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Dinapoli v. DPA Wallace AVE II

March 23, 2009


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


DOC #: _________________


Defendants DPA Wallace Ave. II, LLC ("DPA Wallace") and the New York City Housing Authority ("NYCHA") (collectively "Defendants"), move separately to dismiss an amended complaint filed by pro se Plaintiff Dominick J. DiNapoli. Plaintiff, who claims that he is disabled, alleges a violation of various federal and state anti-discrimination laws based on the Defendants' failure to provide him with easy access from his building's elevator to the street between the hours of 5 p.m. and 8 a.m., essentially locking Plaintiff into or out of his apartment during these times. For the reasons discussed below, NYCHA's motion to dismiss is GRANTED, and DPA Wallace's motion is GRANTED in part and DENIED in part.


Plaintiff is a 62-year-old tenant living on the fourth floor of an apartment building located at 2134 Wallace Avenue in Bronx County, New York. He has lived there since September 1, 2003. (See Amended Complaint ("Am. Compl.") Ex. 2 at 1, 2.)*fn2 Plaintiff alleges that he suffers from various physical ailments and disabilities that limit his mobility and cause him severe pain and other associated discomforts. (Id. Ex. 2 at 3, id. Ex. 2 at Ex. C and D.)*fn3 Occasionally he is unable to walk up or down steps. (Id. at 8.) The Department of Veterans Affairs recognizes Plaintiff as a disabled veteran and helped him obtain his current residence through the United States Department of Housing and Urban Development's ("HUD")Housing ChoiceVoucher Program ("Section 8 program"). (Id. Ex. 2 at 2, 4.) Since September 2003, NYCHA, as administrator of the Section 8 program, has subsidized a portion of Plaintiff's rent and Plaintiff has been responsible for the remainder. (See Declaration of Jeffrey Niederhoffer ("Niederhoffer Decl.") Ex. A, B, and K). DPA Wallace is the landlord and owner of 2134 Wallace Avenue. It acquired the building from the prior owner on December 16, 2005. (See Am. Compl. at 5; see also id. Ex. 2 at 2.).

Plaintiff alleges a host of problems with his living situation, most of which are more appropriate for housing court.*fn4 While Mr. DiNapoli's factual allegations are not completely clear, the crux of his Complaint is that DPA Wallace restricts the elevator from travelling to the building's basement between 5 p.m. and 8 a.m. (See Am. Compl. 3-4, 8.) The basement door is the only entrance and exit to the building that does not have stairs and is also the closest entrance to the area where Plaintiff parks his car. Much of Plaintiff's Complaint concerns his request for keys to the elevator and to rear-door entrances to the building. Plaintiff alleges that the previous building owners gave him keys to the elevator, keys to the basement rear door entrance, and keys to a first-floor rear door entrance that involved a 12-step climb. These rear entrances are allegedly much easier for Plaintiff to access than the front door of the building, which contains five steps and is a long walk from where he parks. (See id. Ex. 2 at 4-5.) Plaintiff alleges that DPA Wallace managers, unlike the prior owner, do not accommodate his disability because they will not give him a key to unlock the elevator to reach the basement, nor will they give him a key to the first-floor rear door entrance, which would presumably provide him access to the elevator even when it was restricted from going to the basement. DPA Wallace allegedly does provide Mr. DiNapoli with a key to the rear basement entrance, but without a key to unlock the elevator Mr. DiNapoli cannot access his apartment from the basement-the only exit or entrance without steps-between 5 p.m. and 8 a.m. (See Am. Compl. at 3-4; id. Ex. 2 at 5-7.)

Plaintiff claims that NYCHA denied his requests for accommodation and assistance in relieving the elevator access problem. Plaintiff allegedly wrote and spoke to NYCHA numerous times regarding his situation, but to no avail. (See Am. Compl. at 6.) Plaintiff alleges that DPA Wallace's failure to provide him keys and NYCHA's failure to accommodate his complaints show that Defendants discriminate against him as a disabled individual.

Plaintiff filed his original Complaint on February 27, 2007 against DPA Wallace and the City of New York, alleging violations of the Americans with Disabilities Act ("ADA"), Rehabilitation Act of 1973 ("Rehabilitation Act"), Fair Housing Amendments Act of 1988 ("FHAA"), Equal Opportunity Law, U.S. Constitution, Civil Rights Act, and the Declaration of Independence. Plaintiff further alleged that Defendants violated HUD rules, the Heyer v. New York City Housing Authority*fn5 Stipulation and Order of Settlement, the decision in Williams v. New York City Housing Authority,*fn6 and state laws pertaining to the administration of the Section 8 program. (See Am. Compl. Ex. 2 at 36.) Plaintiff also sought monetary damages of more than $2 million. (Id. Ex. 2 at 39.)

DPA Wallace filed its motion to dismiss on April 13, 2007 and the City of New York followed with its motion to dismiss on May 11, 2007. On March 11, 2008, the Court granted New York City's motion to dismiss but reserved judgment on DPA Wallace's motion pending service on and the appearance of NYCHA. Plaintiff then filed his Amended Complaint on April 24, 2008, naming DPA Wallace and NYCHA as defendants. DPA Wallace filed its motion to dismiss the Amended Complaint on August 1, 2008 and NYCHA followed with its motion to dismiss on August 8, 2008.


I. Applicable Standard of Review

In deciding a Rule 12(b)(6) motion, the court must accept the factual allegations in the complaint as true, and draw all reasonable inferences in plaintiff's favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007). A complaint must plead enough facts to be plausible on its face, Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), and the complaint may be dismissed where it "appears beyond doubt" that the plaintiff can prove no facts that would entitle him to relief. Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (citation omitted). Although "the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

Courts hold complaints prepared by pro se plaintiffs to "less stringent standards than formal pleadings drafted by lawyers." Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). "In essence, a pro se litigant should be afforded every reasonable opportunity to demonstrate ...

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