Fair Housing Justice Center, Inc. v. Allure Rehabilitation Services Llc et al

MOTION to Dismiss for Lack of Jurisdiction

E.D.N.Y.August 8, 2016

1 3862718v.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Civil Action No.: 1:15-cv-06336-RJD-LB NOTICE OF MOTION FAIR HOUSING JUSTICE CENTER, INC., Plaintiff, -against- ALLURE REHABILITATION SERVICES LLC, HAMILTON PARK MULTICARE LLC, CASSENA CARE LLC, AMSTERDAM NURSING HOME CORPORATION, SEA CREST HEALTH CARE CENTER, LLC, CENTERS FOR SPECIALTY CARE GROUP LLC, SENIOR MED, LLC, CROWN NURSING HOME ASSOCIATES INC., SENTOSACARE, LLC, WHITE PLAINS CENTER FOR NURSING CARE LLC, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC, GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC, CLIFFSIDE NURSING HOME, INC., FOREST VIEW NURSING HOME, INC., ULTIMATE CARE ASSISTED LIVING, MANAGEMENT LLC, ENGEL BURMAN SENIOR HOUSING AT WHITE PLAINS LLC d/b/a THE BRISTAL AT WHITE PLAINS, ENGEL BURMAN SENIOR HOUSING AT NORTH WOODMERE LLC d/b/a THE BRISTAL AT NORTH WOODMERE, ENGEL BURMAN AT SAYVILLE LLC d/b/a THE BRISTAL AT SAYVILLE, ENGEL BURMAN AT ARMONK, LLC d/b/a THE BRISTAL AT ARMONK, Defendants. : : : : : : : : : : : : : : : : : : : : : : : : : : : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x PLEASE TAKE NOTICE that, upon the accompanying Declaration of Roy W. Breitenbach, Esq., dated May 16, 2016, the exhibits annexed thereto; and the memorandum of law in support of Defendants ALLURE REHABILITATION SERVICES LLC, CASSENA CARE LLC, AMSTERDAM NURSING HOME CORPORATION, SEA CREST HEALTH CARE CENTER, LLC, CENTERS FOR SPECIALTY CARE GROUP LLC’s motion to dismiss dated May 16, 2016, and all of the pleadings, papers, and prior proceedings had herein, Defendant White Plains Hospital Medical Center will move this Court, before The Honorable Raymond J. Dearie, United States District Judge, at the United States District Court, 225 Case 1:15-cv-06336-RJD-LB Document 119 Filed 08/08/16 Page 1 of 2 PageID #: 533 2 3862718v.1 Cadman Plaza East, Brooklyn, New York, on the 8 th day of August, 2016, or as soon thereafter as counsel may be heard, for an order under Rules 12 (b)(1) and 12 (b)(6) of the Federal Rules of Civil Procedure dismissing Plaintiff’s Complaint dated November 4, 2015, and for such further relief as may be proper. PLEASE TAKE FURTHER NOTICE that in the event this motion is denied, it is respectfully requested that this Court permit, in accordance with Rule 12 (a) of the Federal Rules of Civil Procedure the Defendants to interpose an answer within twenty-one (21) days after the notice of this Court’s decision. Dated: Great Neck, New York May 16, 2016 GARFUNKEL WILD, P.C. Attorneys for Defendants Allure Rehabilitation Services, LLC; Cassena Care, LLC; Sea Crest Health Care Center, LLC; and Centers For Specialty Care Group, LLC By: /s/Roy W. Breitenbach Roy W. Breitenbach, Esq. Salvatore Puccio, Esq. Michael J. Keane, Jr., Esq. 111 Great Neck Road Great Neck, New York 11021 (516) 393-2200 RBreitenbach@garfunkelwild.com SPuccio@garfunkelwild.com MJKeane@garfunkelwild.com Case 1:15-cv-06336-RJD-LB Document 119 Filed 08/08/16 Page 2 of 2 PageID #: 534 1 3858468v.1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Docket No.: 15-cv-6336 (RJD)(LB) FAIR HOUSING JUSTICE CENTER, INC., Plaintiff, -against- ALLURE REHABILITATION SERVICES LLC, HAMILTON PARK MULTICARE LLC, CASSENA CARE LLC, AMSTERDAM NURSING HOME CORPORATION, SEA CREST HEALTH CARE CENTER, LLC, CENTERS FOR SPECIALTY CARE GROUP LLC, SENIOR MED, LLC, CROWN NURSING HOME ASSOCIATES INC., SENTOSACARE, LLC, WHITE PLAINS CENTER FOR NURSING CARE LLC, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC, GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC, CLIFFSIDE NURSING HOME, INC., FOREST VIEW NURSING HOME, INC., ULTIMATE CARE ASSISTED LIVING, MANAGEMENT LLC, ENGEL BURMAN SENIOR HOUSING AT WHITE PLAINS LLC d/b/a THE BRISTAL AT WHITE PLAINS, ENGEL BURMAN SENIOR HOUSING AT NORTH WOODMERE LLC d/b/a THE BRISTAL AT NORTH WOODMERE, ENGEL BURMAN AT SAYVILLE LLC d/b/a THE BRISTAL AT SAYVILLE, ENGEL BURMAN AT ARMONK, LLC d/b/a THE BRISTAL AT ARMONK, Defendants. : : : : : : : : : : : : : : : : : : : : : : : : : : : : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DECLARATION OF ROY W. BREITENBACH IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT ON BEHALF OF DEFENDANTS ALLURE REHABILITATION SERVICES LLC, CASSENA CARE LLC, AMSTERDAM NURSING HOME CORPORATION, SEA CREST HEALTH CARE CENTER, LLC, AND CENTERS FOR SPECIALTY CARE GROUP LLC ROY W. BREITENBACH declares under the penalties of perjury and pursuant to 28 U.S.C. § 1746, that: Case 1:15-cv-06336-RJD-LB Document 119-1 Filed 08/08/16 Page 1 of 3 PageID #: 535 2 3858468v.1 1. I am a partner director with Garfunkel Wild, P.C., attorneys for defendants Allure Rehabilitation Services, LLC, Cassena Care, LLC, Sea Crest Health Care Center, LLC, Amsterdam Nursing Home Corporation, and Centers For Specialty Care Group, LLC (collectively the “Movants”), and submit this declaration in support of Movants’ motion to dismiss the Complaint. 2. While the Movants are separate and distinct entities, we submit one motion on behalf of all Movants for judicial efficiency because the legal issues that plague Plaintiff’s claims are the same. In addition, there are legal grounds that warrant dismissal as against certain of the named Movants and those arguments are included in this motion as well. 3. A true and correct copy of the Complaint is attached as Exhibit 1. (Doc. No. 1.) 4. A true and correct copy of the New York State Department of Health profile for Bedford Center for Nursing and Rehabilitation is attached as Exhibit 2. The profile can be found at http://profiles.health.ny.gov/nursing_home/view/150713. 5. A true and correct copy of the New York State Department of Health profile for Hamilton Park Nursing and Rehabilitation Center is attached as Exhibit 3. The profile can be found at http://profiles.health.ny.gov/nursing_home/view/150847. 6. A true and correct copy of the New York State Department of Health profile for Shore View Nursing & Rehabilitation Center is attached as Exhibit 4. The profile can be found at http://profiles.health.ny.gov/nursing_home/view/150704. Case 1:15-cv-06336-RJD-LB Document 119-1 Filed 08/08/16 Page 2 of 3 PageID #: 536 3 3858468v.1 7. A true and correct copy of the New York State Department of Health profile for Amsterdam Nursing Home Corporation is attached as Exhibit 5. The profile can be found at http://profiles.health.ny.gov/nursing_home/view/150727. 8. A true and correct copy of the New York State Department of Health profile for Sea Crest Health Care Center is attached as Exhibit 6. The profile can be found at http://profiles.health.ny.gov/nursing_home/view/150706. 9. A true and correct copy of the New York State Department of Health profile for Sayville Nursing Home and Rehabilitation Center is attached as Exhibit 7. The profile can be found at http://profiles.health.ny.gov/nursing_home/view/150861. 10. A true and correct copy of the New York State Department of Health profile for Boro Park Center for Rehabilitation and Health Care is attached as Exhibit 8. The profile can be found at http://profiles.health.ny.gov/nursing_home/view/150707. 11. A true and correct copy of the New York State Department of Health profile for Brooklyn Center for Rehabilitation and Residential Health Care is attached as Exhibit 9. The profile can be found at http://profiles.health.ny.gov/nursing_home/view/150702. I declare under penalty of perjury that the foregoing is true and correct. Executed on: May 16, 2016 /s/Roy W. Breitenbach ROY W. BREITENBACH Case 1:15-cv-06336-RJD-LB Document 119-1 Filed 08/08/16 Page 3 of 3 PageID #: 537 Exhibit 1 Case 1:15-cv-06336-RJD-LB Document 119-2 Filed 08/08/16 Page 1 of 34 PageID #: 538 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------- FAIR HOUSING JUSTICE CENTER, INC., Plaintiff, v. ALLURE REHABILITATION SERVICES LLC, HAMILTON PARK MULTICARE LLC, CASSENA CARE LLC, AMSTERDAM NURSING HOME CORPORATION, SEA CREST HEALTH CARE CENTER, LLC, CENTERS FOR SPECIALTY CARE GROUP LLC, SENIOR MED, LLC, CROWN NURSING HOME ASSOCIATES INC., SENTOSACARE, LLC, WHITE PLAINS CENTER FOR NURSING CARE LLC, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC, GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC, CLIFFSIDE NURSING HOME, INC., FOREST VIEW NURSING HOME, INC., ULTIMATE CARE ASSISTED LIVING 15-CV-6336 COMPLAINT JURY TRIAL DEMANDED Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 1 of 33 PageID #: 1Case 1:15-cv-0633 -RJD-LB Document 119-2 Filed 08/08/16 Page 2 of 4 PageID #: 539 2 MANAGEMENT LLC, ENGEL BURMAN SENIOR HOUSING AT WHITE PLAINS LLC d/b/a THE BRISTAL AT WHITE PLAINS, ENGEL BURMAN SENIOR HOUSING AT NORTH WOODMERE LLC d/b/a THE BRISTAL AT NORTH WOODMERE, ENGEL BURMAN AT SAYVILLE LLC d/b/a THE BRISTAL AT SAYVILLE, ENGEL BURMAN AT ARMONK, LLC d/b/a THE BRISTAL AT ARMONK, Defendants. ---------------------------------------------------------------- Plaintiff, FAIR HOUSING JUSTICE CENTER, INC. (“Plaintiff”), by and through its undersigned counsel, EISENBERG & BAUM, LLP, for its Complaint against ALLURE REHABILITATION SERVICES LLC; HAMILTON PARK MULTICARE LLC; CASSENA CARE LLC; AMSTERDAM NURSING HOME CORPORATION; SEA CREST HEALTH CARE CENTER, LLC; CENTERS FOR SPECIALTY CARE GROUP LLC; SENIOR MED, LLC; CROWN NURSING HOME ASSOCIATES INC; SENTOSACARE, LLC; WHITE PLAINS CENTER FOR NURSING CARE LLC; EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC; GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC; CLIFFSIDE NURSING HOME, INC.; FOREST VIEW NURSING HOME, INC.; ULTIMATE CARE ASSISTED LIVING MANAGEMENT LLC; ENGEL BURMAN SENIOR HOUSING AT WHITE PLAINS LLC d/b/a THE BRISTAL AT WHITE PLAINS; ENGEL BURMAN SENIOR HOUSING AT NORTH WOODMERE LLC d/b/a THE BRISTAL AT NORTH WOODMERE; ENGEL BURMAN AT SAYVILLE LLC d/b/a THE BRISTAL AT Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 2 of 33 PageID #: 2Case 1:15-cv-0633 -RJD-LB Document 119-2 Filed 08/08/16 Page 3 of 4 PageID #: 540 3 SAYVILLE; and ENGEL BURMAN AT ARMONK, LLC d/b/a THE BRISTAL AT ARMONK, Defendants, hereby alleges as follows: PRELIMINARY STATEMENT 1. Plaintiff is the Fair Housing Justice Center (“FHJC”), a non-profit organization that ensures that all people, including deaf individuals, have equal access to housing in New York City and surrounding counties. Defendants, the owners of numerous nursing homes and assisted living residences, both in New York City and the outer suburbs, discriminate against deaf residents, both prospective and current, by refusing to provide effective auxiliary aids and services for their disabilities, despite repeated requests for effective communication to ensure equal access. 2. American Sign Language (“ASL”) is a visual, three-dimensional, non-linear language, and its grammar and syntax differ from the grammar and syntax of English and other spoken languages. ASL is best thought of as a foreign language used by American deaf people, with its own grammar and syntax. Deaf individuals are often educated in Deaf schools and grow up in culturally Deaf environments. As a result of both physical and environmental factors, deaf individuals frequently have great difficulty achieving command of spoken or written English. From a pedagogical standpoint, for example, it is difficult to understand how English works if a person has never heard it. However, deaf individuals are often able to communicate with great complexity in ASL. 3. Lip-reading, the ability to understand the speech of another by watching the speaker’s lips, is an extremely speculative means of communication and is no substitute for communication through a qualified sign language interpreter. Only a small amount of the spoken sounds of aural language are visible, and many of those appear identical on the lips. Even the most adept lip-readers, in an ideal one-to-one situation, have been found to understand only 26% of Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 3 of 33 PageID #: 3Case 1:15-cv-0633 -RJD-LB Document 119-2 Filed 08/08/16 Page 4 of 4 PageID #: 541 4 what is said. 4. For these reasons, ASL interpreters are necessary for the great majority of deaf individuals receiving medical, nursing home, and assisted living and rehabilitation care when that care involves complicated information, lengthy communications, or when the individual has other conditions that make seeing or communicating through other means more difficult. 5. FHJC utilized fair housing Testers to determine whether Defendants would supply an ASL interpreter for a deaf resident if requested or necessary. When the Testers from the FHJC inquired about nursing home facilities for prospective elderly deaf relatives, they were told that their relatives would not be provided interpreters; instead, they were told that the relatives could provide their own interpreters, or could communicate to nursing home staff through writing. Writing is not an effective means of communicating since residents would have difficulty understanding complex procedures involved in services such as assessment, planning, intake, screening, medical care, recreation, therapy, meetings, psychological services, discharge instructions, DNR documentation, prescribed medications, and power-of-attorney, among others. 6. In the context of residential medical care provided to elderly individuals, the outright refusal to provide an ASL interpreter for any situation will result in ineffective communication for elderly deaf residents. Defendants thus discriminate against elderly deaf residents and prospective residents by failing and/or refusing to provide qualified American Sign Language interpreters or other auxiliary aids and services to ensure effective communication. 7. Plaintiff brings this lawsuit to compel Defendants to cease unlawful discriminatory practices and to implement policies and procedures that will ensure effective communication, full and equal enjoyment, and a meaningful opportunity to participate in and benefit from Defendants’ residential and health care services. Plaintiff seeks declaratory, injunctive, and equitable relief; Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 4 of 33 PageID #: 4Case 1:15-cv-0633 -RJD-LB Document 119-2 Filed 08/08/16 Page 5 of 4 PageID #: 542 5 compensatory and punitive damages; and attorneys’ fees and costs to redress Defendants’ unlawful discrimination on the basis of disability in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et. seq.; The Fair Housing Act (“FHA”), 42 U.S.C. § 3602; and/or other state and common law causes of action. THE PARTIES 8. Plaintiff FHJC is a non-profit organization with its principal office located at 5 Hanover Square, 17th Floor, New York, New York 10004, in the Southern District of New York. 9. FHJC is a non-profit organization dedicated to ensuring that all people have equal access to housing opportunities in the greater New York City region by eliminating housing discrimination and creating open, accessible, and inclusive communities. 10. To this end, FHJC provides various services, including (a) information to the public and other nonprofit organizations in the New York City regional area about fair housing laws; (b) intake counseling to individuals and organizations regarding allegations of housing discrimination; (c) testing and other investigations of allegations of housing discrimination; (d) legal referrals to cooperating attorneys; (e) assistance with the preparation and filing of administrative housing discriminations complaints; and (f) post-referral litigation support services. FHJC provides these services free of charge and without regard to income. 11. FHJC also conducts testing investigations for government law enforcement agencies, provides technical assistance to nonprofit organizations engaging in fair housing enforcement activities, and engages in policy initiatives that further the FHJC’s mission, including the publication and dissemination of reports and educational materials. 12. FHJC employs “Testers,” who are individuals who pose as prospective renters, Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 5 of 33 PageID #: 5Case 1:15-cv-0633 -RJD-LB Document 119-2 Filed 08/08/16 Page 6 of 4 PageID #: 543 6 home buyers, residents, and the like for the purpose of obtaining information about the conduct of local governments, landlords, real estate agents, companies, and others to determine if housing discrimination is taking place. 13. FHJC expended staff time and other resources to investigate and respond to Defendants’ discriminatory practices, which diverted resources away from other FHJC activities. 14. Defendants’ discriminatory rental practices frustrated FHJC’s mission to ensure that all people have equal access to housing opportunities in New York by, among other things, making nursing home and assisted living facilities inaccessible by reason of disability. 15. Defendant ALLURE REHABILITATION SERVICES LLC is the owner, lessor, and/or operator of Bedford Center for Nursing and Rehabilitation, located at 40 Heyward Street, Brooklyn, New York 11249; and Hamilton Park Nursing and Rehabilitation Center, located at 691 92nd Avenue, Brooklyn, New York 11228. Upon information and belief, Defendant is a New York corporation doing business within this judicial District with a principal place of business at 691 92nd Avenue, Brooklyn, New York 11228. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 16. Defendant HAMILTON PARK MULTICARE LLC is the owner, lessor, and/or operator of Hamilton Park Nursing and Rehabilitation Center. Upon information and belief, Defendant is a New York corporation doing business in this judicial District with a principal place of business at 691 92nd Street, Brooklyn, New York 11228. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 17. Defendant CASSENA CARE LLC is the owner, lessor, and/or operator of Shore Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 6 of 33 PageID #: 6Case 1:15-cv-0633 -RJD-LB Document 119-2 Filed 08/08/16 Page 7 of 4 PageID #: 544 7 View Nursing and Rehabilitation Center, located at 2865 Brighton 3rd Street, Brooklyn, New York 11235; Amsterdam Nursing Home Corp., located at 1060 Amsterdam Avenue, New York, New York 10025; Sea Crest Health Care Center, located at 3035 West 24th Street, Brooklyn, New York 11224; and Sayville Nursing Home and Rehabilitation Center, located at 300 Broadway Avenue, Sayville, New York 11782. Upon information and belief, Defendant is a New York corporation doing business in this judicial District with a principal place of business at 225 Crossways Park Drive, Woodbury, New York 11797. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 18. Defendant AMSTERDAM NURSING HOME CORPORATION is a nursing home facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 1060 Amsterdam Avenue, New York, New York 10025. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 19. Defendant SEA CREST HEALTH CARE CENTER, LLC is a nursing home facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 3035 West 24th Street, Brooklyn, New York 11224. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 20. Defendant CENTERS FOR SPECIALTY CARE GROUP LLC is the owner, lessor, and/or operator of Boro Park Center for Rehabilitation and Health Care, located at 4915 10th Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 7 of 33 PageID #: 7Case 1:15-cv-0633 -RJD-LB Document 119-2 Filed 08/08/16 Page 8 of 4 PageID #: 545 8 Avenue, Brooklyn, New York 11219; and Brooklyn Center for Rehabilitation and Residential Health Care, located at 1455 Coney Island Avenue, Brooklyn, New York 11230. Upon information and belief, Defendant is a New York corporation doing business in this judicial District with a principal place of business at 4770 White Plains Road, Bronx, New York 10470. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 21. Defendant SENIOR MED, LLC is the owner, lessor, and/or operator of Crown Nursing and Rehabilitation Center, located at 3457 Nostrand Avenue, Brooklyn, New York 11229. Upon information and belief, Defendant is a New York corporation doing business in this judicial District with a principal place of business at 49 Oakcrest Avenue, Middle Island, New York 11953. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 22. Defendant CROWN NURSING HOME ASSOCIATES INC. is a nursing home facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 3457 Nostrand Avenue, Brooklyn, New York 11229. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 23. Defendant SENTOSACARE, LLC is the owner and lessor of Spring Creek Rehabilitation and Nursing Care Center, located at 660 Louisiana Avenue, Brooklyn, New York 11239; White Plains Center for Nursing Care, located at 220 West Post Road, White Plains, New York 10606; Throgs Neck Extended Care Facility, located at 707 Throgs Neck Expressway, Bronx, New York 10465; Eastchester Rehabilitation and Health Care Center, located at 2700 Eastchester Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 8 of 33 PageID #: 8Case 1:15-cv-0633 -RJD-LB Document 119-2 Filed 08/08/16 Page 9 of 4 PageID #: 546 9 Road, Bronx, New York 10469; and Golden Gate Rehabilitation and Health Care Center, located at 191 Bradley Avenue, Staten Island, New York 10314. Upon information and belief, Defendant is a New York corporation doing business in this judicial District with a principal place of business at 20 Franklin Place, Woodmere, New York 11598. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 24. Defendant WHITE PLAINS CENTER FOR NURSING CARE LLC is a nursing home facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 220 West Post Road, White Plains, New York 10606. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act and the Fair Housing Act. 25. Defendant EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC is a nursing home facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 2700 Eastchester Road, Bronx, New York 10469. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 26. Defendant GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC is a nursing home facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 191 Bradley Avenue, Staten Island, New York 10314. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 9 of 33 PageID #: 9Case 1:15-cv-0633 -RJD-LB Document 119-2 il 08/ 8/ 6 10 of 4 PageID #: 547 10 27. Defendant CLIFFSIDE NURSING HOME, INC. is a nursing home facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 11919 Graham Court, Flushing, New York 11354. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 28. Defendant FOREST VIEW NURSING HOME, INC. is a nursing home facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 7120 110th Street, Forest Hills, New York 11375. Defendant is a recipient of federal financial assistance and is subject to the requirements of Section 504 of the Rehabilitation Act, the Fair Housing Act, and the New York City Human Rights Law. 29. Defendant ULTIMATE CARE ASSISTED LIVING MANAGEMENT LLC is the exclusive management team that oversees operations at every assisted living community of The Bristal Assisted Living, and is a division of the Engel Burman Group. The facilities managed by Defendant include: The Bristal at White Plains, located at 305 North Street, White Plains, New York 10605; The Bristal at North Woodmere, located at 477 Hungry Harbor Road, North Woodmere, New York 11581; the Bristal at Sayville, located at 129 Lakeland Avenue, Sayville, New York 11782; the Bristal at Lynbrook, located at 8 Freer Street, Lynbrook, New York 11563; and The Bristal at Armonk, located at 90 Business Park Drive, Armonk, New York 10504. Upon information and belief, Defendant is a New York corporation doing business in this judicial District with a principal place of business at 5 Orville Drive, Bohemia, New York 11716. Defendant is subject to the requirements of the Fair Housing Act. 30. Defendant ENGEL BURMAN SENIOR HOUSING AT WHITE PLAINS LLC d/b/a THE BRISTAL AT WHITE PLAINS is an assisted living facility and dwelling located in Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 10 of 33 PageID #: 10Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 11 of 4 PageID #: 548 11 New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 305 North Street, White Plains, New York 10605. Defendant is subject to the requirements of the Fair Housing Act. 31. Defendant ENGEL BURMAN SENIOR HOUSING AT NORTH WOODMERE LLC d/b/a THE BRISTAL AT NORTH WOODMERE is an assisted living facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 124 Atlantic Avenue, Lynbrook, New York 11563. Defendant is subject to the requirements of the Fair Housing Act. 32. Defendant ENGEL BURMAN AT SAYVILLE LLC d/b/a THE BRISTAL AT SAYVILLE is an assisted living facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 129 Lakeland Avenue, Sayville, New York 11782. Defendant is subject to the requirements of the Fair Housing Act. 33. Defendant ENGEL BURMAN AT ARMONK, LLC d/b/a THE BRISTAL AT ARMONK is an assisted living facility and dwelling located in New York and a public accommodation engaged in the practice of healthcare, with a principal place of business located at 90 Business Park Drive, Armonk, New York 10504. Defendant is subject to the requirements of the Fair Housing Act. JURISDICTION & VENUE 34. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 over Plaintiff’s claims arising under federal law, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiff’s claims arising under state and local law. 35. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because the Defendants reside within the jurisdiction of this District, and/or a substantial part of the events that Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 11 of 33 PageID #: 11Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 2 of 4 PageID #: 549 12 give rise to the claims occurred in this District, and/or the Defendants have sufficient contacts with this District to subject them to personal jurisdiction at the time this action is commenced. STATEMENT OF FACTS FHJC Testing 36. FHJC’s testing investigation against the Defendants involved Testers making telephone or videophone calls to Defendants, and/or visiting Defendants’ facilities in person. The Testers, operating under aliases, made inquiries purportedly on behalf of fictional deaf relative(s). The Testers gathered preliminary information about Defendants’ services and inquired specifically about the availability of auxiliary aids and services, including onsite ASL interpreters, for their deaf relative(s). 37. Audio and/or video recordings were made of all contacts between the Testers and agents of the Defendants. Factual Allegations Against Defendants ALLURE REHABILITATION SERVICES LLC (and/or HAMILTON PARK MULTICARE LLC) Test #1 38. On October 22, 2014, Tester V.D., under an alias, visited Hamilton Park Rehabilitation Center on behalf of her “deaf aunt.” 39. Tester V.D. was in contact with Hamilton Park’s Director of Admissions Patricia Hogan during her visit of the facility. Tester V.D. mentioned to Ms. Hogan that her “aunt” is deaf and “needed someone to sign for her.” Ms. Hogan told Tester V.D. that Ms. Hogan would ask her boss about a sign language interpreter and get back to Tester V.D. 40. On October 28, 2014, Tester V.D. called Ms. Hogan and was told by Ms. Hogan that the nursing home would not provide a sign language interpreter for deaf residents. Test #2 Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 12 of 33 PageID #: 12Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 13 of 4 PageID #: 550 13 41. On January 28, 2015, Tester L.J., who is deaf, under an alias, called Hamilton Park Nursing Home via videophone to inquire whether they would provide an ASL interpreter for an elderly deaf resident. 42. Tester L.J. asked to speak with someone in Admissions but was put on hold indefinitely and eventually ended the call. Tester L.J. called back twenty minutes later and asked to speak with someone in Admissions. Tester L.J. was asked, “who are you?!” and “who are you trying to contact?!” Tester L.J. then asked if the facility would provide an interpreter for his “deaf mother.” A representative from the facility told Tester L.J. that she would write his name down and transfer him elsewhere. Tester L.J. repeatedly said that he needed an interpreter for his mother. Without responding to his requests, the representative hung up on Tester L.J. Test #3 43. On October 14, 2014, Tester L.D., under an alias, visited Bedford Center for Nursing and Rehabilitation on behalf of her “deaf grandmother.” 44. Tester L.D. met with a woman named Nicolette, and the Bedford Center Director of Admissions, Esther Katzburg. Ms. Katzburg told Tester L.D. that the facility does not have an interpreter for deaf residents. Instead, Ms. Katzburg told Tester L.D. that the facility has hard of hearing residents with whom they communicate through writing boards and symbol boards, but there were no staff members who communicated through ASL, and no interpreters were available. Factual Allegations Against Defendants CASSENA CARE LLC (and/or AMSTERDAM NURSING HOME CORPORATION and/or SEA CREST HEALTH CARE CENTER, LLC) Test # 1 45. On November 7, 2014, Tester R.G., under an alias, visited Shore View Nursing and Rehabilitation Center on behalf of his “deaf aunt.” 46. Tester R.G. met with Shore View Admissions Coordinator Belen Ausley and a Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 13 of 33 PageID #: 13Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 14 of 4 PageID #: 551 14 woman named Maya. Tester R.G. informed Maya that his “aunt” was deaf and would need an ASL interpreter. Maya informed Tester R.G. that she would need to check with Belen Ausley to see if an interpreter would be provided. 47. After waiting for over two weeks, Tester R.G. attempted to call Belen Ausley at Shore View on November 19th to request an ASL interpreter for his “aunt.” He was told by a representative of Shore View that Ms. Ausley would call him back shortly once she checked with her Administrator. 48. On January 16, 2015, Tester M.P., using the same alias that Tester R.G. had used, called Shore View Nursing Home at 11:30 a.m. to inquire whether an interpreter could be provided for a deaf family member. 49. Tester M.P. spoke with a woman named Maya, who told Tester M.P. that the facility did not have an ASL interpreter but that “deaf residents could communicate through pictures or writing.” Test #2 50. On January 23, 2015, Tester L.J., who is deaf, under an alias, called Shore View Nursing through a videophone to inquire whether Shore View offered an ASL interpreter for elderly deaf residents. 51. Tester L.J. asked to speak with Maya, but was told by a representative of Shore View that she was unavailable. Tester L.J. then asked for the Director of Admissions and was put through to a woman named Liz. Tester L.J. asked Liz if the facilities would provide an ASL interpreter, but Liz was unsure. Tester L.J. asked Liz again if the facility would provide an ASL interpreter. Liz put Tester L.J. on hold, and eventually told him that the facility would not provide an interpreter. Test #3 Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 14 of 33 PageID #: 14Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 15 of 4 PageID #: 552 15 52. On November 19, 2014, Tester S.B., under an alias, called Amsterdam Nursing Home to inquire about an ASL interpreter for her “deaf aunt.” 53. Tester S.B. spoke with an admissions staff member for Amsterdam Nursing Home named Amelia over the phone. Tester S.B. asked Amelia whether the nursing home would provide an ASL interpreter for her “aunt.” Tester S.B. was told by Amelia that Amsterdam Nursing Home does not provide ASL interpreters. Test #4 54. On November 12, 2014, Tester M.P., under an alias, visited the Sea Crest nursing home on behalf of his “deaf mother.” 55. Tester M.P. met with Sea Crest nursing home staff member Donna Sheps. Tester M.P. asked Ms. Sheps whether there was a staff member who was ASL fluent. Ms. Sheps told Tester M.P. that she would check with an administrator to find out the information. Ms. Sheps later told Tester M.P. that there are no ASL interpreters at the facility but someone could communicate with a deaf resident by writing at any meetings, church services, and bingo games. Ms. Sheps also told Tester M.P. that the nursing home would be able to communicate with a deaf resident through pointing and gesturing. Test #5 56. On December 18, 2014, Tester M.P., under an alias, visited Sayville Nursing and Rehabilitation Center on behalf of his “deaf aunt.” 57. Tester M.P. met with Danielle Greenan, a representative for Sayville Nursing and Rehabilitation Center, and inquired whether the facility would provide an ASL interpreter. Ms. Greenan told Tester M.P. that she would call him back after she found out whether the facility would provide an interpreter. 58. On January 15, 2015, Ms. Greenan called Tester M.P. back. Ms. Greenan told Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 15 of 33 PageID #: 15Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 16 of 4 PageID #: 53 16 Tester M.P. that the facility did not have an ASL interpreter; rather, they used a program called “Language Live,” which is a computer program that translates all languages onto a computer screen. Tester M.P. was told that ASL is part of the “Language Live” program. Tester M.P. asked Ms. Greenan how the program worked for ASL but Ms. Greenan was uncertain. Ms. Greenan asked a colleague to clarify how the program worked and told Tester M.P. that a nursing home staff member would hold the computer screen and the deaf resident could see words on the screen translated into ASL. Tester M.P. was told that since the facility used “Language Live,” it would not provide an ASL interpreter. Factual Allegations Against Defendants CENTERS FOR SPECIALTY CARE GROUP LLC Test # 1 59. On October 28, 2014 Tester V.D., under an alias, visited Boro Park Center for Rehabilitation and Health Care on behalf of her “deaf aunt.” 60. Tester V.D. met with Boro Park Center’s Director of Admissions Kathy Song. Tester V.D. asked Ms. Song whether the facility offered an ASL interpreter for deaf, elderly residents. In response, Ms. Song stated that the facility did not have that service. Ms. Song further stated that Tester V.D.’s “aunt” would need to use a white board to communicate. Tester V.D. asked Ms. Song whether the facility would be willing to hire an ASL interpreter and was told “no” by Ms. Song. Test # 2 61. On January 28, 2015, Tester L.J., who is deaf, under an alias, called Boro Park Center for Rehabilitation and Health Care through a videophone to inquire whether they would offer an ASL interpreter for deaf elderly residents. 62. Tester L.J. spoke with a representative of Boro Park Center, asked to speak with the Director of Admissions, and was transferred to Kathy Song, who stated that the facility does Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 16 of 33 PageID #: 16Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 17 of 4 PageID #: 554 17 not offer sign language interpreters. Test #3 63. On January 20, 2015, Tester S.B., under an alias, visited Brooklyn Center for Rehabilitation and Residential Healthcare on behalf of her “deaf aunt.” 64. Tester S.B. met with Shireen Miah, Brooklyn Center’s Director of Admissions, and Travis Walcott, Brooklyn Center’s Assistant Director of Admissions. Tester S.B. was given a tour of the facilities, and in response to her inquiries about an ASL interpreter, was told by Ms. Miah that an ASL interpreter would not be provided for just one resident. Further, Ms. Miah told Tester S.B. that because the doctors are only available from 9 a.m. to 5 p.m. it did not make sense for the facility to have an ASL interpreter available for 24 hours. Factual Allegations Against Defendants SENIOR MED LLC (and/or CROWN NURSING HOME ASSOCIATES INC.) Test # 1 65. On November 12, 2014, Tester D.B., under an alias, visited Crown Nursing and Rehabilitation Center on behalf of his “deaf aunt.” 66. Tester D.B. met with Crown’s Director of Admissions Tracy Peterson. Ms. Peterson gave Tester D.B. a tour of the facilities including the dining room, rehabilitation therapy center, and activities room. Tester D.B. asked Ms. Peterson whether the facility would provide an interpreter. Ms. Peterson told Tester D.B. that the facility does not provide a dedicated ASL interpreter or offer ASL interpreter services but would provide other services such as writing materials for the deaf resident to use to communicate. Test #2 67. On January 28, 2015, Tester L.J., who is deaf, under an alias, called Crown Nursing and Rehabilitation through a videophone to inquire whether the facility would offer an ASL Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 17 of 33 PageID #: 17Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 18 of 4 PageID #: 555 18 interpreter for deaf elderly residents. 68. Tester L.J. spoke with Crown’s Director of Admissions, Tracy, on the phone and asked for a tour of the facilities for his “deaf mother.” Tester L.J. asked Tracy if the facility would provide an ASL interpreter for his “mother.” Tracy told Tester L.J. that the facility did not have an interpreter, but that there were other ways to communicate such as using pen and paper. Tester L.J. responded that his “mother” could not write back and forth, and asked again whether the facility would provide an ASL interpreter. Tracy then told Tester L.J. that an ASL interpreter would not be offered. Factual Allegations Against Defendants SENTOSACARE LLC (and/or WHITE PLAINS CENTER FOR NURSING CARE and/or EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC and/or GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC) Test # 1 69. On November 6, 2014, Tester R.G., using an alias, visited Spring Creek Rehabilitation and Nursing Care Center on behalf of his “deaf mother.” 70. Tester R.G. met with the Spring Creek Director of Admissions, Ari Ungar. Tester R.G. was given a tour of the facilities including the dining hall, activity room, and beauty parlor. In response to his inquiry, Mr. Ungar told Tester R.G. that there is no one on staff qualified in ASL. Mr. Ungar told Tester R.G. that there are deaf people at the facility, but they communicate through use of a communication board and writing. Test # 2 71. On March 4, 2015, Tester L.D., under an alias, called Spring Creek Rehabilitation Center. 72. Tester L.D. asked to meet with the Director of Admissions or the Director of Therapy and Recreation. Tester L.D. informed the person who answered the telephone for Spring Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 18 of 33 PageID #: 18Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 19 of 4 PageID #: 556 19 Creek that her “deaf brother” had called the facility on behalf of their “deaf mother,” and that she wanted to confirm from her “brother’s” conversation with a representative named Erika that an interpreter could be provided. Tester L.D. spoke with Ari in the Admissions office. Ari told Tester L.D. that that the facility did not have an ASL interpreter and would not provide an ASL interpreter for Tester L.D.’s “mother.” Ari stated that he did not know of other facilities that provided an ASL interpreter for deaf elderly residents. Ari stated that Tester L.D. should “ask ASL for an interpreter,” whereupon Tester L.D. informed him that ASL is not an organization but rather the abbreviated term for American Sign Language. Tester L.D. expressed her disappointment with the facility and ended the phone call. Test #3 73. On November 18, 2014, Tester M.P., under an alias, visited Throgs Neck Extended Care Facility on behalf of his “deaf aunt.” 74. Tester M.P. met with a woman named Lisa who is believed to be a representative of Throgs Neck Extended Care Facility. Tester M.P. asked Lisa if there were accommodations for deaf elderly residents at the facility and whether an ASL interpreter would be provided. In response, Lisa told Tester M.P. “No,” and “I don’t think so” when asked about the availability of an ASL interpreter. Tester M.P. asked Lisa repeatedly whether there was someone she could check with regarding the availability of an interpreter. Lisa told Tester M.P. “Definitely, definitely no,” the facility would not provide anyone who knew ASL. Test #4 75. On January 29, 2015, Tester M.P., under an alias, visited White Plains Center for Nursing Care on behalf of his “deaf grandmother.” 76. Tester M.P. met with the White Plains’ Director of Admissions Yesenia Jessie Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 19 of 33 PageID #: 19Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 20 of 4 PageID #: 557 20 Hidalgo. Tester M.P. asked Ms. Hidalgo whether the facility had an ASL interpreter. Ms. Hidalgo told Tester M.P. that the facility offered braille. Tester M.P. informed Ms. Hidalgo that braille is for blind persons and not for those who are deaf. Ms. Hidalgo said that she did not believe they offered an ASL interpreter. Tester M.P. asked Ms. Hidalgo to check whether or not there were interpreter services. Ms. Hidalgo checked and told Tester M.P. that “no” an interpreter would not be provided. Test #5 77. On October 29, 2014, Tester S.B., under an alias, visited Eastchester Rehabilitation and Health Care Center on behalf of her “deaf aunt.” 78. Tester S.B. met with Jillian Brenner, the Eastchester Director of Admissions. Tester S.B. asked Ms. Brenner whether the facility has a staff member who is an ASL interpreter for elderly deaf residents. Ms. Brenner told Tester S.B. that she would look into the matter and get back to her. 79. On October 29, 2014 at 3:15 p.m. Tester S.B. called Ms. Brenner to inquire whether an ASL interpreter would be provided. Ms. Brenner told Tester S.B. that she spoke with the Director of Nursing and there is no one on the nursing staff who is ASL fluent. Ms. Brenner told Tester S.B. that she would inquire whether there was an ASL fluent staff member in either the rehabilitation or recreation divisions of the facility. 80. October 29, 2014, at 5:05 p.m. Tester S.B. received a voicemail from a woman named Jillian, who said she was calling from Eastchester Rehabilitation. Jillian stated that she spoke with the Director of Nursing and the facility would not provide an ASL interpreter, but that deaf residents could instead communicate through a communication board. Test #6 Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 20 of 33 PageID #: 20Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 21 of 4 PageID #: 558 21 81. On March 12, 2015, Tester R.G., under an alias, visited Golden Gate Rehabilitation and Health Care Center on behalf of his “deaf aunt.” 82. Tester R.G. met with Golden Gate staff members Debra, a Speech Therapist, and Denise Fredrick, a registered nurse. Tester R.G. informed Debra and Denise that his “aunt” would need an ASL interpreter. Debra and Denise inquired whether Tester R.G.’s “aunt” was completely deaf or could lip read. Debra told Tester R.G. that she knew basic ASL and could communicate on a limited basis since she had a “functional ability.” Tester R.G. was told that the facility had a board with words and pictures that residents could use to communicate. Defendant also told Tester R.G. there were some ASL fluent volunteers who periodically visit the facility, but that the facility would not provide a professional ASL interpreter. Factual Allegations Against Defendant CLIFFSIDE NURSING HOME, INC. 83. On January 23, 2015, Tester L.J., who is deaf, under an alias, called Cliffside Rehabilitation and Health Care through a videophone to inquire whether the facility would offer an ASL interpreter for deaf elderly residents. 84. Tester L.J. was told by a representative of Cliffside that an interpreter would not be provided but a deaf resident could communicate with writing. Tester L.J. asked to speak with the director of admissions but was hung up on by the person who answered the telephone for Cliffside. Factual Allegations Against Defendants FOREST VIEW NURSING HOME, INC. 85. On January 7, 2015, Tester S.B., under an alias, visited Forest View Center for Rehabilitation and Nursing on behalf of her “deaf aunt.” 86. Tester S.B. was given a tour of the facilities, including the recreation hall, dining hall, and patio. Tester S.B. inquired whether the facility would offer an ASL interpreter for her “deaf aunt” and was told by the agent who gave her the tour, named Kalani, to call the facility back Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 21 of 33 PageID #: 21Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 22 of 4 PageID #: 559 22 to verify whether or not one could be provided. 87. On January 7, 2015, Tester S.B. called Forest View’s Director of Admissions Lori Cashman to ask whether the facility would provide an ASL interpreter, but there was no response. Later that same day, Tester S.B. called Lori Cashman again and was told by Ms. Cashman that the facility would provide a “communication board” but not an ASL interpreter. Factual Allegations Against Defendants ULTIMATE CARE ASSISTED LIVING MANAGEMENT LLC (and/or ENGEL BURMAN SENIOR HOUSING AT WHITE PLAINS LLC and/or ENGEL BURMAN SENIOR HOUSING AT NORTH WOODMERE LLC and/or ENGEL BURMAN AT SAYVILLE, LLC and/or ENGEL BURMAN AT ARMONK, LLC) Test #1 88. On November 19, 2014, Tester B.T., under an alias, visited The Bristal at White Plains on behalf of her “deaf aunt.” 89. Tester B.T. met with Lori Gest, Faray Kayani, and Helayne Schier, all representatives of The Bristal. Tester B.T. asked whether the facility had an ASL interpreter available and was told by Faray Kayani, the facility’s Executive Director, that the facility would respond to the question by 5 p.m. Later during the visit, Faray Kayani said that an ASL interpreter would not be provided but it was possible for the Tester B.T. to look into providing one for herself through government subsidies. 90. On December 19, 2014, Tester B.T. called the facility to inquire about an ASL interpreter. Faray Kayani told Tester B.T. that the facility does not have anyone to interpret ASL, that “we don’t have to provide that service,” and that it was “not something [they] would provide.” Test #2 91. On April 6, 2015, Tester L.J., who is deaf, under an alias, contacted The Bristal at North Woodmere through videophone on behalf of his “deaf mother.” 92. Tester L.J. contacted the facility to inquire whether it would provide an interpreter Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 22 of 33 PageID #: 22Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 3 of 4 PageID #: 560 23 for his elderly deaf “mother.” Tester L.J. spoke with a representative of the facility named Jeffrey, who told him that the facility would not provide an ASL interpreter but that Tester L.J. could hire an interpreter privately. Test #3 93. One May 11, 2015, Tester A.H., under an alias, called the Bristal at Sayville on behalf of her “deaf aunt.” 94. Tester A.H. inquired about the availability of an interpreter, at least part-time, for her “deaf aunt,” whom she said communicated through ASL. After speaking with numerous agents of Defendant, Tester A.H. was told by Laura in Defendant’s marketing department that the facility would not hire an ASL interpreter. Laura also told Tester A.H. that there are volunteers who sometimes visit the facility and know ASL, but the facility would not hire a professional ASL interpreter. Laura further told Tester A.H. that her family should consider hiring a private, ASL- fluent companion for her “aunt.” Test #4 95. On April 1, 2015, Tester K.H., under an alias, called The Bristal at Lynbrook to inquire whether it would provide an interpreter for her “deaf grandmother.” 96. John, an agent of Defendant, told Tester K.H. that an interpreter was not available and there were no plans to hire one in the near future. Test #5 97. On April 6, 2015, Tester L.J., who is deaf, under an alias, called The Bristal at Armonk through a videophone on behalf of his “deaf mother.” 98. Tester L.J. told a representative of the facility that his “mother” is a deaf elderly woman and would require an interpreter. Tester L.J. was told that the facility would call him back Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 23 of 33 PageID #: 23Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 24 of 4 PageID #: 561 24 regarding whether or not an interpreter could be provided. Later, Tester L.J. called the facility back and spoke with Maria Ewen, a representative of The Bristal, who informed him that the facility would not provide an interpreter. 99. On April 6, 2014, Tester L.J. also received a sign mail (i.e., a video voicemail in ASL) message from Defendant’s facility letting him know affirmatively that they would not provide an interpreter for his “mother.” COUNT I: VIOLATIONS OF SECTION 504 OF THE REHABILITATION ACT AGAINST THE FOLLOWING DEFENDANTS:  ALLURE REHABILITATION SERVICES LLC,  HAMILTON PARK MULTICARE LLC,  CASSENA CARE LLC,  AMSTERDAM NURSING HOME CORPORATION,  SEA CREST HEALTH CARE CENTER, LLC  CENTERS FOR SPECIALTY CARE GROUP LLC  SENIOR MED LLC,  CROWN NURSING HOME ASSOCIATES INC,  SENTOSACARE LLC,  WHITE PLAINS CENTER FOR NURSING CARE,  EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC,  GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC,  CLIFFSIDE NURSING HOME, INC.,  FOREST VIEW NURSING HOME, INC. 100. Plaintiff repeats and realleges all preceding paragraphs in support of this claim. 101. At all times relevant to this action, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 has been in full force and effect and has applied to the Defendants’ conduct. 102. At all times relevant to this action, the United States Department of Health and Human Services (“HHS”) regulations implementing Section 504 of the Rehabilitation Act, 45 C.F.R. Part 84, have been in full force and effect and have applied to the Defendants’ conduct. 103. At all times relevant to this action, Defendants received federal financial assistance, Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 24 of 33 PageID #: 24Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 25 of 4 PageID #: 562 25 including Medicare and/or Medicaid grants and/or reimbursements, and have been principally engaged in the business of providing health care. Therefore, Defendants’ nursing homes are “a program or activity” receiving federal financial assistance pursuant to 29 U.S.C. § 794(b). 104. Pursuant to Section 504 of the Rehabilitation Act, “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794. 105. Defendants’ actions constitute discrimination, solely on the basis of disability, by denying meaningful access to the services, programs, and benefits the Defendants offer to other individuals, and by refusing to provide auxiliary aids and services necessary to ensure effective communication, in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 106. The Rehabilitation Act extends standing and relief to “any person aggrieved” by discrimination in violation thereof. 29 U.S.C. § 794a(a)(2). Plaintiff is an aggrieved person as defined by Section 794a(a)(2) of the Rehabilitation Act. 107. On information and belief, the refusal to offer onsite ASL interpreter services is the result of a policy or practice of Defendants to prohibit or impede the use of onsite qualified sign language interpreters without regard to whether other methods will provide effective communication. 108. Pursuant to Federal regulations implementing Section 504 of the Rehabilitation Act, programs or activities receiving Federal financial assistance “must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.” 45 C.F.R. § 84.4(b)(2). Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 25 of 33 PageID #: 25Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 26 of 4 PageID #: 63 26 109. Pursuant to Federal regulations implementing Section 504 of the Rehabilitation Act, healthcare providers “shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question. . . . For the purpose of this paragraph, auxiliary aids may include brailled and taped material, interpreters, and other aids for persons with impaired hearing or vision.” 45 C.F.R. § 84.52(d). 110. As set out above, absent injunctive relief there is a clear risk that Defendants’ actions will continue to occur and continue to frustrate Plaintiff’s mission. 111. Plaintiff is therefore entitled to seek and recover compensatory damages for the injuries and loss sustained as a result of Defendants’ discriminatory conduct and deliberate indifference, including the diversion of its resources and frustration of its mission, as hereinbefore alleged, pursuant to 29 U.S.C. § 794(a). 112. Plaintiff is further entitled to an award of attorney’s fees, costs, and disbursements pursuant to the Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) and/or common law. COUNT II: VIOLATIONS OF THE NEW YORK CITY HUMAN RIGHTS LAW AGAINST THE FOLLOWING DEFENDANTS:  ALLURE REHABILITATION SERVICES LLC,  HAMILTON PARK MULTICARE LLC,  CASSENA CARE LLC,  AMSTERDAM NURSING HOME CORPORATION,  SEA CREST HEALTH CARE CENTER, LLC,  CENTERS FOR SPECIALTY CARE GROUP LLC,  SENIOR MED LLC,  CROWN NURSING HOME ASSOCIATES INC,  SENTOSACARE LLC,  EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC,  GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC,  CLIFFSIDE NURSING HOME, INC.,  FOREST VIEW NURSING HOME, INC. Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 26 of 33 PageID #: 26Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 27 of 4 PageID #: 564 27 113. Plaintiff repeats and realleges all preceding paragraphs in support of this claim. 114. At all times relevant to this action, the New York City Human Rights Law (“NYCHRL”), New York City Administrative Code § 8-101 et. seq. has been in full force and effect and has applied to Defendants’ conduct. 115. At all times relevant to this action, Defendants’ facilities have been places of public accommodation within the meaning of N.Y.C. Admin. Code § 8-102(9). 116. At all times relevant to this action, Defendants’ facilities have been housing accommodations within the meaning of N.Y.C. Admin. Code § 8-102(10). 117. Pursuant to N.Y.C. Admin. Code § 8-107(4), it shall be unlawful discrimination for “any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation because of . . . disability . . . of any person directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.” 118. Additionally, pursuant to N.Y.C. Admin. Code § 8-107(15)(a), a place of public accommodation “shall make reasonable accommodation to enable a person with a disability to . . . enjoy the right or rights in question provided that the disability is known or should have been known by the covered entity.” 119. N.Y.C. Admin. Code § 8-107(5)(a)(2) further provides that it shall be “an unlawful discriminatory practice for the owner, lessor, lessee, sublessee, assignees, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of housing accommodation . . . to discriminate against any person because of such person’s actual or perceived . . . disability.” 120. N.Y.C. Admin. Code § 8-107(5)(a)(3) further provides that it shall be unlawful “to Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 27 of 33 PageID #: 27Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 28 of 4 PageID #: 565 28 declare, print or circulate or cause to be declared, printed or circulated any statement, advertisement or publication . . . which expresses, directly or indirectly, any limitation, specification or discrimination as to . . . disability . . . or any intent to make such limitation, specification or discrimination.” 121. Defendants discriminated on the basis of disability by withholding the accommodations, advantages, facilities or privileges of Defendants’ services, in violation of N.Y.C. Admin. Code § 8-107(4); by failing to accommodate in violation of N.Y.C. Admin. Code § 8- 107(15)(a); by adopting policies that discriminate and deny full and equal participation in housing because of disability in violation of N.Y.C. Admin. Code § 8-107(5)(a); and by making statements expressing discrimination and limitations based on disability in violation of N.Y.C. Admin. Code § 8-107(5)(a)(3). 122. The NYCHRL extends standing and relief to “any person claiming to be aggrieved by an unlawful discriminatory practice” in violation thereof. N.Y.C. Admin. Code § 8-502(a). Plaintiff is an aggrieved person as defined by Section 8-502(a) of the N.Y.C. Admin. Code. 123. As set out above, absent injunctive relief there is a clear risk that Defendant’s actions will continue to occur and continue to frustrate Plaintiff’s mission. 124. Plaintiff is therefore entitled to seek and recover compensatory damages for the injuries and loss sustained as a result of Defendants’ discriminatory conduct, including diversion of resources and frustration of mission, as hereinbefore alleged pursuant to N.Y.C. Admin. Code § 8-502(a). 125. Plaintiff is further entitled to an award of punitive damages pursuant to N.Y.C. Admin. Code § 8-502(a). 126. Plaintiff is further entitled to an award of attorney’s fees, costs, and disbursements Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 28 of 33 PageID #: 28Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 29 of 4 PageID #: 566 29 pursuant to N.Y.C. Admin. Code § 8-502(g). COUNT III: VIOLATIONS OF THE FAIR HOUSING ACT AGAINST ALL DEFENDANTS 127. Plaintiff repeats and realleges all preceding paragraphs in support of this claim. 128. This action is brought to enforce of the Fair Housing Act (“FHA”), 42 U.S.C. § 3604, et. seq. 129. Defendants own and lease dwellings within the meaning of U.S.C. § 3602(b), which includes “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.” 130. The FHA provides that it is illegal “to discriminate against any person in the terms, conditions, privileges of sale or rental of a dwelling or in the provision of services or facilities in connection with such dwelling,” because of disability. 42 U.S.C. § 3604(f)(2). 131. Under the FHA, discrimination includes “a refusal to make reasonable accommodations in rules, polices, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). 132. Under the FHA, it is unlawful to “make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on . . . handicap . . . or an intention to make any such preference, limitation, or discrimination.” 42 U.S.C. § 3604(c). 133. Plaintiff’s Testers requested and were denied the reasonable accommodation of having a qualified ASL interpreter for their elderly “family members,” which would allow access and an opportunity to participate, use and enjoy services provided by Defendants’ facilities that are connected to their dwellings and which equally situated hearing residents are able to enjoy. Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 29 of 33 PageID #: 29Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 30 of 4 PageID #: 567 30 134. Defendants discriminated on the basis of disability, in violation of the above-cited provisions of the FHA. 135. Defendants violated the FHA by, inter alia, denying Plaintiff’s Testers’ requests for the provision of a qualified sign-language interpreter and thereby denying their prospective “family members,” on whose behalf the Testers were inquiring, access to services, programs or activities provided by Defendants in connection to their dwellings. 136. Plaintiff is an aggrieved person within the meaning of 42 U.S.C. § 3602(i), has been injured by the Defendants’ discriminatory conduct, and has suffered damages, including diversion of resources and frustration of mission, as a result. 137. Accordingly, Plaintiff is entitled to actual damages, punitive damages, injunctive relief, and reasonable attorneys’ fees and costs pursuant to the FHA, 42 U.S.C. § 3613(c). PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays that this Court grant the following relief: a. Enter a declaratory judgment, pursuant to Rule 57 of the Federal Rules of Civil Procedure, stating that Defendants’ policies, procedures, and practices have discriminated in violation of FHA, Section 504 of the Rehabilitation Act, and/or the New York City Human Rights Law; b. Enjoin Defendants from implementing or enforcing any policy, procedure, or practice that denies deaf or hard of hearing individuals meaningful access to and full and equal enjoyment of Defendants’ facilities, services or programs; c. Order Defendants: i. to develop, implement, promulgate, and comply with a policy prohibiting future discrimination against deaf or hard of hearing individuals by failing Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 30 of 33 PageID #: 30Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 31 of 4 PageID #: 568 31 to provide effective communication; ii. to develop, implement, promulgate, and comply with a policy requiring that when a deaf or hard of hearing individual requests an onsite interpreter for effective communication, one will be provided as soon as practicable in all services offered by Defendants; iii. to develop, implement, promulgate, and comply with a policy to ensure that Defendants will notify individuals who are deaf or hard of hearing of their right to effective communication. This notification will include posting explicit and clearly worded notices that Defendants will provide sign language interpreters, videophones, and other communication services to ensure effective communication with deaf or hard of hearing persons; iv. to develop, implement, promulgate, and comply with a policy to ensure that deaf or hard of hearing individuals are able to communicate through the most appropriate method under the circumstances; v. to create and maintain a list of American Sign Language interpreters and ensure availability of such interpreters at any time of day or night; vi. to train all their employees, staff, and other agents on a regular basis about the rights of individuals who are deaf or hard of hearing under the Rehabilitation Act, NYCHRL, and FHA; vii. to train all their employees, staff, and other agents on a regular basis about Defendants’ policy regarding how to obtain interpreters when reasonably requested by deaf or hard of hearing individuals; and viii. to implement a program of testing Defendants’ employees, staff, and other Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 31 of 33 PageID #: 31Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 32 of 4 PageID #: 569 32 agents to determine whether they are complying with the requirements of Section 504 of the Rehabilitation Act, the FHA, and the NYCHRL. d. Award to Plaintiff: i. Compensatory damages pursuant to Section 504 of the Rehabilitation Act, the FHA, and the NYCHRL; ii. Punitive damages pursuant to the FHA and the NYCHRL; iii. Reasonable costs and attorneys’ fees pursuant to Section 504 of the Rehabilitation Act, the FHA, and the NYCHRL; iv. Interest on all amounts at the highest rates and from the earliest dates allowed by law; v. Any and all other relief that this Court finds necessary and appropriate. JURY DEMAND Plaintiff demands trial by jury for all of the issues a jury properly may decide, and for all of the requested relief that a jury may award. Respectfully submitted, Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 32 of 33 PageID #: 32Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 33 of 4 PageID #: 570 EISENBERG & BAUM, By: Eric M. Baum, Esq_ -5493) ebaurni@EardBla ,com Andrew Rozynski, Esq. (AR-2870) arozynski@EandBIaw, COM Attorneys for Plaintiffs Office and Post Office Address 24 Union Square East, Fourth Floor New York, NY 10003 (212) 353-8700 33 Case 1:15-cv-06336-RJD-LB Document 1 Filed 11/04/15 Page 33 of 33 PageID #: 33Case 1:15-cv 06336-RJD-LB Document 119-2 Filed 08/08/16 Page 4 of 4 PageID #: 571 Exhibit 2 Case 1:15-cv-06336-RJD-LB Document 119-3 Filed 08/08/16 Page 1 of 3 PageID #: 572 5/16/2016 NY.gov Profile: Bedford Center for Nursing and Rehabilitation Department NYS Health Profiles of Health Find and Compare New York Health Care Providers YORK STATE Hospice 0 Deniers Help Home Hospitals Ntcrslnst H for Nirsing ar Search County/ v IV Quality E.4 Inspections R Bedford Center for Nursing and Rehabilitation 40 Heyward Street Brooklyn , NY 11249 (718) 85876200 Web site: www.bedfordcenterrehab.com/ ▪ Services O Beds ®Administrative • Ownership: Proprietary--LLC • Operated by: Williamsburg Services, LLC 40 Heyward Street Brooklyn, NY 11249 • PH: 1409 • Operating certificate: 7001805N • DOH Regional Office: New York Metro - New York City • Medicaid, Medicare certified C Statistics 0 Ombudsman Directions ,{Ss Nen soot il Union Says' My Providers :Jinni I art ~rtfaci~iNsnan http://profiles.health.ny.gov/nursing_horne/view/150713 1/2 Case 1:15-cv-06336-RJD-LB Document 119-3 Filed 08/08/16 Page 2 of 3 PageID #: 573 5/16/2016 NY.gov Profile: Bedford Center for Nursing and Rehabilitation Further Reading About Nursing Home Performance Consumer Guide: Selecting Nursing Homes About Nursing Home Services Nursing Home Resources Alternatives to Nursing Home Care Submit a Complaint About a Nursing Home About Nursing Home Inspections Nursing Home Quality Initiative Information Nursing Home Quality Initiative Data on Health Data NY Contact Us By r; snail Facebook Twitter Take our survey News Sr Updates Hospital-Acquired Data Updated Medicare Quality Measure Updates Clinics Section Added Adult Care Facility Annual Bed Census U Ac Medicare I losnital Compare Quarterly Update Navigate Horne Hospitals Nursing blames Home Core Hospice Health Data NY Profiles Datasets Disclaimer powered by IPRO's Health Informatics http://profiles.health.ny.govinursing_home/view/150713 2/2 Case 1:15-cv-06336-RJD-LB Document 119-3 Filed 08/08/16 Page 3 of 3 PageID #: 574 Exhibit 3 Case 1:15-cv-06336-RJD-LB Document 119-4 Filed 08/08/16 Page 1 of 3 PageID #: 575 5/16/2016 NY.gov Profile: Hamilton Park Nursing and Rehabilitation Center Department NYS Health Profiles of Health Find and Compare New York Health Care Providers r rNEW YORK STATE Horne Coro 0 Hoopice 0 Do0t(Ve Help Hume Hoe [Janis 0 N ore kf g homes 0 rni •-larrii ton Park Nursirp and Rei itaii (7.k:. -der Search County/ Overview V Quality CK Inspections DI Hamilton Park Nursing and Rehabilitation Center 691 92 Street Brooklyn , NY 11228 (718) 567-1820 Web site: www.hamiltonparkrehab.com/ 0 Services 0 Beds 0 Administrative • Ownership: Proprietary--LLC • Operated by: Hamilton Park Multicare, LLC 699 92nd Street Brooklyn, NY 11228 • PFI: 4285 • Operating certificate: 7001034N • DOH Regional Office: New York Metro - New York City • Medicaid, Medicare certified 0 Statistics 0 Ombudsman Directions niWry y Providers lb compare faCiiiti0e, did( oil the 1•:licon NW to each facility's noire, http://profiles.health.ny.gov/nursing_homerview/150847 1/2 Case 1:15-cv-06336-RJD-LB Document 119-4 Filed 08/08/16 Page 2 of 3 PageID #: 576 5/16/2016 NY.gov Profile: Hamilton Park Nursing and Rehabilitation Center Further Reading About Nursing Home Performance Consumer Guide: Selecting Nursing Homes About Nursing Home Services Nursing Home Resources Alternatives to Nursing Home Care Submit a Complaint About a Nursing Home About Nursing Home Inspections Nursing Home Quality Initiative Information Nursing Home Quality Initiative Data on Health Data NY Contact Us By email FacebooR wstter Take our survey News & Updates Hospital-Acquired Data Updated Medicare Duality Measure Updates Clinics Section Added Adult Care Facility Annual Bed Census Data Medicare Hospital Compare Quarterly tirdate Navigate 1orne Hospitals Nursing Homes Home Care Hospice Health Data NY Profiles Datasets Disclaimer powered by (PRO's Health Informatics http://profiles.health.ny.gov/nursing_home/view/1508.47 2/2 Case 1:15-cv-06336-RJD-LB Document 119-4 Filed 08/08/16 Page 3 of 3 PageID #: 577 Exhibit 4 Case 1:15-cv-06336-RJD-LB Document 119-5 Filed 08/08/16 Page 1 of 3 PageID #: 578 5/16/2016 NY.gov Profile: Shore View Nursing & Rehabilitation Center Department NYS Health Profiles of Health Find and Compare New York Health Care Providers f irNEW YORK STATE 0 Hosoke (St Doctors Search County/ • Overvicm V Quality E4 Inspections Shore View Nursing & Rehabilitation Center 2865 Brighton 3rd Street Brooklyn , NY 11235 (718) 891-4400 Web site: wwwshoreviewrehab.com/ Services Beds Administrative • Ownership: Proprietary--LLC • Operated by: Shore View Acquisition I, LLC 2865 Brighton & 3rd Street Brooklyn, NY 11235 • PH: 1399 • Operating certificate: 7001399N • DOH Regional Office: New York Metro - New York City • Medicaid, Medicare certified o Statistics Ombudsman Directions My Providers 011 cis n the Itlicon next to each fat i nan http://profiles.health.ny.gov/nursing_home/view/150704 1/2 Case 1:15-cv-06336-RJD-LB Document 119-5 Filed 08/08/16 Page 2 of 3 PageID #: 579 5/16/2016 NY.gov Profile: Shore View Nursing & Rehabilitation Center Further Reading About Nursing Home Performance Consumer Guide: Selecting Nursing Homes About Nursing Home Services Nursing Home Resources Alternatives to Nursing Home Care . . _ Submit a Complaint About a Nursing Home About Nursing Home Inspections Nursing Home Quality Initiative Information Nursing Home Quality Initiative Data on Health Data NY. Contact Us Facebook Twitter Take cur survey News & Updates I inspitakAcquired Data Ugric ied Medicare Quality Measure Updates Clinics Section Added Adult Care Facility Annual Ned Census D Fla Medicare Hospital Compare Quarterly Ur date Navigate Home Hospitals Nursing Home Home Care Hospice Health Data NY Profiles Datasets DiSdahalet powered by (PRO's Health Informatics http://profiles.health.ny.gov/nursing_home/view/150704 2/2 Case 1:15-cv-06336-RJD-LB Docum nt 119-5 Filed 08/08/16 Page 3 of 3 PageID #: 580 Exhibit 5 Case 1:15-cv-06336-RJD-LB Document 119-6 Filed 08/08/16 Page 1 of 3 PageID #: 581 NEW YORK STATE 1 Home Department NYS Health Profiles of Health Find and Compare New York Health Care Providers Hors ia ci Homes 0 Home Care 0 Hospitals 0 Heir ICI PvlY±4. Te Neln an,prk liad,enr,att My Providers 5/16/2016 NY.gov Profile: Amsterdam Nursing Home Corp (1992) Search County/ • Overview ‘11 Quality .2 Inspections P Amsterdam Nursing Home Corp (1992) 1060 Amsterdam. Avenue New York , NY 10025 (212) 678-2600 Web site: www.amsterdamcares.com/ Services 0 Beds 0 Administrative • Ownership: Voluntary--Not for Profit Corporation • Operated by: Amsterdam Nursing Home Corporation (1992) 1060 Amsterdam Avenue New York, NY 10025 • PFI: 1605 • Operating certificate: 7002356N • DOH Regional Office: New York Metro - New York City • Medicaid, Medicare certified 0 Statistics 0 Ombudsman Directions Ilck on Ho I http://profiles.health.ny.gov/nursing_home/view/150727 1/2 Case 1:15-cv-06336-RJD-LB Document 119-6 Filed 08/08/16 Page 2 of 3 PageID #: 582 5/16/2016 NY.gov Profile: Amsterdam Nursing Home Corp (1992) Further Reading About Nursing Home Performance Consumer Guide: Selecting Nursing Homes About Nursing Home Services Nursing Home Resources Alternatives to Nursing Home Care Submit a Complaint About a Nursing Home About Nursing Home Inspections Nursing Home Quality Initiative Information Nursing Home Quality Initiative Data on Health Data NY Contact Us By email Twitter &to our survey News & Updates Hospital-Acquired Data Updated Medicare Quality Measure Updates Clinics, Section Added Adult Care Facility Annual Bed Census , Medicare Hospital Cornpare Quarterly SF draft Navigate Home Hospitals Nursing Names Home Care Hospice Health Data NY Profiles 'Datasot Disclaimer powered by IPRO's Health Informatics http://profdes.health.ny.gov/nursing_home/view/150727 2/2 Case 1:15-cv-06336-RJD-LB Document 119-6 Filed 08/08/16 Page 3 of 3 PageID #: 583 Exhibit 6 Case 1:15-cv-06336-RJD-LB Document 119-7 Filed 08/08/16 Page 1 of 3 PageID #: 584 Delp Hospico 0 Doctors Koran liceeitnts Nursing Donets 0 Home Caro( 5/16/2016 NY.gov Profile: Sea Crest Nursing and Rehabilitation Center Department NYS Health Profiles of Health Find and Compare New York Health Care Providers jrNEW YORK STATE RI. Sea Crest Nursing and P,,e habilitation Center Search County/ • Overview 'Quality •gso Inspections p Sea Crest Nursing and Rehabilitation Center 3035 West 24th St Brooklyn , NY 11224 (718) 372-4500 Web site: www.seacresthcc.com/ 0 Services O Beds Administrative • Ownership: Proprietary--LLC • Operated by: Sea Crest Acquisition 1, LLC 3035 W. 24th Street Brooklyn, NY 11224 • PFI: 1401 • Operating certificate: 7001806N • DOH Regional Office: New York Metro - New York City • Medicaid, Medicare certified O Statistics O Ombudsman Directions Si:Dance r in C• 4 ,ly My Providers o cornpn re ftysilities, click on the !,icon newt to eitelt -facility's nonce http://profiles.health.ny.gov/nursing_home/view/150706 1/2 Case 1:15-cv-06336-RJD-LB Document 119-7 Filed 08/08/16 Page 2 of 3 PageID #: 585 5/16/2016 NY.gov Profile: Sea Crest Nursing and Rehabilitation Center Further Reading About Nursing Home Performance Consumer Guide: Selecting Nursing Homes About Nursing Home Services Nursing Home Resources Alternatives to Nursing Home Care Submit a Complaint About a Nursing Home About Nursing Home Inspections Nursing Home Quality Initiative Information Nursing Home Quality Initiative Data on Health Data NY Contact Us [:J email bacebook Twitter Take cur survey News & Updates Hospnal-Accmirerl Data I prIab Medicare Quality lvieasure Ups at Clinices Section Added Adult Care Facility Annual Bed Census Date Medicare Hospital Compare Quarterly ur date Navigate Home Hospitals Nursing Homes Homo Caro Hospice Health Data NY Profiler tasets powered by IPRO's Health Informatics http://profiles.health.ny.gov/nursing_homerview/150706 2/2 Case 1:15-cv-06336-RJD-LB Document 119-7 Filed 08/08/16 Page 3 of 3 PageID #: 586 Exhibit 7 Case 1:15-cv-06336-RJD-LB Document 119-8 Filed 08/08/16 Page 1 of 3 PageID #: 587 5/16/2016 NYgov Profile:Sayville Nursing and Rehabilitation Center Department NYS Health Profiles of Health Find and Compare New York Health Care Providers er r—NEW YORK STATE Home Hospitals 0 Nursing Homes 0 "thine Ca"' 0 rul Sart Lire Nursing .:.:rici Neftabil :atbn Center Search County! • toopica 0 Doctors Help Overview 'V Quality Inspections Sayville Nursing and Rehabilitation Center 300 Broadway Avenue Sayville , NY 11782 (631) 567-9300 Web site: www.petitefleurnursinghome.com/ 0 Services O Beds O Administrative • Ownership: Proprietary--LLC • Operated by: JOPAL Sayville, LLC 300 Broadway Avenue Sayville, NY 11782 • PFI: 4552 • Operating certificate: 5154325N • DOH Regional Office: New York Metro - Long Island • Medicaid, Medicare certified 0 Statistics 0 Ombudsman Directions atrieeti. uro< , to PatrIlegile Islip \ My Providers lb cameo et rs. dick on Ole nirion to oboe; ieriiiieeo http://profiles.health.ny.gov/nursing_home/view/150861 1/2 Case 1:15-cv-06336-RJD-LB Document 119-8 Filed 08/08/16 Page 2 of 3 PageID #: 588 5/16/2016 NY.gov Profile: Sayville Nursing and Rehabilitation Center Further Reading About Nursing Home Performance Consumer Guide: Selecting Nursing Homes About Nursing Home Services Nursing Home Resources Alternatives to Nursing Home Care Submit a Complaint About a Nursing Home About Nursing Home Inspections Nursing Home Quality Initiative Information Nursing Home Quality Initiative Data on Health Data NY Contact Us By email Iracebool( Duke our survey News & Updates Hochdal-Acquired Data Updated Medicare (Duality Measure Updates Clinics Section Added Adult Care Bodily /annual Bed Census D ate Medicare Houpital Compare QuarferNa Nu date Navigate 'lame Hospitals Nursing Htanes Homo Care Hospice Health Data NY Profiles Dataitels Disclaii her powered by IPRO's Health Informatics http://profiles.health.ny.gov/nursing_home/view/150861 2/2 Case 1:15-cv-06336-RJD-LB Document 119-8 Filed 08/08/16 Page 3 of 3 PageID #: 589 Exhibit 8 Case 1:15-cv-06336-RJD-LB Document 119-9 Filed 08/08/16 Page 1 of 3 PageID #: 590 Busser• - ti et, thriwiy irhniarirl County 5/16/2016 NY.gov Profile: Boro Park Center for Rehabilitation and Healthcare Department NYS Health Profiles of Health Find and Compare New York Health Care Providers NEW YORK STATE t Hospitals 0 Nursing Homes 0 Homo Core 0 Hospice Doctors I Help Boro Park Center for' RohabilitaL on and Healthcare Search County/ Overview RP Quality •Gr' Inspections n Boro Park Center for Rehabilitation and Healthcare 4915 10th Ave Brooklyn , NY 11219 (718) 851-3700 Web site: boroparkcenter.net/ 0 Services 0 Beds 0 Administrative • Ownership: Proprietary--LLC • Operated by: Boro Park Operating Co, LLC 4915 Tenth Avenue Brooklyn, NY 11219 • PFI: 1403 • Operating certificate: 7001394N • DOH Regional Office: New York Metro - New York City • Medicaid, Medicare certified 0 Statistics 0 Ombudsman Directions }' JQ rsey My Providers lb compare facilities, sties on the Olsen next le each Moiety's pore. http://profiles.health.ny.gov/nursing_home/view/150707. 1/2 Case 1:15-cv-06336-RJD-LB Document 119-9 Filed 08/08/16 Page 2 of 3 PageID #: 591 5/16/2016 NY.gov Profile: Boro Park Center for Rehabilitation and Healthcare Further Reading About Nursing Home Performance Consumer Guide: Selecting Nursing Homes About Nursing Home Services Nursing Home Resources Alternatives to Nursing Home Care Submit a Complaint About a Nursing Home About Nursing Home Inspections Nursing Home Quality Initiative Information Nursing Home Quality Initiative Data on Health Data NY Contact Us By email acebook Twitter Take our survey News & Updates Hospital-Acquired Data Updated Medicare Quality Measure Updates Hinnies Sectiim Added Adult Care Facility Annual Ned Census D aa Medicare Hospital Compare Quarterly Uy date Navigate Home Hospitals Nursing Homes Home Care {despise Health Data NY Profiles Datasets Disclaimer powered by IPRO's Health Informatics http://profiles.health.ny.gov/nursing_home/view/150707. 2/2 Case 1:15-cv-06336-RJD-LB Document 119-9 Filed 08/08/16 Page 3 of 3 PageID #: 592 Exhibit 9 Case 1:15-cv-06336-RJD-LB Document 119-10 Filed 08/08/16 Page 1 of 3 PageID #: 593 Home Flootilitile 0 Nub-bp Homes 0 Home Coto 0 Hospice Doctoto i lob) 5/16/2016 NY.gov Profile: Brooklyn Center for Rehabilitation and Residential Health Care Department NYS Health Profiles of Health Find and Compare New York Health Care Providers r _rNEW YORK STATE n Brook yn Conter for Rohabi Search County/ Ration and ROSillefitial are Overview • Quality C1 Inspections q Brooklyn Center for Rehabilitation and Residential Health Care 1455 Coney Island Avenue Brooklyn , NY 11230 (718) 252-9800 Web site: brooklynrehab.net/ 0 Services 0 Beds 0 Administrative • Ownership: Proprietary--LLC • Operated by: Prospect Park Operating, LLC 1455 Coney Island Avenue Brooklyn, NY 11230 • PFI: 1395 • Operating certificate: 7001388N • DOH Regional Office: New York Metro - New York City • Medicaid, Medicare certified Statistics 0 Ombudsman Directions retie My Providers lb compare, facilities, dico on too Cheers next to each radii http://profiles.health.ny.gov/nursing_home/view/150702. 1/2 Case 1:15-cv-06336-RJD-LB Document 119-10 Filed 08/08/16 Page 2 of 3 PageID #: 594 5/16/2016 NYgov Profile: Brooklyn Center for Rehabilitation and Residential Health Care Further Reading About Nursing Home Performance Consumer Guide: Selecting Nursing Homes About Nursing Home Services Nursing Home Resources Alternatives to Nursing Home Care Submit a Complaint About a Nursing Home About Nursing Home Inspections Nursing Home Quality Initiative Information Nursing Home Quality Initiative Data on Health Data NY Contact Us By email Fano1)00k Twitter Take our survey News & Updates Hospital-Acquired Data Updated Medicare Quality Manistee Updates Clinics Section Added Adult Care Facility Annual Bed CenSue Diida capital Compare Quarterly Update Navigate Home Hospitals Nursing Haines Hanle Carp Hospice Health Gala gyred by IPRO's Health Informatics home/view/150702. 2/2 http://profiles.health.ny.gov/nursing_ Case 1:15-cv-06336-RJD-LB Document 119-10 Filed 08/08/16 Page 3 of 3 PageID #: 595 3823310v.14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Civil Action No.: 1:15-cv-06336-RJD-LB FAIR HOUSING JUSTICE CENTER, INC., Plaintiff, -against- ALLURE REHABILITATION SERVICES LLC, HAMILTON PARK MULTICARE LLC, CASSENA CARE LLC, AMSTERDAM NURSING HOME CORPORATION, SEA CREST HEALTH CARE CENTER, LLC, CENTERS FOR SPECIALTY CARE GROUP LLC, SENIOR MED, LLC, CROWN NURSING HOME ASSOCIATES INC., SENTOSACARE, LLC, WHITE PLAINS CENTER FOR NURSING CARE LLC, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC, GOLDEN GATE REHABILITATION AND HEALTH CARE CENTER, LLC, CLIFFSIDE NURSING HOME, INC., FOREST VIEW NURSING HOME, INC., ULTIMATE CARE ASSISTED LIVING, MANAGEMENT LLC, ENGEL BURMAN SENIOR HOUSING AT WHITE PLAINS LLC d/b/a THE BRISTAL AT WHITE PLAINS, ENGEL BURMAN SENIOR HOUSING AT NORTH WOODMERE LLC d/b/a THE BRISTAL AT NORTH WOODMERE, ENGEL BURMAN AT SAYVILLE LLC d/b/a THE BRISTAL AT SAYVILLE, ENGEL BURMAN AT ARMONK, LLC d/b/a THE BRISTAL AT ARMONK, Defendants. : : : : : : : : : : : : : : : : : : : : : : : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT ON BEHALF OF DEFENDANTS ALLURE REHABILITATION SERVICES LLC, CASSENA CARE LLC, AMSTERDAM NURSING HOME CORPORATION, SEA CREST HEALTH CARE CENTER, LLC, CENTERS FOR SPECIALTY CARE GROUP LLC GARFUNKEL WILD, P.C. 111 Great Neck Road Great Neck, New York 11021 (516) 393-2200 Of Counsel: Roy W. Breitenbach, Esq. Salvatore Puccio, Esq. Michael J. Keane, Jr., Esq. Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 1 of 32 PageID #: 596 TABLE OF CONTENTS Page i 3823310v.14 TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .....................................................................................................1 STATEMENT OF RELEVANT FACTS ........................................................................................3 A. Allure Rehab ............................................................................................................4 B. Cassena Care, Amsterdam, And Sea Crest ..............................................................4 C. Centers For Specialty Care Group LLC...................................................................5 D. Plaintiff’s Claims Against Movants .........................................................................6 ARGUMENT ...................................................................................................................................6 POINT I PLAINTIFF LACKS STANDING TO ASSERT ITS CLAIMS AND ITS COMPLAINT SHOULD BE DISMISSED PURSUANT TO RULE 12(B)(1) ........................6 A. Standard Of Review .................................................................................................6 B. Plaintiff Lacks Standing To Pursue Its Claims Because It Used Fake Patients And Has Not Suffered Any Injury .............................................................8 1. Plaintiff’s Allegations Are Insufficient To Establish Organizational Standing .......................................................................................................9 2. Plaintiff Lacks Standing To Obtain Declaratory And Injunctive Relief ..........................................................................................................14 POINT II PLAINTIFF’S COMPLAINT SHOULD ALSO BE DISMISSED PURSUANT TO RULE 12(B)(6) BECAUSE PLAINTIFF HAS FAILED TO STATE A CLAIM FOR RELIEF ON THE REFERENCED STATUTES .....................................................................15 A. Standard Of Review ...............................................................................................15 B. Plaintiff’s Rehabilitation Act Claim Must Be Dismissed ......................................16 1. Because Plaintiff Has Failed To Establish That An Actual Qualified Person Has Been Subject To Discrimination The RA Claim Must Be Dismissed .........................................................................17 2. Since Plaintiff Has Not Alleged Intentional Discrimination It Is Not Entitled To Monetary Damages ..........................................................18 Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 2 of 32 PageID #: 597 TABLE OF CONTENTS (continued) PAGE ii 3823310v.14 C. The Fair Housing Act Claim Must Be Dismissed .................................................20 1. Plaintiff Has Not Alleged A Violation Of Section 3604(f) Of The FHA............................................................................................................20 2. Plaintiff Has Not Alleged A Violation Of Section 3604(c) Of The FHA............................................................................................................22 D. The New York City Human Rights Law Claim Must Be Dismissed ....................23 POINT III PLAINTIFF HAS IMPROPERLY NAMED ALLURE REHAB, CASSENA CARE, AND CENTERS FOR SPECIALTY CARE AS DEFENDANTS IN THIS ACTION...........24 CONCLUSION ..............................................................................................................................25 Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 3 of 32 PageID #: 598 iii 3823310v.14 TABLE OF AUTHORITIES Page(s) Federal Cases Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 fn. 6 (2d Cir. 2006) ..........................................................................................7 Ark. ACORN Fair Housing, Inc. v. Greystone Dev., Ltd. Co., 160 F.3d 433 (8th Cir. 1998) .....................................................................................................8 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .....................................................................................................16, 24, 25 Ass’n for Retarded Citizens of Dallas v. Dallas Cnty. Mental Health & Mental Retardation Ctr. Board of Trustees, 19 F.3d 241 (5th Cir. 1994) .....................................................................................................11 Babbitt v. Farm Workers, 442 U.S. 289, 99 S.Ct. 2301 (1979) .........................................................................................15 Bartlett v. New York State Bd. of Law Exam’rs, 156 F.3d 321 (2d Cir. 1998)...............................................................................................18, 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................11 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .................................................................................................11, 14, 15 Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006) .............................................................................................................7, 15 Equal Rights Center v. Post Props., 633 F.3d 1136 (D.C. Cir. 2011) ...............................................................................................11 Fair Elections Ohio v. Husted, 770 F.3d 456 (6th Cir. 2014) ...................................................................................................12 Fair Employment Council of Greater Washington v. BMC Marketing Corp., 28 F.3d 1268 (D.C. Cir.1994) ..................................................................................................12 Fair Hous. Council of Suburban Phila. v. Montgomery Newspapers, 141 F.3d 71 (3d Cir. 1998).......................................................................................................10 Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998) ...................................................................................................19 Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 4 of 32 PageID #: 599 iv 3823310v.14 Freydel v. New York Hosp., 2000 WL 10264 (S.D.N.Y. 2000), aff’d, 242 F.3d 365 (2d Cir. 2000)...............................................................................................19, 20 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) ...........................................................................................................7 Fulton v. Goord, 591 F.3d 37 (2d Cir. 2009).......................................................................................................18 Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (2d Cir. 1999).....................................................................................................19 Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008).............................................................................................4, 16, 25 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .......................................................................................................9, 10, 12 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003).....................................................................................................17 Hubbard v. Samson Mgmt. Corp., 994 F. Supp. 187 (S.D.N.Y. 1998) ..........................................................................................21 Int’l Primate Prot. League v. Admins. of the Tulane Educ. Fund, 895 F.2d 1056 (5th Cir. 1990), rev’d on other grounds, 500 U.S. 72 (1991) ...................................................................................................................14 Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638 (2d Cir. 1998).......................................................................................................8 Lane v. Holder, 703 F.3d 668, 674-675 (4th Cir. 2012), cert. denied, 134 S. Ct. 1273 (2014)...................12, 13 Lee v. Bd. of Governors of the Fed. Reserve Sys., 118 F.3d 905 (2d Cir. 1997).......................................................................................................8 Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334 (11th Cir. 2012) .................................................................................................18 Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009)...............................................................................................16, 17 Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298 (5th Cir. 2000) .............................................................................................12, 13 Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 5 of 32 PageID #: 600 v 3823310v.14 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......................................................................................................8, 14, 15 Makarova v. United States, 201 F.3d 110 (2d Cir. 2000).......................................................................................................6 McDermott v. N.Y. Metro LLC 664 F. Supp. 2d 294 (S.D.N.Y 2009).........................................................................................7 McElwee v. Cty. of Orange, 700 F.3d 635 (2d Cir. 2012).....................................................................................................21 Montano v. Bonnie Brae Convalescent Hosp., Inc., 79 F.Supp.3rd 1120, 1127 (C.D. Cal 2015) .............................................................................17 NAACP v. City of Kyle, 626 F.3d 233 (5th Cir. 2010) ...................................................................................................11 Nat’l Cong. for Puerto Rican Rts. v. City of N.Y., 75 F. Supp. 2d 154 (S.D.N.Y. 1999)........................................................................................13 Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996) ...............................................................................................14 Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011).................................................................................................8, 18 Pierce v. District of Columbia, No. 13 Civ. 0134 (KBJ), 2015 WL 5330369 (D.D.C. Sept. 11, 2015) ....................................17 Ragin v. Harry Macklowe Real Est. Co., 6 F.3d 898 (2d Cir. 1993)...................................................................................................10, 22 Ranno v. Hartford Life and Acc. Ins. Co., 2010 WL 2194526 (S.D.N.Y. May 14, 2010) ...................................................................16, 24 Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002).......................................................................................................21 Renne v. Geary, 501 U.S. 312 (1991) .................................................................................................................14 Reyes v. Fairfield Props., 661 F. Supp. 2d 249 (E.D.N.Y. 2009) .....................................................................................21 Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 6 of 32 PageID #: 601 vi 3823310v.14 Rolle v. McCarthy, No. CV02-4398(DRH)(ETB), 2005 WL 5885366, at *2 (E.D.N.Y. June 21, 2005), report and recommendation adopted, No. CIV.A.02-4398DRHWDW, 2007 WL 3129567 (E.D.N.Y. Oct. 23, 2007) ............................................................................7 Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26 (1976) .....................................................................................................................8 Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307 (E.D.N.Y. 2012) .....................................................................................21 Soules v. United Dep’t of Housing and Urban Dev., 967 F.2d 817 (2d Cir. 1992).....................................................................................................22 Southern Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175 (4th Cir. 2013) ..........................................................................................12 Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990) (R.B. Ginsburg, J.) .............................................................10, 12 Thompson v. County of Franklin 15 F.3d 245 (2d Cir. 1994).........................................................................................................7 Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565 (2d Cir. 2003).....................................................................................................21 Warth v. Seldin 422 U.S. 490 (1975) ...........................................................................................................7, 8, 9 White v. U.S. Dep’t of Hous. & Urban Dev., 475 F.3d 898 (7th Cir. 2007) ...................................................................................................22 Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717 (1990) .......................................................................................15 Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 7 of 32 PageID #: 602 1 3823310v.14 PRELIMINARY STATEMENT In this action, Plaintiff alleges that the 19 separate nursing facility related defendants violated the Rehabilitation Act, the Fair Housing Act, and New York City Human Rights Law because they allegedly refused to provide sign language interpreting services to prospective residents who are deaf. In actuality, however, Plaintiff used testers to target and cold call the facilities. From there, Plaintiff’s “testers” lied about having a “deaf relative” who supposedly needed sign language interpreting services. As we explain below, this use of “testers” – serving as actors and creating fictional deaf relatives – does not afford Plaintiff standing to bring the claims asserted in this lawsuit. In sum, Plaintiff contends that Movants 1 intentionally discriminated against these fictional deaf prospective residents in violation of federal and New York City anti-discrimination laws by purportedly stating that they did not have staffing to provide sign language interpreting services 24 hours a day, seven days each week. Nursing facilities, however, are only required to provide appropriate auxiliary aids to actual persons with impaired sensory, manual, or speaking skills, when necessary to afford such persons an equal opportunity to benefit from the service in question. There is no absolute right for a resident to receive around-the-clock sign language interpreting services. All the law requires is an interactive process to determine when such services are necessary. Plaintiff has ignored this reality and has instead chosen to manufacture this litigation based on concocted scenarios that never existed. Since the law simply obligated Movants to engage in an interactive process with residents or prospective residents who are deaf to 1 “Movants” on this motion refers to Defendants Allure Rehabilitation Services, LLC, Cassena Care, LLC, Amsterdam Nursing Home Corporation, Sea Crest Health Care Center, LLC, and Centers For Specialty Care Group, LLC. Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 8 of 32 PageID #: 603 2 3823310v.14 determine what auxiliary aids and services they might need, Plaintiff has created a litigation that is impossible to actually litigate: it is impossible for Movants – or any nursing facility – to engage in an interactive process with a fictional character. Moreover, Plaintiff does not allege that even a single disabled person has been discriminated against by Movants. Nevertheless, Plaintiff claims to have organizational standing based on its alleged diversion of resources and frustration of mission. This blanket allegation alone, however, is legally insufficient to state a claim of intentional discrimination. Plaintiff makes this claim, despite the fact, that it has never had any reason to suspect that Movants were violating any law. This alleged diversion of assets is as made up as Plaintiff’s fictional deaf relatives. Again, this case was manufactured by Plaintiff cold calling nursing homes and fabricating questions about fictional relatives. While organizations have standing to sue in their own right for violations of certain statutes, they still must establish an actual – as opposed to theoretical – violation of the law. Such a plaintiff has standing only when it alleges (and eventually proves) that it was actually forced to divert such resources and act on its mission. A targeted witch-hunt does not qualify for organizational standing. Accordingly, since Plaintiff’s claims are based on fictional and manufactured circumstances, Plaintiff lacks standing to assert claims based on the theoretical violations of the Rehabilitation Act, the Federal Housing Act and the New York City Human Rights Law. And, even if Plaintiff had standing to pursue its claims, its allegations are insufficient as a matter of law because Plaintiff is not a qualified party under the statutes invoked by Plaintiff. For these reasons, and those set forth below, this Court should dismiss all claims against Movants. Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 9 of 32 PageID #: 604 3 3823310v.14 STATEMENT OF RELEVANT FACTS 2 This case is brought by the Fair Housing Justice Center, a non-profit organization that allegedly “ensures that all people, including deaf individuals, have equal access to housing in New York city and [the] surrounding counties.” (Compl. ¶ 1.) In this case Plaintiff alleges that 19 different entities have violated section 504 of the Rehabilitation Act (29 U.S.C. § 794(a)), the Fair Housing Act (42 U.S.C. § 3604 et. seq.), and New York City Human Rights Law. New York City Administrative Code § 8-101 et. seq. Plaintiff used “testers” to cold call nursing homes and allegedly request if they would provide American Sign Language (“ASL”) services to a fictional “deaf relative.” Plaintiff alleges that Movants did not return calls for such requests or alleged that such services were not available. Plaintiff asserts that these alleged isolated responses to fictional characters establishes that Movants have a policy or practice not to provide sign language interpreting services to deaf residents in violation of federal and NYC anti-discrimination laws. (Compl. ¶¶ 7, 113-26.) Plaintiff does not sue on behalf of any deaf or disabled individuals, and does not allege that even a single deaf individual has been or likely will be discriminated against by defendants due to a refusal to provide ASL interpreter services. Rather, Plaintiff bases its claims solely on unsupported and implausible allegations of its own “diversion of resources” and “frustration of mission” (Compl. ¶¶ 13-14, 110, 124, 136.) Plaintiff, however, does not allege how its resources were diverted or how its mission was frustrated. In the Complaint, Plaintiff splits the factual allegations into sub-groups. (Compl. ¶¶ 36- 99.) It is Movants’ understanding that the sub-groups are based on Plaintiff’s perception of control/ownership of the entities. The allegations against Movants are described below. 2 The factual background is comprised of allegations in the Complaint, unless referenced otherwise herein. References to “Compl.” refer to Plaintiff’s undated Complaint filed on November 4, 2015. Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 10 of 32 PageID #: 605 4 3823310v.14 A. Allure Rehab The Complaint alleges that Allure is the “owner, lessor, and/or operators of Bedford Center for Nursing and Rehabilitation and Hamilton Park Nursing and Rehabilitation Center.” (Compl. ¶ 15.) These allegations are incorrect. The New York State Department of Health’s records indicate that the operator of the Bedford Center is not Allure Rehab but non-defendant Williamsburg Services, LLC. 3 (Breitenbach Dec. Exh. 2.) These records also show that the operator of Hamilton Park is not Allure Rehab but defendant Hamilton Park Multicare, LLC. (Breitenbach Dec. Exh. 3.) In any event, Plaintiff does not allege that Allure Rehab officials made any representations to Plaintiff’s testers. (Compl. ¶ 38-44.) Plaintiff alleges it conducted three tests at the nursing homes it incorrectly contends are operated by Allure Rehab. (Compl. ¶ 38-44.) First, Plaintiff alleges that on October 24, 2014 Hamilton Park told Plaintiff’s tester that it would not provide ASL services for the actor’s fake aunt. (Compl. ¶ 38-40.) Second, on January 28, 2015, a tester allegedly “randomly” called Hamilton Park and requested an ASL interpreter for his fictional deaf mother. Hamilton Park did not respond because the tester would not wait to be transferred. (Compl ¶ 41-42.) Third, Plaintiff’s tester visited the Bedford Center and was allegedly advised that they would communicate with deaf patients through the use of writing and symbol boards. (Compl ¶ 43-44.) B. Cassena Care, Amsterdam, And Sea Crest The Complaint alleges that Cassena Care is the owner, lessor, and/or operator of Shore View Nursing and Rehabilitation Center, Amsterdam Nursing Home Corp., Sea Crest Health Care Center, and Sayville Nursing Home and Rehabilitation Center. These allegations are 3 In the Second Circuit, the Court may take judicial notice of government records when considering information potentially dispositive or informative of an issue on a motion to dismiss. See Goldstein v. Pataki, 516 F.3d 50, 53, fn.1 (2d Cir. 2008). Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 11 of 32 PageID #: 606 5 3823310v.14 wrong. The New York State Department of Health’s records indicate that the operator of Shore View is not Cassena Care but non-defendant Shore View Acquisition I, LLC. (Breitenbach Dec. Exh. 4.) Likewise, the operator of Amsterdam is not Cassena Care but defendant Amsterdam Nursing Home Corporation. (Id. Exh. 5.) And, the operator of Sea Crest is not Cassena Care but Sea Crest Acquisition I, LLC. (Id. Exh. 6.) Finally, the operator of Sayville Nursing Home and Rehabilitation Center is not Cassena Care but non-party JOPAL Sayville, LLC. (Id. Exh. 7.) In any event, Plaintiff does not allege that Cassena Care officials made any representations to the testers. (Compl. ¶ 45-58.) First, Plaintiff alleged on January 16, 2015, Shore View advised Plaintiff’s tester that that it did not have an ASL interpreter but that “deaf residents could communication through pictures or writing.” (Compl. ¶ 49.) Second, on January 23, 2015, Plaintiff’s tester was told that Shore View would not be providing an interpreter. (Compl. ¶ 51.) Third, on November 19, 2014, Plaintiff’s tester was allegedly told that Amsterdam would not be providing an interpreter. (Compl. ¶ 51-53.) Fourth, on November 12, 2014, Plaintiff’s tester was allegedly advised by Sea Crest that it did not have an ASL interpreter, but was still able to communicate with a deaf resident. (Compl. ¶ 54-55.) Fifth, on January 15, 2015, Plaintiff’s tester was allegedly advised that Sayville Nursing could communicate with deaf residents through the use of a program called “Language Live.” (Compl. ¶ 58.) C. Centers For Specialty Care Group LLC The Complaint alleges that Centers for Specialty Care is the owner, lessor, and/or operator of Boro Park Center for Rehabilitation and Health Care and Brooklyn Center for Rehabilitation and Residential Health Care. (Compl. ¶ 20.) These allegations are wrong. The New York State Department of Health’s records indicate that the operator of Boro Park is not Centers for Specialty Care, but non-defendant Boro Park Operating Co, LLC. (Breitenbach Dec. Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 12 of 32 PageID #: 607 6 3823310v.14 Exh. 8.) Likewise, the operator of Brooklyn Rehab is not Centers for Specialty Care, but non- defendant Prospect Park Operating, LLC. (Id. Exh. 9.) In any event, Plaintiff does not allege that Centers for Specialty Care officials made any representations to the actors. (Compl. ¶¶ 59-64.) First, on October 28, 2014, Boro Park allegedly advised Plaintiff’s tester that it would not hire an ASL interpreter for that actor’s non- existent aunt. (Compl. ¶ 60.) Second, on January 28, 2015, Boro Park allegedly advised Plaintiff’s tester it does not offer sign language interpreters. (Compl. ¶¶ 61-62.) Third, on January 20, 2015, Brooklyn Rehab on January 20, 2015 advised Plaintiff’s tester that it would not provide ASL services around the clock, seven days a week. (Compl. ¶63-64.) D. Plaintiff’s Claims Against Movants Based on these allegations, Plaintiff asserts claims against Movants based on purported violations of the Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Compl. Count I, ¶ 100- 112), the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (id. Count II ¶ 113-126), and Section 804 of the Fair Housing Act, 42 U.S.C. § 3604 (id. Count III ¶ 127-137). Plaintiff seeks compensatory and punitive damages, declaratory and injunctive relief and attorney’s fees. ARGUMENT POINT I PLAINTIFF LACKS STANDING TO ASSERT ITS CLAIMS AND ITS COMPLAINT SHOULD BE DISMISSED PURSUANT TO RULE 12(B)(1) A. Standard Of Review A district court should dismiss a case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) when the court “lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In that regard, the Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 13 of 32 PageID #: 608 7 3823310v.14 concept of standing “involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin 422 U.S. 490, 498 (1975); Thompson v. County of Franklin 15 F.3d 245, 247 (2d Cir. 1994). Because standing implicates these limitations, the proper mechanism for challenging standing in the Second Circuit is a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 fn. 6 (2d Cir. 2006); see also McDermott v. N.Y. Metro LLC 664 F. Supp. 2d 294, 296 fn. 1 (S.D.N.Y 2009). “A defendant may move to dismiss pursuant to Rule 12(b)(1) by either a facial attack on the complaint, regarding the sufficiency of the pleading, or by arguing that factually, the court lacks jurisdiction.” Rolle v. McCarthy, No. CV02-4398(DRH)(ETB), 2005 WL 5885366, at *2 (E.D.N.Y. June 21, 2005), report and recommendation adopted, No. CIV.A.02-4398DRHWDW, 2007 WL 3129567 (E.D.N.Y. Oct. 23, 2007) (citing Robinson v. Gov’t of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001)). Standing, however, “like other jurisdictional inquiries, cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record. To that end, it is the burden of the party who seeks the exercise of jurisdiction in his favor,…clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” Thompson, 15 F.3d at 249. Further, “a plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000); see also Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). In sum, Plaintiff failed to allege that it suffered an injury sufficient to satisfy the case and controversy requirement under Article III, § 2 of the Constitution. Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 14 of 32 PageID #: 609 8 3823310v.14 B. Plaintiff Lacks Standing To Pursue Its Claims Because It Used Fake Patients And Has Not Suffered Any Injury To satisfy the requirements of Article III standing, a plaintiff must demonstrate (1) “specific, concrete” facts demonstrating that the challenged practices directly harmed him or her by causing (2) a distinct and palpable “injury-in-fact” to a legally cognizable interest that is (3) fairly traceable to defendants’ conduct and not the result of the independent action of some third party not before the court and (4) likely, as opposed to merely speculatively, to be redressed in a tangible way that would benefit him or her personally by a favorable court decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Warth v. Seldin, 422 U.S. 490, 508 (1975). If plaintiff fails to allege specific, concrete facts sufficient to satisfy even one of these prerequisites, then plaintiff has no standing to assert its claims. See Lee v. Bd. of Governors of the Fed. Reserve Sys., 118 F.3d 905, 910 (2d Cir. 1997) (plaintiffs lacked standing where they failed to allege injury-in-fact). See also Ark. ACORN Fair Housing, Inc. v. Greystone Dev., Ltd. Co., 160 F.3d 433 (8th Cir. 1998) (no standing where fair housing organization did not show specific facts establishing distinct and palpable injury-in-fact fairly traceable to defendant’s advertisements). In order to establish organizational standing on its own behalf, an organization such as Plaintiff must independently satisfy these requirements. Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 649 (2d Cir. 1998). Here, Plaintiff’s pleading has not met this standard. An “abstract concern” or “special interest” concerning a subject that could be affected by adjudication of the pending case is insufficient to establish standing. Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 40 (1976). “Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of a real need to exercise the power of judicial review or that relief can be framed no broader than required by the precise facts to which the Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 15 of 32 PageID #: 610 9 3823310v.14 court’s ruling would be applied.” Warth v. Seldin, 422 U.S. 490, 508 (1975) (internal quotation marks and citation omitted). The question is whether the plaintiff has “alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982) (internal quotations and citation omitted). Plaintiff is seemingly claiming that its injury is an alleged “diversion of resources” from its mission. Plaintiff, however, has failed to allege what resources were “diverted,” why those resources were diverted, and how its mission has been negatively affected. These failures are fatal to Plaintiff maintaining the claims asserted in the Complaint. Indeed, if it is Plaintiff’s supposed mission to determine if housing entities – such as Movants here – are providing fair housing opportunities to their members, how has Plaintiff “diverted” any resources to effectuate its purpose? It would seem that Plaintiff’s actions, if accepted as true, are consistent with their purpose. Therefore, any expenditure of resources to further that goal is not, by definition, a “diversion of resources.” Rather, a diversion of resources would be Plaintiff incurring costs to fight something not within its mission or stated purpose or something that impedes its purpose. Nevertheless, answers to these questions are unknown because Plaintiff’s Complaint is barebones and a mere recital of legal standards and fails to give Movants any notice of the nature of its claims. Accordingly, Plaintiff’s Complaint should be dismissed for lack of standing based on the paltry allegations pled in the Complaint. 1. Plaintiff’s Allegations Are Insufficient To Establish Organizational Standing An organization may attempt to assert standing on its own behalf. Havens Realty Corp., 455 U.S. at 379 n. 19 (1982). When asserting standing on its own behalf, however, an organization must be able to demonstrate some injury to the association itself that meets the constitutional standing requirements as well as the prudential limitations on standing, unless Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 16 of 32 PageID #: 611 10 3823310v.14 Congress evinced a clear intent to eliminate those prudential limitations under the statute in question. See id. at 378–79. As the Havens Court stated, courts conduct the same inquiry with respect to an organizational plaintiff as with an individual plaintiff: has it “alleged such a personal stake in the outcome of the controversy as to warrant [ ] invocation of federal-court jurisdiction.” Id. Here, Plaintiff must establish a “perceptible impairment” of its organizational activities for there to be an “injury in fact.” Havens Realty Corp., 455 U.S. at 379 (housing organization established standing on its own behalf under the FHA based on allegations that the defendant’s unlawful housing practices had “perceptibly impaired” the organization’s ability to provide counseling and referral services and drained the organization’s resources); Ragin v. Harry Macklowe Real Est. Co., 6 F.3d 898, 905 (2d Cir. 1993) (same). If not, this case must be dismissed. Id. Plaintiff must allege that it “had to devote significant resources to identify and counteract the defendant’s [inappropriate] practices.” Havens Realty Corp., 455 U.S. at 379. The Second Circuit has held in Ragin v. Harry Mackowe Real Estate Co., that an organization attempting to establish standing must establish that it was “forced to devote significant resources to identify and counteract the defendants’ advertising practices and did so to the detriment of their efforts to [obtain] equal access to housing through counseling and other referral services.” 6 F.3d at 906. Indeed, since the Havens decision, a number of Courts have recognized that “[a]n organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit. Were the rule otherwise, any litigant could create injury in fact by bringing a case, and Article III would present no real limitation.” Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C. Cir. 1990) (R.B. Ginsburg, J.); see also Fair Hous. Council of Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 17 of 32 PageID #: 612 11 3823310v.14 Suburban Phila. v. Montgomery Newspapers, 141 F.3d 71, 79 (3d Cir. 1998). Permitting manufactured standing would undermine the purpose of an actual case and controversy and create standing in every plaintiff, all of the time. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013) (a plaintiff “cannot manufacture standing merely by inflicting harm on themselves [by incurring expenses] based on their fears of hypothetical future harm that is not certainly impending”). Here, Plaintiff has failed to allege anything remotely close to this threshold standard. The Complaint contains only “labels and conclusions” and “naked assertions” of injury and causation, rather than sufficient factual matter to establish standing. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550, (2007). Plaintiff has failed to allege any lost opportunities and how they have had to divert resources to address this claim. Further, Plaintiff has failed to allege what resources were allegedly diverted and why such diversion was necessary to achieve its mission. The alleged injury is based on conclusory allegations of alleged diversion of resources and a frustration of mission as a result of a purported “policy or practice” shared by all defendants. (Compl. ¶¶ 13-14, 110, 124, 136.) Notably, however, “the diversion of resources to litigation or investigation in anticipation of litigation does not constitute an injury in fact sufficient to support standing.” Equal Rights Center v. Post Props., 633 F.3d 1136, 1140 (D.C. Cir. 2011); see also NAACP v. City of Kyle, 626 F.3d 233, 238 (5th Cir. 2010) (“litigation efforts cannot establish injury in fact”); Ass’n for Retarded Citizens of Dallas v. Dallas Cnty. Mental Health & Mental Retardation Ctr. Board of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) (“The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.”). Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 18 of 32 PageID #: 613 12 3823310v.14 Accordingly, Plaintiff’s conclusory claim of standing based on its alleged “diversion of resources” as pled is insufficient to provide Plaintiff with standing to assert these claims. When such allegations are so bare, courts have frequently denied organizational standing. Fair Elections Ohio v. Husted, 770 F.3d 456, 460 (6th Cir. 2014) (an organization conducting voter-outreach activities lacked standing to challenge Ohio absentee voting rules because it failed to establish specific facts establishing that it was forced to divert “limited resources to address the issue of late-jailed electors”); Southern Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 182-183 (4th Cir. 2013) (“an injury to organizational purpose, without more, does not provide a basis for standing”); Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 304–306 (5th Cir. 2000) (there was no showing that any specific project had to be put on hold while working on this case, nor any detailed description of how the organization “had to redouble efforts in the community to combat discrimination.”) Moreover, courts have also held that the expenditures to investigate potential claims do not establish standing. For example, in Fair Employment Council of Greater Washington v. BMC Marketing Corp., 28 F.3d 1268 (D.C. Cir.1994), the DC circuit held that that “testing” expenditures are necessarily self-inflicted injuries that cannot suffice to show injury in fact for purposes of constitutional standing, id. at 1276, and in holding that the deflection of an organizations’ time and money “to increase legal pressure” directed at discrimination are insufficient to establish standing. Id. at 1276–77; see also Spann, 899 F.2d at 27 (“Havens made clear, however, that an organization establishes Article III injury if it alleges that purportedly illegal action increases the resources the group must devote independent of its suit challenging the action.”). Furthermore, the Fourth Circuit in Lane v. Holder, 703 F.3d 668, 674-675 (4th Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 19 of 32 PageID #: 614 13 3823310v.14 Cir. 2012), cert. denied, 134 S. Ct. 1273 (2014), held that a “’mere expense’ [] does not constitute an injury in fact.” In sum, if an entity makes a budgetary choice to pursue litigation, like Plaintiff has done here, that does not create standing in them. Id. Plaintiff cold called defendants and manufactured allegations. These claims by Plaintiff were chosen by them and not thrust in front of them. When an organization makes business decision, this is not a diversion of resources, nor does it establish standing. See Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 304–306 (5th Cir. 2000); see also Lane v. Holder, 703 F.3d 668, 674-675 (4th Cir. 2012), cert. denied, 134 S. Ct. 1273, 188 L. Ed. 2d 296 (2014) (“To determine that an organization that decides to spend its money on educating members, responding to member inquiries, or undertaking litigation in response to legislation suffers a cognizable injury would be to imply standing for organizations with merely “abstract concern[s] with a subject that could be affected by an adjudication.” Plaintiff also failed to plead that its expenditure of resources was to counteract discrimination, nor could it since it admits there are no real persons out there that have been discriminated against by any of the defendants. Thus, it cannot be reasonably inferred from the allegations that Movant’s purported conduct “perceptibly impaired” Plaintiff’s activities; meaning that Plaintiff’s expenditures were not purely to pursue this litigation, but to counteract some real or threatened discrimination. Therefore, Plaintiff’s allegations are insufficient as a matter of law to establish standing. See, e.g., Nat’l Cong. for Puerto Rican Rts. v. City of N.Y., 75 F. Supp. 2d 154, 165 (S.D.N.Y. 1999) (holding organization lacked standing where it failed to allege that it “provides referrals, or any other type of services,” as a result of defendants’ alleged conduct). Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 20 of 32 PageID #: 615 14 3823310v.14 2. Plaintiff Lacks Standing To Obtain Declaratory And Injunctive Relief To establish standing for declaratory and injunctive relief, a plaintiff must first demonstrate that he will suffer an injury in fact which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. See Lujan, 504 U.S. at 560-01. “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief… if unaccompanied by any continuing, present adverse effects.” Renne v. Geary, 501 U.S. 312, 320-21 (1991) (internal citations omitted) (citing O’Shea v. Littleton, 414 U.S. 488, 495-496 (1974)). Indeed, a “threatened injury must be certainly impending to constitute injury in fact, and… [a]llegations of possible future injury are not sufficient.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013). Here, Plaintiff does not allege that an injunction is required in order to prevent any future discrimination against individuals with disabilities. Indeed, such an allegation would be based on pure speculation. Rather, Plaintiff’s request for injunctive relief is based on an allegation that “absent injunctive relief there is a clear risk that Defendants’ actions will continue to occur and continue to frustrate Plaintiff’s mission.” (Compl. ¶ 110.) However, an organization like Plaintiff that seeks to base standing on injury to itself cannot rely on a mere setback to its abstract social interests. If the law were otherwise, any group of individuals could create standing by “incorporating, drafting a mission statement, and then suing on behalf of the newly formed and extremely interested organization.” Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1429 (D.C. Cir. 1996) (holding frustration of mission is insufficient to establish standing); see also Int’l Primate Prot. League v. Admins. of the Tulane Educ. Fund, 895 F.2d 1056, 1060 (5th Cir. 1990) (holding “plaintiffs’ ‘long-standing, sincere commitment’” to preventing inhumane treatment to animals was insufficient to establish standing for injunctive relief), rev’d on other grounds, 500 U.S. 72 (1991). Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 21 of 32 PageID #: 616 15 3823310v.14 As the Supreme Court has recently noted, “‘repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,’” and that ‘[a]llegations of possible future injury’ are not sufficient.” Clapper, 133 S. Ct. at 1147; see also Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717 (1990); Lujan 504 at 565 (1992); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 345, 126 S.Ct. 1854 (2006); Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301 (1979). Moreover, Plaintiff has alleged no ongoing conduct by Movants that plausibly threatens Plaintiff’s purported mission of “ensuring that all people have equal access to housing opportunities… by eliminating housing discrimination and creating open, accessible, and inclusive communities.” (Compl. ¶ 9.) In fact, Plaintiff does not contend that Movants discriminated against anyone, or that such discrimination is imminent. Thus, Plaintiff has not alleged – and cannot allege – that Movants are threatening to deflect from or otherwise harm Plaintiff’s mission, or that its conduct will otherwise impede Plaintiff’s activities. Plaintiff’s allegation of a “risk” of future harm is not only based on pure speculation, it is implausible. Further, this claim is logically frustrating. If Plaintiff’s mission is to determine what entities are allegedly failing to provide, among other services, ASL Services to the deaf community, then Plaintiff has already achieved that purpose when it conducted its “testing” and brought this lawsuit naming specific entities. POINT II PLAINTIFF’S COMPLAINT SHOULD ALSO BE DISMISSED PURSUANT TO RULE 12(B)(6) BECAUSE PLAINTIFF HAS FAILED TO STATE A CLAIM FOR RELIEF ON THE REFERENCED STATUTES A. Standard Of Review Pursuant to Fed. R. Civ. P. Rule 12(b)(6), a district court should dismiss a complaint that fails to “state a claim upon which relief can be granted.” Although the district court must Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 22 of 32 PageID #: 617 16 3823310v.14 liberally construe Plaintiff’s claims and draw all reasonable inferences in favor of the Plaintiff when ruling on such a motion, this principle is inapplicable to legal conclusions. See Ashcroft v. Iqbal, 556 US 662, 678-680 (2009). Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. The Plaintiff must actually show, through well-pled factual support, that the allegations in the complaint are entitled to the assumption of truth. Id. at 678-679. Furthermore, the complaint must “state a claim to relief that is plausible on its face.” Ranno v. Hartford Life and Acc. Ins. Co., 2010 WL 2194526, *2 (S.D.N.Y. May 14, 2010). A claim has requisite “facial plausibility” when the Plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is responsible for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. This requires more than a “sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a defedant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Id. In such cases, the court should dismiss the complaint for failing to state a cause of action under Fed. R. Civ. P. 12(b)(6). Finally, in a Rule 12(b)(6) motion, the Court may consider documents incorporated by reference, judicial notice and documents in plaintiff’s possession on which they relied in bringing suit. See Goldstein v. Pataki, 516 F.3d 50, 53, fn.1 (2d Cir. 2008). B. Plaintiff’s Rehabilitation Act Claim Must Be Dismissed “To establish a prima facie violation of the RA, the plaintiff must show that: (1) a “handicapped person” as defined in the RA; (2) “otherwise qualified” to participate in the offered activity or enjoy its benefits; (3) excluded from such participation or enjoyment solely by reason of his or her handicap; and (4) being denied participation in a program that receives federal financial assistance.” Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009); Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 23 of 32 PageID #: 618 17 3823310v.14 see also Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (analyzing claims under ADA and RA). These claims must be dismissed for two reasons. First, Plaintiff cannot allege that a “qualified individual” was subject to discrimination. Second, Plaintiff cannot allege intentional discrimination and, therefore, is not entitled to monetary damages. 1. Because Plaintiff Has Failed To Establish That An Actual Qualified Person Has Been Subject To Discrimination The RA Claim Must Be Dismissed Plaintiff’s claims against Movants are based on the fictional relatives of its actors. (Compl. ¶ 36-37.) Since Plaintiff has used fictional relatives, Plaintiff cannot allege, that any “otherwise qualified individual with a disability” has been “excluded from the participation in,… denied the benefits of, or… subjected to discrimination” by Movants “solely by reason of” such individual’s disability. 29 U.S.C. § 794. Plaintiff has failed to allege the existence of even a single “otherwise qualified” individual that has sought, needs, or has been denied ASL services by Movants. In order to sue under the RA, a person must be able to “prove an independent injury casually related to the denial of federally required services to the disabled persons with whom the non-disabled plaintiffs are associated.” Loeffler, 582 F.3d at 279-80. In order to state a claim, Plaintiff must allege and prove “a disabled person’s injury under the statute.” Id., at 280. Here, since Plaintiff has not actually tried to admit a patient or had a prospective patient request services, the “interactive process” required under the RA has never occurred. See Montano v. Bonnie Brae Convalescent Hosp., Inc., 79 F.Supp.3rd 1120, 1127 (C.D. Cal 2015); Pierce v. District of Columbia, No. 13 Civ. 0134 (KBJ), 2015 WL 5330369, at *14, 6 (D.D.C. Sept. 11, 2015). Accordingly, since these are fictional relatives that were not admitted or interviewed, Plaintiff cannot plead “a disabled person’s injury under the statute.” Id. Accordingly, it cannot establish a violation of the RA, and its claim fails as a matter of law. Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 24 of 32 PageID #: 619 18 3823310v.14 Moreover, because Plaintiff cannot establish “an injury causally related to, but separate and distinct from, a disabled person’s injury under the statute,” it lacks standing. Pursuant to 45 C.F.R. § 84.52(d)(1) the RA only requires certain providers, to “provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question.” It is unfair to have to litigate this case, when it is impossible to determine when ASL services are needed. Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 342 (11th Cir. 2012). Determining whether a particular accommodation is necessary requires a “fact-specific, case-by-case inquiry.” Fulton v. Goord, 591 F.3d 37, 44 (2d Cir. 2009). Here, however, no such fact-specific evaluation can occur in relation a fictional individual. Thus, it is impossible to know whether the alternative means of communication offered to the tester would be an adequate accommodation. On the allegations pled here, determining a reasonable accommodation for a fictional “deaf relative” is an impossibility, and Plaintiff has therefore failed to plead an RA claim. Finally, as a public policy, allowing Plaintiff to randomly call nursing homes that are trying to provide care to their residences when there is no cause or belief of wrong-doing will just lead to manufactured litigation. See Nnebe v. Daus, 644 F.3d at 157-58 (recognizing concern over “manufactured” litigation). 2. Since Plaintiff Has Not Alleged Intentional Discrimination It Is Not Entitled To Monetary Damages A plaintiff seeking money damages under the RA must show that his or her alleged injuries resulted from defendant’s intentional discrimination. Bartlett v. New York State Bd. of Law Exam’rs, 156 F.3d 321, 330-31 (2d Cir. 1998). To recover compensatory damages for disability discrimination under the RA, Plaintiff has to establish that: (1) it is a person with a disability; (2) it otherwise qualified to receive the Hospital’s services; (3) Movants failed to Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 25 of 32 PageID #: 620 19 3823310v.14 provide Plaintiff with the required services solely because of a disability; and (4) this failure was the result of intentional discrimination at the hands of the Movants. Bartlett 156 F.3d at 330-31. Thus, to state a claim, Plaintiff had to allege facts demonstrating that it failed to receive interpreting services as a result of intentional discrimination by Movants. Ferguson v. City of Phoenix, 157 F.3d 668, 671 (9th Cir. 1998). Here, Plaintiff has failed to even allege that any of Movants acted with the requisite intent required under the RA. Specifically, there is no allegation that Movants made a conscious and intentional decision to discriminate against persons with disabilities. Instead, Plaintiff merely alleged that some unidentified “testers” allegedly made inquiries about a fictional “deaf relative” who might need ASL Services if the relative eventually took up residence at the nursing home. This is woefully insufficient to state a RA claim under well-settled law. It was incumbent upon Plaintiff to allege (and later prove) that each of Movants acted with the requisite intent to Plaintiff’s request for ASL services. Of course, this is impossible because Plaintiff and its testers never even presented any of Movants with an actual situation in which a qualified person under the RA required ASL services. Therefore, Plaintiff has failed to state a plausible claim for a violation under the RA. Unable to allege direct evidence of intentional discrimination because no such direct discrimination is remotely possible on the facts alleged, Plaintiff had to show that Movants acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights would result from the implementation of the challenged policy or custom. See Freydel v. New York Hosp., 2000 WL 10264 (S.D.N.Y. 2000), aff’d, 242 F.3d 365 (2d Cir. 2000); Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 140-41 (2d Cir. 1999). A defendant acts with deliberate indifference to a plaintiff’s protected rights if the defendant is aware of a strong Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 26 of 32 PageID #: 621 20 3823310v.14 likelihood that plaintiff’s rights are being violated, but makes a conscious decision not to remedy the violation. See Constance 166 F. Supp. 2d at 668; Freydel, 2000 WL 10264 at *4-*5. Again, there are simply no such allegations of actions even approaching deliberate indifference. Indeed, Plaintiff makes plain in their February 5, 2016 letter response to Movant’s pre-motion conference letter that “this is not a reasonable accommodation case.” For this additional reason, Plaintiff has not stated a claim for relief under the RA and Plaintiff’s RA claim should be dismissed. C. The Fair Housing Act Claim Must Be Dismissed Plaintiff’s FHA claim is based on an alleged violation of Section 3604(f), and an alleged statement that “indicates a preference, limitation, or discrimination” based on handicap based on Section 3604(c). (Compl. ¶ 128-132.) Plaintiff’s FHA claim must be dismissed because Plaintiff cannot alleged that an actual person did not receive services they were required to receive under the FHA. 1. Plaintiff Has Not Alleged A Violation Of Section 3604(f) Of The FHA The FHA makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of that person….” 42 U.S.C. § 3604(f)(2). The term discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). To state a prima facie case for discrimination based on a failure to reasonably accommodate under the FHA, a plaintiff must demonstrate that: (1) he suffers from a handicap as defined by the FHA; (2) the defendant knew or reasonably should have known of the plaintiff’s handicap; (3) accommodation of the handicap “may be necessary” to afford plaintiff an equal Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 27 of 32 PageID #: 622 21 3823310v.14 opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation. See Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 336 (E.D.N.Y. 2012). Plaintiff has not stated a claim under the FHA because Plaintiff’s claim is based on a fictional character, not on any actual or threatened person seeing actual discrimination. As such, Plaintiff has not and cannot establish a violation of Section 3604(f) because it is not a person who suffers from a disability as defined in the statute. Again, it is important to remember, “[a]lthough a public entity must make ‘reasonable accommodations,’ it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice.” McElwee v. Cty. of Orange, 700 F.3d 635, 641 (2d Cir. 2012). “To determine whether the [FHA] requires a proposed accommodation, courts generally balance the burdens the contemplated accommodation imposes on the defendant against the benefits to the plaintiff.” Hubbard v. Samson Mgmt. Corp., 994 F. Supp. 187, 190 (S.D.N.Y. 1998). Here, it is impossible to litigate this case without actual persons to determine whether any such accommodation is necessary. In short, given that there was no disabled person in need of services, Movants could not fail to provide the services required under the FHA. Similarly, to state a reasonable accommodation claim under the FHA, the plaintiff must “point to the prerequisite neutral application of a rule” from which the Plaintiff seeks a variance. Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 53 (2d Cir. 2002) (citing Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 333 (2d Cir. 1995)); see also Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 578 (2d Cir. 2003) (FHA requires “‘that changes be made to such traditional rules or practices if necessary to permit a person with handicaps and equal opportunity to use and enjoy a dwelling”) (quoting Shapiro, 51 F.3d at 333); Reyes v. Fairfield Props., 661 F. Supp. 2d 249, 260 (E.D.N.Y. 2009) (rejecting the notion that “renovations or Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 28 of 32 PageID #: 623 22 3823310v.14 reconstruction may constitute an accommodation in rules, policies, practices, or services within the meaning of the FHAA”). Plaintiff’s claim is based on a preferred auxiliary aid that may or may not be necessary to provide a deaf individual an equal opportunity to use and enjoy Movants’ services. Thus, Plaintiff’s allegations do not state a claim under the plain language of the FHA. 2. Plaintiff Has Not Alleged A Violation Of Section 3604(c) Of The FHA Plaintiff also alleges violations of FHA § 3604(c). This section makes it unlawful, with regard to oral statements, “[t]o make… any statement... with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on… handicap....” 42 U.S.C. § 3604(c). Plaintiff’s § 3604(c) claim is legally deficient and must be dismissed. No statement indicating any “preference, limitation, or discrimination based on handicap” has been alleged here. As the Second Circuit has held, an action against a defendant for violating § 3604(c) can be maintained only where the words suggest “to an ordinary reader” or listener that a particular protected group is disfavored (or that a comparator group is favored) for the housing in question. Soules v. United Dep’t of Housing and Urban Dev., 967 F.2d 817, 824 (2d Cir. 1992); Ragin 923 F.2d at 999. To establish a claim for a violation of this section, Plaintiff must allege that: (1) the defendant made a statement; (2) the statement was made with respect to the sale or rental of a dwelling; and (3) the statement indicated a preference, limitation, or discrimination on the basis of handicap. White v. U.S. Dep’t of Hous. & Urban Dev., 475 F.3d 898, 904 (7th Cir. 2007). Plaintiff does not allege that the Movant’s alleged statements were made “with respect to the sale or rental of a dwelling.” (Compl. ¶ 127-137.) Accordingly, under the plain language of the rule, Plaintiff has not stated a violation. Additionally, Plaintiff has not identified any “statement… that indicates any… discrimination based on… handicap.” 42 U.S.C. § 3604(c). Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 29 of 32 PageID #: 624 23 3823310v.14 The alleged oral statements by representatives of Movants cannot be read to indicate discrimination based on handicap because there is no handicap. Nor do they represent a refusal “to make reasonable accommodations in rules, policies, practices, or services[.]” 42 U.S.C. § 3604(f)(3)(B). Plaintiff’s tester merely asked whether ASL services were available, and did not ask Defendant to make any exemption in its rules, policies, practices or services with respect to the fictional relative. (Compl. ¶ 38-64.) D. The New York City Human Rights Law Claim Must Be Dismissed Plaintiff also brings claims under three provisions of the New York City administrative code: (1) Section 8-107(15)(a), which requires a place of public accommodation to make reasonable accommodations to enable a person with a disability to enjoy the right or rights in question; (2) Section 8-107(4)(a), which provides that an owner, lessee, or operator of any place of public accommodation may not, because of the actual or perceived disability of any person, directly or indirectly, refuse, withhold from, or deny to any such person any of the accommodations, advantages, facilities, or privileges thereof; and (3) Section 8-107(5)(a)(2), which provides that it shall be an unlawful discriminatory practice for any person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, to discriminate against any person because of such person’s actual or perceived disability. For the same reasons as Plaintiff’s RA and FHA claims fail, Plaintiff’s New York City claims should be dismissed as well. Plaintiff has not identified any disabled individual that has been or will be denied ASL interpreter services by Movants. Accordingly, it cannot allege that it has violated New York Law. In addition, even if the Court is required to review Plaintiff’s NYCHRL claims more liberally or independently than the RA federal standard, the result would remain unchanged because Plaintiff’s Complaint is completely lacking any of the necessary Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 30 of 32 PageID #: 625 24 3823310v.14 allegations to state a claim under the NYCHRL. Accordingly, dismissal of Plaintiff’s NYCHRL claim would be warranted for the reasons articulated above. POINT III PLAINTIFF HAS IMPROPERLY NAMED ALLURE REHAB, CASSENA CARE, AND CENTERS FOR SPECIALTY CARE AS DEFENDANTS IN THIS ACTION Finally, even if this Court were not to dismiss this entire lawsuit on lack-of-standing or failure to state a claim grounds – which this Court most certainly should – it should still dismiss Plaintiff’s claims against Allure Rehab, Cassena Care, and Centers for Specialty Care. This is because the claims against these three entities are all premised on conclusory allegations that they own, operate, or lease at least one of the nursing facilities at issue in this lawsuit. But, as the records of the New York State Health Department establish, Allure Rehab is not the operator of Bedford Center or Hamilton Park (Breitenbach Dec. Exh.2 & 3), Cassena Care is not the operator of Shore View, Amsterdam, Sea Crest, or Sayville (id. Exh. 4-6), and Centers for Specialty Care is not the operator of Boro Park or Brooklyn Rehab (id. Exh.8 & 9). As discussed above, for a claim to survive Rule 12(b)(6) dismissal, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 US 662, 678 (2009). The plaintiff must actually show, through well-pled factual support, that the allegations in the complaint are entitled to the assumption of truth. Id. at 678-79. The complaint also must “state a claim to relief that is plausible on its face,” Ranno v. Hartford Life and Acc. Ins. Co., 2010 WL 2194526, *2 (S.D.N.Y. May 14, 2010), which is satisfied when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is responsible for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In making this determination, the Court may consider documents Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 31 of 32 PageID #: 626 25 3823310v.14 incorporated by reference, judicial notice and documents in plaintiffs’ possession on which they relied in bringing suit. See Goldstein v. Pataki, 516 F.3d 50, 53, fn.1 (2d Cir. 2008). Here, all that the Court has before it concerning the purported liability of Allure Rehab, Cassena Care, and Centers for Specialty Care is: (1) Plaintiff’s bare, conclusory allegations that they are the operators of nursing homes involved in the lawsuit; (2) the State Health Department records – entitled to judicial notice – which establish that Allure Rehab, Cassena Care, and Centers for Specialty Care are not the operators of the nursing homes at issue; and (3) nothing more. Based on this, we submit, Plaintiff has not met its burden under Iqbal and, accordingly, this Court should dismiss these defendants from the lawsuit. CONCLUSION For the foregoing reasons, the Movants request that the Court dismiss the Complaint as against them in its entirety, and further requests that the Court grant such other and further relief as it deems appropriate. Dated: Great Neck, New York May 16, 2016 GARFUNKEL WILD, P.C. By: /s/ Roy W. Breitenbach Roy W. Breitenbach, Esq. Salvatore Puccio, Esq. Michael J. Keane, Jr., Esq. 111 Great Neck Road Great Neck, New York 11021 (516) 393-2200 Attorneys for Defendants Allure Rehabilitation Services LLC, Cassena Care LLC, Amsterdam Nursing Home Corporation, Sea Crest Health Care Center, LLC, Centers For Specialty Care Group LLC Case 1:15-cv-06336-RJD-LB Document 119-11 Filed 08/08/16 Page 32 of 32 PageID #: 627