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.
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. ...