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Kenneth Little and Albert v. Landsman Development Corporation and Phillips

September 5, 2012


The opinion of the court was delivered by: Michael A. Telesca United States District Judge


Plaintiffs Kenneth Little ("Little") and Albert Cafferelli ("Cafferelli") bring this action against defendants Landsman Development Corporation ("Landsman") and Phillips Village Preservation L.P., claiming that the defendants have violated their rights under the Fair Housing Act and the New York State Fire Prevention and Building Code. Specifically, plaintiffs, who allege that they are disabled tenants of the Phillips Village apartment complex, which is owned and operated by Landsman, claim that the defendants improperly removed wheelchair ramps used by the plaintiffs to access their respective apartments, thus depriving plaintiffs of reasonable and safe access to their apartments.

Plaintiffs move for a Preliminary Injunction seeking an Order from the Court directing defendants to reinstall the ramps during the pendency of the instant litigation. According to the plaintiffs, they will suffer irreparable harm if the ramps are not reinstalled because they will continue to be without one means of access to their respective apartments. Plaintiffs further allege that they are likely to succeed on the merits of their claims because the defendants' modifications fail to comply with New York State building codes, and removal of access ramps constitutes a violation of the Fair Housing Act.

Defendants oppose plaintiffs' motion on grounds that plaintiffs have failed to establish that they will likely succeed on the merits of their claim or that they have been subjected to irreparable harm. Specifically, the defendants contend that the removal of the pre-existing ramps was performed in conjunction with plans that were in compliance with all state and local building codes, and which were specifically approved by the local fire department. Defendants further contend that the removal of the ramps does not unlawfully limit or restrict access to any portion of the apartment complex.

For the reasons set forth below, I deny plaintiffs' request for a preliminary injunction.


Plaintiffs Kenneth Little and Albert Cafferelli are residents of the Phillips Village Apartment Community, a complex consisting of 33 apartment buildings and 500 residential units. According to the Complaint, Little uses a wheelchair for mobility, and Cafferelli has limited ambulatory mobility due to various medical conditions. Little rents a one-bedroom first floor apartment, and Cafferelli rents a two-bedroom, first floor unit. Both units are wheel-chair accessible through the primary, front-door access way.

Prior to renovations of their respective apartments, each of the units rented by the plaintiffs included a raised patio area at the back of the unit which was accessed by a sliding glass door. With respect to the plaintiffs' apartments, (but not all of the apartments in the complex), each rear patio area included a ramp which led to a large, unimproved grassy area. Aside from being mowed, the grassy area was not otherwise maintained or considered or intended by the defendants to be a common area. According to the defendants, Phillips Village maintains a recreation area including picnic tables, a baseball diamond, playground, and basketball court for the use and enjoyment of all tenants. By contrast, the large grassy yard which adjoins the back of the plaintiffs' apartments contains no sidewalks, tables, benches, or recreational equipment. Additionally, the yard is not maintained in the winter.

In late, 2011, Landsman announced to the residents of Phillips Village that it was undertaking a significant renovation project to be completed in 2012. According to the defendants, residents were notified of the proposed renovations, and several meetings were held in early 2012 to discuss the upcoming renovations. According to Landsman, prior to commencing with the renovations, the defendants received approvals for the proposed renovations from the Town of Webster Fire Department and the New York State Division of Housing and Community Renewal. On May 18, 2012, and June 14, 2012, respectively, Little and Cafferelli were notified that the renovations to their respective patios would begin shortly thereafter. Pursuant to the renovation plans, the rear patio of each plaintiff's unit was to be enclosed, and the ramps removed. Indeed all first-floor units were to have enclosed patios, with no access ramps or stairs from the grassy area to the patio. According to the plaintiffs, Little's ramp was removed on May, 18, 2012, and Cafferelli's ramp was removed on June 18, 2012. Thereafter, on July 20, 2012, plaintiffs filed the instant Complaint alleging that the removal of the ramps violates the New York State Building Code and the Fair Housing Act because it renders their units less-accessible than they were prior to the renovations being commenced, and because it removes an emergency escape route from their apartments.


I. Preliminary Injunction Standard

For a party to be entitled to a preliminary injunction, the party must demonstrate: (1) that it is subject to irreparable harm; and (2) that it will either likely succeed on the merits of the case, or that there are sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and that a balancing of the hardships between the parties weighs decidedly in favor of the party requesting the relief. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2nd Cir. 1979); Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 116 (2nd Circ., 2009). To establish irreparable harm, the party seeking relief must allege an injury "that [requires] a remedy of more than mere money damages." Ford v. Reynolds, 316 F.3d 351, 355 (2nd Circ., 2003)(quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989).

II. Plaintiffs have failed to establish that they are entitled to a preliminary injunction.

"The decision to issue injunctive relief 'rests in the sound discretion of the district court....'" WestLB AG v. BAC Florida Bank, 2012 WL 3135825, at *3 (S.D.N.Y., August 02, 2012)(citing Meringolo v. Power2ship, 2003 WL 21750009, at *3 (S.D.N.Y. Jul. 28, 2003). A preliminary injunction, however, "is an extraordinary and drastic remedy ... that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Gwathmey Siegel Kaufman & Associates Architects, LLC v. Mitchell Rales, 2012 WL 2247938, at *2 (June 15, 2012)(emphasis in the original). In the instant case, I find that plaintiffs have failed to make a ...

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