Scott E. Mollen
Scott E. Mollen ()

Landlord-Tenant—NYC Rent Freeze Program—Motion for Class Certification and Intervention Granted in Class Action Commenced on Behalf of Disabled Residents—NYC Department of Finance Allegedly Violated Americans With Disabilities Act and Constitutional Right to Due Process—Agency Acknowledged Problems and Amended Rules and Policies—Court Urged Parties to Reach a Sensible Compromise

The plaintiffs commenced a putative class action on behalf of “disabled New York City residents, who are enrolled in or eligible for the New York City Rent Freeze Program” (RFP). The plaintiffs alleged that the NYC Department of Finance (DOF) administers the RFP “in violation of the Americans with Disabilities Act (ADA) and their constitutional right to due process.” The plaintiffs estimated that the class could consist of up to 18,177 individuals. The plaintiffs moved for class certification and for permission “to add two representative plaintiffs.”

During the pendency of the action, the defendants altered some of its policies and had “taken other actions that, in their view, render the lawsuit moot.” However, the court found that “a justiciable controversy continues to exist” and it retained “subject matter jurisdiction.” The court held that the plaintiff met “the requirements of class certification and intervention” and granted the plaintiffs’ motions.

The RFP includes the Senior Citizen Rent Increase Exemption (SCRIE) program and the Disability Rent Increase Exemption (DRIE) program.” The RFP was intended “to preserve affordable housing for vulnerable citizens who would otherwise be unable to pay rising rents, and who, due to their age or disability, would face…severe hardship if forced to move.” The RFP freezes tenants’ rent obligation even if the legal rent increases each year. “The landlord receives a tax credit covering the difference between the tenant’s frozen rental payments and the legal rent.” “Tenants…must renew their RFP benefits within six months of the expiration of the lease through an application process.” The failure to timely submit a renewal application results in termination of RFP benefits. Tenants may reapply to the RFP, but they “will not be entitled to the previously frozen rent amount.” Rather, tenants who fail to timely apply and then reapply, will have their rent frozen at “the current legal rent, which will invariably be higher than the previously frozen rate.”

The plaintiffs who suffer from “Alzheimer’s, Parkinson’s, and dementia, claim that they are unable to comply with defendants’ administrative deadlines because of their disabilities.” They contend that the “defendants’ ‘policies, practices, and procedures’” (procedures) “deprive them of a meaningful opportunity to request and receive deadline extensions….” The plaintiffs sought an injunction “(a) ‘[v]acating [DOF's] determinations revoking the RFP benefits…and directing [the DOF] to formally consider their requests for a reasonable accommodation of its…procedures and their disability-based good cause for missing [d]efendant’s administrative deadlines;’ (b) requiring the DOF to ‘…implement…comprehensive and effective procedures to reasonably accommodate the disabilities of class members and…allow [them] to demonstrate disability-related good cause for failing to comply with a program requirement;’ and (c) requiring DOF to ‘…implement appropriately comprehensive and effective procedures for class members to request an extension of an administrative deadline or the re-opening and revision of a final agency determination for good cause’….” Plaintiffs also sought declaratory relief.

Prior to the subject litigation, the DOF had “an informal policy” “rather than a formal rule.” Under such policy, the DOF considered “an RFP recipient’s request to extend the renewal deadline for up to one year after the expiration of the lease if the tenant showed ‘good cause.’” Good cause under the informal policy existed when an RFP recipient “had been hospitalized,” “had been the victim of a natural catastrophe,” “had been ‘declared incompetent’ or was appointed a guardian within one year of the lease expiration,” or “had been diagnosed with a ‘documented case of Alzheimer’s or dementia’ within one year of the lease expiration.” The plaintiffs alleged that the informal policy violated the ADA and/or due process, because it:

(i) applied only to a narrow class of disabled individuals (i.e., individuals who are “declared incompetent” or have a “documented case of Alzheimer’s or dementia”), (ii) did not mandate that an RFP recipient be given prompt notice of the termination of his or her benefits, and (iii) did not mandate that the DOF’s policy be publicized in any way so that RFP recipients could be aware of it in the first place….

Following the plaintiffs’ motion for class certification, the DOF began to adopt a formal rule (proposed rule). The plaintiffs argued that the proposed rule would not comply with the ADA or due process because it:

(1) limits the extension of time to those individuals who submit medical evidence “satisfactory to the Department”—a standard that, according to plaintiffs, “lacks the type of ascertainable criteria required by due process”; (2) contains “absolute time limitations for requests for accommodations [that] would potentially violate the ADA and due process”; (3) “appears to provide only extensions of time for filing renewal applications, but not to other administrative deadlines”; (4) “fails to provide timely written notice [of the DOF's determinations] to individuals seeking accommodations,” and (5) “fails to require DOF to inform RFP recipients about the policy”…. Plaintiffs further argued that even if the language of the proposed rule were to comply with federal law, its adoption would not dispose of their claims because the DOF has a history of failing to apply its own policies uniformly and would not likely alter that illegal practice absent judicial directive.

The defendants thereafter adopted a final rule (adopted rule). Although the proposed rule provided for a 24-month extension for disabled individuals and applied only to renewal applications, the adopted rule has “no absolute deadline for renewal or other administrative applications for individuals with disabilities.” Rather, it provides,

[u]pon a showing of need for more time as a reasonable accommodation for a tenant’s disability, the time to file a renewal or other application will be extended for an additional period of time to be determined by the agency, which may exceed six months if the agency determines more time would be a reasonable modification of its procedure necessary to avoid discrimination on the basis of disability.

The defendants had “retroactively reinstated each of the named plaintiffs’ benefits, and taken practical steps, such as training staff, ‘creating a system for an ombudsperson to monitor each of the RFPs,’ and ‘hir[ing] a taxpayer advocate who will advocate on behalf of RFP recipients’ to ensure that those with disabilities are being reasonably accommodated.” However, the adopted rule “retains some of the shortcomings of its predecessor that plaintiffs continue to challenge….,” e.g., the adopted rule requires “medical documentation from an appropriate health care professional satisfactory to the department,” it did not “distinguish between applicants with permanent incurable disabilities and all other applicants” and it did not embody “provisions requiring the DOF to inform recipients of the policy or give timely written notice to individuals whose benefits are terminated.”

Although the plaintiffs acknowledged that the adopted rule was a “significant step” toward compliance with the ADA and the Due Process Clause, they argued that the laws should, inter alia, require that:

defendants: review “every request for an extension of an administrative deadline to see if the individual may have a disability-related basis for an extension”; assist RFP recipients with obtaining necessary information by obtaining relevant information directly from landlords, medical providers, and the Social Security Administration via an authorization form; and provide sufficient notice of the new policy by featuring it prominently on the DOF website and including a plain language explanation on all renewal applications and notices.

The defendants had also “established a ‘landlord portal so that the DOF can obtain leases from the landlords.’” They are also establishing ‘a data sharing agreement with the Social Security Administration to assist in getting income information,’ hiring a ‘disabilities service facilitator,’ instituting a two-week turnaround time for determining eligibility for a reasonable accommodation, and ‘providing notices…about the new rule and policies.’”

The court considered the proposed intervenors, class certification criteria, including “numerosity, commonality, typicality,” adequacy class definition and criteria for intervention. The court questioned “the necessity of now seeking certification and related relief.” The court noted that the DOF had acknowledged “the presence of a real problem,” had “taken meaningful steps to amend the relevant rules and to alter its…policies in an effort to address plaintiffs’ concerns.” The court opined that “whether they have succeeded or not, the approach has been programmatic and in favor of all participants rather than simply the named plaintiffs and proposed interveners.” The court observed that although it “will eventually have to decide whether defendants have gone far enough, it seems more appropriate that the [parties] apply their specific expertise and sound judgment, and continue,…to close the gap that divides them and jointly author a sensible compromise that is sensitive to the needs and concerns of all parties.”

Accordingly, the court granted the plaintiffs’ motion for class certification, with certain modifications and subject to objections from the parties and granted the motion to intervene. The court set a date for submission of objections to the court’s proposed class definition.

Pfeffer v. N.Y. City Depart. of Finance, 15 CV 3547, NYLJ 1202770030662, at *1 (EDNY, Decided Sept. 30, 2016), Dearie, J.


Adverse Possession—Plaintiff Failed to Establish “Continuous Uninterrupted Use of Disputed Area for the 10-Year Prescriptive Period and That the Use Was Open and Notorious”—Minimal and Sporadic Planting Was Insufficient—Fence Did Not Show Hostility Since It Was Built by Defendant’s Predecessor—Issues of Fact as to Prescriptive Easement

The plaintiff and defendant owned adjoining parcels of commercial property. The subject dispute involved “ownership and right to use a triangular portion of defendant’s property,” located between the parties’ properties and next to a chain-linked fence on the defendant’s property. The plaintiff had commenced this action pursuant to Real Property Actions and Proceedings Law Article 15, seeking a judgment declaring that it had “an interest in the disputed property by adverse possession or prescriptive easement.” The plaintiff alleged that it had “exclusively and continually cultivated, used and maintained the disputed area,” during the 10-year prescriptive period.

The court found that the defendant’s submissions established that the plaintiff could not demonstrate that “it had continuous and uninterrupted use of the disputed area for the 10-year prescriptive period, and that the use was open and notorious.” The court opined that the plaintiff’s testimony as to “the time periods and the use of the disputed area was vague as he was unable to recall precisely when it was cultivated and improved….” The court also found that “the minimal and sporadic planting of the garden and bushes on the disputed area is insufficient, as a matter of law, to constitute the requisite cultivation or improvement….”

Moreover, the plaintiff could not rely on a chain-link fence to show that the disputed area had been “protected by a substantial enclosure,” since the fence had not been built by the plaintiff or its predecessor, but had been built by the defendant’s predecessor.

Thus, the plaintiff “failed to raise a triable issue of fact” and the court granted the defendant’s motion for summary judgment dismissing the adverse possession claim.

However, the court found that the “defendant’s submissions were insufficient to establish a prima facie case that plaintiff did not acquire a prescriptive easement over the disputed area.” Employees of a business operated on the plaintiff’s property had “parked on the disputed area for the prescriptive period of 10 years.” Although the defendant argued that “the use of the disputed area was a neighborly accommodation,” that assertion conflicted with testimony that “no permission was ever given to use the disputed area.” Thus, the court found that “a triable issue of fact exists as to whether the use of the disputed property by plaintiff was permissive or hostile.”

The defendant argued that since the disputed area had been used for “parking in common with the general public, it destroys the presumption of adversity” and shows that the plaintiff “failed to establish any actual hostility.” The court explained, however, that “merely arguing that plaintiff cannot rely on a presumption of adversity is insufficient to establish a prima facie case that plaintiff did not acquire a prescriptive easement.” Rather, the defendant, as the proponent of a motion for summary judgment, “must tender evidentiary proof in admissible form sufficient to eliminate any material issues of fact from the case.”

Houdek Real Estate Co. v. Bayport Postal Realty, 13-4465, NYLJ 1202772251347, at *1 (Sup., SUF, Decided Oct. 6, 2016), Pastoressa, J.

Landlord-Tenant—NYC Rent Freeze Program—Motion for Class Certification and Intervention Granted in Class Action Commenced on Behalf of Disabled Residents—NYC Department of Finance Allegedly Violated Americans With Disabilities Act and Constitutional Right to Due Process—Agency Acknowledged Problems and Amended Rules and Policies—Court Urged Parties to Reach a Sensible Compromise

The plaintiffs commenced a putative class action on behalf of “disabled New York City residents, who are enrolled in or eligible for the New York City Rent Freeze Program” (RFP). The plaintiffs alleged that the NYC Department of Finance (DOF) administers the RFP “in violation of the Americans with Disabilities Act (ADA) and their constitutional right to due process.” The plaintiffs estimated that the class could consist of up to 18,177 individuals. The plaintiffs moved for class certification and for permission “to add two representative plaintiffs.”

During the pendency of the action, the defendants altered some of its policies and had “taken other actions that, in their view, render the lawsuit moot.” However, the court found that “a justiciable controversy continues to exist” and it retained “subject matter jurisdiction.” The court held that the plaintiff met “the requirements of class certification and intervention” and granted the plaintiffs’ motions.

The RFP includes the Senior Citizen Rent Increase Exemption (SCRIE) program and the Disability Rent Increase Exemption (DRIE) program.” The RFP was intended “to preserve affordable housing for vulnerable citizens who would otherwise be unable to pay rising rents, and who, due to their age or disability, would face…severe hardship if forced to move.” The RFP freezes tenants’ rent obligation even if the legal rent increases each year. “The landlord receives a tax credit covering the difference between the tenant’s frozen rental payments and the legal rent.” “Tenants…must renew their RFP benefits within six months of the expiration of the lease through an application process.” The failure to timely submit a renewal application results in termination of RFP benefits. Tenants may reapply to the RFP, but they “will not be entitled to the previously frozen rent amount.” Rather, tenants who fail to timely apply and then reapply, will have their rent frozen at “the current legal rent, which will invariably be higher than the previously frozen rate.”

The plaintiffs who suffer from “Alzheimer’s, Parkinson’s, and dementia, claim that they are unable to comply with defendants’ administrative deadlines because of their disabilities.” They contend that the “defendants’ ‘policies, practices, and procedures’” (procedures) “deprive them of a meaningful opportunity to request and receive deadline extensions….” The plaintiffs sought an injunction “(a) ‘[v]acating [DOF's] determinations revoking the RFP benefits…and directing [the DOF] to formally consider their requests for a reasonable accommodation of its…procedures and their disability-based good cause for missing [d]efendant’s administrative deadlines;’ (b) requiring the DOF to ‘…implement…comprehensive and effective procedures to reasonably accommodate the disabilities of class members and…allow [them] to demonstrate disability-related good cause for failing to comply with a program requirement;’ and (c) requiring DOF to ‘…implement appropriately comprehensive and effective procedures for class members to request an extension of an administrative deadline or the re-opening and revision of a final agency determination for good cause’….” Plaintiffs also sought declaratory relief.

Prior to the subject litigation, the DOF had “an informal policy” “rather than a formal rule.” Under such policy, the DOF considered “an RFP recipient’s request to extend the renewal deadline for up to one year after the expiration of the lease if the tenant showed ‘good cause.’” Good cause under the informal policy existed when an RFP recipient “had been hospitalized,” “had been the victim of a natural catastrophe,” “had been ‘declared incompetent’ or was appointed a guardian within one year of the lease expiration,” or “had been diagnosed with a ‘documented case of Alzheimer’s or dementia’ within one year of the lease expiration.” The plaintiffs alleged that the informal policy violated the ADA and/or due process, because it:

(i) applied only to a narrow class of disabled individuals (i.e., individuals who are “declared incompetent” or have a “documented case of Alzheimer’s or dementia”), (ii) did not mandate that an RFP recipient be given prompt notice of the termination of his or her benefits, and (iii) did not mandate that the DOF’s policy be publicized in any way so that RFP recipients could be aware of it in the first place….

Following the plaintiffs’ motion for class certification, the DOF began to adopt a formal rule (proposed rule). The plaintiffs argued that the proposed rule would not comply with the ADA or due process because it:

(1) limits the extension of time to those individuals who submit medical evidence “satisfactory to the Department”—a standard that, according to plaintiffs, “lacks the type of ascertainable criteria required by due process”; (2) contains “absolute time limitations for requests for accommodations [that] would potentially violate the ADA and due process”; (3) “appears to provide only extensions of time for filing renewal applications, but not to other administrative deadlines”; (4) “fails to provide timely written notice [of the DOF's determinations] to individuals seeking accommodations,” and (5) “fails to require DOF to inform RFP recipients about the policy”…. Plaintiffs further argued that even if the language of the proposed rule were to comply with federal law, its adoption would not dispose of their claims because the DOF has a history of failing to apply its own policies uniformly and would not likely alter that illegal practice absent judicial directive.

The defendants thereafter adopted a final rule (adopted rule). Although the proposed rule provided for a 24-month extension for disabled individuals and applied only to renewal applications, the adopted rule has “no absolute deadline for renewal or other administrative applications for individuals with disabilities.” Rather, it provides,

[u]pon a showing of need for more time as a reasonable accommodation for a tenant’s disability, the time to file a renewal or other application will be extended for an additional period of time to be determined by the agency, which may exceed six months if the agency determines more time would be a reasonable modification of its procedure necessary to avoid discrimination on the basis of disability.

The defendants had “retroactively reinstated each of the named plaintiffs’ benefits, and taken practical steps, such as training staff, ‘creating a system for an ombudsperson to monitor each of the RFPs,’ and ‘hir[ing] a taxpayer advocate who will advocate on behalf of RFP recipients’ to ensure that those with disabilities are being reasonably accommodated.” However, the adopted rule “retains some of the shortcomings of its predecessor that plaintiffs continue to challenge….,” e.g., the adopted rule requires “medical documentation from an appropriate health care professional satisfactory to the department,” it did not “distinguish between applicants with permanent incurable disabilities and all other applicants” and it did not embody “provisions requiring the DOF to inform recipients of the policy or give timely written notice to individuals whose benefits are terminated.”

Although the plaintiffs acknowledged that the adopted rule was a “significant step” toward compliance with the ADA and the Due Process Clause, they argued that the laws should, inter alia, require that:

defendants: review “every request for an extension of an administrative deadline to see if the individual may have a disability-related basis for an extension”; assist RFP recipients with obtaining necessary information by obtaining relevant information directly from landlords, medical providers, and the Social Security Administration via an authorization form; and provide sufficient notice of the new policy by featuring it prominently on the DOF website and including a plain language explanation on all renewal applications and notices.

The defendants had also “established a ‘landlord portal so that the DOF can obtain leases from the landlords.’” They are also establishing ‘a data sharing agreement with the Social Security Administration to assist in getting income information,’ hiring a ‘disabilities service facilitator,’ instituting a two-week turnaround time for determining eligibility for a reasonable accommodation, and ‘providing notices…about the new rule and policies.’”

The court considered the proposed intervenors, class certification criteria, including “numerosity, commonality, typicality,” adequacy class definition and criteria for intervention. The court questioned “the necessity of now seeking certification and related relief.” The court noted that the DOF had acknowledged “the presence of a real problem,” had “taken meaningful steps to amend the relevant rules and to alter its…policies in an effort to address plaintiffs’ concerns.” The court opined that “whether they have succeeded or not, the approach has been programmatic and in favor of all participants rather than simply the named plaintiffs and proposed interveners.” The court observed that although it “will eventually have to decide whether defendants have gone far enough, it seems more appropriate that the [parties] apply their specific expertise and sound judgment, and continue,…to close the gap that divides them and jointly author a sensible compromise that is sensitive to the needs and concerns of all parties.”

Accordingly, the court granted the plaintiffs’ motion for class certification, with certain modifications and subject to objections from the parties and granted the motion to intervene. The court set a date for submission of objections to the court’s proposed class definition.

Pfeffer v. N.Y. City Depart. of Finance, 15 CV 3547, NYLJ 1202770030662, at *1 (EDNY, Decided Sept. 30, 2016), Dearie, J.


Adverse Possession—Plaintiff Failed to Establish “Continuous Uninterrupted Use of Disputed Area for the 10-Year Prescriptive Period and That the Use Was Open and Notorious”—Minimal and Sporadic Planting Was Insufficient—Fence Did Not Show Hostility Since It Was Built by Defendant’s Predecessor—Issues of Fact as to Prescriptive Easement

The plaintiff and defendant owned adjoining parcels of commercial property. The subject dispute involved “ownership and right to use a triangular portion of defendant’s property,” located between the parties’ properties and next to a chain-linked fence on the defendant’s property. The plaintiff had commenced this action pursuant to Real Property Actions and Proceedings Law Article 15, seeking a judgment declaring that it had “an interest in the disputed property by adverse possession or prescriptive easement.” The plaintiff alleged that it had “exclusively and continually cultivated, used and maintained the disputed area,” during the 10-year prescriptive period.

The court found that the defendant’s submissions established that the plaintiff could not demonstrate that “it had continuous and uninterrupted use of the disputed area for the 10-year prescriptive period, and that the use was open and notorious.” The court opined that the plaintiff’s testimony as to “the time periods and the use of the disputed area was vague as he was unable to recall precisely when it was cultivated and improved….” The court also found that “the minimal and sporadic planting of the garden and bushes on the disputed area is insufficient, as a matter of law, to constitute the requisite cultivation or improvement….”

Moreover, the plaintiff could not rely on a chain-link fence to show that the disputed area had been “protected by a substantial enclosure,” since the fence had not been built by the plaintiff or its predecessor, but had been built by the defendant’s predecessor.

Thus, the plaintiff “failed to raise a triable issue of fact” and the court granted the defendant’s motion for summary judgment dismissing the adverse possession claim.

However, the court found that the “defendant’s submissions were insufficient to establish a prima facie case that plaintiff did not acquire a prescriptive easement over the disputed area.” Employees of a business operated on the plaintiff’s property had “parked on the disputed area for the prescriptive period of 10 years.” Although the defendant argued that “the use of the disputed area was a neighborly accommodation,” that assertion conflicted with testimony that “no permission was ever given to use the disputed area.” Thus, the court found that “a triable issue of fact exists as to whether the use of the disputed property by plaintiff was permissive or hostile.”

The defendant argued that since the disputed area had been used for “parking in common with the general public, it destroys the presumption of adversity” and shows that the plaintiff “failed to establish any actual hostility.” The court explained, however, that “merely arguing that plaintiff cannot rely on a presumption of adversity is insufficient to establish a prima facie case that plaintiff did not acquire a prescriptive easement.” Rather, the defendant, as the proponent of a motion for summary judgment, “must tender evidentiary proof in admissible form sufficient to eliminate any material issues of fact from the case.”

Houdek Real Estate Co. v. Bayport Postal Realty, 13-4465, NYLJ 1202772251347, at *1 (Sup., SUF, Decided Oct. 6, 2016), Pastoressa, J.