United States District Court, N.D. New York
JOHN W. BARBER, DEBRA L. BURTON, DAVID R. GRINNELL, TIMOTHY J. LEES, MARSHALL L. THOMAS, individually and on behalf of all persons who currently reside in Colonial II Apartments therein at any time from December 2013 to date, Plaintiffs,
ROME HOUSING AUTHORITY, JAMES BALDWIN, individually and as Executive Director of Rome Housing Authority, DARCEL PULEO, individually and as Property Manager of Colonial II Apartments, Defendants.
SERVICES OF CENTRAL NEW YORK, INC. - UTICA ASHLEY M. KAPLAN,
ESQ. SAMUEL C. YOUNG, ESQ. Attorneys for Plaintiffs
LAW FIRM, P.C. JEFFREY M. LIPMAN, ESQ. Attorney for
SERVICES OF CENTRAL NEW YORK, INC. - SYRACUSE SAMUEL C.
YOUNG, ESQ. Attorney for Plaintiffs.
RYAN & PARTNERS P.C. JOHN W. LIGUORI, ESQ. MARK T.
HOUSTON, ESQ. Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge.
December 23, 2016, Plaintiffs filed a putative class action
complaint pursuant to Federal Rule of Civil Procedure 23 for
injunctive and compensatory relief. Plaintiffs allege that
the Rome Housing Authority ("RHA"), its Executive
Director, James Baldwin, and the property manager of the
Colonial II Apartments ("Colonial II" or the
"Building" collectively "Defendants") are
liable under 42 U.S.C. § 1983 and state law.
See Dkt. No. 1 at ¶¶ 1, 59-84. On March
22, 2017, Plaintiffs filed an amended complaint. See
Dkt. No. 24.
before the Court is Defendants' motion to dismiss. For
the following reasons, the motion is granted.
Colonial II Apartments is a seven-story apartment building
that caters to elderly and disabled adults and is owned and
managed by RHA. See Dkt. No. 24 at ¶¶ 5,
10, 13. In 2008, Colonial II's residents began
complaining to the Building's management that bed bugs
were infesting their apartments. See Id. at ¶
18. By 2013, Colonial II faced a severe infestation. See
Id. That year, "Defendants hired a local,
two-person extermination company, Rid-O-Vit, " to
inspect and chemically treat the infestation unit-by-unit.
Id. at ¶¶ 19, 41. The Building's
residents "complained to Defendants that the inspections
and spraying . . . were not eradicating the bed bug problem,
and were spreading the problem to new apartments and other
areas of the building." Id. at ¶ 20.
Defendants continued to use Rid-O-Vit despite these
complaints. See Id. at ¶ 21.
to the amended complaint, Defendants did not mention the
infestation to prospective tenants or residents renewing
their leases. Id. at ¶ 22. Further, Defendants
did not mention the infestation in "resident meetings,
notices, or other communications, " and told at least
one resident to keep quiet about the bed bugs. Id.
Some residents "complained about bed bugs within their
apartments, but were told by Defendants that they were unable
to find any. On [these] occasions, Defendants did not take
any remedial actions despite [r]esidents complaining that
they had identified bed bugs within their apartments and
experienced bites from bed bugs." Id. at ¶
24. Further, "Defendants . . . told one or more
[r]esidents that they should refrain from visiting family and
friends in other apartments within the building, or in homes
or apartments outside the building, because of the risk of
spreading bed bugs, or bringing bed bugs into the Colonial II
building." Id. at ¶ 27.
infestation has been traumatic for the tenants. Some have had
difficulty sleeping due to anxiety about being bitten, they
risked infections and allergic reactions, and have been
subjected to the general stigma associated with bed bugs.
See Id. at ¶ 25. Some residents have left their
homes to sleep in other places. See Id. at ¶
26. Many residents have been anxious about spending time with
their friends and family due to a fear of carrying the bed
bugs with them. See Id. at ¶¶ 27-28. John
W. Barber, Debra L. Burton, David R. Grinnell, Timothy J.
Lees, and Marshall L. Thomas ("Plaintiffs") are
tenants of Colonial II and represent the class of residents
that have lived in Colonial II at any time after December,
2013. See Id. at ¶ 1. They allege that this
infestation has resulted in significant hardship. See
Id. at ¶ 47.
Barber has lived in Colonial II since the early 1990s and was
one of the first tenants to notice bed bugs in his apartment.
See Id. at ¶¶ 48-49. RHA first treated his
apartment for bed bugs in 2008, but the bed bugs eventually
came back. See Id. at ¶ 49. The bed bugs have
led Plaintiff Barber to suffer from bites, sleep deprivation,
and anxiety. See Id. at ¶ 51. Additionally, the
bed bugs have exacerbated Plaintiff Barber's preexisting
physical and mental health conditions. See id.
Burton moved into Colonial II in May 2016 after being told
she would not need to worry about bed bugs because she was a
"clean person." Dkt. No. 24 at ¶ 55. Plaintiff
Burton first noticed bed bugs in her apartment two months
later. See Id. at ¶ 56. Since July 2016, she
has had her apartment sprayed six times. See Id.
Plaintiff Burton asked Colonial II management for a building
wide eradication instead of the unit-by-unit approach.
See Id. at ¶ 58. Plaintiff Burton has spent
money on chemical sprays and other cleaning supplies to fight
the infestation and is withholding her rent due to the
ongoing condition of her apartment and the need to purchase
new furniture and chemicals to combat the infestation.
See Id. at ¶ 59.
Grinnell moved into Colonial II in June 2013. See
Id. at ¶ 60. Approximately one-year later, he
noticed bed bugs in his apartment. See Id. at ¶
62. Defendants treated his unit, which temporarily eliminated
the pests. See Id. at ¶¶ 62-63. However,
in September 2016, the bed bugs returned and he has sprayed
his unit monthly and at his own expense since their return.
See Id. at ¶¶ 63-64. Plaintiff Grinnell
also suffers from bites, sleep deprivation, and anxiety.
See Id. at ¶ 64.
Lees has resided in Colonial II since 2012. See Id.
at ¶ 65. He first noticed the bed bugs in 2014. See
Id. at ¶ 66. Since then, Defendants have sprayed
his apartment approximately twenty times. See Id.
"[Plaintiff] Lees has not visited family in over two
years because of the fear that he would carry bed bugs into
their homes, " which has led to him being socially
isolated and depressed. Id. at ¶ 68. "He
has experienced physical bites, sleep deprivation, and
anxiety due to the bed bug infestation." Id.
Living under these conditions has adversely affected his
mental health treatment and recovery process. See
Id. Plaintiff Lees spends his own money to spray his
apartment on a monthly basis and has been forced to throw
away furniture because of the infestation. See Id.
at ¶¶ 67-68.
Thomas has been living in Colonial II since 2004. See
Id. at ¶ 69. She first noticed bed bugs in her
apartment in 2012. See Id. at ¶ 70. Defendants
have sprayed her apartment at least nine times. See
Id. She has repeatedly had to throw out furniture due to
the infestation. See Id. Plaintiff Thomas has spent
money on sprays and cleaning supplies. See Id. at
¶ 72. She ...