United States District Court, E.D. New York
May 3, 2005.
DAPHNE BENTLEY, Plaintiff,
PEACE AND QUIET REALTY 2 LLC, A.G. PARKER INC., JOHN PARKER, and ROBERT THOMAS, Defendants.
The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge
MEMORANDUM & ORDER
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.
II. THE FAIR HOUSING ACT
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 enjoy a dwelling."
42 U.S.C. § 3604(f)(3)(B) (emphasis added).
In interpreting the terms of a statute, we look first to the
language of the statute itself. See Auburn Hous. Auth. v.
Martinez, 277 F.3d 138, 143 (2d Cir. 2002) (citing Mallard v.
United States Dist. Court, 490 U.S. 296, 300 (1989)).
"Dwelling," as set forth in 42 U.S.C. § 3602(b) means "any
building, structure, or portion thereof which is occupied as, or
designed or intended for occupancy as, a residence by one or more
families, and any vacant land which is offered for sale or lease
for the construction or location thereon of any such building,
structure, or portion thereof." This definition unambiguously
extends beyond the walls of an individual unit that a disabled
tenant may inhabit to the entire apartment building itself. In
addition to falling within the statutory definition of
"dwelling," Bentley's request to move to another apartment unit
comports with the purpose of the FHAA. The Supreme Court has
ruled that the FHA must be given a "generous construction" in
order to carry out "a policy that Congress considered to be of
the highest priority." Trafficante v. Metropolitan Life Ins.
Co., 409 U.S. 205, 211-12 (1972). See also Garza v. Raft,
No. C 98 20476, 1999 WL 33882969 (N.D. Cal. Nov. 30, 1999) (rejecting narrow reading of FHAA regarding modifications of
common areas because reading would be inconsistent with FHAA's
underlying purpose, which is to make housing broadly available to
persons with disabilities). The FHAA was "a clear pronouncement
of a national commitment to end the unnecessary exclusion of
persons with handicaps from the American mainstream." Helen L.
v. DiDario, 46 F.3d 325, 333 n. 14 (3d Cir. 1995) (quoting
H.R. Rep. No. 711, 100th Cong., 2d Sess. 18, reprinted in 1988
U.S.C.C.A.N. 2173, 2179). Bentley asserts that because her
handicap limits her ability to move up and down the stairs to her
apartment unit, she is only able to leave her unit when
absolutely necessary. Moving to a lower-floor unit will allow her
to leave 512 Eastern Parkway more or less at will and interact
with the community in which she has lived for over twenty years.
Because the requested accommodation would reduce the barriers to
Bentley's isolation from her community, it furthers the spirit
and purpose of the FHAA.
Courts outside the Second Circuit have also determined that a
request to transfer to other units within an apartment building
is cognizable under the FHAA. In Roseborough v. Cottenwood
Apartments, No. 94 C 3708, 1994 WL 695516 (N.D. Ill. Dec. 9,
1994), the plaintiff became confined to a wheelchair four months
after moving into her third floor apartment. She then brought a
claim under the FHAA alleging that her landlord refused her
requests to be moved to an apartment on a lower floor. In denying
the defendants' motion to dismiss, the court stated:
Although a tenant who signs a lease for a particular
apartment generally has no right to move to another
apartment in the same building or complex, the ?
complaint presents a distinguishable situation. The
plaintiff? assert[s] that [her] confinement to a
wheelchair made the third floor apartment unsuitable
several months after she took possession of the third
floor apartment. Given the defendant's knowledge of
the plaintiff's disability, the plaintiffs' desire
(and alleged need) to relocate to a lower floor, and
the alleged availability of suitable vacant lower floor apartments, the defendant was
under a duty to reasonably accommodate the
plaintiffs. Whether relocating the plaintiffs under
the circumstances transcended the defendant's duty to
reasonably accommodate the plaintiffs is a question
Roseborough, 1994 WL 695516 at *3. In addition, in Groner v.
Golden Gate Apartments, 250 F.3d 1039
(6th Cir. 2001), the court
considered possible accommodations for a mentally ill tenant that
included transfer to another unit within his apartment building.
This particular accommodation was ultimately rejected as
unreasonable and ineffective, not because it was outside the
scope of potential relief offered under the FHAA. Groner,
250 F.3d at 1046. Thus, consistent with the statutory definition of
"dwelling," the generous construction afforded to the FHAA, and
case law wherein courts considered similar accommodation
requests, this court finds that Bentley's request to move to a
lower-floor unit within her apartment building potentially
affords her the opportunity to use and enjoy her "dwelling"
within the meaning of the FHAA.
B. The Requested Accommodation is Framed by the Nature of the
The defendants argue that Bentley's request to rent A2 at her
current rent of $820.64 per month, and not that unit's maximum
legal rent of $1,000.30, is essentially an accommodation to the
plaintiff's poverty and not her disability, and consequently is
beyond the scope of the FHAA. The defendants derive principal
support for their argument from Salute v. Stratford Greens
Garden Apartments, 136 F.3d 293, 302 (2d Cir. 1998). Salute
involved two disabled plaintiffs who claimed that the FHAA
required a landlord to accept their Section 8 housing
certificates to accommodate their disabilities where, with the
exception of preexisting tenants, the landlord did not participate in the Section 8 program.*fn1 In rejecting
the plaintiffs' claim, the Second Circuit reasoned that the
plaintiffs sought "an entitlement to an accommodation that
remedies their economic status, on the ground that this economic
status results from their being handicapped. We think it is
fundamental that the law addresses the accommodation of
handicaps, not the alleviation of economic disadvantages that may
be correlated with having handicaps." Salute, 136 F.3d at 301.
The court concluded that "[t]he FHAA does not elevate the right
of the handicapped poor over the rights of the non-handicapped
poor. Economic discrimination such as the refusal to accept
Section 8 housing tenants is not cognizable as a failure to
make reasonable accommodations, in violation of § 3604(f)(3)(B)."
Id. at 302.
The Second Circuit's limit on economic accommodations in
Salute has little application to the instant action. In
Salute, the plaintiffs sought an accommodation that remedied
their economic status, not their disability. Because the
requested accommodation was not "framed by the nature of their
handicap" the court determined it was not cognizable under the
FHAA. Id. at 301 (citations omitted). Unlike the plaintiffs in
Salute, Bentley seeks an accommodation that directly relates to
her handicap, specifically her inability to walk up and down the
stairs to her apartment unit.
The defendants further contend that Bentley is required to
assume the costs associated with her proposed accommodation.
According to the defendants, they have complied with the FHAA by offering Bentley apartment A2 at its maximum legal rent.
However, contrary to the defendants' reasoning, it is the housing
provider, and not the disabled individual who is potentially
required to assume the costs of a proposed accommodation. Under
the FHAA, a landlord may be "required to incur reasonable costs
to accommodate [a tenant's handicap] provided such accommodations
do not pose an undue hardship or a substantial burden." See
Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 335 (2d Cir. 1995)
(cooperative complex could be required to incur reasonable costs
associated with providing disabled resident parking); Hubbard v.
Samson Mgmt. Corp., 994 F.Supp. 187 (S.D.N.Y. 1998) (where
apartment complex had a mix of free and fee-paid parking spaces,
landlord's proposal to require disabled tenant to pay for parking
close to her apartment unit was not a reasonable accommodation).
Samuleson v. Mid-Atlantic Realty Co., 947 F.Supp. 756 (D.Del.
1996) (mentally ill tenant stated claim under FHAA that landlord
unreasonably assessed rent and later charges after he was forced
to terminate lease due to mental condition). Indeed, "the history
of the FHAA clearly establishes that Congress anticipated that
landlords would have to shoulder certain costs involved, so long
as they are not unduly burdensome." Mobile Home,
29 F.3d at 1416. Here, Bentley seeks an accommodation for her disability
without being forced to assume additional rental expenses. This
is exactly the type of accommodation that falls with the purview
of the FHAA. Whether the accommodation is "reasonable" is a
C. A Disability-Neutral Policy Does Not Automatically Preclude
an Inquiry Into the "Reasonableness" of the Proposed
The defendants argue that because rent stabilization laws
affect handicapped and nonhandicapped residents equally, Bentley
is not entitled to a waiver of the vacancy increase to which the defendants are entitled under New York's rent
stabilization laws. By offering Bentley apartment A2 at its
maximum legal rate, the defendants assert that they have
fulfilled the FHAA's mandate to provide an "equal opportunity" to
Bentley by putting her on the same footing as a non-disabled
individual. Accordingly, the defendants assert that allowing
Bentley to rent apartment A2 at less than its legal rate is
beyond the scope of the FHAA because it would provide Bentley
with a preference, rather than an equal opportunity, to use and
enjoy that apartment.
The defendants' reasoning was largely rejected in US Airways
v. Barnett, 535 U.S. 391 (2002).*fn2 In Barnett, an
airline cargo handler requested, as accommodation for his back
injuries, an exception to the company's seniority system so that
he could transfer to a less physically demanding position.
Barnett, 535 U.S. at 393-94. The airline refused the
plaintiff's request, arguing that because the ADA ensures equal
treatment of persons with disabilities, any sort of preferential
exception to a disability-neutral policy was outside the scope of
the "reasonable accommodations" requirement. Id. at 397.
Rejecting the airline's argument, the Court held that "[t]he
simple fact that an accommodation would provide a `preference'
in the sense that it would permit the worker with a disability to
violate a rule that others must obey cannot, in and of
itself, automatically show that the accommodation is not
`reasonable'." Id. at 398. Although a seniority system would
trump the right to be accommodated in most cases, the Court ruled
that the plaintiff had the right to demonstrate that the requested
accommodation was reasonable on the particular facts because
special circumstances might alter the important expectations
inherent in a seniority system. Id. at 405. The plaintiff could
show, for example, that the employer frequently exercised a
unilateral right to change the seniority system such that
employee expectations were reduced to the point where an
accommodation to a disabled individual would not make a
As in Barnett, the mere fact that Bentley seeks a preference
not afforded to nonhandicapped individuals does not preclude this
court from proceeding to an inquiry into the reasonableness of
Bentley's request. The defendants are not mandated under state
rent stabilization law to charge Bentley the maximum legal rent
for apartment A2. See 448 West 54th Street Corp. v.
Doig-Marx, 5 Misc.3d 405, 2004 WL 2059422 (N.Y. City Civ. Ct.
2004) (allowing preferential rent at rate lower than that
specified under rent control law for duration of tenancy).
Clearly, in the ordinary run of cases, the landlord of a
rent-stabilized building is not required to forgo the opportunity
for a vacancy increase merely because a disabled individual seeks
to inhabit that apartment unit. Here, however, Bentley asserts
that the defendants would actually profit from the proposed
move because, were she to leave her current unit, also owned by
the defendants, the defendants would be entitled to a
significantly higher vacancy increase for that unit than for
apartment A2. The defendants briefly counter that any purported
profit is illusory because, unlike apartment A2, Bentley's
current unit requires extensive renovations and because fourth
floor walk-ups are more difficult to rent than first floor units.
Although the defendants raise legitimate concerns that Bentley's
accommodation is unduly burdensome, the court is currently
presented with the limited issue of whether the plaintiff's
request is an "accommodation" within the meaning of the FHAA. Having now
determined that Bentley's request falls within the FHAA's concept
of "accommodation," this court may proceed to an inquiry into the
The defendants' motion to dismiss for lack of jurisdiction is
denied because the FHAA contemplates the accommodation proposed
by the plaintiff. It is important to note, however, what this
court has not held. I have not decided the issue of whether the
defendants failed to reasonably accommodate Bentley by refusing
her request. Whether a requested accommodation is required under
the FHAA is highly fact-specific, requiring a case-by-case
determination. Hubbard, 994 F.Supp. at 190 (citations omitted).
In order to determine whether Bentley's requested accommodation
poses an undue burden to the defendants, the court will hold a
hearing on Tuesday, May 10, 2005 at 11:30 a.m., wherein the
parties will submit qualified witness testimony concerning what
burden to the defendants, if any, would result from the proposed
accommodation. Evidence presented at the hearing shall cover the
following issues: 1) the vacancy increase to which the defendants
are entitled to apartment D3, in the event it was vacated by
Bentley; 2) the "rentability" of apartment A2 over D3; 3) the
maximum legal rent for apartment A2 under Rent Stabilization Code
§ 2521.2 following vacancy by Bentley in the event she received a
preferential rent for this unit for the duration of her tenancy;
4) the administrative burden, if any, to the defendants in
providing Bentley with a preferential rent; 5) any other issues
relevant to the reasonableness of Bentley's request. The parties
are free to stipulate to facts prior to the hearing concerning
the questions presented above. The defendants continue to be enjoined from leasing apartment
A2 pending the resolution of the plaintiff's claims. As already
noted, the TRO against apartment B2 has been lifted.