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March 12, 2001


The opinion of the court was delivered by: Spatt, District Judge.


This lawsuit arises out of contentions by Eastern Paralyzed Veterans Association, Inc. ("EPVA" or a "plaintiff") and Long Island Housing Services, Inc. ("LIHS" or a "plaintiff") (collectively, the "plaintiffs") that Lazarus-Burman Associates ("LBA" or a "defendant"), Jerome Lazarus ("Lazarus" or a "defendant"), Jan Berman ("Berman" or a "defendant"), L.B. Mitchel Field, Inc. ("Mitchel Field" or a "defendant"), L.B. Mitchel Field Associates, L.P. ("Mitchel Field Associates" or a "defendant") (collectively, the "Lazarus-Burman defendants"), and Simplex Industries, Inc. ("Simplex" or a "defendant") (collectively, the "defendants") constructed a 438-unit senior-citizen housing development, The Meadows at Mitchel Field ("The Meadows"), in violation of the accessibility requirements of the Fair Housing Act of 1986 as amended, 42 U.S.C. § 3601 et. seq. (the "FHA") and the regulations promulgated thereunder. Presently before the Court are: (1) the defendants' motion to dismiss pursuant to 12(b)(1) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") based on the plaintiffs' alleged lack of standing to sue; and (2) a motion to dismiss by Simplex, pursuant to Rule 12(b)(1), based on an allegation that the statute of limitations has expired on the plaintiffs' action.


The following facts are taken from the complaint. In the early 1990's, LBA purchased a 20-acre parcel of land from Nassau County for the sum of $5,000,000. LBA intended to build The Meadows, an affordable housing development for people over the age of 62, through the Town of Hempstead's "Golden Age" program. Under the Golden Age program, the Town of Hempstead offered real estate tax abatements that translated into lower monthly carrying costs for purchasers of units at The Meadows. The program also permitted special high-density zoning.

In 1996, LBA submitted floor plans for The Meadows to the Town of Hempstead Department of Buildings. The Chief Buildings Inspector approved the plans on or about October 31, 1997. Thereafter, the Lazarus-Burman defendants built The Meadows using pre-fabricated modular units designed and constructed by Simplex.

The plaintiffs contend that the completed units at The Meadows are not accessible to people who use wheelchairs, because: (1) every ground-floor unit has three steps leading to the entrance door; (2) the thermostat in every unit is above the accessible reach of a person sitting in a wheelchair; (3) in all of the "C units," a door into the bathroom and the door into the storage room are only 28-inches wide; (4) in all of the "B units," the door to the walk-in closet in bedroom # 1 is 24-inches wide; and (5) in all of the "A units," one of the doors to the bathrooms is 28-inches wide.

EPVA is a not-for-profit corporation with over 2,000 members who live throughout the northeastern United States, including the New York City area and Nassau and Suffolk Counties. All of EPVA's members are veterans of the United States armed forces and are victims of spinal cord injuries, and almost all of EPVA members use a wheelchair. The complaint describes EPVA's mission as follows:

Among EPVA's purposes are to assist its members and other individuals with disabilities in leading full, active, and productive lives; to assure its members proper and dignified medical care, and effective reconditioning and rehabilitation; and to assure its members and other individuals with disabilities have full access to housing, transportation, employment, recreational facilities, and other facilities open to persons without disabilities. Toward these ends, EPVA assists and cooperates with both governmental and private entities in making their facilities accessible to persons with disabilities, including wheelchair users. Where necessary, EPVA has brought litigation to assure compliance with federal, state and local laws mandating access for persons with disabilities.

(Complaint ¶ 6).

The complaint also describes LIHS:

7. . . . [LIHS] is a private not-for-profit fair housing advocacy and enforcement agency servicing Nassau and Suffolk Counties. Its primary objectives are to promote racial and economic integration, to reduce and eliminate housing discrimination, to promote equal housing opportunities, and to promote the availability of affordable and accessible housing. LIHS pursues these goals through counseling clients in such areas as fair housing rights and resources, landlord/tenant rights, government assisted programs and homelessness prevention, as well as mortgage default, pre-purchase and rental strategies. LIHS promotes fair housing enforcement and voluntary compliance with fair housing laws by conducting fair housing investigations, including testing, providing education and outreach for housing consumers and industry related providers and serving as a clearinghouse for information.

(Complaint ¶ 7).

The following factual allegations are taken from affidavits submitted to the Court in conjunction with the motions to dismiss. See Antares Aircraft v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991) ("On a motion under [Rule] 12(b)(1) challenging the district court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits."), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992).

In order to purchase a unit at the Meadows, individuals must show proof that they are over the age of 62 and that their income does not exceed $45,000 for single persons or $55,000 for couples (see Burman affidavit ¶ 4). As per the Town of Hempstead's requirements, two-bedroom units on the second floor could not sell for more than $107,000, and two-bedroom units on the first floor could not sell for more than $112,000 (see Burman affidavit ¶ 4).

The Lazarus-Burman defendants claim that at the time The Meadows units were sold, a handicap package was offered to all prospective buyers (see Burman affidavit ¶ 8). According to the Lazarus-Burman defendants, only two prospective buyers inquired about the package, and none of the ultimate buyers purchased the handicap package (see Burman affidavit ¶ 9). The Lazarus-Burman defendants also state that none of the existing unit owners at The Meadows has asked for the handicap package (see Burman affidavit ¶ 10). Burman maintains that one unit owner requested a ramp be built after she had moved into her unit, and Burman claims that he built the ramp at his own expense (see Burman affidavit ¶ 11).

LIHS alleges that on or about November 13, 1997, Louis Ponticello ("Ponticello"), an individual with a disability, informed LIHS that he had visited The Meadows Sales Office to inquire about purchasing a home, and he was concerned that none of the units was accessible to wheelchairs (see Santantonio affidavit ¶ 5). In response to Ponticello's inquiry, Michelle Santantonio ("Santantonio"), the Executive Director for LIHS, "conducted phone testing to [The Meadows] Sales Office to determine whether persons with disabilities were being denied the opportunity to purchase homes at [The Meadows]" (Santantonio affidavit ¶ 6). Santantonio claims that during a telephone call to The Meadows Sales Office on November 24, 1997, she was "informed that there were no accessible apartments for persons with disabilities, and that the development was for active seniors" (Santantonio affidavit ¶ 7). Santantonio notes that Ponticello was not eligible for The Meadows because he did not meet the age requirement (see Santantonio affidavit ¶ 8).

Santantonio also claims that Nassau Suffolk Legal Services ("NSLS") relayed to her complaints they had received from residents and prospective purchasers at The Meadows who wished to modify the units in order to make them accessible to people with disabilities (see Santantonio affidavit ¶ 10). NSLS told Santantonio that The Meadows had advised one resident that she would have to pay a sum of $2500 to have a ramp installed (see Santantonio affidavit ¶ 10). Santantonio also claims that several individuals with disabilities informed NSLS that the sales staff at The Meadows attempted to dissuade them from purchasing units (see Santantonio affidavit ¶ 10).

According to Santantonio:

LIHS spends a significant amount of its staff time and resources on counseling clients on a wide array of housing issues ranging from mortgage default to promoting equal opportunity for persons with disabilities to obtain housing. From April 1999 through June 1999 LIHS, during its investigation of [The Meadows], had to layoff members of its investigative staff due to budgetary constraints. . . . The inaccessibility of [The Meadows] has resulted in a significant diversion of resources at a time in which LIHS was experiencing constraints on staffing and time to further its mission. LIHS' primary mission as an enforcement, advocacy and counseling agency to promote racial and economic integration was frustrated as its energies and time were diverted to the technicalities of accessibility guidelines for new construction.

(Santantonio affidavit ¶¶ 23, 25).

In January 1999, Santantonio contacted Brian Black ("Black"), the Director of Building Codes and Standards at EPVA's Buffalo office, regarding what she believed to be violations of the FHA at The Meadows (see Black affidavit ΒΆ 2). Black and Santantonio reviewed The Meadows floor plans, which they obtained from the Town of Hempstead's Buildings Department, and visited The Meadows where they examined the interior and exterior of the units ...

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