United States District Court, S.D. New York
[Copyrighted Material Omitted]
Thomas Logan, Plaintiff, Pro se, Tuckahoe, N.Y.
For Defendant: Joan M. Gilbride, Esq., Kaufman, Borgeest & Ryan, L.L.P., New York, N.Y.
OPINION AND ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.
Plaintiff Thomas Logan (" Logan" ), proceeding pro se, brings this Action against Defendants Irina Matveevskii (" Matveevskii" ), Jeff Zuckerman (" Zuckerman" ), Mark Kamensky (" Kamensky" ), Tuckahoe Housing Authority (" THA" ), Adolfo Carrión (" Carrión" ), and Mirza Orriols (" Orriols" ). Matveevskii, Zuckerman, Kamensky, and THA (collectively, " the THA Defendants" ) move for summary judgment, while Carrión and Morales (collectively, " the HUD Defendants" ) move to dismiss the claims asserted
against them. For the following reasons, the THA Defendants' Motion for Summary Judgment is granted, as is the HUD Defendants' Motion to Dismiss.
A. Factual Background
Plaintiff is a resident of 31 Midland Place in Tuckahoe, New York, where he has lived for " [a]pproximately 27 to 30 years." (Thomas Logan Dep. Tr. 8, Apr. 22, 2013 (" Logan Dep. Tr." ); see also THA Defs.' Statement of Material Facts Pursuant to Local R. 56.1 (" THA Defs.' Rule 56.1 Statement" ) ¶ 1 (" Plaintiff . . . has been a resident of 31 Midland Place . . . for approximately twenty-seven to thirty years." ).) Plaintiff lives in a third-floor apartment at 31 Midland Place with his mother, Anne Gunther, and his brother, John Gunther. (THA Defs.' Rule 56.1 Statement ¶ ¶ 1-2.) 31 Midland Place is one of " nine residential buildings containing approximately 149 units" that THA " owns and operates" as " federal subsidized housing for the Tuckahoe community." (THA Defs.' Rule 56.1 Statement ¶ 3; see also Logan Dep. Tr. 18 (" Q: And you're familiar with Tuckahoe Housing Authority? A: Yes. Q: And can you explain what it is? A: It's a low to middle income housing development, HUD." ).) Matveevskii is THA's Executive Director, which position she assumed on January 1, 2008, while Zuckerman is Chairman of the THA Board of Commissioners. ( See THA Defs.' Rule 56.1 Statement ¶ ¶ 4-6.) Kamensky is THA's General Counsel, and Adalgisa Jones (" Jones" ), not named as a defendant in this Action, is a THA Office Assistant. ( See id. ¶ ¶ 7-8, 10.)
Plaintiff claims that he has been diagnosed with multiple disabilities, the first of which relates to a heart condition for which he underwent quadruple bypass surgery. (Logan Dep. Tr. 17.) At some point, he also " fell down a flight of stairs," which accident required him to undergo a knee-replacement operation. ( Id.) " The combination of [these] two things left [Plaintiff] very disabled." ( Id.) For the purposes of their Motions, Defendants do not dispute that Plaintiff is currently disabled, nor do they dispute that Plaintiff was disabled at all times relevant to the instant Action.
In his deposition, Plaintiff stated that at some point, in order to accommodate his disabilities, he " request[ed] a lower floor apartment" in correspondence with Eric De Esso (" De Esso" ), who preceded Matveevskii as THA Executive Director. ( Id. at 20.) Plaintiff included this correspondence in his Amended Complaint. In a March 27, 1996 letter to Plaintiff, De Esso wrote that, " [i]n review of [Plaintiff's] file and current family composition, [Plaintiff's] family require[d] a one bedroom apartment unit," but at the time that the letter was written, Plaintiff's family " occup[ied] a two bedroom apartment unit." (Pl.'s Ex. 7, at 5.) Because " Federal Regulations for Public Housing provide that
Family Composition must be commensurate with size of dwelling unit," De Esso " advised [Plaintiff] that [he] [would] be relocated to the first available one bedroom apartment unit to accommodate [his] family status." ( Id.)
Plaintiff appears to have responded on the same day, in a letter in which he referenced the fall that led to his knee injury, and the existence of a civil suit against THA based on that fall. ( Id. at 6.) Plaintiff then wrote the following:
Under the tenants' right guide, Landlord are required to provide reasonable accommodation for tenants with a disabilities so they may enjoy equal access to and use of housing accommodations. Under the disability Act of 1987; 24 CFR (Code of Federal Regulations), part 8 relating to public housing authority responsibility to make facilities handicapped accessible. I am putting your office on notices at THA.
Last and far from less my senior mother is come to live with me and her name will be add to my lease. If there any problems please feel free to contact me, and then our lawyers can go in front of a federal Judge to discuss the matter at hand.
In his deposition, Plaintiff characterized this letter as follows:
I had sent documentations . . . requesting a lower floor apartment with the prior director, Mr. De Esso. He informed me that I needed . . . a one-bedroom apartment, and I informed him that just prior to that, I added my mother to the lease, so we kept the two-bedroom, but because of my disability, I asked him, requested for a lower floor apartment. And I was the next person on the list.
(Logan Dep. Tr. 20.)
The next document in Plaintiff's submissions that could potentially be construed as a communication between Plaintiff and THA is what appears to be a letter from Plaintiff addressed to Matveevskii and dated August 7, 2008, more than 12 years after Plaintiff's communication with De Esso:
Please be advised that I writing you about my concerns of being a disable tenant with a heart condition and about to have a left knee replacement in this month, which came about from a fall in your hallway somewhere between the late 80's and the early 90's and my MOTHER, who is now 83 years old and is using a walker after she had her total knee replacement and we are living on the 3rd floor of 31 Midland Place.
Since 1997 in my file you have many letter copies of my SSD and SSI information on my disability and copies of my Coronary Artery bypass grafts. The total my mother knee replacement and mines soon come these stairs will become too much for us . . . I should be placed on the first floor apartments. In 31 Midland and 25 Midland, for these two building have the fewest amount of steps of all the Housing building. In view of the facts that whenever an apartment becomes available in one of these building we are never asked if we would like a lower floor apartment. Effective January 26, 1992, Title II of the ADA required PHAs to have a minimum of 5 percent of the total dwelling units, or at least one unit (whichever is greater), must be made accessible for persons with mobility impairments. And I am wondering why THA has not tried to give us Reasonable Accommodations.
(Pl.'s Ex. 7, at 22 (alteration in original).)
Plaintiff submitted a similar document addressed to Matveevskii dated March 7, 2010:
Please be notify that a letter was written back in March 27, 1996 by Mr. De Esso the formal director of THA and my response was that I was putting THA on notices that I would be needing apartment for the disable.
Effective 1-26-1992, the federal court has mandated that a minimum of the total dwelling unit at THA. There have been at least 4 first floor apartments between 31 Midland Place and 25 Midland Place. I writing to asked you why has my request for a lower apartment on this side; which has the fewest steps than all other building units in THA.
I have submitted Doctor notes that go back to the late 80's to the present time that should be in my files, which states my heart condition, to 5 knee operation and finally a total left knee replacement.
(Pl.'s Ex. 8, at 1.)
Plaintiff further submitted another such letter, also dated March 7, 2010, but this time addressed to the " THA Broad [sic] of Commissioner," in which he repeated much of what he wrote in the preceding documents:
Please be advised that I writing you and the Broad of Commissioners about my concerns of being a disable tenant with a heart condition and a replace left knee, which came about from a follow in your hallway and my MOTHER, who is now 84 years old and is using a walker living on the 3rd floor of 31 Midland Place.
Since 1997 in my file you have many letter copies of my SSD and SSI information on my disability and Now that my mother has had a total knee replacement like myself these stairs are become too much for us . . . If needed Ms. Irina Matveevskii, I will get another note from my Doctor stating that I should be placed on the first floor. Since 31 Midland and 32 Midland are the only two building with the fewest amount of steps . . . In view of the facts that whenever an apartment becomes available in one of these buildings we are never asked if we would like a lower floor apartment.
So I am now requesting a form hearing to discuss with you and the broad of commissions what seems to be the problem . . . Because under the APPLICABILITY: This Notice applies to all public housing programs and activities receiving Federal financial assistance either directly or indirectly from the Office of Public and Indian Housing. Federal financial assistance and programs or activities are both defined very broadly. See 24 CFR 8.3 for the regulatory definitions.
Effective January 26, 1992, Title II of the ADA required PHAs to conduct a self-evaluation of their current services, policies and practices. See 28 CFR § § 35.105 and 35.150 (d). It is time for another evaluation by FHEO look at THA Policies New Construction [see 24 CFR § 8.22 (a) and (b)]. A minimum of 5 percent of the total dwelling units, or at least one unit (whichever is greater), must be made accessible for persons with mobility impairments. And additional minimum of 2 percent of the units, or at least one unit (whichever is greater) must be made accessible for persons with hearing or vision impairments. In circumstances where greater need is shown, HUD may prescribe higher percentages than those listed above. [See 24 CFR 8.22(c).] Accessible units must be on an accessible route from site arrival points and connected by an accessible route from site arrival points and connected by an accessible route to public and common use facilities located elsewhere on the site. Also, see visit ability recommendations in Section I. of this Notice. In my case THA has not complied . . . And I am
wondering why THA has not tried to give us Reasonable Accommodations.
(Pl.'s Ex. 7, at 21 (alterations in original).)
Plaintiff submitted another similar letter, also dated March 7, 2010 and addressed to the " Broad [sic] of Commissioner (Correction Board)" :
Please advised that I writing your and the Board of Commissioner about my concerns of being a disable tenant with a heart condition and replace left knee, which came about form falling you hallway.
My MOTHER, who is 84 years old and using a walker needs to be on the first floor and not the 3rd floor of 31 Midland Place. My mother also has had a total knee replacement.
Since the late 80's to the present, your office have letter from Society Security, to letters from doctors and hospital. Ms Matveevskii, since I can't get your attention, I am requesting a formal hearing with HUD to discuss what seems to be a problem with ADA tenants; in view of the facts that whenever an apartment becomes available in one of these building we are never asked if we would like a lower floor apartment. Effective January 26, 1992, Title II of the ADA required PHAs to have a minimum of 5 percent of the total dwelling units, or at least one unit (whichever is greater), must be made accessible for persons with mobility impairments. And I am wondering why THA has not tried to give us Reasonable Accommodations.
(Pl.'s Ex. 8, at 2.)
It appears as though THA's first response to these communications came on July 15, 2010, in a letter written by Jones:
In review of your file and your initial letter submitted to Tuckahoe Housing Authority with reference to your current family composition and medical needs, your family requires a larger apartment. You have been placed in a waiting list to be moved to an apartment that better accommodates the needs of your family and yourself. As soon as something becomes available we will contact you.
(Pl.'s Ex. 7, at 7.)
It is unclear which of Plaintiff's letters Jones was characterizing as " initial." Regardless, less than a month later, on August 5, 2010, Jones wrote Plaintiff again:
In response to your request for a lower level apartment, we would like to offer you a two bedroom apartment at the Tuckahoe Housing Authority. The vacant apartment is located in 12 Washington Street. Please inform the THA immediately if you would like to take this apartment. If the apartment is not suitable for your family's needs, please inform the THA in writing as soon as possible.
(THA Defs.' Ex. D, at 11.)
Apparently not having heard from Plaintiff, Jones followed up with another letter approximately two weeks later, on August 20, 2010:
On August 5, 2010 you were sent a letter with reference to an available apartment that meets your needs, located in 12 Washington Street. To date you have yet to notify the Tuckahoe Housing Authority if you are interested.
If you are interested please inform the THA office. If you are not interested in this apartment, please notify the office in writing as soon as possible.
If we do not hear from you within 5 days of receiving this letter, we shall assume you are not interested in this apartment.
( Id. at 13.)
Six days later, Jones wrote a letter to Matveevskii, explaining the status of the offer that she made to Plaintiff:
Mr. Logan called the office on August 26, 2010 at 2:30 PM, to notify THA that he is not interested in the available apartment on 12WS due to it not being located on 25 Midland Place or 31 Midland Place. I asked him to write a letter stating so, and he cordially agreed to do so.
He stated that he prefers an apartment in either of those buildings (25Md or 31Md) because they have shorter steps for his elderly mother to use.
( Id. at 15.)
As promised, following his telephone call, Plaintiff submitted a letter to THA regarding the apartment at 12 Washington Street on August 27, 2010:
As per our conversation 8-26-2010 with you in reference to the available apartment on 12 Washington Street in Tuckahoe Housing, because of the step factor and my mother age and condition the only location suitable would be in the area of 31 Midland Place or 25 Midland Place.
For this location have the fewest amount of steps for us to go down. So when the next available apartment becomes we would like first consideration on a 2 bedroom apartment in this location . . .
( Id. at 16.)
In his deposition, Plaintiff explained his reasons for rejecting the apartment at 12 Washington Street in greater detail:
I told her it was--because of the step arrangement in the building, at the bottom of the steps my mother had to still come down with the walker, it was not accessible, It was not good. She had to walk down two steps, come out the building, walk down three steps. You have a level courtyard where there's benches and things, and then you got to walk down four more steps to get to the street. And at 12 Washington Street, that particular dead end, it's called a dead end, it's flooded. The flood goes as high as--over the embankment and into the hallways when it heavy rains and what have you. There's a drainage problem in that facility. And you can go to the village and look up the records of how many times the fire department had to come down there to help people out of there that was disabled, because of the height of the water. The water was up to three or four feet high. And I was not placing my mother in that type of danger.
(Logan Dep. Tr. 42.)
In his Amended Complaint, Plaintiff also included a letter from Dr. Robert Rozbruch, addressed to Matveevskii and dated October 25, 2010, in which Dr. Rozbruch wrote that Plaintiff was " under [his] medical and surgical care" ; that Plaintiff " had total knee replacement on August 13, 2007" ; that Plaintiff " live[d] with his mother who is 84 years old and also had total knee replacement," and " use[d] a walker to help her walk" ; and that " [i]t would be most helpful if [Matveevskii] could move [Plaintiff and his mother] from the 3rd floor apartment which they live[d] in . . . to a ground floor apartment." (Pl.'s Ex. 3, at 9.)
Jones responded to Plaintiff's August 27, 2010 letter on November 8, 2010, confirming his rejection of the apartment at 12 Washington Street:
On August 5, 2010, the Tuckahoe Housing Authority offered you a two bedroom apartment on the first floor, located in 12 Washington Street. However you refused this apartment on August 27, 2010 because it was not located in 31 Midland Place nor 25 Midland Place. Unfortunately, we currently do not have any vacant apartments located in either of those buildings. As soon as an apartment becomes available we will offer you the apartment as you are first in our transfer list.
(THA Defs.' Ex. D, at 17.)
On November 10, 2010, Plaintiff responded to Jones' latest letter:
As per your letter written on 11-8-10 . . . AND IN RESPONSE TO YOUR STATEMENT ABOUT WHAT YOU OFFERED BACK IN 8-27-10 . . . In all of the building units in THA complex there are only two building that have only two steps to come in and two go out the building and these are 31 and 25 Midland Place . . .
Again I will state this for your ATTENTION . . . My Mother is 84 and is using a walker after having a total knee replacement. Not to forget my knee replacement that was cause by this building and my heart condition . . .
(Pl.'s Ex. 7, at 9 (alterations in original).)
The Parties' submissions do not contain any further communications between THA and Plaintiff until June 22, 2011, although the letter that Matveevskii wrote to Plaintiff on that date references earlier correspondence:
Yesterday I received a letter from Dr. Warshafsky in which he wrote that " . . . it would be most helpful if he (i.e., you) could be moved to a ground floor apartment."
As a response I must say that we have endeavored, to the best of our ability, to accommodate your needs and provide you with a two-bedroom ground floor apartment. And we have done this since the very first letter from Dr. Washafsky was delivered to the THA on July 11, 2010.
Four days later, on July 15, 2010, we wrote to you that we were placing you on a waiting list for an apartment on a ground floor.
On August 5, 2010, we wrote to you offering you a two-bedroom apartment on the ground floor of one of our THA buildings.
On August 20, 2010, not having heard from you, we wrote to you again offering you the same apartment and sought to find out if you were, in fact, interested in moving.
On August 26, 2011, you called the THA office and informed us that you were not interested in the apartment and would only accept a ground floor apartment in either 25 or 31 Midland Place. You were asked to tell us this in writing.
On August 27, 2011, you did, in fact, deliver to our office a note reiterating what you spoke about on the phone the day before.
On November 5, 2010, you presented us with a letter from a Dr. Rozbruch in which he also ...