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May 3, 2005.


The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge


The plaintiff Daphne Bentley brings this action alleging that her landlord failed to accommodate her disability by refusing to allow her to move to a vacant lower-level unit in her rent stabilized apartment building at her current rent in violation of Title VIII of the Civil Rights Act of 1968, also known as the Fair Housing Act ("FHA"), as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 et seq. ("FHAA"). Bentley asserts that were she to move to the lower-level unit, her current unit would be subject to a significant vacancy increase under New York rent stabilization law to offset any financial burden to the defendants from the proposed accommodation. Pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the defendants move to dismiss Bentley's claims for lack of subject matter jurisdiction, arguing that the accommodation requested by Bentley is not contemplated under the FHAA. For the reasons set forth below, the defendants' motion to dismiss for lack of subject matter jurisdiction is DENIED and this court will hold a hearing to take evidence on the "reasonableness" of the plaintiff's requested accommodation.


  Bentley is a 66 year-old woman who has lived at 512 Eastern Parkway, Apartment D3 in Brooklyn, New York for approximately 24 years. (Declaration of Daphne Bentley in Support of Order to Show Cause ("Bentley Decl.") ¶ 1.) 512 Eastern Parkway is a four-story walk-up containing 16 apartment units. (See Amend. Comp. ¶ 42.) Bentley is a cancer patient who underwent several surgeries in 2004, including surgery to remove lymph nodes under her left arm, her uterus, and one third of her colon. (Bentley Decl. ¶ 3.) Bentley asserts that as a result of her surgeries, climbing up the stairs to get to and from her apartment, which is located on the top floor, is "very painful and stressful." (Id. ¶¶ 5, 6.) Due to her difficulty in climbing the stairs, Bentley only leaves her apartment when necessary and is dependant of the assistance of neighbors. (Id. ¶ 6.) Bentley lives off of a small fixed-income that consists of approximately $675 per month in Social Security and pension benefits, $149 per month in food stamps, and $200 per month given to her by her daughter. (Statement in Support of Order to Proceed In Forma Pauperis, Feb, 17, 2005, ¶ 4.)

  512 Eastern Parkway is a rent stabilized building regulated by the New York City Rent Stabilization Law, City Admin Code §§ 26-501 et seq., reprinted in N.Y. Unconsol. Laws after § 8617 at 157 (McKinney 2002), and the Rent Stabilization Code, N.Y. Comp. Code R. & Regs. ("NYCRR"), tit. 9, § 2500 et seq., reprinted in N.Y. Unconsol. Laws after § 8634, at 378 (McKinney 2002). Bentley recently signed a two-year rent stabilized renewal lease for her apartment at $820.64 per month. (Def. Mtn. Dismiss, Mar. 24, 2005 at 2.) In early summer of 2004, apartment B2 on the second floor of her building became vacant and Bentley asked her landlord's agents if she could move into that apartment to avoid having to climb additional flights of stairs. (Bentley Decl. ¶ 7.) According to Bentley, her landlord did not respond to her request, or the requests of her attorney at the Legal Aid Society. (Id. ¶¶ 7, 8.) In or about September or October of 2004, apartment A2 on the first floor of 512 Eastern Parkway became vacant. (Id. ¶ 9.) Apartment A2, which is also rent stabilized, was last rented at $833.58 per month. (Amend. Compl. ¶ 48.) Bentley asserts that on October 26, 2004, her attorneys transmitted a letter of understanding to the defendants setting forth an agreement that Bentley would be moved into A2, to which she received no response. (Pl. Mem. in Support of Order to Show Cause at 4.) The defendants assert that they offered to lease Bentley apartment A2 at $1,000.30 per month, which constitutes that unit's former rent, $833.58, plus the 20% increase permitted under New York's rent stabilization laws. (Def. Mem. of Law to Dismiss for Lack of Jurisdiction, at 2.)

  Bentley filed her initial complaint on February 17, 2005, in which she alleged causes of action under the FHA and New York State and New York City Human Rights Law. (Compl. ¶¶ 47-53.) On March 4, 2005, I granted the plaintiff's request for a Temporary Restraining Order ("TRO") and Order to Show Cause directing the defendants to show cause why this court should not enter an order enjoining the defendants from leasing apartments A2 and B2 pending the resolution of Bentley's claims. On March 25, 2005, the defendants filed a motion to dismiss in which they argued that they did not discriminate against Bentley because they offered to rent her apartment B2 at its legal, stabilized rent. On April 6, 2005, Bentley filed an amended complaint in which she additionally alleged that the defendants' refusal to rent her a vacant apartment exploited her disability in violation of 42 U.S.C. § 3604(f)(1)(A). On April 7, 2005, I held a hearing on the Order to Show Cause. At the hearing, the defendants argued that they complied with the FHA by offering the defendant apartment A2 at the rent permissible under state law. Bentley asserted that the FHA's reasonable accommodation provision required her landlord to offer the unit to Bentley at her current rent. According to Bentley, there would be little, if any, financial burden to the landlord because once Bentley moved into A2, the landlord could raise the rent on apartment D3, Bentley's former unit. At the April 7 hearing, I instructed the parties to further brief the issue of whether Bentley's requested accommodation was within the scope of the FHAA. On April 27, 2005, the parties argued whether the proposed accommodation was an accommodation within the concept of the FHAA. By that time, both parties' arguments focused on apartment A2. With the agreement of both parties, I lifted the TRO prohibiting the defendants from leasing apartment B2 and kept the TRO in place respecting apartment A2.


  The FHA originally prohibited discrimination on the basis of race, color, religion, or national origin. The Fair Housing Amendments Act of 1988 extended the Fair Housing Act's principle of equal opportunity in housing to individuals with handicaps, making it unlawful to "discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection with such dwelling, because of a handicap of that person." 42 U.S.C. § 3604(f)(2)(A). Among the discriminatory practices prohibited by the FHAA is "a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford [the handicapped individual] an equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B); City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995).

  Whether a requested accommodation is required under the FHAA is "highly fact-specific, requiring case-by-case determination." United States v. California Mobile Home Park Mgmt. Co., 29 F.3d 1413, 1418 (9th Cir. 1994) ("Mobile Home"); Lyons v. Legal Aid Soc'y, 68 F.3d 1512, 1516 (2d Cir. 1995). "Ordinarily, the duty to make reasonable accommodations is framed by the nature of the particular handicap." Salute v. Stratford Greens Garden Apartments, 136 F.3d 293, 301 (2d Cir. 1998) (citations omitted). A defendant must incur reasonable costs and take modest, affirmative steps to accommodate the handicapped as long as the accommodations sought do not pose an undue hardship or a substantial burden. Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565, 578 (2d Cir. 2003) (citations omitted).

  To make out a claim of discrimination based on failure to reasonably accommodate, a plaintiff must demonstrate that: (1) he suffers from a handicap as defined by the FHAA; (2) defendants knew or reasonably should have known of the plaintiff's handicap; (3) accommodation of the handicap "may be necessary" to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation. Mobile Home, 107 F.3d at 1380.


  The defendants do not dispute that Bentley is disabled for the purposes of the FHAA and that they knew of her disability, nor do they deny that they refused to make the accommodation Bentley requested. Rather, the defendants contend that Bentley's request to move into apartment A2 at her current rent, rather than that unit's maximum legal rent, does not come within the FHAA's concept of accommodation because: (1) Bentley seeks to accommodate her poverty rather than her disability; and (2) offering the apartment at its maximum permissible legal rent under the state's disability-neutral rent stabilization laws fulfills a landlord's obligations under the FHAA. This court also addresses whether the plaintiff's proposed apartment swap is an accommodation to Bentley's "dwelling" as envisioned under the FHAA.

  A. Scope of "Dwelling" Under the FHAA

  I first consider whether a request to move between units of an apartment building is a cognizable accommodation under the FHAA, which permits reasonable accommodations necessary to afford an "equal opportunity to use and ...

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