Plaintiff's attorneys: Armen H. Merjian, Esq. Housing Works, Inc.
Defendants' attorneys: Marcia K. Raicus, Esq. Smith Mazure Director Wilkins Young & Yagerman PC
DEBRA SILBER, J.
Recitation as required by CPLR 2219(a) of the papers considered in the review of defendants Phoenix House and Sydney Hargrove's motion to dismiss the complaint.
PAPERS - NUMBERED
Notice of Motion and Exhibits Annexed 1 - 15
Memorandum of Law in Opposition to
Defendants' Motion to Dismiss .. 16 - 30
Reply Affirmation 31
Memorandum of Law in Further Support
of Defendants' Motion to Dismiss .. 32
Sur-reply Memorandum of Law in
Opposition to Defendants' Motion to Dismiss 33
Upon the foregoing cited papers, the decision/order on this motion is as follows:
Defendants Phoenix House and Sydney Hargrove bring this pre-answer motion to dismiss plaintiff Wilson's action against them. Plaintiff opposes the motion.
For the reasons set forth herein, the defendants' motion is granted in part and denied in part.
Defendants aver that pursuant to CPLR §3211(a)(7), dismissal of plaintiff's complaint is warranted as plaintiff fails to state any legally cognizable cause of action. Defendants also move, pursuant to CPLR §3211(a)(3), to dismiss plaintiff Wilson's claim for injunctive relief on the grounds that the plaintiff lacks standing to sue for such relief. Finally, defendants move on the basis of decisional law to dismiss plaintiff Wilson's claim for punitive damages, on the basis that plaintiff fails to allege facts sufficient for such a claim.
The following facts are taken almost verbatim from the plaintiff's November 15, 2011 complaint, and are assumed to be true for the purposes of this motion.
On March 27, 2008, plaintiff Sabrina (Sabire) Wilson—a thirty-two-year-old, homeless transgender (male-to-female) woman, diagnosed with gender identity disorder (GID) at sixteen—was arrested for a drug offense. It was her first arrest for a felony. In August of 2008, she entered into a plea agreement which provided that she would participate in a residential drug treatment program as an alternative to prison. On December 23, 2008, plaintiff entered into the residential drug treatment program at Phoenix House in Brooklyn, New York. It is unclear why there was such a long gap in time, and the court assumes, but does not know, that it was caused by a waiting list for a place in the program.
During the initial admission interview at Phoenix House, plaintiff Wilson disclosed her transgender identity. The admissions' counselor explained to plaintiff that, because she was biologically male, she was required to use the men's bathroom facilities and share a room with men. Plaintiff did not object to this during her initial interview as she "sens[ed] she had no choice" but to comply with this requirement. Prior to plaintiff's arrival, the staff at the facility was thus informed of plaintiff's transgender status.
The day after plaintiff was admitted, on Christmas Eve, defendant Sydney Hargrove, the director of the induction unit, called plaintiff into his office. During this meeting Hargrove asked plaintiff whether her hair was "real" and, upon learning plaintiff wore a wig, told plaintiff she was not allowed to wear a wig at Phoenix House. It is unclear from the plaintiff's complaint whether any explanation was offered to her as to why she could not wear a wig, although the complaint notes that some female participants in the program did wear wigs. Approximately one month later, the senior counselor at the induction unit informed the plaintiff she was no longer allowed to wear high heeled shoes; the plaintiff's complaint notes that some female participants in the program sometimes wore high heels. According to the plaintiff's complaint, the counselor said Hargrove expressed concern that the plaintiff might fall and hurt herself. Aside from the prohibition of wigs and heels, the complaint does not allege that defendants required any other changes to plaintiff's wardrobe or appearance. Plaintiff made excellent progress, and she was asked to serve as a "Resident Structure Senior Coordinator" after a few weeks.
Plaintiff was required to attend meetings and support groups as a condition of her residential inpatient treatment at Phoenix House. During such meetings, it was typical for women to sit on one side of the room and men on the other. An individual running one of these groups informed plaintiff that defendant Hargrove "want[ed] her to sit on [the male] side [of the class]." Defendant Hargrove himself at one point instructed plaintiff to sit with the men during these meetings.
In early January 2009, a senior counselor permitted plaintiff to participate in a new gender-specific women's support group. Some female group members expressed discomfort at plaintiff Wilson's presence and Wilson was asked to leave. Plaintiff met with defendant Hargrove to request re-admission to this group, but Hargrove denied her request, and said plaintiff never should have been given permission to participate in the women's group in the first place. At this time, plaintiff lodged a complaint with Hargrove that she should not be required to share sleeping or bathroom accommodations with men. Defendant Hargrove did not make any changes to plaintiff's sleeping or bathroom arrangements, and told her "you should adjust." After her meeting with Hargrove, plaintiff appealed personally to the members of the women's group and secured their consent for her to attend the women's group sessions. Nevertheless, defendant Hargrove maintained that plaintiff could not attend the women's support group, despite the consent of the other members.
During her fourth week in the program, plaintiff was informed by another counselor that defendant Hargrove believed that Wilson should be transferred to a different residential treatment program because he believed that her needs could not be met at Phoenix House due to her transgender status. The counselor told her that if a suitable program could not be located she would most likely be sent to jail. Some of the other residents, upon learning of her impending transfer, drew up a petition recommending that defendant Hargrove reconsider his decision. Thirty-eight residents signed the petition. Plaintiff also wrote a letter to defendant Hargrove "pleading" that she be allowed to stay at Phoenix House. Plaintiff received no response to this letter, nor was there any response to the petition submitted by the residents. Defendant Hargrove did not identify a treatment program that was part of the court's alternative to incarceration program which plaintiff could transfer to.
At this point, plaintiff had noticed she had not advanced to the next step with the rest of her treatment group and new residents had arrived. Plaintiff requested another meeting with Hargrove. It was at this time that Hargrove confirmed his decision to transfer plaintiff from Phoenix House, stating, "[w]e can't suit your needs as a transgender in our program." Despite plaintiff's inquiries and requests, an alternative treatment program that could "meet her needs" was not located by Phoenix House, and plaintiff, angry and frustrated that they would not let her complete the treatment program, left Phoenix House without permission. She was ultimately resentenced to 2½ years in prison.
On September 2, 2010, plaintiff filed a lawsuit pro se in the United States District Court, Southern District of New York (Docket No. 10 Civ. 7364) against Phoenix House and Hargrove. Therein, plaintiff brought a claim for injunctive relief and compensatory damages under 42 U.S.C. § 1983, asserting that the defendants discriminated against her on the basis of sex or sexual orientation in violation of the Equal Protection Clause. Plaintiff also brought a false advertising claim against Phoenix House under §43 (a) of the Lanham Act, 15 U.S.C. § 1125 (a) (1) (B), based on representations on its website that it accepted lesbian and gay patients. Finally, plaintiff brought a state law claim alleging that defendants violated § 296 of the NY Exec. Law, which is the New York State Human Rights Law (NYSHRL), when they discriminated against her by engaging in housing discrimination based upon her disability and failed to make reasonable accommodations for her disability, which is known as Gender Identity Disorder (GID).
Defendants filed a motion to dismiss plaintiff's Federal complaint on the grounds that: (1) plaintiff failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA); and (2) that she failed to state a claim upon which relief could be granted pursuant to Rule 12 (b) (6), of the Fed.R.Civ.P. By order of Judge Denise Cote, the plaintiff's claim for compensatory damages under §1983 was dismissed, as was her claim under §43 (a) of the Lanham Act. Plaintiff's claim for injunctive relief pursuant to §1983 and her NYSHRL claim survived. Judge Cote's unpublished opinion and order, dated August 1, 2011, clarified, as discussed further herein, that the NYSHRL claim of discrimination in housing survived because defendants "h[ad] not identified any support for their argument that Phoenix House [was] not the owner, lessor, sub-lessor, assignee, or managing agent of' a housing accommodation' within the meaning of §§ 292(10) and 296(18)(2)." See, Wilson v. Phoenix House, 2011 U.S. Dist. LEXIS 84240. As regards the § 1983 claim, Judge Cote held that plaintiff's claim for compensatory damages pursuant to § 1983 could not proceed because it was barred by the PLRA since Wilson's mental anguish was not based on any prior physical injury and Section 1997e(e) of the PLRA prohibits prisoners from bringing a "Federal civil action . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). However, Judge Cote concluded that plaintiff's claim for injunctive relief could proceed, as "Wilson has plead a sufficiently close nexus between the state and Phoenix House such that the defendants' actions constitute "state action" for purposes of Wilson's § 1983 claim".
Plaintiff then requested that her case be voluntarily dismissed, without prejudice, which was so-ordered by Judge Cote on September 6, 2011. Plaintiff thereafter filed the instant action on November 15, 2011.
Subsequent to Judge Cote's decision, the United States Supreme Court determined that prisoners serving Federal sentences in privately-owned federally contracted-for prisons pursuant to "privatization" by the Bureau of Prisons were barred from suing for Constitutional violations under §1983, as such prison is not a government facility staffed by government employees, and therefore, such prisoners are left, as Justice Ginsberg noted in her dissent, "to the vagaries of state tort law". Minneci v. Pollard, 132 S.Ct. 617 (2012). Thus, the future success of plaintiff's claims under §1983, claims concerning a state sentence carried out in a privately-owned drug treatment facility, were cast into doubt.
It is unclear why it took defendants almost two years to submit this pre-answer motion which is presently before the court, but plaintiff's attorneys consented to the extension of time in a stipulation.
Plaintiff's suit alleges five causes of action:
 that defendants committed housing discrimination and discriminated against her on the basis of her (GID) disability on several occasions and in January of 2009 when they indicated they would no longer continue to house Ms. Wilson, thereby violating the New York State Human Rights Law (NYSHRL), Exec. Law § 296(5)(a);
 that defendants violated the NYSHRL, Exec. Law § 296(18), because they refused to make reasonable accommodations in their "rules, practices, or services, " during plaintiff's stay which were necessary so plaintiff, a disabled person, could have an equal opportunity to use and enjoy a dwelling;
 that defendants violated the New York City Human Rights Law, (NYCHRL) N.Y.C. Admin. Code § 8-107(5)(a), by discriminating against her on the basis of her disability (GID) on several occasions and in wrongfully deciding to terminate her from the program;
 that defendants violated the New York City Human Rights Law, N.Y.C. Administrative Code §8-107(15), because they refused to make reasonable accommodations for Ms. Wilson, a person with a disability, to enable her to enjoy the "right or rights in question provided that the disability is known or should have been known by the covered entity"; and
 that defendants violated the New York City Human Rights Law, N.Y.C. Admin. Code §8-107(5)(a), insofar as they engaged in gender based housing discrimination when, among other instances of discrimination, they indicated that they would no longer continue to house Ms. Wilson at their facility and would terminate her from the program in January of 2009.
Plaintiff requests monetary compensation and punitive damages as well as declaratory relief and an injunction against defendants. Specifically, plaintiff seeks:
 damages in an amount no less than $2, 000, 000.00 to compensate her for " economic loss, loss of rights, as well as for the humiliation, embarrassment, and emotional distress suffered" due to defendants' discriminatory conduct; and
 punitive damages; and;
 a declaratory judgment that defendants violated Executive Law §291 et seq. (NYSHRL) and N.Y.C. Admin. Code §8-107 et seq. (NYCHRL) because their conduct in this case amounted to discriminatory practices; and
 an order enjoining defendants, their agents, employees, and successors, and all other persons in active concert or participation, from:
(a) discriminating against any person in the terms, conditions or privileges of rental of a dwelling because of disability or gender;
(b) failing to make reasonable accommodations in rules, practices or services when such accommodations are necessary to afford a person with a disability equal opportunity to use and enjoy a Phoenix House dwelling;
(c) aiding, abetting, inciting, compelling or coercing the doing of any of the acts forbidden by the New York State and City Human Rights Laws; and
 an order "compelling" defendants and their agents, employees and successors, and all other persons in active concert or participation to:
(a) make all necessary modifications to their policies, practices and procedures to comply with the New York State and New York City Human Rights Laws;
(b) train all management, agents, and employees about the State and City Human Rights Laws, particularly with respect to transgender rights;
(c) develop written procedures on the proper treatment of transgendered clients, to be distributed to ...