Residents and Families United to Save Our Adult Homes et al v. Zucker, M.D. et al

Filing 95

MEMORANDUM & ORDER, For the foregoing reasons, Defendants' 57 motion for dismissal of the Residents Plaintiffs' second amended complaint and Defendants' supplemental motion for dismissal of the Empire Plaintiffs' first amended 90 petition are GRANTED. The Residents Plaintiffs' second amended complaint (Dkt. 1-2) and the Empire Plaintiffs' first amended petition (Dkt. 19-8) are DISMISSED WITHOUT PREJUDICE. The court REMANDS the Residents Plaintiffs' and the Empire Plaintiffs' claims to state court. So Ordered by Judge Nicholas G. Garaufis on 3/5/2018. (fwd'd for jgm; certified copy mailed to NYS-Kings County, index no. 9038-13) (Lee, Tiffeny)

D F

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

RESIDENTS AND FAMILIES UNITED TO SAVE

OUR ADULT HOMES et al,,
Plaintiffs,

MEMORANDUM & ORDER

16-CV-1683(NGG)
(RER)
HOWARD ZUCKER,M.D., et al.,
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiffs bring this action against Defendants the New York State Department of Health
("DOH");Howard Zucker, M.D.,in his official capacity as Commissioner ofDOH;the New
York State Office of Mental Health("OMH"); and Anne Marie T. Sullivan, M.D.,in her official
capacity as Acting Commissioner of OMH,challenging certain regulations(the "Regulations")

promulgated by DOH and OMH,which limit admissions to adult homes.^
Before the court is Defendants' motion for dismissal ofthe Residents Plaintiffs'^ second

amended complaint(2d Am. Compl.("SAC")(Dkt. 1-2)), pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6)(the "Motion"), and Defendants' supplemental motion for

dismissal ofthe Empire Plaintiffs'^ first amended petition (1st Am.Pet.("FAP")(Dkt. 19-8)),

^ Originally,two separate actions were filed in state court—one by the "Residents Plaintiffs," defined in note 2,
infira. and the other by the "Empire Plaintiffs," defined in note 3, infra. Those actions were later consolidated, but
the pleadings in each action remain separate. ("See Consol. Order(Dkt. 19-10).) The entire consolidated action was
subsequently removed to this court. (Not. ofRemoval(Dkt. 1).)
^ The "Residents Plaintiffs" refer to the following parties: Residents and Families United to Save Our Adult Homes;
New York State Health Facilities Association/New York State Center for Assisted Living; Kenneth Przyjemski;
Walter Roberts; Hudson View Management Corp., d/b/a Palisade Garden HFA;Belle Harbor Manor; Elm York
LLC;Kings Adult Care Center, LLC; Lakeside Manor Home for Adults, Inc.; Garden ofEden Home LLC,d/b/a
Garden ofEden Home; Mohegan Park Home for Adults; Gloria's Manor LLC,d/b/a New Gloria's Manor Home for
Adults; New Haven Manor; New Monsey Park Home; New Rochelle Home for Adults,LLC;Parkview HFA,Inc.,
as assignee ofParkview Home for Adults; Elener Associates, LLC, d/b/a Riverdale Manor Home for Adults;
Seaview Manor,LLC; Surfside Manor Home for Adults, LLC; The Eliot Management Group, LLC,d^/a The Eliot
at Erie Station ALP; The Sanford Home; Wavecrest HFA,Inc., d/b/a Wavecrest Home for Adults; and Woodland
Village LLC, d/b/a Fawn Ridge Assisted Living.

^ The "Empire Plaintiffs" refer to the following parties: Empire State Association of Assisted Living, Inc.; Dutchess
Care; Elm York,LLC;Harbor Terrace Adult Home and Assisted Living; Central Assisted Living, LLC; Adirondack
1

pursuant to Federal Rule of Civil Procedure 12(b)(1)(the "Supplemental Motion"). (Mot. to
Dismiss("Mot.")(Dkt. 57); Mem.in Supp. of Mot.("Mem.")(Dkt. 58); Suppl. Br.(Dkt. 90).)

Plaintiffs oppose the Motion and the Supplemental Motion. (Pis. Mem.in Opp'n to Mot. ("Pis.
Opp'n")(Dkt. 59); Pis. Br. in Opp'n to Suppl. Br.("Pis. Suppl. Opp'n").) For the following

reasons,the court GRANTS both the Motion and the Supplemental Motion."^
L

BACKGROUNDS

A.

DAI Litigation

The imdersigned has presided over litigation involving adult homes for over fourteen

years. Disability Advocates, Inc. v. Paterson. No.03-CV-3209(NOG)
(MDG)
("DAI I"), which
was filed in this court in 2003,involved years oflitigation, including extensive discovery and

multiple expert reports. That action concluded with a five-week bench trial during which 29
witnesses testified, more than 300 exhibits were admitted into evidence, and excerpts from the

deposition transcripts of23 additional witnesses were entered into the record. The court issued a
210-page Memorandum and Order finding that the plaintiff. Disability Advocates, Inc., had
established a violation ofthe "integration mandate" of Title II ofthe Americans with Disabilities
Act and Section 504 ofthe Rehabilitation Act. DAI T 653 F. Supp. 2d 184,187-88(E.D.N.Y.
2009).

The Second Circuit reversed the judgment in DAI I on the grounds that Disability
Advocates, Inc., lacked associational standing; the appellate court noted, however,that, should

Manor Home for Adults; William Stanton; John Tory; Lucia Beimett; Joseph Simone; Lawrence Wong;Susan
Osterhoudt-Bumett; Jeffrey Frost; and Mario Vogehnann.

'• The court notes that also pending before the court is a motion by George Iwczenko, Ruth Rivera, and Eric Scoffto
intervene in this action as defendants. (Mot.to Intervene(Dkt. 79).) Because the court grants Defendants' Motion
and Supplemental Motion,the motion to intervene is moot, and the court need not address it.

^ For a more fulsome outline ofthe procedural histoiy ofthe adult homes litigation, the court directs the parties to
the court's January 23,2017, Memorandum 8l Order, denying Plaintififs' motion for remand and reassignment. (See
Jan. 23,2017, Mem.& Order(Dkt. 21).)

the action be re-filed by the United States or individual plaintiffs with standing, it would be

appropriate for the undersigned to handle the matter.

Disability Advocates. Inc. v. N.Y.

Coalition for Quality Assisted Living. Inc.. 675 F.3d 149,162(2d Cir. 2012)
("We are not

unsympathetic to the concern that our disposition will delay the resolution ofthis controversy

and impose substantial burdens and transaction costs on the parties, their counsel, and the courts.
Should that situation arise, we are confident that the experienced and able districtjudge, as a

consequence ofhis familiarity with prior proceedings, can devise ways to lessen those burdens
and facilitate an appropriate, efficient resolution.").
In 2013,the action was re-filed by the United States and private plaintiffs against the
State ofNew York; Andrew M.Cuomo,in his official capacity as Governor ofthe State ofNew
York; DOH and the Commissioner ofDOH;and OMH and the Commissioner of OMH. See
United States v. New York. No. 13-CV-4165(NOG)
(ST); O'Toole et al. v. Cuomo et al.. No.

13-CV-4166(NGG)
(ST)(together,"DAI 11"). Then-Chief Judge Carol Bagley Amon assigned

the case to the undersigned. (Order Reassigning Case(DAI II Dkt. 4)^.) Shortly thereafter, the
court certified the class of private plaintiffs (collectively, the "DAI Class," and, individually,the
"DAI Class Members"), and the parties entered into a settlement agreement(the "Settlement

Agreement"). ("See Nov. 20,2013, Order (Class Dkt. 23)"^; Proposed Stip. & Order of Settlement
(DAI II Dkt. 5).) After two separate revisions ofthe proposed settlement and after conducting a
fairness hearing on the proposed settlement, the court so-ordered the Settlement Agreement.
(See Oct. 10,2013, Order (Class Dkt. 12); Mar. 17,2014, Order(Class Dkt. 59).) The court

continues to oversee implementation ofthe Settlement Agreement, meeting with the parties at

® "DAI II Dkt." refers to documents filed in Case No. 13-CV-4165(NGG).
'
"Class Dkt." refers to documents filed in Case No. 13-CV-4166(NGG).

least quarterly to discuss their progress towards the goals outlined in the agreement. (See 2d
Am. Stip. & Order of Settlement("2d Am. Settlement")(DAI II Dkt. 112).)
B.

The Regulations

In 2013, OMR and DOH enacted regulations pertaining to "transitional adult homes''^
(the "Regulations"). The Regulations prevent OMH-licensed psychiatric hospitals from
discharging persons with serious mental illness("SMI")to transitional adult homes.
N.Y. Comp. Codes R.& Regs.('mCRR"),tit. 14, § 580.6(c). The DOH Regulations,
correspondingly, prohibit transitional adult homes from admitting additional residents with SMI.
NYCRR,tit. 18,§ 487.4(c). The DOH regulations also compel transitional adult homes to

submit a compliance plan that aims to bring their SMI population under 25 percent. NYCRR,tit.
18, § 487.13(c). The Regulations state that this plan should be accomplished through "lawful
discharge" ofresidents with SMI into the community. Id. Importantly, the Regulations do not
countenance the involuntary displacement ofresidents who desire to continue to live in their
current adult homes. Id.

The DOH Regulations also require transitional adult homes to provide space for meetings
held between residents and housing contractors for discussions of other possible future housing

options for the residents. NYCRR,tit. 18,§ 487.13(h). In addition,the Regulations prohibit
transitional adult homes from trying to "influence or otherwise discourage individual residents
from meeting with such entities and individuals." Id.

After the Regulations were enacted, various plaintiffs, some of which were adult homes,
brought actions in state court to block the implementation ofthe Regulations. One ofthese

® The State ofNew York defines "transitional adult homes" as adult homes that have a "certified capacity of 80 beds

or more in which 25 percent or more ofthe resident population are persons with serious mental illness." NYCRR,
tit. 18, § 487.13(b)(1).

actions, which was filed in Kings County Supreme Court, was entitled Residents and Families
United to Save Our Adult Homes v. Shah, and a second state-court action was entitled Empire
State Association of Assisted Living. Inc. v. Shah. These two actions were consolidated in state

court(though their pleadings remained separate), and the entire consolidated action was then
removed to this court. (Not. ofRemoval(Dkt. 1).)
C.

The Residents Plaintiffs' Second Amended Complaint

The Residents Plaintiffs filed their SAC on April 1,2016, in state court, and Defendants
then removed the consolidated action to this court. The SAC includes eleven claims. Ofthese,

nine allege that Defendants have infnnged the rights ofindividuals vdth mental illness. CSee

SAC

217-20(Americans "with Disabilities Act("ADA"));id UK 221-24(Rehabilitation Act);

id. KK 225-28(Fair Housing Act("FHA"));id

229-31 (New York Human Rights Law);

id KK 232-40(intimate association); id KK 241-42(due process); id KK 248-51 (ultra vires);

id. KK 252-57(arbitrary and capricious); id Klf 258-61 (equal protection).) There are two general

types ofinjury that the pleading alleges that these affected individuals have incurred: First, that
mentally disabled individuals have been or will be denied the right to live where they choose to
live;(s^ id KK 5,133,219,223,227,230,233;)and second,that the Regulations have caused
mentally disabled individuals to suffer coercion or harassment(id; see also id KK 241-42.).
The Residents Plaintiffs also assert two claims on behalf of adult homes and their

operators. First, the Residents Plaintiffs allege that the Regulations limit adult home operating
certificates and force adult homes to reduce their resident population in violation ofthe due

process rights ofthe homes and operators under the U.S. and New York constitutions.

(Id. KK 243-47.) Second,the Residents Plaintiffs allege that the Regulations prevent adult homes

and their operators from giving advice to residents and thus violate the homes and operators' free
speech rights. (Id UK 211-216.)

The SAC also alleges, on behalf of all ofthe Residents Plaintiffs, that the Regulations are
"arbitrary and capricious"(id KK 252-57), and that they are an \iltra vires usurpation of
legislative power(id KK 248-51).
D.

The Empire Plaintiffs' First Amended Petition

On November 26,2013,the Empire Plaintiffs filed their FAP in state court. Defendants
answered on April 8,2014. The FAP alleges that the Regulations(1) violate the FHA,ADA,
and the Takings Clauses ofthe federal and New York State constitutions(FAP KK 163-202);

(2)are "arbitrary, capricious, unauthorized and irrational"(id KK 152-54);(3)are an ultra vires
"usurpation ofthe power ofthe New York State Legislature"(id KK 145-51); and(4)violate the
due process rights ofadult homes and certain current and prospective adult home residents
(id KK 155-62).

The FAP alleges that the Regulations harm adult home residents who have SMI and

prospective adult home residents who have SMI by precluding them from being able to choose to
live in a transitional adult home—^with current residents being denied the choice to continue to

reside in a transitional home and with prospective residents being denied the choice to begin to
reside in a transitional home. (Id KK 135,138,144.)
The FAP also alleges that the Regulations harm adult home operators in various ways.

According to the FAP,the Regulations(1)require adult home operators to "dramatically reduce
the mental health census through involuntary transfers," thus harming the home operators'

businesses(id KK 112,139);(2)expose adult home operators to monetary fmes ifthe homes fail
to "fast track" the implementation of plans to reduce the mental health census(id KK 112-13);

(3)expose the adult homes to discrimination lawsuits from residents because ofthe Regulations,
rid. ^ 79); and(4) give rise to the adult homes being given the "injurious label ofa transitional
adult home"(id H 162).
II.

DISCUSSION

Before the court are Defendants' motion to dismiss the Residents Plaintiffs' SAC

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)(Mot.; Mem.), and

Defendants' supplemental motion for dismissal ofthe Empire Plaintiffs' FAP pursuant to Federal
Rule of Civil Procedure 12(b)(1)(Suppl. Br.).

Defendants move to dismiss all claims ofthe SAC pursuant to Rule 12(b)(1), and nine of

eleven claims pursuant to Rule 12(b)(6). (Mem.) For the reasons set forth below,the court
grants Defendants' motion to dismiss the SAC for lack ofsubject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). The court therefore need not reach the arguments in
the Motion for why the SAC should be dismissed pursuant to Federal Rule of Civil Procedure ,
12(b)(6). Indeed, a court facing challenges as to both its jurisdiction over a party and the
sufficiency ofany claims raised must first address the jurisdictional question. S^ Arrowsmith v.
United Press Int'L 320 F.2d 219, 221 (2d Cir. 1963).

Defendants also move to dismiss all claims ofthe FAP pursuant to Rule 12(b)(1).

(Suppl. Br.) For the reasons set forth below,the court grants the Supplemental Motion.
A.

Legal Standard

Pre-answer motions to dismiss for lack of standing are governed by Federal Rule of Civil
Procedure 12(b)(1). Carter v. HealthPort Techs.. LLC.822 F.3d 47. 56 r2d Cir. 20161. Where,
as here,the "12(b)(1) motion is facial, i^,based solely on the allegations ofthe complaint," the

court's task is to determine whether or not the pleading "allege[s] facts that affirmatively and

plausibly suggest that[a plaintiff] has standing to sue." Id Ifthe well-pleaded allegations do

not give rise to the inference that a plaintiff has standing, then dismissal is appropriate.

id

In carrying out this task, however,the court must accept all ofthe factual allegations in the
complaint as true and draw "all reasonable inferences in favor ofthe plaintiff." Id (citations
omitted).

In order to have standing, a plaintiff"must have suffered an 'injury in fact'" that is "fairly

... trace[able] to the challenged action ofthe defendant" and likely to be "redressed by a
favorable decision," Luian v. Defs. of Wildlife, 504 U.S. 555,560-61 (1992)(citations omitted).

The plaintiffs "injury in fact" must be "(a)concrete and particularized; and(b) actual or
imminent,not conjectural or hypothetical." Id at 560(citations, intemal quotation marks, and

quotations omitted). An "injury in fact" is not imminent ifit will take place "at some indejBnite
future time; it must be certainly impending." Id at 564 n.2(citation and intemal quotation marks
omitted). A plaintiffs pleading must plausibly and "clearly ... allege facts demonstrating each
element[of standing]." Spokeo.Inc. v. Robins, 136 S. Ct. 1540,1547(2016)(citations and
quotation marks omittedk see also Aschroft v. Iqbal. 556 U.S. 662,678(2009).
B.

Application
1.

The Residents Plaintiffs

The Residents Plaintiffs in this case include(a)two individual plaintiffs, Walter Roberts
and Kenneth Przyjemski;(b)Residents and Families United to Save Our Adult Homes(the

"Residents Association"); and (c)the "Operators," a category including certain adult homes and
certain corporate entities that operate adult homes(SAC ^ 33)and the New York State Health
Facilities Association / New York State Center for Assisted Living("NYSHFA"),an association

that purports to represent the interests ofthese businesses(SAC ^ 12). For the reasons set forth
below, none ofthese plaintiffs has standing to sue.
a.

The Individual Plaintiffs Lack Standing

As a preliminary matter,the court notes that it has been advised by Plaintiffs' counsel
that one ofthe individual plaintiffs, Walter Roberts, has passed away. (PI. Feb. 14, 2018, Letter

(Dkt. 94).) However,Plaintiffs' counsel has provided no documentary proof of Roberts's death.
In light ofPlaintiffs' counsel's assertion, it appears that Roberts's claims are moot and that he
thus lacks standing. In the following discussion regarding Przyjemski, however,the court
includes references to Roberts—as if he had not passed away—^both because ofthe lack of
documentation and because the analyses regarding Przyjemski and Roberts would have been the
same if not for Roberts's death.

Ofthe Residents Plaintiffs' eleven claims, nine allege that the Defendants have infringed

the rights ofindividuals with mental illness.

Section I.C., supra. There are two general

types ofinjury that the pleading alleges that these affected individuals have incurred. First, the
Residents Plaintiffs allege that mentally disabled individuals have been or will be denied the

right to live where they choose to live. (See SAC

5,133,219,223,227,230,233.) Second,

the Residents Plaintiffs allege that the Regulations have caused mentally disabled individuals to
suffer coercion or harassment. Qd;see also id. KH 241-42.) As explained below, however,the
two individual plaintiffs in this case do not claim that they have suffered, or are in "actual or
imminent" harm ofsuffering, either ofthese two types ofinjuries personally.

Both Roberts and Przyjemski state clearly that they live in the adult homes that they
chose and in which they want to continue to reside. (SAC

13-14.) They do not allege that

they are at any imminent, or even likely, risk ofinvoluntary displacement. See, e.g.. Hakim v.

ChertofF. 447 F. Supp. 2d 325,328 (S.D.N.Y. 2006)(holding that an injuiy was "too remote

temporally to satisfy Article III standing" ifthe injury could only occur four years after suit was
filed)(citation omitted). The Residents Plaintiffs' original complaint,filed in 2013,included
similar statements that Roberts and Przyjemski lived in adult homes and wished to remain there

(Compl.(Dkt. 1-5) Klf 16,17), and they have evidently continued to live in these homes during
the interim years notwithstanding the Regulations. Further, not only do the Residents Plaintiffs
not include facts giving rise to the inference that Roberts and Przyjemski are likely to be

involuntarily displaced in the near future, but the Regulations explicitly do not interfere with an
adult home resident making a choice as to whether to stay in the adult home or whether to move

out.

N.Y.Reg., Jan. 16,2013 at 15. The Residents Plaintiffs therefore cannot demonstrate

the existence of an injury in fact.

The Residents Plaintiffs argue in their response briefthat Roberts and Przyjemski's fear
or anxiety offuture removal is sufficient to satisfy the injury-in-fact requirement. (Pis Opp'n at

6.) In making this argument, the Residents Plaintiffs rely in part on Second Circuit opinions
from 2008 and 2006: Ross v. Bank of America. N.A..524 F.3d 217(2d Cir. 2008), and Dennev

V. Deutsche Bank AG,443 F.3d 253(2d Cir. 2006). The law has evolved since these opinions
were written, however. "Since Ross,the Second Circuit has clarified that allegations offear or

anxiety offuture harm are alone insufficient to confer standing. Instead,'such fears may support

standing when the threat creating the fear is sufficiently imminent.'" Feinberg v. Apple. Inc.,
No. 15-CV-5198,2016 WL 4371746, at *3(S.D.N.Y. Aug. 10,2016)fauoting Hedges v.
Obarna, 724 F.3d 170,195(2d Cir. 2013)). As discussed above, however,the risk that the

Residents Plaintiffs allege is causing Roberts and Przyjemski fear or anxiety is one that is not
imminent. The risk that these individuals might not be re-admitted to their transitional homes if

10

they choose to leave and later attempt to return to the homes is not one that is imminent. Both
Roberts and Przyjemski are living where they choose to live, and the conjectural harm that the
Residents Plaintiffs invoke is neither concrete nor imminent. Thus,these plaintiffs' claimed fear
or anxiety does not establish an injury in fact.

As for whether the Regulations have caused Roberts or Przyjemski to suffer coercion or
harassment, the SAC does not contain any allegations that either one ofthem has suffered
coercion or harassment, whether as a result ofthe Regulations or otherwise. Further, in opposing
the Motion,the Residents Plaintiffs offer no facts or arguments that would suggest such an
injury.

Thus, because Plaintiffs Roberts and Przyjemski do not allege any actual injury, they lack

standing. Their claims are therefore dismissed without prejudice. See Carter. 822 F.3d at 54-55
(dismissal for lack ofstanding must be without prejudice).
b.

The Residents Association Lacks Standing

The other member ofthe Residents Plaintiffs that is suing on behalfofindividuals with
mental illness is the Residents Association, an association of approximately 2,600 residents of

adult homes and family members. (SAC If 1!•) This plaintiff lacks standing as well.
For an organization to have associational standing, it must satisfy the three requirements
articulated by the Second Circuit in Bano v. Union Carbide Corp.. 361 F.3d 696,713
(2d Cir. 2004). An association has standing only if: "(a)its members would otherwise have
standing to sue in their own right;(b)the interests it seeks to protect are germane to the

organization's purpose; and (c)neither the claim asserted nor the relief requested requires the
participation ofindividual members in the lawsuit." Id.

11

The Residents Association lacks standing because it is unable so satisfy the first prong of
the Bano test: that the association's members would otherwise have standing to sue in their own

right.^ As with Roberts and Przyjemski, Section ILB.l.a., supra, the Residents Plaintiffs do
^
not allege that any specific member ofthe Residents Association suffered either ofthe two types
ofinjury that have allegedly been suffered by mentally disabled individuals fi.e.. involuntary

displacement from an adult home or harassment or coercion). The Residents Plaintiffs state that
members ofthe Residents Association either are current residents of adult homes who live there

by choice, or family members ofsuch residents (id.

11,140), but do not claim that any ofthe

residents have been required to leave. Similarly, the Residents Plaintiffs do not allege that any

specific member ofthe association was harassed or coerced.

Summers v. Earth Island Inst..

555 U.S. 488,498-99(2009)(a plaintiff must name the members of an organization who were

injured); see also Draper v. Healev. 827 F.3d 1,3(1st Cir. 2016)(holding that an association has
no standing to sue where a complaint fails to identify any member ofthe group who allegedly
was injured).

The Residents Plaintiffs maintain that, even ifthe Residents Association did not satisfy
the Bano test, the Residents Association can establish standing by showing that it has standing to

sue in its own right. (Pis Opp'n at 8-9.) Brooklvn Ctr. for Indep. ofthe Disabled v. Bloomberg.

290 F.R.D. 409,415-16(S.D.N.Y. 2012). For the Residents Association to have direct standing
to sue in its own right, it would have to independently satisfy standing requirements: injury in
fact, causation, and redressability. Id. The Residents Plaintiffs, however,fail to allege that the
Residents Association suffered an independent injury in fact. Further,in opposing the Motion,

'
Because the court concludes that the Residents Association fails the first prong ofthe Bano test(and in light ofthe
fact that the Residents Plaintiffs must satisfy all three prongs ofthe Bano test for the Residents Association to have
associational standing), the court does not address the parties' dispute about whether the third prong ofthe Bano test
is satisfied.

12

the Residents Plaintiffs offer no facts or arguments that would suggest such an injury. Thus,the
Residents Association does not have independent standing either.

For the foregoing reasons, the court concludes that the Residents Association lacks
standing, and so dismisses its claims without prejudice.
c.

The Operators and NYSHFA Lack Standing

The last group of Residents Plaintiffs includes(1)"Operators," a category including
certain adult homes and certain corporate entities that operate adult homes(SAC If 33), and

(2)NYSHFA(SAC If 12). According to the Residents Plaintiffs, the Operators and NYSHFA
have incurred three types of alleged injuries: The Residents Plaintiffs allege that Defendants,

through the Regulations, have(1)limited Operators' adult home operating certificates;(2)

required Operators to reduce their number ofresidents; and(3)denied Operators the purported
right to give advice and assistance to residents to protect their health, welfare, and safety. tSee

SAC Iflf 205-16,246.) For the reasons discussed below, however,these allegations do not give
rise to standing.

The Operators first contend that their operating certificates have been limited.

(SAC

243-47.) However,the Residents Plaintiffs fail to allege any facts that plausibly

support this argument. See Iqbah 556 U.S. at 678. Further, there is reason to think that the
Residents Plaintiffs would not be able to allege such facts: The Regulations do not include any
mention of operating certificates, and the Residents Plaintiffs do not suggest any contrary

reading. The Residents Plaintiffs also do not contend that any specific certificates were altered
by Defendants, and they do not articulate how any Operator's certificate is limited by the
Regulations, or is in any way changed by the enactment ofthe Regulations.

13

The Operators next contend that Defendants required the Operators to reduce their
number ofresidents. As with the Operators' first contention,they do not allege any facts that
could raise an inference that they suffered such a harm. Moreover,there again is reason to think
that the Residents Plaintiffs would not be able to allege such facts, and that Operators are not

required by the Regulations to reduce the total resident population. Even under the Regulations,

the Operators and other adult homes are authoi:|zed to operate with the same fixed number of
beds. The Residents Plaintiffs do not contend that any homes—^much less, any specific home—

had beds decertified or that Operators were compelled,in any other way,to reduce their number
ofbeds after the Regulations were enacted.

Lastly,the Operators contend that the Regulations injure them by preventing them from

"giving advice and assistance to Residents...to protect their health, safety, and welfare."

(SAC ^ 212). As with the Operators' first and second contentions, the court finds no support for
this harm in the SAC. The Residents Plaintiffs do not identify any Operator that, as a result of

the Regulations, has been unable to give advice to any resident. These general allegations are
not sufficient to confer standing upon the Operators. S^ Iqbal. 556 U.S. at 678. And,as with

the prior alleged harms,the Operators' claim here misunderstands and misconstrues the
Regulations, which do not prevent the Operators fi om giving advice and assistance to residents.
:
Instead, what the Regulations do,in respects at all relevant to the Operators' third contention, is

(1)require that the Operators create room for housing contractors to meet with the residents, and
(2)prevent the Operators from interfering with these meetings. NYCRR,tit. 18,§ 487.13(h).
The Residents Plaintiffs argue that the Operators have standing because(1)when a law is
aimed directly at a person, standing is conferred, and(2)the Regulations are aimed directly at the

Operators. (Pis. Opp'n at 10-11.) In support oftheir first contention, the Residents Plaintiffs cite

14

Virpinia v. American Booksellers Association. Inc.. 484 U.S. 383,392(1988). This case,
however, does not support the proposition that the fact that a regulation is "directly aimed" at a

plaintiff is sulBBcient to establish standing. Rather, American Booksellers states that "[the injuryin-fact] requirement is met here, as the law is aimed directly at plaintiffs, who,iftheir
interpretation ofthe statute is correct, will have to take significant and costly compliance
measures or risk criminal prosecution." Id. Thus, standing requires more than the mere fact that
a law is "aimed" at a particular party: A party must still point to some objective harm. The
Residents Plaintiffs argue that they do face something more: They may face penalties for

violating the Regulations, and the alternative to facing these penalties is to "discriminate against
individuals." (Pis Opp'n at 10-11.) The Residents Plaintiffs' argument is not persuasive. Even

ifincurring these penalties did constitute imminent financial harm—and the Residents Plaintiffs
do not claim that such harm is imminent—^the Residents Plaintiffs do not establish an injury in

fact, because the option remains open to them to comply with the Regulations and thus avoid

penalties. By arguing that complying with the Regulations would involve discriminating against
individuals, the Residents Plaintiffs have not provided an argument for how the Residents
Plaintiffs themselves would be harmed, and thus they fail to establish injury in fact.

In determining whether NYSHFA has standing, the court applies the Bano test for
associational standing, discussed in Section II.B.2., supra. As "with the Residents Association,

NYSHFA fails the first prong ofthe Bano test, as it cannot show that any ofits members would
have standing to sue in their own right. Bano. 361 F.3d at 713. Since, as discussed above,the
Operators themselves(i^,the members ofNYSHFA)do not have standing in their own right,
NYSHFA therefore lacks associational standing. Further, as with the Residents Association,

15

NYSHFA fails to establish independent standing, and,in opposing the Motion,the Residents
Plaintiffs offer no facts or arguments that would support the existence ofindependent standing.
*

*

*

*

Accordingly,the court concludes that neither the Operators nor NYSHFA has standing,
and so dismisses their claims without prejudice.
d.

Summary

For the foregoing reasons, all Residents Plaintiffs lack standing. Their claims are thus
dismissed without prejudice.
2.

The Empire Plaintiffs

The Empire Plaintiffs in this case include(a)eight individual plaintiffs: Lucia Bennett,
Susan Osterhoudt-Bumett, Joseph Simone, William Stanton, John Tory, Lawrence Wong,

Jeffrey Frost, and Mario Vogehnann(FAP

14-23);(b)five adult homes: Dutchess Care; Elm

York,LLC; Harbor Terrace Adult Home and Assisted Living; Central Assisted Living, LLC;and
Adirondack Manor Home for Adults (collectively, the "Empire Adult Homes")(id

8-12); and

(c)the Empire Association, a "trade association" allegedly representing the interests of265 adult
care facilities (id. K 7). For the reasons set forth below,the plaintiffs in all ofthese categories
lack standing to sue.
a.

The Individual Plaintiffs Lack Standing

For the purpose of analyzing whether the eight individual plaintiffs have standing, the

court separately addresses three separate sub-groups ofthe eight individual plaintiffs.
i.

Plaintiffs Bennett, Osterhoudt-Burnett, Simone,

Stanton, Tory,and Wong Lack Standing

Plaintiffs Bennett, Osterhoudt-Bumett, Simone, Stanton, Tory, and Wong are individual

plaintiffs who were all living in transitional adult homes at the time that the FAP was filed.
16

(FAP

14-19.) Accordingly,these six individual plaintiffs do not allege that they were

excluded from a transitional adult home because ofthe Regulations. These plaintiffs thus lack
standing to sue, and this is for substantially the same reasons given for why the individual
Residents Plaintiffs lack standing.
ii.

Section II.B.l.a., supra.
Plaintiff Frost Lacks Standing

Plaintiff Frost does allege that he was excluded from a transitional adult home because of
the Regulations. (FAP

21-22.) Notwithstanding this. Frost nevertheless lacks standing to

sue.

Frost alleges that he applied to Dutchess Care in May 2013 and that he was denied
admission, allegedly due to his SMI status. (Id ^ 22.) In the same month, however. Frost was

admitted to another adult home in Dutchess County to which he applied—^Hedgewood Home for
Adults—^and,in May 2013, Frost moved into the Hedgewood Home, where he was still living as
of September 30, 2017. (Deck of Carol A. Rodat,December 13,2017("Rodat Deck")

(Dkt. 91)K 4(a).)^® Frost does not allege that he would prefer living in the Dutchess Care home
to living in the Hedgewood home,and there is no evidence supporting an inference that he
would. Thus,there is no basis for inferring that Frost was harmed by being excluded from a
transitional adult home. Thus, Frost does not have standing to sue.
iik

Plaintiff Vogelmann Lacks Standing

Like Frost, Plaintiff Vogelmann alleges that he was excluded from a transitional adult
home because ofthe Regulations. Notwithstanding this, Vogelmann still lacks standing to sue.

Vogelmann lacks standing to sue because his claims are moot.

Cntv. Of Suffolk.

N.Y. V. Sebelius. 605 F.3d 135,140(2d Cir. 2010)(stating that federal courtjurisdiction is

Contrary to the Empire Plaintiffs' contention, the court's view is that the declaration of Carol A. Rodat can
properly be considered.
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limited to disputes involving live cases or controversies and that, under the doctrine of mootness,
"courts' subject matter jurisdiction ceases when an event occurs during the course ofthe

proceedings or on appeal that makes it impossible for the court to grant any effectual relief
whatever to a prevailing party."(intemal quotation marks and citation omitted)). Even if

Vogelmann previously had standing due to being denied admission to Dutchess Care, his claim
is now moot,because Vogelmann was admitted to Dutchess Care after the FAP was filed.

(Rodat Decl.^ 4(b).) Vogelmann was admitted to Dutchess Care in 2015, and,though he moved
to a different adult care facility in August 2016, it has not been alleged that Vogelmann preferred
to stay at Dutchess Care. Qd) Thus, Vogelmann's claims are moot, because there is no

allegation or evidence that Vogelmann is currently being denied the opportunity to live where he
wants to live.

For the foregoing reasons, all eight ofthe individual plaintiffs among the Empire
Plaintiffs lack standing to sue.

b.

The Empire Adult Homes Lack Standing

The Empire Plaintiffs contend that, because ofthe Regulations,the Empire Adult Homes
have been or will be(1)forced to discharge much oftheir resident population, resulting in
closure ofthe homes;(2)fined for failing to implement compliance plans;(3)sued by adult
home residents for discrimination; and(4)identified by the "injxirious label" of"transitional
adult home." (FAP If 79,109-10,139-40,162,166.)

These allegations, however, do not give rise to standing. This is for substantially the
same reasons given for why the allegations in the Residents Plaintiffs' SAC do not give rise to

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standing for the individual Residents Plaintiffs,s^ Section II.B.l.a., supra, or for the adult
homes Residents Plaintiffs,s^ Section TLB.I.e., supra.

c.

The Empire Association Lacks Standing

The Empire Plaintiffs also contend that the Empire Association has standing. The

Empire Association lacks standing, however, and this is for substantially the same reasons given
for why the Residents Association and NYSHFA (both of which are among the Residents
Plaintiffs) lack standing.
d.

Sections II.B.l.b-c., supra.
Summary

For the foregoing reasons, all Empire Plaintiffs lack standing. Their claims are thus
dismissed wdthout prejudice.

Accordingly,the court concludes that all Residents Plaintiffs lack standing and all
Empire Plaintiffs lack standing, and so dismisses their claims without prejudice.
C.

Disposition

Concluding that all Residents Plaintiffs and all Empire Plaintiffs lack standing,the court

dismisses their claims without prejudice. In addition, however,the court remands the Residents
Plaintiffs' and Empire Plaintiffs' claims to state court. See, e.g.,28 U.S.C. § 1447(c)(stating
that if, after a case has been removed,the district court determines that it lacks subject matter

jurisdiction, the court must remand the matter to state court for further proceedings); Laiaunie v.
Samuels & Son Seafood Co.,614 F. App'x 33(2d Cir. 2015)(same). Thus,remand to state
court following dismissal is appropriate in this case.

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ra
.

CONCLUSION

For the foregoing reasons, Defendants' motion for dismissal ofthe Residents Plaintiffs'
second amended complaint(Dkt. 57)and Defendants' supplemental motion for dismissal ofthe

Empire Plaintiffs' first amended petition(Dkt. 90)are GRANTED. The Residents Plaintiffs'
second amended complaint(Dkt. 1-2) and the Empire Plaintiffs' first amended petition

(Dkt. 19-8) are DISMISSED WITHOUT PREJUDICE. The court REMANDS the Residents
Plaintiffs' and the Empire Plaintiffs' claims to state court.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn,New York

NICHOLAS G. GARAUrlS

March ^,2018

United States District Judge

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