United States District Court, E.D. New York
April 4, 2005.
ANNETTE CORTIGIANO, RANDALL REEDE, ALFRED ROBERTS, ANNA COUGHLIN, ANTONIO ILARRAZZA, ROGER ROSEN, and ROBERT WAYNE, on behalf of themselves and others similarly situated, Plaintiffs,
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
MEMORANDUM AND ORDER
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.
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
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. 151, 154
(S.D.N.Y. 1986) (citing 7 Charles A. Wright, Arthur Miller & Mary
K. Kane, Federal Practice and Procedure § 1688 (2d ed. 1986)).
A. Undue Delay, Dilatory Motive, Bad Faith and Repeated
Failure to Cure
In asserting that this motion is "untimely," see Scott-Lavino
Aff. ¶ 1(a), defendants appear to argue that plaintiffs have
unnecessarily delayed bringing this motion or acted in bad faith.
This contention is belied by the undisputed facts. Plaintiffs
filed the complaint on September 21, 2004. After obtaining two
extensions of time, defendants filed their answer on November 1,
2004. Plaintiffs served this motion on or about January 10, 2005,
less than four months after they filed the complaint, and before
discovery has commenced and a scheduling conference was ordered
by the magistrate judge. This also suggests an absence of
The evidence therefore reveals that plaintiffs acted in good
faith in bringing this motion. They did not name the additional
plaintiffs in the original complaint because when it was filed,
their lawyers were unable to corroborate the allegations they now
seek to assert on their behalf. (Declaration of Lycette Nelson
executed on January 7, 2005 ¶ 2). After plaintiffs' counsel determined the factual and legal bases for their claims, she
asked defendants' counsel to consent to the proposed amendment.
(Id. ¶ 5). Defendants' counsel refused, and plaintiffs filed
this motion promptly thereafter. This demonstrates that
plaintiffs acted in good faith.
B. Undue Prejudice
A review of the complaint and the proposed amended complaint
demonstrates that the facts giving rise to the claims of the
Additional Named Plaintiffs are the same or virtually the same as
those of the named plaintiffs. Therefore, the proposed amendment
would not: (a) require defendants to expend significant
additional resources to conduct discovery and prepare for trial,
or (b) significantly delay resolution of this case. See
generally Block v. First Blood Assoc., 988 F.2d 344, 350 (2d
Cir. 1993) (setting forth factors giving rise to undue prejudice
in seeking leave to amend complaint). For these reasons, the
Court finds that allowance of the amendment will not unduly
An amendment is futile only if plaintiffs cannot demonstrate
"at least colorable grounds for relief." Ryder Energy
Distribution Corp. v. Merrill Lynch Commod. Inc., 748 F.2d 774,
783 (2d Cir. 1984). Since the claims of the Additional Named
Plaintiffs mirror those of the existing plaintiffs both factually and legally, and because defendants have not moved to dismiss
those claims and they set forth the essential elements, they are
not futile. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123
(2d Cir. 1991).
D. The Claims of the Additional Named Plaintiffs Arise Out of
the Same Acts or Occurrences
Defendants assert that the claims of the Additional Named
Plaintiffs "do not arise from the same transaction or
occurrence." (Scott-Lavino Aff. ¶ 10). The Court has examined the
two out-of-jurisdiction cases cited by defendants Webb v.
Westinghouse Elec. Corp., 1977 U.S. Dist. LEXIS 16122, at *2
(E.D. Pa. Apr. 29, 1977) (motion to add additional parties denied
where it was filed on the eve of oral argument relating to
application for class certification and parties sought to be
added were not similarly situated to named plaintiffs) and
Martinez v. Safeway Stores, Inc., 66 F.R.D. 446, 448 (N.D. Cal.
1975) (proposed claims of additional plaintiffs did not arise out
of the same facts as the named plaintiffs' claims) and finds
each inapposite. As set forth above, the claims of the Additional
Named Plaintiffs are substantially similar, if not identical, to
those of the named plaintiffs. Therefore, the Court finds that
the claims arise from transactions and occurrences which are
substantially the same.
Against this background, plaintiffs have sustained their burden
for leave to amend the complaint to add the Additional Named Plaintiffs. See, e.g., Abrahamson v. Board of Educ. Of
The Wappingers Central Sch. Dist., 2002 WL 1354711, at *12
(S.D.N.Y. 2002) ("Plaintiffs ask for permission to amend their
complaint to add more plaintiffs to the complaint. Since leave to
amend should be freely granted when justice so requires,
Fed.R.Civ.P.R. 15(a), plaintiff may submit an amended complaint with
additional plaintiffs within the next ten (10) business days.");
Smith v. Bowers, 337 F. Supp. 2d 576, 579 n. 1 (S.D.N.Y. 2004)
(granting leave to amend complaint to add additional plaintiff
where "no prejudice would result to Defendants"); Doe v.
Pataki, 3 F. Supp. 2d 456, 473-74 (S.D.N.Y. 1988) (granting
leave to amend complaint to add a proposed additional class of
plaintiffs where defendants did not establish, among other
things, undue delay or prejudice). Because leave to amend is
granted, plaintiffs' motion to amend the caption to reflect that
amendment is also granted. See Fuller v. American Machine &
Foundry Co., 95 F. Supp. 764, 766 (S.D.N.Y. 1951) (invoking Rule
21 in accepting plaintiffs' "proposal" to add additional
plaintiff to the caption).
II. Plaintiffs' Motion for Class Certification
Plaintiffs seek to certify a class consisting of "individuals
who currently reside or will reside at Oceanview, who are
mentally disabled, and who receive SSI." (Compl. ¶ 25).
A. The Court's Subject Matter Jurisdiction
As a threshold matter, defendants argue that the Court lacks subject matter jurisdiction to decide plaintiffs' motion for
class certification. (Scott-Lavino Aff. ¶¶ 30-32, 41-45). In
support of their position, defendants argue that the
Rehabilitation Act and ADA claims "fail as no discrimination has
occurred due to plaintiffs' disabilities" and these federal
statutes "do not apply to facilities not receiving federal
funding." (Id.) Defendants' arguments are unpersuasive because
if they are correct, then plaintiffs' claims fail as a matter of
law, and can be disposed of on a pre-trial motion. Defendants had
the option to file a dispositive motion under Fed.R.Civ.P.
12(b) to dismiss those claims in lieu of filing an answer, but
did not avail themselves of this option. The complaint sets forth
the elements for a claim under both the Rehabilitation Act and
ADA, which confers subject matter jurisdiction on this Court.
See 28 U.S.C. § 1331 ("The district courts shall have original
jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States"); see generally
Williams-Velasquez v. Guardian Life Ins. Co., 2003 WL 22038567,
at *1 (S.D.N.Y. Aug. 29, 2003) ("The Court has subject matter
jurisdiction of Plaintiff's . . . ADA claim? pursuant to
28 U.S.C. section 1331"). Therefore, defendants' challenge to the
Court's subject matter jurisdiction as a basis for opposing
plaintiffs' motion for class certification is rejected.
B. Class Certification Standards Rule 23 of the Federal Rules of Civil Procedure governs class
certification. Parker v. Time Warner Entertainment Co., L.P.,
331 F.3d 13, 18 (2d Cir. 2003). Fed.R.Civ.P. 23(c)(1)(A)
provides that "[w]hen a person sues or is sued as a
representative of a class, the court must at an early
practicable time determine by order whether to certify the
action as a class action." Typically, as here, towards that end,
plaintiffs file a motion for certification. See, e.g., East
Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 404 (1977).
The Supreme Court has held that the Court must undertake a
"rigorous analysis" to determine whether Rule 23 requirements
have been satisfied. See Gen. Tel. Co. of the Southwest v.
Falcon, 457, U.S. 147, 161 (1982) (hereinafter "Falcon");
Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d
Cir. 1999), cert. denied, 529 U.S. 1107 (2000). The party
seeking class certification bears the burden of establishing the
requirements of Fed.R.Civ.P. 23, though that rule should be
liberally interpreted and not given a strict construction.
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997);
Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).
"`[T]o deny a class action simply because all of the allegations
of the class do not fit together like pieces in a jigsaw puzzle
would destroy much of the utility of Rule 23.'" Denney v.
Jenkens & Gilchrist, 2005 WL 388562, at *5 (S.D.N.Y. Feb. 18,
2005) (citing Green v. Wolf Corp., 406 F.2d 291, 300 (2d Cir. 1968)). Therefore, it "seems
beyond peradventure that the Second Circuit's general preference
is for granting rather than denying class certification." Leider
v. Ralfe, 2003 WL 22339305, at *11 (S.D.N.Y. Oct. 10, 2003)
When considering a motion for class certification, the Court
accepts the allegations in the complaint as true and does not
conduct "a preliminary inquiry into the merits" of the case.
See Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177
(1974); see also Caridad, 191 F.3d at 291-92 ("A motion for
class certification is not an occasion for examination of the
merits of the case"); Shelter Realty Corp. v. Allied Maintenance
Corp., 574 F.2d 656, 661 n. 15 (2d Cir. 1978) (same). The Court
may consider material outside the pleadings in determining
whether to certify the proposed class, including
affidavits.*fn2 Sirota v. Solitron Devices, Inc.,
673 F.2d 566, 571 (2d Cir.), cert. denied, 459 U.S. 838 (1982). In
some cases, the court may conduct the required inquiry by relying
solely on the pleadings, but in other cases, it must delve deeper
and "probe behind the pleadings before coming to rest on the
certification question," which may require discovery. Falcon,
457 U.S. at 160; see also 5 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §
1785.3 ("In some instances, the court will be able to determine
whether the suit is maintainable as a class action at an early
stage and will do so"). In some of the latter cases, it will be
necessary for the parties to conduct discovery to establish a
sufficient evidentiary record from which to make the class
determination. See Sirota, 673 F.2d at 571.
"In determining the propriety of a class action, the question
is not whether the plaintiff or plaintiffs have stated a cause of
action or will prevail on the merits, but rather whether the
requirements of Rule 23 are met." Eisen, 417 U.S. at 178
(citation and internal quotation marks omitted). There are two
prerequisites for certification of class actions. First, the
party seeking class certification must prove that the proposed
class meets the four requirements of Rule 23(a): (1) the class is
so numerous that joinder of all members is impracticable; (2)
there are questions of law or fact common to the class; (3) the
claims or defenses of the representative parties are typical of
the claims or defenses of the class; and (4) the representative
party or parties will fairly and adequately protect the interests
of the class. Fed.R.Civ.P. 23(a); In re Visa
Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132-33 (2d
Cir. 2001). Second, the party seeking class certification must
show that the proposed class action falls within one of the types
of class actions maintainable under Rule 23(b). For the proposed
class to be certified, plaintiffs must satisfy all of these
prerequisites. Marisol A., 126 F.3d at 375-76. Each is
addressed in turn.
C. Fed.R.Civ.P. 23(a)
To satisfy the numerosity requirement of Rule 23(a)(1),
plaintiffs must show that joinder is "impracticable." Robidoux
v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Plaintiffs are not
required to specify an exact class size as a prerequisite to
demonstrating numerosity. Id. at 935; Nicholson v. Williams,
205 F.R.D. 92, 98 (E.D.N.Y. 2001) ("Plaintiffs need not establish
the precise number of potential class members since courts are
empowered to make common sense assumptions to support a finding
of numerosity") (internal quotation and citation omitted).
Numerosity is generally presumed when a class consists of forty
or more members. Consolidated Rail Corp. v. Town of Hyde Park,
47 F.3d 473, 483 (2d Cir.), cert. denied, 515 U.S. 1122
(1995). Plaintiffs proffer evidence indicating that the number of
class members exceeds 150. (Declaration of Lycette Nelson
executed on January 10, 2005 ("Nelson 1/10/05 Decl.") ¶ 4). They
base this number on publicly available census data which the DOH
compiles on adult homes, last published in 2003, which reveals
that at that time "161 residents of Oceanview were receiving
either SSI or Safety Net Assistance and that more than 97 per cent of
residents were recipients of mental health services." (Id.)
Therefore, defendants' argument that "[a]t no time do the
plaintiffs offer reasonable proof that their claims meet th[e]
numerosity requirement" lacks merit. (Scott-Lavino Aff. ¶ 12).
Moreover, defendants state that "the fact that Oceanview has the
potential to house 176 residents should not be [a] factor in
determining numerosity." (Id. ¶ 15). While this may be true in
the abstract, plaintiffs have proffered admissible evidence that
more than 150 residents at Oceanview come within the class
definition which they advance. Thus, the Court's determination
that plaintiffs have satisfied the numerosity requirement is
neither premature nor lacking competent proof.
The Court further finds that joinder of all members of the
class is impracticable, as many may be reluctant to serve as
named plaintiffs in an action against the home where they live
for fear of reprisals. In addition, the class members are,
according to the complaint, mentally disabled, and thus they may
have no other means to exercise their rights because of
inadequate resources to prosecute their own claims. Also, the
relief plaintiffs seek in this case is predominantly injunctive
in nature. See, e.g., Matyasovszky v. Housing Auth. of the
City of Bridgeport, 226 F.R.D. 35, 40 (D. Conn. 2005) ("when
making a determination of joinder impracticability, relevant considerations include judicial economy arising from the
avoidance of a multiplicity of actions, geographic dispersions of
class members, financial resources of class members, the ability
of claimants to institute individual suits, and requests for
prospective injunctive relief which would involve future class
members") (citation omitted). The numerosity requirement is thus
The commonality element of Rule 23(a)(2), which requires the
plaintiff to demonstrate that common issues of law or fact exist
and affect all class members, is considered a "minimal burden for
a party to shoulder." Lewis Tree Service, Inc. v. Lucent
Technologies Inc., 211 F.R.D. 228, 231 (S.D.N.Y. 2002).
Individual circumstances of the class members can differ without
precluding class certification so long as "common questions are
at the core of the cause of action alleged." Vengurlekar v.
Silverline Technologies, Ltd., 220 F.R.D. 222, 227 (S.D.N.Y.
2003) (internal quotations and citations omitted). Commonality is
assumed where the plaintiff seeks declaratory relief as opposed
to individual relief. Port Authority Police Benev. Ass'n, Inc.
v. Port Authority of New York and New Jersey, 698 F.2d 150, 151
(2d Cir. 1983).
Defendants argue that it is premature for the Court to certify
a class action because plaintiffs "do not substantiate any of their claims of discrimination other than to make broad
allegation[s] of discrimination." (Scott-Lavino Aff. ¶ 18).
Defendants' argument opposing class certification is, in essence,
that plaintiffs will be unable to discover facts to support their
claims substantively. As discussed above, however, that is not a
reason to deny the motion.
The Court agrees with plaintiffs that there are both legal and
factual issues common to the class. Plaintiffs are all mentally
disabled residents at Oceanview who receive SSI, and are thus
entitled to a PNA. They claim that rather than unconditionally
distributing the PNA to them, defendants have conditioned
plaintiffs' receipt of the PNA on the mandatory performance of,
among other things, certain activities which are otherwise
voluntary. They also allege that defendants have deprived
plaintiffs of control over their own PNA. Among the common legal
questions affecting plaintiffs and the proposed class are the
following: did defendants discriminate in violation of the
Rehabilitation Act by withholding and/or conditioning the
distribution of PNA's to which plaintiffs are entitled from their
SSI checks?; did defendants fail to provide plaintiffs with
reasonable accommodations for their disabilities at the home in
violation of the ADA?; and did the defendants discriminate
against plaintiffs in violation of the ADA by imposing improper
terms and conditions on plaintiffs' receipt of benefits and services because of their mental disabilities? (Pls. Mem. at
16-17). Significantly, defendants do not contest that some common
questions of law or fact are raised by the allegations in the
complaint. Accordingly, the commonality requirement is met.
A named plaintiff's claim is "typical" pursuant to Rule
23(a)(3) where each class member's claim arises from the same
course of events and each class member makes similar legal
arguments to prove the defendants' liability. See Robinson v.
Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001),
cert. denied, 535 U.S. 951 (2002). "The rule is satisfied . . .
if the claims of the named plaintiffs arise from the same
practice or course of conduct that gives rise to the claims of
the proposed class members." Marisol A. v. Giuliani,
929 F. Supp. 662, 691 (S.D.N.Y. 1996), aff'd, 126 F.3d 372 (2d Cir.
1997). A putative class representative's claims are not typical
if that representative is subject to unique defenses. See
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52,
59 (2d Cir. 2000). Accordingly, the commonality and typicality
requirements "`tend to merge' because `[b]oth serve as guideposts
for determining whether . . . the named plaintiff's claim and the
class claims are so inter-related that the interests of the class
members will be fairly and adequately protected in their
absence.'" Caridad, 191 F.3d at 291 (quoting Falcon, 457 U.S.
at 157 n. 13).
In opposition, defendants argue that "plaintiffs? have
provided no support that current residents or future residents
will be able to plead any cause of action against Oceanview."
(Scott-Lavino Aff. ¶ 23). As noted above, however, the Court does
not concern itself with the merits of plaintiffs' claims at this
stage, but is charged only with the task of determining whether
plaintiffs satisfy the prerequisites to class certification under
Rule 23. Moreover, the fact that one of the named plaintiffs no
longer resides at Oceanview is not an impediment to class
certification because each of the other named plaintiffs
currently resides there.*fn3 Based on an analysis of the claims brought by the class representatives (except for
Cortigiano) in the complaint and proposed amended complaint, the
Court finds that plaintiffs have satisfied the typicality
requirement. See Dura-Bilt Corp. v. Chase Manhattan Corp.,
89 F.R.D. 87, 99 (S.D.N.Y. 1981). Specifically, accepting
plaintiffs' allegations in the amended complaint as true, the
other members of the class have the same or similar claims, the
action is not based on conduct special or unique to the named
plaintiffs, and the class members have been aggrieved by the same
course of conduct. The fact that there may be slight variations
in how defendants treated different plaintiffs (or putative class
members) does not render the claims atypical. Robidoux,
987 F.2d at 937 ("When it is alleged that the same unlawful conduct
was directed at or affected both the named plaintiff and the
class sought to be represented, the typicality requirement is
usually met irrespective of minor variations in the fact patterns
underlying individual claims"). That all members of the class
would benefit from the named plaintiffs' action demonstrates that
the typicality requirement is met. The Court thus finds that the
named plaintiffs' claims are typical of those of members of the proposed class. 4. Adequacy
To determine whether the named plaintiffs are adequate class
representatives under Fed.R.Civ.P. 23(a)(4), the Court must
determine whether "1) plaintiffs' interests are antagonistic to
the interest of other members of the class, and 2) plaintiffs'
attorneys are qualified, experienced and able to conduct the
litigation." Baffa, 222 F.3d at 60. In sum, the Court must
satisfy itself that the proposed lead plaintiffs possess
sufficient interest to pursue vigorous prosecution of their
claims. See Weltz v. Lee, 199 F.R.D. 129, 133 (S.D.N.Y.
2001). Both factors are satisfied in this case. The named
plaintiffs' interests in obtaining the requested relief are not
antagonistic to those of the other class members. Furthermore, as
evidenced by the Nelson declaration, plaintiffs have chosen able,
qualified and experienced counsel and have demonstrated their
willingness and capacity to pursue their claims on behalf of
themselves and other class members. (Nelson 1/10/05 Decl. ¶ 3).
The adequacy requirement is therefore met.
Although not derived from the plain language of Rule 23(a),
courts have held that in order for a class to be certified, the
named plaintiffs must demonstrate that there is an "identifiable
class." In re Methyl Tertiary Butyl Ether Products Liability
Litig., 209 F.R.D. 323, 336 (S.D.N.Y. 2002); 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1760, at 120-21 (2d ed. 1986) ("[T]he requirement
that there be a class will not be deemed satisfied unless the
description of it is sufficiently definite so that it is
administratively feasible for the court to determine whether a
particular individual is a member"). "This implied requirement is
often referred to as `ascertainability,' and requires that a
court can determine who belongs to the class by reference to
objective criteria. Class members need not be ascertained prior
to certification, but `the exact membership of the class must be
ascertainable at some point in the case.'" Id. at 337. It must
thus be "administratively feasible for a court to determine
whether a particular individual is a member" of the class and to
make this determination "without having to answer numerous
fact-intensive questions." Daniels v. City of New York,
198 F.R.D. 409, 414 (S.D.N.Y. 2001) (quotation omitted). Here, based
on a plain reading of the class which plaintiffs seek to certify,
a determination as to which residents of Oceanview fall within
the class will be straightforward and can be determined with
documents that are under the custody and control of defendants.
Therefore, the ascertainability requirement implied in
Fed.R.Civ.P. 23(a) is met.
D. Satisfaction of Fed.R.Civ.P. 23(b)
Having found that the plaintiffs satisfy Rule 23(a), the Court turns to the requirements set forth in Fed.R.Civ.P.
23(b). Plaintiffs seek certification of a class under subsection
(b)(2) of that rule which provides that a party seeking to
maintain a class action lawsuit must show that "the party
opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate
final injunctive relief or corresponding declaratory relief with
respect to the class as a whole." Fed.R.Civ.P. 23(b)(2). The
relief sought need not be solely equitable in nature: when both
equitable and monetary relief are sought, the Court may still
certify the class under subsection (b)(2) if it determines that
certification is appropriate "in light of the relative importance
of the remedies sought, given all of the facts and circumstances
of the case." Parker, 331 F.3d at 20 (internal quotations
omitted). In Parker, the Second Circuit explained that when
making a determination about certification under subsection
(b)(2), the Court must first determine whether, "even in the
absence of possible monetary recovery, reasonable plaintiffs
would bring the suit to obtain the injunctive or declaratory
relief sought." Id. (quoting Robinson, 267 F.3d 147). "[T]he
presence of a damages claim will not defeat maintenance of a
class action under Rule 23(b)(2) when the requested . . .
injunctive relief is a significant component of the overall
relief which plaintiffs seek." In re Visa Check/Mastermoney Antitrust Litig., 192 F.R.D. 68, 88 (E.D.N.Y. 2000) (internal
quotation marks and citation omitted), aff'd, 280 F.3d 124 (2d
Cir. 2001), cert. denied sub nom. Visa U.S.A. Inc. v.
Wal-Mart Stores, Inc., 536 U.S. 917 (2002). Next, the Court must
also consider whether "the injunctive or declaratory relief
sought would be both reasonably necessary and appropriate were
the plaintiffs to succeed on the merits."
Here, plaintiffs seek "to enjoin [d]efendants from placing
conditions on [p]laintiffs' receipt of their PNA funds" pursuant
to the Rehabilitation Act and the ADA.*fn4 (Pls. Mem. at
22). If plaintiffs succeed on the merits, equitable relief will
be appropriate to enjoin the unlawful conduct. In fact, the
injunctive relief sought by plaintiffs is the primary relief they
seek as evidenced by a review of the complaint. The gravamen of
the complaint is that defendants deprived plaintiffs of their control over the PNA, which did not result in any direct economic
harm to them. They seek an order from the Court requiring
defendants to return control of their PNA to them.*fn5
Therefore, the injunctive relief is both necessary and
appropriate should plaintiffs prevail on their federal causes of
action. Because the plaintiffs have successfully fulfilled the
requirements of Rule 23(a) and Rule 23(b)(2), the Court holds
that certification of the putative class is proper.
E.N.Y. C.P.L.R. § 901(b) Defendants argue that plaintiffs' motion should be denied
because they seek relief under N.Y. Soc. Serv. Law § 131-o(3),
and pursuant to N.Y.C.P.L.R. § 901(b), a class action cannot be
certified.*fn6 (Scott-Lavino Aff. ¶¶ 31-40); see, e.g.,
Leider v. Ralfe, 2005 WL 152025, at *6 (S.D.N.Y. Jan. 25, 2005)
(noting that most, though not all, federal courts apply
N.Y.C.P.L.R. § 901(b) when determining whether to certify a class
action under New York State law, and refusing to certify a
putative class action under New York's antitrust statute).
Regardless of whether defendants' argument has merit, plaintiffs
state that they are not seeking certification under any cause of
action brought under state law, but only under the Rehabilitation
Act and ADA. (Pls. Rep. Mem. at 9-10). Plaintiffs' decision not
to seek class certification for their state law claims is
entirely appropriate. See, e.g., Leider, 2003 WL 22339305,
at *9 (S.D.N.Y. Oct. 10, 2003) (class certification appropriate
under federal statutes but not state statute). Defendants'
argument that N.Y.C.P.L.R. § 901(b) precludes class certification
is therefore superfluous.
Plaintiffs' motions to amend the complaint, amend the caption and for class certification are granted except that
Annette Cortigiano shall not serve as a class representative.
Plaintiffs are directed to file their amended complaint within
five business days of their receipt of this Memorandum and Order.
The class shall be composed of all individuals who currently
reside or will reside at Oceanview Manor Home for Adults, who are
mentally disabled, and who receive Supplemental Security Income,
and the claims for which the Court grants class certification are
limited to the Rehabilitation Act and the ADA. The parties shall
contact the magistrate judge assigned to this case forthwith so
that the Court may establish a discovery schedule.