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April 4, 2005.

OCEANVIEW MANOR HOME FOR ADULTS and JOSEPH ROSENFELD, Operator and Administrator, Oceanview Manor Home For Adults, Defendants.

The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge



  Plaintiffs Annette Cortigiano ("Cortigiano"), Randall Reede ("Reede") and Alfred Roberts ("Roberts") (collectively, "plaintiffs"), filed this putative class action lawsuit against Oceanview Manor Home for Adults ("Oceanview"), an adult care facility, and its operator and administrator, Joseph Rosenfeld ("Rosenfeld") (collectively, "defendants"), to eliminate discrimination on the basis of their disability. Plaintiffs assert claims under the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (the "Rehabilitation Act"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the "ADA"), the New York Social Services Law, N.Y. Soc. Serv. § 131-o, the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., the Administrative Code of the City of New York, N.Y.C. Admin. Code § 8-101 et seq., and common law claims for breach of contract and breach of fiduciary duty. Pending before the Court are plaintiffs' motions to amend the complaint, to amend the caption, and for class certification. For the reasons set forth below, plaintiffs' motions are granted.


  Unless otherwise specified, the following facts are drawn from the complaint. Oceanview, located in Brooklyn, New York, is a for-profit adult home, providing long-term residential care to the elderly. (Id. ¶¶ 13-14). At the time the complaint was filed in September, 2004, Oceanview had approximately 175 residents, many of whom suffer from mental illnesses. (Id. ¶ 16). Oceanview is licensed by the New York State Department of Health ("DOH") and is therefore subject to New York State law and regulations. (Id. ¶ 15). Rosenfeld holds a certificate to operate Oceanview pursuant to New York law. (Id. ¶ 19). The admission agreement which Oceanview requires residents to sign states as follows: "The parties to this agreement understand that this facility is a Residential Care facility providing lodging, room, board, housekeeping, supervision, and personal care services to the resident in accordance with the New York State Social Services Law and the Regulations of the New York State Department of Health." (Id. ¶ 22).

  Plaintiffs are mentally disabled residents of Oceanview. (Compl. ¶¶ 10-12). They are recipients of Supplemental Security Income ("SSI") and pay Oceanview a fixed rate determined by the State of New York, in exchange for room, board, housekeeping, personal care, supervision and social services. (Id. ¶ 3). One or more of the plaintiffs receives Social Security Disability Insurance ("SSDI") as a result of their employment history. (Id. ¶ 27). Because SSI recipients receive little or no economic assistance above that paid to the adult home in which they live, the New York State legislature established a mandatory Personal Needs Allowance ("PNA") from a state supplement which is paid to individuals, like plaintiffs, to allow them to purchase personal items that they otherwise would be unable to afford, including clothing, toiletries, newspapers and snacks. (Id. ¶¶ 4, 32). For example, in 2004, SSI recipients living in an adult home received an allowance of $127 per month for their personal needs, and individuals who were also SSDI recipients, received an additional $20 per month for a total monthly allowance of $147. (Id. ¶ 31). That money is sent monthly to the beneficiary or a payee designated by the beneficiary. (Id. ¶ 34).

  Because plaintiffs do not have their own bank accounts and have no money other than the governmental assistance they receive, they negotiate their monthly checks to Oceanview and maintain accounts with the home consisting of their monthly PNA. (Compl. ¶ 35). Oceanview has a very restrictive window in which plaintiffs are permitted to withdraw their PNA even though it advertises that they are able to do so between 10 am and 2 pm on weekdays. (Id. ¶ 36). If plaintiffs are not at home or available to stand on line at the time defendants unilaterally determine they must withdraw their PNA, they do not receive it. (Id.). Further, defendants condition receipt of plaintiffs' PNA on their attendance in day treatment programs, which are ostensibly entirely voluntary. (Id. ¶ 37). If plaintiffs do not attend the voluntary programs, they cannot obtain their PNA. (Id.)

  Cortigiano moved to the home in April, 2003, and until April 12, 2004, she received her PNA directly. (Compl. ¶ 39). Even though Cortigiano received a monthly PNA in the amount of $147 during this time period, defendants told her she could only access $35 of it per week. (Id. ¶ 45). In February, or March, 2004, defendants filed an application with the Social Security Administration to become her representative payee. (Id. ¶ 40). On or about March 29, 2004, they asked Cortigiano to sign a form designating Oceanview as her representative payee, but she refused. (Id. ¶ 41). The next day, defendants threatened to withhold her PNA if she did not sign the form. (Id. ¶ 42). Under duress, Cortigiano signed the form. (Id.) However, she was still only allowed to withdraw $35 of her PNA per week. (Id. ¶ 46)

  Defendants routinely demanded to know what Cortigiano purchased with her PNA. (Id. ¶ 47). Cortigiano repeatedly asked defendants for her full monthly PNA, for example, to allow her to pay her expenses in visiting her son in Staten Island, but they refused. (Id. ¶¶ 48-49). Moreover, defendants regularly checked whether she was attending a voluntary day treatment program, and if she was not, they would not remit her PNA. (Id. ¶¶ 53-56). Beginning in January, 2004, defendants put Cortigiano on a budget of $5 per day because of her failure to attend the voluntary program. (Id. ¶ 50). As a result of her demands that defendants remit her PNA at the beginning of every month by direct deposit, defendants threatened to evict her. (Id. ¶ 60).

  Reede has resided at Oceanview since December, 2002, and has at all times been his own payee. (Compl. ¶¶ 61-62). Defendants condition Reede's receipt of his PNA on his taking a shower. (Id. ¶ 63). They restrict his control over his PNA, for example, by denying him the ability to withdraw more than $5 per day from his account. (Id. ¶¶ 67). Reede is afraid to ask defendants for more money because he fears they will abuse him verbally. (Id. ¶ 66). Defendants withhold Roberts' allowance when he does not attend a voluntary day treatment program. (Compl. ¶¶ 71-74). They ask Roberts if he has showered and threaten to withhold his allowance if he does not. (Id. ¶ 76). In the winter, defendants refused to provide Roberts with his allowance which prevented him from purchasing a coat which he needed. (Id. ¶ 77). When Roberts requires a personal item, such as clothing, defendants will go to the store to purchase it for him instead of allowing him to do so, thus depriving him of his right to choose what he buys with his PNA. (Id. ¶ 78). In a letter dated February 10, 2004, Roberts, through his attorney, asked defendants to cease their practice of conditioning the receipt of his allowance on his attendance at a day treatment program. (Id. ¶ 79). Defendants failed to respond meaningfully to his request. (Id.). They told Roberts that they would not change their policies even if he threatened or commenced litigation. (Id. ¶ 80).

  The facts giving rise to the claims of the plaintiffs who are sought to be added pursuant to the motion to amend the complaint are similar to those of the originally named plaintiffs. See Notice of Motion for leave to file an amended complaint Exh. A, attaching proposed amended complaint ¶¶ 13-14, 17-18, 37, 72-76, 78-79, 81, 85-91, 116, 119, 121, 125-27, 129, 132.

  DISCUSSION I. Plaintiffs' Motion to Amend the Complaint and the Caption

  Pursuant to Fed.R.Civ.P. 15(a), plaintiffs seek leave to amend their complaint to add Anna Coughlin, Antonio Ilarrazza, Roger Rosen and Robert Wayne as additional named plaintiffs (the "Additional Named Defendants"), and to modify the caption to reflect the proposed amendment.*fn1 In opposition, defendants argue that plaintiffs' motion is "untimely and severely prejudicial to the defendant[s]." (Affirmation of Theresa Scott-Lavino, dated January 18, 2005 ("Scott-Lavino Aff.") ¶ 1(a)). Alternatively, defendants rely on Fed.R.Civ.P. 20 and argue that the proposed plaintiffs do not seek relief arising "out of the same transaction, occurrence, or series of transactions or occurrences" giving rise to the original complaint and that there are no common questions of fact or law between plaintiffs and the Additional Named Plaintiffs. (Scott-Lavino Aff. ¶¶ 5-10).

  As an initial matter, the Court finds that Fed.R.Civ.P. 15(a) and 21 govern this motion. Fed.R.Civ.P. 20, relating to the permissive joinder of parties, is relevant to the extent that the "court's decision to permit joinder is based on whether the claims of the additional plaintiffs arose out of the same or separate acts or occurrences." Ford v. Airline Pilots Assoc. Int'l, 268 F. Supp. 2d 271, 295 (E.D.N.Y. 2003) (citations omitted).

  In general, a motion for leave to amend is addressed to the discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962). Fed.R.Civ.P. 15(a) provides, in part, that once a responsive pleading has been served, a party may amend its pleading "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Leave to amend will generally be granted where the moving party has demonstrated "at least colorable grounds for relief" absent a showing of undue delay, bad faith, dilatory motive, undue prejudice to the opposing party by virtue of the allowance of the amendment, or futility of the amendment. See, e.g., Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir. 2003); Krumme v. Westpoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir. 1998) ("considerations of undue delay, bad faith, and prejudice to the opposing party [are] touchstones of a district court's discretionary authority to deny leave to amend.") (internal quotation omitted).

  Rule 21 states that parties may be "added by order of the court on motion of any party." Fed.R.Civ.P. 21. See also Sullivan v. West New York Residential, Inc., 2003 WL 21056888, at *1 (E.D.N.Y. Mar. 5, 2003) ("Rule 21 allows the court broad discretion to permit the addition of a party at any stage in the litigation") (citations omitted). Therefore, where parties satisfy the requirements under Fed.R.Civ.P. 15(a) for leave to amend, they will generally be permitted to add parties under Fed.R.Civ.P. 21. Andujar v. Rogowski, 113 F.R.D. ...

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