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Picaro v. Pelham 1135 LLC

United States District Court, S.D. New York

September 19, 2014

PASQUALE PICARO, PRUDENCIO VALLE, JUDITH BRAINICK, SANDY CAUSE, individually and as next to minor child S.C., and LITTIA JAMES, as Public Advocate for the City of New York, Plaintiffs,


J. PAUL OETKEN, District Judge.

Plaintiffs, Pasquale Picaro and Prudencio Valle, [1] seek a preliminary injunction against Defendants, Pelham 1135 LLC, Joshua Goldfarb, Philip Goldfarb, Marc Goldfarb, Thomas Frye, and certain entities related to or controlled by those individuals (collectively "Defendants"), enjoining them from shutting down the only elevator at 1135 Pelham Parkway North in the Bronx for a period of up to five months. Plaintiffs claim that removing the elevator from service will violate the Americans with Disabilities Act, 42 U.S.C. § 12131; the Fair Housing Amendments Act, 42 U.S.C. § 3604 (f)(2); and the New York State and New York City Human Rights Laws, N.Y. Exec. Law § 290; N.Y.C. Admin. Code § 8-101. This Court held a hearing on Thursday, September 18, 2014, at which it heard testimony from Picaro, Theresa Sammarco (who acts with Valle's power-of-attorney), and Philip Goldfarb, and heard the arguments of counsel for the parties. For the reasons that follow, Plaintiff's request for a preliminary injunction is denied.

I. Background

Pasquale Picaro and Prudencio Valle are longtime residents of 1135 Pelham Parkway North ("1135"), a six-story apartment building in the Pelham Gardens neighborhood of the Bronx. Several months ago, they learned that Defendants were planning to repair or replace the sole elevator at 1135. This would shut down the elevator for up to five months. The planned start date of the outage was September 15, 2014.

Both Picaro and Valle have significant health problems. Picaro testified that he has suffered serious injuries in both knees and that he suffers from chronic asthma. Both conditions make it difficult from him to get up and down stairs. Valle suffers from advanced Alzheimer's disease, as well as a host of other health problems. Sammarco testified that Valle has a very difficult time leaving his apartment because his condition causes him to be easily disoriented. Getting up and down the stairs at 1135 would be exceedingly difficult.

Defendants and Plaintiffs have gone back and forth about how to accommodate their disabilities. The parties dispute who offered what to whom. But, based on their representations to the Court at the September 18 hearing, the last best offer from each party is now as follows:

Defendants' Offer: Defendants have offered to give Plaintiffs their choice of an apartment on the first floor of 1135 or a larger, more luxuriously appointed apartment in a building less than one mile away. Either apartment would be at no additional cost to Plaintiffs. Picaro-who drives-has been offered a parking spot in the garage of the neighboring building, should he choose that option, free of charge. Defendants will pay for a bonded moving company to transfer Plaintiffs' possessions to the new apartments and to bring them back when the repairs are completed. Defendants have agreed that Plaintiffs will remain in possession of their current units-which are rent-stabilized-for the duration of the repairs and will move back in at the conclusion of the repairs with no change in the rent-stabilized status of their current units.

Plaintiffs' Request: Plaintiffs have requested that Picaro and Valle remain in their current units throughout the repairs. They ask that they be reimbursed for the costs of a "para-transit service, " as Plaintiffs' counsel has characterized it. Under Plaintiffs' plan, the service would come to Plaintiffs' apartment once per week, carry them down the stairs in a wheelchair or other specialized chair, and carry them back up the stairs after their time outside. The roundtrip service is based on the weight of the carried person and is estimated to cost approximately $525 for a 180-pound person. Along with this service, Plaintiffs ask for a porter to be present in the building who can carry groceries, packages, mail, and the like up and down the stairs for them. They ask that the porter be available for four hours per day. Finally, they ask that Defendants arrange for their mail and packages to be delivered to the superintendent of the building for the porter to retrieve.

II. Discussion

Plaintiffs seek a preliminary injunction to stop what they claim is a violation of the ADA, the FHAA, the NYSHRL, and the NYCHRL.

A. Preliminary Injunction Standard

To get a preliminary injunction, a movant in the Second Circuit must show "(a) irreparable harm; and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Albert v. Watkins Glen Int'l, Inc., 2010 WL 5419041 (W.D.N.Y. Dec. 23, 2010) (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979); Jackson v. Johnson, 962 F.Supp. 391, 392 (S.D.N.Y. 1997)).

B. Legal Standard under the ADA, FHAA, NYSHRL, and NYCHRL

Because the standards for discrimination against the disabled are interpreted similarly in the ADA and FHAA, Plaintiffs' federal law claims can be analyzed together. See Toyota Motor Manuf., Ky. Inc. v. Williams, 534 U.S. 184, 193-94 (2002); Blatch ...

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