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Collado v. 946 Bushwick Avenue, LLC

United States District Court, E.D. New York

June 30, 2017

MARIA COLLADO, MARINO LALANE, and JOSE COLLADO, Plaintiffs,
v.
946 BUSHWICK AVENUE, LLC, SAFEGUARD REALTY MGNT, INC., GRAHAM JONES, and BENJAMIN SOPKIN, Defendants.

          MEMORANDUM AND ORDER

          I. Leo Glasser Judge

         This 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.

         This 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.

         BACKGROUND

         An overview of the history of this case is required to fully address the parties' motions.

         Pre-Litigation Events

         Defendants 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.

         On December 8 and 16, 2016, Plaintiffs, through their attorneys, sent two letters to Defendants. ECF 21-8, 21-9.[1] 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 Order

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 and cataracts;
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.

         ECF 1, 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.

         Plaintiffs 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 ...


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