJC testers and several adult home defendants which clearly illustrate the discrimination faced by people with disabilities who use wheelchairs. Judge Broderick wrote “In light of these statements, Plaintiffs have adequately alleged that the ACF Defendants had categorical policies against wheelchairs and that any request for a reasonable accommodation would have been futile.”

After the suit was filed, DOH amended its policy to prohibit facilities from excluding an individual on the sole basis that such individual is “chairfast,” but left intact provisions of the original regulations that barred admission and retention of people who “chronically require the physical assistance of another person in order to walk.” Judge Broderick found that the updated DOH regulations continue to “act as a bar on people who are chronically chairfast.”

FHJC Executive Director Fred Freiberg stated, “This decision paves the way for our case to move forward so that we can eliminate the discriminatory policies and practices that have systematically prevented many people with mobility impairments from residing in adult care facilities.”

The plaintiffs are represented by Jota Borgmann, Jeanette Zelhof, Tanya Kessler, and Kevin Cremin of Mobilization for Justice, Inc. (MFJ), Susan Silverstein and Elizabeth A. Aniskevich of the AARP Foundation Litigation, Inc., and David Keyko and Jay Dealy of Pillsbury Winthrop Shaw Pittman LLP.

The mission of the FHJC, a nonprofit civil rights organization, is to eliminate housing discrimination; promote policies and programs that foster open, accessible, and inclusive communities; and strengthen fair housing enforcement in the New York City region.