Case: 1:04-cv-6740 As of: 07/06/2017 08:17 PM EDT 1 of 4
CLOSED,CASREF,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:04−cv−06740−SHS−HBP

Jane Doe v. Hunter College of The City University of New York Date Filed: 08/20/2004

et al

Date Terminated: 08/22/2006

Assigned to: Judge Sidney H. Stein

Jury Demand: Plaintiff

Referred to: Magistrate Judge Henry B. Pitman

Nature of Suit: 443 Civil Rights:

Magistrate Judge Henry B. Pitman (Settlement)

Accommodations

Cause: 42:1981 Housing Discrimination

Jurisdiction: Federal Question

Plaintiff

Jane Doe

represented by David Goldfarb Goldfarb Abrandt Salzman & Kutzin LLP 350 Fifth Avenue − Suite 1100 New York, NY 1100 (212) 387−8400 Fax: 212−387−8404 Email: goldfarb@seniorlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen A. Bower Bazelon Center for Mental Health Law 1101 15th Street, N.W. Ste. 1212 Washington, DC 20005 LEAD ATTORNEY

V. Defendant Hunter College of The City University of New York
Defendant Jennifer Raab President TERMINATED: 08/22/2006

represented by Antoinette W Blanchette New York State Office of the Attorney General (24th Floor) 120 Broadway, 24th Floor New York, NY 10271 (212) 416−8619 Fax: (212) 416−6075 Email: Antoinette.Blanchette@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Carter Spann Withers Bergman, LLP 430 Park Avenue, 10th Flr. New York, NY 10022 (212)848−9800 Fax: (212)848−9888 Email: Kathryn.Spann@withersworldwide.com TERMINATED: 06/10/2005 ATTORNEY TO BE NOTICED
represented by Antoinette W Blanchette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Carter Spann

Case: 1:04-cv-6740 As of: 07/06/2017 08:17 PM EDT 2 of 4

(See above for address) TERMINATED: 06/10/2005 ATTORNEY TO BE NOTICED

Defendant
Eija Ayravainen Acting Vice President and Dean of Students of Hunter College of the City University of New York TERMINATED: 08/22/2006

represented by Antoinette W Blanchette (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn Carter Spann (See above for address) TERMINATED: 06/10/2005 ATTORNEY TO BE NOTICED

Date Filed 08/20/2004 08/20/2004 09/07/2004
09/10/2004 09/29/2004 09/29/2004 09/29/2004 10/14/2004 10/25/2004
10/27/2004
10/27/2004
10/27/2004

# Docket Text
Magistrate Judge Frank Maas is so designated. (gf, ) (Entered: 08/23/2004)
Case Designated ECF. (gf, ) (Entered: 08/23/2004)
***REJECTION OF ATTEMPTED PAPER FILING IN ECF CASE. The following document(s) affidavit of service for summons and complaint by Goldfarb Abrandt, was rejected by the Clerk's Office and must be FILED ELECTRONICALLY on the Court's ECF System. (snu, ) (Entered: 09/14/2004)
Set/Reset Scheduling Order Deadlines: Responses due by 9/15/2004 Replies due by 9/22/2004. (pl, ) (Entered: 09/20/2004)
Set Answer Due Date purs. to 30 Endorsed Letter, as to Eija Ayravainen answer due on 10/22/2004; Hunter College of The City University of New York answer due on 10/22/2004; Jennifer Raab answer due on 10/22/2004. (pl, ) (Entered: 10/14/2004)
Set/Reset Scheduling Order Deadlines: Amended Pleadings due by 10/7/2004. dfts Motion to dismiss due by 10/22/2004. Responses due by 11/8/2004 Replies due by 11/15/2004. (pl, ) (Entered: 10/18/2004)
Set Answer Due Date purs. to 33 Endorsed Letter, as to Eija Ayravainen answer due on 10/22/2004; Hunter College of The City University of New York answer due on 10/22/2004; Jennifer Raab answer due on 10/22/2004. (pl, ) (Entered: 10/18/2004)
31 ORDER; that the caption of this action is changed as indicated in this Order. All future documents filed in this action shall reflect the new caption until further order of the Court. (Signed by Judge Sidney H. Stein on 10/14/04) (pl, ) (Entered: 10/14/2004)
34 ENDORSED LETTER addressed to Judge Sidney H. Stein from Kathryn C. Swann dated 10/21/04. Granting defendants' request for a revised schedule as follows: defendants' motion to dismiss by 10/27/2004. Response due by 11/15/2004 Reply due by 11/22/2004. (Signed by Judge Sidney H. Stein on 10/22/04) (kw, ) (Entered: 10/25/2004)
35 MOTION to Dismiss Plaintiff's Amended Complaint, Notice of, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2) and 12(h)(3). Document filed by Eija Ayravainen, Hunter College of The City University of New York, Jennifer Raab. Responses due by 11/15/2004 (Spann, Kathryn) (Entered: 10/27/2004)
36 MOTION to Dismiss Amended Complaint, Defendants' Memorandum of Law in Support of (with tables). Document filed by Eija Ayravainen, Hunter College of The City University of New York, Jennifer Raab. Responses due by 11/15/2004 (Spann, Kathryn) (Entered: 10/27/2004)
37 MOTION to Dismiss Amended Complaint, Spann Decl. in Support of (with exhibits). Document filed by Eija Ayravainen, Hunter College of The City University of New York, Jennifer Raab. Responses due by 11/15/2004 (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3)(Spann, Kathryn) (Entered: 10/27/2004)

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11/19/2004
11/23/2004 12/02/2004 12/07/2004
01/05/2005 02/08/2005 02/15/2005 06/10/2005 08/25/2005
10/07/2005 11/04/2005 11/07/2005 02/09/2006

39 ENDORSED LETTER addressed to Judge Sidney H. Stein from Kathryn C. Spann dated 11/19/04, Set Deadlines/Hearing as to 35 MOTION to Dismiss Plaintiff's Amended Complaint, Notice of, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2) and 12(h)(3): Defendants Hunter College, Jennifer Raab and Eija Ayravainen Replies due by 12/3/2004. (Signed by Judge Sidney H. Stein on 11/19/04) (sac, ) (Entered: 11/22/2004)
40 ORDER ADMITTING Michael G. Allen and Karen A. Bower to appear ATTORNEY PRO HAC VICE. (Signed by Judge Sidney H. Stein on 11/23/04) (sac, ) (Entered: 11/24/2004)
41 ENDORSED LETTER addressed to Judge Sidney H. Stein from Kathryn C. Spann dated 12/1/04; Replies due by 12/7/2004. Surreplies due by 12/21/2004. (Signed by Judge Sidney H. Stein on 12/1/04) (sac, ) (Entered: 12/02/2004)
42 REPLY MEMORANDUM OF LAW in Support re: 37 MOTION to Dismiss Amended Complaint, Spann Decl. in Support of (with exhibits)., 35 MOTION to Dismiss Plaintiff's Amended Complaint, Notice of, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2) and 12(h)(3)., 36 MOTION to Dismiss Amended Complaint, Defendants' Memorandum of Law in Support of (with tables). − dated December 7, 2004. Document filed by Eija Ayravainen, Hunter College of The City University of New York, Jennifer Raab. (Spann, Kathryn) (Entered: 12/07/2004)
CASHIERS OFFICE REMARK on 40 Order Admitting Attorney Pro Hac Vice in the amount of $50.00, paid on 11/30/04, Receipt Number 527516. (mlo, ) (Entered: 01/05/2005)
43 ORDER; withdrawing 24 Motion for Preliminary Injunction.(Signed by Judge Sidney H. Stein on 2/4/05) (sac, ) (Entered: 02/08/2005)
44 ENDORSED LETTER addressed to Judge Sidney H. Stein from Kathryn C. Spann dated 2/15/05 re: Counsel for defendant writes to request an extension of time until 2/22/05 in which to file any such supplemental briefing; response due 3/1/05; reply 3/7/05. So Ordered. (Signed by Judge Sidney H. Stein on 2/15/05) (jco, ) (Entered: 02/17/2005)
45 NOTICE of Appearance by Antoinette W Blanchette on behalf of all defendants (Attachments: # 1 6/10/05 Decl. of Service)(Blanchette, Antoinette) (Entered: 06/10/2005)
46 ORDER re: Motions terminated: 35 MOTION to Dismiss Plaintiff's Amended Complaint, Notice of, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2) and 12(h)(3). filed by Hunter College of The City University of New York,, Eija Ayravainen,, Jennifer Raab. Amended Pleadings due by 9/9/2005. Motions due by 9/30/2005. Pretrial Conference set for 10/7/2005 11:00 AM before Judge Sidney H. Stein. (Signed by Judge Sidney H. Stein on 8/25/05) (sac, ) (Entered: 08/25/2005)
48 ORDER that deft shall answer the amended complaint on or before 11/4/05; mid discovery status conf on 1/13/06 at 10:00 am; fact discovery due 3/10/06 and expert discovery due 5/19/06. (Signed by Judge Sidney H. Stein on 10/7/05) (cd, ) (Entered: 10/11/2005)
49 ANSWER to Amended Complaint. Document filed by Hunter College of The City University of New York, Jennifer Raab, Eija Ayravainen. Related document: 47 Amended Complaint, filed by Jane Doe,.(Blanchette, Antoinette) (Entered: 11/04/2005)
50 DECLARATION of JUDITH M. YOUNG re: 49 Answer to Amended Complaint − − 11/4/05 Declaration of Service of Defendants' Answer to the Second Amended Complaint. Document filed by Hunter College of The City University of New York, Jennifer Raab, Eija Ayravainen. (Blanchette, Antoinette) (Entered: 11/07/2005)
51 ORDER; the last day for fact discovery to be completed is 5/1/2006. The next pretrial conference is set for 5/4/2006 at 10:00 a.m. Expert reports are due on 6/1/2006. The last day for expert discovery is 7/3/2006. No further extensions. (Signed by Judge Sidney H. Stein on 2/9/06) (kco, ) (Entered: 02/09/2006)

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02/09/2006 03/01/2006 05/16/2006
07/10/2006 08/22/2006
08/22/2006
08/22/2006

Set Hearings: Pretrial Conference is set for 5/4/2006 at 10:00 AM before Judge Sidney H. Stein. (kco, ) (Entered: 02/09/2006)
52 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Settlement. Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Sidney H. Stein on 3/1/06) (js, ) (Entered: 03/01/2006)
53 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Sidney H. Stein on 5/12/2006) (lb, ) (Entered: 05/16/2006)
54 ORDER; that at the requests of the parties, the documents filed in this action prior to 10/14/06, may be placed under seal. (Signed by Judge Sidney H. Stein on 6/2/06) (pl, ) (Entered: 07/12/2006)
55 STIPULATION AND ORDER SEALING DOCUMENTS: It is ordered that the unredacted stipulation of settlement, general release and order of dismissal shall be submitted directly to the Court in a separate envelope, and shall be maintained under seal by the Clerk of the Court following entry by the Court. (Signed by Judge Sidney H. Stein on 8/21/2006) (lb, ) (Entered: 08/22/2006)
56 NOTICE of Voluntary Dismissal pursuant to Rule 41(a)(1) of the F.R.C.P. All claims asserted against defendants Jennifer Raab and Eija Ayravainen, in their individual and official capacities, in this action are hereby voluntarily dismissed, with prejudice, and without costs, disbursements, expenses or attorney's fees. (Signed by Judge Sidney H. Stein on 8/22/2006) (lb, ) (Entered: 08/22/2006)
57 STIPULATION OF SETTLEMENT, GENERAL RELEASE & ORDER OF DISMISSAL: The action against defendant is hereby voluntarily dismissed with prejudice, pursuant to FRCP 41(a) and without payments, costs, disbursements, expenses or attorney's fees in excess of the amounts specified in Paragraphs 3.2 and 3.4 herein... (Signed by Judge Sidney H. Stein on 8/22/2006) (lb, ) (Entered: 08/22/2006)

 
 United States District Court For the Southern District of New York -------------------------------------------------------------------------X Jane Doe

Plaintiff

v.
Hunter College of the City University of New York 695 Park Ave. New York, NY 10021

04 CV 6740 (SHS) ECF CASE

Jennifer Raab, President Hunter College of the City University of New York 695 Park Ave. New York, NY 10021

Eija Ayravainen, Acting Vice President and Dean of Students Hunter College of the City University of New York 695 Park Ave. New York, NY 10021

Defendants ---------------------------------------------------------------------------X

SECOND AMENDED COMPLAINT FOR DECLARATORY JUDGMENT, PERMANENT INJUNCTIVE RELIEF AND DAMAGES

NATURE OF THE ACTION 1. This is an action for declaratory judgment, permanent injunctive relief, and damages for discrimination on the basis of handicap in the exclusion from dormitory housing pursuant to the Fair Housing Amendments Act of 1988 (FHAA), the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. Defendant, Hunter College of the City University of New York, the owner and manager of Brookdale Residence Hall, a dormitory, and Defendants Jennifer Raab and Eija Ayravainen, employees of and President and Vice President of Hunter College,

respectively, discriminated against Plaintiff by wrongfully evicting her and denying her residence in dormitory housing on the basis of disability. Defendants stated that they could not be responsible for Ms. Doe’s recovery. Defendants further discriminated against Plaintiff by conditioning her re-admission to the residence hall on her agreement to conditions not imposed on students who do not have a disability. Finally, Defendants refused to provide Plaintiff Doe an accommodation in its rules, policies, practices or services that was necessary to afford her an equal opportunity to use and enjoy the dormitory housing.
JURISDICTION AND VENUE
2. Jurisdiction is conferred on this Court by 42 U.S.C. § 3613(a), 42 U.S.C. § 12132 and 42 U.S.C. § 2000a-3(a); 28 U.S.C. § 1367 and by 28 U.S.C. §§ 1331, 1343(a)(4), 1367(a), and 2201 and 29 U.S.C. §§ 794 and 794a.
3. The amount in controversy exceeds $10,000, exclusive of interests and costs.
4. Venue is proper in this district because the claim arose in this district and the Defendants conduct business in this district.
PARTIES 5. Plaintiff Jane Doe is 19 years old, a full time student and a sophomore at Hunter College. Ms. Doe suffers from Major Depressive Disorder and Attention Deficit Hyperactivity Disorder. At times, Ms. Doe’s depression becomes so severe that it substantially limits her major life activities, such as sleeping, eating, socializing, and perceiving. At those times, Ms. Doe has engaged in suicidal gestures. Plaintiff is a person with a disability. Plaintiff has a history of being a person with a disability within
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the meaning of the ADA, Section 504 of the Rehabilitation Act, and the FHAA. Defendants regard Ms. Doe as a person with a disability, substantially limited in her ability to care for herself. As a student admitted to the Hunter College Honors Program, Doe has met the essential eligibility requirements for residence in the Brookdale Residence Hall, and is “qualified” to participate in Defendants’ programs, services, and activities. Plaintiff is not and has never been a threat to others.
6. Doe was a resident of Brookdale Residence Hall in New York until evicted by Defendants in June 2004. From June 2004 until January 2005, she resided in her mother’s apartment in Queens, NY, while continuing to attend class at Hunter College. In January 2005, Ms. Doe was re-admitted to the Brookdale Residence Hall subject to conditions not imposed on students who do not have a disability, a record of disability, or who are not regarded as having a disability. Plaintiff continues to be adversely affected by the acts, policies, and practices of Defendants and/or their agents.
7. Upon information and belief, Defendant Hunter College of the City University of New York. ("Hunter College") is a College duly chartered by the Board of Regents of the State of New York and located in New York, NY. Upon information and belief Hunter College and its programs and activities receive Federal financial assistance. Upon information and belief Hunter College is a “public entity” under 42 U.S.C. § 12131, and is subject to Title II of the ADA. Upon information and belief Hunter College owns and operates Brookdale Residence Hall. At all times material hereto, Hunter College operated and acted as management of Brookdale Residence Hall, its dormitory located at 425 East 25th St. between First Avenue and the FDR Drive, New York, NY, and acted with the actual and/or apparent authority of the owner of the
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property. Upon information and belief, Defendant Jennifer Raab is the President of Hunter College, which operates Brookdale Residence Hall. Upon information and belief, Defendant Eija Ayravainen, is the Acting Vice President of Student Affairs and Dean of Students of Hunter College, which operates Brookdale Residence Hall. As Defendants Ayravainen and Raab are responsible for administering a public entity, Hunter College, they are subject to Title II of the ADA. As Defendants operate programs, services and activities receiving federal funds, they are subject to Section 504 of the Rehabilitation Act.
FACTUAL BACKGROUND 8. Jane Doe is 20 years old, a full time student and a sophomore at Hunter College. Beginning in 2001, during her junior year in high school, Ms. Doe began to experience depression. At times, she engaged in self-injury such as cutting. “Cutting” is when someone cuts their own skin with a sharp object, usually glass or a razor blade; it is not typically linked to suicide or violence. Rather, individuals typically engage in cutting to provide relief from psychological pain, tension reduction, connection with or disassociation from feelings, connection with physical boundaries, or a means of communication. 9. At times, Ms. Doe’s depression became so severe that it caused perceptual disturbances including difficulty thinking, concentrating or making decisions; decreased appetite; ennui decreased energy and fatigue; anxiety; and difficulty interacting with her peers. At such times, Ms. Doe has periodically had suicidal ideation. During the 2001 academic year, Ms. Doe was hospitalized for depression for seven days. Due to her
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severe depression, Ms. Doe took a voluntary medical leave of absence and was home schooled for the majority of her junior year of high school.
10. Ms. Doe has a history of being substantially limited in the major life activities of sleeping, eating, thinking, learning, interacting with others, and caring for herself. Since November 2001, Ms. Doe has been under the care of psychiatrist, Dr. David Grodberg, whom she sees once per month. Doe has also been treated by Ms. Susan Frank, a licensed clinical social worker, whom she sees once per week. Dr. Grodberg has diagnosed Ms. Doe as suffering from Major Depressive Disorder and Attention Deficit Hyperactivity Disorder. Ms. Doe has been prescribed medication for her depression and for difficulties with focus and attention.
11. Ms. Doe returned to high school for her senior year in 2002. She continued her treatment with Drs. Grodberg and Frank. At the time, her depression was not severe and she was not substantially limited in any major life activities. She attained a 90 average during her senior year.
12. Before attending Hunter College, Ms. Doe applied and was accepted to SUNY Purchase, SUNY Albany, SUNY Buffalo, SUNY StoneyBrook, SUNY Oswego, SUNY Genesco, and Middlebury College. She was offered dormitory housing at all of the colleges and scholarships at all of the SUNY colleges.
13. Hunter College accepted Ms. Doe into its Honors Program. Hunter College does not offer dormitory housing to all of its students. However, students in the Honors Program are entitled to elect either dormitory housing or an annual stipend to offset housing costs. Ms. Doe would not have chosen to attend Hunter College if it had not provided dormitory housing. Ms. Doe elected to live in the Residence Hall.
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14. As a student admitted to the Hunter College Honors Program, Ms. Doe has met the essential eligibility requirements for dormitory housing and is “qualified” to live in Brookdale Residence Hall. At no time has Ms. Doe ever presented a danger to others that would disqualify her from residential housing. Ms. Doe began living in Hunter College Brookdale Residence Hall in September of 2003. When Ms. Doe began attending college in September 2003, she stopped seeing Dr. Frank. She did continue to see Dr. Grodberg on a monthly basis.
15. In January 2004, Ms. Doe had severe migraine headache which lasted at least one week. Ms. Doe took Tylenol for several days to ease the pain]. Ms. Doe also took other over-the-counter pain killers such as Aspirin and Advil to alleviate her symptoms. Ms. Doe’s boyfriend became concerned about Ms. Doe’s headaches, and nausea and the amount of medication Ms. Doe took to alleviate them, and called 911. Ms. Doe was taken to the Cabrini Hospital by Emergency Medical Services. Ms. Doe was seen in the medical emergency room.
16. Security guards at the Brookdale Residence hall informed Pamela Burthwright, Director of Residence Life, about the incident. Ms. Burthwright left a note under Ms. Doe’s door, asking Ms. Doe to see her the following day.
17. The following day Ms. Doe met with Ms. Burthwright and explained that she had had headaches and nausea and accidentally took too much medication. Ms. Burthwright did not seem to believe Ms. Doe and told her about counseling services available at the school.
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18. During the following semester, Ms. Doe saw Ms. Burthwright. Ms. Burthwright pointed at Ms. Doe’s arms, which were scarred from the time when Ms. Doe was cutting, and asked Ms. Doe if she was “getting help for that.”
19. In the Fall 2003 semester, ending in December 2003, Ms. Doe received 3 As and one B in her classes.
20. During final exams for the Spring semester, Ms. Doe studied rigorously and did not keep regular 9-5 hours. Her depression had lessened. As a result, she forgot to take her medication for several weeks. In June 2004, Ms. Doe experienced a worsening of her depression. She felt anxious, overwhelmed and alone.
21. In the early morning of Saturday, June 5, 2004, Ms. Doe swallowed 20 Tylenol PM pills and then dialed 911. She was taken by ambulance to Cabrini Medical Center, and was voluntarily admitted.
22. Cabrini Medical Center determined that Ms. Doe was not a threat to herself or others, and released her on Wednesday, June 9, 2004. Before her release, Ms. Doe arranged to resume her weekly sessions with Dr. Frank, and implemented safeguards to ensure that she remained on her medication.
23. Despite the recurrence of her severe depression and associated symptoms, Ms. Doe received four As and one incomplete during the semester ending June 2004.
24. Brookdale security informed Ms. Burthwright about Ms. Doe’s hospitalization on June 5, 2004. While Ms. Doe was in the hospital for evaluation and treatment of her severe depression, Defendants decided that they would not allow Ms. Doe back into the dormitory and changed the lock to her room.
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25. Ms. Doe returned to her dormitory on June 9, 2004 to find that she was locked out of her room and the locks had been changed. A staff member allowed her into her room to retrieve some possessions.
26. On June 10, 2004, Ms. Doe met with Pamela Burthwright and Defendant Ayravainen. They informed her that she had to vacate her room. Defendant Ayravainen stated that Hunter College could not be responsible for her recovery and that the action they were taking was pursuant to Hunter's policy. Defendants did not conduct any individualized assessment of Plaintiff. Defendants evicted Plaintiff Doe due to her actual disability, her history of disability, or because they regarded her as a person with disability.
27. On June 14, 2004, Ms. Doe wrote to Ms. Burthwright and Defendants Ayravainen and Raab stating:
By refusing to allow me to enter my room, by forcing me to leave without an official explanation, and by threatening to charge me for every day I do not vacate my room, Brookdale is not only subjecting me to great quantities of emotional stress and personal trauma, but they are unfairly and illegally discriminating against me on the basis of my mental health condition. 28. On or about June 21, 2004, Defendant Ayravainen wrote to Ms. Doe reiterating the decision that due to the incident on June 5, 2004, Ms. Doe must "relinquish your place in the Residence Hall through the Fall 2004 semester." She stated that Ms. Doe had to vacate her room by June 28, 2004. She stated that the decision was based upon a review of the records of the June 5th episode, that it was consistent with action taken by the college in similar situations in the past, and that it followed the relevant provisions of the College's 2003-2004 Housing Contract, Section I which states:
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A student who attempts suicide or in anyway attempts to harm him or herself will be asked to take a leave of absence for at least one semester from the residence Hall and will be evaluated by the school psychologist or his/her designated counselor prior to returning to the residence Hall. Additionally, students with psychological issues may be mandated by the Office of Residence Life to receive counseling.
29. Defendant Ayravainen admitted that she did not believe that Ms. Doe
could emotionally care for herself: “We believe this decision is in your best interest and
the best interests of the Residence Hall community. Our goal is to enable you to receive
intensive mental health counseling in a setting with reduced pressures and distractions,
which will in turn help you return to the Residence Hall better able to handle the
challenges of academic and residential life.”
30. Defendant Ayravainen's letter further stated that Ms. Doe could request to
return to college housing starting with the Spring 2005 semester and that her request
would be reviewed at that time and she would be notified of a decision. Along with the
request, Ms. Doe would also have to submit “information and medical documentation
regarding measures you have taken to address your emotional well-being and ability to
live in a residential community.”
31. On July 2, 2004, David Goldfarb, Esq. wrote to Defendant Raab, stating
that he represented Ms. Doe and was “writing to ask you to permit Ms. Doe to return to
her room, and to ask that the College reasonably accommodate her – now and in the
future – as required by law." He further wrote:
A policy of automatically evicting students at a moment of great vulnerability constitutes intentional discrimination on the basis of mental disability. In any event, Ms. Doe is entitled, as a matter of reasonable accommodation, to have her residency status immediately reassessed. Disability discrimination and a failure to make a reasonable accommodation are, as you know, violations of a variety of federal, state, and local statutes, including the Fair Housing Act, the Americans with
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Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the New York State Human Rights Law, the New York City Human Rights Law, and the NY Real Property Actions and Proceedings Law.
I ask that you immediately reverse Dean Ayravainen's decision and allow Ms. Doe to return to her room…. 32. Enclosed with the July 2, 2004, letter to Defendant Raab was a statement from Dr. David M. Grodberg, Ms. Doe's treating psychiatrist stating: that she had been under his care since November 2001; that she is diagnosed as suffering from Major Depressive Disorder and Attention Deficit Hyperactivity Disorder; that he last met with her on June 23, 2004 -- after her hospitalization -- and that she did not exhibit suicidal ideation and did not place herself or others in imminent danger; that the symptoms that were associated with her hospitalization appear to have improved and do not currently disrupt her emotional, academic and social functioning. Dr. Grodberg further stated:
School has been a very important support in [Doe’s] life since she began Hunter's Honors Program and it would be in her best interest to continue her class work and her dorm living. An eviction from the dorm because of the school's understandable concerns regarding her depression would be a rejection that could complicate the course of her illness…. 33. On July 14, 2004, Linda Chin, Dean of Faculty and Staff Relations and Special Counsel to the President at Hunter College, wrote to David Goldfarb in response to his letter. She stated that Ms. Doe is not entitled to a room in the Residence Hall as a reasonable accommodation under any of the laws cited by Mr. Goldfarb. Despite Dr. Grdoberg’s medical opinion that Ms. Doe was not suicidal and was not a threat to either herself or anyone else, Ms. Chin stated that it is not possible to permit Ms. Doe to reside in the Residence Hall “in light of the possible harm Ms. [Doe] may cause herself and others in the Residence Hall.” She re-stated Hunter's Housing Contract, Section 1 (see paragraph 28 above). She stated that Ms. Doe could first reapply to return to college
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housing with the Spring, 2005 semester, and urged Ms. Doe to “receive or to continue to receive intensive mental health counseling.”
34. As a result of her eviction from Brookdale Residence Hall, Ms. Doe began living in her mother’s apartment in Queens, New York. Although Defendants refused to allow Ms. Doe to reside in the Residence Hall, they did allow her to attend the Summer School sessions in July and August of 2004. While attending class, Ms. Doe had unrestricted access to the college buildings, and the Residence Hall, but could not live there.
35. Ms. Doe commuted almost one and one-half hours each way to attend class. Not only did this living situation disrupt her emotional, academic and social functioning, but it exacerbated her Major Depressive Disorder and threatened to have a lasting detrimental impact on her. Ms. Doe received grades of “A” in all of her summer courses. Throughout the Summer sessions, Ms. Doe continued treatment with Drs. Grodberg and Frank.
36. On or about July 26, 2004, David Goldfarb spoke to Linda Chin. He explained that Ms. Doe was attending Hunter's Summer Session and requested again that a reasonable accommodation be made by having the Summer Sessions considered the one semester leave of absence required by the housing contract. This would allow Ms. Doe to reapply for housing in August 2004, for the Fall 2004 Semester. Ms. Chin refused to consider that or any other accommodation. By taking this action, Hunter College refused to engage in the interactive process that is required as part of the reasonable accommodation mandate.
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37. The accommodation requested on behalf of Ms. Doe would not
fundamentally alter the nature of the programs, services, activities offered by the
Defendants, nor would such an accommodation result in an undue burden on the
Defendants.
38. The Fall 2004 Academic Semester at Hunter College commenced on
August 27, 2004. On August 27, 2004, Plaintiff's counsel and Defendants' counsel
appeared at a pretrial conference on a pending motion for a preliminary injunction. At
that time the parties agreed that Defendants would evaluate Ms. Doe and based on their
evaluation, determine if she could return the residence hall. The parties memorialized
their agreement, as a stipulation on the record, as follows:
That as of now, plaintiff will be admitted to the residence hall at issue on September 7. Hunter intends to have professionals evaluate plaintiff on or before that date, and to attempt to reach a resolution as to whether its appropriate under their policy for her to remain or not.
If the decision is made by Hunter on the basis of the professional evaluation that she cannot enter the residence hall, or if she's already admitted that she can't remain in the residence hall, then Mr. Speres [counsel for defendants] will notify plaintiff's attorney by phone and in writing of that fact, and enable plaintiff to renew her application for a temporary restraining order and a motion for a preliminary injunction.
39. At the request of Defendants, Ms. Doe met with Kathryne Leak and Dawn
Klimovich for an evaluation on September 1, 2004. On information and belief, Ms. Leak
is a Licensed Master Social Worker, not a licensed clinical social worker, thus she is not
permitted to diagnose or treat mental illness. Ms. Klimovich is not professionally
licensed by the State of New York. Therefore, in breach of their agreement, Defendants
did not have Ms. Doe evaluated by qualified professionals.
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40. Neither Ms. Leak or Ms. Klimovich spoke with Dr. Gordberg, Ms. Doe’s treating psychiatrist, or Ms. Frank. Instead, Ms. Leak questioned Ms. Doe about her mental illness, previous cutting behavior and relationship with her family. Both Ms. Leak and Dr. Klimovich recognized that Ms. Doe’s expulsion from the dormitory necessitating her return to live at home with her mother was very difficult for Ms. Doe and exacerbated her condition. They also acknowledged that in the dormitory Ms. Doe “feels connected, accepted, part of a group…feel[s] better when there are people around.” Nonetheless, without any medical evidence, and based on prejudice and stereotypes they stated that:
Ms. Doe “appears to be an emotionally very needy individual who seeks attention. There is a great concern that she may again repeat the behaviors she has already exhibited this past year while in the residence. …Although she has a strained relationship with her mother and we recognize there are cultural differences about mental health issues and their disclosure in public, the residence hall is not to be seen as an escape from the problems she has with her mother.” 41. Ms. Leak and Ms. Klimovich, acknowledged that the June 2004 incident occurred while Ms. Doe had stopped seeing her therapist and taking her medication, and admitted that Ms. Doe had “recognized she needed to resume meeting with her therapist,” on September 3, 2004, they nonetheless wrote to Linda Chin, that "Both Dr. Leak and Dr. Klimovich concur that the Brookdale Residence Hall is not the appropriate residence for Ms. [Doe] at this time." This decision was based on Ms. Doe’s history of mental disability, and/or Defendants perception that Ms. Doe had a disability. 42. Based on the evaluation of Ms. Klimovich and Ms. Leak, Defendant Ayravainen, on September 3, 2004, determined, "Student will not move back into the dormitory at this time." 43. On information and belief, Defendants based their decision on their concern that Ms. Doe would successfully commit suicide and would create a risk of
13

suicide contagion for other students. The decision was not an individualized assessment based on objective medical evidence, rather, it was based on prejudice and stereotypes.
44. In a telephone conference with the Court on September 7, 2004, Plaintiff renewed her motion for a preliminary injunction and a temporary restraining order. By order dated September 10, 2004, the Court denied the motion for a temporary restraining order and ordered the parties to submit memoranda addressing the need for a preliminary injunction.
45. On or about November 2004, attorneys for Plaintiff inquired about the procedure for Plaintiff Doe to reapply for dormitory residence for the Fall Semester. On November 28, 2004, Kathryn Spann, Assistant Attorney General, attorney for Defendants wrote to Plaintiff's counsel to advise that Hunter College had agreed to consider Ms. Doe's reapplication if she submitted a "Hunter College Housing Application" and required documentation as follows:
Ms. [Doe] will need to obtain a letter from her therapist explicitly stating that (1) Ms. [Doe] is capable of living in a structured college residence hall environment with limited psychological and mental health support, (2) Ms. [Doe] has been regularly taking all medications prescribed for her disability, and (3) in the professional judgment of the therapist, Ms. [Doe] does not pose a threat of harming herself in the aforementioned environment. 46. On December 1, 2004, Jane Doe completed a Hunter College 2004-2005 Housing Application and submitted it to Hunter College Office of Residence Life. 47. On December 2, 2004, Dr. David Grodberg wrote to Defendant Ayravainen the following: I am a board certified psychiatrist and have treated Jane Doe since November of 2001. I presently meet with Jane Doe once a month. She also sees a clinical social worker once per week.
14

It is my opinion that Jane Doe is capable of living in a structured college residence hall environment with limited psychological and mental health support.
She has been regularly taking all of the medications that she has been prescribed for her Major Depressive Disorder.
It is my opinion that Jane Doe does not pose a threat of harming herself in the Hunter College dormitory environment.
48. On January 13, 2005, Counsel for Hunter requested as an additional
condition for Plaintiff's readmission that Dr. Grodberg agree to notify them if Ms. Doe
stopped regular visits; if he had reason to believe that she was not taking her medications;
and if he became aware of any increased risk that she might attempt suicide.
49. Dr. Grodberg declined to agree to the request from Hunter College,
because he felt that even if Jane Doe agreed, it would affect the integrity of his treatment
of her, that Jane Doe would worry that what she said to Dr. Grodberg would be held
against her, and that it would interfere with his ability to monitor her mental health status.
50. On January 28, 2005, Kathryn Spann, counsel for Defendants, stated that
the College would readmit Ms. Doe, and she "may move back into the dormitory the day
after she agrees to the following conditions:”
Ms. [Doe] will need to provide documentation prepared by Dr. Grodberg / Susan Frank to Dr. Su Ping Ma, LCSW, at Hunter … reflecting her regular (at least once monthly per therapist) sessions with Dr. Grodberg and Susan Frank (not the content of those sessions), such documentation to be provided within 3 days after each session.
Ms. [Doe] will need to see Dr. Ma once every four weeks for an assessment by Dr. Ma of Ms. [Doe]'s potential for self-harm, all such sessions, to be .scheduled within the week following acceptance by Ms. [Doe] of this letter:
Ms. [Doe] agrees to take all medication prescribed by Dr. Grodberg as 'directed.
15

Ms. [Doe] authorizes Dr. Ma to speak with Dr. Grodberg in the event (and only in the event) that Dr. Ma concludes in her professional judgment that: there is an increased risk of self-harm. If Ms. [Doe] misses one of these sessions with Dr. Grodberg, Ms. Frank or Dr. Ma, she shall make the session up within seven days. If Dr. Ma concludes that there is an imminent risk of self-harm, she will admit Ms. [Doe] to the E.R. Ms. [Doe] agrees to contact Dr. Grodberg immediately if she experiences any recurrence of self-harm ideation. If Ms. [Doe] fails to meet these conditions at any time, she will be provided with two weeks notice to vacate the dormitory room. 51. Doe’s readmission was conditioned upon her compliance with the conditions in the agreement. These conditions are not imposed upon students that are not disabled, that do not have a history of disability, or who are not perceived as disabled. Students that are not disabled or have a history of disability and students who are not perceived as disabled are not required to provide documentation of continued participation in mental health treatment on a monthly basis, or to allow a Hunter college licensed clinical social worker conduct monthly mental health assessments. Unlike students that do not have a disability or a record of disability, or are not regarded as having a disability, Doe is subject to eviction upon two weeks notice for failure to comply with these conditions. 52. Although the imposition of these conditions constitutes further discrimination in violation of the Fair Housing Act, the Americans with Disabilities Act and the Rehab Act, in order to obtain readmission to the dormitory, Plaintiff signed the agreement on January 28, 2005. Plaintiff Doe was allowed to move back into the Dormitory on January 29th, 2005.
16

53. The parties agreed that by signing the agreement, Doe did not waive any rights under the Fair Housing Act, the Rehabilitation Act or the Americans with Disabilities Act.
54. Since January 29, 2005, although Ms. Doe has been in the dormitory and has complied with the conditions, she continues to suffer negative effects from her previous eviction.
55. As a result of defendants' unlawful, intentional, and willful actions described above, Ms. Doe has suffered, continues to suffer, and will in the future suffer, great and irreparable loss and injury, including but not limited to humiliation, embarrassment, emotional distress, and discrimination in participation in the services, programs, and activities at Hunter College, and the deprivation of her right to equal housing opportunities due to handicap or perceived handicap. In evicting Doe from the dormitory residence, excluding her from the residence for the summer and Fall semesters, and conditioning her re-admission on unlawful terms, Defendants intentionally discriminated against Doe based on her disability, her record of disability or perceived disability. Defendants’ policies and actions also have a disparate impact on persons who suffer from mental illness. Defendants’ policies do not further, in theory or practice, a legitimate bona fide governmental interest and no alternative would serve the interest with less discriminatory effect. Finally, Defendants’ refusal to provide an accommodation in its rules, policies, practices or services constitutes a separate violation of Ms. Doe’s rights.
FIRST CAUSE OF ACTION VIOLATION OF 42 U.S.C. § 3604(f): DISCRIMINATION OR MAKE UNAVAILABLE A DWELLING
17

56. Plaintiff repeats the allegations of all of the above paragraphs as if fully set forth herein.
57. The Defendants' actions and practices described above violate the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 et seq. and in particular have violated the Plaintiffs rights under 42 U.S.C. § 3604(f) by discriminating in the rental or otherwise making unavailable or denying a room in the dormitory to Plaintiff Doe because of her handicapped status; and by discriminating in the terms, conditions or privileges of rental of a dwelling and in the provision of services or facilities in connection with such dwelling because of Plaintiff Doe's handicapped status. Defendants’ actions - evicting Doe from the dormitory residence, excluding her from the residence for the summer and Fall semesters, and conditioning her re-admission on unlawful terms - constitute intentional discriminatory treatment based on Plaintiff Doe’s disability. The disparate impact of Defendants’ actions violate the Fair Housing Act in that Defendants’ policies do not further, in theory or practice, a legitimate bona fide governmental interest and no alternative would serve the interest with less discriminatory effect.
58. As a result of Defendants' violations of the Fair Housing Amendments Act, Plaintiff has been injured, as detailed above.

SECOND CAUSE OF ACTION VIOLATION OF 42 U.S.C. § 3604(f): FAILURE TO PROVIDE
REASONABLE ACCOMMODATION

59. herein.

Plaintiffs repeat the allegations of the above paragraphs as if fully set forth

18

60. Plaintiff Doe's request for a reasonable accommodation with regard to Defendants' rules, policies, practices and services constituted a request for a reasonable accommodation under the Fair Housing Amendments Act, 42 U.S.C. § 3604(f)(3)(B). Plaintiff Doe's request to return to the dormitory for the Fall 2004 semester constituted a request for a reasonable accommodation under the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(B).
61. Defendants’ failure to consider Plaintiff’s application for readmission to the dormitory for Fall 2004 and their decision to deny her readmission amount to a failure to accommodate Plaintiff’s disability.
62. Defendants' decision to conditionally readmit Plaintiff to the dormitory for the Spring 2005 Semester does not constitute an effective accommodation of Plaintiff’s disability. Rather, the conditions imposed on her constitute further discrimination on the basis of disability. Plaintiff agreed to the conditions, without prejudice to her right to contest their legality, because readmission to the dormitory was an essential component of improving her mental health and ensuring her continued high academic standing.
63. The accommodations Plaintiff requested, through counsel, in July 2004 were reasonable and were necessary to afford Ms. Doe equal opportunity to housing at Hunter College.
64. The accommodations proposed would not have imposed an undue financial or administrative burden on the Defendants and did not require a fundamental alteration in the nature of their programs.
65. Defendants, individually, and/or through the actions of their agents, have violated the Plaintiff's rights under 42 U.S.C. § 3604(f)(3)(B) by denying Ms. Doe's
19

request for a reasonable accommodation and as a result, have excluded her based upon fear, speculation and stereotype about her disability.
66. As a result of Defendants' failure to provide reasonable accommodation in violation of the Fair Housing Amendments Act, Plaintiff has been injured, as detailed above.
THIRD CAUSE OF ACTION Violation of the Americans with Disabilities Act of 1990 67. Plaintiff repeats the allegations of all of the above paragraphs as if fully set forth herein. 68. The Defendants' actions and practices described above violate Title II of the Americans With Disabilities Act of 1990, as amended, 42 U.S.C. § 12132 et seq. In particular, the Defendants' actions and practices described above constitute unlawful discrimination under 42 U.S.C. § 12131 and 42 U.S.C. § 12132, in that Defendant Hunter College is a public entity subject to Title II of the ADA, and Defendants Raab and Ayravainen are responsible for administering a public entity subject to Title II of the ADA. Defendants have discriminated against Plaintiff Doe by excluding her from participation in and denying her the opportunity to participate in or benefit from their programs, services and activities. Defendants have treated Plaintiff Doe unequally to students that are not disabled, do not have a history of or are not regarded as disabled. They have also used criteria and methods of administration that have the effect of subjecting her to discrimination on the basis of disability or perceived disability, and that have the purpose or effect of defeating or substantially impairing the accomplishment of the objective of its program with respect to individuals with disabilities and in particular
20

with respect to Plaintiff Doe. Additionally, Defendants have failed to provide a reasonable accommodation under the Americans With Disabilities Act that would enable Plaintiff meaningful access to Defendants’ services.
69. As a result of Defendants' violations of the Americans With Disabilities Act, Plaintiff has been injured, as detailed above.
FOURTH CAUSE OF ACTION Violation of Section 504 of the Rehabilitation Act of 1973 70. Plaintiff repeats the allegations of all of the above paragraphs as if fully set forth herein. 71. The Defendants' actions and practices described above violate Section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794 et seq. In particular, the Defendant Hunter College is a college or university receiving Federal financial assistance; Defendants Raab and Ayravainen are responsible for administering a public entity which operates programs and activities receiving federal funds for purposes of Section 504 of the Rehabilitation Act; and their actions and practices described above have excluded Plaintiff from participation in and denied her the benefits of their programs, services, and activities because of her disability or perceived disability. Defendants have subjected Plaintiff to discrimination on the basis of her disability or perceived disability. They have also failed to provide Plaintiff Doe reasonable accommodation and have treated her unequally to students that do not have a history of or are not perceived as disabled. Defendants have also used criteria and methods of administration that have the effect of subjecting Plaintiff Doe to discrimination on the basis of disability or perceived disability, and that have the purpose or effect of defeating
21

or substantially impairing the accomplishment of the objective of its program with respect to individuals with disabilities and in particular with respect to Plaintiff Doe.
72. As a result of Defendants' violations of Section 504 of the Rehabilitation Act of 1973, Plaintiff has been injured, as detailed above.
PRAYER FOR RELIEF WHEREFORE, Plaintiff prays:
(a) That the Court declare the actions of the Defendants complained of herein to be in violation of the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 et seq.; and Title II of the Americans With Disabilities Act of 1990, as amended, 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act of 1973.
(b) That the Defendants, their agents, employees, and successors be permanently enjoined from discriminating on the basis of handicapped status against Plaintiff or any persons in violation of the Fair Housing Amendments Act of 1988, or Title II of the Americans With Disabilities Act of 1990, as amended; or Section 504 of the Rehabilitation Act of 1973.
(c) That Defendants be ordered to restore Plaintiff to a dormitory room in the Brookdale Residence Hall immediately, without discriminatory conditions.
(d) That the Defendants be ordered to take appropriate affirmative actions to ensure that the activities complained of above are not engaged in again by them;
(e) That appropriate compensatory and punitive damages be awarded to Plaintiff and against the Defendants;
(f) That Plaintiffs be awarded their costs and reasonable attorneys' fees in this action; and
22

(g) That Plaintiff be awarded such other further relief as the Court deems just and proper.
JURY DEMAND Pursuant to Fed. R. Civ. P. 38(b), trial by jury is demanded on all issues.

Dated: September , 2005

Respectfully submitted,
S/____________________ David Goldfarb (DG8861)
Ira Salzman (IS1308) Goldfarb Abrandt Salzman & Kutzin LLP 350 Fifth Ave. Suite 1100 New York, NY 10118 (212) 387-8400
Michael Allen Karen Bower Bazelon Center for Mental Health Law 1101 15th Street, N.W., Ste 1212 Washington, D.C. 20005-5002 202/467-5730

23

 
 United States District Court For the Southern District of New York -------------------------------------------------------------------------------X Jane Doe

Plaintiff vs.
Hunter College of the City University of New York, Jennifer Raab, and Eija Ayravainen,

04 cv 6740 (SHS) ECF CASE

Defendants --------------------------------------------------------------------------------X

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO A MOTION TO DISMISS

DAVID GOLDFARB, ESQ. IRA SALZMAN, ESQ. Goldfarb Abrandt Salzman & Kutzin LLP Attorneys for Plaintiff 350 Fifth Ave., Suite 1100 New York, NY 10118
MICHAEL ALLEN, ESQ. KAREN BOWER, ESQ. Bazelon Center for Mental Health Law 1101 15th Street, N.W., Ste 1212 Washington, D.C. 20005-5002
Attorneys for Plaintiff
Dated: November 15, 2004

Table of Contents

Pages

Table of Authorities……………………………………………………………………….ii

Preliminary Statement………………………………………………….………………….1

Facts……………………………………………………………………………………….3

Argument…………………………………………………………………………...……..3

Standard of Review………………………………………………………………..3

Statutory Scheme………………………………………………………………….3

Point I

The Acceptance of Federal Funds By Hunter College After September 25, 2001 Constitutes a Waiver of Eleventh Amendment Immunity for Proceedings Brought under § 504 of The Rehabilitation Act……………………………………….…5

Point II

Plaintiff Has Standing Under the Fair Housing Amendments Act..……………………………………………………………....10

Point III

Plaintiff States a Claim Under § 504 of the Rehab Act, Title II of the ADA and the Fair Housing Act……….…………………..15

A. Plaintiff is “Otherwise Qualified” for Residence in the Hunter College Dormitory……………………………………….15

B. Defendants Have Engaged in Discrimination on the Basis of Disability…………………...…………….……………..21

Conclusion…...…………………………………………………………………………..25

Table of Authorities

CASES

Pages

Anonymous v. Goddard Riverside Community Center, Inc., 1997 U.S. Dist. LEXIS 9724………………………………………………...15, 16

Apfel v. Prudential Bache Securities Inc., 81 N.Y. 2d 470 (1993) ………………………………………...………………...13

Atkins v. County of Orange, 251 F. Supp. 2d 1225 (D.N.Y., 2003)……………………………………………21

Barbour v. Washington Metro Area Transit Authority, 374 F. 3d 1161 (D.C. Cir. 2004)………………………………………………..7, 8

Barnes v. Gorman, 536 U.S. 181, 187 (2002)………………………………………………………….6

Baxter v. Belleville, 720 F. Supp. 720, 735 (D. Ill. 1989)……………………………………………..12

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001)…………………………………………………………….6, 8

Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 143 (2d Cir. 1995)………………………………………………….23

Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir., 1993)………………………………………………..24

Cardew v. New York State Department of Correctional Services, 2004 U.S. Dist. LEXIS 7670 (S.D.N.Y. 2004)…………………………………..10

Cason v. Rochester Housing Authority, 748 F.Supp. 1002 (W.D.N.Y. 1990)……………………………………………..17

Cherry v. University of Wis. Sys. Bd. of Regents, 265 F.3d 541, 553-555 (7th Cir. 2001)……………………………………………6

City of Boerne v. Flores, 521 U.S. 507, 527-529 (1997)…………………………………………………….8

City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995)……………………………………………………………...12

ii

Denmeade v. King, 2002 U.S. Dist. LEXIS 17324 (W.D.N.Y. 2002)………………………………..10
Doe v. New York University, 666 F. 2d 761, 776 (2d Cir. 1981)……………………………………..…16, 18, 19
Flight v. Gloeckler, 68 F.3d 61 (2d Cir. 1995)...…………………….…………………………….24, 25
Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98 (2nd Cir. 2001)………………………………………………7, 8, 9,10
Garrett v. University of Alabama at Birmingham Board of Transfer, 344 F.3d 1288…………………………………………………………………8, 10
Hack v. President & Fellows of Yale Coll., 237 F.3d 81 (2d Cir. 2000)………………………………….……………………24
Hargrave v. Vermont, 340 F. 3d 27, 35 (ADA)………………………………………………………….20
Harris v. New York State Department of Health, 202 F.Supp.2d 143 (S.D.N.Y. 2002)…………………………………………….10
Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128, 1140 (9th Cir. 2001)………………………………………...23, 24
International Audiotext Network v. American Tel. & Tel. Co., 62 F.3d 69, 71-72 (2d Cir., 1995)…………………………………………………3
Jainniney v. Maximum Independent Living, No. 00CV0879 (N.D. Ohio Feb. 9, 2001)………………………………………..18
Jim C. v. Arkansas Dep’t of Educ., 235 F.3d 1079, 1081 (8th Cir. 2000)……………………………………………...7
Johnson vs. Southern Connecticut University, 2004 U.S. Dist. LEXIS 21084 (D.C. Ct. 2004)…………………………………...9
J.S. v. Attica Cent. Schs., 386 F.3d 107 (2d Cir. 2004)………………………………………………….……4
Kilcullen v. New York State Department of Labor, 2003 U.S. Dist. LEXIS 3826 (N.D.N.Y. 2003)………………………………….10
iii

Koslow v. Pennsylvania, 302 F.3d 161, 172 (3d Cir. 2002)…………………………………………………7
Laporta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 768-769 (D. Mich. 2001)………………………………….23
Litman v. GeorgeMason Univ., 186 F.3d 544 (4th Cir. 1999)…………………………………………………...6, 7
Lovell v. Chandler, 303 F.3d 1039, 1051-1052 (9th Cir. 2002)………………………………………..7
M.A. v. State Operated School District, 344 F. 3d 335, 349-351 (3rd Cir. 2003)……………………………………………8
McKenzie v. Dovala, 242 F.3d 967, 974 (10th Cir. 2001)………………………………………………23
N.A.A.C.P. v. American Family Mutual Insurance Co., 978 F.2d 287 (7th Cir. 1992) ..……………………….………………………….11
Niederhauser v. Independence Square Housing, 4 Fair Hous.BFair Lending (Aspen L. & Bus.) & 16,305, at 16,305.2, 16,305.6 (N.D. Cal. 1998)…………………………...17,18
Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir. 1998)……………………………………………...24
Nihiser v. Ohio E.P.A., 269 F.3d 626, 628 (6th Cir. 2001)………………………………………………...7
Pace v. Bogalusa City School Board, 339 F. 3d 348 (5th Cir. 2003)……………………………………………………..8
P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990)……………………………………………..25
Robinson v. Kansas, 295 F.3d 1183, 1189-1190 (10th Cir. 2002)………………………………………7
Rodriguez v. City of New York, 197 F.3d 611, 618 (2nd Cir. 1999)……………………………………………16, 25
Roe v. Housing Authority of Boulder, 909 F.Supp. 814 (D.Colo. 1995)(FHA)………………………………………….20
iv

Sacca v. Buffalo State College, 2004 U.S. Dist. LEXIS 9134 (W.D.N.Y. 2004)…………………………………10
Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996)……………………………………………………..16
Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999)…………………………………………………….6
School Bd. Of Nassau County v. Arline, 480 U.S. 273 (1987) …….……………….………….……………………….22, 23
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73 (1996)………………………………………………………...8
South Dakota v. Dole, 483 U.S. 203, 207 (1987)………………………………………………………….6
Spaulding v. Benenati, 57 N.Y. 2d 1244 (1982) ..……………………….……………………………….12
Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000)………………………………………..……….7
Teahan v. Metro-North C. R. Co., 951 F.2d 511, 517 (2d Cir. 1991)………………………………………………...23
Tennessee v. Lane, 124 S.Ct. 1978, 158 L. Ed. 2d 820 (2004)……………………………………...…6
Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565 (2d Cir. 2003)……………………………………………...…..21, 24
Turning Point v. City of Caldwell, 74 F.3d 941, 1996 WL 29263 (9th Cir. 1996)…………………………………...12
United States v. Hughes Memorial Home, 396 F. Supp. 544, 549 (D. Va., 1975)……………………………………………12
Villegas v. Sandy Farms, Inc., 929 F. Supp. 1324, 1328-1329 (D. Or. 1996)……………………………………12
Wahl v. Barnum, 116 N.Y. 87 (1899) …………………………………..………………………….13
v

Weiner v. McGraw-Hill Inc., 57 N.Y. 2d 458 (1982) …..……………………….………………………….12, 13

Woods v. Foster, 884 F. Supp. 1169 (D. Ill., 1995) ………………………...……………….…..…11

CONSTITITION

Pages

Eleventh Amendment…………………………………………………………….…passim

STATUTES, CODES AND RULES

Pages

Fed. R. Civ. P. § 12(b)(1)………………………….……………….……………………..4 Fed. R. Civ. P. § 12(b)(6)……………….……………….……………….……………….3

29 U.S.C. § 701, et seq., Rehabilitation Act of 1973………………….…………… passim 29 U.S.C. § 705(20)…………………………………………………..……...16, 18 29 U.S.C. § 794 (§ 504 of the Rehabilitation Act ) …...……………………...4, 15

42 U.S.C. § 12132, Americans with Disabilities Act (“ADA”)…………………… passim 42 U.S.C. § 12102(2)..…………………………………………………….…16, 18 42 USCS § 12131………………………….……………….…………………....16 42 U.S.C. §12131(2)..…………….……………….……………………………..16

42 U.S.C. § 3601, et seq., Fair Housing Act………………………………………...passim 42 U.S.C. § 3602(a)……………………………………………………………...12 42 U.S.C. § 3602(b)……………………………………………………………...12 42 U.S.C. § 3602(c)……………………………………………………………...12 42 U.S.C. § 3602(d)……………………………………………………………...12 42 U.S.C. § 3602(e)……………………………………………………………...12 42 U.S.C. § 3602(f)……………………………………………………………....12 42 U.S.C. § 3602(g)……………………………………………………………...12 42 U.S.C. § 3602(h)……………………………………………………...12, 16, 18 42 U.S.C. § 3602(i)………………………………………………………….…...12 42 U.S.C. § 3602(j)….…………………………………………………………...12 42 U.S.C. § 3602(k)……………………………………………………………...12 42 U.S.C. § 3602(l)….…………………………………………………………...12 42 U.S.C. § 3602(m)...…………………………………………………………...12 42 U.S.C. § 3602(n)……………………………………………………………...12 42 U.S.C. § 3602(o)……………………………………………………………...12 42 U.S.C. § 3604(a)……………………………………………………………….5 42 U.S.C. § 3604(b)………………………………………………………….……5 42 U.S.C. § 3604(e)..………………………………………………….…12, 13, 14 42 U.S.C. § 3604(f)………………………………………………………………..5 42 U.S.C. § 3604(f)(1)…………………………………………………………...12 42 U.S.C. § 3604(f)(2)…………………………………………………………...12

vi

42 U.S.C. § 2000d-7……………..……………….……………….………………………6 H.R.Rep. No. 711, 100th Cong., 2d Sess. 18,
reprinted in 1988 U.S. Code Cong. & Admin. News……………………………..5 Garrett Lee Smith Memorial Act of 2004, Pub. L. No. 108-355, 118 Stat. 1404
§ 2 (8) …………………………….………………………………….…………..24 24 C.F.R. §100.202(d)…………………………………………………………………...20 28 C.F.R. Pt. 35, App. A, § 35.104………………………………………………………20
vii

United States District Court For the Southern District of New York -------------------------------------------------------------------------------X Jane Doe

Plaintiff vs.
Hunter College of the City University of New York, Jennifer Raab, and Eija Ayravainen,

04 cv 6740 (SHS) ECF CASE

Defendants --------------------------------------------------------------------------------X
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO A MOTION TO DISMISS

Plaintiff Jane Doe submits this memorandum opposition to Defendants’ motion to

dismiss her amended complaint.

Preliminary Statement

Plaintiff has sued Defendants Hunter College of the City of New York

(“Hunter”), Jennifer Raab and Eija Ayvarainen (collectively “Defendants”) under the Fair

Housing Amendments Act of 1988 (“FHA”), Title II of the Americans with Disabilities

Act (“ADA” or “Title II”), and Section 504 of the Rehabilitation Act of 1973 (“Rehab

Act” or § 504) for illegally evicting her from dormitory housing because of her disability.

Plaintiff seeks injunctive relief under all three statutes and money damages under the

Rehab Act.

The Rehab Act, enacted pursuant to Congress’ Article I Spending Power,

explicitly states that States which accept federal funds waive their Eleventh Amendment

sovereign immunity in suits for money damages. Every case in the Second Circuit has

found that states that accepted federal funds since September 2001, have waived their

sovereign immunity with regard to cases brought under § 504. Additionally, every

Circuit Court that has considered the issue has found that suits for monetary damages are allowed under the Rehab Act. Defendants cite no authority to the contrary. Nor can they.
Plaintiff also has standing to sue under the FHA since the statute is broadly construed and not limited to individuals who pay monthly rent or purchase property. Rather, the statute specifically prohibits acts which “otherwise make unavailable or deny” the right to use property because of a handicap. Thus, it applies to situations such as the instant case, where individuals pay no rent, or provide other types of consideration in lieu of rent.
Plaintiff has met her burden of making a prima facie case of discrimination under all three statutes. Plaintiff alleges, and Defendants do not challenge that Plaintiff is a person with a disability, Major Depressive Disorder and Attention Deficit Hyperactivity Disorder. Whether Plaintiff is “otherwise qualified” for housing in the residence dormitory despite her handicap is a question of fact, and is not properly resolved in a motion to dismiss, especially where Plaintiff has not had an opportunity to conduct discovery.
However, viewing the facts in the light most favorable to Plaintiff, Plaintiff is otherwise qualified for housing in the residence hall, which is provided as a benefit to all students of the Hunter College Honors Program. That Plaintiff be capable of “independent living” is not an essential requirement of eligibility for dormitory residence. Nor can it be, as any requirement that a resident be capable of “independent living” is inherently discriminatory and illegal. Nor is a student’s ability to withstand the supposed stressors of dormitory life an essential requirement. The only essential requirement of
2

eligibility for dormitory residence, is gaining admission to and remaining a member of, the Hunter College Honors Program.
Defendants do not allege that they excluded Plaintiff from the residence hall as a “threat to others,” as there exists no evidence that Plaintiff is such a threat. Any alleged threat to others would have to be real and imminent, based upon an individualized assessment of the precise nature and likelihood of the risk posed by the plaintiff, and supported by a reasonable medical judgment. Nor can Defendants exclude Plaintiff from the residence hall based upon her alleged suicide attempt and threat to herself, as harm to self is not a valid consideration under Title II, the FHA or the Rehab Act.
Defendants’ blanket policy which evicts residents of the residence hall for acts of self harm and requires that persons who attempt suicide must be evaluated by a psychologist before returning to the residence hall is intentionally discriminatory. The law does not distinguish between discrimination on the basis of disability and disabilitybased conduct. Thus, Defendants’ exclusion of Plaintiff because of her behavior, is tantamount to exclusion because of her disability. Further, because self-harm and suicidal ideation is generally the result of mental disability, the policy has a disparate impact on persons who suffer from mental illness.
Facts Plaintiff relies on the facts as more fully set forth in her Amended Complaint.
Argument Standard of review
In considering a motion to dismiss a complaint pursuant to Fed. R. Civ. P. §12(b)(6) the court takes all the plaintiff's factual allegations as true and should dismiss
3

the action only where no set of facts could support plaintiff's claim. International Audiotext Network v. American Tel. & Tel. Co., 62 F.3d 69, 71-72 (2d Cir., 1995). The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Id. Similarly on a motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. § 12(b)(1) the court must accept as true all material factual allegations in the complaint, but it will not draw inferences from the complaint favorable to plaintiffs. It may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but it may not rely on conclusory or hearsay statements contained in the affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107 (2d Cir. 2004). Statutory Scheme
Section 504 of the Rehabilitation Act provides, in relevant part, that "no otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from 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.
Title II of the ADA extends the prohibition of discrimination to all actions, services, programs or activities of state and local governments regardless of the receipt of federal financial assistance. 42 U.S.C. §12132. Thus, the prohibitions of Title II and § 504, have been considered co-extensive.
Title VIII of the Civil Rights Act of 1968, known as the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA") provides that "it shall be unlawful to refuse to sell or rent ... or otherwise make unavailable or deny, a dwelling to any person because of ...
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disability." 42 U.S.C. § 3604(a). The FHA also prohibits discrimination "in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of ... disability." 42 U.S.C. § 3604(b).
Section 3604(f) of the FHA prohibits discrimination "against any person in the terms,
conditions or privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection with such dwelling, because of a handicap of that person." 42
U.S.C. § 3604(f).
The 1988 amendments to the FHA were modeled on the Rehabilitation Act of
1973. The legislative history of the 1988 amendments provides that the act "uses the
same definitions and concepts from [the Rehabilitation Act of 1973]. In the 1988 Fair
Housing bill, Congress also included protections for individuals with handicaps."
H.R.Rep. No. 711, 100th Cong., 2d Sess. 18, reprinted in 1988 U.S. Code Cong. &
Admin. News, 2178.
The Fair Housing Amendments Act, like § 504 of the Rehabilitation Act of 1973, as amended, is a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream. It repudiates the use of stereotypes and ignorance, and mandates that persons with handicaps be considered as individuals. Generalized perceptions about disabilities and unfounded speculations about threats to safety are specifically rejected as grounds to justify exclusion. Id. at 2179.
Point I The Acceptance of Federal Funds By Hunter College After September 25, 2001 Constitutes a Waiver of Eleventh Amendment Immunity for Proceedings Brought under § 504 of The Rehabilitation Act
Defendants suggest that Plaintiff seeks damages under the ADA, the Rehab Act
and FHA. Defendants have misapprehended Plaintiff’s claims. Plaintiff is only seeking
damages under the Rehab Act. While Plaintiff does not concede that damages are
5

unavailable under Title II of the ADA and the FHA, Plaintiff’s damage claim is predicated on the Rehab Act. Thus, Plaintiffs have not responded to Defendants' arguments in their Points I.A. and I.C. In addition, Plaintiff is entitled to continue her claims for injunctive relief under the FHA, the ADA and the Rehab Act.
As interpreted by the Supreme Court, the Eleventh Amendment restricts the right of citizens of the United States to sue states for damages in federal courts. See e.g. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). However these restrictions are not absolute.
Congress has the right to abrogate Eleventh Amendment immunity of the states if it does so clearly and explicitly, and acts pursuant to a valid grant of constitutional authority. Congress can do this pursuant to the power it is granted under § 5 of the Fourteenth Amendment. Tennessee v. Lane, 124 S.Ct. 1978, 158 L. Ed. 2d 820 (2004) (Title II of the ADA constitutes a valid exercise of Congress’ authority under § 5 of the Fourteenth Amendment, in the context of access to the courts).
Pursuant to its power under the Spending Clause of Article I, Congress can also condition the receipt of federal funds by a state on a waiver by that state of its Eleventh Amendment immunity. South Dakota v. Dole, 483 U.S. 203, 207 (1987). In order for such a waiver to be valid the waiver by the state must be a “knowing” waiver. Barnes v. Gorman, 536 U.S. 181, 187 (2002).
Congress has specifically stated that states which accept federal funds shall not be immune under the Eleventh Amendment from suit in federal court for a violation of §504 of the Rehabilitation Act. See 42 U.S.C. § 2000d-7. Other courts of appeals have held
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the same with respect to the other statutes identified in § 2000d-7.1 Eight Circuit Courts
have held that by accepting federal funds, states have knowingly and voluntarily waived sovereign immunity under § 504.2
Defendants argue that “because § 504 of the Rehab Act and Title II of the ADA
offer essentially the same protections, the Second Circuit has held that the statutes are
subject to the same Eleventh Amendment analysis.” Defendants' Memorandum in
Support of Motion to Dismiss (hereafter Defendants' Memorandum) at 11. In other
words Defendants argue that the Second Circuit has held that the Eleventh Amendment
analysis of a statute such as Title II of the ADA, which abrogates Eleventh Amendment
immunity of the states pursuant to the § 5 of the Fourteenth Amendment is the same as
the Eleventh Amendment analysis of a statute such as § 504, which pursuant to the
Spending Power of Article One requires states to waive Eleventh Amendment immunity
as a condition of receiving federal funds. Defendants are incorrect.
The case that Defendants rely upon, but misconstrue, is Garcia v. S.U.N.Y. Health
Sciences Center, 280 F.3d 98 (2nd Cir. 2001). Seven District Courts in the Second
Circuit have interpreted Garcia to hold that as of September 25, 2001, states are on notice
that acceptance of federal funds after that date constitutes a "knowing waiver" of
Eleventh Amendment immunity from litigation under §504. In Garcia the Second
1 See, e.g., Cherry v. University of Wis. Sys. Bd. of Regents, 265 F.3d 541, 553-555 (7th Cir. 2001) (Title IX); Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999) (Title VI), rev’d in part on other grounds, 532 U.S. 275 (2001); Litman v. GeorgeMason Univ., 186 F.3d 544 (4th Cir. 1999) (Title IX), cert. denied, 528 U.S. 1181 (2000). 2 Garcia v. S.U.N.Y Health Sciences Center 280 F. 3d 92 (2nd Cir. 2001); Barbour v. Washington Metro Area Transit Authority 374 F. 3d 1161 (D.C. Cir. 2004); Lovell v. Chandler, 303 F.3d 1039, 1051-1052 (9th Cir. 2002), cert. denied, 123 S. Ct. 871 (2003); Koslow v. Pennsylvania, 302 F.3d 161, 172 (3d Cir. 2002), cert. denied, 123 S. Ct. 1353 (2003); Robinson v. Kansas, 295 F.3d 1183, 1189-1190 (10th Cir. 2002), petition for cert. pending, No. 02-1314; Nihiser v. Ohio E.P.A., 269 F.3d 626, 628 (6th Cir. 2001), cert. denied, 536 U.S. 922 (2002); Jim C. v. Arkansas Dep’t of Educ., 235 F.3d 1079, 1081 (8th Cir. 2000) (en banc), cert. denied, 533 U.S. 949 (2001); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000).
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Circuit discussed the congressionally mandated waiver of Eleventh Amendment immunity from suits brought under § 504 by states that receive federal funds in the context of the constitutional requirement that any waiver of Eleventh Amendment immunity must be “knowing.” The Second Circuit held that from September 1993 until August 1995 the State of New York did not make a knowing waiver of its Eleventh Amendment immunity under § 504, even though it accepted federal funds during that time period, because at that time it believed that the ADA abrogated the state’s sovereign immunity by congressional mandate. Garcia, 280 F.3d at 114. The Second Circuit held that since the proscriptions of the ADA and Section 504 are virtually identical, the state’s reliance on its belief that there was a congressionally mandated waiver of immunity under the ADA meant that it had no cause to consider when it accepted federal funds that it was waiving Eleventh Amendment immunity to litigation brought under § 504. Therefore at the time it accepted these federal funds it did not make a knowing waiver of immunity to litigation brought under Section 504 . Garcia, 280 F.3d at 114.3
However, after August 1995 a number of cases were decided by the United States Supreme Court which brought into question the constitutionality of the congressionally imposed abrogation of Eleventh Amendment immunity in the ADA. See e.g. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73 (1996); City of Boerne v. Flores, 521 U.S. 507, 527-529 (1997); and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001). Garrett was particularly significant in this respect. It held that the
3 It should be noted that no other circuit that has considered that issue has agreed with the Garcia Court that a belief that the ADA abrogated Eleventh Amendment immunity meant that any waiver of immunity under § 504 was not knowing. Barbour v. Washington Metro Area Transit Authority 374 F. 3d 1161 (D.C. Cir., 2004); Doe v. Nebraska 345 F. 3d 593, 601-602 (8th Cir. 2003); Garrett v. University of Alabama at Birmingham Board of Transfer (11th Cir 2003); M.A. v. State Operated School District 344 F. 3d 335, 349351 (3rd Cir. 2003). Cases in the Fifth Circuit have followed Garcia but the decisions have been vacated and are being heard en banc Pace v. Bogalusa City School Board 339 F. 3d 348 (5th Cir. 2003).
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abrogation of Eleventh Amendment immunity in Title I of the ADA (employment cases) was unconstitutional and left open the possibility that the abrogation of Eleventh Amendment immunity in Title II was also unconstitutional. These cases are particularly relevant because the Second Circuit in Garcia stated the following in a footnote.
We recognize that an argument could be made that if there is a colorable basis for the state to suspect that an express congressional abrogation is invalid, that the acceptance of funds conditioned on the waiver might properly reveal a knowing relinquishment of sovereign immunity. This is because a state deciding to accept funds would not be ignorant of the fact that it was waiving its possible claim to sovereign immunity. 280 F.3d at 114 n.4. This footnote is significant because the Second Circuit indicated that at the point in time where states had a “colorable basis” to “suspect” that congressional abrogation of Eleventh Amendment immunity in the ADA was unconstitutional, the acceptance of federal funds might constitute a knowing waiver of Eleventh Amendment immunity for the purpose of litigation brought under § 504. Since the decision of the Second Circuit in Garcia seven District Court cases in the Second Circuit have explored the meaning of this footnote. All of these cases agree that no later than September 25, 2001, the date Garcia was decided, states had a “colorable basis” to “suspect” that the congressional abrogation of Eleventh Amendment immunity under the ADA was invalid. All of these cases therefore conclude that states which accept federal funds after September 25, 2001, have made a knowing waiver of their sovereign immunity with regard to cases brought under § 504 because of events which occurred after that date. In some of the cases District Courts in the Second Circuit determined that the waiver of Eleventh Amendment immunity from suit under § 504 occurred if a state accepted federal funds after
9

September 25, 2001, the date that Garcia was decided.4 Other cases conclude that there is a waiver of sovereign immunity if a state accepted federal funds after February 21, 2001, which is the date that the United States Supreme Court decided Garrett.5
The Amended Complaint alleges that Hunter College accepted federal funds during the period of time when the events alleged in the complaint occurred. Since all of the events alleged in the complaint occurred after September 25, 2001, the complaint properly alleges that Hunter College has no Eleventh Amendment immunity for damage claims brought under § 504.
Point II Plaintiff Has Standing Under the Fair Housing Amendments Act Plaintiff has alleged "The Defendants' actions and practices … violate the Fair Housing Amendments Act … by discriminating in the rental or otherwise making unavailable or denying a room in the dormitory to Plaintiff [Doe] because of her handicapped status; and by discriminating in the terms, conditions or privileges of rental of a dwelling and in the provision of services or facilities in connection with such dwelling because of Plaintiff [Doe]'s handicapped status." Amended Complaint at ¶ 23. Defendants in their motion to dismiss claim that the FHA applies only to a sale or rental for consideration and since Plaintiff Doe does not "rent" her dormitory room, Plaintiff lacks standing under the FHA. Defendants' Memorandum at 13. Defendants rely on extrinsic evidence in Plaintiff's Affidavits on the Preliminary Injunction to argue that
4 Denmeade v. King, 2002 U.S. Dist. LEXIS 17324 (W.D.N.Y. 2002); Harris v. New York State Department of Health, 202 F.Supp.2d 143 (S.D.N.Y. 2002); and Johnson v. Southern Connecticut University, 2004 U.S. Dist. LEXIS 21084 (D.C. Ct. 2004). 5 Cardew v. New York State Department of Correctional Services, 2004 U.S. Dist. LEXIS 7670 (S.D.N.Y. 2004); Kilcullen v. New York State Department of Labor, 2003 U.S. Dist. LEXIS 3826 (N.D.N.Y. 2003); Sacca v. Buffalo State College, 2004 U.S. Dist. LEXIS 9134 (W.D.N.Y. 2004) (Magistrate decision).
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dormitory housing is free of charge and thus she is not a "buyer or renter" within the meaning of the FHA.
As demonstrated below, Plaintiff clearly satisfies the FHA definition of the term "to rent" in 42 U.S.C. §3602(e) because she has extended consideration for the right to occupy her dormitory room. In addition to barring discrimination in the sale or rental of dwellings, the statute specifically and repeatedly makes it unlawful to "otherwise make unavailable or deny" the right to use property because of a handicap. 42 U.S.C. § 3604 (f)(1), 42 U.S.C. § 3604 (f)(1)(B), 42 U.S.C. § 3604 (f)(2)(B). The Court in Woods v. Foster, 884 F. Supp. 1169, 1174-1175 (D. Ill., 1995), in dealing with a free homeless shelter states, "there is no reason to conclude that the scope of the FHA should be limited to those who pay for their own housing, rather than extended to all victims of the types of discrimination prohibited by the Act." Woods, 884 F. Supp at 1175.6 The Woods Court states that the argument that "otherwise make unavailable or deny" is limited to "sale or rental" is "precluded by the plain language of the FHA…." Id. at 1175.
Clearly this well reasoned approach applies here. That Plaintiff didn't pay rent in conventional terms does not foreclose a claim that Hunter College has made housing unavailable.7
In addition the definition in the statute of the term "to rent" includes transactions "for consideration" but does not exclusively mean transactions for consideration. 42
6 Contrary to Defendants' allegation that Woods can be distinguished because of a third party grant of funding, the court in Woods treats as a separate argument whether the "rent" definition requires that the consideration be paid by the occupant. Woods, 884 F. Supp at 1175. 7 In other contexts, courts have found that "otherwise make unavailable" has reach beyond the sale or rental for consideration. See e.g. N.A.A.C.P. v. American Family Mutual Insurance Co., 978 F.2d 287, 297-301 (7th Cir. 1992) (dealing with the provision of insurance), cert. denied, 124 L. Ed. 2d 247, 113 S. Ct. 2335 (1993).
11

U.S.C. 3602(e).8 See United States v. Hughes Memorial Home, 396 F. Supp. 544, 549
(D. Va., 1975)(finding that the FHA applies to a home for dependent, neglected or needy
children that does not engage in commercial sale or rental of residential facilities; “the
Act also reaches noncommercial activities, and that the [children’s] Home is prohibited
from discrimination even with respect to residents for whom no payment is made”);
Villegas v. Sandy Farms, Inc., 929 F. Supp. 1324, 1328-1329 (D. Or. 1996)(the FHA
applies to denial of cabins to migrant farm worker families who work for Defendant; “Thus, a dwelling need not be rented to fall under the purview of the FHA.”).9
Furthermore, Defendants err when they argue that Plaintiff has not provided
consideration, both within the meaning of New York law and 42 U.S.C. § 3604(e). If the
Court agrees with Defendants and looks beyond the allegation in the Complaint to
determine if Plaintiff was a renter, then it must look to the other allegations of Plaintiff's Declaration as to her consideration for her dormitory room.10 There is no question that
Plaintiff had a choice between a $1,000 annual stipend or a dormitory room. She chose
the latter. Her legal detriment – the consideration – was the $1,000 per year cost to her of
electing dormitory housing.
It is black letter New York law that parties to a transaction are permitted to make
their bargain, even if the consideration in question exchanged is grossly unequal or of
8 42 U.S.C. § 3602(e) states "'To rent' includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant." (emphasis added). It should be noted that some of the definitions in the statute use the term "means" [42 U.S.C. § 3602 (a), (b), (f), (g), (h), (j), (k), (l), (m) and (o)] while other definitions use the non-exclusive term "includes" [42 U.S.C. § 3602 (c), (d), (e) and (i)]. 9 See also Turning Point v. City of Caldwell, 74 F.3d 941, 1996 WL 29263 (9th Cir. 1996) (homeless shelters covered by the act); City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) (group homes for recovering alcoholics and drug addicts); Baxter v. Belleville, 720 F. Supp. 720, 735 (D. Ill. 1989)(a hospice for those suffering from Acquired Immune Deficiency Syndrome). 10 Defendants argue that for purposes of standing the Court may consider extrinsic material. See Defendants' Memorandum at 13 fn. 9.
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dubious value. Apfel v. Prudential Bache Securities Inc., 81 N.Y. 2d 470; 616 N.E. 2d 1095; 600 N.Y.S.2d 433 (1993); Weiner v. McGraw-Hill Inc., 57 N.Y. 2d 458, 443 N.E.2d 441, 457 N.Y. S. 2d 193 (1982); Spaulding v. Benenati, 57 N.Y. 2d 1244; 442 N.E.2d 1244; 456 N.Y.S.2d 733 (1982). Absent fraud or unconscionability, the adequacy of the consideration is not the proper subject of review under New York law. All that is required is that something of “real value in the eye of the law” be exchanged. Apfel, supra; Weiner; supra.
A seller does not even have to possess a property right in what is sold for an agreement to be supported by consideration. For example, relinquishment of a disputed claim provides consideration even if the claim was actually invalid. Wahl v. Barnum, 116 N.Y. 87; 22 N.E. 280 (1899). In other words, Plaintiff’s expectancy of receiving a stipend rather than dormitory housing, even though she arguably had no property right in the stipend absent the offer of same by Defendant, does not affect the adequacy of the consideration.
Plaintiff’s sacrifice of her stipend alone was sufficient consideration under New York law, and, therefore, under 42 U.S.C. § 3604(e). However, in addition, Defendants induced Plaintiff to forego other educational options in favor of attending Hunter College. Defendant benefited by these exchange of promises by obtaining as one of its students the Plaintiff, who Defendants coveted sufficiently for her academic achievements to offer her a package of benefits, including the stipend or free dormitory housing.
As is evidenced by Plaintiff Doe’s declaration of September 23, 2004, Plaintiff was a highly sought-after student who turned down her admission to a number of
13

prestigious institutions of higher learning, because of the overall package of inducements that she was offered as part of the Hunter College Honors Program. Plaintiff’s matriculation into Defendant institution in exchange for its promises, including dormitory housing, is a very real and substantial form of consideration.
Plaintiff’s having foregone educational opportunities elsewhere in reliance on Defendant’s offer of dormitory housing alone constitutes consideration under 42 U.S.C. § 3604(e).
Finally, the written terms of the contract that Plaintiff executed with Defendants also constitutes consideration. Among the promises that Plaintiff made to Defendant are for her to be enrolled in no fewer than 12 credits per semester while residing in dormitory housing (Section VII H. of the contract), to use the dormitory as her primary residence while classes are in session (Section V of the Contract), and to attend and sign in at monthly floor meetings (Section V of the Contract). By making these promises, Plaintiff loses her freedom regarding whether or not she maintains full-time student status, what she uses as her primary residence, and her ability to forego floor meetings. In turn, Defendants obtain what they desired from Plaintiff – namely her attendance as a full-time student at Hunter College, and her agreement to use the dormitory as her primary residence. This is a classic exchange of mutual promises and mutual legal detriment incurred by both promissor and promissee. In other words, these exchanged promises constitute further consideration for Defendant to provide dormitory housing to Plaintiff.
In short, Defendants' obligation to provide dormitory housing to Plaintiff is supported by legal consideration and subject to the protection of the Fair Housing Amendments Act.
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Plaintiff has alleged that Hunter College and its programs and activities receive federal financial assistance. Amended Complaint at ¶ 6. The receipt by Defendants of federal funds constitutes "consideration for Plaintiff's housing" under the FHAA.11
Plaintiff has standing to sue under the FHA in that Plaintiff's contract with Hunter College is subject to the protection of the FHA.
Point III Plaintiff States a Claim Under § 504 of the Rehab Act, Title II of the ADA and The Fair Housing Act A. Plaintiff is “Otherwise Qualified” for Residence in the Hunter College Dormitory Defendants correctly state the controlling standards for a prima facie case under §504 and the ADA. Defendants' Memorandum at 14-15. For purposes of their motion, however, they have waived reliance on claims that Plaintiff does not have a disability, that Hunter College is not a recipient of federal funds for purposes of §504, and that Hunter College is not a “public entity” for purposes of the ADA. Defendants rely on the circular argument that Plaintiff is not “otherwise qualified” for residence in the dormitory under § 504 because the rules and policies established for the Hunter College dormitory program bar people whose depression may result in a suicide attempt. Further, Defendants suggest that the very conditions that qualify Plaintiff as a person with a disability disqualify her for readmission to the dormitory. Defendants' Memorandum at 18. Under § 504, Plaintiff must demonstrate that she is “otherwise qualified [to participate in a] program or activity receiving Federal financial assistance.” 29 U.S.C. §794. Under the ADA, she must show that she is a “qualified individual with a
11 Defendants correctly state that the Court in Anonymous v. Goddard Riverside Community Center, Inc., 1997 U.S. Dist. LEXIS 9724, assumed (but did not decide) for the purpose of the motion before it that this
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disability.” 42 U.S.C. §12131(2). The Second Circuit has held that “Section 504 of the Rehabilitation Act and the ADA impose identical requirements….” Rodriguez v. City of New York, 197 F.3d 611, 618 (2nd Cir. 1999). Therefore, this court should apply the same analysis to Plaintiff’s claims under each statute.12
After Plaintiff makes out a prima facie case that she is “otherwise qualified,” the “burden shifts to the institution…to rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to [The exclusions from the program].” Doe v. New York University, 666 F. 2d 761, 776 (2d Cir. 1981) There are clearly issues of fact with regard to the “otherwise qualified” status of Plaintiff, making it inappropriate to dismiss her claims as a matter of law. She has alleged sufficient facts to make out a prima facie case, and this case should be permitted to proceed through discovery to test those allegations. For purposes of the motion to dismiss, Plaintiff “will have [her] allegations taken as true, and will receive the benefit of the doubt when [her] assertions conflict with those of the movant." Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996) (internal quotation marks omitted).
Plaintiff brings this action under § 504, the ADA and the FHA, all three of which use identical definitions of disability. Compare 29 U.S.C. §705(20)(§ 504) with 42 U.S.C. §12102(2)(ADA) and 42 U.S.C. §3602(h) (FHA). The amended complaint alleges that Plaintiff has a disability, that she has a record of having a disability, and that
constituted consideration for Plaintiff's housing. Id. at n4. 12 "The term 'qualified individual with a disability' means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices … meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 USCS § 12131
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Defendants regard her as having a disability. Amended Complaint, ¶¶ 5, 8, 10, 21.13 These are the three alternate grounds to establish disability under all three statutes.
Defendants suggest Plaintiff is not “otherwise qualified” because, they allege, she is incapable of performing “functions [that] are plainly integral to the independent living required in a dormitory.” Defendants' Memorandum at 18. But, surely, the question of which “functions” are essential to qualification for dormitory living is one of fact that cannot be resolved on a motion to dismiss.
Defendants rely on an “independent living” criteria which, itself, discriminates on the basis of disability. Federal courts have routinely held that such “independent living” requirements are illegal under the Fair Housing Act, whose definition of disability and whose proscription of discrimination on the basis of disability are virtually identical to §504 and the ADA.14
Beginning in 1990 with Cason v. Rochester Housing Authority, 748 F. Supp. 1002 (W.D.N.Y. 1990) a series of cases has interpreted the FHA’s ban on handicap discrimination to prohibit housing providers from imposing a requirement that their tenants be capable of “independent living.” In rejecting the defendant’s argument that its “ability to live independently” requirement should be upheld because the Authority had only relied on it to turn down a small fraction of handicapped applicants (17 out of 276), the Cason opinion pointed out that this requirement still had a substantial discriminatory effect on handicapped persons because “no non-handicapped persons” were denied housing on this basis. Id. at 1007. See also Niederhauser v. Independence Square
13 The amended complaint alleges that Plaintiff is substantially limited in the major life activities of sleeping, eating and interacting with others. The complaint does not allege, as Defendants suggest, that Plaintiff is actually limited in the ability to provide self-care. Rather, she alleges that Defendants regard her as being incapable in that area.
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Housing, 4 Fair Hous.BFair Lending (Aspen L. & Bus.) & 16,305, at 16,305.2, 16,305.6 (N.D. Cal. 1998), (strcking down an apartment complex=s practice of requiring that tenants “be capable of tending to their needs independently” and “have a successful history of living independently”) and Jainniney v. Maximum Independent Living, No. 00CV0879 (N.D. Ohio Feb. 9, 2001) (slip op), at http://www.bazelon.org/issues/housing/ cases/janniney_v_maxindliv.pdf (a landlord=s rejection of a disabled applicant on the ground that he was “not ready to live independently” violated FHA).
Plaintiff in the case at bar is “otherwise qualified” to live in the dormitory because she has met all the essential requirements of doing so. The primary qualification for dormitory residence is being in the CUNY Honors Program. The Honors Program operates to attract the best and the brightest students to the college by providing certain fringe benefits, including dormitory housing, which is not available to the vast majority of Hunter College students. In fact, as Plaintiff articulated in her Declaration of September 23, 2004, that she elected to attend Hunter precisely because of the dormitory benefit. Despite being displaced from her dormitory since June 2004, Plaintiff has continued to perform well academically, thereby making her “qualified” to live in the dormitory.
Defendants’ argument that Plaintiff is not “otherwise qualified” for purposes of § 504 is premised almost exclusively on the holding of Doe v. New York University, 666 F.2d 761, 775 (2d Cir. 1981)(hereafter, “NYU”), but such reliance is misplaced because that case is distinguishable on its facts from the case at bar. NYU involved a young woman whose psychiatric history was directly relevant to her present and future ability to
14 Compare 29 U.S.C. §705(20)(Section 504) with 42 U.S.C. §12102(2)(ADA) and 42 U.S.C. §3602(h) (Fair Housing Act).
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interact with patients and others in her role as a doctor; the Plaintiff in this case is an undergraduate with a humanities concentration. In NYU, the plaintiff lied about her psychiatric history in order to gain admission to medical school; Plaintiff in this case did not hide her psychiatric history and was still sought after by Hunter because of her academic credentials. The plaintiff in NYU had a long and uncontroverted history of behavior harmful to others and to self that resulted in her request for a voluntary leave of absence from the university. Here, Plaintiff was not asked to leave Hunter, and remains an honors student with superior academic performance. She did not voluntarily relinquish rights to her dormitory room; she returned to find that the locks had been changed and she had been denied access.
Most importantly, the NYU plaintiff had a history of assaultive behavior. As Defendants point out, given her conduct, the court was concerned for the safety of others. Here, there is no history of harm to others. Defendants do not even allege that she will harm others.
In short, the NYU court found that the plaintiff in that case was not “otherwise qualified” because her deceit underlying her original admission to medical school and her subsequent, highly disruptive behavior “rendered her less qualified than others for the limited number of places available.” Id. at 777. It is not a matter of Plaintiff being less qualified than others; it is a matter of whether or not she remains qualified for dormitory housing. She has a right to live there by virtue of being and remaining an Honors Student.
In its reliance on NYU, Defendants assert that Plaintiff is not otherwise qualified under § 504 and the ADA because her conduct violates the housing contract, and
19

obliquely suggest that her conduct makes her a “direct threat” to the health and safety of others. Defendants' Memorandum at 17-20. When questions of safety are involved in determining whether an individual is "qualified" for purposes of the ADA, a person may be excluded from a program or activity or from housing only if he or she poses a “direct threat” to the health or safety of others. A “direct threat” is defined as “a significant risk to the health or safety of others . . . .” 28 C.F.R. Pt. 35, App. A, § 35.104 (definition of "qualified individual with a disability"); 24 C.F.R. §100.202(d). Direct threat to self is an invalid consideration under the FHA, Title II of the ADA, or §504. The ADA and the Fair Housing Act place the burden of proof on Defendants to demonstrate that Jane Doe poses a direct threat. Hargrave v. Vermont, 340 F. 3d 27, 35 (ADA); Roe v. Housing Authority of Boulder, 909 F.Supp. 814 (D.Colo. 1995)(FHA).
The allegations properly before the court do not support any claim that Plaintiff is a threat to any other person. Defendants miss the point of the “direct threat” provision of § 504 and the ADA. In Hargrave the Second Circuit said: “It is unclear whether the ‘direct threat’ defense applies outside of the employment context.” 340 F. 3d at 36. The Court went on to reject the argument that a danger to self is a direct threat which makes a person not “otherwise qualified” within the meaning of the ADA and § 504.
Finally, Defendants believe that its one semester ban from dormitory housing is an essential qualification because “dormitory residence poses inherent stressors, which a student must be emotionally able to withstand.” Defendants' Memorandum at 20. These are allegations outside the four corners of the Amended Complaint and are not appropriate for consideration by the Court. In any case, there is no uncontested evidence before the Court on this issue and it is at best a question of fact.
20

Plaintiff has raised a triable issue of material fact with respect to whether she is otherwise qualified to live in the dormitory by showing that, with the aid of reasonable accommodations she is able to meet the requirements of doing so. For that reason, the motion to dismiss should be denied. B. Defendants Have Engaged in Discrimination on the Basis of Disability
Defendants argue that Plaintiff’s claim of discrimination fails because Plaintiff was evicted for a suicide attempt (her conduct) and not because of discrimination based on her disability. Defendants' Memorandum at III. B. In essence Defendants' claim is that their policy is neutral. The sole case cited by Defendants for this proposition is Atkins v. County of Orange, 251 F. Supp. 2d 1225 (D.N.Y., 2003) where the complaint failed to "allege that violent and self-destructive inmates who are disabled due to mental illness are treated any differently than violent, self-destructive inmates who are not disabled due to mental illness." Id at 1232. Atkins further states that, "[w]ith no allegation of disparate treatment, no claim for discrimination under the ADA or Rehabilitation Act lies." Id.
In Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565 (2d Cir. 2003), the Second Circuit stated, “[T]o establish discrimination under either the FHAA or the ADA, Plaintiff has three available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Id at 573. The Amended Complaint establishes a cause of action on each of these three grounds.
Plaintiff's Amended Complaint here alleges that Defendants actions constitute intentional discrimination (i.e. that their policy is not neutral) and in the alternative that
21

their policy has a disparate impact on people with disabilities.15 Plaintiff specifically alleges that "Defendants’ actions constitute intentional discriminatory treatment based on Plaintiff [Doe]’s disability. Defendants’ actions also have a disparate impact on persons who suffer from mental illness." Amended Complaint at ¶ 23.
The Amended Complaint alleges that Defendants’ housing policy of evicting people who attempt suicide has discriminatory intent; that Defendants’ policy is not neutral; and that it in fact does take into account the mental handicap behind the suicide attempt. Amended Complaint at ¶¶ 23, 30, 33.The policy is not neutral because it requires that a person who attempts suicide be evaluated by a school psychologist or his or her designated counselor prior to returning to the Residence Hall.16 Amended Complaint ¶ 13. This is clear evidence that Defendants discriminate against people with mental illnesses, or people they regard as having mental illnesses. In any case, the issue of Defendants' intent is a question of fact and not properly resolved by a motion to dismiss.
The ADA prohibits discrimination “by reason of” disability. 42 U.S.C. § 12132. Discrimination by reason of disability includes not only discrimination based on an impairment itself but also discrimination based on the effects of an impairment, whether those include the effects on the person himself or the effects on others. School Bd. of Nassau County v. Arline, 480 U.S. 282 & n.7 (1987) (interpreting the ADA’s predecessor, § 504 of the Rehabilitation Act). In Arline, the Court noted that the disability at issue, tuberculosis, “gave rise” not only to an impairment but also to
15 Defendants did not raise reasonable accommodation in their Motion to Dismiss. Therefore, Plaintiff does not address it here. However, Plaintiff reserves argument that Defendants failed to accommodate her. 16 Defendants hypothesize that suicidal behavior is an action which could have other origins (alcoholism, romantic relationships). Defendants' Memorandum at p. 20. However, Defendants' policy does not require
22

contagious effects, and § 504 prohibited discrimination based on the contagious effects of the disability. Id. at 282 n.7.
Defendants contend that they evicted Plaintiff because of her suicide attempt, not her disability, major depression. However, this is exactly the type of discrimination based on disability-caused conduct that is prohibited. See Teahan v. Metro-North C. R. Co., 951 F.2d 511, 517 (2d Cir. 1991)( “an employer "relies" on a handicap when it justifies termination based on conduct caused by the handicap.”) See also Humphrey v. Memorial Hosps. Ass'n, 239 F.3d 1128, 1140 (9th Cir. 2001)(”For purposes of the ADA, with a few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.”); Laporta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758, 768-769 (D. Mich. 2001)(rejecting the conduct/disability dichotomy and the argument that Plaintiff was fired for her refusal to appear for work on November 10, not on account of a disability).
In Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 143 (2d Cir. 1995), the Second Circuit found that a teacher's discharge because of performance inadequacies was in fact discharge based on disability when the performance inadequacies resulted from the disability. See also, McKenzie v. Dovala, 242 F.3d 967, 974 (10th Cir. 2001)(the denial of employment based on the Plaintiff’s conduct, including cutting her wrists, was improper because Plaintiff was protected by the ADA from adverse employment action based on conduct related to her illness as long as she did not pose a direct threat);
that students be screened for any other possible reasons that a person might engage in self-destructive behavior (i.e. political beliefs, religious beliefs, etc.).
23

Humphrey, 239 F.3d at 1140 (a jury could reasonably find a causal link between absenteeism and OCD disability).17
Even if this Court were to find that Defendants’ policy on suicide attempts is neutral, as they contend, and does not reflect the intent to discriminate against students with the handicap of depression, the policy still has a disparate impact on people with depression. The disparate impact analysis focuses on facially neutral policies or practices that may have a discriminatory effect. Tsombanidis, 352 F.3d at 574. To show that a seemingly neutral policy has a discriminatory effect, the Plaintiff must prove the practice "actually or predictably results in ... discrimination." Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 90 (2d Cir. 2000).
Plaintiff has alleged that Defendants' policy has a disparate impact on people with mental illnesses. This Court can take judicial notice that suicidal ideation and behavior are classic symptoms of depression and overwhelmingly occurs because of mental disability. "Congress has recognized that youth suicide is a public health tragedy linked to underlying mental health problems…." Garrett Lee Smith Memorial Act of 2004, Pub. L. No. 108-355, 118 Stat. 1404, §2 Findings, (8). See also articles cited in the Garrett Lee Smith Memorial Act of 2004 at §2 (9).18
Defendants argue that their actions are permissible because the law permits them to discriminate based on the severity of a disability. Defendants' Memorandum at 21 citing Flight v. Gloeckler, 68 F.3d 61 (2d Cir. 1995). Flight is completely inapposite. It
17 Even disability-caused "misconduct" is protected. Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir. 1998) (the ADA’s general anti-discrimination provision protects both disability and disability-caused misconduct rather than contemplating a “stark dichotomy” between them, except where the disability is related to alcoholism or illegal drug use). 18 When determining the sufficiency of plaintiff's claim on a motion to dismiss, the court may consider, inter alia, matters of which judicial notice may be taken. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir., 1993).
24

stands for the proposition that the Rehabilitation Act generally does not prohibit

government funded agencies from discriminating among handicapped people with regard

to services specifically designed for people with disabilities. Likewise the cases cited in

Flight, -- P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) (regarding handicapped

persons in special education programs) and Rodriguez v. City of New York, 197 F.3d 611

(2d Cir. 1999) cert. denied 531 U.S. 864 (2000) (regarding Medicaid home care services

for the disabled) -- both deal with services specifically designed for people with

disabilities. These cases stand for the proposition that in providing services specifically

for such a population, “[t]he Act does not require all handicapped persons to be provided

with identical benefits.” P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990). These

cases are of no relevance to facilities such as a dormitory room that are not specifically

designed solely for the handicapped.

The Amended Complaint therefore states a cause of action that Defendants

had engaged in intentional discrimination and that their policies have a disparate impact

on students with mental illnesses.

Conclusion For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint

should be denied.

Date: New York, NY

November 15, 2004

Respectfully submitted

__S/____________________

Michael Allen

David Goldfarb (DG 8861)

Karen Bower

Ira Salzman (IS 1308)

Bazelon Center for

Goldfarb Abrandt Salzman & Kutzin

Mental Health Law

LLP

1101 15th Street, N.W., Ste 1212 350 Fifth Ave. Suite 1100

Washington, D.C. 20005-5002

New York, NY 10118

202/467-5730

212-387-8400

Attorneys for Plaintiff

25

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------X

JANE DOE,

:

Plaintiff,

:

-against-

:

HUNTER COLLEGE OF THE CITY

:

UNIVERSITY OF NEW YORK; JENNIFER

RAAB; EIJA AYRAVAINEN,

:

Defendants.

:

---------------------------------------------------------------X

04-CIV-6740 (SHS)(ECF)

REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

KATHRYN C. SPANN Assistant Attorney General
of Counsel

ELIOT SPITZER Attorney General of the State of
New York Attorney for Defendants 120 Broadway, 24th Floor New York, New York 10271 Tel. No.: 212-416-6378
Dated: New York, New York December 7, 2004

REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT Defendants Hunter College of the City University of New York (“Hunter College”), Jennifer Raab, and Eija Ayravainen (“Defendants”) submit this reply memorandum of law in further support of defendants’ motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
ARGUMENT Point I
Congress Failed to Abrogate the State’s The Eleventh Amendment Under § 5 of the Fourteenth Amendment for Claims Alleged Pursuant to
Title II of the ADA, the FHA and § 504 of the Rehab Act Plaintiff’s opposition papers clarify that she seeks damages only under the Rehab Act, and not the ADA or FHA. Opp. Mem. at 1. However, with respect to claims seeking injunctive relief pursuant to the FHA and Title II of the ADA against CUNY and Hunter College, such claims also are barred by the Eleventh Amendment. See Def. Mem. at 5-13.1 Plaintiff apparently concedes that defendants’ analysis of this issue with regard to her ADA and FHA claim is correct. To the extent that plaintiff may seek prospective injunctive relief against the individual defendants sued in their official capacities, the Eleventh Amendment is not a bar. Plaintiff also apparently concedes that defendants’ application of Tennessee v. Lane analysis to the Rehab Act is correct, insofar as the Rehab Act relies upon a purported abrogation of Eleventh Amendment immunity pursuant to § 5 of the Fourteenth Amendment. However, plaintiff asserts a

1

To the extent that plaintiff’s claims for prospective declaratory relief, see Am.

Compl. wherefore clause (a), may become moot, any remaining claim for retroactive declaratory

relief must also be dismissed under the Eleventh Amendment. See Ward v. Thomas, 207 F.3d

114, 119 (2d Cir. 2000) (where there is no claimed continuing violation of federal law,

declaratory relief would only serve as an “end run” around Eleventh Amendment immunity and

is therefore impermissible).

waiver of Eleventh Amendment immunity under the Spending Clause. This question was not part of defendants’ motion, and plaintiff has raised it for the first time in her opposition papers. This issue presents significant legal and possible factual issues which need not be addressed at this juncture, as it is not included within defendants’ grounds for this motion to dismiss. Defendants respectfully submit that independent grounds exist for dismissal of plaintiff’s Rehab Act claim, under Fed. R. Civ. P. 12(b)(6). However, in the event that plaintiff’s Rehab Act claim is not dismissed for failure to state a claim, defendants reserve the right to move under Fed. R. Civ. P. 12(c) or 56, to present this issue of subject matter jurisdiction to the Court for resolution at a later stage of these proceedings, when this issue can be presented with the benefit of fully developed briefing.
Point II Plaintiff Lacks Standing to Sue Under the Fair Housing Act Plaintiff claims standing under the FHA, arguing that “in addition to barring discrimination in the sale or rental of dwellings, the statute specifically and repeatedly makes it unlawful to ‘otherwise make unavailable or deny’ the right to use property because of a handicap.” Opp. Mem. at 11, citing 42 U.S.C. § 3604(f)(1). This construction ignores the plain language of the very statute plaintiff cites, which bars discrimination “in the sale or rental [of], 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) (emphasis added). If one is not a “buyer” or “renter” as defined in the Act, the “otherwise make unavailable” language is inapplicable. The Act defines “to rent” as “to lease, to sublease, to let or otherwise to grant for a consideration the right to occupy premises not owned by the occupant.” 42
2

U.S.C. § 3602(e) (emphasis added). Plaintiff argues that the “otherwise make available” language provides a right of action for
one who is not a “buyer” or “renter” to invoke the FHA. She cites an array of cases which she contends support this proposition. The cases, however, do not serve her argument. Woods v. Foster, 884 F. Supp. 1169 (D. Ill. 1995), is from another jurisdiction and its reasoning does not appear to have been adopted elsewhere in the ten years since its issuance. In any event, Woods is distinguishable as the defendant program in essence received the “rental” sum from a third party pursuant to a contract for the housing of these residents. The remaining cases cited by plaintiff also entail payment of consideration, and are thus inapposite because plaintiff has not tendered any consideration. See City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 729 (1995) (Oxford House “had leased and was operating a home”); Villegas v. Sandy Farms, Inc., 929 F. Supp. 1324, 1329 (D. Or. 1996) (“the payment of $1.50 per day by the occupants of the cabins to defendant under the terms of the rental agreement falls within the broad definition of rent under Oregon law”); Baxter v. Belleville, 720 F. Supp. 720, 735 (D. Ill. 1989) (“[FHA plaintiff] testified that he has suffered economic injury from the loss of income from tenants due to his inability to go forward with his plans” to remodel a former office building he had purchased into a residence for occupancy by persons with AIDS); United v. Hughes Mem. Home, 396 F. Supp. 544, 547 (D. Va. 1975) (“parents and guardians are requested to pay to the Home a monthly sum of money to defray some of the cost of the child’s care, and most in fact make such payments.”).2 N.A.A.C.P. v. American Family Mut.

2

See also Turning Point v. City of Caldwell, 74 F.3d 941, 944 (9th Cir. 1996) (not

specifically addressing issue of consideration, but noting damages awarded by trial court to the

plaintiff operators of homeless shelter, calculated by lost program reimbursement for meals

because of restrictions on number of residents).

3

Ins. Co., 978 F.2d 287, 297-301 (7th Cir. 1992), which found a right of action against a provider of property insurance, still hinged on the provision of such insurance to one who sought to buy a home.
In an effort to bring herself within the protection of the statute, plaintiff contends that she provided consideration by not opting for the stipend offered by the College as an alternative to dormitory housing, or alternatively by signing the Housing Contract, or by “having foregone educational opportunities elsewhere.” Plaintiff, however, offers no support for her theory on this aspect of her prima facie case. Under New York law, a contract unsupported by consideration is generally invalid. If the promisor loses nothing, and the promisee acquires nothing by an arrangement, then there is no valid consideration. See Manufacturer’s Hanover Overseas Capital Corp. v. Southwire Co., 589 F. Supp. 214, 219 (S.D.N.Y. 1984). Here, plaintiff has lost nothing; rather, she (1) chose to accept the scholarship offered by the College, and (2) made a choice among possible grant options within that scholarship. One grant entailed $1,000 and no Housing Contract, while the other option entailed dormitory housing with its attendant regulations as embodied in the Housing Contract. Plaintiff’s FHA claim requires dismissal.
Point III Plaintiff Fails to State a Claim A. Plaintiff Is Not “Otherwise Qualified” for Residence in the Dormitory Plaintiff argues that there are unspecified issues of fact3 as to whether she is “otherwise qualified” for residence in the Hunter College dormitory. Opp. Mem. at 16. However, as set forth

3

If by this she makes reference to the self-evident fact that “dormitory residence

poses inherent stressors, which a student must be emotionally able to withstand,” Def. Mem. at

20, see Opp. Mem. at 20, the Second Circuit evidently does not consider such truisms to require

extraneous proof, as exemplified by its decision in Doe.

4

in defendants’ moving brief, the Second Circuit has affirmed a 12(b)(6) dismissal on a similar factual record. Doe v. New York University, 666 F.2d 761, 774 (2d Cir. 1981). Plaintiff attempts to distinguish Doe v. NYU, arguing that the NYU plaintiff’s deceit and assaultive behavior were the determinative factors in the Second Circuit’s decision. Review of that decision, however, belies this assertion. The issue is not whether the instant plaintiff is equally or less ill than the medical student Doe. The issue is whether the particular manifestations by the instant plaintiff render her “otherwise unqualified” for the program at issue – here, dormitory residence. In Doe v. NYU, the question was whether the particular manifestations of that plaintiff’s illness rendered her “otherwise unqualified” for participation in medical school. See Doe v. NYU, 666 F.2d at 777. The enquiry is plainly context-dependent. Particularly as plaintiff’s papers fail to identify any allegations fulfilling her burden to demonstrate that she is otherwise qualified, her claim requires dismissal.
Plaintiff also argues that the Hunter College Housing Contract “bar[s] people whose depression may result in a suicide attempt.” Opp. Mem. at 15. This statement is flatly incorrect; the Housing Contract bars only individuals who have attempted suicide, regardless of whether they suffer from depression or another disability or no disability. A suicide attempt may be in response to a situation, such as an unsuccessful relationship or death of a loved one, or may occur in connection with alcohol or substance use.
Plaintiff argues that the College’s conclusion that she is not “otherwise qualified” to live in the dormitory because she is unable to live independently in a dormitory setting “itself discriminates on the basis of disability.” Opp. Mem. at 17. This assertion improperly conflates two distinct aspects of the governing standard. A plaintiff may plead that she is disabled because she is unable to live independently, and thus establish that she is “substantially limited in a major life activity,”
5

thus bringing her within the ambit of the disability discrimination statutes. But if that disability itself renders her not “otherwise qualified” for the program or service at issue, she may not prevail. See generally Doe v. NYU; Shannon v. New York City Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (affirming summary judgment in favor of Transit Authority where, assuming plaintiff’s colorblindness was a disability because he was allegedly regarded as being substantially limited in the major life activity of working, the plaintiff was not “otherwise qualified” to be a bus driver, as bus drivers are required to be able to distinguish the colors of traffic signals); Siederbaum v. City of New York, 309 F. Supp. 2d 618, 630 (S.D.N.Y. 2004) (plaintiff who suffered from bipolar disorder was not otherwise qualified to drive buses because when untreated, or if a person fails to follow the prescribed regimen of medication, the disorder can result in poor judgment, distractibility, and reckless behavior; noting “substantial and reasonable interest [of the Transit Authority] in avoiding the liability that would follow should any of the risks associated with bipolar disorder actually materialize and cause an accident”). Indeed, this is not a case where plaintiff has sought a reasonable accommodation that would enable her to transcend those aspects of her disability which render her “otherwise unqualified” for dormitory residence.
Plaintiff asserts that this Court should disregard the Second Circuit’s holding in Doe v. NYU, 666 F.2d 761 (2d Cir. 1981), and should look instead to Cason v. Rochester Housing Auth, 748 F. Supp. 1002 (W.D.N.Y. 1990), Niederhauser v. Independence Sq. Housing, (N.D. Cal. 1998), and Jainniney v. Maximum Indep. Living, (N.D. Ohio Feb. 9, 2001). These cases, however, highlight the flaw in plaintiff’s argument. In Cason, the court cited legislative history indicating that “in the case of a person with a mental illness . . . there must be objective evidence from the person’s prior behavior that the person has committed overt acts which caused harm or which directly threatened
6

harm. . . . The landlord’s determination must not rest on ‘unsubstantiated inferences.’” 748 F. Supp. at 1007-08. Here, the determination rests on overt suicidal acts, see Am. Compl. ¶ 10, which surely fall squarely within the exception identified in the legislative history. Further, in Neiderhauser and Jainniney, the plaintiffs sought to live in the subject apartments with outside assistive services, such as assistants or caregivers. That is not the subject of Ms. Doe’s suit. B. The Suicide Provision of the Hunter College Housing Contract
Does Not Discriminate on the Basis of Disability Plaintiff argues that the College’s policy of requiring a one-semester period out of the dormitory for a student who attempts suicide is intentionally discriminatory on the basis of disability “because it requires that a person who attempts suicide be evaluated by a school psychologist or his or her designated counselor prior to returning to the residence hall.” Opp. Mem. at 22. Were that the case, requirements that applicants for any program or job undergo any kind of physical or psychological examination would inevitably be stricken as intentionally discriminatory. Yet the courts have not done so, because such evaluations are a legitimate means for an employer or program sponsor or, here, dormitory administrator, to determine that an applicant is, in fact, “otherwise qualified” for the program or job at issue. See Teahan v. Metro-North Commuter R. Co., 951 F.2d 511, 518 and 520 (2d Cir. 1991) (“nothing in the language, history or precedents interpreting § 504 suggest that this provision is designed to insulate handicapped individuals from the actual impact of their disabilities;” noting that evaluation of whether plaintiff was “otherwise qualified” would include factors such as plaintiff’s likelihood of substance abuse relapse and future absenteeism, even if he was not currently abusing), cert. denied, 506 U.S. 815 (1992). Plaintiff also relies on an array of cases from other jurisdictions that do not support her
7

position but rather reinforce the conclusion that the College’s suicide policy is not administered in a discriminatory manner. Humphrey v. Mem. Hosps. Assn., 239 F.3d 1128 (9th Cir. 2001), also recognizes that a plaintiff’s mental illness may sufficiently impair her job performance to render her not “otherwise qualified” for the position at issue. LaPorta v. Wal-Mart Stores, Inc., 163 F. Supp. 2d 758 (W.D. Mich. 2001), highlights the difference between an individual who is otherwise qualified but requests a reasonable accommodation, and one like plaintiff who is not otherwise qualified and whose request is for waiver of the policy rather than a modification to facilitate her efforts at adequate performance. A plaintiff always bears the burden of demonstrating that she is able to perform the essential functions of the position, though a reasonable accommodation may be necessary. Here, plaintiff has not requested additional psychological support from the school, or monitoring services from the school to ensure that she is taking her medications, which may or may not enable her to live independently; that would more closely resemble a “reasonable accommodation” within the meaning of the law. Rather, plaintiff simply asks the school to disregard its policy as applied to her. She offers no support for her assertion that this is a “reasonable accommodation” within the meaning of the law.
Plaintiff also argues that the College’s suicide policy has a disparate impact on people with mental illnesses. Plaintiff fails to state a claim under a disparate impact theory, because she has not alleged that this policy disproportionately affects dormitory residents who have a mental illness. See Hack v. President & Fellows of Yale College, 237 F.3d 81, 90-91 (2d Cir. 2000) (finding plaintiffs failed to state a disparate impact claim under the FHA because they did not allege that the policy at issue actually or predictably results in an under-representation of orthodox Jews in campus housing; plaintiff must allege “‘a causal connection between [a] facially neutral policy . . . and the resultant
8

proportion of minority’ group members in the population” governed by the policy); see also

Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, 576-77 (2d Cir. 2003) (“there must be some [statistical or other] analytical method to determine disproportionate impact”). Ultimately, she cannot avoid the Second Circuit’s holdings that there is no cause of action for discrimination based on the severity of an individual’s disability, i.e., between mentally individuals who are not so ill as

to attempt suicide and those who do. See Def. Mem. at 21.

CONCLUSION

For the foregoing reasons, plaintiff’s amended complaint requires dismissal.

Date:

New York, New York December 7, 2004

Respectfully submitted,

ELIOT SPITZER Attorney General of the State of New York Attorney for Defendants By:

KATHRYN C. SPANN Assistant Attorney General of Counsel

/s/ KATHRYN C. SPANN (KS 8143) (212) 416-6378 Assistant Attorney General 120 Broadway, 24th Floor New York, New York 10271

9

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

JANE DOE,

:

:

Plaintiff,

:

-against-

:

:

HUNTER COLLEGE OF THE

:

CITY UNIVERSITY OF NEW YORK,

:

JENNIFER RAAB, and EIJA AYRAVAINEN, :

:

Defendants.

:

---------------------------------------------------------------x

04 Civ. 6740 (SHS)

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT

KATHRYN C. SPANN Assistant Attorney General of Counsel

ELIOT SPITZER Attorney General of the State of New York Attorney for Defendants 120 Broadway, 24th Floor New York, New York 10271 (212) 416-6378
Dated: October 27, 2004

Table of Contents

Pages Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii-v

Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Point I

The Eleventh Amendment Bars Plaintiff’s Claims Alleged Pursuant to Title II of the ADA, § 504 of the Rehab Act, and the FHA Against CUNY, and Her Claims Under These Statutes for Monetary Relief Against the Individual Defendants . . . . . . . . . . . . . . . . . . . . 5

A. Title II of the ADA Did Not Effectively Abrogate the States’ Eleventh Amendment Immunity to Suit for Discrimination Based on Disability in the Provision of Dormitory Housing . . . . . . . . . . . . . . . . . 7

B. Section 504 of the Rehab Act Did Not Effectively Abrogate the States’ Eleventh Amendment Immunity to Suit for Discrimination Based on Disability in the Provision of Dormitory Housing . . . . . . . . . . . . . . . . 11

C. The FHA Contains No Abrogation of the States’ Eleventh Amendment Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Point II

Plaintiff Lacks Standing to Sue Under the Fair Housing Act . . . . . . . . . . . . . . . 13

Point III

Plaintiff Fails to State a Claim Under § 504 of the Rehab Act, Title II of the ADA, or the Fair Housing Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Plaintiff Is Not “Otherwise Qualified” for Residence in the Hunter College Dormitory, Within the Meaning of Title II of the ADA and § 504 of the Rehab Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. The Suicide Provision of the Hunter College Housing Contract Does Not Discriminate on the Basis of Disability . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

-i-

Table of Authorities

CASES

Pages

Anonymous v. Goddard Riverside Community Ctr., Inc., 1997 WL 475165 (S.D.N.Y. July 18, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Atkins v. County of Orange, 251 F. Supp. 2d 1225 (S.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21

Barnes v. Gorman, 536 U.S. 181 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Board of Trustees of Alabama v. Garrett, 531 U.S. 356, 363 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 11

Bynes v. Toll, 512 F.2d 252 (2d Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

City of Boerne v. Flores, 521 U.S. 507, 520 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9

Clissuras v. City University of New York, 359 F.3d 79 ( 2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Craig v. Boren, 429 U.S. 190 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

De Jesus-Keolamphu v. Village of Pelham Manor, 999 F. Supp. 556 (S.D.N.Y. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Doe v. New York University, 666 F.2d 761 (2d Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-18

Ex Parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Flight v. Gloeckler, 878 F. Supp. 424 (N.D.N.Y 1995) , aff’d, 68 F.3d 61 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Garcia v. S.U.N.Y. Health Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

Goldin-Feldman Co., Inc. v. Blum & Fink, Inc., 2000 WL 1182798 (S.D.N.Y. Aug.18, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

-ii-

Table of Authorities

CASES

Pages

Hoeffner v. The Citadel, 311 S.C. 361, 429 S.E.2d 190 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Int'l Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69 (2d Cir.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

In re Merrill Lynch & Co., Inc., 273 F. Supp. 2d 351 (S.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Jain v. State, 617 N.W.2d 293 (Iowa 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Kamen v. American Telephone & Telegraph Co., 791 F.2d 1006 (2d Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Lane v. Maryhaven Ctr. of Hope, 944 F. Supp. 158 (E.D.N.Y. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Lindsey v. Normet, 405 U.S. 56 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Miller v. King, 2004 WL 2035197 (11th Cir. Sept. 14, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

P.C. v. McLaughlin, 913 F.2d 1033 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999), cert. denied 531 U.S. 864 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Roe v. Johnson, 2004 WL 1944460 (S.D.N.Y. Sept. 1, 2004) . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tennessee v. Lane, ___ U.S. ___, 124 S. Ct. 1978 (2004) . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9, 11

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Table of Authorities Pages
Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 United States v. Vasquez, 145 F.3d 74 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Weinbaum v. Cuomo, 219 A.D.2d 554 (1st Dept. 1995),
appeal dismissed, 87 N.Y.2d 917 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Welch v. Century 21 Chimes Real Estate Inc.,
1999 WL 29950 (E.D.N.Y. Feb. 27, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Will v. Michigan Dep’t of State Police,
491 U.S. 58 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Woods v. Foster,
884 F.Supp. 1169 (D.Ill. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CONSTITUTION Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-12
STATUTES, CODES AND LEGISLATIVE HISTORY 29 U.S.C. § 701, et seq., Rehabilitation Act of 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
29 U.S.C. § 794 (Section 504) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 42 U.S.C. § 12132, Americans with Disabilities Act (“ADA”) . . . . . . . . . . . . . . . . . . . . . . passim
42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 12202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Title III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 3601, et seq., Fair Housing Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 3602(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 42 U.S.C. § 3604(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14 S. Rep. No. 101-116 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-iv-

Table of Authorities Pages
H.R. Rep. No. 101-485 parts 1, 2, 3 and 4 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 H.R. Conf. Rep. 101-558 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 H.R. Conf. Rep. No. 101-596 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Educ. Law § 6203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-v-

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

JANE DOE,

:

:

Plaintiff,

:

-against-

:

:

HUNTER COLLEGE OF THE

:

CITY UNIVERSITY OF NEW YORK,

:

JENNIFER RAAB, and EIJA AYRAVAINEN, :

:

Defendants.

:

---------------------------------------------------------------x

04 Civ. 6740 (SHS)

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
Defendants Hunter College of the City University of New York (“Hunter College”), Jennifer Raab, and Eija Ayravainen (“Defendants”) submit this memorandum of law in support of defendants’ motion to dismiss the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
Preliminary Statement The amended complaint purports to state causes of action under the Fair Housing Amendments Act of 1988 (“FHA”), Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (the “Rehab Act”). However, plaintiff’s claims are barred by the Eleventh Amendment, except insofar as plaintiff seeks prospective injunctive relief against the individual defendants. Plaintiff’s claims under the FHA are also barred by her lack of standing under that statute, since the College’s provision of free housing to plaintiff is not a sale or rental within the meaning of the Fair Housing Act, which applies only to transactions for “consideration.”

The Amended Complaint also fails to state a claim upon which relief may be granted. Plaintiff is not “otherwise qualified” under the Rehab Act or Title II of the ADA, for residence within the Hunter College dormitory, because she engaged in conduct that violates the school’s housing contract and demonstrates a lack of capacity for independent living. Moreover, the decision to remove plaintiff from College housing does not rest on her disability, which her doctor diagnoses as Major Depressive Disorder and Attention Deficit Hyperactivity Disorder. Rather, plaintiff’s removal from housing was pursuant to the Hunter College Housing Contract, which was triggered by her attempted suicide. The policy applies equally to disabled and to nondisabled students who engage in such conduct. A suicide attempt may occur in an array of circumstances, such as intoxication or a romantic breakup, which have nothing to do with a mental disability. To the extent that plaintiff’s claim rests on an allegation of discrimination on the basis of the severity of her disability, the courts have recognized that there is no cause of action for discrimination based on the severity of a disability. Finally, the ADA and the Rehab Act does not provide a right of action for punitive damages; accordingly, plaintiff’s claim for punitive damages must be dismissed.
Statement of Facts Defendant Hunter College is a senior college within the City University of New York (“CUNY”). Defendant Jennifer Raab is the President of Hunter College. Am. Compl. ¶ 7. Defendant Eija Ayravainen is the Acting Vice President of Student Affairs and Dean of Students for Hunter College. Am. Compl. ¶ 7. Plaintiff is a full-time student in her sophomore year at Hunter College. Am. Compl. ¶ 5. During the 2003-2004 academic year, plaintiff was a resident of the Brookdale
2

Residence Hall, a Hunter College dormitory. Am. Compl. ¶¶ 5, 6, 9. Plaintiff has, since the commencement of her studies at Hunter College, been a student within the CUNY Honors Program. See Affidavit of plaintiff dated August 19, 2004 (“Plaintiff Aff.”) at ¶ 2.1 By virtue of her participation in the Honors Program, plaintiff receives free dormitory housing at the Brookdale Residence Hall. Plaintiff Aff. ¶ 4.
Plaintiff has been diagnosed as suffering from Major Depressive Disorder and Attention Deficit Hyperactivity Disorder. Am. Compl. ¶ 8. These disorders result in insomnia, decreased appetite and perceptual disturbances; they also interfere with her ability to socially interact with her peers, and cause suicidal ideation. Id. Plaintiff alleges that she is substantially limited in the activities of sleeping, eating, and interacting with others, and in taking care of herself. Am. Compl. ¶ 8. Plaintiff has suffered from these symptoms since at least the junior year of high school; she was on medical leave during the majority of her junior year of high school. Id. She was, prior to her matriculation at Hunter College, hospitalized for depression and self-harm treatment. Id. and Spann Decl. Ex. 1 (letter from plaintiff to Pamela Burthwright dated June 14, 2004); see Am. Compl. ¶ 12 (referencing letter).
On June 5, 2004, plaintiff attempted suicide in her dormitory room, by taking approximately 20 Tylenol PM capsules. Am. Compl. ¶ 10. Earlier in the year, in January 2004,

1

When reviewing a motion to dismiss, a court may consider documents attached to

the pleadings, as well as documents outside the pleadings "that are integral or relied upon by the

plaintiff in preparing the pleadings." See Goldin-Feldman Co., Inc. v. Blum & Fink, Inc., 2000

WL 1182798, at *2 (S.D.N.Y. Aug.18, 2000) (citing Int'l Audiotext Network, Inc. v. American

Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir.1995)). The Court may thus rely on the letters

referenced in plaintiff’s Amended Complaint. The Court may also take judicial notice of the

affidavits filed simultaneously with plaintiff’s complaint, and in support of her application for a

temporary restraining order and preliminary injunction.

3

she had been taken by ambulance from the dormitory to Cabrini Hospital, after taking an overdose of pain medication. Plaintiff Aff. ¶ 7.
Following her June 2004 suicide attempt, Hunter College notified plaintiff that she would not be permitted to return to the dormitory for the fall 2004 semester, pursuant to the Hunter College Housing Contract, which provides that
A student who attempts suicide or in any way attempts to harm him or herself will be asked to take a leave of absence for at least one semester from the Residence Hall and will be evaluated by the school psychologist or his/her designated counselor prior to returning to the Residence Hall. Additionally, students with psychological issues may be mandated by the Office of Residence Life to receive counseling. Am. Compl. ¶¶ 10, 13. The school informed plaintiff that “the [June 5, 2004] incident raises compelling concerns about your safety and well-being in a dormitory setting.” Spann Decl. Ex. 2 (June 21, 2004 letter from Eija Ayravainen to plaintiff); see Am. Compl. ¶ 13, referencing letter. Vice President Ayravainen continued, “We believe this decision is in your best interests and the best interests of the Residence Hall community. Our goal is to enable you to receive intensive mental health counseling in a setting with reduced pressures and distractions, which will in turn help you return to the Residence Hall better able to handle the challenges of academic and residence life.” Spann Decl. Ex. 2. Vice President Ayravainen indicated that plaintiff would be required to “make an appointment to see Assistant Dean Madlyn Stokely in the Office of Student Services,” who would “arrange for you to see a Student Services counselor on a regular basis throughout your hiatus from the Residence Hall,” and that the counselor “will coordinate with other mental health professionals who may be assisting you, as appropriate.” Spann Decl. Ex. 2. In response to a later letter from plaintiff’s counsel, the College’s attorney wrote that “in light of
4

the possible harm Ms. [Doe] may cause herself and others in the residence Hall, it is not possible to permit her to reside in the room of the Residence Hall.” Spann Decl. Ex. 3 (July 14, 2004 letter from Linda Chin to David Goldfarb); see also Am. Compl. ¶ 17 (referencing letter). Ms. Chin continued: “We urge Ms. [Doe] to receive or to continue to receive intensive mental health counseling. She may request to return to college housing starting with the Spring, 2005 semester. [She] must also submit medical documentation regarding her emotional well-being[.]” Id.
On October 7, 2004, plaintiff filed an Amended Complaint, alleging the following causes of action: (1) intentional discrimination and disparate impact under the Fair Housing Act; (2) failure to provide a reasonable accommodation under the Fair Housing Act; (3) intentional discrimination and failure to provide a reasonable accommodation under Title II of the Americans with Disabilities Act; and (4) intentional discrimination under § 504 of the Rehabilitation Act.

ARGUMENT
Point I
The Eleventh Amendment Bars Plaintiff’s Claims Alleged Pursuant to Title II of the ADA, § 504 of the Rehab Act, and the FHA Against CUNY, and
Her Claims Under These Statutes for Monetary Relief Against the Individual Defendants
The Eleventh Amendment bars all federal suits for any kind of relief against the
State of New York, its agencies and entities, in the absence of the State's consent. Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 97-100 (1984). CUNY2 and its senior colleges, including Hunter

2

Although Hunter College is named as a defendant, CUNY is the sole correct

(continued...)

5

College, are state entities entitled to Eleventh Amendment immunity, Clissuras v. City University of New York, 359 F.3d 79, 82 (2004), and have not consented to suit under the ADA, the Rehab Act or the FHA.
While “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘acts pursuant to a valid grant of constitutional authority,’” Board of Trustees of Alabama v. Garrett, 531 U.S. 356, 363 (2001) (citations omitted), those circumstances are not present here, as detailed below in Points I.A through I.C.
With respect to the defendant State officials, the Eleventh Amendment also deprives the federal courts of jurisdiction over an action against a state official acting in his official capacity.3 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 105-06 (1984). Defendants Raab and Ayravainen are immune for actions in their official capacities, except where plaintiff seeks prospective injunctive relief against them for an alleged violation of federal law. Id.; see Ex Parte Young, 209 U.S. 123 (1908). However, to the extent that Plaintiff seeks such relief, she lacks standing to bring a FHA claim (see Point II below), and her complaint fails to state a claim under the ADA and Rehab Act (see Point III below). Therefore, she is not

2(...continued) institutional defendant. See Educ. Law § 6203. Hunter College is a “senior college” within the CUNY system. See Educ. Law § 6203(5) and Weinbaum v. Cuomo, 219 A.D.2d 554, n.1 (1st Dept. 1995), appeal dismissed, 87 N.Y.2d 917 (1996) (Hunter College is a “senior college”).

3

The complaint raises no action, implicitly or explicitly, against the individual

defendants other than their official capacities. In any event, neither Title II of the ADA nor § 504

of the Rehabilitation Act provides for individual capacity suits against state officials. See Lane

v. Maryhaven Ctr. of Hope, 944 F. Supp. 158, 160-62 and 164-65 (E.D.N.Y. 1996) (citing, inter

alia, Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)).

6

entitled to relief against the State officers named here as defendants. A. Title II of the ADA Did Not Effectively Abrogate
the States’ Eleventh Amendment Immunity to Suit For Discrimination Based On Disability in the Provision of Dormitory Housing
Title II of the ADA contains a provision which purports to abrogate the States’ Eleventh Amendment immunity. 42 U.S.C. § 12202. However, the Supreme Court’s recent decision in Tennessee v. Lane, ___ U.S. ___, 124 S. Ct. 1978 (2004), compels the conclusion that this provision, as applied to the facts of this case, was not a valid exercise of Congress’ abrogation power under § 5 of the Fourteenth Amendment.4
The Supreme Court has concluded that § 5 authorizes Congress to “remedy and deter violation of rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81 (2000). However, such remedial and preventive measures “may not work a ‘substantive change in the governing law.” Lane, ___ U.S. ___, 124 S. Ct. at 1986. In determining whether Congress has acted within the scope of its § 5 authority to abrogate States’ sovereign immunity, the Court has set out a three-part “congruence and proportionality” test. See City of Boerne v. Flores, 521 U.S. 507, 520 (1997). A court must (1) identify with some precision the scope of any fundamental constitutional right at issue, (2) determine whether Congress identified a history and pattern of unconstitutional conduct by the States, and (3) if so, analyze whether the statute is an appropriate, congruent and proportional response to that history and pattern of unconstitutional treatment. See Bd. of Trustees of Univ. of

4

The Fourteenth Amendment provides the only basis for Congress to abrogate the

State’s Eleventh Amendment immunity. Congress may not effect abrogation under its Article I

commerce power. Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 364 (2001).

7

Alabama v. Garrett, 531 U.S. 356, 365 and 374 (2001), Boerne, 521 U.S. at 520. In Garrett, the Court concluded that Title I of the ADA, prohibiting disability
discrimination in public employment, was not a valid exercise of Congress’ § 5 abrogation power, because Title I was unsupported by a relevant history and pattern of constitutional violations by the State. Garrett, 531 U.S. at 368. As the Court noted, neither the ADA’s legislative findings nor its legislative history reflected a concern that the States had been engaging in a pattern of unconstitutional employment discrimination; rather, the focus was discrimination in employment in the private sector, while no mention was made of public employment. Garrett, 531 U.S. at 371-72.
In Lane, the Court observed that Title II sought, inter alia, to enforce a variety of basic constitutional guarantees, infringements of which are subject to more searching judicial review than is employment discrimination. ___ U.S. ___, 124 S. Ct. at 1988. At issue in Lane was the fundamental right of access to the courts, under the Due Process Clause of the Fourteenth Amendment and the Confrontation Clause of the Sixth Amendment. Following the Boerne analysis, the Court then considered the question of whether there was a history of violations by the States of these specific constitutional guarantees, as reflected in the legislative history of the ADA. The Court noted numerous references in that legislative history regarding barriers to the access of the courts by disabled individuals. Lane, ___ U.S. ___, 124 S. Ct. at 1990-91.
The Court then turned to the third part of the Boerne test, the congruence and proportionality aspect. After observing that Title II “reaches a wide array of official conduct in an effort to enforce an equally wide array of constitutional guarantees,” the Court declined to consider Title II as an “undifferentiated whole.” Lane, 124 S. Ct. at 1992. Rather, the Court
8

concluded that the relevant enquiry was whether Congress had the power under § 5 to enforce a specific constitutional guarantee at issue in the case at hand – there, the right of access to the courts. 124 S. Ct. at 1993. Because the remedy imposed by Title II – a duty to provide reasonable accommodations – was consonant with remedies imposed in other contexts to ensure a right of access to the courts, the Supreme Court found Title II to be congruent and proportional as it applied to ensure a right of access to the courts. 124 S. Ct. at 1994. See also Miller v. King, 2004 WL 2035197 (11th Cir. Sept. 14, 2004) (discussing and applying Lane analysis).
The Boerne/Lane analysis,5 applied to the facts of this case, compels the conclusion that Title II of the ADA, in the context of dormitory housing, does not effectively abrogate the States’ Eleventh Amendment immunity. As a threshold matter, dormitory housing is not a constitutionally protected fundamental right. In Lane, the Court provided exemplars of fundamental rights, such as voting, marrying, property interests implicated by zoning decisions, involuntary commitment, and jury service. ___ U.S. ___, 124 S. Ct. at 1989-1990 (listing cases). The Supreme Court has held that there is no fundamental right to housing. See Lindsey v. Normet, 405 U.S. 56 (1972).6 In addition, and more specifically, the Second Circuit has held that

5

The Supreme Court’s decision in Lane appears to require the abandonment of the

analysis announced in Garcia v. S.U.N.Y. Health Center of Brooklyn, 280 F.3d 98, 109-111 (2d

Cir. 2001). The Garcia court held that Title II in its entirety is neither congruent nor proportional

with the requirements of the Fourteenth Amendment, and thus limited abrogation to those cases

in which a plaintiff establishes that the violation at issue was motivated by discriminatory animus

or ill will based on his or her disability. Under the analysis in Lane, discriminatory animus is

irrelevant where no fundamental right is implicated. See Roe v. Johnson, 2004 WL 1944460 at

*5 n.9 (S.D.N.Y. Sept. 1, 2004).

6

See also Craig v. Boren, 429 U.S. 190, 216 (1976) (Burger, C.J., dissenting)

(“[E]ven interests of such import in our society as public education and housing do not qualify as

‘fundamental rights’ for equal protection purposes.”).

9

dormitory housing is not a fundamental right. See Bynes v. Toll, 512 F.2d 252, 255 (2d Cir. 1975) (considering challenge to SUNY dormitory policy barring children of dormitory residents from living in the dormitory; “it is well established that the right to housing is not a fundamental interest which would require the more stringent ‘compelling state interest’ test”) (citing Lindsey v. Normet, 405 U.S. 56, 73-74 (1972)). Indeed, dormitory housing is not available for the vast majority of CUNY students.
Even if there were a fundamental right to dormitory housing, there can be no effective abrogation unless the legislative history reflects Congressional findings of a pattern of State discrimination in the provision of dormitory housing. In the absence of such Congressional findings, there can be no effective abrogation. See, e.g., Roe v. Johnson, 2004 WL 1944460 at *6 (S.D.N.Y. Sept. 1, 2004) (no abrogation found where “[t]he legislative record for the ADA [did] not include any findings documenting a pattern of state discrimination in the admission of attorneys to the bar, or more generally in the granting of licenses to professionals.”). The legislative history of the ADA does not include any findings documenting a pattern of State discrimination in the provision of dormitory housing. See 42 U.S.C. § 12101; S. Rep. No. 101116 (1989); H.R. Rep. No. 101-485 parts 1, 2, 3 and 4 (1990), reprinted in 1990 U.S.C.C.A.N. 267 (part 2 at page 311 contains a lone reference to physical accessibility of a dormitory, in which no State involvement is indicated); H.R. Conf. Rep. 101-558 (1990); H.R. Conf. Rep. No. 101-596 (1990), reprinted in 1990 U.S.C.C.A.N. 565. In fact, to the extent that the legislative history touches on the broader issue of housing (which it does in the context of Title III, the “public accommodations” provision which only governs private entities), see H.R. REP. 101-485(IV) at 55, 1990 U.S.C.C.A.N. 512, 544, it explicitly relies on Congress’ Article I
10

commerce clause power, which cannot serve as a basis for abrogation. See Garrett, 531 U.S. at

364 (“Congress may not, of course, base its abrogation of the States’ Eleventh Amendment

immunity upon the powers enumerated in Article I.”).

Because the application of Title II of the ADA to dormitory residents, like ADA

Title I’s general prohibition of employment discrimination, does not enforce a basic

constitutional guarantee secured by § 5 whose violation would trigger a higher standard of

review, and because there is no legislative history indicating Congressional findings sufficient to

support abrogation, the congruence and proportionality enquiries are not implicated. Title II of

the ADA did not effect a valid waiver of the States’ Eleventh Amendment immunity in the

context of dormitory housing.

.

B. Section 504 of the Rehab Act Did Not Effectively Abrogate the States’ Eleventh Amendment Immunity to Suit For Discrimination Based On Disability in the Provision of Dormitory Housing

The Rehab Act also contains a provision which purports to abrogate the States’

Eleventh Amendment immunity. 42 U.S.C. § 2000d-7(a)(1). Because § 504 of the Rehab Act

and Title II of the ADA offer essentially the same protections, the Second Circuit has held that

these statutes are subject to the same Eleventh Amendment analysis. See Garcia v. S.U.N.Y.

Health Center of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001) (superseded in other respects by

Tennessee v. Lane, ___ U.S. ___, 124 S. Ct. 1978 (2004)).

As set forth in Point I.A. supra, dormitory housing is not a fundamental right.

Even if it were, the legislative history of the Rehab Act is devoid of reference to dormitory

housing, or even the broader category of housing. Still less does it reference any pattern of State

discrimination in that arena.

11

Because the application of the Rehab Act to dormitory residents, like ADA Title I’s general prohibition of employment discrimination, does not enforce a basic constitutional guarantee secured by § 5 whose violation would trigger a higher standard of review, and because there is no legislative history indicating Congressional findings sufficient to support abrogation, the congruence and proportionality enquiries are not implicated. The Rehab Act did not effect a valid waiver of the States’ Eleventh Amendment immunity in the context of dormitory housing.
C. The FHA Contains No Abrogation of the States’ Eleventh Amendment Immunity The Fair Housing Act contains no provision unequivocally abrogating the States’
Eleventh Amendment immunity.7 Accordingly, the Eleventh Amendment bars plaintiff’s FHA claim. See Welch v. Century 21 Chimes Real Estate Inc., 1999 WL 29950 at *1 (E.D.N.Y. Feb. 27, 1991) (noting absence of abrogation provision); see also De Jesus-Keolamphu v. Village of Pelham Manor, 999 F. Supp. 556, 564 (S.D.N.Y. 1998) (based on Eleventh Amendment, granting motion to dismiss claims against State defendants for monetary damages under, inter alia, Fair Housing Act).
Because Congress did not abrogate the States’ Eleventh Amendment immunity for the claims set forth in the Amended Complaint, each of plaintiff’s claims must be dismissed in

7

In any event, the Fair Housing Amendments Act was passed pursuant to the

Commerce Clause. See Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192, 195 (5th

Cir. 2000). The Congress does not, however, have the power to abrogate unilaterally the States’

immunity under Article I; rather, it may only do so when its acts under § 5 of the Fourteenth

Amendment. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 59-73 (1996).

12

their entirety as against CUNY/Hunter College, and plaintiff’s claims for damages8 against the individual defendants require dismissal.
Point II Plaintiff Lacks Standing to Sue Under the Fair Housing Act The Fair Housing Act, 42 U.S.C. § 3601 et seq., prohibits discrimination “in the sale or rental” to a “buyer or renter” because of a handicap. 42 U.S.C. § 3604(f)(1). The Act defines “to rent” as “to lease, to sublease, to let or otherwise to grant for a consideration the right to occupy premises not owned by the occupant.” 42 U.S.C. § 3602(e) (emphasis added). The complaint is devoid of allegations to establish that Plaintiff is a “buyer or renter” within the meaning of the Fair Housing Act. Indeed, Plaintiff does not “rent” dormitory housing from Hunter College within the meaning of the Fair Housing Act, because Hunter College provides dormitory housing to Honors College participants such as Plaintiff free of charge. Plaintiff Aff. ¶ 4.9

8

Moreover, the Supreme Court has held that punitive damages may not be awarded

in private suits brought pursuant to 42 U.S.C. § 12132 (Title II of the ADA) or 29 U.S.C. §

794(a) (§ 504 of the Rehab Act). Barnes v. Gorman, 536 U.S. 181, 189 (2002). Plaintiff’s

claims for punitive damages under these statutes must be dismissed.

9

A court considering whether standing exists under Fed. R. Civ. P. 12(b)(1) may

consider extrinsic material. United States v. Vasquez, 145 F.3d 74, 80 (2d Cir. 1998); Kamen v.

American Telephone & Telegraph Co., 791 F.2d 1006, 1011 (2d Cir. 1986). A court

considering a motion under Rule 12(b)(6) may consider the following materials: (1) facts alleged

in the complaint and documents attached to it or incorporated in it by reference, (2) documents

"integral" to the complaint and relied upon in it, even if not attached or incorporated by

reference, (3) documents or information contained in defendant's motion papers if plaintiff has

knowledge or possession of the material and relied on it in framing the complaint, and (4) facts

of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

In re Merrill Lynch & Co., Inc., 273 F. Supp. 2d 351, 356-57 (S.D.N.Y. 2003) (footnotes

omitted).

13

Plaintiff has argued that “in addition to barring discrimination in the sale or rental
of dwellings, the statute specifically and repeatedly makes it unlawful to ‘otherwise make
unavailable or deny’ the right to use property because of a handicap.” Pl. Reply Mem. on TRO at
2, citing 42 U.S.C. § 3604(f)(1) et al. This construction ignores the plain language of the very
statute plaintiff cites, which bars discrimination “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) (emphasis added).10 If one is not a “buyer” or “renter” as defined in the Act, the
“otherwise make unavailable” language is inapplicable. Plaintiff’s Fair Housing Act claim must
be dismissed due to her lack of standing.
Point III
Plaintiff Fails to State a Claim Under § 504 of the Rehab Act, Title II of the ADA, or the Fair Housing Act
A. Plaintiff Is Not “Otherwise Qualified” for Residence in the Hunter College Dormitory, Within the Meaning of Title II of the ADA and § 504 of the Rehab Act
To state a claim for violation of § 504 of the Rehab Act, a plaintiff must show (1)
that she is a “handicapped” or “disabled” person within the meaning of the statutes; (2) that she
is “otherwise qualified” for the program at issue; (3) that she is being excluded from the program
10 The case cited by plaintiff for this proposition, Woods v. Foster, 884 F. Supp. 1169 (D. Ill. 1995), is from another jurisdiction and its reasoning does not appear to have been adopted elsewhere in the ten years since its issuance. In any event, Woods is distinguishable as the defendant program in essence received the “rental” sum from a third party pursuant to a contract for the housing of these residents (as opposed to a grant for funding general operations). Plaintiff’s citation to Anonymous v. Goddard Riverside Community Ctr., Inc., 1997 WL 475165 (S.D.N.Y. July 18, 1997) is misplaced. Judge Scheindlin in fact dismissed that plaintiff’s FHA claim, and only “assume[d]” “for purposes of this motion” that plaintiff’s receipt of federal funds constituted consideration for plaintiff’s housing. Id. at n.4.
14

solely by reason of her disability; and (4) that the program exists as part of a program or activity receiving Federal financial assistance. Doe v. New York University, 666 F.2d 761, 774 (2d Cir. 1981) (reversing mandatory preliminary injunction which had ordered NYU medical school to readmit medical student who was told to move out of her dormitory room and stop attending classes, based on her history of self-harm, suicide attempts, and threatening behavior to others). To establish a violation of Title II of the ADA, a plaintiff must show that (1) she is a qualified individual with a disability; (2) she is being excluded from participation in, or being denied the benefits of some service, program or activity by reason of her disability; and (3) the entity which provides the service, program or activity is a public entity. Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1231 (S.D.N.Y. 2003).
Plaintiff bears the burden of establishing that she is “otherwise qualified” for residence in the Hunter College dormitory. Doe v. NYU, 666 F.2d at 777. This requirement “refers to a person who is qualified in spite of her handicap[;] an institution is not required to disregard the disabilities of a handicapped applicant, provided the handicap is relevant to reasonable qualifications for acceptance, or to make substantial modifications in its reasonable standards or program to accommodate handicapped individuals but may take an applicant’s handicap into consideration, along with all other relevant factors, in determining whether she is qualified[.]” 666 F.2d at 775. Plaintiff does not plead, nor can she establish, that she is otherwise qualified for residence within the Hunter College dormitory, under the analysis set forth by the Second Circuit.
In Doe v. NYU, the Second Circuit considered at length the meaning of “otherwise qualified,” in a strikingly parallel factual situation. The plaintiff in that case was
15

accepted to NYU’s medical school after falsely representing in her application that she did not have any chronic or recurrent illnesses or emotional problems. Despite her academic gifts, she “had suffered for many years from serious psychiatric and mental disorders, which evidenced themselves in the form of numerous self-destructive acts and attacks upon others, followed by periodic treatments by psychologists and psychiatrists and admissions to various psychiatric hospitals for care and therapy.” 666 F.2d at 766. She attempted suicide by a variety of methods, including ingesting sleeping pills and other substances, and she cut herself. She intermittently attended and then terminated therapy. Plaintiff started attending the NYU medical school in September 1975. 666 F.2d at 767. That fall, the school discovered her history of self-harm and suicide attempts. However, the school agreed to permit her to remain at the school on the condition that she undertake therapy and monitoring by the school, conditions to which she agreed. However, she did not continue this therapy, and bled herself. The school directed that she stop attending classes and vacate her dormitory room. She reapplied, and the school declined to admit her after concluding that she did not meet its policy, which required that a student seeking readmission “demonstrate that the problems that precipitated the leave are resolved, that the applicant must be able to handle all of the academic and emotional stress of attending medical school, and that the school must be satisfied that the applicant will be able to function properly after graduation as a physician,” and specifically that “she does not pose a significant risk of reexhibiting her prior disorder.” 666 F.2d at 767-69.
The plaintiff in that action filed suit under the Rehabilitation Act, seeking readmission to medical school; she also applied for a mandatory preliminary injunction requiring
16

the school to readmit her.11 The Second Circuit, considering an appeal of the issuance of a
preliminary injunction, concluded that she was not “otherwise qualified” for readmission, in light
of her handicap. The Court noted that the mere fact of her initial admission to the program did
not establish that she was “otherwise qualified,” as she falsely represented that she did not suffer
from any recurrent illnesses or emotional disorders. 666 F.2d at 777. The Court held, however,
that
NYU . . . was entitled, in determining whether she was qualified, to be advised of and to take into account her mental impairment, since it is directly relevant to her qualifications and bears upon her ability to function as a student and doctor, to get along with other persons, and to withstand stress of the type encountered in medical training and practice. NYU is of necessity concerned with the safety of other students, faculty and patients to whom Doe would be exposed, since this could adversely affect them as well as the success and reputation of its Medical School activities. Any harm done by her as a medical student to others, moreover, might expose it to legal liability for knowingly permitting such exposure.
666 F.2d at 777. The Court continued,
In our view she would not be qualified for readmission if there is a significant risk of such recurrence. It would be unreasonable to infer that Congress intended to force institutions to accept or readmit persons who pose a significant risk of harm to themselves or others, even if the chances of harm were less than 50%. Indeed, even if she presents any appreciable risk of such harm, this factor could properly be taken into account in deciding whether, among qualified applicants, it rendered her less qualified than others for the limited number of places available. In view of the seriousness of the harm inflicted in prior episodes, NYU is not required to

11

The district court granted the plaintiff’s application for a preliminary injunction,

finding that an additional year’s delay in her medical studies would irreparably harm her, while

he concluded that NYU would suffer no hardships. The Second Circuit reversed the grant of a preliminary injunction, finding inter alia that the plaintiff had not in fact demonstrated

irreparable injury. “[T]he evidence indicates that there is a significant risk of recurrence of her

self-destructive and harmful conduct, which NYU should not be required to bear pending trial

and . . . a substantial basis exists for upholding NYU’s decision to deny her readmission.

Against this . . . plaintiff can only show the hardship of delay of another year in admission to

medical school, which as indicated above, she has voluntarily chosen to do in the past. Thus, the

balance of hardships tips in NYU’s favor, not in Doe’s.” 666 F.2d at 778.

17

give preference to her over other qualified applicants who do not pose any such appreciable risk at all. Id. The Court further noted that “her history indicates that although there were no manifestations of disorder for seven years after the earlier episodes in 1963-64, they recurred during the period 1972-1977, indicating that despite a period of dormancy they may recur again.” 666 F.2d at 778.
Plaintiff here cannot meet the standard that requires her to be “otherwise qualified” for readmission to the dormitory. By her allegations, she is substantially limited in the activities of sleeping, eating, and interacting with others, and in taking care of herself. Am. Compl. ¶ 8. These functions are plainly integral to the independent living required in a dormitory. Plaintiff was on medical leave during the majority of her junior year of high school. Id. She has previously been hospitalized for depression and self-harm treatment. Id. and Spann Decl. Ex. 1 (letter from Plaintiff to Pamela Burthwright dated June 14, 2004); see Am. Compl. ¶ 12 (referencing letter). On June 5, 2004, she attempted suicide in her dormitory room, by taking approximately 20 Tylenol PM capsules. Am. Compl. ¶ 10. Earlier in the year, in January 2004, she was taken by ambulance from the dormitory to Cabrini Hospital, after taking an overdose of pain medication, which she maintains was accidental. Plaintiff Aff. ¶ 7.
Plaintiff’s June 5, 2004 suicide attempt directly contravened the housing contract that she signed, which provides that
A student who attempts suicide or in any way attempts to harm him or herself will be asked to take a leave of absence for at least one semester from the Residence Hall and will be evaluated by the school psychologist or his/her designated counselor prior to returning to the Residence Hall. Additionally, students with psychological issues may be mandated by the Office of Residence Life to receive counseling.
18

Am. Compl. ¶ 13. The school declined to permit her to return to the dormitory, and notified her that “the [June 5, 2004] incident raises compelling concerns about your safety and well-being in a dormitory setting.” Spann Decl. Ex. 2 (June 21, 2004 letter from Eija Ayravainen to Plaintiff); see Am. Compl. ¶ 13, referencing letter. Vice President Ayravainen continued, “We believe this decision is in your best interests and the best interests of the Residence Hall community. Our goal is to enable you to receive intensive mental health counseling in a setting with reduced pressures and distractions, which will in turn help you return to the Residence Hall better able to handle the challenges of academic and residence life.” Spann Decl. Ex. 2. Vice President Ayravainen indicated that plaintiff would be required to “make an appointment to see Assistant Dean Madlyn Stokely in the Office of Student Services,” who would “arrange for you to see a Student Services counselor on a regular basis throughout your hiatus from the Residence Hall,” and that the counselor “will coordinate with other mental health professionals who may be assisting you, as appropriate.” Spann Decl. Ex. 2. In response to a later letter from plaintiff’s counsel, the College’s attorney wrote that “in light of the possible harm Ms. [Doe] may cause herself and others in the residence Hall, it is not possible to permit her to reside in the room of the Residence Hall.” Spann Decl. Ex. 3 (July 14, 2004 letter from Linda Chin to David Goldfarb); see also Am. Compl. ¶ 17 (referencing letter). Ms. Chin continued: “We urge Ms. [Doe] to receive or to continue to receive intensive mental health counseling. She may request to return to college housing starting with the Spring, 2004 semester. [She] must also submit medical documentation regarding her emotional well-being[.]” Id.
The pleadings and papers referenced therein demonstrate that Ms. Doe is not “otherwise qualified” for dormitory residence, in light of her history of recurrent self-harm and
19

suicide attempts. The College’s maintenance of this qualification rests on reasons which parallel
those in Doe v. NYU: a concern that dormitory residence poses inherent stressors, which a student must be emotionally able to withstand.12 If a student is not able to withstand those
stressors, the result can be self-harm or even death, with potential attendant negative effects on
other students. Plaintiff has attempted suicide in the Hunter College dormitory at least once, and
possibly twice, indicating difficulty in adjusting to those stressors. She is not “otherwise
qualified” for dormitory residence.
B. The Suicide Provision of the Hunter College Housing Contract Does Not Discriminate on the Basis of Disability
Plaintiff relies upon the Fair Housing Act and the Americans with Disabilities
Act, arguing that she has been discriminated against on the basis of a disability, based on the
defendants’ “blanket rule that anyone who attempts suicide must vacate a dormitory room for a
semester.” Pl. Mem. at 8. By its terms, the Housing Contract suicide provision does not
discriminate against individuals on the basis of disability; the provision rests not on a diagnosis
of mental illness, but on an action, regardless of the origin or cause of that act (as, for example, a
suicide attempt by a student under the influence of alcohol, or in response to the end of a
romantic relationship). A suicide attempt is not a disability; indeed, plaintiff does not claim that
12 Further, CUNY is entitled to be proactive and protect itself from a future lawsuit which could result from any further attempts by plaintiff to harm herself. A search reveals numerous examples of wrongful death lawsuits arising out of student suicides, particularly in the dormitory setting. See, e.g., Jain v. State, 617 N.W.2d 293 (Iowa 2000) (father of university student who committed suicide in his dorm room brought wrongful death action against university, claiming that university owed duty to inform student’s parents of previous suicide attempt); Hoeffner v. The Citadel, 311 S.C. 361, 429 S.E.2d 190 (1993) (parents of college student who committed suicide in his dormitory room brought wrongful death action against college and its physician).
20

it is her disability. Rather, as plaintiff notes, her disability is Major Depressive Disorder and Attention Deficit Hyperactivity Disorder. Plaintiff was originally permitted to reside in the dormitory without regard to her disability (which, as plaintiff alleges, antedates her time at Hunter College, Am. Compl. ¶ 8), as is any other student with mental disorders.
Indeed, the policy pursuant to which plaintiff was suspended from the dormitory applies not only to her suicidal behavior, but to suicidal behavior by non-disabled individuals. Atkins v. County of Orange, 251 F. Supp. 2d 1225 (S.D.N.Y. 2003) (granting motion to dismiss claims by mentally ill county jail inmates under, inter alia, Title II and § 504; plaintiffs do not allege “that violent and self-destructive inmates who are disabled due to mental illness are treated any differently than violent, self-destructive inmates who are not disabled due to mental illness”).
At best, plaintiff’s argument is an assertion that she has been discriminated against based upon the severity of her disability, i.e., that mentally ill students who are not so ill as to attempt suicide are treated preferentially to her, by being permitted to remain in the dormitory. Neither the ADA nor the Rehab Act provides a right of action for alleged discrimination vis-a-vis other handicapped individuals. See Flight v. Gloeckler, 878 F. Supp. 424, 426 (N.D.N.Y) (“section 504 was not intended to be used to advance claims of discriminatory distribution of services to handicapped persons under the Rehabilitation Act”), aff’d, 68 F.3d 61, 63-64 (2d Cir. 1995) (the Rehab Act "does not clearly establish an obligation to meet [a disabled person's] particular needs vis-a-vis the needs of other handicapped individuals, but mandates only that services provided nonhandicapped individuals not be denied [to a disabled person] because he is handicapped.") (quoting P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990)); Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (reversing
21

injunction requiring City to provide safety monitoring services to Medicaid recipients who suffered from mental disabilities that caused them to require assistance with daily living tasks; “services that New York provides to the mentally disabled are no different from those provided to the physically disabled”), cert. denied 531 U.S. 864 (2000).

CONCLUSION

For the foregoing reasons, plaintiff’s amended complaint requires dismissal.

Date: New York, New York October 27, 2004

Respectfully submitted,

ELIOT SPITZER Attorney General of the State of New York Attorney for Defendants By:

/s/ KATHRYN C. SPANN (KS 8143) (212) 416-6378 Assistant Attorney General 120 Broadway, 24th Floor New York, New York 10271

22

 
 EUO r SPITZER
.'\Homey General

STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL
Writer's Direct Dial No.: 2l2A l6-8YJ5

RICHARD RifKIN Deputy Attomey (Jenera!
State Counsel Division
JAMES B. HENLY Assistant Attorney Genera! in Charge
Litigation Bureau

August 15, 2006
Via Fax and U.S. Mail David Goldfarb, Esq. Goldfarb Abrandt Salzman & Kutzin, LLP 350 Fifth Avenue, Suite 1100 New York, New York 10118
Re: Doe v. Hunter College of the City Univ. of New York, eta!. SDNY Docket No. 04 Civ. 6740 (SHS) (FM)
Dear Mr. Goldfarb:
This letter is written to advise you that the suicide policy contained in the Hunter College Office of Residential Life, Terms and Conditions of Housing Contract for the 2003-2004 and 2004-2005 academic years is presently under review by the City University of New York and will be superceded.
Very tmly yours,

Antoinette W. Blanchette Assistant Attomey General

Enclosures

120 Broadway. New York, Nc~\ York l 027) • Telephone 2 l 2-416~8595 ft Fac:sirnik 2 12-41 (y6075 r:-.'ot For Scr,·ice ofPape1s1 http :!hv1vw.oag. state.ny us

 
 UNITED STATES DISTRICT COURT

------------------------------------X

:

JANE DOE,

:

:

Plaintiff,

:

:

v.

:

:

HUNTER COLLEGE, et al.,

:

:

Defendants.

:

------------------------------------X

04-CV-6740
August 25, 2005
500 Pearl Street New York, New York

TRANSCRIPT OF CIVIL CAUSE FOR DECISION BEFORE THE HONORABLE SYDNEY H. STEIN UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff:

DAVID GOLDFARB, ESQ. IRA SALZMAN, ESQ.

For the Defendants:

ANTOINETTE BLANCHETTE, ESQ.

Court Transcriber:

SHARI RIEMER TypeWrite Word Processing Service 356 Eltingville Boulevard Staten Island, New York 10312

Proceedings recorded by electronic sound recording, transcript produced by transcription service

2

1

MR. GOLDFARB: David Goldfarb from Goldfarb, Abrandt,

2 Salzman & Kuzin for Jane Doe.

3

MR. SALZMAN: Ira Salzman also from Goldfarb,

4 Abrandt, Salzman & Kuzin also for Jane Doe.

5

THE COURT: Good morning. Please be seated.

6

MS. BLANCHETTE: Antoinette Blanchette, Assistant

7 Attorney General for the defendants, Your Honor.

8

THE COURT: Good morning, Ms. Blanchette.

9

We're going to tape this. Is the machine on? All

10 right. Because what I'd like to do is read into the record my

11 decision denying defendant's motion to dismiss on the ground

12 that plaintiff has adequately stated a claim for disability

13 discrimination. What I then will do is enter a minute order

14 saying for the reasons set forth on the record today

15 defendants' motion to dismiss is denied.

16

If anyone wants a transcript I'm going to ask whoever

17 transcribes the tape to send the draft to my Chambers and I

18 will fill in the specific cites. In other words, as I read my

19 decision I'm not going to give detailed citations with -- I

20 won't say 354 F.3d so forth. I'll just give the case cite and

21 then when it comes up to me I'll fill in -- and also the record

22 cites. I'll fill in the specific references to the complaint

23 as well as the specific case citations. That's if anybody

24 wants to have the transcript.

25

Then I want to talk with the parties about where

26 we're going in the litigation. But first off tell me --

27 because I think what's most important here is Ms. Doe. Tell me

28 what's happening with Ms. Doe. I take it she's back and by now

3

1 she's a junior in the college. Is that right and she's in the

2 dorm?

3

MR. GOLDFARB: Your Honor, I was unable to contact

4 her at the end of the summer when I get the message about the

5 conference today. So I haven't got an update. When we last

6 spoke to her at the beginning of the summer when she was back

7 in the dorm under the agreement she was having some problems

8 that it was -- we had not resolved what was going to happen

9 next semester but I was assuming that she would continue in the

10 dormitory under the agreement.

11

THE COURT: All right. I see that -- there is a

12 mouse in front of you. I couldn't tell whether there was. So

13 that should have been picked up. Fine.

14

Well, it sounds good. It sounds like she's back and

15 continuing with her education which was obviously a significant

16 part of this. All right.

17

My decision is as follows. Plaintiff brings this

18 disability discrimination action after being evicted from her

19 college dormitory room for attempting to commit suicide. She

20 asserts claims pursuant to the Americans With Disabilities Act,

21 the Rehabilitation Act and the Fair Housing Amendments Act.

22

Defendants have moved to dismiss the complaint

23 pursuant to Fed. R. Civ. P. 12(b)(6).FRCP 12(b)(6).

24 Defendants' motion is denied because plaintiff has adequately

25 stated a claim for disability discrimination.

26

The facts are recounted as follows and are as alleged

27 in the amended complaint. Hunter College of the City

28 University of New York (“Hunter”) is a federally funded

4

1 institution of higher education that owns and maintains

2 Brookdale Residence Hall (“Brookdale”) as a dormitory for its

3 students. (Am. Compl. ¶ 6). Defendant Jennifer Rabb is

4 Hunter's president and defendant IraEija Ayravainen is its vice

5 president. (Id. ¶ 1). Pseudonymous plaintiff Jane Doe was a

6 19 year old sophomore at Hunter when the action was commenced.

7 (Id. ¶ 5).

8

As far as the parties know, Ms. Doe is currently

9 living in Brookdale Residence Hall as a junior at Hunter. Doe,

10 who suffers from major depressive disorder and attention

11 deficit hyperactivity disorder, had to take medical leave

12 during most of her junior year of high school and has

13 previously been hospitalized for depression. (Id. ¶ 8). When

14 it came time for her to choose among her options for college,

15 Doe selected Hunter at least in part because its honors college

16 program offered her free housing. (Id. ¶ 20).

17

When she arrived at Hunter in September of 2003, Doe

18 signed a 2003-2004 housing contract and assumed residence at

19 Brookdale. (Id. ¶ 9). The contract provided that "a student

20 who attempts suicide or in any way attempts to harm him or

21 herself will be asked to take a leave of absence for at least

22 one semester from the Residence Hall and will be evaluated by

23 the school psychologist or his/her designated counselor prior

24 to returning to the Residence Hall. Additionally, students

25 with psychological issues may be mandated by the Office of

26 Residence Life to receive counseling." (Id. ¶ 13).

27

5

1

Toward the end of her first year on June 5, 2004, Doe

2 swallowed twenty Tylenol PM pills and then called 911. (Id. ¶

3 10). An ambulance transported her to Cabrini Medical Center

4 where she received treatment. (Id.). Four days later on June

5 9 the hospital released Doe and she returned to Brookdale.

6 (Id.). Upon arrival she discovered that the locks had been

7 changed on the door to her dormitory room. (Id.). On the next

8 day, June 10, in a meeting with Pamela Burrithwrightte [Ph.] of

9 the Office of Residence Life, and defendant IraEija Ayravainen,

10 Doe learned that Hunter was requiring her to vacate her room.

11 (Id.).

12

Following her eviction, Doe lived with her mother in

13 Queens while continuing to attend school. (Id. ¶ 11).

14

That living situation alleged exacerbated Doe's

15 mental illness. (Id.). On June 14, 2004, Doe wrote to

16 Burthwright Brithwrite and IraEija Ayravainen insisting that

17 she had been discriminated against on the basis of her mental

18 disability. (Id. ¶ 12). A week later on June 21 IraEija

19 Ayravainen informed Doe that she would continue to be excluded

20 from Brookdale, at least through the end of the fall 2004

21 semester. (Id. ¶ 13). IraEija Aygravaninen's letter cited the

22 2003-2004 housing contract and advised Doe that she could apply

23 to return to Brookdale for the spring semester of 2005 at which

24 time Hunter would review her request and notify her whether it

25 would readmit her to the dormitory or not. (Id. ¶ 14).

26

Doe's counsel, David Goldfarb, wrote Hunter on July

27 2, 2004 demanding that the college reverse its decision. (Id.

28 ¶ 15). He claimed that Hunter's policy constituted intentional

6

1 discrimination on the basis of mental disability and that Doe

2 was entitled as a matter of reasonable accommodation to have

3 her residency status immediately reassessed. (Id.). Goldfarb

4 supplemented his letter with a statement from Doe's treating

5 psychiatrist, Dr. David Grodberg, who set forth his diagnosis

6 of major depressive disorder and attention deficit

7 hyperactivity disorder and relayed that he had met with Doe on

8 June 23, approximately two weeks after she had been released

9 from the hospital. (Id. ¶ 16).

10

At that meeting, according to Grodberg, Doe did not

11 exhibit suicidal ideation nor did she pose an imminent threat

12 to herself or others. (Id. ¶ 16). Grodberg explained that the

13 symptoms associated with her hospitalization seemed to have

14 improved and were no longer interfering with her ordinary

15 functioning. (Id.). In addition, Grodberg noted that

16 isolation from the dormitory might be a complicating factor

17 with respect to her illness. (Id.).

18

After Hunter refused to readmit Doe to Brookdale,

19 Goldfarb spoke with Linda Chin, special counsel to defendant

20 Rabb on July 26, 2004 requesting that the school make a

21 reasonable accommodation by considering the summer session to

22 be Doe's full semester of required absence from the dormitory

23 thereby allowing Doe to reapply for housing in the fall. (Id.

24 ¶¶ 17-18). Chin refused to accept that proposal and Doe was

25 not permitted to return to the dormitory for the fall 2004

26 semester. (Id. ¶¶ 18, 20).

27

Doe initially moved for a temporary restraining order

28 requiring Hunter to readmit her to the dorm. After that motion

7

1 was denied Doe moved for a preliminary injunction but later

2 withdrew that motion.

3

I note that although it is not included in the

4 complaint and therefore not considered for purposes of this

5 motion, plaintiff was readmitted to residence in Brookdale

6 beginning with the spring 2005 semester, and as I say as far as

7 we know she's still there.

8

Defendants have moved, as I said, for dismissal

9 pursuant to Fed. R. Civ. P. 12(b)(6)12(b)(6). Everyone knows

10 the standard for review on a 12(b)(6) motion. I can only

11 dismiss plaintiff's claims if it appears beyond doubt that the

12 plaintiff can prove no set of facts in support of his claim

13 which would entitle him to relief. Drake v. Delta Air Lines,

14 Inc., 147 F.3d 169, 171 (2d Cir. 1998) (quoting Conley v.

15 Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80

16 (1957)) (quotation marks omitted). Drake v. Delta Airlines

17 quoting Connelly v. Gibson. I must treat all factual

18 allegations in the complaint as true and draw all reasonable

19 inferences in plaintiff's favor. See Ganino v. Citizens Utils.

20 Co., 228 F.3d 154, 161 (2d Cir. 2000); Lee v. Bankers Trust

21 Co., 166 F.3d 540 (2d Cir. 1999)Aneeno v. Citizen Utilities

22 Co., Levy Bankers Trust. A complaint need only give the

23 defendant fair notice of what the plaintiff's claim is and the

24 grounds upon which it rests. Phillip v. Univ. of Rochester,

25 316 F.3d 291, 293 (2d Cir. 2003) (quoting Conley, 355 U.S. at

26 47). Phillip v. University of Rochester quoting Connelly.

27

The forgiving notice pleading rules apply with

28 particular stringency to complaints of civil rights violations.

8

1 See also, Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512, 122

2 S. Ct. 992, 152 L. Ed. 2d 1 (2002)Swierkiewicz v. Serema, N.A.

3

Defendants offer three arguments in support of

4 dismissing the complaint. One, the Eleventh Amendment; two, a

5 lack of standing to bring a claim pursuant to the Fair Housing

6 Amendments Act (“FHAA”); and three, the complaint fails to

7 state a claim for relief pursuant to Section 504 of the

8 Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a), and

9 Section 202 of Title II of the Americans With Disabilities Act

10 (“Title II”), 42 U.S.C. § 12132.

11

Now, I'm going to take each of those three arguments

12 in turn, the Eleventh Amendment, lack of standing pursuant to

13 the Fair Housing Amendment Act, and complaint fails to state a

14 claim pursuant to Section 504 of the Rehabilitation Act and

15 Section 202 of Title II of the ADA.

16

The first one, the Eleventh Amendment. The Eleventh

17 Amendment provides in pertinent part that “[t]he judicial power

18 of the United States shall not be construed to extend to any

19 suit in law or equity, commenced or prosecuted against one of

20 the United States by Ccitizens of another Sstate.” U.S. Const.

21 amend. XI. For more than a century, see Hans v. Louisiana, 134

22 U.S. 1, 13, 10 S. Ct. 504, 33 L. Ed. 842 (1890)Hands v.

23 Louisiana, the Supreme Court has interpreted the Eleventh

24 Amendment to extend beyond the literal terms of the amendment

25 to confirm what the Supreme Court calls the background

26 principle of state sovereign immunity. See Garcia v. S.U.N.Y.

27 Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001)

28 (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.

9

1 Ct. 1114, 134 L. Ed. 2d 252 (1996))Garcia v. SUNY Health

2 Sciences quoting Seminole Tribe of Florida v. Florida.

3

“The ultimate guarantee of the Eleventh Amendment is

4 that non-consenting Sstates may not be sued by private

5 individuals in federal court.” That's Garcia v. S.U.N.Y., 280

6 F.3d at 107 (quoting Bd. of Trs. of Univ. of Ala. v. Garrett,

7 531 U.S. 356, 363, 121 S. Ct. 955, 148 L. Ed. 2d 866

8 (2001))Board of Trustees of University of Alabama v. Garrett.

9 That guarantee yields, however, to Congress' unequivocal

10 abrogation of a state sovereign immunity pursuant to a valid

11 grant of constitutional authority. See iId. (citing Kimel v.

12 Florida Bd. of Regents, 528 U.S. 62, 73, 120 S. Ct. 631, 145 L.

13 Ed. 2d 522 (2000))Kimmel v. Florida Board of Regents.

14

Defendants contend that the Eleventh Amendment bars

15 all of plaintiff's claims against Hunter as well as her claims

16 for monetary relief against the individual defendants, Rabb and

17 Ayravaninen. Plaintiff responds that the Eleventh Amendment is

18 not a bar to any of her claims and insofar as she seeks money

19 damages she seeks them only pursuant to Section 504 (Pl.’s Mem.

20 in Opp. Mot. to Dismiss at 1, 6), and that with respect to that

21 statute Hunter has waived its sovereign immunity regardless of

22 whether the claim is for money damages or for injunctive

23 relief.

24

Since plaintiff seeks damages only pursuant to

25 Section 504 of the Rehabilitation Act, the Court must determine

26 whether plaintiff may bring her claims for injunctive and

27 declaratory relief pursuant to Title II and the FHAA. See

28 Seminole Tribe, 517 U.S. at 44See Seminole Tribe. In addition,

10

1 with respect to plaintiff's Section 504 claim, I must determine

2 whether plaintiff can sue for damages.

3

A) Injunctive and declaratory relief pursuant to

4 Title II and the FHAA. As state entitiesy, senior colleges of

5 the City University of New York, including Hunter, receive

6 protection of New York State sovereign immunity. See Clissuras

7 v. City of New York, 359 F.3d 79, 82 (2d Cir.), cert. denied, -

8 -- U.S. ----, 125 S. Ct. 498, 160 L. Ed. 2d 372

9 (2004).Clissuras v. City of New York. When sued in their

10 official capacities officers of state entities such as Rabb and

11 IraEija Aygravaninen are shielded from suit to the same extent

12 as the state entities themselves. See Garcia, 280 F.3d at

13 107See Garcia. There's no indication in here that plaintiff

14 intends to sue Rabb and Ira Eija Aygravaninen as individuals

15 and indeed the caption lists the administrators with their

16 titles next to their names. (Am. Compl. at 1). So it clearly

17 appears that they're being sued in their official capacities

18 and therefore the protections of the Eleventh Amendment extend

19 to the individuals as well as to Hunter.

20

However, the well settled Ex parte Young, 209 U.S.

21 123, 29 S. Ct. 441, 52 L. Ed. 714 (1908), ex parte Young

22 exception to the principle of sovereign immunity permits suits

23 for declaratory or injunctive relief against state officers to

24 prevent them from engaging in ongoing violations of federal

25 law. See Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir.

26 2003), cert. denied, 541 U.S. 936, 124 S. Ct. 1658, 158 L. Ed.

27 2d 356 (2004); see also W. Mohegan Tribe and Nation v. Orange

28 County, 395 F.3d 18, 21 (2d Cir. 2004).See Henrietta Dee v.

11

1 Bloomberg. See also W. Mohegan Tribe and Nation v. Orange

2 County. The Eex parte Young doctrine rests on an “obvious

3 fiction.”; aAlthough the state is the actual party in

4 interest, the suit must be brought against the state official.

5 See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 270,

6 117 S Ct. 2028, 138 L. Ed. 2d 438 (1997). See Idaho v.

7 Cordelen Tribe of Idaho. The Eex parte Young doctrine allows

8 plaintiff to bring her claims for injunctive and declaratory

9 relief from alleged ongoing discriminatory practices insofar as

10 those claims are brought against the individual defendants.

11 The Eex parte Young doctrine does not apply, however, to

12 plaintiff's injunctive relief claims against Hunter.

13

Moreover, plaintiff does not contend that Hunter has

14 consented to suit pursuant to the FHAA and Title II.

15 Therefore, plaintiff's claims pursuant to those statutory

16 provisions can only survive against Hunter if those provisions

17 constitute effective abrogations of sovereign immunity.

18 Nevertheless, because plaintiff may be afforded full relief by

19 virtue of Eex parte Young claims against the individual

20 defendants, I'm not going to engage in unnecessary

21 constitutional interpretation to determine whether Title II and

22 the FHAA were valid abrogations of state sovereign immunity.

23

Congress may not properly abrogate sovereign immunity

24 pursuant to the powers granted it by Article I of the U.S.

25 Constitution. See Garcia, 280 F.3d at 108; and SSeminole

26 Tribe, 517 U.S. at 72-73.. But Congress may abrogate state

27 sovereign immunity pursuant to its power to enforce Section 5

28 of the Fourteenth Amendment. See Garcia, 280 F.3d at 108;

12

1 Kimel, 528 U.S. at 80. See Garcia and Kimmel. Therefore, to

2 determine whether plaintiff may properly sue Hunter for

3 injunctive and declaratory relief pursuant to Title II and the

4 FHAA, I would have to ascertain whether those statutes

5 constitute valid Section 5 enforcement legislation for the

6 purposes of remedying the type of injury at issue here. See

7 Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, 158 L. Ed. 2d

8 820 (2004)..

9

Before undertaking that constitutional inquiry,

10 however, I'm obligated first to evaluate whether the Court may

11 resolve the dispute without interpreting the Constitution

12 because if I can reach a conclusion without rendering a

13 constitutional interpretation that's the better path and the

14 more logical path. See Jean v. Nelson, 472 U.S. 846, 854, 105

15 S. Ct. 2992, 86 L. Ed. 2d 664 (1985) (quoting Spector Motor

16 Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct. 152, 89

17 L. Ed. 101 (1944)); see also United States v. Rumely, 345 U.S.

18 41, 45-46, 73 S. Ct. 543, 545-46, 97 L. Ed. 770 (1953); Horne

19 v. Coughlin, 191 F.3d 244, 246 (2d Cir. 1999).Jean v. Nelson

20 quoting Specter Motor Services, Inc. v. McLaughlin, United

21 States v. Rumely, Horn v. Caughlin. Here, resolving the

22 constitutional question of whether Title II and the FHAA

23 constitute valid Section 5 abrogation of state sovereign

24 immunity is absolutely unnecessary to afford plaintiff total

25 relief.

26

In her claims against the individual defendants who

27 oversee Hunter and are subject to the Eex parte Young doctrine,

28 plaintiff may realize all injunctive and declaratory relief she

13

1 seeks. Therefore, no prejudice will inure to plaintiff by

2 virtue of the Court's refusal to engage in this constitutional

3 analysis at this time. See Lyng v. Northwest Indian Cemetery

4 Protective Ass’n, 485 U.S. 439, 446, 108 S. Ct. 1319, 99 L. Ed.

5 2d 534 (1988)Ling v. Northwest Indian Cemetery Protective

6 Association.

7

In CSX Transportation, Inc. v. Board of Public Works

8 of State of West Virginia, the U.S. Court of Appeals for the

9 Fourth Circuit declined to address the question of sovereign

10 immunity when complete relief was available to a plaintiff as

11 it is here by means of the Eex parte Young doctrine. See 138

12 F.3d 537, 540 (1998). Just as in CSX Transportation,

13 plaintiff's claims for injunctive relief against Hunter for

14 violation of Title II and the FHAA are duplicative of her

15 claims against the individual defendants in their official

16 capacities. I decline to engage in the unnecessary

17 constitutional analysis.

18

That takes care of the injunctive and declaratory

19 relief pursuant to the Title II and the FHAA. Now we'll turn

20 to the damages under Section 504.

21

Plaintiff's claim pursuant to Section 504 of the

22 Rehabilitation Act is brought for damages as well as injunctive

23 and declaratory relief. The doctrine of sovereign immunity

24 only permits suits for damages against states when Congress has

25 validly abrogated the state sovereign immunity or when the

26 state has consented to suit. See Idaho v. Coeur d’Alene Tribe

27 of Idaho, 521 U.S. 261, 267-68, 117 S Ct. 2028, 138 L. Ed. 2d

28 438 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58,

14

1 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)Idaho v. Cordelen

2 Tribe of Idaho, Will v. Michigan Department of State Police.

3

By accepting federal funds, Hunter has waived its

4 sovereign immunity to suit pursuant to Section 504. Congress

5 may induce consent to a waiver pursuant to its Article I

6 spending clause powers by conditioning the provision of federal

7 funds on relinquishment of sovereign immunity. See Garcia, 280

8 F.3d at 113.. Congress enacted Section 504 pursuant to its

9 spending clause powers and has explicitly provided that receipt

10 of federal funds constitutes a waiver of sovereign immunity for

11 Section 504 enforcement purposes. See Garcia (citing 42 U.S.C.

12

13 §' 2000Dd-7). That provides, in part, that a state “shall not

14 be immune under the Eleventh Amendment of the Constitution of

15 the United States from suit in Ffederal court for a violation

16 of Section 504 of the Rehabilitation Act.” 42 U.S.C. § 2000d-

17 7(a)(1). So it's quite specific. See also Barbour v.

18 Washington Metro Area Transit Auth., 374 F.3d 1161, 1166 (D.C.

19 Cir. 2004), cert. denied, --- U.S. ----, 125 S. Ct. 1591, ---

20 L. Ed. 2d ---- (2005); Lovell v. Chandler, 303 F.3d 1039, 1051-

21 52 (9th Cir. 2002); Koslow v. Pennsylvania, 302 F.3d 161, 170-

22 71 (3d Cir. 2002); Robinson v. Kansas, 295 F.3d 1183, 1189-90

23 (10th Cir. 2002); Nihiser v. Ohio Envtl. Prot. Agency, 269 F.3d

24 626, 628-29 (6th Cir. 2001); Jim C. v. United States, 235 F.3d

25 1079, 1081-82 (8th Cir. 2000); Stanley v. Litscher, 213 F.3d

26 340, 344 (7th Cir. 2000); Pederson v. La. St. Univ., 213 F.3d

27 858, 875-76 (5th Cir. 2000); Sandoval v. Hagan, 197 F.3d 484,

28 493-94 (11th Cir. 1999), rev’d on other grounds, 532 U.S. 275,

15

1 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001); Litman v. George

2 Mason Univ., 186 F.3d 544, 554 (4th Cir. 1999)See also Barbara

3 v. Washington Metropolitan Area Transit Authority, Lovell v.

4 Chandler, Koslow v. Pennsylvania, Robinson v. Kansas, Nihiser

5 v. Ohio Environmental Protection Agency, Jim Cee v. United

6 States, Stanley v. Litscher, Peterson v. Louisiana State

7 University, Sandoval v. Haigen and Littman v. George Mason

8 University.

9

In Garcia v. S.U.N.Y. Health Sciences Center, the

10 Second Circuit explained that a state could not knowingly have

11 waived its sovereign immunity for Section 504 purposes by

12 accepting federal funds at a time when it mistakenly believed

13 as a result of the Second Circuit's decision in Kilcullen v.

14 New York State Dep’t of Labor, 205 F.3d 77, 82 (2d Cir.

15 2000)Culcohen v. New York State Department of Labor that the

16 state sovereign immunity had already been abrogated pursuant to

17 the ADA. 280 F.3d at 114. Kilcullen Culcohen held that Title

18 I of the ADA was an effective abrogation of state sovereign

19 immunity pursuant to the Section 5 enforcement power of

20 Congress. See 205 F.3d at 78-81. The U.S. Supreme Court

21 implicitly overruled that holding in Board of Trustees of the

22 University of Alabama v. Garrett. See 531 U.S. at 368. The

23 Garcia court concluded that a state could not have deliberately

24 waived its right to sovereign immunity from Section 504 suits

25 when, in reliance on Kilcullen, Culcohen the state falsely

26 believed its sovereign immunity to have already been abrogated

27 with respect to the ADA. See 280 F.3d at 114.

16

1

Footnote 4 of Garcia indicated a state might

2 knowingly waive its sovereign immunity by continuing to accept

3 federal funds after it became clear that the Americans With

4 Disabilities Act does not abrogate state sovereign immunity in

5 certain circumstances. Id. n.4.

6

District courts within the Second Circuit that have

7 addressed this issue since Garcia have agreed that at some

8 point it became sufficiently clear that Title II might not have

9 been an effective abrogation and that continued acceptance of

10 federal funds thereafter was a meaningful waiver of sovereign

11 immunity from Section 504 enforcement suits. Those courts have

12 disagreed, however, over the specific date when the state

13 should have been put on notice. For our purposes we don't have

14 to be concerned with that dispute because we're talking about

15 events here long after that issue.

16

Some courts have held that the operative date was

17 September 25, 2001 when Garcia was decided. See Killcullen v.

18 New York State Dep’t of Labor, No. 97-CV-484, 2003 WL 1220875,

19 at *3 n.1 (N.D.N.Y. Mar. 13, 2003)Culcohen. While others have

20 held that it was February 25, 2001 when Garrett was decided.

21 See Cardew v. New York State Dep’t of Corr. Servs., No. 01 Civ.

22 3669, 2004 WL 943575, at *8 (S.D.N.Y. Apr. 30, 2004)Cardo v.

23 New York State Department of Correctional Services. One case

24 suggested in dictum the states may have knowingly waived

25 sovereign immunity as early as April 17, 2000 when the Supreme

26 Court granted the writ of certiorari in Garrett. See Wasser v.

27 New York State Office of Vocational and Educ. Servs. For

28 Individuals with Disabilities, No. 01-CV-6788, 2003 WL

17

1 22284576, at *10 (E.D.N.Y. Sept. 30, 2003). See Wasser v. New

2 York State Office of Vocational and Educational Services. I do

3 not need to weigh in on that dispute regarding the date as of

4 which knowing waiver occurred. See Doe v. Goord, No. 04 CV

5 0570, 2004 WL 2829876, at *17 (S.D.N.Y. Dec. 10, 2004). Doe v.

6 Goord. Regardless of which date is operative, the events

7 giving rise here occurred well after the state knowingly waived

8 its sovereign immunity because Doe was excluded from her dorm

9 room in the spring of 2004 and remained excluded until the

10 spring or the beginning of 2005.

11

To the extent plaintiff brings claims for injunctive

12 and declaratory relief pursuant to Title II and the FHAA, the

13 Eex parte Young doctrine permits her to maintain her suit

14 against the individual defendants. To the extent she seeks

15 damages pursuant to 504, Hunter has waived its sovereign

16 immunity and therefore the Eleventh Amendment does not preclude

17 plaintiff's action.

18

Now let's go on to the lack of standing to pursue an

19 FHAA claim. Defendants claim that plaintiff lacks standing to

20 bring a claim under the FHAA because she does not rent her

21 dormitory room from Hunter College within the meaning of the

22 Fair Housing Act according to defendants. I view that as an

23 issue of a substantive element of a claim for relief and not a

24 standing issue. So it's really to be determined later.

25 There's enough here to get by on this pleading issue.

26

The provision creating a private right of action for

27 violation of the FHAA entitles an aggrieved person to sue for

28 relief. 42 U.S.C. § 3613(a). An aggrieved person includes

18

1 someone who “claims to have been injured by a discriminatory

2 housing practice.” 42 U.S.C. § 3602(i)(1). A discriminatory

3 housing practice is any practice made unlawful by Sections

4 3604, 3605, 3606 or 3617 of Title 42. 42 U.S.C. § 3602(f).

5 This broad language leads courts to refrain from imposing

6 standing barriers beyond those required by Article III on

7 plaintiff's attempting to vindicate rights that have allegedly

8 been compromised by violations of the FHAA. See Smith v.

9 Pacific Props. & Dev. Corp., 358 F.3d 1097, 1102 (9th Cir.

10 2004), cert. denied sub nom. Pacific. Props. & Dev. Corp. v.

11 Disabled Rights Action Comm., --- U.S. ----, 125 S. Ct. 106,

12 160 L. Ed. 2d 116; see also Transp. Workers Union of Am., Local

13 100, AFL-CIO v. New York City Transit Auth., 342 F. Supp. 2d

14 160, 165 (S.D.N.Y. 2004).See Smith v. Pacific Properties &

15 Development Corp., Transportation Workers Union of America v.

16 New York City Transit Authority.

17

In Regional Economic Community Action Program, Inc.

18 v. City of Middletown, the Second Circuit held that an

19 organization had standing to bring an FHAA claim on behalf of

20 itself and a class of aggrieved persons when it was denied a

21 special use permit to create halfway houses for recovering

22 alcoholics. 294 F.3d 35, 46 n.2 (2d Cir. 2002). The court did

23 not treat buyer or renter status as a standing prerequisite for

24 the purpose of the plaintiff's FHAA claim. Id. Accordingly, I

25 do not accept defendant's argument that plaintiffs lack

26 standing to bring an FHAA claim.

27

Defendants' arguments properly addressed as one

28 relating to failure to state a claim. However, even when so

19

1 construed, the argument is unavailing. The FHAA makes it

2 unlawful “[t]o discriminate against any person in the terms,

3 conditions or privileges of sale or rental of a dwelling, or in

4 the provision of services or facilities in connection with such

5 dwelling, because of a handicap of that person.” 42 U.S.C. §

6 3604(f)(2)(A). Discrimination includes a refusal to make

7 reasonable accommodation and rules, policies, practices or

8 services when such accommodations may be necessary to afford

9 such person an equal opportunity to use and enjoy a dwelling.

10 That's a quote from Shapiro v. Cadman Towers, Inc., 51 F.3d

11 328, 333 (2d Cir. 1995) (quoting 42 U.S.C. §

12 3604(f)(3)(B)).Shapiro v. Cadman Towers.

13

I cannot say at this early stage of the litigation

14 before there's been any discovery that the allegations as

15 contained in the complaint are entirely inconsistent with

16 plaintiff's potential recovery pursuant to the FHAA. See

17 Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512, 122 S. Ct.

18 992, 152 L. Ed. 2d 1 (2002).See Swierkiewicz. Even assuming

19 that defendants are correct that a plaintiff who is not a

20 purchaser or a renter cannot state a claim pursuant to the

21 FHAA, the fact that plaintiff did not pay money for the right

22 to live in her dormitory room may not be dispositive. She may,

23 for example, haved provided consideration in another form that

24 would qualify her as a renter. I cannot say that "it is clear

25 that no relief could be granted under any set of facts that

26 could be proved consistent with the allegations." That's from

27 Swierkiewicz , at 514 (quoting Hishon v. King & Spalding, 467

28 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984)). quoting

20

1 Hyshon v. King & Spalding. Therefore, I'm not going to

2 dismiss the FHAA claim.

3

Now let's turn to the alleged failure to state a

4 Title II of the ADA and Section 504 of the Rehabilitation Act

5 claim.

6

Defendants take the position that plaintiff has

7 failed to state a claim under 504 of the Rehabilitation Act and

8 Title II of the ADA. 504 provides that “[n]o otherwise

9 qualified individual with a disability in the United States …

10 shall, solely by reason of his or her disability, be excluded

11 from participation in, and be denied the benefits of, or be

12 subjected to discrimination under any program or activity

13 receiving fFederal financial assistance. 29 U.S.C. § 794(a).

14

In Title II of the ADA mandates that “no qualified

15 individual with a disability shall, by reason of such

16 disability, be excluded from participation in or be denied the

17 benefits of the services programs or activities of a public

18 entity or be subjected to discrimination by any such entity.”

19 42 U.S.C. § 12132. Although phrased differently, the standards

20 imposed by Title II and Section 504 are essentially the same

21 and the two statutes are ordinarily interpreted together. See

22 Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir.

23 2004); Henrietta D., 331 F.3d at 272See PAL v. National Board

24 of Medical Examiners Henrietta Dee.

25

In the wake of the Supreme Court's decision in

26 Swierkiewicz, a discrimination claim need not establish a prima

27 facie case in order to survive a motion to dismiss. 534 U.S.

28 at 512; see Budde v. United Ref. Co. of Pennsylvania, No. 03-

21

1 CV-6547, 2004 WL 1570262, at *2 (W.D.N.Y. July 9, 2004); Sanzo

2 v. Uniondale Union Free Sch. Dist., 225 F. Supp. 2d 266, 270

3 (E.D.N.Y. 2002).See Budde v. United Refining Company of

4 Pennsylvania, Sanzo v. Uniondale Union Free School District. A

5 complaint must provide the defendant simply with a short and

6 plain statement of the claim showing that the pleader is

7 entitled to relief pursuant to Rule 8A. Fed. R. Civ. P. 8(a).

8 From that short and plain statement, defendants have to have

9 “fair notice of what the plaintiff's claim is and the grounds

10 upon which it rests.” That's from Swierkiewicz, 534 U.S. at

11 512 (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2

12 L. Ed. 2d 80 (1957))Swierkiewicz.

13

The amended complaint, I find, complies with

14 Swierkiewicz. As this litigation proceeds, facts may develop

15 that are consistent with the allegations that would entitle her

16 to relief. See id. at 514 (quoting Hishon, 467 U.S. at 73).

17 Defendants argue that as a matter of law the facts alleged lead

18 to the conclusion that plaintiff was unqualified to live in the

19 housing. Defendants also maintain that plaintiff did not

20 suffer any discriminatory treatment on account of her

21 disability. The allegations in the amended complaint do not,

22 however, demonstrate a patent lack of qualification or absence

23 of discrimination.

24

Although plaintiff has alleged that she's

25 “substantially limited in the major life activities of

26 sleeping, eating, thinking and interacting with others” as well

27 as that she has “a history of substantial limitation in caring

28 for herself,” (Am. Compl. ¶ 8), those allegations do not

22

1 establish as a matter of law that she lacks “functions [that]

2 are plainly integral to the independent living required in a

3 dormitory.” (Def.’s Mem. in Supp. of Mot. to Dismiss at 18).

4

Title II requires that individuals are qualified for

5 particular services when they can “with or without reasonable

6 modifications to rules, policies or practices … meet[] the

7 essential eligibility requirements for the receipt of services

8 or the participation in programs or activities provided by a

9 public entity.” 42 U.S.C. § 12131(2). Her allegations do not

10 foreclose the possibility that even with reasonable

11 accommodation she would be unable to meet the requirements for

12 residence in Brookdale. Indeed, to the extent her ability to

13 live in the dorm without hurting herself may have been a

14 legitimate qualification, she has alleged facts that indicate

15 that she might have been able to reside at Brookdale safely

16 before being permitted to return.

17

For example, the amended complaint includes a

18 description of an opinion issued by her treating physician that

19 by July of 2004 "she did not exhibit suicidal ideation and did

20 not place herself or others in imminent danger;, that the

21 symptoms that were associated with her hospitalization appeared

22 to have improved and currently do not disrupt her emotional,

23 academic and social functioning." (See Am. Compl. ¶ 16).

24 Plaintiff may have been qualified to reside in Brookdale at

25 some point before she was readmitted or at least she may have

26 been capable of becoming qualified if provided reasonable

27 accommodation.

23

1

Defendants maintain that neither the terms of the

2 housing contract nor its implementation constitute

3 discrimination against plaintiff on account of her disability.

4 Defendants characterize their policy as a neutral, conduct-

5 based one that was administered in a non-discriminatory manner.

6 (Defs.’ Reply Mem. in Supp. of Mot. to Dismiss at 8). Even

7 assuming that defendants are correct that the policy did not

8 constitute disparate treatment or intentional discrimination,

9 plaintiff may still have a viable claim for failure to make

10 reasonable accommodation. See Reg’l Econ. Cmty. Action Prog.,

11 Inc., 294 F.3d at 48.Regional Economy Committee Action

12 Progress, Inc.

13

In sum, I cannot determine from the facts alleged in

14 the amended complaint “that no relief could be granted under

15 any set of facts that could be proved consistent with the

16 allegations.” Swierkiewicz, 534 U.S. at 514 (quoting Hishon,

17 467 U.S. at 73). That's Swierkiewicz again which sets a low

18 bar under 12(b)(6). I, therefore, am denying defendants'

19 motion to dismiss the complaint.

20

In sum, the Eleventh Amendment does not bar

21 plaintiff's claims and she has stated claims upon which relief

22 can be granted. Defendants' motion is denied.

23

Thank you.

24

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I certify that the foregoing is a court transcript

3 from an electronic sound recording of the proceedings in the

4 above-entitled matter.

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Shari Riemer

8 Dated: 9/7/05

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 Case 1:04-cv-06740-SHS-HBP Document 57 Filed 08/22/06 Page 1 of 8

UNITED STATES DlSTRICT COURT
S-O--U-T-H-E-R-N--D-I-S-T-R-I-C-T-O-F--N-E-W--Y--O·R-K-----X
JANE DOE,
Plamtirt:

USDCSDNY
DOCUMENT ELECfRONICALLY FILED
DDAOTCE#F:I_LE_D_:<Jsi-+17-uJ~+fv.__,..t/_/n1}......,...
STIPULATION OF SETTLEMENT, GENERAL RELEASE & ORDER OF DISMISSAL

-against-

04 Civ. 6740 (SHS)

~CO~GEOFTimCITY
UNIVERSITY OF NEW YORK, JENNIFER RAAB, and EllA AYRAVAINEN,

(ECF)

Defendants,
--·-·-----------------·-----X

WHEREAS, Plaintiff commenced the above-captioned action ("the Action") by filing a complaint on or about August 20, 2004, alleging, inter alia, claims fur disability discrimination pursiWlllO the Fair Housing Amendments Act of 1988, 42 U.S.C. §360 I, et seq., the Americans with Disabilities Act of 1990, 42 U.S.C, §12101 et :seq., and the Rehabilitation Act of 1973, 29 U.S,C, §794 et seq.; and

WHEREAS, all claims asserted against Defendants Jennifet Raab and Eija Aymvaincn are simultaneOusly being dismissed pursuant to a StipUlation & Order ofVoluntary Dismissal in accordance with Fed. R Civ. P. 4l(a); and

WHEREAS, Defendant City University ofNew York (slhfa Huntet College ofthe City University ofNew York)1 ("Defendant• or "CUNY") has expressly denied any wrongful conduct or liability, or lliolation ofany Federal, State or Local statute, ordinance or law, in the Action
whatsoever; and

WHEREAS, Plaintiff and Defendant desire to fully resolve the Action and any and all other disputes, whether known or unknown, between them without further litigation and without admission of fault or liability; and

NOW, TimRE.FORE, in consideration of the mutual promises, covenants, representations and other consideration contained in this StipUlation ofSettlement, General
Relea.re & Order ofDismi.!ual (''Agreement"), Plaintiff and DefendSill: hereby stipulate and agree
as follows:

1 A! a seoior oollego and subdivision of (,"UNY, HWller Collego is not • legally e<>g!liuble entity separate tmm
s.. CUNY. N.Y. Edue. LaW §§6202(2) and{S), Therdore, CUNY is lhe $Ole appropriate illlllitutiooa!.P""Yill
illcercs.t in ibis action.
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1.0 Dismisstll oftbe Action with Prejudice
The Action against Defendant is hereby voluntarily dismissed, with prejudice, pUISuanl to Fed. R. Civ. P. 4l(a) and without payments, costs, disbUISements, expenses or attorney's fees in excess of the amounts specified in Parngraphs 3.2 and 3.4 herein.
2.0 Gencl'lll Rdeue and Di~~ebarge
2.1 In consideration of the payments set forth in Paragraphs 3.2 and 3.4 herein, Plaintiff hereby completely release• and furever di5Cbarges Defendant from any and all claims, demands, obligations, actions, causes of action, rights, damages, costs, el(penses and compensation ofany nature whatsoever including, without limitation, any and all known or uuknown clairn5 under any Federal, State or Local law, statute, constitution, rule, regulation or ordinance arising irom or based upon events or conduct occurring prior to or on the date of Plaintifrs execution of this Agreement
2.2 This rel('ase and discharge shall also apply to Defendant's officers, directors, stockholders, attorneys, agents, servants, representatives, employees, mbsidiaries, affiliates, partners, predeeesson and successors in interest and assigns and all other pCillons, firms or
corporations with whom any ofthe former have been, or are now affiliated.
2.3 This release, on the part of Plaintiff, shall be a tully binding and complete settlement among Plaintiff, Defendant, and their heirs, assigns and successors.
2.4 Plaintiffac.knowledges and agrees that the release and discharge set forth above is a general release. Plaintiff ~ressly waives and asswnes the risk of any and ail claims for damages which exist aa ofthis date, but ofwhich the Plaintiffdoes not know or suspect to exist, whether through ignorance, oversight, error, negligence. or otherwise, and which, ifknown, would mat.roany affect Plaintiffs decision to enter into this Agreement. Plaintiff further agrees that she has accepted payment ofthe sums specified herein as a complete compromise ofmatters involving disputed issues of law and fact. Plaintiff aasumea the risk that the facts or law may be other than she believes. It ia undentood and agreed to by the parties that this settlement is a compromise of a disputed claim, and the payments are not to be construed as an admission of liability on the part ofthe Defendanl, by whom liability is ~ressly denied.
3.0 Payme11u
:u In consideration ofthe dismissal and general release and discharge set forth in Sections I
and 2 herein, Defendant agrees to pay or cause to be paid to the individual(s) named below (the "Payee(a)") the sums outlined in Paragraphs 3.2 and 3.4 herein.
3.2 Payments due at the time ofsettlement as follows:
$70,000.00 payable to Goldfilrb Abrandt Salzman&. Kutzin LLP, Attorneys for Plaintiff $30,000.00 payable to Bazelon Center for Mental Health Law, Attorneys for Plaintiff
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3.3 The amounts set forth in Paragraph 3.2 herein shall be paid in full and complete satisfaction of any and all claims for costs, disbursements, expenses md attorney's fees incurred
by Plaintiff for any and all legal counsel, experts or consultants who have at any time represented or consulted with Plaintiff in connection with the Action as well as in connection with any other pl'O()eeding, administrative, judicial or otherwise, and any other claim or action arising from. based upon or alleging any of the acts, transactions, oceul!ences or omissions assened in the
Action.
3.4 Periodic payments made according to the schedule as follows (the "Periodic Payments"):
monthly guaranteed for 48 months only.
3.5 The cost to Defendant of the periodic payments set forth in paragraph 3.4 herein is Sixty Two Thousand Four Hundred Ninety Seven dollars ($62,497.00), disclosure ofwhich has been required as a condition of settlement No pan of the total sum being paid by Defendant to provide future periodic payments as set forth in this Release may be paid directly to Plairniff in advance ofthe payment date, inasmuch as the panics negotiated and have hereby agreed to a structured settlement
3.6 The term "guaranteed" as it is used in Paragraph 3.4 herein, shall be construed to mean "payments that will be made whether the Payee is alive or not at the time the payment is due". Should the Payee identified in Paragraph 3.4 herein expim prior to said Payee's receipt of all payments deseribed as "guaranteed", the remainder of the "guaranteed" payments shall be
payable to the Estate o~ any such person she may so designate. Payee may request in writing that any Assignee (u defined in Sections 5, 6, and 7 below) change the beneficiary designation Wider this Agreement Assignee will do so but will not be liable, however, for any payment made p~request or so soon therea:fter that payment could not reasonably be stopped. ~a duly anthoriud representative of ~all be responsible for maintaining accurate address and mortality information with the Assignee and for promptly notifYing the Asalgnee, in writing, ofany changes which may affect payments made hereunder.
3.7 Defendant hu no notice of lillY liens. In the event ofthe existence of any outstanding liens, it is understood and agreed that Plairniff shall be solely responsible to satisfY any and all such liens and that Plaintiff shall indemnifY and hold Defendant ha.tmless from any and all claims made by lienholders, whether such claims have been made or ere in the future made.
3.8 In the event that any taxing authority or any other Fedetal, State or Local government, administrative agc::ncy or court issues a iinaJ determination that Defendant and/or the State of New Yolk are liable fur the failure ofPlaintiffand/or her repnosentatives to pay Federal, State or Local income or other taxes or withboldings with respect to any portion of the payments refem::d to in Paragraphs 3.2 and 3.4 herein, or a.re liable for interest or penalties related thereto, Plaintiff agrees to reimb11I6e and indemnify Defendant and/or the State of New York for any Federal, State or Local taxes that Plaintiffshould have paid with respect to any portion of the payments referenced in Paragraphs 3.2 and 3.4 herein. so long as Plaintiff'hu been provided with notice of
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any such claim or proceeding agairu;t Defendant and/or the State ofNew York promptly following receipt of notice of such claim or proceeding by Defendant and/or the State ofNew York. Notice to Plaintiff in care ofthe law officea ofGoldfam Abrandt Salzmlln & Kutzin ILP,
shall constitute sufficient notice under Ibis provision.
3.9 The payments by Defendant referenced in Paragraphs 3.2 and 3.4 herein are subject to the approval of all appropriate state officials in accordance with N.Y. Pub. Off. Law §17, and the settlement memorialized herein shall not be binding on Defendant until sU£h approvals have been finalized.
4.0 Plalutiff's Rights to Payments
Plaintiff acknowledges that the Periodic Payments cannot be accelerated, deferred, incrcsaed or decreased by the Plaintiff; nor shall Plaintiffhave the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or othelwise. Defendant and/or its Assignee (as defined in Paragraphs .5, 6 and 7 herein) shall not segregate or set aside any of its assets to fund the periodic payments to Plaintiffas required by Paragraph 3.4 herein, it being und.el;stood that Plaintiffis and shall be a general creditor of Defendant and/or its Assignee as defined in Paragraph 6.1 herein. No part ofthe payments called for in Paragraphs 3.2 and 3.4 herein or any assets ofDefendant and/or its Assignee are to be subject to the execution of any legal process fur any obligation of Plaintiffin any manner. Transfer oftbe periodic payments is
thus prohibited by the terma of Ibis structured settlement and may otherwise be prohibited or restricted under applicable law.
S.O Recipient of Any GWiraateed Payments RemaiDIDg After the Death of PlalDttff
Any payments to be made after the death of any Payee plii:Suant to the terms of this .Agn!ement shall be made to such person or entity as shall be designated in writing by Plaintiff to Defendant. lfno person or entity is so designated by Plaintiff. or if the person designated is not living at the time ofthe Payee's death, such payments shall be made to the estate ofthe Payee. No such designation, nor any revocation thereof; shall be effective unlcsa it is in writing and delivered to Defendant or Non-Qualified Assigned Benefits Company (''NABCO"). The designation must be in a form acceptable to Defendant or NABCO before such payments are made.
6.0 Consent tv Non-QualiJied Assignment
6.1 Plaintiff acknowledges and agrees that Defendant may enter into a Non-Qualified Assignment with NABCO. NABCO's obligation for payment of the Periodic Payments shall be no greater than that ofDefendant (whether by judgment or agreement) immediately preceding the transfer of the Periodic Payments obligation.
6.2 Any such assignment, ifmade, shall be accepted by Plaintiffwithout right ofrejection and shall completely release and discha:rgc Defeedant from the Periodic Payments obligation assigned to NABCO. Plaintiffrecognizes that, in the event ofsuch an assignment, NABCO shall be the sole Obligor with respect to the Periodic Payments obligation, and that all other releases
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with n:spect to the Periodic Payments obligation that pertain to the liability of Defendant :shall thereupon become final, irrevocable and absolute.
6.3 Right to Purcbase an Annuity. Defendant, itself or through its Assignee reserves the right
to fund the liability to make the Periodic Payrocnts through the purchase of an annuity policy from Allstate Life Insurance Company ofNcw York. Defendant or the Assignee shall be the sole owner ofthe annuity policy and shall have all rights of ownership. Defendant and/or its Assignee may have Allstate Life Insurance Company of New York {"ALICNY") mail payments directly to the Payee{s). Plaintiff shall be responsible for maintaining a cutrcnt mailing address with the Assignee.
7.0 Right to Eater Into A Non-QualiJkd Aulgnment
Defendant reserves the right to fund the liability to make the Periodic Payments by entering into a Non-Qualified Assignment with NABCO. NABCO may have ALICNY remit payroents direetly to the Payee{s). It is understood that Allstste Life Insurance Company shall guarantee the perfonnance ofNABCO.
8.0 Other lhlief
8. I In consideration ofthe dismissal and geneml release and dischiU'ge &et forth in Sections l and 2 herein, Defendant agrees to waive the One Thousand Seven HWJdred Dollar {$ l,700.00) fee levied against Plaintiff in collllCCiion with Plaintiff's withdrawal :from Htmter College after the commencement ofthe Fall2005 semester.
8.2 In further consideration ofthe dismissal and general release and discharge set forth in SectiOilS I and 2 herein, Defendant agrcea that Plaintiff shall have until December 22, 2006, to submit material to make up grades of'IN" received during the Spring 2005 semester at Hunter College in the following three counes: {l) CHC 250.-Shaping The Future ofNew York, (2) PSYCH 170--Psychology ofHUilUID Sexuality, and {3) LAT 203--Vilgil's Aenoid. Plaintiff understands and ;u:knowledges that failure to meet the December 22, 2006 deadline may result in the grades of•JN• reverting to grades of•F.•
9.0 Discharge of ObUgatlon
The obligation of Defendant andlo.r NABCO with respect to any particular installment ofthe Periodic Payments shall be discharged upon the mailing or other transmission on the due date or earlil% of a valid check or its electronic equivalent in the specific amount of such payment to the designated address ofthe Payee{s) named in Section 3 herein. If tho Payee or Beneficia:ry notifies the Assignee that any chcc.k or electltlnie funds tran5fer was not received, the Assignee shall direct the Annuity Issuer to initiate a atop payment action and, upon confumation that such check was not previously negotiated or electronic funds transfer deposited, shall have the Annuity Issuer process a replacement payment.
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tB.O Representation ofComprellensfon ofDoeu.ment
rn entering into this Agreement, Plaintiffrepresents that she has read the terms ofthis Agreement and that those terms are fully understood and volunlllrily accepted by Plaintiff. In entering into this Agreement, Plaintiff has retained and consulted with her own independent attorneys selected by Plaintiff of her own free will, and has fully and freely consulted with them on matters !!!lating to thit; settlement and its terms and condition.s. Plaintiffacknowledges that tbis Agreement has been negotiBted by the respective Parties through counsel Plaintiffwarrants, represents, and agrees that she is not relying on the advice ofDefendant, OJ anyone associated with Defendant, including its attorneys and the illSUniilCC broker placing the IIIIIluity contract, as to the legal, tax, fiiUliiCial or other (favorable or adverse) consequences of any kind arising out of this Agreement for wbich Plaintiffis adviaed to obtain independent professional advice. Plaintiffacknowledges that neither Defendant nor its legal OJ structured settlement representatives may refer uny advisor, attorney, or finn for such professional advice. Aco:ordlngly, Plaintiff hereby releases and holds harmless Defendant, and any and all counsel or consultants for Defendant from any claim, cause of sction, or other rights of any kind wbich the Plaintiff may assert because of the legal, tax or other consequences of this Agreement. Plaintiff represents and wammts that she has read and discussed this Agreement ftllly with Plaintiffs llltomeys and ftllly understands its terms and conditions, and voluntarily accepts them as Plaintifrs own free and voluntary att.
11.0 W.ammty of Capacity to Exeente A&reemeut
Plaintiffrepresents and warrants that no other person or entity hall, or has bad, any interest in the
claims, demands, obligatio!Ul, or cs.u.scs ofaction referred to in this Agreement, except a.s
otherwise set forth herein; that Plaintiffbas the sole right and exclusive authority to execute !his Agreement and receive the sums speci1ied in it; and that Plaintiff has not sold, assigned, transferred, conveyed or otherwise disposed ofany ofthe claims, demands, obligations OJ causes of action referred to in this Agreement.
11.0 No Other Aetlon Commenced
Other than the Action, Plllintiff repm~Cnts that she bas not commenced, maintained or prosecuted any action, charge, complaint or proceeding ofany .kind against Defendant or any ofib constituent colleges, institutes, CDtities, employees and/or age.nts, on her own behalf and/or on behalf ofuny other person and/or on behalfofor as a member ofany alleged class ofpersons, that currently is pending in any court, or before any administrative or investigative body or agency, and acknowledges that this representation constitutes a material inducement for Defendant to enter into this Agreement.
13.0 No Prevailing Party
Neither Plaintiff nor Defendant shall be deemed a "prevailing party'' for any purpose (including, without limitation, aoy statutory or contractual claint based upon "prevailing party'' starus) with respect to the Action.
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14.0 No Precedentlal Value
This Agreement shall not in any manner be construed as detenninative ofthe issues raised in the Action or any other proceeding and shall have no precedential value. In addition,
notwithstanding the provisions of any paragraph herein, tllis Agreement shall not bind or collaterally estop Defendant or the State ofNew York in pending or future actions or proceedings, in which the same or similar issues are raised, frool defending any and all issues raised in said actions or proceedings, or from advancing any defenses.
15.0 Governlllg Law
This Agreement shall be construed and inteq>rcted in accordance with the laws of the State of New York governmg contracts made and to be performed entirely within the State ofNew Yolk, except to the extent that Federal law applies to Plaintiff's general release and waiver ofFederal claims pursuant to Section 2 ofthis Agreement.
16.0 SeverabUity
Ifany provision ofthis Agreement shall be held by a court ofcompetent jurisdiction to be invalid, void or unenforeeable in whole or in pan, such decision shall not invalidate the remaining portion or affect its validity.
17.0 Eutire Agreement 1111d Su-sor. in Interest
This Agreement constitutes the entire agreelllllllt between the parties hereto pertaining to the subject matter hereof and supersedes and embodies, merges and integrates all prior and cummt agreements and underscandings of the parties hereto with respect to the subject matter of this Agreement, and may not be clarified, modified, changed or amended except in a writing duly executed by the parties hereto or an authorized representative of the parties hereto.
18.0 Addltloual Documeuts
All parties agree to cooperate fully and execute any and all supplementary documents and to take all additional actions, whieh may be nc:<:cssary or appropriate to give full force and effect to the
basic terms and intent ofthis Agreement.
lli.O Readlllgs
The headings contained in this Agreement are for convelli.ence of reference only and are not a material part oftllis Agreement.
20.0 Effectiveness
This Agreement shall become effective immediately following execution by each of the parties and the approval ofthis settlement by the Coort. This Agreement may be signed and delivered by facsimile, and the facsimile signatures shall be sufficient to bind the parties hereto.
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IN WITNESS WHEREOF, the parties hereto acknowledge that they bave read this Agreement and accept and agree to the provisions contained herein, and have each executed this Agreement on the day and date noted below.

PLAINTIFF

Dated: - !J I ~ .2006

GOLDFARB ABRANDT SALZMAN & KUTZIN LLP

Attorneys for Plaintiff
B~~-

David Goldfarb (DGi/861)

-

3.50 Fifth Avenue, Suite llOO

New York, New York 10118

Telephone: 212-387-8400

BAZELON CENTER FOR MENTAL HEALTH LAW
ByL Attorneys for Plaintiff
Karen Bow!'
IIOllSthStreet,NW,Suite 1212 Waslringtan, DC 2000S-S002 Telephone: 202-467-5730

BLIOT SPrrzER
Attorney Genen~l of the State ofNew Yode
Attorney for The Citt ymversitv of'New York
By:
t&.t.~..n- ~.v.&/p,.,£4 ~
Antoinette W. Blanchette (AB88 )
Assistant Attorney General
120 Broadway
New York, New Yodc 10271 Telephone: 212.416.8S9S

Dated: !'. J'f

, 2006

Dated; tthv . 3 ' 2006

Dated: ____S._-_1.;:;.0_ _. 2006

le Sidney H. Stein es District Judge

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,2006