United States District Court, E.D. New York
MEMORANDUM AND ORDER
case concerns the sole elevator at 946 Bushwick Avenue,
Brooklyn NY (the “Building”), a residential
building with 53 apartments. Plaintiffs are tenants of the
Building who are allegedly handicapped and require use of the
elevator to access their apartments. They initiated this
action on December 30, 2016 against Defendants, the
Building's owners, in response to posted notices that the
elevator would be completely shut down for repairs beginning
on January 2, 2017. Plaintiffs alleged that Defendants
violated their rights under the Fair Housing Act
(“FHA”), 42 U.S.C. § 3604, and the New York
State and City Human Rights Laws, N.Y. Exec. Law § 290
et seq. and N.Y.C. Admin. Code § 8-101 et
seq., by allegedly refusing to provide a reasonable
accommodation for Plaintiffs during the elevator shutdown.
dispute was settled in an agreement endorsed by the Court on
February 7, 2017. Pursuant to that agreement, the Defendants
installed a chairlift from the first to second floor of the
Building for the duration of the elevator repairs, which have
since been completed. Before the Court are the parties'
cross-motions for attorney's fees.
overview of the history of this case is required to fully
address the parties' motions.
purchased the Building in June 2016. ECF 21-10, Recorded
Deed. The Building's elevator was non-compliant with New
York City regulations long before the purchase, as indicated
in violations issued by the New York City Department of
Buildings (“DOB”) dating back to 1998. ECF 5-3,
Building Violations. To bring the elevator into compliance,
Defendants were required to make repairs that necessitated
completely decommissioning the elevator. ECF 21-12, Hearing
Transcript (“TR”), at 60:20-25. Defendants posted
three notices, in both English and Spanish, notifying tenants
of the impending elevator shutdown:
• The first notice was posted on September 26, 2016, and
alerted residents that “in approximately 2-2 ½
months, the elevator will be replaced.” It stated that
the elevator would be offline for 4-5 months, depending on
the length of the job. ECF 5-4.
• The second notice was posted on November 29, 2016, and
alerted residents that the elevator repairs would begin on
January 2, 2017. It stated that the elevator would be offline
for 4-6 months. ECF 5-5.
• The third notice was the DOB work permit and notices
which were posted on the elevator door on each floor of the
Building on December 15, 2016. ECF 5-7.
December 8 and 16, 2016, Plaintiffs, through their attorneys,
sent two letters to Defendants. ECF 21-8, 21-9. The letters
stated, in relevant part, that “[a] large portion of
the tenants at the premises suffer from physical disabilities
and/or are elderly, and as such, require the use of elevator
services to move throughout and out of their building,
” and demanded that Defendants “cease from
conducting construction on the elevator until you take
appropriate steps to provide, maintain, or modify services in
preparation for the removal of the building's sole
elevator.” Id. (emphasis in original).
The letters also threatened to “seek an emergency
federal restraining order” if Defendants failed to
respond by a certain date. Id. Defendants received
the letters on December 12 and 21, 2016, respectively, but
did not respond to them. ECF 5, First Affidavit of Graham
Jones (“Jones Aff. 1”), at ¶ 7.
At 3:30 p.m. on Thursday, December 29, 2016, Plaintiffs'
counsel left a voice message for Defendants, stating that
they planned to file an action, and seek a TRO, in federal
court the next morning. Jones Aff. 1, at ¶ 9; ECF 18-1,
Declaration of Lina Lee, at ¶ 8. Defendants' counsel
returned the call that day. Id. at ¶ 9.
Initiation of this Lawsuit and Temporary Restraining
The following day, Friday, December 30, 2016, Plaintiffs
initiated this action, alleging that Defendants had
discriminated against them by refusing to make reasonable
accommodations during the impending elevator shutdown. The
following five tenants were named plaintiffs:
• Maria Collado: lives on the second floor. She
is wheelchair bound and cannot walk;
• Jose Collado: lives on the third floor. He
reports suffering from high blood pressure and Type 2
diabetes, which results in painful blisters on his feet;
• Marino Lalane: lives on the second floor. He
reports pain and cramping related to colon cancer surgery in
2000, has trouble breathing and a “weak body, ”
and suffers from appendicitis, asthma, arthritis, diabetes
• Delmira Baez: lives on the sixth floor. She
reports weakness in her knees; and
• Carmen Lopez: lives on the sixth floor. She
reports weakness in her knees and states that her husband has
high blood pressure.
Complaint (“Complt.”) at ¶¶ 9-13; ECF
3, Affidavits of Plaintiffs, at pp. 11-28. Defendants have
maintained throughout that they were unaware of the
Plaintiffs' alleged disabilities prior to the initiation
of this case. ECF 5, Declaration of David Lee, at ¶ 28;
Jones Aff. 1 at ¶ 7.
sought a temporary restraining order and preliminary
injunction to halt the elevator repairs, scheduled to begin
Monday, January 2, 2017. ECF 3. After a brief hearing, the
Court postponed a ruling on the motion until January 4, 2017
when, following oral argument, the Court granted the TRO. ECF
8. The Court noted that there were provocative social and
legal issues to consider, and that the Defendants would not
be prejudiced by delaying the repairs for 14 days while the
parties did their ...