Forziano et al v. Independent Group Home Living Program, Inc. et al
MEMORANDUM AND ORDER granting 78 Motion to Dismiss for Lack of Jurisdiction; granting 78 Motion to Dismiss for Failure to State a Claim; granting 80 Motion to Dismiss for Failure to State a Claim; granting 84 Motion to Dismiss for Failure to State a Claim. (Ordered by Judge Leonard D. Wexler on 3/26/2014.) c/Judgment Clerk. (Fagan, Linda)
IN Cl.!R~S OFFiel!
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
U S DISTRICT COURT E 0 N Y
FRANK FORZIANO and ROSEANN
FORZIANO as parents and Article 17A
co-guardians ofPAUL FORZIANO, NORMAN
SAMUELS and BONNIE SAMUELS as parents
and Article 17A co-guardians of HAVA
SAMUELS, PAUL FORZIANO and HAVA
MAR 26 Z014
LONG ISLAND OFFICE
MEMORANDUM AND ORDER
-againstINDEPENDENT GROUP HOME LIVING
PROGRAM, INC., MARYHAVEN CENTER
OF HOPE, INC., and COURTNEY BURKE,
sued herein in her official capacity as the
COMMISSIONER OF THE NEW YORK STATE
OFFICE OF PERSONS WITH DEVELOPMENTAL
DISABILITIES and STATE OF NEW YORK,
LAW OFFICE OF MARTIN J. COLEMAN, P.C.
BY: Martin J. Coleman, Esq.
Attorney for Plaintiffs
100 Crossways Park Dr. West, Suite 412
Woodbury, New York 11797
ROBERT BRIGLIO, ESQ.
BY: Robert Briglio, Esq.
Attorney for Plaintiffs
115 Jackson Avenue
Huntington, New York 11743
DEVITT SPELLMAN BARRETT LLP
BY: Jeltje DeJong, Esq.
Anne C. Leahy, Esq.
David H. Arntsen, Esq.
Attorneys for Defendant Independent Group Home Living Program, Inc.
50 Route 111
Smithtown, New York 11787
BARTLETT, McDONOUGH & MONAGHAN, LLP
BY: Anna I. Hock, Esq.
Robert Frank Elliott, Esq.
Attorneys for Defendant Maryhaven Center of Hope, Inc.
170 Old Country Road
Mineola, New York 11501
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL OF THE STATE OF NEW YORK
Susan M. Connolly, Esq., Assistant Attorney General
300 Motor Parkway, Suite 205
Hauppauge, New York 11788
WEXLER, District Judge:
Before the Court are the Defendants' motions to dismiss Plaintiffs' Amended Complaint,
pursuant to Rules 12(b)(1) and 12(b)(6) ofthe Federal Rules of Civil Procedure. Plaintiffs
oppose the motions. For the following reasons, Defendants' motions are granted and this action
is dismissed in its entirety.
This is a disability discrimination action in which Plaintiffs assert that Plaintiff Paul
Forziano ("Paul") and PlaintiffHava Samuels ("Hava"), both of whom have developmental
intellectual disabilities and were recently married, have been denied the opportunity to cohabit in
a supervised group home by Defendants. Plaintiffs allege that this denial amounts to a violation
of Paul and Hava's constitutional rights, as well as a failure by Defendants to provide Medicaid
funded residential habilitation services, which are mandated by the New York State Mental
Hygiene Law. (Am. Compl. ,-r 41.) Plaintiffs seek damages as well as declaratory and injunctive
Plaintiff Paul Forziano has been classified since childhood as being in the mild to
moderate range of intellectual functioning. (Am. Compl. ,-r 14.) As a result ofhis intellectual
disabilities, Paul is eligible for and receives residential and day habilitation services provided
through the federal Medicaid Waiver Program and funded by the New York State Office of
Persons with Developmental Disabilities ("OPWDD"). (Am. Compl. ,-r 15.) Up until July 1,
2013, Pual's residential habilitation services were provided by Defendant Independent Group
Home Living Program, Inc. ("IGHL"). (Am. Compl. ,-r 15.) Paul's day habilitation services are
provided by Defendant Maryhaven Center ofHope, Inc. ("Maryhaven"). (Am. Compl. ,-r 15.)
Plaintiff Hava Samuels has been classified since childhood as being in the moderate range
of intellectual functioning. (Am. Compl. ,-r 20.) As a result of her intellectual disabilities, Hava
is eligible for and receives residential and day habilitation services through the federal Medicaid
Waiver Program and funded by the OPWDD. (Am. Compl. ,-r,-r 21, 24.) Up until July 1, 2013,
Hava's residential habilitation services were provided by Defendant Maryhaven. (Am. Compl. ,-r
21.) Hava's day habilitation services continue to be provided by Maryhaven. (Am. Compl. ,-r
On April 7, 2013, Paul and Hava were married, after a courtship of seven years and an
engagement of two years. (Am. Compl. ,-r 2.) Beginning in 2010, after Paul and Hava announced
their desire to marry, their parents- Plaintiffs Frank and Roseann Forziano (the "Forzianos") and
Norman and Bonnie Samuels (the "Samuels") - began looking into ways for Paul and Hava to
live together in one of their respective group homes. (Am. Compl. ~~ 84-94.)
On August 24, 2010, a meeting was held to discuss accommodating Paul and Hava's
desire to marry and live together. (Am. Compl. ~ 95.) During this meeting, representatives from
both IGHL and Maryhaven (collectively, the "Group Home Defendants") explicitly announced
their opposition to housing Paul and Hava together in either group home, describing such an
arrangement as "unprecedented," "impossible," and "fraught with difficulties." (Am. Compl.
96-97.) A representative of the OPWDD who also attended the meeting, Robert Lopez
("Lopez"), stated that he was not aware of any OPWDD funded persons who were married and
resided together in a supervised group home. (Am. Compl. ~ 99.) Lopez then went on to discuss
Paul and Hava's capacity to consent to sexual activity and recommended that sexual consent
evaluations be performed for both Paul and Hava. (Am. Compl.
100-01.) Lopez also
recommended that Paul and Hava receive sex education related to their capacity to consent to
sexual contact. (Am. Compl ~ 101.) Finally, Lopez stated that a determination of whether Paul
and Hava possessed the ability to marry and cohabit should be addressed by IGHL and
Maryhaven through Paul and Hava's Individualized Service Plans ("ISPs"). (Am. Compl. ~
Neither IGHL or Maryhaven included sex education, relationship counseling or sexual
consent evaluation as a residential or day habilitation goal, service or treatment in either Paul or
Hava's ISP. (Am. Compl.
105.) Although Dr. Barbara Carey-Shaw, IGHL's Clinical Director,
offered to perform a sexuality consent evaluation of Paul, she never provided Paul with sex
education or any assistance in obtaining such education. (Am. Compl. ~ 107, 110.) Nor did
Maryhaven provide any sex education to Hava. (Am. Compl. ~ 131.) In addition, both the
Forzianos and the Samuels were repeatedly advised by IGHL and Maryhaven that they do not
provide sex education or relationship counseling as part of their residential habilitation services.
111, 133, 135.)
Dr. Carey-Shaw conducted Paul's sexual consent evaluation on May 24, 2011, almost
nine months after the August 2010 meeting. (Am. Compl.
112.) Dr. Carey-Shaw's evaluation
found that Paul was not capable of consenting to sexual activity. (Am. Compl. ~ 114.) Although
Maryhaven had performed prior sexual consent evaluations for Hava in 2000 and 2008, the
validity of the results were disputed. (Am. Compl.
101, 130.) Maryhaven did not offer to
perform an updated sexual consent evaluation for Hava following the August 2010 meeting.
136.) Plaintiffs assert that as a result of the sexual consent evaluation roadblock
put in place by Lopez and Defendants, Paul and Hava were "stymied in their efforts to live
together as a married couple" after the August 24, 2010 meeting. (Am. Compl.
Thereafter, the Forzianos and the Samuels reached out to Lopez in an effort to obtain
assistance from the OPWDD with providing Paul and Hava with sex education. (Am. Compl.
145-47.) Although Lopez offered to set up a meeting with IGHL and Maryhaven, he did not
provide OPWDD assistance in obtaining sex education or sexual consent evaluations for Paul
and Hava. (Am. Compl.
150.) Nor did Lopez offer assistance in obtaining housing with a
different supervised group home that would agree to accommodate Paul and Hava as a married
couple. (Am. Compl.
Following their telephone conversation with Lopez, the Forzianos and the Samuels
contacted legal counsel to consult about Paul and Hava's right to marry and cohabit. (Am.
Compl. ~ 153.) After some research, Plaintiffs' counsel discovered the Young Adult Institute
("YAI") Sexuality Consent Assessment, 1 which was available to Paul and Hava even though they
were not residents of a Y AI group home. (Am. Compl. ~ 153.) The Forzianos and the Samuels
became members of the YAI network, applied for YAI's sexuality consent assessment and
obtained specialized educational materials published by YAI that helped prepare Paul and Hava
for the evaluation. (Am. Compl.
YAI Sexuality Consent Assessments were conducted of Paul and Hava on June 14, 2012
and June 21, 2012, respectively. (Am. Compl. ~ 160.) Both Paul and Hava were found to be
able to give verbal informed sexual consent. (Am. Compl.
Plaintiffs met with Lopez again regarding Paul and Hava' s desire to marry and cohabit on
July 30, 2012. (Am. Compl.
163.) During this meeting, Plaintiffs provided Lopez with the
results of Paul and Hava's YAI Sexuality Consent Assessments. (Am. Compl. ~ 164.) Plaintiffs
asked Lopez if there was anything he could do to force IGHL or Maryhaven to accept Paul and
Hava as a married couple in their group homes. (Am. Compl. ~ 166.) Lopez advised Plaintiffs
that he had no power to force the Group Home Defendants to permit Paul and Hava to reside
together in their homes. (Am. Compl.
166.) Lopez further advised Plaintiffs that the Group
Home Defendants could legally refuse to permit Paul and Hava to cohabit in either home. (Am.
167.) Lopez recommended that Plaintiffs either find another group home that would
accommodate Paul and Hava' s desire to cohabit or consider taking Paul and Hava back into their
family homes. (Am. Compl.
168, 171.) Lopez also attempted to dissuade Plaintiffs from
The YAI Sexuality Consent Assessment has been approved as a sexuality consent
evaluation tool by the OPWDD and is widely used in New York by entities providing residential
habilitation services to developmentally disabled adults. (Am. Compl. ~ 154.)
taking legal action against IGHL and Maryhaven. (Am. Compl.
On September 10, 2012, the Forzianos and the Samuels sent letters to both IGHL and
Maryhaven, requesting that the they reconsider their opposition to permitting Paul and Hava to
cohabit as a married couple in their homes. (Am. Compl. ~ 176.) The Forzianos and the
Samuels included the results of Paul's and Hava's YAI Sexuality Assessments with their letters.
By letter dated September 24, 2012, IGHL responded that it had "significant concerns"
regarding the YAI Sexuality Assessments, as well as with the "practicality of a married couple
living in a group home with other non-married peers." (Am. Compl.
177.) IGHL further
responded that its group homes "are not staffed or designed to house and supervise married
couples or assist married couples with the dynamics of their relationships." (Am. Compl. ~ 178.)
By letter dated October 1, 2012, Maryhaven responded that it was rejecting theYAI Sexuality
Assessment results for Hava and would continue to rely on the previous assessments performed
in 2000 and 2008. (Am. Compl. ~ 181.)
By letter dated October 24, 2012, counsel for Plaintiffs sent demand letters to Lopez at
the OPWDD, IGHL and Maryhaven, requesting a reasonable accommodation for Paul and Hava
to marry and live together in either IGHL or Maryhaven or in an alternate group home within
reasonable geographic proximity to their families. (Am. Compl.
184.) Counsel for IGHL
responded by letter dated December 10, 2012, reiterating that IGHL was not set up to
accommodate a married couple. (Am. Compl.
185.) Neither the OPWDD nor Maryhaven
responded to Plaintiffs' demand letters. (Am. Compl.
Plaintiffs commenced the within action on January 22, 2013. Shortly thereafter, Plaintiffs
moved for a preliminary injunction, requesting that the Court order Defendants to allow Paul and
Hava to reside together upon their marriage that was scheduled to take place on April 7, 2013.
However, on July 1, 2013, Paul and Hava moved out of their respective group homes into a
supervised group home that would allow them to cohabit, operated by East End Disability
Associates ("East End"), a Suffolk County OPWDD funded program. (Am. Compl.
Accordingly, by letter dated July 2, 2013, counsel for Plaintiffs advised the Court that Plaintiffs
were withdrawing their request for preliminary injunctive relief since East End is now providing
the services requested in the motion.
Plaintiffs amended their Complaint on July 17, 2013, alleging violations of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. §
701 et seq., the Fair Housing Act, 42 U.S.C. § 3601 et seq., 42 U.S.C. § 1983 ("Section 1983"),
the New York State Executive Law (the "Human Rights Law") and the New York Mental
Hygiene Law. Plaintiffs seek money damages, as well as declaratory relief and a permanent
injunction. Defendants now move to dismiss Plaintiffs' Amended Complaint in its entirety.
Federal Rule of Civil Procedure 12(b)(1)
A district court should dismiss a case for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) where the court "lacks the statutory or constitutional
power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also
Fed. R. Civ. P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction, the Court
"must accept as true all material factual allegations in the complaint, but [it is] not to draw
inferences from the complaint favorable to Plaintiffl]." Wood v. GMC, No. CV 08-5224, 2010
U.S. Dist. LEXIS 96157, at *9 (E.D.N.Y. Aug. 23, 2010) (quoting J.S. ex rel. N.S. v. Attica
Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004)) (additional citation omitted) (alteration in
original). The Court may also "consider evidence outside the pleadings, such as affidavits" when
determining whether it has jurisdiction. Stoothoffv. Apfel, No. 98 Civ. 5724, 1999 U.S. Dist.
LEXlS 10459, at *1 n.1 (S.D.N.Y. July 7, 1999) (citing cases). "The plaintiffbears the burden of
proving subject matter jurisdiction by a preponderance of the evidence." Wood, 2010 U.S. Dist.
LEXIS 96157, at *9 (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638
(2d Cir. 2005)).
Federal Rule of Civil Procedure 12Cb)(6)
"To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face."' Ashcroft v. Iqbal,_ U.S._, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "Facial plausibility" is achieved when the "the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556).
As a general rule, the court is required to accept as true all of the allegations contained in the
complaint. See Iqbal, 129 S. Ct. at 1949; Kassnerv. 2nd Ave. Delicatessen, Inc., 496 F.3d 229,
237 (2d Cir. 2007).
However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements ... are not entitled to the assumption oftruth." Iqbal, 129 S. Ct. at 1949-9-
50 (citation omitted); see also Twombly, 555 U.S. at 555 (stating that the Court is "not bound to
accept as true a legal conclusion couched as a factual allegation"). "While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations," which
state a claim for relief. lqbal,129 S. Ct. at 1950. A complaint that "tenders 'naked assertion[s]'
devoid of 'further factual enhancement"' will not suffice. Iqbal, 129 S. Ct. at 1949 (quoting
Twombly, 555 U.S. at 557). Rather, only a complaint that "states a plausible claim for relief'
will survive a motion to dismiss. Iqbal, 129 S. Ct. at 1950.
Plaintiffs' Request for Injunctive Relief
Plaintiffs' Amended Complaint seeks a permanent injunction, enjoining Defendants from
refusing to allow Paul and Hava to reside together as a married couple in any supervised group
home operated by IGHL, Maryhaven or by any other OPWDD certified supervised group home. 2
According to Plaintiffs, while Paul and Hava are currently receiving all of the services requested
through East End Disability Associates, East End does not currently have the capacity to permit
Paul and Have to "age in place." (Am. Compl. ~ 206.) Specifically, Paul and Hava currently
reside in an upstairs apartment at East End. (Am. Compl. ~ 206.) If either develops any
impairments over time that restrict their ability to climb stairs, they may be forced to move out of
All Defendants raise arguments with respect to mootness, asserting that Plaintiffs'
claims are moot because East End is already providing Paul and Hava with all of the services
requested. As Plaintiffs' Amended Complaint notes, due to their placement at East End, there is
no longer "any immediate need for a placement for residential habilitation by Paul and Hava" and
that "[m]arital and counseling services are provided by East End Disability Associates." (Am.
Compl. ~ 203.) However, there is no request for in the Amended Complaint for immediate
injunctive relief. Rather, the Amended Complaint seeks compensatory damages for alleged past
discrimination and future injunctive relief. As such, the Court finds that Plaintiffs' claims are not
East End in order to stay together. (Am. Compl. ~ 206.) Thus, Plaintiffs seek a permanent
injunction that would require IGHL, Maryhaven and any other OPWDD certified group home to
provide them with a place to reside together as a married couple at any point in the future.
Plaintiffs' request for future injunctive relief fails as it is not ripe for review. Nor do
Plaintiffs have standing to seek such relief as there is no real case or controversy before the Court
with respect to this issue.
Constitutional standing requires a plaintiff to present a justiciable case or controversy.
See U.S. Const., art. III,§ 2, cl.l; see also Lewis v. Continental Bank Corp., 494 U.S. 472, 477
(1990). To demonstrate standing, a plaintiff must allege that he has personally suffered: (1) an
injury-in-fact; (2) that is fairly traceable to defendants' alleged misconduct; and (3) is likely to be
redressed by a favorable decision. See Allen v. Wright, 468 U.S. 735, 751 (1984). To satisfy
Article III, the injury alleged by plaintiff must be "actual or imminent, not 'conjectural' or
'hypothetical."' Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-61 (1992) (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Similarly, "[r]ipeness is a doctrine rooted in both Article III's case or controversy
requirement and prudential limitations on the exercise of judicial authority," Murphy v. New
Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005), that is designed to "prevent the
courts, through avoidance of premature adjudication, from entangling themselves in abstract
disagreements." Id. (quoting Abbott Labs v. Gardner, 387 U.S. 136, 148 (1967)). "Determining
whether a case [or, as here, an issue] is ripe generally requires [the court] to 'evaluate both the
fitness of the issues for judicial decision and the hardship to the parties of withholding court
consideration."' Murphy, 402 F.3d at 347 (quoting Abbott Labs., 387 U.S. at 149).
Here, Plaintiffs request that the Court issue a permanent injunction to prevent alleged
harm that Paul and Hava may or may not suffer in the future. This request is based on nothing
more than speculation and conjecture that the services currently being provided by East End may
at some point become unavailable to Paul and Hava as a result of any number of circumstances
that may or may not occur. Such allegations are insufficient to confer standing on the Court.
Moreover, with respect to ripeness, for the same reasons that Plaintiffs lack standing to assert this
claim, the issue of the availability of future services for Paul and Hava is not currently fit for
review. Nor will Paul and Hava suffer any hardship by the Court's decision to decline
consideration since they are currently receiving all of the services requested.
Accordingly, Plaintiffs' claims for injunctive relief are dismissed. Since Plaintiffs'
second cause of action, brought pursuant to Title III of the ADA seeks only injunctive relief, that
claim is dismissed in its entirety.
Eleventh Amendment Immunity
"[A]s a general rule, state governments may not be sued in federal court unless they have
waived their Eleventh Amendment immunity," Gorton v. Gettel, 554 F.3d 60, 62 (2d Cir. 1009)
(quoting Woods v. Rondout Valley Cent. Sch. Dist. Bd. ofEduc., 466 F.3d 232, 236 (2d Cir.
2006)) (additional citation omitted), or there has been "an abrogation of constitutional immunity
by Congress." Smith v. N.Y. State Dep't ofTaxation and Fin., No. 01 CV 1776, 2002 U.S. Dist.
LEXIS 10375, at *8 (E.D.N.Y. May 17, 2002) (citing Welch v. Texas Dep't of Highways and
Public Transport., 483 U.S. 468,472 (1987)). "This bar exists where the relief sought is legal or
equitable." Dube v. State Univ. ofNew York, 900 F.2d 587, 594 (2d Cir. 1990) (quoting
Papasan v. Allain, 478 U.S. 265,276 (1986)).
The Eleventh Amendment also bars claims for money damages against state officials
acting in their official capacities. 3 See Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); see
also Qader v. Cohen & Slamowitz, No. 10 cv 1664,2011 U.S. Dist. LEXIS 2388, at *8
(S.D.N.Y. Jan. 10, 2011) ("A state agency with state officials acting in their official capacities is
similarly entitled to immunity."). Both the State ofNew York and Defendant Courtney Burke,
who is sued herein in her official capacity as the Commissioner ofthe New York State OPWDD
(collectively, the "State Defendants"), assert that they are entitled to Eleventh Amendment
Plaintiffs and the State Defendants appear to agree that Eleventh Amendment immunity
bars Plaintiffs' claims brought against the State Defendants pursuant to the FHA. See
Sierotowicz v. State ofNew York Div. ofHousing & Community Renewal, Nos. 04-CV-3886,
04-CV-3887, 04-CV-3888, 2005 U.S. Dist. LEXIS 43028, at *5 (E.D.N.Y. June 14, 2005)
(noting that the FHA does not abrogate sovereign immunity) (citing cases); Welch v. Century 21
Chimes Real Estate Inc., No. CV-90-3410, 1991 U.S. Dist. LEXIS 2411, at *3-4 (dismissing
plaintiffs' FHA claims against the New York Department of State Licensing Division on the
grounds of Eleventh Amendment immunity). Those claims are accordingly dismissed.
With respect to Plaintiffs' Section 1983 claims, "[i]t has long been held that Section 1983
does not allow a State to be called into Federal Court to answer in damages for the alleged
deprivation of a federal right." A.A. v. Bd. ofEduc., Central Islip Union Free Sch. Dist., 196 F.
Since all of Plaintiffs' claims for injunctive reliefhave already been dismissed, as
discussed supra, the remainder of this Memorandum and Order pertains solely to Plaintiffs'
claims for money damages.
Supp. 2d 259, 266 (E.D.N.Y. 2002); see also Quem v. Jordan, 440 U.S. 332, 345 (1979) (holding
that Congress did not abrogate state sovereign immunity in enacting 42 U.S.C. § 1983). "Absent
a valid waiver, such lawsuits are barred by the Eleventh Amendment." A.A., 196 F. Supp. 2d at
266 (citing cases). Accordingly, Plaintiffs' Section 1983 claims against the State Defendants are
hereby dismissed. 4
Relying on Garcia v. State University ofNew York Health Sciences Center, 280 F.3d 98
(2d Cir. 2001), the Plaintiffs and the State Defendants appear to agree that Eleventh Amendment
immunity also bars Plaintiffs' claims brought pursuant to Section 504 of the Rehabilitation Act.
Plaintiffs and the State Defendants are incorrect.
In Garcia, the Second Circuit held that when Congress enacts a statute pursuant to the
Spending Clause of the United States Constitution, such as the Rehabilitation Act, it may
condition a state's acceptance of funds upon a waiver of sovereign immunity. See id. at 113.
However, such a waiver will only be found if it is knowing and intentional. See id. at 114.
Garcia went on to hold that New York State's acceptance of Section 504 funds was not a
knowing waiver of its sovereign immunity because, at the time the funds were accepted, New
York was under the reasonable belief that it had no immunity under the essentially similar
provisions ofthe ADA. See id. at 114-15. Accordingly, when New York accepted Section 504
funds, it could not have believed it was waiving any rights. See id. However, while the Circuit
found that New York mistakenly believed its immunity was lost during the time period in
The Court notes that even if Eleventh Amendment immunity did not bar Plaintiffs'
Section 1983 claims against the State Defendants, those claims would still be subject to dismissal
since "[n]either a State nor its officials acting in their official capacities are 'persons' under§
1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). Accordingly, Plaintiffs'
Section 1983 claims against the State Defendants also fail on the merits.
question in that case, it "acknowledged New York's acceptance of federal funds at a later date
'might properly reveal a knowing relinquishment of sovereign immunity."' Degrafinreid v.
Ricks, 417 F. Supp. 2d 403,414 (S.D.N.Y. 2006) (citing Garcia, 280 F.3d at 113 n.4).
"Since Garcia, state agencies in New York ... have continued to accept federal funds
and, therefore, waived immunity from suit under Section 504 of the Rehabilitation Act." Doe v.
Goord, No., 2004 U.S. Dist. LEXIS 24808, at *58 (S.D.N.Y. Dec. 10, 2004) (citing cases).
While the district court decisions in this Circuit "disagree as to whether New York effectively
waived its sovereign immunity only be accepting federal funds after Garcia was decided, on
September 25, 2011, or whether the waiver occurred as early as February 25, 2001, when the
Supreme Court handed down its decision in Board of Trustees of the University of Alabama v.
Garrett, 531 U.S. 356 (2001 ),"finding that the Eleventh Amendment bars suits brought pursuant
to Title I of the ADA, such a finding is irrelevant in this action. Id. at *58-59. The actions
complained ofby Plaintiffs took place beginning in approximately 2010, at which time New
York was clearly subject to suit under Section 504 ofthe Rehabilitation Act. Accordingly, the
State Defendants are not entitled to invoke the protection of the Eleventh Amendment with
respect to Plaintiffs' Rehabilitation Act claims.
The Remaining ADA. Rehabilitation Act and FHA Claims
Title II of the ADA provides, in pertinent part, that "no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs or activities of a public entity, or be subjected to discrimination
by any such entity." 42 U.S.C. § 12132. Similarly, under Section 504 of the Rehabilitation Act,
"no otherwise qualified individual with a disability ... shall, solely by reason of his or her
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(a). "The purpose of both statutes is to 'eliminate discrimination on the basis of disability
and to ensure evenhanded treatment between the disabled and the able-bodied.'" Maccharulo v.
New York State Dep't of Correctional Servs., No. 08 Civ. 301,2010 U.S. Dist. LEXIS 73312, at
*7 (S.D.N.Y. July 21, 2010) (quoting Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)).
Similarly, the FHA makes it unlawful "to discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap."
42 U.S.C. § 3604(f)(1). Due to the "similarities" between the FHA, the ADA and the
Rehabilitation Act, courts typically "interpret them in tandem." Tsombanidis v. West Haven Fire
Dep't, 352 F.3d 565, 573 n.4 (2d Cir. 2003) (citing Reg'l Econ. Cmty. Action Program v. City of
Middletown, 294 F.3d 35, 45-46 (2d Cir. 2002)).
To state a claim under all three statutes, a plaintiff must allege that he or she: (1) is a
"qualified individual" with a disability; (2) was "excluded from participation in a public entity's
services, programs or activities or was otherwise discriminated against by a public entity;" and
(3) that such exclusion or discrimination was due to his or her disability. Hargrave v. State of
Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003) (quoting 42 U.S.C. § 12132). In addition, for
purposes of the Rehabilitation Act, a plaintiff must demonstrate that the public entity receives
federal funding. See Maccharulo, 2010 U.S. Dist. LEXIS 73312, at *8 (citation omitted). Here,
there is no dispute that Paul and Hava fall under the protection of the ADA, the Rehabilitation
Act and the FHA. Nor is there any dispute that Defendants are subject to the provisions of those
However, while Plaintiffs argue in their Memoranda of Law that Defendants
discriminated against them due to their disabilities, the claims alleged in the Amended Complaint
all arise out of Defendants' purported refusal to accommodate Paul and Hava's desire to cohabit
as a married couple in either IGHL or Maryhaven. Such alleged discrimination is based not on
Paul and Hava's disabilities, but rather on their status as a married couple. Plaintiffs' Amended
Complaint therefore fails to state a claim for disability discrimination under the ADA, the FHA
or the Rehabilitation Act because Plaintiffs have failed to demonstrate that Defendants
discriminated against them due to Paul and Hava's disabilities. 5
Moreover, to establish discrimination under the ADA, the FHA or the Rehabilitation Act,
Plaintiffs have three available theories: (1) disparate treatment, or intentional discrimination; (2)
disparate impact; and (3) failure to provide a reasonable accommodation. See Tsombanidis, 352
F.3d at 573 (citing City of Middletown, 294 F.3d at 48). The Court notes that while Plaintiffs
attempt to argue otherwise in their Memoranda of Law, Plaintiffs' claims "do not draw their
substance from any allegedly discriminatory animus against the disabled, either under a disparate
treatment or a disparate impact theory." Pfrommer, 148 F.3d at 82. Indeed, "[s]uch an argument
With respect to Plaintiffs' FHA claim, the Amended Complaint also fails due to the fact
that Plaintiffs are neither buyers nor renters within the meaning of the FHA. The Court notes
that while Maryhaven raises this point in its moving papers, glaringly absent from Plaintiffs'
opposition is any argument in response. As noted above, the FHA prohibits discrimination
against any disabled "buyer or renter." 42 U.S.C. § 3604(f). Accordingly, the FHA requires that
a disabled person "be either a renter or a buyer in order to bring a Fair Housing Act claim."
Jenkins v. New York City Dep't ofHomeless Servs., 634 F. Supp. 2d 507, 520 (S.D.N.Y. 2009)
(dismissing plaintiffs FHA claim regarding placement in a homeless shelter). Since Paul and
Hava are not renters or buyers in their respective group homes, but rather receive supervised
housing as part of their Medicaid services, they cannot state a claim for relief under the FHA.
would be beyond tenuous given [Defendants'] sole purpose in assisting the disabled." Id.
Rather, the crux of Plaintiffs' Amended Complaint is that Defendants failed to provide Paul and
Hava with the requested "reasonable accommodation" of allowing them to cohabit in one of their
two group homes upon their marriage. In essence, Plaintiffs are "challenging the adequacy of
[Defendants'] services, not illegal disability discrimination." Id.
The ADA, the FHA and the Rehabilitation Act all require public entities to make
reasonable accommodations for disabled individuals to ensure that they have meaningful access
to public benefits. See Powell v. National Bd. of Medical Examiners, 364 F.3d 79, 85 (2d Cir.
2004) (discussing the Rehabilitation Act's reasonable accommodation requirement); Henrietta D.
v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003) (discussing same under the ADA); Shapiro v.
Cadman Towers, Inc., 51 F .3d 328, 333 (2d Cir. 1995) (discussing same under the FHA). "The
purpose of these requirements is to ensure that services provided to non-disabled individuals are
not denied to disabled individuals because oftheir disability." Maccharulo, 2010 U.S. Dist.
LEXIS 73312, at *9 (citing Pfrommer, 148 F.3d at 83). Accordingly, where the plaintiff fails to
allege that disabled individuals are being treated differently from non-disabled individuals, he or
she has not stated a claim under the disability statutes. See Maccharulo, 2010 U.S. Dist. LEXIS
73312, at *9 (citing Pfrommer, 148 F.3d at 83); see also Atkins v. County of Orange, 251 F.
Supp. 2d 1225, 1232 (S.D.N.Y. 2003) ("With no allegation of disparate treatment, no claim for
discrimination under the ADA or Rehabilitation Act lies.").
The Second Circuit, as well as district courts within the Circuit, have repeatedly held that
"a claim that challenges the adequacy ... or the substance ... of services that are being provided
to a disabled individual is not a valid claim under either the ADA or the Rehabilitation Act."
Maccharulo, 2010 U.S. Dist. LEXIS 73312, at *10 (citing cases). Rather, "the central purpose of
the ADA and§ 504 of the Rehabilitation Act is to assure that disabled individuals receive
'evenhanded treatment' in relation to the able-bodied." Pfrommer, 148 F.3d at 83. "Neither the
ADA nor the Rehabilitation Act establish an obligation to meet a disabled person's particular
needs vis-a-vis the needs of other [disabled] individuals, but mandate only that the services
provided by [covered entities] to non-[ disabled] individuals not be denied to a disabled person
because he is [disabled]." Id. (citing Flight v. Gloeckler, 68 F.3d 61,63-64 (2d Cir. 1995))
(additional citation omitted).
Here, Plaintiffs seek to have Defendants provide them with particularized services based
on their status as a married couple. Accordingly, what Plaintiffs ultimately seek to challenge "is
not illegal discrimination against the disabled, but the substance of the services provided to
[them] through [Defendants]." Pfrommer, 148 F.3d at 84. Such a cause of action does not lie
under the ADA, the FHA or the Rehabilitation Act. See Wright v. Guiliani, 230 F.3d 543, 548
(2d Cir. 2000) ("[T]he disabilities statutes do not require that substantively different services be
provided to the disabled, no matter how great their need for the services may be. They require
only that covered entities make 'reasonable accommodations' to enable 'meaningful access' to
such services as may be provided, whether such services are adequate or not.").
For the foregoing reasons, Plaintiffs' Amended Complaint fails to state a claim under
Title II of the ADA, the Rehabilitation Act and the FHA and those claims are accordingly
The Section 1983 Claims Against the Group Home Defendants
Plaintiffs' Amended Complaint contains two causes of action pursuant to 42 U.S.C. §
1983 - the first, for violation of the federal Medicaid Statute and the second, for violation of the
Fourteenth Amendment to the United States Constitution. As the Court has already found that
the State Defendants are entitled to Eleventh Amendment immunity with respect to Plaintiffs'
Section 1983 claims, the following analysis only applies to Defendants IGHL and Maryhaven.
In order to state a claim under Section 1983, a plaintiff must demonstrate that the
defendant was either a state actor, or a private individual or entity who acted "under color of state
law." Ciambriello v. County ofNassau, 292 F.3d 307, 323 (2d Cir. 2002); Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993). This is referred to as the "state action" requirement. Ciambriello,
292 F.3d at 323. While it is clear that private entities, such as IGHL and Maryhaven, are not
state actors, such entities can be liable for civil rights violations under Section 1983 ifthey have
conspired, or engaged in joint activity, with state actors. See Briscoe v. LaHue, 460 U.S. 325,
330 n.7; Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999).
Plaintiffs here do not allege that either IGHL or Maryhaven is a state entity. Rather, they
argue that state action exists here under either the "joint action" test, the "public function" test or
the "state compulsion" test. See Sybalski v. Independent Group Home Living Program, Inc., 546
F.3d 255, 257 (2d Cir. 2008) (articulating three tests formulated by the Supreme Court for
determining the existence of state action). "It is not enough, however, for a plaintiff to plead
state involvement in 'some activity of the institution alleged to have inflicted injury upon the
plaintiff'; rather, the plaintiff must allege that the state was involved 'with the activity that
caused the injury' giving rise to the action." Id. at 257-58 (quoting United States v. Int'l Bd. of
Teamsters, 941 F.2d 1292, 1296 (2d Cir. 1991)) (emphasis in original).
Under the joint action test, the actions of a private entity will be considered attributable to
the state where "the state provides 'significant encouragement' to the entity, the entity is a
'willful participant in joint activity with the [s]tate,' or the entity's functions are 'entwined' with
state policies." Sybalski, 546 F.3d at 257 (quoting Brentwood Acad. v. Tenn. Secondary Sch.
Ath. Ass'n, 531 U.S. 288, 296 (2000)). According to Plaintiffs, the allegations in the Amended
Complaint demonstrate that the State showed significant encouragement and support of the
Group Home Defendants' decisions not to allow Paul and Hava to reside together once they were
married. However, a plain reading of the Amended Complaint demonstrates that while Robert
Lopez of the OPWDD attempted to assist Plaintiffs with facilitating Paul and Hava's desire to
marry and cohabit, IGHL and Maryhaven would not accommodate such a request. (Am. Compl.
84, 100-01, 104, 148-49, 165-66.) Rather, the Amended Complaint alleges that the State and
the Group Home Defendants were actually at odds over how to handle Plaintiffs' request that
Paul and Hava be permitted to cohabit. While Plaintiffs now attempt to paint Lopez as
facilitating IGHL and Maryhaven's decisions not to allow Paul and Hava to reside together, the
Amended Complaint tells quite a different story. Although it is clear that the State was
"involved" in the Group Home Defendants' decision to deny Paul and Hava's request to cohabit,
that involvement "is insufficient to render that decision 'state action' under the joint action test."
Sybalski, 546 F.3d at 259.
To satisfy the state action requirement under the "public function" test, the private entity
must "perform a function that is 'traditionally the exclusive prerogative of the state."' Archer v.
Economic Opportunity Comm'n, 30 F. Supp. 2d 600, 606 (E.D.N.Y. 1998) (quoting Rendell-21-
Baker v. Kohn, 457 U.S. 830, 842 (1982)). Although not clearly asserted, Plaintiffs appear to
argue in their Memorandum of Law that the public function test applies because "the state's
statutory and regulatory control over the issues of marriage as a civil right, and habilitation
services provided to married couples, is so complete as to leave no legitimate discretion with the
defendants to act independently of the federal and state laws at issue in this case." (Pl. Mem. of
Law 15.) However, the Second Circuit has explicitly rejected such an argument in a similar case
involving Defendant IGHL, in which plaintiffs' Section 1983 claims were dismissed for failure
to demonstrate state action. See Sybalski, 546 F.3d at 260. Since the Second Circuit held in
Sybalski v. Independent Group Home Living Program. Inc., 546 F.3d 255 (2d Cir. 2008), that it
could not "conclude that care of the ... mentally disabled, was a function 'traditionally' and
'exclusively' reserved by the state," id. at 260, Plaintiffs fail to plead circumstances here
sufficient to satisfy the public function test.
Finally, under the "state compulsion" test, a finding of state action requires that the
private entity "acts pursuant to the 'coercive power' of the state or is 'controlled' by the state."
Id. at 58 (quoting Brentwood Acad., 531 U.S. at 296). The Court finds that Plaintiffs have failed
to satisfy this test because there is no indication from the Amended Complaint that there existed
any coercion or encouragement by the state in the complained of conduct. To the contrary,
although ultimately unsuccessful, Lopez of the OPWDD attempted to assist Plaintiffs in reaching
a resolution of some type with the Group Home Defendants. Moreover, the Amended Complaint
makes clear that Lopez specifically told Plaintiffs that "he had no power to force IGHL or
Maryhaven to permit Paul and Hava to live together in their homes." (Am. Compl. ,-r 166.)
While Plaintiffs argue that "federal and state laws at issue in this case compel [IGHL and
Maryhaven] to assist residents with marriage goals," therefore making them "subject to the
Medicaid comparability statute to the same degree as the state would be if it provided services
directly," (Pl. Mem. of Law 16-17), the "compulsion" alleged by Plaintiffs does not satisfy the
state compulsion test. As stated above, state involvement in "some activity" of the private entity
alleged to have injured plaintiff is not enough to demonstrate state action. Sybaslki, 546 F.3d at
257. "[R]ather, the plaintiff must allege that the state was involved 'with the activity that caused
the injury' giving rise to the action." Id. at 258 (quoting Schlein, 561 F.2d at 428). This,
Plaintiffs have failed to do.
Accordingly, since Plaintiffs have failed to demonstrate state action on the part of either
IGHL or Maryhaven, they have failed to state a viable claim under Section 1983 and those claims
are accordingly dismissed.
Plaintiffs' State Law Claims
Having found that Plaintiffs' federal claims fail as a matter oflaw, there is no longer any
independent basis for federal jurisdiction in the within action. Although the Court has the
discretion to exercise supplemental jurisdiction over plaintiff's remaining state law claims, see
28 U.S.C. § 1367(a), it declines to do so. See 28 U.S.C. § 1367(c)(3) ("The district courts may
decline to exercise supplemental jurisdiction over a claim ... if ... the district court has
dismissed all claims over which it has original jurisdiction .... "); Marcus v. AT&T Corp., 138
F .3d 46, 57 (2d Cir. 1998) ("In general, where the federal claims are dismissed before trial, the
state claims should be dismissed as well.").
Accordingly, Plaintiffs' state law claims are dismissed without prejudice. 6
For the foregoing reasons, Defendants' motions to dismiss are granted and the Plaintiffs'
Amended Complaint is dismissed in its entirety. The Clerk of the Court is directed to terminate
docket entry numbers 78, 80 and 84 and to mark this case closed.
Dated: March Jdi, 2014
Central Islip, New York
s/ Leonard D. Wexler
GL'f;ONA~ D. ~EXLER
United States District Judge
Since [New York's CPLR § 205] allow[ s] a plaintiff to recommence a dismissed suit
within six months without regard to the statute of limitations,' plaintiffs will not be prejudiced by
the dismissal of their [state law] claims." Tishman v. The Associated Press, No. 05 Civ. 4278,
2007 U.S. Dist. LEXIS 85588, at *29 (S.D.N.Y. Nov. 19, 2007) (quoting Trinidad v. N.Y City
Dep't ofCorr., 423 F. Supp. 2d 151, 169 (S.D.N.Y. 2006)) (alterations in original) (additional
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