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Feeland v. Sisao LLC

April 1, 2008

MAXINE FEELAND, PLAINTIFF,
v.
SISAO LLC AND ELIEZAR SHARABI, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Maxine Freeland ("Freeland") commenced this action against Sisao LLC ("Sisao") and Eliezar Sharabi ("Sharabi") alleging that defendants failed to reasonably accommodate plaintiff's disability when they refused to accept her subsidized housing voucher, thereby violating the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. § 3601 et seq; New York State Human Rights Law, N.Y. Exec. Law §§ 296(5) and (18)*fn1 ; and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(5)(a)*fn2 . Plaintiff seeks declaratory and injunctive relief, compensatory and actual damages, and attorney's fees and costs. Presently before this Court is defendants' motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons stated below, defendants' motion is denied in part and granted in part.

Background

Except as otherwise noted, the following facts are taken from plaintiff's complaint and are presumed to be true for the purposes of this motion.*fn3

Plaintiff Freeland is a 54 year old woman residing at 372 Westminister Road, a/k/a 1120 Cortelyou Road, Apt 1D, Brooklyn, NY since 1992.

Plaintiff suffers from congestive heart failure and morbid obesity. Plaintiff is unable to work and is primarily confined to her home, except for doctor appointments and unspecified "other necessary appointments and activities." Complaint ¶ 30.

As a result of her disability, plaintiff has difficulty with mobility. She becomes tired easily and out of breath when walking. She does not walk more than 2 blocks at a time without stopping to catch her breath. It can take her as long as fifteen minutes to walk up three flights of stairs to her apartment. Plaintiff states that her problems are compounded by the side effects of the many medications that she takes for her condition, which include dizziness, frequent urination, forgetfulness, and heart palpitations.

Plaintiff receives Social Security disability payments of $735 per month. Her monthly rent is $793.37.

Defendant Sisao is a limited liability corporation and the owner of the apartment building in which the plaintiff resides. Its principal place of business is 1255 East 7th Street, 2nd Floor, Brooklyn, NY. Defendant Sharabi is the registered head officer of Sisao.

In 2003, plaintiff applied for a Section 8 voucher from the New York City Housing Authority (NYCHA). Section 8 of the United States Housing Act, authorizes the Secretary of Housing and Urban Development ("HUD") to enter into annual contributions contracts with public housing agencies ("PHA") pursuant to which the PHAs may enter into contracts with individual landlords to make assistance payments. See 42 U.S.C. § 1437f(b)(1). HUD has such a contract with NYCHA for tenant-based, subsidized, low-income housing in New York City. NYCHA issues vouchers to eligible families. Once a voucher has been issued to a family, the family has a certain amount of time to locate an apartment. NYCHA has the authority to grant extensions of search time and to grant additional search terms as a reasonable accommodation for disabled persons. Once families find an apartment whose owner will rent to them, they request approval of the unit from NYCHA. NYCHA then enters into a Housing Assistance Payments ("HAP") contract with the landlord and makes housing payments to the landlord directly. Recipients of Section 8 vouchers typically pay thirty percent of their adjusted monthly income for rent.

NYCHA issued a Section 8 voucher to plaintiff in February 2006. After plaintiff received her voucher she asked Sharabi to accept the voucher. Sharabi allegedly informed Freeland that he first had to consult with his silent partner. Subsequently, Sharabi informed Freeland that her Section 8 voucher would not be accepted.

Freeland alleges that she has made repeated requests for defendants to accept her voucher, but has been refused each time.

Freeland states that because of her disability she is unable to search for an apartment that will accept her voucher. Because of her inability to afford the rent of her apartment she has accrued rent arrears.

Defendant Sisao has commenced a summary eviction proceeding for payment of rent against Freeland in ...


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