South Ozone Park Civic Association West, Inc. et al v. KAD of Queens, LLC et al
ORDER granting 10 Motion to Dismiss; granting 14 Motion for Joinder; granting 23 Motion to Dismiss for Failure to State a Claim. Ordered by Judge I. Leo Glasser on 8/17/2015. (Russell, Alexandra)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SOUTH OZONE PARK CIVIC ASSOCIATION
WEST, INC., ET AL.,
MEMORANDUM AND ORDER
15 Civ. 2840 (ILG) (LB)
- against KAD OF QUEENS, LLC, ET AL.,
GLASSER, Senior United States District Judge:
Plaintiffs South Ozone Park Civic Association West, Inc. (“SOPCAW”), South
Ozone Park residents George Savich, Yudraj Tiwari, and Cynthia Soria, on behalf of
themselves and all others similarly situated, bring this action against Defendants KAD
of Queens, LLC (“KAD”), Episcopal Social Services, d/b/a Sheltering Arms Children and
Family Services (“Sheltering Arms”), and the City of New York (“City”), alleging
violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et
seq., and New York law. Plaintiffs seek to enjoin Defendants from opening a residential
facility for juvenile offenders in South Ozone Park, Queens. Defendants1 move to
dismiss the Complaint pursuant to Rule 12(b)(6). For the reasons set forth below, the
motions are GRANTED.
In a declaration submitted in Opposition to Sheltering Arms’ motion, counsel for Plaintiffs asked the
Court to find that KAD defaulted in this action, claiming that it failed to timely respond to the Complaint.
Dkt. No. 19, ¶ 3. Pursuant to Federal Rule of Civil Procedure 81, KAD was required to respond to the
Complaint by May 22, 2015. KAD joined in co-defendant Sheltering Arms’ motion to dismiss on May 26,
2015. This brief delay by KAD in filing a response to the Complaint does not warrant entry of default. See
Sibley v. Choice Hotels Int’l, Inc., 304 F.R.D. 125, 131 (E.D.N.Y. 2015).
The following facts are taken from the Complaint and presumed to be true. The
City, through its Administration for Children’s Services, has contracted with Defendant
Sheltering Arms to construct and operate a residential facility at 133-23 127th Street in
South Ozone Park, which will house up to 18 adjudicated juvenile delinquents. Compl.
¶¶ 5-6, 20-23. The facility is one of six “limited secure placement” residences which the
City has been authorized to open pursuant to New York State’s “Close to Home”
legislation. Id. ¶ 20. This legislation seeks to ensure that juvenile delinquents—who
would otherwise reside in State-run facilities in upstate New York—receive rehabilitative
services near their families in New York City. Id. ¶¶ 20, 22. The individual Plaintiffs are
homeowners and tenants residing near the planned facility. Id. ¶ 35. Plaintiff SOPCAW
is comprised of approximately 100 South Ozone Park residents. Id. ¶ 36.
Sheltering Arms has leased the site of the planned facility from Defendant KAD,
the current property owner. Id. ¶¶ 5-6. The property was previously owned by the
Roman Catholic Church of St. Anthony of Padua (“the Church”). Id. ¶ 14. On February
23, 2010, the Church conveyed the property by deed to a Mr. Patrick Khan. Id. The
conveyance, it is alleged, was subject to a restrictive covenant prohibiting the use of the
property to “provid[e] any counseling or advice relati[ng] to abortions, birth control or
euthanasia.” Id. ¶ 15. On June 24, 2014, Mr. Khan conveyed the property to KAD. Id. ¶
18. Plaintiffs allege that the Church’s restrictive covenant was intended to run with the
land and is now binding on Defendants. Id. ¶¶ 16, 43. They assert that the sexual health
education curriculum required by New York State to be taught to residents at the facility
would violate this covenant. Id. ¶ 26. The Complaint also alleges “several glaring
compliance issues” with the planned facility, including limited access points for
“disabled youth offenders/and or their family members.” Id. ¶ 34, n.4. None of the
Plaintiffs is alleged to be disabled.
On April 21, 2015, Plaintiffs filed a Complaint in the New York State Supreme
Court for Queens County seeking to permanently enjoin2 the construction and operation
of the facility on the grounds that (1) the facility does not comply with the accessibility
requirements of the ADA and New York City Zoning Regulations, and (2) the planned
health education program would violate the Church’s restrictive covenant. Dkt. No. 1.
On May 15, 2015, Defendants3 removed the action to this Court on the basis of
federal question jurisdiction. Id. On May 22, 2015, Sheltering Arms filed its motion to
dismiss, which KAD joined. Dkt. Nos. 10, 14. Plaintiffs opposed the motion on July 6,
and Sheltering Arms replied on July 22, 2015. Dkt. Nos. 20, 25. The City filed its
motion to dismiss on July 13, 2015. Dkt. No. 23. Plaintiffs opposed the City’s motion on
July 27 and the City replied on July 30, 2015. Dkt. Nos. 27, 28.
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
the Complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although detailed
factual allegations are not necessary, mere legal conclusions, or “a formulaic recitation
of the elements of a cause of action,” by the plaintiff will not suffice. Id. (internal
quotations and citations omitted). This Court must accept as true all of the allegations
2 Plaintiffs requested a preliminary injunction for the first time in their Opposition, but did not file a
motion pursuant to Fed. R. Civ. P. 65 or submit any evidence to the Court in support of the request.
On July 10, 2015, the Court granted the City’s motion to intervene as a Defendant. Dkt. No. 22.
made in the complaint and draw all reasonable inferences in the plaintiff’s favor.
Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011).
ADA Claim for Injunctive Relief
Defendants argue that Plaintiffs lack standing to sue under the ADA.4 The ADA
grants a private right of action to individuals who are subject to discrimination “on the
basis of disability” or who have “reasonable grounds for believing” that they will be.
Access 4 All, Inc. v. Trump Int’l Hotel & Tower Condo., 458 F. Supp. 2d 160, 170
(S.D.N.Y. 2006) (quoting 42 U.S.C. § 12188(a)(1)). Plaintiffs must allege three elements
to establish Article III standing: (1) an “injury in fact” that is “concrete and
particularized” and “actual or imminent, not conjectural or hypothetical”; (2) “a causal
connection between the injury and the conduct complained of”; and (3) redressability of
the injury by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-65
There are no allegations that Plaintiffs have sustained or will sustain a concrete
and particularized injury with respect to the facility’s lack of access points for disabled
individuals. Furthermore, the law is clear that they have no standing to sue on behalf of
a hypothetical group of “disabled youth offenders and/or their family members.”
Compl. ¶ 34; Lujan, 504 U.S. at 560. Accordingly, the ADA claim is dismissed.
Plaintiffs have requested leave to amend their Complaint in the event the Court
grants Defendants’ motions to dismiss. Plaintiffs cannot remedy their lack of standing
to sue under the ADA with additional factual allegations. Thus, amendment would be
Plaintiffs did not respond to Defendants’ standing argument or provide any support for their ADA claim.
futile and the ADA claim is dismissed with prejudice. See Hunt v. Alliance N. Amer.
Govt. Income Trust, Inc., 159 F.3d 723, 728 (2d Cir. 1998).
State Law Claims
Having dismissed the ADA claim, the Court declines to exercise supplemental
jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3). It
would be error for the Court to retain jurisdiction over the state law claims where the
federal claim is dismissed and leaves the Court with no jurisdiction. See Dunton v.
Suffolk Cnty., 729 F.2d 903, 911, amended on other grounds, 748 F.2d 69 (2d Cir. 1984).
Therefore, the Court dismisses the state law claims without prejudice to their renewal in
For the foregoing reasons, Defendants’ motions to dismiss the ADA claim are
GRANTED. The state law claims are dismissed without prejudice. The Clerk of Court is
directed to close this case.
Brooklyn, New York
August 17, 2015
I. Leo Glasser
Senior United States District Judge
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