Opening Acts: March 11, 2020

Court Denies Motion to Dismiss


On March 9, 2020, Federal District Judge Analisa Torres denied a motion to dismiss in connection to a federal lawsuit filed by the Fair Housing Justice Center (FHJC) alleging that JDS Development LLC; 616 First Avenue LLC; 202 8th LLC; SHOP Architects LLP; Property Markets Group, Inc. (PMG); Werber Management, Inc., and 202 Park Slope LLC failed to design and construct multifamily rental buildings in compliance with federal, state, and local accessibility requirements.

Defendant PMG filed the motion to dismiss FHJC’s lawsuit arguing that the statute of limitations for any design or construction case claim runs from either the date the last certificate of occupancy was issued or the date that the last unit was rented or sold. A twelve-story 51-unit rental building in Park Slope (Brooklyn) that opened for occupancy in 2011 was one of the buildings tested by the FHJC. The investigation, conducted in 2018, found many inaccessible features in the building. Judge Torres, in denying the motion to dismiss, found that “a claim based on inaccessible design or construction accrues when a person experiences the violation, and thus that the limitations period extends two years from that date.”

Defendant PMG also argued that the discovery rule should not apply to FHJC’s claim because it is an advocacy group whose mission was frustrated at the time construction was completed. The Court, in rejecting that argument, stated that “[r]egardless of when Plaintiff’s mission was frustrated, there was no ‘aggrieved person’ who was subjected to a ‘discriminatory housing practice’ until the testers visited the Park Slope Building.”

FHJC Executive Director Fred Freiberg stated: “Since 1991, the housing industry has been required under the federal Fair Housing Act to include accessible and adaptable features in all new multifamily developments. The failure to design and construct new multifamily housing in an accessible manner constitutes disability discrimination under the Act. This decision by the Court gives us confidence that when investigations yield evidence of non-compliance with local, state, and federal accessibility requirements, legal action can be taken to stop the discrimination.” Freiberg added, “Accessible housing is a civil right.”

The FHJC is represented by Alice. G. Reiter, Mariann Meier Wang, and Eric Hecker with the law firm of Cuti Hecker Wang LLP.

The mission of the FHJC, a nonprofit civil rights organization, is to eliminate housing discrimination; promote policies and programs that foster open, accessible, and inclusive communities; and strengthen fair housing enforcement in the New York City region.