The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This is a civil action by Maria Telesca ("Telesca" or the "Plaintiff"), who suffers from a type of dwarfism that impairs her mobility, seeking monetary damages and enforcement of Section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794 (2006). This lawsuit is brought against the defendants the Long Island Housing Partnership, Inc. ("LIHP"), Bay Shore Partnership Housing Development Fund Company, Inc. ("Bay Shore Partnership"), the Town of Islip, Beechwood South Wind Building Corp. ("Beechwood"), the New York State Division of Housing and Community Renewal ("DHCR"), and the Town of Huntington. The Plaintiff alleges that the Defendants received federal funds towards the construction of affordable housing on Long Island without complying with their obligations under federal disability laws and regulations. Presently before the Court are motions by LIHP, Bay Shore Partnership, the Town of Islip, and the DHCR, to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), and by the Town of Huntington for judgment on the pleadings under Fed. R. Civ. P. 12(c).
The following facts are alleged in the complaint, unless otherwise noted. The Plaintiff has Achondroplasia, a type of dwarfism that causes spinal chord compression and degenerative disc disease. The condition impairs her mobility, and causes consistent pain. To alleviate these symptoms, doctors have advised Telesca to avoid ascending or descending stairs, and recommended that she use a motorized scooter to reduce the pressure on her spine and to conserve energy. Due to her condition, Telesca depends primarily on Social Security disability for income, and as a result, needs to find housing that is both handicapped-accessible and affordable, which she claims is largely non-existent on Long Island.
In response to the affordable housing crisis on Long Island, state and local governments have created agencies to help address and remedy the problem. These agencies include certain defendants in this case: DCHR, a New York State agency that is responsible for the supervision, maintenance, and development of affordable low and moderate-income housing in New York State; LIHP, a not-for-profit corporation formed in 1987 with the mission to remedy Long Island's affordable housing crisis, that serves as an intermediary by bringing together federal and state funding agencies; its affiliate Bay Shore Partnership (collectively referred to as "LIHP"); and the Huntington Community Development Agency, an agency of the defendant Town of Huntington. These agencies assist in marshaling and coordinating the resources of the United States Department of Housing and Urban Development ("HUD"); local municipalities, such as the defendants Town of Islip and Town of Huntington; private businesses; and private developers, such as defendant Beechwood, to help construct affordable housing on Long Island.
Due to the high demand for affordable housing, the units are typically awarded to qualified low-income applicants through the process of a lottery. In the complaint, Telesca alleges that she applied to participate in the lotteries of two projects, one organized by Bay Shore Partnership, and the other by Huntington Community Development Agency.
The first lottery was for a unit in the South Wind Village in the Town of Islip. This project development was organized by LIHP, who brought together approximately $5 million dollars in HUD funds that were originally received by DCHR and the Town of Islip. It is alleged that the federal assistance came from grants known as Community Development Block Grant funds ("CDBG") and HUD HOME funds. The project consisted of 52 two-level homeowner units, constructed by Beechwood, and all offered for $84,000, which was well below the estimated $200,000 market value at the time of construction.
On June 25, 2001, Telesca was notified that she had been selected to purchase a home at South Wind Village. Upon being notified, Telesca informed LIHP that she would need a handicapped-accessible unit. However, she learned that none of the units were handicap accessible. Throughout the summer and into the fall of 2001 Telesca had meetings and conversations with representatives from LIHP, regarding accessibility alterations that would need to be done in order for her to reside in the unit. Telesca explained that her disability prevented her from navigating stairs, and that would prevent her from accessing the second floor of the unit. She further explained that she required either a single-level unit or an elevator. A chair lift, the suggested accommodation made by LIHP, was an imperfect solution because the lift would not be able to transport her motorized scooter to the second floor.
On October 31, 2001, Telesca received a memorandum from LIHP, stating, "After reviewing your suggestions, they are not reasonable and [LIHP] does not know whether you would be able to afford them. Installation of an elevator and elevator shaft you discussed with [the] architect would require a structural change to the unit and is not feasible. As previously discussed, this unit has already been built. A ranch style homes [sic] is not an option in this development as they are townhouse units." The memorandum concluded, "We look forward to your decision whether you plan to purchase the unit with some or all of the suggested changes as identified on the blueprints at your expense." Compl. ¶ 33.
On November 7, 2001, Telesca received a second memorandum from LIHP in which they agreed to pay for any accessibility alterations required, but did not make clear whether the purchase price would be increased to offset the costs of constructing and installing an elevator. Telesca requested additional information and an extension of time to contact individuals knowledgeable about disability law. LIHP allegedly refused, and informed her on November 15, 2001, that it was offering her home to the next qualified applicant.
In April 2002, Telesca filed an administrative complaint with HUD against LIHP for violations of the Fair Housing Act and the Rehabilitation Act. HUD referred the Fair Housing Act violation to the New York State Division of Human Rights, who determined that there was "no probable cause" to investigate. As to the Rehabilitation Act, HUD made the preliminary finding that it lacked jurisdiction over the matter. Telesca timely appealed the preliminary administrative determination by HUD, but to date has not received a decision. Telesca claims that in retaliation for this complaint, her subsequent applications to LIHP for affordable housing in new homeowner lotteries have been ignored.
The second project Telesca applied for is known as the Villages West in the Town of Huntington. The complaint alleges that the construction of the project was subsidized with CDBG funds from HUD. Unlike South Wind Village, the Villages West development included market-price homes as well as affordable homeowner units. The developer, McGovern-Barbash Associates, was awarded a density bonus to build affordable housing, that is, it could construct more homes than the Town of Huntington's zoning ordinance would otherwise allow, in exchange for a commitment to construct 60 homeowner units at below market rates. Telesca qualified and participated in the lottery for a unit in Villages West, but has not yet been selected to purchase a home. Currently, Telesca states that she is number 2,312 on a list of 2,904 applicants.
Telesca claims that the lotteries conducted by the defendants, including the ones with regard to the South Wind Village and the Villages West, violate federal law because the projects are partially funded by federal funds, but the lotteries are not affirmatively advertised or noticed to the disability community. In addition, she claims that the Rehabilitation Act and its implementing regulations require that 5% of units be set aside for home buyers with mobility impairments or 2% of units for home buyers with visual or auditory impairments.
1. The Rule 12(b)(6) Standard
In deciding a motion to dismiss under Rule 12(b)(6), a district court must "accept all of the plaintiff's factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999); see also Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L.Ed. 2d 80, 78 S.Ct. 99, 102 (1957)); see also Curto v. Edmundson, 392 F.3d 502, 503 (2d Cir. 2003). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." King v. Simpson, 189 F.3d 248, 287 (2d Cir. 1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1999)).
In addition to the forgoing standard governing motions under Rule 12(b)(6), the Court must be mindful of the relevant rules of pleading. In general, a complaint "need not include specific facts establishing a prima facie case of discrimination and instead must contain only a short and plain statement of the claim showing that the pleader is entitled to relief." Leibowitz v. Cornell University, 445 F.3d 586, 591 (2d Cir. 2006) (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed. 2d 1 (2002) and Fed. R. Civ. P. 8(a)(2)). In addition, "all pleadings shall be construed as to do substantial justice." Protter v.Nathan's Famous Sys., Inc., 904 F. Supp. 101, 105 (E.D.N.Y. 1995) (quoting Fed. R. Civ. P. 8(f)).
Upholding this liberal pleading standard is the requirement that the court not consider matters outside the pleadings. The court must confine its consideration "to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). Rule 12(b)(6) provides:
[i]f, on a motion . . . to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed. R. Civ. P. 12(b)(6) (emphasis added).
As indicated by the word "shall," the conversion of the motion to dismiss to one for summary judgment is mandatory if the court considers matters outside the pleadings. See Global Communications, Inc. v. City of New York, No. 05-3298, 2006 WL 2106632, Slip Op. at 8 (2d Cir. July 21, 2006); Amaker v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999). However, the court has discretion to "exclude the additional material and decide the motion on the complaint alone . . . ." Kopec v. Coughlin, 922 F.2d 152, 154 (2d Cir. 1991) (internal quotations omitted); see Moses v. Citicorp Mortg., Inc., 982 F. Supp. 897, 901--02 (E.D.N.Y. 1997).
In support of the motion by the defendants LIHP, Town of Islip, and DHCR to dismiss the complaint, they rely on a number of materials that have been submitted outside of the pleadings, including an affidavit, and numerous exhibits. They argue that the extraneous exhibits, which include filings submitted to the New York State Division of Human Rights and HUD, as well as documents such as the notices issued by HUD, and public documents filed in the Plaintiff's administrative proceedings, can be considered in this motion without conversion to summary judgment ...