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SHAPIRO v. CADMAN TOWERS

January 25, 1994

Phyllis Shapiro, Plaintiff,
v.
Cadman Towers, Inc. and Sydelle Levy, Defendants.



The opinion of the court was delivered by: CHARLES P. SIFTON

 SIFTON, District Judge.

 This application for a preliminary injunction pursuant to 42 U.S.C. § 3613(c)(1) and Fed. R. Civ. P. 65 is made by plaintiff, Phyllis Shapiro, to enjoin defendants, Cadman Towers, Inc. and Sydelle Levy, president of the Board of Directors of Cadman Towers, from refusing to provide plaintiff with a parking space on the ground floor of her apartment's garage, located at 101 Clark Street in Brooklyn. Plaintiff's complaint states two claims for relief -- one pursuant to 42 U.S.C. § 3604 and one pursuant to 42 U.S.C. § 3617, both provisions of the Fair Housing Amendments Act ("FHAA"). Section 3604 prohibits discrimination in housing on the basis of race, color, religion, sex, handicap, familial status, or national origin and defines discrimination to include, inter alia, a failure to make a reasonable accommodation in housing rules and regulations in order to allow a handicapped individual equal opportunity to use and enjoy a dwelling. Plaintiff claims that defendants' refusal to modify their first come/first served policy in the granting of parking spaces at 101 Clark Street to accommodate her special need for a parking space constitutes a violation of section 3604. Section 3617 provides that it shall be unlawful to coerce, intimidate, threaten, or interfere with any person on account of her having exercised or enjoyed any right granted or protected by the Fair Housing Act and its amendments. Plaintiff claims that defendants attempted to coerce or intimidate her in her exercise of her fair housing rights by refusing to place her name on the parking space waiting list for 101 Clark Street until she had withdrawn the discrimination complaint she had filed with the Department of Housing and Urban Development ("HUD").

 Following plaintiff's motion, the United States filed a complaint setting forth similar claims for relief on plaintiff's behalf as authorized by 42 U.S.C. § 3612(o)(1), and the two cases were thereafter consolidated. A hearing was held between January 4, and January 6, 1994, on plaintiff Shapiro's application for preliminary injunctive relief in which counsel for both the private parties and counsel for the government participated.

 Based on the credible testimony of witnesses and the undisputed portion of the affidavits and exhibits presented by both sides on this application, plaintiff's request for a preliminary injunction is granted.

 What follows sets forth the findings of fact and conclusions of law on which that determination is based, as required by Federal Rule of Civil Procedure 65.

 BACKGROUND

 Plaintiff, Phyllis Shapiro, is a guidance counselor at Middle School 88 in Brooklyn and a resident of Cadman Towers, a residential complex located on the edge of the Brooklyn Heights neighborhood of Brooklyn, New York. In 1975, plaintiff was diagnosed as suffering from multiple sclerosis. Multiple sclerosis is a chronic, progressive disease of the central nervous system, which primarily affects young women. The cause of multiple sclerosis and its cure remain unknown. Its symptoms include physical weakness, difficulty in walking, loss of balance and coordination, visual disturbance, fatigue, loss of stamina and severe headaches. Through the years and at different times, plaintiff has displayed a number of these symptoms, particularly those relating to her motor skills. The onset of these symptoms, their frequency, and severity are unpredictable, although there are some warnings of their onset. In plaintiff's case, the illness has followed a "relapsing progressive" course, meaning a pattern of progressive deterioration which in the course of time will likely totally disable her.

 Like many multiple sclerosis sufferers, plaintiff is afflicted not only with problems of stamina and balance but also with a related neurogenic bladder disorder. Due to interference with the nervous system's mechanism for triggering a felt need to urinate, plaintiff's bladder is stretched and progressively collapsing onto itself, with the result that plaintiff has difficulty emptying her bladder. Since she is, as a result of the underlying illness, afflicted with painful bladder spasms of an incompletely voided bladder, she is from time to time rendered incontinent. To minimize the number and extent of these stressful episodes, plaintiff has in the past used a self-catheter. She has, however, frequently found herself involuntarily urinating between catheterizations, when unable to find a nearby restroom. In an attempt to shrink her bladder, plaintiff is currently using an indwelling catheter and an attached leg bag for a three month period. The procedure has its own negative side effects, including increased risk of infection. In fact, plaintiff has developed serious infections since the implant. Medications she takes for her related problems increase her liquid intake, thereby increasing her need to urinate. In the event plaintiff's abnormally large bladder cannot be shrunk, she faces a choice of surgery on her bladder or living with incontinence.

 Although plaintiff's condition is slowly deteriorating, the regularity and intensity of her symptoms fluctuate. During good periods, plaintiff is able to walk by herself for short distances on level ground. At other times, however, she can only walk with the assistance of a cane or a wheelchair. In her workplace, plaintiff utilizes a motorized scooter, particularly as she tires in the afternoon. Like other multiple sclerosis patients, plaintiff's condition is aggravated by emotional stress and by extreme temperatures occurring during winter or summer. Also like other patients, plaintiff is periodically subject to episodes in which she experiences near or total paralysis, which so far do not last long.

 Plaintiff employs her own car, a present from her mother, to get to work. Her attempts to use public transportation have been unsuccessful. She relies exclusively on her car for transportation beyond the immediate proximity of her apartment, except during such episodes when she cannot drive, when she uses a car service. In July of 1992, plaintiff received a special handicapped parking identification from the New York City Department of Transportation, which allows her to park at parking meters without paying and exempts her from the City's alternate side of the street parking rules.

 Plaintiff currently parks her car on the street in Brooklyn Heights. Because plaintiff's apartment building is on the edge of residential Brooklyn Heights, next to the downtown commercial area, plaintiff must, at least until late evening, compete with both residential and nonresidential car owners to find a space. She must then walk from the parking place on the street to her apartment building with greater or lesser difficulty depending on the weather, time of day, whether the walk is uphill or downhill *fn1" and the distance. At the moment, in New York's most severe recent winter, the dangers of the walk are aggravated due to icy conditions. Until recently, plaintiff's best hope of a spot was on a one block street named Monroe Place just south of her apartment building where she can take advantage of her exemption from alternate side of the street parking rules. However, other drivers, including officials employed at or visiting the courthouse on Monroe Place of the Appellate Division, Second Department, who also enjoy exemption from the City's parking rules, compete with her for this space until they leave in the evening. Moreover, the parking is adjacent to one- and two-family brownstones, one resident of which, plaintiff credibly testified, has threatened her with reprisals if she continues to interfere with the street cleaning schedule of his neighborhood. As a result of these problems, it has, on occasion, taken plaintiff as much as forty-five minutes to find a parking space, and her incontinence has forced her to relieve herself on the street or in the car. On other occasions, as both plaintiff and an employee of her building's security service called by the defendants testified, she has arrived at the building lobby in such distress as to have to use a lavatory in the lobby to relieve herself. Once plaintiff reaches her apartment she describes herself as feeling on occasion "like a prisoner," since the problems of losing her spot and having to find another at a late hour are too daunting to face. *fn2"

 As noted, plaintiff resides in an apartment at defendant Cadman Towers, Inc., a cooperative housing corporation in Brooklyn, New York. Cadman Towers is a city-aided cooperative, organized and existing under Article 2 of the New York State Private Housing Finance Law to provide housing to persons of low and moderate income. It is also subject to the regulatory supervision of the New York City Department of Housing Preservation and Development. The cooperative has 423 apartments, each occupied by one or more holders of shares of its stock. The shareholders elect a Board of Directors consisting of nine resident shareholders. The Board has a fiduciary responsibility to all shareholders, setting its policies and making all significant decisions. The president of the cooperative, defendant Sydelle Levy, is a resident shareholder and one of the nine Board members.

 Due to the disparity in numbers between apartments and parking spaces, the cooperative has in the past generally allocated spaces on a first come/first served basis and required users of parking spaces to live in one of the two buildings and residents to enjoy no more than one parking space per apartment. There are, however, exceptions to this general policy. Six shareholders have two spaces. The explanation for this given by the Board's president is that the six got these spaces during a period when there was low demand. At least one elderly resident is allowed to let her son, who does not live with her, use her space, apparently because she does not drive and her son, on occasion, does errands for her. In the past, a resident with severe emphysema was given a parking space without regard for the waiting list and then accommodated to the extent of being allowed to offer a $ 1,000 reward for a space closer to his apartment in contravention of the usual policy prohibiting the sale of parking spaces. Also excepted from the first come/first served, residents-only policy are three spaces given without charge to building employees as part of the employees' compensation.

 When the first come/first served policy is followed, the resident's name is placed on a waiting list, and when a parking space is awarded, the resident may use the space until he or she vacates the apartment. To obtain a spot on the waiting list, residents are required to communicate their desire to be placed on such list in writing and are placed on the list as of the date their letter is received. An applicant must be over eighteen years of age and a resident. With the exceptions noted above, residents are limited to one parking space per unit. The restrictions and the procedure to be followed in requesting a space are spelled out in a building guide, the Cadman Towers Handbook, which is supposed to be provided free to all residents upon taking up residency.

 Because there are so many more apartments than parking spaces in 101 Clark than there are in 10 Clinton, there is a greater demand for parking spaces in the former. When an applicant's name appears at the top of the general waiting list, the resident is assigned the next available space at 10 Clinton. Persons with spaces in 10 Clinton who reside in 101 Clark can then apply to be placed on a second waiting list for a parking space in 101 Clark. The most recent award of space in 10 Clinton was to an applicant who went on the waiting list towards the end of 1989. People at the top of the 101 Clark list are said to have been waiting for space since the early 1980's.

 In September of 1989, plaintiff applied to buy an apartment in the complex. At the time, she informed the building management and Board that she suffered from multiple sclerosis and further checked a box on the application form indicating that she would be seeking a parking space. Plaintiff claims not to have been informed that there was a waiting list for these spaces and does not recall receiving the building guide containing the parking space application procedures. Defendants do not consider the application to buy an ...


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