Case 2:05-cv-02301-ADS-WDW Document 1 Filed 05/12/05 Page 1 of 27 PageID #: 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--- X

ACORN (THE NEW YORK ASSOCIATION OF

COMMUNITY ORGANIZATIONS FOR REFORM

NOW), DAPHNE ANDREWS, VIC DEVITA, TERMON

GHULLKIE, AND NATALIE GUERRIDO, Plaintiffs,
v.

~4~TFbR230 l : Case No. z--------
: l DECLARATORY ~~ · JUDGMENT AND

INJUNCTIVE RELIEF

COUNTY OF NASSAU, NASSAU COUNTY

PLANNING COMMISSION, NASSAU COUNTY

OFFICE OF REAL ESTATE & DEVELOPMENT,

INCORPORATED VILLAGE OF GARDEN CITY,

GARDEN CITY BOARD OF TRUSTEES,

Defendants.

Plaintiffs Daphne Andrews, Vic

Vernon Ghullkie, Natalie Guerrido, and

I. 1.

Village of Garden City ("the Village"), and others

with, or on behalf of, the defendants

persons from residing in predominantly white the recent and imminent acts of the defendants that housing opportunities from being developed on a

of Nassau County and, specifically, vely prevent affordable multi-family parcel of County-owned property in

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white enclave of Garden City, but also the pattern of acial and ethnic housing segregation in Nassau County generally, which is already one of the ost segregated counties in the entire United States. By these and other illegal and discrimi atory acts, the defendants have violated
plaintiffs' rights under the Fair Housing Act, as amen, ed, 42 U.S.C. § 3601, et seq.; the Civil
Rights Act of 1866,42 U.S.C. §§ 1981, 1982 and 198~; the Equal Protection clause of the Fourteenth Amendment to the United States Constitutr.·on; the "affirmatively furthering" obligations of the Fair Housing Act, 42 U.S.C. § 3608; and the Civil Rights Act of 1964,42
U.S.C. § 2000d, et seq. II. JURISDICTION AND VENUE
2. Jurisdiction is conferred on this Court y 42 U.S.C. § 3613 and by 28 U.S. C. §§ 1343 and 2201.
3. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b), (c). Defendants all reside in this judicial district; the events or omissio s giving rise to the claims herein occurred in this district; and the property at issue is situated in t is judicial district.
III. PARTES 4. Plaintiff Daphne Andrews is an Africa -American woman who resides in Westbury, New York with her daughter's family. Mr . Andrews and her husband have been seeking affordable housing in a racially integrated an diverse area in Nassau County in general, including Garden City, since approximately January 2pos. 5. Plaintiff Vic DeVita is a white man whb resides in Garden City, New York and desires to live in a more integrated community than c rrently exists in Garden City. His residence is located less than two miles from the site t at defendants, by their illegal action, are preventing from becoming a racially and ethnically in egrated housing development.
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6. Plaintiff Vernon Ghullkie is an Africa -American man who resides in Hempstead, New York. Mr. Ghullkie has been seeking an afforda le residence in a racially integrated and diverse area in Nassau County in general, including arden City, for approximately two years.
7. Plaintiff Natalie Guerrido (together wi h Daphne Andrews, Vic DeVita and Vernon Ghullkie, referred to as the "Individual Plaint ffs") is an African-American woman who resides in Roosevelt, New Yark with three of her chi! ren. Ms. Guerrido has been seeking affordable housing in a racially integrated and divers area in Nassau County in general, including Garden City, since approximately 2001.
8. Plaintiff New York Association of Co munity Organizations for Reform Now ("New York ACORN") is a local chapter of a nation ·ide nonprofit corporate entity called Association of Community Organizations for Reform Now organized and existing under the laws of the State of Arkansas.
9. New York ACORN includes a Long Island chapter with a membership of approximately 2,000 families organized in offices in empstead, Roosevelt, Uniondale and throughout Nassau and Suffolk Counties. Through it Long Island Chapter, New York ACORN endeavors to organize tenants, to advocate against dis riminatory local and state government decisions, and to promote better housing conditions, lore affordable housing, and integrated and diverse housing opportunities, for all residents of LoJg Island.
10. New York ACORN has served as an a vocate, working to eliminate unlawful racially discriminatory housing practices and housing segregation that affects every person who lives in or seeks to live in Nassau County. New Yor ACORN's mission is to improve the quality of life for low and moderate-income commun ties that are predominantly populated by minorities. The members of New York ACORN hav been deprived of the opportunity to live in
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an integrated community by the housing segregation nd racially discriminatory housing practices that are pervasive throughout Nassau Count . Such housing segregation and racially discriminatory housing practices further frustrate effo s of New York ACORN members to find affordable housing in communities other than those t at are already predominately populated by minorities.
11. Defendant County of Nassau (the "Co nty" or "County Government") is a municipal corporation organized under the laws ofth State of New York, having its principal offices located at I West Street, Mineola, New York, 11501. All references to defendant County include any individual or entity acting on behalf of, o under the authority derived from, the County.
12. Defendant Nassau County Planning C mmission ("County Planning Commission") is an agency or division of government of Nassau County and consists of nine members appointed by the County Executive. All rJerences to the County Planning Commission include any individual or entity acting o behalf of, or under authority derived from, the County Plauning Commission.
13. Defendant Nassau County Office ofR a! Estate Plauning and Development (the "County REP&D") (together with Nassau County an the County Planning Commission, the "County," the "County Government" or the "Nassau ounty Defendants") is an agency or division of government of Nassau County whose Dir ctor is appointed by the County Executive. All references to the County REP&D include any ind·vidual or entity acting on behalf of, or under authority derived from, the County REP&D.
14. Defendant Incorporated Village ofGa den City, New York (the "Village") is a municipal corporation organized under the laws ofth State ofNew York, having its principal
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offices located at 351 Stewart Avenue, Garden City, ew York, 11530. All references to the Village include any individual or entity acting on beh If of, or under the authority derived from, the Village.
15. Defendant Garden City Board of Trust es (the "Board of Trustees") (together with the Village, the "Garden City Defendants") is an lected governing body in Garden City, having its principal offices located at 351 Stewart Ave ue, Garden City, New York, 11530, from which the Garden City offices responsible for all deve opment in Garden City derive their authority. All references to the Board of Trustees inc! de any individual or entity acting on behalf of, or under authority derived from, the Board fTrustees.
IV. FACTUAL BA Nassau County's Historic Pattern and Policy of Housing Segregation
16. Housing in Nassau County is highly se regaled by race and ethnicity, making Nassau County one of the most racially segregated co nties in all of the United States.
17. Approximately 80% of the residents of Nassau County are white and approximately 17% of the residents of Nassau County are African-American, other Blacks, or Hispanics (hereinafter, "minority").
18. Approximately 84% of white Nassau ounty residents live in non-integrated, virtually all white communities, whereas approximate y 64% of the minority residents of Nassau County live in communities that contain predominant! minority residents.
19. The foregoing custom, pattern, practic and usage of racially and ethnically segregated housing that exists in Nassau County has yen caused, perpetuated and reinforced by the custom, pattern and practice of discriminatory acti ns, policies and practices of defendant County for many decades.
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20. Even though minorities residing in Na sau County have a disproportionate need for affordable multi-family housing that is not restrict d to elderly persons (that is to say, "nonage restricted" housing), and the County Government is fully aware that such non-age restricted affordable housing is disproportionately needed by- d used by- minorities, it is, and for many years has been, an express policy and practice of the ounty Government to develop and promote the development of non-age restricted afford ble housing only in predominantly minority and low-income areas of Nassau County and to exclude such affordable housing from areas that are predominantly populated by white peop e.
21. The County Government has also ado ted a policy of supporting, encouraging, facilitating, and acquiescing in the efforts by local zo ing authorities in the towns and villages located within Nassau County to enact exclusionary z ning laws and ordinances that often, inter alia, prevent the development of non-age restricted af ordable multi-family housing, and it has done so with the purpose, intent or foreseeable effect f perpetuating racial and ethnic housing segregation throughout Nassau County and creating i entifiable enclaves of nearly all-white residential communities, such as Garden City. This e press policy amounts to racial steering by the County Government.
22. The County Government's own housi g policies and practices also cause, perpetuate, and reinforce housing segregation on the lJasis of race, color and national origin. With full knowledge and awareness that the minoritie in Nassau County have a disproportionate need for affordable housing in Nassau County, the Co ty Government maintains, and for many years has persisted in maintaining, an express and deli erate policy and practice of causing and steering such affordable housing to be constructed on! in a small number of lower income and predominantly minority communities such as Roosev It, Inwood, Hempstead Village, New
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Cassel and Freeport, and it has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation thr ughout Nassau County.
23. As a direct and foreseeable consequen e of the aforementioned deliberate policy and practice, nearly all of the government subsidized, non-age restricted affordable housing developments in Nassau County are situated in predo inantly minority census blocks.
24. The County Government's customs, p tterns and practices with respect to its use of the subsidized housing funds from the federal Com unity Development Block Grant ("CDBG") program and HOME program further caus , perpetuate and reinforce racial and ethnic housing segregation and constitute overt racial steering. The CDBG and HOME programs require, among other things, the County Government 'affirmatively to further" fair housingspecifically, that it use the funds in a manner that pro otes racial integration rather than perpetuating racial and ethnic segregation, and collec data documenting the impact of its CDBG and HOME expenditures on racial and ethnic housing segregation.
25. In derogation of its affirmative obligat''ons, the County Government maintains, and for many years has maintained, a policy and prac ice of directing HOME funds to local governments and non-profit entities to acquire sites fl r the development of non-age restricted affordable housing only in low and moderate income ommunities with a disproportionately minority population, but not in wealthy and predomin ntly white communities and segregated white enclaves like Garden City, and it has done sow th the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation hroughout Nassau County.
26. In derogation of its affirmative obligat ons, the County Government has not used its CDBG funds in a manner that promotes racial inte ation, but instead the County Government maintains, and for many years has maintained, an exp ess and deliberate discriminatory policy of
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using CDBG funds to support the development of no -age restricted affordable housing disproportionately in areas of Nassau County that it ows or should know are already predominated by minority residents.
27. In derogation of its affirmative obligatirns, the County Government has persistently and knowingly failed and refused to deve 'op an "Analysis of Impediments to Fair Housing" to analyze fair housing needs and residentia segregation, which is a basic prerequisite to fulfill its "affirmative obligation" to promote fair h using.
28. In derogation of its affirmative obligati ns, the County Government has persistently and knowingly failed and refused to track or document the effect of its CDBG and HOME expenditures on perpetuating segregation, so s to conceal and obscure the manifestly segregative effect of its CDBG and HOME programs n housing throughout Nassau County.
29. In furtherance of its policy and practic of perpetuating and reinforcing segregated housing patterns in Nassau County, the Co nty Government maintains, and for many years has maintained, an express and deliberate polic and practice of fostering the development of subsidized senior housing only or disproportionate! on sites that are located in predominantly white areas of Nassau County, even though it knows t at a disproportionate percentage of the residents of such housing are and will be white perso s. As a direct and foreseeable consequence of the aforementioned policies and pract ces of the County Government, most of the subsidized senior developments are located in cen us blocks where the vast majority of the population is white.
30. The defendant County's policies and p actices with respect to its use and development of County-owned real estate further cau e, perpetuate and reinforce the racially and ethnically segregated housing patterns that persist in Nassau County. The County Government
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maintains, and for many years has persisted in maint ining, a policy and practice of disallowing

County-owned properties located in predominantly ite communities of Nassau County to be

sold to housing developers who it knows or believes ill build affordable and integrated multi-

family housing opportunities (and/or has reached agr ements as to redevelopment plans to

'""'~ JU~Otlog Co.,{-o~oo prevent such development). By contrast, the County Government maintains a policy and

0 r.mm"lvoly

tho "''' of

property In p..OOomirumtly

minority communities to developers of affordable m ,Jti-family housing, and it has done so with

the purpose, intent or foreseeable effect ofperpetuati g racial and ethuic housing segregation

throughout Nassau County.

31. More than thirty-years ago in January 974, the U.S. District Court in Acevedo et
al. v. Nassau County et al., expressly found that opposition to affordable and integrated housing
is racially motivated:
By far, however, the most objectiona le form of housing has been low-income family housing. It is cle from all the evidence that community opposition to this form f housing has been racially motivated. In Nassau County low income family housing is predominantly occupied by Blacks. tmposals for the construction of this form of housing have incurr d immediate and vehement opposition. As can be expected sue heated opposition has not been ignored by the elected officials f Nassau. There is evidence of more than one housing proposal being dropped because of vehement community opposition.
Acevedo eta/. v. Nassau County et al., 369 F. Supp. 384, 1389 (E.D.N.Y. 1974).
32. Notwithstanding, and with actual or c nstructive knowledge of, a judicial finding
of this Court that community opposition to affordabl multi-family housing is racially motivated,
the County Government maintains, and for more tha · 30 years has maintained, the policy and
practice of acquiescing in and impliedly consenting t neighborhood and community opposition
to the development of affordable multi-family housin and other housing that provides integrated

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housing opportunities disproportionately needed by m\nm:iti<es or to proposed local laws or

ordinances that would foster or permit such housing

and it has done so with the

purpose, intent and foreseeable effect of perpetuating

and ethnic housing segregation

throughout Nassau County.

Garden City's History of Housing Segregation 33. Defendant Village has cooperated , facilitated and affirmatively acquiesced in
the County Government's segregative policies and nr~.cw~es. including those that target the

placement of non-age restricted affordable

housing only in predominantly minority

communities ofNassau County but not in

white communities or in white

residential enclaves like Garden City. 34. Garden City is a highly segregated, nealrlv all-white residential enclave, located
near the center of Nassau County. 35. The population of Garden City is aprlr~lJdm.ately 95% white, with a total of only
23 African-American households (constituting ap]Jro*irnat.ely 1% of the Garden City

population). 36. The Village of Hempstead, which direbtlv borders Garden City on the South, has
a population of which approximately 84% are minority. Uniondale, which is located Southeast

of Garden City, has a population of which

79% minority. The Village of

Westbury, which is located Northwest of Garden , has a population of which approximately

43% minority. 37. Defendant Village of Garden City continuously acted to reject and obstruct
the creation of any affordable and integrated multi ·I'Inm·Jy housing opportunities by engaging in exclusionary zoning practices, and it has done so the purpose, intent or foreseeable effect of

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excluding minorities from residing within the borders f Garden City and thereby perpetuating

racial and ethnic housing segregation in Garden City i self and throughout Nassau County,

generally. 38.

Despite its opposition to the constructi n of affordable multi-family housing that

would be likely to attract a significant proportion ofjinority residents, defendant Village has not

blocked the development of other multi-family housin and apartment buildings that by their

design are likely to be inhabited by predominantly wh te residents. The Village has by its past

actions encouraged and permitted the building of lux y multi-family housing in Garden City

that it knew or should have known would be inhabite by only or virtually only white residents.

gow~~t-""bOdl,OO, 'It'""' Ogolfio~t 39. Upon information and belief, with actual or constructive knowledge that

mlliU-f•mHy oolt ho,.;og ;, llkcly W

propoffioo of

minority residents and provide an opportunity for intelated and diverse housing for residents of

Garden City and the surrounding communities, the de endant Village has not permitted the

construction of even a single instance of such housin within the boundaries of Garden City.

40. Consistent with and in furtherance of i s policy of maintaining Garden City as, for all intents and purposes, an entirely white residential nclave within Nassau County, officials of defendant Village have engaged in the open and noto ious exclusion of minority persons from Garden City's public parks and its public streets.

The Social Services Site: An Opportunity for Affordable Integrated and Diverse Housing
41. In or about May 2002, the County Go emment began drafting a Real Estate
Consolidation Plan ("Consolidation Plan"). The purpose of the Consolidation Plan was to
inventory the approximately 2500 County-owned pro erties, to consolidate County Government

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operations, and to sell certain County-owned properti s that would no longer be necessary for County Government operations.
42. Among the subjects of the Consolidati n Plan was certain property located in Garden City known as the "Mineola Complex", whic houses a courthouse, certain administration buildings, and parking facilities. With n the Mineola Complex is a parcel of approximately 25 acres ofland located at 101 County Seat Drive, Garden City, known as the "Social Services Site".
43. The 25-acre Social Services Site consi ts chiefly of21.44 acres located on the eastern side of County Seat Drive on which a social s rvices building and a parking lot are situated, and an additional3.03 acres located on the estern side of County Seat drive on which the Old Laboratory Building and County Garage are s tuated.
44. Throughout its preparation of the Cons lidation Plan, the Nassau County defendants consulted with the Garden City Board of stees to discuss the plans for the Mineola Complex, and specifically for the Social Services Site
45. The County Government issued its Co solidation Plan in December 2003 which called for, inter alia, the relocation of all the governm ntal operations then performed at the Social Services Site, and consolidating such operation with those performed at the County's facility in neighboring Uniondale. The Consolidation Ian further called for the sale of the Social Services Site to a private developer.
46. The defendant County requested the de endant Village's cooperation in rezoning the Mineola Complex, including the Social Services S te. At the time, the Social Services Site was zoned "P," that is to say, for public use. The Cou ty Government sought to rezone the
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Social Services Site to allow for non-governmental

which would facilitate the sale of the

redevelopment of the Social Services Site, the

Government and the Village cooperated,

facilitated and coordinated their efforts.

47. The defendant County knew or reasort~blly should have known that the Social

Services Site presented a uniquely attractive

to address the County's need for

affordable integrated housing opportunities, since it centrally-located, publicly-owned, well-

served by public transportation, situated nearby to compatible with affordable multi-family

the County has frequently identified as impediments the development of affordable multi-
family housing, such as land availability and willing
The Original Proposed Plan and Its Significant Housing Opportunities for Minorities
48. In response to the County Gc>Vernrnerlf s request, the Board of Trustees appointed a "P Zone Committee" to address issues relating to Mineola Complex and hired planning

the Social Services Site.

49. During 2003, Garden City's P Zone Cbmrnitltee and BFJ held public workshops to discuss the development of the Social Services Site.

50. During 2003 BFJ and the P Zone CcmjJnittee also met with representatives of the

County Defendants to discuss issues related to the

s proposed real estate consolidation,

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including among other things, the Village's future zon~ng of the Mineola Complex and the Social

Services Site.

51. In its final proposal, BFJ rec:onlm"•emncnl[,,ecq that a new zoning designation of "C0-5b" be used for the Social Services Site ("Proposed ~ "). Under the Proposed Zoning, the C0-

5b zoning would use existing residential multi-family · .0 controls (commonly referred to as

"R-M" zoning) and would allow single-family'

townhomes and multi-family apartments.

52. Under the Proposed Zoning, and contsi~ltent with the existing R-M zoning, a multi-

family dwelling would be subject to, inter alia, the "

•6 limitations: a maximum building

height of 35 feet or two and a half stories; the nwPllin ~could cover no more than 25% of the

plot; a minimum of25% of the plot must be open S-lrJa~•e; and the maximum number of multi-

family housing units equal to one unit per 3000 "Y.u"'' feet, or 14.5 units per acre. The Proposed
Zoning therefore allowed for a maximum of 355 affo~clable multi-family units to be constructed

on the 25-acre Social Services Site.

53. In its proposal, and in accordance with the Proposed Zoning, BFJ contemplated the construction of a 311-unit multi-family housing .1M·•v<J'lo1pment on the Social Services Site ("Proposed Plan"), with each unit of sufficiently smal size (approximately 1000 square feet per unit) and of sufficiently dense lot size as a whole so a to make it economically feasible for a developer of affordable multi-family housing to<!~ up such housing.

54. The Proposed Plan as developed by B:fJ expressly stated that the Proposed Zoning permitted the development of housing that fitlwell with existing uses around the Social Services Site, which sits in a transitional area t.b<-J't·ween single-family houses, retail/commercial areas, public/goverrunental offices and multi-story r ' · garages.

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55. Under the Proposed Plan, a developer ould have constructed 311 affordable apartments and, therefore, could have created a substa tial number of integrated and diverse housing opportunities disproportionately needed by m'norities in Nassau County. The Proposed Plan represented a meaningful step forward towards a tenuating the persistent racial and ethnic housing segregation that existed in Garden City, its surrounding communities and Nassau County.
Neighborhood Opposition to the Possibility oflntegrated Housing
56. On January 8 and February 5, 2004, th Village held hearings on the Proposed Zoning of the Mineola Complex and the Social Servi es Site.
57. During those public hearings, Garden ity residents vociferously objected to the construction of affordable multi-family housing on th Social Services Site, and sought repeated assurances from Village and County officials there pr sent that no such affordable multi-family housing would be built on the Social Services Site.
58. In accordance with its long-standing p !icy and practice, the defendant County acquiesced in neighborhood and community oppositi n to the development of affordable housing on the Social Services Site and cooperated with, facil tated and affirmatively supported in the Village's segregative zoning policies and practices b assuring Garden City residents, during the public hearings and at other times, that the County w uld not take any action antagonistic to Garden City's wishes and agreeing to act in concert ith the Village to reject the Proposed Plan and to permit only luxury multi-family housing to be built on the Social Services Site.
59. In direct response to the aforemention d neighborhood and community opposition, the County Government, by its County E ecutive the Honorable Thomas R. Suozzi, acting consistent with and in furtherance of the Cou y's long-standing policy and practice of
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acquiescing to neighborhood and community opposition of white residents to any housing developments likely to encourage or facilitate raciall1 and ethnically integrated and diverse housing and acting, further, with conscious knowledg~ and awareness that affordable multifamily housing was actually needed in Nassau County and, in particular, those areas of Nassau County near to and around Garden City, gave express assurances that only luxury housing -- that is to say, housing that defendant County knew or sho ld have known was likely to attract predominantly white residents -- would be allowed to be developed on the Social Services Site and gave as the reason therefor that given "the charac er of Garden City," only such housing "would be appropriate."
60. In June 2004, the defendant Village -- ith the express and deliberate support, encouragement, acquiescence and consent of the defe dant County-- rejected the Proposed Plan and Proposed Zoning, which had been recommended' y its own planning consultants, and adopted for the Social Services Site an entirely new z ning classification, designated "R-T", which had not previously existed under the Village's roposed zoning ordinance ("Special Zoning").
61. The new Special Zoning adopted by t e Village was unique to, and expressly limited to the Social Services Site, and imposed more severe restrictions on the construction of affordable multi-family housing that had theretofore xisted under the "R-M" designation for residential multi-family zoning. Most importantly, the new Special Zoning imposes stringent and unique limitations on multi-family housing unlik those found elsewhere in the Village's zoning regulations and, by design or foreseeable effe t, prohibits the development of and integrated housing on the Social Services Site.
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62. permission and only on a tiny sliver of the Social which the Old Laboratory Building and County

Site- namely, the 3.03 acre plot on were situated -- constituting less than

15% of the Social Services Site's 25-acre area. The

Special Zoning permits at the

very most construction of only about 36 affordable

housing units, as compared to

the 311 units of affordable, multi-family housing that been permitted under the Proposed

Plan and Proposed Zoning.

63. Even if special permission were to be qbtairwd, the exclusionary Special Zoning

adopted by the Village for the Social Services Site

the maximum number of multi-

family units permitted on the 3.03 acre sliver of the

Services Site, thereby making it

economically unfeasible for any affordable

and diverse housing units to be developed

on the Social Services Site.

64. Under the exclusionary Special Zoning, even if special permission were obtained the maximum number of multi-family units permit:teq on the 3.03 acre sliver is only one unit per

4000 square feet, as compared to the Proposed

and existing R-M zoning, which permitted

one unit per 3000 feet.

65. The discriminatory Special Zoning

that single family homes and

townhouses on the Social Services Site must be

of such a significant lot size and

minimum square footage that the only economically feasible development on the Social Services

Site will be ofluxury single-family homes and

which are housing units likely to

attract and to be inhabited by predominantly white re~idents. 66. The Proposed Zoning was rejected the Special Zoning was adopted by
defendant Village with the purpose, intent or forese:e~lble effect of preventing and excluding

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minorities from moving into the Village and the hous ng units to be constructed on the Social Services Site and into Garden City generally.
67. The reason asserted by defendants for ejecting the Proposed Zoning and adopting the Special Zoning was a concern with increased traf c and an increased burden on the school system from additional children that the Proposed PI would cause.
68. The purported concern with increased raffle and an increased burden on the school system from additional children that the Propo ed Plan would cause was not the real reason that the defendants rejected Proposed Zoning rd adopted the Special Zoning.
69. The real reason for and foreseeable effl ct of the Board of Trustees' decision to reject the Proposed Zoning and the Proposed Plan an to adopt the exclusionary Special Zoning was to prevent and curtail the availability of affordabl , racially integrated housing in Garden City and to assure that the only housing allowed to be developed on the Social Services Site would be housing likely be inhabited by only or virtu lly only white residents.
Nassau County's Promotion Of and Consent To the Discriminatory and Exclusionary Special Zoning That Excludes Housing Opportunities for Minorities
70. With knowledge of the Village's discri inatory conduct in adopting the exclusionary Special Zoning, the County Government failed and refused to object to those provisions and conditions of the Special Zoning that e iminated the opportunity for affordable, integrated and diverse housing on the Social Services ite. Whereas, in May 2004, the County Government affirmatively informed the Village of its bjections to certain other provisions and conditions of the Special Zoning, that did not prevent r curtail the opportunity availability of affordable and integrated housing.
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71. The defendant County failed and retils(jd to object to certain provisions and

conditions of Special Zoning that prevented or

the availability of integrated housing-

namely those limiting the permitted density of the

units and the availability of multi-

family housing-- notwithstanding its belief that such

and conditions of the Special

Zoning reduced the potential revenue from its sale

Social Services Site and negatively

affected the County Government's overall Consc•lidatj<m 72. In or about July 2004, after the di~:cri~nat:ory Special Zoning was adopted, the

County Government issued a Request for Proposals the Social Services Site that set forth an

asking price for the Social Services Site was $30 uu.oquu.

73. Upon information and belief, the deJ'eqclant County has selected developer Myron Nelkin to develop the Social Services Site and to r.m1ott·nr.t only luxury single family dwellings and townhouses likely to attract only or virtually white residents, and unlikely to provide integrated and diverse housing opportunities.

74. The County Government and Mr. N Services Site any affordable and integrated housing

do not propose to develop on the Social

75. The development of the Social <::,rvir.ok Site as currently contemplated by the

County Government perpetuates and reinforces

and ethnic housing segregation in Garden

City and Nassau County.

76. Unless enjoined by this Court, the by the County of the Social Services Site will perpetuate and reinforce racial and ethnic hm1sirlg segregation in Garden City and Nassau

County.

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Injury To Plaintiffs As Resulting from Defendants' Wrongful Conduct
77. Due to the pervasive pattern of racial

ethnic segregation in housing in the

residential communities surrounding Garden City

Andrews, Ghullkie and Guerrido have been unable to any suitable affordable housing

outside ofpredominantly minority communities.

78. including such housing in Garden City, and likely apartment in affordable multi-family housing built defendants' discriminatory conduct and practices.

sufficient financial resources to afford an Social Services Site were it not for

79. By virtue of the defendants' discriJmit*•Jrypolicies and actions, plaintiffs Andrews, Ghullkie and Guerrido are being and, unles~ the relief herein requested is granted, will be, deprived of integrated and diverse housing opportj.Jnities outside predominantly minority

of Nassau County such as Garden City. 80. As a result thereof, Plaintiffs An,clr.,wd Ghullkie and Guerrido do not have access
to basic public services that they desire and which available in Garden City, but not available

81. By virtue of defendants dis,crirninatol)(

Ghullkie and Guerrido are being and, unless the

deprived of the ability to live in an integrated and many benefits of interracial associations that would

residential community, including the with living in an integrated and diverse

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portion of Garden City and will be forced to experien e the social stigma that results from living in highly segregated Nassau County.
82. As a white resident of Garden City, M . DeVita desires to live in an integrated residential community, and by virtue of defendants' d·scriminatory practices is being and, unless the relief herein requested is granted, will be, deprive of that opportunity of living in a more integrated community then currently exists in Garden City, and of the benefits that result from living in an integrated and diverse residential comm ity, including the many benefits of interracial associations that would come with living i , an integrated and diverse portion of Garden City.
83. Due to the defendants' ongoing discri inatory conduct and practices that perpetuate and reinforce housing segregation general y and limit availability of affordable integrated housing developments to predominantly m nority communities in particular, New York ACORN's members are being and, unless the r lief herein requested is granted, will be, deprived to find suitable affordable housing located o tside areas of minority concentration in the County.
84. Due to the defendants' ongoing discri inatory conduct and practices, New York ACORN members are being and, unless the relief he ein requested is granted, will be deprived of the opportunity to live in integrated and diverse com unities and the associated benefits of interracial associations that come with such housing pportunities.
85. Due to the defendants' ongoing discri inatory conduct and practices, New York ACORN members do not have and, unless the relief erein requested is granted, will be,
deprived access to basic public services in Garden c· y such as adequate law enforcement and
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public schools, available public parks, convenient pub ic transportation, educational facilities and more expansive shopping areas located near the Socia Services Site in Garden City.
FIRST CAUSE OF ~CTION (Violation of the Fair Housing Act, ,:2 U.S.C. § 3601 et seq.) 86. Plaintiffs repeat and reallege the forego1ing paragraphs as if fully set forth herein. 87. Defendants' discriminatory practices, otivated by malice and/or callous
otherwise make housing unavailable, and perpetuate s gregation on the basis of basis of race, color, and national origin in violation of the Fair Housing Act, 42 U.S.C. §§ 3604(a).
SECOND CAUSE 0 ACTION (Violation of the Civil Rights Acto 1866,42 U.S.C. § 1981) 88. Plaintiffs repeat and reallege the foreg ing paragraphs as if fully set forth herein. 89. Defendants' discriminatory practices, otivated by malice and/or callous disregard for the rights of plaintiffs, deprive plaintiffs of their right to make and enforce contracts to purchase, lease, or otherwise hold or convey prope y, on the basis of basis of race, color, and national origin (and thus deprive them of the same su h rights as are enjoyed by white persons) in violation of the Civil Rights Act of 1866, 42 U.S.C §1981.
THIRD CAUSE 0 ACTION (Violation of the Civil Rights Act f 1866, 42 U.S.C. § 1982) 90. Plaintiffs repeat and reallege the foreg ,ing paragraphs as if fully set forth herein. 91. Defendants' discriminatory practices, otivated by malice and/or callous disregard for the rights of plaintiffs, deprive plaintiffs of their right to purchase, lease, or otherwise hold or convey property on the basis of bas s of race, color, and national origin (and
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Case 2:05-cv-02301-ADS-WDW Document 1 Filed 05/12/05 Page 23 of 27 PageID #: 25
thus deprive them of the same such rights as are enjo ed by white persons) in violation of the Civil Rights Act of 1866,42 U.S.C. §1982.
FOURTH CAUSE 0 ACTION (Violation of the Civil Rights Act of 1871, 42 U.S. . § 1983 and the Equal Protection Clause
of the Fourteenth Amendment to the Co stitution of the United States) 92. Plaintiffs repeat and reallege the foreg ing paragraphs as if fully set forth herein.
93. Defendants' discriminatory customs, p ttems, practices, and usages in contravention of plaintiffs' constitutional and federal tatutory rights motivated by malice and/or callous disregard for the rights of plaintiffs, deprive p aintiffs of their right of equal access to housing nnder color of law in violation of the Federal Civil Rights Act of 1871,42 U.S.C. §1983, and their rights under the Equal Protection Clause of he United States Constitution with regard to housing.
FIFTH CAUSE 0 ACTION (Violation of the "Affirmatively Furth ring" Obligations Under the
Fair Housing Act, 42 ;.S.C. § 3608) 94. Plaintiffs repeat and reallege the foreg ing paragraphs as if fully set forth herein.
95. In connection with their use of federa fnnds related to housing, including funds from the federal CDBG and HOME programs, the d fendants County, County Planning Commission, and County REP&D, have used the fun s received in a discriminatory manner which promotes segregation and otherwise failed to eet the "affirmatively to further" obligations of the Fair Housing Act.
SIXTH CAUSE 0 ACTION (Violation of the Civil Rights Act of 1 64, 42 U.S.C. § 2000d et seq.) 96. Plaintiffs repeat and reallege the foreg ing paragraphs as if fully set forth herein.
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97. Defendants' discriminatory practices ith regard to the administration of federal programs, motivated by malice and/or callous disrega d for the rights of Plaintiffs, violate the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq.

PRAYER FOR rLIEF WHEREFORE, plaintiffs respectfully demand that this Court enter a judgment:
a) Declaring that defendants' cts, practices, and policies complained of herein violated and violate plaintiffs' rights as secure by Fair Housing Act, as amended, 42 U.S.C. § 3601 et seq.; the Civil Rights Act of 1866,4 · U.S.C. § 1981; the Civil Rights Act of 1866,42 U.S.C. § 1982; the Civil Rights Act of 1871,42 U.S.C. § 1983; the Equal Protection clause of the Fourteenth Amendment to the U.S. Con titution; and the "affirmatively furthering" obligations of the Fair Housing Act, 42 U.S.C. § 3608, and the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq;

~lillg tho.o

b) Enjoining defendants, their agents, employees, successors, assigns, and io ootivo coo=t, combiootioo oc pwtio+oo wifu tiwm, from <mgogiog io ""'

policies or practices that deprive plaintiffs of their ri ts secured by any and all of the statutes

cited in sub-paragraph (a), above, including among ot er things:

(i)

Enjoining the Nass County Defendants from

proceeding with any sale of the Social Service Site, or continuing with any plans

for redevelopment of the site, under the discri inatory Special Zoning;

(ii)

Enjoining the Gard n City Defendants from enforcing

or attempting to enforce in any way the discri inatory or exclusionary provisions

of the Special Zoning;

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Case 2:05-cv-02301-ADS-WDW Document 1 Filed 05/12/05 Page 25 of 27 PageID #: 27

(iii)

Ordering the Ga:rdelil City Defendants to approve

zoning ordinances for the Social Services Site are substantially the same as

the Proposed Zoning;

(iv)

Ordering theN County Defendants to issue a

Request for Proposals consistent with the Pro>po:sed Zoning and substantially the

same as the original Proposed Plan, including .pro>vis:iorts that will require the

development of affordable and integrated

units at the Social Services

Site;

(v)

Enjoining the Nassalu County Defendants from selling

the Social Services Site to any person or dev·elooer that will not agree or commit

to building affordable and integrated

at the Social Services Site to

the maximum extent permitted under the

Zoning;

(vi)

Ordering all def(mcl~nts to take all actions necessary to

assure the redevelopment of the Social "'""";''·'""Site so as to maximize the

availability of affordable and integrated

at the site, including taking such

steps as the Court deems necessary and

to support and/or subsidize

such redevelopment;

(vii)

Enjoining the uarctqJn City Defendants from granting,

and ordering the Garden City Defendants to withd.ra\v, any permits, letters of

approval, or other consents allowing steps

redevelopment of the Social

Services Site to continue;

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Case 2:05-cv-02301-ADS-WDW Document 1 Filed 05/12/05 Page 26 of 27 PageID #: 28

(viii)

Enjoining all Defen ants and their agents, employees,

successors and assigns, from engaging in any ther discriminatory acts that

perpetuate or contribute to segregation in the arden City and Nassau County;

and

•opoiTi~d "&~mo + ""'"·

(ix)

Ordering all Defendants to take and/or fund affirmative

by llii• Omrt, to o

offoot• of P"l di"rimi""ocy

practices, including the funding of remedial a tivities necessary to overcome the

perpetuation of segregation in Nassau County nd Garden City;

c) Awarding such other relief s this Court deems reasonable, necessary and just; and
d) Awarding Plaintiffs their c sts and attorneys' fees in this action.
***

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Case 2:05-cv-02301-ADS-WDW Document 1 Filed 05/12/05 Page 27 of 27 PageID #: 29
•

•
Dated: New York, New York May 12,2005

v~ By: /~2:/~~~</4/--/r-/"A:-Y--~-. PaulrB. Sweeney (PS 5254) ~ Michael Starr (MS 6851) Jenny Rubin Robertson* Megumi Sakae (MS 0839) Kim F. Bridges (KB 1306)
HO :JAN & HARTSON LLP 875 Third Avenue Nev York, New York 10022 (21:) 918-3000
Attorneys for Individual Plaintiffi, Daphne Andrews, Vic DeVita, Vernon Ghullkie and Nat lie Guerrido
-and-
Fre< erick K. Brewington (FB 5295) La" Offices of Frederick K. Brewington 50 ( linton Street-- Suite 501 Hen pstead, NY 11550 (51 ) 489-6959
Jon than P. Hooks* Nic le J. DeSario* La" yers' Committee for Civil Rights Un4erLaw 140 New York Avenue, N.W. --Suite 5000 Wa hington, D.C. 20005 (20 ) 662-8326
Attc rneys for Plaintiffi Ne} York Association ofCommunity Org.anizations for Reform Now

*pro hac vice admission to be sought

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 Case 2:05-cv-02301-ADS-WDW Document 24 Filed 11/30/05 Page 1 of 32 PageID #: 105

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

ACORN (THE NEW YORK ASSOCIATION OF

:

COMMUNITY ORGANIZATIONS FOR REFORM

:

NOW), NEW YORK ACORN HOUSING COMPANY, :

INC., VIC DEVITA, VERNON GHULLKIE, NATALIE :

GUERRIDO, LISBETT HUNTER AND FRANCINE :

MCCRAY,

:

:

Plaintiffs,

:

:

v.

:

:

COUNTY OF NASSAU, INCORPORATED VILLAGE :

OF GARDEN CITY, AND GARDEN CITY BOARD OF :

TRUSTEES,

:

:

Defendants.

:

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

Case No. 05-CV-2301 (LDW) (WW)
AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
JURY TRIAL REQUESTED

Plaintiffs, the New York Association of Community Organizations for Reform

Now, New York ACORN Housing Company, Inc., Vic DeVita, Vernon Ghullkie, Natalie

Guerrido, Lisbett Hunter, and Francine McCray, by and through their undersigned attorneys, as

and for their Complaint allege as follows:

I. NATURE OF ACTION

1. By this housing discrimination action, plaintiffs seek redress for ongoing

exclusionary housing practices by defendants Nassau County (the “County”), the incorporated

Village of Garden City (“the Village”), the Garden City Board of Trustees (the “Board of

Trustees”) and others acting with, or on behalf of, the defendants Village and County

(collectively, “Defendants”). This action challenges defendant County’s ongoing discriminatory

acts and long-standing pattern and practice of preventing African-American, other Black and

Hispanic persons from residing in predominantly white communities of Nassau County and,

Case 2:05-cv-02301-ADS-WDW Document 24 Filed 11/30/05 Page 2 of 32 PageID #: 106
specifically, the recent and imminent acts of the Defendants that effectively prevent affordable multi-family housing opportunities from being developed on a 25-acre parcel of County-owned property in Garden City, thereby perpetuating not only the exclusion of minorities from the overwhelmingly white enclave of Garden City, but also the pattern of racial and ethnic housing segregation in Nassau County generally, which is already one of the most segregated counties in the entire United States. By these and other illegal and discriminatory acts, the defendants have violated plaintiffs’ rights under the Fair Housing Act, as amended, 42 U.S.C. § 3601, et seq.; the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982 and 1983; the Equal Protection clause of the Fourteenth Amendment to the United States Constitution; the “affirmatively furthering” obligations of the Fair Housing Act, 42 U.S.C. § 3608; and the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.
II. JURISDICTION AND VENUE 2. Jurisdiction is conferred on this Court by 42 U.S.C. § 3613 and by 28 U.S.C. §§ 1343 and 2201. 3. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b), (c). Defendants all reside in this judicial district; the events or omissions giving rise to the claims herein occurred in this district; and the property at issue is situated in this judicial district.
III. PARTIES 4. Plaintiff Vic DeVita is a white man who resides in Garden City, New York and desires to live in a more integrated community than currently exists in Garden City. His residence is located less than two miles from the site that defendants, by their illegal action, are preventing from becoming a racially and ethnically integrated housing development.
2

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5. Plaintiff Vernon Ghullkie is an African-American man who resides in Hempstead, New York. Mr. Ghullkie has been seeking an affordable residence in a racially integrated and diverse area in Nassau County in general, including Garden City, for approximately two years. Mr. Ghullkie has been unable to find suitable affordable housing outside of Hempstead, a lowincome, predominantly minority community. He desires to live in Garden City because it is a safer community with more accessible public transportation than Hempstead.
6. Plaintiff Lisbett Hunter is a Black woman of Panamanian descent who has lived in various parts of Nassau County, including the low-income, predominantly minority communities of Freeport and Long Beach, for the past nine years. Ms. Hunter is currently in a temporary living arrangement and has been seeking a stable, affordable residence in a racially integrated and diverse area in Nassau County for the past several months. Ms. Hunter desires to live in Garden City because it is a safe community with easy access to public transportation, which Ms. Hunter sometimes uses for travel to and from her job in Manhasset, New York.
7. Plaintiff Francine McCray is an African-American woman who has been seeking an affordable residence in a racially integrated and diverse area in Nassau County, including Garden City, since February. Ms. McCray is currently living with her sister and niece in Hempstead, a low-income, predominantly minority community. Ms. McCray has lived in Nassau County all of her life and is very familiar with Garden City. She desires to live in Garden City because it is a safe community in close proximity to public transportation, which she sometimes uses to commute to her job in Woodbury, New York.
8. Plaintiff Natalie Guerrido is an African-American woman who resides in Roosevelt, New York with three of her children. Ms. Guerrido has been seeking affordable housing in a racially integrated and diverse area in Nassau County in general, including Garden
3

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City, since approximately 2001. Ms. Guerrido has been unable to find any suitable affordable housing outside of Roosevelt, a low-income, predominantly minority community. She desires to live in Garden City because of its proximity to several modes of public transportation and employment opportunities, as well as to better schools and parks for her children. (Mr. DeVita, Mr. Ghullkie, Ms. Guerrido, Ms. Hunter, and Ms. McCray are collectively referred to as the “Individual Plaintiffs”.)
9. Plaintiff New York Association of Community Organizations for Reform Now (“New York ACORN”) is a local chapter of a nationwide nonprofit corporate entity called Association of Community Organizations for Reform Now organized and existing under the laws of the State of Arkansas. New York ACORN asserts the claims herein on behalf of its members.
10. New York ACORN includes a Long Island chapter with a membership of approximately 2,000 families organized in Hempstead, Roosevelt, Uniondale and throughout Nassau and Suffolk Counties. Through its Long Island Chapter, New York ACORN endeavors to organize tenants, to advocate against discriminatory local and state government decisions, and to promote better housing conditions, more affordable housing, and racially integrated housing opportunities, for all residents of Long Island.
11. New York ACORN has served as an advocate, working to eliminate unlawful racially discriminatory housing practices and housing segregation that affect every person who lives in or seeks to live in Nassau County. New York ACORN’s mission is to improve the quality of life for low and moderate-income communities that are predominantly populated by minorities. The members of New York ACORN have been deprived of the opportunity to live in an integrated community by the housing segregation and racially discriminatory housing practices that are pervasive throughout Nassau County. Such housing segregation and racially
4

Case 2:05-cv-02301-ADS-WDW Document 24 Filed 11/30/05 Page 5 of 32 PageID #: 109
discriminatory housing practices further frustrate efforts of New York ACORN members to find affordable housing in communities other than those that are already predominately populated by minorities.
12. Plaintiff New York ACORN Housing Company, Inc. (“NYAHC”) is an experienced not-for-profit community-based developer of affordable housing. NYAHC is incorporated in New York and was formed to develop, own, and manage affordable housing for families with low and moderate incomes.
13. NYAHC’s professional staff is experienced in all aspects of the development, financing, management, marketing, and maintenance of affordable housing. NYAHC has developed and now manages approximately 700 affordable housing units, and has developed projects totaling over $80 million in the New York metropolitan area. NYAHC is currently constructing approximately 200 additional affordable housing units. For these newer units, NYAHC has either purchased and is renovating the buildings for tenant occupancy, is developing housing with a private co-developer, or has been awarded buildings for rehabilitation. NYAHC also has several other affordable housing projects in the pre-development stage with funding partners.
14. NYAHC has been actively seeking multi-family housing development opportunities in Nassau County over the past few years. NYAHC seeks to build mixed-income, multi-family affordable housing in Garden City.
15. Defendant County of Nassau (the “County” or “County Government”) is a municipal corporation organized under the laws of the State of New York, having its principal offices located at 1 West Street, Mineola, New York, 11501. All references to defendant County include any individual or entity acting on behalf of, or under the authority derived from, the
5

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County, including, but not limited to, the Nassau County Planning Commission (“County Planning Commission”), and the Nassau County Office of Real Estate Planning and Development (the “County REP&D”).
16. Defendant Incorporated Village of Garden City, New York (the “Village”) is a municipal corporation organized under the laws of the State of New York, having its principal offices located at 351 Stewart Avenue, Garden City, New York, 11530. All references to the Village include any individual or entity acting on behalf of, or under the authority derived from, the Village.
17. Defendant Garden City Board of Trustees (the “Board of Trustees”) (together with the Village, the “Garden City Defendants”) is an elected governing body in Garden City, having its principal offices located at 351 Stewart Avenue, Garden City, New York, 11530, from which the Garden City offices responsible for all development in Garden City derive their authority. All references to the Board of Trustees include any individual or entity acting on behalf of, or under authority derived from, the Board of Trustees.
IV. FACTUAL BACKGROUND Nassau County’s Historic Pattern and Policy of Housing Segregation
18. Housing in Nassau County is highly segregated by race and ethnicity, making Nassau County one of the most racially segregated counties in all of the United States.
19. Approximately 80% of the residents of Nassau County are white and approximately 17% of the residents of Nassau County are African-American, other Black, or Hispanic (hereinafter, “minority”).
6

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20. Approximately 84% of white Nassau County residents live in non-integrated, virtually all white communities, whereas approximately 64% of the minority residents of Nassau County live in communities that contain predominantly minority residents.
21. The foregoing custom, pattern, practice and usage of racially and ethnically segregated housing that exists in Nassau County has been caused, perpetuated and reinforced by the custom, pattern and practice of discriminatory actions, policies and practices of defendant County for many decades.
22. Minorities residing in Nassau County have a disproportionate need for affordable multi-family housing that is not restricted to elderly persons (that is to say, “non-age restricted” housing). The County Government is fully aware that such non-age restricted affordable housing is disproportionately needed by – and used by – minorities. However, it is, and for many years has been, an express policy and practice of the County Government, as it recently expressed in its 2000-2004 Nassau County Consolidated Plan, to develop and promote the development of non-age restricted affordable housing only in predominantly minority and low-income areas of Nassau County and to exclude such affordable housing from areas that are predominantly populated by white people.
23. The County Government has also adopted a policy of supporting, encouraging, facilitating, and acquiescing in the efforts by local zoning authorities in the towns and villages located within Nassau County to enact exclusionary zoning laws and ordinances that often, inter alia, prevent the development of non-age restricted affordable multi-family housing, and it has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County and creating identifiable enclaves of nearly all-white
7

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residential communities, such as Garden City. This express policy amounts to racial steering by the County Government.
24. The County Government’s own housing policies and practices also cause, perpetuate, and reinforce housing segregation on the basis of race, color and national origin. With full knowledge and awareness that the minorities in Nassau County have a disproportionate need for affordable housing in Nassau County, the County Government maintains, and for many years has persisted in maintaining, an express and deliberate policy and practice of causing and steering such affordable housing to be constructed only in a small number of lower income and predominantly minority communities such as Roosevelt, Inwood, Hempstead Village, New Cassel and Freeport, and it has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
25. As a direct and foreseeable consequence of the aforementioned deliberate policy and practice, nearly all of the government subsidized, non-age restricted affordable housing developments in Nassau County are situated in predominantly minority census blocks.
26. The County Government has received and continues to receive federal subsidized housing funds from the Community Development Block Grant (“CDBG”) program and HOME program. The County Government’s customs, patterns and practices with respect to its use of these funds cause, perpetuate and reinforce racial and ethnic housing segregation and constitute overt racial steering. The CDBG and HOME programs require, among other things, the County Government “affirmatively to further” fair housing. Specifically, the County Government must use the funds in a manner that promotes racial integration rather than perpetuating racial and ethnic segregation, must collect and consider data documenting, and must evaluate the impact of its CDBG and HOME expenditures on racial and ethnic housing segregation.
8

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27. In derogation of its affirmative obligations, the County Government maintains, and for many years has maintained, a policy and practice of directing HOME funds to local governments and non-profit entities to acquire sites for the development of non-age restricted affordable housing only in low and moderate income communities with a disproportionately minority population, but not in predominantly white communities and segregated white enclaves like Garden City. The County Government has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
28. In derogation of its affirmative obligations, the County Government has not used its CDBG funds in a manner that promotes racial integration, but instead the County Government maintains, and for many years has maintained, an express and deliberate discriminatory policy of using CDBG funds to support the development of non-age restricted affordable housing disproportionately in areas of Nassau County that it knows or should know are already predominated by minority residents and it has done so with the purpose, intent, or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
29. In derogation of its affirmative obligations, the County Government has persistently and knowingly failed and refused to develop an “Analysis of Impediments to Fair Housing” to analyze fair housing needs and residential segregation, which is a basic prerequisite to fulfill its “affirmative obligation” to promote fair housing.
30. In derogation of its affirmative obligations, the County Government has persistently and knowingly failed and refused to track or document the effect of its CDBG and HOME expenditures on perpetuating segregation, so as to conceal and obscure the manifestly segregative effect of its CDBG and HOME programs on housing throughout Nassau County.
9

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31. In furtherance of its policy and practice of perpetuating and reinforcing segregated housing patterns in Nassau County, the County Government maintains, and for many years has maintained, an express and deliberate policy and practice of fostering the development of subsidized senior housing only or disproportionately on sites that are located in predominantly white areas of Nassau County, even though it knows that a disproportionate percentage of the residents of such housing are and will be white persons. As a direct and foreseeable consequence of the aforementioned policies and practices of the County Government, most of the subsidized senior developments are located in census blocks where the vast majority of the population is white.
32. The defendant County’s policies and practices with respect to its use and development of County-owned real estate further cause, perpetuate and reinforce the racially and ethnically segregated housing patterns that persist in Nassau County. The County Government maintains, and for many years has persisted in maintaining, a policy and practice of disallowing County-owned properties located in predominantly white communities of Nassau County to be sold to housing developers who it knows or believes will build affordable and integrated multifamily housing opportunities (and/or has reached agreements as to redevelopment plans to prevent such development). By contrast, the County Government maintains a policy and practice of affirmatively promoting the sale of County-owned property in predominantly minority communities to developers of affordable multi-family housing, and it has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
10

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33. More than thirty-years ago in January 1974, the U.S. District Court in Acevedo et al. v. Nassau County et al., expressly found that opposition to affordable and integrated housing in Nassau County is racially motivated:
By far, however, the most objectionable form of housing has been low-income family housing. It is clear from all the evidence that community opposition to this form of housing has been racially motivated. In Nassau County low-income family housing is predominantly occupied by Blacks. Proposals for the construction of this form of housing have incurred immediate and vehement opposition. As can be expected such heated opposition has not been ignored by the elected officials of Nassau. There is evidence of more than one housing proposal being dropped because of vehement community opposition. Acevedo et al. v. Nassau County et al., 369 F. Supp. 1384, 1389 (E.D.N.Y. 1974). 34. Notwithstanding, and with actual or constructive knowledge of, a judicial finding of this Court that community opposition to affordable multi-family housing is racially motivated, the County Government maintains, and for more than 30 years has maintained, the policy and practice of acquiescing in and impliedly consenting to neighborhood and community opposition to the development of affordable multi-family housing and other housing that provides integrated housing opportunities disproportionately needed by minorities or to proposed local laws or ordinances that would foster or permit such housing developments, and it has done so with the purpose, intent and foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
Garden City’s History of Housing Segregation 35. Defendant Village has cooperated with, facilitated and affirmatively acquiesced in
the County Government’s segregative policies and practices, including those that target the placement of non-age restricted affordable multi-family housing only in predominantly minority
11

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communities of Nassau County but not in predominantly white communities or in white residential enclaves like Garden City.
36. Garden City is, and has been for decades, a highly segregated, nearly all-white residential enclave, located near the center of Nassau County.
37. The population of Garden City is approximately 95% white, with a total of only 23 African-American households (constituting approximately 1% of the Garden City population).
38. The Village of Hempstead, which directly borders Garden City on the South, has a population of which approximately 84% are minority. Uniondale, which is located Southeast of Garden City, has a population of which approximately 79% are minority. The Village of Westbury, which is located Northwest of Garden City, has a population of which approximately 43% minority.
39. Defendant Village has continuously acted to reject and obstruct the creation of any affordable and integrated multi-family housing opportunities by engaging in exclusionary zoning practices, and it has done so with the purpose, intent or foreseeable effect of excluding minorities from residing within the borders of Garden City and thereby perpetuating racial and ethnic housing segregation in Garden City itself and throughout Nassau County, generally.
40. In or about April 1989, developers of a 18-acre parcel previously owned by Doubleday & Co., Inc. located at 501 Franklin Avenue in Garden City (“Doubleday Site”) proposed a plan to redevelop the Doubleday Site that would have included 51 units of affordable housing under then-current zoning (“Proposed Doubleday Site Development”). Faced with objections from Garden City residents, defendant Village rejected the Proposed Doubleday Site
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Development and adopted a plan that eliminated the possibility of an affordable housing development on the Doubleday Site.
41. Despite its opposition to the construction of affordable multi-family housing that would be likely to attract a significant proportion of minority residents, defendant Village has not blocked the development of other multi-family housing and apartment buildings that by their design are likely to be inhabited by predominantly white residents. For example, the Wyndham, completed in 1989, is a two-building, 9-story complex consisting of 316 luxury condominiums and rental apartments on 12 acres of land. The size and density of the Wyndham is significantly greater than the affordable, multi-family housing which faced staunch opposition in the present case. See, infra, ¶¶ 53-59. By its past actions, defendant Village has encouraged and permitted the building of luxury multi-family housing, like the Wyndham, in Garden City that it knew or should have known would be inhabited by only or virtually only white residents.
42. Upon information and belief, with actual or constructive knowledge that government-subsidized, multi-family unit housing is likely to attract a significant proportion of minority residents and provide an opportunity for racially integrated housing for residents of Garden City and the surrounding communities, the defendant Village has not permitted the construction of even a single instance of such housing within the boundaries of Garden City.
43. Consistent with and in furtherance of its policy of maintaining Garden City as, for all intents and purposes, an entirely white residential enclave within Nassau County, officials of defendant Village have engaged in open and notorious conduct to exclude minority persons from Garden City, its public parks, public streets and public schools. Examples of such conduct include (1) in 1970, defendant Village denied, after receiving objections from Garden City residents, an application by the Unitarian Universalist Church to operate a daily day care center
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in Garden City to serve 35 children, most of whom would be African-American and from lowincome households in neighboring towns; (2) as was recently found by the New York State Attorney General’s Office, defendant Village discriminatorily excludes minorities from using its public parks by regularly asking non-white non-residents to leave the parks and permitting white non-residents to use its parks; and (3) numerous African-Americans have reported incidents of being harassed by Village police while walking, jogging, driving and shopping in Garden City. The Social Services Site: An Opportunity for Affordable Racially Integrated and Diverse Housing
44. In or about May 2002, the County Government began drafting a Real Estate Consolidation Plan (“Consolidation Plan”). The purpose of the Consolidation Plan was to inventory the approximately 2500 County-owned properties, to consolidate County Government operations, and to sell certain County-owned properties that would no longer be necessary for County Government operations.
45. Among the subjects of the Consolidation Plan was certain property located in Garden City known as the “Mineola Complex”, which houses a courthouse, certain administration buildings, and parking facilities. Within the Mineola Complex is a parcel of approximately 25 acres of land located at 101 County Seat Drive, Garden City, known as the “Social Services Site”.
46. The 25-acre Social Services Site consists chiefly of 21.44 acres located on the eastern side of County Seat Drive on which a social services building and a parking lot are situated, and an additional 3.03 acres located on the Western side of County Seat drive on which the Old Laboratory Building and County Garage are situated.
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47. Throughout its preparation of the Consolidation Plan, defendant County consulted with defendant Garden City Board of Trustees to discuss the plans for the Mineola Complex and specifically for the Social Services Site.
48. The County Government issued its Consolidation Plan in December 2003 which called for, inter alia, the relocation of all the governmental operations then performed at the Social Services Site, and consolidating such operations with those performed at the County’s facility in neighboring Uniondale. The Consolidation Plan further called for the sale of the Social Services Site to a private developer.
49. The defendant County requested the defendant Village’s cooperation in rezoning the Mineola Complex, including the Social Services Site. At the time, the Social Services Site was zoned “P,” that is to say, for public use. The County Government sought to rezone the Social Services Site to allow for non-governmental uses, which would facilitate the sale of the Social Services Site to a private developer. Throughout their planning of the rezoning and redevelopment of the Social Services Site, the County Government and the Garden City Defendants cooperated, facilitated, and coordinated their efforts.
50. The defendant County knew or reasonably should have known that the Social Services Site presented a uniquely attractive opportunity to address the County’s need for affordable integrated housing opportunities, since it was centrally-located, publicly-owned, wellserved by public transportation, situated nearby to uses compatible with affordable multi-family housing, including retail establishments and employment opportunities, and lacked barriers that the County has frequently identified as impediments to the development of affordable multifamily housing, such as land availability and willing developers.
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The Original Proposed Plan and Its Significant Housing Opportunities for Minorities
51. In response to the County Government’s request, the Board of Trustees appointed a “P Zone Committee” to address issues relating to the Mineola Complex and hired planning consultants, the firm of Buckhurst Fish & Jacquemart Inc. (“BFJ”), to assist the Garden City Defendants in drafting rezoning proposals in response to the County Government’s plan to sell and redevelop the Social Services Site.
52. During 2003, Garden City’s P Zone Committee and BFJ held public workshops to discuss the development of the Social Services Site.
53. During 2003 BFJ and the P Zone Committee also met with representatives of the County Defendants to discuss issues related to the County’s proposed real estate consolidation, including among other things, the Village’s future zoning of the Mineola Complex and the Social Services Site.
54. In its final proposal, BFJ recommended that a new zoning designation of “CO-5b” be used for the Social Services Site (“Proposed Zoning”). Under the Proposed Zoning, the CO5b zoning would use existing residential multi-family zoning controls (commonly referred to as “R-M” zoning) and would allow single-family homes, townhomes and multi-family apartments.
55. Under the Proposed Zoning, and consistent with the existing R-M zoning, a multifamily dwelling would be subject, inter alia, to the following limitations: a maximum building height of 35 feet or two and a half stories; a restriction that the dwelling cover no more than 25% of the plot; a minimum of 25% of the plot must be open space; and the maximum number of multi-family housing units equal to one unit per 3000 square feet, or 14.5 units per acre. The
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Proposed Zoning therefore allowed for a maximum of 355 affordable multi-family units to be constructed on the 25-acre Social Services Site.
56. In its proposal, and in accordance with the Proposed Zoning, BFJ contemplated the construction of a 311-unit multi-family housing development on the Social Services Site (“Proposed Plan”), with each unit of sufficiently small size (approximately 1000 square feet per unit) and of sufficiently dense lot size as a whole so as to make it economically feasible for a developer of affordable multi-family housing to develop such housing.
57. The Proposed Plan as developed by BFJ expressly stated that the Proposed Zoning permitted the development of housing that fit well with existing uses around the Social Services Site, which sits in a transitional area between single-family houses, retail/commercial areas, public/governmental offices and multi-story parking garages.
58. Under the Proposed Plan, a developer could have constructed 311 affordable apartments and, therefore, could have created a substantial number of racially integrated housing opportunities disproportionately needed by minorities in Nassau County. The Proposed Plan represented a meaningful step forward towards attenuating the persistent racial and ethnic housing segregation that existed in Garden City, its surrounding communities and Nassau County. Neighborhood Opposition to the Possibility of Integrated Housing
59. On January 8 and February 5, 2004, the Garden City Defendants held hearings on the Proposed Zoning of the Mineola Complex and the Social Services Site.
60. During those public hearings, Garden City residents vociferously objected to the construction of affordable multi-family housing on the Social Services Site, and sought repeated
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assurances from Garden City Defendants and County officials present that no such affordable multi-family housing would be built on the Social Services Site. Upon information and belief, the public opposition was racially motivated.
61. In accordance with its long-standing policy and practice, the defendant County acquiesced in neighborhood and community opposition to the development of affordable housing on the Social Services Site and cooperated with, facilitated, and affirmatively supported in the Village’s segregative zoning policies and practices by assuring Garden City residents, during the public hearings and at other times, that the County would not take any action antagonistic to Garden City’s wishes and by agreeing to act in concert with the Garden City Defendants to reject the Proposed Plan and to permit only luxury housing to be built on the Social Services Site.
62. In direct response to the aforementioned neighborhood and community opposition, the County Government, by its County Executive the Honorable Thomas R. Suozzi, acting consistent with and in furtherance of the County’s long-standing policy and practice of acquiescing to neighborhood and community opposition of white residents to any housing developments likely to encourage or facilitate racially and ethnically integrated and diverse housing and acting, further, with conscious knowledge and awareness that affordable multifamily housing was actually needed in Nassau County and, in particular, those areas of Nassau County near to and around Garden City, gave express assurances that only luxury housing – that is to say, housing that defendant County knew or should have known was likely to attract predominantly white residents – would be allowed to be developed on the Social Services Site and gave as the reason therefore that given “the character of Garden City,” only such housing “would be appropriate.”
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63. In June 2004, the defendant Village – with the express and deliberate support, encouragement, acquiescence and consent of the defendant County – rejected the Proposed Plan and Proposed Zoning, which had been recommended by its own planning consultants, and subsequently adopted an entirely new zoning classification for the Social Services Site, designated “R-T”, which had not previously existed under the Village’s proposed zoning ordinance (“Special Zoning”).
64. The new Special Zoning adopted by the Village was unique to, and expressly limited to the Social Services Site. The Special Zoning imposed more severe restrictions on the construction of affordable multi-family housing than had theretofore existed under the “R-M” designation for residential multi-family zoning. Most importantly, the new Special Zoning imposed stringent and unique limitations on multi-family housing unlike those found elsewhere in the Village’s zoning regulations and, by design or foreseeable effect, prohibited the development of and integrated housing on the Social Services Site.
65. The discriminatory Special Zoning permits multi-family dwellings only by special permission and only on a tiny sliver of the Social Services Site – namely, the 3.03 acre plot on which the Old Laboratory Building and County Garage were situated – constituting less than 15% of the Social Services Site’s 25-acre area. The discriminatory Special Zoning permits at the very most construction of only about 36 affordable multi-family housing units, as compared to the 311 units of affordable, multi-family housing that had been permitted under the Proposed Plan and Proposed Zoning.
66. Even if special permission were to be obtained, the exclusionary Special Zoning adopted by the Village for the Social Services Site decreases the maximum number of multifamily units permitted on the 3.03 acre sliver of the Social Services Site, thereby making it
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economically unfeasible for any affordable racially integrated housing units to be developed on the Social Services Site.
67. Under the exclusionary Special Zoning, even if special permission were obtained the maximum number of multi-family units permitted on the 3.03 acre sliver is only one unit per 4000 square feet, as compared to the Proposed Zoning and existing R-M zoning, which permitted one unit per 3000 feet.
68. The discriminatory Special Zoning requires that single family homes and townhouses on the Social Services Site must be constructed of such a significant lot size and minimum square footage that the only economically feasible development on the Social Services Site will be of luxury single-family homes and townhouses, which are housing units likely to attract and to be inhabited by predominantly white residents.
69. The Proposed Zoning was rejected and the Special Zoning was adopted by the Garden City Defendants with the purpose, intent or foreseeable effect of preventing and excluding minorities from moving into the Village and the housing units to be constructed on the Social Services Site and into Garden City generally.
70. The reason asserted by defendants for rejecting the Proposed Zoning and adopting the Special Zoning was a concern with increased traffic and an increased burden on the school system from additional children that the Proposed Plan would cause.
71. The purported concern with increased traffic and an increased burden on the school system from additional children that the Proposed Plan would cause was not the real reason that the defendants rejected Proposed Zoning and adopted the Special Zoning.
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72. Garden City’s Defendants’ own consultants projected that, assuming up to 355 apartments on the site, the impact on traffic would be negligible, or about a 5% increase in traffic during the evening and morning rush hour, given current traffic for the existing uses. Further, assuming 355 apartments at an average of 1000 square feet each, BFJ projected only an additional 89 school children, for which the Garden City school district had sufficient capacity.
73. The real reason for and foreseeable effect of the Garden City Defendants’ decision to reject the Proposed Zoning and the Proposed Plan and to adopt the exclusionary Special Zoning was to prevent and curtail the availability of affordable, racially integrated housing in Garden City and to assure that the only housing allowed to be developed on the Social Services Site would be housing likely be inhabited by only or virtually only white residents.
Nassau County’s Promotion of and Consent To the Discriminatory and Exclusionary Special Zoning That Excludes Housing Opportunities for Minorities
74. With knowledge of the Village’s discriminatory conduct in adopting the exclusionary Special Zoning, the County Government failed and refused to – and indeed supported and acquiesced in – those provisions and conditions of the Special Zoning that eliminated the opportunity for affordable, racially integrated housing on the Social Services Site. In May 2004, the County Government affirmatively informed the Village of its objections to certain other provisions and conditions of the Special Zoning. However, the County Government supported and acquiesced in Garden City Defendants’ decision to block affordable and integrated housing opportunities on the Social Service Site.
75. The defendant County failed and refused to object to – and indeed acquiesced in and supported – certain provisions and conditions of Special Zoning that prevented or curtailed the availability of integrated housing – namely those limiting the permitted density of the
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housing units and the availability of multi-family housing – notwithstanding its belief that such provisions and conditions of the Special Zoning reduced the potential revenue from its sale of the Social Services Site and negatively affected the County Government’s overall Consolidation Plan.
76. In or about July 2004, after the discriminatory Special Zoning was adopted, the County Government issued a Request for Proposals (“RFP”) for the Social Services Site that set forth an asking price for the Social Services Site of $30 million.
77. Developers of affordable housing, including plaintiff NYAHC, were unable to respond to the RFP with a proposal that complied with the Special Zoning because the discriminatory Special Zoning made it economically infeasible to develop affordable housing given its limitations on permitted density. Immediately after Plaintiff NYAHC received the July 2004 RFP, NYAHC and a chapter of New York ACORN met with the County Government to present an alternative proposal for leasing the Social Services Site that would enable the County to meet its financial objectives while still providing affordable multi-family housing in Garden City. Promptly after that meeting, NYAHC sent financial information with respect to the proposal to County Government. During an August, 2004 meeting, County Government requested more information about the proposal, particularly with respect to the proposed lease payments. NYAHC promptly provided the requested information.
78. Under NYAHC’s proposal, it would lease the Site from the County and develop multi-family housing containing both affordable and market-rate units. The rents for the affordable units would be below market and based on the tenant’s income and family size as compared to the Nassau County area median income (“AMI”). For example, rent on a twobedroom apartment would be priced at $591 for families earning 30-40% of AMI, $760 for
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families earning 41-50% of AMI, $928 for families earning 51-60% of AMI, $1,182 for families earning 61-80% of AMI, $1,519 for families earning 81-100% of AMI, $1,857 for families earning 101-120% of AMI, and $2,195 for families earning 121-140% of AMI. The market-rate rent on a two-bedroom unit in the proposed development would be $2,500. NYAHC planned to fund the proposed development through tax-exempt bonds, the low income housing tax credit, and other subsidies, such as federal HOME funds, each of which is commonly used in the industry and has been previously used by NYAHC.
79. NYAHC developed this proposal in consultation with architects and other developers. NYAHC’s employees expended significant hours preparing the development proposal. Nonetheless, the County Government never responded to Plaintiff NYAHC’s proposal.
80. After it submitted its proposal to County Government, NYAHC drafted an alternative development plan including multiple scenarios that would comply with the Proposed Zoning and under which NYAHC would purchase the Social Services Site from the County for no less than its $30 million asking price. These alternative development plans provide for the construction of a multi-family housing development containing approximately 300 units, some of which would be affordable units for families with low and moderate incomes and others which would be market-rate units. Under this alternative plan, the affordable housing units would include one, two, and three bedroom rental apartments with an average size of 1000 square feet and average rents substantially similar to those contained in NYAHC’s original proposal to the County Government. Some of these affordable housing units would be available for families receiving Section 8 housing assistance. NYAHC intended to fund this alternative plan through tax-exempt bonds, the low income housing tax credit, and other subsidies, such as federal
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HOME funds, each of which is commonly used in the industry and has been previously used by NYAHC. NYAHC again expended numerous hours preparing this alternative proposal.
81. Upon information and belief, other affordable housing developers in Nassau County are also interested in building multi-family affordable housing on the Social Services Site, but did not respond to the RFP because of the restrictive Special Zoning.
82. Upon information and belief, the defendant County has selected developer Myron Nelkin to develop the Social Services Site and to construct only luxury single family dwellings and townhouses likely to attract only or virtually only white residents, and unlikely to provide racially integrated housing opportunities.
83. The County Government and Mr. Nelkin do not propose to develop on the Social Services Site any affordable and integrated housing units in Garden City.
84. The development of the Social Services Site as currently contemplated by the County Government perpetuates and reinforces racial and ethnic housing segregation in Garden City and Nassau County.
85. Unless enjoined by this Court, the sale by the County of the Social Services Site will perpetuate and reinforce racial and ethnic housing segregation in Garden City and Nassau County. Injury To Plaintiffs As Resulting from Defendants’ Wrongful Conduct
86. Due to the pervasive pattern of racial and ethnic segregation in housing in the residential communities surrounding Garden City and throughout Nassau County, plaintiffs Ghullkie, Guerrido, Hunter and McCray have been unable to find any suitable affordable housing outside of predominantly minority communities.
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87. Plaintiffs Ghullkie, Guerrido , Hunter, and McCray, desire to live in affordable housing in Garden City and likely have sufficient financial resources to afford an apartment in, and would seek to move into, affordable multi-family housing built on the Social Services Site were it not for defendants’ discriminatory conduct and practices. For instance, Plaintiffs Ghullkie, Guerrido, Hunter, and McCray desire to, are eligible to, and could afford to live in the affordable units available under the NYAHC proposals.
88. By virtue of the defendants’ discriminatory policies and actions, plaintiffs Ghullkie, Guerrido, Hunter, and McCray are being and, unless the relief herein requested is granted, will be, deprived of racially integrated housing opportunities outside predominantly minority communities of Nassau County and excluded from residing in predominantly white communities of Nassau County such as Garden City.
89. As a result thereof, plaintiffs Ghullkie, Guerrido, Hunter, and McCray do not have access to basic public services that they desire and which are available in Garden City, but not available in predominately minority communities of Nassau County, such as adequate law enforcement and public schools, available public parks, convenient public transportation, and more expansive shopping areas such as those located near the Social Services Site in Garden City.
90. By virtue of defendants’ discriminatory policies and actions, plaintiffs Ghullkie, Guerrido, Hunter, and McCray are being and, unless the relief herein requested is granted, will be deprived of the ability to live in a racially integrated residential community, including the many benefits of interracial associations that would come with living in a racially integrated portion of Garden City and will be forced to experience the social stigma that results from living in highly segregated Nassau County.
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91. As a white resident of Garden City, plaintiff DeVita desires to live in an integrated residential community, and by virtue of defendants’ discriminatory practices is being and, unless the relief herein requested is granted, will be, deprived of that opportunity of living in a more integrated community then currently exists in Garden City, and of the benefits that result from living in a racially integrated community, including the many benefits of interracial associations that would come with living in a racially integrated portion of Garden City.
92. Due to the defendants’ ongoing discriminatory conduct and practices that perpetuate and reinforce housing segregation generally and limit availability of affordable integrated housing developments to predominantly minority communities in particular, New York ACORN’s members are being and, unless the relief herein requested is granted, will be, deprived of the opportunity to find suitable affordable housing located outside areas of minority concentration in the County.
93. Due to the defendants’ ongoing discriminatory conduct and practices, New York ACORN members are being and, unless the relief herein requested is granted, will be deprived of the opportunity to live in racially integrated communities and the associated benefits of interracial associations that come with such housing opportunities.
94. Due to the defendants’ ongoing discriminatory conduct and practices, New York ACORN members do not have and, unless the relief herein requested is granted, will be deprived of access to basic public services in Garden City such as adequate law enforcement and public schools, available public parks, convenient public transportation, educational facilities and more expansive shopping areas located near the Social Services Site in Garden City.
95. Due to the defendants’ ongoing discriminatory conduct and practices that perpetuate and reinforce housing segregation generally and limit availability of affordable
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integrated housing developments to predominantly minority communities in particular, plaintiff NYAHC has been, and unless the relief requested herein is granted, will be deprived of its right to develop and make available affordable housing for low and moderate income families outside of areas of minority concentration in the County.
FIRST CAUSE OF ACTION (Violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq.) 96. Plaintiffs repeat and reallege paragraphs 1 through 95 as if fully set forth herein. 97. Defendants’ discriminatory practices, motivated by malice and/or callous disregard for the rights of Plaintiffs, deprive plaintiffs of their right of equal access to housing, otherwise make housing unavailable, deprive plaintiff NYAHC of its right to make housing available and perpetuate segregation on the basis of basis of race, color, and national origin in violation of the Fair Housing Act, 42 U.S.C. §§ 3604(a), both by intent and impact.
SECOND CAUSE OF ACTION (Violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981) 98. Plaintiffs repeat and reallege paragraphs 1 through 97 as if fully set forth herein. 99. Defendants’ discriminatory practices, motivated by malice and/or callous disregard for the rights of plaintiffs, deprive plaintiffs of their right to make and enforce contracts to purchase, lease, or otherwise hold or convey property, on the basis of basis of race, color, and national origin (and thus deprive them of the same such rights as are enjoyed by white persons) in violation of the Civil Rights Act of 1866, 42 U.S.C. §1981.
THIRD CAUSE OF ACTION (Violation of the Civil Rights Act of 1866, 42 U.S.C. § 1982) 100. Plaintiffs repeat and reallege paragraphs 1 through 99 as if fully set forth herein.
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101. Defendants’ discriminatory practices, motivated by malice and/or callous disregard for the rights of plaintiffs, deprive plaintiffs of their right to purchase, lease, or otherwise hold or convey property on the basis of basis of race, color, and national origin (and thus deprive them of the same such rights as are enjoyed by white persons) in violation of the Civil Rights Act of 1866, 42 U.S.C. §1982.
FOURTH CAUSE OF ACTION (Violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983 and the Equal Protection Clause
of the Fourteenth Amendment to the Constitution of the United States) 102. Plaintiffs repeat and reallege paragraphs 1 through 101 as if fully set forth herein.
103. Defendants’ discriminatory customs, patterns, practices, and usages in contravention of the Individual Plaintiffs’ and NYAHC’s constitutional and federal statutory rights motivated by malice and/or callous disregard for their rights, deprive the Individual Plaintiffs of their right of equal access to housing and deprive NYAHC of its right to make housing available under color of law in violation of the Federal Civil Rights Act of 1871, 42 U.S.C. §1983, and their rights under the Equal Protection Clause of the United States Constitution with regard to housing.
FIFTH CAUSE OF ACTION (Violation of the “Affirmatively Furthering” Obligations Under the
Fair Housing Act, 42 U.S.C. § 3608) 104. Individual Plaintiffs and New York ACORN repeat and reallege paragraphs 1 through 103 as if fully set forth herein.
105. In connection with their use of federal funds related to housing, including funds from the federal CDBG and HOME programs, the defendant County used the funds received in a discriminatory manner which promotes residential segregation and otherwise failed to meet the “affirmatively to further” obligations of the Fair Housing Act.
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SIXTH CAUSE OF ACTION (Violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.) 106. Individual Plaintiffs and New York ACORN repeat and reallege paragraphs 1 through 105 as if fully set forth herein. 107. The County Government’s discriminatory practices with regard to the administration of federal programs, including the federal CDBG and HOME programs, motivated by malice and/or callous disregard for the rights of the Individual Plaintiffs and New York ACORN, violate the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully demand that this Court enter a judgment:
a) Declaring that defendants’ acts, practices, and policies complained of herein violated and violate plaintiffs’ rights as secured by Fair Housing Act, as amended, 42 U.S.C. § 3601 et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil Rights Act of 1866, 42 U.S.C. § 1982; the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution; and the “affirmatively furthering” obligations of the Fair Housing Act, 42 U.S.C. § 3608, and the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq;
b) Enjoining defendants, their agents, employees, successors, assigns, and those acting in active concert, combination or participation with them, from engaging in any policies or practices that deprive plaintiffs of their rights secured by any and all of the statutes cited in sub-paragraph (a), above, including among other things:
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(i)

Enjoining the Nassau County Defendants from

proceeding with any sale of the Social Services Site, or continuing with any plans

for redevelopment of the site, under the discriminatory Special Zoning;

(ii)

Enjoining the Garden City Defendants from enforcing

or attempting to enforce in any way the discriminatory or exclusionary provisions

of the Special Zoning;

(iii)

Ordering the Garden City Defendants to approve

zoning ordinances for the Social Services Site that are substantially the same as

the Proposed Zoning or that otherwise permit affordable housing;

(iv)

Ordering the Nassau County Defendants to issue a

Request for Proposals consistent with the Proposed Zoning and Proposed Plan or

consistent with zoning which otherwise permits affordable housing including

provisions that will require the development of affordable and integrated housing

units at the Social Services Site;

(v)

Enjoining the Nassau County Defendants from selling

the Social Services Site to any person or developer that will not agree or commit

to building affordable and integrated housing units at the Social Services Site to

the maximum extent permitted under the Proposed Zoning;

(vi)

Ordering all defendants to take all actions necessary to

assure the redevelopment of the Social Services Site so as to maximize the

availability of affordable and integrated housing at the site, including taking such

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steps as the Court deems necessary and appropriate to support and/or subsidize such redevelopment;

(vii)

Enjoining the Garden City Defendants from granting,

and ordering the Garden City Defendants to withdraw, any permits, letters of

approval, or other consents allowing steps toward redevelopment of the Social

Services Site to continue;

(viii)

Enjoining all Defendants and their agents, employees,

successors and assigns, from engaging in any other discriminatory acts that

perpetuate or contribute to segregation in the Garden City and Nassau County;

and

(ix)

Ordering all Defendants to take and/or fund affirmative

steps, supervised by this Court, to overcome the effects of past discriminatory

practices, including the funding of remedial activities necessary to overcome the

perpetuation of segregation in Nassau County and Garden City;

and just; and

c) Awarding such other relief as this Court deems reasonable, necessary
d) Awarding Plaintiffs their costs and attorneys’ fees in this action. * * *

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Dated: New York, New York November 30, 2005
* pro hac vice admission to be sought

By: s/ Paul B. Sweeney Paul B. Sweeney (PS 5254) Michael Starr (MS 6851) Jenny Rubin Robertson* Kim F. Bridges (KB 1306)
HOGAN & HARTSON LLP 875 Third Avenue New York, New York 10022 (212) 918-3000
Attorneys for the Individual Plaintiffs
- and -
Frederick K. Brewington (FB 5295) Law Offices of Frederick K. Brewington 50 Clinton Street -- Suite 501 Hempstead, NY 11550 (516) 489-6959
Jonathan P. Hooks (admitted pro hac vice) Nicole J. DeSario (admitted pro hac vice) Lawyers' Committee for Civil Rights Under Law 1401 New York Avenue, N.W. -- Suite 5000 Washington, D.C. 20005 (202) 662-8326
Attorneys for Plaintiffs New York Association of Community Organizations for Reform Now, New York ACORN Housing Company, Inc. and the Individual Plaintiffs

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 Case 2:05-cv-02301-ADS-ARL Document 246 Filed 06/15/10 Page 1 of 9 PageID #: 6943

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X ACORN (The New York Association of Community Organizations for Reform Now), MHANY Management Inc., Vic DeVita, and Francine McCray,
Plaintiffs,

ORDER 05-CV-2301 (ADS) (WDW)

-against-

County of Nassau, Incorporated Village of Garden City, and Garden City Board of Trustees,

Defendants. ---------------------------------------------------------X APPEARANCES:

Law Offices of Frederick K. Brewington Attorneys for the former plaintiff ACORN and the proposed intervenor New York Communities for Change, Inc. 50 Clinton Street, Suite 501 Hempstead, NY 11550
By: Frederick K. Brewington, Esq., of Counsel

Lawyers’ Committee for Civil Rights Under Law Attorneys for all plaintiffs and the proposed intervenor New York Communities for Change, Inc. 1401 New York Avenue, NW Suite 400 Washington, DC 20005
By: Joseph D. Rich, Esq., of Counsel

Hogan & Hartson LLP Attorneys for plaintiffs Vic DeVita and Francine McCray 875 Third Avenue New York, NY 10022
By: Sabrina Helene Cochet, Esq., Jenny Rubin Robertson, Esq., Joanna F. Wasick, Esq., Stanley Joseph Brown, Esq., Toby William Smith, Esq., Peter Joseph Dennin, Esq., of Counsel

Case 2:05-cv-02301-ADS-ARL Document 246 Filed 06/15/10 Page 2 of 9 PageID #: 6944
Nassau County Attorney John Ciampoli Attorney for the defendant County of Nassau Office of the Nassau County Attorney 1 West Street Mineola, NY 11501
By: Esther D. Miller, Assistant County Attorney Andrew Reginald Scott, Assistant County Attorney Ralph J. Reissman, Assistant County Attorney Bethany Bresnaider O'Neill, Assistant County Attorney David Bruce Goldin, Assistant County Attorney
Heidell Pittoni Murphy & Bach LLP Attorneys for the defendant County of Nassau 1050 Franklin Avenue Garden City, NY 11501
By: Karen Schmidt, Esq., of Counsel
Cullen and Dykman, LLP Attorneys for the defendants Incorporated Village of Garden City and Garden City Board of Trustees 100 Quentin Roosevelt Boulevard Garden City, NY 11530
By: James G. Ryan, Esq., Jennifer A. McLaughlin, Esq., of Counsel
SPATT, District Judge.
This case arises out of a dispute concerning the proposed construction of low- and
middle-income housing on land owned by Nassau County and located in Garden City, New
York. Presently before the Court is a motion to intervene by proposed plaintiff New York
Communities for Change, Inc. (“NYCC”). For the reasons set forth below, the Court
grants this motion.
I. INTRODUCTION
In 2005, plaintiffs New York Association of Community Organizations for Reform
Now (“NY ACORN”), MHANY Management Inc. (“MHANY”, formerly known as New
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York ACORN Housing Company, Inc.), Vic DeVita, and Francine McCray brought the present case against defendants County of Nassau, the Incorporated Village of Garden City, and the Garden City Board of Trustees. The facts of the case are discussed in detail in a previous order issued in this case by United States District Judge Joseph F. Bianco, before whom this case was previously pending. See ACORN v. County of Nassau, No. 05-cv2301(JFB)(WDW), 2006 WL 2053732, *1 (E.D.N.Y. Jul. 21, 2006) (“ACORN I”). Familiarity with that decision is assumed. Briefly, the plaintiffs allege that the defendants discriminatorily re-zoned two parcels of Nassau County-owned land that was located in Garden City to prevent plaintiff MHANY from building low- and middle-income housing on that site. The plaintiffs further allege that this decision was part of a long-standing racially discriminatory policy maintained by the defendants. Based on these allegations, the plaintiffs assert claims pursuant to the Fair Housing Act, 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1982; and 42 U.S.C. § 2000d et seq. In response, the defendants deny any wrongdoing, and assert that they have no racially discriminatory policies. Discovery in the case is now concluded and closed.
The present motion arises from the recent dissolution of the plaintiff NY ACORN. Previously in this case, NY ACORN represented the interests of approximately 2,000 member families who lived on Long Island, and who claimed to seek racially integrated, affordable housing. See ACORN I, 2006 WL 2053732 at *10 (“ACORN does not assert claims on its behalf, but only on behalf of its members.”). However, due to funding difficulties and a September 2009 incident unrelated to the present case, many of NY ACORN’s national sister chapters disbanded. See, e.g., Times Topics: Acorn, March 23,
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2010, available online at http://topics.nytimes.com/top/reference/timestopics/ organizations/a/acorn/index.html. As of February 22, 2010, NY ACORN followed suit, and likewise ceased to exist. As such, no party is currently asserting claims on behalf of NY ACORN’s former members.
Presently, New York Communities for Change, Inc. (“NYCC”) seeks to intervene as the practical—though not the legal—successor to NY ACORN. NYCC states that it has purchased NY ACORN’s membership list and has agreed to provide certain services to NY ACORN’s former members. NYCC also asserts that most of its current Long Island-based members are former members of NY ACORN, and that both of its co-executive directors are former NY ACORN employees. In addition, NYCC Co-Executive Director Ann Sullivan was the only NY ACORN representative deposed during discovery in this case. NYCC maintains that it should be permitted to intervene in this action so that, like NY ACORN, it may assert claims against the defendants on behalf of its members—most of whom previously had their claims asserted in this case by NY ACORN. The claims NYCC seeks to assert are substantially the same as those formerly alleged by NY ACORN.
The defendants oppose NYCC’s intervention on the grounds that any claims by NYCC are now barred by the relevant statutes of limitations. The defendants also assert that NYCC’s intervention would require the parties to re-open discovery, causing unfair expense and delay.
II. DISCUSSION NYCC seeks intervention by right pursuant to Fed. R. Civ. P. 24(a), as well as permissive intervention pursuant to Fed. R. Civ. P. 24(b). The defendants oppose
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intervention on both grounds. While the Court is doubtful that NYCC is entitled to intervention by right under Rule 24(a), the Court will exercise its discretion to permit NYCC to intervene pursuant to Rule 24(b).
Rule 24(b) provides in pertinent part: (b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who: . . .
(B) has a claim or defense that shares with the main action a common question of law or fact. . . .
(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. Generally, a district court has broad discretion to grant or deny a request for permissive intervention. Catanzano by Catanzano v. Wing, 103 F.3d 223, 234 (2d Cir. 1996); Securities and Exchange Commission v. Everest Management Corp., 475 F.2d 1236, 1240 (2d Cir. 1973) (“Rule 24(b) necessarily vests broad discretion in the district court to determine the fairest and most efficient method of handling a case with multiple parties and claims.”). A court deciding a motion for permissive intervention under Rule 24(b) should consider (1) the relation of the proposed intervenor’s claims to the pending case, (2) the timeliness of the motion, and (3) the effect of intervention on the parties to the case. Catanzano, 103 F.3d at 234; New York News, Inc. v. Kheel, 972 F.2d 482, 487 (2d Cir. 1992).
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Here, there is no dispute that NYCC’s claims are related to the pending suit, as NYCC seeks to assert claims that are substantially identical to those asserted by the current plaintiffs. However, the defendants contend that NYCC’s intervention is untimely because its claims are barred by the relevant statutes of limitations. For its part, NYCC does not deny that the ordinary limitations periods on its claims have run, but maintains that its claims relate back to the original, timely complaint. The defendants dispute this contention, and further assert that NYCC’s intervention would require additional discovery, and that this would cause them unfair burden and delay.
First, with respect to the timeliness issue, the Court finds that NYCC’s claims do relate back to the timely original complaint. Unlike Fed. R. Civ. P. 15 and 17, which governs amendments to a complaint and substitution of parties, Rule 24 does not explicitly provide that an intervenor’s claim may relate back to the case’s original complaint for purposes of the statute of limitations. However, courts in this Circuit have generally interpreted Rule 24 to provide for relation back when: “(1) . . . there is a ‘community of interest’ between proposed intervenor’s and plaintiff’s claims; (2) intervenor’s motion is timely within the meaning of Rule 24; and (3) no prejudice to defendants would result.” New York v. Gutierrez, No. 08-cv-2503 (CPS)(RLM), 2008 WL 5000493, *13 (E.D.N.Y. Nov. 20, 2008) (Sifton, J.) (citing Ross v. Patrusky, Mintz & Semel, No. 90-cv-1356, 1997 WL 214957 (S.D.N.Y. Apr. 29, 1997) (collecting cases permitting intervenor’s filing of complaint despite expiration of statute of limitations)). See also Red Rock Commodities Ltd. v. M/V KOPALNIA SZOMBIERKI, 92-cv-6016 (LMM), 1994 WL 440822, *2, (S.D.N.Y. Aug. 15, 1994); Cummings v. United States, 704 F.2d 437, 440 (9th Cir. 1983).
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In the Court’s view, these cases are persuasive, and the Court also finds that NYCC satisfies the requirements set forth by Judge Sifton in Guitierrez for an intervenor’s claim to relate back to the original pleading. Namely, (1) there is a “community of interest” between NYCC’s claims and those currently pending against the defendants, (2) NYCC moved to intervene shortly after the disbanding of NY ACORN, and therefore cannot be said to have unreasonably delayed in acting, and (3) it is the Court’s opinion that no unfair prejudice to the defendants will result from NYCC’s intervention.
Nevertheless, the defendants challenge this conclusion based on a case from the Southern District of New York that pre-dates Gutierrez and Ross. In that case, Ceribelli v. Elghanayan, No. 91-cv-3337(CSH), 1994 WL 529853 (S.D.N.Y. Sept. 28, 1994), the court held that a proposed intervenor’s claims would not relate back to the original pleading, and were thus barred by the relevant statute of limitations. However, in Ceribelli, the proposed intervenors had previously timely filed federal claims against the defendants, and then abandoned those claims in favor of state court. Id. at *1. After being disappointed in state court, the proposed intervenors then returned to federal court and attempted to reassert their now time-barred federal claims by intervening into a similar action brought by others against the same defendants. Id. The court denied the plaintiffs’ intervention, stating:
Something akin to a rule of repose may be invoked when a party, having chosen a course of action and foregone a claim in the course of doing so, seeks to revive that claim after the statute of limitations has run by joining a suit timely filed by others. Id. In the Court’s view, the holding of Ceribelli denying the relation back of a proposed intervenor’s complaint is limited to its facts, and is distinguishable from the present case.
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In Ceribelli, the plaintiffs sought to use the federal rules of procedure to gain an unfair advantage. Here, NYCC seeks to intervene primarily to represent the interests of individuals who are presently unrepresented before the Court through no fault of their own. To the extent that Ceribelli contains additional dicta that is inconsistent with Gutierrez, Ross, and the Court’s present holding, the Court finds that dicta to be unpersuasive.
Finally, the defendants also object to NYCC’s intervention because it would require discovery to be re-opened, and this would be unfairly burdensome to the defendants. While this is an appropriate consideration for a Rule 24(b) motion, the Court is not persuaded by the defendants’ assertions. It is the Court’s view that any supplementary discovery necessitated by the intervention of NYCC would be minimal, and that this will not cause unfair prejudice to the defendants.
The Court therefore grants NYCC’s motion for permissive intervention pursuant to Rule 24(b).
III. CONCLUSION For the foregoing reasons, it is hereby
ORDERED that NYCC’s motion to intervene pursuant to Rule 24(b) is granted; and it is further
ORDERED that, within twenty days of the date hereof, NYCC may file a complaint substantially similar to the proposed complaint by NYCC presently filed with the Court; and it is further
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ORDERED that the parties are directed to appear before United States Magistrate Judge William D. Wall for a conference concerning any additional discovery in this case on June 25, 2010 at 11:00; and it is further
ORDERED that, pending the submission of NYCC’s complaint, the Clerk of the Court is directed to amend the caption for this case to read as follows: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X MHANY Management Inc., Vic DeVita, and Francine McCray,
Plaintiffs, -againstCounty of Nassau, Incorporated Village of Garden City, and Garden City Board of Trustees,
Defendants. ---------------------------------------------------------X SO ORDERED. Dated: Central Islip, New York June 15, 2010
__/s/ Arthur D. Spatt______ ARTHUR D. SPATT
United States District Judge
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 Case 2:05-cv-02301-ADS-WDW Document 315 Filed 02/15/12 Page 1 of 101 PageID #: 8495

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X MHANY Management Inc., Vic DeVita, and Francine McCray,

-and-

Plaintiffs,

MEMORANDUM OF DECISION AND ORDER 05-CV-2301 (ADS) (WDW)

New York Communities for Change, Inc.,

Intervenor - Plaintiff,

-against-

County of Nassau, Incorporated Village of Garden City, and Garden City Board of Trustees,

Defendants. ---------------------------------------------------------X APPEARANCES:

Hogan & Hartson LLP Attorneys for the Plaintiffs Vic DeVita and Francine McCray 875 Third Avenue New York, NY 10022
By: Sabrina Helene Cochet, Esq., Jenny Rubin Robertson, Esq., Joanna F. Wasick, Esq., Stanley Joseph Brown, Esq., Toby William Smith, Esq., Peter Joseph Dennin, Esq., of Counsel

Law Offices of Frederick K. Brewington Attorneys for the former Plaintiff ACORN and the Intervenor-Plaintiff New York Communities for Change, Inc. 50 Clinton Street, Suite 501 Hempstead, NY 11550
By: Frederick K. Brewington, Esq., of Counsel

Case 2:05-cv-02301-ADS-WDW Document 315 Filed 02/15/12 Page 2 of 101 PageID #: 8496
Lawyers’ Committee for Civil Rights Under Law Attorneys for all Plaintiffs and the Intervenor-Plaintiff New York Communities for Change, Inc. 1401 New York Avenue, NW Suite 400 Washington, DC 20005
By: Joseph D. Rich, Esq., Linda H. Mullenbach, Esq., of Counsel
Nassau County Attorney John Ciampoli Attorney for the Defendant County of Nassau Office of the Nassau County Attorney 1 West Street Mineola, NY 11501
By: Esther D. Miller, Assistant County Attorney Andrew Reginald Scott, Assistant County Attorney Ralph J. Reissman, Assistant County Attorney Bethany Bresnaider O'Neill, Assistant County Attorney David Bruce Goldin, Assistant County Attorney
Cullen and Dykman, LLP Attorneys for the Defendants Incorporated Village of Garden City and Garden City Board of Trustees 100 Quentin Roosevelt Boulevard Garden City, NY 11530
By: James G. Ryan, Esq., Jennifer A. McLaughlin, Esq., of Counsel
SPATT, District Judge.
In 2005, several individual plaintiffs and organizations commenced a lawsuit
against the Defendants the County of Nassau (the “County Defendant”), the Incorporated
Village of Garden City, and the Garden City Board of Trustees (collectively, the “Garden
City Defendants”). Briefly, the Plaintiffs allege that the Defendants discriminatorily re-
zoned two parcels of Nassau County-owned land that were located in Garden City to
prevent the building of low- and middle-income housing on that site. The Plaintiffs further
allege that this decision was part of a long-standing racially discriminatory policy
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maintained by the Defendants. Based on these allegations, the Plaintiffs assert claims pursuant to the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1982; 42 U.S.C. § 1983; and 42 U.S.C. § 2000d et seq. In response, the Defendants deny any wrongdoing, and assert that they have no racially discriminatory policies. Six years have now passed since the suit’s initial filing, and there have been dozens of depositions, the exchange of thousands of documents, expert analyses and thousands of hours of attorney time.
Now pending before the Court is a series of motions. First, both the County Defendant and the Garden City Defendants have separately moved, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, for summary judgment dismissing the entirety of both the Plaintiffs’ amended complaint and the intervenor complaint. In addition, the Intervenor-Plaintiff New York Communities for Change, Inc. (“NYCC”) has moved to amend its intervenor complaint to include an additional cause of action that was inadvertently omitted.
I. BACKGROUND The Court has taken the facts described below from the parties’ depositions, affidavits, exhibits, and respective Local Rule 56.1 statement of facts. Upon consideration of a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. New York, 422 F.3d 47, 50 (2d Cir. 2001).
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A. Factual Background 1. The Parties Vic DeVita is a white male who resides in Garden City, New York. (Garden City
“GC” 56.1 ¶ 1.) Francine McCray is an African-American female who seeks affordable housing in a racially integrated and diverse area of Nassau County, including Garden City. (GC 56.1 ¶ 2.) The Plaintiff MHANY Management Inc. (“MHANY”) is a non-profit community based developer of affordable housing incorporated in New York. (GC 56.1 ¶ 4.) MHANY was formerly known as New York ACORN Housing Company Inc. (“NYAHC”), which was previously a plaintiff in this action. The Intervenor-Plaintiff New York Communities for Change, Inc. (“NYCC”) is a non-profit entity organized under the laws of the State of New York and formed in December 2009. (Nassau County “NC” 56.1 ¶ 4; GC 56.1 ¶ 6.) NYCC is the practical successor to another former plaintiff in this action, the New York Association of Community Organizations for Reform Now (“ACORN”). (NC 56.1 ¶ 6.)
Nassau County (“the County”) is a municipal corporation organized under the laws of the State of New York. (NC 56.1 ¶ 1.) The Incorporated Village of Garden City (“Garden City”) is a municipal corporation also organized under the laws of the State of New York and located in Nassau County. (NC 56.1 ¶ 2.) The Garden City Board of Trustees (“the Board”) is an elected governing body in Garden City, from which the Garden City offices responsible for all development in Garden City derive their power. (NC 56.1 ¶ 3.)
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2. Affordable Housing Options in Nassau County The Plaintiffs’ expert Nancy McArdle, who conducted an analysis of racial change and segregation in Nassau County, reports that as of the year 2000, Nassau County was ranked in the top half of top 1% of all counties in the United States for segregation of African-Americans and in the top 10% of all such counties for segregation of Hispanics. (McArdle Decl. ¶ 6.) Specifically, the population of Nassau County in 2000 was 74% white, 10.3% African-American and 10% Hispanic. (Plaintiffs’ Amended Statement of Additional Material Facts (“SAMF”) ¶ 12.) Minorities comprised 14.8% of all households in Nassau County, but 31.1% of renter households, 41.4% of very low-income households, and 53.1% of non-elderly, very low-income households. (McArdle Decl. ¶ 49.) In Nassau County, family subsidized housing, which serves a predominantly minority population, tends to be located in high-minority areas, while senior citizen housing, which serves a much lower minority population, tends to be located in much lower minority areas. (McArdle Decl. ¶ 52.) Over half of the County’s affordable housing units are located in municipalities with minority shares that are over three times the County average, while two-thirds of subsidized housing for senior citizens are located in municipalities with minority shares below the County average. (McArdle Decl. ¶ 53.) While the County has a persistent need for affordable housing, the County has noted that “affordable housing sponsors are often confronted with strong neighborhood opposition to proposed low and moderate income developments.” (SAMF ¶ 244.) The previous Deputy County Executive for Economic Development, Patrick Duggan, testified that “people who don’t want people of different races living in their communities and local
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communities elect their elected officials to do the will of the people.” (SAMF ¶ 245.) He further stated that “local municipalities have been demonstrated to use zoning to keep out — to use it as a way to keep people out.” (Duggan Dep. at 107:12-20.)
3. Affordable Housing Options in Garden City Garden City has a population of approximately 21,750 individuals and has approximately 6,480 residences, of which approximately 1,095 are units contained in multi-family dwellings. (GC 56.1 ¶¶ 104-05.) Garden City’s population is over 90% white. (SAMF ¶ 1.) As of the 2000 Census Report, minorities comprised 4.1% of the Garden City population, as opposed to 20.3% of the County’s population. (McArdle Decl. at ¶ 17.) Between 1980 and 2000, the minority population of the County increased by 105%, while the minority population of Garden City increased by only 31.4%. (McArdle Decl. at ¶ 17.) It is important to note that according to the Plaintiffs’ expert, 61% of the Village’s African-American population was living in dormitories in 2000, and thus excluding this population significantly alters these statistics and perhaps paints a more realistic picture of Garden City’s demographics. If one looked only at people living in households in 2000, and not in group quarters such as dormitories, the minority share of Garden City’s population was just 2.6% of the population (versus the 4.1% above), as compared to 19.7% in the County (versus the 20.3% above). To the east and south of Garden City are the municipalities of East Garden City, which in 2000 was 67% minority, Hempstead, which in 2000 was 84% minority, and Uniondale, which in 2000 was 79% minority. (SAMF ¶ 5.) In 2000, 2.3% of households in Garden City were headed by an African-American or Hispanic person, compared to
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15.3% of Nassau County households. (SAMF ¶ 7.) If minorities comprised the same share of Garden City households as they did of Nassau County households, Garden City would have 1,333 African-American or Hispanic households, versus the actual total of 167. (SAMF ¶ 9.) There are “no low- and moderate-income census tracts or block groups in the Village of Garden City.” (SAMF ¶ 3.) None of the multi-family dwellings that Barbara K. Miller, the former mayor, identified in Garden City offer affordable housing as an option. (SAMF ¶ 168.) McArdle reported that because of the lower income distributions of minority families, increasing the number of affordable units in a community would increase the number and share of minority households who could afford to live in that community. (McArdle Decl. ¶ 12.)
Former Nassau County Executive Suozzi has stated that “Garden City . . . historically, has been viewed as a community that didn’t want to have affordable housing in it.” (SAMF ¶ 98.) To that end, Garden City residents have expressed their opposition to affordable housing in Garden City in the past. (SAMF ¶ 174.) Garden City asserts that in the past twenty-seven years it has not received any applications from any developer of affordable housing and in the history of the village has no record indicating that any such application has ever been filed,. (GC 56.1 ¶¶ 106-08.) The Plaintiff disputes this fact based upon: (1) a news article from April 21, 1989, which stated that “a preliminary application [was] submitted . . . by the owners of Doubleday to develop the 18-acres Franklin Avenue property” (Ex. 78 at PM000005); and (2) a news article from May 26, 1989, which contained quotations from Doubleday’s owner and developer that he “applied for a building permit under the existing zoning in accordance with which it would build 51
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units of affordable housing at the site.” (Ex. 38; Ex. 37.) The Garden City Defendants contest the Court’s consideration of these articles as hearsay.
In May 2006, the County announced that it intended to sell a parcel of land located in Garden City, the Ring Road site, for the purpose of developing affordable housing in Garden City and Nassau County. (SAMF ¶ 191.) In order for the project to go forward, the Board needed to rezone the site from commercial to multi-family residential. However, Garden City residents expressed opposition to the construction of affordable housing in the town. (SAMF ¶¶ 193-99.) In 2006, Garden City increased the amount of residential space available in its hotel district to allow for the development of more luxury condominiums. (SAMF ¶ 202.) As of May 2011, there were only three areas zoned for multi-family use in Garden City, none of which contain affordable housing. (SAMF ¶ 203.)
4. Allegations of Other Discriminatory Acts in Garden City In early 1969, the Unitarian Universalist Church of Central Nassau proposed to open a subsidized day care center in Garden City, in which the majority of children served would be African-American. (SAMF ¶ 208.) The proposal led to numerous lawsuits and petitions, in which opponents argued that the center would create traffic problems, reduce property values, and change the character of the neighborhood. (SAMF ¶ 209.) The Plaintiffs also allege that between 1987 and 1989, the Board imposed a moratorium on new construction to gain tighter control over housing development in Garden City. (SAMF ¶ 213.) As another example of alleged discriminatory acts, in 2004, the New York State Attorney General investigated complaints that Garden City enforced a local requirement
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limiting the use of its parks to Garden City residents in a racially discriminatory manner. (SAMF ¶ 215.) In a press release dated May 12, 2005, the New York State Attorney General stated that “Garden City park attendants routinely question black non-residents about their residency and refuse them entry into the parks, while permitting white nonresidents to enter and use the parks without questioning their residency.” (Pls.’ Ex. 43.) In the wake of this investigation, Garden City adopted policies and procedures to ensure that local regulations were not enforced in a racially discriminatory manner. (Pls.’ Ex. 43.)
5. The County’s Real Estate Consolidation Plan Former County Executive Thomas R. Suozzi began serving his first term in January 2002, at which time the County faced a severe fiscal crisis. (NC 56.1 ¶¶ 18, 20.) Specifically, the County was struggling to address many County facilities that had fallen into disrepair after years of neglect. (NC 56.1 ¶¶ 22-24.) In response to this problem, County Executive Suozzi created a real estate consolidation plan to sell surplus property and maximize the revenue from those sales to invest in refurbishing other County facilities. (NC 56.1 ¶ 25; Cohen Dep. at 16.) County Executive Suozzi appointed Sheldon Cohen as Director of the Office of Real Estate Planning and Development for the County. He retained the real estate consulting firm Insignia ESG to advise the County on how to sell surplus and/or underutilized County property and return the profit to the tax rolls. (NC 56.1 ¶¶ 27-35.) The consolidation plan included a twenty-five acre parcel of land located within the boundaries of Garden City, which housed the Nassau County Supreme Court, County administration buildings, and parking facilities (hereinafter “the Social Services site”).
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(GC 56.1 ¶ 8; NC 56.1 ¶ 38.) At this time, the Social Services site was designated as a “Public P-Zone” under Garden City’s zoning code and thus only permitted buildings owned by governmental entities for governmental purposes. (GC 56.1 ¶ 13; NC 56.1 ¶ 37.) The County represents that in selling the Social Services site, its “only concern” was maximizing revenues from the sale of the property and, therefore, it asked Garden City to re-zone the property in a manner consistent with that goal. (NC 56.1 ¶¶ 39-43, 57; GC 56.1 ¶¶ 11, 14.) County Executive Suozzi testified that it was his understanding that zoning which permitted multi-family housing and upscale units would maximize revenue. (NC 56.1 ¶¶ 44-45.) Suozzi further stated that he did not want single-family homes on the Social Services site because multi-family housing would fetch a higher purchase price. (NC 56.1 ¶¶ 47-48.) However, Suozzi did not want to build affordable housing on the Social Services site, but rather housing similar to “The Wyndham,” an upscale apartment complex located in Garden City that exceeds six stories, as he felt that this type of housing would garner a higher sale price. (NC 56.1 ¶¶ 49-53.)
6. The Re-Zoning of the Social Services Site Though the County asked Garden City to re-zone the Social Services site, it maintains that Garden City and its Board possessed the sole authority to make zoning determinations over the construction, location and usage of buildings within Garden City, including real property owned by the County located within Garden City. (NC 56.1 ¶ 54.) Plaintiffs dispute this assertion, arguing that (1) the County initiated the re-zoning process; (2) the County “touted” the fact that it “partnered” with Garden City in that process; and
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(3) the County admits that it failed to engage in serious negotiations with Garden City regarding the process. (Pls.’ NC Resp. at 2-3.)
In June 2002, Garden City created a sub-committee (hereinafter “the Committee”) which was comprised of three members of the Board — Peter Bee, chair of the Committee, Gerard Lundquist and Peter Negri. The Committee was charged with retaining a planner to review zoning options for the Social Services site, (GC 56.1 ¶ 15; NC 56.1 ¶ 58.) The Committee was also given the task of reviewing the proposed zoning options and making recommendations to the Mayor and the Board. (NC 56.1 ¶ 58.) On recommendation of the Committee, Garden City retained Burkhurst Fish and Jacquemart (hereinafter “BFJ”) as its planners. (NC 56.1 ¶ 59; GC 56.1 ¶ 16.)
In September 2002, Garden City Village Administrator Robert Schoelle, Jr. wrote to County Executive Suozzi to advise him that any zoning associated with the proposed development should be in accordance with the goals set forth in the Garden City Zoning Code, i.e. consistent with the surrounding neighborhoods in terms of scale and design. (NC 56.1 ¶ 60.) Schoelle further represented that Garden City would cooperate with the County provided that the County “acknowledge the legitimate interests of the Village to control and guide land uses”. (NC 56.1 ¶ 61.) At a September 24, 2002 address to the Garden City Chamber of Commerce, County Executive Suozzi mentioned multi-family housing as a possible use if the County sold the Social Services site. (NC 56.1 ¶ 62.)
By memorandum dated October 8, 2002 and addressed to the four Garden City Property Owners Associations, Schoelle stated that the “County Executive’s apparent goal is to sell surplus properties and raise the maximum money for the County . . . . However,
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the Village’s goals are not necessarily identical to the County’s goals . . . . It is apparent that we realize . . . that the County’s and Village’s interests could conflict and that the Village will work diligently to protect the character and residential quality of our Village.” (NC 56.1 ¶ 63.)
By memorandum dated November 15, 2002, titled “Potential Approach to ‘P’ Zone Changes,” and addressed to the Committee, BFJ recommended that Garden City should borrow from its already existing zoning regulations and apply something similar to the “CO-2” zone, allowing for commercial and office use, as well as residential use on the southern part of the property. (NC 56.1 ¶¶ 64-65.) Specifically, BFJ suggested that the regulations for residential use include a maximum density of one unit per 2,300 square feet of lot area, which would permit as many as 770 units on the property. (NC 56.1 ¶¶ 66-68; SAMF ¶ 39.)
Following an April 18, 2003 meeting with the Committee, Schoelle, Special Counsel John Kiernan, and Superintendent of the Garden City Buildings Department Michael Filippon, BFJ issued a memorandum on April 30, 2003 proposing the creation of the “CO-5” zone, which would include a “multifamily residential, group” (hereinafter “RM”) zoning control and ultimately allow for 311 units on the Social Services site. (NC 56.1 ¶¶ 70-73.) Under the proposed zoning, the density would allow garden apartments or townhouses. (NC 56.1 ¶ 73; GC 56.1 ¶ 21.) BFJ memorialized this recommendation in a report entitled “Village of Garden City – A Zoning Study for Public P District” on May 12, 2003. (NC 56.1 ¶ 76; GC 56.1 ¶ 20.) This study stated that the proposed CO-5 zone for the Social Services site “is seen as a transitional area between existing single-family homes
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neighborhoods and current commercial development. . . . We propose using the existing RM zoning controls . . . R-M allows 14.5 units per acre. At the Social Services site this would allow a total of 311 units . . . [and] would also allow single-family homes . . . which would allow a total of approximately 75 units.” (NC 56.1 ¶ 77.)
On May 2, 2003, Village Administrator Schoelle wrote to Nassau County Real Estate Director Cohen, stating, in part, that “[t]he tentative consolidation proposals are cause to remind you that the Village has building and zoning regulations that should be respected. In particular, we call your attention to . . . the Code of . . . Garden City . . . which requires site plan review and approval . . . It is our belief that the County must comply with the Village’s zoning and building regulations and requirements.” (NC 56.1 ¶ 75.)
By memorandum dated May 19, 2003 and addressed to Schoelle, BFJ stated that the “contemplated zoning designation would allow office and residential uses . . . . Given the weak office market, the site would most likely be developed for either single-family homes or apartments.” (NC 56.1 ¶ 80.) The memorandum further compared the sales value of the property if sold under the single-family home designation, as opposed to the multi-family designation, and concluded that the sales value of the property under the latter designation far exceeded that of the former. (NC 56.1 ¶ 81.) Specifically, the comparison, provided by an appraiser and three local realtors, concluded that the sales value and land value of the property under the multi-family designation would be, respectively, $155.5 million and $31 million dollars, while those figures under the single-family designation would be $86.2 million and $17 million dollars. (NC 56.1 ¶ 81.)
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On May 29, 2003, BFJ presented its study to Garden City at a public forum. (NC 56.1 ¶¶ 82-83; GC 56.1 ¶ 25.) On July 9, 2003, BFJ issued a revised version of the study, which again included the proposal that Garden City zone the Social Services site under the “CO-5 zone, which would permit residential development of either 311 apartment units or approximately 75 single-family homes.” (NC 56.1 ¶¶ 84-85; GC 56.1 ¶ 31.) According to the Plaintiffs, R-M zoning controls would permit the construction of affordable housing developments. (Pls.’ GC Resp. at 3.) On August 19, 2003, County Executive Suozzi, Cohen and other County personnel met with the Committee and Frank Fish of BFJ to discuss the County’s concerns with the rezoning proposal; specifically, County Executive Suozzi stated that the County wished to maximize the sale of the land and therefore desired a density of at least 400 more apartment units. (NC 56.1 ¶¶ 86-87.)
After meeting with the Committee on September 29, 2003, BFJ reported via memorandum that the Committee favored residential development and, specifically, the RM designation. (NC 56.1 ¶¶ 87-88.) Several reasons were stated for this preference, including the ability to “Afford both young and older Garden City residents the ability to either establish themselves as homeowners in Garden City or remain in Garden City after their home may be sold; Transition between single-family housing and the County office buildings . . . ; Reduce the traffic generation . . . ; [and] Moderate impacts on the public school system.” (NC 56.1 ¶ 89.)
On October 17, 2003, a notice was placed in the Garden City News entitled, “Tell Them What You Think About the County’s Plan for Garden City,” which stated:
Where is the Benefit to Garden City? Are We Being Urbanized? . . . The County is asking the Village to change our existing zoning – P (Public use) ZONE – to allow
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the County to sell the building and land . . . now occupied by the Social Services Building, to private developers. Among the proposed plans: Low-density (highrise?) housing – up to 311 apartments . . . These proposals will affect ALL of Garden City. (NC 56.1 ¶ 92.) On October 23, 2003, BFJ presented its proposal to Garden City at a second public forum and again stated that single-family homes, townhouses, or apartments would be permitted under the proposed zoning. (NC 56.1 ¶¶ 90-91; GC 56.1 ¶¶ 33-34.) In a memorandum setting forth the agenda for a November 6, 2003 meeting between BFJ and the Committee, and in a November 10, 2003 memorandum to the Committee, BFJ again confirmed its proposal for R-M zoning in the Social Services site. (NC 56.1 ¶¶ 93-94.) In November 2003, BFJ issued another Zoning Study, its third report, confirming its proposal for the R-M designation that allowed for a possible 311 apartment units on the Social Services site. (NC 56.1 ¶ 95.) On November 19, 2003, Committee Chair Peter Bee wrote a letter on the Committee’s behalf endorsing the recommendations contained in BFJ’s November 2003 Zoning Study, including that which proposed 311 multi-family apartment units on the Social Services site. (NC 56.1 ¶ 96.) On January 8, 2004, Garden City held a public hearing to consider a proposed local law that would rezone the P-Zone under the CO-5 zone, which would permit office and courtroom use, as well as both single family and multi-family units. (GC 56.1 ¶¶ 41-43.) At the meeting, residents voiced concerns that multi-family housing would generate more traffic, parking problems, and schoolchildren. (See generally Pls.’ Ex. 53.) Frank Fish of BFJ informed the residents that the County had hired a consulting firm to do a full environmental impact statement, which would include a traffic study, and that residents
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would be invited to attend a “scoping session” after the completion of the statement, at which time they could provide their input. (Pls.’ Ex. 53, at 2344-45.)
On January 20, 2004, the Eastern Property Owners’ Association held a Board Meeting, at which time Trustee Bee discussed BFJ’s recommendation for the Social Services site. (SAMF ¶ 63.) The summary of the meeting reports that “Trustee Bee answered many questions from the floor” and, in doing so, expressed the opinions that “Garden City demographically has a need for affordable housing” and that “he would keep an open mind but he still felt the recommended zoning change were appropriate.” (Pls.’ Ex. 66 at 3.) The summary further states that “County Executive Suozzi was reminded that he pledged not to do anything that Garden City residents objected to. Mr. Souzzi’s [sic] commitment still stands.” (Pls.’ Ex. 66 at 3.)
On February 5, 2004, County Executive Suozzi attended a public hearing for the residents of Garden City, at which time he presented the County’s real estate consolidation plan. (GC 56.1 ¶¶ 49-50; NC 56.1 ¶ 98.) County Executive Suozzi stated at his deposition that he wanted Garden City to re-zone the Social Services so as to allow multi-family housing. (NC 56.1 ¶ 99.) The County asserts that County Executive Suozzi spoke at the hearing to persuade Garden City to adopt the zoning plan that maximized County revenues. The Plaintiffs maintain that County Executive Suozzi sought to preserve and defend the RM zoning proposal against changes sought by local residents opposed to the proposed zoning based, in part, on racism. (NC 56.1 ¶ 100; Pls.’ NC Resp. at 3; see Pls.’ Ex. 21, Deposition of Thomas Suozzi (hereinafter “Suozzi Dep.”) at 62-63 (“SUOZZI: I think there
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are some people that are opposed to affordable housing in Garden City based upon racism.”).)
Residents at the public hearing voiced their preference for “upscale” housing at the Social Services site. (See, e.g., Pls.’ Ex. 54 (“Hearing Tr.”) at 2391 (“TRUSTEE BEE: [N]either the County nor the Village is looking to create a so-called affordable housing at that spot. UNIDENTIFIED SPEAKER: Can you guarantee that it won’t be in that building? . . . I’m in the Cherry Valley apartments and I’m just concerned about a huge amount of apartments that come on and depress the market for any co-op owner in the Village. How do you guarantee it’s going to be upscale . . . .”); id. at 2386 (“UNIDENTIFIED SPEAKER: You say it’s supposed to be upscale. SUOZZI: It’s going to be upscale. If you sell your $2 million home in Garden City and you don’t want to take care of that lawn anymore, you can go into . . . who lives in Wyndham for example? It’s a very upscale place.”).)
The residents further voiced their opposition to multi-family housing at the Social Services site. (See, e.g., Hearing Tr. at 2404 (“BRIAN GEMMEL [to SUOZZI]: “I don’t think you are hearing a lot of the people. We’re not against residential, we’re against multi-level residential.”); id. at 2407 (“SUOZZI: You would probably like to see single family housing I presume. UNIDENTIFIED SPEAKER: Single family. (Applause).”); id. at 2407-08 (“GAIL MADIGAN: I moved here from Brooklyn so that when I walked out of my house I did not turn to my left and see apartment buildings.”); id. at 2408 (“SUOZZI: Mayor out of respect, let me stipulate the facts here. The public of Garden City especially from the eastern civic association does not want to see multi-family housing here. They’d
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rather see single-family housing.”); id. at 2409 (“DAVID PICIULO: I don’t hear a compelling argument from anyone here tonight as to why we should have multi-dwelling homes. Can we take it out of the proposal?”).)
It is undisputed that County Executive Suozzi believed the County could earn the most revenue from a zoning plan that permitted multi-family housing. (NC 56.1 ¶ 102.) County Executive Suozzi clarified at the meeting, however, that “[the County] is absolutely not interested in building affordable housing there and there is a great need for affordable housing, but Garden City is not the location.” (NC 56.1 ¶ 105.) He further stated that developers
would love to build upscale housing in Garden City . . . . We would be willing to put deed restrictions on any property that we sold. The Village would have control of their zoning requirements. We would put on restrictions whatsoever, no ifs ands or buts, that it can’t be anything but upscale housing. Put it this way, we generate more revenues for the County by selling it for upscale housing. (NC 56.1 ¶ 106.) It is further undisputed that Trustee Negri felt that “housing occupied by low income minorities” was not consistent with “the existing character of the neighborhood.” (Pls.’ Ex. 13, Deposition of Peter Negri (hereinafter “Negri Dep.”) at 2425.) A flyer distributed in Garden City prior to a March 18, 2004 meeting of the Board asked: “WILL GARDEN CITY PROPERTY VALUES DECREASE IF OVER 300 APARTMENTS ARE BUILT AT THE SITE OF THE SOCIAL SERVICES BUILDING?” It further stated: The Garden City Trustees are close to voting on how to zone this property. They might choose to zone it for multi-family housing (If Senator Balboni’s current bill passes in June, as many as 30 of those apartments would be considered ‘affordable housing.’ According to this bill, ‘Affordable workforce housing means housing for
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individuals or families at or below 80% of the median income for Nassau Suffolk primary metropolitan statistical area as defined by the Federal Department of housing and urban development.’ . . . NOT JUST GARDEN CITY INCOMES! . . .) (Pls.’ Ex. 32.) On April 1, 2004, BFJ prepared a document titled “CO-5b Zoning Discussion, Social Services Site,” and, under the “Notes for Discussion” section, revised the number of potential multi-family units on the site from 14 units per acre to 10 units per acre, to allow for a maximum of 215 units, versus the prior number of 311. (NC 56.1 ¶¶ 107-08.) On April 22, 2004, BFJ presented this revised proposal to the residents of Garden City. (NC 56.1 ¶ 109; GC 56.1 ¶ 61.) By memorandum dated May 4, 2004 and addressed to the Board, BFJ proposed eliminating the CO-5b zone altogether, and with it, the potential for multi-family housing on the 21.44 acres of land on the Social Services site located east of County Seat Drive. (NC 56.1 ¶ 110.) Specifically, BFJ stated: [W]e reviewed the public comments with Robert Schoelle, Michael Filippon and Gary Fishberg. Based upon these discussions we would recommend for your consideration two basic refinements to the recommendations: (1) Elimination of office use for the 101 County Seat Drive area; (2) Provide for multi-family housing in the 101 County Seat Drive area only by special permit and limited to the West Side of County Seat Drive. (NC 56.1 ¶ 111.) BFJ suggested renaming the proposed zoning designation as “Residential-Townhouse” (hereinafter “R-T”), which essentially limited the development of multi-family housing to less than 15% of the Social Services site, and only by special permit. (NC 56.1 ¶ 112.) BFJ’s proposed description of the R-T zone defined “townhouse” as a “single-family dwelling unit.” (NC 56.1 ¶ 114.)
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On May 20, 2004, proposed Local Law No. 2-2004, which deleted the P-Zone and replaced it with CO-5 and R-T districts, the latter of which encompassed the Social Services site, was considered at a public hearing. (GC 56.1 ¶¶ 65-67.) At the meeting, one attendee asked whether Garden City would be “open to affordable housing” or whether it was “going to take litigation.” (Pls.’ GC Resp. at 9.) An ACORN member noted the need for affordable housing on Long Island and asked that Garden City consider “build[ing] affordable housing in their community.” (Pls.’ GC Resp. at 8-9.)
By letter dated May 24, 2004 and addressed to Mayor Miller, Cohen wrote: [T]he County requests that the Village consider applying zoning regulations that would provide more flexibility for development of property consistent with the zoning framework that controls other areas of the Village. By limiting the density as proposed, the Village is severely impacting her County’s potential revenue from the sale of this property and as such, impacts the overall Real Estate Consolidation Plan. (NC 56.1 ¶ 119; Resissman Dec. Ex. AQ.) In a memorandum dated June 2, 2004 and addressed to the Board, BFJ expressly stated: “The maximization of profit on land sales was not a zoning criteria for the Village.” (NC 56.1 ¶ 120.) County Executive Suozzi testified that he represented to the Board that he would not go against their wishes regarding plans for the Social Services site, and that regardless of whether Garden City’s wishes were motivated by racism, he was not concerned with that in his role as County Executive, but rather concerned with maximizing revenues for the sale of the property. (Suozzi Dep. at 83-84.) 7. Garden City Adopts the R-T Zone for the Social Services Site On June 3, 2004, the Board officially adopted Local Law No. 2-2004, which rezoned the P District containing the Social Services site to R-T zoning. (NC 56.1 ¶¶ 121-
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22.) As enacted, Local Law No. 2-2004 limited construction on the Social Services site to one dwelling unit for each 6,000 square feet of total plot devoted to such use. (NC 56.1 ¶ 124.) ACORN representative Ismene Speliotis determined, after reviewing the new zoning, that “it was going to be hard to respond to develop affordable housing given th[e] parameters” in that it “asked for very few housing units . . . [and] a high acquisition price.” (Pls.’ Ex. 18 (hereinafter “Speliotis Dep.”) at 43-44.) She further noted that “while it is not totally impossible to build affordable housing given that zoning, it certainly does not encourage the building of affordable housing.” (Speliotis Dep. at 183.)
In July 2004, the County issued Requests for Proposals (“RFPs”) for the sale of the Social Services site. (GC 56.1 ¶ 92; NC 56.1 ¶ 128.) Cohen testified that the RFP was drafted to solicit a purchaser consistent with the new zoning rules that were adopted by Garden City. (NC 56.1 ¶ 129.) The RFP stated that the County would not consider bids of less than thirty million dollars. (GC 56.1 ¶ 93; NC 56.1 ¶ 135.) Plaintiffs assert that under this RFP, it would have been virtually impossible to build affordable housing and, therefore, it would have been futile for them to submit an affordable housing response to the RFP that complied with the new zoning. (SAMF ¶¶ 129, 132.) However, former Plaintiff NYAHC contacted the County to work with them on a proposal that would include multi-family affordable housing, and urged it to withdraw or modify the current RFP to require some part of the property to be affordable housing. (SAMF ¶¶ 134-35, 143.) Former Plaintiffs NYAHC and ACORN met with County Executive Suozzi and other County officials to discuss the proposal and the possibility of constructing affordable
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housing on the Social Services site. (SAMF ¶ 141.) The County did not reissue the RFP. (SAMF ¶ 144.)
Proposals were due by September 10, 2004 at 12:00 noon, with two copies to be mailed to Cohen in Mineola and a third copy to be mailed to Martin Lomazow in Westbury. (GC 56.1 ¶ 94; NC 56.1 ¶ 136.) Applicants were further directed to submit a concept drawing, three bound originals of the proposal, and a good faith deposit of $5,000. (NC 56.1 ¶¶ 137-39.) As of 12:00 noon on September 10, 2004, the County received nineteen bids conforming to the above-mentioned requirements, ranging from $31,070,000 to $56,833,640. (NC 56.1 ¶ 141.)
8. NYAHC Submits a Bid On September 10, 2004, former Plaintiff NYAHC submitted a six page letter proposal that did not conform to the technical requirements laid out in the RFP. (GC 56.1 ¶ 95; NC 56.1 ¶¶ 143-45; Pls.’ NC Resp. at 7.) Specifically, NYAHC proposed leasing the subject property (with an up-front lease payment of $5,000,000) for the development of rental apartments for mixed incomes. (NC 56.1 ¶ 148; Pls.’ NC Resp. at 11.) Plaintiffs maintain that NYAHC’s proposal did not follow the specifications laid out in the RFP because the RFP made the construction of affordable housing on the Social Services site virtually impossible. (Pls.’ Resp. at 8-9.) Specifically, NYAHC’s proposal stated: As the County knows from previous meetings, telephone conversations and correspondence with NYAHC and LI ACORN, NYAHC is unable to respond to the County’s Request for Proposals (RFP) of July 2004 related to the 25 County-owned parcel in Garden City (the Parcel) due to the restrictive zoning adopted by the Village of Garden City in connection with the County’s sale of the Parcel.
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(Pls.’ NC Resp. at 8.) At the time of submission, NYAHC had the capacity to pay the $30 million dollar asking price up front and still build affordable housing on the Social Services site, as well as the capacity to pay the County $150 million dollars over thirty years. (Pls.’ NC Resp. at 11.)
On November 17, 2004, the County selected Fairhaven Properties, Inc. as the highest bidder for the purchase of the Social Service site with the bid of $56,500,000. (GC 56.1 ¶ 101; NC 56.1 ¶¶ 151-54.)
NYAHC developed four proposals for development at the Social Services site under the R-M zoning designation after the contract was awarded to Fairhaven Properties, Inc., with the percentage of affordable and/or Section 8 housing units out of 311 total rental units ranging from 12.5% to 25%. (SAMF ¶¶ 149-154.) Plaintiffs’ expert McArdle evaluated each proposal in conjunction with the racial/ethnic distribution of the available pool of renters and determined that had NYAHC been able to building housing under any of the four proposals in accordance with the rejected R-M zoning designation, the pool of renters likely to occupy all units, including market rate, affordable and Section 8 units, would have likely been between 18% and 32% minority with minority-households numbering between 56 and 101. (McArdle Decl. at ¶¶ 59-61.) McArdle further analyzed the likely racial composition of the pool of homeowners who could afford to purchase units potentially developed by Fairhaven Properties, Inc., based on their proposal as well as available information regarding Garden City property values, and determined that between 3 and 6 minority-households could afford such a purchase. (McArdle Decl. at ¶ 67.)
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9. Current Status of the Social Services Site On January 1, 2010, Thomas R. Suozzi was succeeded by the present County Executive Edward P. Mangano. (NC 56.1 ¶ 310; GC 56.1 ¶ 111.) The Mangano Administration decided to relocate the County’s Family Court building, currently located in Westbury, New York, to the Social Services site. (NC 56.1 ¶ 311; GC 56.1 ¶¶ 112-13.) Thus, although the prior County administration planned to sell the Social Services site to a private developer, the site is currently no longer for sale. (NC 56.1 ¶ 320; GC 56.1 ¶ 114.) The County asserts that a primary factor in the decision to build a new Family and Matrimonial Court Complex at the Social Services site is cost, because although moving the building to a new location and renovation will cost approximately the same $100 million, renovation will not “remedy the many deficiencies in the existing building.” (NC 56.1 ¶ 324.) The Plaintiffs dispute this assertion and state that it will cost tens of millions dollars more to relocate the Family Court to the Social Services site rather than renovate the existing Family Court site in Westbury. (Pls.’ NC Resp. at 19; Carl Schroeter Dep. at 48:9-49:2, 97:5-11.) According to the Plaintiffs, the estimated cost of relocating the Family Court to the Social Services site is between $110 million and $130 million, while the estimated cost of renovating the current Family Court site is between $85 million and $95 million. (SAMF ¶¶ 161-62.) In addition, by building a new Family Court at the Social Services site, the County will lose the revenue it could gain by selling the site. (SAMF ¶ 163.)
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10. Nassau County’s Status as a HUD Grant Recipient The United States Department of Housing and Urban Development (“HUD”) administers Community Planning and Development Formula Grant Programs (“CPD formula grants”), including the Community Development Block Grant Program (“CDBG”) and the HOME Investment Partnerships Program (“HOME”). (NC 56.1 Pt. 2 ¶ 3.) HUD’s Office of Community Planning & Development (“CPD”) distributes the CPD formula grants to Nassau County as an “Urban County”— one that has a population of 200,000 or more and is certified by HUD as an Urban County Entitlement. (NC 56.1 Pt. 2 ¶ 6.) The Nassau County Office of Community Development (“OCD”) is responsible for administering HUD funds to the Nassau Urban County Consortium (“the Consortium”). (NC 56.1 Pt. 2 ¶ 1.) The Consortium includes participating cities, towns, and villages who agree by a cooperation agreement to apply for HUD funds, including CDBG and HOME funds. (NC 56.1 Pt. 2 ¶ 7.) The Consortium applies for HUD recertification every three years, during which time the County solicits non-participating municipalities to join the Consortium. (NC 56.1 Pt. 2 ¶ 8.) The County also provides the participating communities with the opportunity to “opt out” of the Consortium; those who do not opt out are automatically retained as members. (NC 56.1 Pt. 2 ¶ 9.) Consortium members are considered a “participating jurisdiction” and HUD funds distributed and administered by the County are allocated according to the population and demographics of the participating municipalities. (NC 56.1 Pt. 2 ¶ 11.) Garden City has never participated in, and has never been a member of, the Nassau Urban County Consortium. (NC 56.1 Pt. 2 ¶ 14.)
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The County’s CPD formula grants are distributed in accordance with the Nassau Urban County Five-Year Consolidated Plan and Annual Action Plan (“Con Plan”), which is prepared by the OCD for the Consortium every five years and serves as the comprehensive housing affordability strategy, community development plan, and submission for funding, including CDBG and HOME grants. (NC 56.1 Pt. 2 ¶¶ 15-16.) The Con Plan governs the County’s decision as to which activities and organizations to fund. (NC 56.1 Pt. 2 ¶ 16.) HUD mandates that in preparing a Con Plan that is eligible for HUD funding, the authority must certify that they are “affirmatively furthering fair housing within their jurisdictions.” (NC 56.1 Pt. 2 ¶ 29; See 24 C.F.R. § 91.225.) Part of this effort is the identification and subsequent reduction and/or elimination of “impediments to fair housing”, and the Analysis of Impediments is included in the Con Plan. (NC 56.1 Pt. 2 ¶¶ 29, 33.) In addition, OCD prepares an annual Consolidated Annual Performance and Evaluation Report (“CAPER”), which requires the County to evaluate its efforts to affirmatively further fair housing on an annual basis. (NC 56.1 Pt. 2 ¶ 33.)
The County points out that it submitted the 2010 Con Plan and Analysis of Impediments to HUD for approval, and has not been notified of any deficiencies or failures to meet federal requirements. Also, the County has continued to receive HUD funding up through and including the present day. (NC 56.1 Pt. 2 ¶ 43.) However, the Plaintiffs dispute any suggestion that a lack of notification by HUD of deficiencies indicates compliance with the federal requirements. (Pls.’ NC Pt. 2 Resp. at 17.)
According to the Plaintiffs, the County has a policy and practice of using federal housing funding, including HOME and CDBG funds, to concentrate affordable housing in
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high minority areas. (SAMF ¶ 231.) The 2005-2009 draft Con Plan anticipated the locations of planned affordable housing developments to include five municipalities with minority shares that are several times the County average. (McArdle Decl. ¶ 55.) Further, affordable housing projects anticipated to be completed in 2010 with the assistance of HUD HOME grants were to be constructed in two municipalities that rank in the top three highest minority municipalities in the County — Roosevelt and New Cassel. (McArdle Decl. ¶ 55.) The County’s 1995, 2000 and 2005 Con Plans stated that “Nassau County currently targets its comprehensive community development efforts in a number of lower income and minority areas . . .” (SAMF ¶ 232.)
The County has never evaluated the impact of CDBG or HOME expenditures on racial or housing segregation, nor has it examined how centering the construction of affordable housing in minority communities would impede fair housing. (SAMF ¶ 258.) The County notes, however, that the minority communities targeted for the development of affordable housing have “active programs.” (Pls.’ Ex. 14, Deposition Transcript of Rosemary Anne Olsen (hereinafter “Olsen Dep.”) at 218.)
The County Defendant has devoted a large portion of its Rule 56.1 Statement to describe various aspects of the County’s disbursement of federal housing funds, including: the disbursement of CDBG and HOME funding; analyses of impediments to fair housing; establishment of fair housing plans; housing training and education programs and workshops; the County’s 10-year plan to end homelessness; the Section 8 Housing Choice Voucher program; and the emergency shelter grant program. It appears the County did this, in part, to establish that affordable housing options do exist in Nassau County in a
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nondiscriminatory fashion and that it is affirmatively furthering fair housing within its jurisdictions. (See NC 56.1 Pts. 2 and 3; Crean Aff.) For the most part, the Plaintiffs do not dispute any factual allegations in this regard. However, they contest any implication that the preparation and/or existence of these materials and programs indicate that the County’s activities comply with its obligations under fair housing law, related civil rights statutes, and federal funding regulations. B. Procedural History
On May 12, 2005, the Plaintiffs ACORN, NYAHC, and several individual Plaintiffs filed the instant action, which was initially assigned to United States District Judge Leonard D. Wexler. On February 9, 2006, this case was reassigned to United States District Judge Joseph F. Bianco. On March 10, 2006, the County and the Garden City Defendants moved separately to dismiss the action for lack of standing and failure to state a claim. By Memorandum and Order dated July 21, 2006, Judge Bianco denied both motions in their entirety and directed the parties to conduct discovery in accordance with the Individual Rules of United States Magistrate Judge William D. Wall. See ACORN v. County of Nassau, No. 05 Civ. 2301 (JFB) (WDW), 2006 WL 2053732 (E.D.N.Y. July 21, 2006). In March 2009, both the County Defendant and the Garden City Defendants moved for summary judgment.
On March 2, 2010, Judge Bianco recused himself in this case. Thereafter, the case was reassigned to this Court for all further proceedings. Consequently, all pending motions were denied without prejudice and with leave to refile in accordance with this Court’s individual motion practice rules. On April 14, 2010, a motion to intervene as plaintiff
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pursuant to Federal Rule of Civil Procedure 24(b) was filed by NYCC, which the Court subsequently granted on June 15, 2010. On June 30, 2010, NYCC filed its intervenor complaint. On June 25, 2010, Magistrate Judge Wall granted the Plaintiff’s request to reopen discovery.
On July 29, 2011, motions for summary judgment were again filed by both the Garden City Defendants and the County Defendant. In addition, on August 26, 2011, the Intervenor-Plaintiff NYCC filed a motion to amend its intervenor complaint, pursuant to Rule 15(a)(2), to include an additional cause of action for violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its rights under the Equal Protection Clause of the Fourteenth Amendment. The motions for summary judgment and the motion to amend are currently pending.
II. MOTIONS FOR SUMMARY JUDGMENT A. Legal Standard on a Motion for Summary Judgment
It is well-settled that summary judgment under Fed. R. Civ. P. 56(c) is proper only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” within the meaning of Fed. R. Civ. P. 56 when its resolution “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In determining whether an issue is genuine, “[t]he inferences to be drawn from the
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underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.” Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).
Once the moving party has met its burden, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere “metaphysical doubt” upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538. Summary judgment is appropriate when the moving party can show that “little or no evidence may be found in support of the nonmoving party’s case.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223–24 (2d Cir. 1994) (citations omitted). B. Mootness
The threshold issue that the Court must address prior to addressing the substantive merits of the case is mootness. See Aladdin Capital Holdings, LLC v. Donoyan, 438 Fed App’x 14, 15 (2d Cir. 2011) (“We must first address whether we have Article III jurisdiction and resolve an issue of mootness.”); see also United States v. Miller, 263 F.3d 1, 4 n.2 (2d Cir. 2001) (“[A] federal court may not . . . decide a case on the merits before resolving whether the court has Article III jurisdiction.”).
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In its motion for summary judgment, the County asserts that the because the Social Services site is no longer being sold due to plans for a new Family and Matrimonial Court Complex to be built at that location, that the relief the Plaintiffs seek, namely, to enjoin the County from selling the site, can no longer be given. Moreover, even though the County acknowledges that the case has been rendered moot only by voluntary cessation of its own challenged conduct, it also claims that it has established that the challenged action will never occur again, through the submission of an affidavit from Chief Deputy County Executive Robert Walker to that effect.
The Garden City Defendants similarly assert that because the Social Services site is no longer being sold, that the case has been rendered moot. According to Garden City, “any such injunctions or orders granted against the Village with the goal of permitting affordable housing on the Site will obviously be ineffective. Even if the Court were to order that the Village approve zoning ordinances allowing for housing at the Site, the Site is no longer for sale by the County and what is done at the Site is not subject to the control of the Village.” (GC Mem. at 16.)
On the other hand, the Plaintiffs criticize both of these positions as inaccurate and disingenuous. The Plaintiffs claim that the relief they seek is not limited to the site, so that even if “a meteor fell from the sky and destroyed the Site . . . this case would not be moot.” (Pl. Opp. at 15.) For example, the Plaintiffs’ prayer for relief seeks to enjoin all the Defendants and their agents, employees, successors and assigns, from engaging in any other discriminatory acts that perpetuate or contribute to segregation in Garden City and Nassau County. The Plaintiffs also seek an order that all the Defendants take and/or fund
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affirmative steps, supervised by this Court, to overcome the effects of past discriminatory practices, including the funding of remedial activities necessary to overcome the perpetuation of segregation in Nassau County and Garden City. In addition, the Plaintiffs request a declaratory judgment. In addition, the Plaintiffs contend that the Court can fashion its own relief to redress the wrongs that the Defendants have allegedly perpetuated against the Plaintiffs.
1. Legal Standard “Mootness is a doctrinal restriction stemming from the Article III requirement that federal courts decide only live cases or controversies.” In re Zarnel, 619 F.3d 156, 162 (2d Cir. 2010). Under the doctrine of mootness, a court no longer has subject matter jurisdiction when “the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969) (internal quotation marks omitted)). Thus, for a federal court to have subject matter jurisdiction over a case, “it is not enough that a dispute was very much alive when suit was filed. . . . The parties must continue to have a personal stake in the outcome of the lawsuit.” Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S. Ct. 1249, 108 L. Ed. 2d 400 (1990)) (internal citation and quotations omitted), cert. denied, 526 U.S. 1131, 119 S. Ct. 1805, 143 L. Ed. 2d 1009 (1999). “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the
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Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (internal quotation marks omitted); see Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S. Ct. 447, 121 L. Ed. 2d 313 (1992) (“It has long been settled that a federal court has no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” (internal quotation marks omitted)).
2. As to the Whether the Present Case is Moot Before proceeding to analyze the potential mootness of this case, it is essential to first comprehend what relief the Plaintiffs are actually seeking. According to the Prayer for Relief contained in both the Plaintiffs’ amended complaint and the intervenor complaint, which are identical, the Plaintiffs seek an injunction that would: (1) enjoin the Nassau County Defendant from proceeding with any sale of the Social Services site, or continuing with any plans for redevelopment of the site, under the discriminatory “Special Zoning” (the R-T zoning); (2) enjoin the Garden City Defendants from enforcing or attempting to enforce in any way the discriminatory or exclusionary provisions of the Special Zoning; (3) order the Garden City Defendants to approve zoning ordinances for the Social Services site that are substantially the same as the “Proposed Zoning” (the R-M zoning) or that otherwise permit affordable housing; (4) order the Nassau County Defendant to issue a Request for Proposals for the sale of the site consistent with the Proposed Zoning or consistent with zoning which otherwise permits affordable housing, including provisions that will require the development of affordable and integrated housing units at the Social Services site; (5) enjoin the Nassau County Defendant from selling the Social Services site
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to any person or developer that will not agree or commit to building affordable and integrated housing units at the Social Services site to the maximum extent permitted under the Proposed Zoning; (6) order all defendants to take all actions necessary to assure the redevelopment of the Social Services site so as to maximize the availability of affordable and integrated housing at the site, including taking such steps as the Court deems necessary and appropriate to support and/or subsidize such redevelopment; (7) enjoin the Garden City Defendants from granting, and ordering the Garden City Defendants to withdraw, any permits, letters of approval, or other consents allowing steps toward redevelopment of the Social Services site to continue; (8) enjoin all Defendants and their agents, employees, successors and assigns, from engaging in any other discriminatory acts that perpetuate or contribute to segregation in Garden City and Nassau County; and (9) order all Defendants to take and/or fund affirmative steps, supervised by this Court, to overcome the effects of past discriminatory practices, including the funding of remedial activities necessary to overcome the perpetuation of segregation in Nassau County and Garden City. The complaints also seek a declaratory judgment, and any other such relief that the Court deems reasonable, necessary and just, as well as the costs and attorneys’ fees incurred by the Plaintiffs.
Thus, there are two specific instances of injunctive relief sought by the Plaintiffs against both sets of Defendants that do not relate specifically to the Special Services site itself. First, the Plaintiffs seek to enjoin all of the Defendants and their agents, employees, successors and assigns, from engaging in any other discriminatory acts that perpetuate or contribute to segregation in Garden City and Nassau County. Second, the Plaintiffs seek an
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order that all of the Defendants take and/or fund affirmative steps, supervised by this Court, to overcome the effects of past discriminatory practices, including the funding of remedial activities necessary to overcome the perpetuation of segregation in Nassau County and Garden City. This is in addition to the declaratory relief and any other relief that the Court deems reasonable, necessary and just.
The preliminary and essential inquiry is whether the relief sought by the Plaintiffs can no longer be given or is no longer needed, so as to make the present case moot. See Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983) (“The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.”); Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993) (“Accordingly, a case that is ‘live’ at the outset may become moot ‘when it becomes impossible for the courts, through the exercise of their remedial powers, to do anything to redress the injury.’”) (quoting Alexander v. Yale, 631 F.2d 178, 183 (2d Cir. 1980).
The focus point of this controversy is undoubtedly Garden City’s allegedly discriminatory zoning practices as to the specific Social Services site. Of course, if the Court were to enjoin the Nassau County Defendant from proceeding with any sale of the Social Services site, or continuing with any plans for redevelopment of the site under the discriminatory Special Zoning; or to order the Garden City Defendants to approve zoning ordinances for the Social Services site that are substantially the same as the Proposed Zoning or that otherwise permit affordable housing, such relief could not actually be given if the County refrains from selling the site. In fact, this is true for most of the relief that the Plaintiffs seek as to both sets of Defendants, although the Court notes that it may not be
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impossible for the Court to grant some relief as to the Site. The County acknowledges in its opposition to NYCC’s motion to amend the intervenor complaint that “the County needs finality on the issue of whether plaintiffs’ demand for injunctive relief will bar the construction where the decision to build has been made final”. Thus, even the County appears to concede that the Court’s injunctive relief as to the Site itself is still a plausible outcome.
Nevertheless, even if relief cannot be granted as to the site itself, it is ultimately irrelevant for purposes of analyzing mootness. “Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests.” Powell v. McCormack, 395 U.S. 486, 496, n.8, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969). The Court finds that the entire controversy is not rendered moot solely because the Social Services site is no longer susceptible to the zoning laws that were alleged to be discriminatory.
Although the relief requested as to the site may have been rendered moot, the broad injunctive relief sought by the Plaintiffs is certainly still a potential outcome of this case. See, e.g., U.S. v. Mass. Maritime Acad., 762 F.2d 142, 157 (1st Cir. 1985) (“Given the evidence of persistent past discrimination, the district court was entitled to enter an injunction permanently enjoining any repeat discriminatory conduct even if the illegal conduct had by then ceased.”); South-Suburban Hous. Ctr. V. Greater South Suburban Bd. of Realtors, et al., 935 F.2d 868, 881 (7th Cir. 1991) (finding that an FHA challenge to street plan for damages, declaratory relief, and injunctive relief was not rendered moot
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although homes were sold prior to trial, in part because there was still a viable claim for declaratory and injunctive relief).
Moreover, this Court can fashion appropriate relief not specifically requested, such as the building of integrated, affordable housing elsewhere in Garden City, if this Court deems it reasonable, necessary and just. In a civil FHA case brought by a private person, the court’s equitable powers include the power to order such affirmative action as may be appropriate. 42 U.S.C. § 3613(c)(1). For example, affirmative injunctive relief may be awarded for past discriminatory practices “where the trial court believes that the vestiges of prior discrimination linger and remain to be eliminated.” United States v. DiMucci, 879 F.2d 1488, 1498 (7th Cir.1989) (citations omitted) (internal quotations omitted); see Local 28, Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 450, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986) (“Affirmative action promptly operates to change the outward and visible signs of yesterday’s [discriminatory] distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices.”) (internal quotation omitted); Watkins v. Washington, 472 F.2d 1373, 1376 (D.C. Cir. 1972) (“Where pervasive racial discrimination is demonstrated, the court has not only the power, but also the duty, to render a decree eliminating the effects of past discrimination and ensuring equal opportunity in the future.”).
This affirmative action can be appropriate even though the effects of the alleged discrimination cannot be resolved at the particular Social Services site. See Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp. 2d 456, 462 (D. Md. 2000) (finding that affirmative action relief was appropriate because although the effects of the discrimination
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could not be solved at the particular site, it was possible to seek affirmative action “elsewhere in the Odenton area”).
At this time, the Court cannot determine whether such broad injunctive relief will be needed or will be proper. Nevertheless, the possibility of this type of relief alone precludes this case from being rendered moot. See Gautreaux v. Romney, 448 F.2d 731, 736 (7th Cir. 1981) (“Plaintiffs have contended that such ‘other and further relief’ might include a more vigorous utilization of the several different types of housing programs which HUD administers in the form of a decree aimed at ‘remedying the continuing effects of the discrimination of the past.’ Such a decree . . . might facilitate the overall desired goal of desegregating the public housing sites around Chicago metropolitan area. We express no view on whether such requested relief is either necessary or appropriate. However, as long as a decree utilizing certain HUD programs still remains a possible form of relief not already available through the other case, this Court cannot deem the controversy moot.”) (quoting Powell v. McCormack, 395 U.S. 486, 496, n.8, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969)).
Putting aside the non-site related injunctive relief, the Plaintiffs also seek a declaratory judgment, in particular: “Declaring that defendants’ acts, practices, and policies complained of herein violated and violate plaintiffs’ rights as secured by Fair Housing Act, as amended, 42 U.S.C. § 3601 et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil Rights Act of 1866, 42 U.S.C. § 1982; the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution;
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and the ‘affirmatively furthering’ obligations of the Fair Housing Act, 42 U.S.C. § 3608, and the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq.”
Declaratory judgment actions raise particular issues with regard to mootness, and the Supreme Court has explained that “[b]asically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941); see Penguin Books USA Inc. v. Walsh, 929 F.2d 69, 72 (2d Cir. 1991). However, a “litigant may not use the declaratory judgment statute to secure judicial relief of moot questions.” Christopher P. by Norma P. v. Marcus, 915 F.2d 794, 802 (2d Cir. 1990). For example, the Second Circuit has noted that claims for declaratory relief under Title IX “appear moot” as the result of the plaintiffs’ graduation. Alexander v. Yale Univ., 631 F.2d 178, 184 (2d Cir. 1980).
Within the boundaries of these principles and the mootness doctrine, the Court must determine whether it has the power to address the Plaintiffs’ request for a declaratory judgment on the issues in this case. In this regard, the Court finds that a determination of whether or not the County and the Village’s past conduct violated the Constitution or applicable federal laws remains very much an open question. A legal dispute still exists as to whether any discriminatory practices took place by the Defendants, and whether an injury is still ongoing for every day there is an alleged lack of affordable housing, and hence a lack of racial integration, in the Village of Garden City and Nassau County as a whole. See Young v. Pierce, 628 F. Supp. 1037, 1059-60 (E.D. Tex. 1985) (finding that
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part of the heavy burden of demonstrating that discontinuance of the challenged activity has destroyed any controversy between the parties “includes the necessity of showing that there are no present effects of past conduct that require undoing.”) (citing Vitek v. Jones, 445 U.S. 480, 487, 100 S. Ct. 1254, 1260, 63 L. Ed. 2d 552 (1980)).
The Supreme Court has stated that “[a] court may grant a declaratory relief even though it chooses not to issue an injunction or mandamus.” Powell v. McCormack, 395 U.S. at 499, 89 S. Ct. at 1952. Thus, the granting of a declaratory judgment is still a potential avenue of relief for the Plaintiffs, especially considering that a declaratory judgment may be the premise for any further relief ordered by this Court, such as the broad injunctive relief specifically requested by the Plaintiffs. See id. (“A declaratory judgment can then be used as a predicate to further relief, including an injunction.”); Gantreaux, 448 F.2d at 736 (“A determination of whether or not the Secretary’s own past conduct violated the Constitution or applicable federal statute remains very much of an open question. The entry of a declaratory judgment here would have significant consequences in determining the extent of any “further relief” deemed necessary, in the event that practices found to be discriminatory were resumed.”).
Therefore, because there still is relief that is obtainable by the Plaintiffs against the Defendants, the Court finds that there remains a live controversy in spite of the fact that the Social Services site will no longer be sold. Thus, the case has not been rendered moot and the Court can proceed to analyze the substantive merits of the action.
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C. FHA Claims Against All Defendants Congress enacted the FHA in 1968 to “provide, within constitutional limits, for fair
housing throughout the United States.” 42 U.S.C. § 3601. The law provides that it shall be unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” Id. § 3604(a). The Second Circuit has determined that “[c]onduct prohibited by this section includes discriminatory zoning practices.” Fair Hous. in Huntington Comm. v. Town of Huntington, 316 F.3d 357, 366 (2d Cir. 2003); see Le Blanc-Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995); Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 938 (2d Cir. 1988). A claimant may demonstrate that discriminatory zoning practices were employed by presenting either proof of disparate treatment or disparate impact. See Huntington Branch, N.A.A.C.P., 844 F.2d at 934-35; see also LeBlanc-Sternberg, 67 F.3d at 425. In the instant case, the Plaintiffs, including the Intervenor-Plaintiff NYCC, advance their FHA claim against all Defendants under both theories. As set forth below, the Court finds that the Plaintiffs have raised genuine issues of material fact sufficient to survive summary judgment on this claim as asserted against the Garden City Defendants, but not the County.
1. Disparate Treatment a. Legal Standard
Under a theory of disparate treatment, “a plaintiff can establish a prima facie case by showing that animus against the protected group ‘was a significant factor in the position
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taken’ by the municipal decision-makers themselves or by those to whom the decision-
makers were knowingly responsive.” LeBlanc-Sternberg, 67 F.3d at 425 (quoting United
States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1217, 1223, 1226 (2d Cir. 1987), cert.
denied, 486 U.S. 1055 (1988)) (emphasis added); see also Innovative Health Sys. Inc. v.
City of White Plains, 117 F.3d 37, 49 (2d Cir. 1997) (“[A] decisionmaker has a duty not to
allow illegal prejudices of the majority to influence the decisionmaking process. A . . .
discriminatory act [is] no less illegal simply because it enjoys broad public support.”).
Discriminatory intent may of course be demonstrated by direct evidence. However,
as such evidence is rarely available to plaintiffs, it may also be inferred, as follows:
“inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.” Washington v. Davis, 426 U.S. 229, 242 (1976). Such impact may be an important starting point. Other probative sources may include the “historical background of the decision . . . , particularly if it reveals a series of official actions taken for invidious purposes”; “[t]he specific sequence of events leading up to the challenged decision,” such as zoning changes for a given site enacted upon the decisionmaker’s learning of plans for the construction there of integrated housing; “contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports”; “[d]epartures from the normal procedural sequence”; and “[s]ubstantive departures . . . , particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.” Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267-68 (1977).
Yonkers Bd. of Educ., 837 F.2d at 1221 (full internal citations inserted); see LeBlanc-
Sternberg, 67 F.3d at 425 (applying Arlington factors to determine discriminatory intent in
FHA claim); see also Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) (noting that
perpetrators of discrimination rarely leave a “smoking gun,” and, therefore, “[a] victim of
discrimination is . . . seldom able to prove his or her claim by direct evidence and is usually
constrained to rely on the cumulative weight of circumstantial evidence.”). Accordingly,
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“[w]here there are allegations of discrimination supported by such circumstantial evidence, ‘a defendant’s intent and state of mind are placed in issue, [and] summary judgment is ordinarily inappropriate.’” The Anderson Group LLC v. City of Saratoga Springs, 557 F. Supp. 2d 332, 340 (N.D.N.Y. 2008) (quoting Rosen, 928 F.2d at 533).
Once plaintiffs have established a prima facie case of housing discrimination, the onus shifts to the defendant to demonstrate “that the same decision would have resulted even had the impermissible purpose not been considered.” Vill. of Arlington Heights, 429 U.S. at 270 n.21.
b. As to the Plaintiffs’ Theory of Disparate Treatment i. The Garden City Defendants
In the instant matter, the Garden City Defendants argue that the Plaintiffs have failed to identify any factual disputes over whether discriminatory animus was a motivating factor in the zoning decision by the Garden City Defendants, or by those to whom they were knowingly responsive. The Court disagrees. Construing the totality of the circumstantial evidence presented in favor of the non-movants and drawing all reasonable inferences therefrom, the Court finds that the Plaintiffs have presented sufficient evidence to raise genuine issues of fact as to their disparate treatment claim, thereby precluding summary judgment in favor of the Garden City Defendants. In particular, evidence of the impact of the R-T zoning designation, its historical background, and the sequence of events leading up to its adoption, as well as contemporary statements by members of the decisionmaking body, have raised genuine issues of material fact regarding whether the Garden City Defendants bowed to race-based opposition to a proposed zoning regulation
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that allowed the development of affordable housing and hence, made the influx of minority residents, more likely.
a. As to Whether the Zoning Bore More Heavily on One Race Than Another
First, the Plaintiffs have presented evidence that raises a genuine issue of fact as to whether the zoning designation “[bore] more heavily on one race than another.” Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 2049, 48 L. Ed. 2d 597 (1976). This evidence typically “involves statistical data supporting either a finding of perpetuation of segregation or of disproportionate impact.” Thornton v. City of Allegan, 863 F. Supp. 504, 509 (W.D. Mich. 1993). While this contention will be discussed in greater detail below in the context of whether the Plaintiffs have established a question of fact with regard to their theory of disparate impact, the Court will now briefly outline the proffered evidence.
The Plaintiffs’ statistical expert set forth evidence that the original zoning proposal, as proffered by BFJ and endorsed by the Committee, would have created a pool of potential renters with a significantly larger percentage of minority households than the pool of potential renters for the zoning proposal ultimately adopted as law by Garden City. Granted, this statistical analysis presumes the development of affordable, not just multifamily, housing on the Social Services site. However, even assuming arguendo that no affordable housing was constructed, the McArdle Report also notes that minorities comprise a disproportionate share of renter, as opposed to owner, households in the County. Therefore, a zoning proposal that permits only 36 multi-family rental units —
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and only by special permit — versus the 311 contemplated by the original zoning proposal — as-of-right — would have a greater impact upon potential minority residents. (See McArdle Report, at ¶ 49 (“Minorities made up just 14.8% percent of all households in Nassau County in 2000, but 31.1% of renter households.”).)
Therefore, the Plaintiffs have raised issues of fact over whether the change from the proposed R-M zoning to the adopted R-T zoning affected minority residents to a greater degree. See, e.g., Jim Sowell Const. Co., Inc. v. City of Coppell, 61 F. Supp. 2d 542, 547 (N.D. Tex. 1999) (finding that evidence from an expert demonstrating a disproportionate amount of African-American potential residents lived in multi-family housing “demonstrate[d] that African-American families are much more likely to reside in apartment complexes than are Caucasian families. By rezoning certain tracts of land from multifamily to single family use . . . the City decreased the number of apartment units available to new residents. Because African-Americans are more likely to reside in such housing, this reduction in multifamily units had a statistically greater impact on AfricanAmerican families than on Caucasian families.”).
In the Court’s view, the Plaintiffs have thus sufficiently raised disputed issues of fact regarding whether the allegedly discriminatory R-T zoning designation impacted minorities to a greater degree than it affected Caucasians.
b. As to the Historical Evidence of Racism in Garden City The Plaintiffs have also raised disputed issues of fact regarding whether the historical background of the R-T zoning designation, such as past instances of
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discrimination in the Village, suggest that race-based animus played a role in the zoning’s implementation.
First, the Plaintiffs have introduced historical evidence that they contend suggests a pattern and practice of racial segregation in Garden City. By example, the Plaintiffs have introduced evidence that, in 1969, residents opposed the construction of a daycare center that would serve primarily African-American children. In 1989, a building moratorium on new construction was in effect in Garden City to gain tighter control over housing development; an action the Plaintiffs allege was taken to prevent the influx of minority residents. In 2005, the New York State Attorney General determined that Garden City enforced a local requirement limiting the use of its parks to Garden City residents in a racially discriminatory manner. At his deposition, County Executive Suozzi opined that “there are some people that are opposed to affordable housing in Garden City based upon racism.”
The Garden City Defendants dispute certain matters of the Plaintiffs’ evidence, such as the newspaper article the Plaintiffs rely upon to demonstrate the existence of the above mentioned building moratorium. However, even assuming that this article would not be admissible under the “ancient document” exception to the hearsay rule, there is still some evidence to raise an issue of fact as to whether past instances of discrimination in Garden City suggest that race-based animus played a role in the zoning decision at issue.
The Garden City Defendants also argue that such a patchwork of allegations and inferences is insufficient, especially because claims relating to a day care center and parks have nothing to do with segregated housing practices. The Court disagrees. Previous
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instances of racial discrimination, even in different settings, may be taken into account on the issue of an alleged pattern and practice of racial segregation in the Village.
In addition, the Plaintiffs have proffered evidence of discrimination in Garden City that has occurred since the filing of this lawsuit. In 2006, the County issued an RFP to solicit proposals for the purchase of the “Ring Road” site in Garden City: a mixed-use development which was characterized as “mixed income” and would have included affordably priced residential units. (Pl. Ex. 61, 62) However, with regard to this proposal, via anonymous emails, the Garden City residents accused Nassau County Executive Suozzi of “catering to ACORN and black people” (SAMF ¶ 199; Pl. Ex. 63), and begged Suozzi not to “turn GC into Hempstead, Roosevelt, etc. . . .” SAMF ¶ 200; Pl. Ex. 65), citing to two towns with a large percentage of minority residents. The Plaintiffs submitted a proposal for this site, but it was not accepted and the site still has not been developed.
Q: Did you award the site to one of the persons that submitted a proposal? A: No, we did not. Q: Can you tell me why? A: I — I think all along we thought it would — if it was done right, it would achieve settlement of the lawsuit. We’re still all sitting here. (SAMF ¶ 194; Pl. Ex. 100, Schroeter Dep. at 193.) The Garden City Defendants dispute the relevance of the anonymous emails cited above in opposition to the Ring Road site because they do not demonstrate that “residents” of the Village objected to affordable housing. However, this raises a factual issue as to whether such a sentiment existed because most of the senders state or clearly imply that they are Garden City residents. The Garden City Defendants also contend that the Court
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should not consider the emails because they are inadmissible hearsay. However, these emails are admissible not for the truth of the matter asserted, but instead to demonstrate that complaints in opposition to Ring Road were made and received, some of which indicate racial animus. See Stephens v. City of Chicago, No. 98 Civ. 809, 2002 WL 31055078, at *1 n.3 (N.D. Ill. Sept. 13, 2002) (“Defendants objected to these statements on the ground that they were hearsay. However, they are not being used for the truth of the matter asserted, only as a representation of . . . alleged racial bias.”); Sanders v. Dania Inc., No. 01 Civ. 33, 2001 WL 34736295, at *11 (D. Or. Dec. 6, 2001) (“McGrath’s statement . . . still is admissible because it is not offered for the truth of the matter asserted . . . but rather as evidence of defendant’s racial attitude, that is, as direct evidence of discrimination.”); Fincher v. Cnty. Of Westchester, 979 F. Supp. 989, 1005 (S.D.N.Y. 1997) (“To the extent that these are racial epithets and the like, they are not hearsay because they are not relied on to prove the truth of the matter asserted, but only to show that the statements were made.”). In any event, even if these emails are inadmissible hearsay, there remains sufficient evidence for this Court to find a question of fact with regard to Garden City’s historical background as contributing to the Plaintiffs’ allegations of disparate treatment.
Finally, the Garden City Defendants dispute that any of the instances described above are relevant to a disparate treatment analysis, because the relevant inquiry is the zoning decision’s historical background, as opposed to the history of the municipality at issue. However, although that is the way the inquiry is framed, the Defendants have not pointed to any precedent that states that a court’s analysis in this regard is limited solely to events in the jurisdiction immediately preceding the challenged decision. In fact, the
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Supreme Court appeared to intend for courts to consider the historical background of the zoning decision in a broader sense, for it purposefully distinguished between the historical background of the challenged decision and the specific antecedent events. Village of Arlington, 429 U.S. at 267. Accordingly, the Court will not disregard allegations of previous acts of discrimination by the Village in other contexts.
Thus, viewing this evidence in its totality and in the light most favorable to the Plaintiffs, a reasonable finder of fact could conclude that the R-T zoning designation decision was another act in a series of efforts to prevent minority citizens from moving to Garden City. See, e.g., Dews v. Town of Sunnyvale, Tex., 109 F. Supp. 2d 526, 571 (N.D. Tex. 2000) (concluding, after a bench trial on the merits, that defendant town’s decisions, over the years, to adopt one acre zoning, prohibit multi-family housing, and refuse proposed cooperation agreements with local housing authority demonstrated “history of discouraging African-Americans from moving within its borders.”).
c. As to Sequence of Events Underlying the Zoning Further, as detailed in the Background section above, the Plaintiffs have set forth evidence that raises genuine issues of disputed fact as to whether the sequence of events leading to the implementation of the R-T zone give rise to an inference of race-based animus by the Garden City Defendants. Garden City retained BFJ to create a zoning proposal for the Social Services site and BFJ, in turn, proposed the R-M designation, which permitted the development of up to 311 multi-family units. Both the County and the Board supported this proposal and, specifically, the inclusion of multi-family housing. Trustee Bee is a member of the Board
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as well as the Committee. As reflected in a summary of a meeting with local property owners, Trustee Bee expressed the opinions that “Garden City demographically has a need for affordable housing” and that “he would keep an open mind but he still felt the recommended zoning change were appropriate.” However, when it became clear at the public meetings that residents specifically opposed the development of multi-family housing, BFJ and the Board reversed course. Not long after representing at a January 20, 2004 meeting that the village had a “need” for affordable housing, Trustee Bee stated at the February 5, 2004 public meeting that “neither the County nor the Village is looking to create a so-called affordable housing.” Soon thereafter, the Board and BFJ endorsed a new proposal which banned the development of multi-family housing on all but a small portion of the Social Services site, and then only by special permit.
The Garden City Defendants argue that the changed proposal simply responded to legitimate concerns, but the Plaintiffs have introduced evidence that those concerns, namely traffic, taxes, and schoolchildren, were no more burdensome under the R-M designation than the R-T zone, and that residents were made aware of that fact. Moreover, the Plaintiffs have directed the Court’s attention to a series of comments made, both at public meetings, as well as in notices posted around town or in the local newspaper, which opposed multi-family housing in terms that the Plaintiffs’ expert asserts could be construed as euphemisms for race-based animus. The Plaintiffs further produced evidence which they argue suggests that the decision-makers understood the race-based component of the opposition. (See, e.g., (“Where is the Benefit to Garden City? Are We Being Urbanized? . . . The County is asking the Village to change our existing zoning . . . Among the proposed
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plans: Low-density (high-rise?) housing – up to 311 apartments”); see Hearing Tr. at 2404 (“BRIAN GEMMEL [to SUOZZI]: “I don’t think you are hearing a lot of the people. We’re not against residential, we’re against multi-level residential.”); see id. at 2409 (“DAVID PICIULO: I don’t hear a compelling argument from anyone here tonight as to why we should have multi-dwelling homes. Can we take it out of the proposal?”); see id. at 2408 (“SUOZZI: Mayor out of respect, let me stipulate the facts here. The public of Garden City especially from the eastern civic association does not want to see multi-family housing here. They’d rather see single-family housing.”); see Negri Dep. at 24-25 (“QUESTION: Is housing occupied by low income minorities consistent with the character of [Garden City’s] neighborhood? NEGRI: No.”); see Pls.’ Ex. 32 (“The Garden City Trustees . . . might choose to zone [the Social Services site] for multi-family housing . . . as many as 30 of those apartments would be considered ‘affordable housing’ . . . ‘[a]ffordable workforce housing means housing for individuals or families at or below 80% of the median income for Nassau Suffolk primary metropolitan statistical area as defined by the Federal Department of housing and urban development.’ . . . NOT JUST GARDEN CITY INCOMES!”).)
In addition, County Executive Suozzi opined that “Garden City . . . historically, has been viewed as a community that didn’t want to have affordable housing in it,” (SAMF ¶ 98), and the Deputy County Executive for Economic Development in the County specifically testified that “people who don’t want people of different races living in their communities and local communities elect their elected officials to do the will of the people.” (SAMF ¶ 245.) Finally, as detailed above, the Plaintiffs have introduced
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evidence that statements made by the decision-makers, namely, Trustee Negri, County Executive Suozzi, and Patrick Duggan, the Deputy County Executive for Economic Development, could suggest that they understood community opposition to the Economic R-M designation to be motivated by unlawful racial animus. While the Court finds, as detailed below, that County officials had no legal authority to make a decision regarding the zoning for the Social Services site, their reflections on the process as participants at the community meetings are relevant as to how community opposition could have been construed by the lawmakers.
While the Garden City residents did not explicitly reveal that their opposition was fueled by racist sentiments, the Plaintiffs offer a number of cases as precedent as well as the expert report of Dr. Peter Marcuse to demonstrate that euphemisms for race-based bias in housing situations can demonstrate discriminatory intent. Indeed, “[i]n a discrimination action, a court cannot be satisfied that the absence of overtly discriminatory remarks proves an absence of discrimination.” Huntington Branch, N.A.A.C.P. v. Town of Huntington, N.Y., 668 F. Supp. 762, 786 (E.D.N.Y. 1987), rev’d on other grounds, 844 F.2d 926 (2d Cir. 1988) (noting that findings of discrimination cannot “be avoided by careful use of code words.”). It is to be noted that courts have accepted expert testimony in discrimination cases to assist the trier of fact in determining whether improper motives played a role in a challenged action. For instance, in Price Waterhouse v. Hopkins, 490 U.S. 228, 235-236, 109 S. Ct. 1775, 1782-83, 104 L. Ed. 2d 268 (1989), the Supreme Court cited expert testimony proffered by a social psychologist to decipher “gender neutral” remarks made by partners in the hiring process, and opine whether such remarks betrayed discriminatory
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animus, despite the fact that the expert had not actually “met any of the people involved in the decisionmaking process.” Id.
Peter Marcuse is an Emeritus Professor of Urban Planning at Columbia University. He has fifty-five years of experience in research, teaching, practice, and public service in the fields of housing and planning, and holds a J.D. in law and a Ph.D. in planning. (See generally Pls.’ Ex. 93 (hereinafter the “Marcuse Report”).) Marcuse states in his report that “euphemisms for race are in wide-spread use,” and include terms and expressions such as “affordable,” “inconsistent with village character,” “multi-family,” “not upscale,” “urban character,” “high-density,” and “rental,” which are “used by opponents of housing expected to be occupied by minority-group members.” (Marcuse Report, at 2.) He also states that “[t]he presence of affordable housing is thus, in my opinion, opposed by residents and officials of Garden City and Nassau County with the understood effect of discriminating against minority groups . . .” (Marcuse Report, at 3.) In arriving at the conclusions stated in his report, Marcuse reviewed documents provided by the Plaintiffs’ counsel involving the instant litigation, as well as a series of academic treatises and studies related to housing and planning.
The Garden City Defendants do not dispute that Marcuse as an academic expert is qualified to render opinions on the subject at issue. However, they do assert that to the extent the Plaintiffs rely on the expert opinion of Marcuse to supply the requisite discriminatory intent element of their claims, such opinions must be precluded because it represents a legal conclusion and usurps the role of this Court. However, the Marcuse Report only purports to decode potential euphemisms similar to those implicated in the
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Price Waterhouse case. Accordingly, the entirety of the report will be considered admissible at this stage and any determination as to the report’s credibility is the province of the finder of fact. See, e.g., Tuli v. Brigham & Women’s Hosp., Inc., 592 F. Supp. 2d 208, 214 (D. Mass. 2009) (finding that professor’s proffered expert testimony regarding “social framework analysis” was admissible, as it did not opine on the ultimate factual conclusions to be drawn by the jury and was based “not simply on experience, but also social psychological testing of stereotyping and discrimination over the past thirty or forty years”); Int’l Healthcare Exch., Inc. v. Global Healthcare Exch., LLC, 470 F. Supp. 2d 345, 355 (S.D.N.Y. 2007) (rejecting movant’s argument “that [expert testimony] would not be helpful to the fact finder in this case because the notion of gender stereotyping is not an arcane one” as one that goes to weight of expert testimony, not admissibility); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 881 (D. Minn. 1993) (accepting, over defendant’s objection, expert testimony regarding sex stereotyping proffered by social psychologist who had “performed numerous research studies on the subject of sexual stereotyping and ha[d] presented his findings in several scholarly articles and at numerous academic conferences on the issue of gender stereotyping in the workplace”). While the Garden City Defendants wish to reserve their full arguments as to the admissibility of Marcuse’s opinions, for purposes of this motion, his expert opinion will be taken into consideration by the Court.
In addition, the Garden City Defendants raise questions with regard to the Plaintiff’s reliance on the Marcuse Report in part because Marcuse did not interview Garden City residents who spoke at a series of public hearings before concluding that their
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statements contained euphemisms for racist opinions. Thus, it appears that the Garden City Defendants contend that the Marcuse Report is not based upon reliable data. However, any argument that Marcuse’s testimony should not be considered because he relied upon newspaper articles and/or transcripts depicting events, without having personal knowledge of the events described, is without merit. It is beyond dispute that “an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 591, 113 S. Ct. 2786, 125 L. Ed. 2d. 469 (1993); see also U.S. v. Mulder, 273 F.3d 91, 102 (2d Cir. 2001) (“Defendants’ . . . contention-that the district court impermissibly allowed the experts to rely on multiple hearsay-lacks merit because ‘expert witnesses can testify to opinions based on hearsay or other inadmissible evidence if experts in the field reasonably rely on such evidence in forming their opinions.’”) (quoting United States v. Locascio, 6 F.3d 924, 938 (2d Cir. 1993)); MacQuesten Gen. Contracting, Inc. v. HCE, Inc., No. 99 Civ. 8598, 2002 WL 31388716, at *2 (S.D.N.Y. Oct. 22, 2002) (“[E]xpert analysis is often based on reported information rather than firsthand knowledge, and that is no bar to its admissibility.”).
In this field, witnesses offering expert testimony based in social science and/or academia frequently rely upon hearsay or otherwise inadmissible evidence, as Marcuse has in his report. See United States v. Joseph, 542 F.3d 13, 21 (2d Cir. 2008) (“To the extent that the District Court was concerned that [the expert’s] testimony would rely on hearsay, that would not be a valid objection. Social science experts commonly base their opinions on [hearsay such as] interviews.”) (citing Fed. R. Evid. 703).
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Finally, beyond the issues of the expressions utilized in opposing the zoning and Marcuse’s report, the Garden City Defendants argue against the Court’s consideration of the comments described above because they are select quotes that in context are “rather sterile” and “not in any way analogous to those made in the cited FHA cases in which actual, strong community opposition was found.” (GC Mem. at 26.) The Garden City Defendants rely on several cases outside of this circuit to support this contention. However, all these cases are readily distinguishable from the case at hand.
First, although the Garden City Defendants cite to the case of Hallmark Developers, Inc. v. Fulton County, 466 F.3d 1276 (11th Cir. 2006) in support of their position that ambiguous remarks of alleged racial bias cannot sustain a disparate treatment claim, that case is distinct from the present case. First and foremost, that case affirmed the findings of fact from a bench trial, where credibility assessments of the speakers and their motivations were appropriate. Second, that court specifically noted that the plaintiffs had set forth no evidence that the decision-makers were aware of the attitudes of the community regarding the proposed zoning change or ratified them. This is not the case here, as Board members were present at every public hearing where such opposition was voiced. Moreover, the remarks were the sole evidence of any discriminatory intent before the trier of fact, as the plaintiffs there failed to set forth any evidence regarding a historical background of racebased animus or abnormalities in the sequence of events leading up to the decision. Here, as discussed above, the Plaintiffs have not simply relied upon such remarks in opposition to summary judgment, but rather have provided other evidence (including statistical evidence, historical evidence, and evidence regarding the sequence of events leading to the zoning
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decision at issue). In the Court’s view, when all of this evidence is construed together in the light most favorable to the Plaintiffs, it is sufficient to raise genuine issues of disputed fact as to whether the Garden City Defendants’ decision to reject BFJ’s R-M zoning proposal, originally endorsed by both the County as well as the Committee, and adopt the more restrictive zoning designation, was motivated by discriminatory intent.
Second, the Garden City Defendants rely on the case of White Oak Property Development, LLC v. Washington Township, Ohio, et al., 606 F.3d 842 (6th Cir. 2010), for the proposition that mere inquiries about affordable or Section 8 housing do not amount to evidence of an FHA violation. Thus, they argue that the record here does not present evidence of any bigoted comments or even an inquiry from a member of the Board as to type of housing that the zoning contemplated. However, unlike in White Oaks, the public opposition here involved more than isolated inquiries, such as statistical and historical evidence. Moreover, the plaintiff in White Oaks did not present any evidence that minority populations existed in the township or the surrounding areas. Here, the record clearly indicates that Nassau County’s minority populations disproportionately occupy the County’s existing affordable housing, none of which exists in Garden City.
The Court agrees with the Garden City Defendants that some of the comments cited by the Plaintiffs, when viewed in context, may be “innocuous and sterile.” (Def. Mem. at 23.) However, that does not mean that all that remains are “isolated bigoted comments” that are insufficient to create an issue of fact. United States v. City of Birmingham, 538 F. Supp. at 828. Under the totality of the circumstances, there is certainly enough evidence put forth by the Plaintiffs to create a triable issue of material fact that strong community
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opposition was present and that the zoning decision may have been an effort to appease that resistance.
d. As to Whether There Were Departures from Normal Procedural Sequences
Next, the Garden City Defendants argue that there were no departures from normal procedural sequences or substantive criteria, so that these considerations do not weigh in favor of a finding of discriminatory treatment. The one alleged departure from normal procedural sequences is that BFJ recommended R-M zoning on multiple occasions, which was subsequently adopted by the P-Zone Committee and the Board, but consequently was not the zoning scheme that was adopted by the Village. Although the Garden City Defendants attempt to articulate a basis for their contradictory choice, which the Court will address in further detail below, it nevertheless is considered as part of the evidence of the Plaintiffs’ prima facie case of housing discrimination under a theory of disparate treatment. See Sunrise Dev., Inc. v. Town of Huntington, N.Y., 62 F. Supp. 2d 762, 775, 776 (E.D.N.Y. 1999) (concluding, after a bench trial on the merits, that “[a]lthough the Town did commission the [Citizens’ Advisor Committee] to undertake a study and issue recommendations on senior housing, when the time came to enact the Local Law, the Town disregarded the CAC’s recommendations,” which suggested that “defendants likely were swayed by the anti-disabled animus present in the community”); Dews, 109 F. Supp. 2d at 571 (N.D. Tex. 2000) (“[Defendant’s] history of ignoring the recommendations of its planners and proceeding in the face of sound legal and planning advice” weighed towards finding of discriminatory intent).
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As Judge Bianco previously stated at an oral argument hearing regarding the previous summary judgment motions: “One of the things that’s at the core of their case relates to the fact that the Board’s own consultant zoned it for R-M, that the County wanted RM, and that the Board changed it to R-T without any objective basis to support that decision. And that at least creates an issue of fact where . . . the Court should look at the evidence and the experts on both sides and determine whether or not there was discriminatory intent behind that.” (See Hearing Tr., at 64.)
e. As to the Defendants’ Burden Weighing the evidence outlined above in its totality, the Court concludes that the Plaintiffs have successfully established a prima facie case of housing discrimination under the theory of disparate treatment. The burden thus shifts to the Garden City Defendants to demonstrate “that the same decision would have resulted even had the impermissible purpose not been considered.” Vill. of Arlington Heights, 429 U.S. at 270 n.21. In support of that proposition, the Garden City Defendants offer the expert testimony of Patrick Cleary, who opines that the R-T zoning designation “appropriately fits within the Village’s well established zoning and land use framework and is cognizant of the historical significance of that framework.” (Cleary Report, at 2.) They further argue that the R-T zone was implemented “because of concerns involving traffic generation and to meet the physical character of the neighborhood particularly in this transitional area.” (GC Reply, at 10.) Finally, the Garden City Defendants refer to statements made at a meeting of the Board of Trustees to demonstrate that they had a legitimate reason to restrict multi-family housing to less than 15% of the subject property and to be obtainable only by
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special permit as opposed to as of right. (See Frank Fish, Board of Trustees Meeting Minutes, May 20, 2004, GC Ex. P at 35) (responding to an inquiry regarding multi-family housing with a special permit under R-T zoning, by stating that “[t]he P Zone Committee had been considering this and the Trustees on the entire site, it wasn’t an after thought. This was, this was a conscious decision . . . there was a concern that if the whole 25 acres were developed for multi-family it would generate too much traffic . . .”).
Thus, the Garden City Defendants submit that legitimate concerns prompted the Board to reject the initial proposal offered by their consulting company and endorsed by their P-Zone Committee, and that the Board’s goals were met by the R-T zoning. While the Plaintiffs challenge the sufficiency of the Garden City Defendants’ factual allegations, the Court finds that they have satisfied their minimal burden of offering a nondiscriminatory reason for their zoning decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (“[The burden of providing a legitimate, nondiscriminatory reason] is one of production, not persuasion; it can involve no credibility assessment.”) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)).
However, although the Garden City Defendants have offered a nondiscriminatory reason for their actions, a fact finder could reasonably conclude that the proffered reason is pretextual and that discrimination was the real reason behind their zoning decision. “While the issue of pretext cannot be resolved on summary judgment based on the allegations in the complaint, [the Court] agree[s] that [the P]laintiffs have come forth with sufficient
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evidence of pretext to survive summary judgment.” Wentworth v. Hedson, 493 F. Supp. 2d 559, 570 (E.D.N.Y. 2007).
First, there are factual disputes regarding whether the Board enacted the R-T designation into law based on the belief that this type of zoning created the least amount of traffic and schoolchildren. (Compare April 22, 2004 Presentation to the Village, GC Ex. I (noting that townhomes produce the least amount of traffic as compared to multi-family and single family homes) with Pl. Ex. 53 at 42-43 (“Michael Filippon: If I could just add on this point of traffic . . . You have to remember that the existing use on that site now generates a certain amount of traffic, a fair amount of traffic. That use is going to be vacated. The two residential uses that are being proposed as one of the alternates, each of which on their face automatically generate far less traffic than the existing use. That is something to consider also.”) and Pl. Ex. 54 at 31-32 (“[Resident]: But, we would also have more traffic because of more people owning cars and leaving there in and out. As opposed to . . . [applause] Thomas Suozzi: You may want to clap for that, but that’s irrational.”).) Although the Plaintiffs do not dispute that the R-T zoning would produce marginally less traffic than the R-M zoning, they allege that both proposals would reduce the amount of traffic currently in the area. (SAMF ¶¶ 75-76.) As to the supposed justification regarding the potential overcrowding of schools in the Village, Garden City even concedes that townhomes would have produced the same number of school children as multi-family homes. (GC Mem. at 36; see also SAMF ¶¶ 71-72.)
Moreover, the Garden City Defendants stress that the R-T designation “furthered the interests of the Village to offer townhouses (an entirely new housing option not
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previously constructed in the Village) as an option for the site . . . .” (GC Mem. at 31.) However, it is undisputed that although townhouses may have been a “new housing option not previously constructed in the Village,” they were also available under the original R-M zoning proposal, so their desirability and inclusion into the R-T designation does not definitively support the proposition that the Board would have decided on that designation regardless of any alleged discriminatory animus.
Accordingly, there are disputed issues of fact as to whether the proferred nondiscriminatory reasons of the Garden City Defendants are mere pretext and thus whether the Board would have arrived at the same decision regarding the zoning designation even if the impermissible purpose had not allegedly been in play. This conclusion is bolstered by the fact that at oral argument before Judge Bianco, the Garden City Defendants’ counsel was directly questioned as to the objective basis for the Board’s decision to change the R-M designation to the R-T designation. Counsel responded that the citizens raised concerns, but was unable to direct the Court’s attention to any objective evidence supporting those concerns.
The Court: What was the objective basis for switching it from RM to RT? What was the objective basis? Mr. Ryan: . . . after discussion, after public hearings, after input from the community, based on issues of traffic, stated issues of traffic, school crowing [sic], increased taxes, increased drain on services, aesthetics, physical character of the surrounding neighborhood. It was felt by the Board that we will consistent with the Village make-up . . . The Court: What was the expert data that backed up the citizen’s complaints? The expert had told the Village the opposite; right? Mr. Ryan: Judge, the Village trustees looked all of these factors and weighed everything and consistent with the Village —
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The Court: But other than the complaints of the citizens . . . my question to you is what else in terms of objective data supported the switch from RM to RT? Mr. Ryan: Judge, you listen to as an elected official, you listen to your constituents. You look — You listen to your experts. You weigh what — and You weigh the — what is presented to you. (See Aug. 21, 2009 Hearing Tr. at 65-66; see also Trustee Lundquist Dep., Pl. Ex. 9 at 239 (stating “I don’t know” when asked to offer an explanation as to why the recommended RM zoning was not adopted by the Board).) The Garden City Defendants rely on R.J. Investments v. Board of County Commissioners for Queen Anne’s County, Maryland, 414 Fed. App’x 551 (4th Cir. 2011), in which the Fourth Circuit upheld a judgment for the defendants where they demonstrated that their decision to prevent the development of affordable housing was based on “legitimate” concerns regarding sewer capacity, and because the plaintiff’s case was merely based on “conjecture and supposition”. The Fourth Circuit found that there was not a “scintilla of evidence that the Board . . . acted with racially discriminatory intent.” Id. at 554. However, unlike in R.J. where the sewage concerns were unquestionably legitimate, in this case, the Plaintiffs have put forth evidence that raises a genuine issue of fact as to whether the non-discriminatory reasons cited by the Garden City Defendants, such as traffic or the increased burden on the school system, were baseless pretext. Furthermore, the Court finds that the Plaintiffs case is based on more than “conjecture and supposition” and thus sufficient reasons exist to preclude the case’s dismissal on summary judgment. In sum, the Court concludes that, viewing the evidence in the light most favorable to the Plaintiffs, as required on summary judgment — including the alleged impact of the
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zoning change on minorities, the historical background of the zoning decision, the sequence of events leading up to it, and statements made by the decision-makers — that the Plaintiffs have raised genuine issues of material fact as to whether the Garden City decision-makers engaged in discriminatory zoning practices in connection with the Social Services site. Accordingly, the Defendants’ motion for summary judgment with regard to the Plaintiffs’ disparate treatment claim as to the Garden City Defendants, is denied.
ii. Nassau County In the County’s separate motion for summary judgment, it argues that the Plaintiffs’ disparate treatment claim against it must fail, as a matter of law, because, regardless of whether the Plaintiffs can demonstrate racial animus, they have failed to raise any factual issues as to whether the County bears the legally required causal relationship to the complained-of Village zoning action. The Court agrees. Although the Plaintiffs’ allegations are not entirely consistent in this regard, the allegedly discriminatory act at issue in this case is the rejection of the R-M designation in favor of the R-T designation. However, the County cannot be held liable for that act, as a matter of law, because the County lacked legal power over the chosen zoning designation for the Social Services site. While the County did request that the Garden City Defendants rezone the Site so as to facilitate a higher purchase price for the property, the Garden City Defendants were under no legal obligation to do so. See County Government Law of Nassau County (L 1936, ch 879 § 1606) (stating that “powers with regard to the regulation and restriction of the height, number of stories and size of buildings and other structures, the percentage of the lot that may be occupied, the size of the yards, courts and other open
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spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes shall remain in force in such towns, villages and cities”); see also Village Law § 7-700 (L 1972, ch 892, eff. Sept. 1, 1973, Grant of Power) (“the board of trustees of a village is empowered, by local law, to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes”).
The Plaintiffs dispute the County’s asserted lack of legal authority because they claim that the County is essentially empowered to ignore or override a municipality’s zoning laws when it is in the best interest of the public. In support of this proposition, the Plaintiffs cite to a small number of New York state cases and one federal case from the Southern District of New York where either a county itself or a private party working in tandem with a county brought suit against a municipality to challenge its zoning laws. Thus, extrapolating from this precedent, the Plaintiffs claim that the County’s deliberate inaction by not bringing such a lawsuit is equivalent to impermissible discrimination.
First, although the Plaintiffs assert that the County could simply ignore a local municipality’s zoning ordinance, this is not precisely true. Rather, if a county’s challenge to a zoning law is successful because a court finds that the public interest in a particular land use outweighs the local municipality’s interests in preventing that land use, then, and only then, is a county empowered to ignore that zoning. The Plaintiffs point out that by planning to build a new Family and Matrimonial Court Complex on the Social Services site
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although the land is no longer zoned as “P” for public governmental use, the County has acknowledged its authority to ignore the Village’s zoning of the Site. It is not entirely clear whether Garden City is intending to or would be required to change the site’s zoning back to “P” in order for the County to build the complex. Carl Schroeter stated in his deposition that his “opinion—I’m not a lawyer. My opinion is that the County would have the right to [renovate or construct a placement for the family court on the Social Services site] without a rezoning.” (Pl. Ex. 123 at 124.) The Court finds it strange that the County on one hand cites to its lack of zoning power to preclude liability in the present case while simultaneously ignoring this same lack of power if it were to build a government building on land not zoned for it, arguably in an effort to end the litigation. However, Schroeter’s statement of belief alone is insufficient to find that the County can ignore Garden City’s zoning to build the Family and Matrimonial Court Complex if Garden City does not change it on its own initiative, nor does it mean it would have the authority to do so.
Significantly, the Court notes that all of the cases referenced by the Plaintiffs with regard to the County are distinguishable from the case at hand. As an initial matter, the cases cited by the Plaintiffs for the assertion that the County had authority to supersede Garden City’s zoning ordinances are inapplicable, because even if the County were to achieve such an override, the private developer the site was eventually sold to would still be subject to Garden City’s zoning requirements. Cf. Matter of County of Monroe, 530 N.E.2d 202, 72 N.Y.2d 338, 533 N.Y.S.2d 702 (1988) (addressing the applicability of local zoning laws where a conflict arises between two governmental entities). Further, even in cases where a private developer was not precluded from enjoying such immunity against
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local zoning, that party was working together with the state or county to complete a certain project. In other words, the cases cited by the Plaintiff do not involve the situation where a private developer is merely purchasing land from the county to pursue its own endeavor. See Crown Comm’n N.Y., Inc. v. Dep’t of Transp. of N.Y., 4 N.Y.3d 159, 824 N.E.2d 934, 791 N.Y.S.2d 494 (2005).
Finally, the one federal case from this circuit cited by the Plaintiffs involved an instance where the State had explicit statutory authority under the New York Education law to initiate quasi-judicial proceedings sua sponte to enforce New York’s education policies. See U.S. v. City of Yonkers, 96 F.3d 600, 618 (2d Cir. 1996) (“The State defendants contend, however, that the judgment in their favor should be upheld on the basis that, under New York law, they lacked legal authority or responsibility to intervene in Yonkers to remedy the unlawful segregation. In light of the express provisions of New York statutory law, this contention need not detain us long.”). No such explicit mandate to commence quasi-judicial or judicial proceedings or any other form of statutory override powers exist here. Cf. id. (“and it provides that he ‘shall also have the power and it shall be his duty’ to cause to be instituted such proceedings or processes as may be necessary to properly enforce and give effect to any provision in this chapter”).
Even though the cases cited by the Plaintiffs are all distinguishable, the Court recognizes that there is some authority for the proposition that the County hypothetically could initiate a law suit to challenge Garden City’s zoning laws. See Westhab, Inc. v. Village of Elmsford, 151 Misc. 2d 1071, 574 N.Y.S.2d 888 (N.Y. Sup. Ct. 1991) (“Therefore, this court believes that upon a balancing of the public interests test it would be
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determined that the County of Westchester . . . would be exempt from the enforcement by the Village of Elmsford of the local regulations at issue.”); see also City of Yonkers, 96 F.3d at 613 (“Liability may be premised not only on action but on a refusal to act.”). This ability could potentially extend to a private developer who subsequently purchased the land from the County. See Crown Comm’n N.Y., 4 N.Y.3d at 165 (“it is not the private status of the Wireless Telephone Providers but, rather, the public nature of the activity sought to be regulated by the local zoning authority that is determinative in this case”) (internal quotations omitted).
Nevertheless, even if this Court were to assume that in theory the County could have initiated litigation to challenge Garden City’s R-T zoning for an exemption in the public interest, the Court is not persuaded that because such litigation was not taken, the County may now be held liable. Cf. Doe v. New York City Dep’t of Social Services, 649 F.2d 134, 141 (2d Cir. 1981), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983) (“Government officials may be held liable under § 1983 for a failure to do what is required.”) (emphasis added).
While the County has certain obligations in accepting HUD funds, including that it will affirmatively further fair housing, the Court will not go so far as to say that this duty encompasses an obligation to sue a municipality every time a county believes it might be violating the FHA. Such a rule would logically mean that a county would need to commence an action against a municipality for any questionable zoning decisions or risk being sued for that municipality’s bad acts. The mere ability to bring a lawsuit against a municipality should not impose upon a county a duty to do so in order to avoid being held
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responsible for a municipality’s zoning decisions. It is unsound for this Court to find that a county needs to proactively and preventively bring suit in order to avoid liability. The Plaintiffs have not pointed to and the Court has not found a case that states that a county may be held liable under the FHA for not actively pursuing litigation against a municipal zoning authority. In this case, it is simply too attenuated to say that the County had a discriminatory impact on the Plaintiffs by not itself challenging Garden City’s zoning decision presently under attack by the Plaintiffs.
Moreover, the Plaintiffs emphasize that the County did not protest Garden City’s actions in a more forceful matter, whether formally or informally. However, the lack of objection alone does not constitute discriminatory conduct in this case. The Plaintiffs argue that the County could have formally recommended modification or disapproved of the proposed action pursuant to N.Y. Gen. Mun. Law § 239-m(4)(a), such as recommending that R-M zoning be instituted rather than R-T. Instead the County merely requested that the density of the R-T zone be less severely limited. However, although the Plaintiffs may find the lack of outrage by the County to be objectionable, that does not constitute a violation of law. In addition, the County also cannot be held liable for its mere failure to informally and publicly combat the Garden City Defendants’ alleged discrimination, as the Plaintiffs contend.
Therefore, while the Plaintiffs submit that County officials were well aware that racism fueled community opposition to the R-M zoning designation and “acquiesced” to that opposition or acted “in concert” with the Village by selling the property under the R-T designation, the County had no legal authority to alter or ignore the Garden City
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Defendants’ zoning decision once enacted. The fact that the County could itself bring suit for an exemption to override the zoning decision does not change this result, in light of the Court’s discussion above. The other arguments made by the Plaintiffs to place liability on the County Defendant are also without merit.
Finally, to the extent that the Plaintiffs are alleging that the discriminatory act at issue is not the zoning decision but rather the County’s sale of the Social Services site, summary judgment would still be granted as to the County Defendant. The County’s stated goal in selling the land was maximizing profits, and it has demonstrated that though it would have preferred the R-M designation, it acted in furtherance of its stated goal when left with the R-T designation. The Plaintiffs have provided no evidence from which a rational finder of fact could determine that the County’s ultimate selection of Fairhaven Properties, Inc. as the highest bidder for the Social Services site was motivated by any discriminatory intent.
Accordingly, the County’s motion for summary judgment dismissing the Plaintiffs’ disparate treatment claim against it is granted.
2. Disparate Impact The Court now turns to the Defendants’ respective motions for summary judgment dismissing the Plaintiffs’ FHA § 3604 claim brought under a theory of disparate impact. For the reasons outlined below, disputed issues of fact preclude summary judgment on this claim as to the Garden City Defendants, but not the County.
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a. Legal Standard In establishing a prima facie case of housing discrimination under a theory of disparate impact, a “plaintiff must show: (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 574-75 (2d Cir. 2003) (internal quotations omitted). A claimant need not provide proof of discriminatory intent, but must demonstrate that “the challenged practice of the defendant ‘actually or predictably results in racial discrimination; in other words that it has a discriminatory effect.’” Huntington Branch, N.A.A.C.P., 844 F.2d 926 at 934 (quoting United States v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975)) (further noting that sometimes “[facially neutral] rules bear no relation to discrimination upon passage, but develop into powerful discriminatory mechanisms when applied”). “The discriminatory effect of a rule arises in two contexts: adverse impact on a particular minority group and harm to the community generally by the perpetuation of segregation.” Huntington Branch, N.A.A.C.P., 844 F.2d at 937. In establishing “discriminatory impact,” the plaintiff must demonstrate a “‘causal connection between [a] facially neutral policy . . . and the resultant proportion of minority’ group members in the population at issue.” Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 90-91 (2d Cir. 2000) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998)). Once a plaintiff has presented a prima facie case of disparate impact, “the burden shifts to the defendant to ‘prove that its actions furthered, in theory and in practice,
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a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.’” Tsombanidis, 352 F.3d at 575 (quoting Huntington Branch, N.A.A.C.P., 844 F.2d at 936). The Second Circuit has set forth two factors that weigh in this analysis; first, although discriminatory intent is not required to establish a prima facie case of disparate impact housing discrimination, “there can be little doubt that if evidence of such intent is presented, that evidence would weigh heavily on the plaintiff’s side of the ultimate balance.” Huntington Branch, N.A.A.C.P., 844 F.2d at 936. Second, if the plaintiff is suing “only to require a governmental defendant to eliminate some obstacle to housing that the plaintiff itself will build,” the government must provide a more substantial justification for its actions than would be the case if a plaintiff was suing to compel the government to construct housing. Id.
b. As to the Plaintiffs’ Theory of Disparate Impact i. The Garden City Defendants
In the instant case, as set forth in detail above, the Plaintiffs have raised triable issues of fact with regard to whether an outwardly neutral practice, namely, the adoption of the R-T zoning designation by the Garden City Defendants, had a disproportionate effect on potential minority residents. First, evidence proffered by the Plaintiffs’ expert suggests that the rejection of the R-M zone in favor of the R-T zone significantly decreased the potential pool of minority residents likely to move into housing developed at the Social Services site in proportion to the number of non-minorities affected and, therefore, the enactment of the R-T zone actually resulted in racial discrimination. See Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 575-76 (2d Cir. 2003) (“The basis for a successful
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disparate impact claim involves a comparison between two groups — those affected and those unaffected by the facially neutral policy. This comparison must reveal that although neutral, the policy in question imposes a significantly adverse or disproportionate impact on a protected group of individuals . . . . Statistical evidence is also normally used in cases involving fair housing disparate impact claims.”) (internal quotations omitted).
McCardle’s report postulates that in a residential development with a multi-family, affordable housing component that was consistent with the rejected R-M zoning classification, the pool of renters who could have afforded to live at the Social Services site would have ranged from 56 minority households (18% of households) to 101 minority households (32% of households). (SAMF ¶¶ 150-54.) In comparison, under the R-T zoning compliant luxury housing development that was to be built by Fairhaven, the Social Services site would have been occupied almost exclusively by white households, with only 3 to 6 minority households. (SAMF ¶ 69.) See Rivera v. Inc. Vill. Of Farmingdale, 784 F. Supp. 2d 133, 144 (E.D.N.Y. 2011) (finding an issue of fact regarding disparate impact in light of statistical evidence which demonstrated that 21.9% of Hispanic residents would be affected by village project as opposed to only 1.2% of non-Hispanic white residents).
The Garden City Defendants point out that McCardle only compares the number of minorities affected as between the R-M designation and the winning $56 million bid under the R-T zoning, thus excluding a comparison with other potential housing that could have been built at the site under R-T zoning that was not necessarily “high-end”. However, even if a different bidder had been awarded the project, the McArdle Report also notes that minorities comprise a disproportionate share of renter (versus owner) households in the
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County and, thus, a zoning proposal that permits only 36 multi-family rental units (and only by special permit) versus the 311 contemplated by the original zoning proposal (as-ofright) would have a greater impact upon potential minority residents. (See McArdle Report, at ¶ 49 (“Minorities made up just 14.8% percent of all households in Nassau County in 2000, but 31.1% of renter households.”).) Thus, Garden City’s attempt to avoid liability under a disparate impact analysis by pointing the finger at Nassau County’s price demand is without merit.
The Plaintiffs also produced evidence that the R-T zone’s restriction on the development of multi-family housing perpetuates segregation generally because it decreases the availability of housing to minorities in a municipality where minorities constitute approximately 2.6% of the population versus approximately 19.7% in the County overall. See Davis v. N.Y. City Hous. Auth., 278 F.3d 64, 80-81 (2d Cir. 2002) (stating that district court’s determination in disparate impact claim that housing project was segregated where percentage of project’s white population was more than four times the system average “was entirely consistent with existing law”); United States v. Inc. Vill. of Island Park, 888 F. Supp. 419, 448 (E.D.N.Y. 1995) (finding that although AfricanAmerican population in defendant village increased over ten years, it’s still relative low share of the overall village population, particularly when considered in contrast with the African-American population of Nassau County Consortium and adjacent town, demonstrated segregation under disparate impact claim).
The Court rejects the Garden City Defendants’ argument that the R-T zoning designation does not perpetuate segregation because it creates housing opportunities where
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there previously were none under the P zone. As set forth in the first ACORN decision by Judge Bianco, as well as in the disparate treatment analysis in this Memorandum of Decision and Order, the relevant inquiry here focuses on the housing opportunities available under the rejected R-M designation versus the approved R-T designation.
As the Plaintiffs have established a prima facie case of disparate impact, the burden now shifts to the Defendants to demonstrate that the rejection of the R-M zone for the R-T zone advanced a “legitimate, bona fide governmental interest . . . that no alternative would serve . . . with less discriminatory effect.” Tsombanidis, 352 F.3d 565, 575. The Garden City Defendants argue that they had such a legitimate, bona fide governmental interest in that the R-T zoning designation “encourages the development of townhomes, a housing option not previously built in the Village.” (GC Mem. at 36.) However, the Plaintiffs note that the Garden City Defendants fail to identify how those interests were not advanced by the R-M zoning designation, which also allowed for the development of townhouses. The Garden City Defendants further submit that the R-T zoning designation better balanced the existing residents’ concerns about traffic, schools and infrastructure. However, as the Court has already noted, the Plaintiffs have offered evidence that those concerns were adequately addressed by the R-M framework. Accordingly, while the Garden City Defendants have identified legitimate governmental interests advanced by the R-T zone, the evidence proffered by the Plaintiffs is sufficient to create genuine issues of disputed fact as to whether those interests truly existed in this case and, if so, whether such interests could be furthered with less discriminatory effect.
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Finally, even though the Plaintiffs are not required to set forth evidence of discriminatory intent in order to establish a prima facie case of disparate impact, they also have raised triable issues of fact regarding the Garden City Defendants’ complicity in acting on the allegedly race-based community opposition to the R-M zone. If a rational finder of fact was to find discriminatory intent, that finding would weigh in the Plaintiffs’ favor on a disparate impact claim. As noted above, the Court recognizes that the Garden City Defendants have articulated legitimate, general planning concerns, but there are material issues of fact relating to whether those articulated concerns were a pretext for discriminatory intent. This issue cannot be resolved on summary judgment. Accordingly, the Garden City Defendants’ motion for summary judgment on the Plaintiffs’ FHA disparate impact claim is denied.
ii. The County As with disparate treatment, the Court must initially determine how to frame the alleged discriminatory action in connection with the County. In the context of disparate impact, the Plaintiffs contend that the action they are condemning is the “acquiesce[ence] to the exclusionary R-T zoning” and that anything that “happened during the RFP process is beside the point for the purposes of this Court’s disparate impact analysis.” (Pl. Opp. at 52-54.) However, as set forth above, under the facts of this case, the County bears no liability for the enactment of the allegedly discriminatory zoning designation, as a matter of law. In order to advance a claim against this defendant under a theory of disparate impact, the Court finds that the Plaintiffs must set forth evidence from which a rational fact
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finder could conclude that the County’s other possibly discriminatory action — the outwardly neutral decision to sell the Social Services site to Fairhaven Properties, Inc. — had a disproportionate effect on minority residents, as opposed to other potential proposals that conformed to the strictures of the R-T zoning designation. In other words, because there is no evidence that the County was responsible for that R-T designation, the disparate impact claim against it cannot be based on any disparity between proposals under the R-M designation as opposed to the R-T designation. Instead, the County can only be held liable with respect to disparate impact among proposals that conform with the R-T zoning requirements. However, the Plaintiffs have submitted no evidence that the selection of Fairhaven Properties, Inc. bid had a disproportionate effect on minorities when compared to alternate proposals conforming to the strictures of the R-T zone. Accordingly, the Plaintiffs have failed to establish a prima facie case of disparate impact as it relates to the County and the County is entitled to summary judgment dismissing that claim. D. FHA Claims Against the County
The Plaintiffs, including the Intervenor-Plaintiff NYCC, assert a second FHA claim, against only the County, arising under 42 U.S.C. § 3608 (Section 808 of the FHA), on the ground that the County has failed to affirmatively further fair housing while receiving federal grants conditioned on that action. The County argues first, that this provision of the FHA is only applicable to federal agencies; second, that the provision does not create a private right of action; and third, that federal regulations actually prevent it from disbursing federal housing funds to Garden City and, therefore, it could not have run afoul of the FHA for any alleged complicity in the Garden City Defendants’ zoning decisions. As set forth
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below, the Court finds that though this provision is indeed applicable to local agencies as they act on behalf of HUD, it does not provide a private right of action. Thus, the Court need not address the substantive merits of the Plaintiffs’ claim in this regard.
1. Legal Standard Section 3608(e)(5) provides that “the Secretary of Housing and Urban Development
[“HUD”] shall – administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this title.” 42 U.S.C. § 3608(e)(5); FHA § 808(e)(5). To that end, any recipient of affordable housing assistance provided by HUD must “certif[y] to the satisfaction of the Secretary that – the grant will be conducted and administered in conformity with the Civil Rights Act of 1964 and the Fair Housing Act, and the grantee will affirmatively further fair housing.” 42 U.S.C. § 5304(b)(2); FHA § 104. Federal regulations specify that consortium fund recipients “affirmatively further fair housing” by “conduct[ing] an analysis to identify impediments to fair housing choice within the area, tak[ing] appropriate actions to overcome the effects of any impediments identified through that analysis, and maintain[ing] records reflecting the analysis and actions in this regard.” 24 C.F.R. § 91.425(a)(1)(i). The Second Circuit has determined that the agencies administering grants have “an affirmative duty to encourage fair housing” and that an injured claimant may challenge “administrative violations of statutory duties.” See Evans v. Lynn, 537 F.2d 571, 578 (2d Cir. 1975).
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2. As to the Plaintiffs’ Section 3608 Claim a. Section 3608 Applies to Local Municipalities Administering HUD Funds The County first argues that Section 3608 is only enforceable against federal
agencies and not local municipalities and relies upon the Second Circuit’s decision in Acevedo v. Nassau County, 500 F.2d 1078 (2d Cir. 1974) in support of that proposition. This argument is without merit, as the Acevedo decision does not preclude Section 3608 claims asserted against local agencies, but rather notes that a viable Section 3608 claim against HUD does not necessarily constitute a valid Section 3604 claim against a municipality administering Section 3608 funds based upon the same factual nexus. See id. at 1082 (“On the authority of [Section 3608] HUD might be justified in denying appellees funding for other projects if they refuse to approve low income housing . . . . But HUD’s discretionary powers under the [Fair Housing] Act extend beyond the duties imposed by the Act on local housing plans. HUD’s action does not mean that [the County] ha[s] violated section [36]04 of the Act.”) (emphasis added). Moreover, it is clear from case law generated prior to and after the Acevedo decision that non-federal agencies administering grants have “an affirmative duty to encourage fair housing.” See Evans, 537 F.2d at 578. Specifically, the Second Circuit has stated:
We agree with the parties and with the district court that the [New York City Housing] Authority is under an obligation to act affirmatively to achieve integration in housing. The source of that duty is both constitutional and statutory. Various discriminatory housing practices have been outlawed by judicial decree as violative of the Equal Protection Clause . . . An additional source of the affirmative duty to integrate is found in the 1968 Fair Housing Act . . . § 3601, and, in § 3608 . . . We are satisfied that the affirmative duty placed on the Secretary of HUD by § 3608(d)(5) and through him on other agencies administering federally-assisted housing programs also requires that consideration be given to the impact of
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proposed public housing programs on the racial concentration in the area in which the proposed housing is to be built. Otero v. New York City Housing Auth., 484 F.2d 1122, 1133-34 (2d Cir. 1973) (emphasis added); see also U.S. ex rel. Anti-Discrimination Ctr. of Metro New York, Inc. v. Westchester County, 495 F. Supp. 2d 375, 386 (S.D.N.Y. 2007) (recipients of HUD funds under Section 3608 such as Westchester County must “affirmatively further fair housing”); Langlois v. Abington Housing Auth., 234 F. Supp. 2d 33, 73 (D. Mass. 2002) (“The remaining question is whether the mandatory obligation imposed by § 3608(e)(5) on the Secretary of HUD can be enforced against the [public housing authorities]. When viewed in the larger context of Title VIII, the legislative history, and the case law, there is no way — at least, none that makes sense — to construe the boundary of the duty to affirmatively further fair housing as ending with the [HUD] Secretary.”). Therefore, it is clear that Section 3608 is applicable to the County in the instant matter. b. There is No Express or Implied Private Right of Action for Section 3608 The County next argues that, even if applicable, there is no private right of action under § 3608, either express or implied. The Court agrees. Section 3613 of the FHA, entitled “Enforcement by private persons,” provides that: An aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into under this subchapter, whichever occurs last, to obtain appropriate relief with respect to such discriminatory housing practice or breach. 42 U.S.C. § 3613(1)(A); FHA § 813(1)(A). Section 3602(f), in turn, defines a “discriminatory housing practice” as “an act that is unlawful under section 3604, 3605,
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3606, or 3617 of this title.” Section 3608, the provision under which the Plaintiffs assert their claim against the County, is not mentioned. By its plain language, the FHA does not provide for an express private right of action under Section 3608 against any party implicated by the obligations created by that statute.
The Court must next determine whether Congress created an implied private right of action under Section 3608. Courts reviewing this statutory provision, as asserted against the federal government, have concluded that no such right exists. Specifically, they have noted that the proper vehicle for relief under Section 3608 lies not in a private right of action under the FHA, but rather through the Administrative Procedures Act. See Latinos Unidos De Chelsea En Accion (Lucha) v. Sec’y of Hous. and Urban Dev., 799 F.2d 774, 791 (1st Cir. 1986) (“[I]t is unlikely that Congress absentmindedly forgot to mention an intended private action against HUD under section 3608(d).”) (internal quotations omitted); see also N.A.A.C.P. v. Sec’y of Hous. and Urban Dev., 817 F.2d 149, 152 (1st Cir. 1987) (no implied private right of action against HUD under Section 3608); Jones v. Office of Comptroller of Currency, 983 F. Supp. 197, 202-03 (D.D.C. 1997) (same); Marinoff v. U.S. Dep’t of Hous. and Urban Dev., 892 F. Supp. 493, 496 (S.D.N.Y. 1995) (same), aff’d, 78 F.3d 64 (2d Cir. 1996); Pleune v. Pierce, 697 F. Supp. 113, 119 (E.D.N.Y. 1988) (same).
However, in the instant case, the Plaintiffs seek relief against the County, a nonfederal entity, and thus the Administrative Procedures Act (“APA”) provides no recourse for their alleged injury. The relevant inquiry thus becomes whether “Congress meant to give an injured person a right himself to enforce the federal statute directly against the
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nonfederal person or whether the injured person can do no more than ask the federal government to enforce the statute.” N.A.A.C.P., 817 F.2d at 152. The Court concludes, for two reasons, that this claim falls into the latter category, and no implied private right of action exists. First and foremost, any obligations imposed upon the County under Section 3608 are derived from those imposed upon HUD by the same statutory provision. It follows, then, that if Section 3608 is not enforceable through a private right of action against HUD, it cannot be enforceable through that same vehicle against a non-federal agency implementing the duties imposed upon HUD by the FHA.
Second, the application of the relevant test as described in Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26 (1975), weighs against a finding of an implied right of action. In that decision, the Supreme Court directed courts making such an inquiry to ask:
First, is the plaintiff one of the class for whose especial benefit the statute was enacted,” that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Id. at 78. Here, Section 3608(e) does not identify a class which the provision is meant to benefit, nor does it define a specific right conferred in favor of private plaintiffs. Instead, the section, under the heading “functions of the secretary,” lists a variety of affirmative duties placed upon the HUD Secretary, which include, but are not limited to: making studies, publishing reports, cooperating with local agencies seeking to prevent or eliminate discriminatory housing practices, and compiling annual reports for Congress. See 42
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U.S.C. § 3608(e). As one court noted, “[t]he fact that th[e] duty [plaintiffs seek to enforce] appears in a section devoted solely to HUD’s minsterial duties sharply undercuts plaintiffs’ claim that Congress intended that duty to confer enforceable rights on them.” Thomas v. Butzen, No. 04 Civ. 5555, 2005 U.S. Dist. LEXIS 21525, at *35 (N.D. Ill. Sept. 26, 2005).
In addition, the legislative history contains no suggestion that a private right of action was considered for this section. See Otero, 484 at 1134 n.14 (“[T]here was extended debate in the House, mostly regarding other provisions of the 1968 Civil Rights Act and especially other aspects of Title VIII, 114 Cong. Rec. 9553-9621, but virtually none regarding the affirmative duties placed on the Secretary under § 3608(d)(5).”). Moreover, authorizing a private right of action against a non-federal entity is clearly inconsistent with the legislative scheme of Section 3608, which places affirmative enforcement duties on the Secretary of HUD. Finally, the issue presented is not traditionally addressed by state law so that finding a federal right of action would be inappropriate, but that factor is not dispositive in light of the aforementioned three Cort v. Ash factors which weigh against finding such a right.
Accordingly, it is clear to the Court that Congress did not intend for private citizens to enforce Section 3608 directly against a non-federal entity, but rather those enforcement responsibilities lie with the federal government.
c. Section 3608 May Not Be Enforced Through Section 1983 Having determined that Section 3608 does not provide for an express or implied private right of action, the Court must finally determine whether, as the Plaintiffs argue, rights granted by that statute may be advanced by a Section 1983 suit. Courts within the
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Second Circuit have yet to squarely address this issue, and district courts in other jurisdictions have divided. Compare S. Middlesex Opportunity Council, Inc. v. Town of Framingham, No. 07 Civ. 12018, 2008 U.S. Dist. LEXIS 85764, at *51 (D. Mass. Sept. 30, 2008) (dismissing Section 3608 claims asserted through Section 1983 against state actor for failure to state a claim); Thomas, 2005 U.S. Dist. LEXIS 21525, at *35 (same); with Wallace v. Chicago Housing Auth., 298 F. Supp. 2d 710, 719 (N.D. Ill. 2003) (“we hold that Plaintiffs may sue under § 1983 to combat a violation of § 3608(e)(5) of the Fair Housing Act”); Langlois v. Abington Housing Auth., 234 F. Supp. 2d 33, 72-73 (D. Mass. 2002) (holding that Section 3608 confers rights that can be vindicated through Section 1983 against a state actor). Having conducted its own analysis, as set forth below, the Court agrees with the Thomas and Framingham decisions and concludes that Section 3608 does not give rise to rights enforceable against state actors under Section 1983.
It is well-settled that “[s]ection 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). A federal statute creates a cognizable claim against a state actor under Section 1983 when it meets the following three requirements:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. Blessing v. Freestone, 520 U.S. 329, 340-41 (1997). The Supreme Court stressed, in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), that “it is only violations of rights, not laws, which give rise to § 1983 actions.” Id. at 283 (emphasis in original). The Court rejected
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the notion that any decisions rendered since Blessing “permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983.” Id. Therefore, “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit.” Id. at 286 (internal quotations omitted). Moreover, “[e]ven after this showing, ‘there is only a rebuttable presumption that the right is enforceable under § 1983.’ The defendant may defeat this presumption by demonstrating that Congress did not intend that remedy for a newly created right.” Racho Palos Verdes v. Abrams, 544 U.S. 113, 120, 125 S. Ct. 1453, 1458, 161 L. Ed. 2d 316 (2005) (quoting Blessing v. Freestone, 520 U.S. 329, 341 (1997) and Smith v. Robinson, 468 U.S. 992, 1012, 104 S. Ct. 3457, 3469, 82 L. Ed. 2d 746 (1984)).
While the Plaintiffs may argue that Gonzaga is limited in its application to laws passed pursuant to Congress’ spending power, a notion which underlies the holding in Wallace, this Court is not so persuaded, as Gonzaga expresses no such limitations. Furthermore, the Supreme Court had the opportunity to make such a clarification in the case of Racho Palos Verdes v. Abrams, but simply reiterated “that § 1983 does not provide an avenue for relief every time a state actor violates a federal law. As a threshold matter, the text of § 1983 permits the enforcement of rights, not the broader or vaguer benefits or interests.” 544 U.S. 113, 119-20 (2005) (internal quotations omitted). Courts have interpreted this decision as confirmation that Gonzaga is not limited to violations of laws passed pursuant to the spending power. See McCready v. White, 417 F.3d 700, 703 (7th Cir. 2005) (“Any possibility that Gonzaga is limited to statutes that rest on the spending
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power (as the law in Gonzaga did) has been dispelled by Racho Palos Verdes v. Abrams, which treats Gonzaga as establishing the effect of § 1983 itself.”); accord Town of Framingham, 2008 U.S. Dist. LEXIS 85764, at *50-*51.
In the instant case, the text and structure of the FHA demonstrate that Section 3608 does not give rise to an enforceable, individual right. See Town of Framingham, 2008 U.S. Dist. LEXIS 85764, at *49 (“Section 3608 does not establish rights for aggrieved persons in the same clear manner in which §§ 3604 and 3617 do.”). As noted in the Court’s discussion regarding a private right of action, Congress created an enforcement provision for private citizens to bring suit pursuant to specific sections of the FHA, and Section 3608 was not so included on that list. See id., 2008 U.S. Dist. LEXIS 85764, at *50-*51 (“After reviewing the structure of the FHA, I conclude that Congress did not intend to confer an individual right pursuant to § 3608. Congress provided an enforcement mechanism in the FHA for private individuals to bring civil actions . . . . Conspicuously missing from the list is § 3608.”); Thomas, 2005 U.S. Dist. LEXIS 21525, at *33 (“The text and structure of the FHA clearly evince Congress’ intent that section 3608(e)(5) not confer an enforceable, individual right . . . . A housing authority’s failure to further fair housing is not a discriminatory housing practice actionable under section 3613, nor is it the subject of a separate cause of action in the statute. The existence of an express cause of action in the FHA that does not encompass section 3608(e)(5) strongly suggests that Congress did not intend section 3608(e)(5) to create enforceable rights.”). While the question of whether an implied right of action exists is distinct from the question of whether a statute may be enforced through Section 1983, “the inquiries overlap in one meaningful respect — in
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either case we must first determine whether Congress intended to create a federal right.” Gonzaga Univ., 536 U.S. at 283.
In addition, the Court agrees that the broad goal underlying this provision — an intent that HUD do more than simply not discriminate itself but rather use its grant programs to assist in ending discrimination and segregation — “speaks to administrative objectives for the benefits of the parties seeking housing and . . . such benefits do not necessarily translate into enforceable, individual rights.” Town of Framingham, 2008 U.S. Dist. LEXIS 85764, at *50; see Thomas, 2005 U.S. Dist. LEXIS 21525, at *34 (“The language of section 3608, itself, bolsters that conclusion. The title of that section is ‘Administration’ . . . The fact that this duty [to affirmatively further fair housing] appears in a section devoted solely to HUD’s ministerial duties sharply undercuts plaintiffs’ claim that Congress intended that duty to confer enforceable rights on them.”). Finally, the Court concurs with the Northern District of Illinois when it stated that
the right allegedly conferred by section 3608(e)(5) is [too] vague and amorphous to be enforceable . . . [because it] does not define HUD’s duty to further fair housing or place any parameters on it. If violations of that duty could be redressed via section 1983, virtually any act or omission of HUD with respect to housing would be subject to judicial review. Neither the federal nor the state judicial system has the authority, resources or expertise to become HUD’s overseer, the position plaintiffs’ interpretation of section 3608(e)(5) would impose on them. Id. at *35. The Court now holds that a Section 3608 claim may not be advanced through Section 1983, so that the Court need not address if there is a genuine issue of material fact as to whether the County fulfilled its duty to HUD to affirmatively further the purposes of the FHA in its receipt, administration, and disbursement of CDBG and HOME funds.
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Having thus failed to satisfy the threshold requirement articulated by the Supreme Court in Gonzaga, the Plaintiffs may not advance a Section 3608 claim against the County through Section 1983 and the County’s motion for summary judgment dismissing that claim is granted. E. Sections 1981, 1982 and 1983
The Plaintiffs further present claims against all of the Defendants, pursuant to 42 U.S.C. §§ 1981, 1982 and 1983, related to the allegedly discriminatory zoning of the Social Services site. The causes of action under Sections 1981 and 1982 are asserted by all Plaintiffs, including the Intervenor-Plaintiff NYCC. However, the cause of action under Section 1983 is not asserted by the Intervenor-Plaintiff NYCC. As detailed below, the Court finds that the Plaintiffs have raised genuine issues of material fact on all these claims as asserted against the Garden City Defendants, but not the County.
1. Legal Standard “To establish a claim under § 1981, a plaintiff must allege facts in support of the
following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, [purchase, lease or otherwise hold or convey property,] etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
A plaintiff bringing a claim under 42 U.S.C. § 1982, which states that“[a]ll citizens . . . shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property,” must demonstrate that he was
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intentionally deprived of his property on account of his race, for “[w]hile § 1982 does not use the phrase ‘discrimination based on race,’ that is its plain meaning.” Gomez-Perez v. Potter, 553 U.S. 474, 479, 128 S. Ct. 1931, 1936, 170 L. Ed. 2d 887 (2008); see also Shaare Tefilia v. Cobb, 481 U.S. 615, 616 (1987) (“The section forbids both official and private racially discriminatory interference with property rights.”).
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and laws; (2) by a person acting under the color of state law. 42 U.S.C. § 1983. As stated above, “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). In the instant case, the Plaintiffs have alleged that defendants deprived them of equal protection under the laws in violation of the Fourteenth Amendment to the Constitution and seek redress for that alleged injury by a Section 1983 cause of action. The Supreme Court has made clear that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact . . . “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977) (citing Washington v. Davis, 426 U.S. 229, 242 (1976)); see also Orange Lake Assocs., Inc. v. Kirkpatrick, 21 F.3d 1214, 1226 (2d Cir. 1994) (“In short, we will not strike down an even-handedly applied, facially neutral law as violative of the Equal Protection Clause unless the plaintiff can demonstrate discriminatory intent or purpose.”).
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2. As to the Plaintiffs’ Sections 1981, 1982, and 1983 Claims As described above, Sections 1981, 1982 and 1983 all require proof of
discriminatory intent. While the constitutional and statutory standards for discrimination in housing differ, the basis for the present summary judgment motions all involve this shared element. Thus, if there is no genuine issue of material fact with regard to the Defendants’ discriminatory intent so that summary judgment should be granted in the context of the FHA, it should similarly be granted in the context of Sections 1981, 1982 and 1983. See Wentworth v. Hedson, 493 F. Supp. 2d 559, 571 n.17 (E.D.N.Y. 2007) (“the prima facie elements of [plaintiffs’ claims under 42 U.S.C. § 1982 ] do not differ substantially from those applicable to plaintiffs’ FHA claims.”); Huertas v. East River Hous. Corp., 674 F. Supp. 440, 454 (S.D.N.Y. 1987) (applying the elements of a prima facie FHA claim to claims under § 1981 and § 1982); see also McHaney v. Spears, 526 F. Supp. 566, 574 (W.D. Tenn. 1981) (“The plaintiffs have also alleged that the defendants’ actions state a cause of action under 42 U.S.C. § 1982. The Court finds that the requirements necessary to establish a prima facie case, and carry the burden of proof is the same under this provision as it is under 42 U.S.C. § 3601 et seq. Accordingly, the Court finds that the defendants are liable to the plaintiffs for their violation of Section 1982 based on the findings of fact and the conclusions of law discussed in this opinion.”). The Defendants argue that the Plaintiffs cannot satisfy this common element and, therefore, these claims must be dismissed.
The Court has determined that there are genuine factual disputes as to whether the Garden City Defendants discarded the R-M zoning designation in favor of the R-T zoning
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designation to appease race-based community opposition to multi-family housing, thus displaying a discriminatory intent. Accordingly, the Sections 1981, 1982, and 1983 claims survive the Garden City Defendants’ motion for summary judgment. On the other hand, because there are no issues of fact related to the County’s alleged responsibility for that zoning decision, its motion for summary judgment dismissing the Sections 1981, 1982, and 1983 claims is granted.
In this regard, the Garden City Defendants further assert that the Plaintiffs cannot demonstrate that they were denied the right to “inherit, purchase, lease, sell, hold, and convey real and personal property” secured by Section 1982 because “no housing development exists for them to do so.” (GC Mem. at 40.) However, “[a]lthough the full scope of § 1982 has never been made clear, it has long been held to be a viable provision for challenging exclusionary land use restrictions.” Jackson v. Okaloosa County, Fla., 21 F.3d 1531, 1539 (11th Cir. 1994) (citing Jones v. Alfred H. Mayer Co., 392 U.S. 409, 41718 (1968)). Thus, this additional ground to dismiss the Section 1982 claim against the Garden City Defendants is denied. F. Section 2000d
Finally, the Plaintiffs, including the Intervenor-Plaintiff NYCC, claim that the County’s alleged “discriminatory practices with regard to the administration of federal programs, including the federal CFBG and HOME programs” was motivated by malice and/or callous disregard for the Plaintiffs and violated Section 601 of Title VI of the Civil Rights Act of 1964, which states that:
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No person in the United States shall, on the ground of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. See 42 U.S.C. § 2000d, et seq. The Supreme Court has clearly stated that “it is . . . beyond dispute that § 601 prohibits only intentional discrimination.” Alexander v. Sandoval, 532 U.S. 275 (2001); see Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005) (“Sandoval held that private parties may not invoke Title VI regulations to obtain redress for disparate-impact discrimination because Title VI itself prohibits only intentional discrimination.”). In this case, the Court has determined that no genuine issues of material fact exist as to whether the County acted with discriminatory intent in selling the Social Services site to the highest bidder. Thus, the County Defendant cannot be held liable under Section 2000d. While it does not appear that the Plaintiffs are asserting this cause of action against the Garden City Defendants, such a claim would nevertheless be without merit because it is undisputed that Garden City does not receive federal housing funds, as it is not a participant in the Nassau County Urban Consortium. Liability under Title VI is conditioned upon the receipt of such “Federal financial assistance,” and the Garden City Defendants cannot be held liable under that statute for any alleged discriminatory zoning practices. Accordingly, the Plaintiffs’ Title VI claims against all the Defendants must fail, as a matter of law, and the County’s motion for summary judgment dismissing the claim is granted.
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III. MOTION TO AMEND THE INTERVENOR COMPLAINT A. The Present Motion to Amend
In addition to the Defendants’ motions for summary judgment that were addressed in this opinion, there is a pending motion filed by the Intervenor-Plaintiff NYCC for leave to file an amended complaint.
NYCC filed its original intervenor complaint on June 30, 2010, which NYCC recognizes as being virtually identical to the Plaintiffs’ amended complaint filed on November 30, 2005. The essence of the present motion is that NYCC seeks to assert an additional cause of action that was inadvertently not included in their original intervenor complaint. In fact, the Court notes that NYCC’s original complaint and NYCC’s proposed amended complaint are precisely the same, except for the cause of action they now seek to assert, entitled “Violation of the Civil Rights Act of 1871, 42 U.S.C. §1983 and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.” This claim alleges that the “Defendants’ discriminatory customs, patterns, practices, and usage in contravention of the Individual Plaintiffs’ and NYCC’s constitutional and federal statutory rights motivated by malice and/or callous disregard for their rights, deprive the Individual Plaintiffs of their right of equal access to housing and deprive NYCC of its right to make housing available under color of law in violation of the Federal Civil Rights Act of 1871, 42 U.S.C. § 1983, and its rights under the Equal Protection Clause of the United States Constitution with regard to housing.” This cause of action would be asserted against both the County Defendant and the Garden City Defendants.
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B. Whether NYCC May Amend Under Fed. R. Civ. P. 15(a) 1. The Legal Standard Rule 15(a) of the Federal Rules of Civil Procedure requires that courts freely grant
leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a). Rule 15(a)(2) states in pertinent part: “Amendments Before Trial. . . . a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Id. A court should deny leave to amend only upon “undue delay, bad faith or dilatory motive on the part of the [moving party], repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the [non-moving party,] . . . [or] futility.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962); see also Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603–04 (2d Cir. 2005) (“a Rule 15(a) motion should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party.”) (internal quotations and citation omitted). Amendments are generally favored because “they tend to facilitate a proper decision on the merits.” Blaskiewicz v. County of Suffolk, 29 F. Supp. 2d 134, 137 (E.D.N.Y. 1998). However it is ultimately “within the sound discretion of the court whether to grant leave to amend.” John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citing Foman, 371 U.S. at 182, 83 S. Ct. 227).
2. Whether NYCC’s Proposed Amendment is Futile The Court first considers whether permitting NYCC’s motion to amend their
complaint would be futile. In this Court’s discretion, it may deny a proposed amendment which would be futile, or which does not establish a sufficient or cognizable claim, or
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which has no merit. Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (“[W]here ... there is no merit in the proposed amendments, leave to amend should be denied.”) Accordingly, an amendment is futile where it is legally insufficient on its face so that it could be defeated by a motion to dismiss. Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002). However, when a motion to amend is made in response to a summary judgment motion, a court can determine if the amendment is futile based upon whether the evidence in support of the plaintiff’s proposed new claim creates a triable issue of fact, even if the amended complaint would state a valid claim on its face. See Milanese v. RustOleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).
In the present case, NYCC seeks to add an identical cause of action based upon the same allegations that were already made by the other Plaintiffs. Thus, the Court’s analysis above with regard to the Section 1983 and Equal Protection claims is determinative of whether NYCC’s proposed amendment would be futile. Accordingly, the Court now finds that the amendment would be futile as to the County but would not be futile as to the Garden City Defendants.
3. Whether NYCC Exhibited Undue Delay in Bringing the Motion to Amend Even though NYCC has stated a new and valid cause of action in its proposed
amended complaint as against the Garden City Defendants, the Court must still consider the timeliness of the motion to amend. “One of the most important considerations in determining whether amendment would be prejudicial is the degree to which it would delay the final disposition of the action.” H.L. Hayden Co. v. Siemens Med. Sys., 112 F.R.D. 417, 419 (S.D.N.Y. 1986) (collecting cases). Length of time, in of and itself, does not
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provide a basis to deny a motion to amend. See Daniels v. Loizzo, 174 F.R.D. 295 (S.D.N.Y. 1997) (finding that the plaintiff’s nine-year delay in submitting proposed amendments to the complaint did not necessitate the denial of the motion to amend absent evidence of prejudice to the defendants and in light of plaintiff’s pro se status and former inadequate representation); Rachman Bag Co., 46 F.3d at 234–35 (noting that a lengthy delay alone, in the absence of prejudice or bad faith, is not a sufficient basis to deny a motion to amend).
NYCC initially filed its intervenor complaint on June 30, 2010. NYCC claims that the alleged clerical oversight first came to the attention of NYCC’s attorneys on May 23, 2011, when the Garden City Defendants filed a letter requesting a pre-summary judgment motion conference. Three months later, on August 24, 2011, NYCC contacted the Defendants to seek their consent to the now requested amendment, which consent was declined. Two days later, NYCC filed the present motion to add the additional cause of action. Therefore, there was at least an eleven month delay before NYCC even recognized this alleged clerical error, and then another three month delay before filing the present motion to amend.
NYCC asserts that the delay is not excessive because it was only “a short period of time” between when it first discovered the error on May 23, 2011 and it filed the instant motion on August 26, 2011. (NYCC Mem. at 4.) The Garden City Defendants contend the error should have been caught as early as March 11, 2011, when the Village served its Local Rule 56.1 statement and pointed out the omission. Nevertheless, even a five month delay, without evidence of bad faith or prejudice, is not a sufficient basis to deny a motion
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to amend. See Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995); Zoll v. Jordache Enters. Inc., No. 01 Civ. 1339, 2002 WL 485733, at *2 (S.D.N.Y. March 29, 2002) (“The time between September, when defendant maintains that it discerned the basis for the defense, and the end of January, when it filed the motion to amend, constitutes a delay of not quite five months. This delay is hardly egregious . . .”). “Narrow pleading rules should not be applied to foil an honest plaintiff’s efforts to gain redress.” Middle Atl. Utils., Co. v. S.M.W. Dev. Corp., 392 F.2d 380, 384 (2d Cir. 1968). In light of the Court’s finding below that undue prejudice will not result, and because there is no evidence of bad faith, the Court finds that this delay does not warrant denial of the leave to amend.
4. Whether the Defendants will be Prejudiced if NYCC is Permitted to Amend the Intervenor Complaint In determining whether leave to amend should be granted, among the “most
important” issues to consider is prejudice to the opposing party. AEP Energy Servs. Gas Holding Co. v. Bank of America, N.A., 626 F.3d 699, 725 (2d Cir. 2010) (internal quotations omitted). In analyzing “prejudice,” courts consider whether the amendment would: (1) require the opponent to “expend significant additional resources to conduct discovery and prepare for trial,” (2) significantly prolong the resolution of the action, or (3) “prevent the plaintiff from bringing a timely action in another jurisdiction.” Monahan v. N.Y. City Dept. of Corr., 214 F.3d 275, 284 (2d Cir. 2000). The main concern is undue or substantial prejudice — when the nonmoving party shows that it would be unfairly disadvantaged or deprived of the opportunity to present facts or evidence that it would have offered.
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Cognizant of the aforementioned considerations, the Court finds that there is no undue prejudice that would result from this amendment. The new cause of action that NYCC now seeks to assert has been already pleaded by the other three Plaintiffs— MHANY (previously NYAHC), Devita, and McCray — throughout the entire course of this litigation. Further, NYCC does not seek to make any factual allegations with regard to this cause of action that differ in any way from the allegations contained in the 2005 amended complaint. The Garden City Defendants have been vigorously defending against this claim throughout the past six years of this litigation, and hence have had the ability to prepare a full defense. The Garden City Defendants do not explain why their defense of this claim thus far, including relevant discovery, differs in any way by virtue of the fact that it is asserted by the Intervenor-Plaintiff as opposed to the other Plaintiffs.
Moreover, when the amended complaint was filed in 2005, one of the plaintiffs that asserted the Section 1983 cause of action was ACORN. NYCC only intervened after ACORN disbanded and was terminated as a plaintiff, because NYCC was an organization with goals similar to those of ACORN. This further supports the notion that the Defendants were on notice of this claim since the inception of this litigation. Finally, the Garden City Defendants have now had the opportunity to twice brief and argue in support of summary judgment against the Plaintiffs to dismiss this cause of action, and both times the Garden City Defendants did not distinguish between any of the four plaintiffs. This plainly demonstrates that the Defendants have had the ability to defend against this claim. Accordingly, the Court does not find that the proposed amendment would require the Defendants to expend significant additional resources to conduct discovery and prepare for
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trial. The Court agrees with NYCC that “permitting what is essentially an administrative amendment to correct a clerical mistake will not delay these proceedings or prejudice [the Garden City Defendants] in any way.” (NYCC Mem. at 6.)
The Garden City Defendants also argue that if the Court permits the present motion to amend, then the current summary judgment motions would have to be withdrawn and a third summary judgment motion would necessarily need to be filed in order to address this new claim. However, because the Court finds that this claim has already previously been asserted by the other Plaintiffs and fully defended by all of the Defendants, there is no need for the current summary judgment motions to be withdrawn and refiled in light of this new but duplicative claim by the Intervenor-Plaintiff. To do so would be a waste of time and resources for this Court as well as for all of the parties involved, as the Court has already made a determination as to this claim. Furthermore, there does not appear to be a need for the Garden City Defendants to refile their present summary judgment motion merely to defend against this claim by NYCC, because they do not state a basis for making new or additional arguments as to this claim in connection with this particular plaintiff. This is demonstrated by the fact that the Garden City Defendants do not even address futility in their opposition to the motion to amend, likely because to do so would be to simply rehash the arguments in their summary judgment motion. In addition, there is no need for the Garden City Defendants to file a new answer, as NYCC stipulates that the Defendants deny the claim, as they consistently have from the initial filing of this case as to every other Plaintiff’s claim in this regard. Thus, no new answer will be required.
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Therefore, the Court grants NYCC’s motion to amend the complaint only as against the Garden City Defendants in conformance with the rulings set forth in this Memorandum of Decision and Order to include an additional cause of action for violations of the Civil Rights Act of 1871, 42 U.S.C. §1983 and the Equal Protection Clause of the Fourteenth Amendment. NYCC is directed to file an amended complaint within 20 days of the date of this Order.
IV. CONCLUSION For the foregoing reasons, it is hereby
ORDERED that the Defendant County’s motion for summary judgment dismissing all claims against it is GRANTED; and it is further
ORDERED that the Garden City Defendants’ motion for summary judgment dismissing all claims against it is DENIED in all respects; and it is further
ORDERED that the Inventor-Plaintiff NYCC’s motion to amend the intervenor complaint to include a cause of action for violations of the Civil Rights Act of 1871, 42 U.S.C. §1983 and the Equal Protection Clause of the Fourteenth Amendment is GRANTED. NYCC is directed to file an amended complaint only as against the Garden City Defendants in conformance with the rulings set forth in this Memorandum of Decision and Order within 20 days of the date of this Order; and it is further
ORDERED that the Plaintiffs and the Garden City Defendants are directed to appear on Thursday, February 23, 2012 at 9:00am for a conference to set a trial date.
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SO ORDERED.
Dated: Central Islip, New York February 15, 2012

____/s/ Arthur D. Spatt______ ARTHUR D. SPATT
United States District Judge

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 Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 1 of 29 PageID #: 8598

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------)( MHANY MANAGEMENT INC., VIC DEVITA, AND FRANCINE MCCRAY,
Plaintiffs,
and
NEW YORK COMMUNITIES FOR CHANGE, INC.,
Plaintiff-Intervenor,
-against-
COUNTY OF NASSAU, INCORPORATED VILLAGE OF GARDEN CITY, AND GARDEN CITY BOARD OF TRUSTEES,
Defendants.
-----------------------------------------------------------)(

AMENDED COMPLAINT IN INTERVENTION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
05-CV-2301 (ADS) (WDW)

INTRODUCTION On February 15,2012, the Court granted Plaintiff-Intervenor New York Communities for Change's (NYCC) motion to amend the Complaint in Intervention for Declaratory Judgment and Injunctive Relief filed on June 30, 2010 to include an additional cause of action for violations of the Civil Rights Act of 1871, 42 U.S.C. §1983 and the Equal Protection Clause ofthe Fourteenth Amendment. In conformance with that and other parts ofthe February 151h Memorandum of Decision and Order, the Court directed NYCC to file an amended complaint only as against the Garden City Defendants within 20 days of the date of this Order. This Amended Complaint in Intervention is filed by Plaintiff-Intervenor NYCC pursuant to this Order, and in conformance with the Order, the Amended Complaint in Intervention is asserted only against the Incorporated Village of Garden City and Garden City Board of Trustees.

Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 2 of 29 PageID #: 8599
AMENDED COMPLAINT IN INTERVENTION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Plaintiff-Intervenor New York Communities for Change, Inc., by and through its undersigned attorneys, as and for its Complaint alleges as follows:
I. NATURE OF ACTION 1. Plaintiff-Intervenor New York Communities for Change, Inc. ("NYCC") is a nonprofit membership organization devoted to improving the quality of life for members of low and moderate income communities in New York. Many members ofNYCC live in Long Island and have been deprived of the opportunity to live in an integrated community by the housing segregation and racially discriminatory housing practices that are pervasive throughout Nassau County. By this housing discrimination action, Plaintiff-Intervenor joins existing Plaintiffs in seeking redress for ongoing exclusionary housing practices by defendants Nassau County (the "County"), the incorporated Village of Garden City ("the Village"), the Garden City Board of Trustees (the "Board of Trustees") and others acting with, or on behalf of, the defendants Village and County (collectively, "Defendants"). This action challenges defendant County's ongoing discriminatory acts and long-standing pattern and practice of preventing African-American, other Black and Hispanic persons from residing in predominantly white communities of Nassau County and, specifically, the recent and imminent acts of the Defendants that effectively prevent affordable multi-family housing opportunities from being developed on a 25-acre parcel of County-owned property in Garden City, thereby perpetuating not only the exclusion of minorities from the overwhelmingly white enclave of Garden City, but also the pattern of racial and ethnic housing segregation in Nassau County generally, which is already one of the most segregated counties in the entire United States. By these and other illegal and discriminatory
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acts, the defendants have violated the rights of Plaintiff-Intervenor's members under the Fair Housing Act, as amended, 42 U.S.C. § 3601, et seq.; the Civil Rights Act of 1866,42 U.S.C. §§ 1981, 1982 and 1983; the "affirmatively furthering" obligations ofthe Fair Housing Act, 42 U.S.C. § 3608; and the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.
II. JURISDICTION AND VENUE 2. Jurisdiction is conferred on this Court by 42 U.S.C. § 3613 and by 28 U.S.C. §§ 1343 and 2201. 3. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b), (c). Defendants all reside in this judicial district; the events or omissions giving rise to the claims herein occurred in this district; and the property at issue is situated in this judicial district.
III. PARTIES 4. Plaintiff-Intervenor New York Communities for Change, Inc. ("NYCC") is a nonprofit corporate entity organized and existing under the laws of the State ofNew York. NYCC asserts the claims herein on behalf of its members. 5. NYCC filed its certificate of incorporation on December 31, 2009, and had a growing membership ofbetween 200 and 300 New York residents as ofMarch 31,2010, with approximately 40 members in Nassau County in Long Island. 6. NYCC's mission is to improve the lives of members oflow and moderate income communities in New York by promoting social and economic justice. It seeks to do so through advocating for affordable housing, working to eliminate racial and economic discrimination in housing and other areas, and organizing tenants. 7. The members ofNYCC have been deprived of the opportunity to live in an integrated community by the housing segregation and racially discriminatory housing practices
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that are pervasive throughout Nassau County. Such housing segregation and racially discriminatory housing practices further frustrate efforts ofNYCC members to find affordable housing in communities other than those that are already predominately populated by minorities.
8. Defendant County ofNassau (the "County" or "County Government") is a municipal corporation organized under the laws of the State ofNew York, having its principal offices located at 1 West Street, Mineola, New York, 11501. All references to defendant County include any individual or entity acting on behalf of, or under the authority derived from, the County, including, but not limited to, the Nassau County Planning Commission ("County Planning Commission"), and the Nassau County Office of Real Estate Planning and Development (the "County REP&D").
9. Defendant Incorporated Village of Garden City, New York (the "Village") is a municipal corporation organized under the laws of the State ofNew York, having its principal offices located at 351 Stewart Avenue, Garden City, New York, 11530. All references to the Village include any individual or entity acting on behalf of, or under the authority derived from, the Village.
10. Defendant Garden City Board of Trustees (the "Board of Trustees") (together with the Village, the "Garden City Defendants") is an elected governing body in Garden City, having its principal offices located at 351 Stewart Avenue, Garden City, New York, 11530, from which the Garden City offices responsible for all development in Garden City derive their authority. All references to the Board of Trustees include any individual or entity acting on behalf of, or under authority derived from, the Board of Trustees.
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IV. FACTUAL BACKGROUND Nassau County's Historic Pattern and Policy of Housing Segregation
11. Housing in Nassau County is highly segregated by race and ethnicity, making Nassau County one of the most racially segregated counties in all of the United States.
12. Approximately 80% of the residents ofNassau County are white and approximately 17% of the residents ofNassau County are African-American, other Blacks, or Hispanics (hereinafter, "minority").
13. Approximately 84% of white Nassau County residents live in non-integrated, virtually all white communities, whereas approximately 64% of the minority residents ofNassau County live in communities that contain predominantly minority residents.
14. The foregoing custom, pattern, practice and usage of racially and ethnically segregated housing that exists in Nassau County has been caused, perpetuated and reinforced by the custom, pattern and practice of discriminatory actions, policies and practices of defendant County for many decades.
15. Minorities residing in Nassau County have a disproportionate need for affordable multi-family housing that is not restricted to elderly persons (that is to say, "non-age restricted" housing). The County Government is fully aware that such non-age restricted affordable housing is disproportionately needed by- and used by- minorities. However, it is, and for many years has been, an express policy and practice of the County Government to develop and promote the development of non-age restricted affordable housing only in predominantly minority and lowincome areas ofNassau County and to exclude such affordable housing from areas that are predominantly populated by white people.
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16. The County Government has also adopted a policy of supporting, encouraging, facilitating, and acquiescing in the efforts by local zoning authorities in the towns and villages located within Nassau County to enact exclusionary zoning laws and ordinances that often, inter alia, prevent the development of non-age restricted affordable multi-family housing, and it has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County and creating identifiable enclaves of nearly all-white residential communities, such as Garden City. This express policy amounts to racial steering by the County Government.
17. The County Government's own housing policies and practices also cause, perpetuate, and reinforce housing segregation on the basis of race, color and national origin. With full knowledge and awareness that the minorities in Nassau County have a disproportionate need for affordable housing in Nassau County, the County Government maintains, and for many years has persisted in maintaining, an express and deliberate policy and practice of causing and steering such affordable housing to be constructed only in a small number of lower income and predominantly minority communities such as Roosevelt, Inwood, Hempstead Village, New Cassel and Freeport, and it has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
18. As a direct and foreseeable consequence of the aforementioned deliberate policy and practice, nearly all of the government subsidized, non-age restricted affordable housing developments in Nassau County are situated in predominantly minority census blocks.
19. The County Government has received, and continues to receive federal subsidized housing funds from the Community Development Block Grant ("CDBG") program and HOME
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program. The County Government's customs, patterns and practices with respect to its use of these funds cause, perpetuate and reinforce racial and ethnic housing segregation and constitute overt racial steering. The CDBG and HOME programs require, among other things, the County Government "affirmatively to further" fair housing. Specifically, the County Government must use the funds in a manner that promotes racial integration rather than perpetuating racial and ethnic segregation, must collect and consider data documenting, and must evaluate the impact of its CDBG and HOME expenditures on racial and ethnic housing segregation.
20. In derogation of its affirmative obligations, the County Government maintains, and for many years has maintained, a policy and practice of directing HOME funds to local governments and non-profit entities to acquire sites for the development of non-age restricted affordable housing only in low and moderate income communities with a disproportionately minority population, but not in predominantly white communities and segregated white enclaves like Garden City. The County Government has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
21. In derogation of its affirmative obligations, the County Government has not used its CDBG funds in a manner that promotes racial integration, but instead the County Government maintains, and for many years has maintained, an express and deliberate discriminatory policy of using CDBG funds to support the development of non-age restricted affordable housing disproportionately in areas ofNassau County that it knows or should know are already predominated by minority residents and it as done so with the purpose, intent, or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
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22. In derogation of its affirmative obligations, the County Government has persistently and knowingly failed and refused to develop an "Analysis of Impediments to Fair Housing" to analyze fair housing needs and residential segregation, which is a basic prerequisite to fulfill its "affirmative obligation" to promote fair housing.
23. In derogation of its affirmative obligations, the County Government has persistently and knowingly failed and refused to track or document the effect of its CDBG and HOME expenditures on perpetuating segregation, so as to conceal and obscure the manifestly segregative effect of its CDBG and HOME programs on housing throughout Nassau County.
24. In furtherance of its policy and practice of perpetuating and reinforcing segregated housing patterns in Nassau County, the County Government maintains, and for many years has maintained, an express and deliberate policy and practice of fostering the development of subsidized senior housing only or disproportionately on sites that are located in predominantly white areas ofNassau County, even though it knows that a disproportionate percentage of the residents of such housing are and will be white persons. As a direct and foreseeable consequence of the aforementioned policies and practices ofthe County Government, most of the subsidized senior developments are located in census blocks where the vast majority of the population is white.
25. The defendant County's policies and practices with respect to its use and development of County-owned real estate further cause, perpetuate and reinforce the racially and ethnically segregated housing patterns that persist in Nassau County. The County Government maintains, and for many years has persisted in maintaining, a policy and practice of disallowing County-owned properties located in predominantly white communities of Nassau County to be
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sold to housing developers who it knows or believes will build affordable and integrated multifamily housing opportunities (and/or has reached agreements as to redevelopment plans to prevent such development). By contrast, the County Government maintains a policy and practice of affirmatively promoting the sale of County-owned property in predominantly minority communities to developers of affordable multi-family housing, and it has done so with the purpose, intent or foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
26. Thirty-six years ago in January 1974, the U.S. District Court in Acevedo et al. v. Nassau County et al., expressly found that opposition to affordable and integrated housing in Nassau County is racially motivated:
By far, however, the most objectionable form of housing has been low-income family housing. It is clear from all the evidence that community opposition to this form of housing has been racially motivated. In Nassau County low-income family housing is predominantly occupied by Blacks. Proposals for the construction of this form of housing have incurred immediate and vehement opposition. As can be expected such heated opposition has not been ignored by the elected officials of Nassau. There is evidence of more than one housing proposal being dropped because of vehement community opposition. Acevedo et al. v. Nassau County et al., 369 F. Supp. 1384, 1389 (E.D.N.Y. 1974). 27. Notwithstanding, and with actual or constructive knowledge of, a judicial finding of this Court that community opposition to affordable multi-family housing is racially motivated, the County Government maintains, and for more than 36 years has maintained, the policy and practice of acquiescing in and impliedly consenting to neighborhood and community opposition to the development of affordable multi-family housing and other housing that provides integrated housing opportunities disproportionately needed by minorities or to proposed local laws or
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ordinances that would foster or permit such housing developments, and it has done so with the purpose, intent and foreseeable effect of perpetuating racial and ethnic housing segregation throughout Nassau County.
Garden City's History of Housing Segregation 28. Defendant Village has cooperated with, facilitated and affirmatively acquiesced in
the County Government's segregative policies and practices, including those that target the placement of non-age restricted affordable multi-family housing only in predominantly minority communities of Nassau County but not in predominantly white communities or in white residential enclaves like Garden City.
29. Garden City is, and has been for decades, a highly segregated, nearly all-white residential enclave, located near the center ofNassau County.
30. The population of Garden City is approximately 95% white; approximately 1% of the Garden City population is African-American.
31. The Village of Hempstead, which directly borders Garden City on the South, has a population of which approximately 84% are minority. Uniondale, which is located Southeast of Garden City, has a population of which approximately 79% are minority. The Village of Westbury, which is located Northwest of Garden City, has a population of which approximately 43% minority.
32. Defendant Village has continuously acted to reject and obstruct the creation of any affordable and integrated multi-family housing opportunities by engaging in exclusionary zoning practices, and it has done so with the purpose, intent or foreseeable effect of excluding
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minorities from residing within the borders of Garden City and thereby perpetuating racial and ethnic housing segregation in Garden City itself and throughout Nassau County, generally.
33. In or about April1989, developers of a 18-acre parcel previously owned by Doubleday & Co., Inc. located at 501 Franklin Avenue in Garden City ("Doubleday Site") proposed a plan to redevelop the Doubleday Site that would have included 51 units of affordable housing under then-current zoning ("Proposed Doubleday Site Development"). Faced with objections from Garden City residents, defendant Village rejected the Proposed Doubleday Site Development and adopted a plan that eliminated the possibility of an affordable housing development on the Doubleday Site.
34. Despite its opposition to the construction of affordable multi-family housing that would be likely to attract a significant proportion of minority residents, defendant Village has not blocked the development of other multi-family housing and apartment buildings that by their design are likely to be inhabited by predominantly white residents. For example, the Wyndham, completed in 1989, is a two building, 9-story complex consisting of 316 luxury condominiums and rental apartments on 12 acres ofland. The size and density of the Wyndham is significantly greater than the affordable, multi-family housing which faced staunch opposition in the present case. By its past actions, defendant Village has encouraged and permitted the building of luxury multi-family housing, like the Wyndham, in Garden City that it knew or should have known would be inhabited by only or virtually only white residents.
35. Upon information and belief, with actual or constructive knowledge that government-subsidized, multi-family unit housing is likely to attract a significant proportion of minority residents and provide an opportunity for racially integrated housing for residents of
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Garden City and the surrounding communities, the defendant Village has not permitted the construction of even a single instance of such housing within the boundaries of Garden City.
36. Consistent with and in furtherance of its policy of maintaining Garden City as, for all intents and purposes, an entirely white residential enclave within Nassau County, officials of defendant Village have engaged in open and notorious conduct to exclude minority persons from Garden City, its public parks, public streets and public schools. Examples of such conduct includes (1) in 1970, defendant Village denied, after receiving objections from Garden City residents, an application by the Unitarian Universalist Church to operate a daily day care center in Garden City to serve 35 children, most of whom would be African-American and from lowincome households in neighboring towns; (2) as was recently found by the New York State Attorney General's Office, defendant Village discriminatorily excludes minorities from using its public parks by regularly asking non-white, non-residents to leave the parks and permitting white non-residents to use its parks; and (3) numerous African-Americans have reported incidents of being harassed by Village police while walking, jogging, driving and shopping in Garden City. The Social Services Site: An Opportunity for Affordable Racially Integrated and Diverse Housing
37. In or about May 2002, the County Government began drafting a Real Estate Consolidation Plan ("Consolidation Plan"). The purpose of the Consolidation Plan was to inventory the approximately 2500 County-owned properties, to consolidate County Government operations, and to sell certain County-owned properties that would no longer be necessary for County Government operations.
38. Among the subjects of the Consolidation Plan was certain property located in Garden City known as the "Mineola Complex", which houses a courthouse, certain
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administration buildings, and parking facilities. Within the Mineola Complex is a parcel of approximately 25 acres ofland located at 101 County Seat Drive, Garden City, known as the "Social Services Site".
39. The 25-acre Social Services Site consists chiefly of21.44 acres located on the eastern side of County Seat Drive on which a social services building and a parking lot are situated, and an additional3.03 acres located on the Western side of County Seat drive on which the Old Laboratory Building and County Garage are situated.
40. Throughout its preparation of the Consolidation Plan, the Nassau County defendants consulted with the Garden City Board of Trustees to discuss the plans for the Mineola Complex and specifically for the Social Services Site.
41. The County Government issued its Consolidation Plan in December 2003 which called for, inter alia, the relocation of all the governmental operations then performed at the Social Services Site, and consolidating such operations with those performed at the County's facility in neighboring Uniondale. The Consolidation Plan further called for the sale of the Social Services Site to a private developer.
42. The defendant County requested the defendant Village's cooperation in rezoning the Mineola Complex, including the Social Services Site. At the time, the Social Services Site was zoned "P," that is to say, for public use. The County Government sought to rezone the Social Services Site to allow for non-governmental uses, which would facilitate the sale of the Social Services Site to a private developer. Throughout their planning of the rezoning and redevelopment of the Social Services Site, the County Government and the Garden City Defendants cooperated, facilitated, and coordinated their efforts.
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43. The defendant County knew or reasonably should have known that the Social Services Site presented a uniquely attractive opportunity to address the County's need for affordable integrated housing opportunities, since it was centrally-located, publicly-owned, wellserved by public transportation, situated nearby to uses compatible with affordable multi-family housing, including retail establishments and employment opportunities, and lacked barriers that the County has frequently identified as impediments to the development of affordable multifamily housing, such as land availability and willing developers. The Original Proposed Plan and Its Significant Housing Opportunities for Minorities
44. In response to the County Government's request, the Board of Trustees appointed a "P Zone Committee" to address issues relating to the Mineola Complex and hired planning consultants, the firm ofBuckhurst Fish & Jacquemart Inc. ("BFJ"), to assist the Garden City Defendants in drafting rezoning proposals in response to the County Government's plan to sell and redevelop the Social Services Site.
45. During 2003, Garden City's P Zone Committee and BFJ held public workshops to discuss the development of the Social Services Site.
46. During 2003 BFJ and the P Zone Committee also met with representatives of the County Defendants to discuss issues related to the County's proposed real estate consolidation, including among other things, the Village's future zoning of the Mineola Complex and the Social Services Site.
47. In its final proposal, BFJ recommended that a new zoning designation of"C0-5b" be used for the Social Services Site ("Proposed Zoning"). Under the Proposed Zoning, the CO-
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5b zoning would use existing residential multi-family zoning controls (commonly referred to as "R-M" zoning) and would allow single-family homes, townhomes and multi-family apartments.
48. Under the Proposed Zoning, and consistent with the existing R-M zoning, a multifamily dwelling would be subject, inter alia, to the following limitations: a maximum building height of 35 feet or two and a half stories; a restriction that the dwelling cover no more than 25% of the plot; a minimum of 25% of the plot must be open space; and the maximum number of multi-family housing units equal to one unit per 3000 square feet, or 14.5 units per acre. The Proposed Zoning therefore allowed for a maximum of 355 affordable multi-family units to be constructed on the 25-acre Social Services Site.
49. In its proposal, and in accordance with the Proposed Zoning, BFJ contemplated the construction of a 311-unit multi-family housing development on the Social Services Site ("Proposed Plan"), with each unit of sufficiently small size (approximately 1000 square feet per unit) and of sufficiently dense lot size as a whole so as to make it economically feasible for a developer of affordable multi-family housing to develop such housing.
50. The Proposed Plan as developed by BFJ expressly stated that the Proposed Zoning permitted the development of housing that fit well with existing uses around the Social Services Site, which sits in a transitional area between single-family houses, retail/commercial areas, public/governmental offices and multi-story parking garages.
51. Under the Proposed Plan, a developer could have constructed 311 affordable apartments and, therefore, could have created a substantial number of racially integrated housing opportunities disproportionately needed by minorities in Nassau County. The Proposed Plan represented a meaningful step forward towards attenuating the persistent racial and ethnic
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housing segregation that existed in Garden City, its surrounding communities and Nassau County. Neighborhood Opposition to the Possibility of Integrated Housing
52. On January 8 and February 5, 2004, the Garden City Defendants held hearings on the Proposed Zoning of the Mineola Complex and the Social Services Site.
53. During those public hearings, Garden City residents vociferously objected to the construction of affordable multi-family housing on the Social Services Site, and sought repeated assurances from Garden City Defendants and County officials present that no such affordable multi-family housing would be built on the Social Services Site. Upon information and belief, the public opposition was racially-motivated.
54. In accordance with its long-standing policy and practice, the defendant County acquiesced in neighborhood and community opposition to the development of affordable housing on the Social Services Site and cooperated with, facilitated, and affirmatively supported in the Village's segregative zoning policies and practices by assuring Garden City residents, during the public hearings and at other times, that the County would not take any action antagonistic to Garden City's wishes and by agreeing to act in concert with the Garden City Defendants to reject the Proposed Plan and to permit only luxury housing to be built on the Social Services Site.
55. In direct response to the aforementioned neighborhood and community opposition, the County Government, by its County Executive the Honorable Thomas R. Suozzi, acting consistent with and in furtherance ofthe County's long-standing policy and practice of acquiescing to neighborhood and community opposition of white residents to any housing developments likely to encourage or facilitate racially and ethnically integrated and diverse
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housing and acting, further, with conscious knowledge and awareness that affordable multifamily housing was actually needed in Nassau County and, in particular, those areas of Nassau County near to and around Garden City, gave express assurances that only luxury housing -- that is to say, housing that defendant County knew or should have known was likely to attract predominantly white residents -- would be allowed to be developed on the Social Services Site and gave as the reason therefor that given "the character of Garden City," only such housing "would be appropriate."
56. In June 2004, the defendant Village-- with the express and deliberate support, encouragement, acquiescence and consent of the defendant County-- rejected the Proposed Plan and Proposed Zoning, which had been recommended by its own planning consultants, and subsequently adopted an entirely new zoning classification for the Social Service Site, designated "R-T", which had not previously existed under the Village's proposed zoning ordinance ("Special Zoning").
57. The new Special Zoning adopted by the Village was unique to, and expressly limited to the Social Services Site. The Special Zoning imposed more severe restrictions on the construction of affordable multi-family housing than had theretofore existed under the "R-M" designation for residential multi-family zoning. Most importantly, the new Special Zoning imposed stringent and unique limitations on multi-family housing unlike those found elsewhere in the Village's zoning regulations and, by design or foreseeable effect, prohibited the development of and integrated housing on the Social Services Site.
58. The discriminatory Special Zoning permits multi-family dwellings only by special permission and only on a tiny sliver of the Social Services Site- namely, the 3.03 acre plot on
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which the Old Laboratory Building and County Garage were situated-- constituting less than 15% of the Social Services Site's 25-acre area. The discriminatory Special Zoning permits at the very most construction of only about 36 affordable multi-family housing units, as compared to the 311 units of affordable, multi-family housing that had been permitted under the Proposed Plan and Proposed Zoning.
59. Even if special permission were to be obtained, the exclusionary Special Zoning adopted by the Village for the Social Services Site decreases the maximum number of multifamily units permitted on the 3.03 acre sliver of the Social Services Site, thereby making it economically unfeasible for any affordable racially integrated housing units to be developed on the Social Services Site.
60. Under the exclusionary Special Zoning, even if special permission were obtained the maximum number of multi-family units permitted on the 3.03 acre sliver is only one unit per 4000 square feet, as compared to the Proposed Zoning and existing R-M zoning, which permitted one unit per 3000 feet.
61. The discriminatory Special Zoning requires that single family homes and townhouses on the Social Services Site must be constructed of such a significant lot size and minimum square footage that the only economically feasible development on the Social Services Site will be of luxury single-family homes and townhouses, which are housing units likely to attract and to be inhabited by predominantly white residents.
62. The Proposed Zoning was rejected and the Special Zoning was adopted by Garden City Defendants with the purpose, intent or foreseeable effect of preventing and
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excluding minorities from moving into the Village and the housing units to be constructed on the Social Services Site and into Garden City generally.
63. The reason asserted by defendants for rejecting the Proposed Zoning and adopting the Special Zoning was a concern with increased traffic and an increased burden on the school system from additional children that the Proposed Plan would cause.
64. The purported concern with increased traffic and an increased burden on the school system from additional children that the Proposed Plan would cause was not the real reason that the defendants rejected Proposed Zoning and adopted the Special Zoning.
65. Garden City's Defendants' own consultants projected that, assuming up to 355 apartments on the site, the impact on traffic would be negligible, or about a 5% increase in traffic during the evening and morning rush hour, given current traffic for the existing uses. Further, assuming 355 apartments at an average of 1000 square feet each, BFJ projected only an additional 89 school children.
66. The real reason for and foreseeable effect of the Garden City Defendants' decision to reject the Proposed Zoning and the Proposed Plan and to adopt the exclusionary Special Zoning was to prevent and curtail the availability of affordable, racially integrated housing in Garden City and to assure that the only housing allowed to be developed on the Social Services Site would be housing likely be inhabited by only or virtually only white residents.
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Nassau County's Promotion of and Consent To the Discriminatory and Exclusionary Special Zoning That Excludes Housing Opportunities for Minorities
67. With knowledge of the Village's discriminatory conduct in adopting the exclusionary Special Zoning, the County Government failed and refused to - and indeed supported and acquiesced in - those provisions and conditions of the Special Zoning that eliminated the opportunity for affordable, racially integrated housing on the Social Services Site. In May 2004, the County Government affirmatively informed the Village of its objections to certain other provisions and conditions of the Special Zoning. However, the County Government supported and acquiesced in Garden City Defendants' decision to block affordable and integrated housing opportunities on the Social Service Site.
68. The defendant County failed and refused to object to- and indeed acquiesced in and supported - certain provisions and conditions of Special Zoning that prevented or curtailed the availability of integrated housing- namely those limiting the permitted density of the housing units and the availability of multi-family housing- notwithstanding its belief that such provisions and conditions of the Special Zoning reduced the potential revenue from its sale of the Social Services Site and negatively affected the County Government's overall Consolidation Plan.
69. In or about July 2004, after the discriminatory Special Zoning was adopted, the County Government issued a Request for Proposals ("RFP") for the Social Services Site that set forth an asking price for the Social Services Site was $30 million.
70. Developers of affordable housing, including plaintiffNYAHC, were unable to respond to the RFP with a proposal that complied with the Special Zoning because the
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discriminatory Special Zoning made it economically infeasible to develop affordable housing given its limitations on permitted density. Immediately after Plaintiff NYAHC received the July 2004 RFP, NYAHC and a chapter ofNew York ACORN met with the County Government to present an alternative proposal for leasing the Social Services Site that would enable the County to meet its financial objectives while still providing affordable multi-family housing in Garden City. Promptly after that meeting, NYAHC sent financial information with respect to the proposal to County Government. During an August, 2004 meeting, County Government requested more information about the proposal, particularly with respect to the proposed lease payments. NYAHC promptly provided the requested information.
71. Under NYAHC's proposal, it would lease the Site from the County and develop multi-family housing containing both affordable and market-rate units. The rents for the affordable units would be below market and based on the tenant's income and family size as compared to the Nassau County area median income ("AMI"). For example, rent on a twobedroom apartment would be priced at $591 for families earning 30-40% of AMI, $760 for families earning 41-50% of AMI, $928 for families earning 51-60% of AMI, $1,182 for families earning 61-80% of AMI, $1,519 for families earning 81-100% of AMI, $1 ,857 for families earning 101-120% of AMI, and $2,195 for families earning 121-140% of AMI. The market-rate rent on a two-bedroom unit in the proposed development would be $2,500. NYAHC planned to fund the proposed development through tax-exempt bonds, the low income housing tax credit, and other subsidies, such as federal HOME funds, each of which is commonly used in the industry and has been previously used by NYAHC.
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72. NYAHC developed this proposal in consultation with architects and other developers. NYAHC's employees expended significant hours preparing the development proposal. Nonetheless, the County Government never responded to PlaintiffNYAHC's proposal.
73. After it submitted its proposal to County Government, NYAHC drafted an alternative development plan including multiple scenarios that would comply with the Proposed Zoning and under which NYAHC would purchase the Social Services Site from the County for no less than its $30 million dollars asking price. These alternative development plans provide for the construction of a multi-family housing development containing approximately 300 units, some of which would be affordable units for families with low and moderate incomes and others which would be market-rate units. Under this alternative plan, the affordable housing units would include one, two, and three bedroom rental apartments with an average size of 1000 square feet and average rents substantially similar to those contained in NYAHC's original proposal to the County Government. Some of these affordable housing units would be available for families receiving Section 8 housing assistance. NYAHC intended to fund this alternative plan through tax-exempt bonds, the low income housing tax credit, and other subsidies, such as federal HOME funds, each of which is commonly used in the industry and has been previously used by NYAHC. NYAHC again expended numerous hours preparing this alternative proposal.
74. Upon information and belief, other affordable housing developers in Nassau County are also interested in building multi-family affordable housing on the Social Services Site, but did not respond to the RFP because of the restrictive Special Zoning.
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Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 23 of 29 PageID #: 8620
75. Upon information and belief, the County has selected developer Myron Nelkin to develop the Social Services Site and to construct only luxury single family dwellings and townhouses likely to attract only or virtually only white residents, and unlikely to provide racially integrated housing opportunities.
76. The County Government and Mr. Nelkin do not propose to develop on the Social Services Site any affordable and integrated housing units in Garden City.
77. The development of the Social Services Site as currently contemplated by the County Government perpetuates and reinforces racial and ethnic housing segregation in Garden City and Nassau County.
78. Unless enjoined by this Court, the sale by the County of the Social Services Site will perpetuate and reinforce racial and ethnic housing segregation in Garden City and Nassau County. Injury To Plaintiff-Intervenor As Resulting from Defendants' Wrongful Conduct
79. Due to the defendants' ongoing discriminatory conduct and practices that perpetuate and reinforce housing segregation generally and limit availability of affordable integrated housing developments to predominantly minority communities in particular, PlaintiffIntervenor NYCC's members are being and, unless the relief herein requested is granted, will be, deprived of the opportunity to find suitable affordable housing located outside areas of minority concentration in the County.
80. Due to the defendants' ongoing discriminatory conduct and practices, NYCC members are being and, unless the relief herein requested is granted, will be deprived of the
23

Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 24 of 29 PageID #: 8621
opportunity to live in racially integrated communities and the associated benefits of interracial associations that come with such housing opportunities.
81. Due to the defendants' ongoing discriminatory conduct and practices, NYCC members do not have and, unless the relief herein requested is granted, will be deprived, access to basic public services in Garden City such as adequate law enforcement and public schools, available public parks, convenient public transportation, educational facilities and more expansive shopping areas located near the Social Services Site in Garden City.
FIRST CAUSE OF ACTION (Violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq.) 82. Plaintiff-Intervenor repeats and realleges the paragraphs 1 through 81 as if fully set forth herein. 83. Defendants' discriminatory practices, motivated by malice and/or callous disregard for the rights ofNYCC members, deprive Plaintiff-Intervenor's members of their right of equal access to housing, otherwise make housing unavailable, deprive plaintiff NYAHC of its right to make housing available and perpetuate segregation on the basis of basis ofrace, color, and national origin in violation of the Fair Housing Act, 42 U.S.C. §§ 3604(a), both by intent and impact.
SECOND CAUSE OF ACTION (Violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981) 84. Plaintiff-Intervenor repeats and realleges paragraphs 1 through 83 as if fully set forth herein. 85. Defendants' discriminatory practices, motivated by malice and/or callous disregard for the rights ofNYCC members, deprive Plaintiff-Intervenor's members of their right
24

Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 25 of 29 PageID #: 8622
to make and enforce contracts to purchase, lease, or otherwise hold or convey property, on the basis of basis of race, color, and national origin (and thus deprive them of the same such rights as are enjoyed by white persons) in violation of the Civil Rights Act of 1866, 42 U.S.C. §1981.
THIRD CAUSE OF ACTION (Violation of the Civil Rights Act of 1866, 42 U.S.C. § 1982) 86. Plaintiff-Intervenor repeats and realleges paragraphs 1 through 85 as if fully set forth herein. 87. Defendants' discriminatory practices, motivated by malice and/or callous disregard for the rights ofNYCC members, deprive Plaintiff-Intervenor's members oftheir right to purchase, lease, or otherwise hold or convey property on the basis of basis of race, color, and national origin (and thus deprive them of the same such rights as are enjoyed by white persons) in violation of the Civil Rights Act of 1866, 42 U.S.C. §1982.
FOURTH CAUSE OF ACTION (Violation of the Civil Rights Act of 1871,42 U.S.C. § 1983 and the Equal Protection
Clause of the Fourteenth Amendment to the Constitution of the United States) 88. Plaintiff-Intervenor repeats and realleges paragraphs 1 through 87 as if fully set forth herein. 89. Defendants' discriminatory customs, patterns, practices, and usage in contravention of the Individual Plaintiffs' and NYCC's constitutional and federal statutory rights motivated by malice and/or callous disregard for their rights, deprive the Individual Plaintiffs of their right of equal access to housing and deprive NYCC of its right to make housing available under color oflaw in violation of the Federal Civil Rights Act of 1871, 42 U.S.C. § 1983, and its
25

Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 26 of 29 PageID #: 8623
rights under the Equal Protection Clause of the United States Constitution with regard to housing.
FIFTH CAUSE OF ACTION (Violation of the "Affirmatively Furthering" Obligations Under the
Fair Housing Act, 42 U.S.C. § 3608)
90. Plaintiff-Intervenor repeats and realleges paragraphs 1 through 89 as if fully set forth herein.
91. In connection with their use of federal funds related to housing, including funds from the federal CDBG and HOME programs, the defendant County, used the funds received in a discriminatory manner which promotes residential segregation and otherwise failed to meet the "affirmatively to further" obligations of the Fair Housing Act.
SIXTH CAUSE OF ACTION (Violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.) 92. Plaintiff-Intervenor NYCC repeats and realleges paragraphs 1 through 91 as if fully set forth herein. 93. The County Government's discriminatory practices with regard to the administration of federal programs, including the federal CDBG and HOME programs, motivated by malice and/or callous disregard for the rights of Plaintiff-Intervenor, violate the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq.
PRAYER FOR RELIEF WHEREFORE, Plaintiff-Intervenor respectfully demands that this Court enter a judgment:
a) Declaring that defendants' acts, practices, and policies complained of herein violated and violate the rights ofPlaintif-Intervenor's members as secured by Fair
26

Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 27 of 29 PageID #: 8624

Housing Act, as amended, 42 U.S.C. § 3601 et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Civil Rights Act of 1866, 42 U.S.C. § 1982; and the "affirmatively furthering" obligations of the Fair Housing Act, 42 U.S.C. § 3608, and the Civil Rights Act of 1964, 42 U.S.C. §2000d et seq;

b) Enjoining defendants, their agents, employees, successors, assigns, and those acting in active concert, combination or participation with them, from engaging in any policies or practices that deprive plaintiffs of their rights secured by any and all of the statutes cited in sub-paragraph (a), above, including among other things:

(i)

Enjoining the Nassau County Defendants from

proceeding with any sale of the Social Services Site, or continuing with any plans

for redevelopment of the site, under the discriminatory Special Zoning;

(ii)

Enjoining the Garden City Defendants from enforcing

or attempting to enforce in any way the discriminatory or exclusionary provisions

of the Special Zoning;

(iii)

Ordering the Garden City Defendants to approve

zoning ordinances for the Social Services Site that are substantially the same as

the Proposed Zoning or that otherwise permit affordable housing;

(iv)

Ordering the Nassau County Defendants to issue a

Request for Proposals consistent with the Proposed Zoning and Proposed Plan or

consistent with zoning which otherwise permits affordable housing including

27

Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 28 of 29 PageID #: 8625

provisions that will require the development of affordable and integrated housing units at the Social Services Site;

(v)

Enjoining the Nassau County Defendants from selling

the Social Services Site to any person or developer that will not agree or commit

to building affordable and integrated housing units at the Social Services Site to

the maximum extent permitted under the Proposed Zoning;

(vi)

Ordering all defendants to take all actions necessary to

assure the redevelopment of the Social Services Site so as to maximize the

availability of affordable and integrated housing at the site, including taking such

steps as the Court deems necessary and appropriate to support and/or subsidize

such redevelopment;

(vii)

Enjoining the Garden City Defendants from granting,

and ordering the Garden City Defendants to withdraw, any permits, letters of

approval, or other consents allowing steps toward redevelopment of the Social

Services Site to continue;

(viii)

Enjoining all Defendants and their agents, employees,

successors and assigns, from engaging in any other discriminatory acts that

perpetuate or contribute to segregation in the Garden City and Nassau County;

and

(ix)

Ordering all Defendants to take and/or fund affirmative

steps, supervised by this Court, to overcome the effects of past discriminatory
28

Case 2:05-cv-02301-ADS-WDW Document 318 Filed 02/29/12 Page 29 of 29 PageID #: 8626

practices, including the funding of remedial activities necessary to overcome the perpetuation of segregation in Nassau County and Garden City;

c) Awarding such other relief as this Court deems reasonable, necessary andjust; and

action.

d) Awarding Plaintiff-Intervenor its costs and attorneys' fees in this

* * *

Dated: Washington, D.C. February 29, 2012

~:~~&~itt~c vice)
Linda Mullenbach (admitted pro hac vice) LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW Suite 400 Washington, DC 20005 (202) 662-8600
&
Frederick K. Brewington (FB 5295) Law Offices of Frederick K. Brewington 50 Clinton Street-- Suite 501 Hempstead, NY 11550 (516) 489-6959
Attorneys for Plaintiff-Intervenor New York Communities for Change andfor All Plaintiffs

29

 
 FILED CLERK

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X MHANY MANAGEMENT INC.,

12/6/2013 10:51 am
U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE

-and-

Plaintiff,

NEW YORK COMMUNITIES FOR CHANGE, INC.,

MEMORANDUM OF DECISION AND ORDER 05-CV-2301 (ADS)(WDW)

Intervenor-Plaintiff, -against-

INCORPORATED VILLAGE OF GARDEN CITY AND GARDEN CITY BOARD OF TRUSTEES,

Defendants. ---------------------------------------------------------X APPEARANCES:

Law Offices of Frederick K. Brewington Attorneys for the Plaintiffs 556 Peninsula Blvd. Hempstead, New York 11550
By: Frederick K. Brewington, Esq., of Counsel

Lawyers’ Committee for Civil Rights Under Law Attorneys for the Plaintiffs 1401 New York Avenue, NW Suite 400 Washington, DC 20005
By: Joseph D. Rich, Esq. Linda H. Mullenbach, Esq. Abigail E. Shafroth, Esq., of Counsel

Hogan Lovells US LLP Attorneys for the Plaintiff Mhany Management Inc. 875 Third Avenue New York, New York 10022
By: Stanley J. Brown, Esq. Peter J. Dennin, Esq. Chava Brandriss, Esq. Andrew J. Sein, Esq.he h Sarah J. Gregory, Esq.
1

Benjamin A. Fleming, Esq., Of Counsel
Cullen and Dykman, LLP Attorneys for the Defendants Incorporated Village of Garden City and Garden City Board of Trustees 100 Quentin Roosevelt Boulevard Garden City, NY 11530
By: James G. Ryan, Esq. Ariel E. Ronneburger, Esq. Thomas B. Wassel, Esq. Cynthia Ann Augello, Esq. Douglas J. Bohn, Esq. Jennifer A. McLaughlin, Esq., of Counsel
SPATT, District Judge.
In 2005, several individual plaintiffs and organizations commenced a lawsuit against the
County of Nassau, the Incorporated Village of Garden City (the “Village” or “Garden City”), and
the Garden City Board of Trustees. Briefly, the Plaintiffs allege that the Defendants
discriminatorily re-zoned two parcels of Nassau County-owned land that were located in Garden
City to prevent the building of low-and middle-income housing on that site. The Plaintiffs
further allege that this decision was part of a long-standing racially discriminatory policy
maintained by the Defendants. Based on these allegations, the Plaintiffs assert claims pursuant
to the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1982;
42 U.S.C. § 1983; and 42 U.S.C. § 2000d et seq. The Plaintiffs seek injunctive and declaratory
relief, costs, and attorneys' fees. In response, the Defendants deny any wrongdoing and assert
that they have no racially discriminatory policies.
Currently, only the corporate Plaintiffs, MHANY Management, Inc. (“MHANY”),
formerly known as New York ACORN Housing Company, Inc. (“NYAHC”) and the Intervenor-
Plaintiff New York Communities for Change, Inc. (“NYCC”), the practical successor to former
Plaintiff, the New York Association of Community Organizations for Reform Now (“New York
2

ACORN”), remain as plaintiffs. Also, the case against the County of Nassau was dismissed by a summary judgment decision and thus only the Incorporated Village of Garden City and the Garden City Board of Trustees (the “Garden City Defendants”) remain as defendants.
The Court has jurisdiction over this case pursuant to 42 U.S.C. § 3613 and 28 U.S.C. §§ 1343 and 2201. The Court conducted an 11-day bench trial commencing on June 17, 2013. Having considered the evidence and the arguments submitted at the trial and the written submissions of the parties, the Court concludes that the Plaintiffs have established the liability of the Garden City Defendants under (1) the FHA based on a theory of disparate treatment and disparate impact; (2) 42 U.S.C. § 1981; (3) 42 U.S. C. § 1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
This opinion will first state the Court’s findings of fact which will essentially be a history of the events leading to the subject zoning decision of the Village of Garden City. Next, the Court will briefly review the complicated procedural history of this case. Finally, the opinion will close with this Court's conclusions of law and choice of remedies.
I. FINDINGS OF FACT A. The Parties
MHANY is a not-for-profit community-based developer of affordable housing incorporated in New York and, at all times relevant to the allegations in the amended complaint was known as NYHAC. The former Plaintiff New York ACORN is a former local chapter of a nationwide nonprofit corporate entity that was called the Association of Community Organizations for Reform Now organized and existed under the State of Arkansas which disbanded in or about December 2009. NYCC is a non-profit entity formed in December 2009, and which intervened in this action on June 30, 2010.
3

The Village of Garden City is a municipal corporation organized under the laws of the State of New York. It is located in New York State in the County of Nassau. The Garden City Board of Trustees is an elected governing body in Garden City. B. The Racial Makeup of Nassau County and Garden City
The Plaintiffs’ expert Nancy McArdle, who conducted an analysis of racial change and segregation in Nassau County, testified that, as of the year 2000, the minority population share of the total population in Nassau County was 20.3%. McArdle defined minority as all persons identifying their ethnicity as Hispanic or African-American. The minority population in Garden City increased from 2.9% in 1980 to 4.1% in the year 2000. C. The Affordable Housing in Nassau County
Former Nassau County Executive Thomas Suozzi testified that a lack of affordable housing has been a problem in Nassau County. (Tr. at 977-78.). The parties defined affordable housing as that which is financially attainable – namely, no more than 30% of a household’s income is spent on housing – for households earning 80% or less of the Area Median Income for the Nassau-Suffolk Metropolitan Statistical Area. (Tr. at 493-94.)
In the year 2000, although only 14.8% of all households in Nassau County were AfricanAmerican or Hispanic, 41.4% of “very low” income elderly renter households in the County were African-American and Hispanic, as were 53.1% of “very low” income non-elderly renter households. (Tr. at 148.) In 2000, African-American people comprised 88% of the waiting list in Nassau County for Section 8 housing. (Tr. at 164-65.) “Section 8” housing refers to federally subsidized rental assistance paid to private landlords pursuant to Section 8 Housing Act of 1937, 42 U.S.C. § 1437f on behalf of low income renters.
4

D. The Racial Makeup of Garden City As of the year 2000, Garden City had a population of 21,672 people. Garden City is 5.3
square miles in size. In 2011-2012, Garden City contained the following types and numbers of residential dwelling places: Single-Family homes, 6,845, Condominiums, 410, Apartments or Co-ops, 691. (Tr. at 67.)
McArdle testified that, as of the year 2000, the percentage of minority population in Garden City was 4.1%, up from 2.9% in 1980. McArdle further noted that 61% of the Village’s African-American population was living in dormitories in 2000, and thus, excluding this population would significantly alter these statistics. If one examined only people living in households and not in dormitories in 2000, the minority population in Garden City was just 2.6% of the population, as opposed to the 4.1% stated above, and as compared to 15.3% of the County. (Tr. at 139.)
In 2000, 2.3% of the households in Garden City were headed by an African-American or Hispanic person, compared to 15.3% of the Nassau County households. (Tr. at 144-45.) If minorities comprised the same share of Garden City households as they did of Nassau County households, Garden City would have 1,333 African-American or Hispanic households, as opposed to the actual total of 167. E. The Affordable Housing Options in Garden City
Village Administrator Robert Schoelle testified that, to his knowledge, Garden City, unlike other parts of Nassau County, contained no affordable housing, nor does it to this day. (Tr. at 494.) Garden City has declined to join the Nassau County Urban Consortium, a group of
5

municipalities in Nassau County that are eligible to receive federal funding to support affordable housing development. (Tr. at 494.)
In May 2006, the County announced that it intended to sell a parcel of land, the Ring Road Site, located in Garden City for the purpose of developing affordable housing in Garden City and Nassau County. The County issued a Request for Proposals (“RFP”) for the purchase of the “Ring Road” site in Garden City. This was a mixed-use development which was characterized as “mixed income” and would have included affordably priced residential units. (Tr. at 1013.) However, Garden City residents expressed opposition to the construction of affordable housing in the community. To date, nothing has been built on the property. (Tr. at 658.) F. Evidence of Discriminatory Acts in Garden City
The Village Administrator Schoelle testified that, in 1989, a developer proposed constructing fifty one units of affordable housing at the former Doubleday & Co. site on Franklin Avenue in Garden City. The Garden City Defendants deny having any record indicating that any such application has ever been filed. In any event, the Plaintiffs contend that a building moratorium in Garden City in the late 1980s prevented such construction. Recently, a luxury development was approved for the Doubleday site. (Tr. at 645.)
In February 2004, ACORN released a study entitled “Whites Only” – which involved “actual testing” by sending “Caucasian testers and sending African[-]American or Latino testers into real estate companies and documenting the results of how they were treated, what they were given, what they were told.” (Tr. at 1268-72.)
In 2005, the New York State Attorney General determined that Garden City enforced a local requirement limiting the use of its parks to Garden City residents in a racially
6

discriminatory manner. In the wake of this investigation, Garden City adopted policies and procedures to ensure that local regulations were not enforced in a racially discriminatory manner. G. The County’s Real Estate Consolidation Plan
In May 2002, the County, under the leadership of then County Executive Suozzi, began drafting a Real Estate Consolidation Plan (the “Plan”). The purpose of the Plan was to identify what property the County needed to operate its government. The balance of the other properties that the County owned would be sold in order to maximize revenue to fund renovations for the County’s existing operations.
One of the properties considered under the Plan was a parcel of land located within the boundaries of the Village of Garden City in its Public or “P” Zone. This property encompasses numerous County buildings, including the Nassau County Police Headquarters and the County Executive Building. It also included the Nassau County Supreme Court building, the Social Services Building, and parking lot areas for the Court and the Social Services Building. The PZone did not permit residential housing. The entire parcel encompasses 84.76 acres. The portion of the “P” Zone site at issue in this case is an approximately 25 acre site which, currently and at all times relevant to the allegations in the amended complaint, houses the parking lots for the Supreme Court of Nassau County, the former Social Services building, a garage, an ancillary building, and additional parking facilities (the “Social Services Site”). The Social Services Site is property owned by the County. However, Garden City retained the right to zone the property.
The Social Services Site consists of 21.44 acres located on the eastern side of County Seat Drive, on which the Social Services building and a parking lot are situated, and an additional 3.03 acres located on the western side of County Seat Drive, on which are located a County owned building and parking garage. The County intended to sell the Social Services Site
7

to a private developer and aimed to maximize the sale value of the Social Services Site. In this regard, the County hoped to receive at least $30 million for the property. H. The Re-Zoning of the Social Services Site
In June 2002, at the County’s request, the Village created a sub-committee charged with retaining a planner and reviewing zoning options for the entire 84.76 acre P-Zone, including the Social Services Site (the “P-Zone Committee”). The P-Zone Committee consisted of Village Trustees Peter Bee, Peter Negri, and Gerard Lundquist. Trustee Bee was the chairman of the PZone Committee.
The Village also retained the firm of Buckhurst Fish and Jacquemart (“BFJ”) to provide a recommendation with regard to the rezoning of the Social Services site. Over the course of Garden City’s decades-long relationship with BFJ, the Village had come to respect BFJ’s work and generally adopted its recommendations. (Tr. at 230-31.) The Village also hired attorney John Kiernan to advise it on the rezoning process. (Tr. at 498.)
During the re-zoning process, Schoelle served as a liaison between the P-Zone Committee and the Board of Trustees. (Tr. at 1096.) The P-Zone Committee also kept Garden City’s four Property Owners Associations (“POAs”) apprised of the rezoning process. (Tr. at 490, 838-39.) The POAs, in turn, acted as liaisons between Garden City and the citizens who lived within their respective “jurisdictions.” (Tr. at 488-90.) The Social Services Site is located within the “jurisdiction” of the Eastern Property Owners’ Association. (Tr. at 490-91.)
On September 13, 2002, BFJ sent a facsimile to Garden City outlining the general planning principles for redevelopment of County properties in Garden City. These principles included that “[a]ny rezoning associated with the proposed development should be in accordance with the goals and parameters set forth in the zoning code [in Garden City].” (Tr. at 239.) In
8

particular, these principles provided that any development should “be consistent with the existing character and surrounding neighborhoods of Garden City”; “not overburden roads, utilities, and schools”; “be consistent with the surrounding neighborhood in terms of scale and design and with the densities permitted in the Zoning Code”; “not tend to depreciate the value of property in the village”; “be in accordance with the goals and parameters set forth in the Zoning Code”; and “protect[] . . . the environment [in terms of traffic, visual effects, or burdens on public facilities] . . . through compliance with the State Environmental Quality Review (SEQR).” (Tr. at 239-41.)
By memorandum dated November 15, 2002, entitled “Potential Approach to ‘P’ Zone Changes,” and addressed to the P-Zone committee, BFJ recommended that Garden City borrow from its already existing zoning regulations and apply something similar to the “CO-2” zone, allowing for commercial and office use, as well as residential use on the southern part of the property. (Plf’s Exh 386.) Specifically, BFJ suggested that the residential use include a maximum density of one unit per 2,300 square feet of area, which would permit as many as 440 units on the property.
By memorandum dated April 29, 2003, BFJ proposed to the P-Zone Committee the creation of a “CO-5(b)” zone for the Social Services Site and Co-5(a) zone for the remaining 63.32 acres of the P-Zone. BFJ also proposed applying “multi-family residential group” (“R-M”) zoning controls to the residential component of the proposed CO-5(b) zone. This would have allowed for up to 311 residential units to be built at the Social Services Site. The proposed R-M zoning controls also permitted the construction of multi-family housing.
In May 2003, BFJ again proposed R-M zoning to the P-Zone Committee, which contemplated single-family homes and apartments for the residential component of the Social
9

Services Site. The May 2003 report states that BFJ’s zoning proposal would “be likely to generate a net tax benefit to the Village.”
On May 29, 2003, BFJ made a PowerPoint presentation of the May 2003 Report to the Village at a public forum. Under the proposed zoning, single family homes and apartments would be permitted at the Social Services Site. At the forum, several residents expressed concern about the impact of 311 residential units on traffic and the schools.
In July 2003, BFJ issued a revised version of its study, which again included the proposal that Garden City zone the Social Services site under the “CO–5 zone, which would permit residential development of either 311 apartment units or approximately 75 single-family homes.” Responding to some of the residents’ concerns, the July 2003 report states that “[t]here would be a smaller number of school children generated by the new development than with the development of single-family homes.” At this time, the P-Zone Committee “adopted [BFJ’s] final report for recommendation to the Village Trustees” containing the proposed R-M zoning. (Tr. at 281.)
In September 2003, BFJ issued a draft Environmental Assessment Form (“EAF”). The EAF proposed that R-M zoning controls be used for the residential component of the Social Services Site. The EAF concluded that the proposed zoning “will not result in any large and important impact(s) and, therefore, is one which will not have a significant impact on the environment, therefore a negative declaration will be prepared.” (Tr. at 288-290.) Specifically, according to the EAF, multi-family housing at the Site would: (1) not “result in the generation of traffic significantly above present levels” (Tr. at 290.); (2) have a minimal impact on schools. (Tr. at 299-300.); (3) create a transition zone between the surrounding single-family and office uses; (4) maximize existing zoning tools; (5) respect the character of surrounding neighborhoods;
10

and (6) have positive aesthetic impacts. (Tr. at 301.) The impacts of the proposed zoning were so minimal that a full Environmental Impact Statement was not required. (Tr. at 289.) Frank Fish of BFJ and Superintendent of the Garden City Buildings Department Michael Filippon agreed with the conclusions reached in the EAF. (Tr. at 1720-1721.)
On October 17, 2003, a notice was placed in the Garden City News entitled, “Tell Them What You Think About the County's Plan for Garden City,” which stated:
Where is the Benefit to Garden City? Are We Being Urbanized? . . . The County is asking the Village to change our existing zoning – P (Public use) ZONE – to allow the County to sell the building and land . . . now occupied by the Social Services Building, to private developers. Among the proposed [sic] plans: Lowdensity (high-rise?) housing – up to 311 apartments . . . These proposals will affect ALL of Garden City. (Plf’s Exh. 45.) On October 23, 2003, at a second public forum, BFJ made another PowerPoint presentation to the Village summarizing the Co-5b zoning, including the R-M zone for the residential component. In November 2003, BFJ presented its third report to the P-Zone Committee, again confirming its proposal for the R-M designation that allowed for a possible 311 apartment units on the Social Services site. The November 2003 report set forth a draft zoning text for the CO5B district and R-M controls for the residential component of the Social Services Site. On November 20, 2003, the Board accepted the P-Zone Committee’s recommendations. (Tr. at 514-15.) On December 4, 2003, the Board made a finding pursuant to New York's State Environmental Quality Review Act that the zoning incorporated in the proposed Local Law 12004 would have “no impact on the environment” and moved the law to a public hearing. Local Law 1-2004 would create a new CO-5b zone which would include the Social Services Site,
11

allowing residential use as well as office and courtroom use. The residential use in the new CO5b zone would allow both single family as well as multi-family units at the Social Services Site.
On January 8, 2004, Garden City held a public hearing for the purpose of considering Local Law 1-2004. At the hearing, residents voiced concerns that multi-family housing would generate traffic, parking problems, and school children. In response, Filippon stated “If I could just add on this point of traffic . . . You have to remember that the existing use on that site now generates a certain amount of traffic, a fair amount of traffic. That use is going to be vacated. The two residential uses that are being proposed as one of the alternates, each of which on their face automatically generate far less traffic than the existing use. That is something to consider also.” (Joint Exh. 24, at 875.)
On January 20, 2004, the Eastern Property Owners Association held a meeting at which Trustee Bee discussed BFJ’s recommendation for the Social Services Site. A summary of the meeting reports that “Trustee Bee answered many questions from the floor” and, in doing so, expressed the opinions that “Garden City demographically has a need for affordable housing” and that “he would keep an open mind but he still felt the recommended zoning change were appropriate.” (Pls.' Ex. 147.) Although Suozzi did not attend the January 20, 2004 meeting, he met with the Trustees earlier that evening to discuss the most recent plans for the Social Services Site. The summary states that “Suozzi was reminded that he pledged not to do anything that Garden City residents objected to. Mr. Souzzi's [sic] commitment still stands.” (Id.)
On February 5, 2004, Suozzi attended a public hearing for the residents of Garden City at which time he presented the Plan. At the hearing, one resident asked whether Trustee Bee’s statement “last time” about affordable housing was true. (Joint Exh. 12, at 905.) Trustee Bee responded that “neither the County nor the Village is looking to create a so-called affordable
12

housing at that spot.” An unidentified speaker then asked whether Trustee Bee could “guarantee” that the housing on the Social Services Site would be “upscale” rather than affordable and expressed concerns about multi-family housing “depress[ing] the market.” (Id. at 906)
The residents further voiced their opposition to multi-family housing at the Social Services site. Id. at 918 (“Brian Gemmel” [to Suozzi]: “I don't think you are hearing a lot of the people. We're not against residential, we're against multi-level residential.”); id. at 921 (“Suozzi: You would probably like to see single family housing I presume. Unidentified Speaker: Single family. (Applause).”); id. at 921-922 (“Gail Madigan: I moved here from Brooklyn so that when I walked out of my house I did not turn to my left and see apartment buildings.”); id. at 922 (“Suozzi: Mayor out of respect, let me stipulate the facts here. The public of Garden City especially from the eastern civic association does not want to see multi-family housing here. They'd rather see single-family housing.”); id. at 923 (“David Piciulo: I don't hear a compelling argument from anyone here tonight as to why we should have multi-dwelling homes. Can we take it out of the proposal?”)
Similarly, one resident urged officials to adopt zoning “in the flavor and character of what Garden City is now.” (Id. at 912.) Residents further objected to “full families living in one bedroom townhouses, two bedroom co-ops,” resulting in “overburdened and overcrowded” schools and “overrun” sanitation, a “multi-housing community . . . [with] four people or ten people in an apartment,” and “that whole section of people” who use the bus to access the Department of Social Security. (Id. at 912, 929, 944.)
13

However, Suozzi clarified that the County is “absolutely not interested in building
affordable housing there and there is a great need for affordable housing, but Garden City is not
the location.” (Id. at 905.) He further stated that developers
would love to build upscale housing in Garden City. . . . We would be willing to put deed restrictions on any property that we sold. The Village would have control of their zoning requirements. We would put on restrictions whatsoever, no ifs ands or buts, that it can't be anything but upscale housing. Put it this way, we generate more revenues for the County by selling it for upscale housing.
(Id. at 906.) Also, at one point, Suozzi stated bluntly that a resident’s concern about traffic was
“irrational.” (Id. at 908.) Fish testified that residents who claimed to prefer single-family homes
because of school impacts were “simply wrong.” (Tr. at 316.)
Thereafter, a flyer distributed in Garden City asked: “WILL GARDEN CITY
PROPERTY VALUES DECREASE IF OVER 300 APARTMENTS ARE BUILT AT THE
SITE OF THE SOCIAL SERVICES BUILDING?” It further stated:
The Garden City Trustees are close to voting on how to zone this property. They might choose to zone it for multi-family housing (If Senator Balboni's current bill passes in June, as many as 30 of those apartments would be considered ‘affordable housing.’ According to this bill, ‘Affordable workforce housing means housing for individuals or families at or below 80% of the median income for Nassau Suffolk primary metropolitan statistical area as defined by the Federal Department of housing and urban development.’ . . . NOT JUST GARDEN CITY INCOMES! . . .)
(Pls.' Ex. 17.) The flyer reached Schoelle, who faxed it to Fish and at least one member of the
Board of Trustees. (Tr. 662-63.) The record reflects that the flyer was brought to Trustee
Lundquist’s attention as well. (Tr. at 767-68.) On the other hand, Trustee Negri claimed that he
had never seen nor had any conversations about this flyer. (Tr. at 1080-81.)
At a Board meeting on March 18, 2004, residents raised concern about the Balboni Bill.
Schoelle’s notes from that meeting indicate that residents expressed concern that
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the Balboni Bill might apply “retroactive[ly].” (Tr. 551-553.) One resident urged decisionmakers to “play it safe” with respect to the Balboni Bill and “vote for single family homes.” (Tr. at 550.) The following month, Trustee Negri told residents at a Central Property Owners Association meeting that he and other Village officials met with state representatives to discuss the Balboni Bill, noting that a family of four making $67,000 per year would qualify for housing under the proposed legislation. (Plfs’ Exh. 379, at 522.)
Fish testified that, by the spring of 2004, the public was beginning to have an influence on the decision-making process. (Tr. at 331, 333-34.) On April 1, 2004, BFJ modified its zoning proposal to reduce office density, minimize traffic impacts, and to lower the number of multifamily units to reduce population numbers. (Tr. at 1670-1673.)
On April 22, 2004, BFJ made a PowerPoint presentation to the Village residents. Under the proposed zoning contemplated by this presentation, single-family homes and apartments would be permitted at the Social Services Site. However, this time, only 215 apartments would be permitted.
By memorandum dated May 4, 2004 and addressed to the Board, BFJ proposed eliminating the CO-5b zone altogether, and with it, the potential for multi-family housing on the 21.44 acres of land of the Social Services located east of County Seat Drive. Specifically, BFJ stated:
[W]e reviewed the public comments with Robert Schoelle, Michael Filippon and [Garden City counsel] Gary Fishberg. Based upon these discussions we would recommend for your consideration two basic refinements to the recommendations: (1) Elimination of office use for the 101 County Seat Drive area; (2) Provide for multi-family housing in the 101 County Seat Drive area only by special permit and limited to the West Side of County Seat Drive. (Joint Exh. 19.) BFJ suggested renaming the proposed zoning designation as “Residential–Townhouse” (“R–T”), which essentially limited the development of multi-
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family housing to less than 15% of the Social Services site, and only by special permit. BFJ's proposed description of the R-T zone defined “townhouse” as a “single-family dwelling unit.”
In May 2004, BFJ issued its final EAF, which proposed a R-T district to replace the previously proposed CO-5b District. No draft EAF was ever issued for the R-T Zone, even though Fish affirmed that the R-T zoning proposal was a significant change to the Co-5b zoning proposal with R-M controls. (Tr. at 341.)
On May 20, 2004, proposed Local Law No. 2–2004, which deleted the P–Zone and replaced it with CO–5 and R–T districts, the latter of which encompassed the Social Services site, was considered at a public hearing. There, a member of the New York ACORN expressed concern about the need for affordable housing on Long Island and asked that Garden City consider building affordable housing in their community. Indeed, responding to an inquiry regarding multi-family housing with a special permit under R–T zoning, Fish stated that “[t]he P Zone Committee had been considering this and the Trustees on the entire site, it wasn't an after thought. This was, this was a conscious decision . . . there was a concern that if the whole 25 acres were developed for multifamily it would generate too much traffic . . .” (Joint Exh. 25, at 35.)
At the hearing, Fishberg explained that the required referral to the Nassau County Planning Commission (the “NCPC”) had already been made, and that the NCPC would be addressing the new law the following week. (Joint Exh. 25, at 25.) ACORN members subsequently attended the NCPC meeting and again expressed opposition to the R-T zoning. (Tr. at 1288-89.) At the same time, NYAHC sent a letter to the NCPC strongly
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opposing R-T zoning and warning that the new zone would “ensure that developers cannot create affordable multi-family housing.” (Plf’s Exh. 156, at 467.) I. Garden City adopts the R-T Zone for the Social Services Site
On June 3, 2004, Garden City adopted the new R-T zoning and the Social Services Site was rezoned R-T. As enacted, Local Law No. 2–2004 limited construction on the Social Services site to one dwelling unit for each 6,000 square feet of total plot devoted to such use.
In July 2004, the County issued a Request for Proposals (the “County’s RFP”) concerning the Social Services Site under the R-T zoning designation. The RFP stated that the County would not consider bids of less than thirty million dollars. The County’s RFP required that all proposals be received on September 10, 2004 before 12:00 noon.
The Plaintiffs assert that under this RFP, it would have been virtually impossible to build affordable housing and, therefore, it would have been futile for them to submit an affordable housing response to the RFP that complied with the new zoning. Indeed, Ismene Speliotis, Executive Director of NYAHC/MHANY, analyzed the R-T zoning at that time and concluded that it was not financially feasible to build affordable housing under those zoning restrictions at any acquisition price. (Tr. 1470-75.) Suozzi concurred with that assessment. (Tr. at 1036.)
Thus, NYAHC contacted the County to work on a proposal that would include multifamily affordable housing, and urged the County to withdraw or modify the RFP to require some part of the property to be affordable housing. NYAHC and New York ACORN met with Suozzi and other County officials to discuss the proposal and the possibility of constructing affordable housing on the Social Services site. However, the County did not reissue the RFP. J. NYAHC submits a Bid
On September 10, 2004, NYAHC submitted a “protest” proposal to the County for
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development of the Social Services Site that did not conform to the technical requirements set forth in the RFP. Specifically, the NYAHC proposal contemplated NYAHC leasing the Social Services Site from the County, with an upfront payment of $5 million. However, the NYAHC proposal did not utilize R-T zoning. Rather, the proposal contemplated a development of 2,000 apartment units, of which about two-thirds would be at below market rents for families making between 40% and 120% of the Nassau County median income, and 35% would be at market rents (Joint Exh. 29). The Plaintiffs maintain that NYAHC’s proposal did not follow the specifications laid out in the RFP because the RFP made the construction of affordable housing on the Social Services site virtually impossible. Specifically, NYAHC's proposal stated:
As the County knows from previous meetings, telephone conversations and correspondence with NYAHC and LI ACORN, NYAHC is unable to respond to the County's Request for Proposals (RFP) of July 2004 related to the 25 Countyowned parcel in Garden City (the Parcel) due to the restrictive zoning adopted by the Village of Garden City in connection with the County's sale of the Parcel. (Id.) The County ultimately awarded the contract to develop the Social Services Site to Fairhaven Properties, Inc. (“Fairhaven”) for $56.5 million, the highest bid. After the contract was awarded to Fairhaven, NYAHC prepared four proposals for development at the Social Services site under the R–M zoning designation, with the percentage of affordable and/or Section 8 housing units of the 311 total rental units ranging from 12.5% to 25%. McArdle evaluated each proposal in conjunction with the racial/ethnic distribution of the available pool of renters and determined that, had NYAHC been able to building housing under any of the four proposals in accordance with the rejected R–M zoning designation, the pool of renters likely to occupy all units, including market rate, affordable and Section 8 units, would have likely been between
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18% and 32% minority with minority-households numbering between 56 and 101. (Tr. at 157.)
McArdle further analyzed the likely racial composition of the pool of homeowners who could afford to purchase units potentially developed by Fairhaven based on their proposal as well as available information regarding Garden City property values. She determined that between 3 and 6 minority-households could afford such a purchase. (Tr. at 169.) In this regard, McArdle testified that whereas the NYAHC proposals would likely increase racial diversity in Garden City, the Fairhaven proposal would likely leave the racial composition of Garden City “unchanged” (Tr. at 182.)
However, McArdle admitted that she was not attempting to predict who would actually live in any development at the Site. (Tr. at 203-04.) Nor did McArdle conduct any analysis under the R-T zoning actually enacted, concerning the development of potential affordable housing, or market-priced housing using 150 townhomes and 36 multifamily units. (Tr. at 189.) K. Current Status of the Social Services Site
On January 1, 2010, Suozzi was succeeded by the present County Executive Edward P. Mangano. The Mangano Administration decided to relocate the County's Family Court building, currently located in Westbury, New York, to the Social Services site. The transaction with Fairhaven never closed. Thus, although the prior County administration planned to sell the Social Services site to a private developer, the site is currently no longer for sale. The Plaintiffs contend, and Garden City does not dispute, that the County has since taken no action at the Site.
II. PROCEDURAL HISTORY On May 12, 2005, ACORN, NYAHC, and several individual Plaintiffs filed the instant action, which was initially assigned to United States District Judge Leonard D. Wexler. The
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Plaintiffs asserted claims pursuant to the “FHA”, 42 U.S.C. § 3601 et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1982; 42 U.S.C. § 1983; and 42 U.S.C. § 2000d et seq. On February 9, 2006, this case was reassigned to United States District Judge Joseph F. Bianco. On March 10, 2006, the County, and the Garden City Defendants moved separately to dismiss the action for lack of standing and failure to state a claim.
By Memorandum and Order dated July 21, 2006, Judge Bianco denied both motions in their entirety and directed the parties to conduct discovery in accordance with the Individual Rules of United States Magistrate Judge William D. Wall. See ACORN v. County of Nassau, No. 05 Civ. 2301(JFB)(WDW), 2006 WL 2053732 (E.D.N.Y. July 21, 2006). In March 2009, both the County Defendant and the Garden City Defendants moved for summary judgment.
On March 2, 2010, Judge Bianco recused himself in this case. Thereafter, the case was reassigned to this Court for all further proceedings. Consequently, all pending motions were denied without prejudice and with leave to refile in accordance with this Court's individual motion practice rules.
On April 14, 2010, NYCC filed a motion to intervene as a plaintiff pursuant to Federal Rule of Civil Procedure 24(b), which the Court subsequently granted on June 15, 2010, 270 F.R.D. 123 (E.D.N.Y. 2010). On June 30, 2010, NYCC filed its intervenor complaint. On June 25, 2010, Magistrate Judge Wall granted the Plaintiffs’ request to reopen discovery.
On July 29, 2011, motions for summary judgment were again filed by both the Garden City Defendants and the County. In addition, on August 26, 2011, NYCC filed a motion to amend its intervenor complaint pursuant to Rule 15(a)(2) to include an additional cause of action for violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and its rights under the Equal Protection Clause of the Fourteenth Amendment.
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By Memorandum and Order dated February 15, 2012, the Court (1) granted the County's motion for summary judgment dismissing all the claims against it; (2) denied Garden City’s motion for summary judgment dismissing all claims against it; and (3) granted NYCC’s motion to amend the intervenor complaint. MHANY Mgmt. Inc. v. Cnty. of Nassau, 843 F. Supp. 2d 287 (E.D.N.Y. 2012).
Prior to the trial, the claims of the Individual Plaintiffs Vic DeVita and Francine McCray were dismissed with prejudice. (Docket Entry No. 378, Tr. at 5.) Thus, at the trial, the only remaining Plaintiffs were MHANY and NYCC, and the only remaining Defendants were the Garden City Defendants, namely the Incorporated Village of Garden City and the Garden City Board of Trustees. The only remaining causes of action were the claims under (1) the FHA; (2) 42 U.S.C. §§ 1981, 1982, and 1983, and (3) the Equal Protection Clause of the Fourteenth Amendment. The claim under 42 U.S.C. §2000d had been asserted only against the County. On June 17, 2013, the Court commenced a bench trial that spanned 11 days.
III. CONCLUSIONS OF LAW A. Is the Garden City Board of Trustees Subject to this Lawsuit?
The Garden City Defendants argue for the first time that the Board of Trustees is not a suable legal entity separate from the Village. In support of this assertion, the Garden City Defendants rely on Glacken v. Inc. Vill. of Freeport, CV 09-4832 (DRH)(AKT), 2011 WL 7546425 (E.D.N.Y. June 27, 2011), report and recommendation adopted, 09 CV 4832 (DRH)(AKT), 2012 WL 895392 (E.D.N.Y. Mar. 15, 2012). There, United States Magistrate Judge A. Kathleen Tomlinson found that “[a]lthough no cases conclusively hold that a board of directors of a village is not a suable entity or is redundant when the village is also a named defendant, the Court finds that the relevant case law supports such a conclusion.” 2011 WL
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7546425, at *2. Judge Tomlinson determined that cases that have barred suits against a city or village police department as opposed to the municipality itself apply with full force to suits against the Board, here, an administrative arm or governing body of the Village.
Although the Court finds Glacken persuasive as a logical conclusion, the Court declines to dismiss the Board of Trustees where, as here, the Garden City Defendants failed to previously raise this issue. Indeed, the Glacken court dismissed the Board of Directors at the motion to dismiss stage. Id. at *1 (“no evidence has been offered to support the propositions that the Board is a suable entity or that the naming of the Board as a party is not duplicative of the Village being named as a party.”)(emphasis added).
Here, by contrast, the Court heard no proof regarding whether the Board is a separate legal entity from the Village. Although, in all likelihood, any recovery against the Board would be the obligation of the Village, the Court declines to dismiss the Board without any evidence or further notice to NHYAC and NYCC. Also, absent relevant case law, the Court declines to find non-waivable the defense that a Board of Trustees of a Village is not a suable entity separate from the Village so that the Court is obligated to consider this newly-raised argument. B. As to the Article III Standing of the Plaintiffs
Under Article III of the United States Constitution, standing to bring a lawsuit in federal court is limited to a plaintiff who “show[s] that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.” Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004); see also Ziemba v. Rell, 409 F.3d 553, 555 (2d Cir. 2005). Further, among other standing requirements, “a plaintiff's alleged injury must be an invasion of a concrete and particularized legally protected interest.” McConnell v. Fed. Election Comm'n, 540 U.S. 93, 227, 124 S. Ct. 619, 157 L. Ed. 2d
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491 (2003) (opinion of Rehnquist, C.J., for a majority of the court); see also Ziemba, 409 F.3d at 554.
A plaintiff alleging “exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court's intervention.” Warth v. Seldin, 422 U.S. 490, 508, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Jaimes v. Toledo Metropolitan Hous. Auth., 758 F.2d 1086, 1097 (6th Cir. 1985). The harm does not have to be economic, indeed, of relevance here, “an interest in making suitable low-cost housing available in areas where such housing is scarce” can “support a plaintiff's standing.” Vill. of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 262-63, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977).
In Fair Housing in Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357 (2d Cir. 2003), the Second Circuit held that “to demonstrate the type of ‘particularized injury’ necessary for standing [in alleged discriminatory zoning cases,] plaintiffs ‘must allege facts from which it reasonably could be inferred’ that, absent defendants' challenged conduct, there is a ‘substantial probability’ that housing with greater minority occupancy would have been built in the [town].” Id.at 363 (quoting Warth, 422 U.S. at 504, 95 S. Ct. 2197, 45 L. Ed. 2d 343). Although the government has no constitutional duty to provide low income housing, it may not obstruct “private projects beneficial to minority groups.” Acevedo v. Nassau County, 500 F.2d 1078, 1080-81 (2d Cir. 1974),
At the motion to dismiss stage, the Court found that the Plaintiffs properly plead standing. However, “it sometimes remains to be seen whether the factual allegations of the complaint necessary for standing will be supported adequately by the evidence adduced at trial.” Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 115 n. 31, 99 S. Ct. 160160 L. Ed. 2d 66
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(1979); see also Alexander v. Yale Univ., 631 F.2d 178, 183 (2d Cir. 1980)(“It is also mandatory that [these elements] must be satisfied throughout the course of adjudication by the courts.”) Accordingly, the Court now addresses the Garden City Defendants’ arguments challenging the Plaintiffs’ Article III standing.
1. NYAHC/MHANY At the motion to dismiss stage, the Garden City Defendants contended that NYAHC
lacked standing because it failed to allege that it attempted in any way to acquire a permit, submit a bid, or communicate with the Defendants regarding the RFP for the Social Services Site. Judge Bianco rejected this argument, noting that NYAHC alleged that immediately after receiving the RFP, NYAHC met with County officials and submitted a Proposed Plan, only to have the County ignore the Plan. Judge Bianco observed that while no formal proposal or financing had been reviewed by the Garden City Defendants, “these types of uncertainties always exist in housing development cases, and should not be used as a means to defeat standing.” 2006 WL 2053732, at * 10. Judge Bianco further noted that “[t]he law of standing is not so rigid so as to deny a developer standing, no matter how significant the ‘injury in fact,’ merely because it failed to submit a non-conforming proposal, knowing it will be summarily rejected.” Id. at *9.
The Garden City Defendants now contend that NYAHC failed to prove at the trial the necessary elements of standing, asserting that the Plaintiffs have offered no evidence that NYAHC would have submitted a qualifying bid for the Social Services Site but for the Village’s zoning decision. The Garden City Defendants also note that the “protest” proposal NYAHC submitted to the County was admittedly not “serious” and it did not comply with the terms of the RFP or CO5b zoning.
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In response, NYAHC cites to testimony by Ismene Speliotis that NYAHC would have bid on the property had it been available in 2004 under the R-M designation. NYAHC also cites the four alternative development scenarios created by Speliotis to assess the feasibility of affordable housing at three different land-acquisition costs for which NYAHC could have obtained funding.
In the Court’s view, NYAHC proved injury in fact at the trial notwithstanding that it did not submit a proposed bid during the RFP process. In this regard, NYAHC proved “that submitting its admittedly non-compliant proposal in response to the RFP would have been futile because the [shift to R-T zoning] made it financially impossible to build low income housing on the Social Services Site.” ACORN v. Cnty. of Nassau, 2006 WL 2053732, at *9; LeBlanc– Sternberg v. Fletcher, 67 F.3d 412, 424-25 (2d Cir. 1995) (holding that the plaintiff had standing to bring an FHA claim challenging an ordinance, even before the government entity had applied the ordinance against the plaintiff). To be sure, whether the shift to R-T zoning was discriminatory in nature under federal law presents a question, distinct from the issue of standing, which issue will be addressed later.
The Garden City Defendants further contend, without authority, that the Plaintiffs must establish that a bid for affordable housing at the site under CO5b zoning would have been successful. However, first, “a court is not required to engage in undue speculation as a predicate for finding that the plaintiff has the requisite personal stake in the controversy.” Vill. of Arlington Heights, 429 U.S. at 261-62, 97 S. Ct. 555, 561, 50 L. Ed. 2d 450. Second, one of alternatives Speliotis projected contemplated a $56.1 million purchase price, which would have been directly competitive with the winning bid. (Joint Exh. 28 at 696, Plfs Exh. 179.)
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Finally, the Garden City Defendants assert that because the Plaintiffs’ inability to benefit from affordable housing on the Site was not caused by the Village, the Plaintiffs cannot show that any remedy against the Village would redress that injury. However, the Court finds this argument unavailing because the shift to R-T zoning by the Village, whether discriminatory or not, caused injury to NYHAC because, as explained later, the high cost to develop single-family housing under R-T zoning made it financially impossible to build low income housing on the Site.
2. NYCC At the motion to dismiss stage, Judge Bianco determined that the Plaintiffs sufficiently
alleged that members of ACORN, which asserted claims only on behalf of its members rather than itself, had an injury in fact and that the Defendants discriminatorily changed the proposed zoning, thereby preventing NYAHC from being able to build multifamily affordable housing on the Social Services site. Subsequent to Judge Bianco’s order denying the motion to dismiss and, after ACORN disbanded, NYCC intervened in this action, as a practical but not legal successor, to ACORN.
The Garden City Defendants now challenge NYCC’s standing. To have standing to bring suit to redress its members' injuries, an association must establish that (1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization's purpose, and (3) neither the claim nor the relief requested requires the participation of individual members in the lawsuit. See United Food & Commercial Workers Union Local 751 v. Brown Group, 517 U.S. 544, 552–53, 116 S. Ct. 1529, 134 L. Ed. 2d 758 (1996).
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The Court finds that the Plaintiffs proved that NYCC’s members would have been eligible for and would have an interest in obtaining affordable housing in Garden City. (Tr. at 1228, 1432.) Indeed, Ann Sullivan, one of NYCC’s deputy directors, testified that ACORN members, many of whom subsequently became NYCC members, desired to live in affordable housing in Garden City and provided the names of three such members. (Tr. at 1372-73.) Further, the fact that NYCC intervened after the County decided not to sell the Social Services Site is immaterial to NYCC’s associational standing because the injury NYCC’s members suffered allegedly occurred previously when the Board shifted from R-M zoning to R-T zoning. C. As to the Statutory Standing of the Plaintiffs
In addition to challenging the constitutional standing of the Plaintiffs, the Garden City Defendants argue, apparently for the first time, that the Plaintiffs, as corporate entities, lack statutory standing to bring an action under 42 U.S.C. § 1982.
Section 1982 provides that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” Unlike §§ 1981 and 1983 which apply to “persons,” § 1982 protects the property rights of “citizens of the United States.”
Here, the Garden City Defendants argue that Section 1982 permits actions by “citizens” and that corporations are not “citizens.” In support of that assertion, the Garden City Defendants cite Comtel Technologies, Inc. v. Paul H. Schwendener, Inc., 04 C 3879, 2005 WL 433327 (N.D. Ill. Feb. 22, 2005). Prior to that case, some courts presumed that corporations could bring § 1982 claims, see e.g., Park View Heights Corp. v. City of Black Jack, 467 F.2d 1208, 1214 (8th Cir. 1972)(allowing corporate plaintiffs standing to bring claims under both § 1981 and § 1982). However, some courts presumed that they could not bring such a claim, see e.g., American Civil
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Rights Investigations, Inc. v. O'Connor & Tushla, 1989 U.S. Dist. LEXIS 17771, at *4 (W.D. Mich. 1989)(dismissing plaintiff corporation's § 1982 claim because only citizens have claims under the statute). Also, as to this subject, the Comtel court observed that “no court ha[d] provided much analysis of the issue.” Comtel, 2005 WL 433327 at *5. In Comtel, the court “note[d] the difference [between “persons” and “citizens”] and [found that it was] compelled to enforce § 1982 as written-limiting its protection to “citizens,” a category that does not include the private corporations.” Id. at *6.
While the Garden City Defendants contested the standing of NYHAC and ACORN at the motion to dismiss stage, they couched their arguments in constitutional rather than statutory terms. Statutory standing arguments, unlike constitutional standing arguments, can be waived. See Gribben v. United States (In re Gribben), 158 B.R. 920, 921–22 (S.D.N.Y. 1993) (the Government's failure to raise issue of standing in proceedings before bankruptcy court waived any argument on appeal that debtor lacked statutory standing to seek turnover of tax refunds.) Accordingly, the Court deems the Garden City Defendant’s statutory standing arguments under Section 1982 to be waived. D. As to Mootness
The Garden City Defendants also assert that, even if the Plaintiffs had standing to initiate the suit, the Plaintiffs lost that standing after the County decided not to sell the site. Indeed, the Garden City Defendants note that NYCC did not intervene until after the County decided not to sell the Site. This argument is identical to the mootness claim previously rejected by the Court at the summary judgment stage. Alexander, 631 F.2d at 183 (“Th[e] ‘time element of standing’ comes under the rubric of mootness doctrine.”) The Garden City Defendants did not seek reconsideration of that decision and such a motion would now be untimely.
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However, even were the Court to consider this issue, the Court would adhere to its prior determination that “[a]lthough the relief requested as to the site may have been rendered moot, the broad injunctive relief sought by the Plaintiffs is certainly still a potential outcome of this case.” 843 F. Supp. 2d at 30. Indeed, the Plaintiffs request non-site related injunctive relief and a declaratory judgment. In fact, the Court previously noted that it may be possible for the Court to grant some relief as to the Social Services Site. The County acknowledged in its opposition to NYCC's motion to amend the intervenor complaint that “the County needs finality on the issue of whether plaintiffs' demand for injunctive relief will bar the construction where the decision to build has been made final.” Thus, even the County appeared to concede that the Court's injunctive relief as to the Site itself is still a plausible outcome. As the Plaintiffs observe, the County has yet to take action at the Site, and thus this decision may furnish determinative issues in the future.
Relatedly, the Garden City Defendants contend that if the County had decided not to sell the Social Services Site prior to commencement of this suit, the complaint would have been dismissed for lack of a justiciable controversy. The Court disagrees. Again, the injury resulting from the change in the proposed zoning preceded the County’s decision not to sell the site. The “no sale” decision had no effect on the Plaintiffs’ injuries; rather, the County’s decision simply may have mooted certain types of relief that could be awarded based on those injuries.
The Garden City Defendants also contend that the Plaintiffs failed to prove that Garden City’s zoning decision somehow caused the County’s “no sale” decision. In this regard, the Garden City Defendants observe that after Garden City adopted R-T zoning in June 2004, the County proceeded with its RFP process and did not change course until the election of a new County Executive in 2010, 6 years after the zoning change. However, even if the Garden City’s
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zoning change had nothing to do with the County’s “no sale” decision, the Plaintiffs are not foreclosed from recovery. As previously stated, the Plaintiffs’ injuries occurred at the time of the zoning change, prior to the County’s “no sale” decision.
As to the mootness issue, notwithstanding the fact that the Social Services Site is no longer being used, there are issues in the case that are not moot. As stated by the Court in its summary judgment decision, 843 F. Supp. 2d 287, in the prayer for relief seeking an injunction are the following: “(8) enjoin all Defendants and their agents, employees, successors and assigns, from engaging in any other discriminatory acts that perpetuate or contribute to segregation in Garden City and Nassau County; and (9) order all Defendants to take and/or fund affirmative steps, supervised by this Court, to overcome the effects of past discriminatory practices, including the funding of remedial activities necessary to overcome the perpetuation of segregation in Nassau County and Garden City.” The complaint also seeks a declaratory judgment and such other relief that the Court deems reasonable and necessary with regard to the request set forth above.
Therefore, there are two specific instances of injunctive relief sought by the Plaintiffs against the Defendants that do not relate specifically to the Special Services site itself. First, the Plaintiffs seek to enjoin the Defendants from engaging in any other discriminatory acts that perpetuate or contribute to segregation in Garden City. Second, the Plaintiffs seek an order that the Defendants take and/or fund affirmative steps, supervised by this Court, to overcome the effects of past discriminatory practices, including the funding of remedial activities necessary to overcome the perpetuation of segregation in Garden City. This is in addition to the declaratory relief and any other relief that the Court deems reasonable, necessary and just.
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In this regard, the Court found that this controversy is not rendered moot solely because
the Social Services Site is no longer susceptible to the zoning laws that were alleged to be
discriminatory. See, e.g., U.S. v. Mass. Maritime Acad., 762 F.2d 142, 157 (1st Cir. 1985)
(“Given the evidence of persistent past discrimination, the district court was entitled to enter an
injunction permanently enjoining any repeat discriminatory conduct even if the illegal conduct
had by then ceased.”); South-Suburban Hous. Ctr. V. Greater South Suburban Bd. of Realtors, et
al., 935 F.2d 868, 881 (7th Cir. 1991) (finding that an FHA challenge to street plan for damages,
declaratory relief, and injunctive relief was not rendered moot although homes were sold prior to
trial, in part because there was still a viable claim for declaratory and injunctive relief).
This affirmative action can be appropriate even though the effects of the alleged
discrimination cannot be resolved at the particular Social Services site. See Baltimore
Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp. 2d 456, 462 (D. Md. 2000) (finding that
affirmative action relief was appropriate because although the effects of the discrimination could
not be solved at the particular site, it was possible to seek affirmative action “elsewhere in the
Odenton area”).
Also, as stated by the Court in its summary judgment decision:
In this regard, the Court finds that a determination of whether or not the County and the Village’s past conduct violated the Constitution or applicable federal laws remains very much an open question. A legal dispute still exists as to whether any discriminatory practices took place by the Defendants, and whether an injury is still ongoing for every day there is an alleged lack of affordable housing, and hence a lack of racial integration, in the Village of Garden City . . .”. See Young v. Pierce, 628 F. Supp. 1037, 1059-60 (E.D. Tex. 1985) (finding that part of the heavy burden of demonstrating that discontinuance of the challenged activity has destroyed any controversy between the parties “includes the necessity of showing that there are no present effects of past conduct that require undoing.”) (citing Vitek v. Jones, 445 U.S. 480, 487, 100 S. Ct. 1254, 1260, 63 L. Ed. 2d 552 (1980)).
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. . . Therefore, because there still is relief that is obtainable by the Plaintiffs against the Defendants, the Court finds that there remains a live controversy in spite of the fact that the Social Services site will no longer be sold. Thus, the case has not been rendered moot and the Court can proceed to analyze the substantive merits of the action. E. As to Liability 1. FHA Claims Against the Garden City Defendants Congress enacted the FHA, or Title VIII of the Civil Rights Act of 1968, to “provide, within constitutional limits, for fair housing throughout the United States.” 42 U.S.C. § 3601. The law provides that it shall be unlawful “[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” Id. § 3604 (a). The Second Circuit has determined that “[c]onduct prohibited by this section includes discriminatory zoning practices.” Fair Hous. in Huntington Comm. Inc. v. Town of Huntington, N.Y., 316 F.3d 357, 366 (2d Cir. 2003); see Le Blanc–Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995); Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 938 (2d Cir. 1988) aff'd in part sub nom. Town of Huntington, N.Y. v. Huntington Branch, N.A.A.C.P., 488 U.S. 15, 109 S. Ct. 276, 102 L. Ed. 2d 180 (1988). A claimant may demonstrate that discriminatory zoning practices were employed by presenting either proof of disparate treatment or disparate impact. See Huntington Branch. N.A.A.C.P., 844 F.2d at 934– 35; see also LeBlanc–Sternberg, 67 F.3d at 425. In the instant case, the Plaintiffs advance their FHA claim against the Garden City Defendants under both theories of liability, which the Court will address in turn.
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i. Disparate Treatment Legal Standard “The framework of burdens fashioned in Title VII cases is fully applicable to [FHA] housing discrimination cases.” Cabrera v. Jakabovitz, 24 F.3d 372, 383 (2d Cir. 1994); see also id. at 381-82 (describing “the three-step formulation of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)” in the context of fashioning jury instructions). Under the theory of disparate treatment, “a plaintiff can establish a prima facie case by showing that animus against the protected group ‘was a significant factor in the position taken’ by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.” LeBlanc–Sternberg, 67 F.3d at 425 (quoting United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1217, 1223, 1226 (2d Cir.1987), cert. denied, 486 U.S. 1055, 108 S. Ct. 2821, 100 L. Ed. 2d 922 (1988)) (emphasis added); see also Innovative Health Sys. Inc. v. City of White Plains, 117 F.3d 37, 49 (2d Cir. 1997) (“[A] decisionmaker has a duty not to allow illegal prejudices of the majority to influence the decisionmaking process. A . . . discriminatory act [is] no less illegal simply because it enjoys broad public support.”). Discriminatory intent may of course be demonstrated by direct evidence. However, as such evidence is rarely available to plaintiffs, it may also be inferred through factors such as: “[t]he impact of the official action whether it ‘bears more heavily on one race than another,’ ” “[t]he historical background of the decision,” “[t]he specific sequence of events leading up to the challenged decision,” “[d]epartures from the normal procedural sequence,” “[s]ubstantive departures . . ., particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached,” and “contemporary statements by
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members of the decisionmaking body, or reports.” Vill. of Arlington Heights, 429 U.S. at 267– 68, 97 S. Ct. 555, 50 L. Ed. 2d 450; see also Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991) (noting that perpetrators of discrimination rarely leave a “smoking gun,” and, therefore, “[a] victim of discrimination is . . . seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence.”).
Once a plaintiff presents a prima facie case of discrimination based on the Vill. of Arlington Heights factors, the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its actions. Reg'l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35 at 49 (2d Cir. 2002).
At the third stage of the McDonnell Douglas test, “the sole remaining issue [is] ‘discrimination vel non.’” Byrnie v. Town of Cromwell, 243 F.3d 93, 101-02 (2d Cir. 2001) (citations omitted), and “the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred.” James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).
ii. As to the Plaintiffs’ Theory of Disparate Treatment a. As to Whether the Zoning Bore More Heavily on One Race Than Another
The Plaintiffs have presented evidence that indicates that the subject zoning designation “[bore] more heavily on one race than another.” Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 2049, 48 L. Ed. 2d 597 (1976). This evidence typically “involves statistical data supporting either a finding of perpetuation of segregation or of disproportionate impact.” Thornton v. City of Allegan, 863 F. Supp. 504, 509 (W.D. Mich. 1993). Not surprisingly, the parties’ analysis of this issue dovetails with their respective analyses of the theory of disparate
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impact. For that reason, the Court will discuss this issue in greater detail in the disparate impact section.
For now, it is sufficient to note that McArdle, the Plaintiffs’ statistical expert, set forth evidence that the original R-M zoning proposal, as proffered by BFJ and endorsed by the P-Zone Committee, would have created a pool of potential renters with a significantly larger percentage of minority households than the pool of potential renters for the zoning proposal ultimately adopted as law by Garden City. In this regard, the Plaintiffs established that the change from the proposed R-M zoning to the adopted R-T zoning affected minority residents to a greater degree. See e.g., Jim Sowell Const. Co., Inc. v. City of Coppell, 61 F. Supp. 2d 542, 547 (N.D. Tex. 1999) (finding that evidence from an expert demonstrating a disproportionate amount of African–American potential residents lived in multi-family housing “demonstrate[d] that African–American families are much more likely to reside in apartment complexes than are Caucasian families. By rezoning certain tracts of land from multifamily to single family use . . . the City decreased the number of apartment units available to new residents. Because African– Americans are more likely to reside in such housing, this reduction in multifamily units had a statistically greater impact on African–American families than on Caucasian families.”).
b. As to the Historical Evidence of Racism in the Village of Garden City Under Vill. of Arlington Heights, “[t]he historical background of the decision [at issue] is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes.” 429 U.S. at 267, 97 S. Ct. 555. As this Court previously pointed out in its summary judgment order, in Vill. of Arlington Heights, the Supreme Court explicitly distinguished between the “historical background” of a decision and the “specific antecedent events” leading up to it, indicating that courts should consider the historical background of a zoning decision in a
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“broad[] sense.” 843 F. Supp. 2d at 317; see Dews v. Town of Sunnyvale, Tex., 109 F. Supp. 2d 526, 571 (N.D. Tex. 2000) (concluding, after a bench trial on the merits, that defendant town's decisions, over the years, to adopt one acre zoning, prohibit multi-family housing, and refuse proposed cooperation agreements with local housing authority demonstrated “history of discouraging African–Americans from moving within its borders.”).
Here, the totality of evidence concerning the historical background of discrimination is as follows: (1) the unsuccessful application for affordable housing at the Doubleday site; (2) the adoption of an anti-discrimination policy after an Attorney General investigation into discrimination at Garden City parks; and (3) the failed attempt to institute affordable housing at the Ring Road Site.
Although each of these events could tend to suggest that racial discrimination has historically been a problem in Garden City, the Court declines to place significant weight on them for various reasons. First, the Doubleday application was apparently filed in 1989, approximately 15 years prior to the underlying events here. After Vill. of Arlington Heights, the Supreme Court has cautioned that historical evidence not “reasonably contemporaneous” with the challenged decision has “little probative value.” McCleskey v. Kemp, 481 U.S. 279, 298, 107 S. Ct. 1756, 1770, 95 L. Ed. 2d 262 (1987); cf. Hunter v. Underwood, 471 U.S. 222, 228-233, 105 S. Ct. 1916, 1920-1922, 85 L. Ed. 2d 222 (1985) (relying on legislative history to demonstrate discriminatory motivation behind a state statute).
Second, the Court declines to place much weight on the adoption of the antidiscrimination policy at the Garden City parks because, as the Plaintiffs note, to do so would have a chilling effect on any entity’s willingness to enact similar guidelines. In fact, in McLaughlin v. Diamond State Port Corp., C.A.03-617 (GMS), 2004 WL 3059543 (D. Del. Dec.
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30, 2004), the court excluded such evidence as analogous to subsequent remedial measures under Federal Rule of Evidence 407. In this case, while the Court did not exclude such evidence, the Court finds the reasoning in McLaughlin persuasive and therefore accords little weight to the adoption of the anti-discrimination park policy.
To be sure, the Court considers the underlying complaints at the parks, which, of course, involve behavior not to be encouraged. In any event, the underlying complaints at the parks, while relevant, appear too attenuated from the subject zoning decision to carry much weight.
Third, the Court declines to consider the opposition to the Ring Road site because this event occurred in 2006, two years after the zoning change in this action, and therefore would have little relevance to whether the Garden City Defendants evinced discriminatory intent in 2004.
c. As to the Sequence of Events The Court finds that the sequence of events leading up to the implementation of the R-T Zone give rise to an inference of race-based animus by the Garden City Defendants. Garden City retained BFJ to create a zoning proposal for the Social Services Site. BFJ, in turn, proposed the R–M designation, which permitted the development of up to 311 multi-family units. Both the County and the Board supported this proposal and, specifically, the inclusion of multi-family housing. Trustee Bee is a member of the Board as well as the Committee. As reflected in a summary of a meeting with local property owners, Trustee Bee expressed the opinions that “Garden City demographically has a need for affordable housing” and that “he would keep an open mind but he still felt the recommended zoning change was [sic] appropriate.” However, when it became clear at the public meetings that residents pointedly opposed the development of multi-family housing, BFJ and the Board reversed course. Not long after
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representing at a January 20, 2004 meeting that the village had a “need” for affordable housing, Trustee Bee stated at the February 5, 2004 public meeting that “neither the County nor the Village is looking to create a so-called affordable housing.” Soon thereafter, the Board and BFJ endorsed a new proposal which banned the development of multi-family housing on all but a small portion of the Social Services Site, and then only by special permit.
The Garden City Defendants repeatedly insist that nothing in the R-T zoning designation specifically prohibited the building of affordable housing. However, this is just another way of saying that the R-T zoning was facially neutral. As mentioned above, the absence of overt discrimination does not defeat a claim of disparate treatment. Furthermore, as explained later, many times a facially neutral law lies at the heart of a claim of disparate impact.
In addition, the Garden City Defendants characterize the recommendation by BFJ for R-M zoning as BFJ’s “initial thoughts”; describe the zoning process here as “evolutionary” and “ongoing;” and contend that there was no abrupt shift from R-M zoning to R-T zoning. Indeed, the Garden City Defendants contend that the R-M zoning proposal was “continuously modified throughout 2003.” However, in the Court’s view, the Garden City Defendants are seeking to rewrite history. The Garden City Defendants only cite two changes to BFJ’s proposal: a decrease in floor-to-area ratio and a change from R-6 to R-8 controls for single-family homes. Neither adjustment altered BFJ’s multi-family recommendation. Moreover, the Garden City Defendants ignore the P-Zone Committee’s consistent recommendation and public comment over eighteen months studying the Social Services Site. A review of the record reveals that the Board and the BFJ’s consideration of R-T zoning spanned a matter of weeks, and was not nearly as
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deliberative as that for R-M zoning. Sunrise Dev., Inc. v. Town of Huntington, New York, 62 F. Supp. 2d 762, 774 (E.D.N.Y. 1999) (Spatt, J.)(“ The Town simply asserts its desire to comply with the Comprehensive Plan as the reason for the Local Law's enactment without pointing to a single reason to support the expedited passage of the Local Law some five years after the plan's effective date.”).
After a final public presentation on the proposed R-M zoning in April 2004, Schoelle, Filippon, and Fishberg met with BFJ to review the public comments. For an unexplained reason, members of the P-Zone Committee did not participate in this meeting, and neither did zoning counsel Kiernan.
In addition, the Garden City Defendants’ description of citizen reactions to the R-M proposal mischaracterizes the record. The Garden City Defendants assert that the January 2004 public hearing constituted the first time the public enjoyed an opportunity to comment on the proposed zoning. However, in actuality, two public sessions were held with regard to R-M zoning in May and October of 2003.
The Garden City Defendants insist that, in any event, they simply responded to legitimate concerns about the effect of R-M zoning, including traffic, taxes, and school children. The Garden City Defendants note that, whereas the word “affordable” was used only once by a single resident at the February 5, 2004 meeting, the word “traffic” was used 68 times and the word “school” was mentioned 44 times. However, the Garden City Defendants are silent regarding the expression, albeit in a single instance, of concerns about changing the Village’s “character” and “flavor.”
Further, as the Court has previously held, “[i]n a discrimination action, a court cannot be satisfied that the absence of overtly discriminatory remarks proves an absence
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of discrimination.” Huntington Branch, N.A.A.C.P. v. Town of Huntington, N.Y., 668 F. Supp. 762, 786 (E.D.N.Y. 1987), rev'd on other grounds, 844 F.2d 926 (2d Cir. 1988) (noting that findings of discrimination cannot “be avoided by careful use of code words.”); Sunrise Dev., Inc., 62 F. Supp. 2d at 775 (finding substantial likelihood of discriminatory intent under FHA and Americans with Disabilities Act when residents of community voiced opposition to construction of assisted living facility, including by criticizing the “appearance and activity” of such facilities and asserting that such facilities would “alter the residential character.”); Atkins v. Robinson, 545 F. Supp. 852, 871-72 (E.D. Va. 1982) (finding statement that she “feared the projects ‘would degenerate to slum-like conditions, with an abundance of crime’ ” to be a veiled reference to race); but see Generally Boyd v. Lefrak Org., 509 F. 2d 1110, 1112 (2d Cir. 1975)(“The premise of plaintiffs' argument is that ‘(w) elfare recipiency . . . must be seen as the ‘functional equivalent’ of race.' Such an equivalency between race and income has been rejected by the Supreme Court.”)(citing James v. Valtierra, 402 U.S. 137, 91 S. Ct. 1331, 28 L. Ed. 2d 678 (1971) (internal quotation marks and citations omitted); Forty-Second Street Co. v. Koch, 613 F. Supp. 1416, 1423 (S.D.N.Y. 1985) (class-biased plan seeking to attract affluent customers does not prove that plan sought to remove African-Americans or hispanics which comprise a disproportionate segment of the low-income population).
The inference of discrimination is not defeated by the fact that the Plaintiffs declined to rely on the expert testimony of Dr. Peter Marcuse, a professor of urban planning, who both the Plaintiffs and the Court cited to heavily at the summary judgment stage. Marcuse found in his expert report, not in evidence at the trial, that euphemisms for race-based bias in housing situations can demonstrate discriminatory intent.
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However, the Court need not rely on Marcuses’s expertise to characterize aspects of the opposition to affordable housing at the Social Services Site. The Court acknowledges that the Plaintiffs overstate their case in describing the opposition to affordable housing in terms of a “surge” and “outcry.” Nevertheless, the Court evaluates this real opposition in light of (1) the racial makeup of Garden City; (2) the lack of affordable housing in Garden City; and (3) the likely number of minorities that would have lived in affordable housing at the Social Services Site. Set against this background, the Court concludes that at least some of the expressions by Garden City residents of disapproval for affordable housing reflected race-based animus or at least could have been construed as such by the Board.
d. As to Whether There Were Departures from Normal Procedural Sequences
The Court next considers whether there were departures from normal procedural sequences in Garden City’s zoning decision. See Sunrise Dev., Inc., 62 F. Supp. 2d at 775-76 (concluding that “[a]lthough the Town did commission the [Citizens’ Advisor Committee] to undertake a study and issue recommendations on senior housing, when the time came to enact the Local Law, the Town disregarded the CAC’s recommendations,” which suggested that “defendants likely were swayed by the anti-disabled animus present in the community”); Dews, 109 F. Supp. 2d at 571 (“[The Defendant]’s history of ignoring the recommendations of its planners and proceeding in the face of sound legal and planning advice” weighed towards finding of discriminatory intent).
Here, as previously mentioned, the Court finds that the consideration of R-M zoning proposal involved much greater deliberation than that for the R-T zoning. It is also true that Local Law 2-2004 was moved to a public hearing even though no zoning
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text had been drafted and no environmental analysis of the law’s impact had been conducted. However, the record is bereft of any evidence regarding the customary zoning procedures, and therefore Court cannot determine whether there was a departure from such procedures.
iii. As to the Defendants’ Burden against the Disparate Treatment Claim Once a plaintiff presents a prima facie case of discrimination based on the Vill. of Arlington Heights factors, the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its actions. Reg'l Econ. Cmty. Action Program, 294 F.3d at 49. Here, the Garden City Defendants submit that legitimate concerns prompted the Board to reject the initial proposal offered by BFJ and endorsed by the P-Zone Committee. Indeed, the Garden City Defendants contend that R-T zoning met the planning principles set forth by BJF better than did the proposed R-M zoning. In this regard, the Garden City Defendants point to the testimony of their zoning expert Patrick Cleary that R-M zoning “permitted a range of uses that . . . had the potential to create significant, potentially significant adverse impacts” whereas R-T zoning “eliminated the potential for those adverse impacts,” namely that R-T zoning eliminated office use and reduced the number of multifamily units, the two biggest generators of traffic. (Tr. at 1855.) The Garden City Defendants also point to the April 22, 2004 presentation to the Village Residents, in which BFJ demonstrated that 215 apartments at the Site would generate 1,423 vehicular trips per day, while 90 single family homes would generate 940 trips and 150 townhomes would generate 920 trips per day. (Joint Exh 13.) Based on these statistics, for 311 multifamily units, the number of
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daily traffic trips, over 2,000, is more than double the amount of traffic generated by the proposed number of single family homes or townhomes. (Tr. at 399-401.)
Cleary also stated that R-T zoning “provided for an expansion of the housing opportunities available in the Village of Garden City by facilitating the development of townhomes.” (Tr. 1856.) Indeed, Filippon testified that, while the BFJ reports suggested that townhomes were allowed under the CO-5b zoning, R-M zoning did “[n]ot directly” provide for townhomes “in the usual sense of the word.” (Tr. at 1662-63.) Rather, Filippon noted that the R-T zoning proposal, for the first time, defined “townhomes” in the Village Code. (Tr. at 1772.)
As to additional school children, Fish estimated that, under R-M zoning controls, single family homes would, on average, produce one additional school child, whereas “[w]ith a community aimed at young couples and empty nesters there could be as few as 0.2 to 0.3 public school children per unit [of a multi-family home.]” (Joint Exh. 22, at 691.) Thus, under Fish’s estimates, 90 single family homes would have generated roughly 90 additional school children, while 311 would have generated roughly between 62 and 93 school children. In opposition, the Garden City Defendants correctly emphasize that even a slight change in the resident mix would have significantly altered these numbers.
Taken together, the Court finds that the Garden City Defendants have satisfied their minimal burden of offering a nondiscriminatory reason for their zoning decision. See Reeves, 530 U.S. at 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105(“[The burden of providing a legitimate, nondiscriminatory reason] is one of production, not persuasion; it
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can involve no credibility assessment.”)(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993)).
iv. The Plaintiffs’ Burden Having satisfied their burden of production, the presumption of discrimination no longer applies against the Garden City Defendants, so that the sole remaining issue for the Court is “discrimination vel non.” Reeves, 530 U.S. at 142, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (citation omitted), and “the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred.” James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000). Here, the parties present conflicting evidence regarding whether the R-M or R-T controls would have resulted in greater traffic flow. The Plaintiffs dispute that traffic concerns motivated the opposition to multi-family housing at the Social Service Site. Indeed, the Plaintiffs cite the September 2003 EAF, which concluded that the proposal would not generate traffic significantly above present levels. Further, Fish testified that, even using a conservative approach, the elimination of multi-family housing only reduced peak-traffic by about 3%. (Tr. at 449, 453.) At the February 5, 2004 meeting, Suozzi described a resident’s concern about traffic as “irrational.” (Joint Exh. 12, at 908.). The Plaintiffs also dispute that townhomes could not be built under the proposed R-M zoning controls. Fish, and Flippon, a witness for the Garden City Defendants, testified that townhomes would be allowed under the proposed R-M zoning controls. (Tr. at 274, 405-06, 1732.)
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Other justifications for R-T zoning are not just disputed, but unsupported by the record. Indeed, the Garden City Defendants assert that the R-M proposal would “not provide an aesthetically pleasing transition” from commercial to single-family homes. (Garden City Defs’ Post-Trial Mem, at 8, 16.) Yet, Cleary conceded that R-M would also have provided a form of transition. (Tr. at 1882.) Indeed, the May 2003 study stated that the R-M zone “is seen as a transitional area between existing single-family homes neighborhoods and current commercial development.”
Finally, the Garden City Defendants note that, although the Board ostensibly sought to “maximize the use of existing zoning tools,” BFJ always recommended an entirely new zone, named initially the “CO5b” zone. (Tr. at 1703.) However, the Court notes that, unlike the R-T zone, the Co-5 B zone contained existing components of the Garden City zoning code, including R-M. Further, the EAF found that R-M zoning maximized existing zoning tools.
That said, the Court is “mindful of the general proscription that ‘federal courts should not become zoning boards of appeal to review nonconstitutional land[-]use determinations by the [C]ircuit's many local legislative and administrative agencies.’” Zahra v. Town of Southold, 48 F.3d 674, 679-80 (2d Cir. 1995) (quoting Sullivan v. Town of Salem, 805 F.2d 81, 82 (2d Cir. 1986) (alterations in Zahra)). Accordingly, the Court is reluctant to second-guess citizens and decision-makers’ legitimate concerns about traffic and the promotion of townhomes, even if those concerns may have been illfounded.
However, finding that the Board acted based on legitimate concerns about traffic and the promotion of townhomes does not foreclose a finding that impermissible
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discriminatory intent also played a role in the Board’s decision-making process. In fact, it is clear from the record that there were many different factors – some of which reflected race-based opposition -- surrounding the enactment of the R-T zoning. Cabrera, 24 F.3d at 382-82 (under the FHA, plaintiff need prove only that an impermissible consideration was a motivating factor, not the only motivating factor).
Given (1) the sequence of events involved in the Board’s decision to adopt R-T zoning instead of R-M zoning after it received public opposition to the prospect of affordable housing in Garden City and (2) the considerable impact that this zoning decision had on minorities in that community, the Court finds that the Garden City Defendants acted with discriminatory intent. See Valley Hous. LP v. City of Derby, 802 F. Supp. 2d 359, 386-87 (D. Conn. 2011) (stating that a defendant's “drafting of the decision to deny plaintiffs' appeal before the meeting without discussion with the other ZBA members and without showing them a draft prior to reading it into the record . . . support a conclusion of discriminatory decision-making” and indicating that a Zoning Board's reliance upon an interpretation of the zoning regulations without having probed the research supported a finding of discrimination). Further, “[t]he events leading up to the enactment of the Local Law lead the court to conclude that the defendants likely were swayed by the anti-[minority] animus present in the community.” Sunrise Dev, 62 F. Supp. 2d at 775; Wentworth v. Hedson, 493 F. Supp. 2d 559, 567 (E.D.N.Y. 2007)(“In cases involving ‘vague remarks,’ context and timing are everything”).
The question then becomes which party prevails in this type of “mixed motive” case under the FHA. “Mixed motive” discrimination deals with situations, as in this case, in which the evidence shows that the defendant used both legitimate and illegitimate
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considerations in making a decision. The Supreme Court has yet to address “mixed motive” discrimination in a disparate treatment case under Title VIII. Rather, the Vill. of Arlington Heights involved mixed motive discrimination in housing based on the Equal Protection Clause of the Fourteenth Amendment.
Therefore, before considering “mixed motive” cases under the FHA, the Court will examine the evolution of “mixed motive” cases under Title VII. Indeed, the Supreme Court and several lower courts have relied on Title VII precedents to interpret Title VIII. See Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 93 S. Ct. 36434 L. Ed. 2d 415 (1972); DiCenso v. H.U.D., 96 F.2d 1004, 1008-09 (7th Cir. 1996); Huntington Branch, N.A.A.C.P., 844 F.2d at 935; Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1288-89 (7th Cir. 1977), cert. denied, 434 U.S. 1025 (1978); see generally Robert Schwemm, Housing Discrimination Law and Litigation § 7:4 (2001).
In 1989, the Supreme Court decided Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, a Title VII employment discrimination case. There, the Supreme Court held that, in a “mixed motive” analysis, the plaintiff's burden of proof is satisfied if (1) the evidence shows that the employer relied on any unlawful considerations in making its decision and (2) improper consideration of the employee's gender or other protected status played a motivating part in the employment decision. The burden of persuasion then shifts to the defendant to show that the employer would have made the same decision if it had not taken the illegitimate factor into account. The employer would not be held liable if it satisfied its burden of persuasion on the “same decision” issue, which the plurality characterized as an affirmative defense.
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Congress responded to Price Waterhouse and a handful of other Supreme Court employment discrimination decisions with what eventually became the Civil Rights Act of 1991, which “expressly overruled the basic premise that an employer could avoid all liability under Title VII by establishing the absence of ‘but for’ causation.” Costa v. Desert Palace, Inc., 299 F.3d 838, 850 (9th Cir. 2002) aff'd, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). Now, under Title VII, the use of a prohibited characteristic such as race, color, religion, sex, or national origin as simply “a motivating factor” in an employment action is unlawful. 42 U.S.C. § 2000e-2(a)(1). However, Congress added one safety valve: an employer can escape damages and orders of reinstatement, hiring, promotion and the like – but not attorney's fees or declaratory or injunctive relief – by proving the absence of “but for” causation as an affirmative defense. Id. § 2000e-2(m).
Prior to Price Waterhouse, lower courts agreed that the FHA is violated even if only one of the factors that motivated the defendant was unlawful. Schwemm, supra note 3, at 10-22; Hanson v. Veterans Admin., 800 F.2d 1381, 1386 (5th Cir. 1986) (Title VIII is violated if race “was a consideration and played some role in the real estate transaction”); Jordan v. Dellway Villa, Ltd., 661 F.2d 588, 594 (6th Cir. 1981) (a plaintiff should recover if race “played a part” in his rejection of housing); Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042-43 (2d Cir. 1979) (Title VIII is violated if race “is even one of the motivating factors,” and considerations of race must not “play any role in the decision to deny [the plaintiff's] application”); United States v. Pelzer Realty Co., Inc., 484 F.2d 438, 443 (5th Cir. 1973) (race need only be “one significant factor” that the defendant considered in order to find liability).
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After Price Waterhouse, “defendants in housing discrimination cases [could] avoid liability where they could show that the illegitimate factor was only a partial reason for the denial of housing, so long as they could show that they would have made the same decision absent the illegitimate factor.” Note, Cassandra A. Giles, Shaking Price Waterhouse: Suggestions for A More Workable Approach to Title VIII Mixed Motive Disparate Treatment Discrimination Claims, , 828 (2004)(citing Cato v. Jilek, 779 F. Supp. 937, 944 (N.D. Ill. 1991)) .
The Civil Rights Act of 1991 amended only Title VII, not Title VIII. Therefore, those courts that have addressed the issue have held that the “undiluted Price Waterhouse standard continues to control in Title VIII ‘mixed-motive’ cases.” Cato, 779 F. Supp. at 943 n. 19; see also H.U.D. v. Denton I, 1991 WL 442794 at *8 (H.U.D. A.L.J.)(a defendant “may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed [the forbidden factor] to play such a role.”)(citing Price Waterhouse); H.U.D. v. Denton II, 1992 WL 406537, at *8 (H.U.D. A.L.J)(rejecting the argument that the Civil Rights Act of 1991 overruled Price Waterhouse as applicable to mixed motive Title VIII cases).
In Denton II, the Administrative Law Judge (ALJ) stated that, although Congress overruled the result of Price Waterhouse through the Civil Rights Act of 1991, that piece of legislation “did not address the Price Waterhouse Court's analysis for determining liability in a mixed motive case where the language of a statute proscribes conduct ‘because of’ certain unlawful factors.” Denton II, at *8. For that reason, the ALJ “conclude[d] that the causation analysis formulated in Price Waterhouse remains apt for Fair Housing Act cases” despite the Civil Rights Act of 1991. Id. Thus, "although
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Congress sought to remedy the perceived evils of Price Waterhouse, courts in applying Title VIII are still using this case to determine liability in mixed motive housing discrimination cases.” Giles, 37 Ind. L. Rev. at 829.
Consistent with these post-Civil Rights Act of 1991 decisions, the Second Circuit has reaffirmed the rule that, in a FHA case, although the plaintiff need only prove that an impermissible factor played a role in the defendant’s housing decision, the “defendant can prevail if it sustains its burden of proving its affirmative defense that it would have taken the adverse action on the basis of the permissible reason alone.” Cabrera, 24 F.3d at 383 (2d Cir. 1994)(citing Price Waterhouse). The Second Circuit, by citing Price Waterhouse and not mentioning the Civil Rights Act of 1991, implied that the former survived the latter for purposes of FHA cases.
Therefore, in this Circuit, although a defendant in an FHA case can escape liability entirely if it proves it would have rendered the same decision had it not considered impermissible reasons, a defendant in a Title VII case can only reduce monetary damages and avoid certain injunctive relief based on liability if it makes the same showing. To be sure, this more defendant-friendly standard under the FHA cuts against the broad remedial interpretation typically accorded to the FHA, Trafficante 409 U.S. at 211, 93 S. Ct. 364, 34 L. Ed. 2d 415 (describe the language of the FHA as “broad and inclusive” and stating that the FHA effectuates a “policy that Congress considered to be of the highest priority”) and the general rule that Title VII and the FHA be construed in a similar manner.
However, absent contrary authority from the Supreme Court or the Second Circuit, the Court is bound by Cabrera, and therefore the Garden City Defendants can
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escape liability if they proved that they would have shifted from R-M to R-T zoning even if they had not considered impermissible reasons.
Turning to that precise issue, the Plaintiffs contend that “[t]he only thing R-T zoning accomplished . . . was to effectively eliminate the possibility of affordable housing.” (Plf’s Post-Trial Memo, at 32.) The Garden City Defendants counter that the R-T zone met each of the goals of the Village better than did the R-M proposal.
As supported by the record, the Court previously recognized some of the justifications – namely, concerns about traffic and townhomes – for shifting from R-M to R-T zoning. In that regard, the case at bar is not a “pretext” case, where it is assumed that a single reason motivated the adverse action and the issue is whether the unlawful consideration or legitimate consideration was actually the basis for the action. Rather, as borne out by the record and despite language regarding “pretext” in this Court’s summary judgment decision, the Court is presented with a “mixed motive” case.
Nevertheless, the Court considers the jurisprudence in “pretext” cases relevant to “mixed motive” cases inasmuch as the former sheds light on how much weight to place on legitimate justifications for adverse actions, even if those justifications are not entirely invalid. Critically, those cases are relevant for the concept that “[t]iming alone may be sufficient to establish pretext.” Wentworth, 493 F. Supp. 2d at 570; see also O'Neal v. State University of New York, No. 01 Civ. 7802 (DGT), 2006 WL 3246935, at *15 (E.D.N.Y. Nov.8, 2006) (“Temporal proximity between adverse actions and a plaintiff's complaint of discrimination can be sufficient to show pretext.”) (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 770 (2d Cir. 1998)); Bouley v. Young-Sabourin, 394 F. Supp. 2d 675, 678 (D. Vt. 2005) (the timing of the eviction and statements in the eviction
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letter could lead a reasonable jury to conclude that the lease violation was a pretext and unlawful discrimination was the real reason for the eviction).
In this case, the Court notes that, while residents raised traffic concerns prior to increase in public opposition to affordable housing, the figures concerning traffic relied upon by the Garden City Defendants derive from the April 2004 presentation, given after the increase in public opposition against affordable housing and immediately before the change to R-T zoning. Also, it is not clear that traffic under R-M zoning would be significantly worse than under R-Z zoning, if worse at all.
The Court also notes that there is no indication in the record that, prior to the increase in public opposition, Garden City desired to make townhouses available in their community. The Court also observes that Garden City could have provided for townhouses more specifically in the R-M zoning.
Thus, although the Court finds that these otherwise legitimate concerns played a role in the Board’s shift to from R-M zoning to R-T zoning, the Court finds that the Plaintiffs have established that discrimination played a determinative role. In other words, the Court declines to hold that, based on these concerns, the Board would have shifted from R-M zoning to R-T zoning even if discrimination played no role.
Accordingly, because the Court finds that (1) the Plaintiffs have proved that discrimination played a significant factor in the Board’s decision to enact R-T zoning instead of R-M zoning and (2) the Garden City Defendants failed to prove that they would have made the same decision absent discriminatory considerations, the Court finds that the Plaintiffs have established liability under § 3604(a) of the FHA based on a theory of disparate treatment.
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v. Disparate Impact The Court now turns to the Plaintiffs' FHA § 3604(a) claim brought under a theory of disparate impact. The Supreme Court has not previously answered and has recently granted a writ of certiorari on the question: “Are disparate impact claims cognizable under the Fair Housing Act?” Mt. Holly Gardens Citizens in Action, Inc. v. Township of Mount Holly, 658 F.3d 375 (3d Cir. 2011), cert. granted, __ U.S. __, 133 S. Ct. 2824, __ L. Ed. 2d __ (2013). However, that case was ultimately settled before oral argument. http://www.nytimes.com/2013/11/14/us/fair-housing-case-is-settled-before-it-reaches-supremecourt.html?_r=0 (last visited November 18, 2013) All of the circuits, including the Second Circuit, have held that the statute affords the Plaintiffs the ability to prove FHA violations on the theory of disparate impact. See e.g. Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 574–75 (2d Cir. 2003) (internal quotations omitted). Moreover, on February 15, 2013, the United States Department of Housing and Urban Development issued a final rule establishing that disparate impact claims are cognizable under the FHA. 78 Fed. Reg. 11460 (Feb. 15, 2013) (codified at 24 C.F.R. § 100.500 (2013)). In establishing a prima facie case for such a claim, a “plaintiff must show: (1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices.” Tsombanidis, 352 F.3d at 574–75 (internal quotations omitted). A claimant need not provide proof of discriminatory intent, but must demonstrate that “the challenged practice of the defendant ‘actually or predictably results in racial discrimination; in other words that it has a discriminatory effect.” Huntington Branch, N.A.A.C.P., 844 F.2d at 934 (quoting U.S. v. City of Black Jack, Missouri, 508 F.2d 1179, 1184–85 (8th Cir. 1974), cert.
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denied, 422 U.S. 1042, 95 S. Ct. 2656, 45 L. Ed. 2d 694 (1975)) (further noting that sometimes “[facially neutral] rules bear no relation to discrimination upon passage, but develop into powerful discriminatory mechanisms when applied”). “The discriminatory effect of a rule arises in two contexts: adverse impact on a particular minority group and harm to the community generally by the perpetuation of segregation.” Huntington Branch, N.A.A.C.P., 844 F.2d at 937.
In establishing “discriminatory impact,” the plaintiff must demonstrate a “’causal connection between [a] facially neutral policy . . . and the resultant proportion of minority’ group members in the population at issue.” Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 90–91 (2d Cir. 2000) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998)).
The Second Circuit has set forth two factors that weigh in this analysis; first, although discriminatory intent is not required to establish a prima facie case of disparate impact housing discrimination, “there can be little doubt that if[, as here,] evidence of such intent is presented, that evidence would weigh heavily on the plaintiff's side of the ultimate balance.” Huntington Branch, N.A.A.C.P., 844 F.2d at 936. Second, if the plaintiff is suing “only to require a governmental defendant to eliminate some obstacle to housing that the plaintiff itself will build,” the government must provide a more substantial justification for its actions than would be the case if a plaintiff was suing to compel the government to construct housing. Id.
Once a plaintiff has presented a prima facie case of disparate impact, “the burden shifts to the defendant to ‘prove that its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.’” Tsombanidis, 352 F.3d at 575 (quoting Huntington Branch, N.A.A.C.P., 844 F.2d at 936).
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vi. As to the Plaintiffs’ Theory of Disparate Impact As noted above, McCardle testified that minority households comprised 41.4% of verylow income renters in need of affordable housing, even though they comprised only 14.8% of all households in Nassau County. (Tr. at 146-48.) Since the R-T zone largely eliminated the potential for the type of housing that minorities were disproportionally likely to need – namely, affordable rental units (Tr. at 149), the Court finds that minorities bore the brunt of the negative impacts of the R-T zone. See Tsombanidis, 352 F.3d at 575–76 (2d Cir. 2003) (“The basis for a successful disparate impact claim involves a comparison between two groups – those affected and those unaffected by the facially neutral policy. This comparison must reveal that although neutral, the policy in question imposes a significantly adverse or disproportionate impact on a protected group of individuals. . . . Statistical evidence is also normally used in cases involving fair housing disparate impact claims.”) (internal quotations omitted). In particular, McArdle testified that, under the initial Fairhaven bid for 156 townhomes, between 1.9% and 3.8% of minority homebuyers in Nassau County could have afforded to purchase a home at the Site. Expressed in absolute terms, minority households could afford only 3 to 6 of the 156 proposed townhouse units at the Fairhaven development. Similarly, Speliotis calculated that any development on the Social Services Site would cost at least $500,000 per single-family unit to develop under R-T zoning (whether single-family townhome or single family detached home), without including any acquisition cost for the land. (Tr. at 1472-74.) Accordingly, she concluded that “one could not build any measurable number of affordable housing units under that [R-T] Zoning.” (Tr. at 1474-75; Joint Exh. 29, at 451.) Indeed, Speliotis wrote in 2004 and testified at the trial that the types of dwelling places “encouraged by the [R-T] zoning” were “luxury townhouses.” (Tr. at 1479).
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Conversely, Speliotis determined that it was possible to develop affordable housing under the rejected R-M controls. (Tr. at 1466-67, 1490-91.) In particular, Speliotis concluded that it would have been financially feasible to build 45 to 78 affordable housing units on the Social Services Site under the R-M controls – including up to approximately 78 Section 8 subsidized rental housing units – at the Site at a cost ranging from $30 million (the County’s minimum bid price) to $56 million (the approximate final accepted bid amount.) (Tr. at 1496-97, 1505-06, 1512.) Under these circumstances, Speliotis’ estimated that under R-M development proposals for the Site, between 56 (18% of the households) and 101 (32% of the households) minority households would have been able to afford such housing.
Moreover, by blocking Section 8 Housing from being built on the Social Services Site, the Court finds that R-T zoning prevented the overwhelmingly African-American and Hispanic households on the Nassau County Section 8 waiting list from being able to live in Garden City. (Tr. at 157, 165-66, 182-83.). Again, African-American and Hispanic households comprised 88% of the Section 8 rental housing waiting list in Nassau County, even though they comprised only 14.8% of the households in Nassau County. Under MHANY’s alternative proposals developed under the R-M zoning controls, up to 78 section 8 units could have been built (Plf’s Exhs. 179, 406, 407.), and up to 69 minority families could have afforded to live there.
The Plaintiffs also established that the R-T zone’s restriction on the development of multi-family housing perpetuates segregation generally because it decreases the availability of housing to minorities in a municipality where minorities constitute approximately only 4.1% of the overall population, according to the Census taken closest in time to the events in question, and only 2.6% of the population living in households. Huntington Branch, N.A.A.C.P., 844 F.2d 926, 928 (2d Cir. 1988)(the “overwhelmingly white suburb's zoning regulation” which resulted
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in a disproportionate harm to African-Americans and segregative impact on the rest of the municipality violated the Fair Housing Act); Vill of Arlington Heights, 558 F.2d 1283, 1286-87 (7th Cir. 1977) (failure to rezone perpetuates racial segregation); City of Black Jack, Missouri, 508 F.2d at 1186 (exclusion of multi-family housing perpetuates segregation).
McArdle’s expert testimony also showed that, had the originally proposed R-M zoning been adopted at the Site, the segregation in Garden City could have been alleviated. The four mixed-income housing proposals designed by MHANY for the Site would have likely been occupied by 18% to 32% minority households. (Tr. at 156-57.) Two of the four proposals contained a significant number of Section 8 units. (Tr. 154-56.) Finally, McArdle’s testimony showed that, under R-T zoning, the share of minority households who could have afforded to buy homes in the proposed Fairhaven development was so low that the underlying racial composition of the Village would not have changed. (Tr. at 169, 182.) Notably, the Garden City Defendants make no argument or comment in their post-trial memorandum as to whether the shift from R-M to R-T perpetuates segregation in Garden City.
This set of facts is comparable to Huntington Branch, N.A.A.C.P., where the Second Circuit found that a proposed but unrealized development “with [a] goal of 25% minorities” would have desegregated a neighborhood that was 98% white. 844 F. 2d at 937. There, the Second Circuit held that the trial court erred by “fail[ing] to take the next logical step and find that” the zoning ordinance in question perpetuated segregation. Id.
The Garden City Defendants contend that the Plaintiffs’ disparate impact claims fails because they have not challenged any facially neutral “policy” or “general practice.” However, contrary to the Garden City Defendants’ contention, the zoning law at issue here is not one specific act similar to the denial of a variance of a particular parcel of property. In that regard,
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the Garden City Defendants’ reliance on Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 281 F.3d 333, 351 (2d Cir. 2002), opinion corrected and superseded, 294 F.3d 35 (2d Cir. 2002) is misplaced. There, the Second Circuit held that a disparate impact claim fails if “[n]o comparison of the act's disparate impact on different groups of people is possible.” Id. However, the Second Circuit specifically distinguished the facts in that case – namely, the denial of a single-use permit – from a situation, such as here, involving the enactment of a generally applicable zoning law.
The Garden City Defendants further assert that the decision to change from the P-Zone which provided no housing opportunities to the R-T zone at the Social Site, in fact, increased the housing for minorities in Garden City. However, as set forth in the motion to dismiss order and the summary judgment order, “the relevant inquiry here focuses on the housing opportunities available under the rejected R–M designation versus the approved R–T designation,” not P-Zone versus R-T zone. 843 F. Supp. 2d at 330. Framed in this manner, a finding of disparate impact here would not, as the Garden City Defendants insist, impose a requirement in the FHA to maximize minority density for every zoning decision.
The Garden City Defendants also fault the Plaintiffs for failing to conduct a proper analysis of potential affordable housing under the R-T designation. However, Speliotis credibly testified that such an analysis would have been futile because it was not possible to build any measurable number of affordable housing units under R-T zoning. (Tr. at 1474-76.) While Speliotis did not produce any documentary evidence of her initial analysis of R-T zoning, she persuasively testified about the cost of a single-family townhome or a single family detached home under R-T zoning. Although not its burden to do so, Garden City could have called an
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affordable housing expert to analyze the Social Services Site, its zoning, and the economics of building affordable housing there.
Taken together, the Court concludes that the Plaintiffs have established, by a preponderance of the evidence, that the rejection of the R–M zone in favor of the R–T zone significantly decreased the potential pool of minority residents likely to move into housing developed at the Social Services Site in proportion to the number of non-minorities affected and, therefore, the enactment of the R–T zone actually resulted in racial discrimination.
vii. The Garden City Defendants’ Burden As the Court finds that the Plaintiffs have established a prima facie case of disparate impact, the burden shifts to the Garden City Defendants to demonstrate that the rejection of the R–M zone for the R–T zone advanced a “legitimate, bona fide governmental interest . . . that no alternative would serve . . . with less discriminatory effect.” Tsombanidis, 352 F.3d at 575. In this regard, the Plaintiffs are not required to prove that Garden City’s stated justifications were pretextual. See Rivera v. Inc. Vill. of Farmingdale, 784 F. Supp. 2d 133, 145 (E.D.N.Y. 2011). In addition, “[a]lthough the plaintiff is not required to prove discriminatory intent in order to show discriminatory effect, in balancing disparate impact against a governmental interest, evidence of such intent[, as in this case,] weighs heavily in the plaintiff's favor.” Oxford House, Inc. v. Town of Babylon, 819 F. Supp. 1179, 1184 (E.D.N.Y. 1993)(citing Huntington Branch N.A.A.C.P., 844 F.2d at 936). For the reasons explained previously, the Court finds that the enactment of R-T zoning advanced certain legitimate, bona fide government interests – namely, reducing traffic and providing for the construction of townhomes. However, the Court finds that the Garden City Defendants did not establish the absence of a less discriminatory alternative. Batiste v. City of
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New Haven, 239 F. Supp. 2d 213, 224 (D. Conn. 2002)(“The defendants offered little evidence to prove that there are no less discriminatory alternatives than building the Prince-Welch School at the Kossuth Street Site.”); Sunrise Dev., Inc., 62 F. Supp. 2d at 776 (“the Town has not offered evidence to support a finding that no less discriminatory alternative to the Local Law would serve the Town's interest in complying with the Comprehensive Plan.”). Indeed, R-M zoning would have reduced traffic significantly as compared to the P-zone. Further, the Court finds that R-M zoning could have provided for the construction of townhomes in addition to the substantial increase in minorities able to live in the R-M housing.
In sum, the Court concludes that Plaintiffs have established, by a preponderance of the evidence, the liability of the Garden City Defendants under § 3604(a) of the FHA by proving that the Village’s acts had both an adverse impact on minorities and tended to perpetuate segregation, and that even though some of Garden City’s offered justifications are bona fide and legitimate, less discriminatory alternatives to the current zoning ordinance existed.
2. Other Federal Civil Rights Causes of Action The Court also concludes that the Plaintiffs have established liability under 42 U.S.C. §§ 1981, 1983, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by proving that Garden City acted with discriminatory intent. The Plaintiffs have also established the other statutory requirements; for example, there is no dispute that Garden City is a municipality covered by Section 1983. With respect to the § 1983 cause of action, the Garden City Defendants suggest that the adoption of R-T zoning – that is, the enactment of a zoning ordinance – does not qualify as a “policy or custom” supporting a violation of that provision. The Court disagrees. It is wellsettled that “municipalities may be sued directly under § 1983 for constitutional deprivations
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inflicted upon private individuals pursuant to a governmental custom, policy, ordinance, regulation, or decision.” Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)(citing Monell v. Dep't of Soc. Servs., 436 U .S. 658, 690–91, 98 S. Ct. 2018 (1978))(emphasis added).
However, with respect to 42 U.S.C. § 1982, to state such a claim, a plaintiff must allege intentional deprivation of a property right because of race. Perez v. de la Cruz, 09 CIV. 264 (JPO), 2013 WL 2641432, at *12 (S.D.N.Y. June 12, 2013). Here, the Court finds that, as a matter of law, the Plaintiffs fail to identify a cognizable property interest in as yet-built or planned affordable housing. Accordingly, the Court dismisses the Plaintiffs § 1982 cause of action.
IV. REMEDIES Having found that the Garden City Defendants are liable under the FHA, 42 U.S.C. §§ 1981 and 1983, and the Equal Protection Clause of the Fourteenth Amendment, the Court is now required to determine a remedy for those violations through the imposition of appropriate injunctive relief. The FHA expressly authorizes courts to award injunctive relief: if the court finds that a discriminatory housing practice has occurred . . . the court may . . . grant as relief, as the court deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate). 42 U.S.C. § 3613(c)(1). “The Court must craft injunctive relief with a view toward the statute's goals of preventing future violations and removing lingering effects of past discrimination. The scope of the injunction is to be determined by the nature and extent of the legal violation.” United States v. Space Hunters, Inc., 2004 WL 2674608, at * 8 (S.D.N.Y. Nov. 23, 2004) (citing Rogers v. 66–36 Yellowstone Blvd. Coop. Owners, Inc., 599 F. Supp. 79, 83 (E.D.N.Y. 1984)).
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“[T]he two most common forms of injunctive relief requested under the FHA seek either to prohibit the offending party from engaging in future acts of housing discrimination or to impose upon that party certain affirmative duties to atone for past discrimination and prevent recurrence of such acts.” Ueno v. Napolitano, 2007 WL 1395517, at * 6 (E.D.N.Y. May 11, 2007). In determining whether or not to grant a request for injunctive relief, “[t]he critical question . . . is whether a sufficiently flagrant violation of the plaintiffs' civil rights – the guidepost for granting FHA injunctive relief – has occurred.” Id. at * 4.
In the Court’s view, at a minimum, prohibitive injunctive relief enjoining future FHA violations is appropriate. Rogers, 599 F. Supp. at 85-86 (approving prohibitive relief, i.e. ., forbidding a defendant from disobeying the law, and requiring “defendants to take definite steps via education and advertising towards sustained lawful conduct”). Indeed, the Court anticipates that the Garden City Defendants may be willing to consent to this relief. See United States v. Hylton, 3:11-CV-1543 (JCH), 2013 WL 3927858, at *6 (D. Conn. July 26, 2013)(noting the federal government’s acceptance of a general injunction prohibiting it from violating the FHA in the future).
However, because such an injunction merely prohibits what is already prohibited, further relief, perhaps in the form of affirmative relief, appears appropriate. Analogizing to affirmative equitable relief ordered for Title VII violations, courts have looked to traditional principles of equity for guidance. See Park View Heights Corp., 605 F.2d 1033 (directing the district court to take affirmative steps in its efforts to bring low-income housing to the City of Black Jack, but also suggesting that the court meet with the parties to ensure that the relief not be more intrusive on governmental functions than is necessary to achieve the goals of the FHA); see also United States v. City of Parma, Ohio, 661 F.2d 562, 577 (6th Cir. 1981)(“The requirements that the City
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take whatever action may be necessary to permit construction of public housing, adopt a plan to utilize an existing section 8 program and take required steps for submitting an acceptable application for CDBG funds are reasonable.”); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1015 (7th Cir. 1980) (affirming the district court's approval of a consent decree ordering site-specific relief).
In Huntington Branch, N.A.A.C.P., 844 F.2d at 942, the Second Circuit directed the district court to order the Town (1) to rezone the Plaintiff's parcel of land and (2) to strike the challenged portion of its zoning ordinance. In determining the appropriate relief, the Second Circuit pointed to the protracted nature of the litigation and the Town's proven track record of stalling efforts to build low-income housing. Certainly, the present case reflects another example of protracted litigation and, if not a history of opposition to affordable housing in Garden City, certainly a lack of affordable housing in Garden City. For that reason, a directive requiring Garden City to join the Nassau Urban Consortium appears eminently reasonable as a starting point. See Smith v. Town of Clarkton, 682 F.2d 1055, 1065 (4th Cir. 1982)(ordering the Defendant found liable under the FHA to rejoin a regional housing cooperative).
That said, the Court is cognizant of the general reluctance of the judiciary to impose affirmative relief. “If the court orders a FHA defendant to provide affirmative relief, such as to pass policies or rules, build housing or take other affirmative steps toward non-discriminatory housing, then such mandates require serious justification,” Robinson v. Parkshore Co-op., 01 C 2103, 2002 WL 1400322, at *4 (N.D. Ill. June 27, 2002), because it is a “massive judicial intrusion on private autonomy.” Vill. of Arlington Heights, 558 F.2d at 1293. Indeed, there is no constitutional or statutory right for individual citizens to have housing comply with a particular standard, nor is there a concomitant duty on the part of political entities to provide housing.
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Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972). However, “[a]t the same time, municipalities cannot frustrate the underlying policy of providing fair housing within their communities.” Macone v. Town of Wakefield, 277 F.3d 1, 8 (1st Cir. 2002)
In light of these principles, the Court requires further input from the parties on the appropriate remedies in this case. Thus, within thirty days of the date of this order, the Court directs the Plaintiffs to submit a proposed remedial plan to be incorporated in the final judgment in this case. The Garden City Defendants shall then have thirty days to respond with objections, including an alternative remedial plan. In this regard, “[t]he [C]ourt encourages the parties to work cooperatively[, where possible] in formulating a remedial plan so that as many potential objections as possible can be resolved before the plan is submitted to the [C]ourt for consideration and approval.” Inclusive Communities Project, Inc. v. Texas Dep't of Hous. & Cmty. Affairs, 860 F. Supp. 2d 312, 332 (N.D. Tex. 2012).
V. CONCLUSION For the foregoing reasons, the Court find that the Plaintiffs have not established liability on the part of the Garden City Defendants under 42 U.S.C. § 1982 and the amended complaint is dismissed as to that cause of action. However, the Court finds that the Plaintiffs have established by, a preponderance of the evidence, the liability on the part of the Garden City Defendants under (1) the FHA, 42 U.S.C. § 3601 et seq., based on a theory of disparate treatment and disparate impact; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. As noted above, the Court finds that the Garden City Defendants acted with discriminatory intent when they eliminated R-M zoning and endorsed R-T zoning after they
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received public opposition to the prospect of affordable housing in Garden City. The Court notes that R-T zoning banned the development of multi-family housing on all but a small portion of the Social Services site -- the 3.03 acres located on the western side of County Seat Drive – and then only by special permit. The Court also notes the negative remarks by Garden City residents at public hearings and the flyer against multi-family housing on the Social Services Site. Set against the underlying sequence of events and the considerable impact that this zoning decision would have had on minorities in that community, the Court concludes that some of the expressions by Garden City residents of disapproval for affordable housing reflected race-based animus or at least could have been construed as such by the Board.
Furthermore, the Court finds that the adoption of R-T zoning instead of R-M zoning had a disparate impact on minorities in Garden City and tended to perpetuate segregation in that community.
Accordingly, the Court directs the Plaintiffs to submit a proposed remedial plan to be incorporated in the final judgment in this case – within thirty days of the date of this order. The Garden City Defendants shall then have thirty days to respond with objections. The Plaintiffs shall then have 15 days to reply to the Garden City Defendants’ objections. SO ORDERED. Dated: Central Islip, New York December 6, 2013
Arthur D Spatt__________ ARTHUR D. SPATT United States District Judge
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 Case 2:05-cv-02301-ADS-WDW Document 431 Filed 04/22/14 Page 1 of 10 PageID #: 10973

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X MHANY MANAGEMENT INC.,

-and-

Plaintiff,

NEW YORK COMMUNITIES FOR CHANGE, INC.,

FINAL JUDGMENT 05-CV-2301 (ADS)(WDW)

Intervenor-Plaintiff, -against-

INCORPORATED VILLAGE OF GARDEN CITY AND GARDEN CITY BOARD OF TRUSTEES,

Defendants. ---------------------------------------------------------X APPEARANCES:

Law Offices of Frederick K. Brewington Attorneys for the Plaintiffs 556 Peninsula Blvd. Hempstead, New York 11550
By: Frederick K. Brewington, Esq., of Counsel

Lawyers’ Committee for Civil Rights Under Law Attorneys for the Plaintiffs 1401 New York Avenue, NW Suite 400 Washington, DC 20005
By: Joseph D. Rich, Esq. Linda H. Mullenbach, Esq. Abigail E. Shafroth, Esq., of Counsel

Hogan Lovells US LLP Attorneys for the Plaintiff Mhany Management Inc. 875 Third Avenue New York, New York 10022
By: Stanley J. Brown, Esq. Peter J. Dennin, Esq. Chava Brandriss, Esq. Andrew J. Sein, Esq.he h Sarah J. Gregory, Esq.
1

Case 2:05-cv-02301-ADS-WDW Document 431 Filed 04/22/14 Page 2 of 10 PageID #: 10974
Benjamin A. Fleming, Esq. Carol H. Cheng, Esq. Of Counsel
Cullen and Dykman, LLP Attorneys for the Defendants Incorporated Village of Garden City and Garden City Board of Trustees 100 Quentin Roosevelt Boulevard Garden City, NY 11530
By: James G. Ryan, Esq. Ariel E. Ronneburger, Esq. Thomas B. Wassel, Esq. Cynthia Ann Augello, Esq. Douglas J. Bohn, Esq. Jennifer A. McLaughlin, Esq., of Counsel
Jones Day Attorneys for the Defendants Incorporated Village of Garden City and Garden City Board of Trustees 51 Louisiana Ave N.W. Washington, D.C. 20001
By: Michael A. Carvin
SPATT, District Judge.
I. INTRODUCTION
A. Plaintiff MHANY Management, Inc. (“MHANY”) (formerly known as New York
ACORN Housing Company, Inc.), Intervenor-Plaintiff New York Communities for Change, Inc.
(“NYCC”) (practical successor to former Plaintiff New York Association of Community
Organizations for Reform Now) (collectively, “Plaintiffs”) and several individual former
plaintiffs commenced this lawsuit against Defendants Incorporated Village of Garden City, the
Garden City Board of Trustees (collectively, “Garden City”), and Defendant County of Nassau
(the “County”) on May 12, 2005 by filing a Complaint asserting claims pursuant to the Fair
Housing Act, 42 U.S.C. § 3601 et seq. (the “FHA”); 42 U.S.C. § 1981; 42 U.S.C. § 1982; 42
U.S.C. § 1983; 42 U.S.C. § 2000d et seq.; and the Equal Protection Clause of the Fourteenth
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Case 2:05-cv-02301-ADS-WDW Document 431 Filed 04/22/14 Page 3 of 10 PageID #: 10975
Amendment to the United States Constitution. On February 12, 2012, the Court granted summary judgment to the County, and dismissed the case against the County.
B. The Complaint alleged that Garden City discriminatorily re-zoned approximately twenty-five acres of County-owned land located in Garden City (the “Social Services Site”) to prevent affordable housing from being built, which would likely be occupied by minorities.
C. The Court conducted an 11-day bench trial commencing on June 17, 2013. After considering the evidence and the arguments submitted at the trial and the written submissions of the parties, the Court issued a Memorandum of Decision and Order dated December 6, 2013. In that Decision and Order, the Court found that Garden City acted with discriminatory intent in re-zoning the Social Services Site. The Court further found Garden City liable under (1) the FHA, based on theories of both disparate treatment and disparate impact; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Accordingly, it is hereby ORDERED, ADJUDGED and DECREED as follows: II. JURISDICTION
The Court has jurisdiction over this case pursuant to 42 U.S.C. § 3613 and 28 U.S.C. §§ 1343 and 2201. III. DISMISSAL OF NASSAU COUNTY
Pursuant to this Court’s February 15, 2012 order granting summary judgment to the County, the Clerk of Court is directed to enter a final judgment of dismissal as to the County. IV. GENERAL NON-DISCRIMINATION
In accordance with the laws of the United States, Garden City shall not take any action:
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A. Interfering in any way with any person in the exercise of his or her right under the law to secure equal housing opportunities for himself, herself, or others, or any other right enjoyed under the FHA;
B. Interfering with the development or acquisition of any affordable housing units because of race, color, or national origin; and
C. Discriminating because of race, color, or national origin in any aspect of the enactment or administration of zoning, land use, special permit, or building ordinance laws, policies, practices, requirements, or processes relating to residential property. V. FAIR HOUSING RESOLUTION
Within sixty days of the date of this Judgment, Garden City shall adopt a Fair Housing Resolution setting forth the fair housing policy of Garden City as it relates to zoning and land use: to assure equal housing opportunities and nondiscrimination in its zoning and other land use processes. VI. REZONING THE SOCIAL SERVICES SITE
In the event the County announces, within one year of the date of this Judgment, that it intends to sell the Social Services Site for residential development, Garden City shall, within thirty days of being notified of that announcement, begin the process of rezoning the Social Services Site with the R-M zoning designation so as to allow for residential multifamily development on the Social Services Site as of right, with no additional permitting or variance processes required. The Social Services Site shall be rezoned R-M no later than ninety days from the date Garden City is notified of the County’s intent under this section, provided all the requirements of the State Environmental Quality Review Act are met.
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VII. PARTICIPATION IN THE NASSAU COUNTY URBAN CONSORTIUM In the event the County does not announce, within one year of the date of this judgment,
that it intends to sell the Social Services Site for residential development, or, if the County so announces, but does not actually sell the Social Services Site for residential development within two years of the date of this Judgment, Garden City shall immediately – at the expiration of either the one year or two year period, as appropriate – apply to become a member of the Nassau County Urban Consortium (the “Consortium”).
Once accepted as a member of the Consortium, Garden City shall participate in Consortium activities in good faith. VIII. AFFORDABLE HOUSING REQUIREMENT
A. “Affordable Housing” as used in this section refers to housing for which a family whose income is 80% or less of the Nassau-Suffolk Metropolitan Statistical Area Median Income (to include families defined by the Department of Housing and Urban Development (“HUD”) as “low income,” “very low income,” or “extremely low income”), pays no more than 30% of its income.
B. In the event the County does not announce, within one year of the date of this Judgment, that it intends to sell the Social Services Site for residential development, or the County so announces, but does not actually sell the Social Services Site for residential development within two years of the date of this Judgment, Garden City shall immediately – at the expiration of either the one year or two year period, as appropriate – require that ten percent of newly constructed residential developments of five units or more be reserved for Affordable Housing, as follows:
1. Garden City will require that, when Garden City approves a subdivision
5

Case 2:05-cv-02301-ADS-WDW Document 431 Filed 04/22/14 Page 6 of 10 PageID #: 10978
plat or site plan for five or more residential units or approves a mixed-use development that incorporates five or more residential units, the applicant shall receive a density bonus or other incentive pursuant to a written agreement between the applicant and Garden City, and Garden City shall require of the applicant: (a) to set aside at least ten percent of such units for Affordable Housing on the site; or (b) the provision of other land and the construction of the required Affordable Housing units that are not part of the applicant’s current subdivision plat or site plan but are to be provided on another site within Garden City.
2. “Density bonus” means a density increase of at least ten percent over the otherwise maximum allowable residential density or floor area ratio if part of a mixed use development under the Village of Garden City Zoning Code (the “Code”) and Comprehensive Plan (the “Plan”) as of the date of the application by the applicant to Garden City. All density calculations resulting in fractional units shall be rounded to the nearest whole number.
3. Applicants for residential unit development in Garden City may not avoid this Affordable Housing set-aside by opting to build at less than maximum density under the Code and Plan.
4. Applicants for residential unit development in Garden City may not “buy out” of this Affordable Housing set-aside requirement.
5. Garden City will ensure that all Affordable Housing units remain Affordable Housing through the use of deed restrictions. IX. FAIR HOUSING TRAINING
A. Garden City shall implement an annual fair housing training program for all elected Garden City officials, and for all officials and Garden City employees who have duties related to the planning, zoning, permitting, construction, or occupancy of residential housing.
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Case 2:05-cv-02301-ADS-WDW Document 431 Filed 04/22/14 Page 7 of 10 PageID #: 10979
The primary purpose of this training program is to educate those persons with respect to the requirements of this Judgment, the FHA, and state and local fair housing laws.
B. The fair housing training shall be conducted by a qualified third party entity or individual, mutually agreed upon by the parties, that has experience providing fair housing training.
C. Each year, at least one time per calendar year, Garden City shall provide in person training of the requirements of this Judgment, the FHA, and state and local fair housing laws. All elected officials, and all officials and employees who have duties related to the planning, zoning, permitting, construction, or occupancy of residential housing shall be required to attend the in-person training within the first year after this Judgment. All newly elected officials, and all newly appointed officials and hired employees who have duties related to the planning, zoning, permitting, construction, or occupancy of residential housing shall be required to attend the in-person training within one year of their election, appointment or hiring.
D. Each person who attends an in-person training session shall sign a form attesting to the fact that he or she completed the training and the date on which it was completed. All training certification forms shall be maintained by Garden City for five years from the date of signature, and made publicly available upon request to the Garden City Village Clerk. X. FUNDING OF RELIEF
Garden City shall take reasonable measures to fund the relief required by this Judgment. XI. IMPLEMENTATION AND ENFORCEMENT OF THIS JUDGMENT
A. Fair Housing Compliance Officer: Within ninety days of the date of this Judgment, Garden City shall appoint a person who shall serve as Garden City’s Fair Housing Compliance Officer (“FHCO”). The FHCO may not be a current or past employee or elected
7

Case 2:05-cv-02301-ADS-WDW Document 431 Filed 04/22/14 Page 8 of 10 PageID #: 10980
official of Garden City, but rather, shall be a third-party independent contractor mutually agreed upon by the parties. Garden City shall at all times during the term of this Judgment maintain a FHCO. The FHCO shall:
1. oversee Garden City’s compliance with this Judgment and maintain copies of this Judgment; and
2. receive and review complaints of alleged housing discrimination against Garden City.
B. Record-Keeping Requirements: Garden City shall retain and preserve all records, forms, logs, reports, and other written documents, including electronic records and files, that are relevant to compliance with this Judgment. Garden City shall be responsible for maintaining and preserving, or supervising the maintenance and preservation of, these records. These records shall be maintained for so long as the Court retains jurisdiction over this action, as set out below in Section XIV.
C. Compliance Reports: Garden City shall provide annual reports (“Compliance Reports”), beginning six months after the date of this Judgment, identifying all actions taken by Garden City to comply with the terms of this Judgment so long as the Court retains jurisdiction over this action, as set out below in Section XIV. The Compliance Reports shall be made publicly available and shall be able to be obtained by submission of a written request to the Garden City Village Clerk. Garden City shall also provide the Compliance Reports to the Court. The following information shall be included in the Compliance Reports:
1. A description of all actions taken by Garden City to comply with the terms of this Judgment;
2. A description of the Fair Housing Training required by this Judgment;
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3. Any requests for zone changes received by Garden City to accommodate residential housing development for five or more units;
4. Any proposals for residential development of five (5) or more units that have been submitted by the Village.
5. Any written complaint received by Garden City alleging discrimination by Garden City related to zoning or fair housing, with a report of the action taken by Garden City in response to such complaint, including court filings, etc.; and
D. Notice: All notices or writings required to be provided under this Judgment shall be addressed to counsel for the parties. XII. TIME FOR COMPLIANCE AND PROCEDURE FOR NON-COMPLIANCE
A. Garden City’s duties and obligations regarding enacting a Fair Housing Resolution as set out above in Section V, conducting Fair Housing Training as set out above in Section IX, and appointment and maintenance of a FHCO as set out above in Section XI.A shall expire four years after the date of this Judgment.
B. The requirement of a non-discrimination injunction as set out above in Section IV has no time limitation.
C. Garden City’s duties and obligations regarding rezoning the Social Services Site for residential multifamily housing development (R-M) as set out above in Section VI, joining the Consortium as set out above in Section VII, requiring Affordable Housing as set out above in Section VIII, and expending sums to fund the relief required by this Judgment as set out above in Section X shall expire five years after the date of this Judgment. XIII. ATTORNEYS’ FEES AND COSTS
Pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), the Plaintiffs shall have fourteen
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days from the date this Judgment is entered to file a petition for attorneys’ fees and costs. See 42 U.S.C. § 3613(c) and 42 U.S.C. § 1988(b). XIV. RETENTION OF JURISDICTION
A. This Court retains jurisdiction over the action until Garden City has fulfilled all of its obligations under this Judgment, as determined by the Court, for the purpose of enforcing any of its provisions and terms.
B. The parties shall work cooperatively with one another and in good faith and should use their best efforts to effectuate the purposes of this Judgment and to resolve informally any differences regarding interpretation of and compliance with this Judgment prior to bringing such matters to the Court for resolution.
C. The parties shall have the right to seek from the Court relevant modifications of this Judgment to ensure that its purposes are fully satisfied, provided that any request for a modification has been preceded by good faith negotiations between the parties. The parties may agree in writing to modify the deadlines established in this Judgment without Court approval, but such a writing must be filed with the Court.
D. The Clerk of the Court is directed to close this case. SO ORDERED. Dated: Central Islip, New York April 22, 2014

__ Arthur D. Spatt

_

ARTHUR D. SPATT United States District Judge

10

 
 Case 2:05-cv-02301-ADS-WDW Document 468 Filed 09/11/14 Page 1 of 6 PageID #: 12744

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X MHANY MANAGEMENT INC.,

-and-

Plaintiff,

NEW YORK COMMUNITIES FOR CHANGE, INC.,

SHORT ORDER 05-CV-2301 (ADS)(WDW)

Intervenor-Plaintiff, -against-

INCORPORATED VILLAGE OF GARDEN CITY AND GARDEN CITY BOARD OF TRUSTEES,

Defendants. ---------------------------------------------------------X APPEARANCES:

Law Offices of Frederick K. Brewington Attorneys for the Plaintiffs 556 Peninsula Blvd. Hempstead, New York 11550
By: Frederick K. Brewington, Esq., of Counsel

Lawyers’ Committee for Civil Rights Under Law Attorneys for the Plaintiffs 1401 New York Avenue, NW Suite 400 Washington, DC 20005
By: Joseph D. Rich, Esq. Linda H. Mullenbach, Esq. Abigail E. Shafroth, Esq., of Counsel

Hogan Lovells US LLP Attorneys for the Plaintiff Mhany Management Inc. 875 Third Avenue New York, New York 10022
By: Stanley J. Brown, Esq. Peter J. Dennin, Esq. Chava Brandriss, Esq. Andrew J. Sein, Esq.he h Sarah J. Gregory, Esq.
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Case 2:05-cv-02301-ADS-WDW Document 468 Filed 09/11/14 Page 2 of 6 PageID #: 12745
Benjamin A. Fleming, Esq. Carol H. Cheng, Esq. Of Counsel
Cullen and Dykman, LLP Attorneys for the Defendants Incorporated Village of Garden City and Garden City Board of Trustees 100 Quentin Roosevelt Boulevard Garden City, NY 11530
By: James G. Ryan, Esq. Ariel E. Ronneburger, Esq. Thomas B. Wassel, Esq. Cynthia Ann Augello, Esq. Douglas J. Bohn, Esq. Jennifer A. McLaughlin, Esq., of Counsel
Jones Day Attorneys for the Defendants Incorporated Village of Garden City and Garden City Board of Trustees 51 Louisiana Ave N.W. Washington, D.C. 20001
By: Michael A. Carvin, Esq., Of Counsel
SPATT, District Judge.
Familiarity with the procedural and factual history of this case is presumed. By way of
background, by Memorandum of Decision and Order dated December 6, 2013, the Court found,
after a bench trial, that the Plaintiff MHANY Management, Inc. and Plaintiff-Intervenor New
York Communities for Change, Inc. (collectively the “Plaintiffs”) established the liability of the
Defendants the Incorporated Village of Garden City and the Garden City Board of
Trustees (“Garden City”) under (1) the Fair Housing Act, 42 U.S.C. § 3601 et seq. (the “FHA”),
based on theories of both disparate intent and disparate impact; (2) 42 U.S.C. § 1981; (3) 42
U.S.C. § 1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.
A “Final Judgment” containing various forms of injunctive relief against the Defendants
was entered on April 22, 2014. As part of the Final Judgment and under Federal Rule of Civil
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Case 2:05-cv-02301-ADS-WDW Document 468 Filed 09/11/14 Page 3 of 6 PageID #: 12746
Procedure (“Fed. R. Civ. P.”) 54(d)(2)(B), the Plaintiffs were given fourteen days from the date of the judgment to file an application for attorneys’ fees and costs. Following a court-approved extension of this deadline, on May 15, 2014, the Plaintiffs filed a motion for attorneys’ fees and costs, seeking over $5.6 million in total.
In the interim, on May 5, 2014, Garden City filed an appeal of the Final Judgment (the “Garden City Merits Appeal”) to the United States Court of Appeals for the Second Circuit. The Garden City Merits Appeal is pending. Also pending before the Second Circuit is an appeal by the Plaintiffs of that part of the Final Judgment dismissing the Defendant County of Nassau from this action.
On July 2, 2014, Garden City opposed the motion for attorneys’ fees and separately moved pursuant to Fed. R. Civ. P. 54(d)(2)(B) to defer a ruling on the Plaintiffs’ motion for attorneys’ fees until after the Second Circuit renders a decision on the Garden City Merits Appeal.
“Where the losing party takes an appeal on the merits of case, the district court has the discretion to defer ruling on the prevailing party’s motion for attorney’s fees.” Gill v. Bausch & Lomb Supplemental Ret. Income Plan I, 6:09-CV-6043 (MAT), 2014 WL 1404902, at *1 (W.D.N.Y. Apr. 10, 2014)(citing 1993 Advisory Committee Notes to Fed. R. Civ. P. 54(d)(stating that “if an appeal on the merits of the case is taken, the [district] court may rule on the claim for fees, may defer its ruling on the motion, or may deny the motion without prejudice directing under subdivision (d)(2)(B) [of Rule 54] a new period for filing after the appeal has been resolved”)).
Here, the Court notes that a Second Circuit reversal of that part of the Final Judgment finding Garden City liable would moot the Plaintiffs’ motion for attorneys’ fees because the
3

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Plaintiffs would no longer be “prevailing part[ies]” entitled to such fees under 42 U.S.C. § 3613(c)(2) and 42 U.S.C. § 1988(b). In other words, “deferring a ruling on [the P]laintiffs’ motion for attorneys’ fees until the Second Circuit resolves [the Garden City Merits A]ppeal ensures that the Court only has to address the motion for attorneys’ fees by the party that ultimately prevails.” Doe ex rel. Doe v. E. Lyme Bd. of Educ., 3:11 CV 291 (JBA), 2014 WL 4370504, at *2 (D. Conn. Sept. 2, 2014)(citing Gill, 2014 WL 1404902, at * 1). And, as in Gill, “[u]nder these circumstances, the Court finds that delaying resolution of [the P]laintiffs’ request for attorneys’ fees until [Garden City’s] appeal on the merits has been decided is the more prudent course of action.” Id. (internal quotations & citations omitted).
To be sure, deferring a ruling on attorneys’ fees until resolution of the Garden City Merits Appeal would preclude possible consolidation of that appeal with an appeal of an order of this Court on fees and costs, and could produce piecemeal appeals, which are disfavored in this circuit. Lake v. Schoharie Cnty. Com’r of Soc. Servs., CIVA901CV1284 (NAM)(DEP), 2006 WL 1891141, at *3 n. 2 (N.D.N.Y. May 16, 2006)(“While additional motion practice to address the issue of additional attorneys’ fees incurred in connection with the pending appeal and any subsequent proceedings in this court, should plaintiff's claims survive on appeal, may well be unavoidable, this possible eventuality does not provide a basis to defer ruling upon the pending fee application. To accept defendants' argument and defer a ruling on the attorneys’ fees issue until resolution of the pending cross-appeals would almost certainly prompt a second appellate challenge and, accordingly, would run contrary to the Second Circuit's teaching that Rule 54(d) and its time limit was intended to avoid piecemeal appeals by consolidating of appellate resolution of issues of the type now raised by the parties in opposition to plaintiff's fee application with other, substantive arguments raised on appeal.”).
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However, even if this Court resolved the Plaintiffs’ fee application before the Second Circuit ruled on the Garden City Merits Appeal, there is no certainty that the Second Circuit would consolidate an appeal from this Court’s order on fees with the pending cross-appeals. Further, with regard to the pending cross-appeals, “there is likely to be a myriad of issues before the Second Circuit beyond the merits of the case,” including standing and mootness, and the Plaintiffs are likely to seek supplemental attorneys’ fees for the present fee application if they prevail on liability before the Second Circuit. Doe ex rel. Doe, 2014 WL 4370504, at *2. Thus, “this case is not likely to be finished even after the Second Circuit rules upon the crossappeals, and given the course of litigation to date, could well find its way back to the Second Circuit a second time” in any event. Id.; see also Matsumura v. Benihana Nat’l Corp., No. 06 Civ 7609 (NRB), 2014 WL 1553638, at *6 (S.D.N.Y. Apr. 17, 2014)(denying the defendant’s motion for attorneys’ fees without prejudice and deferring consideration thereof until after the Second Circuit addressed the merits of the plaintiffs’ pending appeal)(citing Tancredi v. Metro. Life Ins. Co., 378 F.2d 220, 225–26 (2d Cir. 2004)).
Further, the Court identifies little, if any, prejudice to the Plaintiffs by delaying resolution of the Plaintiffs’ request for fees until after the Garden City Merits Appeal has been decided because interest on any fee award would continue to run on the amount due and owing.
The Defendants do not seek to defer a ruling on costs, and in fact, in their memorandum in opposition to the Plaintiffs’ motion for fees and costs, the Defendants do not challenge the Plaintiffs’ request for costs. However, as costs awarded under 42 U.S.C. § 1988 and the FHA are also limited to the “prevailing party” in a litigation, the Court exercises its discretion in the interests of judicial economy and defers ruling on the Plaintiffs’ application for costs until after the Second Circuit has resolved the cross-appeals.
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Accordingly, the Court (1) grants Garden City’s motion to defer ruling on the Plaintiffs’ motion for attorneys’ fees until after the Second Circuit renders a decision on the Garden City Merits Appeal and (2) the Plaintiffs’ motion for attorneys’ fees and costs is denied without prejudice to renew such motion no later than fourteen (14) days after the date a ruling on the merits of the cross-appeals by the Second Circuit is entered on the docket of this district court. Gill, 2014 WL 1404902, at *3; Matsumura, 2014 WL 1553638, at *6.

SO ORDERED. Dated: Central Islip, New York September 11, 2014

__ Arthur D. Spatt

_

ARTHUR D. SPATT United States District Judge

6

 
 Case 2:05-cv-0C23a0s1e-A14D-S16-W34D,WDocDuomceunmt e1n-1t ,40356/09F/i2le0d140,51/0253/010429P, aPgaege11oof f15P1ageID #: 10990

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

MHANY MANAGEMENT, INC.,
Plaintiff,
-and-
NEW YORK COMMUNITIES FOR CHANGE, INC.
Intervenor-Plaintiff
vs.
INCORPORATED VILLAGE OF GARDEN CITY AND GARDEN CITY BOARD OF TRUSTEES,
Defendants.

) ) ) ) ) ) ) ) ) Case No. 05-cv-2301 ) ) Judge Arthur D. Spatt ) ) ) ) ) ) )

DEFENDANTS’ NOTICE OF APPEAL

Notice is hereby given that the defendants in the above-referenced case, the Incorporated Village of Garden City and the Garden City Board of Trustees, appeal to the United States Court of Appeals for the Second Circuit from the Final Judgment entered in this action on April 22, 2014.

Dated: May 5, 2014

By: /s/ Michael A. Carvin Michael A. Carvin (MC9266) JONES DAY 51 Louisiana Avenue NW Washington, DC 20001 Phone: (202) 879-3939
Attorney for Defendants

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2DoTf 511 of 50
APPEAL,MAGAPP
U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:05−cv−02301−ADS−WDW
Internal Use Only

Mhany Management Inc. et al v. County Of Nassau et al Assigned to: Judge Arthur D. Spatt Referred to: Magistrate Judge William D. Wall Cause: 42:405 Fair Housing Act
Plaintiff

Date Filed: 05/12/2005 Date Terminated: 04/22/2014 Jury Demand: Plaintiff Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

Acorn (The New York Association of Community Organizations For Reform Now), TERMINATED: 06/15/2010

represented by Frederick K. Brewington Law Offices of Frederick K. Brewington 556 Peninsula Boulevard Hempstead, NY 11550 516−489−6959 Fax: 516−489−6958 Email: fred@brewingtonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph D. Rich Lawyers' Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 202−662−8331 Fax: 202−783−5113 Email: jrich@lawyerscommittee.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nicole Birch Lawyers' Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 202−662−8303 Email: nbirch@lawyerscommittee.org TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul B Sweeney Hogan &Hartson LLP 875 Third Avenue New York, NY 10022 212−918−3619 Fax: 212−918−3100 TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna F. Wasick Hogan Lovells US LLP 875 Third Avenue

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3DoTf 512 of 50

New York, NY 10022 212−918−3000 Fax: 212−918−3100 Email: joanna.wasick@hoganlovells.com ATTORNEY TO BE NOTICED

Kim Frances Bridges Hogan &Hartson, LLP 875 Third Avenue New York, NY 10022 212−918−3000 Fax: 212−918−3100 TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Linda H. Mullenbach Lawyers' Committee For Civil Rights Under Law 1401 New York Avenue Nw, Suite 400 Washington, DC 20005 202−662−8340 Fax: 202−783−0857 Email: lmullenbach@lawyerscommittee.org ATTORNEY TO BE NOTICED

Marjorie Mesidor Law Offices of Frederick K. Brewington 556 Penisula Blvd. Hempstead, NY 11550 516−489−6959 Fax: 516−489−6958 Email: office@brewingtonlaw.com TERMINATED: 09/20/2011

Sabrina Helene Cochet Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212−918−3000 Fax: 212−918−3100 Email: sabrina.cochet@hoganlovells.com ATTORNEY TO BE NOTICED

Stanley Joseph Brown Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212−918−3692 Fax: 212−918−3100 Email: stanley.brown@hoganlovells.com ATTORNEY TO BE NOTICED

Plaintiff
Daphne Andrews TERMINATED: 04/13/2010

represented by Joseph D. Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4DoTf 513 of 50

Plaintiff Vic Devita

Megumi Sakae Marr Jones &Wang Pauahi Tower 1003 Bishop Street Suite 1500 Honolulu, HI 96813 808−536−4900 Fax: 808−536−6700 Email: msakae@marrhipp.com TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Starr Holland &Knight 195 Broadway, 24th Floor New York, NY 10007 212−513−3506 Fax: 212−385−9010 Email: michael.starr@hklaw.com TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph D. Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megumi Sakae (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE5DoTf 514 of 50
Michael Starr (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Joseph Dennin Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212−918−3000 Fax: 212−918−3100 Email: peter.dennin@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail E. Shafroth Lawyers' Committee for Civil Rights Under Law 1401 New York Ave, Nw Suite 400 Washington, DC 20005 202−662−8342 Fax: 202−783−0857 Email: ashafroth@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Chava Brandriss Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212−918−3000 Fax: 212−918−3100 Email: chava.brandriss@hoganlovells.com ATTORNEY TO BE NOTICED
Cynthia Dorsainvil Sleet Hogan &Hartson LLP 875 Third Avenue New York, NY 10022 212−918−3000 Fax: 212−918−3100 TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Joanna F. Wasick (See above for address) ATTORNEY TO BE NOTICED
Linda H. Mullenbach

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE6DoTf 515 of 50

(See above for address) ATTORNEY TO BE NOTICED

Luz Maria Henriquez Hogan Lovells US LLP 875 Third Ave New York, NY 10022 347−712−0371 Fax: 212−918−3100 Email: luz.henriquez@hoganlovells.com ATTORNEY TO BE NOTICED

Sabrina Helene Cochet (See above for address) ATTORNEY TO BE NOTICED

Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Vernon Ghullkie TERMINATED: 05/22/2008

represented by Joseph D. Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megumi Sakae (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Starr (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Joseph Dennin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cynthia Dorsainvil Sleet

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE7DoTf 516 of 50

(See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Jenny Rubin Robertson Hogan &Hartson LLP 875 Third Avenue New York, NY 10022 212−918−3000 Fax: 212−918−3100 Email: jrrobertson@hhlaw.com ATTORNEY TO BE NOTICED

Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED

Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED

Toby William Smith Hogan &Hartson, LLP 875 Third Avenue New York, NY 10022 212−918−3000 Fax: 212−918−3100 Email: twsmith@hhlaw.com ATTORNEY TO BE NOTICED

Plaintiff
Natalie Guerrido TERMINATED: 10/24/2006

represented by Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megumi Sakae (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Starr (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cynthia Dorsainvil Sleet (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Jenny Rubin Robertson (See above for address) ATTORNEY TO BE NOTICED

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE8DoTf 517 of 50

Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED

Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lisbett Hunter TERMINATED: 05/22/2008

represented by Joseph D. Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY

Peter Joseph Dennin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cynthia Dorsainvil Sleet (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Jenny Rubin Robertson (See above for address) ATTORNEY TO BE NOTICED

Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED

Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED

Toby William Smith (See above for address) ATTORNEY TO BE NOTICED

Plaintiff McCray, Francine

represented by Joseph D. Rich (See above for address) LEAD ATTORNEY PRO HAC VICE

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE9DoTf 518 of 50
ATTORNEY TO BE NOTICED
Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY
Peter Joseph Dennin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail E. Shafroth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew Jaan Sein Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 (212)918−3582 Fax: (212)918−3100 Email: andrew.sein@hoganlovells.com ATTORNEY TO BE NOTICED
Benjamin Andrew Fleming Hogan Lovells US LLP 875 Third Avenue New York, NY 10222 212−918−3283 Fax: 212−918−3100 Email: benjamin.fleming@hoganlovells.com ATTORNEY TO BE NOTICED
Chava Brandriss (See above for address) ATTORNEY TO BE NOTICED
Cynthia Dorsainvil Sleet (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Joanna F. Wasick (See above for address) ATTORNEY TO BE NOTICED
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED

CaseC: 2a:s0e5-1c4v--10623340,1D-AoDcuSm-WenDtW1-1,A0s5/o0f9: /0250/1049,/2102134001209:5,1PAagMe1E0DoTf 591 of 50

Luz Maria Henriquez (See above for address) ATTORNEY TO BE NOTICED

Sabrina Helene Cochet (See above for address) ATTORNEY TO BE NOTICED

Sarah Joy Gregory Hogan Lovells 875 Third Avenue New York, NY 10022 212−918−3047 Fax: 212−918−3100 Email: sarah.gregory@hoganlovells.com ATTORNEY TO BE NOTICED

Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
MHANY Management, Inc. also known as New York Acor Housing Company

represented by Joseph D. Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stanley Joseph Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail E. Shafroth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andrew Jaan Sein (See above for address) TERMINATED: 04/26/2014 ATTORNEY TO BE NOTICED

Benjamin Andrew Fleming (See above for address) ATTORNEY TO BE NOTICED

Caroline H. Cheng Hogan Lovells US LLP 875 Third Ave New York, NY 10022

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D1Tof 5110 of 50

(212)918−3045 Fax: (212)918−3100 Email: caroline.cheng@hoganlovells.com ATTORNEY TO BE NOTICED

Chava Brandriss (See above for address) ATTORNEY TO BE NOTICED

Joanna F. Wasick (See above for address) TERMINATED: 07/20/2013 ATTORNEY TO BE NOTICED

Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED

Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED

Peter Joseph Dennin (See above for address) ATTORNEY TO BE NOTICED

Sabrina Helene Cochet (See above for address) ATTORNEY TO BE NOTICED

Sarah Joy Gregory (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
New York Acorn Housing Company, Inc. TERMINATED: 06/15/2010

represented by Joanna F. Wasick (See above for address) ATTORNEY TO BE NOTICED

Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED

Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
New York Communities For Change, Inc.

represented by Joseph D. Rich (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda H. Mullenbach

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D2Tof 5111 of 50
Lawyers' Committee For Civil Rights Under Law 1401 New York Ave Nw Suite 400 Washington, DC 20005 202−662−8340 Fax: 202−783−0857 Email: lmullenbach@lawyerscommittee.org ATTORNEY TO BE NOTICED

V.
Defendant
County of Nassau TERMINATED: 02/15/2012

represented by Andrew Reginald Scott Office of the Nassau County Attorney 1 West Street Mineola, NY 11501 516−571−3056 Fax: 516−571−3058 Email: ascott@nassaucountyny.gov TERMINATED: 01/06/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ralph J. Reissman Nassau County Attorney's Office One West Street Mineola, NY 11501 516−571−3046 Fax: 516−571−6604 Email: rreissman@nassaucountyny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bethany Bresnaider O'Neill Nassau County Attorney's Office One West Street . Mineola, NY 11501 516−571−6146 Fax: 516−571−3058 Email: BONeill@nassaucountyny.gov TERMINATED: 08/04/2006
David Bruce Goldin Nassau County Attorney One West Street Mineola, NY 11501 516−571−3056 Fax: 516−571−6604 TERMINATED: 10/05/2009 ATTORNEY TO BE NOTICED
Esther D. Miller Nassau County Attorney's Office One West Street Mineola, NY 11501 516−571−3066 Fax: 516−571−3058 TERMINATED: 01/06/2010 ATTORNEY TO BE NOTICED
Karen Lynch Heidell Pittoni Murphy &Bach LLP

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D3Tof 5112 of 50

1050 Franklin Avenue Garden City, NY 11501 516−408−1600 Email: kschmidt@hpmb.com TERMINATED: 01/06/2010 ATTORNEY TO BE NOTICED

Defendant
Nassau County Planning Commission TERMINATED: 12/06/2005

represented by David Bruce Goldin (See above for address) TERMINATED: 10/05/2009 ATTORNEY TO BE NOTICED

Esther D. Miller (See above for address) TERMINATED: 06/29/2010 ATTORNEY TO BE NOTICED

Ralph J. Reissman (See above for address) ATTORNEY TO BE NOTICED

Defendant
Nassau County Office of Real Estate &Development TERMINATED: 12/06/2005

represented by David Bruce Goldin (See above for address) TERMINATED: 10/05/2009 ATTORNEY TO BE NOTICED

Esther D. Miller (See above for address) TERMINATED: 06/29/2010 ATTORNEY TO BE NOTICED

Ralph J. Reissman (See above for address) ATTORNEY TO BE NOTICED

Defendant Incorporated Village of Garden City

represented by James G. Ryan Cullen and Dykman, LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 (516) 357−3700 Fax: (516) 296−9155 Email: jryan@cullenanddykman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ariel E. Ronneburger Cullen and Dykman LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 516−296−9182 Fax: 516−296−9155 Email: aronneburger@cullenanddykman.com ATTORNEY TO BE NOTICED

Cynthia Ann Augello Cullen and Dykman LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 516−357−3753 Fax: 516−357−3792

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D4Tof 5113 of 50

Email: caugello@cullenanddykman.com ATTORNEY TO BE NOTICED

Douglas J. Bohn Cullen and Dykman, LLP 100 Quentin Roosevelt Blvd. Garden City, NY 11530 516−357−3700 Fax: 516−296−9155 Email: dbohn@cullenanddykman.com ATTORNEY TO BE NOTICED

Jennifer A. McLaughlin Cullen and Dykman Bleakley Platt, LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 516−357−3713 Fax: 516−296−9155 Email: jmclaughlin@cullenanddykman.com ATTORNEY TO BE NOTICED

Michael A. Carvin Jones Day 51 Louisiana Avenue, NW Washington, DC 20001 202−879−3939 Fax: 202−626−1700 Email: macarvin@jonesday.com ATTORNEY TO BE NOTICED

Sardar Mohammad Asadullah Cullen and Dykman LLP 100 Quentin Roosevelt Blvd Garden City, NY 11530 516−357−3700 Fax: 516−296−9155 Email: sasadullah@cullenanddykman.com ATTORNEY TO BE NOTICED

Thomas B. Wassel Cullen and Dykman LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 516−357−3868 Fax: 516−296−9155 Email: twassel@cullenanddykman.com ATTORNEY TO BE NOTICED

Defendant Garden City Board of Trustees

represented by James G. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ariel E. Ronneburger (See above for address) ATTORNEY TO BE NOTICED

Cynthia Ann Augello (See above for address) ATTORNEY TO BE NOTICED

Douglas J. Bohn (See above for address)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D5Tof 5114 of 50
ATTORNEY TO BE NOTICED
Jennifer A. McLaughlin (See above for address) ATTORNEY TO BE NOTICED
Sardar Mohammad Asadullah (See above for address) ATTORNEY TO BE NOTICED
Thomas B. Wassel (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/12/2005
05/12/2005
05/12/2005 05/16/2005 05/19/2005
05/19/2005
05/19/2005
05/19/2005
05/19/2005
06/08/2005 06/08/2005 06/08/2005 06/08/2005 06/08/2005 06/08/2005
06/09/2005

# Docket Text
1 COMPLAINT (Receipt #309802) against all defendants $ 250, filed by all plaintiffs. (Attachments: # 1 Civil Cover Sheet)(Carine, Sandra) (Entered: 05/16/2005)
Summons Issued as to County of Nassau, Nassau County Planning Commission, Nassau County Office of Real Estate &Development, Incorporated Village of Garden City, Garden City Board of Trustees. (Carine, Sandra) (Entered: 05/16/2005)
2 DISCLOSURE of Interested Parties by Vernon Ghullkie, Natalie Guerrido, Acorn, Daphne Andrews, Vic Devita.(Carine, Sandra) (Entered: 05/16/2005)
Case Ineligible for Arbitration(Bollbach, Jean) (Entered: 05/16/2005)
3 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. Nassau County Office of Real Estate &Development served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
4 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. County of Nassau served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
5 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. Nassau County Planning Commission served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
6 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. Incorporated Village of Garden City served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
7 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. Garden City Board of Trustees served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
8 AFFIDAVIT of Service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
9 AFFIDAVIT of service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
10 AFFIDAVIT of service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
11 AFFIDAVIT of service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
12 AFFIDAVIT of service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
13 STIPULATION to Extend Time to Answer by County of Nassau, Nassau County Planning Commission, Nassau County Office of Real Estate &Development. (Attachments: # 1 Stipulation to Extend Time to Answer)(Bresnaider O'Neill, Bethany) (Entered: 06/08/2005)
ORDER The stipulation extending the Nassau County Defendants' time to answer, docketed as attacment #1 to 13 , is hereby SO ORDERED. Ordered by Judge William D. Wall on 6/9/05. (Disbrow, Sandra) (Entered: 06/09/2005)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D6Tof 5115 of 50

06/14/2005
06/15/2005 06/17/2005 06/23/2005 06/23/2005 06/27/2005 07/07/2005 07/11/2005 07/13/2005 07/13/2005
07/22/2005 09/02/2005 09/12/2005
09/12/2005 11/30/2005
11/30/2005

14 Notice of MOTION for Limited Admission of Jonathan P. Hooks and Nicole J. De Sario by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. (Attachments: # 1 Affidavit of Paul B. Sweeney in Support# 2 Affidavit of Jonathan P. Hooks# 3 Affidavit of Nicole J. De Sario# 4 Text of Proposed Order # 5 Certificate of Service)(Sweeney, Paul) (Entered: 06/14/2005)
ORDER granting 14 Motion for Limited Admission Pro Hac Vice, contingent upon payment of the appropriate fees pursuant to Local Civil Rule 1.3. Ordered by JudgeWilliam D. Wall on 6/15/05. (Disbrow, Sandra) (Entered: 06/15/2005)
FILING FEE: $ 50.00, receipt number 310886 for the admission pro hac vice of Jonathan Hooks and Nicole DeSario (Talbott, Thomas) (Entered: 06/27/2005)
15 STIPULATION re 1 Complaint Extending Time to Answer by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 06/23/2005)
16 NOTICE of Appearance by James G. Ryan on behalf of Incorporated Village of Garden City, Garden City Board of Trustees (Attachments: # 1 Affidavit of Service)(Ryan, James) (Entered: 06/23/2005)
ORDER re 15 The stipulation extending the Garden City Defendants' time to answer is hereby SO ORDERED. Ordered by Judge William D. Wall on 6/27/05. (Disbrow, Sandra) (Entered: 06/27/2005)
17 Letter MOTION for Hearing for Motion to Dismiss by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 07/07/2005)
18 Letter from David B. Goldin to Hon. Leonard D. Wexler Regarding a request for a pre−motion conference. (Goldin, David) (Entered: 07/11/2005)
19 NOTICE of Appearance by David Bruce Goldin on behalf of County of Nassau, Nassau County Planning Commission, Nassau County Office of Real Estate &Development (Goldin, David) (Entered: 07/13/2005)
20 AFFIDAVIT of Service for Notice of Appearance served on Paul B. Sweeney, Esq., James G. Ryan, Esq., and Law Offices of Frederick K. Brewington on July 13, 2005, filed by County of Nassau, Nassau County Planning Commission, Nassau County Office of Real Estate &Development. (Goldin, David) (Entered: 07/13/2005)
21 Letter from Paul B. Sweeney to The Honorable Leonard D. Wexler Regarding plaintiffs' response to the defendants' requests for a pre−motion conference regarding their anticipated motions to dismiss. (Sweeney, Paul) (Entered: 07/22/2005)
22 Letter from Paul Sweeney to Judge Wexler Regarding Pre−Motion Conference. (Sweeney, Paul) (Entered: 09/02/2005)
23 Minute Entry for proceedings held before Leonard D. Wexler on 9/12/05 at 11:00 am. Case called. Counsel for all parties present. Conf. held. Deft's request to file motion to dismiss is GRANTED. Dft's request to stay discovery is GRANTED. Parties to agree on briefing schedule. Conf. concluded. (Montero, Edher) (Entered: 09/19/2005)
Motion terminated, 17 Letter MOTION for Hearing for Motion to Dismiss filed by Incorporated Village of Garden City, Garden City Board of Trustees. Hearing held on 9/12/05. (Talbott, Thomas) (Entered: 01/30/2006)
24 AMENDED COMPLAINT against County of Nassau, Incorporated Village of Garden City, Garden City Board of Trustees, filed by Lisbett Hunter, McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Natalie Guerrido, Acorn, Vic Devita. (Attachments: # 1 Certificate of Service)(Sweeney, Paul) (Entered: 11/30/2005)
25 DISCLOSURE of Interested Parties by New York Acorn Housing Company.(Sweeney, Paul) (Entered: 11/30/2005)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D7Tof 5116 of 50

11/30/2005 12/02/2005 12/06/2005
12/06/2005 12/14/2005 12/16/2005 02/09/2006 02/14/2006 02/15/2006 03/10/2006 03/10/2006 03/10/2006 03/10/2006 03/10/2006 06/09/2006 06/26/2006

26 NOTICE by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Natalie Guerrido, Acorn, Lisbett Hunter, Vic Devita of Dismissal of Claims Against Certain Defendants (Attachments: # 1 Certificate of Service)(Sweeney, Paul) (Entered: 11/30/2005)
27 Letter from Paul B. Sweeney to The Honorable Leonard D. Wexler Regarding filing of amended complaint and motions to dismiss. (Sweeney, Paul) (Entered: 12/02/2005)
ENDORSED ORDER re 26 Notice filed by plaintiffs: Plaintiffs hereby voluntarily dismiss, without prejudice all claims against defts, Nassau County Planning Commission and Nassau County Office of Real Estate &Development. (Ordered by Judge Leonard D. Wexler on 12/6/05). c/m eod #26(Montero, Edher) (Entered: 12/12/2005)
(Court only) *** Party Nassau County Office of Real Estate &Development and Nassau County Planning Commission terminated. (Montero, Edher) (Entered: 12/12/2005)
28 Letter from Paul B. Sweeney to The Honorable Leonard D. Wexler Regarding briefing schedule for motion to dismiss amended complaint. (Sweeney, Paul) (Entered: 12/14/2005)
ORDER re 18 Letter. A pre−motion conference is unnecessary; the parties' proposed briefing schedule is So Ordered by Judge Leonard D. Wexler on 12/16/05. (Ausili, Peter) (Entered: 12/16/2005)
Case reassigned to Judge Joseph F. Bianco. Judge Leonard D. Wexler no longer assigned to the case. (Bowens, Priscilla) (Entered: 02/10/2006)
29 Letter Plaintiffs' Letter Requesting Extension to Page Limit for Opposition to Motions to Dismiss by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Natalie Guerrido, Acorn, Lisbett Hunter, Vic Devita. (Sweeney, Paul) (Entered: 02/14/2006)
ORDER re 29 Letter filed by counsel for plaintiffs. The unopposed request by plaintiffs to file a 40 page opposition brief is GRANTED. Ordered by Judge Joseph F. Bianco on 2/15/06. (Blanche, Todd) (Entered: 02/15/2006)
30 Notice of MOTION to Dismiss by County of Nassau. Responses due by 3/10/2006 (Attachments: # 1 Nassau County's Memorandum of Law in Support of Motion to Dismiss the Amended Complaint# 2 Affidavit Defendant (Nassau County) Affidavit of Service)(Bresnaider O'Neill, Bethany) (Entered: 03/10/2006)
31 RESPONSE in Opposition re 30 Notice of MOTION to Dismiss the amended complaint filed by all plaintiffs. (Bresnaider O'Neill, Bethany) (Entered: 03/10/2006)
32 REPLY to Response to Motion re 30 Notice of MOTION to Dismiss the amended complaint filed by County of Nassau. (Bresnaider O'Neill, Bethany) (Entered: 03/10/2006)
33 Letter requesting oral argument of the Defendant's Motion to Dismiss the Amended Complaint (Document Number 30) by County of Nassau. (Bresnaider O'Neill, Bethany) (Entered: 03/10/2006)
34 MOTION to Dismiss Amended Complaint by Incorporated Village of Garden City, Garden City Board of Trustees. Responses due by 3/10/2006 (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13)(Ryan, James) (Entered: 03/10/2006)
35 ORDER: SEE ATTACHED ORDER setting oral argument on the outstanding motions on June 26, 2006 at 2:00 p.m. in the United States Federal Courthouse, 100 Federal Plaza, Central Islip, New York, Courtroom 920. Ordered by Judge Joseph F. Bianco on 6/9/06. (Blanche, Todd) (Entered: 06/09/2006)
36 Calendar Entry for proceedings held before The Honorable Joseph F. Bianco, United States District Judge on 6/26/06 at 2:00 p.m. for Civil Cause for Oral Argument; Appearances: Pltff(s). Attny: Paul B. Sweeney, present; Jonathan P. Hooks, present; Deft(s). Attny.: James G. Ryan, present; Esther D. Miller, present;

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D8Tof 5117 of 50

07/21/2006
07/21/2006 07/25/2006 08/04/2006 08/04/2006 08/04/2006 08/04/2006 08/04/2006 08/07/2006 08/07/2006
08/18/2006 08/18/2006 08/22/2006 08/24/2006 08/25/2006 08/25/2006
09/06/2006

Reporter: Perry Auerbach; Courtroom Deputy: Michele Savona. Case called. Argument heard. Decision: Reserved. (Fagan, Linda) (Entered: 06/26/2006)
37 MEMORANDUM AND ORDER. SEE ATTACHED memorandum and order denying 30 34 motions to dismiss, and directing the parties to proceed with discovery in accordance with the direction of Magistrate Judge Wall. Ordered by JudgeJoseph F. Bianco on 7/21/06. (Blanche, Todd) (Entered: 07/21/2006)
38 ORDER: Scheduling initial conference for 9/6/06. See order and attachments. Ordered by Judge William D. Wall on 7/21/06. (Attachments: # 1 WDW rules# 2 ECF notice) c/e(Disbrow, Sandra) (Entered: 07/21/2006)
39 MOTION to Withdraw as Attorney by all plaintiffs. (Desario, Nicole) (Entered: 07/25/2006)
40 NOTICE of Appearance by Andrew Reginald Scott on behalf of County of Nassau (Scott, Andrew) (Entered: 08/04/2006)
41 First MOTION for Extension of Time to File Answer by County of Nassau. (Scott, Andrew) (Entered: 08/04/2006)
42 First MOTION for Extension of Time to File Answer to Amended Complaint (corrected) by County of Nassau. (Scott, Andrew) (Entered: 08/04/2006)
43 Letter Extending Time to Answer Amended Complaint by Incorporated Village of Garden City Board of Trustees and by Incorporated Village of Garden City. (Ryan, James) (Entered: 08/04/2006)
Motions terminated; 41 First MOTION for Extension of Time to File Answer filed by County of Nassau. (See 42 (corrected) Motion.) (Fagan, Linda) (Entered: 08/07/2006)
ORDER granting 42 Motion for Extension of Time to File Answer to Amended Complaint (corrected). County of Nassau answer due 8/18/2006. Ordered by JudgeWilliam D. Wall on 08/07/06. (Hepworth, F.) (Entered: 08/07/2006)
ORDER TO ANSWER re 43 Letter filed by Incorporated Village of Garden City. Garden City Board of Trustees answer due 8/18/2006. The parties are advised that, in future, all requests to Judge Wall for court intervention must be docketed as letter motions or motions, not as letters, pursuant to the undersigned's Individual Rules1(C), 2(C), and/or 3(A), or the application will be rejected. Ordered by Judge William D. Wall on 08/07/06. (Hepworth, F.) (Entered: 08/07/2006)
44 ANSWER to Amended Complaint by Garden City Board of Trustees and by Incorporated Village of Garden City.(Ryan, James) (Entered: 08/18/2006)
45 ANSWER to Amended Complaint by County of Nassau.(Miller, Esther) (Entered: 08/18/2006)
46 NOTICE of Appearance by Jenny Rubin Robertson on behalf of McCray, Francine, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, Vic Devita (Attachments: # 1 Certificate of Service)(Robertson, Jenny) (Entered: 08/22/2006)
47 NOTICE of Appearance by Cynthia Dorsainvil Sleet on behalf of McCray, Francine, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, Vic Devita (Attachments: # 1 Certificate of Service)(Sleet, Cynthia) (Entered: 08/24/2006)
48 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Certificate of Service)(Sweeney, Paul) (Entered: 08/25/2006)
Incorrect Case/Document/Entry Information. Document 49 REPORT of Rule 26(f) Planning Meeting, filed on 8/25/06 has been deleted. (The document was a duplicate to the 48 Report of Rule 26(f) Planning Meeting. All corrections have been made.) (Fagan, Linda) (Entered: 08/28/2006)
49 Minute Entry &ORDER for proceedings held before William D. Wall : Initial Conference held on 9/6/2006. The court has adopted and So Ordered the joint proposed discovery plan 48 , with the exception of paragraph 6 which is stricken. Next status conference 1/10/07. See attached order. Ordered by William D. Wall

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE1D9Tof 5118 of 50

10/23/2006 10/24/2006
10/24/2006 11/21/2006 11/22/2006 11/27/2006 11/27/2006 12/01/2006 12/04/2006
12/05/2006 12/08/2006 12/14/2006 12/14/2006

on 9/6/06. c/g (Disbrow, Sandra) (Entered: 09/06/2006)
50 STIPULATION of Dismissal as to all defendants by Natalie Guerrido. (Bridges, Kim) (Entered: 10/23/2006)
51 ORDER re 50 Stipulation of Dismissal filed by Natalie Guerrido; It Is Stipulated And Agreed, that all claims brought by pltff Natalie Guerrido shall be dismissed without prejudice as to all defts purs. to Rule 41(a)(1)(ii) of the F.R.C.P., and with each party to bear its own costs and attorneys' fees; that only claims brought by Natalie Guerrido shall be dismissed; and that the other pltffs shall proceed with their claims. So Ordered. ( Ordered by Judge Joseph F. Bianco on 10/24/06. )(Fagan, Linda) (Entered: 10/24/2006)
(Court only) *** Party Natalie Guerrido terminated. (See 51 Order.) (Fagan, Linda) (Entered: 10/24/2006)
52 Letter MOTION to Compel Discovery by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I)(Robertson, Jenny) (Entered: 11/21/2006)
53 Notice of MOTION for Leave to Appear Pro Hac Vice of Joseph D. Rich and Nicole L. Birch by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Attachments: # 1 Proposed Order for Admission# 2 Declaration of Kim F. Bridges# 3 Affidavit of Joseph D. Rich# 4 Affidavit of Nicole L. Birch# 5 Certificate of Service)(Bridges, Kim) (Entered: 11/22/2006)
ELECTRONIC ORDER granting 53 Motion for Leave to Appear pro hac vice Joseph D. Rich and Nicole Birch for plaintiffs. The motion is granted contingent upon payment of the appropriate fees pursuant to Local Civil Rule 1.3. Counsel is further directed to register for ECF immediately. Ordered by JudgeWilliam D. Wall on 11/27/06. (Disbrow, Sandra) (Entered: 11/27/2006)
54 RESPONSE in Opposition re 52 Letter MOTION to Compel Discovery with exhibits filed by County of Nassau. (Attachments: # 1 Exhibit County Exhibits A−H)(Scott, Andrew) (Entered: 11/27/2006)
55 Letter MOTION for Discovery in opposition to Defendant Nassau County's cross−motion for a protective order by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Sweeney, Paul) (Entered: 12/01/2006)
ELECTRONIC ORDER denying 55 . The filing is rejected for failure to comply with Local Civil Rule 37.3(c) and the undersigned's individual rules. Responses to letter motions may not exceed 3 pages. Additionally, responses in opposition must be filed as such and not as an additional motion. Plaintiffs may refile their response accordingly. Ordered by JudgeWilliam D. Wall on 12/4/06. (Disbrow, Sandra) (Entered: 12/04/2006)
56 Letter in opposition to Defendant County of Nassau's cross−motion for a protective order in its 11/27/06 letter by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Acorn, Daphne Andrews, Lisbett Hunter, Vic Devita. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Bridges, Kim) (Entered: 12/05/2006)
ELECTRONIC ORDER: A conference regarding the pending discovery motions has been scheduled for 12/14/06 at 1:30 p.m. Any motion to adjourn this conference must include proposed alternae dates acceptable to all parties. Ordered by Judge William D. Wall on 12/8/06. (Disbrow, Sandra) (Entered: 12/08/2006)
Minute Entry for proceedings held before William D. Wall : Discovery conference held on 12/14/2006. (Disbrow, Sandra) (Entered: 12/14/2006)
57 ORDER denying as moot, without prejudice, 52 Motion to Compel and 54 cross−motion for protective order. The parties shall meet and confer on all the issues raised in the motions. Next status conference will be held on 1/10/07. See attached order. Ordered by JudgeWilliam D. Wall on 12/14/06. c/g (Disbrow, Sandra) (Entered: 12/14/2006)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D0Tof 5119 of 50

01/03/2007 01/04/2007 01/08/2007
01/08/2007 01/09/2007 01/09/2007 01/10/2007
01/12/2007 01/19/2007 01/24/2007 01/24/2007 01/24/2007
01/24/2007
01/24/2007 01/25/2007

58 Letter MOTION to Compel Testimony and Documents from the Garden City Defendants by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C) (Bridges, Kim) (Entered: 01/03/2007)
59 NOTICE of Appearance by Ralph J. Reissman on behalf of County of Nassau (Reissman, Ralph) (Entered: 01/04/2007)
60 RESPONSE in Opposition re 58 Letter MOTION to Compel Testimony and Documents from the Garden City Defendants Incorporated Village of Garden City and Garden City Board of Trustees filed by Incorporated Village of Garden City, Garden City Board of Trustees. (Attachments: # 1) (Ryan, James) (Entered: 01/08/2007)
61 NOTICE of Appearance by Ralph J. Reissman on behalf of County of Nassau (Reissman, Ralph) (Entered: 01/08/2007)
62 NOTICE of Appearance by Peter Joseph Dennin on behalf of McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Attachments: # 1 Certificate of Service) (Dennin, Peter) (Entered: 01/09/2007)
63 NOTICE of Change of ADD ATTORNEY TO E−MAIL NOTICE OF ELECTRONIC CASE FILINGS −− NEW E−MAIL ADDRESS by Ralph J. Reissman (Reissman, Ralph) (Entered: 01/09/2007)
64 Minute Order. Proceedings held before Judge William D. Wall : Status Conference held on 1/10/2007. The parties shall submit briefs regarding the assertion of legislative privilege no later than 1/24/07. Next status confernece will be held on 2/28/07 at 10:00 a.m. Ordered by William D. Wall on 1/10/07. c/g (Disbrow, Sandra) (Entered: 01/10/2007)
65 Letter requesting confidentiality order be so ordered by Incorporated Village of Garden City, Garden City Board of Trustees (Attachments: # 1 Confidentiality Order) (McLaughlin, Jennifer) (Entered: 01/12/2007)
ELECTRONIC ORDER The Stipulation and Order for the Protection of Confidential Information submitted by the parties and docketed as [65−2] is hereby So Ordered. Ordered by Judge William D. Wall on 1/19/07. (Disbrow, Sandra) (Entered: 01/19/2007)
66 Notice of MOTION to Compel Deposition Testimony and Documents from the Garden City Defendants by all plaintiffs. (Bridges, Kim) (Entered: 01/24/2007)
67 MEMORANDUM in Support re 66 Notice of MOTION to Compel Deposition Testimony and Documents from the Garden City Defendants by all plaintiffs. (Bridges, Kim) (Entered: 01/24/2007)
68 CERTIFICATE OF SERVICE by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Natalie Guerrido, Acorn, Daphne Andrews, Lisbett Hunter, Vic Devita re 67 Memorandum in Support, 66 Notice of MOTION to Compel Deposition Testimony and Documents from the Garden City Defendants (Bridges, Kim) (Entered: 01/24/2007)
69 RESPONSE in Opposition re 66 Notice of MOTION to Compel Deposition Testimony and Documents from the Garden City Defendants, 58 Letter MOTION to Compel Testimony and Documents from the Garden City Defendants Memorandum of Law filed by Incorporated Village of Garden City, Garden City Board of Trustees. (Attachments: # 1 Affidavit Robert L. Schoelle, Jr.# 2 Affidavit Michael D. Fillipon# 3 Exhibit A to Filippon Affidavit) (Ryan, James) (Entered: 01/24/2007)
70 Letter Federal Expressing to Judge Wall courtesy copies of Memorandum of Law Supplementing Letter Submission Dated January 8, 2007 by Incorporated Village of Garden City, Garden City Board of Trustees (Ryan, James) (Entered: 01/24/2007)
71 ORDER granting 39 Motion to Withdraw as Attorney. The Court grants leave for Nicole J. DeSario to withdraw as counsel for plaintiffs. She is relieved of futher responsibility to the Court. SO ORDERED. Ordered by Judge Joseph F. Bianco on

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D1Tof 5210 of 50

02/28/2007 03/12/2007 03/12/2007 03/29/2007 04/17/2007 04/20/2007 04/26/2007 05/07/2007 05/11/2007 05/14/2007 07/05/2007 07/10/2007 07/10/2007 09/17/2007 09/17/2007 09/18/2007

1/25/2007. (Fee, Adam) Additional attachment(s) added on 1/29/2007 (Fagan, Linda). (Entered: 01/25/2007)
72 Minute Entry &ORDER for proceedings held before William D. Wall : Status Conference held on 2/28/2007. Next status conference will be held on 4/18/07. Ordered by William D. Wall on 2/28/07. c/g (Disbrow, Sandra) (Entered: 02/28/2007)
73 Supplemental MOTION to Compel Testimony and Documents from the Garden City Defendants by all Plaintiffs by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Acorn, Lisbett Hunter, Vic Devita. (Bridges, Kim) (Entered: 03/12/2007)
74 Letter supplementing submission with regard to legislative privilege by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 03/12/2007)
75 NOTICE of Appearance by Karen Schmidt on behalf of County of Nassau (aty to be noticed) (Schmidt, Karen) (Entered: 03/29/2007)
ELECTRONIC ORDER: The status conference scheduled for 4/18/07 is adjourned to 4/20/07 at 10:00 a.m. Ordered by Judge William D. Wall on 4/16/07. (Disbrow, Sandra) (Entered: 04/17/2007)
76 Minute Entry &ORDER for proceedings held before William D. Wall : Status Conference held on 4/20/2007. Discovery is ongoing. The parties shall submit a joint proposed amended discovery plan within 10 days. Ordered by William D. Wall on 4/20/07. c/g (Disbrow, Sandra) (Entered: 04/20/2007)
77 NOTICE by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita Amended Report of Parties' Discovery Planning Conference Pursuant to Rule 26(F) (Bridges, Kim) (Entered: 04/26/2007)
78 STATUS REPORT with regard to amending November 27, 2006 privilege log by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 05/07/2007)
79 Letter enclosing amended privilege log of BFJ documents by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 05/11/2007)
ELECTRONIC ORDER: The proposed amended discovery plan 77 submitted by the parties is hereby So Ordered. A status conference is scheduled for 7/10/07 at 11:00 a.m. Ordered by Judge William D. Wall on 5/14/07. (Disbrow, Sandra) (Entered: 05/14/2007)
80 Letter MOTION to Compel the Production of Certain Documents by Defendant Nassau County, motion filed by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Attachments: # 1 Exhibit A# 2 Exhibit B) (Dennin, Peter) (Entered: 07/05/2007)
81 RESPONSE in Opposition re 80 Letter MOTION to Compel the Production of Certain Documents by Defendant Nassau County, motion filed by plaintiffs; opposition to motion filed by County of Nassau. (Reissman, Ralph) (Entered: 07/10/2007)
82 Minute Entry &ORDER for proceedings held before William D. Wall : Status Conference held on 7/10/2007. Next status conference will be held on 9/24/07 at 11:00 a.m. Ordered by William D. Wall on 7/10/07. c/g (Disbrow, Sandra) (Entered: 07/10/2007)
83 Letter MOTION to Take Deposition by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Sweeney, Paul) (Entered: 09/17/2007)
84 RESPONSE to Motion re 83 Letter MOTION to Take Deposition filed by County of Nassau. (Schmidt, Karen) (Entered: 09/17/2007)
85 RESPONSE in Opposition re 83 Letter MOTION to Take Deposition filed by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan,

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D2Tof 5211 of 50

09/24/2007 09/25/2007 09/25/2007 09/25/2007 10/10/2007
10/10/2007
10/19/2007
10/19/2007 10/26/2007 11/05/2007 11/06/2007 11/08/2007

James) (Entered: 09/18/2007)
86 Minute Entry &ORDER for proceedings held before William D. Wall : Status Conference held on 9/24/2007. Next status conference will be held on 12/6/07 at 11:00 a.m. Ordered by William D. Wall on 9/24/07. c/g (Disbrow, Sandra) (Entered: 09/24/2007)
87 ORDER granting in part and denying in part 58 plaintiffs' Motion to Compel. See attached order. Ordered by JudgeWilliam D. Wall on 9/25/07. (Disbrow, Sandra) (Entered: 09/25/2007)
Motions terminated, docketed incorrectly: 73 Supplemental MOTION to Compel Testimony and Documents from the Garden City Defendants by all Plaintiffs, 66 Notice of MOTION to Compel Deposition Testimony and Documents. Filings were made in support of 60 motion and were not separate motions. (Disbrow, Sandra) (Entered: 09/25/2007)
Email Notification Test − DO NOT REPLY. (Coleman, Laurie) (Entered: 09/25/2007)
88 NOTICE by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita Plaintiffs' Memorandum Of Law In Support Of Plaintiffs' Objection To Magistrate Judge Wall's Report And Recommendation Granting In Part And Denying In Part Plaintiffs' Motion To Compel Deposition Testimony And Documents From The Garden City Defendants (Attachments: # 1 Certificate of Service) (Sweeney, Paul) (Entered: 10/10/2007)
89 NOTICE by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita Declaration Of Peter J. Dennin In Further Support Of Plaintiffs' Objection To Magistrate Judge Wall's Report And Recommendation Granting In Part And Denying In Part Plaintiffs' Motion To Compel Deposition Testimony And Documents From The Garden City Defendants (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Certificate of Service) (Sweeney, Paul) (Entered: 10/10/2007)
90 NOTICE by Incorporated Village of Garden City, Garden City Board of Trustees McLaughlin Affidavit in Opposition to Plaintiffs' Objection to Magistrate Judge Wall's Report and Recommendation (Attachments: # 1 Exhibit Exhibit A to McLaughlin Affidavit# 2 Exhibit Exhibit B to McLaughlin Affidavit# 3 Affidavit Affidavit of Service of McLaughlin Affidavit) (McLaughlin, Jennifer) (Entered: 10/19/2007)
91 NOTICE by Incorporated Village of Garden City, Garden City Board of Trustees Memorandum of Law of Defendants in Opposition to Plaintiffs' Objection to Magistrate Judge Wall's Report and Recommendation (Attachments: # 1 Affidavit Affidavit of Service of MOL) (McLaughlin, Jennifer) (Entered: 10/19/2007)
92 NOTICE by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita Plaintiffs' Memorandum Of Law In Support Of Plaintiffs' Reply To Garden City Defendants' Opposition To Plaintiffs' Objection To Magistrate Judge Wall's September 25, 2007 Report And Recommendation (Attachments: # 1 Certificate of Service) (Sweeney, Paul) (Entered: 10/26/2007)
ELECTRONIC ORDER re 80 Letter MOTION to Compel. The Nassau County defendants shall submit to the court, for in camera review, copies of those documents for which it is asserting public interest and/or deliberative process privilege as listed in the privilege log. Ordered by Judge William D. Wall on 11/5/07. (Disbrow, Sandra) (Entered: 11/05/2007)
93 Letter advising when first report of Buckhurst Fish &Jacqueman was issued to Board by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 11/06/2007)
94 Letter In Response To Garden City's Letter Dated November 6, 2007 by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Sweeney, Paul) (Entered: 11/08/2007)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D3Tof 5212 of 50

11/09/2007 11/14/2007 11/30/2007 12/03/2007 12/05/2007 12/06/2007
12/06/2007
01/08/2008 02/15/2008 03/04/2008 03/14/2008 04/22/2008 04/22/2008 04/24/2008 04/24/2008
05/12/2008 05/12/2008

95 Letter to Magistrate Wall in response to plaintiff's letter of November 8, 2007 by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 11/09/2007)
96 ORDER: The temporal marker for the purposes of implementing 87 Order will be May 14, 2003. See attached order. Ordered by Magistrate−Judge William D. Wall on 11/14/07. c/e (Disbrow, Sandra) (Entered: 11/14/2007)
97 Letter accompanying ex parte submission to Magistrate Wall by County of Nassau (Schmidt, Karen) (Entered: 11/30/2007)
98 Letter accompanying supplemental ex parte submission to Magistrate Wall by County of Nassau (Schmidt, Karen) (Entered: 12/03/2007)
99 NOTICE of Appearance by Toby William Smith on behalf of McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (aty to be noticed) (Attachments: # 1 Certificate of Service) (Smith, Toby) (Entered: 12/05/2007)
100 Minute Entry for proceedings held before Magistrate Judge William D. Wall:Status Conference held on 12/6/2007. The court will issue an amended discovery order consistent with the parties' submission. Ordered by William D. Wall on 12/6/07. (Disbrow, Sandra) (Entered: 12/06/2007)
101 AMENDED SCHEDULING ORDER: The parties have proposed an amended discovery schedule which is adopted as indicated in the attached order. Pretrial Conference set for 11/14/2008. Ordered by Judge William D. Wall on 12/6/07. (Disbrow, Sandra) (Entered: 12/06/2007)
102 Letter dated, January 8, 2008 to Mag. Judge William D. Wall regarding pending Motion to Compel by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Sweeney, Paul) (Entered: 01/08/2008)
103 Letter dated, February 15, 2008 to Mag. Judge William D. Wall regarding pending Motion to Compel by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Sweeney, Paul) (Entered: 02/15/2008)
104 Letter dated, March 4, 2008 to Mag. Judge William D. Wall regarding pending Motion to Compel by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Sweeney, Paul) (Entered: 03/04/2008)
105 ORDER granting in part and denying in part 80 plaintiffs' Motion to Compel production of documents from defendant Nassau County. Ordered by Magistrate Judge William D. Wall on 3/14/08. c/e (Disbrow, Sandra) (Entered: 03/14/2008)
106 NOTICE of Appearance by Stanley Joseph Brown on behalf of McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (aty to be noticed) (Brown, Stanley) (Entered: 04/22/2008)
ELECTRONIC ORDER terminating 83 Motion to Take Deposition as moot in light of the court's orders on the privilege motions. Ordered by Judge William D. Wall on 4/21/08. (Disbrow, Sandra) (Entered: 04/22/2008)
107 Letter MOTION to Compel Eastern Property Owners Association of Garden City by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 04/24/2008)
108 AFFIDAVIT/DECLARATION in Support re 107 Letter MOTION to Compel Eastern Property Owners Association of Garden City filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 04/24/2008)
109 Letter MOTION to Compel Defendant Nassau County by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 05/12/2008)
110 AFFIDAVIT/DECLARATION in Support re 109 Letter MOTION to Compel Defendant Nassau County with exhibits 1 thru 10 filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 05/12/2008)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D4Tof 5213 of 50

05/15/2008 05/16/2008 05/16/2008 05/16/2008
05/22/2008 05/22/2008 05/29/2008
06/11/2008 06/11/2008 06/13/2008 06/13/2008
06/19/2008
06/20/2008 06/20/2008 06/23/2008 06/23/2008
06/23/2008

111 RESPONSE in Opposition re 109 Letter MOTION to Compel Defendant Nassau County filed by County of Nassau. (Reissman, Ralph) (Entered: 05/15/2008)
112 Letter to inform the Court that we hereby withdraw our Letter Motion, dated April 24, 2008. by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Sweeney, Paul) (Entered: 05/16/2008)
ELECTRONIC ORDER withdrawing 107 Motion to Compel in light of movant's letter 112 . Ordered by Judge William D. Wall on 5/16/08. (Disbrow, Sandra) (Entered: 05/16/2008)
ELECTRONIC ORDER Setting Hearing on Motion 109 Letter MOTION to Compel for 5/28/2008 at 2:00 PM before Judge William D. Wall. Any motion to adjourn this conference must include alternate dates acceptable to all parties. Ordered by Judge William D. Wall on 5/16/08. (Disbrow, Sandra) (Entered: 05/16/2008)
113 STIPULATION of Partial Dismissal Pursuant to FED. R. CIV. P. 41(a)(1)(ii) by Vernon Ghullkie, Lisbett Hunter (Sweeney, Paul) (Entered: 05/22/2008)
114 STIPULATION AND ORDER of partial dismissal as to plaintiffs Vernon Ghullkie and Lisbett Hunter − both parties terminated.. Ordered by Judge Joseph F. Bianco on 5/22/08. (Bollbach, Jean) (Entered: 05/27/2008)
115 Minute Order. for proceedings held before Magistrate Judge William D. Wall:granting 109 Motion to Compel; Motion Hearing held on 5/28/2008. The County defendants shall comply with the demands by 6/4/08. Additional deadlines extended−−see attached order. Ordered by Judge William D. Wall on 5/28/08. c/g (Disbrow, Sandra) (Entered: 05/29/2008)
116 Letter MOTION for Sanctions by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 06/11/2008)
117 DECLARATION re 116 Letter MOTION for Sanctions by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Sweeney, Paul) (Entered: 06/11/2008)
118 Letter MOTION for Extension of Time to File Response/Reply to Plaintiffs' Letter Motion dated June 11, 2008 by County of Nassau. (Schmidt, Karen) (Entered: 06/13/2008)
ELECTRONIC ORDER granting 118 Motion for Extension of Time to File Response/Reply re 116 Letter MOTION for Sanctions. Responses due by 6/20/2008. Ordered by Judge William D. Wall on 6/13/08. (Disbrow, Sandra) (Entered: 06/13/2008)
119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita. (Attachments: # 1 Exhibit) (Sweeney, Paul) (Entered: 06/19/2008)
120 Letter MOTION for Summary Judgment Requesting Pre−Motion Conference by County of Nassau. (Schmidt, Karen) (Entered: 06/20/2008)
121 RESPONSE in Opposition re 116 Letter MOTION for Sanctions (Opposition to Plaintiffs' Motion), filed by County of Nassau. (Reissman, Ralph) (Entered: 06/20/2008)
123 RESPONSE to Motion re 119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date filed by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 06/23/2008)
Incorrect Document/Entry Information. The RESPONSE to Motion re 119 Letter MOTION for Discovery filed as document # 122 has been deleted at the request of counsel. Lee Liotta for Jim Ryan has refiled it as #123 with the correct pdf document attached. (Mahon, Cinthia) (Entered: 06/23/2008)
ORDER: By letter dated June 20, 2008, defendants request a pre−motion conference in anticipation of filing a motion for summary judgment. IT IS

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D5Tof 5214 of 50

06/24/2008 06/24/2008 06/24/2008
06/25/2008
06/25/2008 07/01/2008 07/11/2008
07/11/2008 07/15/2008 07/15/2008 07/17/2008 07/21/2008

HEREBY ORDERED that defendants' request is granted. Counsel for all parties shall participate in a telephone pre−motion conference on Friday, July 11, 2008 at 4:30 p.m. At that time, counsel for defendants shall initiate the call and, with all parties on the line, contact Chambers at (631) 712−5670. Prior to the conference, counsel for plaintiffs may submit a letter to the Court, in accordance with the Court's Individual Rule III.A, explaining why defendants' motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/23/08. (Rothstein, Joshua) (Entered: 06/23/2008)
124 RESPONSE to Motion re 120 Letter MOTION for Summary Judgment Requesting Pre−Motion Conference filed by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita. (Sweeney, Paul) (Entered: 06/24/2008)
125 RESPONSE in Opposition re 119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date filed by County of Nassau. (Reissman, Ralph) (Entered: 06/24/2008)
SCHEDULING ORDER: The pre−motion conference previously scheduled for July 11, 2004 at 4:30 p.m. is adjourned. The Court will reschedule the conference, at the request of counsel, after notified by Magistrate Judge Wall that all outstanding discovery, which relates to this motion, is resolved. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/24/08. (Rothstein, Joshua) (Entered: 06/24/2008)
ELECTRONIC ORDER Setting Conference on Motion 116 Letter MOTION for Sanctions and 119 Letter MOTION for Discovery. Motion conference set for 7/2/2008 at 2:00 PM before Judge William D. Wall. Any motion to adjourn this conference must include proposed alternate dates acceptable to all parties. The deadline for submission of plaintiffs' expert reports is adjourned without date pending a determination of the discovery motions. Ordered by Judge William D. Wall on 6/25/08. (Disbrow, Sandra) (Entered: 06/25/2008)
126 RESPONSE to Motion re 119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date , Informational Letter re: HUD Website filed by County of Nassau. (Reissman, Ralph) (Entered: 06/25/2008)
ELECTRONIC ORDER: Due to a change in the court's calendar, the motion conference scheduled for 7/2/08 is adjourned to 7/11/08 at 2:00 p.m. Ordered by Magistrate Judge William D. Wall on 7/1/08. (Disbrow, Sandra) (Entered: 07/01/2008)
127 Minute Entry for proceedings held before Magistrate Judge William D. Wall:Motion Hearing held on 7/11/2008. Re: 116 MOTION for sanctions by plaintiffs. Hearing concluded, decision reserved. (archive F:) (Talbott, Thomas) Modified on 7/15/2008 to reflect a hearing on the 116 motion (Talbott, Thomas). (Entered: 07/15/2008)
Motions terminated: 119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date filed by New York Acorn, McCray, Andrews, Devita, Acorn.. Ordered by Magistrate Judge William D. Wall at the hearing held on 7/11/08, 127 . (Talbott, Thomas) (Entered: 03/13/2009)
128 Letter attaching a proposed order by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Attachments: # 1 Proposed Order) (Smith, Toby) (Entered: 07/15/2008)
129 Letter regarding Plaintiffs' Proposed Order by County of Nassau (Schmidt, Karen) (Entered: 07/15/2008)
130 Letter from Toby W. Smith to Hon. William D. Wall regarding the motion for additional discovery (Docket Entry # 119) by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Smith, Toby) (Entered: 07/17/2008)
131 AFFIDAVIT/DECLARATION in Opposition re 116 Letter MOTION for Sanctions , Reissman Declaration and Lassandro Affidavit certifying that Nassau County does not possess information sought by plaintiffs, filed by County of Nassau. (Reissman, Ralph) (Entered: 07/21/2008)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D6Tof 5215 of 50

08/05/2008 08/26/2008 09/04/2008 09/25/2008 09/26/2008 12/29/2008 01/08/2009 01/30/2009 01/30/2009 01/30/2009
01/30/2009
02/06/2009 02/13/2009

132 Letter From Toby W. Smith To The Honorable William D. Wall Regarding Expert Discovery Schedule by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Smith, Toby) (Entered: 08/05/2008)
133 MOTION to Withdraw as Attorney by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita. (Birch, Nicole) (Entered: 08/26/2008)
134 Letter from Toby W. Smith to the Honorable William D. Wall regarding expert discovery schedule by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Smith, Toby) (Entered: 09/04/2008)
135 Letter MOTION for Extension of Time to File Request for Pre−Motion Conference by Incorporated Village of Garden City. (Ryan, James) (Entered: 09/25/2008)
ELECTRONIC ORDER granting 135 Motion for Extension of Time. Any party wishing to make a dispositive motion shall take the first step in the process no later than three weeks after the close of discovery. Ordered by Magistrate Judge William D. Wall on 9/26/08. (Disbrow, Sandra) (Entered: 09/26/2008)
136 Letter MOTION for Extension of Time to File Letter Requesting Permission to File a Dispositive Motion by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 12/29/2008)
ELECTRONIC ORDER granting 136 Motion for Extension of Time to commence dispositive motion practice. Any party wishing to file a dispositive motion shall electronically file a letter request to Judge Bianco by 1/31/09. Ordered by Magistrate Judge William D. Wall on 1/7/09. (Disbrow, Sandra) (Entered: 01/08/2009)
137 Letter MOTION for pre motion conference to discuss filing a summary judgment motion and to preclude one of plaintiff's expert witnesses by Incorporated Village of Garden City, Garden City Board of Trustees. (McLaughlin, Jennifer) (Entered: 01/30/2009)
138 Letter requesting pre−motion conference and permission to file Rule 56 motion for summary judgment by County of Nassau (Reissman, Ralph) (Entered: 01/30/2009)
ORDER granting 137 Motion for Pre Motion Conference: By letter dated January 29, 2009, counsel for the Garden City Defendants moved for a pre−motion conference in anticipation of filing a motion for summary judgment. IT IS HEREBY ORDERED that the Garden City Defendants' motion is granted. Counsel for all parties shall participate in a telephone pre−motion conference on Thursday, February 12, 2009, at 9:30 a.m. At that time, counsel for the Garden City Defendants shall initiate the call and, with all parties on the line, contact Chambers at (631) 712−5670. Prior to the conference, counsel for plaintiffs may submit a letter to the Court, in accordance with the Court's Individual Rule III.A, explaining why the proposed motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/30/2009. (McFadden, JoAnna) (Entered: 01/30/2009)
ORDER: IT IS HEREBY ORDERED that the telephone pre−motion conference scheduled for Thursday, February 12, 2009, will now take place on Friday, February 13, 2009, at 10:00 a.m. At that time, counsel for the Garden City Defendants shall initiate the call and, with all parties on the line, contact Chambers at (631) 712−5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/30/2009. (McFadden, JoAnna) (Entered: 01/30/2009)
139 Letter In Reponse To Defendants' Letters Seeking Permission To File A Motion For Summary Judgment by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Sweeney, Paul) (Entered: 02/06/2009)
140 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 2/13/2009; case called; all sides present; conf. held; motion to be filed by 3/31/09; response by 5/15/09; reply by 6/3/09; oral argument set for 7/10/09 2:00 pm (Tape #10:07 − 10:13.) (Bollbach, Jean) (Entered: 02/13/2009)

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02/24/2009 03/04/2009
03/09/2009 03/17/2009 03/17/2009 03/18/2009 03/23/2009 03/24/2009 03/31/2009
03/31/2009 03/31/2009
03/31/2009 03/31/2009

ELECTRONIC ORDER granting 133 Motion to Withdraw as Attorney. Attorney Nicole Birch terminated. Ordered by Judge William D. Wall on 2/24/2009. (Disbrow, Sandra) (Entered: 02/24/2009)
141 Letter From Paul Sweeney To The Honorable Joseph F. Bianco With Attached Plaintiffs' Memorandum Of Law In Support Of Plaintiffs' Objection To Magistrate Judge Wall's Report And Recommendation Granting In Part And Denying In Part Plaintiffs' Motion To Compel Deposition Testimony And Documents From The Garden City Defendants. by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Sweeney, Paul) (Entered: 03/04/2009)
142 ORDER granting in part and denying in part 116 Motion for Sanctions. See attached order. Ordered by Judge William D. Wall on 3/9/2009. (Disbrow, Sandra) (Entered: 03/09/2009)
143 Letter MOTION for Reconsideration re 142 Order on Motion for Sanctions seeking limited clarification by Incorporated Village of Garden City, Garden City Board of Trustees. (McLaughlin, Jennifer) (Entered: 03/17/2009)
144 Notice of MOTION for Reconsideration re 142 Order on Motion for Sanctions pursuant to Rule 72 by Incorporated Village of Garden City, Garden City Board of Trustees. (McLaughlin, Jennifer) (Entered: 03/17/2009)
145 NOTICE of Appearance by Sabrina Helene Cochet on behalf of McCray, Francine, Vic Devita (aty to be noticed) (Cochet, Sabrina) (Entered: 03/18/2009)
146 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by County of Nassau re 142 Order on Motion for Sanctions (Attachments: # 1 Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2, # 4 Exhibit C) (Miller, Esther) (Entered: 03/23/2009)
Email Notification Test − DO NOT REPLY. (Brucella, Michelle) (Entered: 03/24/2009)
147 MOTION for Summary Judgment by Incorporated Village of Garden City, Garden City Board of Trustees. (Attachments: # 1 Notice of Motion Notice of Motion, # 2 Affidavit Michael Filippon, # 3 Affidavit Peter Bee, # 4 Affidavit James G. Ryan, # 5 Exhibit Exhibit Statement, # 6 Rule 56.1 Statement Statement of Material Facts, # 7 Memorandum in Support Memorandum of Law, # 8 Affidavit of Service Affidavit of Service − Notice of Motion, # 9 Affidavit of Service Affidavit of Service − Rule 56.1, # 10 Affidavit of Service Affidavit of Service − Memorandum of Law, # 11 Letter to Judge Bianco) (McLaughlin, Jennifer) (Entered: 03/31/2009)
148 Notice of MOTION for Summary Judgment by County of Nassau. Responses due by 5/15/2009 (Attachments: # 1 Affidavit in Support of Rosemary Olsen, # 2 Rule 56.1 Statement, # 3 Memorandum in Support, # 4 Notice of Motion Letter to Court, # 5 Certificate of Service, # 6 Affidavit in Support Declaration of Ralph J. Reissman) (Reissman, Ralph) (Entered: 03/31/2009)
149 Letter In Opposition To Defendant Garden City's Letter Motion, Dated March 17, 2009, Seeking Clarification Concerning Magistrate Judge Wall's Order. by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Attachments: # 1 Memorandum in Opposition, # 2 Declaration of Sabrina H. Cochet, # 3 Ex. A to Declaration, # 4 Ex. B to Declaration, # 5 Ex. C to Declaration, # 6 Ex. D to Declaration, # 7 Ex. E to Declaration, # 8 Ex. F to Declaration, # 9 Ex. G to Declaration, # 10 Ex. H to Declaration, # 11 Ex. I to Declaration, # 12 Ex. J to Declaration, # 13 Ex. K to Declaration, # 14 Ex. L to Declaration, # 15 Certificate of Service) (Sweeney, Paul) (Entered: 03/31/2009)
150 MEMORANDUM in Opposition re 144 Notice of MOTION for Reconsideration re 142 Order on Motion for Sanctions pursuant to Rule 72 filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Certificate of Service) (Sweeney, Paul) (Entered: 03/31/2009)
151 AFFIDAVIT/DECLARATION in Opposition re 144 Notice of MOTION for Reconsideration re 142 Order on Motion for Sanctions pursuant to Rule 72 filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Ex. A, # 2 Ex. B, # 3 Ex. C, # 4 Ex. D, # 5 Ex. E, # 6 Ex. F, # 7

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D8Tof 5217 of 50

04/02/2009 04/02/2009 04/06/2009 04/06/2009
04/29/2009 04/30/2009 05/01/2009
05/07/2009
05/07/2009 05/13/2009 05/15/2009 06/15/2009 06/15/2009 06/15/2009

Ex. G, # 8 Ex. H, # 9 Ex. I, # 10 Ex. J, # 11 Ex. K, # 12 Ex. L, # 13 Certificate of Service) (Sweeney, Paul) (Entered: 03/31/2009)
152 DECLARATION re 148 Notice of MOTION for Summary Judgment Certificate of Service upon Cullen &Dykman and filing in Court by Gary Duffy by County of Nassau (Reissman, Ralph) (Entered: 04/02/2009)
153 DECLARATION re 148 Notice of MOTION for Summary Judgment Certificate of overnight service upon Hogan Hartson by County of Nassau (Reissman, Ralph) (Entered: 04/02/2009)
154 MEMORANDUM in Opposition re 146 Appeal of Magistrate Judge Decision to District Court filed by all plaintiffs. (Attachments: # 1 Certificate of Service) (Sweeney, Paul) (Entered: 04/06/2009)
155 DECLARATION Of Toby W. Smith In Support Of Plaintiffs' Opposition To Defendant Nassau County's Objections To Magistrate Judge Wall's March 9, 2009 Order by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Sweeney, Paul) (Entered: 04/06/2009)
156 DECLARATION Of Toby W. Smith In Support Of Application For Attorneys Fees And Costs by McCray, Francine, Vic Devita (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Certificate Of Service) (Sweeney, Paul) (Entered: 04/29/2009)
157 Letter MOTION for Extension of Time to File Response/Reply to Plaintiffs' Application for Costs by County of Nassau. (Schmidt, Karen) (Entered: 04/30/2009)
ORDER: IT IS HEREBY ORDERED that the Court will hear oral argument on pending appeals of discovery orders when it hears oral argument on defendants' motion for summary judgment, on July 10, 2009 at 2:00 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/1/2009. (McFadden, JoAnna) (Entered: 05/01/2009)
158 STIPULATION regarding an amended summary judgment briefing schedule by McCray, Francine, New York Acorn Housing Company, County of Nassau, Incorporated Village of Garden City, Garden City Board of Trustees, Acorn, Daphne Andrews, Vic Devita (Attachments: # 1 Proposed Order) (Cochet, Sabrina) (Entered: 05/07/2009)
159 STIPULATION AND ORDER − see documents for full details. Ordered by Judge Joseph F. Bianco on 5/7/2009. (Bollbach, Jean) (Entered: 05/07/2009)
160 Letter from Sabrina H. Cochet to Judge Wall in response to the Nassau County Defendants' letter of April 30, 2009 by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Cochet, Sabrina) (Entered: 05/13/2009)
ELECTRONIC ORDER granting 157 Motion for Extension of Time to File Response/Reply to plaintiffs' application for costs 156 . Ordered by Magistrate Judge William D. Wall on 5/15/2009. (Disbrow, Sandra) (Entered: 05/15/2009)
161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)
162 MEMORANDUM in Support re 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)
163 AFFIDAVIT/DECLARATION in Support re 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Exhibit 2.1, # 2 Exhibit 2.2, # 3 Exhibit 2.3, # 4 Exhibit 2.4, # 5 Exhibit 2.5, # 6 Exhibit 2.6, # 7 Exhibit 2.7, # 8 Exhibit 2.8, # 9 Exhibit 2.9, # 10 Exhibit 2.10, # 11 Exhibit 2.11, # 12 Exhibit 2.12, # 13 Exhibit 2.13, # 14 Exhibit 2.14, # 15 Exhibit 2.15, # 16 Exhibit

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE2D9Tof 5218 of 50

06/15/2009 06/15/2009 06/15/2009 06/15/2009 06/16/2009 06/16/2009 06/16/2009
06/16/2009 07/15/2009

2.16, # 17 Exhibit 2.17, # 18 Exhibit 2.18, # 19 Exhibit 2.19) (Cochet, Sabrina) (Entered: 06/15/2009)
164 MEMORANDUM in Opposition re 147 MOTION for Summary Judgment (Motion to Exclude Peter Marcuse) filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)
165 AFFIDAVIT/DECLARATION in Opposition re 147 MOTION for Summary Judgment (Motion to Exclude Peter Marcuse) filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Exhibit 1.1, # 2 Exhibit 1.2, # 3 Exhibit 1.3, # 4 Exhibit 1.4) (Cochet, Sabrina) (Entered: 06/15/2009)
166 RULE 56.1 STATEMENT re 147 MOTION for Summary Judgment (Response to Garden City Rule 56.1 Statement) filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)
167 RULE 56.1 STATEMENT re 147 MOTION for Summary Judgment (Response to Nassau County Rule 56.1 Statement) filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)
168 RULE 56.1 STATEMENT Of Additional Material Facts filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/16/2009)
169 MEMORANDUM in Opposition re 147 MOTION for Summary Judgment filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/16/2009)
170 AFFIDAVIT/DECLARATION in Opposition re 147 MOTION for Summary Judgment filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 45A, # 47 Exhibit 45B, # 48 Exhibit 45C, # 49 Exhibit 46, # 50 Exhibit 47, # 51 Exhibit 47A, # 52 Exhibit 47B, # 53 Exhibit 48, # 54 Exhibit 48A, # 55 Exhibit 48B, # 56 Exhibit 48C, # 57 Exhibit 48D, # 58 Exhibit 49, # 59 Exhibit 50, # 60 Exhibit 51, # 61 Exhibit 52, # 62 Exhibit 53, # 63 Exhibit 54, # 64 Exhibit 55, # 65 Exhibit 56, # 66 Exhibit 57, # 67 Exhibit 58, # 68 Exhibit 59, # 69 Exhibit 60, # 70 Exhibit 61, # 71 Exhibit 62, # 72 Exhibit 63, # 73 Exhibit 64, # 74 Exhibit 65, # 75 Exhibit 66, # 76 Exhibit 67, # 77 Exhibit 68, # 78 Exhibit 69, # 79 Exhibit 70, # 80 Exhibit 71, # 81 Exhibit 72, # 82 Exhibit 73, # 83 Exhibit 74, # 84 Exhibit 75, # 85 Exhibit 76, # 86 Exhibit 77, # 87 Exhibit 78, # 88 Exhibit 79, # 89 Exhibit 80, # 90 Exhibit 81, # 91 Exhibit 82, # 92 Exhibit 83, # 93 Exhibit 84, # 94 Exhibit 85, # 95 Exhibit 85A, # 96 Exhibit 86, # 97 Exhibit 86A, # 98 Exhibit 86B, # 99 Exhibit 87, # 100 Exhibit 88, # 101 Exhibit 89, # 102 Exhibit 90, # 103 Exhibit 91, # 104 Exhibit 92, # 105 Exhibit 93, # 106 Exhibit 93A, # 107 Exhibit 94, # 108 Exhibit 95, # 109 Exhibit 96, # 110 Exhibit 97, # 111 Exhibit 98) (Cochet, Sabrina) (Entered: 06/16/2009)
171 CERTIFICATE OF SERVICE by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita re 164 Memorandum in Opposition, 168 Rule 56.1 Statement, 170 Affidavit in Opposition to Motion,,,,,,,,, 165 Affidavit in Opposition to Motion, 169 Memorandum in Opposition, 163 Affidavit in Support of Motion,, 167 Rule 56.1 Statement, 166 Rule 56.1 Statement, 162 Memorandum in Support, 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary (Cochet, Sabrina) (Entered: 06/16/2009)
172 REPLY in Support , NASSAU COUNTY REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT, filed by County of Nassau. (Reissman, Ralph) (Entered: 07/15/2009)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3D0Tof 5219 of 50

07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/15/2009 07/16/2009
07/27/2009 08/05/2009 08/06/2009
08/19/2009

173 DECLARATION re 172 Reply in Support , Declaration of Service by County of Nassau (Reissman, Ralph) (Entered: 07/15/2009)
174 MEMORANDUM in Opposition to Exclude Cleary filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)
175 MEMORANDUM in Support of Motion to Exclude Marcuse filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)
176 MEMORANDUM in Support of Motion for Summary Judgment filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)
177 RESPONSE in Opposition re 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit, # 2 Exhibit) (McLaughlin, Jennifer) (Entered: 07/15/2009)
178 Letter MOTION for pre motion conference by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)
179 RULE 56.1 STATEMENT Defendants' Response to Statement of Additional Material Facts filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)
ORDER denying as moot 178 Motion for Pre Motion Conference: The Court received the Garden City defendants' letter, dated July 15, 2009, seeking either a pre−motion conference in anticipation of filing a motion to strike portions of plaintiffs' Rule 56.1 counterstatements of fact or a briefing schedule for such a motion. IT IS HEREBY ORDERED that the Court will hear arguments from plaintiffs and defendants regarding defendants' desire to strike portions of the Rule 56.1 counterstatement of facts when it hears oral argument for the pending motion for summary judgment and appeal of certain discovery orders, on August 21, 2009. No further submissions regarding the motion to strike are required. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/16/2009. (McFadden, JoAnna) (Entered: 07/16/2009)
180 REPLY in Support of Motion to Exclude Cleary filed by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company. (Cochet, Sabrina) (Entered: 07/27/2009)
181 Letter , Dated August 5, 2009 From Stanley J. Brown To Honorable Joseph F. Bianco re: Requesting A Schedule Of Time To Be Allocated For Each Of The Matters Scheduled To Be Heard On August 21, 2009 by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 08/05/2009)
ORDER: Pursuant to plaintiffs' request, filed on August 6, 2009, IT IS HEREBY ORDERED that the Court shall hear oral argument on August 21, 2009 at 2 p.m. as follows: plaintiffs and the Garden City defendants shall have five minutes each to argue their respective motions to strike the Cleary and Marcuse reports, for a total of ten minutes; plaintiffs, the Garden City defendants, and the County of Nassau shall have ten minutes each to argue their respective appeals of discovery orders issued by Magistrate Judge Wall, for a total of thirty minutes; and plaintiffs, the Garden City defendants and the County of Nassau shall have twenty minutes each to argue their respective motions opposing and supporting summary judgment in this matter, for a total of sixty minutes. Oral argument shall last one hour and forty minutes. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/6/2009. (McFadden, JoAnna) (Entered: 08/06/2009)
182 Letter from Stanley J. Brown to the Honorable Joseph F.Bianco submitting supplemental authority by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 08/19/2009)

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08/21/2009 08/28/2009 09/04/2009 09/04/2009 09/04/2009 09/04/2009 09/04/2009 09/10/2009
09/11/2009 09/15/2009 10/01/2009 10/08/2009 11/02/2009
11/05/2009

183 Minute Entry for proceedings held before Judge Joseph F. Bianco:Oral Argument held on 8/21/2009; case called; conf. held; argument heard; decision reserved; affidavit is due by 9/4/09. Letter to be submitted by 9/11/09 (Court Reporter FTR 2:14 −3:01 and 3:08 − 4:12.) (Bollbach, Jean) (Entered: 08/24/2009)
184 Letter responding to plaintiffs' August 19, 2009 letter enclosing four cases, by County of Nassau (Reissman, Ralph) (Entered: 08/28/2009)
185 Letter to Judge Bianco re Summary Judgment motion by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 09/04/2009)
186 Letter responding to plaintiffs' August 19, 2009 supplemental letter by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 09/04/2009)
187 DECLARATION re 146 Appeal of Magistrate Judge Decision to District Court Judge Bianco by County of Nassau, Nassau County Office of Real Estate &Development, Nassau County Planning Commission (Miller, Esther) (Entered: 09/04/2009)
188 Letter to Judge Bianco re Summary Judgment Motion by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company (Cochet, Sabrina) (Entered: 09/04/2009)
189 Letter in response to docket entry #185 and 186 by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Cochet, Sabrina) (Entered: 09/04/2009)
190 MEMORANDUM AND ORDER. For the reasons stated in the attached Memorandum &Order, IT IS HEREBY ORDERED that plaintiffs' motion seeking to set aside the September 5, 2007 discovery order of Magistrate Judge Wall is denied. Magistrate Judge Wall can now expeditiously review in camera the twenty−two documents submitted by the Garden City defendants. The documents will be reviewed within the framework set forth in the September 25, 2007 Order, with the additional instruction that any documents illustrating that racial considerations were part of the legislative deliberations must also be produced. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/10/2009. (Howard, Timothy) (Entered: 09/10/2009)
191 Letter Dated September 11, 2009 In Response To The County's Submission Of Esther Miller's September 4, 2009 Affidavit. by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Cochet, Sabrina) (Entered: 09/11/2009)
192 Letter regarding plaintiffs' September 11, 2009 letter re: Affidavit of Esther Miller, by County of Nassau (Reissman, Ralph) (Entered: 09/15/2009)
193 Letter requesting correction to reported list of attorneys representing County in future Court decisions, orders or memoranda, by County of Nassau (Reissman, Ralph) (Entered: 10/01/2009)
194 ORDER − see document for full details. Court refers the matter back to M.J. Wall in order to allow him to consider the declaration of Esther D. Miller in support of Countys objections to the 3/9/09 order.. Ordered by Judge Joseph F. Bianco on 10/8/2009. (Bollbach, Jean) (Entered: 10/09/2009)
195 ORDER re: in camera review of documents withheld from production by defendants Incorporated Village of Garden City and Garden City Board of Trustees on the ground of legislative privilege. That review has been completed and the asserted privilege is hereby upheld. See attached order. Ordered by Judge William D. Wall on 11/2/2009. c/e (Disbrow, Sandra) (Entered: 11/02/2009)
196 ORDER: On 3/9/09, the undersigned issued an order 142 granting plaintiffs motion 116 in part and denying it in part. Nassau County appealed, and by order 194 dated 10/8/09, District Judge Bianco referred the matter back to the undersigned to consider a declaration provided by the County on its appeal. Upon that review, the court makes the following rulings: Part I of the courts order 142 is hereby vacated;

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11/05/2009 11/05/2009 11/16/2009 11/23/2009 11/24/2009
12/11/2009 12/21/2009 12/23/2009 12/29/2009 01/05/2010 01/05/2010

for the reasons set forth herein, plaintiffs motion is denied. Part II of the court's order 142 is unaffected by this order. Ordered by Judge William D. Wall on 11/5/2009. c/e (Disbrow, Sandra) (Entered: 11/05/2009)
ELECTRONIC ORDER denying as moot 143 Motion for Reconsideration. In light of the Order 196 vacating that part of the prior order for which defendant sought reconsideration, the motion is denied as moot. Ordered by Magistrate Judge William D. Wall on 11/5/2009. (Disbrow, Sandra) (Entered: 11/05/2009)
ORDER denying as moot 144 Motion for Reconsideration. In light of Magistrate Judge Wall's Order 196 vacating that part of the prior order for which defendant sought reconsideration, the motion is denied as moot. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/5/2009. (Alexander, John) (Entered: 11/05/2009)
197 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Attachments: # 1 Affidavit Declaration of Sabrina H. Cochet, # 2 Exhibit Ex. 1 to the Declaration, # 3 Exhibit Ex. 2 to the Declaration, # 4 Exhibit Ex. 3 to the Declaration, # 5 Exhibit Ex. 4 to the Declaration, # 6 Exhibit EX. 5 to the Declaration) (Cochet, Sabrina) (Entered: 11/16/2009)
198 Letter MOTION for Extension of Time to File Response/Reply to Objections to Judge Wall's Decision by County of Nassau, Nassau County Office of Real Estate &Development, Nassau County Planning Commission. (Miller, Esther) (Entered: 11/23/2009)
ORDER granting in part 198 Motion for Extension of Time to File Response/Reply. By letter dated November 23, 2009, defendant Nassau County requested an extension of time to respond to plaintiff's objections to Magistrate Judge Wall's November 5, 2009 Order. Defendant intends to file a motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, and requests an extension of time to respond to plaintiff's objections until after the Court's determination of the anticipated motion for sanctions. IT IS HEREBY ORDERED that defendant shall, in accordance with Rule 11, serve its motion for sanctions on plaintiff by December 9, 2009. IT IS FURTHER ODERED that defendant shall file its response to plaintiff's objections and a separate motion for sanctions by January 5, 2009. IT IS FURTHER ORDERED that plaintiff shall respond to defendant's response to plaintiff's objections, and defendant's motion for sanctions, by January 19, 2010. IT IS FURTHER ORDERED that defendant shall submit any reply in further support of its motion for sanctions by January 26, 2010. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/24/2009. (Alexander, John) (Entered: 11/24/2009)
199 CERTIFICATE OF SERVICE by County of Nassau, Nassau County Office of Real Estate &Development, Nassau County Planning Commission re Order on Motion for Extension of Time to File Response/Reply,,,, and Filing of Rule 11 Motion (Miller, Esther) (Entered: 12/11/2009)
200 NOTICE of Appearance by Joanna F. Wasick on behalf of Vic Devita, McCray, Francine (aty to be noticed) (Wasick, Joanna) (Entered: 12/21/2009)
201 Letter To Remove Former Hogan &Hartson Attorneys From Noticed Attorneys List by Vic Devita, McCray, Francine (Wasick, Joanna) (Entered: 12/23/2009)
(Court only) *** Attorney Cynthia Dorsainvil Sleet; Michael Starr; Paul B Sweeney; Kim F. Bridges and Megumi Sakae terminated. (Hepworth, F.) (Entered: 12/29/2009)
202 MEMORANDUM in Opposition re 197 Appeal of Magistrate Judge Decision to District Court, (Response to Plaintiffs' Objections to Mag. Judge Wall's November 5, 2009 Order), filed by County of Nassau. (Reissman, Ralph) (Entered: 01/05/2010)
203 Notice of MOTION for Sanctions against Plaintiffs under Rule 11, by County of Nassau. (Attachments: # 1 Memorandum in Support MEMO OF LAW) (Reissman, Ralph) (Entered: 01/05/2010)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3D3Tof 5312 of 50

01/06/2010 01/14/2010 01/19/2010
01/25/2010 01/25/2010 01/26/2010
01/26/2010 02/05/2010 02/19/2010
03/02/2010 03/02/2010 03/08/2010 03/11/2010 03/15/2010

204 Letter notifying Court of names of three attorneys to be marked "Terminated" on the Docket Sheet, by County of Nassau (Reissman, Ralph) (Entered: 01/06/2010)
206 ORDERED that Ester D Miller, Andrew Reginald Scott and Karen Schmidt as atty for County are terminated as no longer represent the County,. Ordered by Judge Joseph F. Bianco on 1/14/2010. (Bollbach, Jean) (Entered: 01/20/2010)
205 MEMORANDUM in Opposition re 203 Notice of MOTION for Sanctions against Plaintiffs under Rule 11,, MEMORANDUM in Support re 197 Appeal of Magistrate Judge Decision to District Court, (In Further Support Of Doc.#197) filed by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company. (Attachments: # 1 Certificate of Service, # 2 Declaration of Joanna F. Wasick, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F) (Brown, Stanley) (Entered: 01/19/2010)
207 First MOTION for Extension of Time to File Response/Reply as to 205 Memorandum in Opposition, Memorandum in Support,,,, to February 5, 2010, by County of Nassau. (Reissman, Ralph) (Entered: 01/25/2010)
208 RESPONSE to Motion re 207 First MOTION for Extension of Time to File Response/Reply as to 205 Memorandum in Opposition, Memorandum in Support,,,, to February 5, 2010, filed by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company. (Brown, Stanley) (Entered: 01/25/2010)
ORDER granting 207 Motion for Extension of Time to File Response/Reply. By letter dated January 25, 2010, defendant requested an extension of time until February 5, 2010 to file its reply brief in support of its Rule 11 motion. By letter dated January 25, 2010, plaintiff opposed the request. Because the additional time requested by defendant will not affect the timing of the Court's disposition of the motion, IT IS HEREBY ORDERED that defendant's request is granted. Defendant shall submit its reply brief by February 5, 2010. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/26/2010. (Alexander, John) (Entered: 01/26/2010)
209 Letter to Judge Bianco re: Memorandum In Further Support by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Attachments: # 1 Memorandum In Further Support, # 2 Exhibit A) (Brown, Stanley) (Entered: 01/26/2010)
210 MEMORANDUM in Support re 203 Notice of MOTION for Sanctions against Plaintiffs under Rule 11, REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION FOR SANCTIONS AGAINST PLAINTIFFS, filed by County of Nassau. (Reissman, Ralph) (Entered: 02/05/2010)
ORDER. IT IS HEREBY ORDERED that the parties participate in a telephone conference on Tuesday, March 2, 2010 at 1:30 p.m. to address a recusal issue that has arisen. At that time, counsel for the Garden City defendants shall initiate the call and, once all parties are on the line, contact Chambers at (631)−712−5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/19/2010. (Quigley, Brendan) (Entered: 02/19/2010)
211 ORDER OF RECUSAL. Judge Joseph F. Bianco recused.. Ordered by Judge Joseph F. Bianco on 3/2/2010. (Bollbach, Jean) (Entered: 03/02/2010)
212 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone pre motion Conference held on 3/2/2010; I recuse myself from case. (Court Reporter FTR 1:43 − 1:54.) (Bollbach, Jean) (Entered: 03/02/2010)
213 ORDER REASSIGNING CASE. Case reassigned to Judge Sandra J. Feuerstein for all further proceedings.. Ordered by Chief Judge Raymond J. Dearie on 3/8/2010. (Bowens, Priscilla) (Entered: 03/09/2010)
ORDER OF RECUSAL. Judge Sandra J. Feuerstein recused. Case reassigned to Senior Judge Arthur D. Spatt for all further proceedings Type of Recusal Attorney. Ordered by Judge Sandra J. Feuerstein on 3/11/2010. (Adell, April) (Entered: 03/11/2010)
214 ORDER − The instant case was reassigned to this Court on March 11, 2010 with several motions pending. The Court hereby dismisses the pending motions without

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3D4Tof 5313 of 50

03/24/2010 03/26/2010 03/26/2010 03/29/2010 03/30/2010
03/30/2010 04/02/2010
04/05/2010 04/06/2010 04/07/2010

prejudice and with leave to refile in accordance with Judge Spatts Individual Motion Practice Rules. In addition to refiling on ECF, the parties are directed to furnish the Court with courtesy copies of any and all papers relevant to the pending motions. Signed by Senior Judge Arthur D. Spatt, on 3/15/10. Terminating 147 Motion for Summary Judgment; 148 Motion for Summary Judgment; 161 Motion to Strike ; 203 Motion for Sanctions pursuant to herein.. Ordered by Senior Judge Arthur D. Spatt on 3/15/2010. (Coleman, Laurie) (Entered: 03/16/2010)
215 Letter To Judge Spatt Re: Post−Reassignment Conference by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 03/24/2010)
216 Letter MOTION to Adjourn Conference of April 6, 2010 due to religious observance, by County of Nassau. (Reissman, Ralph) (Entered: 03/26/2010)
219 ORDER granting 216 Motion to Adjourn Conference− conf 4/6/10 at 9:30. Ordered by Senior Judge Arthur D. Spatt on 3/26/2010. (Bollbach, Jean) (Entered: 03/30/2010)
217 Letter To Judge Spatt re: In Response to Mr. Reissman's March 26, 2010 Letter by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 03/29/2010)
218 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on AUGUST 21, 2009,CIVIL CAUSE FOR ORAL ARGUMENT HELD before Judge HON. JUDGE JOSEPH F. BIANCO. Court Reporter/Transcriber ROSALIE LOMBARDI &LINDA FERRARA, Telephone number (516) 358−7352. Email address: TRANSCRIPTIONS2@VERIZON.NET. Tape Number: FTR/DRIVE/TIME:. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/20/2010. Redacted Transcript Deadline set for 4/30/2010. Release of Transcript Restriction set for 6/28/2010.KEITH ANGELO JONES. (Jones, Keith) (Entered: 03/30/2010)
220 ORDER, ( Pre−Motion Conference reset for 4/7/2010 09:30 AM before Senior Judge Arthur D. Spatt.) Movants counsel directed to serve a copy of this order on all parties upon receipt via facsimile. Ordered by Senior Judge Arthur D. Spatt on 3/30/2010. (Bollbach, Jean) (Entered: 03/31/2010)
231 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings CIVIL CAUSE FOR A TELEPHONE PRE−MOTION CONFERENCE held on MARCH 02, 2010, before HON.JUDGE JOSEPH F. BIANCO. Court Reporter/Transcriber MARY GRECO OF TypeWrite Word Processing Service @ 211 N. Milton Road Saratoga Springs, New York. 12866, Telephone number (518) 581−8973 or (718) 966−1401; Fax#(718) 967−4843. Tape Number: FTR/DRIVE/TIME:. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/23/2010. Redacted Transcript Deadline set for 5/3/2010. Release of Transcript Restriction set for 7/1/2010.KEITH ANGELO JONES. (Jones, Keith) (Entered: 04/20/2010)
221 Letter regarding issues that will be presented to the Court at the pre−motion conference 4−7−10 by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 04/05/2010)
222 Letter regarding April 7, 2010 conference by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 04/06/2010)
232 MINUTE ENTRY for proceedings held before Senior Judge Arthur D. Spatt:Pre−Motion Conference held on 4/7/2010 at 9:40 a.m. Court Deputy: Mary Ellen Schaffner. Case called. Counsel for all sides present. Pre−motion conference held. Other: Proposed scheduling order submitted to the Court. (Coleman, Laurie) (Entered: 04/22/2010)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3D5Tof 5314 of 50

04/09/2010 04/12/2010 04/13/2010 04/13/2010
04/14/2010 04/14/2010 04/14/2010 04/14/2010 04/15/2010
04/23/2010 04/23/2010 04/23/2010
04/28/2010 04/28/2010 04/29/2010

223 Letter MOTION to Amend/Correct/Supplement (Seeking Name Change) by New York Acorn Housing Company. (Attachments: # 1 Certificate of Amendment, # 2 Proposed Order) (Rich, Joseph) (Entered: 04/09/2010)
224 Letter MOTION to Amend/Correct/Supplement no objection to change of name of New York ACORN Housing Company, Inc. by Garden City Board of Trustees, Incorporated Village of Garden City. (Ryan, James) (Entered: 04/12/2010)
230 ORDER Re: 223 Motion amend docket to reflect the name change of Plaintiff New York ACORN Housing Company, Inc. to MHANY Management, Inc. Signed by Senior Judge Arthur D. Spatt on 4/13/2010. Caption amended pursuant to herein. (Coleman, Laurie) (Entered: 04/15/2010)
Motions terminated, docketed incorrectly: 224 Letter MOTION to Amend/Correct/Supplement no objection to change of name of New York ACORN Housing Company, Inc. filed by Garden City Board of Trustees, Incorporated Village of Garden City. It's a response to the #223 motion to amend (which was decided by the 4/13/10 Order of District Judge Spatt). (Talbott, Thomas) (Entered: 07/16/2010)
225 MOTION to Intervene by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. (Attachments: # 1 Certificate of Service) (Rich, Joseph) (Entered: 04/14/2010)
226 MEMORANDUM in Support re 225 MOTION to Intervene filed by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. (Rich, Joseph) (Entered: 04/14/2010)
227 AFFIDAVIT/DECLARATION in Support re 225 MOTION to Intervene filed by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. (Attachments: # 1 Exhibit 1) (Rich, Joseph) (Entered: 04/14/2010)
228 AFFIDAVIT/DECLARATION in Support re 225 MOTION to Intervene filed by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rich, Joseph) (Entered: 04/14/2010)
229 EXHIBIT C by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. Related document: 228 Affidavit in Support of Motion, filed by New York Acorn Housing Company, McCray, Francine, Daphne Andrews, New York Communities For Change, Inc., Vic Devita, Acorn. (Rich, Joseph) (Entered: 04/15/2010)
233 MOTION to Intervene Memorandum of Law in Opposition by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit of Service) (McLaughlin, Jennifer) (Entered: 04/23/2010)
234 RESPONSE in Opposition re 225 MOTION to Intervene (Letter in Opposition) filed by County of Nassau. (Reissman, Ralph) (Entered: 04/23/2010)
235 MOTION for Leave to Appear Pro Hac Vice (Abigail Evans Shafroth) Filing fee $ 25, receipt number 0207−4110729. by Acorn, Vic Devita, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc.. (Attachments: # 1 Declaration Of Joanna F. Wasick, # 2 Affidavit Of Abigail Evans Shafroth, # 3 Certificate Of Good Standing, # 4 Proposed Order) (Wasick, Joanna) (Entered: 04/23/2010)
236 Letter regarding outstanding motions by Acorn, Vic Devita, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 04/28/2010)
237 Letter regarding removal of attorneys from counsel list by Vic Devita, McCray, Francine (Brown, Stanley) (Entered: 04/28/2010)
238 Letter in response to plaintiffs' 4−28−10 letter regarding motion by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 04/29/2010)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3D6Tof 5315 of 50

04/29/2010
04/29/2010 05/04/2010 05/04/2010 05/04/2010 05/04/2010 05/05/2010 05/14/2010 05/14/2010 05/14/2010 06/15/2010
06/15/2010 06/15/2010 06/24/2010 06/25/2010

239 ORDER endorsed on letter dtd. 4/28/10 − request in letter is denied. Upon the courts determination of the plaintiff's motion to intervene, the parties may re−submit a proposed briefing schedule for any motion for summary judgment. Ordered by Senior Judge Arthur D. Spatt on 4/29/10. (Bollbach, Jean) (Entered: 05/04/2010)
240 ORDER endorsed on letter dtd. 4/28/10 − Request is granted. So Ordered. Toby William Smith and Jenny Rubin Robertson are no longer associated with this office and are to be removed.. Ordered by Senior Judge Arthur D. Spatt on 4/29/10. (Bollbach, Jean) (Entered: 05/04/2010)
241 NOTICE by Vic Devita, McCray, Francine (Change of Firm Name and Email Address) (Brown, Stanley) (Entered: 05/04/2010)
242 NOTICE by Vic Devita, McCray, Francine (Change of Firm Name and Email Address) (Dennin, Peter) (Entered: 05/04/2010)
243 NOTICE of Change of Firm Name and Email Address by Joanna F. Wasick (Wasick, Joanna) (Entered: 05/04/2010)
244 NOTICE of Change of Firm Name and Email Address by Sabrina Helene Cochet (Cochet, Sabrina) (Entered: 05/04/2010)
245 REPLY in Support re 225 MOTION to Intervene filed by New York Communities For Change, Inc.. (Attachments: # 1 Certificate of Service) (Rich, Joseph) (Entered: 05/05/2010)
ELECTRONIC ORDER granting 235 Motion for Leave to Appear pro hac vice, Abigail Evans Shafroth for plaintiffs. Ordered by Judge William D. Wall on 5/14/2010. (Disbrow, Sandra) (Entered: 05/14/2010)
(Court only) ***Attorney Abigail E. Shafroth for Vic Devita,Abigail E. Shafroth for MHANY Management, Inc.,Abigail E. Shafroth for McCray, Francine added. See 5/14/10 Order granting pro hac vice. (Coleman, Laurie) (Entered: 06/22/2010)
Email Notification Test − DO NOT REPLY. (Coleman, Laurie) (Entered: 06/22/2010)
246 ORDER − it is hereby ORDERED that NYCCs 233 motion to intervene pursuant to Rule 24(b) is granted; and it is further ORDERED that, within twenty days of the date hereof, NYCC may file a complaint substantially similar to the proposed complaint by NYCC presently filed with the Court; and it is further ORDERED that the parties are directed to appear before United States Magistrate Judge William D. Wall for a conference concerning any additional discovery in this case on June 25, 2010 at 11:00; and it is further ORDERED that, pending the submission of NYCCs complaint, the Clerk of the Court is directed to amend the caption for this case to read as follows: (see Order). Ordered by Senior Judge Arthur D. Spatt on 6/15/10. (Coleman, Laurie) (Entered: 06/16/2010)
(Court only) *** Docket Text: (Court only) *** Party New York Acorn Housing Company, Inc., New York Communities For Change, Inc. terminated pursuant to the 246 order. (Coleman, Laurie) (Entered: 06/16/2010)
(Court only) ***Documents terminated: 225 MOTION to Intervene filed by McCray, Francine, Daphne Andrews, New York Communities For Change, Inc., Vic Devita, Acorn. This motion was granted by the 6/15/10 (#246) Order of District Judge Spatt. (Talbott, Thomas) (Entered: 07/16/2010)
247 Letter Regarding Discovery Conference Before Mag. Judge Wall by Acorn, Vic Devita, MHANY Management, Inc., McCray, Francine (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Brown, Stanley) (Entered: 06/24/2010)
248 Minute Order for proceedings held before Magistrate Judge William D. Wall:Status Conference held on 6/25/2010. Plaintiff's motion to re−open discovery is granted. All additional discovery shall be completed by 10/15/10. Next telephone status conference will be held on 10/20/10. See attached order. Ordered by Judge William D. Wall on 6/25/10. c/g (Disbrow, Sandra) (Entered: 06/25/2010)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3D7Tof 5316 of 50

06/29/2010 06/30/2010 08/26/2010 09/16/2010 10/13/2010 10/13/2010
10/19/2010
10/20/2010 11/08/2010 11/08/2010
12/23/2010 12/29/2010 03/03/2011 03/04/2011 04/29/2011 05/12/2011

249 Letter requesting names of attorneys no longer representing County to be withdrawn from docket, by County of Nassau (Reissman, Ralph) (Entered: 06/29/2010)
250 Intervenor COMPLAINT, filed by New York Communities For Change, Inc.. (Rich, Joseph) (Entered: 06/30/2010)
251 ANSWER to Complaint in Intervention for Declaratory Judgment and Injunctive Relief by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit of Service) (Ryan, James) (Entered: 08/26/2010)
252 Defendant Nassau County's ANSWER to Complaint in Intervention of New York Communities for Change, Inc., by County of Nassau. (Reissman, Ralph) (Entered: 09/16/2010)
253 Joint MOTION for Extension of Time to Complete Discovery, Joint MOTION to Adjourn Conference by County of Nassau. (Reissman, Ralph) (Entered: 10/13/2010)
ORDER granting 253 Motion for Extension of Time to Complete Discovery; granting 253 Motion to Adjourn Conference. The discovery deadline is extended to November 5, 2010. The telephone status conference scheduled for 10/20/10 is adjourned to 11/8/10 at 11:30 a.m. Ordered by Magistrate Judge William D. Wall on 10/13/2010. (Hepworth, F.) (Entered: 10/13/2010)
254 Letter to Magistrate judge William D. Wall re: Stipulation and Order for the Protection of Confidential Information by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Attachments: # 1 Stipulation and Order for the Protection of Confidential Information) (Shafroth, Abigail) (Entered: 10/19/2010)
ELECTRONIC ORDER: re 254 Letter. The Confidentiality Order submitted by the parties as an attachment to 254 is So Ordered. Ordered by Judge William D. Wall on 10/20/2010. (Disbrow, Sandra) (Entered: 10/20/2010)
Minute Entry for proceedings held before Magistrate Judge William D. Wall:Telephone Status Conference held on 11/8/2010. (Disbrow, Sandra) (Entered: 11/08/2010)
255 ORDER: All discovery shall be completed by 12/31/10. Any party intending to file a Rule 56 Motion shall serve a Rule 56.1 Statement no later than 1/31/11. The pretrial conference is adjourned without date pending Judge Spatt's resolution of the motion. Ordered by Judge William D. Wall on 11/8/2010. c/e (Disbrow, Sandra) (Entered: 11/08/2010)
256 Letter MOTION for Extension of Time to File by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Attachments: # 1 Stipulation and Order) (Brown, Stanley) (Entered: 12/23/2010)
ELECTRONIC ORDER granting 256 Motion. The stipulation is So Ordered. Ordered by Judge William D. Wall on 12/29/2010. (Disbrow, Sandra) (Entered: 12/29/2010)
257 Joint MOTION for Extension of Time to File (serve) Local Rule 56.1 Statements by County of Nassau. (Attachments: # 1 Exhibit) (Reissman, Ralph) (Entered: 03/03/2011)
ELECTRONIC ORDER granting 257 Motion for Extension of Time to File. The stipulation attached to the motion is So Ordered. Ordered by Judge William D. Wall on 3/4/2011. (Disbrow, Sandra) (Entered: 03/04/2011)
258 Letter MOTION to Strike and declare null and void, plaintiffs' Statement of Additional Material Facts, as in violation of Local Rule 56.1 and the Court's Individual Motion Practices, by County of Nassau. (Reissman, Ralph) (Entered: 04/29/2011)
260 ORDER granting 258 Motion to Strike. The defendants' unopposed motion to strike is granted. So Ordered by Senior Judge Arthur D. Spatt on 5/12/2011. (Padilla, Kristin) (Entered: 05/16/2011)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3D8Tof 5317 of 50

05/13/2011 05/13/2011
05/16/2011 05/18/2011
05/20/2011 05/20/2011 05/23/2011 05/24/2011
05/26/2011
05/26/2011 05/31/2011 06/21/2011 06/21/2011

259 Letter MOTION to Withdraw 258 Letter MOTION to Strike and declare null and void, plaintiffs' Statement of Additional Material Facts, as in violation of Local Rule 56.1 and the Court's Individual Motion Practices, since Plaintiffs have served an acceptable Amended Statement of Additional Material Facts, by County of Nassau. (Reissman, Ralph) (Entered: 05/13/2011)
Motions Terminated, Docketed Incorrectly: Terminating 259 Letter MOTION to Withdraw 258 Letter MOTION to Strike and declare null and void, plaintiffs' Statement of Additional Material Facts, as in violation of Local Rule 56.1 and the Court's Individual Motion Practices, filed by County of Nassau. Pursuant to chambers this should not have been docketed as a motion. It is withdrawing (resolving) docket 258 . (Coleman, Laurie) (Entered: 03/13/2012)
261 MOTION to Vacate Order Granting Defendant Nassau County's Motion to Strike Plaintiffs' Statement of Additional Material Facts Pursuant to Local Rule 56.1 by Vic Devita. (Brown, Stanley) (Entered: 05/16/2011)
264 ORDER Re: 261 Motion requesting the Court withdraw the May 12 Order, and take notice of the County's withdrawal of its April 29, 2011 motion to strike. The Court's May 12, 2011 Order striking the plaintiff's Rule 56.1 Statement is vacated. Signed by Senior Judge Arthur D. Spatt on 5/18/11. Movant's counsel is directed to serve a copy of this order on all parties upon receipt via facsimile. (Coleman, Laurie) (Main Document 264 replaced on 5/20/2011) (Coleman, Laurie). (Entered: 05/20/2011)
262 NOTICE of Appearance by Chava Brandriss on behalf of Vic Devita, McCray, Francine (aty to be noticed) (Brandriss, Chava) (Entered: 05/20/2011)
263 AFFIDAVIT of Service for Order of the Honorable Arthur D. Spatt on May 18, 2011, filed by Vic Devita, McCray, Francine. (Brandriss, Chava) (Entered: 05/20/2011)
265 Letter requesting pre−motion conference by Garden City Board of Trustees, Incorporated Village of Garden City (McLaughlin, Jennifer) (Entered: 05/23/2011)
266 Letter MOTION for pre motion conference for permission to file motion for summary judgment, by County of Nassau. (Attachments: # 1 Rule 56.1 Statement Part 1 of 3 Parts, # 2 Rule 56.1 Statement Part 2 of 3 Parts, # 3 Rule 56.1 Statement Part 3 of 3 Parts, # 4 Rule 56.1 Statement Plaintiffs' Response Part 1 of 3 Parts, # 5 Rule 56.1 Statement Plaintiffs' Response Part 2 of 3 Parts, # 6 Rule 56.1 Statement Plaintiffs' Response Part 3 of 3 Parts, # 7 Rule 56.1 Statement Plaintiffs' Amended Statement of Additional Material Facts) (Reissman, Ralph) (Entered: 05/24/2011)
267 ORDER re 265 Letter filed by Garden City Board of Trustees, Incorporated Village of Garden City, Application granted. A pre−motion conference is set for June 29, 2011 in courtroom 1020. Counsel shall have authority to discuss settlement at this conference. Movant's counsel is directed to serve a copy of this order on all parties upon receipt via facsmile.. Ordered by Senior Judge Arthur D. Spatt on 5/26/2011. (Padilla, Kristin) (Entered: 05/31/2011)
(Court only) ***Document Terminated: Terminating 266 Letter MOTION for pre−motion conference for permission to file motion for summary judgment, filed by County of Nassau. See 267 Order, dated 5/26/11. (Coleman, Laurie) (Entered: 03/13/2012)
268 Letter in Response to defendants' letter, dated May 23, 2011(Garden City) and May 24, 2011 (Nassau County). by Vic Devita, McCray, Francine (Brown, Stanley) (Entered: 05/31/2011)
269 MOTION for Leave to Appear Pro Hac Vice (Linda H. Mullenbach) Filing fee $ 25, receipt number 0207−4862589. by Vic Devita, MHANY Management, Inc., McCray, Francine. (Attachments: # 1 Proposed Order) (Brown, Stanley) (Entered: 06/21/2011)
270 AFFIDAVIT/DECLARATION in Support re 269 MOTION for Leave to Appear Pro Hac Vice (Linda H. Mullenbach) Filing fee $ 25, receipt number 0207−4862589. filed by Vic Devita, MHANY Management, Inc., McCray, Francine. (Brown, Stanley) (Entered: 06/21/2011)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE3D9Tof 5318 of 50

06/21/2011 06/21/2011 06/21/2011 06/27/2011 07/07/2011 07/12/2011 07/15/2011
07/21/2011
07/26/2011 07/27/2011 07/28/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011 07/29/2011

271 AFFIDAVIT/DECLARATION in Support re 269 MOTION for Leave to Appear Pro Hac Vice (Linda H. Mullenbach) Filing fee $ 25, receipt number 0207−4862589. filed by Vic Devita, MHANY Management, Inc., McCray, Francine. (Brown, Stanley) (Entered: 06/21/2011)
(Court only) ***Staff notes; Attorney Linda H. Mullenbach has been checked for disciplinary proceedings. There are no disciplinary proceedings as of June 21, 2011. (Major, Jasmine) (Entered: 06/21/2011)
ELECTRONIC ORDER granting 269 Motion for Leave to Appear pro hac vice, Linda H. Mullenbach for plaintiffs. Ms. Mullenbach is directed to register for ECF and to electronically file a notice of appearance. Ordered by Judge William D. Wall on 6/21/2011. (Disbrow, Sandra) (Entered: 06/21/2011)
272 NOTICE of Appearance by Linda H. Mullenbach on behalf of Acorn, Daphne Andrews, Vic Devita, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc. (aty to be noticed) (Mullenbach, Linda) (Entered: 06/27/2011)
273 Letter MOTION for Discovery (Re−opening of Discovery on an Expedited Basis) by Vic Devita, MHANY Management, Inc., McCray, Francine. (Brown, Stanley) (Entered: 07/07/2011)
274 RESPONSE in Opposition re 273 Letter MOTION for Discovery (Re−opening of Discovery on an Expedited Basis) filed by County of Nassau. (Reissman, Ralph) (Entered: 07/12/2011)
275 REPLY in Support re 273 Letter MOTION for Discovery (Re−opening of Discovery on an Expedited Basis) filed by Acorn, Daphne Andrews, Vic Devita, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc.. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 07/15/2011)
286 ORDER Re: 273 Letter requesting to reopen discovery. The plaintiffs request is referred to United States Magistrate Judge William D. Wall. The parties are directed to contact Judge Wall's chambers to determine whether he wishes to conduct a conference or hearing concerning this motion. Signed by Senior Judge Arthur D. Spatt on 7/21/11. (Coleman, Laurie) (Entered: 08/02/2011)
276 ORDER denying 273 Motion for Discovery to the extent indicated in the attached order. Ordered by Judge William D. Wall on 7/26/2011. (Disbrow, Sandra) (Entered: 07/26/2011)
277 Letter MOTION for Leave to File Motion for Summary Judgment in "hard copy" with Clerk of the Court (in addition to filing primary documents by ECF) by County of Nassau. (Reissman, Ralph) (Entered: 07/27/2011)
288 ORDER granting 277 Motion for Leave to File. Request Granted. So Ordered. Ordered by Senior Judge Arthur D. Spatt on 7/28/2011. (Padilla, Kristin) (Entered: 08/09/2011)
278 MOTION for Summary Judgment by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Exhibit, # 5 Memorandum in Support) (Ryan, James) (Entered: 07/29/2011)
279 NOTICE by Garden City Board of Trustees, Incorporated Village of Garden City Statement of Material Facts Pursuant to Local Rule 56.1 (Ryan, James) (Entered: 07/29/2011)
280 Letter by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 07/29/2011)
281 AFFIDAVIT/AFFIRMATION of Personal Service of Notice of Motion and Supporting Documents by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 07/29/2011)
282 AFFIDAVIT/AFFIRMATION of Service via Federal Express Overnight of Notice of Motion and Supporting Documents by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 07/29/2011)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D0Tof 5319 of 50

07/29/2011
07/29/2011 07/29/2011 08/08/2011 08/09/2011 08/26/2011 08/26/2011 08/26/2011 08/26/2011 08/31/2011 08/31/2011
08/31/2011 08/31/2011

283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served) by County of Nassau. Responses due by 8/31/2011 (Attachments: # 1 Affidavit Rob Walker Affidavit (Hard copy of exhibits filed with Clerk and served), # 2 Affidavit Connnie Lassandro Affidavit (Hard copy of exhibits filed with Clerk and served, # 3 Affidavit Kevin Crean Affidavit (Hard copy of exhibits filed with Clerk and served), # 4 Rule 56.1 Statement Part 1 of 3 Parts (pages 1−35), # 5 Rule 56.1 Statement Part 1 of 3 Parts (pages 36−68), # 6 Rule 56.1 Statement Part 2 of 3 Parts, # 7 Rule 56.1 Statement Part 3 of 3 Parts, # 8 Memorandum in Support) (Reissman, Ralph) (Entered: 07/29/2011)
284 DECLARATION re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served) upon Cullen &Dykman by County of Nassau (Reissman, Ralph) (Entered: 07/29/2011)
285 DECLARATION re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served) upon Hogan Lovells and Joseph Rich by County of Nassau (Reissman, Ralph) (Entered: 07/29/2011)
287 Letter requesting Oral Argument of summary judgment motion [DE 283] by County of Nassau (Reissman, Ralph) (Entered: 08/08/2011)
289 ORDER re 287 Letter filed by County of Nassau Request Denied. The Court will inform the parties if it wishes to hear oral argument on the defendant's motion. So Ordered. Ordered by Senior Judge Arthur D. Spatt on 8/09/2011. (Padilla, Kristin) (Entered: 08/10/2011)
290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint by New York Communities For Change, Inc.. (Attachments: # 1 Proposed Order) (Mullenbach, Linda) (Entered: 08/26/2011)
291 MEMORANDUM in Support re 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint filed by New York Communities For Change, Inc.. (Mullenbach, Linda) (Entered: 08/26/2011)
292 AFFIDAVIT/DECLARATION in Support re 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint filed by New York Communities For Change, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Mullenbach, Linda) (Entered: 08/26/2011)
293 CERTIFICATE OF SERVICE by New York Communities For Change, Inc. re 292 Affidavit in Support of Motion, 291 Memorandum in Support, 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint (Mullenbach, Linda) (Entered: 08/26/2011)
294 RULE 56.1 STATEMENT Plaintiffs' Response To Defendant Garden City's Statement of Material Facts Pursuant to Local Rule 56.1 filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 08/31/2011)
295 RULE 56.1 STATEMENT Plaintiffs' Response To Part 1 of 3 Parts Of Defendant County of Nassau's Statement Of Material Facts Pursuant To Local Rule 56.1 filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Attachments: # 1 Plaintiff's Response To Part 2 of 3 Parts of Defendant County of Nassau' s Statement Of Material Facts Pursuant To Local Rule 56.1, # 2 Plaintiff's Response to Part 3 of 3 Parts of Defendant County Of Nassau's Statement Of Material Facts Pursuant To Local Rule 56.1) (Brown, Stanley) (Entered: 08/31/2011)
296 RULE 56.1 STATEMENT Plaintiffs' Amended Statement Of Material Facts filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 08/31/2011)
297 MEMORANDUM in Opposition re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served), 278 MOTION for Summary Judgment Plaintiffs' Consolidated

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D1Tof 5410 of 50

08/31/2011
08/31/2011
08/31/2011 08/31/2011 09/02/2011 09/02/2011 09/02/2011 09/02/2011 09/08/2011 09/09/2011 09/09/2011 09/12/2011 09/12/2011 09/16/2011

Opposition To Defendants Incorporated Village Of Garden City's, Garden City Board Of Trustees' And Nassau County's Motions For Summary Judgment filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 08/31/2011)
298 AFFIDAVIT/DECLARATION in Opposition re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served), 278 MOTION for Summary Judgment filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Attachments: # 1 Notice Regarding Filing Of Exhibits In Paper Form) (Brown, Stanley) (Entered: 08/31/2011)
299 CERTIFICATE OF SERVICE by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. re 298 Affidavit in Opposition to Motion, 296 Rule 56.1 Statement, 295 Rule 56.1 Statement,, 297 Memorandum in Opposition,, 294 Rule 56.1 Statement, (Brown, Stanley) (Entered: 08/31/2011)
300 NOTICE by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. Certificate Of Service Dated April 8, 2011 (Brown, Stanley) (Entered: 08/31/2011)
301 NOTICE by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. Certificate Of Service Dated May 9, 2011 (Brown, Stanley) (Entered: 08/31/2011)
302 MEMORANDUM in Opposition re 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint filed by County of Nassau. (Reissman, Ralph) (Entered: 09/02/2011)
308 EXHIBITS 1 −47 (Vol. 1 of 3) of Plaintiffs Re: Declaration of Stanley J. Brown in Opposition to Defendants Incorporated Village of Garden City's, Garden City Board of Trustees' and Nassau County's Motion for Summary Judgment.(Original Document/Not Scanned). (Coleman, Laurie) (Entered: 09/15/2011)
309 EXHIBITS 48−90 (Vol. 2 of 3) of Plaintiffs Re: Declaration of Stanley J. Brown in Opposition to Defendants Incorporated Village of Garden City's, Garden City Board of Trustees' and Nassau County's Motion for Summary Judgment. (Original Document/Not Scanned). (Coleman, Laurie) (Entered: 09/15/2011)
310 EXHIBITS 91−126 (Vol. 3 of 3) of Plaintiffs Re: Declaration of Stanley J. Brown in Opposition to Defendants Incorporated Village of Garden City's, Garden City Board of Trustees' and Nassau County's Motion for Summary Judgment. (Original Document/Not Scanned). (Coleman, Laurie) (Entered: 09/15/2011)
303 Letter MOTION for Leave to File Excess Pages by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 09/08/2011)
304 MEMORANDUM in Opposition filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit of Service) (Ronneburger, Ariel) (Entered: 09/09/2011)
307 ORDER denying 303 Motion for Leave to File Excess Pages. Request Denied. So Ordered.. Ordered by Senior Judge Arthur D. Spatt on 9/9/2011. (Padilla, Kristin) (Entered: 09/13/2011)
305 MEMORANDUM in Opposition re 303 Letter MOTION for Leave to File Excess Pages filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 09/12/2011)
306 REPLY in Support re 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint filed by New York Communities For Change, Inc.. (Rich, Joseph) (Entered: 09/12/2011)
311 REPLY in Support re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served) filed by County of Nassau. (Attachments: # 1 Affidavit in Support) (Reissman, Ralph) (Entered: 09/16/2011)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D2Tof 5411 of 50

09/16/2011 09/16/2011 09/20/2011 09/20/2011 02/15/2012
02/15/2012 02/17/2012 02/21/2012 02/29/2012 04/05/2012 04/05/2012 07/06/2012 07/12/2012

313 REPLY in Support re 278 MOTION for Summary Judgment filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 09/16/2011)
INCORRECT CASE/DOCUMENT ENTRY INFORMATION − The Memorandum previously seen as document #312 has been deleted from the above−referenced case at the request of counsel and with permission of Chambers due to a clerical error. Counsel has already re−filed a corrected copy of the Memorandum seen as document #313. (Coleman, Laurie) (Entered: 09/19/2011)
314 LETTER (undated) from Marjorie Mesidor to the Court Re: Request that this Court's records refect the change of address noted herein and that I be marked as "terminated" as an attorney in this matter. Frederick Brewington will continue to be counsel of record on these matters. (Coleman, Laurie) (Entered: 09/30/2011)
ORDER Re: 314 Letter to "terminate" Majorie Mesidor in this matter. Signed by Senior Judge Arthur D. Spatt on 9/20/11.EOD #314 (Coleman, Laurie) (Entered: 09/30/2011)
315 MEMORANDUM OF DECISION AND ORDER − It is hereby ORDERED that the Defendant Countys 283 motion for summary judgment dismissing all claims against it is GRANTED; and it is further ORDERED that the Garden City Defendants 278 motion for summary judgment dismissing all claims against it is DENIED in all respects; and it is further ORDERED that the Inventor−Plaintiff NYCCs 290 motion to amend the intervenor complaint to include a cause of action for violations of the Civil Rights Act of 1871, 42 U.S.C. §1983 and the Equal Protection Clause of the Fourteenth Amendment is GRANTED. NYCC is directed to file an amended complaint only as against the Garden City Defendants in conformance with the rulings set forth in this Memorandum of Decision and Order within 20 days of the date of this Order; and it is further ORDERED that the Plaintiffs and the Garden City Defendants are directed to appear on Thursday, February 23, 2012 at 9:00am for a conference to set a trial date. Signed by Senior Judge Arthur D. Spatt on 2/15/2012. (Coleman, Laurie) (Entered: 02/15/2012)
(Court only) *** Party County of Nassau terminated, see 315 Order dated 2/15/12. (Coleman, Laurie) (Entered: 04/26/2013)
316 Letter MOTION to Adjourn Conference on consent by Garden City Board of Trustees, Incorporated Village of Garden City. (Ryan, James) (Entered: 02/17/2012)
317 ORDER Re: 316 Motion requesting to adjourn the 2/23/12 conference. Request granted. Conference is adjourned to 3/8/12 at 9:00 a.m. Signed by Senior Judge Arthur D. Spatt on 2/21/12. C/F. (Coleman, Laurie) (Entered: 02/28/2012)
318 AMENDED COMPLAINT in Intervention for Declaratory Judgment and Injunctive Relief against Garden City Board of Trustees, Incorporated Village of Garden City, filed by New York Communities For Change, Inc.. (Rich, Joseph) (Entered: 02/29/2012)
319 NOTICE of Appearance by Luz Maria Henriquez on behalf of Vic Devita, McCray, Francine (aty to be noticed) (Henriquez, Luz) (Entered: 04/05/2012)
(Court only) ***STAFF NOTES: Attorney Luz Maria Henriquez has been checked for disciplinary proceedings. There are no disciplinary proceedings as of 4/6/12. (Coleman, Laurie) (Entered: 04/06/2012)
320 Letter from Stanley J. Brown to Honorable Arthur D. Spatt by Garden City Board of Trustees, Incorporated Village of Garden City, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Brown, Stanley) (Entered: 07/06/2012)
321 ORDER re 320 Letter filed by MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc., Garden City Board of Trustees, Incorporated Village of Garden City> So Ordered that the Parties are directed to contact chambers in writintg when the mediation is completed to report on the status. At that time, the Court will decide whether to set a telephone conference. So Ordered.. Ordered by Judge Arthur D. Spatt on 7/12/2012. (Padilla, Kristin)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D3Tof 5412 of 50

08/16/2012 11/09/2012 11/12/2012 11/12/2012 11/12/2012 11/16/2012 11/27/2012
11/27/2012 11/28/2012
12/03/2012 12/03/2012 12/04/2012 12/05/2012
12/06/2012

(Entered: 07/17/2012)
322 Letter from Stanley J. Brown to Honorable Arthur D. Spatt regarding the status of mediation by Garden City Board of Trustees, Incorporated Village of Garden City, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Brown, Stanley) (Entered: 08/16/2012)
323 Letter From Stanley J. Brown to Hon. Arthur D. Spatt requesting a pre−trial status conference, to set a pre−trial order with deadlines for parties to submit the joint pre−trial order as well as motions in limine. by Vic Devita, MHANY Management, Inc., McCray, Francine (Brown, Stanley) (Entered: 11/09/2012)
324 Letter Requesting Pre−Trial Conference by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Ryan, James) (Entered: 11/12/2012)
325 Letter regarding confidentiality in plaintiffs' 11.9.12 letter by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 11/12/2012)
326 Letter Responding to Defendants' Letter Regarding Confidentiality by MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Brown, Stanley) (Entered: 11/12/2012)
327 NOTICE of Appearance by Douglas J. Bohn on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Bohn, Douglas) (Entered: 11/16/2012)
328 ORDER 323 Letter. The plaintiff's request for a pre−trial status conference is granted. The conference will be held on Thursday, 12/6/12 at 9:30 a.m. The Village defendant's request to remove this letter from the public record (DE 325) is denied. Signed by Judge Arthur D. Spatt on 11/27/2012. (Coleman, Laurie) (Entered: 11/27/2012)
Set/Reset Hearings: Pretrial Conference set for 12/6/2012 09:30 AM in Courtroom 1020 before Judge Arthur D. Spatt. (Coleman, Laurie) (Entered: 11/27/2012)
ORDER In preparation for the pretrial conference set by Judge Spatt for December 6, 2012, the parties are directed to file a joint proposed pretrial order in accordance with Judge Spatt's individual rules no later than December 4, 2012. Ordered by Magistrate Judge William D. Wall on 11/28/2012. (Kennedy, Michael) (Entered: 11/28/2012)
329 NOTICE of Appearance by Cynthia Ann Augello on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Augello, Cynthia) (Entered: 12/03/2012)
330 NOTICE of Appearance by Ariel E. Ronneburger on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Ronneburger, Ariel) (Entered: 12/03/2012)
331 Proposed Pretrial Order (Joint) by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Brown, Stanley) (Entered: 12/04/2012)
ORDER The parties have submitted their proposed Joint Pretrial Order. After examination of the order, this Court finds that it substantially complies with the requirements of the District Judge. Accordingly, the Joint Pretrial Order is accepted for filing and the action is deemed ready for trial. The action will be tried in accordance with the discretion and the trial calendar of the District Judge. Ordered by Magistrate Judge William D. Wall on 12/5/2012. (Kennedy, Michael) (Entered: 12/05/2012)
333 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Criminal Cause for Conference held on 12/6/12 from 9:39 a.m. − 10:41 a.m. Case called. Counsel for all sides present. Other: Every new witness, or any side, will be deposed. Party requesting the deposition is to pay for it. Other rulings on the

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D4Tof 5413 of 50

12/17/2012 01/30/2013 02/01/2013 02/05/2013
02/14/2013 02/14/2013 03/06/2013 03/06/2013 03/06/2013
03/19/2013
03/19/2013 03/26/2013 03/26/2013
04/29/2013

record. (Coleman, Laurie) (Entered: 01/04/2013)
332 NOTICE of Appearance by Andrew Jaan Sein on behalf of McCray, Francine (aty to be noticed) (Sein, Andrew) (Entered: 12/17/2012)
334 Letter MOTION to Quash subpoenas by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit) (Ronneburger, Ariel) (Entered: 01/30/2013)
335 RESPONSE in Opposition re 334 Letter MOTION to Quash subpoenas filed by All Plaintiffs. (Brown, Stanley) (Entered: 02/01/2013)
336 ORDER Re 334 Motion to Quash. The Defendant's motion to quash the four subpoenas for the individual depositions of Lauren Davies, Sheila DiMasso, Kenneth Drummond, and Arlnold Greene, is granted. The "Order" relief upon by the Plaintiffs is merely a minute entry. At the 12/6/12 conference, this Court permitted the Plaintiffs to depose only the witnesses that the defendant had included in the pre−trial order that the Plaintiffs had not yet had the opportunity to depose. Signed by Judge Arthur D. Spatt on 2/5/13. (Coleman, Laurie) (Entered: 02/06/2013)
337 NOTICE of Appearance by Sarah Joy Gregory on behalf of McCray, Francine (aty to be noticed) (Gregory, Sarah) (Entered: 02/14/2013)
(Court only) *** STAFF NOTES: Attorney Sara Joy Gregory has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 2/15/13. (Coleman, Laurie) (Entered: 02/15/2013)
338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, by Vic Devita, McCray, Francine. (Brandriss, Chava) (Entered: 03/06/2013)
339 MEMORANDUM in Support re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, filed by Vic Devita, McCray, Francine. (Brandriss, Chava) (Entered: 03/06/2013)
340 AFFIDAVIT/DECLARATION in Support re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, Declaration of Chava Brandriss in Support of Motion to Amend the Joint Pre−Trial Order filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10) (Brandriss, Chava) (Entered: 03/06/2013)
341 AFFIDAVIT/DECLARATION in Opposition re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Ronneburger, Ariel) (Entered: 03/19/2013)
342 MEMORANDUM in Opposition filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 03/19/2013)
343 REPLY to Response to Motion re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, filed by Vic Devita, McCray, Francine. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 03/26/2013)
344 AFFIDAVIT/DECLARATION in Support re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, Declaration of Andrew Sein in Further Support of Plaintiff's Motion for Leave to Amend the Joint Pre−Trial Order filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate of Service) (Brown, Stanley) (Entered: 03/26/2013)
345 MEMORANDUM OF DECISION AND ORDER − It is hereby: ORDERED, that the Plaintiffs 338 motion to amend the joint pretrial order is granted as set forth above; and it is further ORDERED, that the Plaintiffs are directed to file an amended joint pretrial order in accordance with this decision on or before May 6, 2013; and it is further ORDERED, that the Plaintiffs request for a telephone

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D5Tof 5414 of 50

05/06/2013 05/17/2013 05/17/2013 05/17/2013 05/17/2013 05/17/2013 05/29/2013
05/30/2013 05/31/2013 06/01/2013 06/01/2013 06/03/2013 06/03/2013 06/03/2013

conference is denied as unnecessary; and it is further ORDERED, that every party may depose the four additional individuals that will be included in the amended joint pretrial order, with each party paying the costs of their own depositions. Signed by Judge Arthur D. Spatt on 4/29/13. (Coleman, Laurie) (Entered: 04/30/2013)
346 Proposed Pretrial Order (AMENDED JOINT) by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Brown, Stanley) (Entered: 05/06/2013)
347 Notice of MOTION in Limine to Exclude Plaintiff's Experts by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Memorandum in Support) (Bohn, Douglas) (Entered: 05/17/2013)
348 MOTION in Limine by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit in Support, # 2 Exhibit 1, # 3 Memorandum in Support) (Ronneburger, Ariel) (Entered: 05/17/2013)
349 MOTION in Limine to Preclude Trial Evidence by Vic Devita, McCray, Francine. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 05/17/2013)
350 MEMORANDUM in Support re 349 MOTION in Limine to Preclude Trial Evidence filed by Vic Devita, McCray, Francine. (Brown, Stanley) (Entered: 05/17/2013)
351 AFFIDAVIT/DECLARATION in Support re 349 MOTION in Limine to Preclude Trial Evidence Declaration of Sarah Gregory filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Brown, Stanley) (Entered: 05/17/2013)
352 Consent MOTION for Extension of Time to File Response/Reply as to 349 MOTION in Limine to Preclude Trial Evidence, 351 Affidavit in Support of Motion, 350 Memorandum in Support, 347 Notice of MOTION in Limine to Exclude Plaintiff's Experts, 348 MOTION in Limine by McCray, Francine. (Sein, Andrew) (Entered: 05/29/2013)
353 ORDER Re: 352 Motion/Stipulation to extend any opposition, by any party, to the motions in limine filed with the Court on 5/17/13. Opposition papers shall be filed on or before 6/3/13. Reply papers shall be filed on or before 6/10/13. Signed by Judge Arthur D. Spatt on 5/30/13. (Coleman, Laurie) (Entered: 05/30/2013)
354 STIPULATION Regarding Withdrawal of Plaintiff's Expert, Dr. Peter Marcuse and Defendants' Motion to Exclude Dr. Peter Marcuse by MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Brandriss, Chava) (Entered: 05/31/2013)
362 ORDER Re: 354 STIPULATION Regarding Withdrawal of Plaintiff's Expert, Dr. Peter Marcuse and Defendants' Motion to Exclude Dr. Peter Marcus. Signed by Judge Arthur D. Spatt on 6/1/13. (Coleman, Laurie) (Entered: 06/06/2013)
363 ORDER Re: 354 Stipulation Regarding Withdrawal of Plaintiff's Expert, Dr. Peter Marcuse and Defendants' Motion to Exclude Dr. Peter Marcuse. Signed by Judge Arthur D. Spatt on 6/1/13. (Coleman, Laurie) (Entered: 06/06/2013)
355 MEMORANDUM in Opposition to Plaintiffs' Motion In Limine to Preclude Evidence on Subjects as to Which Defendants Invoked Privilege During Discovery filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 06/03/2013)
356 MEMORANDUM in Opposition re 347 Notice of MOTION in Limine to Exclude Plaintiff's Experts filed by Vic Devita, McCray, Francine. (Brown, Stanley) (Entered: 06/03/2013)
357 AFFIDAVIT/DECLARATION in Opposition re 347 Notice of MOTION in Limine to Exclude Plaintiff's Experts filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Gregory, Sarah) (Entered: 06/03/2013)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D6Tof 5415 of 50

06/03/2013 06/03/2013
06/05/2013 06/05/2013 06/05/2013 06/06/2013 06/10/2013
06/10/2013 06/10/2013 06/10/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013

358 MEMORANDUM in Opposition re 348 MOTION in Limine filed by Vic Devita, McCray, Francine. (Brown, Stanley) (Entered: 06/03/2013)
359 AFFIDAVIT/DECLARATION in Opposition re 348 MOTION in Limine filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9) (Sein, Andrew) (Entered: 06/03/2013)
360 NOTICE of Appearance by Benjamin Andrew Fleming on behalf of McCray, Francine (aty to be noticed) (Fleming, Benjamin) (Entered: 06/05/2013)
361 Letter Application to Court Regarding Use of Electronic Devices in the Courtroom by Vic Devita, MHANY Management, Inc., McCray, Francine (Sein, Andrew) (Entered: 06/05/2013)
(Court only) *** STAFF NOTES: Attorney Benjamin Andrew Fleming has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 6/6/13. (Coleman, Laurie) (Entered: 06/06/2013)
364 ORDER Re: 361 Letter Application to the Court Regarding Use of Electronic Devices in the Courtroom. Request granted. Signed by Judge Arthur D. Spatt on 6/6/13. C/F. (Coleman, Laurie) (Entered: 06/10/2013)
365 AFFIDAVIT/DECLARATION in Support re 348 MOTION in Limine Reply in Further Support filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit A) (Ronneburger, Ariel) (Entered: 06/10/2013)
366 MEMORANDUM in Support of Motion In Limine to Exclude Evidence filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 06/10/2013)
367 MEMORANDUM in Support of Motion In Limine to Exclude Expert Nancy McArdle filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Bohn, Douglas) (Entered: 06/10/2013)
368 REPLY in Support re 349 MOTION in Limine to Preclude Trial Evidence filed by All Plaintiffs. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 06/10/2013)
369 NOTICE of Appearance by Stanley Joseph Brown on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 06/12/2013)
370 NOTICE of Appearance by Peter Joseph Dennin on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Dennin, Peter) (Entered: 06/12/2013)
371 Letter requesting leave to use electronic devices in the courtroom by Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 06/12/2013)
372 NOTICE of Appearance by Chava Brandriss on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Brandriss, Chava) (Entered: 06/12/2013)
373 NOTICE of Appearance by Benjamin Andrew Fleming on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Fleming, Benjamin) (Entered: 06/12/2013)
374 NOTICE of Appearance by Andrew Jaan Sein on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Sein, Andrew) (Entered: 06/12/2013)
375 NOTICE of Appearance by Sarah Joy Gregory on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Gregory, Sarah) (Entered: 06/12/2013)
(Court only) *** STAFF NOTES: Attorney Stanley Joseph Brown has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 6/14/13. (Coleman, Laurie) (Entered: 06/14/2013)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D7Tof 5416 of 50

06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/12/2013 06/13/2013
06/13/2013 06/14/2013 06/14/2013 06/15/2013 06/15/2013 06/17/2013
06/17/2013
06/18/2013 06/18/2013 06/18/2013 06/18/2013

(Court only) *** STAFF NOTES: Attorney Peter Joseph Dennin has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 6/14/13. (Coleman, Laurie) (Entered: 06/14/2013)
(Court only) *** STAFF NOTES: Attorney Chava Brandriss has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 6/14/13. (Coleman, Laurie) (Entered: 06/14/2013)
(Court only) *** STAFF NOTES: Attorney Benjamin Andrew Fleming has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 6/14/13. (Coleman, Laurie) (Entered: 06/14/2013)
(Court only) *** STAFF NOTES: Attorney Andrew Jaan Sein has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 6/14/13. (Coleman, Laurie) (Entered: 06/14/2013)
(Court only) *** STAFF NOTES: Attorney Sarah Joy Gregory has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 6/14/13. (Coleman, Laurie) (Entered: 06/14/2013)
376 Letter MOTION to Amend/Correct/Supplement the Joint Pretrial Order by MHANY Management, Inc., McCray, Francine. (Attachments: # 1 Proposed Second Amended Joint Pretrial Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G) (Brown, Stanley) (Entered: 06/13/2013)
377 ORDER Re: 371 Letter by Incorporated Village of Garden City requesting leave to use electronic devices in the courtroom. Request granted. Signed by Judge Arthur D. Spatt on 6/13/13. C/F. (Coleman, Laurie) (Entered: 06/13/2013)
378 STIPULATION of Dismissal with Prejudice of All Claims Brought by Plaintiff Francine McCray as to All Defendants by Vic Devita, MHANY Management, Inc., McCray, Francine (Sein, Andrew) (Entered: 06/14/2013)
379 PRETRIAL MEMORANDUM by MHANY Management, Inc. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 06/14/2013)
380 TRIAL BRIEF Pre−Trial Brief by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 06/15/2013)
384 ORDER Re: 376 Motion for leave to file a Second Amended Joint Pretrial Order in this case. Request granted. Signed by Judge Arthur D. Spatt on 6/15/13. C/F. (Coleman, Laurie) (Entered: 06/18/2013)
387 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) held on 6/17/13 at 9:30 a.m. Court Reporter: Owen Wicker, Harry Rapaport. Case called. Counsel for all sides present. Non−Jury Trial ordered and begun. Plaintiffs open. Defendants open. Trial continued to 6/18/13 at 9:30 a.m. Other: Witness Nancy Anne McArdle sworn. (Coleman, Laurie) (Entered: 06/20/2013)
(Court only) ***Document Terminated: Terminating 349 MOTION in Limine, 347 Notice of MOTION in Limine, 348 MOTION in Limine, see 387 Minute Entry dated 6/17/13 for Non Jury Trial ordered and begun. (Coleman, Laurie) (Entered: 08/21/2013)
381 Letter Brief to Judge Spatt Regarding Expert Report by MHANY Management, Inc. (Brown, Stanley) (Entered: 06/18/2013)
382 MEMORANDUM in Opposition Plaintiffs' Expert Report is Inadmissible Hearsay filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 06/18/2013)
383 NOTICE of Appearance by Sardar Mohammad Asadullah on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Asadullah, Sardar) (Entered: 06/18/2013)
(Court only) *** STAFF NOTES: Attorney Sardar Mohammad Asadullah has been checked for disciplinary proceedings. There are no disciplinary sanction orders as

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D8Tof 5417 of 50

06/18/2013 06/19/2013 06/20/2013 06/20/2013 06/20/2013 06/24/2013 06/25/2013 06/26/2013 06/27/2013 06/29/2013

of 6/18/13. (Coleman, Laurie) (Entered: 06/19/2013)
388 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Non Jury Trial held on 6/18/2013 from 9:30−11:15, 11:33−12:30, 1:33−3:00, 3:20−5:00 p.m. Court Reporter: Owen Wicker, Harry Rapaport. Case called. Counsel for all sides present. Non−Jury Trial held−witnesses sworn. Trial will not go forward 6/24/13 in the a.m. Trial will commence at 1:00 p.m. Witness Nancy McCardle sworn, testimony heard. Trial to continue on 6/19/13 at 9:30 a.m. (Coleman, Laurie) (Entered: 06/20/2013)
389 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Non−Jury Trial held on 6/19/13 from 9:30−12:30 and 1:30−5:00. Court Reporter: Harry Rapaport. Case called. Counsel for all sides present. Non−Jury Trial held. Other: Witness Frank Fish &Robert L. Schoelle sworn. Witness Robert L. Schoelle testifies. Evidence entered. Non−Jury trial continued to 6/20/13 at 9:30 a.m. (Coleman, Laurie) (Entered: 06/21/2013)
385 Letter Application Regarding Plaintiffs' Exhibit 45 by MHANY Management, Inc. (Brandriss, Chava) (Entered: 06/20/2013)
386 Letter in Opposition to Plaintiffs' Letter Application by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 06/20/2013)
390 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) held on 6/20/13 from 9:30 a.m. − 12:30 p.m., 1:30 p.m. − 3:00 p.m., 3:20 p.m. − 5:00 p.m. Court Reporter: Harry Rapaport, Owen Wicker. Case called. Counsel for all sides present. Trial resumes. Trial continued to 6/24/13 at 1:30 p.m. Other: Witness Robert Schoelle, sworn and testifies. Evidence entered on the record. Witness Gerard P. Lundquist, sworn and testifies. Evidence entered on the record. (Coleman, Laurie) (Entered: 06/21/2013)
391 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) held on 6/24/13 at 1:30 p.m. Court Reporter: Mary Ann Steiger. Counsel for all sides present. Trial resumes. Trial continued to 6/25/13 at 9:30 a.m. Other: Witness Gerard P. Lundquist sworn and continues testimony. Witness Peter A. Bee sworn and testifies. Exhibits entered into evidence. Trial continued to 6/25/13 at 9:30 a.m. (Coleman, Laurie) (Entered: 06/27/2013)
393 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) on 6/25/13 at 9:30 a.m. Court Reporter: Mary Ann Steiger. Case called. Counsel for all sides present. Non−Jury Trial ordered and begun. Trial resumes. Other: Witness Gerard P. Lundquist sworn and continues testimony. Witness Peter A. Bee sworn and testifies. Exhibits entered into evidence. Trial continued to 6/26/13 at 9:30 a.m. Exhibits entered into evidence. (Coleman, Laurie) (Entered: 07/01/2013)
394 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) held on 6/26/13 at 9:30 a.m. Court Reporter: Mary Ann Steiger. Case called. Counsel for all sides present. Non−Jury Trial ordered and begun. Trial resumes. Other: Witness Gerard P. Lunquist sworn and continues testimony. Witness Peter A. Bee sworn and testifies. Exhibits entered into evidence. Trial continued to 6/27/13 at 9:30 a.m. Exhibits entered into evidence. (Coleman, Laurie) (Entered: 07/01/2013)
395 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) held on 6/27/2013 at 9:30 a.m. Court Reporter: Mary Ann Steiger. Case called. Counsel for all sides present. Non−jury trial ordered and begun. Trial resumes. Trial continued to 7/1/13 at 9:30 a.m. Other: Witnesses sworn/testify. ( Bench Trial set for 7/1/2013 09:30 AM in Courtroom 1020 before Judge Arthur D. Spatt.) (Coleman, Laurie) (Entered: 07/09/2013)
392 Letter Offer of Proof by MHANY Management, Inc. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (Brandriss, Chava) (Entered: 06/29/2013)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE4D9Tof 5418 of 50

07/01/2013
07/02/2013
07/03/2013
07/10/2013 07/20/2013 07/31/2013 08/01/2013 08/05/2013 08/05/2013 08/20/2013 08/21/2013 09/05/2013 09/05/2013 09/05/2013 09/12/2013 09/12/2013

396 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) held on 7/1/2013 at 9:30 a.m. Court Reporter: Mary Ann Steiger. Case called. Counsel for all sides present. Non−Jury Trial ordered and begun. Trial resumes. Trial continued to 7/2/13 at 9:30 a.m. Other: Witness sworn/testify. Plaintiff rests. Defendant's oral motions on the record. Defendants case: Witness sworn/testify. ( Bench Trial set for 7/2/2013 09:30 AM in Courtroom 1020 before Judge Arthur D. Spatt.) (Coleman, Laurie) (Entered: 07/09/2013)
398 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) held on 7/2/13 at 9:30 a.m. Court Reporter: Mary Ann Steiger/Paul Lombardi. Case called. Counsel for all sides present. Trial resumes. Trial continued to 7/3/13 at 9:30. Other: Witnesses sworn/testify. (Coleman, Laurie) (Entered: 07/11/2013)
400 MINUTE ENTRY for for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non−Jury) held on 7/3/13 at 9:30 a.m. Court Reporter: Mary Ann Steiger/Paul Lombardi. Case called. Counsel for all sides present. Trial resumes. Trial concluded. Other: Witnesses sworn/testify. Both sides rest. Closing arguments heard on the record. Post−trial briefing schedule was set. Decision reserved. (Coleman, Laurie) (Entered: 07/31/2013)
397 MOTION to Withdraw as Attorney (Notice of Withdrawal of Appearance and Proposed Order) by MHANY Management, Inc.. (Wasick, Joanna) (Entered: 07/10/2013)
399 ORDER Re: 397 Motion to Withdraw Joanna F. Wasick as Attorney for Plaintiff MHANY Management, Inc.. Attorney Joanna F. Wasick terminated. So Ordered by Judge Arthur D. Spatt on 7/20/13. (Coleman, Laurie) (Entered: 07/26/2013)
401 Letter MOTION for Leave to File Excess Pages by MHANY Management, Inc.. (Brown, Stanley) (Entered: 07/31/2013)
402 ORDER Re: 401 Motion for Leave to File Excess Pages. Request granted. So Ordered by Judge Arthur D. Spatt on 8/1/13. C/F. (Coleman, Laurie) (Entered: 08/02/2013)
403 TRIAL BRIEF by MHANY Management, Inc. (Brown, Stanley) (Entered: 08/05/2013)
404 DECLARATION re 403 Trial Brief by MHANY Management, Inc. (Attachments: # 1 Exhibit A) (Brown, Stanley) (Entered: 08/05/2013)
405 Letter Requesting Leave for a Ten (10) Page Extension to its Post−Trial Brief by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 08/20/2013)
406 ORDER Re: 405 Letter requesting leave for a ten (10) page extension to its Post−Trial Brief by Garden City Board of Trustees, Incorporated Village of Garden City. Request granted. so Ordered by Judge Arthur D. Spatt on 8/21/13. (Coleman, Laurie) (Entered: 08/23/2013)
407 NOTICE of Appearance by Thomas B. Wassel on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Wassel, Thomas) (Entered: 09/05/2013)
408 TRIAL BRIEF Defendants' Post−Trial Memorandum by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 09/05/2013)
(Court only) *** STAFF NOTES: Attorney Thomas B. Wassel has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 9/6/13. (Coleman, Laurie) (Entered: 09/06/2013)
409 NOTICE of Appearance by Caroline H. Cheng on behalf of MHANY Management, Inc. (aty to be noticed) (Cheng, Caroline) (Entered: 09/12/2013)
(Court only) *** STAFF NOTES: Attorney Caroline H. Cheng has been checked for disciplinary proceedings. There are no disciplinary sanction orders as of 9/13/13. (Coleman, Laurie) (Entered: 09/13/2013)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE5D0Tof 5419 of 50

09/16/2013 09/17/2013 09/18/2013 12/06/2013
01/06/2014 01/06/2014 01/06/2014 02/05/2014 02/05/2014 02/05/2014 02/20/2014 02/20/2014

410 TRIAL BRIEF Plaintiffs' Post−Trial Memorandum in Reply by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 09/16/2013)
411 Notice of MOTION to Withdraw as Attorney by Vic Devita, McCray, Francine. (Attachments: # 1 Declaration) (Henriquez, Luz) (Entered: 09/17/2013)
412 ORDER granting 411 Motion to withdraw the appearance of Luz Maria Henriques for Plaintiff MHANY Management, Inc. So Ordered by Judge Arthur D. Spatt on 9/18/13. (Coleman, Laurie) (Entered: 09/19/2013)
413 MEMORANDUM OF DECISION AND ORDER − For the foregoing reasons, the Court finds that the Plaintiffs have not established liability on the part of the Garden City Defendants under 42 U.S.C. § 1982 and the amended complaint is dismissed as to that cause of action. However, the Court finds that the Plaintiffs have established by, a preponderance of the evidence, the liability on the part of the Garden City Defendants under (1) the FHA, 42 U.S.C. § 3601 et seq., based on a theory of disparate treatment and disparate impact; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. As noted above, the Court finds that the Garden City Defendants acted with discriminatory intent when they eliminated R−M zoning and endorsed R−T zoning after they received public opposition to the prospect of affordable housing in Garden City. The Court notes that R−T zoning banned the development of multi−family housing on all but a small portion of the Social Services site −− the 3.03 acres located on the western side of County Seat Drive and then only by special permit. The Court also notes the negative remarks by Garden City residents at public hearings and the flyer against multi−family housing on the Social Services Site. Set against the underlying sequence of events and the considerable impact that this zoning decision would have had on minorities in that community, the Court concludes that some of the expressions by Garden City residents of disapproval for affordable housing reflected race−based animus or at least could have been construed as such by the Board. Furthermore, the Court finds that the adoption of R−T zoning instead of R−M zoning had a disparate impact on minorities in Garden City and tended to perpetuate segregation in that community. Accordingly, the Court directs the Plaintiffs to submit a proposed remedial plan to be incorporated in the final judgment in this case within thirty days of the date of this order. The Garden City Defendants shall then have thirty days to respond with objections. The Plaintiffs shall then have 15 days to reply to the Garden City Defendants objections. So Ordered by Judge Arthur D. Spatt on 12/6/2013. (Coleman, Laurie) (Entered: 12/06/2013)
414 NOTICE by MHANY Management, Inc. of Proposed Judgment Order (Brown, Stanley) (Entered: 01/06/2014)
415 MEMORANDUM in Support re 414 Notice(Other) of Proposed Judgment Order filed by MHANY Management, Inc.. (Brown, Stanley) (Entered: 01/06/2014)
416 DECLARATION re 414 Notice(Other) of Proposed Judgment Order by MHANY Management, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Brown, Stanley) (Entered: 01/06/2014)
417 NOTICE of Appearance by Michael A. Carvin on behalf of Incorporated Village of Garden City (aty to be noticed) (Carvin, Michael) (Entered: 02/05/2014)
418 NOTICE by Garden City Board of Trustees, Incorporated Village of Garden City Alternative Proposed Judgment Order (Ronneburger, Ariel) (Entered: 02/05/2014)
419 MEMORANDUM in Opposition to Plaintiff's Proposed Order filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 02/05/2014)
420 NOTICE by MHANY Management, Inc. AMENDED PROPOSED JUDGMENT (Brown, Stanley) (Entered: 02/20/2014)
421 MEMORANDUM in Support re 420 Notice(Other) AMENDED PROPOSED JUDGMENT filed by MHANY Management, Inc.. (Brown, Stanley) (Entered: 02/20/2014)

Case:C2a:0s5e-c1v4--012633041, -DAoDcSu-mWeDnWt 1-1,A0s5o/0f:90/250/0194/,210213401002:95,1PAaMgeE5D1Tof 5510 of 50

02/20/2014 03/17/2014
03/27/2014 04/07/2014 04/07/2014 04/08/2014
04/08/2014 04/09/2014
04/14/2014 04/22/2014 04/24/2014 04/25/2014
04/25/2014 04/26/2014 05/05/2014

422 DECLARATION re 420 Notice(Other) AMENDED PROPOSED JUDGMENT by MHANY Management, Inc. (Attachments: # 1 Exhibit A) (Brown, Stanley) (Entered: 02/20/2014)
423 MEMORANDUM OF DECISION AND ORDER − For the foregoing reasons, within ten days of the date of this order, the Plaintiffs are directed to submit a proposed final judgment in accordance with the terms set forth in this decision and order. The Defendants shall then have ten days to file objections or an alternative proposed judgment. The Court will subsequently enter a final judgment. So Ordered by Judge Arthur D. Spatt on 3/17/2014. (Coleman, Laurie) (Entered: 03/17/2014)
424 NOTICE by MHANY Management, Inc. PROPOSED FINAL JUDGMENT (Brown, Stanley) (Entered: 03/27/2014)
425 DECLARATION of James G. Ryan by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit Redline Judgment, # 2 Exhibit Final Judgment) (Ronneburger, Ariel) (Entered: 04/07/2014)
426 MEMORANDUM in Opposition to Proposed Final Judgment filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 04/07/2014)
427 Letter MOTION for Leave to File A Reply to the Objections Filed in Reponse to Plaintiffs' Proposed Judgment by Acorn, Daphne Andrews, Vic Devita, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc.. (Brown, Stanley) (Entered: 04/08/2014)
428 Letter in Opposition to Plaintiffs' Letter Motion for Leave to Reply by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 04/08/2014)
429 ORDER Re: 427 Motion for Leave to File A Reply to the Objections Filed in Reponse to Plaintiffs' Proposed Judgment. Request granted. The reply shall not exceed three pages. No further briefing will be accepted. So Ordered by Judge Arthur D. Spatt on 4/9/14. Movant's counsel is directed to serve a copy of this Order on all parties upon receipt via facsimile. (Coleman, Laurie) (Entered: 04/10/2014)
430 REPLY in Support re 424 Notice(Other) Plaintiffs' Proposed Final Judgment Order filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 04/14/2014)
431 FINAL JUDGMENT − The Clerk of the Court is directed to close this case. See Judgment for further details. So Ordered by Judge Arthur D. Spatt on 4/22/14. (Coleman, Laurie) (Entered: 04/22/2014)
432 Letter MOTION for Extension of Time to File Petition for Attorneys' Fees and Costs by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 04/24/2014)
433 ORDER Re: 432 Motion requesting that the deadline for filing a petition for attorneys' fees and costs be extended by nine days, or until 5/15/14. Request granted. So Ordered by Judge Arthur D. Spatt on 4/25/2014. Movant's counsel is directed to serve a copy of this Order on all parties upon receipt via facsimile. (Coleman, Laurie) (Entered: 04/25/2014)
434 Notice of MOTION to Withdraw as Attorney by MHANY Management, Inc.. (Sein, Andrew) (Entered: 04/25/2014)
435 ORDER Re: 434 Motion for Andrew J. Sein to withdraw his appearance as counsel for Plaintiff MHANY Management, Inc.. Attorney Andrew Jaan Sein terminated for MHANY Management, Inc. So Ordered by Judge Arthur D. Spatt on 4/26/14. (Coleman, Laurie) (Entered: 04/28/2014)
436 NOTICE OF APPEAL as to 431 Judgment by Garden City Board of Trustees, Incorporated Village of Garden City. Filing fee $ 505, receipt number 0207−6902771. (Carvin, Michael) (Entered: 05/05/2014)

Case 14-1634, Document 1-2, 05/09/2014, 1230029, Page1 of 2

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE

CATHERINE O'HAGAN WOLFE
CLERK OF COURT

Date: May 21, 2014 Docket #: 14-1634 Short Title: Mhany Management Inc. v. County of Nassau

DC Docket #: 05-cv-2301 DC Court: EDNY (CENTRAL ISLIP) DC Judge: Wall DC Judge: Spatt

DOCKETING NOTICE
A notice of appeal filed by The Incorporated Village of Garden City and The Garden City Board of Trustees in the above referenced case was docketed today as 14-1634. This number must appear on all documents related to this case that are filed in this Court. For pro se parties the docket sheet with the caption page, and an Acknowledgment and Notice of Appearance Form are enclosed. In counseled cases the docket sheet is available on PACER. Counsel must access the Acknowledgment and Notice of Appearance Form from this Court's website http://www.ca2.uscourts.gov.
The form must be completed and returned within 14 days of the date of this notice. The form requires the following information:
YOUR CORRECT CONTACT INFORMATION: Review the party information on the docket sheet and note any incorrect information in writing on the Acknowledgment and Notice of Appearance Form.
The Court will contact one counsel per party or group of collectively represented parties when serving notice or issuing our order. Counsel must designate on the Acknowledgment and Notice of Appearance a lead attorney to accept all notices from this Court who, in turn will, be responsible for notifying any associated counsel.
CAPTION: This Court must use the district court caption See FRAP 12(a), 32(a). Please review the caption carefully and promptly advise this Court of any improper or inaccurate designations in writing on the Acknowledgment and Notice of Appearance form. If a party has been

Case 14-1634, Document 1-2, 05/09/2014, 1230029, Page2 of 2
terminated from the case the caption may reflect that change only if the district court judge ordered that the caption be amended.
APPELLATE DESIGNATIONS: Please review whether appellant is listed correctly on the party listing page of the docket sheet and in the caption. If there is an error, please note on the Acknowledgment and Notice of Appearance Form. Timely submission of the Acknowledgment and Notice of Appearance Form will constitute compliance with the requirement to file a Representation Statement required by FRAP 12(b).
For additional information consult the Court's instructions posted on the website.
Inquiries regarding this case may be directed to 212-857-8577.

 
 Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page1 of 102
14-1634-cv(L) MHANY Mgmt., Inc. v. Cty of Nassau et al.
14‐1634‐cv(L) MHANY Mgmt., Inc. v. Cty. of Nassau et al.

1

UNITED STATES COURT OF APPEALS

2

FOR THE SECOND CIRCUIT

3

____________________

4

5

August Term, 2014

6

7 (Argued: May 29, 2015

Decided: March 23, 2016)

8

9

Docket Nos. 14‐1634‐cv(L), 14‐1729‐cv(XAP)

10

____________________

11

12 MHANY MANAGEMENT, INC., AKA New York Acorn Housing Company,

13

14

Plaintiff‐Appellee‐Cross‐Appellant,

15

16 NEW YORK COMMUNITIES FOR CHANGE, INC.,

17

18

Intervenor‐Plaintiff‐Appellee‐Cross‐Appellant,

19

20 ACORN, THE NEW YORK ASSOCIATION OF COMMUNITY

21 ORGANIZATIONS FOR REFORM NOW, DAPHNE ANDREWS,

22 VIC DEVITA, VERNON GHULLKIE, NATALIE GUERRIDO,

23 NEW YORK ACORN HOUSING COMPANY, INC., LISBETT

24 HUNTER, FRANCINE MCCRAY,

25

26

Plaintiffs,

27

28

v.

29

30 COUNTY OF NASSAU, COUNTY OF NASSAU PLANNING

31 COMMISSION, COUNTY OF NASSAU OFFICE OF REAL

32 ESTATE & DEVELOPMENT,

33

34

Defendants‐Cross‐Appellees,

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page2 of 102

1 INCORPORATED VILLAGE OF GARDEN CITY, GARDEN

2 CITY BOARD OF TRUSTEES,

3

4

Defendants‐Appellants.

5

____________________

6

7 Before: POOLER, LOHIER, and DRONEY, Circuit Judges.

8

9

Defendants‐Appellants the Incorporated Village of Garden City and the

10 Garden City Board of Trustees appeal from an April 22, 2014 final judgment

11 following a bench trial in the United States District Court for the Eastern District

12 of New York (Spatt, J.) finding Defendants‐Appellants liable for violations of the

13 Fair Housing Act, Section 1981, Section 1983, and the Equal Protection Clause.

14 Plaintiff‐Appellee‐Cross‐Appellant MHANY Management, Inc. and Intervenor‐

15 Plaintiff‐Appellee‐Cross‐Appellant New York Communities for Change, Inc.

16 cross‐appeal from a February 15, 2012 grant of summary judgment by the same

17 district court in favor of Defendants‐Cross‐Appellees County of Nassau, County

18 of Nassau Planning Commission, and County of Nassau Office of Real Estate and

19 Development. We affirm in part, vacate in part, and remand.

20

21

____________________

2

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page3 of 102

1

MICHAEL CARVIN, Jones Day, Washington, DC, for

2

Defendants‐Appellants Incorporated Village of Garden City,

3

Garden City Board of Trustees.

4

5

IRA M. FEINBERG, Hogan Lovells US LLP (Stanley J.

6

Brown, Chava Brandriss, Benjamin A. Fleming, Hogan

7

Lovells US LLP, New York, NY; Joseph D. Rich,

8

Lawyers’ Committee for Civil Rights Under Law,

9

Washington, DC; Frederick K. Brewington, Hempstead,

10

NY, on the brief), New York, NY, for Plaintiff‐Appellee‐

11

Cross‐Appellant MHANY Management, Inc., AKA New

12

York Acorn Housing Company & Intervenor‐Plaintiff‐

13

Appellee‐Cross‐Appellant New York Communities for

14

Change, Inc.

15

16

GERALD R. PODLESAK, Appeals and Opinions Bureau

17

Chief (Carnell T. Foskey, County Attorney of Nassau

18

County, Ralph J. Reissman, Deputy Nassau County

19

Attorney, on the brief), Mineola, NY, for Defendants‐Cross‐

20

Appellees County of Nassau, County of Nassau Planning

21

Commission, County of Nassau Office of Real Estate &

22

Planning.

23

24 POOLER, Circuit Judge:

25

This is a housing discrimination case relating to the community of Garden

26 City in Long Island, New York. Defendants‐Appellants the Incorporated Village

27 of Garden City and the Garden City Board of Trustees (collectively “Garden

28 City”) appeal from an April 22, 2014 final judgment following a bench trial in the

29 United States District Court for the Eastern District of New York (Spatt, J.)

3

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page4 of 102

1 finding Garden City liable for violations of the Fair Housing Act, Section 1981,

2 Section 1983, and the Equal Protection Clause. We affirm this decision.

3

Plaintiff‐Appellee‐Cross‐Appellant MHANY Management, Inc. and

4 Intervenor‐Plaintiff‐Appellee‐Cross‐Appellant New York Communities for

5 Change, Inc., (collectively, “Plaintiffs”), also cross‐appeal from a February 15,

6 2012 grant of summary judgment by the same district court in favor of

7 Defendants‐Cross‐Appellees County of Nassau, County of Nassau Planning

8 Commission, and County of Nassau Office of Real Estate and Development

9 (collectively “Nassau County”). We affirm this decision in part, vacate in part,

10 and remand.

11

BACKGROUND

12

The following facts are drawn from the district court’s factual findings

13 after the bench trial, which we accept unless clearly erroneous. Diesel Props S.r.l v.

14 Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011).

15

A. Nassau County and Garden City

16

The Village of Garden City is a municipal corporation organized under the

17 laws of the State of New York and located in Nassau County. As of the year 2000,

18 individuals of Hispanic or African‐American ethnicity comprised 20.3% of

4

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page5 of 102

1 Nassau County’s population. However, these minority groups comprised a

2 disproportionate share of the County’s low‐income population. While

3 constituting 14.8% of all households in Nassau County, African‐Americans and

4 Hispanics represented 53.1% of the County’s “very low” income, non‐elderly

5 renter households. In addition, African‐Americans made up 88% of the County’s

6 waiting list for Section 8 housing. Under the Section 8 program, the federal

7 government provides funds to local housing authorities, which then subsidize

8 rental payments for qualifying low‐income tenants in privately‐owned buildings.

9 See 42 U.S.C. § 1437f(o)(1)(A).

10

Garden City’s African‐American and Hispanic population in the year 2000

11 was 4.1%. However, excluding the 61% of the minority population representing

12 students living in dormitories, Garden City’s minority population was only 2.6%.

13 In addition, only 2.3% of the households in Garden City were headed by an

14 African‐American or Hispanic person. However, several of the communities

15 surrounding Garden City are “majority‐minority,” communities in which

16 minorities make up a majority of the population.

5

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page6 of 102

1

Although the lack of affordable housing has long been a problem for

2 Nassau County, Garden City contains no affordable housing.1 Indeed, in the

3 past, Garden City and its residents have resisted the introduction of affordable

4 housing into the community. According to a Garden City official, in 1989, a

5 developer proposed constructing 51 units of affordable housing at a site in

6 Garden City. This project was never completed, apparently due to a village

7 building moratorium, and a luxury development was ultimately approved for

8 the site. In addition, in May 2006, Nassau County announced that it intended to

9 sell a parcel of County land in Garden City known as the Ring Road Site, for the

10 development of mixed‐income affordable housing. But after Garden City

11 residents expressed opposition to the construction of affordable housing in the

12 community, the project was abandoned. Finally, Garden City has repeatedly

13 declined to join the Nassau County Urban Consortium, a group of municipalities

14 in Nassau County that are eligible to receive federal funding to support

15 affordable‐housing development.

1 Affordable housing, as defined in this case, means housing which requires no more than 30% of a household’s income for households earning 80% or less of the Area Median Income for the Nassau‐Suffolk Metropolitan Statistical Area. Special App’x at 119.
6

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page7 of 102

1

B. The Social Services Site

2

In 2002, Nassau County faced a budget and infrastructure crisis. Under the

3 leadership of then‐County Executive Thomas Suozzi, the County undertook a

4 Real Estate Consolidation Plan, which involved consolidating County operations

5 in several facilities and selling excess government property in order to raise

6 revenue to fund renovations of the Countyʹs existing operations.

7

One of the properties proposed for sale under the Real Estate

8 Consolidation Plan was a parcel of land owned by Nassau County within the

9 boundaries of Garden City. This parcel of land was part of Garden City’s Public

10 or P‐Zone. Garden City’s P‐Zone encompasses numerous Nassau County

11 Buildings, including the Nassau County Police Headquarters, the County

12 Executive Building, and the Nassau County Supreme Court Building.

13

The portion of the P‐Zone site at issue in this case, referred to as the “Social

14 Services Site,” is an approximately 25‐acre site that housed the former Nassau

15 County Social Services Building, the parking lots for the Nassau County

16 Supreme Court, a garage, an ancillary building, and additional parking facilities.

17 The Social Services Site consists of two segments: (1) 21.44 acres located on the

18 eastern side of County Seat Drive, the site of the former Social Services building

7

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page8 of 102

1 and parking facilities; and (2) an additional 3.03 acres located on the western side

2 of County Seat Drive, on which a County‐owned building and a parking garage

3 are located.

4

Nassau County planned to sell the Social Services Site to a private

5 developer, hoping to receive at least $30 million for the property. In order to

6 facilitate this sale, Nassau County turned to Garden City, which controlled the

7 Site’s zoning.

8

C. Garden City’s Rezoning

9

In June 2002, at the County’s request, Garden City began the process of re‐

10 zoning the Social Services Site. This process was managed by the Garden City

11 Board of Trustees, the elected body which governs Village affairs. In response to

12 the County’s request, the Board of Trustees created a sub‐committee (the “P‐

13 Zone Committee”) charged with retaining a planner and reviewing zoning

14 options for the Social Services Site, as well as the remainder of the P‐Zone

15 properties in Garden City. This P‐Zone Committee consisted of Village Trustees

16 Peter Bee, Peter Negri, and Gerard Lundquist. Trustee Bee was the chairman of

17 the P‐Zone Committee. Garden City also retained the planning firm of Buckhurst

18 Fish and Jacquemart (“BFJ”) to provide a recommendation with regard to the

8

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page9 of 102

1 rezoning of the Social Services Site. Garden City had previously worked with BFJ

2 over several decades. Village officials trusted and respected BFJ’s work and

3 generally adopted its recommendations. The P‐Zone committee was supervised

4 by Garden City Village Administrator Robert Schoelle, who served as a liaison

5 between the Committee and the Board of Trustees. The Village also hired

6 attorney John Kiernan to advise it on the rezoning process.

7

In the early part of this rezoning process, BFJ and Garden City emphasized

8 that any proposal should rely on existing zoning mechanisms and respect the

9 existing character of the Village. In a September 13, 2002 fax outlining the general

10 planning principles for redevelopment of the P‐Zone properties, BFJ stressed that

11 “[a]ny rezoning associated with the proposed development should be in

12 accordance with the goals and parameters set forth in the zoning code [of Garden

13 City].” App’x at 1063. This fax also emphasized that any proposed development

14 should “be consistent with the existing character and surrounding

15 neighborhoods of Garden City,” “not overburden roads, utilities, and schools,”

16 and “not tend to depreciate the value of property in the village.” App’x at 1063.

17 Similarly, in a November 15, 2002 memorandum entitled “Potential Approach to

18 ‘P’ Zone Changes,” and addressed to the P‐Zone Committee, BFJ recommended

9

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page10 of 102

1 that Garden City borrow from its existing zoning regulations in rezoning the P‐

2 Zone properties, rather than adopt a new form of zoning for the property.

3

On April 29, 2003, BFJ submitted its proposal to the P‐Zone Committee,

4 recommending a “CO‐5(b) zone” for the Social Services Site. BFJ proposed

5 applying “multi‐family residential group” or “R‐M” zoning controls to this

6 property. R‐M zoning would have allowed for the construction of up to 311

7 residential apartment units on the Site, or 75 single‐family homes. BFJ reiterated

8 the proposed R‐M zoning in a May 2003 report to the P‐Zone Committee, stating

9 that the rezoning would “be likely to generate a net tax benefit to the Village.”

10 App’x at 1382.

11

Throughout the rezoning process, the P‐Zone Committee also kept Garden

12 City’s four Property Owners’ Associations (”POAs”) apprised of the process. The

13 POAs acted as liaisons between Garden City and the citizens living within their

14 respective neighborhoods. The Social Services Site is located within the

15 neighborhood of the Eastern Property Owners’ Association. On May 29, 2003,

16 BFJ gave a PowerPoint presentation of its May 2003 report at a public forum. At

17 the first forum, designed to solicit public input on the proposal, several residents

10

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page11 of 102

1 expressed concern about the impact of 311 residential units on traffic and

2 schools. In response to these citizen concerns, BFJ analyzed these issues further.

3

In July 2003, BFJ issued a revised version of its study, which reiterated the

4 proposal for R‐M zoning. BFJ emphasized again that its proposal “would be

5 careful of not overwhelming the neighborhoods with any significant adverse

6 environmental impacts[,] particularly traffic, visual effects, or burdens on public

7 facilities.” App’x at 1115. Responding to issues raised at the citizen forum, the

8 July 2003 report states that “[t]here would be a smaller number of school children

9 generated by the new development than with the development of single‐family

10 homes . . . . With a community aimed at young couples and empty nesters[,]

11 there could be as few as 0.2 to 0.3 public school children per unit.” App’x at

12 1123–24. Upon review of the report, the P‐Zone Committee adopted BFJ’s

13 recommendation for R‐M zoning for the approval of the Board of Trustees.

14

In September 2003, as required by state law, BFJ issued a draft

15 Environmental Assessment Form (“EAF”) for the proposed rezoning. The EAF

16 concluded that the proposed rezoning to R‐M “will not have a significant impact

17 on the environment.” App’x at 1146. The EAF further stated that the proposed

18 multi‐family development at the Site would not “result in the generation of

11

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page12 of 102

1 traffic significantly above present levels” and would have a minimal impact on

2 schools. See App’x at 1155. In addition, the EAF emphasized that “[i]n terms of

3 potential aesthetic impacts, the proposed zoning controls were specifically

4 designed to accommodate existing conditions, respect existing neighborhoods ‐

5 particularly residential neighborhoods, maximize the use of existing zoning

6 controls and minimize adverse visual impacts.” App’x at 1161. Michael Filippon,

7 the Superintendent of the Garden City Buildings Department, concurred in these

8 conclusions.

9

On October 17, 2003, an ad was placed in the Garden City News entitled,

10 “Tell Them What You Think About the County’s Plan for Garden City.” App’x at

11 1639. This notice stated:

12

Where is the Benefit to Garden City? Are We Being Urbanized? . . .

13

14

The County is asking the Village to change our existing zoning – P

15

(Public use) ZONE – to allow the County to sell the building and

16

land . . . now occupied by the Social Services Building, to private

17

developers. Among the proposed plans: Low‐density (high‐rise?)

18

housing – up to 311 apartments. . . .

19

20

These proposals will affect ALL of Garden City.

21

22 App’x at 1639.

12

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page13 of 102

1

The Village held a subsequent public forum on October 23, 2003, where

2 BFJ gave another PowerPoint presentation summarizing the proposed rezoning.

3 The record indicates that at this meeting, citizens again raised questions about

4 traffic and an increase in schoolchildren. BFJ again reiterated that traffic would

5 be reduced relative to existing use, and that multi‐family housing would

6 generate fewer schoolchildren than the development of single‐family homes. In

7 keeping with these conclusions, in November 2003, BFJ presented an additional

8 report to the P‐Zone Committee, again confirming its proposal for the R‐M

9 zoning control that allowed for a possible 311 apartment units on the Social

10 Services Site. The November 2003 report set forth a draft text for the rezoning.

11

In light of BFJ’s final report, on November 20, 2003, the Garden City

12 Village Board of Trustees unanimously accepted the P‐Zone Committee’s

13 recommendation for the rezoning. In addition, on December 4, 2003, the Board

14 made a finding pursuant to New York State’s Environmental Quality Review Act

15 that the zoning incorporated in what was now termed proposed Local Law 1‐

16 2004 would have “no impact on the environment.” App’x at 1996. The proposed

17 rezoning would, in keeping with Nassau County’s wishes, permit residential

18 development on the Social Services Site in the new CO‐5(b) zone. In light of the

13

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page14 of 102

1 R‐M controls on the property, such development could include multi‐family

2 units, or less dense alternatives such as single‐family homes. Having endorsed

3 the proposed rezoning, the Board of Trustees moved Local Law 1‐2004 to a

4 public hearing.

5

Starting in January 2004, three public hearings occurred in the span of one

6 month. At the first hearing, on January 8, 2004, residents voiced concerns that

7 multi‐family housing would generate traffic, parking problems, and

8 schoolchildren. In response, Filippon emphasized, “[y]ou have to remember that

9 the existing use on that site now generates a certain amount of traffic, a fair

10 amount of traffic. That use is going to be vacated. The two residential uses that

11 are being proposed as one of the alternates, each of which on their face

12 automatically generate far less traffic than the existing use. That is something to

13 consider also.” App’x at 1435. In addition, although assured by Garden City

14 officials that the rezoning could result in single‐family homes, one resident

15 expressed concern that Nassau County would ultimately only sell the property

16 to a multi‐family developer in order to maximize revenue.

17

On January 20, 2004, the Eastern Property Owners’ Association held a

18 meeting at which Trustee Bee discussed BFJ’s recommendation for the Social

14

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page15 of 102
1 Services Site. A summary of the meeting reports that “Trustee Bee addressed 2 many questions from the floor” and, in doing so, expressed the opinion that 3 “Garden City demographically has a need for multi‐family housing.” App’x at 4 1665. Trustee Bee also reiterated that because relatively few schoolchildren 5 resided in existing multi‐family housing in Garden City, BFJ and the Board had 6 reasonably predicted that multi‐family housing would have less of an impact on 7 schools than single‐family housing. Trustee Bee “indicated he would keep an 8 open mind but he still felt the recommended zoning changes were appropriate.” 9 App’x at 1665. In addition, Trustee Bee addressed citizen concerns about the 10 possibility of affordable housing on the Site. In response to one question, Trustee 11 Bee stated that “[a]lthough economics would indicate that a developer would 12 likely build high‐end housing, the zoning language would also allow ‘affordable’ 13 housing (as referred to by [the] resident asking the question) at the [Social 14 Services Site].” App’x at 1665. The meeting notes further indicate that a majority 15 of the residents “who asked questions or made comments” at the meeting 16 supported restricting the rezoning of the Site to single‐family homes. App’x at 17 1665. According to these notes, “[r]esidents want[ed] to preserve the single‐ 18 family character of the Village. One resident in particular requested the [Eastern
15

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page16 of 102

1 Property Owners’ Association] Board take a firmer stand on the P‐Zone issue

2 and only support R‐8 zoning, i.e. zoning for single‐family housing. App’x at

3 1665.

4

On February 5, 2004, the Village held a third public hearing on the

5 proposed rezoning. The record indicates that this hearing was well attended and

6 much more crowded than usual. App’x at 1209 (“Mindful of the number of

7 people who are here this evening and the likelihood that this hearing will take

8 some time . . . .”). After an introduction by Trustee Bee, the meeting commenced

9 with two presentations. First, Tom Yardley of BFJ emphasized that the proposed

10 rezoning preserved the possibility of single‐family homes, and that any multi‐

11 family housing would not result in high‐rise apartments due to height and

12 density restrictions. Second, Nassau County Executive Suozzi, the author of the

13 County’s Real Estate Consolidation Plan, emphasized the County’s need to sell

14 the Social Services Site to a private developer, as well as the benefits of

15 developing multi‐family housing on the property. During this discussion, a

16 member of the audience interrupted Suozzi.

17

Thomas Suozzi: Instead of putting commercial there or single family

18

there, you do something right in between the two that creates a

19

transition from the commercial area from one to the other. I

20

guarantee you that it will be much better than what is there now,

16

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page17 of 102

1

which is a building that is falling apart with a lot of problems in the

2

building, a lot of problems going on around the building on a

3

regular basis and a huge sea of parking. This will make it a much

4

more attractive area for the property. Multi‐family housing will be

5

more likely to generate empty nesters and single people moving into

6

the area as opposed to families that are going to create a burden on

7

your school district to increase the burden on the school district

8

9

Unidentified Speaker: You say it’s supposed to be upscale.

10

11

Thomas Suozzi: It’s going to be upscale. Single people and senior

12

citizen empty nesters. If you sell your $2 million house in Garden

13

City and you don’t want to take care of the lawn anymore, you can

14

go into . . . who lives in Wyndham for example? It’s a very upscale

15

place. There’s a lot of retirees that live there.

16

17 App’x at 1231. When Suozzi finished his presentation, the meeting was opened

18 to questions from the public. The first question from the audience related to

19 Trustee Bee’s statements “last time,” referring to the January 20, 2004 meeting of

20 the Eastern Property Owners’ Association.

21

Lauren Davies: I’m just confused between what Mr. Suozzi said

22

about the Social Services Building. You said you wanted it to be

23

upscale, from what I understand from what Peter Bee said the last

24

time is that they wanted it to be affordable housing. . . .

25

26

Trustee Bee: Well, either I mis‐spoke or you misheard, because I do

27

not recollect using that phrase. If I did it was an inappropriate

28

phrase. The idea was a place for Garden City’s seniors to go when

29

they did not wish to maintain the physical structure and cut the

30

lawns and do all the various things. But not necessarily looking at a

31

different style of life. In terms of economics.

32

17

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page18 of 102

1

Thomas Suozzi: We’re absolutely not interested in building

2

affordable housing there and there is a great need for affordable

3

housing, but Garden City is not the location. We need to build

4

housing there. . . . We would generate more revenues to the County

5

by selling it to upscale housing in that location. That is what we

6

think is in the character of Garden City and would be appropriate

7

there.

8

9

Unidentified Speaker: How do you have control over what the

10

developer does . . .

11

12

Trustee Bee: Before the next speaker though, just to finish on that

13

last remark, neither the County nor the Village is looking to create . .

14

. so‐called affordable housing at that spot.

15

16

Unidentified Speaker: Can you guarantee that, that it won’t be in

17

that building?

18

19 App’x at 1236–37. In response to these questions, Suozzi indicated that the

20 County “would be willing to put deed restrictions on any property that we sold”

21 so “that it can’t be anything but upscale housing.” App’x at 1237.2 In response to

22 further questioning, Suozzi stated “Don’t take my word for it, we’ll put whatever

23 legal codifications that people want. This will not be affordable housing projects.

24 That’s number one.” App’x at 1239. Gerard Fishberg, Garden City’s counsel,

2 In a subsequent question, another resident stated that she was “at that meeting,” apparently the January 20, 2004 meeting of the Eastern Property Owners’ Association, and she “did hear Peter Bee say that he couldn’t guarantee that it wouldn’t be a [tape change]. So I am really taking your word that it won’t be.” App’x at 1238. Although the transcript is interrupted by a tape change, we can reasonably infer from the context that this speaker too was requesting assurance that no affordable housing would be built on the Social Services Site.
18

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page19 of 102

1 further noted that the estimated sale prices for multi‐family residential units

2 “don’t suggest affordable housing.” App’x at 1242.

3

Throughout the remainder of the meeting, residents indicated their

4 opposition to multi‐family housing and their preference for single‐family homes.

5 App’x at 1242–43 (“I’m completely opposed to any multi‐family dwellings in that

6 area. I’m only in support of the single family R‐8 units . . . .”). One resident

7 emphasized that the proposed multi‐family development was not “in the flavor

8 and character of what Garden City is now. Garden City started as a

9 neighborhood of single family homes and it should remain as such.” App’x at

10 1243. Others stated, to applause from the audience, that “[w]e’re not against

11 residential, we’re against multi‐level residential. (Applause).” App’x at 1249; see

12 also App’x at 1252 (“Thomas Suozzi: You would probably like to see single

13 family housing I presume. Unidentified Speaker: Single Family. (Applause).”);

14 App’x at 1254 (“I don’t hear a compelling argument from anyone here tonight as

15 to why we should have multi‐dwelling homes. Can we take it out of the

16 proposal?”). One resident expressed concern about the possibility of “four

17 people or ten people in an apartment and nobody is going to know that.” App’x

18 at 1275.

19

Case 14-1634, Document 219-1, 03/23/2016, 1734023, Page20 of 102

1

In keeping with these statements, citizens repeatedly expressed concern

2 about limiting the options of a developer.

3

Gail Madigan: [W]hen you sell this property you can guarantee that

4

it’s . . . what control do you have when you sell it to a developer?

5

6

Thomas Suozzi: Guarantee what? What would you like us to

7

guarantee?

8

9

Gail Madigan: Well, I would like to know what you are going to be

10

able to do with it. You can tell them . . .

11

12

Thomas Suozzi: The zoning controls . . . what you can do.

13

14

Gail Madigan: Yeah, but if you sell it to a developer that comes in

15

and is going to make multi‐family housing there.

16

17

Thomas Suozzi: He wouldn’t do that if it was zoned for single

18

family housing. If it’s zoned for single family housing you can’t put

19

[in] multi‐family housing.

20

21 App’x at 1253. Another citizen expressed concerns about the possibility of what

22 any multi‐family housing might eventually become.

23

Anthony Agrippina: We left a community in Queens County that

24

started off similar, single family homes, two family homes, town

25

houses that became – six story units. It was originally for the elderly,

26

people who were looking to downsize. It started off that way. Right

27

now you’ve got full families living in one bedroom townhouses, two

28

bedroom co‐ops, the school is overburdened and overcrowded.

29

30 App’x at 1259–60. In response, another resident emphasized that the only way to

31 control such consequences was to restrict the zoning. App’x at 1260 (“The only

20

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1 guarantee is the zoning. This Board is the only set of people who are here who

2 can guarantee or do that. Mr. Suozzi is not going to be the County Executive

3 forever. We don’t know what the predecessors [sic] will do.”).

4

As at the previous meetings, residents also expressed concern about traffic

5 and schools. County and Village officials reiterated that a transition to residential

6 use, including multi‐family housing, would generate far less traffic than the

7 existing use of the Social Services Site.

8

Thomas Suozzi: One thing that would happen is that you would

9

have 1,000 less employees that work in that building, that would no

10

longer be working there anymore.

11

12

Sheila DiMasso: But, we would also have more traffic because of

13

more people owning cars and leaving there in and out. As opposed

14

to . . . [applause]

15

16

Thomas Suozzi: You may want to clap for that, but that’s irrational.

17

(Applause)

18

19 App’x at 1238–39. In addition, Suozzi and Garden City officials tried to explain to

20 citizens their view that the proposed multi‐family housing would actually

21 generate fewer schoolchildren than development of single‐family homes.

22

David Piciulo: If you have 311 units you will have more children

23

potentially in there than 956 single family homes.

24

21

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1

Thomas Suozzi: That’s not accurate. Based upon statistics, people

2

spend their whole lives looking at this stuff. That’s not true. So you

3

may feel that way, but it’s not accurate.

4

5

David Piciulo: Those are statistics having to do with a national

6

study. If you drive down into the neighborhood, the average home

7

here has two kids. They’re in the system for 15 years and you are

8

going to have children in the system . . . let me just make a point.

9

10

Gerard Fishberg: Not to argue with you, again, I don’t think

11

anybody has prejudged this. How many apartments are there in

12

Wyndham?

13

14

Michael Filippon: 312.

15

16

Gerard Fishberg: How many school children are there in 312

17

apartments?

18

19

Tom Yardley: Less than twenty.

20

21

Gerard Fishberg: Less than twenty children in 312 apartments.

22

23 App’x at 1255. BFJ’s Fish later testified that those residents who claimed to prefer

24 single‐family homes because of school impacts were “simply wrong.” App’x at

25 277.

26

In response to these questions Suozzi made clear that before any

27 development project was approved at the Site, the developer would have to

28 satisfy state environmental guidelines, including addressing concerns regarding

22

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1 traffic and impact on public services, such as schools. He further emphasized

2 that these conclusions would be subject to public comment.

3

In March 2004, in the weeks after this meeting, a flyer began circulating

4 around Garden City. The flyer stated, in relevant part:

5

WILL GARDEN CITY PROPERTY VALUES DECREASE IF OVER

6

300 APARTMENTS ARE BUILT AT THE SITE OF SOCIAL

7

SERVICES? . . .

8

9

The Garden City Village Trustees are close to voting on how to zone

10

this property. They might choose to zone it for multi‐family housing

11

(If Senator Balboni’s current bill passes in June, as many as 30 of

12

those apartments would be considered “affordable housing”.

13

According to this bill, “Affordable workforce housing means

14

housing for individuals or families at or below 80% of the median

15

income for the Nassau Suffolk primary metropolitan statistical area

16

as defined by the Federal Department of housing and urban

17

development.” . . . NOT JUST GARDEN CITY INCOMES! . . .

18

19

ISN’T OUR SCHOOL DISTRICT CROWDED ENOUGH NOW?

20

The trustees are saying that there will be fewer additional students

21

to the Garden City school district if there are 340 apartments or

22

townhouses built at the “P ZONE[“] as opposed to 90 single family

23

homes. HOW CAN THEY BE SURE OF THAT? ISN’T IT TRUE

24

THAT MANY FAMILIES MOVE TO GARDEN CITY TO ASSURE

25

THEIR CHILDREN OF A QUALITY EDUCATION? WHAT WILL

26

BRING MORE STUDENTS, OVER 300 FAMILIES OR 90 FAMILIES?

27

28 App’x at 1632. The reference to “Senator Balboni’s current bill” in the flyer

29 related to legislation pending at the time which would impose affordable‐

30 housing requirements on developers on Long Island. The flyer reached Garden

23

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1 City Village Administrator Schoelle, who faxed it to Fish and at least one

2 member of the Board of Trustees. The flyer also came to the attention of Trustee

3 Lundquist.

4

At a Board meeting held on March 18, 2004, residents again raised

5 concerns about the possibility of affordable housing at the Social Services Site.

6 Schoelle’s notes from that meeting indicate that residents expressed concern that

7 the Balboni Bill might apply “retroactive[ly].” App’x at 363. One resident urged

8 decision‐makers to “play it safe” with respect to the Balboni Bill and “vote for

9 single family homes.” App’x at 362. The following month, Trustee Negri told

10 residents at a Central Property Owners’ Association meeting that he and other

11 Village officials met with state representatives to discuss the Balboni Bill. He

12 noted that the bill called for 10% of all new housing developments to include

13 affordable housing, and that a family of four making $67,000 would qualify.

14 Negri indicated that he did not think the bill would pass.

15

In response to public pressure, BFJ and Garden City began modifying the

16 rezoning proposal. In materials produced in April 2004, BFJ changed the

17 proposal, reducing the number of multi‐family units potentially available at the

18 Social Services Site to 215. However, by a memorandum to the Board dated May

24

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1 4, 2004, BFJ scrapped the proposed R‐M zoning entirely. Instead, BFJ proposed

2 rezoning the vast majority of the Social Services Site “Residential‐Townhouse”

3 (“R‐T”), an entirely new zoning classification. App’x at 1360. The May 2004

4 proposal only preserved R‐M zoning on the 3.03 acres of the Social Services Site

5 west of County Seat Drive, and only by special permit. Thus, the development of

6 multi‐family housing would be restricted to less than 15% of the Social Services

7 Site, and only by permit. BFJ’s proposed description of the R‐T zone defined

8 “townhouse” as a “single‐family dwelling unit.” App’x at 1361.

9

Whereas the previous proposed rezoning took more than a year to come

10 before the Board, the shift to R‐T zoning moved rapidly through the Village’s

11 government. BFJ issued a final EAF for R‐T rezoning in May 2004. Even though

12 BFJ officials testified that a switch from R‐M zoning to R‐T zoning was a

13 significant change, no draft EAF was ever issued for the R‐T rezoning. In

14 addition, the shift from the P‐Zone to R‐T zoning was proposed by the Board as

15 Local Law No. 2‐2004 and moved to a public hearing on May 20, 2004. The

16 Trustees further stated at this meeting that they hoped to have a final vote on the

17 rezoning as soon as June 3, 2004, and that the bill had already been referred to

25

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1 the Nassau County Planning Commission. Explaining the switch, Fish offered

2 the following rationale:

3

This was, this was a conscious decision, and I think those of you

4

who might have been at the last two . . . workshops, this was

5

discussed in quite a bit of detail, that there was, there was a concern

6

that if the whole 25 acres were developed for multi family it would

7

generate too much traffic and it didn’t serve, it didn’t serve as a true

8

transition . . . .

9

10

So, that, the proposal has been modified where previously multi

11

family would have been allowed in all 25 acres, as of right, the

12

proposal’s been modified so that it’s no longer allowed at all as‐of‐

13

right, you’d have to get a special permit for it, through the Trustees,

14

and it is a condition of the permit is that it can only be to the west of

15

County Seat Drive. So, in essence, what the Trustees have done, is

16

they have reduced the multi family to less than 15 percent of [the]

17

site.

18

19 App’x at 1471. At this meeting, a member of the Garden City community

20 thanked the Board of Trustees for responding to the concerns of residents:

21

[M]y husband works twelve hour, fourteen hour days so that we can

22

live here. We didn’t inherit any money from anyone. We weren’t

23

given anything. We didn’t expect anything from anyone. We

24

worked very hard to live in Garden City because [of] what it is. And

25

I feel like very slowly it’s creeping away by the building that is

26

going on. . . . [A]nd I just think to all of you, just keep, be strong,

27

like, just keep Garden City what it is. That is why people want to

28

come here. You know, it’s just a beautiful, beautiful town, people

29

would like to live here, but I just think, just think of the people who

30

live here, why you yourselves moved here. You don’t move here to

31

live near apartments. You don’t move here so that when you turn

32

your corner there’s another high‐rise.

26

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1
2 App’x at 1487–88. Toward the close of this meeting, a member of former Plaintiff

3 ACORN spoke about the need for affordable housing in Nassau County and

4 asked that Garden City consider building affordable housing.

5

[W]hat we’re saying with respect to the people that live in Garden

6

City, you know, everybody wants to see their community, you

7

know, keep its values. . . .

8

9

So, we’re asking other communities . . . to share and build affordable

10

housing in their community. I mean, I don’t know how we’re going

11

to, you know, I guess the county executive [has] to figure out, give

12

respect to each community. It’s not just, just not good for affordable

13

housing to be built in s[o]me communities because it impacts on us

14

and our school districts. It’s not turning out the best education

15

system we could if we move into the other areas. We’d be able to

16

get, we’d all benefit from it.

17

18 App’x at 1499.

19

ACORN members subsequently attended the Nassau County Planning

20 Commission the following week and again expressed opposition to R‐T zoning.

21 At the same time, former Plaintiff MHANY, then known as New York Acorn

22 Housing Company (“NYAHC”), sent a letter to the Nassau County Planning

23 Commission strongly opposing R‐T zoning and warning that the new zone

24 would “ensure that developers cannot create affordable multi‐family housing.”

25 App’x at 1871.

27

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1

On June 3, 2004, Garden City Board of Trustees unanimously adopted the

2 Local Law No. 2‐2004 and the Social Services Site was rezoned R‐T. The

3 following month, Nassau County issued a Request for Proposals (“RFP”)

4 concerning the Social Services Site under the R‐T zoning designation. The RFP

5 stated that the County would not consider bids of less than $30 million.

6

Plaintiffs were unable to submit a bid meeting the specifications of the

7 RFP. Ismene Speliotis, Executive Director of NYAHC/MHANY, analyzed the R‐T

8 zoning and concluded that it was not financially feasible to build affordable

9 housing under R‐T zoning restrictions at any acquisition price. Testifying at trial,

10 Suozzi concurred with this assessment. Recognizing the futility of an affordable‐

11 housing bid under R‐T zoning, NYAHC contacted the County to work on a

12 proposal that would include multi‐family affordable housing, and “urge[d] the

13 Planning Commission to delay any action on [its] proposal while its legal and

14 policy implications are considered more carefully.” App’x at 1871. NYAHC and

15 New York ACORN met with Suozzi and other County officials to discuss the

16 possibility of including affordable housing on the Social Services Site. But the

17 County did not reissue the RFP. Failing in these negotiations, on September 10,

28

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1 2004, NYAHC submitted a non‐conforming “protest” proposal to the County for

2 development of the Social Services Site.

3

The County ultimately awarded the contract to develop the Social Services

4 Site to Fairhaven Properties, Inc. (“Fairhaven”), a developer of single‐family

5 homes, for $56.5 million, the highest bid. Fairhaven proposed the development of

6 87 single‐family detached homes, and did not include any townhouses.

7

After the contract was awarded to Fairhaven, NYAHC prepared four

8 proposals, or “pro formas,” for development at the Social Services Site under the

9 R‐M zoning designation, with the percentage of affordable and/or Section 8

10 housing units of the 311 total rental units ranging from 15% to 25%. Plaintiffs’

11 expert Nancy McArdle evaluated each proposal in conjunction with the

12 racial/ethnic distribution of the available pool of renters and determined that,

13 had NYAHC been able to build housing under any of the four proposals in

14 accordance with the rejected R‐M zoning designation, the pool of renters likely to

15 occupy all units, including market‐rate, affordable, and Section 8 units, would

16 have likely been between 18% and 32% minority, with minority households

17 numbering between 56 and 101. Under the proposal predicting 18% minority

29

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1 population, NYAHC would have been able to bid $56.1 million for the Social

2 Services Site.

3

McArdle further analyzed the likely racial composition of the pool of

4 homeowners who could afford to purchase single‐family units potentially

5 developed by Fairhaven. She determined that between three and six minority

6 households could afford such a purchase. Thus, while the NYAHC proposals

7 would likely increase racial diversity in Garden City, McArdle testified, the

8 Fairhaven proposal would likely leave the racial composition of Garden City

9 “unchanged.”

10

D. Procedural History

11

On May 12, 2005, ACORN, NYAHC, and several individual Plaintiffs filed

12 suit against Garden City and Nassau County. Plaintiffs asserted claims under the

13 Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., as well as 42 U.S.C. § 1981, 42

14 U.S.C. § 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et

15 seq. Plaintiffs principally argued that Garden City’s shift from R‐M to R‐T zoning

16 was racially discriminatory, and that Nassau County failed to prevent this

17 discrimination. Plaintiffs also argued that the abandonment of R‐M zoning in

18 favor of R‐T zoning had a disparate impact on minority groups, and thus

30

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1 violated the disparate‐impact component of the Fair Housing Act. Finally,

2 Plaintiffs argued that Nassau County’s actions and policies in steering affordable

3 housing to certain communities violated its obligations under Title VI of the Civil

4 Rights Act not to discriminate in the administration of federal funding, and

5 under Section 808 of the Fair Housing Act to affirmatively further fair housing.

6

On July 21, 2006, the district court (Bianco, J.) denied Garden City and

7 Nassau County’s motions to dismiss in their entirety. The district court rejected

8 Defendants’ arguments that Plaintiffs lacked standing and concluded that they

9 had adequately alleged discrimination on the basis of race. Accordingly, the

10 district court directed the parties to discovery.

11

ACORN disbanded in early 2010. At the same time, NYAHC changed its

12 name to MHANY. In addition, NYCC, an organization with the same goals and

13 mission, and many of the same members as ACORN, moved to intervene in this

14 litigation. On June 15, 2010, the district court (Spatt, J.) granted NYCC permission

15 to intervene as ACORN’s practical successor. SJA 135.

16

By Memorandum and Order dated February 15, 2012, the district court

17 (Spatt, J.) (1) granted the County’s motion for summary judgment and dismissed

18 all claims against the County, and (2) denied Garden City’s motion for summary

31

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1 judgment. The district court concluded Nassau County was not causally

2 responsible for the alleged discriminatory conduct of Garden City. The district

3 court also rejected Plaintiffs’ challenge to the County’s policies regarding the

4 siting of affordable housing under Section 808 of the Fair Housing Act,

5 concluding that Plaintiffs lacked a private cause of action to enforce this

6 provision. The district court did not address Plaintiffs’ parallel claim under Title

7 VI of the Civil Rights Act, assuming that this claim was premised on the alleged

8 discrimination regarding the Social Services Site.

9

In resolving the summary judgment motions, the district court rejected

10 Defendants’ arguments that events at the Social Services Site had rendered this

11 case moot. Despite Nassau County’s sale contract, the transaction with Fairhaven

12 had never closed, apparently due to the pendency of this litigation. On January 1,

13 2010, Suozzi was succeeded as County Executive by Edward P. Mangano. In its

14 summary judgment filing, the County informed the district court that rather than

15 proceed with plans for private development, Mangano had decided instead to

16 construct a new Nassau County’s Family Court building at the Social Services

17 Site. Defendants thus argued that, because the County government was no

18 longer selling the Site to a private developer, and because Plaintiffs only sought

32

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1 injunctive relief, the case had been rendered moot. The district court rejected this

2 argument, concluding first that it was still possible to grant Site‐specific relief to

3 Plaintiffs, and second that even if the Site was not sold, the court could still grant

4 other effectual relief.

5

On June 17, 2013, the district court commenced a bench trial that spanned

6 eleven days. In a December 6, 2014 post‐trial decision, the district court

7 concluded that Plaintiffs had established, by a preponderance of the evidence,

8 liability on the part of the Garden City Defendants for the shift from R‐M to R‐T

9 zoning under (1) the FHA, 42 U.S.C. § 3601 et seq., based on a theory of disparate

10 treatment and disparate impact; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1983; and (4)

11 the Equal Protection Clause of the Fourteenth Amendment to the United States

12 Constitution. The district court reiterated the conclusions of previous opinions

13 that Plaintiffs had standing, and also rejected a renewed mootness argument

14 from Garden City.

15

The district court subsequently issued an order concerning appropriate

16 remedies in light of Plaintiffs’ violations. In a final judgment issued April 22,

17 2014, the district court granted Plaintiffs the following relief against Garden City:

18 (1) a prohibitory non‐discrimination injunction, (2) fair housing training for

33

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1 Garden City officials, (3) a directive to Garden City to pass a Fair Housing

2 Resolution, (4) appointment of a third‐party Fair Housing Compliance Officer by

3 Garden City, and (5) expenditure of reasonable sums to fund the relief required

4 by the judgment. The district court also ordered that if Nassau County decided

5 to sell the Social Services Site within one year of the date of judgment, then

6 Garden City must begin the process of rezoning the Social Services Site from R‐T

7 to R‐M controls. If Nassau County did not make such an announcement, Garden

8 City would be required to (1) join the Nassau County Urban Consortium, a

9 group of Nassau County municipalities eligible for HUD affordable‐housing

10 funds; and (2) require that 10% of newly constructed residential development of

11 5 units or more be reserved for affordable housing.

12

Garden City then filed the present appeal. Plaintiffs cross‐appealed,

13 challenging the district court’s grant of summary judgment to Nassau County.

14 JA 1043‐44. According to Defendants, Nassau County recently entered into a

15 contract with MPCC Corp. to build the courthouse. On June 9, 2014, MPCC Corp.

16 commenced interior demolition and asbestos abatement. Although construction

17 has begun, the project is not scheduled to be completed until 2018.

34

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1

DISCUSSION

2

Section 804(a) of the Fair Housing Act, also known as Title VIII of the Civil

3 Rights Act of 1968, makes it unlawful “[t]o refuse to sell or rent . . . or otherwise

4 make unavailable or deny, a dwelling to any person because of race, color, . . . or

5 national origin.” 42 U.S.C. § 3604(a). “The phrase ‘otherwise make unavailable’

6 has been interpreted to reach a wide variety of discriminatory housing practices,

7 including discriminatory zoning restrictions,” LeBlanc‐Sternberg v. Fletcher,

8 67 F.3d 412, 424 (2d Cir. 1995), and its “results‐oriented language counsels in

9 favor of recognizing disparate‐impact liability,” Tex. Depʹt of Hous. & Cmty.

10 Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2518 (2015). For this

11 reason Sections 804(a) and 805(a) of the FHA provide for both discriminatory

12 intent and disparate‐impact liability.

13

I. Standing

14

In analyzing Plaintiffs’ standing here, we look to the requirements of

15 Article III. Standing under the Fair Housing Act is as broad as Article III permits.

16 See Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982); Fair Hous. in

17 Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357, 362 (2d Cir. 2003)

18 (“Standing under the FHA, whether suit is brought under section 810 or section

35

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1 812 of the Act, is coextensive with Article III standing.”). Similarly, the parties do

2 not argue, nor do we discern, any standing concerns that would prevent

3 Plaintiffs from bringing claims under Sections 1981 and 1983.

4

To establish Article III standing, “a plaintiff must show (1) it has suffered

5 an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or

6 imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

7 challenged action of the defendant; and (3) it is likely, as opposed to merely

8 speculative, that the injury will be redressed by a favorable decision.” Friends of

9 the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180–81 (2000). We evaluate

10 Plaintiffs’ standing “as of the outset of the litigation.” Cook v. Colgate Univ., 992

11 F.2d 17, 19 (2d Cir. 1993).

12

In challenging standing, Garden City focuses on the latter two prongs of

13 the standing analysis, arguing that Plaintiffs’ alleged injury – denial of the

14 opportunity to build affordable housing at the Social Services Site – is not “fairly

15 traceable” to Garden City’s rejection of R‐M zoning, nor redressable by a

16 favorable decision. Garden City contends, in essence, that there is no guarantee

17 Plaintiffs’ bid would have been accepted by Nassau County even under R‐M

18 zoning, and no certainty that the project would be built if a court ordered a

36

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1 return to R‐M zoning. Garden City notes that, of Plaintiffs’ four pro forma bids

2 under R‐M zoning, the highest was $56.1 million for a project containing 85%

3 market‐rate apartments and 15% affordable housing. This bid was, in relative

4 terms, slightly less than the $56.5 million Fairhaven bid for the development of

5 single‐family homes which Nassau County ultimately accepted under R‐T

6 zoning. Based primarily on this difference, Garden City speculates that even if

7 the property remained zoned as R‐M, Plaintiffs would have nevertheless been

8 out‐bid by a market‐rate developer, due to Nassau County’s hopes of

9 maximizing the sale value of the Site.

10

Garden City’s standing argument requires both improper speculation and

11 unnecessary certainty. As an initial matter, Garden City’s argument depends on

12 a level of certainty that we do not typically require in housing discrimination

13 cases. A housing plaintiff need not show with absolute certainty that a project

14 will succeed in order to establish standing. See Fair Hous. in Huntington Comm.

15 Inc., 316 F.3d at 363 (“[A]bsent defendants’ challenged conduct, there is a

16 ‘substantial probability’ that housing with greater minority occupancy would

17 have been built . . . .”). Because of the uncertainties inherent in the housing

18 market, we have permitted housing discrimination plaintiffs to proceed based on

37

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1 “a realistic opportunity to proceed with construction.” Huntington Branch,

2 N.A.A.C.P. v. Town of Huntington, 689 F.2d 391, 394 (2d Cir. 1982)

3

For example, in Huntington Branch, this Court emphasized that

4 “[i]ndeterminacy of financing alone . . . is not enough to dismiss [a housing

5 discrimination action at the motion to dismiss stage].” 689 F.2d at 394. Indeed,

6 the Court noted that “the multitude of factors affecting ultimate financing

7 capability are too variable to permit certainty in prediction.” Id. Of course, “those

8 who have absolutely no realistic financing capability have no standing, because,

9 as to them, invalidation of an offending ordinance would afford only moral

10 satisfaction rather than a realistic opportunity to proceed with construction.” Id.

11 (internal citation omitted). However, in the case of the plaintiffs, who had

12 proposed a specific project, the Court concluded that “[i]nvalidation of the

13 challenged ordinance . . . would tangibly improve the chances of construction of

14 [the project].” Id. at 395; see also Scott v. Greenville Cty., 716 F.2d 1409, 1416 (4th

15 Cir. 1983) (noting “[t]he uncertainty surrounding carrying any large‐scale

16 housing development to fruition”).

17

Moreover, in Village of Arlington Heights v. Metropolitan Housing

18 Development Corp., 429 U.S. 252 (1977), the Supreme Court found that the

38

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1 defendants’ “challenged action[s]” stood as an “absolute barrier” to the

2 construction project proposed by the plaintiff. Id. at 261. If plaintiff “secure[d] the

3 injunctive relief it [sought], that barrier [would] be removed.” Id. The injunction

4 sought by the plaintiff “would not, of course, guarantee that [the proposed

5 housing development] w[ould] be built.” Id. The Court recognized that the

6 plaintiff “would still have to secure financing, qualify for federal subsidies, and

7 carry through with construction.” Id. (footnote omitted). But the Court

8 concluded that such contingencies associated with housing development did not

9 eliminate standing, because “all housing developments are subject to some

10 extent to similar uncertainties.” Id. The Court found that the plaintiff’s proposed

11 project was sufficiently “detailed and specific” that no undue speculation was

12 required to establish standing. Id.

13

In challenging standing here, Garden City essentially demands the sort of

14 certainty rejected in Arlington Heights and Huntington Branch. Pointing to the

15 slight difference between Plaintiffs’ bid and the Fairhaven bid, the only other

16 market‐rate bid in the record, Garden City contends that Plaintiffs cannot

17 guarantee that they would have outbid a market‐rate developer. But Garden City

18 neglects to mention that, in addressing this exact same standing argument, the

39

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1 district court concluded, as a factual matter, that Plaintiffs’ bid and the Fairhaven

2 bid were “directly competitive.” Special App’x at 140. Given the relatively small

3 difference in bids – a matter of only 0.7% – this finding was not clearly

4 erroneous.1 See Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 84–85 (2d Cir.

5 2014) (noting that while we review a district court’s legal conclusion as to

6 standing de novo, we review the factual findings underlying this determination

7 only for clear error).

8

Garden City also argues this case is distinguishable from Huntington

9 Branch and Arlington Heights because in those cases, the plaintiffs had secured

10 conditional contracts or options on the relevant properties. But “the plaintiff who

11 challenges a zoning ordinance or zoning practice[] [need not] have a present

12 contractual interest in a particular project” to have standing. Warth v. Seldin, 422

13 U.S. 490, 508 n.18 (1975). Given the uncertainties associated with financing in the

1 Although Garden City never directly challenges the district court’s finding as clearly erroneous, it does at times refer to Fairhaven’s bid for the Social Services Site as in the amount of $58.1 million. Garden City does not explain this $1.6 million discrepancy, but we note that it appears to be driven by $226,000 in transfer taxes and a $1.3 million brokerage commission. However, Garden City neglects to mention that the purchase price proposed by Fairhaven, the number seemingly directly comparable to the purchase price proposed by Plaintiffs, is only $56.5 million. Accordingly, we find no clear error in the district court’s determination that these two bids were “directly competitive.”
40

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1 housing market, the fact that Plaintiffs’ bid was directly competitive with the

2 only market‐rate bid in the record provides us reason to believe that

3 “[i]nvalidation of the challenged ordinance . . . would tangibly improve the

4 chances of construction of [the project].” Huntington Branch, 689 F.2d at 395.

5 Although overturning the shift to R‐T zoning would not guarantee Plaintiffs’

6 success, given their ability to bid neck‐and‐neck with a market‐rate bidder, the

7 district court appropriately concluded that they enjoyed a “realistic opportunity

8 to proceed with construction.” Id. at 394. To demand more “would be to close

9 our eyes to the uncertainties which shroud human affairs.” Id. “Redressability is

10 not a demand for mathematical certainty.” Toll Bros., Inc. v. Township of

11 Readington, 555 F.3d 131, 143 (3d Cir. 2009).2

12

Despite the district court’s conclusion that Plaintiffs’ bidding was

13 competitive with the only market‐rate bid in the record, Garden City argues that

2 We note that both Arlington Heights and Huntington Branch were decided at the motion to dismiss stage, and that this case has proceeded to a bench trial. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (noting that, at trial, the facts supporting standing ”must be supported adequately by the evidence adduced at trial” (internal quotation marks omitted)). Nevertheless, this distinction is immaterial to our reasoning. Just as we do not require allegations of certain success at the pleading stage, we do not require proof of certain success at the trial stage. Id. (noting that the elements of standing must be shown “with the manner and degree of evidence required at the successive stages of the litigation”).
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1 other hypothetical bids under R‐M zoning from for‐profit developers might have 2 been higher than the Fairhaven bid. Yet Garden City’s argument on this point is 3 founded in pure speculation. Garden City theorizes that because luxury 4 apartments would provide more units than single‐family homes, this would 5 likely increase the return to the developer, and thus raise the bid price the project 6 could support. But no such market‐rate bids for apartments exist in the record. 7 Moreover, our review of the record does not reveal a clear answer to Garden 8 City’s surmise. Compare App’x at 1286 (BFJ zoning study suggesting that 9 apartments, although each lower priced than single‐family houses, would yield a 10 greater total market value in light of the greater number of units), with App’x at 11 1104 (suggesting differing estimates for whether single‐family homes or multi‐ 12 family development would yield a higher land value). Moreover, the mere fact 13 that Plaintiffs’ bid includes an affordable‐housing element does not necessarily 14 mean that a hypothetical market‐rate apartment developer would outbid them. 15 As Plaintiffs note, an affordable‐housing developer, unlike a market‐rate 16 developer, need not consider profit in making its bid proposal. Moreover, 17 affordable‐housing developers have access to sources of funds a market‐rate
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1 developer does not, including tax credits and others government programs

2 encouraging affordable housing.

3

II. Mootness

4

Next, both Nassau County and Garden City argue that, even if Plaintiffs

5 had standing at the outset of this litigation, this case is now moot. In light of the

6 County’s plans to construct a courthouse on the Social Services Site, they contend

7 any injury to Plaintiffs regarding inability to construct affordable housing on the

8 Site is no longer caused by purported discriminatory zoning. Rather, the

9 superseding source of this injury is the decision to build a courthouse.

10

Defendants, and Garden City in particular, rely on the principle that

11 mootness is “standing set in a time frame: The requisite personal interest that

12 must exist at the commencement of the litigation (standing) must continue

13 throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520

14 U.S. 43, 68 n.22 (1997) (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397

15 (1980)); see also Henry P. Monaghan, Constitutional Adjudication: The Who and

16 When, 82 Yale L.J. 1363, 1384 (1973) (providing the source of this formulation).

17

This principle, however, is “not comprehensive,” Laidlaw, 528 U.S. at 190,

18 and it fails to capture exceptions to mootness, particularly voluntary cessation

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1 cases and cases capable of repetition but evading review, id. These exceptions

2 underline the different aims of the standing and mootness doctrines. The burden

3 of establishing standing falls on the plaintiff, as it “functions to ensure, among

4 other things, that the scarce resources of the federal courts are devoted to those

5 disputes in which the parties have a concrete stake.” Id. at 191. By contrast, the

6 burden of showing mootness logically falls on a defendant because, “by the time

7 mootness is an issue, the case has been brought and litigated, often (as here) for

8 years. To abandon the case at an advanced stage may prove more wasteful than

9 frugal.” Id. at 191–92.

10

In our view, this case is appropriately analyzed under the voluntary

11 cessation doctrine. Under this principle, “a defendant’s voluntary cessation of a

12 challenged practice does not deprive a federal court of its power to determine the

13 legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289

14 (1982); see also Laidlaw, 528 U.S. at 189 (stating the voluntary cessation doctrine

15 applies in cases “mooted by the defendant’s voluntary conduct”). “The voluntary

16 cessation of allegedly illegal activities will usually render a case moot if the

17 defendant can demonstrate that (1) there is no reasonable expectation that the

18 alleged violation will recur and (2) interim relief or events have completely and

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1 irrevocably eradicated the effects of the alleged violation.” Granite State Outdoor

2 Advert., Inc. v. Town of Orange, 303 F.3d 450, 451 (2d Cir. 2002) (internal quotation

3 marks omitted).

4

At bottom, the “rule traces to the principle that a party should not be able

5 to evade judicial review, or to defeat a judgment, by temporarily altering

6 questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S.

7 278, 284 n.1 (2001). “[A] defendant claiming that its voluntary compliance moots

8 a case bears the formidable burden. of showing that it is absolutely clear the

9 allegedly wrongful behavior could not reasonably be expected to recur.” Laidlaw,

10 528 U.S. at 190 (emphasis added). This is both a stringent, City of Mesquite, 455

11 U.S. at 289 n.10, and a formidable burden, Laidlaw, 528 U.S. at 190.

12

In this case, we are deeply skeptical that Defendants have met their

13 “formidable burden” of showing that it is “absolutely clear” that the Social

14 Services Site will never be used for housing. We are unpersuaded that the

15 County has committed to this course permanently. Although we recognize that

16 when “the defendant is a government entity, some deference must be accorded

17 to a legislative body’s representations that certain conduct has been

18 discontinued,” Lamar Advert. of Penn, LLC v. Town of Orchard Park, 356 F.3d 365,

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1 376 (2d Cir. 2004) (internal quotation marks and alterations omitted), some

2 deference does not equal unquestioned acceptance. Indeed, in City of Mesquite,

3 the Supreme Court reached the merits despite the fact that the offending

4 language in the challenged ordinance had been removed during the pendency of

5 the appeal. 455 U.S. at 289. In finding the case not moot, the Court noted that

6 “the city’s repeal of the objectionable language would not preclude it from

7 reenacting precisely the same provision if the District Court’s judgment were

8 vacated.” Id.

9

Here, suspicious timing and circumstances pervade the County’s decision

10 to build a courthouse. Although the County has authorized funding for the

11 courthouse and has contracted with a construction management corporation,

12 Plaintiffs argue compellingly that various actions with respect to the courthouse

13 project appear to track the development of this litigation. For example, the

14 County announced its decision to build a courthouse on the Social Services Site

15 only on the eve of summary judgment motions. The County claims that plans for

16 the courthouse were in place as early as 2010. App’x at 118 (noting that schematic

17 designs for the building were issued in 2010). Despite counsel’s “continuing duty

18 to inform the Court of any development which may conceivably affect [the]

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1 outcome” of litigation, Fusari v. Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J.,

2 concurring), the County failed to notify the district court of the proposal until

3 2011, when it moved for summary judgment, App’x at 119 (affidavit submitted

4 February 2011).

5

The Supreme Court has viewed mootness claims skeptically when they are

6 not timely raised. See City of Erie v. Pap’s A.M., 529 U.S. 277, 288 (2000) (“[O]ur

7 appraisal of Pap’s affidavit is influenced by Pap’s failure, despite its obligation to

8 the Court, to mention a word about the potential mootness issue in its brief in

9 opposition to the petition for writ of certiorari . . . .”). Bolstering our skepticism of

10 Defendants’ mootness claim, Plaintiffs assert, and Defendants do not contest,

11 that the project was dormant for years after Nassau County was dismissed at the

12 summary judgment stage, and the threat of liability against the County

13 diminished. Although Defendants note construction fences were recently put up

14 around the Site, Plaintiffs observe, again without contradiction, that these fences

15 went up approximately around the time the parties filed the respective notices of

16 appeal in this case, and the threat of liability against Nassau County again

17 reemerged. Cf. Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 89 (2d

18 Cir. 2005) (finding the voluntary cessation doctrine applicable where “there

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1 [was] no reason to doubt the sincerity of defendants’ representation to the court”

2 that the challenged conduct had ceased).

3

Nor are we persuaded by Defendants’ contentions that the injuries of two

4 workers during construction on the Site, along with asbestos abatement and

5 interior demolition, render the County’s decision to build a courthouse

6 irreversible. Defendants argue that two workers have been injured during

7 construction. Asbestos abatement and interior demolition, at least on the basis of

8 the record before us, would appear to be actions necessary before any action

9 could be taken on the Site. In fact, the article cited in Garden City’s brief makes

10 no mention of a courthouse, noting only that the workers were injured

11 performing asbestos abatement on the Social Services Site.

12

The County asserts that the courthouse project is in response to an

13 emergency need for a new courthouse. But the County’s own filings indicate the

14 County has been aware of the alleged urgent need for a new courthouse since at

15 least 2004. “[An] emphasi[s] that the change had been under consideration long

16 before the federal lawsuit . . . of course cuts two ways.” United States v. N.Y.C.

17 Transit Auth., 97 F.3d 672, 676 (2d Cir. 1996). We are left wondering whether the

18 courthouse project represents a convenient distraction, rather than a valid claim,

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1 which the County can cite when under threat of liability, only to ignore it when

2 the threat of liability has passed. See Christian Legal Soc’y Chapter of the Univ. of

3 Cal. v. Martinez, 561 U.S. 661, 723 n.3 (2010) (Alito, J., dissenting) (“Particularly in

4 light of Hastings’ practice of changing its announced policies, these requests are

5 not moot.”).

6

Nor are we persuaded that a 2011 magistrate judge’s order stating that the

7 County’s decision to build the courthouse was “final,” App’x at 101, conclusively

8 resolves this issue. The district court did not view this order as conclusively

9 resolving the issue of mootness, construing the question de novo in both its

10 summary judgment opinion and at trial. Finally, although Garden City argues

11 that we are barred from reviewing this finding on appeal because it was not

12 specifically challenged by Plaintiffs. Plaintiffs are inherently challenging the basis

13 for this ruling, and “a notice of appeal from a final judgment brings up for

14 review all reviewable rulings which produced the judgment.” SongByrd, Inc. v.

15 Estate of Grossman, 206 F.3d 172, 178 (2d Cir. 2000) (internal quotation marks

16 omitted).

17

There are simply too many questions surrounding construction of the

18 courthouse for us to conclude that it is “absolutely clear” that the parties will not

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1 resume the challenged conduct. We recognize that the County may ultimately be

2 sincere in its efforts to build a courthouse. However, given its actions up to this

3 point, we conclude that on the present record the County has not met its

4 “formidable burden” of showing that it will not permit the challenged conduct to

5 resume.

6

Though we conclude it is not “absolutely clear” that Nassau County will

7 not return to the challenged conduct, we need not decide at this time the parties’

8 other arguments concerning mootness.

9 III. Disparate Treatment

10

The district court concluded that Garden City’s decision to abandon R‐M

11 zoning in favor of R‐T zoning was made with discriminatory intent. “The

12 Supreme Court has long held, in a variety of circumstances, that a governmental

13 body may not escape liability under the Equal Protection Clause merely because

14 its discriminatory action was undertaken in response to the desires of a majority

15 of its citizens.” United States v. Yonkers Bd. of Educ. (Yonkers I), 837 F.2d 1181, 1224

16 (2d Cir. 1987); see also Palmore v. Sidoti, 466 U.S. 429, 433 (1984) (“Private biases

17 may be outside the reach of the law, but the law cannot, directly or indirectly,

18 give them effect.”). We find no clear error in the district court’s determination

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1 that Garden City’s decision to abandon R‐M zoning was a knowing response to

2 the vocal and racially influenced opposition among Garden City’s citizenry.

3

A. Plaintiffs’ Prima Facie Case

4

A plaintiff can establish a prima facie case of disparate treatment “by

5 showing that animus against the protected group was a significant factor in the

6 position taken by the municipal decision‐makers themselves or by those to

7 whom the decision‐makers were knowingly responsive.” LeBlanc‐Sternberg, 67

8 F.3d at 425 (internal quotation marks omitted). This Court is required to give

9 substantial deference to the trial court’s findings, and may not set them aside

10 unless they are clearly erroneous. See Diesel Props S.r.l., 631 F.3d at 52 (“After a

11 bench trial, the court’s ‘[f]indings of fact, whether based on oral or other

12 evidence, must not be set aside unless [they are] clearly erroneous.’” (quoting

13 Fed. R. Civ. P. 52(a)(6))). We review a district court’s finding of discrimination

14 after a bench trial for clear error. See Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d

15 565, 580 (2d Cir. 2003) (“The district court’s finding of intentional discrimination

16 was not clearly erroneous.”).

17

In finding intentional racial discrimination here, the district court applied

18 the familiar Arlington Heights factors. See Arlington Heights, 429 U.S. at 267.

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1 Because discriminatory intent is rarely susceptible to direct proof, a district court

2 facing a question of discriminatory intent must make “a sensitive inquiry into

3 such circumstantial and direct evidence of intent as may be available. The impact

4 of the official action whether it bears more heavily on one race than another may

5 provide an important starting point.” Id. at 266 (internal quotation marks and

6 citation omitted). But unless a “clear pattern, unexplainable on grounds other

7 than race, emerges,” id., “impact alone is not determinative, and the Court must

8 look to other evidence,” id. (footnote omitted). Other relevant considerations for

9 discerning a racially discriminatory intent include “[t]he historical background of

10 the decision . . . particularly if it reveals a series of official actions taken for

11 invidious purposes,” id. at 267, “[d]epartures from the normal procedural

12 sequence,” id., “[s]ubstantive departures,” id., and “[t]he legislative or

13 administrative history . . . especially where there are contemporary statements by

14 members of the decisionmaking body, minutes of its meetings, or reports,” id. at

15 268.

16

Here, the district court premised its finding of racial discrimination

17 primarily on two of these factors: (1) impact, i.e. “the considerable impact that

18 [the Village’s] zoning decision had on minorities in that community”; and (2)

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1 sequence of events, i.e. “the sequence of events involved in the Board’s decision

2 to adopt R‐T zoning instead of R‐M zoning after it received public opposition to

3 the prospect of affordable housing in Garden City.” Special App’x at 161. The

4 district court noted a history of racial discrimination in Garden City, but declined

5 to place “significant weight” on this factor. See Special App’x at 151 (“Although

6 [past events] could tend to suggest that racial discrimination has historically

7 been a problem in Garden City, the Court declines to place significant weight on

8 them for various reasons.”).

9

The district court first noted statistical evidence that the original R‐M

10 proposal would have created a pool of potential renters with a significantly

11 larger percentage of minority households than the pool of potential renters for

12 the zoning proposal ultimately adopted as law by Garden City. However, in

13 making its finding of discrimination, the district court relied primarily on the

14 sequence of events leading up to the implementation of R‐T zoning. The court

15 first noted that Garden City officials and BFJ were initially enthusiastic about R‐

16 M zoning. BFJ’s proposal permitted the development of up to 311 multi‐family

17 units, and Trustee Bee expressed the opinion at a January 20, 2004 meeting that

18 “Garden City demographically has a need for multi‐family housing,” and that

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1 “he would keep an open mind but he still felt the recommended zoning change

2 were appropriate.” App’x at 1665.

3

However, the district court concluded that BFJ and the Board abruptly

4 reversed course in response to vocal citizen opposition to the possibility of multi‐

5 family housing, including complaints that affordable housing with undesirable

6 residents could be built under this zoning. At a February 4, 2004 meeting,

7 Trustee Bee stated that “neither the County nor the Village is looking to

8 create . . . so‐called affordable housing.” App’x at 1236. BFJ and the Board

9 subsequently endorsed the R‐T proposal, which banned the development of

10 multi‐family housing on all but a small portion of the Social Services Site and

11 then only by special permit.

12

The district court focused on the suddenness of this change. Although the

13 P‐Zone Committee had consistently recommended R‐M zoning for eighteen

14 months, R‐T zoning went from proposal to enactment in a matter of weeks. The

15 district court noted that BFJ’s consideration of R‐T zoning was not nearly as

16 comprehensive and deliberative as that for R‐M zoning. In addition, the court

17 found it strange that members of the P‐Zone Committee – the Village officials

18 most familiar with the situation – were excluded from the discussions regarding

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1 R‐T zoning. Indeed, after a final public presentation on the proposed R‐M zoning

2 in April 2004, Schoelle, Filippon, and Fishberg met with BFJ to review the public

3 comments. For some unknown reason, members of the P‐Zone Committee did

4 not participate in this meeting, and neither did the Village’s zoning counsel

5 Kiernan. The district court also found it peculiar that Local Law 2‐2004, adopting

6 R‐T zoning, was moved to a public hearing even though no zoning text had yet

7 been drafted and no environmental analysis of the law’s impact had been

8 conducted. Thus, in rejecting Garden City’s argument below that the adoption of

9 R‐T zoning was business as usual, the district court concluded that Garden City

10 was “seeking to rewrite history.” Special App’x at 153.

11

Although now recognizing the oddness and abruptness of this sequence of

12 events, Garden City argues that these facts should not raise any suspicion. The

13 Village contends that because BFJ, the Village Trustees, and Village residents had

14 discussed the zoning of the Site for more than a year, there was no need to spend

15 additional time discussing the same issues once they settled on a preferable

16 lower‐density approach. While the adoption of R‐T zoning may seem rushed,

17 and appear to be an abrupt change from Garden City’s prior consistent course of

18 conduct, according to Garden City, this was actually just efficient local

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1 government. Given the amount of time already invested in studying the Social

2 Services Site, R‐T zoning could proceed more quickly through the legislative

3 process. While this may be one reasonable interpretation of the facts, the district

4 court was nevertheless entitled to draw the contrary inference that the

5 abandonment of R‐M zoning was an abrupt change and that the “not nearly as

6 deliberative” adoption of R‐T zoning was suspect. Special App’x at 153–54.

7 Indeed, it is a bedrock principle that “[w]here there are two permissible views of

8 the evidence, the factfinder’s choice between them cannot be clearly erroneous.”

9 Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

10

In considering the sequence of events leading up to the adoption of R‐T

11 zoning, the district court also focused closely on the nature of the citizen

12 complaints regarding R‐M zoning. Citizens expressed concerns about R‐M

13 zoning changing Garden City’s “character” and “flavor.” App’x at 1243. In

14 addition, contrary to Garden City’s contentions that any references to affordable

15 housing were isolated, citizens repeatedly and forcefully expressed concern that

16 R‐M zoning would be used to introduce affordable housing and associated

17 undesirable elements into their community. Residents expressed concerns about

18 development that would lead to “sanitation [that] is overrun,” “full families

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1 living in one bedroom townhouses, two bedroom co‐ops” and “four people or

2 ten people in an apartment.” App’x at 1260, 1275. Other residents requested that

3 officials “guarantee” that the housing would be “upscale” because of concerns

4 “about a huge amount of apartments that come and depress the market for any

5 co‐op owner in this Village.” App’x at 1237.

6

The district court also noted Garden City residents’ concerns about the

7 Balboni Bill and the possibility of creating “affordable housing,” specifically

8 discussing a flyer warning that property values might decrease if apartments

9 were built on the Site and that such apartments might be required to include

10 affordable housing under legislation pending in the State legislature. This flyer

11 came to the attention of at least two trustees, as well as Fish and Schoelle.

12 Concerned about the Balboni Bill, Garden City residents urged the Village

13 officials to “play it safe” and “vote for single family homes.” App’x at 362.

14 Viewing this opposition in light of (1) the racial makeup of Garden City, (2) the

15 lack of affordable housing in Garden City, and (3) the likely number of minorities

16 that would have lived in affordable housing at the Social Services Site, ‐ the

17 district court concluded that Garden City officials’ abrupt change of course was a

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1 capitulation to citizen fears of affordable housing, which reflected race‐based

2 animus.

3

We find no clear error in the district court’s determination. The tenor of the

4 discussion at public hearings and in the flyer circulated throughout the

5 community shows that citizen opposition, though not overtly race‐based, was

6 directed at a potential influx of poor, minority residents. Indeed, the description

7 of the Garden City public hearing is eerily reminiscent of a scene described by

8 the Court in Yonkers I:

9

At the meeting . . . the predominantly white audience overflowed

10

the room. The discussion was emotionally charged, with frequent

11

references to the effect that subsidized housing would have on the

12

“character” of the neighborhood. The final speaker from the

13

audience . . . stated that the Bronx had been ruined when blacks

14

moved there and that he supported the condominium proposal

15

because he did not want the same thing to happen in Yonkers.

16

17 Yonkers I, 837 F.2d at 1192. Although no one used explicitly racial language at

18 the Garden City public hearing, the parallels are striking. Like the residents in

19 Yonkers, Garden City residents expressed concern that R‐M zoning would change

20 the “flavor” and “character” of Garden City. App’x at 1243. Citizens requested

21 restricting the Site’s zoning to single‐family homes in order to preserve “the

22 flavor and character of what Garden City is now.” App’x at 1243. Citizens

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1 repeatedly requested “guarantee[s]” that no affordable housing would be built at

2 the Social Services Site and that the development would only be “upscale.”

3 App’x at 1237–38, 1253. Expressing concerns about the sort of residents who

4 might occupy an eventual complex, one resident feared that the proposed

5 development “could have four people or ten people in an apartment and nobody

6 is going to know that.” App’x at 1275. And, as with the emotionally charged

7 scene in Yonkers, Suozzi stated that citizens at the public hearing were “yelling at

8 him.” App’x at 1246. Finally, recalling the Yonkers resident who spoke

9 regarding the Bronx being “ruined,” one resident explained that he had left

10 Queens because apartment buildings originally intended for the elderly resulted

11 in “full families living in one bedroom townhouses, two bedroom co‐ops, the

12 school is overburdened and overcrowded. You can’t park your car. The

13 sanitation is overrun.” App’x at 1260. Another resident stated that she had left

14 Brooklyn to avoid exactly the sort of development potentially available for the

15 Social Services Site.

16

The district court concluded that, in light of the racial makeup of Garden

17 City and the likely number of members of racial minorities that residents

18 believed would have lived in affordable housing at the Social Services Site, these

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1 comments were code words for racial animus. See Aman v. Cort Furniture Rental

2 Corp., 85 F.3d 1074, 1082 (3d Cir. 1996) (observing that it “has become easier to

3 coat various forms of discrimination with the appearance of propriety” because

4 the threat of liability takes that which was once overt and makes it subtle). “Anti‐

5 discrimination laws and lawsuits have ‘educated’ would‐be violators such that

6 extreme manifestations of discrimination are thankfully rare. . . . Regrettably,

7 however, this in no way suggests that discrimination based upon an individual’s

8 race, gender, or age is near an end. Discrimination continues to pollute the social

9 and economic mainstream of American life, and is often simply masked in more

10 subtle forms.” Id. at 1081–82. “[R]acially charged code words may provide

11 evidence of discriminatory intent by sending a clear message and carrying the

12 distinct tone of racial motivations and implications.” Smith v. Fairview Ridges

13 Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (internal quotation marks and

14 alterations omitted).

15

Empirical evidence supports the reasonableness of the district court’s

16 conclusion. Indeed, “research suggests that people believe that the majority of

17 public housing residents are people of color, specifically, African American.” See

18 Carol M. Motley & Vanessa Gail Perry, Living on the Other Side of the Tracks: An

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1 Investigation of Public Housing Stereotypes, 32 J. Pub. Pol’y & Marketing 48, 52 2 (2013); see also id. at 50 (“[I]n the United States, public housing residents are 3 perceived as predominantly ethnic peoples (mainly African American) . . . .”). 4 Here, the comments of Garden City residents employ recognized code words 5 about low‐income, minority housing.3 For example, “[o]pponents of affordable 6 housing provide subtle references to immigrant families when they condemn 7 affordable housing due to the fear it will bring in ‘families with lots of kids.’” 8 Mai Thi Nguyen, Victoria Basolo & Abhishek Tiwari, Opposition to Affordable 9 Housing in the USA: Debate Framing and the Responses of Local Actors, 30 Housing, 10 Theory & Soc’y 107, 122 (2013). Here, invoking this stereotype, Garden City 11 residents complained of “full families living in one bedroom townhouses,” 12 App’x at 1260, and “four people or ten people in an apartment,” App’x at 1275, 13 as well as the possibility of “overburdened and overcrowded” schools, App’x at 14 1260. In addition, research shows that “opponents of affordable housing may 15 mention that they do not want their city to become another ‘Watts’ or ‘Bayview‐
3 Garden City argues that a code word theory only makes sense when it is the defendant’s statements at issue. We disagree. The notion of a code word implies that it will be understood by another. Indeed, Yonkers I implicitly recognized the relevance of code words in the context of legislators acting responsively to citizen animus by specifically invoking residents’ use of words like “character.” 837 F.2d at 1192.
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1 Hunters‐Point,’ both places with a predominantly African‐American 2 population.” Nguyen, at 123. So too here, Garden City residents expressed 3 concerns about their community becoming like communities with majority‐ 4 minority populations, such as Brooklyn and Queens. Moreover, “a series of 5 studies have shown that when Whites are asked why they would not want to 6 live near African‐Americans (no income level is indicated in the question), 7 common responses relate to the fear of property value decline, increasing crime, 8 decreasing community quality (e.g. physical decay of housing, trash in 9 neighborhood, and unkempt lawns) and increasing violence.” Nguyen, at 111. 10 Repeatedly expressing concerns that R‐M zoning would lead to a decline in their 11 property values as well as reduced quality of life in their community, Garden 12 City residents urged the Board of Trustees to “keep Garden City what it is” and 13 to “think of the people who live here.” App’x at 1487–88. Considering these 14 statements in context, we find that the district court’s conclusion that citizen 15 opposition to R‐M zoning utilized code words to communicate their race‐based 16 animus to Garden City officials was not clearly erroneous. See Smith v. Town of 17 Clarkton, 682 F.2d 1055, 1066 (4th Cir. 1982) (finding “‘camouflaged’ racial 18 expressions” based on concerns “about an influx of ‘undesirables,’” who would
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1 “‘dilute’ the public schools”). While another factfinder might reasonably draw

2 the contrary inference from these facially neutral statements, “the district court’s

3 account of the evidence is plausible in light of the record viewed in its entirety.”

4 Anderson, 470 U.S. at 573–74.4

5

In response, Garden City notes that its officials testified that they did not

6 understand the citizen opposition to be race‐based. But, quite obviously,

7 discrimination is rarely admitted. See Rosen v. Thornburgh, 928 F.2d 528, 533 (2d

8 Cir. 1991) (“A victim of discrimination is . . . seldom able to prove his or her

9 claim by direct evidence and is usually constrained to rely on the cumulative

10 weight of circumstantial evidence.”); Iadimarco v. Runyon, 190 F.3d 151, 157 (3d

11 Cir. 1999) (“[A]n employer who discriminates will almost never announce a

4 Although the district court declined to place significant weight on subsequent objections to affordable housing in Garden City, as further support for its conclusion, the district court could have also looked to more overtly race‐based opposition to the subsequent Ring Road development. Indeed, the comments opposing this development explicitly referred back to the rezoning of the Social Services Site. In comments opposing the Ring Road development in Garden City, citizens accused Suozzi of “catering to ACORN and black people,” App’x at 2684, and stated that they were “[a]damantly opposed to low income housing or affordable housing in Garden City – at the [Social Services] property or in the vicinity of Roosevelt Field. You live where you can afford to live – plain and simple . . . it is not a hand‐out!” App’x at 2699. These more explicitly race‐based comments echoed earlier comments during public hearings. App’x at 1487 (“We worked very hard to live in Garden City because [of] what it is. And I feel like very slowly it’s creeping away by the building that is going on.”)
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1 discriminatory animus or provide employees or courts with direct evidence of

2 discriminatory intent.”). The district court reached its conclusion after a lengthy

3 trial, during which the court had the opportunity to hear and evaluate the

4 testimony of numerous witnesses, including all of the relevant Garden City

5 officials. Moreover, there is ample evidence from which to question the

6 credibility of these officials. Trustee Lundquist stated during his trial testimony

7 that he was unsure if Garden City – an overwhelmingly white community – was

8 majority black. Similarly, Building Superintendent Filippon stated that he did not

9 know if Garden City was majority white. Trustee Negri further stated that he

10 could not recall if he had ever had a conversation about affordable housing.

11

In addition to these incredible statements, which the district court would

12 have been entitled to discredit, there was abundant evidence from which the

13 district court could find that Garden City officials clearly understood residents’

14 coded objections to R‐M zoning. During his testimony, Village Administrator

15 Schoelle indicated that he knew low‐income residents of Garden City were

16 primarily African Americans and Latinos. Cf. Catanzaro v. Weiden, 140 F.3d 91, 96

17 (2d Cir. 1998) (“[Plaintiff] also presents evidence that the Mayor and City officials

18 knew the racial makeup of the Middletown community.”). In addition, County

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1 Executive Suozzi testified to his knowledge that race is generally a factor in

2 opposition to affordable housing in Nassau County, and that Garden City

3 residents’ opposition to affordable housing was motivated, at least in part, by

4 discriminatory animus. App’x 550, 556, 2266‐67. Furthermore, employing the

5 code words apparently employed by Garden City residents, Trustee Negri

6 testified that housing occupied by low‐income minorities is not consistent with

7 the “character” of Garden City. App’x at 570.

8

Garden City’s argument appears to boil down to the following – because

9 no one ever said anything overtly race‐based, this was all just business as usual.

10 But the district court was entitled to conclude, based on the Arlington Heights

11 factors, that something was amiss here, and that Garden City’s abrupt shift in

12 zoning in the face of vocal citizen opposition to changing the character of Garden

13 City represented acquiescence to race‐based animus.

14

Failing to show clear error in the district court’s factual findings, Garden

15 City also argues that the district court applied the wrong legal standard for

16 claims involving official responses to citizen‐based discrimination. But the

17 district court recognized the appropriate standard, stating that “[u]nder the

18 theory of disparate treatment, ‘a plaintiff can establish a prima facie case by

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1 showing that animus against the protected group “was a significant factor in the

2 position taken” by the municipal decision‐makers themselves or by those to

3 whom the decision‐makers were knowingly responsive.’” Special App’x at 148

4 (quoting LeBlanc‐Sternberg, 67 F.3d at 425) (emphasis omitted). Although Garden

5 City cites this same case and the same standard, it contends that the district

6 nevertheless applied the wrong standard, because at two points in its 65‐page

7 opinion, the court noted that the comments of Garden City residents “reflected

8 race‐based animus or at least could have been construed as such by the Board.”

9 Special App’x at 156, 180. Seizing on the “could have been construed” language,

10 Garden City argues that the district court only found that Garden City officials

11 responded to citizen‐based opposition and that this opposition was race‐based,

12 but never actually concluded that Garden City officials knew this citizen

13 opposition was race‐based.

14

Although Garden City is correct that the standard is not “could have been

15 construed,” and local officials must knowingly respond to race‐based citizen

16 opposition, we do not think this stray language reflects the legal standard that

17 the court applied. As noted, at other points in its opinion, the district court set

18 out in detail the correct legal standard and cited the exact same cases that Garden

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1 City relies on. Moreover, statements during trial indicate that the district court 2 and all of the parties understood the appropriate standard. In denying Garden 3 City’s Rule 50 motion at the close of Plaintiffs’ case, the district court recognized 4 that Plaintiffs had presented evidence that Garden City officials changed the 5 zoning “to limit minorities from buying in the Garden City area.” App’x at 808. 6 In addition, during trial and in their post‐trial briefing, both parties made this 7 standard clear. App’x at 801 (defendants reiterating that “plaintiffs must show 8 that . . . animus against the protected group was a significant factor in the 9 position taken by the municipal decision makers themselves or by those to whom 10 the decision makers were knowingly responsive”); App’x at 805 (plaintiffs 11 arguing that “it is disingenuous of [Garden City’s] decision makers, for example 12 trustee [Bee] . . . to claim that they did not know that racial animus played a part 13 in residents[‘] opposition to multifamily and affordable hous[ing]”); App’x at 14 1013 (“Garden City government officials could not have been unaware that their 15 constituents’ opposition to affordable housing was grounded in opposition to the 16 likely minority occupants of such housing.”). In light of these statements, we 17 believe the district court understood the applicable standard.
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1

In any case, as discussed at length, the district court’s analysis and factual

2 findings support the conclusion that Garden City officials acted with knowledge

3 of their constituents’ discriminatory animus. See FTC v. Bronson Partners, LLC, 654

4 F.3d 359, 372 (2d Cir. 2011) (“[A]n error in terminology can be harmless so long

5 as the substantive legal standard applied was the correct one.”). As the foregoing

6 analysis of the district court’s factual findings shows, even if the district court

7 applied a somewhat looser standard, its evidentiary findings are sufficient to

8 support a conclusion of discrimination even under the correct standard, i.e., that

9 Garden City officials knowingly acquiesced to race‐based citizen opposition.

10 Accordingly, we find no error in the district court’s conclusion that Plaintiffs

11 have made out a prima facie case of racial discrimination.

12

B. Discrimination Vel Non

13

Garden City argues that, even if Plaintiffs have made out a prima facie

14 case, its residents opposed (and its officials understood them to oppose) R‐M

15 zoning based on legitimate concerns. Although it expressed significant

16 skepticism about the legitimacy of these non‐discriminatory motives, the district

17 court concluded that these other reasons may have played some role in the

18 rezoning decision. However, applying a mixed‐motive analysis, the district court

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1 nevertheless concluded that discrimination against minorities played a

2 determinative role in the shift from R‐M to R‐T zoning. We find no error in the

3 district court’s mixed‐motive analysis and affirm its conclusion.

4

Once a plaintiff presents a prima facie case of discrimination based on the

5 Arlington Heights factors, the burden shifts to the defendant to proffer a

6 legitimate, non‐discriminatory reason for its actions. See Reg’l Econ. Cmty. Action

7 Program, Inc. v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002). Here, the district

8 court found that Garden City met its minimal burden of production on this issue,

9 as Garden City contended that R‐T zoning was adopted instead of R‐M zoning

10 because of concerns regarding traffic and school crowding, and because R‐T

11 zoning would facilitate the development of townhouses as a residential form.

12

If a defendant meets its burden of production, “the sole remaining issue is

13 discrimination vel non. The plaintiffs . . . must prove that the defendants

14 intentionally discriminated against them on a prohibited ground.” Id. (internal

15 quotation marks, citations, and alterations omitted). Although noting that some

16 of Garden City’s alternative justifications for the rezoning were “not just

17 disputed, but unsupported by the record,” Special App’x at 160, the district court

18 expressed reluctance “to second‐guess citizens and decision‐makers’ legitimate

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1 concerns about traffic and the promotion of townhouses, even if those concerns

2 may have been ill‐founded,” Special App’x at 160. Deeming these additional

3 concerns legitimate, the district court followed our decision in Cabrera v.

4 Jakabovitz, 24 F.3d 372, 383 (2d Cir. 1994), and applied the mixed‐motive analysis

5 set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 244–45 (1989) to Plaintiffs’

6 claims.

7

While this standard has been modified by statute in the context of Title VII,

8 there is no indication it remains inapplicable to claims under the Fair Housing

9 Act, and therefore a plaintiff bears the “burden of proof” in showing “that the

10 adverse action was motivated, at least in part, by an impermissible reason.”

11 Cabrera, 24 F.3d at 383. If the plaintiff “has sustained this burden, then the

12 defendant can prevail if it sustains its burden of proving its affirmative defense

13 that it would have taken the adverse action on the basis of . . . permissible

14 reason[s] alone.” Id.

15

Here, relying on its analysis of Plaintiffs’ prima facie case, the district court

16 concluded that the shift in zoning had been motivated, at least in part, by

17 discriminatory animus. It then proceeded to the second half of the Price

18 Waterhouse analysis – the “same decision” defense – assessing whether Garden

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1 City would have taken the same action solely on the basis of its purported

2 legitimate reasons for rezoning. Reviewing these alternative rationales, the

3 district court concluded that even accepting these legitimate reasons, Garden

4 City would not have adopted R‐T zoning in the absence of discriminatory

5 animus.

6

Garden City challenges the district court’s mixed‐motives analysis. Yet

7 because Garden City is challenging the district court’s finding of discrimination,

8 and because these issues are ultimately factual findings, see Cabrera, 24 F.3d at

9 383 (noting that the issue can be decided by a jury), our review is again for clear

10 error. See Thomas v. Nat’l Football League Players Ass’n, 131 F.3d 198, 206 (D.C. Cir.

11 1997), (“This constituted an acceptable finding of mixed motives, and was not

12 clearly erroneous.”), vacated in part on reh’g 1998 WL 1988451 (D.C. Cir. 1998).

13 And again, we find no clear error in the district court’s factual analysis.

14

Garden City argues that although citizens expressed concern about the

15 possibility of affordable housing and the residents who might occupy it, public

16 comment focused more broadly on mundane problems such as traffic and school

17 overcrowding. Yet the district court did not err in concluding that these other

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1 rationales were insufficiently weighty to justify a shift from R‐M to R‐T zoning in

2 the absence of discriminatory intent.

3

With respect to traffic, Garden City argues that its zoning expert testified

4 that R‐T zoning, as compared to R‐M zoning, would potentially reduce traffic

5 concerns. While the district court recognized this evidence, it also noted that

6 traffic concerns became important to Garden City officials only after the increase

7 in public opposition to affordable housing. Indeed, when residents raised

8 questions regarding traffic from R‐M zoning in 2003 and early 2004, Garden City

9 officials repeatedly dismissed these concerns. Indeed, Suozzi, agreeing with

10 Garden City officials at earlier presentations, criticized traffic‐related concerns

11 regarding R‐M zoning as “irrational.” App’x at 1238–39. Although BFJ’s April

12 2004 presentation stated that R‐T zoning would reduce traffic relative to R‐M

13 zoning, this study was only prepared after the public meetings, and the district

14 court reasonably questioned the credibility of figures potentially created to

15 justify a particular result. In addition, the district court noted other record

16 evidence suggesting any decrease in traffic between R‐M and R‐T zoning was de

17 minimis. Fish testified that, even using a conservative approach, the elimination

18 of multi‐family housing would only reduce peak traffic by 3%. App’x at 337–38.

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1 The district court thus did not err in questioning whether such concerns were

2 sufficiently strong to cancel out any discriminatory animus.

3

In conducting its mixed–motive analysis, the district court also

4 appropriately questioned the strength of Garden City’s interest in developing

5 townhouses. Although Garden City’s zoning expert testified that R‐T zoning

6 facilitated the development of townhouses and thus potentially expanded the

7 available forms of housing in Garden City by defining townhouses within the

8 Village’s zoning code for the first time, there is minimal evidence in the record

9 that Garden City had any real interest in adding townhouses as a residential

10 form prior to the rise in public opposition to R‐M zoning. Indeed, the only

11 evidence cited for this point by Garden City is brief testimony from Filippon that

12 Garden City had previously recognized the fact that it did not have townhouses

13 available for prospective buyers. Yet R‐T zoning was not actually necessary to

14 further this goal, nor did it actually accomplish it. Fish and Filippon both

15 testified that townhouses would have been permissible as a residential form even

16 under R‐M zoning. Similarly, R‐T zoning did not actually “promote”

17 townhouses, as Fairhaven, the winning bidder for the Social Services Site,

18 planned to develop single‐family homes. The same logic also undermines

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1 Garden City’s purported interest in using R‐T as a transition zone between

2 single‐family homes and the commercial district abutting the Social Services Site.

3 Multi‐family housing would have provided a similar transition and the ultimate

4 selection of Fairhaven meant no transition at all.

5

Finally, citizen concerns regarding school overcrowding do not cast doubt

6 on the district court’s mixed–motive analysis. The district court noted Fish’s

7 estimate that while single‐family homes would, on average, produce one

8 additional schoolchild, under R‐M zoning “[w]ith a community aimed at young

9 couples and empty nesters there could be as few as 0.2 to 0.3 public school

10 children per unit.” Special App’x at 158 (citing App’x at 1382). At trial, Fish

11 reiterated these assessments. App’x at 273 (agreeing that “it still holds true” “that

12 there would be a smaller number of children generated by multifamily housing

13 under RM than with the development of single‐family homes”). Fish further

14 agreed that those who questioned these assessments “were simply wrong.”

15 App’x at 277. In addition, at the public hearing, Suozzi and others deemed

16 citizen complaints about potential school overcrowding “not accurate.” App’x at

17 1255. Although Garden City argues that a change in the resident mix would have

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1 altered these numbers, the district court was entitled to rely on the figures in the

2 record undercutting this concern.5

3

Accordingly, we find no clear error in the district court’s determination

4 that, while these concerns may have motivated in part the decision to adopt R‐T

5 zoning, the decision would not have been made in the absence of a

6 discriminatory motive.

7

Failing to show clear error in the district court’s mixed‐motive analysis,

8 Garden City questions the mode of this analysis. Garden City argues that the

9 district court improperly placed the burden on the Village to show that it would

10 have made the same decision even in the absence of a discriminatory motive, and

11 should have instead placed the burden on Plaintiffs to show that discrimination

12 was the “but‐for” cause of the rezoning decision. Garden City’s critique of the

13 district court’s analysis relies on the Supreme Court’s decision in Gross v. FBL

14 Financial Services, Inc., 557 U.S. 167 (2009), where the Court held that because the

15 ADEA prohibits adverse actions taken “because of” an employee’s age, ADEA

16 plaintiffs cannot rely on the Price Waterhouse analysis, and instead bear the

5 Although the district court never explicitly stated that school crowding concerns would not have led Garden City to adopt R‐T zoning in the absence of discriminatory animus, this conclusion is the obvious implication of its discussion of this issue.
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1 burden of showing that “age was the ‘but‐for’ cause of the challenged employer

2 decision.” Id. at 177–78. Garden City contends that because the Fair Housing Act

3 similarly prohibits “mak[ing] unavailable or deny[ing] a dwelling . . . because of

4 race,” 42 U.S.C. § 3604(a), the district court should have placed the burden on

5 Plaintiffs to show that race‐based animus was the but‐for cause of the shift to R‐T

6 zoning.6

7

This argument is forfeited. Garden City concedes that it failed to raise this

8 argument before the district court, and “it is a well‐established general rule that

9 an appellate court will not consider an issue raised for the first time on appeal.”

10 Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994). Although we can exercise

11 our discretion to entertain new arguments “where necessary to avoid a manifest

12 injustice or where the argument presents a question of law and there is no need

13 for additional fact‐finding,” Bogle‐Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.

14 2006) (internal quotation marks omitted), “the circumstances normally do not

6 Garden City does not take issue with the district court’s analysis regarding Plaintiffs’ parallel claims under Section 1981, Section 1983, and the Equal Protection Clause, only arguing that Gross rejects the district court’s mixed‐ motive analysis in the context of the Fair Housing Act. We assume, without deciding, that the original Price Waterhouse analysis, not the modified version adopted in the Civil Rights Act of 1991, applies to claims under Section 1981. See Hardy v. Town of Greenwich, 629 F. Supp. 2d 192, 199 (D. Conn. 2009) (noting that “[t]he Second Circuit has not directly addressed this question”).
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1 militate in favor of an exercise of discretion to address new arguments on appeal

2 where those arguments were available to the parties below and they proffer no

3 reason for their failure to raise the arguments below,” In re Nortel Networks Corp.

4 Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (internal quotation marks and

5 alterations omitted). Garden City requests that we excuse the present forfeiture

6 because the parties did not brief the issue of mixed motives below, in light of

7 Plaintiffs’ contention that Garden City’s legitimate non‐discriminatory reasons

8 for rezoning were pretextual.

9

A review of Plaintiffs’ post‐trial briefing undercuts this contention.

10 Although much of the discussion in the district court focused on pretext, an

11 entire section in Plaintiffs’ post‐trial brief is devoted to the issue of burden‐

12 shifting under a mixed analysis. App’x at 1020 (“Garden City Did Not Meet Its

13 Burden to Prove that R‐T Zoning Would Have Been Adopted Had The

14 ‘Impermissible Purpose’ Not Been Considered.”) In this section, Plaintiffs argue

15 that “[e]ven if R‐T addressed any legitimate zoning concerns, that discriminatory

16 animus motivated the change even in part is enough to support a finding of

17 discriminatory intent.” App’x at 1020. In addition, Plaintiffs noted that “[h]ad the

18 ‘impermissible purpose’ of excluding minorities from Garden City not been

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1 considered, R‐T zoning would not have been adopted.” App’x at 1022. The issue

2 of causation and who bore what burden in showing causation among the various

3 motives was sufficiently raised by Plaintiffs that Defendants were on notice that

4 they could have raised their Gross argument. Accordingly, we decline to exercise

5 our discretion to overlook Garden City’s failure to address this issue below.

6

In any event, even if we considered this argument, it runs headlong into

7 Circuit precedent. In Cabrera, 24 F.3d at 383, considering, inter alia, a Fair

8 Housing Act claim, this Court adopted the Price Waterhouse analysis, concluding

9 that once a plaintiff proves an adverse action “was motivated, at least in part, by

10 an impermissible reason, . . . the defendant can prevail if it sustains its burden of

11 proving its affirmative defense that it would have taken the adverse action on the

12 basis of the permissible reason alone.” We are bound by Cabrera. In re Zarnel, 619

13 F.3d 156, 168 (2d Cir. 2010) (noting that a panel of this Court is “bound by the

14 decisions of prior panels until such time as they are overruled either by an en

15 banc panel of our Court or by the Supreme Court).

16

Moreover, when Congress amended the FHA in 1988, the circuits were

17 largely in agreement that if one of the motivating factors for an act was unlawful,

18 the act violated the FHA. See Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1042

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1 (2d Cir. 1979); Williams v. Matthews Co., 499 F.2d 819, 826 (8th Cir. 1974); Hanson

2 v. Veterans Admin., 800 F.2d 1381, 1386 (5th Cir. 1986); Jordan v. Dellway Villa, Ltd.,

3 661 F.2d 588, 594 (6th Cir. 1981); United States v. Pelzer Realty Co., 484 F.2d 438,

4 443 (5th Cir. 1973); Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 349–50 (7th Cir.

5 1970). When Congress amends an Act “without altering the text . . . , it implicitly

6 adopt[s] [the Court’s] construction of the statute.” Inclusive Communities Project,

7 135 S. Ct. at 2520 (quoting Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 244 n.11

8 (2009)). Although Gross may cast doubt on this conclusion, by its terms, Gross

9 applies only to the ADEA, and we decline to address whether Gross applies to

10 the FHA in the absence of clearer guidance from the Supreme Court.

11 Accordingly, even if we overlooked Garden City’s present forfeiture, we would

12 adhere to our existing precedent.

13

IV. Disparate Impact

14

Garden City also challenges the district court’s conclusion that the shift

15 from R‐M to R‐T zoning violated the disparate impact prong of the Fair Housing

16 Act. The Supreme Court recently affirmed that disparate impact claims are

17 cognizable under the Fair Housing Act. See Inclusive Communities Project, 135 S.

18 Ct. at 2525 (holding that “disparate‐impact claims are cognizable under the Fair

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1 Housing Act upon considering its results‐oriented language, the Court’s

2 interpretation of similar language in Title VII and the ADEA, Congress’

3 ratification of disparate‐impact claims in 1988 against the backdrop of the

4 unanimous view of nine Courts of Appeals, and the statutory purpose”).

5

The Second Circuit has outlined a burden‐shifting test for a disparate

6 impact claim. Under this test, a plaintiff must first establish a prima facie case by

7 showing, “(1) the occurrence of certain outwardly neutral practices, and (2) a

8 significantly adverse or disproportionate impact on persons of a particular type

9 produced by the defendant’s facially neutral acts or practices.” City of

10 Middletown, 294 F.3d at 52–53 ; see also Tsombanidis, 352 F.3d at 575. Once a

11 plaintiff has presented a prima facie case of disparate impact, “the burden shifts

12 to the defendant to ‘prove that its actions furthered, in theory and in practice, a

13 legitimate, bona fide governmental interest and that no alternative would serve

14 that interest with less discriminatory effect.’” Tsombanidis, 352 F.3d at 575

15 (quoting Huntington Branch, 844 F.2d at 936 ) (emphasis added).

16

In 2013, however, before the district court’s decision was rendered, the

17 Secretary of Housing and Urban Development (“HUD”) issued a regulation

18 interpreting disparate‐impact liability under the FHA. See Implementation of the

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1 Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11,460 (Feb. 15,

2 2013) (codified at 24 C.F.R. Part 100). In addition to affirming disparate impact

3 liability as an element of the FHA, it outlined the “[b]urdens of proof in

4 discriminatory effects cases.” 24 C.F.R. § 100.500(c). Under this framework, the

5 first two steps are substantially the same as in our case law: First, a plaintiff or

6 charging party must come forward with a prima facie case; and second, the

7 defendant or respondent may rebut the prima facie case by proving that the

8 “challenged practice is necessary to achieve one or more substantial, legitimate,

9 nondiscriminatory interests of the respondent or defendant.” 24 C.F.R. §

10 100.500(c)(1)–(2). However, unlike Huntington Branch and its progeny, if the

11 defendant meets its burden, the burden of proof shifts back to the plaintiff to

12 show that the “substantial, legitimate, nondiscriminatory interests supporting

13 the challenged practice could be served by another practice that has a less

14 discriminatory effect.” 24 C.F.R. § 100.500(c)(3).

15

Instead of following HUD’s framework, despite being well aware of

16 HUD’s regulation, see Special App’x at 168, the district court applied our

17 traditional test. The district court concluded that Plaintiffs had established a

18 prima facie case of disparate impact, finding that Garden City’s rejection of R‐M

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1 zoning in favor of R‐T zoning had a significant disparate impact on minorities 2 because it “largely eliminated the potential for the type of housing that 3 minorities were disproportionately likely to need – namely, affordable rental 4 units.” Special App’x at 170. But the district court also found that R‐T zoning 5 advanced certain legitimate, bona fide governmental interests, noting that R‐T 6 zoning (1) would have reduced traffic and (2) would have provided for the 7 construction of townhouses. But the district court held that Garden City “did not 8 establish the absence of a less discriminatory alternative.” Special App’x at 174. 9 Plaintiffs argue that, as a practical matter, the district court did place the burden 10 on Plaintiffs to show that R‐M zoning was a less discriminatory alternative. See, 11 e.g., Special App’x at 175 (“Plaintiffs have established, by a preponderance of the 12 evidence . . . [that] less discriminatory alternatives to the current zoning 13 ordinance existed.”). We are unpersuaded. It is clear that the district court shifted 14 the burden to Defendants to prove both a legitimate, bona fide governmental 15 interest and “that no alternative would serve . . . with less discriminatory effect.” 16 Special App’x at 174. The district court may have found Defendants’ reasons 17 unpersuasive, but that does not mean it placed the burden of proof on Plaintiffs 18 in accordance with 24 C.F.R. § 100.500(c)(3).
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1

For this reason, Garden City argues that the district court erred in

2 requiring it to prove the absence of a less discriminatory alternative. Plaintiffs

3 argue that Garden City’s argument to this effect is waived and, in any case,

4 contrary to Circuit precedent. But appellate courts are “bound to consider any

5 change, either in fact or in law, which has supervened since the [district court’s]

6 judgment was entered.” Patterson v. Alabama, 294 U.S. 600, 607 (1935); see also

7 Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is

8 properly before the court, the court is not limited to the particular legal theories

9 advanced by the parties, but rather retains the independent power to identify

10 and apply the proper construction of governing law.”). Here, we exercise our

11 prudential discretion to review a potentially waived argument. See Bogle‐Assegai,

12 470 F.3d at 504.

13

Section 808(a) of the FHA gives the Secretary of HUD the “authority and

14 responsibility for administering [the] Act,” 42 U.S.C. § 3608(a), and confers upon

15 the Secretary authority to “make rules (including rules for the collection,

16 maintenance, and analysis of appropriate data) to carry out this subchapter.” 42

17 U.S.C. § 3614a. Because Congress afforded HUD the authority to implement the

18 FHA, under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

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1 U.S. 837 (1984), this Court must defer to the agency’s reasonable interpretation 2 unless “the intent of Congress is clear.” 467 U.S. at 842–43. The Supreme Court 3 implicitly adopted HUD’s approach, see Inclusive Communities Project, 135 S. Ct. at 4 2518 (stating that before rejecting a business or public interest, “a court must 5 determine that a plaintiff has shown that there is ‘an available alternative . . . 6 practice that has less disparate impact and serves the [entity’s] legitimate needs’” 7 (alteration in original) (quoting Ricci v. DeStefano, 557 U.S. 557, 578 (2009))), and 8 while the approaches of our sister circuits have varied in the past, many had 9 already placed the burden of proving a less discriminatory alternative on the 10 plaintiff or have now since deferred to HUD’s interpretation, see Mt. Holly 11 Gardens Citizens in Action, Inc. v. Twp. of Mount Holly, 658 F.3d 375, 382 (3d Cir. 12 2011) (placing the burden on plaintiffs to “demonstrate that there is a less 13 discriminatory way to advance the defendant’s legitimate interest”); Gallagher v. 14 Magner, 619 F.3d 823, 834 (8th Cir. 2010) (same); Groach Assocs. #33, L.P. v. 15 Lousiville/Jefferson Cty. Metro Human Relations Comm’n, 508 F.3d 366, 374 (6th Cir. 16 2007) (same); see also Inclusive Communities Project, Inc. v. Tex. Depʹt of Hous. & 17 Cmty. Affairs, 747 F.3d 275, 282 (5th Cir. 2014) (adopting HUD’s interpretation), 18 aff’d and remanded 135 S. Ct. at 2507.
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1

While the district court did not address this issue below, the question of

2 whether one of our decisions has been abrogated by an agency regulation that

3 reflects the agency’s interpretation of an ambiguous statutory provision is a

4 question of law that we can, and should, answer ourselves. See Nat’l Cable &

5 Telecomms. Ass’n v. Brand X Internet Servs. (Brand X), 545 U.S. 967, 986–88 (2005)

6 (considering de novo whether a previous Ninth Circuit decision was abrogated

7 by a subsequent agency regulation). Our earlier burden‐shifting approach

8 applied in Huntington Branch and Tsombanidis may only survive if we previously

9 held that our “construction follows from the unambiguous terms of the statute

10 and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 982. Because

11 we did not hold that the statute was unambiguous, see Tsombanidis, 352 F.3d at

12 575; Huntington Branch, 844 F.2d at 936, we are obliged to defer to the more recent

13 HUD regulations. Thus, we remand to the district court for consideration of

14 whether Plaintiffs satisfied their burden of proving an available alternative

15 practice that has less disparate impact and serves Defendants’ legitimate

16 nondiscriminatory interests.

17

At the same time, we are mindful of the Supreme Court’s admonishment

18 that all too often “zoning laws and other housing restrictions . . . function

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1 unfairly to exclude minorities from certain neighborhoods without any sufficient

2 justification” and that “[s]uits targeting such practices reside at the heartland of

3 disparate‐impact liability.” Inclusive Communities Project, 135 S. Ct. at 2521–22.

4 For this reason, we believe the district court’s extensive analysis of Plaintiffs’

5 prima facie case merits discussion.

6

First, as the Supreme Court has made clear this year, zoning laws or

7 ordinances prohibiting construction of multi‐family dwellings have been found

8 in violation of the FHA. Id. at 2522 (citing Huntington Branch,488 U.S. at 16–18

9 and United States v. City of Black Jack, 508 F.2d 1179, 1182–88 (8th Cir. 1974)

10 (invalidating ordinance prohibiting construction of new multi‐family

11 dwellings)). Second, we find no merit in Defendants’ argument that the district

12 court improperly allowed Plaintiffs to challenge a single, isolated zoning

13 “decision,” rather than a general zoning “policy.” Garden City argues that

14 disparate impact liability does not exist when a plaintiff challenges a defendant’s

15 one‐off decision. Rather than challenging the Village’s zoning ordinances in

16 general, the Plaintiffs complain about a decision affecting one piece of property.

17 We decline Defendants’ invitation to draw a line defining what constitutes a

18 “one‐off” zoning “decision” as opposed to a zoning “policy.” Even assuming this

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1 distinction is relevant, given the many months of hearings and meetings, see

2 Special App’x at 127–30, with charges that R‐M zoning would harm traffic

3 conditions and increase school overcrowding, and that the change required

4 passage of a local law, we are confident this case falls well within a classification

5 of a “general policy.”

6

Additionally, in the Title VII and ADEA contexts, courts have permitted

7 “cases dealing with disparate impact challenges to single decisions of

8 employers.” Council 31, Am. Fed’n of State, Cty. & Mun. Emps., AFL‐CIO v. Ward,

9 978 F.2d 373, 377 (7th Cir. 1992); see also Nolting v. Yellow Freight Sys., Inc., 799

10 F.2d 1192, 1194 (8th Cir. 1986) (considering a disparate impact case under ADEA

11 based on a decision to use performance ratings for single layoff decision).

12 Indeed, other circuits have described the distinction between a single isolated

13 decision and a practice as “analytically unmanageable – almost any repeated

14 course of conduct can be traced back to a single decision.” Council 31, 978 F.2d at

15 377.

16

Moreover, Plaintiffs also note that there are two methods of proving the

17 discriminatory effect of a zoning ordinance: (1) “adverse impact on a particular

18 minority group,” and (2) “harm to the community generally by the perpetuation

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1 of segregation.” Huntington Branch, 844 F.2d at 937 (recognizing both forms of

2 disparate impact under FHA). Here, the district court concluded that “the R‐T

3 zone’s restriction on the development of multi‐family housing perpetuates

4 segregation generally because it decreases the availability of housing to

5 minorities in a municipality where minorities constitute approximately only 4.1%

6 of the overall population . . . and only 2.6% of the population living in

7 households.” Special App’x at 171.

8

For these reasons, we agree with the district court’s assessment that

9 plaintiffs more than established a prima facie case. We also agree that

10 Defendants identified legitimate, bona fide governmental interests, such as

11 increased traffic and strain on public schools. But for the reasons stated above,

12 we remand for consideration of whether Plaintiffs met their burden under

13 § 100.500(c)(3).

14

V. Cross‐Appeal

15

The final issue in this case is the cross‐appeal, in which Plaintiffs challenge

16 the district court’s dismissal of Nassau County at the summary judgment stage.

17 We review orders granting summary judgment de novo, focusing on whether the

18 district court properly concluded that there was no genuine dispute as to any

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1 material fact and the moving party was entitled to judgment as a matter of law.

2 See Dalberth v. Xerox Corp., 766 F.3d 172, 182 (2d Cir. 2014). We resolve all

3 ambiguities and draw all reasonable inferences in favor of the nonmoving party.

4 See Nationwide Life Ins. Co. v. Bankers Leasing Assʹn, Inc., 182 F.3d 157, 160 (2d Cir.

5 1999). Summary judgment is appropriate “[w]here the record taken as a whole

6 could not lead a rational trier of fact to find for the non‐moving party.”

7 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

8

A. Nassau County’s Approval of Garden City’s Discrimination

9

The district court dismissed Plaintiffs’ disparate treatment claims against

10 Nassau County at the summary judgment stage, concluding that they failed to

11 raise factual issues as to whether the County bore a sufficient causal relationship

12 to Garden City’s discriminatory shift in zoning. The district court concluded that

13 the County lacked legal power over the chosen zoning designation for the Social

14 Services Site. It further refused to hold the County liable for failing to combat,

15 either formally or informally, Garden City’s discrimination. The district court

16 dismissed the disparate impact and Equal Protection claims against the County

17 based on the rezoning on similar logic.

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1

Plaintiffs contend that the district court erred in concluding that the

2 County did not bear responsibility for the shift to R‐T zoning, arguing that they

3 raised genuine disputes as to material fact issues on this point. Plaintiffs’

4 argument has two prongs: (1) the County knew that opposition to R‐M zoning

5 was racially animated, and (2) the County had legal responsibility for R‐T

6 zoning.

7

As to the first issue, we agree with the district court that, at the summary

8 judgment stage, Plaintiffs raised a genuine issue of material fact as to whether

9 County officials understood the opposition to R‐M zoning as race‐based.

10 However, we also agree with the district court that Plaintiffs have not raised a

11 genuine issue of material fact on the second issue – whether the County had legal

12 responsibility for Garden City’s adoption of R‐T zoning. We do not find either of

13 Plaintiffs’ arguments on this second point persuasive.

14

1. Section 239‐m

15

First, Plaintiffs argue that under New York law, the Nassau County

16 Planning Commission was required to review Garden City’s proposed R‐T

17 zoning ordinance before it was enacted, and to “recommend approval,

18 modification, or disapproval, of the proposed action, or report that the proposed

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1 action has no significant county‐wide or inter‐community impact.” N.Y. Gen.

2 Mun. Law § 239‐m(4)(a). This law gives the Commission “an advisory veto

3 which the town or village legislative body can override by a vote of a majority

4 plus one of such body’s total membership.” We’re Assocs. Co. v. Bear, 317 N.Y.S.2d

5 59, 60 (N.Y. App. Div. 1970) (“[S]ection 239‐m does not give the Planning

6 Commission an absolute veto power . . . .”). Here, rather than objecting to R‐T

7 zoning under Section 239‐m, the Commission issued a report approving the

8 zoning.

9

Plaintiffs argue that despite knowing the law to be discriminatory, the

10 County did not exercise its advisory power to disapprove the zoning law.

11 Plaintiffs argue that the County’s failure to formally disapprove a shift it knew

12 was discriminatory implicates the County in Garden City’s discrimination. This

13 Court has previously held that, in the context of discrimination claims, “[l]iability

14 may be premised not only on action but on a refusal to act.” United States v. City

15 of Yonkers (Yonkers II), 96 F.3d 600, 613 (2d Cir. 1996). In situations where an

16 official “ha[d] authority to intervene, and he knew about the discriminatory

17 practices . . . then he could be liable.” Comer v. Cisneros, 37 F.3d 775, 804 (2d Cir.

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1 1994). However, Plaintiffs’ argument that Nassau County could have prevented

2 Garden City’s discriminatory zoning is premised on speculation.

3

Plaintiffs concede that Garden City could have adopted R‐T zoning over

4 the County’s veto with a majority plus one vote. And in this case, Garden City’s

5 Board of Trustees adopted R‐T zoning unanimously. This unanimous vote would

6 seem to obviate any causal role for Nassau County in the adoption of R‐T zoning.

7 Since Garden City could have overridden any County disapproval, any advisory

8 disapproval by the County would likely have been ineffective.

9

Generally, “speculation by the party resisting the motion will not defeat

10 summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).

11 Here, Plaintiffs argue, without any evidence of past practice, that the Nassau

12 County Planning Commission could use the advisory veto contained in Section

13 239‐m as a bully pulpit for the County to shame towns and villages in danger of

14 acquiescing to the race‐based animus of their citizens. As an initial matter,

15 Plaintiffs provide no evidence that the County has previously exercised such

16 authority. Indeed, Nassau County points to evidence that the Planning

17 Commission’s role was to act as a harmonizer between communities and not as a

18 super‐agency tasked with keeping discriminating localities in line. App’x at 2833

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1 (”The purpose of the Commission’s review is to provide input on actions that

2 may have an impact across municipal boundaries, or that may be of area‐wide

3 significance and therefore require coordination among municipalities.”); cf.

4 Yonkers II, 96 F.3d at 618 (finding that the applicable statute placed a

5 “responsibility” on state officials “to take steps to achieve desegregation”).

6

Moreover, even if disapproving potentially discriminatory actions by

7 municipalities does fall within the ambit of the Commission’s authority, the

8 County’s causal role in the ultimate decision is tenuous. In contrast to previous

9 cases, there is no clear power of override, nor is there evidence that the limited

10 power of non‐binding disapproval carries any weight. Cf. Yonkers II, 96 F.3d at

11 618 (“[W]here the Commissioner and the Board of Regents find that racial

12 imbalance in the schools of a given community has made the schools

13 educationally inadequate, the Commissioner has virtually unreviewable authority

14 under the Education Law to order student transfers in order to eliminate the

15 imbalance.” (emphasis added)). To be sure, an advisory veto constitutes some

16 power to intervene, and on a stronger evidentiary showing of past practice, such

17 failure to utilize the power of disapproval may provide a basis for liability.

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1 However, on the present record, we agree with the district court that Plaintiffs’

2 claim against Nassau County is premised on speculation.

3

2. Override for Public Use

4

As an additional argument for the County’s authority to override Garden

5 City’s zoning, Plaintiffs argue that on the facts of this case, the County had the

6 obligation to exercise its authority to override local zoning control. Plaintiffs

7 concede that New York law vests authority over zoning with local governments.

8 However, Plaintiffs rely on a line of cases in which New York courts have

9 permitted counties to override town zoning ordinances for the county’s own

10 land use where the county’s interest in the non‐conforming use is greater than

11 the town’s interest in enforcing its land use regulations. See Matter of Cty. of

12 Monroe (City of Rochester), 530 N.E.2d 202, 204–05 (N.Y. 1988). Plaintiffs contend

13 that Nassau County should have employed this limited authority to override

14 local zoning decisions here, in light of its knowledge of the R‐T rezoning’s

15 discriminatory basis. We disagree.

16

The New York Court of Appeals has recognized that counties may ignore

17 local zoning when necessary for public use. In determining when such an

18 override is permitted, New York courts balance a number of factors including

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1 “the nature and scope of the instrumentality seeking immunity, the kind of 2 function or land use involved, the extent of the public interest to be served 3 thereby, the effect local land use regulation would have upon the enterprise 4 concerned and the impact upon legitimate local interests.” Id. at 204 (internal 5 quotation marks omitted). For example, in County of Monroe, Monroe County’s 6 interest in the expansion of an airport outweighed the City of Rochester’s 7 interests in land use regulation. Id. at 205 (“The airport terminal, parking 8 facilities, and air freight facility are embraced within the immunity from the 9 requirements of the City’s land use laws because they constitute accessory uses 10 customarily incidental to an airport operation.”). The New York Court of 11 Appeals has applied this same balancing test in cases where private actors 12 performing public functions on government land seek an exemption from local 13 zoning laws. See Matter of Crown Commcʹn N.Y., Inc. v. Depʹt of Transp. of N.Y., 824 14 N.E.2d 934, 935–36 (N.Y. 2005). In Crown, the New York Court of Appeals 15 concluded that “the installation of private antennae on two state‐owned 16 telecommunications towers [was] exempt from local zoning regulation” because 17 such private antennae served a number of significant public interests. Id. at 935, 18 938. The court concluded that “such equipment is therefore embraced within the
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1 immunity already afforded to the state‐owned towers pursuant to the balancing

2 test.” Id. at 940; see also Westhab, Inc. v. Vill. of Elmsford, 574 N.Y.S.2d 888, 891

3 (N.Y. App. Div. 1991) (finding under balancing test that homeless shelter, as

4 tenant on land leased from County, was exempt from local zoning).

5

Based on these cases, Plaintiffs argue that Nassau County had an

6 obligation to override Garden City’s R‐T zoning on their behalf, since they

7 proposed to buy the Site and build affordable housing. Plaintiffs contend that

8 there is a strong public interest in building affordable housing and that the

9 County should have taken steps to protect developers who planned to further

10 this interest by explicitly adopting resolutions overriding Garden City’s zoning.

11 However, there is a crucial difference between the cases cited and the present

12 one. As the district court recognized, these cases are distinguishable because they

13 did not involve situations such as this, where a private developer is merely

14 purchasing land from the county to pursue its own endeavor. Rather, the cases

15 cited all involve exemptions for uses where the state or county continued to own

16 the land during the public use. Although private entities were not precluded

17 from joining in the state or a county’s immunity against local zoning, in these

18 cases, the private party was still a tenant on government‐owned land. In this

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1 case, even if the County were to achieve an override of Garden City’s zoning for

2 itself, the Site would eventually be sold to a private developer. Although New

3 York cases provide for zoning immunity by private actors when working with

4 the government on state or county land, they say nothing about whether a state

5 or county may transfer this immunity to a private developer as part of a property

6 sale. Indeed, Plaintiffs have not cited, and we are not aware of, New York cases

7 applying the public interest balancing test in situations where a private

8 developer is purchasing land from a county to pursue its own project.7 Absent

9 further guidance from the New York Court of Appeals, we decline to extend

10 these cases to find that Nassau County had the legal authority and responsibility

11 to override Garden City’s zoning on behalf of a potential private buyer.

12

B. Nassau County’s Steering of Affordable Housing

13

In addition to their claims relating specifically to the R‐T rezoning,

14 Plaintiffs also bring claims against Nassau County more generally, accusing the

15 County of steering affordable housing to its low‐income, majority‐minority

7 We note that as part of their initial protest proposal, Plaintiffs proposed a lease agreement with Nassau County, which could have potentially created a public‐ private partnership on land that would still be owned by the County. However, Plaintiffs’ directly competitive bid to purchase the Social Services property, not their lease proposal, is the basis for their standing in this case. Assuming Plaintiffs’ bid would have been successful, they would have owned the property, not Nassau County.
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1 communities. Plaintiffs claim that Nassau County has an explicit policy of

2 steering affordable housing to low‐income, majority‐minority communities. On

3 this point, they note statements in documents submitted to HUD between 1995

4 and 2010 in which Nassau County states, “Nassau County currently targets its

5 comprehensive community development efforts in a number of lower income

6 and minority areas such as Roosevelt, Inwood, Hempstead Village, New Cassel,

7 and Freeport.” See, e.g., App’x at 2575, 2616, 2651, 2854. In other portions of these

8 filings, Nassau County states “[f]or three decades, Nassau County has provided .

9 . . funds to local governments and non‐profits to acquire sites exclusively in low

10 and moderate‐income census tracts.” App’x at 2598. Further Plaintiffs’ expert

11 testified that County‐subsidized affordable housing aimed at families and first‐

12 time buyers is steered toward majority‐minority communities, while affordable

13 housing for the elderly is placed in majority‐white communities.

14

The district court considered these allegations under 42 U.S.C. § 3608

15 (Section 808 of the FHA), and concluded that Section 808 does not provide a

16 private right of action. Plaintiffs do not challenge the district court’s conclusion

17 with respect to Section 808 on appeal. However, they argue that the district court

18 failed to consider the relevance of these same factual allegations to Plaintiffs’

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1 claims under 42 U.S.C. § 3604(a) (Section 804(a) of the FHA) and Title VI of the

2 Civil Rights Act of 1964, 42 U.S.C. § 2000d. As discussed previously, Section

3 804(a) of the FHA provides for discriminatory intent and disparate impact

4 liability under the FHA. Title VI provides for discriminatory intent liability

5 against entities that receive federal funding.

6

The County does not contest that Plaintiffs raised Section 804(a) and Title

7 VI claims relating to Nassau County’s steering of affordable housing, or that the

8 district court failed to consider these allegations in ruling on these claims. Thus,

9 rather than pass on these factually‐intensive claims for the first time on appeal,

10 we follow our typical practice, and remand for the district court to address these

11 claims. See Dardana Ltd. v. Yuganskneftegaz, 317 F.3d 202, 208 (2d Cir. 2003) (“It is

12 this Court’s usual practice to allow the district court to address arguments in the

13 first instance.”).

14

CONCLUSION

15 In conclusion, we hold as follows:

16

(1) Plaintiffs have Article III standing. Due to the inherent uncertainties in

17

the housing market, plaintiffs filing claims under the FHA need not

18

show with absolute certainty that their project would succeed absent

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1

the challenged action. We find no clear error in the district court’s

2

findings to this effect, and thus are satisfied that Plaintiffs have met the

3

elements of standing. Therefore, we AFFIRM the relevant portions of

4

the judgment of the district court insofar as it found Plaintiffs have

5

standing.

6

(2) Plaintiffs’ claims are also not moot. Under the voluntary cessation

7

doctrine, a party may not evade judicial review by temporarily altering

8

its behavior. Under this doctrine, Defendants did not meet their

9

stringent and formidable burden of showing that it is absolutely clear

10

that it will not permit the challenged conduct to resume. Thus, we

11

AFFIRM the relevant portions of the judgment of the district court

12

insofar as it found Plaintiffs’ claims are not moot.

13

(3) We further hold that the district court did not commit clear error in

14

finding that Garden City’s decision to abandon R‐M zoning in favor of

15

R‐T zoning was made with discriminatory intent, and that Defendants

16

failed to demonstrate they would have made the same decision absent

17

discriminatory considerations. Thus, we AFFIRM the judgment of the

18

district court insofar as it found Plaintiffs had established liability

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1

under 42 U.S.C. § 3604(a) of the FHA based on a theory of disparate

2

treatment.

3

(4) We further hold that 24 C.F.R. § 100.500(c) abrogated our prior

4

precedent as to the burden‐shifting framework of proving a disparate

5

impact claim. Accordingly, we VACATE the district court’s judgment

6

insofar as it found liability under a disparate impact theory, and

7

REMAND for further proceedings to determine, in accordance with

8

§ 100.500(c)(3), whether plaintiffs have met their burden of proving that

9

the “substantial legitimate, nondiscriminatory interests supporting the

10

challenged practice could be served by another practice that has a less

11

discriminatory effect.”

12

(5) Finally, we hold that the district court properly dismissed Plaintiffs’

13

disparate treatment claims against Nassau County at the summary

14

judgment stage. While we agree that Plaintiffs raised a genuine issue of

15

material fact as to whether County officials understood the opposition

16

to R‐M zoning was race‐based, we agree with the district court that

17

Plaintiffs have not raised a genuine issue of material fact as to whether

18

the County had legal responsibility for Garden City’s adoption of R‐T

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1

zoning. Therefore, we AFFIRM the district court’s judgment dismissing

2

Plaintiffs’ disparate treatment claims against Nassau County at the

3

summary judgment stage. But with respect to Plaintiffs’ claims under

4

Section 804(a) and Title VI relating to Nassau County’s “steering” of

5

affordable housing, we REMAND for the district court to address these

6

claims.

7 For the foregoing reasons, we AFFIRM the judgment of the district court in part,

8 VACATE in part, and REMAND for further proceedings in accordance with this

9 opinion.

102

Case 14-1634, Document 219-2, 03/23/2016, 1734023, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: March 23, 2016 Docket #: 14-1634cv Short Title: Mhany Management Inc. v. County of Nassau

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 05-cv-2301 DC Court: EDNY (CENTRAL ISLIP)DC Docket #: 05-cv-2301 DC Court: EDNY (CENTRAL ISLIP) DC Judge: Wall DC Judge: Spatt

BILL OF COSTS INSTRUCTIONS
The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 14-1634, Document 219-3, 03/23/2016, 1734023, Page1 of 2

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: March 23, 2016 Docket #: 14-1634cv Short Title: Mhany Management Inc. v. County of Nassau

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 05-cv-2301 DC Court: EDNY (CENTRAL ISLIP)DC Docket #: 05-cv-2301 DC Court: EDNY (CENTRAL ISLIP) DC Judge: Wall DC Judge: Spatt

VERIFIED ITEMIZED BILL OF COSTS
Counsel for _________________________________________________________________________ respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________ and in favor of _________________________________________________________________________ for insertion in the mandate. Docketing Fee _____________________ Costs of printing appendix (necessary copies ______________ ) _____________________ Costs of printing brief (necessary copies ______________ ____) _____________________ Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

Case 14-1634, Document 219-3, 03/23/2016, 1734023, Page2 of 2
________________________ Signature

 
 UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT _____________________________________________
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of July, two thousand sixteen.
________________________________________________

MHANY Management, Inc., AKA New York Acorn Housing Company,
Plaintiff - Appellee - Cross - Appellant,
New York Communities for Change, Inc.,

ORDER Docket No:14-1634(L)
14-1729 (XAP)

Intervenor - Plaintiff - Appellee - Cross - Appellant,

ACORN, The New York Association of Community Organizations for Reform Now, Daphne Andrews, Vic Devita, Vernon Ghullkie, Natalie Guerrido, New York Acorn Housing Company, Inc., Lisbett Hunter, Francine McCray,

Plaintiffs, v.

County of Nassau, County of Nassau Planning Commission, County of Nassau Office of Real Estate & Development,

Defendants - Cross - Appellees,

Incorporated Village of Garden City, Garden City Board of Trustees,

Defendants - Appellants. ______________________________________________

Appellants Incorporated Village of Garden City and Garden City Board of Trustees, filed a petition for panel rehearing, or, in the alternative, for rehearing en banc. The panel that determined the appeal has considered the request for panel rehearing, and the active members of the Court have considered the request for rehearing en banc.
IT IS HEREBY ORDERED that the petition is denied.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

 
 Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 1 of 25 PageID #: 14116

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------X MHANY MANAGEMENT, INC.,

Plaintiff, -and-

MEMORANDUM OF DECISION & ORDER 05-cv-2301 (ADS)(ARL)

NEW YORK COMMUNITIES FOR CHANGE, INC.,

Intervenor-Plaintiff,

-against-

COUNTY OF NASSAU, INCORPORATED VILLAGE OF GARDEN CITY, and GARDEN CITY BOARD OF TRUSTEES,

Defendants. ---------------------------------------------------------X APPEARANCES: Hogan Lovells LLP Co-Counsel for the Plaintiffs 875 Third Ave New York, NY 10022
By: Stanley J. Brown, Esq. Ira M. Feinberg, Esq., Chava Brandriss, Esq., Benjamin A. Fleming, Esq., Of Counsel

Law Offices of Frederick K. Brewington Co-Counsel for the Plaintiffs 556 Peninsula Boulevard Hempstead, NY 11550
By: Frederick K. Brewington, Esq., Of Counsel

Lawyers’ Committee for Civil Rights Under Law Co-Counsel for the Plaintiffs 1401 New York Avenue, NW Suite 400 Washington, DC 20005
By: Joseph D. Rich, Esq., Thomas Silverstein, Esq., Of Counsel
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Cullen and Dykman, LLP Attorneys for the Defendants Incorporated Village Of Garden City, And Garden City Board Of Trustees 100 Quentin Roosevelt Blvd. Garden City, NY 11530
By: Douglas J. Bohn, Esq., James G. Ryan, Esq., Jennifer A. McLaughlin, Esq., Of Counsel
Nassau County Attorney’s Office Corporation Counsel for the Defendant County of Nassau One West Street Mineola, NY 11501
By: Ralph J. Reissman, Esq., Of Counsel
SPATT, District Judge: This housing discrimination action has long been before this Court. After an eleven-day
bench trial held in June and July of 2013, this Court found that the Defendants—the Incorporated Village of Garden City and the Garden City Board of Trustees (collectively, “Garden City” or the “Village”)—were liable under the Fair Housing Act, 42 U.S.C. § 3601 et seq. (the “FHA”) based on disparate impact and disparate treatment; 42 U.S.C. § 1981; 42 U.S.C. §1983; and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, based on the Village’s decision to change the zoning in a certain area of Garden City.
After the Court’s final entry of judgment, the parties cross-appealed—the Plaintiffs appealed this Court’s grant, before trial, of summary judgment dismissing the claims against the Defendant County of Nassau (the “County”); and Garden City appealed from the Court’s post-trial findings. The Second Circuit affirmed the majority of the Court’s conclusions, but remanded the case on two points, one of which is addressed in this opinion.
The Second Circuit held that the Court applied an incorrect standard in addressing the Plaintiff’s FHA disparate impact claims. The Circuit Court remanded with instructions that this
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Court determine whether the Plaintiffs MHANY Management, Inc. and New York Communities For Change, Inc. (collectively, the “Plaintiffs”) proved at trial that the “substantial, legitimate, nondiscriminatory interests” proffered by Garden City in support of its zoning shift “could be served by another practice that has a less discriminatory effect.” 24 C.F.R. § 100.500(c)(3).
The Circuit Court also vacated this Court’s grant of summary judgment to the County on the Plaintiffs’ “steering” claims under Section 804(a) of the FHA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (“Title VII”), and remanded for reconsideration of those claims. Those claims are not addressed in this opinion, because unlike the disparate impact claims, the parties have agreed that further discovery is required.
For the reasons that follow, the Court finds that the Plaintiffs met their burden at trial in demonstrating, by a preponderance of the evidence, that Garden City’s proffered reasons for its chosen zoning change could have been met by another practice that had a less discriminatory effect.
I. BACKGROUND A. Factual Background
The facts of this case are well-known to the parties and the Court. The Court’s post-trial memorandum of decision and order, MHANY Mgmt. Inc. v. Inc. Vill. of Garden City, 985 F. Supp. 2d 390, 396 (E.D.N.Y. 2013) (ECF No. 413), as well as the Second Circuit’s decision, Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581 (2d Cir. 2016), comprehensively state the facts. Therefore, the Court will not engage once again in a complete factual recitation. However, the Court briefly summarizes the facts that are relevant to this opinion.
At issue is the decision by Garden City to rezone a parcel of land, the “Social Services Site,” that was previously occupied by numerous governmental offices. The Social Services Site
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was previously zoned for Public Use (“P”) and was part of an area known as the “P zone.” The planning firm hired by Garden City to propose a new zoning plan, Buckhurst Fish and Jacquemart (“BFJ”), recommended a “CO-5(b)” zone with multi-family residential group (“R-M”) restrictions. In effect, the firm recommended R-M zoning controls. The R-M zoning would have allowed for the construction of up to 311 residential units, including the development of multifamily housing such as apartment buildings. After many residents complained to public officials on several occasions about the effect of high rise buildings on traffic and schools, Garden City relented and rezoned the Social Services Site “Residential-Townhouse” (“R-T”), which was an entirely new zoning classification. Townhouses were defined as single family dwelling units, and the development of multi-family dwellings was limited to less than 15% of the Social Services Site.
The Plaintiffs complained that the R-T zoning would not allow for any affordable multifamily housing. Nevertheless, MHANY, which was then known as New York Acorn Housing Company (“NYAHC”), submitted a bid to build a non-conforming multi-family development on the Social Services Site, “in protest.” The County awarded the development contract to a developer of single-family homes. The winning bid, for $56.5 million, proposed to build 87 singlefamily detached homes on the site. Notably, the proposal did not include any townhouses.
After the contract was awarded to another development company, NYAHC prepared four proposals under the R-M zoning control. NYAHC would have been able to pay $56.1 million for a proposal that would have included affordable housing and it is estimated that 18% of the units would have been occupied by minorities.
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B. Relevant Procedural History 1. The Court’s Post-Trial Decision On June 3, 2013, the Court concluded an eleven day bench trial, and issued its findings of
fact and conclusions of law on December 6, 2013. As stated above, among other issues of liability, the Court found that the Village was liable under the FHA based on disparate impact.
In its decision, the Court employed the burden-shifting analysis outlined in the Second Circuit’s decision in Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 575 (2d Cir. 2003). Under that standard, a plaintiff is required to prove a prima facie case of disparate impact by showing “(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant’s facially neutral acts or practices.” Id. (quoting Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 52–53 (2d Cir. 2002)). If a plaintiff establishes a prima facie case, the burden shifts to the defendant to “prove that its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.” Id. (quoting Huntington Branch, N.A.A.C.P. v. Town of Huntington, 844 F.2d 926, 936 (2d Cir. 1988)).
The Court found that the Plaintiffs met their prima facie burden; that Garden City identified several legitimate non-discriminatory interests—namely, eliminating office use; reducing traffic; facilitating the development of townhouses; and controlling overcrowding in public schools; and that Garden City failed to meet its burden in demonstrating “the absence of a less discriminatory alternative.” MHANY Mgmt., 985 F. Supp. 2d at 427–28. To that end, the Court found that R-M zoning was a less discriminatory alternative that would have reduced traffic and provided for the construction of townhouses.
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The Court entered its final judgment on April 22, 2014. Garden City filed its appeal on May 5, 2014.
2. The Second Circuit’s Decision On March 23, 2016, the Second Circuit issued its decision. On the issue of disparate impact, the Second Circuit held that this Court employed the incorrect burden-shifting standard. Instead of employing the Huntington Branch standard, the Circuit stated that the Court should have utilized the standard announced by the Secretary of Housing and Urban Development (“HUD”) in 2013, see Implementation of the Fair Housing Act’s Discriminatory Effects Standard, 78 Fed. Reg. 11,460 (Feb. 15, 2013) (codified at 24 C.F.R. § 100.500), because that standard abrogated the Second Circuit precedent. See Mhany Mgmt., 819 F.3d at 618–20 (citing, inter alia, Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984) (holding that where Congress is silent on the question at issue, courts must defer to an agency’s reasonable interpretation of a statute)). The Circuit court found that the statute was ambiguous on the relative burdens of the parties, and therefore HUD’s interpretation was entitled to deference. Id. at 619. Under HUD’s framework, the first two steps of the burden-shifting analysis are “substantially the same as in our case law . . . .” Id. at 617. At the first step, the plaintiff must present a prima facie case of disparate impact. The burden then shifts to the defendant to demonstrate that the “challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant.” 24 C.F.R. § 100.500(c)(1)–(2). Of importance, at the third step, unlike in Huntington Branch, the burden shifts back to the plaintiff to prove that the defendant’s “substantial, legitimate, nondiscriminatory
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interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.” Id. at § 100.500(c)(3).
The Circuit court held that the “[P]laintiffs more than established a prima facie case[,] . . . [and the] Defendants identified legitimate, bona fide governmental interests, such as increased traffic and strain on public schools.” Mhany, 819 F.3d at 620. However, the Court remanded the case “for consideration of whether [the] Plaintiffs satisfied their burden of proving an available alternative practice that has less disparate impact and serves [the] Defendants’ legitimate, nondiscriminatory interests.” Id. at 619.
II. DISCUSSION A. As to Which Issues Are Before This Court
1. As to the Plaintiffs’ Prima Facie Case Garden City contends that “this Court must [] re-examine the Plaintiff’s prima facie disparate impact case under 24 C.F.R. [§] 100.500(c)(1) as well as [] (c)(3).” (Defs.’ Mem. of Law in Opp’n to Pls.’ Suppl. Post-Trial Memorandum of Law (“Defs.’ Mem of Law”) (ECF No. 514) at 10). However, the Plaintiffs argue that the issue is not before the Court on remand. The Court finds that is unable to re-examine the Plaintiffs’ prima facie case because the Second Circuit explicitly affirmed this Court’s finding that the Plaintiffs met their prima facie burden, and the law of the case prevents the Court from relitigating the issue. The law of the case doctrine has two parts. The first, applicable here, is the mandate rule. “The mandate rule ‘compels compliance on remand with the dictates of the superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.’” United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001) (quoting United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (alterations omitted)). “[T]o determine whether an issue remains open for
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reconsideration on remand, the trial court should look to both the specific dictates of the remand order as well as the broader ‘spirit of the mandate.” Parmalat Capital Fin. Ltd. v. Bank of Am. Corp., 671 F.3d 261, 270 (2d Cir. 2012) (internal citations and quotation marks omitted).
Here, the Second Circuit explicitly stated that it “agree[d] with the district court’s assessment that plaintiffs more than established a prima facie case[,] . . . [and] that Defendants identified legitimate, bona fide governmental interests, such as increased traffic and strain on public schools. But . . . we remand for consideration of whether Plaintiffs met their burden under § 100.500(c)(3).” Mhany, 819 F.3d at 620. In its conclusion, the Second Circuit reiterated that on remand the Court was to consider “whether [P]laintiffs have met their burden of proving that the ‘substantial[,] legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.’” Id. at 624–25 (quoting 20 C.F.R. § 100.500(c)(3)).
The Court also disagrees with Garden City’s contention that this Court must reevaluate the Plaintiffs’ prima facie case in light of the Supreme Court’s decision in Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., ––– U.S. ––––, 135 S. Ct. 2507, 2518, 192 L. Ed. 2d 514 (2015). The Second Circuit was aware of Inclusive Communities, as it had been decided before the Second Circuit issued its decision, and the Circuit court cited to Inclusive Communities in its decision. The Second Circuit also requested additional briefings from the parties on the issues raised in Inclusive Communities, but nevertheless found that the Plaintiffs more than established a prima facie case, and remanded for this Court to consider solely whether the Plaintiffs met their burden under 24 C.F.R. §100.500(c)(3).
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Therefore, because this Court is confined to the issues remanded by the Second Circuit and is obliged to follow that Court’s rulings on issues explicitly decided, the Court cannot reexamine the Plaintiffs’ prima facie case.
2. As to the Defendants’ Substantial, Legitimate, Nondiscriminatory Interests The Second Circuit found that Garden City met its burden at step two. Therefore, the Court need not reengage in an analysis of whether the Village met its burden at step two. Specifically, the Circuit court said that the “Defendants identified legitimate, bona fide governmental interests, such as increased traffic and strain on public schools.” Mhany, 819 F.3d at 620. As the Village only needed to show that “that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests,” 24 C.F.R. §100.500(c)(2) (emphasis added), it has more than met its burden. The Second Circuit remanded the case solely for the Court to consider whether the Plaintiffs met their burden at step three. Therefore, the Court will follow the mandate of the appellate court, and will not reexamine whether Garden City met its burden at step two. B. As to Whether the Plaintiffs Met Their Burden Under 24 C.F.R. § 100.500(c)(3) at Trial Garden City initially contends that the Plaintiffs did not prove that R-M zoning is a less discriminatory alternative. Furthermore, Garden City contends that the R-M zoning controls would not have met the Village’s interests in controlling traffic; minimizing school overcrowding; developing townhouses; maintaining the character of the area; and creating a transition zone. The Village bases these arguments on its interpretation of the HUD standard, which it asks this Court to follow. The Village states that the HUD standard requires the Plaintiffs to prove that the R-M zoning would serve the Village’s “legitimate interests to at least the same or a greater degree.” (Defs.’ Mem. of Law at 5). In opposition, the Plaintiffs argue that only two of the Village’s
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interests were validated by the Second Circuit’s decision; namely, controlling overcrowding in schools, and decreasing traffic. The Plaintiffs vociferously dispute the Village’s position that the less discriminatory alternative must be equally effective; instead, they contend that they must prove that the Village’s interests “could be served” by the less discriminatory alternative, and would “effectively address [the Village’s] concerns.” 78 Fed. Reg. 11,460, 11,473. To that end, the Plaintiffs state that they met their burden at trial as to each of the Village’s proffered interests. The Court finds that the Plaintiffs have met their burden in showing that R-M zoning would have served the Defendants’ interests in not overburdening public schools, and reducing traffic—which were the only two of the Defendants’ interests which survived the Second Circuit’s decision. See infra Section B.2.
1. As to Whether R-M Zoning Controls Would Have A Less Discriminatory Effect Than R-T Zoning Controls This Court previously held that R-M zoning would have provided for a significantly larger percentage of minority households than the pool of potential renters in the R-T zoning. As the Court said in its post-trial decision, “[i]n this regard, the Plaintiffs established that the change from the proposed R–M zoning to the adopted R–T zoning affected minority residents to a greater degree.” MHANY Mgmt., 985 F. Supp. 2d at 415; see also id. at 425 (“Since the R–T zone largely eliminated the potential for the type of housing that minorities were disproportionally likely to need—namely, affordable rental units, the Court finds that minorities bore the brunt of the negative impacts of the R–T zone.” (internal citations to the record omitted)). In this regard, the Court referenced testimony by Ismene Speliotis (“Speliotis”), the Executive Director of NYAHC/MHANY, who testified that “one could not build any measurable number of affordable housing units under that [R-T] zoning[,]” (Tr. at 1474–75; Joint Ex. 29, at 451), while it would have been financially feasible to build 45 to 78 affordable housing units under
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the R-M controls. The Court accepted the Speliotis testimony as credible, including her statement that minority households would have been able to afford the affordable housing units. Further, the Court stated:
by blocking Section 8 Housing from being built on the Social Services Site, the Court finds that R–T zoning prevented the overwhelmingly African–American and Hispanic households on the Nassau County Section 8 waiting list from being able to live in Garden City. Again, African–American and Hispanic households comprised 88% of the Section 8 rental housing waiting list in Nassau County, even though they comprised only 14.8% of the households in Nassau County. Under MHANY’s alternative proposals developed under the R–M zoning controls, up to 78 section 8 units could have been built, and up to 69 minority families could have afforded to live there. MHANY Mgmt., 985 F. Supp. 2d at 426. The Court therefore found that the R-M zoning would create more affordable housing units available to minorities than the R-T zoning. The Court finds no reason to depart from its previous findings, and accordingly holds that R-M zoning controls would have a less discriminatory effect than R-T zoning controls. The Court now turns to whether R-M zoning controls would serve Garden City’s legitimate, substantial, non-discriminatory interests. 2. As to Which Interests This Court May Consider Garden City argues that this Court must evaluate whether the Plaintiffs met their burden as to each of the interests advanced by the Village. The Village bases this contention on the Second Circuit’s statement that the “Defendants identified legitimate, bona fide governmental interests, such as increased traffic and strain on public schools.” Mhany, 819 F.3d at 620. The Village interprets this to mean that “[t]he Second Circuit’s use of the term ‘such as’ clearly implies that all of the Village’s concerns were legitimate.” (Defs.’ Mem. of Law at 14). The Village further states that even if this Court implicitly rejected several of its interests in its post-trial decision, the Court must now reevaluate each of the interests. The Court finds that the Second Circuit either explicitly
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or implicitly indicated that the Village’s interests related to transition, townhouses, and character were either not actual interests, or were not legitimate, substantial, or non-discriminatory interests.
While this Court found that Garden City’s interest in creating townhouses was substantial and legitimate, and that R-T zoning was necessary for their creation, MHANY Mgmt., 985 F. Supp. 2d at 419, the Second Circuit disagreed. As to the development of townhouses, the Court said:
there is minimal evidence in the record that Garden City had any real interest in adding townhouses as a residential form prior to the rise in public opposition to R– M zoning. . . . R–T zoning was not actually necessary to further this goal, nor did it actually accomplish it. Fish and Filippon both testified that townhouses would have been permissible as a residential form even under R–M zoning. Similarly, R– T zoning did not actually “promote” townhouses, as Fairhaven, the winning bidder for the Social Services Site, planned to develop single-family homes. Id. at 614. Therefore, the Second Circuit explicitly held that building townhouses was not a legitimate interest of Garden City, and that R-T zoning was not necessary to achieve it. Although the Plaintiffs engage in an analysis of the Village’s interest in townhouses, this Court finds that such an analysis is unnecessary because of the Second Circuit’s holding. Accordingly, this Court cannot consider the Village’s interest in creating townhouses. Similarly, the Circuit court found that R-T zoning was not necessary to achieve a transition zone, and that Garden City’s actions showed that it was not a legitimate interest. Specifically, the Circuit court said, “[t]he same logic also undermines Garden City’s purported interest in using R– T as a transition zone between single-family homes and the commercial district abutting the Social Services Site. Multi-family housing would have provided a similar transition and the ultimate selection of Fairhaven meant no transition at all.” Id. That is, R-T zoning was not necessary to create a transition zone because R-M also accomplished it, and Garden City cannot now state that it had an interest in transition if its eventual plan did not include transition. Therefore, the Court cannot consider Garden City’s interest in creating a transition zone at step three.
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Finally, the Court reads the Second Circuit’s opinion to hold that maintaining the character of a neighborhood is not a substantial, legitimate, nondiscriminatory interest, because the Second Circuit implicitly found that it was a discriminatory interest in this instance. The Circuit court stated that the “comments of Garden City residents employ recognized code words about lowincome, minority housing,” Mhany, 819 F.3d at 609, and specifically referenced the residents’ use of the word “character,” id. at 609 n.5 (“Indeed, Yonkers I implicitly recognized the relevance of code words in the context of legislators acting responsively to citizen animus by specifically invoking residents’ use of words like “character.” (citing United States v. Yonkers Bd. of Educ. (“Yonkers I”), 837 F.2d 1181, 1192 (2d Cir. 1987)); see also id. at 611 (“[E]mploying the code words apparently employed by Garden City residents, Trustee Negri testified that housing occupied by low-income minorities is not consistent with the ‘character’ of Garden City. . . . [T]he district court was entitled to conclude, based on the Arlington Heights factors, that something was amiss here, and that Garden City’s abrupt shift in zoning in the face of vocal citizen opposition to changing the character of Garden City represented acquiescence to race-based animus.” (emphasis added, internal citation omitted)). Therefore, because the Second Circuit found that Garden City’s interest in maintaining the character of a neighborhood was a veil for race-based animus, it is necessarily not a substantial, legitimate, nondiscriminatory interest and this Court is foreclosed from considering it.
As stated earlier, “to determine whether an issue remains open for reconsideration on remand, the trial court should look to both the specific dictates of the remand order as well as the broader ‘spirit of the mandate.” Parmalat Capital Fin., 671 F.3d at 270 (internal citations and quotation marks omitted). Although the Second Circuit did not clearly analyze the Village’s interest in maintaining the character of the neighborhood in the portion of its decision discussing
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the Village’s substantial, legitimate, non-discriminatory interests, the appellate court’s decision nevertheless compels the conclusion that the proffered character interest does not meet that standard. It is clear that the spirit of the Second Circuit’s mandate is for this Court to exclude from its consideration the proffered interest in maintaining the character of the neighborhood.
It is also irrelevant that the Second Circuit’s analysis of the above interests was conducted in its evaluation of this Court’s mixed motive analysis of the Plaintiffs’ disparate treatment claims. The Court can only consider interests advanced by the Defendants that are substantial, legitimate, and non-discriminatory. Those interests “must be supported by evidence and may not be hypothetical or speculative.” 20 C.F.R. § 100.500(b)(2). The Second Circuit held that the above interests did not meet those standards, and it is immaterial that it did so while separate and apart from its analysis of the Plaintiffs’ disparate impact claims.
Accordingly, the Court will only consider the Village’s interests in minimizing traffic and school overcrowding in determining whether the Plaintiffs met their burden at the third step of the burden shifting analysis, codified at 20 C.F.R. § 100.500(c)(3).
3. As to Whether the Less Discriminatory Alternative Must be “Equally Effective” in Meeting the Defendants’ Interests as the Challenged Practice The Defendants ask this Court to analyze whether R-M zoning would have been as equally effective as R-T zoning in serving the Village’s interests. In opposition, the Plaintiffs urge this Court to follow the language of the statute and evaluate whether R-M zoning would have served the Village’s interests. The Court finds that it must follow the clear language of the statute and HUD’s interpretation. In determining the Plaintiffs’ burden at step three, the Court first looks to the plain language of the statute. It states that:
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If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this section, the charging party or plaintiff may still prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.
24 C.F.R. § 100.500(c)(3). The operative term in the statute, for the purposes of the current
analysis is “could be served.”
The Court also looks to HUD’s interpretation and implementation of the FHA
discriminatory effects standard. See Implementation of the Fair Housing Act’s Discriminatory
Effects Standard, 78 Fed. Reg. 11,460. In its implementation statement, HUD expressly rejected
the standard which Garden City asks this Court to apply. HUD stated that:
HUD does not believe the rule’s language needs to be further revised to state that the less discriminatory alternative must be “equally effective,” or “at least as effective,” in serving the respondent’s or defendant’s interests; the current language already states that the less discriminatory alternative must serve the respondent’s or defendant’s interests, and the current language is consistent with the Joint Policy Statement, with Congress’s codification of the disparate impact standard in the employment context, [citing 42 U.S.C. 2000e-2(k)(1)(A)(i) (“the concept of ‘alternative employment practice’” under Title VII “shall be in accordance with the law as it existed on June 4, 1989”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975) (“[I]t remains open to the complaining party to show that other tests or selection devises, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest.”)], and with judicial interpretations of the Fair Housing Act. [citing Darst-Webbe Tenant Ass’n Bd. v. St. Louis Hous. Auth., 417 F.3d 898, 906 (8th Cir. 2005) (“plaintiffs must offer a viable alternative that satisfies the Housing Authority’s legitimate policy objectives while reducing the [challenged practice's] discriminatory impact”); Huntington Branch, 844 F.2d at 939 (analyzing whether the “[t]own’s goal . . . can be achieved by less discriminatory means”); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 159 (3d Cir. 1977); (it must be analyzed whether an alternative “could be adopted that would enable [the defendant’s] interest to be served with less discriminatory impact.”)]. The additional modifier “equally effective,” borrowed from the superseded Wards Cove case, is even less appropriate in the housing context than in the employment area in light of the wider range and variety of practices covered by the Act that are not readily quantifiable. For a similar reason, HUD does not adopt the suggestion that the less discriminatory alternative proffered by the charging party or plaintiff must be accepted unless it creates an “undue hardship” on the respondent or defendant. The “undue hardship” standard,
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which is borrowed from the reasonable accommodation doctrine in disability law, would place too heavy a burden on the respondent or defendant. Id. at 11,473. HUD’s interpretation could not be clearer that a plaintiff’s burden under 24 C.F.R. §100.500(c)(3) is not to show that the less discriminatory practice would be equally effective, but merely that it must serve a defendant’s legitimate interests. See Prop. Cas. Insurers Ass'n of Am. v. Donovan, 66 F. Supp. 3d 1018, 1052 (N.D. Ill. 2014) (“[I]n Wards Cove, the Supreme Court held that any alternative practice the plaintiff offered in the third step must be ‘equally effective’ as the challenged practice. HUD, on the other hand, has determined that an ‘equally effective’ standard is inappropriate.”). While HUD’s interpretation says that the less discriminatory alternative “must serve” a defendant’s interests, it is clear that this is guidance on the level of certainty, or the level of proof, that a plaintiff must show. That is, as HUD also stated in its Rules and Regulations, “a less discriminatory alternative must serve the respondent’s or defendant’s substantial, legitimate nondiscriminatory interests, must be supported by evidence, and may not be hypothetical or speculative.” 78 Fed. Reg. at 11,473. As explicitly stated in HUD’s interpretation, this does not mean that the less discriminatory alternative must be equally effective in serving the defendant’s interests. As stated in the quoted language above, HUD clarified that the language of the statute was consistent with the Joint Policy Statement on Discrimination in Lending (the “Joint Policy”), 59 Fed. Reg. 18,266. The Joint Policy similarly states that “if a policy or practice that has a disparate impact on a prohibited basis can be justified by business necessity, it still may be found to be discriminatory if an alternative policy or practice could serve the same purpose with less discriminatory effect.” Id. at 18,269. Surprisingly, the Village states that “[t]his is the only instance where HUD . . . can garner support for [its] interpretive argument of Section 100.500(c)(3).” (Defs.’ Mem. of Law at 7). By that statement, it appears that Garden City asks
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this Court to disregard the agency interpretation of the statute. That is, the Village asks this Court to find that the Plaintiffs must prove that R-M zoning would have been equally effective in meeting the Village’s interests as R-T zoning, despite HUD’s statement that such a standard is inappropriate in a housing discrimination case. The Court declines to do so. The Second Circuit explicitly stated that, on the issue of disparate impact under the FHA, “[b]ecause we did not hold that the statute was unambiguous, we are obliged to defer to the more recent HUD regulations.” Mhany Mgmt., 819 F.3d at 619 (citing Tsombanidis, 352 F.3d at 575; Huntington Branch, 844 F.2d at 936). The same holds true here. HUD’s reasonable interpretation is entitled to deference.
Finally, contrary to Garden City’s assertions, courts have not imposed a heightened standard on plaintiffs at the third step in disparate impact cases under 24 C.F.R. § 100.500. Indeed, courts have followed the plain language of the statute. See Inclusive Communities Project, 135 S. Ct. at 2518 (“[B]efore rejecting a . . . public interest[,] a court must determine that a plaintiff has shown that there is ‘an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.’” (quoting Ricci v. DeStefano, 557 U.S. 557, 578, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009))); Keller v. City of Fremont, 719 F.3d 931, 949 (8th Cir. 2013) (“[W]hether plaintiffs can show that ‘a viable alternative means was available to achieve the legitimate policy objective without discriminatory effects.’” (quoting Gallagher v. Magner, 619 F.3d 823, 834 (8th Cir. 2010))); Theodora Rescue Comm. v. Volunteers of Am. of Washington, No. C14-0981RSL, 2014 WL 5782328, at *4 (W.D. Wash. Nov. 6, 2014) (“Even if the Court assumes that the Ninth Circuit will ultimately allow plaintiffs to rebut a showing of business necessity simply by identifying an alternative act or practice that would serve the identified interests with less discriminatory impact, plaintiff has not made that showing.” (internal citations omitted, emphasis added)); Oviedo Town Ctr. II, L.L.L.P. v. City of Oviedo, Florida, No.
17

Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 18 of 25 PageID #: 14133
616CV1005ORL37GJK, 2017 WL 3621940, at *4 (M.D. Fla. Aug. 23, 2017) (“If the defendant satisfies its burden, the plaintiff may still prevail by proving that the defendant’s interests could be served by another practice that has a less discriminatory effect.” (citing 24 C.F.R. § 100.500(c)(3)); Inclusive Communities Project, Inc. v. Lincoln Prop. Co., No. 3:17-CV-206-K, 2017 WL 3498335, at *9 (N.D. Tex. Aug. 16, 2017) (“If the defendant meets its burden, the plaintiff must then show that the defendant's interests could be served by another practice that has a less discriminatory alternative” (citing 24 C.F.R. § 100.500(c)(3))).
Therefore the Court will not consider whether R-M zoning would be as equally effective as R-T zoning in serving Garden City’s interests. Instead, the Court will follow the language of the statute and the case law, and consider whether R-T zoning would have served Garden City’s interests.
4. As to Whether R-M Zoning Would Serve Garden City’s Interest in Minimizing School Overcrowding The Plaintiffs contend that the evidence is clear that R-M zoning would have produced fewer schoolchildren than R-T zoning. In opposition, Garden City asks the Court to find that RM zoning would not have met Garden City’s interest because there would have been more school children than under the R-T zoning. Initially, the Court must inquire into what was the precise nature of Garden City’s interest. When BFJ outlined the initial principles for the redevelopment of the P zone, it stated that any development should “not overburden roads, utilities, and schools.” (Tr. at 239–41). During community hearings, residents expressed concerns about the impacts of residential units on schools. At the February 5, 2004 hearing, residents objected to, among other items, “overburdened and overcrowded” schools. (Id. at 912).
18

Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 19 of 25 PageID #: 14134
The Second Circuit referred to the interest as the “strain on public schools.” Mhany Mgmt., 819 F.3d at 620. Garden City classified the interest in its memorandum of law as the “impact on schools.” (Defs.’ Mem. of Law at 16).
The Court notes that this interest is somewhat different than the analysis regarding traffic, because there were no school age children living in the Social Services Site. As the Social Services Site was used for government buildings, any change in zoning that resulted in the development of residential units would necessarily increase the number of school children in the area. This is distinct from the traffic situation discussed later in this opinion, because the Social Services Site generated a significant amount of traffic.
Therefore, Garden City’s interest was ensuring that public schools would not be overburdened or strained. In the Court’s view, the Plaintiffs proved at trial that R-M zoning would not have overburdened or strained public schools.
There was substantial evidence in the record so support this conclusion. In July 2003, BFJ issued a revised study comparing the development of 311 apartment units or 75 single-family homes. The July 2003 report stated that “[t]here would be a smaller number of school children generated by the new development than with the development of single-family homes.” (Joint Ex. 7). The September 2003 Environmental Assessment Form (“EAF”) similarly stated that 133 single family homes would generate 133 students, while 355 apartments would generate between 71 and 107 students. (Joint Ex. 9 at 575; see also Tr. at 300 (Fish testified that it was true and still held true at the time of trial that R-M zoning would generate fewer school children than single family homes)). The EAF concluded that multi-family housing at the Social Services Site would have a minimal impact on schools.
19

Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 20 of 25 PageID #: 14135
BFJ and Fish based those numbers on the estimate that each multifamily unit would generate approximately 0.2 to 0.3 schoolchildren per unit. (See Joint Ex. 22 at 691 (“With a community aimed at young couples and empty nesters there could be as few as 0.2 to 0.3 public school children per unit.”)). In comparison, Fish estimated that single family homes would, on average, produce one school child per home. Therefore, under Fish’s estimates, 90 single family homes would have produced 90 additional schoolchildren, while 311 multifamily units would have generated between 62 and 93 schoolchildren.
The record is clear that in 2003, the Village’s schools could have accommodated as many as 565 additional students. (Joint Ex. 14 at 140; Tr. at 353–54). Therefore, neither R-M zoning nor R-T zoning would have overburdened or strained the public schools.
Garden City’s argument centers on a hypothetical—“what if” the residential mix in the multifamily units changed ever so slightly to produce 0.4 to 0.5 schoolchildren per unit. While it was not their burden, Garden City did not produce any evidence showing that such a ratio was likely. That is, Garden City does not offer any proof to rebut the Plaintiffs’ statistical evaluation. BFJ’s statistical estimate of 0.2 to 0.3 was higher than the ratio of .05 to .075 that Fish and BFJ had originally proposed at the outset of the development process. The latter ratio was “[b]ased upon [BFJ’s] experience with other high-end condo and rental developments (e.g. Avalon).” (Pls.’ Ex. 386 at 745 (which projected that 440 multifamily residential units would produce about 50 public school children)). There was also evidence that the Wyndham development in Garden City had a ratio of 0.06 schoolchildren per unit—there were fewer than 20 schoolchildren in 312 apartment units. (Joint Ex. 12 at 924). Trustee Bee similarly reiterated at community meetings that the Board and BFJ had reasonably predicted that multifamily housing would have less of an
20

Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 21 of 25 PageID #: 14136
impact on schools than single family housing because relatively few schoolchildren lived in multifamily developments in Garden City, such as the Wyndham development.
However, if the Court were to engage in the hypothetical put forward by Garden City the public schools would still not be overburdened; 0.4 to 0.5 schoolchildren per unit in a 311 unit building would produce 124 to 156 additional students. As stated above, Garden City public schools had the capacity to handle 565 additional students.
Therefore, the Court finds that the Plaintiffs met their burden at trial in proving that R-M zoning could have served Garden City’s interest in not overburdening schools.
5. As to Whether R-M Zoning Would Serve Garden City’s Interest in Controlling Traffic With regard to this interest, Garden City urges the Court to analyze whether R-M zoning would have created more traffic than R-T zoning. Conversely, the Plaintiffs argue that the correct analysis is whether R-M zoning would have less traffic than the P zone. The Court finds that Garden City’s interest, in reducing traffic from the levels that existed under the P zone, could have been served by R-M zoning. Again, the Court will first attempt to discern the precise nature of Garden City’s interest. It is clear that the Court must engage in this inquiry, because Garden City was unable to clearly articulate its precise interest in this regard in its memorandum of law. At different points in its memorandum, the Village referred to the interest in various ways: namely as “reduction in traffic,” (Defs.’ Mem. of Law at 12), “concern about traffic,” (id. at 15), “interest in minimizing traffic,” (id.), and “controlling traffic,” (id. at 16). As to the evidence of this interest in the record, it appears that one of the first references, if not the first reference to traffic was in the September 2002 fax. In that fax, which outlines BFJ’s principles of development, BFJ stated that the goals of the zoning change included not
21

Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 22 of 25 PageID #: 14137
overburdening roads. At community hearings, residents complained about the possible impact of the apartment buildings on traffic. At the January 8, 2004 hearing residents voiced concerns about the generation of traffic. After residents complained about the possible traffic problems at community hearings, BFJ modified its zoning proposal to “minimize traffic impacts.”
The Court notes that the Village’s initial concerns related to controlling traffic—both the residents and BFJ wanted to ensure that traffic would not increase. However, once residents began complaining about traffic and the character of the neighborhood, BFJ changed its proposal to indicate that it wanted to “minimize traffic impacts.” Said differently, it is not clear to the Court that “minimizing traffic” was a substantial interest of Garden City’s until residents voiced their concerns, which the Second Circuit found were thinly veiled racial complaints. Instead, the record shows that Garden City was always interested in not increasing traffic or overburdening the roads as a result of the redevelopment. Apparently, “minimizing traffic,” rather than not increasing traffic, became a post-hoc rationale for adopting R-T zoning instead of R-M in response to resident concerns. The Second Circuit summarized this situation:
While the district court recognized this evidence, it also noted that traffic concerns became important to Garden City officials only after the increase in public opposition to affordable housing. Indeed, when residents raised questions regarding traffic from R–M zoning in 2003 and early 2004, Garden City officials repeatedly dismissed these concerns. Indeed, Suozzi, agreeing with Garden City officials at earlier presentations, criticized traffic-related concerns regarding R–M zoning as “irrational.” Mhany Mgmt., 819 F.3d at 614. Again, the Court sees no reason to depart from its earlier findings. As to the precise nature of the Village’s substantial, legitimate, non-discriminatory interest with respect to traffic, the Second Circuit classified it as “increased traffic.” Id. at 620. This Court interprets “increased traffic” to mean that Garden City was concerned that R-M zoning would create more traffic than the P zoning, which is this Court’s finding that Garden City’s interest is in
22

Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 23 of 25 PageID #: 14138
“reducing traffic” as compared to P zoning. MHANY Mgmt., 985 F. Supp. 2d at 427 (finding that the Defendants had not met their burden in establishing the absence of a less discriminatory alternative because, inter alia, “R–M zoning would have reduced traffic significantly as compared to the P-zone.”). The Court finds no reason to depart from its previous analysis, or from the implicit guidance of the Second Circuit. Therefore, the Court will analyze whether either R-M or R-T zoning would have reduced traffic in relation to the conditions under the P zone, consistent with its prior holding and the Second Circuit guidance.
As stated above, this Court found in its post-trial decision, “R-M zoning would have reduced traffic significantly as compared to the P-zone.” Id. at 428. The evidence supported this conclusion. The EAF stated that a multifamily development at the Social Services Site would not result in the generation of traffic significantly above levels present under P zoning. (Tr. at 290). At the February 5, 2004 public hearing, Suozzi told residents that their concerns about traffic were “irrational.” (Id. at 908). On October 23, 2003, BFJ told residents that traffic would be reduced relative to existing uses. On January 8, 2004, at a public hearing, Filippon responded to citizen concerns about traffic by saying, “If I could just add on this point of traffic . . . You have to remember that the existing use on that site now generates a certain amount of traffic, a fair amount of traffic. That use is going to be vacated. The two residential uses that are being proposed as one of the alternates, each of which on their face automatically generate far less traffic than the existing use.” (Joint Ex. 24, at 875).
Garden City’s zoning expert, Patrick Cleary, testified that the two biggest generators of traffic are office buildings and multi-residential housing. To that end, Cleary also testified that Garden City did not need to enact R-T zoning to eliminate office buildings—that R-M zoning controls, without CO-5(b) zoning, would also have eliminated office buildings. (Tr. at 1880).
23

Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 24 of 25 PageID #: 14139
Furthermore, Fish testified at the trial that, using conservative estimates, eliminating multi-family housing only reduced peak traffic by 3%. Therefore, the elimination of the government office buildings and the development of residential housing would have reduced traffic, whether the residences were single or multi family. As the Second Circuit stated, “any decrease in traffic between R–M and R–T zoning was de minimis.” Mhany Mgmt., 819 F.3d at 614. While the Village points to the April 22, 2004 BFJ presentation to show that R-M zoning would have resulted in twice as many car trips as R-T zoning, the Court previously questioned the credibility of that presentation. In any event, the Court notes that the BFJ study showed that office use generated 50% more traffic than the planned multi residential use. As the Second Circuit pointed out, the BFJ presentation “was only prepared after the public meetings, and the district court reasonably questioned the credibility of figures potentially created to justify a particular result.” Id.
As stated above, the question under the FHA and HUD’s regulations is not whether R-M zoning is equally effective in reducing traffic as R-T zoning. Instead, the Plaintiffs burden was to show that R-M zoning would have served the Village’s interests. 24 C.F.R. 100.500(c)(3); Inclusive Communities Project, 135 S. Ct. at 2518; 78 Fed. Reg. 11,460, 11,473. Said differently, in the Court’s view, in order for the Plaintiffs to meet their burden, they did not have to show that R-M zoning would reduce traffic as much as R-T zoning, just that it would reduce traffic below the levels that existed under P zoning. The Plaintiffs have established that. Garden City wanted to build a new development and reduce traffic. The Court finds that both the R-M zoning and the R-T zoning would have reduced traffic below the levels at the P zone.
Therefore, the Court finds that the Plaintiffs met their burden at trial in proving that R-M zoning could have served the Village’s interest in reducing traffic.
24

Case 2:05-cv-02301-ADS-ARL Document 550 Filed 09/19/17 Page 25 of 25 PageID #: 14140
III. CONCLUSION For the foregoing reasons, the Court finds that the Plaintiffs met their burden at trial in establishing that Garden City’s legitimate, substantial, non-discriminatory interests in not overburdening public schools and reducing traffic could have been served by R-M zoning. The Court confirms its finding, that the adoption of R-T zoning instead of R-M zoning had a disparate impact on minorities in Garden City. This matter is respectfully referred to Magistrate Judge Arlene R. Lindsay for the conclusion of discovery on the Plaintiffs’ “steering” claims under the FHA and Title VII.

It is SO ORDERED: Dated: Central Islip, New York
September 19, 2017

___/s/ Arthur D. Spatt___ ARTHUR D. SPATT
United States District Judge

25

 
 Case 2:05-cv-02301-ADS-ARL Document 628 Filed 03/18/19 Page 1 of 4 PageID #: 15887 Case 2:05-cv-02301-ADS-ARL Document 626 Filed 03/15/19 Page 1 of 4 PagelD #: 15864

UNITED ST ATES DISTRICT COURT EASTE~"I DISTRICT OF NEW YORK - •• - • - - - - - - - - - • - - - . - - •• - •. - - - - - • - - - • - - • -X MHANY MANAGEMENT INC .•
PLAlNTJFF.

FILED
IN CLERKS c:=FICE U.S. 0iSTR1CT COUHT E.O.N.Y.
* * MAR 18 2019
LONG ISLAND OFFICE

-and-

NEW YORK COMMUNlTlES FOR CHANGE, INC.. 05-CV-2301 (ADS) (ARL)

-against-

INTERVENOR-PLAINTIFF,

SO-ORDERED
STIPULATION OF DISCONTINUANCE

COUNTY OF NASSAU. L\JCORPORA TED VILLAGE: OF GARDEN CITY. AND GARDEN CITY BOARD OF TRUSTEES,

DEFENDANTS.

- - ••• - - • - • - - - • - - - • - - - - . - - - • - - • - • - • - - - - • -X

IT IS HEREBY STIPULATED Al\D AGREED. by and between the undersign~d. as
follows:

I. The abo\·e-caplioncd action is hereby discontinued with prejudic~. except \\'i(hout

prejudice to this Coun's ret~ntion of jurisdic1ion as set ClUl in paragraph 2 belo\\'. and without

costs or t:xpenses to any pany except as specifically provided lbr in th~ Settlem~nt Agr~mc:nt

attadu.-d hereto.

2. The Coun shall retain jurisdiction in this rnattt!r for th~ purpose of interprctalion or

cnforccmcm of the Settlement Agreement. This Stipulation may be So Ordered for the purpose

of th~ Coun retaining said juri.sdictiun; howc:vc:r. the attach~d Seulement Agreement is not

incorporatc:d <.)r merged in this stipulation, and said Sc:ul~mc:nr Agrcc:mc:m shall not become or be

considerc..-d an Ord~r of the Court in the event this stipulation is Sll Ordered.

Case 2:05-cv-02301-ADS-ARL Document 628 Filed 03/18/19 Page 2 of 4 PageID #: 15888 Case 2:05-cv-02301-ADS-ARL Document 626 Filed 03/15/19 Page 2 of 4 PagelD #: 15865

J. This stipulation of discontinuance may be CXt."\;Ulr!d in counrerpans. and facsimile llr .pdf

signatures shall be deemed original.
Dated: r1t;1,..c~ f/ .2019

Datc:d: _ _ _ _ _ _ _• 2019

~A----
OFFICE OF THE NASSAU COUNTY ATTORNEY 1 West Street Minc:ola. NY t I50 I Telq,hom:: (516) 571-3056

Stnnky J. Brown Cha\'u Brandriss HOGAN LOVELLS US LLP 875 Third A\'enuc Ne"'· York. New York 10021 Telephonl!: (212} 918-3000
Dated: _ _ _ _ _ _ _. 2019

. cppein Qt:ATELA CHIMERIA PLLC 8S8 V~tc:rans Memorial Highway. Suit«: 530 Hauppaugc:, NY 11788 Tclc..-phonc:: {631) 482·9700
Atton,cysjor D.:fenda11t Cc,1111~\' o{Nll.fSCJ.tl

Thomas Sih crst«=in LAWYERS COMMITTEE FOR CJ\'IL RIGHTS UNDER THE LAW 1S00 K S1rc:c!t. N.W. Suite 900 Washmgton 20005 Telc:phon _02) 662-8600

SO ORDERED:
Hon. Anhur D. Spau

Frederick K. Br~u·ington LA\\/ OFFICES OF BREWINGTON 556 Peninsula Bl\'d Hempstead. NY 11550 Telephone (516) 489.6959 At1orm1·.fjor All Plcmuijfi-
2

Case 2:05-cv-02301-ADS-ARL Document 628 Filed 03/18/19 Page 3 of 4 PageID #: 15889 Case 2:05-cv-02301-ADS-ARL Document 626 Filed 03/15/19 Page 3 of 4 PagelD #: 15866

3. This sripulation of discontinuan~c may be c:.xt:~uti::d in counterpan~. and fo~simile or .pdf

signatures shall be deemed original.

-· 2019

Dated: _ _ _ _ _ _ _ _, :Wl9

1 West Stn:ct Minetlla. NY l 1501 Telt:phonc: (516) 571-3056

Stanh:y J. Brown Chava Brandriss HOGA?\ LOVELLS US LLP 875 Third Avenue New York. New York I 0022 Teleph~)nc: (212) 918-3000

c:ppein QL'ATELA CHJMERIA PLLC 888 Veterans Memorial Highway. Suite 530 Hauppauge, NY 11788 Tclcplmnc: (631) 482-9700

Thomas Sih erstcin LAWYERS COMMITTEE FOR CIVJL R~HTSUNDERTHELAW I 500 K Strc:c:1, N.W. Suit( 900 Washington. DC' 20005 TcJc:phonc: (202) 662-8600

Dated: _________. 2019

SO ORDERED:

Frl!d~rick K. Bri:wingtnn LA\\' OFFICES OF FREDERICK K. BRE\\'INGTON 556 Penin~ulu 81\'d Hc:mpslt:dtl. NY I J 550 Telephone (516) 489-6959
Attvm,:_,·.\·.for All Plw111UI.-..

·--------··
HllO, Arthur D. Span

--

··-

2

Case 2:05-cv-02301-ADS-ARL Document 628 Filed 03/18/19 Page 4 of 4 PageID #: 15890 Case 2:05-cv-02301-ADS-ARL Document 626 Filed 03/15/19 Page 4 of 4 PagelD #: 15867

3. This sripulation of di:;continuan~,: ma>· be cxo:utcd in counlel'pans. .ind fa.:similc: m .pdf

signarurc:s shall be deemed original.

Da1cd: .rJ4t:c1' //

• 2019

r.ucd ~~au ~
EITOI. \\'ifliams-"''
OFFICE OF THE NASSAL' COCD:TY ATTORNEY
1 West S1ri:.:t \-tinc:ola. ~y l I50 I Tclt:phonc: (516) 571-3056

. 2019
Uvv-fu~
s&ticyiarown
Chava Brandriss HOGA~ LOVELLS t.:S LLP 875 Third Avenu.: ~cw York. l\ew York 10022 Telephone: 1:? l:?l 918-3000

- - - - Dated:

__• 2019

c:pp~in

Thom;v; SilH,n;tc:in

QL'ATELA CHIMERIA PLLC'

LA\\'YERS CO~lMITTEE FOR CJ\'IL

888 Veterans Memorial Highwa~. Sui1c: 530 RIGHTS L1\DER THE LAW

)

Haupp.iuge, ~y 11788

I500 K Stn:c:r, X W.

Tcl1."Phonc:: (63 I) 4S2-9700

Suite: 900

Washington. DC 20005

Attomi.y,(jor D1.fimd,111t Cc>llll(l <f,\ilssm,

Tclephonc: (1021662-8600

Oc1.1ed; _ _ _ _

.2019

Case closed. SO.,.O~DERED:
/s/ Arthur D. Spatt
Hon. Anhur 0. Spall U

Fr«lc:rick K. Brc:wington l..\\\' OFFICES OF FREDERICK K.
BREWl~GTO~ 556 Pt:nin,ula Blvd
Hcmpsteisd. ~y 115:iO Telq,hone (516) 489-695Q
.-lflorm:··.~.1,w. ti/ Plui111ifl:,

r Date

I

2

 
 Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 1 of 17 PageID #: 15868

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -- - - - - - -- - - - - - -- - -- - -- - - -- - --- - - - - -- - -- -X MHANY MANAGEMENT INC.,

PLAINTIFF,

-and-

NEW YORK COMMUNITIES FOR CHANGE, INC., 05-CV-2301 (ADS) (ARL)

INTERYENOR-PLAINTIFF,

SETTLEMENT AGREEMENT

-against-

COUNTY OF NASSAU, INCORPORATED VILLAGE: OF GARDEN CITY, AND GARDEN CITY BOARD OF TRUSTEES,

DEFENDANTS.

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

This settlement agreement (" Settlement Agreement" or "Agreement"), subject to approval by the Nassau County Legislature, as set forth herein, and effective as of the date of approval by the Nassau County Legislature (the " Effective Date"), is made and entered into by and between the County of Nassau, a municipal corporation located at 1550 Franklin Avenue, Mineola, New York (the "County''); MHANY Management, Inc. ("MHANY"); New York Communities for Change, Inc. (''NYCC"), both not-for-profit corporations, located in New York City and in the case ofNYCC with offices in Hempstead, New York (MHANY, NYCC and the County are each referred to as a "Party", and collectively, the "Parties").

RECITALS

WHEREAS, the goal of this Settlement Agreement is to resolve the above-captioned matter, and to promote fair and affordable housing throughout the County of Nassau (the "County'') by creating mixed-income affordable housing in "high opportunity'' communities within the County, which will in turn promote sustainable integrated living patterns, increase fair and equal access to educational, economic and other opportunities, and advance the welfare of all residents of the County and the communities within it;
WHEREAS, on May 12, 2005, MHANY (f/k/a New York ACORN Housing Company, Inc.), the New York Association of Community Organizations for Reform Now ("ACORN") and others filed suit in the United States District Court for the Eastern District ofNew York (No. 05cv-230 1) against the County, the Incorporated Village of Garden City and its Board of Trustees (collectively the "Garden City Defendants") asserting claims under the Fair Housing Act

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 2 of 17 PageID #: 15869
("FHA"), 42 U.S.C. § 3601 et seq., as well as 42 U.S.C. § 1981 , 42 U.S.C. § 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (the "Action");
WHEREAS, on June 15, 2010, the district court granted NYCC permission to intervene in the Action as practical successor to ACORN;
WHEREAS, by Memorandum and Order dated February 15, 2012, the United States District Court for the Eastem District of New York (Spatt, J.) granted the County' s motion for summary judgment and dismissed all claims against the County in the Action;
WHEREAS, following an 11-day bench trial before the Honorable Arthur D. Spatt, in June 2013, the District Court issued a Memorandum of Decision and Order, dated December 6, 2013, finding that the Garden City Defendants acted with discriminatory intent in rezoning approximately twenty-five acres of County-owned land located in Garden City and that the Garden City Defendants were liable under (1 ) the FHA, based on theories of both disparate treatment and disparate impact; (2) 42 U.S .C. § 1981 ; (3) 42 U.S .C. § 1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and thereafter entered final judgment against Garden City and dismissed the claims against the County;
WHEREAS, the Garden City Defendants appealed the district court's fmal judgment to the United States Court of Appeals for the Second Circuit (Docket No. 14-1634(L)), and MHANY and NYCC cross-appealed the dismissal of the County (Docket Nos. 14-1634-cv(L), 14-1729-cv(XAP));
WHEREAS, by Decision dated March 23, 2016, the United States Court of Appeals for the Second Circuit (1) affirmed the District Court's judgment dismissing Plaintiffs' claims against Nassau County in connection with its actions relating to the Village of Garden City' s illegal zoning decision; but (2) remanded the case to the District Court to address Plaintiffs' claims under Section 804(a) of the FHA and under Title VI alleging that Nassau County had steered affordable housing to majority-minority areas, thus perpetuating racial segregation in the County;
WHEREAS, while the County denies each and every claim brought against it, the County recognizes that there is a growing need for mixed-income affordable housing opportunities in Nassau County and, particularly, in "high-opportunity" communities;
WHEREAS, the Parties believe that fostering and enhancing the development of mixedincome affordable housing in high-opportunity areas in the County will promote sustainable integrated living pattem s, increase fair and equal access to educational, economic and other opportunities, and advance the welfare of all residents of the County and the communities within it;
WHEREAS, while this Settlement Agreement is neither an admission by the County of any liability or wrongful conduct, nor a concession by P laintiffs that their claims are not wellfounded and likely to succeed, the Parties recognize that settling the Action avoids delays and the expenses of trial and results more quickly in the development of mixed-income affordable housing in high-opportunity communities in Nassau County;
2

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 3 of 17 PageID #: 15870
NOW, THEREFORE, for and in consideration of the following releases, promises and terms, the receipt and adequacy of which the Parties hereby acknowledge, the Parties agree as follows:
I. SETTLEMENT PAYMENT
Within forty-five (45) days of the Effective Date, the County of Nassau shall, in full satisfaction of any and all claims that have been or could have been asserted in the within action, inclusive of any and all claims for costs and attorneys' fees arising from or related to the within Action:
a. Deliver to MHANY MANAGEMENT INC., through electronic funds transfer, payment in the amount of FIVE-MILLION FOUR-HUNDRED THOUSAND DOLLARS ($5,400,000.00) in full satisfaction of any and all claims asserted in the within action, which shall be used for the purpose of developing, rehabilitating, constructing, and otherwise furthering and promoting mixed-income affordable housing within the Counties of Nassau and Suffolk, including acquiring property to accomplish that goal.
b. Deliver to NEW YORK COMMUNITIES FOR CHANGE, INC., through electronic funds transfer, payment in the amount of ONE-HUNDRED TWENTY-THOUSAND DOLLARS ($120,000.00) to be used for activities, including but not limited to education, outreach and advocacy, related to fair and affordable housing and addressing residential segregation in N assau and Suffolk Counties;
c. Deliver to Plaintiffs' counsel the Lawyers' Committee for Civil Rights Under Law, the Law Offices of Frederick K. Brewington and Hogan Lovells US LLP, through electronic funds transfers to be arranged between Plaintiffs' counsel and the County, payment in the amount of FOUR-HUNDRED THOUSAND DOLLARS ($400,000.00), as and for attorneys' fees in the above-captioned action.
ll. FURTHER EFFORTS TO FACILITATE FAIR AND AFFORDABLE HOUSING.
1. Housing Development and Developer Outreach Plan.
a) Within eighteen months of the Effective Date, the County will prepare or cause to be prepared a written plan or report that includes consideration of: (I) land or locations within the County whether owned by the County or private parties - that may be suitable and available for development of Mixed-Income Housing (as defined in Section Il.3 below) and or may be appropriate for further consideration with respect thereto; (2) non-profit and forprofit developers who may be interested in creating Mixed-Income Housing; and (3) such other matters as the County may deem appropriate (the ·'Development and Outreach Plan").
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b) The goal of the Development and Outreach Plan is to promote fairness and equity in housing and effectively address the issue of segregated housing in the County by promoting sustainable integrated living patterns, increasing fair and equal access to educational, economic and other opportunities, and advancing the welfare of all residents of the County and the communities within it (the "Goal").
c) In preparing the Development and Outreach Plan, the County will, among other things:
(I) Reasonably identify and assess the availability of property (County-owned and non-County-owned) suitable for development of Mixed-Income Housing, including single sites and scattered sites, and vacant land and adaptive reuse opportunities in High Opportunity Communities (as defmed in section ll.3.a below).
(2) Conduct meetings with developers (for-profit and nonprofit) and property owners to determine their interest in furthering developments that will promote fair housing and integration in the County, and to explore concrete ways in which developers could secure funding for Mixed-Income Housing through federal, state and local sources.
(3) Conduct meetings with key local officials in High Opportunity Communities in the County to explore potential development opportunities.
(4) Conduct meetings with the New York State Division of Housing and Community Renewal and the New York State Housing Finance Agency to explore opportunities for targeted state fmancing for Mixed-Income Housing, as well as other forms of state assistance.
d) The Development and Outreach Plan shall include, among other things:
(I) Descriptions of how, by whom and where Mixed-Income Housing could be developed, based on the preparatory activities set out above.
(2) Descriptions of the outreach actrvrttes the County will undertake, and mechanisms the County will employ, to ( I) encourage municipalities to develop Mixed-Income Housing within their jurisdictions; and (2) inform developers of potential opportunities to develop MixedIncome Housing, including through the County's website.
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(3) Descriptions of other activities, practices and policies the County will adopt in order to foster fair and integrated housing through the County.
(4) A model inclusionary zoning ordinance ("Model Ordinance"):
(a) To facilitate the development of Mixed-Income Housing with affordable units, the County will promote the Model Ordinance to all communities in Nassau County.
(b) The Model Ordinance will, at a minimum, contain the characteristics identified in Exhibit 1.
e) The Development and Outreach Plan shall be presented to MHANY and NYCC (as well as any other non-profit or other entities the County deems appropriate) for comment prior to being made public.
2. Request For Proposals for Sale of County Owned Land.
a) The County will in good faith encourage, where reasonable and appropriate, Mixed Income Housing development in connection with the future sale of County-owned land.
b) W ithin three years of the Effective Date, the County will issue one or more Requests for Proposals seeking developers who will, with the County' s support and assistance, purchase or lease land from the County, including single sites and scattered sites, on which to develop Mixed-Income Housing.
3. Efforts to Promote Affordable Housing. The County will encourage the construction or development of mixed income multi-family rental housing by third parties that includes affordable housing units ("Mixed-Income Housing") in "High Opportunity Communities" in the County.
a) "High Opportunity Communities" refers to communities in Nassau County, including but not limited to communities in the Nassau County Urban Consortium, with the following characteristics (1) very low poverty rates; (2) very low unemployment rates; (3) high levels of completed college among adults; (4) low African American and Latino population; (5) high performing public schools; (6) low crime rates; and (7) access to public transportation and employment.
b) Mixed-Income Housing that the County will encourage as set forth herein will ideally include, but not be limited to, the following
5

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 6 of 17 PageID #: 15873
characteristics ("Ideal Characteristics"): ( l ) rental housing; (2) a substantive and meaningful distribution of affordability levels/income bands with a minimum of at least three income bands per multi-family development, between up to 20% of AMI and I00% of AMI; (3) is available for occupancy by households with children and does not include age restrictions; (4) includes a significant number of two or three bedroom units; (5) does not utilize community residency requirements or preferences; (6) is rented by use of a lottery system, and not offered on a first-come, fLrst-served basis; (7) is marketed by an affirmative marketing plan which complies with 24 CFR Section 92.351 ; (8) is fully available to households possessing a Section 8 Rental Assistance Voucher or other rental subsidies; and (9) for scatter-site housing or single family projects, be affordable for households earning sixty (60%) percent or less of AMI.
c) The Ideal Characteristics as set forth above are a goal of the County but shall in no way limit or impede the County' s ability and discretion to encourage or promote affordable housing that deviates from or does not conform to said Ideal Characteristics, or other housing projects.
III. ACTIONS WITH RESPECT TO HOME AND CDBG FUNDS.
I. For a period of at least three (3) years, the County, via the Office of Housing and Community Development or such other similar agency as the County shall determine, shall set aside, under the terms and conditions set forth herein, no less than l/4 of its annual allocation of Home Investment Partnership Program ("HOME") funds (the "HOME Set-Aside") for the purpose of assisting in the construction or development of family occupancy affordable, Mixed-Income rental Housing in High Opportunity Communities as defmed above and/or those high-opportunity areas identified in the County' s most recent Analysis of Impediments to Fair Housing Choices ("Af ') as well as census tracts in villages within the County that are not members of the Nassau County Urban Consortium (the "Consortium") but that would qualify as High-Opportunity Communities if included in the AI. The HOME Set-Aside shall be reserved for use consistent with that purpose and not used for any other purpose for a period of at least eighteen ( 18) months from each annual allocation. After said eighteen (18) month period there shall be no additional restrictions on the use of such funds and they may be used for an y purpose consistent with the HOME lnvestment Partnership Program or as otherwise permissible.
2. The County will encourage developers to make use of the HOME Set-Aside by issuing a Request for Proposals, or comparable public notice, seeking HOME funding applications for Mixed-Income Housing in High Opportunity Communities.
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3. To the extent permissible by law, Consortium members who enact an inclusionary zoning ordinance according to the specifications of the Model Ordinance shall receive first preference for CDBG funds, except that Consortium member jurisdictions that have enacted a conforming inclusionary zoning ordinance shall not receive such preference where the jutisdiction's application is not related to affordable housing and is competing against an application from another Consortium member-jUiisdiction that is seeking affordable housing-related funding.
IV. FAIR HOUSING EDUCATION PLAN.
l. Within 120 days of the Effective Date, the County will begin a campaign of advertising designed to ( 1) inform the general public and real estate professionals that the County is an open and inclusive community that supports the goals of fair housing; and (2) educate the general public and real estate professionals about fair housing laws.
2. These advertisements shall include, at a minimum: (I) a quarter-page non-legal notice advertisement in Newsday to run on at least six occasions, three of which must be in a weekend edition; and (2) one or more public service announcements on Long Island Railroad cars and/or stations.
V. GENERAL NON-DISCRIMINATION
1. In accordance with the laws of the United States, the County agrees that it will not:
a) deny or otherwise make unavailable a dwelling because of race or color;
b) discriminate in the terms, conditions or privileges of the sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race or color;
c) coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right protected by the Fair Housing Act;
d) interfere with the funding, development or construction of any affordable housing because of race or color; or
e) discriminate on the basis of race or color with respect to any zoning matters relating to residential property within the County's control.
VI. TERMS OF DISCONTINUANCE AND JURISDICTION OVER ENFORCEMENT
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1. The parties agree to execute a stipulation discontinuing the action with prejudice, except without prejudice to the Court's retention ofjurisdiction for the purpose of interpreting and enforcing the te1ms of the Settlement Agreement and adjudicating any alleged breaches.
2. Contemporaneous with the execution of this Agreement, the Parties shall execute a Stipulation of Discontinuance reflecting the above terms, in the form set out in Exhibit 2. This Settlement Agreement will be attached as an exhibit to the Stipulation of Discontinuance.
3. The parties will submit the Stipulation of Discontinuance to the Court within fourteen (14) days of the Effective Date, and will jointly request that the Court soorder the Stipulation of Discontinuance and agree to retain jurisdiction for the limited purpose set out above.
4. No Party shall commence any proceeding against the other to enforce this Agreement without first providing at least thirty (30) days written notice of the alleged breach, which shall set forth a summary of the alleged breach and a proposed remedy.
5. The parties agree to work cooperatively with one another and in good faith and agree to use their best efforts, within reason, to effectuate the purposes of the Settlement Agreement and to resolve informally any differences regarding interpretation of and compliance with the Settlement Agreement prior to bringing such matters to the Court for resolution.
VII. RELEASES AND NO ADMISSIONS
1. For good and valuable consideration, the receipt of which is hereby acknowledged, MHANY and NYCC, with the full understanding of the contents and legal effect of this release and having the right and opportunity to consult with their own counsel, hereby irrevocably and unconditionally waive, release and discharge the County, and its directors, officers, officials, attorneys, agents, and employees, from any and all claims, causes of action, grievances, suits, charges, or complaints or liabilities of any kind or nature whatsoever, that each of them ever had or now has, whether flxed or contingent, liquidated or unliquidated, known or unknown, and whether arising in tort, contract, statute, equity, or otherwise, before any federal, state, local, or private court, agency, arbitrator, mediator, or other entity, regardless of the relief or remedy, arising out of or in connection with the underlying facts and circumstances that were asserted or could have been asserted in the Action. Notwithstanding the above, this release does not include any of the obligations of the County under the terms of this Settlement Agreement.
2. This Settlement Agreement is made for the purpose of avoiding litigation, and nothing contained herein shall be deemed to be an admission of liability, or any violation of any applicable rule, law, statute, regulation, order, understanding,
8

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agreement, or contract of any kind. Neither this Settlement Agreement, nor any of its terms, nor any of the negotiations or proceedings connected with it shall be offered as evidence or received in evidence in any pending or future action or proceeding of any type whatsoever.
VIII. MISCELLANEOUS PROVISIONS
I. This Settlement Agreement sets forth the entire agreement and understanding among the Parties, and fully supersedes any and all prior agreements or understandings among the Parties pertaining to the subject matter hereof, which shall be null and void.
2. This Settlement Agreement may not be supplemented, modified, canceled, or waived or otherwise altered in any way, in whole or in part, except in a written agreement signed by all Patties.
3. Each Patty and signatory to this Settlement Agreement represents that it freely and voluntarily enters in to this Settlement Agreement without any degree of duress or compulsion.
4. This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be considered one and the same instrument. Copied or scanned signatures shall constitute acceptable, binding signatures.
5. The titles or captions of the paragraphs or sections contained in this Settlement Agreement are inserted only as a matter of convenience and for reference, and in no way define, extend, or describe the scope of this Settlement Agreement or the intent or meaning of any provision hereof.
6. Any and all notices under this Settlement Agreement shall be in writing and sent to the attorneys for Plaintiffs: (i) Hogan Lovells US LLP; (ii) the Lawyers ' Committee for Civil Rights Under Law; and (iii) the Law Offices of Fredrick K. Brewington; and the attorneys for Defendant: (i) the Office of the Nassau County Attorney; and (ii) Quatela Chimeri, PLLC.
IX. AUTHORITY OF PARTIES AND NECESSARY APPROVALS
l. The parties expressly agree and understand that this settlement shall not be binding upon the County and shall not take effect unless and until it is approved by the Nassau County Legislature.
2. The undersigned representatives of the Parties certify that they are authorized by the parties to enter into and consent to the terms and conditions of the Settlement Agreement, and, except as specifically set forth herein, to execute and bind the parties to it. Specifically, the individuals signing this Settlement Agreement on behalf of the County represent and warrant that they are authorized by the County
9

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Executive to execute this Settlement Agreement, subject to the fmal required approvals set out above. 3. The County and its counsel represent that they have already made and will continue to make diligent efforts to timely and diligently take all steps and submit all documents and information necessary for the approvals set out above in Section IX. I . 4. If the County has not obtained approval of this Settlement Agreement by the County Legislature within forty-five (45) days of the execution of this Agreement (the "Approval Period"), and the Effective Date has therefore not occurred, the Agreement shall be null and avoid, and the Parties shall immediately report to the Court that settlement has not been finalized, and shall resume the litigation.
[Remainder of page intentionally left blank.]
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Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 11 of 17 PageID #: 15878
IN WITNESS WHEREOF, the parties hereto, having read and understood the terms of this Settlement Agreement, and intending to be legally bound hereby, execute this Settlement Agreement.
MHANY Management Inc. By:_ _ _ _ _ _ __ _ _ __ _
Ismene Speliotis, Executive Director Date:_ _ _ _ _ _ _ _ _ _ _ _ __
New York Communities for Change, Inc. By:_ _ _ __ _ __ __ __
Jonathan Westin, Executive Director Date:_ _ _ _ __ _ _ __ __ _
I l

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 12 of 17 PageID #: 15879

IN WITNESS WHEREOF, the parties hereto, having read and understood the terms of th is Settlement Agreement, and intending to be legally bound hereby, execute this Settlement Agreement.

COUNTY OF NASSAU Jared A. Kasschau, County Attorney

~YHAN~
Ismene Speliotis, E ecutive Director

New York Communities for Change, Inc. Jonathan Westin, Executive Director

l l

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 13 of 17 PageID #: 15880

IN WITNESS WHEREOF, the parties hereto, having read and understood the terms of
this Settlement Agreement, and intending to be legally bound hereby, execute this Settlement Agreement.

COUNTY OF NASSAU

MHANY Management Inc .

Jared A. Kasschau, County Attorney

Ismene Speliotis, Executive Director

New York Communities for Change, Inc.
/_1--'j_ Date:_-"'--'2-+-/_z--l! __

I I

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 14 of 17 PageID #: 15881
EXIDBIT 1 REQIT.mffiDCHARACTEIDSTICSOF MODEL INCLUSIONARY ZONING ORDINANCE
(1) requires residential developments with five or more units to include at least 20% affordable (meaning a household is paying no more than 30% of its income for gross housing costs, including utilities) housing units;
(2) requires developers to engage in affirmative marketing to ensure outreach to racially and ethnically diverse households, including those who are least likely to apply;
(3) provides density bonuses, parking requirement reductions, and expedited review of proposals for affordable housing including procedures for streamlining the approval process for the design, pennitting, and development ofthese units;
(4) requires the good faith consideration and encouragement of the grant of zoning or other variances or exceptions where necessary to allow for development of housing that will qualify as affordable housing;
(S) provides for deed restrictions or similar legal mechanisms to ensure continued future affordability of affordable housing units;
(6) does not provide for current or prior residency or employment preferences; and
(7) does not include an "opt out" provision.

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 15 of 17 PageID #: 15882
EXHIBIT 2

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 16 of 17 PageID #: 15883

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - -- ---- -- - -- ---- - --- -- - -- - --- - - - - -- -X MHANY MANAGEMENT INC.,

PLAINTIFF,

-and-

NEW YORK COMMUNITIES FOR CHANGE, INC., 05-CV-2301 (ADS) (ARL)

-against-

INTERVENOR-PLAINTIFF,

SO-ORDERED STIPULATION OF DISCONTINUANCE

COUNTY OF NASSAU, INCORPORATED VILLAGE: OF GARDEN CITY, AND GARDEN CITY BOARD OF TRUSTEES,

DEFENDANTS.

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

IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as fo llows:

1. The above-captioned action is hereby discontinued with prejudice, except without

prejudice to this Court's retention of jurisdiction as set out in paragraph 2 below, and without

costs or expenses to any party except as specifically provided for in the Settlement Agreement

attached hereto.

2. The Court shall retain jurisdiction in this matter for the purpose of interpretation or

enforcement of the Settlement Agreement. This Stipulation may be So Ordered for the purpose

of the Court retaining said jurisdiction; however, the attached Settlement Agreement is not

incorporated or merged in this stipulation, and said Settlement Agreement shall not become or be

considered an Order of the Court in the event this stipulation is So Ordered.

Case 2:05-cv-02301-ADS-ARL Document 626-1 Filed 03/15/19 Page 17 of 17 PageID #: 15884

3. This stipulation of discontinuance may be executed in counterpa1ts, and facsimile or .pdf

signatures shall be deemed original.

Dated: - - - - - - - -, 2019

Dated:

2019

-------~

Jared Kasschau Enol Williams OFFICE OF THE NASSAU COUNTY ATTORNEY 1 West Street Mineola, NY 11501 Telephone: (516) 571-3056
Dated: _ _ _ _ _ _ _ _, 2019

Stanley J. Brown Chava Brandriss HOGAN LOVELLS US LLP 875 Third Avenue New York, New York 10022 Telephone: (212) 918-3000
Dated: _ _ _ __ _ _ _, 2019

Scott J. Kreppein QUATELA CHIMERIA PLLC 888 Veterans Memorial Highway, Suite 530 Hauppauge, NY 11 788 Telephone: (631) 482-9700
Attorneys for Defendant County ofNassau

Thomas Silverstein LAWYERS COMMITTEE RIGHTS UNDER THE LAW 1500 K Street, N.W. Suite 900 Washington, DC 20005 Telephone: (202) 662-8600

FOR

CIVIL

Dated: _ __ _ _ _ _ _, 2019

Frederick K. Brewington LAW OFFICES OF FREDERICK K. BREWINGTON 556 Peninsula Blvd Hempstead, NY 11550 Telephone: (516) 489-6959
Attorneys for All Plaintiffs

SO ORDERED:

Hon. Arthur D. Spatt 2

 
 Case 2:05-cv-02301-ADS-ARL Document 561 Filed 11/30/17 Page 1 of 3 PageID #: 14291

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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

MHANY MANAGEMENT INC.,

:

:

Plaintiff,

:

:

-and-

:

:

NEW YORK COMMUNITIES FOR CHANGE, INC., : Case No. 05-cv-2301 (ADS) (ARL)

:

Intervenor-Plaintiff,

:

:

-against-

:

:

INCORPORATED VILLAGE OF GARDEN CITY, :

GARDEN CITY BOARD OF TRUSTEES, and

:

COUNTY OF NASSAU,

:

:

Defendants.

:

:

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

[PROPOSED] PARTIAL FINAL JUDGMENT AS AGAINST DEFENDANTS INCORPORATED VILLAGE OF GARDEN CITY AND GARDEN CITY BOARD OF
TRUSTEES

Spatt, District Judge.

WHEREAS, Plaintiff MHANY Management, Inc. and Intervenor-Plaintiff New York

Communities for Change, Inc. (collectively, “Plaintiffs”) brought this lawsuit against Defendants

Incorporated Village of Garden City and the Garden City Board of Trustees (collectively, “Garden

City”), and Defendant County of Nassau (the “County”) asserting claims pursuant to the Fair

Housing Act, 42 U.S.C. § 3601 et seq. (the “FHA”); 42 U.S.C. §§ 1981-83; 42 U.S.C. § 2000d et

seq.; and the Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution;

WHEREAS, on February 12, 2012, the Court granted the County’s motion for summary

judgment and dismissed the County from the case;

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Case 2:05-cv-02301-ADS-ARL Document 561 Filed 11/30/17 Page 2 of 3 PageID #: 14292
WHEREAS, after an eleven-day bench trial held in June and July of 2013, this Court found Garden City liable under the FHA based on theories of disparate treatment and disparate impact, and liable under 42 U.S.C. § 1981, 42 U.S.C. §1983, and the Equal Protection Clause on a theory of disparate treatment, as set forth in the Court’s December 6, 2013 Memorandum and Order (the “December 2013 Order”);
WHEREAS, on April 22, 2014, this Court entered a final judgment that, inter alia, granted Plaintiffs certain relief against the Village and served as a final judgment dismissing the County from the case (the “2014 Judgment”);
WHEREAS, Plaintiffs appealed this Court’s grant of summary judgment to the County, and Garden City appealed from the Court’s 2014 Judgment and the Court’s post-trial rulings, embodied in the December 2013 Order, holding Garden City liable;
WHEREAS, on March 23, 2016, the United States Court of Appeals for the Second Circuit issued a decision: (1) affirming the 2014 Judgment and the Court’s holding that Garden City was liable on a theory of disparate treatment; (2) vacating the 2014 Judgment insofar as it found Garden City liable on a disparate impact theory, and remanding for further consideration of whether, under 24 C.F.R. § 100.500(c), Plaintiffs had met their burden of proving that the “substantial legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect”; and (3) vacating this Court’s grant of summary judgment to the County on the Plaintiffs’ claims under Section 804(a) of the FHA and 42 U.S.C. § 2000d, which alleged that the County impermissibly and intentionally steers affordable housing to areas of the County primarily occupied by minorities, thus perpetuating segregation (the “Steering Claims”), and remanding for further consideration of those claims;
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WHEREAS, on June 17, 2016, the Court extended the time periods during which certain of Garden City’s remedial obligations under the 2014 Judgment would run (the “Judgment Extension Order”);
WHEREAS, on September 20, 2017, pursuant to the Second Circuit’s order on remand, this Court issued a Memorandum of Decision and Order finding that Plaintiffs at trial had met their burden under 24 C.F.R. § 100.500(c), and reaffirming its holding that Garden City is liable under a theory of disparate impact.
WHEREAS, discovery on Plaintiffs’ Steering Claims against the County remains in progress, and it will be some time before those claims are finally resolved;
WHEREAS, Garden City is not a party to the Steering Claims; WHEREAS, all issues regarding Plaintiffs’ claims against Garden City have now been fully and finally resolved, NOW, THEREFORE, THE COURT finds that, under these circumstances, there is no just reason for delay in entering a partial final judgment in this case against Garden City; NOW, THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED, pursuant to Federal Rule of Civil Procedure 54(b), that final judgment is entered against Garden City on the terms set forth in the 2014 Judgment, as modified by the Court in the Judgment Extension Order. SO ORDERED. Dated: Central Islip, New York N_o_v_e_m__b_e_r_3__0_,_2_0_1_7_______, 2017
_/_s_/ _A_r_th__u_r_D__. _S_p_a_t_t_______________________ ARTHUR D. SPATT United States District Judge
3

 
 Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 1 of 55 PageID #: 15792

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------------X MHANY MANAGEMENT INC., et al.,
Plaintiffs,
-against-

AMENDED ORDER CV 05-2301 (ADS)(ARL)

COUNTY OF NASSAU, et al., Defendants.
------------------------------------------------------------------X LINDSAY, Magistrate Judge:
Presently before the Court, on referral for all purpose from District Judge Spatt, are the Renewed and Supplemental Motions for Attorneys’ Fees and Costs by Mhany Management Inc. and New York Communities for Change, Inc. (“NYCC”) (collectively “Plaintiffs”) pursuant to 42 U.S.C. § 1988(b) and 42 U.S.C. § 3613(c)(2). For the reasons set forth below, the Court Orders that Plaintiffs be awarded $5,089,469.07 in attorneys’ fees and $165,639.87 in costs, for a total award of $5,255,108.94.
BACKGROUND The Court presumes familiarity with the facts and procedural history of this case and only includes those facts that are necessary for resolution the instant motion. I. The Present Motion Plaintiffs brought this civil rights action against defendants the County of Nassau (the “County”), the Incorporated Village of Garden City, and the Garden City Board of Trustees (together with the Incorporated Village of Garden City, the “Garden City Defendants”). Plaintiffs were seeking injunctive and declaratory relief, costs and attorneys’ fees. By

1

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Memorandum and Order dated February 15, 2012, Judge Spatt granted the County’s motion for summary judgment dismissing all claims against it; denied the Garden City Defendants’ motion for summary judgment and granted NYCC’s motion to amend. ECF No. 315. Judge Spatt conducted an 11-day trial commencing on June 17, 2013. In a Memorandum and Order dated December 6, 2013, the Court concluded that Plaintiffs had established the liability of the Garden City Defendants under (1) the Fair Housing Act, 42 U.S.C. § 3601 et seq. (the “FHA”) based theories of disparate treatment and disparate impact; (2) 42 U.S.C. §1981; (3) 42 U.S.C. §1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. ECF No. 413. The appropriate remedy was the subject of much debate and, on April 22, 2014, the Court entered a detailed final judgment providing, inter alia, pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), Plaintiffs had fourteen days from the date of the judgment to file a petition for attorneys’ fees and costs. ECF No. 431, at 10. On May 5, 2014, the Garden City Defendants appealed the final judgment to the Second Circuit. ECF No. 436. Plaintiffs appealed the Court’s dismissal of the County on May 16, 2014. ECF No. 446.
Plaintiffs filed their first motion for attorneys’ fees on May 15, 2014 (“Initial Application”). ECF No. 438. By Order dated September 11, 2014, Judge Spatt granted the Garden City Defendants’ motion to defer ruling on the motion for attorneys’ fees until after the Second Circuit ruled on the parties’ cross appeals. ECF No. 468. On July 28, 2016, the Second Circuit affirmed, in part, and vacated, in part, the final judgment, and, remanded the case for further proceedings. ECF No. 499. The Second Circuit upheld Judge Spatt’s ruling that Plaintiffs had standing, the case was not moot and that Plaintiffs had demonstrated that the Garden City’s zoning change was the result of intentional discrimination. See MHANY Mgmt.,
2

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 3 of 55 PageID #: 15794
Inc. v. Cty. Of Nassau, 819 F.3d 581, 624 (2d Cir. 2016). The Second Circuit remanded Judge Spatt’s disparate impact holding with instructions that the Court determine whether Plaintiffs proved at trial that the “substantial legitimate, non-discriminatory interests” proffered by Garden City in support of its zoning shift “could be served by another practice that has a less discriminatory effect.” 24 C.F.R. § 100.500(c)(3). Following a round of briefing, the Court affirmed the Garden City Defendants’ liability under a disparate impact theory. ECF No. 550. The Second Circuit also vacated Judge Spatt’s grant of summary judgment to the County on Plaintiffs’ “steering” claims under Section 804(a) of the FHA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Mhany Mgmt., 819 F.3d at 624.
Plaintiffs renewed their motion for attorneys’ fees on December 8, 2018. ECF No. 562. By Order dated January 23, 2018, Judge Spatt denied Plaintiffs’ motion for initial attorneys’ fees, noting that “[]he Court sees no reason as to why it should waste judicial resources and consider two separate motions for attorneys’ fees months apart.” ECF No. 575. The Court terminated Plaintiffs’ motion with leave to renew their motion for initial attorneys’ fees when filing their motion for supplemental attorneys’ fees. Id. Plaintiffs filed their renewed motion for attorneys’ fees on March 23, 2018, containing the request for initial attorneys’ fees as well as supplemental attorneys’ fees (“Supplemental Application”). ECF No. 581. By Order dated March 26, 2018, Judge Spatt referred the matter to the undersigned for all purposes.
II. Details Regarding the Fee Dispute A. Plaintiffs’ Motion for Fees
3

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 4 of 55 PageID #: 15795
In the Initial Application, Plaintiffs requested attorneys’ fees in the amount of $5,363,550.501 and costs of $204,566.72. In the Supplemental Application, Plaintiffs requested supplemental attorneys’ fees in the amount of $1,131,277.50.2 Plaintiffs also requested costs in the amount of $25,334.94. Thus, total attorneys’ fees sought equal $6,494,828.00 and total costs equal $229,901.66, for a grand total of $6,724,729.66.
1. Plaintiffs’ Counsel Over the entirety of this action, Plaintiffs have been represented by three separate law firms -- Hogan Lovells US LLP (“Hogan Lovells”), the Lawyers’ Committee for Civil Rights Under Law (“LCCRUL”) and the Law Offices of Frederick K. Brewington (“Brewington”). In support of its fee application, Plaintiffs rely upon the following declarations and attached contemporaneous time records and invoices:
• Declaration of Stanley J. Brown, member of the law firm Hogan Lovells, dated May 15, 2014 (“Brown 2014 Decl.”);
• Declaration of Joseph D. Rich, co-founder of the Fair Housing and Community Development Project at LCCRUL, dated May 13, 2014 (“Rich 2014 Decl.”);
• Declaration of Frederick K. Brewington, principal in the law Offices of Frederick K. Brewington, dated May 14, 2014 (“Brewington 2014 Decl.”);
1 This amount reflects the reductions in attorney hours set forth in Plaintiffs’ Reply Memorandum of Law in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs (“Pl. Reply”) at 10. ECF 462. As discussed in detail below, Plaintiffs agreed to a reduction in hours in response to issues raised by Defendants’ expert. 2 This amount reflects the reductions in attorney hours set forth in Plaintiffs’ Reply Memorandum of Law In Further Support of Their Renewed Initial Fee Motion and Supplemental Fee Motion (“Pl. Supp. Reply”) at 10. ECF 592. As discussed in detail below, Plaintiffs agreed to a reduction in hours in response to issues raised by Defendants’ expert.
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• Reply Declaration of Benjamin A. Fleming, attorney at the law firm of Hogan Lovells, In Further Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs, dated September 3, 2014 (“Fleming 2014 Reply Decl.”);
• Supplemental Declaration of Stanley J. Brown, member of the law firm Hogan Lovells, dated March 23, 2018 (“Brown 2018 Decl.”);
• Supplemental Declaration of Joseph D. Rich, co-director of the Fair Housing and Community Development Project at LCCRUL, dated March 20, 2018 (“Rich 2018 Decl.”);
• Declaration of Frederick K. Brewington, principal in the law Offices of Frederick K. Brewington, dated March 19, 2018 (“Brewington 2018 Decl.”);
• Reply Declaration of Benjamin A. Fleming, attorney at the law firm of Hogan Lovells, In Further Support of Plaintiffs’ Renewed Initial Fee Motion and Supplemental Fee Motion, dated May 11, 2018 (“Fleming 2018 Reply Decl.”). 2. Hogan Lovells
Hogan Lovells has represented the current Plaintiffs, and former Plaintiffs in this litigation from the outset on a pro bono basis. Brown 2014 Decl. at ¶ 8. Hogan Lovells is an international law firm, formed in 2010 by the merger of Washington D.C. based Hogan & Hartson and London based Lovells. Hogan Lovells has offices in 49 cities and employs approximately 2,700 attorneys. See Rich 2014 Decl. ¶ 48; hoganlovells.com. This matter was handled by the firm’s New York office, located in the Southern District of New York. See Memorandum of Law in Support of Plaintiffs’ Motion for Attorneys’ Fees and Costs (“Pl. Initial Mem.”) at 5.
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a. Timesheets and Hours Billed In the Initial Application, Hogan Lovells is seeking attorneys’ fees based upon 14,278 hours of work by Hogan Lovells’ attorneys and 1,121 hours of work by the firm’s paralegal and other staff. Brown 2014 Decl. ¶ 25. In the Supplemental Application, Hogan Lovells is seeking attorneys’ fees based upon approximately 2,422 hours of work by Hogan Lovells attorneys and 64 hours of work by paralegals and other staff. Brown 2018 Decl. ¶ 30. To support these requests, Hogan Lovells has submitted contemporaneous time records for work performed over the course of the litigation. Brown 2014 Decl. ¶ 25; Brown 2018 Decl. ¶ 30. Hogan Lovells seeks an award of attorneys’ fees for the work of over 30 different attorneys and six paralegals.
b. Adjustments to Hours Billed After Hogan Lovells determined the total number of hours expended on this case in the Initial Application, it made the following adjustments to the number of hours spent litigating the case: (1) isolated and eliminated time specifically associated with claims against the County; (2) reduced all time entries prior to February 15, 20123 by one-third to reflect potential work associated with claims against the County; (3) eliminated time of any attorney who recorded fewer than 90 hours on the litigation; (4) removed all time spent on the matter by summer associates and summer interns; (5) eliminated time entries where the narrative description of the work was not sufficiently detailed; (6) eliminated time entries where the time appeared more than was appropriate to the task; (7) eliminated time entries that appeared duplicative; (8) reduced the time billed by attorneys that were newly assigned to the case; (9) eliminated time
3 This is the date Judge Spatt dismissed all claims against the County. See ECF 315. 6

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spent by attorneys, paralegals or other staff on work solely related to file maintenance; and (10) identified travel time and reduce it by half. Brown 2014 Decl. ¶¶ 30-39. As a result of these adjustments, Hogan Lovells removed 6,200 attorney hours and 2,800 paralegal hours resulting in a reduction of the fees requested of $2,352,391. Id. at ¶¶ 27-28.
In addition, in response to objections raised by Defendants’ expert, Plaintiffs removed 209.78 hours from their Initial Application, all of which in some way involved County-related issues. Fleming 2014 Reply Decl. ¶ 11. Plaintiffs also removed 47.17 hours from the Initial Application for media related activities. Id. at ¶ 14.
In the Supplemental Application, Hogan Lovells also adjusted attorney hours in the manner described above. Brown 2018 Decl. ¶¶ 33-42. As a result of these adjustments to the fees requested in the Supplemental Application, Hogan Lovells removed 575 attorney hours and 303 paralegal hours. Id. at ¶ 31.
c. Rates Hogan Lovells seeks compensation at the following hourly rates: (1) $650 per hour for Attorney Feinberg (with 41 years of experience); (2) $475 per hour for all other Hogan Lovells’ partners; (3) $325 per hour for all Hogan Lovells’ associates; and (4) $150 per hour for paralegals. Brown 2014 Decl. ¶ 44; Brown 2018 Decl. ¶ 46. Hogan Lovells is proposing a bilevel “blended” rate be applied over the span of the litigation to all firm attorneys. As proposed by Hogan Lovells in this matter, all partner level work with the exception of Attorney Feinberg, regardless of experience level, shall be compensated at $475 per hour and all associate work, regardless of years of practice, shall be compensated at a rate of $325 per hour. Id. at ¶ 47.
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LCCRUL is a nonprofit organization established in 1963 at the request of President John F. Kennedy. Rich 2014 Decl. ¶ 2. The mission of LCCRUL is to secure equal justice under law for those most vulnerable to discrimination in the United States. Id. LLCRUL represents clients in civil rights litigation in various subject areas, including housing, employment, voting and education. Id. LCCRUL typically requires the assistance of pro bono resources of the private bar in litigating high impact and complex litigations. Id. As a tax-exempt, non-profit civil rights organization LCCRUL does not bill its clients for its legal services, but when seeking fees under the civil rights statutes, LCCRUL typically uses the rates set forth in the Laffey Matrix, a document prepared by the U.S. Attorney’s office of the District of Columbia. See Rich 2014 Decl. ¶ 19.
LCCRUL was first contacted about representing Plaintiffs in this matter in 2004 by a representative of the Fair Housing Justice Center, after Brewington had indicated it lacked the necessary resources to pursue the matter independently. Reply Declaration of Joseph D. Rich, dated September 2, 2014 (“Rich 2014 Reply Decl.”) ¶ 4. LCCRUL agreed to represent Plaintiffs in early 2005 and circulated a notice to law firms that typically provide assistance to LCCRUL seeking pro bono assistance. Id. at ¶ 6. LCCRUL had considerable difficulty in obtaining pro bono assistance from the firms it contacted. In addition to distributing notice to firms on its list, LCCRUL counsel personally contacted 20 firms located in New York seeking assistance. All declined. Id. at ¶ 7. Finally, the LCCRUL executive director stepped in and made a series of phone calls in an effort to personally appeal to several firms, urging them to agree to provide assistance. Id. at ¶ 8. In April 2005, Hogan & Hartson, predecessor to Hogan Lovells, finally
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agreed to provide assistance to LCCRUL in connection with this matter on a pro bono basis. Id. at ¶ 9.
a. Timesheets and Hours Billed In the Initial Application, LCCRUL is seeking attorneys’ fees based upon 2,440.25 hours of work by LCCRUL attorneys. Rich 2014 Decl. ¶ 26. In the Supplemental Application, LCCRUL is seeking attorneys’ fees based upon approximately 355.7 hours of work by LCCRUL. Rich 2018 Decl. ¶ 13. To support these requests, LCCRUL has submitted contemporaneous time records prepared using a program called Business Portal from 2009-2018. Rich 2014 Decl. ¶ 17; Rich 2018 Decl. ¶ 12. Prior to 2009, LCCRUL attorneys maintained time records using a different program -- Time Matters. Id. at ¶ 18. In the transition from the Time Matters program to the Business Portal program in 2009, many of the time records were inadvertently lost, and therefore attorney time from that period is not included in the Initial Application. Id.
b. Adjustment to Hours Billed LCCRUL made the following adjustments to the number of hours spent litigating the case to reflect its billing judgment: (1) eliminated the hours of the following attorneys because of the loss of time records prior to 2009: Attorneys Hooks, Wiggins, Birch and Rich; (2) eliminated time of any attorney who recorded fewer than 50 hours on the litigation; (3) eliminated any time that could be identified as pertaining solely to issues concerning the County and reduced all time entries prior to February 15, 2012 by one-third to reflect potential work associated with claims against the County; (5) eliminated time entries where the narrative description of the work was not sufficiently detailed; (7) eliminated time entries that appeared duplicative or the work
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appeared administrative in nature; and (10) identified travel time and reduced it by half. Rich 2014 Decl. ¶ 24. Thus, in addition to not claiming any time for the period from 2004-2009 (other than for one associate, whose time records were not lost), LCCRUL excluded an additional 1,097 hours of the total of 3,211 hours worked on the case. Rich 2014 Decl. ¶25.
In the Supplemental Application, LCCRUL adjusted attorney hours as follows: (1) eliminated any time identified as relating to claims against the County; (2) reduced the number of hours spent working on the appeal and cross appeal in this case by one-third to reflect work for the County; (3) reduced travel time by one-half; (4) eliminated time devoted to press work; and (5) eliminated all time entries by summer associates or interns. Rich 2018 Decl. ¶ 12. These adjustments resulted in a reduction of 589.8 hours. Id.
c. Rates LCCRUL seeks compensation for partner level work at $ 475 per hour, counsel at $325 per hour and associates ranging from $325-$250, depending upon years of practice. Although LCCRUL does not charge clients for its work, LCCRUL determines the hourly rates charges by referring to the Laffey Index described above and also assessing “the rates charged by private attorneys in the relevant market based on the prevailing rates charged by attorneys of similar experience, reputation and skill.” Rich 2014 Decl. ¶ 20
4. Brewington Frederick K. Brewington graduated from Northeastern University School of Law in 1982 and has owned his own practice in the Eastern District of New York since 1987. See Cruz v. Henry Modell & Co., No. CV 05-1450 (AKT), 2008 U.S. Dist. LEXIS 25339 (Mar. 31, 2008). Brewington was initially contacted by Plaintiffs in this matter to represent them, however,
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Attorney Brewington indicated that he and his firm did not have adequate resources to handle a case of this magnitude and complexity by itself. Rich 2014 Reply Decl. ¶ 4; Reply Declaration of Frederick K. Brewington, dated September 1, 2014 (“Brewington 2014 Reply Decl.”) ¶ 3. In addition, Brewington advised Plaintiffs that there was a need for outside assistance on this matter. Id. As a practioner on Long Island in the area of civil rights for the past 25 years, Attorney Brewington was well acquainted with the major law firms on Long Island and advised that all would either have a conflict or be unwilling to face the potential political fallout from agreeing to proceed against the Village of Garden City and the County. Id. at ¶¶5-14. Brewington ultimately served as local counsel to Hogan Lovells and LCCRUL in this action. Rich 2014 Decl. ¶ 4.
a. Timesheets and Hours Billed In the Initial Application, Brewington is seeking attorneys’ fees based upon 435 hours of work by Brewington attorneys. Brewington 2014 Decl. ¶ 1. In the Supplemental Application, Brewington is seeking attorneys’ fees based upon approximately 89.7 hours of work by Brewington attorneys. Brewington 2018 Decl. ¶ 18. To support these requests, Brewington has submitted contemporaneous time records for worked performed over the course of the litigation. Brewington 2014 Decl. ¶ 3; Brewington 2018 Decl. ¶ 2. Attorney time records are entered weekly into a computerized billing system by Brewington billing staff. Brewington 2014 Decl. ¶ 3.
b. Adjustment to Hours Billed After Brewington determined the total number of hours expended on this case in the Initial Application, it made the following adjustments to reflect the number of hours spent
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litigating the case: (1) eliminated time specifically associated with claims against the County; and (2) removed all time entries for attorneys who performed fewer than 50 hours of work on this matter. Brewington 2014 Decl. ¶1. No adjustments were made to the hours requested by the Supplemental Application.
5. Plaintiffs’ Expert Plaintiffs also submit the declaration of Randolph M. McLaughlin in support of the Initial Application. See Declaration of Randolph M. McLaughlin, tenured professor at Pace University School of Law, dated May 14, 2014 (“McLaughlin Decl.”). ECF 443. Mr. McLaughlin was retained by Plaintiffs to render an expert opinion with regard to Plaintiffs’ motion for fees. Id. Mr. McLaughlin is a licensed attorney in the State of New York, a tenured professor of law at Pace University School of Law, and of counsel to the law firm Newman Ferrera LLP and cochair of the firm’s civil rights practice. Id. ¶ 2. After having reviewed the procedural history of this case, including the pleadings, motions and decisions of the Court, and having examined the time records maintained by Plaintiffs and the relevant case law on reasonable hourly rates and reasonable compensable hours, Mr. McLaughlin concluded that the fees sought herein were reasonable. Id. at ¶¶ 17, 18. B. Defendants’ Objections In opposition to the Initial Application, Defendants raise several objections, including: (1) Plaintiffs’ fee request is unreasonable in light of the relief ultimately awarded to Plaintiffs; (2) the billing rates Plaintiffs propose are unreasonable; (3) Plaintiffs’ attorney fee request should be reduced further due to unsuccessful claims against the County and under Section 1862; (4) the hours expended were excessive and duplicative; (5) many of the billing entries are presented in
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block billing format (lumping two or more tasks into a single billing entry); and (6) the fee request should be reduced due to inappropriate billing. Defendants Incorporated Village of Garden City and the Garden City Board of Trustees Memorandum In Opposition To Plaintiffs’ Application For Attorneys’ Fees And Costs (“Def. Initial Opp.”), ECF 453. Defendants also object to the fee request in the Supplemental Application on the grounds that (1) Plaintiffs cannot recover for monitoring efforts and any such recovery must be reduced as improper and duplicative of the duties of the Fair Housing Compliance Officer (“ FHCO”); (2) the hours expended were duplicative and the matter was overstaffed; (3) block billing and vague entries warrant a reduction in fees; (4) Plaintiffs continue to improperly charge the Garden City Defendants for work done in connection with the claims against the County; and (5) the billing rates Plaintiffs propose are unreasonable in this District . Defendants Incorporated Village of Garden City and the Garden City Board of Trustees’ Memorandum of Law in Opposition to Plaintiffs’ Renewed Initial Fee Motion and Supplemental Fee Motion (“Def. Opp. To Renewed Motion”), ECF 590. In support of its objections, Defendants proffer, inter alia, two Declarations of Judith Bronsther, an attorney and president of Accountability Services, Inc. who was retained by Defendants to analyze the fees and costs claimed by Plaintiffs. ECF 452, 589. Ms. Bronsther concludes that much of the total sum of $5,639,692.97 sought by Plaintiffs, in fees was either not necessary or not reasonably incurred in the prosecution of this action. ECF 453 at 1. Ms. Bronsther concludes that Plaintiffs’ fee award should be reduced to $2,319,124.11. Id. Declaration of Judith Bronsther, president of Accountability Services, Inc., dated July 1, 2014 (“Bronsther 2014 Decl.”); Declaration of Judith Bronsther, president of Accountability Services, Inc, dated April 26, 2018 (“Bronsther 2018 Decl.”);
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DISCUSSION I. Applicable Standard
"In the United States, parties are ordinarily required to bear their own attorney's fees" unless Congress has authorized the award of attorney's fees to the prevailing party in a statute. Buckhannon Bd. & Care Home, Inc., v. West Virginia Dept. of Health & Human Res., 532 U.S. 598, 602, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). 42 U.S.C. § 1988(b) is such a statute. It provides that:
In any action or proceeding to enforce a provision of [Section 1983] . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorneys' fee as part of the costs.
42 U.S.C. § 1988(b). "[A] 'reasonable' fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552, 130 S. Ct. 1662, 176 L. Ed. 2d 494 (2010). Additionally, the feeshifting provision of the FHA authorizes an award of attorneys’ fees and costs to the prevailing party to ensure that federal rights are enforced. See 42 U.S.C. § 3613(c)(2); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (noting that in civil rights actions, “a prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust”) (citations and internal quotation marks omitted). Here, the Garden City Defendants do not dispute that Plaintiffs are the prevailing parties in this action.
The Supreme Court has emphasized that the “determination of fees should not result in a second major litigation. The fee applicant . . . must, of course, submit appropriate documentation to meet the burden of establishing entitlement to an award. But trial courts need
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not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838, 131 S. Ct. 2205, 180 L. Ed.2d 45 (2011) (internal quotation marks and citations omitted); see also Hensley, 461 U.S. at 437 (holding that “[a] request for attorney's fees should not result in a second major litigation. Ideally, of course, litigants will settle the amount of the fee”). “The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So, trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Fox, 563 U.S. at 838.
Where a party is entitled to fees, the district court calculates the “presumptively reasonable fee” by the “lodestar” method, which entails determining the “number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433; see also Millea v. Metro-North Railroad Co., 658 F.3d 154, 166 (2d Cir. 2011) (“Both this Court and the Supreme Court have held that the lodestar – the product of a reasonable hourly rate and the reasonable number of hours required by the case – creates a ‘presumptively reasonable fee.’”) (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008) and citing Perdue, 559 U.S. 542). In Arbor Hill, the Second Circuit held that in calculating a “presumptively reasonable fee,” courts must consider a multitude of case-specific factors in order to establish a reasonable hourly rate that a “reasonable, paying client would be willing to pay,” and then multiplying that rate by the number of hours reasonably spent on the case. 522 F.3d at 184, 190-91. These factors include “complexity and difficulty of the case, the available expertise and capacity of the client’s other counsel (if any), the resources required to prosecute the case effectively[,] the timing demands of the case, [and] whether an attorney might have an interest in achieving the ends of the litigation or might initiate
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the representation himself,” id. at 184 – as well as the twelve factors the Fifth Circuit employed in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Johnson factors include (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required to properly perform the relevant services; (4) the preclusion of other employment attendant to counsel's acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) fee awards in similar cases. 488 F.2d at 717-19.4 The Supreme Court has repeatedly stated that “‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at 436).
Fee awards should “generally be documented by contemporaneously created time records that specify, for each attorney, the date, the hours expended, and the nature of the work done.” Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998); see also Toussie v. County of Suffolk, No. 01-CV-6716, 2012 U.S. Dist. LEXIS 127143, 2012 WL 3860760, at *5 (E.D.N.Y. Sept. 6, 2010) (“The party seeking attorney’s fees ‘bears the burden of establishing entitlement to an award,’ and ‘[t]he applicant should exercise billing judgment’ with respect to hours worked and should maintain billing time records in a manner that will enable a reviewing court to
4 Although the Perdue decision cast doubt on the usefulness of the Johnson factors as a methodology for determining attorneys’ fees, 559 U.S. at 551, reference to the Johnson factors is still useful in calculating a presumptively reasonable fee in this Circuit. See Echevarria v. Insight Med., P.C., 102 F. Supp. 3d 511, 515 n.2 (S.D.N.Y. Apr. 29, 2015).
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identify distinct claims”) (quoting Hensley, 461 U.S. at 437). “Hours that are ‘excessive, redundant, or otherwise unnecessary,’ are to be excluded, Hensley v. Eckerhart, 461 U.S. at 434, 103 S. Ct. 1933, and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed ‘as a practical means of trimming fat from a fee application’.” Kirsch, 148 F.3d at 173 (quoting New York Association for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)); see also Toussie, 2012 WL 3860760, at *5 (“Counsel for the party seeking fees must ‘make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary,’ and failure to do so can result in denial of fees altogether”)(citation omitted). A prevailing party who is entitled to a fee award for his successful prosecution of successful claims is not entitled to a fee award for unsuccessful claims that were “based on different facts and different legal theories.” Hensley, 461 U.S. at 434. II. Analysis
Plaintiffs seek attorneys’ fees in the amount of $6,494,828.00 and costs of $229,891.66. This amount includes fees requested for work performed by attorneys and staff at Hogan Lovells, LCCRUL and Brewington. This matter has been litigated for 13 years, with two motions to dismiss and for summary judgment, 27 fact depositions, four expert depositions, multiple discovery motions and appeals of discovery motions, settlement and mediation attempts, an eleven-day trial, appeals and cross appeals. There are over 600 entries on the docket sheet for this matter.
A. Attorneys’ Fees
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1. Reasonable Hourly Rates To calculate the presumptively reasonable fee, a court must first determine a reasonable hourly rate for the legal services performed. A reasonable hourly rate is typically determined using the forum rule. See Restivo v. Hessemann, 846 F.3d 547, 590 (2d Cir. 2017), cert. denied, 138 S. Ct. 644, 199 L. Ed. 2d 528 (2018). Under the forum rule, the Court is guided by the hourly rates normally employed by lawyers with comparable skill, experience and reputation in this district. Moore v. Diversified Collection Servs., Inc., No. 07-CV-397, 2013 U.S. Dist. LEXIS 56246, 2013 WL 1622949, at *2 (E.D.N.Y. Mar. 19, 2013), report and recommendation adopted by, 2013 WL 1622713 (E.D.N.Y. Apr. 15, 2013); Mary Jo C. v. Dinapoli, No. 09-CV5635, 2014 WL 7334863, at *4 (E.D.N.Y. Dec. 18, 2014). The prevailing approach is that “‘current rates, rather than historical rates, should be applied in order to compensate for the delay in payment.’” Moore, 2013 WL 1622949, at *3 (quoting LeBlanc–Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) and citing Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989)). The reasonable hourly rate is the rate "a reasonable, paying client would be willing to pay." Arbor Hill, 522 F.3d at 184. "[I]n order to receive an attorney's fee award based on higher out-of-district rates, a litigant must overcome a presumption in favor of the forum rule, by persuasively establishing that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result." Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 172 (2d Cir. 2009). “Indeed, the ‘touchstone’ of the forum rule doctrine, as well as for awarding attorneys' fees in civil rights cases, is that ‘district courts should award fees just high enough to attract competent counsel.’” Restivo, 846 F.3d at 590 (quoting Simmons, 575
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F.3d at 176). “[T]o rebut the presumption that the forum rule applies, the party seeking higher fees ‘must make a particularized showing, not only that the selection of out-of-district counsel was predicated on experience-based, objective factors, but also of the likelihood that use of indistrict counsel would produce a substantially inferior result.’" Id.; Kindle v. Dejana, 308 F. Supp. 3d 698, 704 (E.D.N.Y. 2018) (“the forum rule's presumption concerning the range of reasonable rates within the district ‘may be rebutted—albeit only in the unusual case—if the party wishing the district court to use a higher rate demonstrates that his or her retention of an out-of-district attorney was reasonable under the circumstances as they would be reckoned by a client paying the attorney's bill’”) (quoting Arbor Hill, 522 F.3d at 191). Relevant factors include whether counsel has "special expertise in litigating the particular type of case, if the case is of such nature as to benefit from special expertise," whether any "in-district counsel possessed such expertise," and whether "local counsel possessing requisite experience were unwilling or unable to take the case." Id. at 175-76.
Plaintiffs argue that the forum rule should not be applied in the case because this case “was complex both factually and legally” and “prosecuting this case successfully has required very significant resources, and – given that Plaintiffs are non-profit organizations – has required attorneys who were willing to assume a long-term and significant commitment pro bono.” Pl. Initial Mem. at 6. According to Plaintiffs, selection of out-of-district counsel was not only desirable but essential since no other firm was in the position to expend the resources necessary. Id. at 7. To support this position, Plaintiffs rely on the testimony of Attorney Rich indicating that his firm had a difficult time finding a firm willing to take on this matter pro bono. Rich 2014 Reply Decl. ¶ 7. Further support is provided by the testimony of Attorney Brewington indicating
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his firm was initially approached to handle this matter, but he was forced to decline because his firm lacked the resources to handle a matter this large on its own. Brewington 2014 Reply Decl. ¶ 3; Rich 2014 Reply Decl. at ¶ 4. Additionally, according to Brewington, the larger firms in the Eastern District of New York, who may have had the resources available to litigate this matter were not in in position to take it on either due to conflicts or fear of political fallout. Brewington 2014 Reply Decl. ¶¶ 5-15.
According to Defendants, Plaintiffs’ counsel have failed to counter the presumption of the forum rule, because Plaintiffs offer no explanation “as to why the additional retention of Hogan Lovells was necessary, in light of the many highly capable large to mid-size firms located in the Eastern District, or why the LCCRUL, located in Washington D.C. was retained instead of a similar organization located in the eastern District of New York.” Def. Opp. To Renewed Motion at 21. However, Plaintiffs have offered an explanation for both of these selections, an explanation conveniently ignored by Defendants. First, Attorney Brewington testified he was approached first regarding possible representation in this matter and turned down the business because his firm lacked the interest to handle a litigation of this size. Brewington 2014 Reply Decl. ¶ 3. Second, it appears the larger firms on Long Island had conflicts or lacked the resources to litigate a matter this size. Id. Next, even among New York City firms it was difficult to find a firm willing to invest the resources necessary to handle this matter pro bono. Rich 2014 Reply Decl. ¶ 7. Finally, similar public interest firms in the Eastern District of New York such as Long Island Housing Services and ERASE Racism, were newly formed and lacked the resources and experience necessary to litigate this action. Brewington 2014 Reply Decl. ¶¶ 17-19. These factors weigh in favor of awarding out-of-district rates because "a 'reasonable' fee
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is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." Perdue, 559 U.S. at 552.
Defendants also contend that, while Attorneys Rich and Brewington are experienced in the civil rights area, the attorneys at Hogan Lovells lack such experience and thus, a departure for the standard fees in the Eastern District is not warranted. This Court does not agree. Hogan Lovells is a well-known and respected firm experienced at litigating complex matters. The staffing resources and litigation expertise available at a firm the size of Hogan Lovells provided Plaintiffs the optimal combination. In light of the contentious nature of this litigation it is likely that without the resources available at Hogan Lovells Plaintiffs would have achieved an inferior result. See Restivo, 846 F.3d at 590.
Absent a departure from the forum rule, courts have approved the following hourly rates for attorneys practicing in the Eastern District of New York: $300 to $450 for partners in law firms, $200 to $325 for senior associates, and $100 to $200 for junior associates. See Castcapa Constr., LLC v. TMB Servs., L.L.C, No. 17-CV-1023 (NGG) (SJB), 2018 U.S. Dist. LEXIS 14833, 2018 WL 623546 (E.D.N.Y. Jan. 30, 2018) (Junior associates are “typically compensated at between $100 to $200 per hour”); Thomas v. City of New York, No. 14 CV 7513, 2017 U.S. Dist. LEXIS 199235, 2017 WL 6033532, at *5 (E.D.N.Y. Dec. 1, 2017) ("An hourly rate of $450 remains within the range of rates found reasonable for partners with twenty or more years of experience in this District."); Smart v. City of New York, No. 15 CV 1405, 2017 U.S. Dist. LEXIS 24602, 2017 WL 933080, at *3 (E.D.N.Y. Feb. 17, 2017) ("In recent years, fees have been awarded in the Eastern District of New York at an hourly rate of $300 to $450 for partners and $100 to $325 for associates in civil rights cases."), report and recommendation adopted,
21

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 22 of 55 PageID #: 15813
2017 U.S. Dist. LEXIS 33221, 2017 WL 928472 (E.D.N.Y. Mar. 8, 2017). With respect to work done by paralegals and other non-attorneys, courts in this district have awarded rates between $70 and $100 per hour. See Castcapa Constr, 2018 U.S. Dist. LEXIS 14833; Thomas, 2017 U.S. Dist. LEXIS 199235 at *6; Advantedge Corp. v. Krajicek, No. 16 CV 1643 (WFK)(RML), 2017 U.S. Dist. LEXIS 218709 at * 10 (E.D.N.Y. Oct. 2, 2017).
Upon consideration of all of the factors prescribed by the Second Circuit, including those identified in Johnson, and recognizing the significant results Plaintiffs’ counsel achieved for their clients after many years of litigation combined with the difficulty faced by Plaintiffs in identifying counsel to handle this protracted matter on a pro bono basis the Court finds in some instances a departure from the prevailing rates in the Eastern District has been justified. Nonetheless, certain of the rates sought by Plaintiffs’ counsel are not consistent with the rates awarded in this District and a departure is not warranted. A detailed analysis of the rates awarded is below.

Hogan Lovells Attorneys

ATTORNEY

GRAD. YEARS RATE

RATE

HOURS

TOTAL FEES

LAW

ON

REQUESTED AWARDED REQUESTED5

SCHOOL MATTER

5 To the extent that an attorney is listed in both the Initial Application and the Supplemental Application the hours listed in this chart reflect the total hours billed as adjusted by the two Fleming Reply Declarations, which reduced the number of hours requested in Plaintiffs’ Initial Application and Supplemental Application to address concerns raised by Defendants’ expert and correct errors in removing hours.
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Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 23 of 55 PageID #: 15814

Feinberg

1972

Brown

1969

Sweeney
Donofrio Dennin6

1992 2002

Robertson 2000

Brandenburg 2006

Borkin

2006

Wasick

1999

Brandriss 2008

Garcia Henriquez Sein

2008 2008 2008

Cheng

2010

Cochet

2005

Smith

2004

Marton

2009

Mobassaleh 2005

Bridges

2002

Gove Sakae

2002 2001

Sleet

2005

Strangways 2002

Fleming

2011

20142018 20052018
20052015 20052010
20062013 20082018
20082011 20122014 20102015 20052011 20052010
20052008
20042005
20082010 20112018

$650
$475
$475 $325 $475/325
$325
$325 $325 $325
$325
$325 $325 $325
$325
$325
$325
$325 $325 $325
$325 $325
$325
$325

$625

314.5

$196,562.50

$475

1,719.68

$816,848.00

$400 $100 $400/300

673.5 194 517.6/586.1

$269,400.00 $19,400.00 $382,870.00

$300

253.34

$76,002.00

$300 $300 $300

116.5 106 192.56

$34,950.00 $31,800.00 $57,768.00

$300

2,455.3

$736,590.00

$300 $300 $300

339.15 389.75 1,288.91

$101,745.00 $116,925.00 $386,673.00

$300
$300
$300
$300 $300 $300
$300 $300
$300 $300
$300

585
626.03
440.75
287.45 220.25 802.38
108 123
209 106.5
1253.2

$175,500.00
$187,809.00
$132,225.00
$86,235.00 $66,075.00 $240,714.00
$32,400.00 $36,900.00
$62,700.00 $31,950.00
$375,960.00

6 Worked on the matter as an associate and partner. Requesting different billing rates for each. 23

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 24 of 55 PageID #: 15815

Reed

2012

Wilson

2013

Gregory

2010

Rabinowitz Estes MacElod

2010 2008 2012

Yamusah Coppola Sparks Schepp Masino Strickland Torres Lugo
Total Less onethird portion of time before 2/15/127

2016 2017 para para para para para Lit support

20122016 20132015 20102014
2014 20132016
2017

$325
$325
$325
$325 $325 $325
$325 $325 $150 $150 $150 $150 $150 $150

$300
$300
$300
$300 $300 $300
$300 $300 $150 $150 $150 $150 $150 $150

466.15
171.5
1,344.3
197.15 55 234.2
58 54.7 156.5 72.7 183.95 77.65 485.6 208.35

$139,845.00
$51,450.00
$403,290.00
$59,145.00 $16,500.00 $70,260.00
$17,400.00 $16,410.00 $23,475.00 $10,905.00 $27,592.50 $11,647.50 $72,840.00 $31,252.50
$5,608,014.00 ($814,871.08)

$4,793,142.92

Hogan Lovells seeks the following hourly rates for its partners: $650 for Attorney

Feinberg, $475 for Attorney Brown, $475 for Attorney Sweeny and $475 for Attorney Dennin,

for the years he worked as a partner. "The highest rates in this district are reserved for expert

trial attorneys with extensive experience before the federal bar, who specialize in the practice of

civil rights law and are recognized by their peers as leaders and experts in their fields." Medina

v. Donaldson, No. 10 CIV. 5922 VMS, 2015 U.S. Dist. LEXIS 1217, 2015 WL 77430, at *6

(E.D.N.Y. Jan. 6, 2015). However, the highest rates awarded in this district are “$400.00 to

7 See Fleming 2014 Reply Decl., Schedule A. 24

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 25 of 55 PageID #: 15816
$450.00 per hour for the most experienced trial attorneys.” Anderson v. Cty. of Suffolk, CV 091913 (GRB), 2016 U.S. Dist. LEXIS 48891, 2016 WL 1444594 (E.D.N.Y. Apr. 11, 2016); see also Solnin v. Sun Life & Health Ins. Co., 08-cv-2759 (DRH)(AYS), 2018 U.S. Dist. LEXIS 168047 at * 8 (E.D.N.Y. Sept. 28, 2018). As set forth in the Brown Declarations, Attorneys Feinberg and Brown both have significant trial and appellate experience which sets them apart from other experienced litigators. Brown 2014 Decl. ¶ 49; Brown 2018 Decl. ¶ 50, 51. Because Plaintiffs have justified a departure from the forum rule for the attorneys at Hogan Lovells, the reasonable rate for Attorney Feinberg shall be set at $625 and the reasonable rate for Attorney Brown shall be set at $475 per hour. With respect to Attorneys Sweeny and Dennin, both significantly junior partners, a rate of $400 per hour (above what is typically awarded in the Eastern District) is reasonable.
Hogan Lovells has requested reimbursement for all associate hours at $325 per hour. Brown 2014 Decl. ¶44. This represents a “blended rate” for all associates. Id. The Second Circuit has not endorsed the use of a blended rate. See, e.g., CIT Bank, N.A. v. Locastro, No. 17CV-1701 (AMD) (JO), 2018 U.S. Dist. LEXIS 131021 * 21 (E.D.N.Y. Aug. 2, 2018); First Keystone Consultants, Inc. v. Schlesinger Elec. Contrs., Inc., No. 10-CV-696(KAM)(SMG), 2013 U.S. Dist. LEXIS 34362 at * 21 (E.D.N.Y. Mar. 12, 2013); see also McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 98, 99 (2d Cir. 2006). Nevertheless, district courts in this Circuit have awarded attorney's fees based on blended rates in a number of cases involving law firms employing multiple attorneys, where higher-and lower-billing attorneys worked together on a case. See, e.g., Pig Newton, Inc. v. Bds. of Dirs. of the Motion Picture Indus. Pension Plan, No. 13 Civ. 7312 (KPF), 2016 U.S. Dist. LEXIS 22395
25

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 26 of 55 PageID #: 15817
(S.D.N.Y. Feb. 24, 2016); First Keystone Consultants, Inc. v. Schlesinger Elec. Contractors, Inc., No. 10-CV-696 (KAM)(SMG), 2013 U.S. Dist. LEXIS 34362, 2013 WL 950573, at *7 (E.D.N.Y. Mar. 12, 2013); Jackson Hewitt, Inc. v. Excellent Prof'l Servs., LLC, No. 08CV5237 (JG)(RER), 2010 U.S. Dist. LEXIS 141055, 2010 WL 5665033, at *4 (E.D.N.Y. Nov. 8, 2010), adopted, 2011 U.S. Dist. LEXIS 8795, 2011 WL 317969 (E.D.N.Y. Jan. 31, 2011). The use of a blended rate is appropriate in this circumstance, since 26 associates at all different levels worked on this matter over the course of 13 years.
The majority of the associates involved with this matter graduated from top law schools, many with honors, and have significant experience litigating complex matters. Brown 2014 Decl. ¶¶ 52-58, schedule B; Brown 2018 Decl. ¶¶ 53-61. None of the associates, however, have any particular experience in the civil rights area or other special expertise other than general experience handling complex litigation. Nevertheless, in light of this Court’s determination that Plaintiffs have rebutted the presumption that the forum rule applies, a blended rate of $300 is in line with hourly rates awarded in cases involving attorneys in the Southern District of New York. See, e.g., Raymond James & Assocs. v. Vanguard Funding, LLC, No. 1:17-cv-03327 (VSB) (SDA), 2018 U.S. Dist. LEXIS 64896 at * 13 (S.D.N.Y. Apr. 16, 2018) (awarding $275 per hour for junior associates); Euro Pac. Capital, Inc. v. Bohai Pharms. Grp., Inc., 15-CV-4410 (VM) (JLC), 2018 U.S. Dist. LEXIS 39135 at * 31, 2018 WL 1229842 (S.D.N.Y. Mar. 9, 2018) (awarding $250 per hour for associates with between one and eight years’ experience); Pig Newton, 2016 U.S. Dist. LEXIS 22395 (awarding a blended rate of $385 – for partners and associates-in a common fund case); Rubenstein v. Advanced Equities, Inc., No. 13-CV-1502 (PGG), 2015 U.S. Dist. LEXIS 16726, 2015 WL 585561, at *6-7 (S.D.N.Y. Feb. 10, 2015)
26

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(finding hourly rate of $525 reasonable for partners with between 20 and 30 years' experience and "blended" rate of $350 reasonable for associates with experience ranging from one to nine years).
There is one exception, with respect to Attorney Donofrio, Hogan Lovells has failed to provide even that barest of support for the hourly rate requested and therefore Hogan Lovells has failed to carry their burden that even $300 an hour is a reasonable rate. Accordingly, the Court will presume Attorney Donofrio has only minimal experience and will set the hourly rate for each at that of a junior associate in this district -- $100 per hour. See, e.g., Cruz v. Henry Modell & Co., No. CV 05-1450 (AKT), 2008 U.S. Dist. LEXIS 25339 (E.D.N.Y. Mar. 31, 2008) (awarding between $0 and $150 per hour for work of attorneys where “Plaintiff has not provided any supporting evidence as to the backgrounds and experience of these individuals or any evidence in support of the requested hourly rates for them”).
As discussed above, the typical fee for non-attorneys in this district ranges from $70$100. In the Southern District of New York “the prevailing rate for paralegals is between $100 and $200 per hour." TufAmerica Inc. v. Diamond, No. 12-CV-3529 (AJN), 2016 U.S. Dist. LEXIS 30645, 2016 WL 1029553, at *6 (S.D.N.Y. Mar. 9, 2016); see also Raymond James & Assocs. v. Vanguard Funding, LLC, 2018 U.S. Dist. LEXIS 64896 (S.D.N.Y. Apr. 16, 2018) (the hourly rates for paralegals set at $125 per hour); Euro Pac. Capital, Inc. v. Bohai Pharms. Grp., Inc., 2018 U.S. Dist. LEXIS 39135 (S.D.N.Y. Mar. 9, 2018) (awarding paralegal and managing clerk $150 per hour). Hogan Lovells requested hourly rate falls squarely in the middle of the range. Non-attorneys shall be compensated at a rate of $150 per hour.
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ATTORNEY
Rich Mullenbach

GRAD. LAW SCHOOL
1968 1979

Martinson 2008

Shaforth 2008

Emeagwali 2010

DeSario 2003

Silverstein 2013

Crook

2006

Total

LCCRUL Attorneys

YEARS ON RATE

RATE

HOURS

MATTER REQUESTED AWARDED BILLED8

TOTAL FEES

2005-2014 20112012; 2014 2012-2014 2009-2010 2010-2011 2005-2006 2014-2018 2014-2015

$475 $475
$325 $250 $250 $250 $325 $325

$475 $475
$325 $250 $250 $250 $325 $325

1,347.47 $640,048.25 134.61 $63,939.75

484.65 200.67 48.02 153.12 53.4 33.1

$157,511.25 $50,167.50 $12,005.00 $38,280.00 $17,355.00 $10,757.50 $990,064.25

“A reasonable hourly rate ‘does not depend on whether the attorney works at a private law firm or a public interest organization.’" Euceda v. Preesha Operating Corp., No. 14 cv 3143 (ADS)(SIL), 2017 U.S. Dist. LEXIS 103010 (E.D.N.Y. June 30, 2017) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 84 n.2 ). Therefore, the hourly rate to be applied to hours worked by attorneys at the LCCRUL shall be calculated using the same analysis as described above. Attorneys Rich and Mullenbach are both experienced litigators with extensive civil rights experience. Rich 2014 Decl. ¶¶ 6,7,14. Because Plaintiffs have justified a departure from the forum rule for the attorneys at LCCRUL, the reasonable rate for Attorneys Rich and Mullenbach shall be set at $475 per hour. Attorneys Martinson, Silverman and Cook were all of counsel to LCCRUL. Each of these attorneys has specialized experience litigating

8 To the extent that an attorney is listed in both the Initial Application and the Supplemental Application the hours listed in this chart reflect the total hours billed. LCCRUL reduced its time by one third to account for work on behalf of the County prior to February 15, 2012 in the Initial Application and the hours listed here reflect that reduction. Rich 2014 Decl. ¶26.
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Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 29 of 55 PageID #: 15820

fair housing claims. Rich 2014 Decl. ¶ 15, Rich 2018 Decl. ¶¶ 6-7. Accordingly, the hourly rate for these attorneys shall be set at $325. The remaining associates at LCCRUL are junior associates and a reasonable rate for an out-of-district attorney shall be set at $250 per hour.

ATTORNEY
Brewington

GRAD. LAW SCHOOL
1982

Brewington Attorneys

AA

YEARS RATE

RATE

ON

REQUESTED AWARDED

MATTER

2005-

$500

$450

2018

HOURS BILLED9
454.2310

TOTAL FEES
$204,403.50

Attorney Brewington seeks reimbursement at an hourly rate of $500 per hour. In recent cases within this District, where Mr. Brewington is well known, his hourly rate has been set at $450 per hour. See, e.g., Anderson v. Cty. of Suffolk, CV 09-1913 (GRB), 2016 U.S. Dist. LEXIS 48891, 2016 WL 1444594 (E.D.N.Y. Apr. 11, 2016). Where, as here, Mr. Brewington’s role is described as that of local counsel, the is no justification for an award higher than that amount. Accordingly, Attorney Brewington’s hourly rate is set at $450 per hour.
2. Reasonable Hours “In calculating the number of reasonable hours, the court looks to its own familiarity with the case and its experience with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.” Clark v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (internal quotation marks and citation omitted); Kindle, 308 F. Supp. 3d at 704. The plaintiff

9 To the extent that an attorney is listed in both the Initial Application and the Supplemental Application the hours listed in this chart reflect the total hours billed. 10 This amount reflects a reduction in hours of 29.87, which as discussed below, is a reduction of one-third from the hours requested to reflect hours devoted to the appeal of County relatedclaims.
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must show contemporaneous time records, detailing, “for each attorney, the date, the hours expended, and the nature of the work done.” New York State Ass’n for Retarded Children, 711 F.2d at 1148. The Court must assess the reasonableness of the time expended and adjust those portions of an invoice that reflect “excessive, redundant or otherwise unnecessary” hours. Hensley, 461 U.S. at 434 (1983); Kindle, 308 F. Supp. 3d at 705. “If the court determines that the number of hours expended was excessive, redundant or otherwise unnecessary, the court may make reductions to individual entries, or elect to account for such over-billing in an across-theboard percentage deduction.” Manzo v. Sovereign Motors Cars., Ltd., No. 08-CV-1229 (JG)(SMG), 2010 U.S. Dist. LEXIS 46036, 2010 WL 1930237, at *8 (E.D.N.Y. May 11, 2010) (internal quotation marks and citation omitted). “The Court is not, however, required to set forth item-by-item findings concerning what may be countless objections to individual billing items.” Regan v. Conway, 768 F. Supp. 2d 412, 418 (E.D.N.Y. 2011).
a. Reasonableness in Light of Success Achieved The Garden City Defendants contend that the lodestar amount should be reduced to reflect the degree of success that Plaintiffs achieved. It is the Garden City Defendants’ position that despite Judge Spatt’s decision finding them liable for unlawful racial discrimination under four separate statutes on two separate legal theories, issuance of a permanent injunction in Plaintiffs’ favor and the Second Circuit’s affirmance of Judge Spatt’s decision on appeal Plaintiffs’ fee request is unreasonable because “Plaintiffs did not achieve the broad, sweeping relief they sought.” See Def. Opp. To Renewed Motion at 8. The Court finds this argument lacks merit, and the fee award shall not be reduced on this basis.
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The Garden City Defendants also contend that Plaintiffs’ attorneys’ fees should be reduced due to unsuccessful claims against the County and under Section 1982. See Def. Initial Opp. 16-18. “In resolving whether an attorney's potential fee should be reduced based upon the degree of Plaintiff's ultimate success at trial, ‘the Court must determine 'whether the claims on which plaintiff [ ] failed are sufficiently related to the prosecution of claims on which he succeeded, such that the time spent on the failed claims should be compensated.'" Cabrera v. Schafer, No. CV 12-6323 (ADS) (AKT), 2017 U.S. Dist. LEXIS 24606 (E.D.N.Y. Feb. 17, 2017) (quoting Tatum v. City of N.Y., No. 06-CV-4290, 2010 U.S. Dist. LEXIS 7748, 2010 WL 334975, at *10 (S.D.N.Y. Jan. 28, 2010); see also Hensley, 461 U.S. at 435 (finding that a fee award may require reduction where a plaintiff "has achieved only partial or limited success"); G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F. Supp. 2d 415, 428 (S.D.N.Y. 2012) ("[C]ourts may make adjustments to the presumptively reasonable fee based on [ ] the degree of success obtained by the prevailing party”). "A prevailing party who is entitled to a fee award for his successful prosecution of successful claims is not entitled to a fee award for unsuccessful claims that were 'based on different facts and different legal theories.'" Kirsch, 148 F.3d at 173 (quoting Hensley, 461 U.S. at 434). However, when a plaintiff's claims for relief involve common facts and legal issues, a court should not reduce fee requests due to unsuccessful claims if the successful and unsuccessful claims are "inextricably intertwined and involve a common core of facts or are based upon related legal theories." Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999) (citations and internal quotation marks omitted); Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir. 1996) ("Where the district court determines that the successful and unsuccessful claims are 'inextricably intertwined' and 'involve a common core of facts or
31

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 32 of 55 PageID #: 15823
[are] based on related legal theories,' it is not an abuse of discretion for the court to award the entire fee.") (quoting Dominic v. Consol. Edison Co. of N.Y., Inc., 822 F.2d 1249, 1259 (2d Cir. 1987)). Because all of Plaintiffs’ claims here arise out of a common set of facts, Plaintiffs’ fee request shall not be reduced on this basis alone.
In addition, Plaintiffs have taken steps to remove time from their fee application relating solely to claims against the County. In both the Initial and Supplemental Applications, Hogan Lovells and LCCRUL eliminated time entries that clearly related to claims against the County. Brown 2014 Dec. ¶ 30; Brown 2018 Decl. ¶ 33; Rich 2014 Decl. ¶ 24; Rich 2018 Decl. ¶ 12. Hogan Lovells and LCCRUL have also reduced all time entries prior to February 15, 2012 – the date the Court dismissed all claims against the County – by one-third. Brown 2014 Dec. ¶ 30; Brown 2018 Decl. ¶ 34; Rich 2014 Decl. ¶ 24; Rich 2018 Decl. ¶ 12. In addition, in response to issues raised by Defendants’ expert, Hogan Lovells reduced the fee request by over 200 hours. See Fleming 2014 Reply Decl. ¶ 10; Fleming 2018 Reply Decl. ¶5, Schedule A. These reductions are sufficient to adjust the fee award for the unsuccessful claims.
Brewington reduced its fees by removing any entries from the Initial Application that related to claims against the County, however, it did not reduce its fees by one-third for the hours in connection with the appeal. Brewington is requesting reimbursement for 89.7 hours for the period May 14, 2014 through March 15, 2018. Brewington 2018 Decl. ¶ 20. Since Attorney Brewington did not adjust his hours to reflect work done for the County an across the board reduction of one-third will be applied, thus his hours shall be reduced to 59.83.
b. Recovery of Fees for Monitoring Effort
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Defendants also contend that Plaintiffs cannot recover for monitoring efforts. Def. Opp. To Renewed Motion 8-13. According to Defendants, Plaintiffs billed 114 hours ($37,506) in connection with the selection of the FHCO and 586 hours (roughly $229,000) of time since the FHCO, Mr. LaPinta, was appointed to the role. Bronsther 2018 Decl. at ¶ 28. The Garden City Defendants argue that “[b]ecause the Judgment did not contemplate Plaintiffs’ monitoring of the Village” Plaintiffs should not be permitted to recover any attorneys’ fees for monitoring activity. Def. Opp. to Renewed Motion at 9.
"Several courts have held that, in the context of . . . 42 U.S.C. § 1988, post-judgment monitoring of a consent decree is a compensable activity for which counsel is entitled to a reasonable fee." Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 559, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986) (citing Garrity v. Sununu, 752 F.2d 727, 738-39 (1st Cir. 1984); Bond v. Stanton, 630 F.2d 1231, 1233 (7th Cir. 1980); Miller v. Carson, 628 F.2d 346, 348 (5th Cir. 1980); Northcross v. Board of Education, 611 F.2d 624, 637 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980)); see also New York Ass'n for Retarded Children, 711 F.2d at 1145 (§1988 action); Grier v. Goetz, 421 F. Supp. 2d 1061, 1076 (M.D. Tenn. 2006) ("[W]hen post-decree monitoring work protects the relief awarded under the consent decree, ensures compliance with the decree, or is critical to the vindication of the plaintiff's rights under the consent decree, compensation for the activity is proper within the trial court's discretion") (citing Delaware Valley, 478 U.S. at 561)); Wilder v. Bernstein, 975 F. Supp. 276, 280 (S.D.N.Y. 1997) (finding post-judgment monitoring of consent decree is compensable under § 1988), reconsideration denied, 982 F. Supp. 264 (S.D.N.Y. 1997).
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However, “a plaintiff must at least show that its post-judgment monitoring work was "necessary to enforce the remedy ordered by the District Court[.]" United States v. Tennessee, 780 F.3d 332, 339 (6th Cir. 2015) (quoting Delaware Valley, 478 U.S. at 559). “Whether a plaintiff's post-judgment monitoring is necessary, of course, depends on the facts of the particular case.” Tennessee, 780 F.3d at 339. Here, Plaintiffs argue that the post-judgment monitoring work was necessary because (1) the Judgment contemplates that the Plaintiff will monitor compliance with the Judgment, (2) its efforts were not duplicative of the work done by the FHCO, and therefore, were, necessary and (3) its regular meetings with the FHCO were necessary to insure compliance and, in fact, it is because of these regular meeting that Plaintiffs were able to petition the Court to extend the Final Judgment’s terms because of delays in implementing Court-ordered relief. Pl. Supp. Reply at 3-5.
The Judgment provides “[t]he FHCO may not be a current or past employee or elected official of Garden City, but rather, shall be a third-party independent contractor mutually agreed upon by the parties.” ECF No. 431 at 7-8. Thus, to the extent Defendants object to fees incurred in connection with the FHCO selection process, that objection is rejected, since Plaintiffs’ participation in the selection process is contemplated by the Judgment.
The Judgment further provided that “[t]he parties shall work cooperatively with one another and in good faith and should use their best efforts to effectuate the purposes of this Judgment.” Id. at 10. It is clear the Judgment contemplates some monitoring by Plaintiffs, however, the number of hours devoted to monitoring by Plaintiffs’ counsel is excessive. The FHCO was paid a total of $254,404.00. Declaration of Ariel E. Ronneburger, dated April 27, 2018 ¶ 2. And Plaintiffs request $266,466.75 in attornys’While it appears to the Court that the
34

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Judgment did contemplate some monitoring of compliance with the Judgment by Plaintiffs, it is inconceivable that Plaintiffs attorneys’ fees could be roughly equal to the fees paid to the FHCO. The Garden City Defendants request a 25% reduction in fees. Def. Opp. To Renewed Motion at 14. As discussed below, the Court need not engage in an item by item reduction of fees but rather the Court has discretion to deduct a percentage of hours across the board. See, e.g., Anello v. Anderson, 191 F. Supp. 3d 262, 283 (W.D.N.Y. 2016) ("[T]he district court is not obligated to undertake a line-by-line review of [an] extensive fee application . . . In that regard, [a] court has discretion to impose an across-the-board reduction if an attorney has billed excessive, redundant, or unnecessary hours"). Accordingly, this excessive billing shall be factored into the Court’s analysis regarding the appropriate across the board reduction.
c. Impermissible Billing Practices Defendants have identified a number of billing practices employed by each of the Plaintiffs’ law firms which, according to Defendants, require a drastic reduction in fees. According to Defendants, the lodestar should be reduced further because billing entries were in block format, were vague, excessive, duplicative and the matter was over staffed. See Def. Initial Opp. at 19-24; Def. Opp. to Renewed Motion at 14-18. In support of its position, Defendants rely on the Reports of their Expert, Judith Bronsther. In response, in both the Initial Application and Supplemental Application, Plaintiffs have removed certain time entries challenged by Defendants’ expert. Fleming 2014 Reply Decl. ¶¶ 10-17; Fleming 2018 Reply Decl. ¶¶ 5-8. With respect to the remainder of Defendants’ challenges Plaintiffs argue that block billing is permissible, (Pl. Supp. Reply at 9), the hours, while substantial, were not excessive and have
35

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already been voluntarily reduced by 30% (Pl. Reply at 6) and Defendants’ challenges regarding vagueness are not supported by a cursory review of the entries in context (Pl. Reply at 7-8).
Where, as is the case here, "the billing records are voluminous, it is less important that judges attain exactitude, than that they use their experience with the case, as well as their experience with the practice of law, to assess the reasonableness of the hours spent." E.S. v. Katonah-Lewisboro Sch. Dist., 796 F. Supp. 2d 421, 431 (S.D.N.Y. 2011) (quoting Do Yea Kim v. 167 Nail Plaza, Inc., 05 CV 8560 (GBD) (GWG), 2009 U.S. Dist. LEXIS 1992, 2009 WL 77876, at *4 (S.D.N.Y. Jan. 12, 2009) (citation and internal quotation marks omit)). The Court is not required to “’set forth item-by-item findings concerning what may be countless objections to individual billing items[.]’" Reiter v. Metro. Transp. Auth. of State of N.Y., No. 01 CIV 2762G, 2007 U.S. Dist. LEXIS 71008, 2007 WL 2775144, at *13 (S.D.N.Y. Sept. 25, 2007) (quoting Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994)). "[T]he court has discretion simply to deduct a reasonable percentage of the number of hours claimed as ‘a practical means of trimming fat from a fee application.’” Kirsch, 148 F.3d at 173 (quoting New York Association for Retarded Children, 711 F.2d at 1146); Anello v. Anderson, 191 F. Supp. 3d at 283 ("[T]he district court is not obligated to undertake a line-by-line review of [an] extensive fee application ... In that regard, [a] court has discretion to impose an across-the-board reduction if an attorney has billed excessive, redundant, or unnecessary hours.") (internal citations omitted); see also Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 188 F. Supp. 3d 333, 344 (S.D.N.Y. 2016) ("'It is common practice in this Circuit to reduce a fee award by an across-theboard percentage where a precise hour-for-hour reduction would be unwieldy or potentially inaccurate.'") (quoting Ass'n of Holocaust Victims for Restitution of Artwork & Masterpieces v.
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Bank Austria Creditanstalt AG, No. 04-CV-3600, 2005 U.S. Dist. LEXIS 28880, 2005 WL 3099592, at *7 (S.D.N.Y. Nov. 17, 2005), reconsideration denied, 2009 U.S. Dist. LEXIS 106384, 2009 WL 3816976 (S.D.N.Y. Nov. 10, 2009)).
Indeed, where counsel relies on vague, excessive entries or block billing practices making it difficult to assess reasonableness, an across-the-board fee reduction is warranted. See Anderson, 2016 U.S. Dist. LEXIS 48891 (recognizing that where "counsel relies on vague entries and block billing, courts are unable to review hours for reasonableness" and noting that "[c]ourts have imposed reductions as high as 40% based solely on vague billing entries"); Solnin, 2018 U.S. Dist. LEXIS 168047 (“An across-the-board fee reduction is warranted when counsel relies on vague entries, excessive billing, or block billing practices that make it difficult for the court to assess reasonableness”). Plaintiffs are correct that block billing is not prohibited in the Second Circuit. See Restivo, 846 F.3d at 592 (“Although block billing is not preferred, it is permissible so long as the records allow the court to conduct a meaningful review of the hours requested”). And, a review of the time records complained of by Defendants reveals, for the most part, adequately described time entries, there are nonetheless, certain time entries that are unquestionably vague. For example, Defendants expert identified descriptions such as “document review” and “work on draft briefs” and prepare for trial” with no further explanation. See Bronsther 2014 Decl. Ex. C at 53-58
Moreover, “the Court is aware that ‘within large-scale litigation . . . there are inherent inefficiencies and redundancies that occur with respect to the time expended on a case employing numerous attorneys, which are outside the scope of compensable attorneys' fees.’" In re Eastman Kodak ERISA Litig., 213 F. Supp. 3d 503, 507 (W.D.N.Y. 2016) (quoting Severstal Wheeling,
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Inc. v. WPN Corp., No. 10 Civ. 954 (LTS)(GWG), 2016 U.S. Dist. LEXIS 53563 at *15, 2016 WL 1611501 (S.D.N.Y. Apr. 21, 2016)); see also Kindle, 308 F. Supp. 3d at 714 (“a ten percent (10%) across-the-board the fee cut is appropriate in order to mitigate instances of duplicative and unnecessary billing, which, despite counsel's best efforts, is an inherent issue in protracted litigation involving the retention of and contemporaneous work performed by multiple law firms”). While Hogan Lovells and LCCRUL did take steps to cut down on excessive hours and overstaffing by removing the time of attorneys that did not devote significant blocks of time to the matter, eliminating time entries that appeared duplicative and reducing the time billed by attorneys that were newly assigned to the case, it is impossible given the more than 30 attorneys involved with this matter to remove all inefficiencies and redundancies.
Here, in light of the voluntary reductions already taken, the length of the litigation, and the complexity of the issue involved balanced against the impermissible billing practices, including excessive billing for FHCO monitoring described above, the Court finds that a 15% reduction in fees is appropriate.
Thus, the Court awards attorneys’ fees in the amount of $5,089,469.07.
B. Costs Lastly, the award requested includes initial costs of $204,566.72 and supplemental costs of $25,324.94. “Attorney’s fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” Field Day, LLC v. County of Suffolk, No. CV 04-2203(DRH)(ETB), 2010 U.S. Dist. LEXIS 137430, 2010 WL 5491025, at *8 (E.D.N.Y. Sept. 9, 2010) (internal quotation marks and citations omitted), report and
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recommendation adopted by, 2010 WL 5490990 (E.D.N.Y. Dec. 30, 2010); see also Larson v.

JBC Legal Group, P.C., 588 F. Supp. 2d 360, 365 (E.D.N.Y. 2008) (“Attorneys may be

compensated for reasonable out-of-pocket expenses incurred and customarily charged to their

clients, as long as they were incidental and necessary to the representation of those clients.”)

(internal quotation marks and citations omitted). Court filing fees, process servers, printing and

photocopying, messenger services, postage, telephone costs, transcripts, travel, transportation,

meals and other “[o]ut of pocket litigation costs are generally recoverable if they are necessary

for the representation of the client.” AW Indus., Inc. v. Sleep Well Mattress, Inc., No. 07-CV-

3969(SLT)(JMA), 2009 U.S. Dist. LEXIS 15567, 2009 WL 485186, at *6 (E.D.N.Y. Feb. 26,

2009) (internal quotation marks and citation omitted).

The breakdown of costs requested by firm is as follows:

Initial Fee Application

Costs Requested $204,566.72

Hogan Lovells

$188,999.87

Photocopying Shipping Research Discovery Vendors Courtroom Tech. Costs Temporary office space Hotel Costs Expert Fees Mediation Fees

$ 26,370.23 $ 5,573.22 $ 28,826.2611 $ 13,021.43 $ 3,974.06 $ 24,778.08 $ 37,639.96 $ 37,030.75 $ 11,785.88

11 By letter dated December 10, 2018, Plaintiffs’ counsel advised the Court that this number contained a typographical error and the correct amount should be $22,826.26. This Amended Order adjusts the amount of costs awarded to Plaintiffs to reflect this correction and also corrects several mathematical errors in the original Order.
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LCCRUL

$ 20,449.25

Shipping Research Travel

$ 15.78 $ 2,597.52 $ 17,835.95

Brewington

$ 1,117.60

Photocopying Shipping Travel

$ 937.00 $ 1.62 $ 175.70

Supplemental Fee Application $ 25,334.94

Hogan Lovells

$ 21,321.2412

Outside Prof. Services Travel Costs Transcript Fees

$ 1,445.30 $ 350.00 $ 19,526.04

LCCRUL13

$ 3,524.70

Research Travel14
Contract Item
Court Costs

$ 566.16 $ 2,313.29 $ 5.14 $ 216.00

Brewington

$ 439.00

Photocopying

$ 439.00

12 In the Brown 2018 Decl., Hogan Lovells requests $20,781.24 in total costs, however the
invoices provided total $21,321.24. Compare Brown 2018 Decl. ¶64 with Brown 2018 Decl., Ex.
3. The total of the invoices shown on Exhibit 3 is the total supporting the total costs requested. 13 The invoices provided by LCCRUL do not total this amount. Adding the categories as listed
here comes to 3,224.72, but see footnote related to travel expenses. 14 This number should be lower. According to Exhibit 2, LCCRUL reduced travel expenses by
$891.50 to reflect travel related to the County, however, totaling the entries designated as County
related equals $1,015.63, therefore travel expenses should be $2,313.29.
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1. Copying, Printing, Travel, Telephone and Research "Courts have identified the following non-exhaustive list of expenses as those ordinarily charged to clients, and therefore, recoverable: photocopying, travel, telephone costs, and postage." Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d 381, 401 (S.D.N.Y. 2000). Plaintiffs and their respective attorneys have submitted detailed records of photocopying, printing and binding, travel expenses, e-discovery vendor charges and legal research, all of which are routinely recoverable as costs. See Brown 2014 Decl.; Rich 2014 Decl.; Brewington 2014 Decl.; Fleming 2014 Reply Decl.; Brown 2018 Decl.; Rich 2018 Decl.; Brewington 2018 Decl.; Fleming 2018 Reply Decl. With respect to photocopying, the standard reimbursement rate is roughly ten cents per page. See, e.g., Cabrera, 2017 U.S. Dist. LEXIS 24606 at * 56 (going rate in the district is ten cents per page); United States v. City of New York, No. 07-CV-2067 (NGG)(RLM), 2013 U.S. Dist. LEXIS 125461, 2013 WL 5542459 (E.D.N.Y. Aug. 30, 2013) (reducing photocopying costs to ten cents per page), Torres v. Gristede's Operating Corp., No. 04 Civ. 3316 (PAC), 2012 U.S. Dist. LEXIS 127890, 2012 WL 3878144, at *5 (S.D.N.Y. Aug. 6, 2012) (declining to award twelve cents per page and reducing the award to ten cents per page). Here, Hogan Lovells requests copying fees of $26,370.23 in the Initial Application and $1,445.20 in the Supplemental Application. Brown 2014 Decl. ¶ 65; Brown 2018 Decl. ¶ 65, Ex. 3. With respect to the Initial Application, between April 2005 and April 2014 Hogan and Lovells copied 226,116 pages inhouse at a rate of ten cents per page for black and white copies and thirty cents per page for color copies. Hogan Lovells then reduced by one-third the total charges to reflect work related to the County, resulting in in-house copying costs of $15,956.73. Brown 2014 Decl., Exh. B. Also
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included in the Initial Application were copying costs of $10,413.50 paid to outside vendors, which reflects copying costs of twelve cents per page. Id. The total of the invoices was also reduced by 1/3 to reflect work related to the County resulting in a requested reimbursement of $10,413.50. Id. at 73. The total cost of copying identified in the Initial Application by Hogan Lovells is $26,370.20. The Court finds these costs reasonable.
In the Supplemental Application, Hogan Lovells requests $126.45 for copying charges and postage paid to the Village of Garden City. The invoices provided by the Incorporated Village of Garden City do not contain the per page charge for the copies. See Brown 2018 Decl. Exh. 3. The Supplemental Application also contains a request for printing costs of $1,318.75. These costs were also reduced by one-half to reflect the portion of the Second Circuit brief relating to the County. See id. at ¶ 66. The Court finds these costs reasonable.
Brewington has requested $937.00 for copying costs in the Initial Application and $439 copying costs in the Supplemental Application. Brewington 2014 Decl., Ex. A; Brewington 2018 Decl., Ex. A. In the Initial Application, Brewington requests reimbursement of $937 for 3,748 copies at 25 cents per page. This is well above the standard reimbursement rate of ten cents per page, and therefore this request will be reduced to $374.80. Similarly, in the Supplemental Application, Brewington requests reimbursement for copying costs at 25 cents per page for 1,756 pages. Brewington 2018 Decl., Exh. A at 13. Once again, this request will be reduced to reflect the standard reimbursement rate of ten cents per page, for a total of $175.60. Thus, the total awarded to Brewington for copying costs shall be $550.40.
Each of the three firms has sought reimbursement for shipping and postage costs in the Initial Application and not in the Supplemental Application. The costs sought by LCCRUL and
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Brewington, $15.78 and $1.62, respectively, are reasonable and shall be awarded by the Court. With respect to the costs for shipping and postage sought by Hogan Lovells, $5,573.22, this represents the totals of invoices for postage and federal express deliveries, reduced by one-third for all amounts incurred before February 15, 2012. Brown 2014 Decl. ¶¶ 74-80. Upon review of the invoices provided, this request appears reasonable and shall be awarded by the Court.
Hogan Lovells and LCCRUL also request reimbursement of costs incurred for research. In the Initial Application, Hogan Lovells seeks reimbursement of $22,826.26 for research costs. This amount does not included amounts for legal research on the Lexis or Westlaw databases because the firm pays a flat fee for legal research on these sites which includes an allowance for pro bono research. Brown 2014 Decl. ¶¶ 81-83. The research included in the application pertains to out-or-pocket expenses for library fees for book borrowing, Pacer, Courtlink and Accurint. The firm reduced the application by 1/3 for charges incurred before February 15, 2012. Id. at ¶ 88. The Court finds this request reasonable, particularly given the nature of the searches that included searching court filings from as far back as the 1970s. See, e.g., Id., Ex. D Tab 9.
LCCRUL has also requested reimbursement for research expenses in the Initial and Supplemental Application. Rich 2014 Decl., Ex. 3; Rich 2018 Decl., Ex. 2. In the Initial Application, LCCRUL sought costs associated with research of $2,597.52, however, the invoices provided total $2,497.52, so at the outset any potential award must be reduced to $2,497.52. Next, while LCCRUL reduced its fee application for the period prior to February 15, 2012 by one-third to represent work relating to the County, they did not reduce the costs requested in the same manner. Thus, based on the invoices provided, $964.14 of the research costs were incurred
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prior to February 15, 2012. Reducing that amount by one third leaves recoverable costs of $645.98. Adding $645.98 to research costs incurred after February 15, 2012 equals total recoverable research costs of $2,179.36. In the Supplemental Application, LCCRUL requests research costs of $566.15. See Rich 2018 Decl., Exh. 2. This amount appears reasonable.
Court filing fees are generally recoverable as costs if necessary for the representation of the client. See Bank of Am., N.A. v. Viders, CV 10-0025(DRH)(ARL), 2011 U.S. Dist. LEXIS 116796, 2011 WL 4527419 (E.D.N.Y. July 26, 2011). LCCRUL requests reimbursement of $216.00 in the Supplemental Application, however, Exhibit 2, to the Supplemental Declaration of Joseph D. Rich in support of Supplemental Motion for Attorneys’ Fees is illegible and the Court is unable to determine the appropriateness of this request, accordingly, this request is denied. In addition, LCCRUL requests reimbursement of $5.14 for “contract items.” The invoice provided is not sufficiently specific and thus the request is denied.
In the Initial Application, Hogan Lovells requests reimbursement of mediation fees totaling $11,785.88. Mediation fees among the reasonable out of pocket expenses incurred by attorney and passed along to their clients. See Leser v. U.S. Bank N.A., 09-CV-2362 (KAM)(MDG), 2013 U.S. Dist. LEXIS 67468, 2013 WL 1952306 (E.D.N.Y. May 10, 2013) (“mediator's fee appears to be among the ‘reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients’”) (citation omitted); Anwar v. Fairfield Greenwich Ltd., No. 09-CV-118(VM), 2012 U.S. Dist. LEXIS 78929, 2012 WL 1981505, at *3 (S.D.N.Y. June 1, 2012) (reimbursing expenses such as "mediation fees, expert witness fees, electronic legal research, photocopying, postage, and travel expenses, each of which is the type 'the paying, arms' length market' reimburses attorneys" (quoting In re Global Crossing Sec. &
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ERISA Litig., 225 F.R.D. 436, 468 (S.D.N.Y. 2004)); In re Flag Telecom Holdings, No. 02-CV3400 (CM)(PED), 2010 U.S. Dist. LEXIS 119702, 2010 WL 4537550 (S.D.N.Y. Nov. 8, 2010) (mediation fees typically awarded as costs). Hogan Lovells has provided invoices from the multi-day mediations session with JAMS totally $11,785.88. The Court finds these amounts reasonable and Hogan Lovells shall be awarded costs in that amount.
With respect to e-discovery vendor costs, Hogan Lovells has submitted invoices totaling $19,532.14 and reduced the amount sought for reimbursement by one-third to the extent the charges were incurred before February 2012 reflecting work relating to the County. Brown 2014 Decl. ¶¶ 91-96. The amount sought by Hogan Lovells for Discovery Vendors in the Initial Application is $13,021.43. Discovery vendor costs are the type of costs typically passed along to the client, and thus are recoverable. See, e.g., Sykes v. Mel Harris & Assocs., LLC, 09 Civ. 8486 (DC), 2016 U.S. Dist. LEXIS 74566 (S.D.N.Y. May 24, 2016); Leser v. U.S. Bank N.A., 2013 U.S. Dist. LEXIS 67468. The Court finds this amount to be reasonable and will award costs in that amount.
Finally, in the Initial Application, each of the three firms seeks reimbursement of travel costs. In the Initial Application, Hogan Lovells requests $37,639.96 for hotels room used during the course of the eleven-day trial before Judge Spatt. Brown 2014 Decl. ¶110. In the Supplemental Application, Hogan Lovells requests reimbursement of $350 travel costs, and the LCCRUL seeks $2,437.42.15 While, travel costs may be denied where a party chooses out-ofdistrict attorneys, Pall Corp. v. 3M Purification Inc., CV 97-7599 (RRM)(ETB); CV 03-0092
15 Brewington does not request reimbursement of travel expenses in the Supplemental Application.
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(RRM)(ETB), 2012 U.S. Dist. LEXIS 76755, 2012 WL 1980403 (E.D.N.Y. June 1, 2012), the Garden City Defendants do not object to the reimbursement of travel expenses. In light of the substantial experience of the firms retained by Plaintiffs the Court will not reject these costs on this basis alone.
In the Initial Application, Hogan Lovells is requesting hotel cost of $37,639.96 incurred over the course of the eleven-day trial. According to the invoices provided, Hogan Lovells incurred charges for rooms and boardrooms. These charges appear excessive. For example, Hogan Lovells was billed for 81 room nights for the period June 27, 2014 through July 3, 2014. Brown 2014 Decl., ex. G. Hogan Lovells argues this stay was necessary because of the distance between the Courthouse in Central Islip and Manhattan, where the firm is located. Additional Hogan Lovells points out that it is not seeking reimbursement for meals and other travel expenses that would typically be passed along to the client. Brown 2014 Dec. ¶ 103. While it may have been more convenient for Plaintiffs’ counsel to locate in Central Islip during the trial it was not essential that they do so. Lawyers when on trial routinely commute from New York City to Central Islip. Moreover, the Court finds a charge for more than 81 nights of hotel stay for an eleven-day trial to be unreasonable. Hogan Lovells shall be awarded four hotel rooms for 11 days at the rate set forth in Exhibit G of $140 per night for a total of $6,160. Hogan Lovells also requests reimbursement of travel costs of $350 in the Supplemental Application, representing roundtrip travel to Washington D.C. by train. The Court finds this amount reasonable.
In the Initial Application, LCCRUL requests reimbursement of travel costs totaling $17,835.95. Rich 2014 Decl., Ex. 3. These expenses were incurred between August 20, 2009
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and July 4, 2013. These expenses were not reduced to reflect amounts attributable to the County, thus this request will be reduced by one-third, leaving $11,950.09 in recoverable costs. In the Supplemental Application, LCCRUL requests reimbursement of travel expenses totaling $2,437.42. According to the invoice provided, total travel expenses for the period equaled $3,328.92. LCCRUL then reduced the requested reimbursement by $891.50 to reflect charges related to the County portion of the litigation. However, the total of the entries designated as County related comes to $1,015.63, so travel expenses should be $2,313.29. See Rich 2014 Decl. Ex. 3. These expenses for both the Initial and the Supplemental Application were incurred predominantly by Mr. Rich and include, airfare, train tickets, rental cars, lodging and meals. These amounts appear reasonable and reimbursement of $11,950.09 requested in the Initial Application and $2,313.29 requested in the Supplemental Application shall be awarded.
Brewington requests reimbursement of travel costs totaling $175.70. A review of the invoices provided indicated Brewington incurred travel expenses of $173, comprised of $43 on 5/31/2013, $65 on 6/10/2013 and another $65 on 6/10/2013. A review of the time records for those days indicates Brewington attended meetings with co-counsel, however, there is no indication as to why travel would be necessary since Brewington is located in the Eastern District of New York. Thus, this request is denied.
2. Expert Fees In the Initial Application, Hogan Lovells requests $37,030.75 in expert fees. Brown 2014 Decl. ¶¶ 111-118. Defendants’ expert did not challenge Plaintiff’s request for reimbursement of expert fees, nor did the Garden City Defendants challenge this request in their opposition to the
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fee application. With respect to Hogan Lovells’s request for reimbursement of expert fees, subsection (c) to § 1988 provides:
In awarding an attorney's fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney's fee.
42 U.S.C. § 2000e-5(k); see also United States v. City of New York, No. 07-CV-2067 (NGG)(RLM), 2013 U.S. Dist. LEXIS 125461, 2013 WL 5542459 (E.D.N.Y. Aug. 30, 2013) (“An award of fees under Title VII explicitly includes award of expert fees”). The party seeking reimbursement for expert fees bears the burden of proving reasonableness. Matteo v. Kohl's Dep't Stores, Inc., No. 09 CV 7830, 2012 U.S. Dist. LEXIS 151568, 2012 WL 5177491, at *5 (S.D.N.Y. Oct. 19, 2012). “Courts consider various factors in determining the "reasonableness" of an expert's fee, including: 1) the educational background and training of the expert; 2) the field in which the witness has expertise; 3) the rates of comparable experts; 4) the nature and complexity of the discovery involved; 5) the cost of living in the geographic area; 6) the fee being charged to the party retaining the expert; 7) fees traditionally charged by the expert on related matters; and 8) any other factors that would be of assistance to the court.” Brown v. Green 317 Madison, LLC, No. 11 CV 4466 (ENV), 2014 U.S. Dist. LEXIS 40248 (E.D.N.Y. Feb. 4, 2014) (citing Frederick v. Columbia Univ., 212 F.R.D. 176, 177 (S.D.N.Y. 2003); Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 645 (E.D.N.Y. 1997)). A review of the Affidavit submitted by Nancy McArdle, Plaintiffs’ expert on housing demography, census data, racial segregation and patterns of racial change indicates this fee is reasonable. See Affidavit of Nancy McCardle, researcher and author, dated May 12, 2014. This expert prepared a 25-page report,
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was deposed in 2008 and testified in Court over the course of two days of the trial. Id. at ¶ 6. Judge Spatt cited her report in his decision on Defendants’ motion for summary judgment and at trial. Id. at ¶ 7. In total, Plaintiffs’ expert spent more than 700 hours working on this litigation. Id. at ¶ 8. Her billing rate was $65 per hour. Id. The Court finds this fee reasonable. accordingly, Hogan Lovells will be awarded costs of $37,030.75 in expert fees.
3. Trial Transcripts The Garden City Defendants’ object to Hogan Lovells’ request for reimbursement of daily trial transcript fees. Bronsther 2018 Decl., Ex. A at 74. Hogan Lovells, argues that the trial transcript was necessary and important for this 11-day bench trial because there were numerous issues that were briefed overnight. See Fleming 2018 Reply Decl. ¶ 10 (citing ECF 381, 382, 385, 386, and 392). "To assess the losing party with the premium cost of daily transcripts, necessity - beyond the mere convenience of counsel - must be shown." Hogan v. Novartis Pharms. Corp., No. 06-260 (BMC), 2012 U.S. Dist. LEXIS 165820, 2012 WL 5898473 (E.D.N.Y. Nov. 20, 2012) (quoting Galella v. Onassis, 487 F.2d 986, 999 (2d Cir.1973)). "On balance, courts have occasionally concluded that circumstances warranted the awarding of costs for a daily trial transcript, particularly upon consideration of factors including the amount of representation, the length of the trial, and the complexity of the issues in the case." Id. (citing Galella, 487 F.2d at 999). Here, Plaintiffs argue that the trial transcripts were used to brief numerous issues that had to briefed overnight. See ECF Nos. 381-82, 385-86, 392. The Court is satisfied that these transcripts were necessary to the briefing on the issues to be argued before the start of trial the next day. See Robinson v. City of New York, No. 05 Civ. 9545 (GEL), 2009 U.S. Dist. LEXIS 89981, 2009 WL 3109846 (S.D.N.Y. Sept. 29, 2009) (costs associated with daily
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copy reasonable where defendant sought daily copy as well). Invoices relating to trial transcripts total $18,927.09. Hogan Lovells also seeks reimbursement of $275.40 for the transcription of testimony of Defendants’ expert which took place in October 2009 as well as $323.55 for the transcription of a hearing before Judge Spatt on June 17, 2016. Accordingly, Hogan Lovells shall be awarded $19,526.04.
4. Courtroom Technology Hogan Lovells has requested reimbursement of $ 3,974.06. Brown 2014 Decl. ¶¶ 97101. "The use of technology to improve the presentation of information to the jury and/or to the bench should be supported" and that "[c]omputers, computer graphics, digitized documents and other technological advancements have become important tools to the modern-day trial lawyer." Dibella v. Hopkins, 407 F. Supp. 2d 537, 540 (S.D.N.Y. 2005) ("blow-ups, digital presentations of scanned documents, and other computer graphics serve the same function as exhibits and other papers used at trial, and there is no logical reason to differentiate between the former and the latter in terms of their taxability as costs"). Thus, "[a]s long as the cost is reasonable and the devices aid in the efficient and effective presentation of evidence, a prevailing party should be allowed to recover their expense." Id. In the instant matter, a screen and projector at trial were helpful to the bench in focusing on the salient documents and concepts and in aiding the efficient and effective presentation of evidence. Thus, Hogan Lovells is entitled to recover its reasonable costs incurred in the amount of $3,974.06.
5. Temporary Office Space In the Initial Application, Hogan Lovells seeks reimbursement for costs associated with creating a temporary office space in a hotel located closer to the Courthouse than the firm’s
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office space in Manhattan. Brown 2014 Decl. ¶104. According to Hogan Lovells, this space was necessary to prepare witnesses and documents on a nightly basis. Id. In order to equip the space, Hogan Lovells rented equipment, including laptops, printers, a dedicated computer server and a projector, from outside vendors. Id. at ¶ 105-107. Hogan Lovells is requesting reimbursement of $24,778.08.
A review of the invoices provided at Tab G to the Brown 2014 Decl. reveals that these expenses are generally considered “overhead” for the firm, such as binders, pencils and dictionaries and are not properly recoverable as costs associated with the litigation. Recovery is not permitted for those expenditures associated with "routine office overhead." Molefi v. Oppenheimer Trust, No. 03 CV 5631, 2007 U.S. Dist. LEXIS 10554, at *25 (E.D.N.Y. Feb. 15, 2007) (quoting Pinner v. Budget Mortgage Bankers, Ltd., 336 F. Supp. 2d 217, 222 (E.D.N.Y. 2004)); see also Robinson v. City of New York, No. 05 Civ. 9545 (GEL), 2009 U.S. Dist. LEXIS 89981, 2009 WL 3109846 (S.D.N.Y. Sept. 29, 2009) (“Payment is not permitted, however, for items that constitute routine office overhead”); SEC v. Goren, 272 F. Supp. 2d 202, 214 (E.D.N.Y. 2003) (citing New York State Nat'l Org. for Women v. Terry, 737 F. Supp. 1350, 1363 (S.D.N.Y. 1990) ("However, expenses which are part of the attorney's ordinary overhead are not to be reimbursed”)). Such costs must be "absorbed within the attorney's hourly rate." Fink v. City of New York, 154 F. Supp. 2d 403, 415 (E.D.N.Y. 2001) (quoting Kuzma v. Internal Revenue Serv., 821 F.2d 930, 933-34 (2d Cir. 1987)).
While Plaintiffs argues it was necessary to recreate an office in Central Islip for the duration of the trial, the Court notes that the distance between the Central Islip courthouse and Hogan Lovells’ New York offices is routinely traveled by residents of Long Island who work in
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New York City. The establishment of this temporary offices was a convenience and not a necessity for the trial in this action and shall be disallowed.

i. Summary

In light of the foregoing, the Court finds the following costs reasonable and therefore will

award Plaintiffs’ Counsel the following costs sought in the Initial and Supplemental

Applications:

Hogan Lovells Out of Pocket Costs Awarded

Category

Amount

Initial Application

Photocopying

$26,370.23

Shipping

$5,573.33

Research

$22,826.26

Mediation Costs

$11,785.88

Discovery Vendors

$13,021.43

Travel

$6,160.00

Expert Fees

$37,030.75

Courtroom Technology $3,974.06

Supplemental Application

Photocopying

$126.45

Printing

$1,318.75

52

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 53 of 55 PageID #: 15844

Trial Transcript Travel

$19,526.04 $350.00

Total

$148,063.18

LCCRUL Out of Pocket Costs Awarded

Category

Amount

Initial Application

Shipping

$15.78

Research

$2,179.36

Travel

$11,950.09

Supplemental Application

Research

$566.15

Travel

$2,313.29

Total

$17,024.67

Brewington Out of Pocket Costs Awarded

Category

Amount

Initial Application

53

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 54 of 55 PageID #: 15845

Photocopying

$374.80

Shipping

$1.62

Supplemental Application

Photocopying

$175.60

Total

$ 552.02

CONCLUSION

For the foregoing reasons, the Court awards Plaintiffs attorneys’ fees and costs in the

amount of $5,255,108.394, to be distributed between the three firms in the manner described

above.

Dated: Central Islip, New York December 13, 2018

_______/s/_________________ ARLENE ROSARIO LINDSAY

54

Case 2:05-cv-02301-ADS-ARL Document 614 Filed 12/13/18 Page 55 of 55 PageID #: 15846 55

 
 U.S. District Court Eastern District of New York (Central Islip) CIVIL DOCKET FOR CASE #: 2:05-cv-02301-ADS-ARL

Mhany Management Inc. et al v. County Of Nassau et al Assigned to: Judge Arthur D. Spatt Referred to: Magistrate Judge Arlene R. Lindsay Cause: 42:405 Fair Housing Act

Date Filed: 05/12/2005 Date Terminated: 03/18/2019 Jury Demand: Plaintiff Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

Movant Long Beach Housing Authority,

represented by Austin R. Graff The Scher Law Firm, LLP One Old Country Road Suite 385 Carle Place, NY 11514 516-746-5040 Fax: 516-747-9100 Email: agraff@scherlawfirm.com ATTORNEY TO BE NOTICED

Movant
The Incorporated Village of Farmingdale

represented by Claudio DeBellis Walsh Markus McDougal & DeBellis, LLP 229 Seventh Street Garden City, NY 11530 (516) 408-9000 Fax: (516) 747-0825 Email: CDeBellis@Walshcounsel.com ATTORNEY TO BE NOTICED

Movant Village of Great Neck Estates

represented by Paul F. Millus Meyer Suozzi English & Klein, P.C. 990 Stewart Avenue Suite 300 Garden City, NY 11530 516-741-6565 Fax: 516-741-6706 Email: pmillus@msek.com

Movant Village of Hewlett Bay Park
Movant Village of North Hills
Movant Village of Rockville Centre
Movant

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Rinaldi Meyer, Suozzi, English & Klein, P.C. 990 Stewart Avenue, Suite 300 P.O. Box 9194 Garden City, NY 11530-9194 516-741-6565 Fax: 516-741-6706 Email: drinaldi@msek.com ATTORNEY TO BE NOTICED
represented by Paul F. Millus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Rinaldi (See above for address) ATTORNEY TO BE NOTICED
represented by Paul F. Millus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Rinaldi (See above for address) ATTORNEY TO BE NOTICED
represented by Paul F. Millus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Rinaldi (See above for address) ATTORNEY TO BE NOTICED

Village of Sea Cliff
Referee Anthony LaPinta
Plaintiff Acorn (The New York Association of Community Organizations For Reform Now), TERMINATED: 06/15/2010

represented by Paul F. Millus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel B. Rinaldi (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony M. LaPinta Anthony M. La Pinta 200 Vanderbilt Motor Parkway Suite C-17 Hauppauge, NY 11788 631-231-1199 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick K. Brewington Law Offices of Frederick K. Brewington 556 Peninsula Boulevard Hempstead, NY 11550 516-489-6959 Fax: 516-489-6958 Email: fred@brewingtonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph D. Rich Lawyers' Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 202-662-8331 Fax: 202-783-5113 Email: jrich@lawyerscommittee.org TERMINATED: 09/04/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nicole Birch Lawyers' Committee for Civil Rights Under Law 1401 New York Avenue, NW Suite 400 Washington, DC 20005 202-662-8303 Email: nbirch@lawyerscommittee.org TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney Hogan & Hartson LLP 875 Third Avenue New York, NY 10022 212-918-3619 Fax: 212-918-3100 TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanna F. Wasick Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100 Email: joanna.wasick@hoganlovells.com
Kim Frances Bridges Hogan & Hartson, LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100 TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Linda H. Mullenbach Lawyers' Committee For Civil Rights Under Law 1401 New York Avenue Nw, Suite 400

Plaintiff
Daphne Andrews TERMINATED: 04/13/2010

Washington, DC 20005 202-662-8340 Fax: 202-783-0857 Email: lmullenbach@lawyerscommittee.org ATTORNEY TO BE NOTICED
Marjorie Mesidor Phillips & Associates, PLLC 45 Broadway Suite 620 New York, NY 10006 212-248-7431 Fax: 212-901-2107 Email: mmesidor@tpglaws.com TERMINATED: 09/20/2011
Sabrina Helene Cochet Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100 Email: sabrina.cochet@hoganlovells.com ATTORNEY TO BE NOTICED
Stanley Joseph Brown Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212-918-3692 Fax: 212-918-3100 Email: stanley.brown@hoganlovells.com ATTORNEY TO BE NOTICED
represented by Joseph D. Rich (See above for address) TERMINATED: 09/04/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kim Frances Bridges

(See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megumi Sakae Marr Jones & Wang Pauahi Tower 1003 Bishop Street Suite 1500 Honolulu, HI 96813 808-536-4900 Fax: 808-536-6700 Email: msakae@marrhipp.com TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Starr Holland & Knight 195 Broadway, 24th Floor New York, NY 10007 212-513-3506 Fax: 212-385-9010 Email: michael.starr@hklaw.com TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Vic Devita

Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph D. Rich (See above for address) TERMINATED: 09/04/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megumi Sakae (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Starr (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Joseph Dennin Hogan Lovells US LLP 875 Third Avenue

New York, NY 10022 212-918-3000 Fax: 212-918-3100 Email: peter.dennin@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail E. Shafroth Lawyers' Committee for Civil Rights Under Law 1401 New York Ave, Nw Suite 400 Washington, DC 20005 202-662-8342 Fax: 202-783-0857 Email: ashafroth@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Chava Brandriss Hogan Lovells US LLP 555 Thirteenth Street, NW Washington, DC 20004 202-637-6558 Email: chava.brandriss@hoganlovells.com ATTORNEY TO BE NOTICED
Cynthia Dorsainvil Hogan & Hartson LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100 TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Joanna F. Wasick (See above for address)
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Vernon Ghullkie TERMINATED: 05/22/2008

Luz Maria Henriquez Hogan Lovells US LLP 875 Third Ave New York, NY 10022 347-712-0371 Fax: 212-918-3100 Email: luz.henriquez@hoganlovells.com TERMINATED: 12/20/2017 ATTORNEY TO BE NOTICED
Sabrina Helene Cochet (See above for address) ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph D. Rich (See above for address) TERMINATED: 09/04/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megumi Sakae (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Starr (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Birch

(See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Joseph Dennin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Dorsainvil (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Jenny Rubin Robertson Hogan & Hartson LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100 Email: jrrobertson@hhlaw.com ATTORNEY TO BE NOTICED
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED
Toby William Smith Hogan & Hartson, LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100

Plaintiff Natalie Guerrido TERMINATED: 10/24/2006
Plaintiff

Email: twsmith@hhlaw.com ATTORNEY TO BE NOTICED
represented by Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Megumi Sakae (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Starr (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Dorsainvil (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Jenny Rubin Robertson (See above for address) ATTORNEY TO BE NOTICED
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED

Lisbett Hunter TERMINATED: 05/22/2008

represented by Joseph D. Rich (See above for address) TERMINATED: 09/04/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY
Peter Joseph Dennin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Dorsainvil (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Jenny Rubin Robertson (See above for address) ATTORNEY TO BE NOTICED
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff McCray, Francine

Toby William Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph D. Rich (See above for address) TERMINATED: 09/04/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY
Peter Joseph Dennin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Abigail E. Shafroth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andrew Jaan Sein Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 (212)918-3582

Fax: (212)918-3100 Email: andrew.sein@hoganlovells.com TERMINATED: 12/20/2017 ATTORNEY TO BE NOTICED
Benjamin Andrew Fleming Hogan Lovells US LLP 875 Third Avenue New York, NY 10222 212-918-3283 Fax: 212-918-3100 Email: benjamin.fleming@hoganlovells.com ATTORNEY TO BE NOTICED
Chava Brandriss (See above for address) ATTORNEY TO BE NOTICED
Cynthia Dorsainvil (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Joanna F. Wasick (See above for address)
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED
Luz Maria Henriquez (See above for address) TERMINATED: 12/20/2017 ATTORNEY TO BE NOTICED
Sabrina Helene Cochet (See above for address) ATTORNEY TO BE NOTICED
Sarah Joy Gregory Hogan Lovells 875 Third Avenue New York, NY 10022 212-918-3047

Plaintiff
MHANY Management, Inc. also known as New York Acor Housing Company

Fax: 212-918-3100 Email: sarah.gregory@hoganlovells.com ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED
represented by Ira M. Feinberg Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100 Email: Ira.Feinberg@hoganlovells.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph D. Rich (See above for address) TERMINATED: 09/04/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nicole Birch (See above for address) TERMINATED: 02/24/2009 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Paul B Sweeney (See above for address) TERMINATED: 12/29/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Abigail E. Shafroth (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Allison Michele Wuertz Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212-918-3067 Email: allison.wuertz@hoganlovells.com ATTORNEY TO BE NOTICED
Andrew Jaan Sein (See above for address) TERMINATED: 04/26/2014 ATTORNEY TO BE NOTICED
Benjamin Andrew Fleming (See above for address) ATTORNEY TO BE NOTICED
Caroline H. Cheng Hogan Lovells US LLP 875 Third Ave New York, NY 10022 (212)918-3045 Fax: (212)918-3100 Email: caroline.cheng@hoganlovells.com TERMINATED: 12/20/2017 ATTORNEY TO BE NOTICED
Chava Brandriss (See above for address) ATTORNEY TO BE NOTICED
Dianne Milner Hogan Lovells LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100 Email: dianne.milner@hoganlovells.com

ATTORNEY TO BE NOTICED
Eric J. Lobenfeld Hogan Lovells US LLP 875 Third Avenue New York, NY 10022 212-918-3000 Fax: 212-918-3100 Email: eric.lobenfeld@hoganlovells.com ATTORNEY TO BE NOTICED
Joanna F. Wasick (See above for address)
Kim Frances Bridges (See above for address) TERMINATED: 12/29/2009 ATTORNEY TO BE NOTICED
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED
Peter Joseph Dennin (See above for address) TERMINATED: 12/20/2017 ATTORNEY TO BE NOTICED
Sabrina Helene Cochet (See above for address) TERMINATED: 12/20/2017 ATTORNEY TO BE NOTICED
Sarah Joy Gregory (See above for address) TERMINATED: 12/20/2017 ATTORNEY TO BE NOTICED
Thomas S. Silverstein Lawyers' Committee for Civil Rights Under Law 1401 New York Ave Nw Suite 400 Washington, DC 20005 202-662-8316

Plaintiff New York Acorn Housing Company, Inc. TERMINATED: 06/15/2010
V. Intervenor Plaintiff New York Communities For Change, Inc.

Fax: 202-783-0857 Email: tsilverstein@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Samuel Silverstein Lawyers' Committee for Civil Rights Under Law 1401 New York Ave Nw Suite 400 Washington, DC 20005 202-662-8316 Fax: 202-783-0857 Email: tsilverstein@lawyerscommittee.org ATTORNEY TO BE NOTICED
represented by Joanna F. Wasick (See above for address)
Linda H. Mullenbach (See above for address) ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph D. Rich (See above for address) TERMINATED: 09/04/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stanley Joseph Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant County of Nassau

Allison Michele Wuertz (See above for address) ATTORNEY TO BE NOTICED
Benjamin Andrew Fleming (See above for address) ATTORNEY TO BE NOTICED
Chava Brandriss (See above for address) ATTORNEY TO BE NOTICED
Eric J. Lobenfeld (See above for address) ATTORNEY TO BE NOTICED
Linda H. Mullenbach Lawyers' Committee For Civil Rights Under Law 1401 New York Ave Nw Suite 400 Washington, DC 20005 202-662-8340 Fax: 202-783-0857 Email: lmullenbach@lawyerscommittee.org ATTORNEY TO BE NOTICED
Thomas S. Silverstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas Samuel Silverstein (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Reginald Scott Nassau County Attorney's Office 1 West Street Mineola, NY 11501 516-571-3056

Fax: 516-571-3058 Email: ascott@nassaucountyny.gov TERMINATED: 01/06/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ralph J. Reissman Nassau County Attorney's Office One West Street Mineola, NY 11501 516-571-3046 Fax: 516-571-6604 Email: rreissman@nassaucountyny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott J. Kreppein Quatela, Hargraves & Chimeri PLLC 888 Veterans Memorial Highway, Suite 530 Hauppauge, NY 11788 631-482-9700 Fax: 631-482-9707 Email: SJK@QHCLaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bethany Bresnaider O'Neill Nassau County Attorney's Office One West Street . Mineola, NY 11501 516-571-6146 Fax: 516-571-3058 Email: BONeill@nassaucountyny.gov TERMINATED: 08/04/2006
David Bruce Goldin Nassau County Attorney One West Street Mineola, NY 11501 516-571-3056 Fax: 516-571-6604 TERMINATED: 10/05/2009

ATTORNEY TO BE NOTICED
Esther D. Miller Nassau County Attorney's Office One West Street Mineola, NY 11501 516-571-3066 Fax: 516-571-3058 TERMINATED: 01/06/2010 ATTORNEY TO BE NOTICED
Gerald R. Podlesak Nassau County Attorney One West Street Mineola, NY 11501 516-571-6716 Fax: 516-571-1628 Email: gpodlesak@nassaucountyny.gov ATTORNEY TO BE NOTICED
Jared Andrew Kasschau Office of the Nassau County Attorney One West Street 2nd Floor Mineola, NY 11501 UNITED STA (516)571-3076 Fax: (516)571-6684 Email: jkasschau@nassaucountyny.gov ATTORNEY TO BE NOTICED
Karen Lynch Heidell Pittoni Murphy & Bach LLP 1050 Franklin Avenue Garden City, NY 11501 516-408-1600 Email: kschmidt@hpmb.com TERMINATED: 01/06/2010 ATTORNEY TO BE NOTICED
Laurel R. Kretzing Office of the Nassau County Attorney 1 West Street Mineola, NY 11501

Defendant
Nassau County Planning Commission TERMINATED: 12/06/2005

(516)571-3012 Fax: (516)571-6228 Email: lkretzing@nassaucountyny.gov ATTORNEY TO BE NOTICED
Stephen J. Smirti , Jr. Rivkin Radler LLP EAB Plaza West Tower - 10th Floor Uniondale, NY 11556-0111 (516) 357-3000 Fax: (516) 357-3333 Email: steve.smirti@rivkin.com TERMINATED: 07/08/2016 ATTORNEY TO BE NOTICED
William M. Savino Rivkin Radler LLP 926 EAB Plaza Uniondale, NY 11556 (516)357-3000 Fax: (516) 357-3333 Email: william.savino@rivkin.com TERMINATED: 07/08/2016 ATTORNEY TO BE NOTICED
represented by David Bruce Goldin (See above for address) TERMINATED: 10/05/2009 ATTORNEY TO BE NOTICED
Esther D. Miller (See above for address) TERMINATED: 06/29/2010 ATTORNEY TO BE NOTICED
Ralph J. Reissman (See above for address) ATTORNEY TO BE NOTICED
Scott J. Kreppein (See above for address) ATTORNEY TO BE NOTICED

Defendant Nassau County Office of Real Estate & Development TERMINATED: 12/06/2005
Defendant Incorporated Village of Garden City TERMINATED: 11/30/2017

represented by David Bruce Goldin (See above for address) TERMINATED: 10/05/2009 ATTORNEY TO BE NOTICED
Esther D. Miller (See above for address) TERMINATED: 06/29/2010 ATTORNEY TO BE NOTICED
Ralph J. Reissman (See above for address) ATTORNEY TO BE NOTICED
Scott J. Kreppein (See above for address) ATTORNEY TO BE NOTICED
represented by James G. Ryan Cullen and Dykman, LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 (516) 357-3700 Fax: (516) 296-9155 Email: jryan@cullenanddykman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ariel E. Ronneburger Cullen and Dykman LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 516-296-9182 Fax: 516-296-9155 Email: aronneburger@cullenanddykman.com ATTORNEY TO BE NOTICED
Cynthia Ann Augello Law Offices of Cynthia A. Augello, P.C. 216 Carleton Avenue East Islip, NY 11730

631-693-6399 Fax: 631-693-6088 Email: caugello@augellolaw.com ATTORNEY TO BE NOTICED
Douglas J. Bohn Cullen and Dykman, LLP 100 Quentin Roosevelt Blvd. Garden City, NY 11530 516-357-3700 Fax: 516-296-9155 Email: dbohn@cullenanddykman.com ATTORNEY TO BE NOTICED
Jennifer A. McLaughlin Cullen and Dykman Bleakley Platt, LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 516-357-3713 Fax: 516-296-9155 Email: jmclaughlin@cullenanddykman.com ATTORNEY TO BE NOTICED
Michael A. Carvin Jones Day 51 Louisiana Avenue, NW Washington, DC 20001 202-879-3939 Fax: 202-626-1700 Email: macarvin@jonesday.com ATTORNEY TO BE NOTICED
Sardar Mohammad Asadullah Cullen and Dykman LLP 100 Quentin Roosevelt Blvd Garden City, NY 11530 516-357-3700 Fax: 516-296-9155 Email: sasadullah@cullenanddykman.com ATTORNEY TO BE NOTICED
Thomas B. Wassel

Defendant Garden City Board of Trustees TERMINATED: 11/30/2017
Defendant Incorporated Village of Garden City

Cullen and Dykman LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 516-357-3868 Fax: 516-296-9155 Email: twassel@cullenanddykman.com ATTORNEY TO BE NOTICED
represented by James G. Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ariel E. Ronneburger (See above for address) ATTORNEY TO BE NOTICED
Cynthia Ann Augello (See above for address) ATTORNEY TO BE NOTICED
Douglas J. Bohn (See above for address) ATTORNEY TO BE NOTICED
Jennifer A. McLaughlin (See above for address) ATTORNEY TO BE NOTICED
Sardar Mohammad Asadullah (See above for address) ATTORNEY TO BE NOTICED
Thomas B. Wassel (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

05/12/2005 05/12/2005
05/12/2005 05/16/2005 05/19/2005
05/19/2005 05/19/2005
05/19/2005
05/19/2005 06/08/2005 06/08/2005 06/08/2005

1 COMPLAINT (Receipt #309802) against all defendants $ 250, filed by all plaintiffs. (Attachments: # 1 Civil Cover Sheet)(Carine, Sandra) (Entered: 05/16/2005)
Summons Issued as to County of Nassau, Nassau County Planning Commission, Nassau County Office of Real Estate & Development, Incorporated Village of Garden City, Garden City Board of Trustees. (Carine, Sandra) (Entered: 05/16/2005)
2 DISCLOSURE of Interested Parties by Vernon Ghullkie, Natalie Guerrido, Acorn, Daphne Andrews, Vic Devita.(Carine, Sandra) (Entered: 05/16/2005)
Case Ineligible for Arbitration(Bollbach, Jean) (Entered: 05/16/2005)
3 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. Nassau County Office of Real Estate & Development served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
4 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. County of Nassau served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
5 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. Nassau County Planning Commission served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
6 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. Incorporated Village of Garden City served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
7 SUMMONS Returned Executed by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. Garden City Board of Trustees served on 5/13/2005, answer due 6/2/2005. (Bridges, Kim) (Entered: 05/19/2005)
8 AFFIDAVIT of Service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
9 AFFIDAVIT of service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
10 AFFIDAVIT of service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)

06/08/2005 06/08/2005 06/08/2005 06/09/2005 06/14/2005
06/15/2005 06/17/2005 06/23/2005 06/23/2005 06/27/2005 07/07/2005

11 AFFIDAVIT of service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
12 AFFIDAVIT of service by Acorn. (Brewington, Frederick) (Entered: 06/08/2005)
13 STIPULATION to Extend Time to Answer by County of Nassau, Nassau County Planning Commission, Nassau County Office of Real Estate & Development. (Attachments: # 1 Stipulation to Extend Time to Answer)(Bresnaider O'Neill, Bethany) (Entered: 06/08/2005)
ORDER The stipulation extending the Nassau County Defendants' time to answer, docketed as attacment #1 to 13 , is hereby SO ORDERED. Ordered by Judge William D. Wall on 6/9/05. (Disbrow, Sandra) (Entered: 06/09/2005)
14 Notice of MOTION for Limited Admission of Jonathan P. Hooks and Nicole J. De Sario by Vernon Ghullkie, Natalie Guerrido, Daphne Andrews, Vic Devita. (Attachments: # 1 Affidavit of Paul B. Sweeney in Support# 2 Affidavit of Jonathan P. Hooks# 3 Affidavit of Nicole J. De Sario# 4 Text of Proposed Order # 5 Certificate of Service)(Sweeney, Paul) (Entered: 06/14/2005)
ORDER granting 14 Motion for Limited Admission Pro Hac Vice, contingent upon payment of the appropriate fees pursuant to Local Civil Rule 1.3. Ordered by JudgeWilliam D. Wall on 6/15/05. (Disbrow, Sandra) (Entered: 06/15/2005)
FILING FEE: $ 50.00, receipt number 310886 for the admission pro hac vice of Jonathan Hooks and Nicole DeSario (Talbott, Thomas) (Entered: 06/27/2005)
15 STIPULATION re 1 Complaint Extending Time to Answer by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 06/23/2005)
16 NOTICE of Appearance by James G. Ryan on behalf of Incorporated Village of Garden City, Garden City Board of Trustees (Attachments: # 1 Affidavit of Service)(Ryan, James) (Entered: 06/23/2005)
ORDER re 15 The stipulation extending the Garden City Defendants' time to answer is hereby SO ORDERED. Ordered by Judge William D. Wall on 6/27/05. (Disbrow, Sandra) (Entered: 06/27/2005)
17 Letter MOTION for Hearing for Motion to Dismiss by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 07/07/2005)

07/11/2005 07/13/2005 07/13/2005
07/22/2005 09/02/2005 09/12/2005
09/12/2005 11/30/2005
11/30/2005 11/30/2005

18 Letter from David B. Goldin to Hon. Leonard D. Wexler Regarding a request for a pre-motion conference. (Goldin, David) (Entered: 07/11/2005)
19 NOTICE of Appearance by David Bruce Goldin on behalf of County of Nassau, Nassau County Planning Commission, Nassau County Office of Real Estate & Development (Goldin, David) (Entered: 07/13/2005)
20 AFFIDAVIT of Service for Notice of Appearance served on Paul B. Sweeney, Esq., James G. Ryan, Esq., and Law Offices of Frederick K. Brewington on July 13, 2005, filed by County of Nassau, Nassau County Planning Commission, Nassau County Office of Real Estate & Development. (Goldin, David) (Entered: 07/13/2005)
21 Letter from Paul B. Sweeney to The Honorable Leonard D. Wexler Regarding plaintiffs' response to the defendants' requests for a premotion conference regarding their anticipated motions to dismiss. (Sweeney, Paul) (Entered: 07/22/2005)
22 Letter from Paul Sweeney to Judge Wexler Regarding Pre-Motion Conference. (Sweeney, Paul) (Entered: 09/02/2005)
23 Minute Entry for proceedings held before Leonard D. Wexler on 9/12/05 at 11:00 am. Case called. Counsel for all parties present. Conf. held. Deft's request to file motion to dismiss is GRANTED. Dft's request to stay discovery is GRANTED. Parties to agree on briefing schedule. Conf. concluded. (Montero, Edher) (Entered: 09/19/2005)
Motion terminated, 17 Letter MOTION for Hearing for Motion to Dismiss filed by Incorporated Village of Garden City, Garden City Board of Trustees. Hearing held on 9/12/05. (Talbott, Thomas) (Entered: 01/30/2006)
24 AMENDED COMPLAINT against County of Nassau, Incorporated Village of Garden City, Garden City Board of Trustees, filed by Lisbett Hunter, McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Natalie Guerrido, Acorn, Vic Devita. (Attachments: # 1 Certificate of Service)(Sweeney, Paul) (Entered: 11/30/2005)
25 DISCLOSURE of Interested Parties by New York Acorn Housing Company.(Sweeney, Paul) (Entered: 11/30/2005)
26 NOTICE by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Natalie Guerrido, Acorn, Lisbett Hunter, Vic Devita of Dismissal of Claims Against Certain Defendants(Attachments: # 1 Certificate of Service)(Sweeney, Paul) (Entered: 11/30/2005)

12/02/2005 12/06/2005
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03/10/2006 03/10/2006

27 Letter from Paul B. Sweeney to The Honorable Leonard D. Wexler Regarding filing of amended complaint and motions to dismiss. (Sweeney, Paul) (Entered: 12/02/2005)
ENDORSED ORDER re 26 Notice filed by plaintiffs: Plaintiffs hereby voluntarily dismiss, without prejudice all claims against defts, Nassau County Planning Commission and Nassau County Office of Real Estate & Development. (Ordered by Judge Leonard D. Wexler on 12/6/05). c/m eod #26(Montero, Edher) (Entered: 12/12/2005)
28 Letter from Paul B. Sweeney to The Honorable Leonard D. Wexler Regarding briefing schedule for motion to dismiss amended complaint. (Sweeney, Paul) (Entered: 12/14/2005)
ORDER re 18 Letter. A pre-motion conference is unnecessary; the parties' proposed briefing schedule is So Ordered by Judge Leonard D. Wexler on 12/16/05. (Ausili, Peter) (Entered: 12/16/2005)
Case reassigned to Judge Joseph F. Bianco. Judge Leonard D. Wexler no longer assigned to the case. (Bowens, Priscilla) (Entered: 02/10/2006)
29 Letter Plaintiffs' Letter Requesting Extension to Page Limit for Opposition to Motions to Dismiss by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Natalie Guerrido, Acorn, Lisbett Hunter, Vic Devita. (Sweeney, Paul) (Entered: 02/14/2006)
ORDER re 29 Letter filed by counsel for plaintiffs. The unopposed request by plaintiffs to file a 40 page opposition brief is GRANTED. Ordered by Judge Joseph F. Bianco on 2/15/06. (Blanche, Todd) (Entered: 02/15/2006)
30 Notice of MOTION to Dismiss by County of Nassau. Responses due by 3/10/2006 (Attachments: # 1 Nassau County's Memorandum of Law in Support of Motion to Dismiss the Amended Complaint# 2 Affidavit Defendant (Nassau County) Affidavit of Service)(Bresnaider O'Neill, Bethany) (Entered: 03/10/2006)
31 RESPONSE in Opposition re 30 Notice of MOTION to Dismiss the amended complaint filed by all plaintiffs. (Bresnaider O'Neill, Bethany) (Entered: 03/10/2006)
32 REPLY to Response to Motion re 30 Notice of MOTION to Dismiss the amended complaint filed by County of Nassau. (Bresnaider O'Neill, Bethany) (Entered: 03/10/2006)

03/10/2006 03/10/2006
06/09/2006
06/26/2006
07/21/2006
07/21/2006 07/25/2006 08/04/2006 08/04/2006 08/04/2006

33 Letter requesting oral argument of the Defendant's Motion to Dismiss the Amended Complaint (Document Number 30) by County of Nassau. (Bresnaider O'Neill, Bethany) (Entered: 03/10/2006)
34 MOTION to Dismiss Amended Complaint by Incorporated Village of Garden City, Garden City Board of Trustees. Responses due by 3/10/2006 (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10# 11 # 12 # 13)(Ryan, James) (Entered: 03/10/2006)
35 ORDER: SEE ATTACHED ORDER setting oral argument on the outstanding motions on June 26, 2006 at 2:00 p.m. in the United States Federal Courthouse, 100 Federal Plaza, Central Islip, New York, Courtroom 920. Ordered by Judge Joseph F. Bianco on 6/9/06. (Blanche, Todd) (Entered: 06/09/2006)
36 Calendar Entry for proceedings held before The Honorable Joseph F. Bianco, United States District Judge on 6/26/06 at 2:00 p.m. for Civil Cause for Oral Argument; Appearances: Pltff(s). Attny: Paul B. Sweeney, present; Jonathan P. Hooks, present; Deft(s). Attny.: James G. Ryan, present; Esther D. Miller, present; Reporter: Perry Auerbach; Courtroom Deputy: Michele Savona. Case called. Argument heard. Decision: Reserved. (Fagan, Linda) (Entered: 06/26/2006)
37 MEMORANDUM AND ORDER. SEE ATTACHED memorandum and order denying 30 34 motions to dismiss, and directing the parties to proceed with discovery in accordance with the direction of Magistrate Judge Wall. Ordered by JudgeJoseph F. Bianco on 7/21/06. (Blanche, Todd) (Entered: 07/21/2006)
38 ORDER: Scheduling initial conference for 9/6/06. See order and attachments. Ordered by Judge William D. Wall on 7/21/06. (Attachments: # 1 WDW rules# 2 ECF notice) c/e(Disbrow, Sandra) (Entered: 07/21/2006)
39 MOTION to Withdraw as Attorney by all plaintiffs. (Desario, Nicole) (Entered: 07/25/2006)
40 NOTICE of Appearance by Andrew Reginald Scott on behalf of County of Nassau (Scott, Andrew) (Entered: 08/04/2006)
41 First MOTION for Extension of Time to File Answer by County of Nassau. (Scott, Andrew) (Entered: 08/04/2006)
42 First MOTION for Extension of Time to File Answer to Amended Complaint (corrected) by County of Nassau. (Scott, Andrew) (Entered: 08/04/2006)

08/04/2006 08/04/2006 08/07/2006 08/07/2006
08/18/2006 08/18/2006 08/22/2006 08/24/2006 08/25/2006 08/25/2006

43 Letter Extending Time to Answer Amended Complaint by Incorporated Village of Garden City Board of Trustees and by Incorporated Village of Garden City. (Ryan, James) (Entered: 08/04/2006)
Motions terminated; 41 First MOTION for Extension of Time to File Answer filed by County of Nassau. (See 42 (corrected) Motion.) (Fagan, Linda) (Entered: 08/07/2006)
ORDER granting 42 Motion for Extension of Time to File Answer to Amended Complaint (corrected). County of Nassau answer due 8/18/2006. Ordered by JudgeWilliam D. Wall on 08/07/06. (Hepworth, F.) (Entered: 08/07/2006)
ORDER TO ANSWER re 43 Letter filed by Incorporated Village of Garden City. Garden City Board of Trustees answer due 8/18/2006. The parties are advised that, in future, all requests to Judge Wall for court intervention must be docketed as letter motions or motions, not as letters, pursuant to the undersigned's Individual Rules1(C), 2(C), and/or 3(A), or the application will be rejected. Ordered by Judge William D. Wall on 08/07/06. (Hepworth, F.) (Entered: 08/07/2006)
44 ANSWER to Amended Complaint by Garden City Board of Trustees and by Incorporated Village of Garden City.(Ryan, James) (Entered: 08/18/2006)
45 ANSWER to Amended Complaint by County of Nassau.(Miller, Esther) (Entered: 08/18/2006)
46 NOTICE of Appearance by Jenny Rubin Robertson on behalf of McCray, Francine, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, Vic Devita (Attachments: # 1 Certificate of Service)(Robertson, Jenny) (Entered: 08/22/2006)
47 NOTICE of Appearance by Cynthia Dorsainvil Sleet on behalf of McCray, Francine, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, Vic Devita (Attachments: # 1 Certificate of Service)(Sleet, Cynthia) (Entered: 08/24/2006)
48 REPORT of Rule 26(f) Planning Meeting. (Attachments: # 1 Certificate of Service)(Sweeney, Paul) (Entered: 08/25/2006)
Incorrect Case/Document/Entry Information. Document 49 REPORT of Rule 26(f) Planning Meeting, filed on 8/25/06 has been deleted. (The document was a duplicate to the 48 Report of Rule 26(f) Planning Meeting. All corrections have been made.) (Fagan, Linda) (Entered: 08/28/2006)

09/06/2006 10/23/2006 10/24/2006
11/21/2006 11/22/2006 11/27/2006 11/27/2006 12/01/2006

49 Minute Entry & ORDER for proceedings held before William D. Wall : Initial Conference held on 9/6/2006. The court has adopted and So Ordered the joint proposed discovery plan 48 , with the exception of paragraph 6 which is stricken. Next status conference 1/10/07. See attached order. Ordered by William D. Wall on 9/6/06. c/g (Disbrow, Sandra) (Entered: 09/06/2006)
50 STIPULATION of Dismissal as to all defendants by Natalie Guerrido. (Bridges, Kim) (Entered: 10/23/2006)
51 ORDER re 50 Stipulation of Dismissal filed by Natalie Guerrido; It Is Stipulated And Agreed, that all claims brought by pltff Natalie Guerrido shall be dismissed without prejudice as to all defts purs. to Rule 41(a)(1)(ii) of the F.R.C.P., and with each party to bear its own costs and attorneys' fees; that only claims brought by Natalie Guerrido shall be dismissed; and that the other pltffs shall proceed with their claims. So Ordered. ( Ordered by Judge Joseph F. Bianco on 10/24/06. )(Fagan, Linda) (Entered: 10/24/2006)
52 Letter MOTION to Compel Discovery by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I)(Robertson, Jenny) (Entered: 11/21/2006)
53 Notice of MOTION for Leave to Appear Pro Hac Vice of Joseph D. Rich and Nicole L. Birch by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Attachments: # 1 Proposed Order for Admission# 2 Declaration of Kim F. Bridges# 3 Affidavit of Joseph D. Rich# 4 Affidavit of Nicole L. Birch# 5 Certificate of Service)(Bridges, Kim) (Entered: 11/22/2006)
ELECTRONIC ORDER granting 53 Motion for Leave to Appear pro hac vice Joseph D. Rich and Nicole Birch for plaintiffs. The motion is granted contingent upon payment of the appropriate fees pursuant to Local Civil Rule 1.3. Counsel is further directed to register for ECF immediately. Ordered by JudgeWilliam D. Wall on 11/27/06. (Disbrow, Sandra) (Entered: 11/27/2006)
54 RESPONSE in Opposition re 52 Letter MOTION to Compel Discovery with exhibits filed by County of Nassau. (Attachments: # 1 Exhibit County Exhibits A-H)(Scott, Andrew) (Entered: 11/27/2006)
55 Letter MOTION for Discovery in opposition to Defendant Nassau County's cross-motion for a protective order by all plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit

12/04/2006
12/05/2006
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D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Sweeney, Paul) (Entered: 12/01/2006)
ELECTRONIC ORDER denying 55 . The filing is rejected for failure to comply with Local Civil Rule 37.3(c) and the undersigned's individual rules. Responses to letter motions may not exceed 3 pages. Additionally, responses in opposition must be filed as such and not as an additional motion. Plaintiffs may refile their response accordingly. Ordered by JudgeWilliam D. Wall on 12/4/06. (Disbrow, Sandra) (Entered: 12/04/2006)
56 Letter in opposition to Defendant County of Nassau's cross-motion for a protective order in its 11/27/06 letter by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Acorn, Daphne Andrews, Lisbett Hunter, Vic Devita. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Bridges, Kim) (Entered: 12/05/2006)
ELECTRONIC ORDER: A conference regarding the pending discovery motions has been scheduled for 12/14/06 at 1:30 p.m. Any motion to adjourn this conference must include proposed alternae dates acceptable to all parties. Ordered by Judge William D. Wall on 12/8/06. (Disbrow, Sandra) (Entered: 12/08/2006)
Minute Entry for proceedings held before William D. Wall : Discovery conference held on 12/14/2006. (Disbrow, Sandra) (Entered: 12/14/2006)
57 ORDER denying as moot, without prejudice, 52 Motion to Compel and 54 cross-motion for protective order. The parties shall meet and confer on all the issues raised in the motions. Next status conference will be held on 1/10/07. See attached order. Ordered by JudgeWilliam D. Wall on 12/14/06. c/g (Disbrow, Sandra) (Entered: 12/14/2006)
58 Letter MOTION to Compel Testimony and Documents from the Garden City Defendants by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C) (Bridges, Kim) (Entered: 01/03/2007)
59 NOTICE of Appearance by Ralph J. Reissman on behalf of County of Nassau (Reissman, Ralph) (Entered: 01/04/2007)
60 RESPONSE in Opposition re 58 Letter MOTION to Compel Testimony and Documents from the Garden City Defendants Incorporated Village of Garden City and Garden City Board of Trusteesfiled by Incorporated Village of Garden City, Garden City Board of Trustees. (Attachments: # 1) (Ryan, James) (Entered: 01/08/2007)

01/08/2007 01/09/2007 01/09/2007 01/10/2007
01/12/2007 01/19/2007 01/24/2007 01/24/2007 01/24/2007
01/24/2007

61 NOTICE of Appearance by Ralph J. Reissman on behalf of County of Nassau (Reissman, Ralph) (Entered: 01/08/2007)
62 NOTICE of Appearance by Peter Joseph Dennin on behalf of McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Attachments: # 1 Certificate of Service) (Dennin, Peter) (Entered: 01/09/2007)
63 NOTICE of Change of ADD ATTORNEY TO E-MAIL NOTICE OF ELECTRONIC CASE FILINGS -- NEW E-MAIL ADDRESS by Ralph J. Reissman (Reissman, Ralph) (Entered: 01/09/2007)
64 Minute Order. Proceedings held before Judge William D. Wall : Status Conference held on 1/10/2007. The parties shall submit briefs regarding the assertion of legislative privilege no later than 1/24/07. Next status confernece will be held on 2/28/07 at 10:00 a.m. Ordered by William D. Wall on 1/10/07. c/g (Disbrow, Sandra) (Entered: 01/10/2007)
65 Letter requesting confidentiality order be so ordered by Incorporated Village of Garden City, Garden City Board of Trustees (Attachments: # 1 Confidentiality Order) (McLaughlin, Jennifer) (Entered: 01/12/2007)
ELECTRONIC ORDER The Stipulation and Order for the Protection of Confidential Information submitted by the parties and docketed as [65-2] is hereby So Ordered. Ordered by Judge William D. Wall on 1/19/07. (Disbrow, Sandra) (Entered: 01/19/2007)
66 Notice of MOTION to Compel Deposition Testimony and Documents from the Garden City Defendants by all plaintiffs. (Bridges, Kim) (Entered: 01/24/2007)
67 MEMORANDUM in Support re 66 Notice of MOTION to Compel Deposition Testimony and Documents from the Garden City Defendants by all plaintiffs. (Bridges, Kim) (Entered: 01/24/2007)
68 CERTIFICATE OF SERVICE by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Natalie Guerrido, Acorn, Daphne Andrews, Lisbett Hunter, Vic Devita re 67Memorandum in Support, 66 Notice of MOTION to Compel Deposition Testimony and Documents from the Garden City Defendants (Bridges, Kim) (Entered: 01/24/2007)
69 RESPONSE in Opposition re 66 Notice of MOTION to Compel Deposition Testimony and Documents from the Garden City Defendants, 58 Letter MOTION to Compel Testimony and Documents from the Garden City Defendants Memorandum of Law filed by Incorporated Village of Garden City, Garden City Board of Trustees.

01/24/2007 01/25/2007
02/28/2007 03/12/2007 03/12/2007 03/29/2007 04/17/2007 04/20/2007
04/26/2007

(Attachments: # 1 Affidavit Robert L. Schoelle, Jr.# 2 Affidavit Michael D. Fillipon# 3 Exhibit A to Filippon Affidavit) (Ryan, James) (Entered: 01/24/2007)
70 Letter Federal Expressing to Judge Wall courtesy copies of Memorandum of Law Supplementing Letter Submission Dated January 8, 2007 by Incorporated Village of Garden City, Garden City Board of Trustees (Ryan, James) (Entered: 01/24/2007)
71 ORDER granting 39 Motion to Withdraw as Attorney. The Court grants leave for Nicole J. DeSario to withdraw as counsel for plaintiffs. She is relieved of futher responsibility to the Court. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/25/2007. (Fee, Adam) Additional attachment(s) added on 1/29/2007 (Fagan, Linda). (Entered: 01/25/2007)
72 Minute Entry & ORDER for proceedings held before William D. Wall : Status Conference held on 2/28/2007. Next status conference will be held on 4/18/07. Ordered by William D. Wall on 2/28/07. c/g (Disbrow, Sandra) (Entered: 02/28/2007)
73 Supplemental MOTION to Compel Testimony and Documents from the Garden City Defendants by all Plaintiffs by McCray, Francine, New York Acorn Housing Company, Vernon Ghullkie, Acorn, Lisbett Hunter, Vic Devita. (Bridges, Kim) (Entered: 03/12/2007)
74 Letter supplementing submission with regard to legislative privilege by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 03/12/2007)
75 NOTICE of Appearance by Karen Schmidt on behalf of County of Nassau (aty to be noticed) (Schmidt, Karen) (Entered: 03/29/2007)
ELECTRONIC ORDER: The status conference scheduled for 4/18/07 is adjourned to 4/20/07 at 10:00 a.m. Ordered by Judge William D. Wall on 4/16/07. (Disbrow, Sandra) (Entered: 04/17/2007)
76 Minute Entry & ORDER for proceedings held before William D. Wall : Status Conference held on 4/20/2007. Discovery is ongoing. The parties shall submit a joint proposed amended discovery plan within 10 days. Ordered by William D. Wall on 4/20/07. c/g (Disbrow, Sandra) (Entered: 04/20/2007)
77 NOTICE by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita Amended Report of Parties' Discovery Planning Conference Pursuant to Rule 26(F) (Bridges, Kim) (Entered: 04/26/2007)

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78 STATUS REPORT with regard to amending November 27, 2006 privilege log by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 05/07/2007)
79 Letter enclosing amended privilege log of BFJ documents by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 05/11/2007)
ELECTRONIC ORDER: The proposed amended discovery plan 77 submitted by the parties is hereby So Ordered. A status conference is scheduled for 7/10/07 at 11:00 a.m. Ordered by Judge William D. Wall on 5/14/07. (Disbrow, Sandra) (Entered: 05/14/2007)
80 Letter MOTION to Compel the Production of Certain Documents by Defendant Nassau County, motion filed by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Attachments: # 1Exhibit A# 2 Exhibit B) (Dennin, Peter) (Entered: 07/05/2007)
81 RESPONSE in Opposition re 80 Letter MOTION to Compel the Production of Certain Documents by Defendant Nassau County, motion filed by plaintiffs; opposition to motion filed by County of Nassau. (Reissman, Ralph) (Entered: 07/10/2007)
82 Minute Entry & ORDER for proceedings held before William D. Wall : Status Conference held on 7/10/2007. Next status conference will be held on 9/24/07 at 11:00 a.m. Ordered by William D. Wall on 7/10/07. c/g (Disbrow, Sandra) (Entered: 07/10/2007)
83 Letter MOTION to Take Deposition by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita. (Sweeney, Paul) (Entered: 09/17/2007)
84 RESPONSE to Motion re 83 Letter MOTION to Take Deposition filed by County of Nassau. (Schmidt, Karen) (Entered: 09/17/2007)
85 RESPONSE in Opposition re 83 Letter MOTION to Take Deposition filed by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 09/18/2007)
86 Minute Entry & ORDER for proceedings held before William D. Wall : Status Conference held on 9/24/2007. Next status conference will be held on 12/6/07 at 11:00 a.m. Ordered by William D. Wall on 9/24/07. c/g (Disbrow, Sandra) (Entered: 09/24/2007)
87 ORDER granting in part and denying in part 58 plaintiffs' Motion to Compel. See attached order. Ordered by JudgeWilliam D. Wall on 9/25/07. (Disbrow, Sandra) (Entered: 09/25/2007)

09/25/2007 09/25/2007 10/10/2007 10/10/2007
10/19/2007 10/19/2007 10/26/2007

Motions terminated, docketed incorrectly: 73 Supplemental MOTION to Compel Testimony and Documents from the Garden City Defendants by all Plaintiffs, 66 Notice of MOTION to Compel Deposition Testimony and Documents. Filings were made in support of 60 motion and were not separate motions. (Disbrow, Sandra) (Entered: 09/25/2007)
Email Notification Test - DO NOT REPLY. (Coleman, Laurie) (Entered: 09/25/2007)
88 NOTICE by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita Plaintiffs' Memorandum Of Law In Support Of Plaintiffs' Objection To Magistrate Judge Wall's Report And Recommendation Granting In Part And Denying In Part Plaintiffs' Motion To Compel Deposition Testimony And Documents From The Garden City Defendants (Attachments: # 1 Certificate of Service) (Sweeney, Paul) (Entered: 10/10/2007)
89 NOTICE by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita Declaration Of Peter J. Dennin In Further Support Of Plaintiffs' Objection To Magistrate Judge Wall's Report And Recommendation Granting In Part And Denying In Part Plaintiffs' Motion To Compel Deposition Testimony And Documents From The Garden City Defendants (Attachments: # 1 Exhibit A# 2Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Certificate of Service) (Sweeney, Paul) (Entered: 10/10/2007)
90 NOTICE by Incorporated Village of Garden City, Garden City Board of Trustees McLaughlin Affidavit in Opposition to Plaintiffs' Objection to Magistrate Judge Wall's Report and Recommendation(Attachments: # 1 Exhibit Exhibit A to McLaughlin Affidavit# 2 Exhibit Exhibit B to McLaughlin Affidavit# 3 Affidavit Affidavit of Service of McLaughlin Affidavit) (McLaughlin, Jennifer) (Entered: 10/19/2007)
91 NOTICE by Incorporated Village of Garden City, Garden City Board of Trustees Memorandum of Law of Defendants in Opposition to Plaintiffs' Objection to Magistrate Judge Wall's Report and Recommendation (Attachments: # 1 Affidavit Affidavit of Service of MOL) (McLaughlin, Jennifer) (Entered: 10/19/2007)
92 NOTICE by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita Plaintiffs' Memorandum Of Law In Support Of Plaintiffs' Reply To Garden City Defendants' Opposition To Plaintiffs' Objection To Magistrate Judge Wall's September 25, 2007 Report And Recommendation (Attachments: # 1 Certificate of Service) (Sweeney, Paul) (Entered: 10/26/2007)

11/05/2007

ELECTRONIC ORDER re 80 Letter MOTION to Compel. The Nassau County defendants shall submit to the court, for in camera review, copies of those documents for which it is asserting public interest and/or deliberative process privilege as listed in the privilege log. Ordered by Judge William D. Wall on 11/5/07. (Disbrow, Sandra) (Entered: 11/05/2007)

11/06/2007

93 Letter advising when first report of Buckhurst Fish & Jacqueman was issued to Board by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 11/06/2007)

11/08/2007

94 Letter In Response To Garden City's Letter Dated November 6, 2007 by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Sweeney, Paul) (Entered: 11/08/2007)

11/09/2007

95 Letter to Magistrate Wall in response to plaintiff's letter of November 8, 2007 by Incorporated Village of Garden City, Garden City Board of Trustees (McLaughlin, Jennifer) (Entered: 11/09/2007)

11/14/2007

96 ORDER: The temporal marker for the purposes of implementing 87 Order will be May 14, 2003. See attached order. Ordered by Magistrate-Judge William D. Wall on 11/14/07. c/e (Disbrow, Sandra) (Entered: 11/14/2007)

11/30/2007 97 Letter accompanying ex parte submission to Magistrate Wall by County of Nassau (Schmidt, Karen) (Entered: 11/30/2007)

12/03/2007 98 Letter accompanying supplemental ex parte submission to Magistrate Wall by County of Nassau (Schmidt, Karen) (Entered: 12/03/2007)

12/05/2007

99 NOTICE of Appearance by Toby William Smith on behalf of McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (aty to be noticed) (Attachments: # 1 Certificate of Service) (Smith, Toby) (Entered: 12/05/2007)

12/06/2007

100 Minute Entry for proceedings held before Magistrate Judge William D. Wall:Status Conference held on 12/6/2007. The court will issue an amended discovery order consistent with the parties' submission. Ordered by William D. Wall on 12/6/07. (Disbrow, Sandra) (Entered: 12/06/2007)

12/06/2007

101 AMENDED SCHEDULING ORDER: The parties have proposed an amended discovery schedule which is adopted as indicated in the attached order. Pretrial Conference set for 11/14/2008. Ordered by Judge William D. Wall on 12/6/07. (Disbrow, Sandra) (Entered: 12/06/2007)

01/08/2008

102 Letter dated, January 8, 2008 to Mag. Judge William D. Wall regarding pending Motion to Compel by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Sweeney, Paul) (Entered: 01/08/2008)

02/15/2008

103 Letter dated, February 15, 2008 to Mag. Judge William D. Wall regarding pending Motion to Compel by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Sweeney, Paul) (Entered: 02/15/2008)

03/04/2008 104 Letter dated, March 4, 2008 to Mag. Judge William D. Wall regarding pending Motion to Compel by McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (Sweeney, Paul) (Entered: 03/04/2008)

03/14/2008

105 ORDER granting in part and denying in part 80 plaintiffs' Motion to Compel production of documents from defendant Nassau County. Ordered by Magistrate Judge William D. Wall on 3/14/08. c/e (Disbrow, Sandra) (Entered: 03/14/2008)

04/22/2008 106 NOTICE of Appearance by Stanley Joseph Brown on behalf of McCray, Francine, Vernon Ghullkie, Lisbett Hunter, Vic Devita (aty to be noticed) (Brown, Stanley) (Entered: 04/22/2008)

04/22/2008

ELECTRONIC ORDER terminating 83 Motion to Take Deposition as moot in light of the court's orders on the privilege motions. Ordered by Judge William D. Wall on 4/21/08. (Disbrow, Sandra) (Entered: 04/22/2008)

04/24/2008

107 Letter MOTION to Compel Eastern Property Owners Association of Garden City by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 04/24/2008)

04/24/2008

108 AFFIDAVIT/DECLARATION in Support re 107 Letter MOTION to Compel Eastern Property Owners Association of Garden City filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 04/24/2008)

05/12/2008 109 Letter MOTION to Compel Defendant Nassau County by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 05/12/2008)

05/12/2008

110 AFFIDAVIT/DECLARATION in Support re 109 Letter MOTION to Compel Defendant Nassau County with exhibits 1 thru 10 filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 05/12/2008)

05/15/2008 111 RESPONSE in Opposition re 109 Letter MOTION to Compel Defendant Nassau County filed by County of Nassau. (Reissman, Ralph) (Entered: 05/15/2008)

05/16/2008 112 Letter to inform the Court that we hereby withdraw our Letter Motion, dated April 24, 2008. by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Sweeney, Paul) (Entered: 05/16/2008)

05/16/2008

ELECTRONIC ORDER withdrawing 107 Motion to Compel in light of movant's letter 112 . Ordered by Judge William D. Wall on 5/16/08. (Disbrow, Sandra) (Entered: 05/16/2008)

05/16/2008

ELECTRONIC ORDER Setting Hearing on Motion 109 Letter MOTION to Compel for 5/28/2008 at 2:00 PM before Judge William D. Wall. Any motion to adjourn this conference must include alternate dates acceptable to all parties. Ordered by Judge William D. Wall on 5/16/08. (Disbrow, Sandra) (Entered: 05/16/2008)

05/22/2008 113 STIPULATION of Partial Dismissal Pursuant to FED. R. CIV. P. 41(a)(1)(ii) by Vernon Ghullkie, Lisbett Hunter (Sweeney, Paul) (Entered: 05/22/2008)

05/22/2008

114 STIPULATION AND ORDER of partial dismissal as to plaintiffs Vernon Ghullkie and Lisbett Hunter - both parties terminated.. Ordered by Judge Joseph F. Bianco on 5/22/08. (Bollbach, Jean) (Entered: 05/27/2008)

05/29/2008

115 Minute Order. for proceedings held before Magistrate Judge William D. Wall:granting 109 Motion to Compel; Motion Hearing held on 5/28/2008. The County defendants shall comply with the demands by 6/4/08. Additional deadlines extended--see attached order. Ordered by Judge William D. Wall on 5/28/08. c/g (Disbrow, Sandra) (Entered: 05/29/2008)

06/11/2008

116 Letter MOTION for Sanctions by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Sweeney, Paul) (Entered: 06/11/2008)

06/11/2008 117 DECLARATION re 116 Letter MOTION for Sanctions by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Sweeney, Paul) (Entered: 06/11/2008)

06/13/2008

118 Letter MOTION for Extension of Time to File Response/Reply to Plaintiffs' Letter Motion dated June 11, 2008 by County of Nassau. (Schmidt, Karen) (Entered: 06/13/2008)

06/13/2008

ELECTRONIC ORDER granting 118 Motion for Extension of Time to File Response/Reply re 116 Letter MOTION for Sanctions. Responses due by 6/20/2008. Ordered by Judge William D. Wall on 6/13/08. (Disbrow, Sandra) (Entered: 06/13/2008)

06/19/2008

119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita. (Attachments: # 1 Exhibit) (Sweeney, Paul) (Entered: 06/19/2008)

06/20/2008 120 Letter MOTION for Summary Judgment Requesting Pre-Motion Conference by County of Nassau. (Schmidt, Karen) (Entered: 06/20/2008)

06/20/2008

121 RESPONSE in Opposition re 116 Letter MOTION for Sanctions (Opposition to Plaintiffs' Motion), filed by County of Nassau. (Reissman, Ralph) (Entered: 06/20/2008)

06/23/2008

123 RESPONSE to Motion re 119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date filed by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 06/23/2008)

06/23/2008

Incorrect Document/Entry Information. The RESPONSE to Motion re 119 Letter MOTION for Discovery filed as document # 122 has been deleted at the request of counsel. Lee Liotta for Jim Ryan has refiled it as #123 with the correct pdf document attached. (Mahon, Cinthia) (Entered: 06/23/2008)

06/23/2008

ORDER: By letter dated June 20, 2008, defendants request a premotion conference in anticipation of filing a motion for summary judgment. IT IS HEREBY ORDERED that defendants' request is granted. Counsel for all parties shall participate in a telephone premotion conference on Friday, July 11, 2008 at 4:30 p.m. At that time, counsel for defendants shall initiate the call and, with all parties on the line, contact Chambers at (631) 712-5670. Prior to the conference, counsel for plaintiffs may submit a letter to the Court, in accordance with the Court's Individual Rule III.A, explaining why defendants' motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/23/08. (Rothstein, Joshua) (Entered: 06/23/2008)

06/24/2008

124 RESPONSE to Motion re 120 Letter MOTION for Summary Judgment Requesting Pre-Motion Conference filed by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita. (Sweeney, Paul) (Entered: 06/24/2008)

06/24/2008 125 RESPONSE in Opposition re 119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date filed by County of Nassau. (Reissman, Ralph) (Entered: 06/24/2008)

06/24/2008

SCHEDULING ORDER: The pre-motion conference previously scheduled for July 11, 2004 at 4:30 p.m. is adjourned. The Court will reschedule the conference, at the request of counsel, after notified by Magistrate Judge Wall that all outstanding discovery, which relates to this motion, is resolved. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/24/08. (Rothstein, Joshua) (Entered: 06/24/2008)

06/25/2008

ELECTRONIC ORDER Setting Conference on Motion 116 Letter MOTION for Sanctions and 119 Letter MOTION for Discovery. Motion conference set for 7/2/2008 at 2:00 PM before Judge William D. Wall. Any motion to adjourn this conference must include proposed alternate dates acceptable to all parties. The deadline for submission of plaintiffs' expert reports is adjourned without date pending a determination of the discovery motions. Ordered by Judge William D. Wall on 6/25/08. (Disbrow, Sandra) (Entered: 06/25/2008)

06/25/2008

126 RESPONSE to Motion re 119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date , Informational Letter re: HUD Website filed by County of Nassau. (Reissman, Ralph) (Entered: 06/25/2008)

07/01/2008

ELECTRONIC ORDER: Due to a change in the court's calendar, the motion conference scheduled for 7/2/08 is adjourned to 7/11/08 at 2:00 p.m. Ordered by Magistrate Judge William D. Wall on 7/1/08. (Disbrow, Sandra) (Entered: 07/01/2008)

07/11/2008

127 Minute Entry for proceedings held before Magistrate Judge William D. Wall:Motion Hearing held on 7/11/2008. Re: 116 MOTION for sanctions by plaintiffs. Hearing concluded, decision reserved. (archive F:) (Talbott, Thomas) Modified on 7/15/2008 to reflect a hearing on the 116 motion (Talbott, Thomas). (Entered: 07/15/2008)

07/11/2008

Motions terminated: 119 Letter MOTION for Discovery and Adjournment of Expert Report Submission Date filed by New York Acorn, McCray, Andrews, Devita, Acorn.. Ordered by Magistrate Judge William D. Wall at the hearing held on 7/11/08, 127 . (Talbott, Thomas) (Entered: 03/13/2009)

07/15/2008 128 Letter attaching a proposed order by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Attachments: # 1 Proposed Order) (Smith, Toby) (Entered: 07/15/2008)

07/15/2008 129 Letter regarding Plaintiffs' Proposed Order by County of Nassau (Schmidt, Karen) (Entered: 07/15/2008)

07/17/2008

130 Letter from Toby W. Smith to Hon. William D. Wall regarding the motion for additional discovery (Docket Entry # 119) by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Smith, Toby) (Entered: 07/17/2008)

07/21/2008

131 AFFIDAVIT/DECLARATION in Opposition re 116 Letter MOTION for Sanctions , Reissman Declaration and Lassandro Affidavit certifying that Nassau County does not possess information sought by plaintiffs, filed by County of Nassau. (Reissman, Ralph) (Entered: 07/21/2008)

08/05/2008

132 Letter From Toby W. Smith To The Honorable William D. Wall Regarding Expert Discovery Schedule by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Smith, Toby) (Entered: 08/05/2008)

08/26/2008 133 MOTION to Withdraw as Attorney by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita. (Birch, Nicole) (Entered: 08/26/2008)

09/04/2008

134 Letter from Toby W. Smith to the Honorable William D. Wall regarding expert discovery schedule by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Smith, Toby) (Entered: 09/04/2008)

09/25/2008

135 Letter MOTION for Extension of Time to File Request for Pre-Motion Conference by Incorporated Village of Garden City. (Ryan, James) (Entered: 09/25/2008)

09/26/2008

ELECTRONIC ORDER granting 135 Motion for Extension of Time. Any party wishing to make a dispositive motion shall take the first step in the process no later than three weeks after the close of discovery. Ordered by Magistrate Judge William D. Wall on 9/26/08. (Disbrow, Sandra) (Entered: 09/26/2008)

12/29/2008

136 Letter MOTION for Extension of Time to File Letter Requesting Permission to File a Dispositive Motion by Incorporated Village of Garden City, Garden City Board of Trustees. (Ryan, James) (Entered: 12/29/2008)

01/08/2009

ELECTRONIC ORDER granting 136 Motion for Extension of Time to commence dispositive motion practice. Any party wishing to file a dispositive motion shall electronically file a letter request to Judge

Bianco by 1/31/09. Ordered by Magistrate Judge William D. Wall on 1/7/09. (Disbrow, Sandra) (Entered: 01/08/2009)

01/30/2009

137 Letter MOTION for pre motion conference to discuss filing a summary judgment motion and to preclude one of plaintiff's expert witnesses by Incorporated Village of Garden City, Garden City Board of Trustees. (McLaughlin, Jennifer) (Entered: 01/30/2009)

01/30/2009

138 Letter requesting pre-motion conference and permission to file Rule 56 motion for summary judgment by County of Nassau (Reissman, Ralph) (Entered: 01/30/2009)

01/30/2009

ORDER granting 137 Motion for Pre Motion Conference: By letter dated January 29, 2009, counsel for the Garden City Defendants moved for a pre-motion conference in anticipation of filing a motion for summary judgment. IT IS HEREBY ORDERED that the Garden City Defendants' motion is granted. Counsel for all parties shall participate in a telephone pre-motion conference on Thursday, February 12, 2009, at 9:30 a.m. At that time, counsel for the Garden City Defendants shall initiate the call and, with all parties on the line, contact Chambers at (631) 712-5670. Prior to the conference, counsel for plaintiffs may submit a letter to the Court, in accordance with the Court's Individual Rule III.A, explaining why the proposed motion is likely to be unsuccessful. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/30/2009. (McFadden, JoAnna) (Entered: 01/30/2009)

01/30/2009

ORDER: IT IS HEREBY ORDERED that the telephone pre-motion conference scheduled for Thursday, February 12, 2009, will now take place on Friday, February 13, 2009, at 10:00 a.m. At that time, counsel for the Garden City Defendants shall initiate the call and, with all parties on the line, contact Chambers at (631) 712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/30/2009. (McFadden, JoAnna) (Entered: 01/30/2009)

02/06/2009

139 Letter In Reponse To Defendants' Letters Seeking Permission To File A Motion For Summary Judgment by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Sweeney, Paul) (Entered: 02/06/2009)

02/13/2009

140 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone Conference held on 2/13/2009; case called; all sides present; conf. held; motion to be filed by 3/31/09; response by 5/15/09; reply by 6/3/09; oral argument set for 7/10/09 2:00 pm (Tape #10:07 10:13.) (Bollbach, Jean) (Entered: 02/13/2009)

02/24/2009

ELECTRONIC ORDER granting 133 Motion to Withdraw as Attorney. Attorney Nicole Birch terminated. Ordered by Judge William D. Wall on 2/24/2009. (Disbrow, Sandra) (Entered: 02/24/2009)

03/04/2009

141 Letter From Paul Sweeney To The Honorable Joseph F. Bianco With Attached Plaintiffs' Memorandum Of Law In Support Of Plaintiffs' Objection To Magistrate Judge Wall's Report And Recommendation Granting In Part And Denying In Part Plaintiffs' Motion To Compel Deposition Testimony And Documents From The Garden City Defendants. by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Sweeney, Paul) (Entered: 03/04/2009)

03/09/2009

142 ORDER granting in part and denying in part 116 Motion for Sanctions. See attached order. Ordered by Judge William D. Wall on 3/9/2009. (Disbrow, Sandra) (Entered: 03/09/2009)

03/17/2009

143 Letter MOTION for Reconsideration re 142 Order on Motion for Sanctions seeking limited clarification by Incorporated Village of Garden City, Garden City Board of Trustees. (McLaughlin, Jennifer) (Entered: 03/17/2009)

03/17/2009

144 Notice of MOTION for Reconsideration re 142 Order on Motion for Sanctions pursuant to Rule 72 by Incorporated Village of Garden City, Garden City Board of Trustees. (McLaughlin, Jennifer) (Entered: 03/17/2009)

03/18/2009

145 NOTICE of Appearance by Sabrina Helene Cochet on behalf of McCray, Francine, Vic Devita (aty to be noticed) (Cochet, Sabrina) (Entered: 03/18/2009)

03/23/2009

146 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by County of Nassau re 142 Order on Motion for Sanctions (Attachments: # 1 Exhibit A, # 2 Exhibit B1, # 3 Exhibit B2, # 4Exhibit C) (Miller, Esther) (Entered: 03/23/2009)

03/24/2009

Email Notification Test - DO NOT REPLY. (Brucella, Michelle) (Entered: 03/24/2009)

03/31/2009

147 MOTION for Summary Judgment by Incorporated Village of Garden City, Garden City Board of Trustees. (Attachments: # 1 Notice of Motion Notice of Motion, # 2 Affidavit Michael Filippon, # 3Affidavit Peter Bee, # 4 Affidavit James G. Ryan, # 5 Exhibit Exhibit Statement, # 6 Rule 56.1 Statement Statement of Material Facts, # 7 Memorandum in Support Memorandum of Law, # 8Affidavit of Service Affidavit of Service - Notice of Motion, # 9 Affidavit of Service Affidavit of Service - Rule 56.1, # 10 Affidavit of Service Affidavit of Service -

Memorandum of Law, # 11Letter to Judge Bianco) (McLaughlin, Jennifer) (Entered: 03/31/2009)

03/31/2009

148 Notice of MOTION for Summary Judgment by County of Nassau. Responses due by 5/15/2009 (Attachments: # 1 Affidavit in Support of Rosemary Olsen, # 2 Rule 56.1 Statement, # 3Memorandum in Support, # 4 Notice of Motion Letter to Court, # 5 Certificate of Service, # 6 Affidavit in Support Declaration of Ralph J. Reissman) (Reissman, Ralph) (Entered: 03/31/2009)

03/31/2009

149 Letter In Opposition To Defendant Garden City's Letter Motion, Dated March 17, 2009, Seeking Clarification Concerning Magistrate Judge Wall's Order. by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita (Attachments: # 1 Memorandum in Opposition, # 2 Declaration of Sabrina H. Cochet, # 3 Ex. A to Declaration, # 4 Ex. B to Declaration, # 5 Ex. C to Declaration, # 6 Ex. D to Declaration, # 7 Ex. E to Declaration, # 8 Ex. F to Declaration, # 9 Ex. G to Declaration, # 10 Ex. H to Declaration, # 11 Ex. I to Declaration, # 12 Ex. J to Declaration, # 13Ex. K to Declaration, # 14 Ex. L to Declaration, # 15 Certificate of Service) (Sweeney, Paul) (Entered: 03/31/2009)

03/31/2009

150 MEMORANDUM in Opposition re 144 Notice of MOTION for Reconsideration re 142 Order on Motion for Sanctions pursuant to Rule 72 filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Certificate of Service) (Sweeney, Paul) (Entered: 03/31/2009)

03/31/2009

151 AFFIDAVIT/DECLARATION in Opposition re 144 Notice of MOTION for Reconsideration re 142 Order on Motion for Sanctions pursuant to Rule 72 filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Ex. A, # 2 Ex. B, # 3 Ex. C, # 4 Ex. D, # 5 Ex. E, # 6 Ex. F, # 7 Ex. G, # 8 Ex. H, # 9 Ex. I, # 10 Ex. J, # 11 Ex. K, # 12 Ex. L, # 13Certificate of Service) (Sweeney, Paul) (Entered: 03/31/2009)

04/02/2009

152 DECLARATION re 148 Notice of MOTION for Summary Judgment Certificate of Service upon Cullen & Dykman and filing in Court by Gary Duffy by County of Nassau (Reissman, Ralph) (Entered: 04/02/2009)

04/02/2009 153 DECLARATION re 148 Notice of MOTION for Summary Judgment Certificate of overnight service upon Hogan Hartson by County of Nassau (Reissman, Ralph) (Entered: 04/02/2009)

04/06/2009 154 MEMORANDUM in Opposition re 146 Appeal of Magistrate Judge Decision to District Court filed by all plaintiffs. (Attachments: # 1 Certificate of Service) (Sweeney, Paul) (Entered: 04/06/2009)

04/06/2009

155 DECLARATION Of Toby W. Smith In Support Of Plaintiffs' Opposition To Defendant Nassau County's Objections To Magistrate Judge Wall's March 9, 2009 Order by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Sweeney, Paul) (Entered: 04/06/2009)

04/29/2009

156 DECLARATION Of Toby W. Smith In Support Of Application For Attorneys Fees And Costs by McCray, Francine, Vic Devita (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4Certificate Of Service) (Sweeney, Paul) (Entered: 04/29/2009)

04/30/2009 157 Letter MOTION for Extension of Time to File Response/Reply to Plaintiffs' Application for Costs by County of Nassau. (Schmidt, Karen) (Entered: 04/30/2009)

05/01/2009

ORDER: IT IS HEREBY ORDERED that the Court will hear oral argument on pending appeals of discovery orders when it hears oral argument on defendants' motion for summary judgment, on July 10, 2009 at 2:00 p.m. SO ORDERED. Ordered by Judge Joseph F. Bianco on 5/1/2009. (McFadden, JoAnna) (Entered: 05/01/2009)

05/07/2009

158 STIPULATION regarding an amended summary judgment briefing schedule by McCray, Francine, New York Acorn Housing Company, County of Nassau, Incorporated Village of Garden City, Garden City Board of Trustees, Acorn, Daphne Andrews, Vic Devita (Attachments: # 1 Proposed Order) (Cochet, Sabrina) (Entered: 05/07/2009)

05/07/2009 159 STIPULATION AND ORDER - see documents for full details. Ordered by Judge Joseph F. Bianco on 5/7/2009. (Bollbach, Jean) (Entered: 05/07/2009)

05/13/2009

160 Letter from Sabrina H. Cochet to Judge Wall in response to the Nassau County Defendants' letter of April 30, 2009 by McCray, Francine, New York Acorn Housing Company, Acorn, Daphne Andrews, Vic Devita (Cochet, Sabrina) (Entered: 05/13/2009)

05/15/2009

ELECTRONIC ORDER granting 157 Motion for Extension of Time to File Response/Reply to plaintiffs' application for costs 156 . Ordered by Magistrate Judge William D. Wall on 5/15/2009. (Disbrow, Sandra) (Entered: 05/15/2009)

06/15/2009 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)

06/15/2009

162 MEMORANDUM in Support re 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)

06/15/2009

163 AFFIDAVIT/DECLARATION in Support re 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Exhibit 2.1, # 2 Exhibit 2.2, # 3 Exhibit 2.3, # 4 Exhibit 2.4, # 5 Exhibit 2.5, # 6 Exhibit 2.6, # 7 Exhibit 2.7, # 8 Exhibit 2.8, # 9 Exhibit 2.9, # 10 Exhibit 2.10, # 11Exhibit 2.11, # 12 Exhibit 2.12, # 13 Exhibit 2.13, # 14 Exhibit 2.14, # 15 Exhibit 2.15, # 16 Exhibit 2.16, # 17 Exhibit 2.17, # 18 Exhibit 2.18, # 19 Exhibit 2.19) (Cochet, Sabrina) (Entered: 06/15/2009)

06/15/2009

164 MEMORANDUM in Opposition re 147 MOTION for Summary Judgment (Motion to Exclude Peter Marcuse) filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)

06/15/2009

165 AFFIDAVIT/DECLARATION in Opposition re 147 MOTION for Summary Judgment (Motion to Exclude Peter Marcuse) filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1 Exhibit 1.1, # 2 Exhibit 1.2, # 3 Exhibit 1.3, # 4 Exhibit 1.4) (Cochet, Sabrina) (Entered: 06/15/2009)

06/15/2009

166 RULE 56.1 STATEMENT re 147 MOTION for Summary Judgment (Response to Garden City Rule 56.1 Statement) filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)

06/15/2009

167 RULE 56.1 STATEMENT re 147 MOTION for Summary Judgment (Response to Nassau County Rule 56.1 Statement) filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/15/2009)

06/16/2009

168 RULE 56.1 STATEMENT Of Additional Material Facts filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/16/2009)

06/16/2009 169 MEMORANDUM in Opposition re 147 MOTION for Summary Judgment filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Cochet, Sabrina) (Entered: 06/16/2009)

06/16/2009

170 AFFIDAVIT/DECLARATION in Opposition re 147 MOTION for Summary Judgment filed by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita. (Attachments: # 1Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 45A, # 47 Exhibit 45B, # 48 Exhibit 45C, # 49Exhibit 46, # 50 Exhibit 47, # 51 Exhibit 47A, # 52 Exhibit 47B, # 53 Exhibit 48, # 54 Exhibit 48A, # 55 Exhibit 48B, # 56 Exhibit 48C, # 57 Exhibit 48D, # 58 Exhibit 49, # 59 Exhibit 50, # 60Exhibit 51, # 61 Exhibit 52, # 62 Exhibit 53, # 63 Exhibit 54, # 64 Exhibit 55, # 65 Exhibit 56, # 66 Exhibit 57, # 67 Exhibit 58, # 68 Exhibit 59, # 69 Exhibit 60, # 70 Exhibit 61, # 71 Exhibit 62, # 72 Exhibit 63, # 73 Exhibit 64, # 74 Exhibit 65, # 75 Exhibit 66, # 76 Exhibit 67, # 77 Exhibit 68, # 78 Exhibit 69, # 79 Exhibit 70, # 80 Exhibit 71, # 81 Exhibit 72, # 82 Exhibit 73, # 83 Exhibit 74, # 84 Exhibit 75, # 85 Exhibit 76, # 86 Exhibit 77, # 87 Exhibit 78, # 88 Exhibit 79, # 89 Exhibit 80, # 90 Exhibit 81, # 91 Exhibit 82, # 92 Exhibit 83, # 93 Exhibit 84, # 94 Exhibit 85, # 95Exhibit 85A, # 96 Exhibit 86, # 97 Exhibit 86A, # 98 Exhibit 86B, # 99 Exhibit 87, # 100 Exhibit 88, # 101 Exhibit 89, # 102 Exhibit 90, # 103 Exhibit 91, # 104 Exhibit 92, # 105 Exhibit 93, # 106Exhibit 93A, # 107 Exhibit 94, # 108 Exhibit 95, # 109 Exhibit 96, # 110 Exhibit 97, # 111 Exhibit 98) (Cochet, Sabrina) (Entered: 06/16/2009)

06/16/2009

171 CERTIFICATE OF SERVICE by McCray, Francine, New York Acorn Housing Company, Acorn, Vic Devita re 164 Memorandum in Opposition, 168 Rule 56.1 Statement, 170 Affidavit in Opposition to Motion,,,,,,,,, 165 Affidavit in Opposition to Motion, 169 Memorandum in Opposition, 163 Affidavit in Support of Motion,, 167 Rule 56.1 Statement, 166 Rule 56.1 Statement, 162Memorandum in Support, 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary (Cochet, Sabrina) (Entered: 06/16/2009)

07/15/2009

172 REPLY in Support , NASSAU COUNTY REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT, filed by County of Nassau. (Reissman, Ralph) (Entered: 07/15/2009)

07/15/2009 173 DECLARATION re 172 Reply in Support , Declaration of Service by County of Nassau (Reissman, Ralph) (Entered: 07/15/2009)

07/15/2009

174 MEMORANDUM in Opposition to Exclude Cleary filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)

07/15/2009 175 MEMORANDUM in Support of Motion to Exclude Marcuse filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)

07/15/2009 176 MEMORANDUM in Support of Motion for Summary Judgment filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)

07/15/2009

177 RESPONSE in Opposition re 161 MOTION to Strike Motion to Exclude Testimony of Patrick Cleary filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1Exhibit, # 2 Exhibit) (McLaughlin, Jennifer) (Entered: 07/15/2009)

07/15/2009 178 Letter MOTION for pre motion conference by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)

07/15/2009

179 RULE 56.1 STATEMENT Defendants' Response to Statement of Additional Material Facts filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 07/15/2009)

07/16/2009

ORDER denying as moot 178 Motion for Pre Motion Conference: The Court received the Garden City defendants' letter, dated July 15, 2009, seeking either a pre-motion conference in anticipation of filing a motion to strike portions of plaintiffs' Rule 56.1 counterstatements of fact or a briefing schedule for such a motion. IT IS HEREBY ORDERED that the Court will hear arguments from plaintiffs and defendants regarding defendants' desire to strike portions of the Rule 56.1 counterstatement of facts when it hears oral argument for the pending motion for summary judgment and appeal of certain discovery orders, on August 21, 2009. No further submissions regarding the motion to strike are required. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/16/2009. (McFadden, JoAnna) (Entered: 07/16/2009)

07/27/2009 180 REPLY in Support of Motion to Exclude Cleary filed by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company. (Cochet, Sabrina) (Entered: 07/27/2009)

08/05/2009

181 Letter , Dated August 5, 2009 From Stanley J. Brown To Honorable Joseph F. Bianco re: Requesting A Schedule Of Time To Be Allocated For Each Of The Matters Scheduled To Be Heard On August 21, 2009 by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 08/05/2009)

08/06/2009

ORDER: Pursuant to plaintiffs' request, filed on August 6, 2009, IT IS HEREBY ORDERED that the Court shall hear oral argument on August 21, 2009 at 2 p.m. as follows: plaintiffs and the Garden City defendants shall have five minutes each to argue their respective motions to strike the Cleary and Marcuse reports, for a total of ten minutes; plaintiffs, the Garden City defendants, and the County of Nassau shall have ten minutes each to argue their respective appeals of discovery orders issued by Magistrate Judge Wall, for a total of thirty minutes; and plaintiffs, the Garden City defendants and the County of Nassau shall have twenty minutes each to argue their respective motions opposing and supporting summary judgment in this matter, for a total of sixty minutes. Oral argument shall last one hour and forty minutes. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/6/2009. (McFadden, JoAnna) (Entered: 08/06/2009)

08/19/2009

182 Letter from Stanley J. Brown to the Honorable Joseph F.Bianco submitting supplemental authority by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 08/19/2009)

08/21/2009

183 Minute Entry for proceedings held before Judge Joseph F. Bianco:Oral Argument held on 8/21/2009; case called; conf. held; argument heard; decision reserved; affidavit is due by 9/4/09. Letter to be submitted by 9/11/09 (Court Reporter FTR 2:14 -3:01 and 3:08 - 4:12.) (Bollbach, Jean) (Entered: 08/24/2009)

08/28/2009 184 Letter responding to plaintiffs' August 19, 2009 letter enclosing four cases, by County of Nassau (Reissman, Ralph) (Entered: 08/28/2009)

09/04/2009 185 Letter to Judge Bianco re Summary Judgment motion by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 09/04/2009)

09/04/2009

186 Letter responding to plaintiffs' August 19, 2009 supplemental letter by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 09/04/2009)

09/04/2009

187 DECLARATION re 146 Appeal of Magistrate Judge Decision to District Court Judge Bianco by County of Nassau, Nassau County Office of Real Estate & Development, Nassau County Planning Commission (Miller, Esther) (Entered: 09/04/2009)

09/04/2009 188 Letter to Judge Bianco re Summary Judgment Motion by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company (Cochet, Sabrina) (Entered: 09/04/2009)

09/04/2009 189 Letter in response to docket entry #185 and 186 by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Cochet, Sabrina) (Entered: 09/04/2009)

09/10/2009

190 MEMORANDUM AND ORDER. For the reasons stated in the attached Memorandum & Order, IT IS HEREBY ORDERED that plaintiffs' motion seeking to set aside the September 5, 2007 discovery order of Magistrate Judge Wall is denied. Magistrate Judge Wall can now expeditiously review in camera the twenty-two documents submitted by the Garden City defendants. The documents will be reviewed within the framework set forth in the September 25, 2007 Order, with the additional instruction that any documents illustrating that racial considerations were part of the legislative deliberations must also be produced. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/10/2009. (Howard, Timothy) (Entered: 09/10/2009)

09/11/2009

191 Letter Dated September 11, 2009 In Response To The County's Submission Of Esther Miller's September 4, 2009 Affidavit. by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Cochet, Sabrina) (Entered: 09/11/2009)

09/15/2009

192 Letter regarding plaintiffs' September 11, 2009 letter re: Affidavit of Esther Miller, by County of Nassau (Reissman, Ralph) (Entered: 09/15/2009)

10/01/2009 193 Letter requesting correction to reported list of attorneys representing County in future Court decisions, orders or memoranda, by County of Nassau (Reissman, Ralph) (Entered: 10/01/2009)

10/08/2009

194 ORDER - see document for full details. Court refers the matter back to M.J. Wall in order to allow him to consider the declaration of Esther D. Miller in support of Countys objections to the 3/9/09 order.. Ordered by Judge Joseph F. Bianco on 10/8/2009. (Bollbach, Jean) (Entered: 10/09/2009)

11/02/2009

195 ORDER re: in camera review of documents withheld from production by defendants Incorporated Village of Garden City and Garden City Board of Trustees on the ground of legislative privilege. That review has been completed and the asserted privilege is hereby upheld. See attached order. Ordered by Judge William D. Wall on 11/2/2009. c/e (Disbrow, Sandra) (Entered: 11/02/2009)

11/05/2009

196 ORDER: On 3/9/09, the undersigned issued an order 142 granting plaintiffs motion 116 in part and denying it in part. Nassau County appealed, and by order 194 dated 10/8/09, District Judge Bianco referred the matter back to the undersigned to consider a declaration provided by the County on its appeal. Upon that review, the court makes the following rulings: Part I of the courts order 142 is hereby vacated; for the reasons set forth herein, plaintiffs motion is denied. Part II of the court's order 142 is unaffected by this order. Ordered by Judge William D. Wall on 11/5/2009. c/e (Disbrow, Sandra) (Entered: 11/05/2009)

11/05/2009

ELECTRONIC ORDER denying as moot 143 Motion for Reconsideration. In light of the Order 196 vacating that part of the prior order for which defendant sought reconsideration, the motion is denied as moot. Ordered by Magistrate Judge William D. Wall on 11/5/2009. (Disbrow, Sandra) (Entered: 11/05/2009)

11/05/2009

ORDER denying as moot 144 Motion for Reconsideration. In light of Magistrate Judge Wall's Order 196 vacating that part of the prior order for which defendant sought reconsideration, the motion is denied as moot. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/5/2009. (Alexander, John) (Entered: 11/05/2009)

11/16/2009

197 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Attachments: # 1 Affidavit Declaration of Sabrina H. Cochet, # 2 Exhibit Ex. 1 to the Declaration, # 3 Exhibit Ex. 2 to the Declaration, # 4 Exhibit Ex. 3 to the Declaration, # 5 Exhibit Ex. 4 to the Declaration, # 6 Exhibit EX. 5 to the Declaration) (Cochet, Sabrina) (Entered: 11/16/2009)

11/23/2009

198 Letter MOTION for Extension of Time to File Response/Reply to Objections to Judge Wall's Decision by County of Nassau, Nassau County Office of Real Estate & Development, Nassau County Planning Commission. (Miller, Esther) (Entered: 11/23/2009)

11/24/2009

ORDER granting in part 198 Motion for Extension of Time to File Response/Reply. By letter dated November 23, 2009, defendant Nassau County requested an extension of time to respond to plaintiff's objections to Magistrate Judge Wall's November 5, 2009 Order. Defendant intends to file a motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, and requests an extension of time to respond to plaintiff's objections until after the Court's determination of the anticipated motion for sanctions. IT IS HEREBY ORDERED that defendant shall, in accordance with Rule 11, serve its motion for sanctions on plaintiff by December 9, 2009. IT IS FURTHER

ODERED that defendant shall file its response to plaintiff's objections and a separate motion for sanctions by January 5, 2009. IT IS FURTHER ORDERED that plaintiff shall respond to defendant's response to plaintiff's objections, and defendant's motion for sanctions, by January 19, 2010. IT IS FURTHER ORDERED that defendant shall submit any reply in further support of its motion for sanctions by January 26, 2010. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/24/2009. (Alexander, John) (Entered: 11/24/2009)

12/11/2009

199 CERTIFICATE OF SERVICE by County of Nassau, Nassau County Office of Real Estate & Development, Nassau County Planning Commission re Order on Motion for Extension of Time to File Response/Reply,,,, and Filing of Rule 11 Motion (Miller, Esther) (Entered: 12/11/2009)

12/21/2009 200 NOTICE of Appearance by Joanna F. Wasick on behalf of Vic Devita, McCray, Francine (aty to be noticed) (Wasick, Joanna) (Entered: 12/21/2009)

12/23/2009

201 Letter To Remove Former Hogan & Hartson Attorneys From Noticed Attorneys List by Vic Devita, McCray, Francine (Wasick, Joanna) (Entered: 12/23/2009)

01/05/2010

202 MEMORANDUM in Opposition re 197 Appeal of Magistrate Judge Decision to District Court, (Response to Plaintiffs' Objections to Mag. Judge Wall's November 5, 2009 Order), filed by County of Nassau. (Reissman, Ralph) (Entered: 01/05/2010)

01/05/2010

203 Notice of MOTION for Sanctions against Plaintiffs under Rule 11, by County of Nassau. (Attachments: # 1 Memorandum in Support MEMO OF LAW) (Reissman, Ralph) (Entered: 01/05/2010)

01/06/2010 204 Letter notifying Court of names of three attorneys to be marked "Terminated" on the Docket Sheet, by County of Nassau (Reissman, Ralph) (Entered: 01/06/2010)

01/14/2010

206 ORDERED that Ester D Miller, Andrew Reginald Scott and Karen Schmidt as atty for County are terminated as no longer represent the County,. Ordered by Judge Joseph F. Bianco on 1/14/2010. (Bollbach, Jean) (Entered: 01/20/2010)

01/19/2010

205 MEMORANDUM in Opposition re 203 Notice of MOTION for Sanctions against Plaintiffs under Rule 11,, MEMORANDUM in Support re 197 Appeal of Magistrate Judge Decision to District Court, (In Further Support Of Doc.#197) filed by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company. (Attachments: # 1 Certificate of Service, # 2 Declaration of Joanna F. Wasick,

# 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F) (Brown, Stanley) (Entered: 01/19/2010)

01/25/2010

207 First MOTION for Extension of Time to File Response/Reply as to 205 Memorandum in Opposition, Memorandum in Support,,,, to February 5, 2010, by County of Nassau. (Reissman, Ralph) (Entered: 01/25/2010)

01/25/2010

208 RESPONSE to Motion re 207 First MOTION for Extension of Time to File Response/Reply as to 205 Memorandum in Opposition, Memorandum in Support,,,, to February 5, 2010, filed by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company. (Brown, Stanley) (Entered: 01/25/2010)

01/26/2010

ORDER granting 207 Motion for Extension of Time to File Response/Reply. By letter dated January 25, 2010, defendant requested an extension of time until February 5, 2010 to file its reply brief in support of its Rule 11 motion. By letter dated January 25, 2010, plaintiff opposed the request. Because the additional time requested by defendant will not affect the timing of the Court's disposition of the motion, IT IS HEREBY ORDERED that defendant's request is granted. Defendant shall submit its reply brief by February 5, 2010. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/26/2010. (Alexander, John) (Entered: 01/26/2010)

01/26/2010

209 Letter to Judge Bianco re: Memorandum In Further Support by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Attachments: # 1 Memorandum In Further Support, # 2Exhibit A) (Brown, Stanley) (Entered: 01/26/2010)

02/05/2010

210 MEMORANDUM in Support re 203 Notice of MOTION for Sanctions against Plaintiffs under Rule 11, REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION FOR SANCTIONS AGAINST PLAINTIFFS, filed by County of Nassau. (Reissman, Ralph) (Entered: 02/05/2010)

02/19/2010

ORDER. IT IS HEREBY ORDERED that the parties participate in a telephone conference on Tuesday, March 2, 2010 at 1:30 p.m. to address a recusal issue that has arisen. At that time, counsel for the Garden City defendants shall initiate the call and, once all parties are on the line, contact Chambers at (631)-712-5670. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/19/2010. (Quigley, Brendan) (Entered: 02/19/2010)

03/02/2010

211 ORDER OF RECUSAL. Judge Joseph F. Bianco recused.. Ordered by Judge Joseph F. Bianco on 3/2/2010. (Bollbach, Jean) (Entered: 03/02/2010)

03/02/2010

212 Minute Entry for proceedings held before Judge Joseph F. Bianco:Telephone pre motion Conference held on 3/2/2010; I recuse myself from case. (Court Reporter FTR 1:43 - 1:54.) (Bollbach, Jean) (Entered: 03/02/2010)

03/08/2010

213 ORDER REASSIGNING CASE. Case reassigned to Judge Sandra J. Feuerstein for all further proceedings.. Ordered by Chief Judge Raymond J. Dearie on 3/8/2010. (Bowens, Priscilla) (Entered: 03/09/2010)

03/11/2010

ORDER OF RECUSAL. Judge Sandra J. Feuerstein recused. Case reassigned to Senior Judge Arthur D. Spatt for all further proceedings Type of Recusal Attorney. Ordered by Judge Sandra J. Feuerstein on 3/11/2010. (Adell, April) (Entered: 03/11/2010)

03/15/2010

214 ORDER - The instant case was reassigned to this Court on March 11, 2010 with several motions pending. The Court hereby dismisses the pending motions without prejudice and with leave to refile in accordance with Judge Spatts Individual Motion Practice Rules. In addition to refiling on ECF, the parties are directed to furnish the Court with courtesy copies of any and all papers relevant to the pending motions. Signed by Senior Judge Arthur D. Spatt, on 3/15/10. Terminating 147 Motion for Summary Judgment; 148 Motion for Summary Judgment; 161 Motion to Strike ; 203 Motion for Sanctions pursuant to herein.. Ordered by Senior Judge Arthur D. Spatt on 3/15/2010. (Coleman, Laurie) (Entered: 03/16/2010)

03/24/2010

215 Letter To Judge Spatt Re: Post-Reassignment Conference by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 03/24/2010)

03/26/2010 216 Letter MOTION to Adjourn Conference of April 6, 2010 due to religious observance, by County of Nassau. (Reissman, Ralph) (Entered: 03/26/2010)

03/26/2010 219 ORDER granting 216 Motion to Adjourn Conference- conf 4/6/10 at 9:30. Ordered by Senior Judge Arthur D. Spatt on 3/26/2010. (Bollbach, Jean) (Entered: 03/30/2010)

03/29/2010

217 Letter To Judge Spatt re: In Response to Mr. Reissman's March 26, 2010 Letter by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 03/29/2010)

03/30/2010

218 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on AUGUST 21, 2009,CIVIL CAUSE FOR ORAL ARGUMENT HELD before Judge HON. JUDGE JOSEPH F. BIANCO. Court Reporter/Transcriber ROSALIE LOMBARDI & LINDA FERRARA,

Telephone number (516) 358-7352. Email address: TRANSCRIPTIONS2@VERIZON.NET. Tape Number: FTR/DRIVE/TIME:. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/20/2010. Redacted Transcript Deadline set for 4/30/2010. Release of Transcript Restriction set for 6/28/2010.KEITH ANGELO JONES. (Jones, Keith) (Entered: 03/30/2010)

03/30/2010

220 ORDER, ( Pre-Motion Conference reset for 4/7/2010 09:30 AM before Senior Judge Arthur D. Spatt.) Movants counsel directed to serve a copy of this order on all parties upon receipt via facsimile. Ordered by Senior Judge Arthur D. Spatt on 3/30/2010. (Bollbach, Jean) (Entered: 03/31/2010)

04/02/2010

231 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings CIVIL CAUSE FOR A TELEPHONE PRE-MOTION CONFERENCE held on MARCH 02, 2010, before HON.JUDGE JOSEPH F. BIANCO. Court Reporter/Transcriber MARY GRECO OF TypeWrite Word Processing Service @ 211 N. Milton Road Saratoga Springs, New York. 12866, Telephone number (518) 581-8973 or (718) 966-1401; Fax#(718) 967-4843. Tape Number: FTR/DRIVE/TIME:. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/23/2010. Redacted Transcript Deadline set for 5/3/2010. Release of Transcript Restriction set for 7/1/2010.KEITH ANGELO JONES. (Jones, Keith) (Entered: 04/20/2010)

04/05/2010

221 Letter regarding issues that will be presented to the Court at the premotion conference 4-7-10 by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 04/05/2010)

04/06/2010

222 Letter regarding April 7, 2010 conference by Acorn, Vic Devita, McCray, Francine, New York Acorn Housing Company (Brown, Stanley) (Entered: 04/06/2010)

04/07/2010

232 MINUTE ENTRY for proceedings held before Senior Judge Arthur D. Spatt:Pre-Motion Conference held on 4/7/2010 at 9:40 a.m. Court Deputy: Mary Ellen Schaffner. Case called. Counsel for all sides present. Pre-motion conference held. Other: Proposed scheduling order submitted to the Court. (Coleman, Laurie) (Entered: 04/22/2010)

04/09/2010

223 Letter MOTION to Amend/Correct/Supplement (Seeking Name Change) by New York Acorn Housing Company. (Attachments: # 1 Certificate of Amendment, # 2 Proposed Order) (Rich, Joseph) (Entered: 04/09/2010)

04/12/2010

224 Letter MOTION to Amend/Correct/Supplement no objection to change of name of New York ACORN Housing Company, Inc. by Garden City Board of Trustees, Incorporated Village of Garden City. (Ryan, James) (Entered: 04/12/2010)

04/13/2010

230 ORDER Re: 223 Motion amend docket to reflect the name change of Plaintiff New York ACORN Housing Company, Inc. to MHANY Management, Inc. Signed by Senior Judge Arthur D. Spatt on 4/13/2010. Caption amended pursuant to herein. (Coleman, Laurie) (Entered: 04/15/2010)

04/13/2010

Motions terminated, docketed incorrectly: 224 Letter MOTION to Amend/Correct/Supplement no objection to change of name of New York ACORN Housing Company, Inc. filed by Garden City Board of Trustees, Incorporated Village of Garden City. It's a response to the #223 motion to amend (which was decided by the 4/13/10 Order of District Judge Spatt). (Talbott, Thomas) (Entered: 07/16/2010)

04/14/2010

225 MOTION to Intervene by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. (Attachments: # 1 Certificate of Service) (Rich, Joseph) (Entered: 04/14/2010)

04/14/2010

226 MEMORANDUM in Support re 225 MOTION to Intervene filed by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. (Rich, Joseph) (Entered: 04/14/2010)

04/14/2010

227 AFFIDAVIT/DECLARATION in Support re 225 MOTION to Intervene filed by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. (Attachments: # 1 Exhibit 1) (Rich, Joseph) (Entered: 04/14/2010)

04/14/2010

228 AFFIDAVIT/DECLARATION in Support re 225 MOTION to Intervene filed by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York Communities For Change, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Rich, Joseph) (Entered: 04/14/2010)

04/15/2010 229 EXHIBIT C by Acorn, Daphne Andrews, Vic Devita, McCray, Francine, New York Acorn Housing Company, New York

Communities For Change, Inc.. Related document: 228 Affidavit in Support of Motion, filed by New York Acorn Housing Company, McCray, Francine, Daphne Andrews, New York Communities For Change, Inc., Vic Devita, Acorn. (Rich, Joseph) (Entered: 04/15/2010)

04/23/2010

233 MOTION to Intervene Memorandum of Law in Opposition by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit of Service) (McLaughlin, Jennifer) (Entered: 04/23/2010)

04/23/2010 234 RESPONSE in Opposition re 225 MOTION to Intervene (Letter in Opposition) filed by County of Nassau. (Reissman, Ralph) (Entered: 04/23/2010)

04/23/2010

235 MOTION for Leave to Appear Pro Hac Vice (Abigail Evans Shafroth) Filing fee $ 25, receipt number 0207-4110729. by Acorn, Vic Devita, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc.. (Attachments: # 1 Declaration Of Joanna F. Wasick, # 2 Affidavit Of Abigail Evans Shafroth, # 3 Certificate Of Good Standing, # 4 Proposed Order) (Wasick, Joanna) (Entered: 04/23/2010)

04/28/2010

236 Letter regarding outstanding motions by Acorn, Vic Devita, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 04/28/2010)

04/28/2010 237 Letter regarding removal of attorneys from counsel list by Vic Devita, McCray, Francine (Brown, Stanley) (Entered: 04/28/2010)

04/29/2010 238 Letter in response to plaintiffs' 4-28-10 letter regarding motion by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 04/29/2010)

04/29/2010

239 ORDER endorsed on letter dtd. 4/28/10 - request in letter is denied. Upon the courts determination of the plaintiff's motion to intervene, the parties may re-submit a proposed briefing schedule for any motion for summary judgment. Ordered by Senior Judge Arthur D. Spatt on 4/29/10. (Bollbach, Jean) (Entered: 05/04/2010)

04/29/2010

240 ORDER endorsed on letter dtd. 4/28/10 - Request is granted. So Ordered. Toby William Smith and Jenny Rubin Robertson are no longer associated with this office and are to be removed.. Ordered by Senior Judge Arthur D. Spatt on 4/29/10. (Bollbach, Jean) (Entered: 05/04/2010)

05/04/2010 241 NOTICE by Vic Devita, McCray, Francine (Change of Firm Name and Email Address) (Brown, Stanley) (Entered: 05/04/2010)

05/04/2010 242 NOTICE by Vic Devita, McCray, Francine (Change of Firm Name and Email Address) (Dennin, Peter) (Entered: 05/04/2010)

05/04/2010 243 NOTICE of Change of Firm Name and Email Address by Joanna F. Wasick (Wasick, Joanna) (Entered: 05/04/2010)

05/04/2010 244 NOTICE of Change of Firm Name and Email Address by Sabrina Helene Cochet (Cochet, Sabrina) (Entered: 05/04/2010)

05/05/2010 245 REPLY in Support re 225 MOTION to Intervene filed by New York Communities For Change, Inc.. (Attachments: # 1 Certificate of Service) (Rich, Joseph) (Entered: 05/05/2010)

05/14/2010

ELECTRONIC ORDER granting 235 Motion for Leave to Appear pro hac vice, Abigail Evans Shafroth for plaintiffs. Ordered by Judge William D. Wall on 5/14/2010. (Disbrow, Sandra) (Entered: 05/14/2010)

05/14/2010

Email Notification Test - DO NOT REPLY. (Coleman, Laurie) (Entered: 06/22/2010)

06/15/2010

246 ORDER - it is hereby ORDERED that NYCCs 233 motion to intervene pursuant to Rule 24(b) is granted; and it is further ORDERED that, within twenty days of the date hereof, NYCC may file a complaint substantially similar to the proposed complaint by NYCC presently filed with the Court; and it is further ORDERED that the parties are directed to appear before United States Magistrate Judge William D. Wall for a conference concerning any additional discovery in this case on June 25, 2010 at 11:00; and it is further ORDERED that, pending the submission of NYCCs complaint, the Clerk of the Court is directed to amend the caption for this case to read as follows: (see Order). Ordered by Senior Judge Arthur D. Spatt on 6/15/10. (Coleman, Laurie) (Entered: 06/16/2010)

06/24/2010

247 Letter Regarding Discovery Conference Before Mag. Judge Wall by Acorn, Vic Devita, MHANY Management, Inc., McCray, Francine (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4Exhibit 4) (Brown, Stanley) (Entered: 06/24/2010)

06/25/2010

248 Minute Order for proceedings held before Magistrate Judge William D. Wall:Status Conference held on 6/25/2010. Plaintiff's motion to re-open discovery is granted. All additional discovery shall be completed by 10/15/10. Next telephone status conference will be held on 10/20/10.

See attached order. Ordered by Judge William D. Wall on 6/25/10. c/g (Disbrow, Sandra) (Entered: 06/25/2010)

06/29/2010

249 Letter requesting names of attorneys no longer representing County to be withdrawn from docket, by County of Nassau (Reissman, Ralph) (Entered: 06/29/2010)

06/30/2010 250 Intervenor COMPLAINT, filed by New York Communities For Change, Inc.. (Rich, Joseph) (Entered: 06/30/2010)

08/26/2010

251 ANSWER to Complaint in Intervention for Declaratory Judgment and Injunctive Relief by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit of Service) (Ryan, James) (Entered: 08/26/2010)

09/16/2010

252 Defendant Nassau County's ANSWER to Complaint in Intervention of New York Communities for Change, Inc., by County of Nassau. (Reissman, Ralph) (Entered: 09/16/2010)

10/13/2010 253 Joint MOTION for Extension of Time to Complete Discovery, Joint MOTION to Adjourn Conference by County of Nassau. (Reissman, Ralph) (Entered: 10/13/2010)

10/13/2010

ORDER granting 253 Motion for Extension of Time to Complete Discovery; granting 253 Motion to Adjourn Conference. The discovery deadline is extended to November 5, 2010. The telephone status conference scheduled for 10/20/10 is adjourned to 11/8/10 at 11:30 a.m. Ordered by Magistrate Judge William D. Wall on 10/13/2010. (Hepworth, F.) (Entered: 10/13/2010)

10/19/2010

254 Letter to Magistrate judge William D. Wall re: Stipulation and Order for the Protection of Confidential Information by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Attachments: # 1 Stipulation and Order for the Protection of Confidential Information) (Shafroth, Abigail) (Entered: 10/19/2010)

10/20/2010

ELECTRONIC ORDER: re 254 Letter. The Confidentiality Order submitted by the parties as an attachment to 254 is So Ordered. Ordered by Judge William D. Wall on 10/20/2010. (Disbrow, Sandra) (Entered: 10/20/2010)

11/08/2010

Minute Entry for proceedings held before Magistrate Judge William D. Wall:Telephone Status Conference held on 11/8/2010. (Disbrow, Sandra) (Entered: 11/08/2010)

11/08/2010 255 ORDER: All discovery shall be completed by 12/31/10. Any party intending to file a Rule 56 Motion shall serve a Rule 56.1 Statement no

later than 1/31/11. The pretrial conference is adjourned without date pending Judge Spatt's resolution of the motion. Ordered by Judge William D. Wall on 11/8/2010. c/e (Disbrow, Sandra) (Entered: 11/08/2010)

12/23/2010

256 Letter MOTION for Extension of Time to File by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Attachments: # 1 Stipulation and Order) (Brown, Stanley) (Entered: 12/23/2010)

12/29/2010

ELECTRONIC ORDER granting 256 Motion. The stipulation is So Ordered. Ordered by Judge William D. Wall on 12/29/2010. (Disbrow, Sandra) (Entered: 12/29/2010)

03/03/2011

257 Joint MOTION for Extension of Time to File (serve) Local Rule 56.1 Statements by County of Nassau. (Attachments: # 1 Exhibit) (Reissman, Ralph) (Entered: 03/03/2011)

03/04/2011

ELECTRONIC ORDER granting 257 Motion for Extension of Time to File. The stipulation attached to the motion is So Ordered. Ordered by Judge William D. Wall on 3/4/2011. (Disbrow, Sandra) (Entered: 03/04/2011)

04/29/2011

258 Letter MOTION to Strike and declare null and void, plaintiffs' Statement of Additional Material Facts, as in violation of Local Rule 56.1 and the Court's Individual Motion Practices, by County of Nassau. (Reissman, Ralph) (Entered: 04/29/2011)

05/12/2011

260 ORDER granting 258 Motion to Strike. The defendants' unopposed motion to strike is granted. So Ordered by Senior Judge Arthur D. Spatt on 5/12/2011. (Padilla, Kristin) (Entered: 05/16/2011)

05/13/2011

259 Letter MOTION to Withdraw 258 Letter MOTION to Strike and declare null and void, plaintiffs' Statement of Additional Material Facts, as in violation of Local Rule 56.1 and the Court's Individual Motion Practices, since Plaintiffs have served an acceptable Amended Statement of Additional Material Facts, by County of Nassau. (Reissman, Ralph) (Entered: 05/13/2011)

05/13/2011

Motions Terminated, Docketed Incorrectly: Terminating 259 Letter MOTION to Withdraw 258 Letter MOTION to Strike and declare null and void, plaintiffs' Statement of Additional Material Facts, as in violation of Local Rule 56.1 and the Court's Individual Motion Practices, filed by County of Nassau. Pursuant to chambers this should not have been docketed as a motion. It is withdrawing (resolving) docket 258 . (Coleman, Laurie) (Entered: 03/13/2012)

05/16/2011

261 MOTION to Vacate Order Granting Defendant Nassau County's Motion to Strike Plaintiffs' Statement of Additional Material Facts Pursuant to Local Rule 56.1 by Vic Devita. (Brown, Stanley) (Entered: 05/16/2011)

05/18/2011

264 ORDER Re: 261 Motion requesting the Court withdraw the May 12 Order, and take notice of the County's withdrawal of its April 29, 2011 motion to strike. The Court's May 12, 2011 Order striking the plaintiff's Rule 56.1 Statement is vacated. Signed by Senior Judge Arthur D. Spatt on 5/18/11. Movant's counsel is directed to serve a copy of this order on all parties upon receipt via facsimile. (Coleman, Laurie) (Main Document 264 replaced on 5/20/2011) (Coleman, Laurie). (Entered: 05/20/2011)

05/20/2011

262 NOTICE of Appearance by Chava Brandriss on behalf of Vic Devita, McCray, Francine (aty to be noticed) (Brandriss, Chava) (Entered: 05/20/2011)

05/20/2011 263 AFFIDAVIT of Service for Order of the Honorable Arthur D. Spatt on May 18, 2011, filed by Vic Devita, McCray, Francine. (Brandriss, Chava) (Entered: 05/20/2011)

05/23/2011 265 Letter requesting pre-motion conference by Garden City Board of Trustees, Incorporated Village of Garden City (McLaughlin, Jennifer) (Entered: 05/23/2011)

05/24/2011

266 Letter MOTION for pre motion conference for permission to file motion for summary judgment, by County of Nassau. (Attachments: # 1 Rule 56.1 Statement Part 1 of 3 Parts, # 2 Rule 56.1 Statement Part 2 of 3 Parts, # 3 Rule 56.1 Statement Part 3 of 3 Parts, # 4 Rule 56.1 Statement Plaintiffs' Response Part 1 of 3 Parts, # 5 Rule 56.1 Statement Plaintiffs' Response Part 2 of 3 Parts, # 6Rule 56.1 Statement Plaintiffs' Response Part 3 of 3 Parts, # 7 Rule 56.1 Statement Plaintiffs' Amended Statement of Additional Material Facts) (Reissman, Ralph) (Entered: 05/24/2011)

05/26/2011

267 ORDER re 265 Letter filed by Garden City Board of Trustees, Incorporated Village of Garden City, Application granted. A premotion conference is set for June 29, 2011 in courtroom 1020. Counsel shall have authority to discuss settlement at this conference. Movant's counsel is directed to serve a copy of this order on all parties upon receipt via facsmile.. Ordered by Senior Judge Arthur D. Spatt on 5/26/2011. (Padilla, Kristin) (Entered: 05/31/2011)

05/31/2011

268 Letter in Response to defendants' letter, dated May 23, 2011(Garden City) and May 24, 2011 (Nassau County). by Vic Devita, McCray, Francine (Brown, Stanley) (Entered: 05/31/2011)

06/21/2011

269 MOTION for Leave to Appear Pro Hac Vice (Linda H. Mullenbach) Filing fee $ 25, receipt number 0207-4862589. by Vic Devita, MHANY Management, Inc., McCray, Francine. (Attachments: # 1 Proposed Order) (Brown, Stanley) (Entered: 06/21/2011)

06/21/2011

270 AFFIDAVIT/DECLARATION in Support re 269 MOTION for Leave to Appear Pro Hac Vice (Linda H. Mullenbach) Filing fee $ 25, receipt number 0207-4862589. filed by Vic Devita, MHANY Management, Inc., McCray, Francine. (Brown, Stanley) (Entered: 06/21/2011)

06/21/2011

271 AFFIDAVIT/DECLARATION in Support re 269 MOTION for Leave to Appear Pro Hac Vice (Linda H. Mullenbach) Filing fee $ 25, receipt number 0207-4862589. filed by Vic Devita, MHANY Management, Inc., McCray, Francine. (Brown, Stanley) (Entered: 06/21/2011)

06/21/2011

ELECTRONIC ORDER granting 269 Motion for Leave to Appear pro hac vice, Linda H. Mullenbach for plaintiffs. Ms. Mullenbach is directed to register for ECF and to electronically file a notice of appearance. Ordered by Judge William D. Wall on 6/21/2011. (Disbrow, Sandra) (Entered: 06/21/2011)

06/27/2011

272 NOTICE of Appearance by Linda H. Mullenbach on behalf of Acorn, Daphne Andrews, Vic Devita, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc. (aty to be noticed) (Mullenbach, Linda) (Entered: 06/27/2011)

07/07/2011

273 Letter MOTION for Discovery (Re-opening of Discovery on an Expedited Basis) by Vic Devita, MHANY Management, Inc., McCray, Francine. (Brown, Stanley) (Entered: 07/07/2011)

07/12/2011 274 RESPONSE in Opposition re 273 Letter MOTION for Discovery (Reopening of Discovery on an Expedited Basis) filed by County of Nassau. (Reissman, Ralph) (Entered: 07/12/2011)

07/15/2011

275 REPLY in Support re 273 Letter MOTION for Discovery (Re-opening of Discovery on an Expedited Basis) filed by Acorn, Daphne Andrews, Vic Devita, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc.. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 07/15/2011)

07/21/2011

286 ORDER Re: 273 Letter requesting to reopen discovery. The plaintiffs request is referred to United States Magistrate Judge William D. Wall. The parties are directed to contact Judge Wall's chambers to determine whether he wishes to conduct a conference or hearing concerning this

motion. Signed by Senior Judge Arthur D. Spatt on 7/21/11. (Coleman, Laurie) (Entered: 08/02/2011)

07/26/2011

276 ORDER denying 273 Motion for Discovery to the extent indicated in the attached order. Ordered by Judge William D. Wall on 7/26/2011. (Disbrow, Sandra) (Entered: 07/26/2011)

07/27/2011

277 Letter MOTION for Leave to File Motion for Summary Judgment in "hard copy" with Clerk of the Court (in addition to filing primary documents by ECF) by County of Nassau. (Reissman, Ralph) (Entered: 07/27/2011)

07/28/2011 288 ORDER granting 277 Motion for Leave to File. Request Granted. So Ordered. Ordered by Senior Judge Arthur D. Spatt on 7/28/2011. (Padilla, Kristin) (Entered: 08/09/2011)

07/29/2011

278 MOTION for Summary Judgment by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit, # 2 Affidavit, # 3 Affidavit, # 4 Exhibit, # 5 Memorandum in Support) (Ryan, James) (Entered: 07/29/2011)

07/29/2011

279 NOTICE by Garden City Board of Trustees, Incorporated Village of Garden City Statement of Material Facts Pursuant to Local Rule 56.1 (Ryan, James) (Entered: 07/29/2011)

07/29/2011 280 Letter by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 07/29/2011)

07/29/2011

281 AFFIDAVIT/AFFIRMATION of Personal Service of Notice of Motion and Supporting Documents by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 07/29/2011)

07/29/2011

282 AFFIDAVIT/AFFIRMATION of Service via Federal Express Overnight of Notice of Motion and Supporting Documents by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 07/29/2011)

07/29/2011

283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served) by County of Nassau. Responses due by 8/31/2011 (Attachments: # 1 Affidavit Rob Walker Affidavit (Hard copy of exhibits filed with Clerk and served), # 2 Affidavit Connnie Lassandro Affidavit (Hard copy of exhibits filed with Clerk and served, # 3 Affidavit Kevin Crean Affidavit (Hard copy of exhibits filed with Clerk and served), # 4 Rule 56.1 Statement Part 1 of 3 Parts (pages 135), # 5 Rule 56.1 Statement Part 1 of 3 Parts (pages 36-68), # 6 Rule

56.1 Statement Part 2 of 3 Parts, # 7 Rule 56.1 Statement Part 3 of 3 Parts, # 8 Memorandum in Support) (Reissman, Ralph) (Entered: 07/29/2011)

07/29/2011

284 DECLARATION re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served) upon Cullen & Dykman by County of Nassau (Reissman, Ralph) (Entered: 07/29/2011)

07/29/2011

285 DECLARATION re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served) upon Hogan Lovells and Joseph Rich by County of Nassau (Reissman, Ralph) (Entered: 07/29/2011)

08/08/2011 287 Letter requesting Oral Argument of summary judgment motion [DE 283] by County of Nassau (Reissman, Ralph) (Entered: 08/08/2011)

08/09/2011

289 ORDER re 287 Letter filed by County of Nassau Request Denied. The Court will inform the parties if it wishes to hear oral argument on the defendant's motion. So Ordered. Ordered by Senior Judge Arthur D. Spatt on 8/09/2011. (Padilla, Kristin) (Entered: 08/10/2011)

08/26/2011

290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint by New York Communities For Change, Inc.. (Attachments: # 1 Proposed Order) (Mullenbach, Linda) (Entered: 08/26/2011)

08/26/2011

291 MEMORANDUM in Support re 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint filed by New York Communities For Change, Inc.. (Mullenbach, Linda) (Entered: 08/26/2011)

08/26/2011

292 AFFIDAVIT/DECLARATION in Support re 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint filed by New York Communities For Change, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Mullenbach, Linda) (Entered: 08/26/2011)

08/26/2011

293 CERTIFICATE OF SERVICE by New York Communities For Change, Inc. re 292 Affidavit in Support of Motion, 291 Memorandum in Support, 290 MOTION to Amend/Correct/Supplement 250Intervenor Complaint (Mullenbach, Linda) (Entered: 08/26/2011)

08/31/2011

294 RULE 56.1 STATEMENT Plaintiffs' Response To Defendant Garden City's Statement of Material Facts Pursuant to Local Rule 56.1 filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 08/31/2011)

08/31/2011

295 RULE 56.1 STATEMENT Plaintiffs' Response To Part 1 of 3 Parts Of Defendant County of Nassau's Statement Of Material Facts Pursuant To Local Rule 56.1 filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Attachments: # 1 Plaintiff's Response To Part 2 of 3 Parts of Defendant County of Nassau' s Statement Of Material Facts Pursuant To Local Rule 56.1, # 2 Plaintiff's Response to Part 3 of 3 Parts of Defendant County Of Nassau's Statement Of Material Facts Pursuant To Local Rule 56.1) (Brown, Stanley) (Entered: 08/31/2011)

08/31/2011

296 RULE 56.1 STATEMENT Plaintiffs' Amended Statement Of Material Facts filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 08/31/2011)

08/31/2011

297 MEMORANDUM in Opposition re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served), 278MOTION for Summary Judgment Plaintiffs' Consolidated Opposition To Defendants Incorporated Village Of Garden City's, Garden City Board Of Trustees' And Nassau County's Motions For Summary Judgment filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 08/31/2011)

08/31/2011

298 AFFIDAVIT/DECLARATION in Opposition re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits filed with Clerk and served), 278 MOTION for Summary Judgment filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Attachments: # 1 Notice Regarding Filing Of Exhibits In Paper Form) (Brown, Stanley) (Entered: 08/31/2011)

08/31/2011

299 CERTIFICATE OF SERVICE by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. re 298 Affidavit in Opposition to Motion, 296 Rule 56.1 Statement, 295 Rule 56.1 Statement,, 297 Memorandum in Opposition,, 294 Rule 56.1 Statement, (Brown, Stanley) (Entered: 08/31/2011)

08/31/2011 300 NOTICE by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. Certificate Of Service Dated April 8, 2011 (Brown, Stanley) (Entered: 08/31/2011)

08/31/2011

301 NOTICE by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. Certificate Of Service Dated May 9, 2011 (Brown, Stanley) (Entered: 08/31/2011)

09/02/2011 302 MEMORANDUM in Opposition re 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint filed by County of Nassau. (Reissman, Ralph) (Entered: 09/02/2011)

09/02/2011

308 EXHIBITS 1 -47 (Vol. 1 of 3) of Plaintiffs Re: Declaration of Stanley J. Brown in Opposition to Defendants Incorporated Village of Garden City's, Garden City Board of Trustees' and Nassau County's Motion for Summary Judgment.(Original Document/Not Scanned). (Coleman, Laurie) (Entered: 09/15/2011)

09/02/2011

309 EXHIBITS 48-90 (Vol. 2 of 3) of Plaintiffs Re: Declaration of Stanley J. Brown in Opposition to Defendants Incorporated Village of Garden City's, Garden City Board of Trustees' and Nassau County's Motion for Summary Judgment. (Original Document/Not Scanned). (Coleman, Laurie) (Entered: 09/15/2011)

09/02/2011

310 EXHIBITS 91-126 (Vol. 3 of 3) of Plaintiffs Re: Declaration of Stanley J. Brown in Opposition to Defendants Incorporated Village of Garden City's, Garden City Board of Trustees' and Nassau County's Motion for Summary Judgment. (Original Document/Not Scanned). (Coleman, Laurie) (Entered: 09/15/2011)

09/08/2011 303 Letter MOTION for Leave to File Excess Pages by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 09/08/2011)

09/09/2011 304 MEMORANDUM in Opposition filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit of Service) (Ronneburger, Ariel) (Entered: 09/09/2011)

09/09/2011 307 ORDER denying 303 Motion for Leave to File Excess Pages. Request Denied. So Ordered.. Ordered by Senior Judge Arthur D. Spatt on 9/9/2011. (Padilla, Kristin) (Entered: 09/13/2011)

09/12/2011

305 MEMORANDUM in Opposition re 303 Letter MOTION for Leave to File Excess Pages filed by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 09/12/2011)

09/12/2011

306 REPLY in Support re 290 MOTION to Amend/Correct/Supplement 250 Intervenor Complaint filed by New York Communities For Change, Inc.. (Rich, Joseph) (Entered: 09/12/2011)

09/16/2011 311 REPLY in Support re 283 MOTION for Summary Judgment (Notice of Motion with Declaration of Ralph J. Reissman, hard copy of exhibits

filed with Clerk and served) filed by County of Nassau. (Attachments: # 1 Affidavit in Support) (Reissman, Ralph) (Entered: 09/16/2011)

09/16/2011

313 REPLY in Support re 278 MOTION for Summary Judgment filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 09/16/2011)

09/16/2011

INCORRECT CASE/DOCUMENT ENTRY INFORMATION - The Memorandum previously seen as document #312 has been deleted from the above-referenced case at the request of counsel and with permission of Chambers due to a clerical error. Counsel has already re-filed a corrected copy of the Memorandum seen as document #313. (Coleman, Laurie) (Entered: 09/19/2011)

09/20/2011

314 LETTER (undated) from Marjorie Mesidor to the Court Re: Request that this Court's records refect the change of address noted herein and that I be marked as "terminated" as an attorney in this matter. Frederick Brewington will continue to be counsel of record on these matters. (Coleman, Laurie) (Entered: 09/30/2011)

09/20/2011

ORDER Re: 314 Letter to "terminate" Majorie Mesidor in this matter. Signed by Senior Judge Arthur D. Spatt on 9/20/11.EOD #314 (Coleman, Laurie) (Entered: 09/30/2011)

02/15/2012

315 MEMORANDUM OF DECISION AND ORDER - It is hereby ORDERED that the Defendant Countys 283 motion for summary judgment dismissing all claims against it is GRANTED; and it is further ORDERED that the Garden City Defendants 278 motion for summary judgment dismissing all claims against it is DENIED in all respects; and it is further ORDERED that the Inventor-Plaintiff NYCCs 290 motion to amend the intervenor complaint to include a cause of action for violations of the Civil Rights Act of 1871, 42 U.S.C. §1983 and the Equal Protection Clause of the Fourteenth Amendment is GRANTED. NYCC is directed to file an amended complaint only as against the Garden City Defendants in conformance with the rulings set forth in this Memorandum of Decision and Order within 20 days of the date of this Order; and it is further ORDERED that the Plaintiffs and the Garden City Defendants are directed to appear on Thursday, February 23, 2012 at 9:00am for a conference to set a trial date. Signed by Senior Judge Arthur D. Spatt on 2/15/2012. (Coleman, Laurie) (Entered: 02/15/2012)

02/17/2012 316 Letter MOTION to Adjourn Conference on consent by Garden City Board of Trustees, Incorporated Village of Garden City. (Ryan, James) (Entered: 02/17/2012)

02/21/2012

317 ORDER Re: 316 Motion requesting to adjourn the 2/23/12 conference. Request granted. Conference is adjourned to 3/8/12 at 9:00 a.m. Signed by Senior Judge Arthur D. Spatt on 2/21/12. C/F. (Coleman, Laurie) (Entered: 02/28/2012)

02/29/2012

318 AMENDED COMPLAINT in Intervention for Declaratory Judgment and Injunctive Relief against Garden City Board of Trustees, Incorporated Village of Garden City, filed by New York Communities For Change, Inc.. (Rich, Joseph) (Entered: 02/29/2012)

04/05/2012 319 NOTICE of Appearance by Luz Maria Henriquez on behalf of Vic Devita, McCray, Francine (aty to be noticed) (Henriquez, Luz) (Entered: 04/05/2012)

07/06/2012

320 Letter from Stanley J. Brown to Honorable Arthur D. Spatt by Garden City Board of Trustees, Incorporated Village of Garden City, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Brown, Stanley) (Entered: 07/06/2012)

07/12/2012

321 ORDER re 320 Letter filed by MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc., Garden City Board of Trustees, Incorporated Village of Garden City> So Ordered that the Parties are directed to contact chambers in writintg when the mediation is completed to report on the status. At that time, the Court will decide whether to set a telephone conference. So Ordered.. Ordered by Judge Arthur D. Spatt on 7/12/2012. (Padilla, Kristin) (Entered: 07/17/2012)

08/16/2012

322 Letter from Stanley J. Brown to Honorable Arthur D. Spatt regarding the status of mediation by Garden City Board of Trustees, Incorporated Village of Garden City, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Brown, Stanley) (Entered: 08/16/2012)

11/09/2012

323 Letter From Stanley J. Brown to Hon. Arthur D. Spatt requesting a pretrial status conference, to set a pre-trial order with deadlines for parties to submit the joint pre-trial order as well as motions in limine. by Vic Devita, MHANY Management, Inc., McCray, Francine (Brown, Stanley) (Entered: 11/09/2012)

11/12/2012

324 Letter Requesting Pre-Trial Conference by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Ryan, James) (Entered: 11/12/2012)

11/12/2012 325 Letter regarding confidentiality in plaintiffs' 11.9.12 letter by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 11/12/2012)

11/12/2012 326 Letter Responding to Defendants' Letter Regarding Confidentiality by MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Brown, Stanley) (Entered: 11/12/2012)

11/16/2012 327 NOTICE of Appearance by Douglas J. Bohn on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Bohn, Douglas) (Entered: 11/16/2012)

11/27/2012

328 ORDER 323 Letter. The plaintiff's request for a pre-trial status conference is granted. The conference will be held on Thursday, 12/6/12 at 9:30 a.m. The Village defendant's request to remove this letter from the public record (DE 325) is denied. Signed by Judge Arthur D. Spatt on 11/27/2012. (Coleman, Laurie) (Entered: 11/27/2012)

11/27/2012

Set/Reset Hearings: Pretrial Conference set for 12/6/2012 09:30 AM in Courtroom 1020 before Judge Arthur D. Spatt. (Coleman, Laurie) (Entered: 11/27/2012)

11/28/2012

ORDER In preparation for the pretrial conference set by Judge Spatt for December 6, 2012, the parties are directed to file a joint proposed pretrial order in accordance with Judge Spatt's individual rules no later than December 4, 2012. Ordered by Magistrate Judge William D. Wall on 11/28/2012. (Kennedy, Michael) (Entered: 11/28/2012)

12/03/2012 329 NOTICE of Appearance by Cynthia Ann Augello on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Augello, Cynthia) (Entered: 12/03/2012)

12/03/2012

330 NOTICE of Appearance by Ariel E. Ronneburger on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Ronneburger, Ariel) (Entered: 12/03/2012)

12/04/2012

331 Proposed Pretrial Order (Joint) by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Brown, Stanley) (Entered: 12/04/2012)

12/05/2012

ORDER The parties have submitted their proposed Joint Pretrial Order. After examination of the order, this Court finds that it substantially complies with the requirements of the District Judge. Accordingly, the Joint Pretrial Order is accepted for filing and the action is deemed ready for trial. The action will be tried in accordance with the discretion and the trial calendar of the District Judge. Ordered by Magistrate Judge William D. Wall on 12/5/2012. (Kennedy, Michael) (Entered: 12/05/2012)

12/06/2012

333 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Criminal Cause for Conference held on 12/6/12 from 9:39 a.m. - 10:41 a.m. Case called. Counsel for all sides present. Other: Every new witness, or any side, will be deposed. Party requesting the deposition is to pay for it. Other rulings on the record. (Coleman, Laurie) (Entered: 01/04/2013)

12/17/2012 332 NOTICE of Appearance by Andrew Jaan Sein on behalf of McCray, Francine (aty to be noticed) (Sein, Andrew) (Entered: 12/17/2012)

01/30/2013 334 Letter MOTION to Quash subpoenas by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit) (Ronneburger, Ariel) (Entered: 01/30/2013)

02/01/2013

335 RESPONSE in Opposition re 334 Letter MOTION to Quash subpoenas filed by All Plaintiffs. (Brown, Stanley) (Entered: 02/01/2013)

02/05/2013

336 ORDER Re 334 Motion to Quash. The Defendant's motion to quash the four subpoenas for the individual depositions of Lauren Davies, Sheila DiMasso, Kenneth Drummond, and Arlnold Greene, is granted. The "Order" relief upon by the Plaintiffs is merely a minute entry. At the 12/6/12 conference, this Court permitted the Plaintiffs to depose only the witnesses that the defendant had included in the pre-trial order that the Plaintiffs had not yet had the opportunity to depose. Signed by Judge Arthur D. Spatt on 2/5/13. (Coleman, Laurie) (Entered: 02/06/2013)

02/14/2013 337 NOTICE of Appearance by Sarah Joy Gregory on behalf of McCray, Francine (aty to be noticed) (Gregory, Sarah) (Entered: 02/14/2013)

03/06/2013 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, by Vic Devita, McCray, Francine. (Brandriss, Chava) (Entered: 03/06/2013)

03/06/2013

339 MEMORANDUM in Support re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, filed by Vic Devita, McCray, Francine. (Brandriss, Chava) (Entered: 03/06/2013)

03/06/2013

340 AFFIDAVIT/DECLARATION in Support re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, Declaration of Chava Brandriss in Support of Motion to Amend the Joint Pre-Trial Order filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10) (Brandriss, Chava) (Entered: 03/06/2013)

03/19/2013

341 AFFIDAVIT/DECLARATION in Opposition re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Ronneburger, Ariel) (Entered: 03/19/2013)

03/19/2013 342 MEMORANDUM in Opposition filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 03/19/2013)

03/26/2013

343 REPLY to Response to Motion re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, filed by Vic Devita, McCray, Francine. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 03/26/2013)

03/26/2013

344 AFFIDAVIT/DECLARATION in Support re 338 MOTION to Amend/Correct/Supplement 331 Proposed Pretrial Order, Pretrial Order, Declaration of Andrew Sein in Further Support of Plaintiff's Motion for Leave to Amend the Joint Pre-Trial Order filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Certificate of Service) (Brown, Stanley) (Entered: 03/26/2013)

04/29/2013

345 MEMORANDUM OF DECISION AND ORDER - It is hereby: ORDERED, that the Plaintiffs 338 motion to amend the joint pretrial order is granted as set forth above; and it is further ORDERED, that the Plaintiffs are directed to file an amended joint pretrial order in accordance with this decision on or before May 6, 2013; and it is further ORDERED, that the Plaintiffs request for a telephone conference is denied as unnecessary; and it is further ORDERED, that every party may depose the four additional individuals that will be included in the amended joint pretrial order, with each party paying the costs of their own depositions. Signed by Judge Arthur D. Spatt on 4/29/13. (Coleman, Laurie) (Entered: 04/30/2013)

05/06/2013

346 Proposed Pretrial Order (AMENDED JOINT) by Vic Devita, MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Brown, Stanley) (Entered: 05/06/2013)

05/17/2013

347 Notice of MOTION in Limine to Exclude Plaintiff's Experts by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit in Support, # 2 Exhibit A, # 3Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Memorandum in Support) (Bohn, Douglas) (Entered: 05/17/2013)

05/17/2013

348 MOTION in Limine by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Affidavit in Support, # 2 Exhibit 1, # 3 Memorandum in Support) (Ronneburger, Ariel) (Entered: 05/17/2013)

05/17/2013 349 MOTION in Limine to Preclude Trial Evidence by Vic Devita, McCray, Francine. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 05/17/2013)

05/17/2013

350 MEMORANDUM in Support re 349 MOTION in Limine to Preclude Trial Evidence filed by Vic Devita, McCray, Francine. (Brown, Stanley) (Entered: 05/17/2013)

05/17/2013

351 AFFIDAVIT/DECLARATION in Support re 349 MOTION in Limine to Preclude Trial Evidence Declaration of Sarah Gregory filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7) (Brown, Stanley) (Entered: 05/17/2013)

05/29/2013

352 Consent MOTION for Extension of Time to File Response/Reply as to 349 MOTION in Limine to Preclude Trial Evidence, 351 Affidavit in Support of Motion, 350 Memorandum in Support, 347Notice of MOTION in Limine to Exclude Plaintiff's Experts, 348 MOTION in Limine by McCray, Francine. (Sein, Andrew) (Entered: 05/29/2013)

05/30/2013

353 ORDER Re: 352 Motion/Stipulation to extend any opposition, by any party, to the motions in limine filed with the Court on 5/17/13. Opposition papers shall be filed on or before 6/3/13. Reply papers shall be filed on or before 6/10/13. Signed by Judge Arthur D. Spatt on 5/30/13. (Coleman, Laurie) (Entered: 05/30/2013)

05/31/2013

354 STIPULATION Regarding Withdrawal of Plaintiff's Expert, Dr. Peter Marcuse and Defendants' Motion to Exclude Dr. Peter Marcuse by MHANY Management, Inc., McCray, Francine, New York Communities For Change, Inc. (Brandriss, Chava) (Entered: 05/31/2013)

06/01/2013

362 ORDER Re: 354 STIPULATION Regarding Withdrawal of Plaintiff's Expert, Dr. Peter Marcuse and Defendants' Motion to Exclude Dr. Peter Marcus. Signed by Judge Arthur D. Spatt on 6/1/13. (Coleman, Laurie) (Entered: 06/06/2013)

06/01/2013

363 ORDER Re: 354 Stipulation Regarding Withdrawal of Plaintiff's Expert, Dr. Peter Marcuse and Defendants' Motion to Exclude Dr. Peter Marcuse. Signed by Judge Arthur D. Spatt on 6/1/13. (Coleman, Laurie) (Entered: 06/06/2013)

06/03/2013

355 MEMORANDUM in Opposition to Plaintiffs' Motion In Limine to Preclude Evidence on Subjects as to Which Defendants Invoked Privilege During Discovery filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 06/03/2013)

06/03/2013 356 MEMORANDUM in Opposition re 347 Notice of MOTION in Limine to Exclude Plaintiff's Experts filed by Vic Devita, McCray, Francine. (Brown, Stanley) (Entered: 06/03/2013)

06/03/2013

357 AFFIDAVIT/DECLARATION in Opposition re 347 Notice of MOTION in Limine to Exclude Plaintiff's Experts filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Gregory, Sarah) (Entered: 06/03/2013)

06/03/2013 358 MEMORANDUM in Opposition re 348 MOTION in Limine filed by Vic Devita, McCray, Francine. (Brown, Stanley) (Entered: 06/03/2013)

06/03/2013

359 AFFIDAVIT/DECLARATION in Opposition re 348 MOTION in Limine filed by Vic Devita, McCray, Francine. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9) (Sein, Andrew) (Entered: 06/03/2013)

06/05/2013 360 NOTICE of Appearance by Benjamin Andrew Fleming on behalf of McCray, Francine (aty to be noticed) (Fleming, Benjamin) (Entered: 06/05/2013)

06/05/2013

361 Letter Application to Court Regarding Use of Electronic Devices in the Courtroom by Vic Devita, MHANY Management, Inc., McCray, Francine (Sein, Andrew) (Entered: 06/05/2013)

06/06/2013

364 ORDER Re: 361 Letter Application to the Court Regarding Use of Electronic Devices in the Courtroom. Request granted. Signed by Judge Arthur D. Spatt on 6/6/13. C/F. (Coleman, Laurie) (Entered: 06/10/2013)

06/10/2013

365 AFFIDAVIT/DECLARATION in Support re 348 MOTION in Limine Reply in Further Support filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1Exhibit A) (Ronneburger, Ariel) (Entered: 06/10/2013)

06/10/2013

366 MEMORANDUM in Support of Motion In Limine to Exclude Evidence filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 06/10/2013)

06/10/2013 367 MEMORANDUM in Support of Motion In Limine to Exclude Expert Nancy McArdle filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Bohn, Douglas) (Entered: 06/10/2013)

06/10/2013 368 REPLY in Support re 349 MOTION in Limine to Preclude Trial Evidence filed by All Plaintiffs. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 06/10/2013)

06/12/2013

369 NOTICE of Appearance by Stanley Joseph Brown on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 06/12/2013)

06/12/2013 370 NOTICE of Appearance by Peter Joseph Dennin on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Dennin, Peter) (Entered: 06/12/2013)

06/12/2013

371 Letter requesting leave to use electronic devices in the courtroom by Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 06/12/2013)

06/12/2013 372 NOTICE of Appearance by Chava Brandriss on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Brandriss, Chava) (Entered: 06/12/2013)

06/12/2013 373 NOTICE of Appearance by Benjamin Andrew Fleming on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Fleming, Benjamin) (Entered: 06/12/2013)

06/12/2013 374 NOTICE of Appearance by Andrew Jaan Sein on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Sein, Andrew) (Entered: 06/12/2013)

06/12/2013 375 NOTICE of Appearance by Sarah Joy Gregory on behalf of MHANY Management, Inc. (aty to be noticed) (Attachments: # 1 Certificate of Service) (Gregory, Sarah) (Entered: 06/12/2013)

06/13/2013

376 Letter MOTION to Amend/Correct/Supplement the Joint Pretrial Order by MHANY Management, Inc., McCray, Francine. (Attachments: # 1 Proposed Second Amended Joint Pretrial Order, # 2Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G) (Brown, Stanley) (Entered: 06/13/2013)

06/13/2013

377 ORDER Re: 371 Letter by Incorporated Village of Garden City requesting leave to use electronic devices in the courtroom. Request granted. Signed by Judge Arthur D. Spatt on 6/13/13. C/F. (Coleman, Laurie) (Entered: 06/13/2013)

06/14/2013

378 STIPULATION of Dismissal with Prejudice of All Claims Brought by Plaintiff Francine McCray as to All Defendants by Vic Devita, MHANY Management, Inc., McCray, Francine (Sein, Andrew) (Entered: 06/14/2013)

06/14/2013 379 PRETRIAL MEMORANDUM by MHANY Management, Inc. (Attachments: # 1 Certificate of Service) (Brown, Stanley) (Entered: 06/14/2013)

06/15/2013

380 TRIAL BRIEF Pre-Trial Brief by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 06/15/2013)

06/15/2013 384 ORDER Re: 376 Motion for leave to file a Second Amended Joint Pretrial Order in this case. Request granted. Signed by Judge Arthur D. Spatt on 6/15/13. C/F. (Coleman, Laurie) (Entered: 06/18/2013)

06/17/2013

387 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) held on 6/17/13 at 9:30 a.m. Court Reporter: Owen Wicker, Harry Rapaport. Case called. Counsel for all sides present. Non-Jury Trial ordered and begun. Plaintiffs open. Defendants open. Trial continued to 6/18/13 at 9:30 a.m. Other: Witness Nancy Anne McArdle sworn. (Coleman, Laurie) (Entered: 06/20/2013)

06/18/2013 381 Letter Brief to Judge Spatt Regarding Expert Report by MHANY Management, Inc. (Brown, Stanley) (Entered: 06/18/2013)

06/18/2013

382 MEMORANDUM in Opposition Plaintiffs' Expert Report is Inadmissible Hearsay filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 06/18/2013)

06/18/2013 383 NOTICE of Appearance by Sardar Mohammad Asadullah on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Asadullah, Sardar) (Entered: 06/18/2013)

06/18/2013

388 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Non Jury Trial held on 6/18/2013 from 9:30-11:15, 11:33-12:30, 1:33-3:00, 3:20-5:00 p.m. Court Reporter: Owen Wicker, Harry Rapaport. Case called. Counsel for all sides present. Non-Jury Trial held-witnesses sworn. Trial will not go forward 6/24/13 in the a.m. Trial will commence at 1:00 p.m. Witness Nancy McCardle sworn, testimony heard. Trial to continue on 6/19/13 at 9:30 a.m. (Coleman, Laurie) (Entered: 06/20/2013)

06/19/2013

389 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Non-Jury Trial held on 6/19/13 from 9:30-12:30 and 1:30-5:00. Court Reporter: Harry Rapaport. Case called. Counsel for all sides present. Non-Jury Trial held. Other: Witness Frank Fish & Robert L. Schoelle sworn. Witness Robert L. Schoelle testifies. Evidence entered. Non-Jury trial continued to 6/20/13 at 9:30 a.m. (Coleman, Laurie) (Entered: 06/21/2013)

06/20/2013 385 Letter Application Regarding Plaintiffs' Exhibit 45 by MHANY Management, Inc. (Brandriss, Chava) (Entered: 06/20/2013)

06/20/2013 386 Letter in Opposition to Plaintiffs' Letter Application by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 06/20/2013)

06/20/2013

390 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) held on 6/20/13 from 9:30 a.m. - 12:30 p.m., 1:30 p.m. - 3:00 p.m., 3:20 p.m. - 5:00 p.m. Court Reporter: Harry Rapaport, Owen Wicker. Case called. Counsel for all sides present. Trial resumes. Trial continued to 6/24/13 at 1:30 p.m. Other: Witness Robert Schoelle, sworn and testifies. Evidence entered on the record. Witness Gerard P. Lundquist, sworn and testifies. Evidence entered on the record. (Coleman, Laurie) (Entered: 06/21/2013)

06/24/2013

391 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) held on 6/24/13 at 1:30 p.m. Court Reporter: Mary Ann Steiger. Counsel for all sides present. Trial resumes. Trial continued to 6/25/13 at 9:30 a.m. Other: Witness Gerard P. Lundquist sworn and continues testimony. Witness Peter A. Bee sworn and testifies. Exhibits entered into evidence. Trial continued to 6/25/13 at 9:30 a.m. (Coleman, Laurie) (Entered: 06/27/2013)

06/25/2013

393 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) on 6/25/13 at 9:30 a.m. Court Reporter: Mary Ann Steiger. Case called. Counsel for all sides present. Non-Jury Trial ordered and begun. Trial resumes. Other: Witness Gerard P. Lundquist sworn and continues testimony. Witness Peter A. Bee sworn and testifies. Exhibits entered into evidence. Trial continued to 6/26/13 at 9:30 a.m. Exhibits entered into evidence. (Coleman, Laurie) (Entered: 07/01/2013)

06/26/2013

394 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) held on 6/26/13 at 9:30 a.m. Court Reporter: Mary Ann Steiger. Case called. Counsel for all sides present. Non-Jury Trial ordered and begun. Trial resumes. Other: Witness Gerard P. Lunquist sworn and continues testimony. Witness Peter A. Bee sworn and testifies. Exhibits entered into evidence. Trial continued

to 6/27/13 at 9:30 a.m. Exhibits entered into evidence. (Coleman, Laurie) (Entered: 07/01/2013)

06/27/2013

395 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) held on 6/27/2013 at 9:30 a.m. Court Reporter: Mary Ann Steiger. Case called. Counsel for all sides present. Non-jury trial ordered and begun. Trial resumes. Trial continued to 7/1/13 at 9:30 a.m. Other: Witnesses sworn/testify. ( Bench Trial set for 7/1/2013 09:30 AM in Courtroom 1020 before Judge Arthur D. Spatt.) (Coleman, Laurie) (Entered: 07/09/2013)

06/29/2013

392 Letter Offer of Proof by MHANY Management, Inc. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (Brandriss, Chava) (Entered: 06/29/2013)

07/01/2013

396 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) held on 7/1/2013 at 9:30 a.m. Court Reporter: Mary Ann Steiger. Case called. Counsel for all sides present. Non-Jury Trial ordered and begun. Trial resumes. Trial continued to 7/2/13 at 9:30 a.m. Other: Witness sworn/testify. Plaintiff rests. Defendant's oral motions on the record. Defendants case: Witness sworn/testify. ( Bench Trial set for 7/2/2013 09:30 AM in Courtroom 1020 before Judge Arthur D. Spatt.) (Coleman, Laurie) (Entered: 07/09/2013)

07/02/2013

398 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) held on 7/2/13 at 9:30 a.m. Court Reporter: Mary Ann Steiger/Paul Lombardi. Case called. Counsel for all sides present. Trial resumes. Trial continued to 7/3/13 at 9:30. Other: Witnesses sworn/testify. (Coleman, Laurie) (Entered: 07/11/2013)

07/03/2013

400 MINUTE ENTRY for for proceedings held before Judge Arthur D. Spatt: Civil Cause on Trial (Non-Jury) held on 7/3/13 at 9:30 a.m. Court Reporter: Mary Ann Steiger/Paul Lombardi. Case called. Counsel for all sides present. Trial resumes. Trial concluded. Other: Witnesses sworn/testify. Both sides rest. Closing arguments heard on the record. Post-trial briefing schedule was set. Decision reserved. (Coleman, Laurie) (Entered: 07/31/2013)

07/10/2013 397 MOTION to Withdraw as Attorney (Notice of Withdrawal of Appearance and Proposed Order) by MHANY Management, Inc.. (Wasick, Joanna) (Entered: 07/10/2013)

07/20/2013 399 ORDER Re: 397 Motion to Withdraw Joanna F. Wasick as Attorney for Plaintiff MHANY Management, Inc.. Attorney Joanna F. Wasick

terminated. So Ordered by Judge Arthur D. Spatt on 7/20/13. (Coleman, Laurie) (Entered: 07/26/2013)

07/31/2013 401 Letter MOTION for Leave to File Excess Pages by MHANY Management, Inc.. (Brown, Stanley) (Entered: 07/31/2013)

08/01/2013 402 ORDER Re: 401 Motion for Leave to File Excess Pages. Request granted. So Ordered by Judge Arthur D. Spatt on 8/1/13. C/F. (Coleman, Laurie) (Entered: 08/02/2013)

08/05/2013 403 TRIAL BRIEF by MHANY Management, Inc. (Brown, Stanley) (Entered: 08/05/2013)

08/05/2013 404 DECLARATION re 403 Trial Brief by MHANY Management, Inc. (Attachments: # 1 Exhibit A) (Brown, Stanley) (Entered: 08/05/2013)

08/20/2013

405 Letter Requesting Leave for a Ten (10) Page Extension to its Post-Trial Brief by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 08/20/2013)

08/21/2013

406 ORDER Re: 405 Letter requesting leave for a ten (10) page extension to its Post-Trial Brief by Garden City Board of Trustees, Incorporated Village of Garden City. Request granted. so Ordered by Judge Arthur D. Spatt on 8/21/13. (Coleman, Laurie) (Entered: 08/23/2013)

09/05/2013 407 NOTICE of Appearance by Thomas B. Wassel on behalf of Garden City Board of Trustees, Incorporated Village of Garden City (aty to be noticed) (Wassel, Thomas) (Entered: 09/05/2013)

09/05/2013 408 TRIAL BRIEF Defendants' Post-Trial Memorandum by Garden City Board of Trustees, Incorporated Village of Garden City (Ryan, James) (Entered: 09/05/2013)

09/12/2013 409 NOTICE of Appearance by Caroline H. Cheng on behalf of MHANY Management, Inc. (aty to be noticed) (Cheng, Caroline) (Entered: 09/12/2013)

09/16/2013

410 TRIAL BRIEF Plaintiffs' Post-Trial Memorandum in Reply by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 09/16/2013)

09/17/2013 411 Notice of MOTION to Withdraw as Attorney by Vic Devita, McCray, Francine. (Attachments: # 1 Declaration) (Henriquez, Luz) (Entered: 09/17/2013)

09/18/2013 412 ORDER granting 411 Motion to withdraw the appearance of Luz Maria Henriques for Plaintiff MHANY Management, Inc. So Ordered by

Judge Arthur D. Spatt on 9/18/13. (Coleman, Laurie) (Entered: 09/19/2013)

12/06/2013

413 MEMORANDUM OF DECISION AND ORDER - For the foregoing reasons, the Court finds that the Plaintiffs have not established liability on the part of the Garden City Defendants under 42 U.S.C. § 1982 and the amended complaint is dismissed as to that cause of action. However, the Court finds that the Plaintiffs have established by, a preponderance of the evidence, the liability on the part of the Garden City Defendants under (1) the FHA, 42 U.S.C. § 3601 et seq., based on a theory of disparate treatment and disparate impact; (2) 42 U.S.C. § 1981; (3) 42 U.S.C. § 1983; and (4) the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. As noted above, the Court finds that the Garden City Defendants acted with discriminatory intent when they eliminated R-M zoning and endorsed R-T zoning after they received public opposition to the prospect of affordable housing in Garden City. The Court notes that R-T zoning banned the development of multi-family housing on all but a small portion of the Social Services site -- the 3.03 acres located on the western side of County Seat Drive and then only by special permit. The Court also notes the negative remarks by Garden City residents at public hearings and the flyer against multi-family housing on the Social Services Site. Set against the underlying sequence of events and the considerable impact that this zoning decision would have had on minorities in that community, the Court concludes that some of the expressions by Garden City residents of disapproval for affordable housing reflected race-based animus or at least could have been construed as such by the Board. Furthermore, the Court finds that the adoption of R-T zoning instead of R-M zoning had a disparate impact on minorities in Garden City and tended to perpetuate segregation in that community. Accordingly, the Court directs the Plaintiffs to submit a proposed remedial plan to be incorporated in the final judgment in this case within thirty days of the date of this order. The Garden City Defendants shall then have thirty days to respond with objections. The Plaintiffs shall then have 15 days to reply to the Garden City Defendants objections. So Ordered by Judge Arthur D. Spatt on 12/6/2013. (Coleman, Laurie) (Entered: 12/06/2013)

01/06/2014 414 NOTICE by MHANY Management, Inc. of Proposed Judgment Order (Brown, Stanley) (Entered: 01/06/2014)

01/06/2014

415 MEMORANDUM in Support re 414 Notice(Other) of Proposed Judgment Order filed by MHANY Management, Inc.. (Brown, Stanley) (Entered: 01/06/2014)

01/06/2014

416 DECLARATION re 414 Notice(Other) of Proposed Judgment Order by MHANY Management, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Brown, Stanley) (Entered: 01/06/2014)

02/05/2014 417 NOTICE of Appearance by Michael A. Carvin on behalf of Incorporated Village of Garden City (aty to be noticed) (Carvin, Michael) (Entered: 02/05/2014)

02/05/2014

418 NOTICE by Garden City Board of Trustees, Incorporated Village of Garden City Alternative Proposed Judgment Order (Ronneburger, Ariel) (Entered: 02/05/2014)

02/05/2014 419 MEMORANDUM in Opposition to Plaintiff's Proposed Order filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 02/05/2014)

02/20/2014 420 NOTICE by MHANY Management, Inc. AMENDED PROPOSED JUDGMENT (Brown, Stanley) (Entered: 02/20/2014)

02/20/2014 421 MEMORANDUM in Support re 420 Notice(Other) AMENDED PROPOSED JUDGMENT filed by MHANY Management, Inc.. (Brown, Stanley) (Entered: 02/20/2014)

02/20/2014 422 DECLARATION re 420 Notice(Other) AMENDED PROPOSED JUDGMENT by MHANY Management, Inc. (Attachments: # 1 Exhibit A) (Brown, Stanley) (Entered: 02/20/2014)

03/17/2014

423 MEMORANDUM OF DECISION AND ORDER - For the foregoing reasons, within ten days of the date of this order, the Plaintiffs are directed to submit a proposed final judgment in accordance with the terms set forth in this decision and order. The Defendants shall then have ten days to file objections or an alternative proposed judgment. The Court will subsequently enter a final judgment. So Ordered by Judge Arthur D. Spatt on 3/17/2014. (Coleman, Laurie) (Entered: 03/17/2014)

03/27/2014 424 NOTICE by MHANY Management, Inc. PROPOSED FINAL JUDGMENT (Brown, Stanley) (Entered: 03/27/2014)

04/07/2014

425 DECLARATION of James G. Ryan by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit Redline Judgment, # 2 Exhibit Final Judgment) (Ronneburger, Ariel) (Entered: 04/07/2014)

04/07/2014 426 MEMORANDUM in Opposition to Proposed Final Judgment filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 04/07/2014)

04/08/2014

427 Letter MOTION for Leave to File A Reply to the Objections Filed in Reponse to Plaintiffs' Proposed Judgment by Acorn, Daphne Andrews, Vic Devita, Vernon Ghullkie, Natalie Guerrido, Lisbett Hunter, MHANY Management, Inc., McCray, Francine, New York Acorn Housing Company, Inc.. (Brown, Stanley) (Entered: 04/08/2014)

04/08/2014 428 Letter in Opposition to Plaintiffs' Letter Motion for Leave to Reply by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 04/08/2014)

04/09/2014

429 ORDER Re: 427 Motion for Leave to File A Reply to the Objections Filed in Reponse to Plaintiffs' Proposed Judgment. Request granted. The reply shall not exceed three pages. No further briefing will be accepted. So Ordered by Judge Arthur D. Spatt on 4/9/14. Movant's counsel is directed to serve a copy of this Order on all parties upon receipt via facsimile. (Coleman, Laurie) (Entered: 04/10/2014)

04/14/2014

430 REPLY in Support re 424 Notice(Other) Plaintiffs' Proposed Final Judgment Order filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 04/14/2014)

04/22/2014 431 FINAL JUDGMENT - The Clerk of the Court is directed to close this case. See Judgment for further details. So Ordered by Judge Arthur D. Spatt on 4/22/14. (Coleman, Laurie) (Entered: 04/22/2014)

04/24/2014

432 Letter MOTION for Extension of Time to File Petition for Attorneys' Fees and Costs by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 04/24/2014)

04/25/2014

433 ORDER Re: 432 Motion requesting that the deadline for filing a petition for attorneys' fees and costs be extended by nine days, or until 5/15/14. Request granted. So Ordered by Judge Arthur D. Spatt on 4/25/2014. Movant's counsel is directed to serve a copy of this Order on all parties upon receipt via facsimile. (Coleman, Laurie) (Entered: 04/25/2014)

04/25/2014 434 Notice of MOTION to Withdraw as Attorney by MHANY Management, Inc.. (Sein, Andrew) (Entered: 04/25/2014)

04/26/2014 435 ORDER Re: 434 Motion for Andrew J. Sein to withdraw his appearance as counsel for Plaintiff MHANY Management, Inc.. Attorney Andrew Jaan Sein terminated for MHANY Management, Inc.

So Ordered by Judge Arthur D. Spatt on 4/26/14. (Coleman, Laurie) (Entered: 04/28/2014)

05/05/2014

436 NOTICE OF APPEAL as to 431 Judgment by Garden City Board of Trustees, Incorporated Village of Garden City. Filing fee $ 505, receipt number 0207-6902771. (Carvin, Michael) (Entered: 05/05/2014)

05/15/2014 437 NOTICE of Appearance by Ira M. Feinberg on behalf of MHANY Management, Inc. (notification declined or already on case) (Feinberg, Ira) (Entered: 05/15/2014)

05/15/2014 438 MOTION for Attorney Fees and Costs by MHANY Management, Inc.. (Brown, Stanley) (Entered: 05/15/2014)

05/15/2014 439 MEMORANDUM in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Brown, Stanley) (Entered: 05/15/2014)

05/15/2014

440 AFFIDAVIT/DECLARATION in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I) (Brown, Stanley) (Entered: 05/15/2014)

05/15/2014

441 AFFIDAVIT/DECLARATION in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Brown, Stanley) (Entered: 05/15/2014)

05/15/2014

442 AFFIDAVIT/DECLARATION in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Brown, Stanley) (Entered: 05/15/2014)

05/15/2014 443 AFFIDAVIT/DECLARATION in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Brown, Stanley) (Entered: 05/15/2014)

05/15/2014

444 AFFIDAVIT/DECLARATION in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (Brown, Stanley) (Entered: 05/15/2014)

05/15/2014

445 CERTIFICATE OF SERVICE by MHANY Management, Inc. re 440 Affidavit in Support of Motion, 438 MOTION for Attorney Fees and Costs, 439 Memorandum in Support, 443 Affidavit in Support of Motion, 444 Affidavit in Support of Motion, 441 Affidavit in

Support of Motion, 442 Affidavit in Support of Motion (Brown, Stanley) (Entered: 05/15/2014)

05/16/2014

446 NOTICE OF APPEAL as to 431 Judgment by MHANY Management, Inc.. Filing fee $ 505, receipt number 0207-6930681. (Brown, Stanley) (Entered: 05/16/2014)

05/16/2014

Electronic Index to Record on Appeal sent to US Court of Appeals. 446 Notice of Appeal Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (Gledhill, Rosemary) (Entered: 05/16/2014)

05/19/2014

Electronic Index to Record on Appeal sent to US Court of Appeals. 436 Notice of Appeal Documents are available via Pacer. For docket entries without a hyperlink or for documents under seal, contact the court and we'll arrange for the document(s) to be made available to you. (Cox, Dwayne) (Entered: 05/19/2014)

05/22/2014 447 Letter Requesting Opposition to Motion for Attorneys' Fees by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 05/22/2014)

05/22/2014

448 ORDER Re: 447 Letter requesting the opportunity to file opposition papers to plaintiffs MHANY Management, Inc. and New York Communities for Change, Inc.'s ("Plaintiffs") motion for attorneys fees. We further request that the Village's opposition papers be file on or by 6/18/14, and that Plaintiff's reply papers be filed on or before 7/2/14. So Ordered by Judge Arthur D. Spatt on 5/22/14. Movant's counsel is directed to serve a copy of this Order on all parties upon receipt via facsimile. (Coleman, Laurie) (Entered: 05/23/2014)

05/23/2014

449 ORDER Re: 447 Letter requesting the opportunity to file opposition papers to plaintiffs motion for attorney's fees. We further request that the Village's opposition papers be filed on or by June 18, 2014, and that Plaintiffs' reply papers be filed on or before July 2, 2014. Request granted. So Ordered by Judge Arthur D. Spatt on 5/23/14. (Coleman, Laurie) (Entered: 05/28/2014)

06/02/2014

450 Letter Requesting Extension of time to file Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 06/02/2014)

06/03/2014 451 ORDER Re: 450 Letter requesting an extension of time for the Village to file its opposition to Plaintiffs' motion for attorneys' fees from 6/18/14 to 7/2/14. We additionally request that Plaintiffs' Reply papers

be filed by or on 8/4/14. Request granted. So Ordered by Judge Arthur D. Spatt on 6/3/14. (Coleman, Laurie) (Entered: 06/04/2014)

07/02/2014

452 AFFIDAVIT/DECLARATION in Opposition re 438 MOTION for Attorney Fees and Costs DECLARATION OF JUDITH BRONSTHER filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit Exhibit A - Resume, # 2 Exhibit Exhibit B - Docs Reviewed, # 3 Exhibit Exhibit C - Full Report) (Ronneburger, Ariel) (Entered: 07/02/2014)

07/02/2014 453 MEMORANDUM in Opposition to Plaintiffs' Motion for Attorneys' Fees filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 07/02/2014)

07/02/2014

454 Notice of MOTION to Continue /Defer a Ruling on Plaintiffs' Motion for Attorneys' Fees by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 07/02/2014)

07/02/2014

455 MEMORANDUM in Support of Defendants' Motion to Defer a Ruling on Attorneys' Fees filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 07/02/2014)

07/17/2014

456 Letter MOTION for Extension of Time to File Response/Reply in Support of Motion for Attorneys' Fees and Costs and in Opposition to Defendants' Motion to Defer by MHANY Management, Inc.. (Fleming, Benjamin) (Entered: 07/17/2014)

07/18/2014

457 ORDER Re: Plaintiffs' 456 Motion for extension of time to file response/reply in support of motion for attorneys' fees and costs and in opposition to defendant's motion to defer. Request granted. So Ordered by Judge Arthur D. Spatt on 7/18/2014. (Coleman, Laurie) (Entered: 07/18/2014)

07/22/2014

458 Letter Requesting the Appointment of a FHCO by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit A (Resumes of FHCO Candidates)) (Ronneburger, Ariel) (Entered: 07/22/2014)

07/24/2014

459 Letter in response to the Garden City Defendants' letter of 7/22/2014 asking the Court to approve appointment of either Justice Edward G. McCabe or Justice Joseph Covello to serve as Fair Housing Compliance Officer pursuant to Section XI.A of this Court's 4/22/2014 Final Judgment in this case. Plaintffs oppose Garden City's request. Plaintiffs request that instead the Court appoint one of Plaintiffs' proposed candidates by MHANY Management, Inc., McCray, Francine (Dennin, Peter) (Entered: 07/24/2014)

08/22/2014

A telephone conference regarding the appointment of a Fair Housing Compliance Officer is scheduled for Monday August 25, 2014 at 9:30 A.M. At the conference, the Court will recommend the appointment of Anthony M. LaPinta, Esq. of the law firm of Reynolds, Caronia, Gianelli & LaPinta, P.C. Counsel is directed to call on a single line to chambers at 631-712-5620. So Ordered by Judge Arthur D. Spatt on 8/22/2014. (Entered: 08/22/2014)

08/25/2014

460 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Telephone Conference held on 8/25/14. Courtroom Deputy: Linda Fagan. Case called. Counsel for all sides present via telephone. The Court appoints Mr. Anthony LaPinta as Fair Housing Compliance Officer for this case. Anthony LaPinta added. Conference concluded. (Court Reporter Dominick Tursi.) (Coleman, Laurie) (Entered: 08/25/2014)

08/25/2014

461 MEMORANDUM in Opposition re 454 Notice of MOTION to Continue /Defer a Ruling on Plaintiffs' Motion for Attorneys' Fees filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 08/25/2014)

09/03/2014 462 REPLY in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Brown, Stanley) (Entered: 09/03/2014)

09/03/2014 463 AFFIDAVIT/DECLARATION in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Attachments: # 1 Exhibit A) (Brown, Stanley) (Entered: 09/03/2014)

09/03/2014

464 AFFIDAVIT/DECLARATION in Support re 438 MOTION for Attorney Fees and Costs filed by MHANY Management, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Brown, Stanley) (Entered: 09/03/2014)

09/03/2014

465 AFFIDAVIT/DECLARATION in Support re 438 MOTION for Attorney Fees and Costs (Reply Declaration Of Joseph D. Rich) filed by MHANY Management, Inc.. (Brown, Stanley) (Entered: 09/03/2014)

09/03/2014

466 CERTIFICATE OF SERVICE by MHANY Management, Inc. re 463 Affidavit in Support of Motion, 462 Reply in Support, 464 Affidavit in Support of Motion, 465 Affidavit in Support of Motion(Brown, Stanley) (Entered: 09/03/2014)

09/05/2014 467 REPLY in Support re 454 Notice of MOTION to Continue /Defer a Ruling on Plaintiffs' Motion for Attorneys' Fees filed by Garden City

Board of Trustees, Incorporated Village of Garden City. (Ryan, James) (Entered: 09/05/2014)

09/11/2014

468 SHORT ORDER denying 438 Motion for Attorney Fees; granting 454 Motion to Continue; the Court (1) grants Garden Citys motion to defer ruling on the Plaintiffs motion for attorneys fees until after the Second Circuit renders a decision on the Garden City Merits Appeal and (2) the Plaintiffs motion for attorneys fees and costs is denied without prejudice to renew such motion no later than fourteen (14) days after the date a ruling on the merits of the cross-appeals by the Second Circuit is entered on the docket of this district court. Gill, 2014 WL 1404902, at *3; Matsumura, 2014 WL 1553638, at *6. So Ordered by Judge Arthur D. Spatt on 9/11/2014. (Coleman, Laurie) (Entered: 09/11/2014)

10/21/2014 469 STATUS REPORT 2014 Compliance Report by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Appendix FHA Resolution) (Ryan, James) (Entered: 10/21/2014)

12/01/2014 470 Letter FHCO Declaration by Anthony LaPinta (LaPinta, Anthony) (Entered: 12/01/2014)

12/02/2014 471 Letter regarding construction status of the Nassau County Family and Matrimonial Court project by County of Nassau (Reissman, Ralph) (Entered: 12/02/2014)

10/21/2015

472 STATUS REPORT 2015 Annual Compliance Report by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit Resolution, # 2 Exhibit Zoning Policy, # 3Exhibit Urban Consortium Letter) (Ronneburger, Ariel) (Entered: 10/21/2015)

02/12/2016 473 DECLARATION (Supplemental) by Court Appointed Fair Housing Compliance Officer by Anthony LaPinta (LaPinta, Anthony) (Entered: 02/12/2016)

02/16/2016

474 Letter to Judge Spatt Regarding La Pinta Declaration by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 02/16/2016)

02/16/2016

475 ORDER Re: 474 Letter requesting the court's permission to file a response to the 2/11/16 Declaration of Anthony La Pinta on or before 2/22/16. Request granted. So Ordered by Judge Arthur D. Spatt on 2/17/16. (Coleman, Laurie) (Entered: 02/18/2016)

02/18/2016 476 Letter in response to the Supplemental Declaration of the Courtappointed Fair Housing Compliance Officer, Anthony M. La Pinta by MHANY Management, Inc. (Brown, Stanley) (Entered: 02/18/2016)

02/19/2016

477 ORDER re 476 Letter in response to the Supplemental Declaration of the Court-appointed Fair Housing Compliance Officer, Anthony M. La Pinta. Plaintiff's request permission to respond to Defendants' response no later than 3/7/16. Request granted. Ordered by Judge Arthur D. Spatt on 2/19/2016. (Coleman, Laurie) (Entered: 02/19/2016)

02/22/2016

478 Letter in Response to FHCO Declaration by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit Exhibit A - Fair Housing Resolution, # 2 Exhibit Exhibit B - Consortium Letter, # 3 Exhibit Exhibit C - Zoning Policy) (Ronneburger, Ariel) (Entered: 02/22/2016)

03/07/2016 479 Letter in Response to FHCO Supplemental Declaration 478 by MHANY Management, Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Brandriss, Chava) (Entered: 03/07/2016)

03/08/2016

The parties' request for a status conference to address the recommendations made by Mr. La Pinta is granted. Due to upcoming criminal trials, the conference is scheduled for Thursday April 28,2016 at 09:00 AM in Courtroom 1020.So Ordered by Judge Arthur D. Spatt on 3/8/2016. (Entered: 03/08/2016)

03/14/2016 480 Letter MOTION to Adjourn Conference by Anthony LaPinta. (LaPinta, Anthony) (Entered: 03/14/2016)

03/23/2016 481 ORDER granting 480 Motion to adjourn the 4/28/16 conference to 6/17/16 at 2:00 pm. So Ordered by Judge Arthur D. Spatt on 3/23/2016. (Coleman, Laurie) (Entered: 03/24/2016)

03/31/2016

482 Letter to Hon. Arthur D. Spatt, dated March 31, 2016, regarding Clarification of September 11 2014 Order by MHANY Management, Inc. (Brown, Stanley) (Entered: 03/31/2016)

04/01/2016 483 Letter to Judge Spatt Re: Mar. 31, 2016 Letter from Plaintiffs by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 04/01/2016)

04/04/2016

484 ORDER re 483 Letter - The Court agrees with the Defendants and clarifies its 9/11/14 Order to allow the Plaintiffs to renew their motion for attorneys' fees within fourteen days after the conclusion of the remanded proceedings. So Ordered by Judge Arthur D. Spatt on 4/4/2016. (Coleman, Laurie) (Entered: 04/04/2016)

04/14/2016 485 NOTICE of Appearance by William M. Savino on behalf of County of Nassau (aty to be noticed) (Savino, William) (Entered: 04/14/2016)

04/14/2016 486 NOTICE of Appearance by Stephen J. Smirti, Jr on behalf of County of Nassau (aty to be noticed) (Smirti, Stephen) (Entered: 04/14/2016)

06/06/2016

487 NOTICE of Appearance by Stanley Joseph Brown on behalf of New York Communities For Change, Inc. (notification declined or already on case) (Brown, Stanley) (Entered: 06/06/2016)

06/06/2016 488 NOTICE of Appearance by Chava Brandriss on behalf of New York Communities For Change, Inc. (aty to be noticed) (Brandriss, Chava) (Entered: 06/06/2016)

06/06/2016 489 NOTICE of Appearance by Benjamin Andrew Fleming on behalf of New York Communities For Change, Inc. (aty to be noticed) (Fleming, Benjamin) (Entered: 06/06/2016)

06/13/2016

490 Letter addressed to Honorable Arthur D. Spatt regarding the June 17, 2016 status conference by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 06/13/2016)

06/15/2016 491 Letter Regarding Advisor to Fair Housing Compliance Officer by Anthony LaPinta (LaPinta, Anthony) (Entered: 06/15/2016)

06/16/2016 492 Letter regarding court conference to be held on June 17, 2016 by County of Nassau (Reissman, Ralph) (Entered: 06/16/2016)

06/16/2016 493 Letter to Judge Spatt Re: 6/17 Conference by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 06/16/2016)

06/17/2016 494 NOTICE of Appearance by Gerald R. Podlesak on behalf of County of Nassau (aty to be noticed) (Podlesak, Gerald) (Entered: 06/17/2016)

07/07/2016 495 MOTION to Withdraw as Attorney by County of Nassau. (Smirti, Stephen) (Entered: 07/07/2016)

07/07/2016 496 MOTION to Withdraw as Attorney by County of Nassau. (Savino, William) (Entered: 07/07/2016)

07/08/2016

497 ORDER granting 495 Motion by Stephen J. Smirti to Withdraw as Attorney for County of Nassau. Attorney Stephen J. Smirti, Jr terminated. So Ordered by Judge Arthur D. Spatt on 7/8/2016. c/ecf. (Coleman, Laurie) (Entered: 07/08/2016)

07/08/2016

498 ORDER granting 496 Motion by William M. Savino to Withdraw as Attorney for County of Nassau. Attorney William M. Savino terminated. So Ordered by Judge Arthur D. Spatt on 7/8/2016. c/ecf. (Coleman, Laurie) (Entered: 07/08/2016)

07/28/2016

499 MANDATE of USCA Case No: 14-1634 as to 446 Notice of Appeal filed by MHANY Management, Inc., 436 Notice of Appeal filed by Garden City Board of Trustees and Incorporated Village of Garden City. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the district courts judgment is AFFIRMED in part and VACATED in part. The matter is REMANDED for further proceedings in accordance with the opinion of this Court. (Landow, Concetta) (Entered: 07/29/2016)

07/29/2016

500 NOTICE of Appearance by Scott J. Kreppein on behalf of County of Nassau, Nassau County Office of Real Estate & Development, Nassau County Planning Commission (aty to be noticed) (Kreppein, Scott) (Entered: 07/29/2016)

08/09/2016

501 Letter to Hon. Arthur D. Spatt dated August 9, 2016, to propose a plan and schedule for the next phase of the case against Nassau County by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 08/09/2016)

08/16/2016

502 Letter regarding remand from Second Circuit, response to plaintiffs' letter of August 9, 2016 by County of Nassau (Reissman, Ralph) (Entered: 08/16/2016)

08/19/2016

503 Letter Re: In response to Nassau County's 502 letter of August 16, 2016 and regarding plan for next phase of case filed MHANY Management, Inc., New York Acorn Housing Company, Inc. (Brown, Stanley) (Modified) (Entered: 08/19/2016)

08/25/2016

504 Letter regarding remand from Second Circuit, and in response to plaintiffs' letter of August 19, 2016 [Dkt. No. 503] by County of Nassau (Reissman, Ralph) (Entered: 08/25/2016)

08/26/2016 505 Letter regarding a schedule for the next phase of the case against Garden City by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 08/26/2016)

08/29/2016

506 ORDER re 505 Letter proposing that these supplemental briefs, citing only to closed trial record, be submitted on the following schedule: Plaintiffs' opening brief due by 9/23/2016; Garden City's response brief due by 10/21/2016; Plaintiffs' reply due by 11/4/2016/ So Ordered by Judge Arthur D. Spatt on 8/29/2016. (Coleman, Laurie) (Entered: 08/29/2016)

09/01/2016

SCHEDULING ORDER: The Plaintiff's request for a status conference regarding the status of the remanded claim against the County is granted. The parties are directed to appear in Courtroom 1020 on

September 16, 2016 at 2:00pm. So Ordered by Judge Arthur D. Spatt on 9/1/2016. (Fayer, Jonathan) (Entered: 09/01/2016)

09/07/2016

507 Letter requesting an adjournment of the status conference scheduled for Friday, September 16,2016 by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) Modified on 9/8/2016 (Fagan, Linda). (Entered: 09/07/2016)

09/07/2016

Incorrect Case/Document/Entry Information. The 507 LETTER, filed on 09/07/2016, has been edited as to the filers. All corrections have been made.) (Fagan, Linda) (Entered: 09/08/2016)

09/08/2016

508 ORDER re 507 Letter request to adjourn the 9/16/2016 status conference. Request granted. The status conference is adjourned to Thursday 10/13/2016 at 10:00 a.m. So Ordered by Judge Arthur D. Spatt on 9/8/2016. (Coleman, Laurie) (Entered: 09/08/2016)

09/21/2016

Case Reassigned to Magistrate Judge Arlene R. Lindsay. Magistrate Judge William D. Wall no longer assigned to the case. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (McMahon, Carol) (Entered: 09/21/2016)

09/21/2016

509 Notice of MOTION for Leave to Appear Pro Hac Vice Notice of Motion to Admit Thomas Silverstein Pro Hac Vice Filing fee $ 150, receipt number 0207-8929964. by MHANY Management, Inc., New York Communities For Change, Inc.. (Silverstein, Thomas) (Entered: 09/21/2016)

09/22/2016

ORDER granting 509 Motion for Leave to Appear Pro Hac Vice. Attorney Silverstein shall register for ECF; registration is available online at the NYED's homepage. Once registered, Attorney Silverstein shall file a notice of appearance and ensure that he receives electronic notification of activity in this case. Also, he shall ensure that the $150 admission fee be submitted to the Clerk's Office. Ordered by Magistrate Judge Arlene R. Lindsay on 9/22/2016. (Lanin, Debbie) (Entered: 09/22/2016)

09/23/2016

510 TRIAL BRIEF Post-Trial Supplemental Memorandum of Law Regarding Remanded Impact Claim Against Garden City by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 09/23/2016)

09/27/2016 511 NOTICE of Appearance by Thomas S. Silverstein on behalf of MHANY Management, Inc., New York Communities For Change, Inc.

(notification declined or already on case) (Silverstein, Thomas) (Entered: 09/27/2016)

10/13/2016

512 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Status Conference held on 10/13/2016. Court Reporter: Alex Corsini. Case called. Counsel for all sides present. Counsel for the Plaintiffs are directed to file proposed orders as more fully set forth on the record for the Court to review. (Court Reporter Stephanie Picozzi.) (Coleman, Laurie) (Entered: 10/13/2016)

10/18/2016

513 NOTICE of Change of Update to Firm Name and Email Address please update so that SJK@QHCLaw.com is the email address for ecf bounces, with Scott.Kreppein@Gmail.com as a secondary email address by Scott J. Kreppein (Kreppein, Scott) (Entered: 10/18/2016)

10/18/2016

Email Notification Test - DO NOT REPLY (Florio, Lisa) (Entered: 10/18/2016)

10/21/2016

514 MEMORANDUM in Opposition to Plaintiffs' Supplemental Post-Trial Memorandum of Law filed by Garden City Board of Trustees, Incorporated Village of Garden City. (McLaughlin, Jennifer) (Entered: 10/21/2016)

10/24/2016 515 STATUS REPORT 2016 Annual Compliance Report by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit) (Ryan, James) (Entered: 10/24/2016)

11/04/2016

516 REPLY in Support re 510 Trial Brief Reply Supplemental Post-Trial Memorandum of Law Regarding Remanded Impact Claim Against Garden City filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 11/04/2016)

11/08/2016 517 Letter with enclosures by MHANY Management, Inc., New York Communities For Change, Inc. (Attachments: # 1 Proposed Order, # 2 Proposed Order) (Brown, Stanley) (Entered: 11/08/2016)

11/22/2016

Electronic SCHEDULING ORDER: A Telephone Conference further discussing the severance of the Plaintiffs' claims 517 is set for 11/29/2016 10:00 AM in Courtroom 1020 before Judge Arthur D. Spatt. The party moving for severance should initiate the call with chambers at (631) 712-5620 and have all counsel on the phone when the call is placed to chambers. So Ordered by Judge Arthur D. Spatt on 11/22/2016. (Fell, Christopher) Modified on 11/28/2016 to add telephone number. (Coleman, Laurie). Modified on 1/5/2017 to remove document number #518 from this entry as it is an electronic order and no document is attached. (Coleman, Laurie) (Entered: 01/05/2017)

11/22/2016

Incorrect Entry Information; The #518 Electronic Scheduling Order has been deleted from and re-entered in the above-referenced case as it contained a document number and no document was attached. There will no longer be a document #518 in the above-referenced case. (Coleman, Laurie) (Entered: 01/05/2017)

11/29/2016

519 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Telephone Conference held on 11/29/2016. Case called. Counsel for all sides present. Telephone conference held. Other: A Telephone Conference was held on November 29. 2016 before the Honorable Arthur D. Spatt to further discuss the severance of the Plaintiffs' claims. The Court entertained further arguments about the parties' proposed severance of claims, and the Court denied severance. (Coleman, Laurie) (Main Document 519 replaced on 11/29/2016) (Coleman, Laurie). Modified on 11/29/2016 to include text inadvertently omitted from the minute entry. (Coleman, Laurie). (Entered: 11/29/2016)

11/29/2016

520 Supplemental Case Management and Scheduling Order. So Ordered by Judge Arthur D. Spatt on 11/29/2016. (Coleman, Laurie) (Entered: 11/29/2016)

03/13/2017

521 MOTION to Quash Subpoena Duces Tecum served upon non-party by Long Beach Housing Authority,. (Attachments: # 1 Exhibit A Subpoena, # 2 Exhibit B - Email, # 3 Exhibit C - Objections and Responses to Subpoena) (Graff, Austin) (Entered: 03/13/2017)

03/17/2017

522 MOTION to Quash subpoena duces tecum served upon non-party, The Incorporated Village of Farmingdale, by The Incorporated Village of Farmingdale. (Attachments: # 1 Exhibit A - Subpoena, # 2 Exhibit B Responses & Objections to Subpoena) (DeBellis, Claudio) (Entered: 03/17/2017)

03/20/2017

523 MOTION to Quash by Village of Great Neck Estates, Village of Hewlett Bay Park, Village of North Hills, Village of Rockville Centre, Village of Sea Cliff. (Attachments: # 1 Declaration, # 2Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L - Part 1 of 5, # 14Exhibit L - Part 2 of 5, # 15 Exhibit L - Part 3 of 5, # 16 Exhibit L - Part 4 of 5, # 17 Exhibit L - Part 5 of 5, # 18 Exhibit M, # 19 Exhibit N, # 20 Memorandum in Support) (Millus, Paul) (Entered: 03/20/2017)

03/21/2017

524 NOTICE of Appearance by Daniel B. Rinaldi on behalf of Village of Great Neck Estates, Village of Hewlett Bay Park, Village of North Hills, Village of Rockville Centre, Village of Sea Cliff (aty to be noticed) (Rinaldi, Daniel) (Entered: 03/21/2017)

03/21/2017

525 STIPULATION and Proposed Order re: Letter from Non-Party Long Beach Housing Authority by MHANY Management, Inc., New York Communities For Change, Inc. (Fleming, Benjamin) (Entered: 03/21/2017)

03/22/2017

526 ORDER granting 525 Stipulation agreeing that any obligation of Plaintiffs to respond to ECF No. 521 is adjourned sine die; and Plaintiffs and the LBHA will promptly notify the Court if they are unable to resolve the issues raised in ECF No. 521, and in such event will jointly propose a schedule to address ECF No. 521. So Ordered by Judge Arthur D. Spatt on 3/22/2017. (Coleman, Laurie) (Entered: 03/22/2017)

03/23/2017

527 STIPULATION and Proposed Order re: Letter from Non-Party The Incorporated Village of Farmingdale by MHANY Management, Inc., New York Communities For Change, Inc. (Fleming, Benjamin) (Entered: 03/23/2017)

03/24/2017

528 ORDER granting 527 Stipulation and Proposed Order that any obligation of Plaintiffs to respond to ECF No. 522 is adjourned sine die; Plaintiffs and the Village will promptly notify the Court if they are unable to resolve the issues raised in ECF No. 522 , and in such event will jointly propose a schedule to address ECF No. 522 . So Ordered by Judge Arthur D. Spatt on 3/24/17. (Coleman, Laurie) (Entered: 03/27/2017)

03/28/2017

529 Letter MOTION for Extension of Time to File Response/Reply as to 523 MOTION to Quash by MHANY Management, Inc., New York Communities For Change, Inc.. (Fleming, Benjamin) (Entered: 03/28/2017)

03/29/2017

Electronic ORDER granting 529 Motion for Extension of Time to File Response/Reply to 523 MOTION to Quash. The Plaintiffs shall respond to the motion to quash on or before 4/17/2017. So Ordered by Judge Arthur D. Spatt on 3/29/2017. (Fell, Christopher) (Entered: 03/29/2017)

04/07/2017

530 Letter MOTION to Compel Defendant Nassau County to Respond to Plaintiffs' Discovery Requests by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H) (Brown, Stanley) (Entered: 04/07/2017)

04/07/2017

531 EXHIBIT I by MHANY Management, Inc., New York Communities For Change, Inc.. Related document: 530 Letter MOTION to Compel Defendant Nassau County to Respond to Plaintiffs' Discovery

Requests filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 04/07/2017)

04/10/2017

ORDER re 530 : Counsel for the plaintiff is directed to submit courtesy copies of all motion papers directly to chambers. Ordered by Magistrate Judge Arlene R. Lindsay on 4/10/2017. c/ecf (Imrie, Robert) (Entered: 04/10/2017)

04/12/2017

532 Letter MOTION for Extension of Time to File Response/Reply as to 523 MOTION to Quash by MHANY Management, Inc., New York Communities For Change, Inc.. (Fleming, Benjamin) (Entered: 04/12/2017)

04/12/2017

533 RESPONSE in Opposition re 530 Letter MOTION to Compel Defendant Nassau County to Respond to Plaintiffs' Discovery Requests filed by County Of Nassau. (Attachments: # 1 Exhibit A Documents Available for Inspection) (Kreppein, Scott) (Entered: 04/12/2017)

04/13/2017

ORDER re 532 : The time to respond to 523 MOTION to Quash is extended to and including May 1, 2017. Ordered by Magistrate Judge Arlene R. Lindsay on 4/13/2017. c/ecf (Imrie, Robert) (Entered: 04/13/2017)

04/14/2017 534 Letter to Judge Lindsay by MHANY Management, Inc., New York Communities For Change, Inc. (Fleming, Benjamin) (Entered: 04/14/2017)

04/21/2017

535 ORDER re 530 : See attached Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 4/21/2017. (Lanin, Debbie) (Entered: 04/21/2017)

05/01/2017

536 Letter MOTION for Extension of Time to File Response/Reply as to 523 MOTION to Quash by MHANY Management, Inc., New York Communities For Change, Inc.. (Fleming, Benjamin) (Entered: 05/01/2017)

05/02/2017

ORDER granting 536 : The time to respond to 523 MOTION to Quash is extended to and including May 15, 2017. Ordered by Magistrate Judge Arlene R. Lindsay on 5/2/2017. c/ecf (Miller, Dina) (Entered: 05/02/2017)

05/15/2017

537 Letter MOTION for Extension of Time to File Response/Reply as to 523 MOTION to Quash by MHANY Management, Inc., New York Communities For Change, Inc.. (Fleming, Benjamin) (Entered: 05/15/2017)

05/16/2017

ORDER granting 537 : The time to respond to 523 is extended to and including May 29, 2017. Ordered by Magistrate Judge Arlene R. Lindsay on 5/16/2017. (Lanin, Debbie) (Entered: 05/16/2017)

05/31/2017

538 Letter MOTION for Extension of Time to File Response/Reply as to 523 MOTION to Quash by MHANY Management, Inc., New York Communities For Change, Inc.. (Fleming, Benjamin) (Entered: 05/31/2017)

05/31/2017

539 Letter to inquire if the Court requires anything further from Plaintiffs in order for the issue that was remanded by the Second Circuit to be finalize by Acorn (Brewington, Frederick) (Entered: 05/31/2017)

06/01/2017

ORDER granting 538 , the time to respond to 523 is extended to and including June 12, 2017. Ordered by Magistrate Judge Arlene R. Lindsay on 6/1/2017. c/ecf (Imrie, Robert) (Entered: 06/01/2017)

06/07/2017 540 NOTICE of Appearance by Dianne Milner on behalf of MHANY Management, Inc. (aty to be noticed) (Milner, Dianne) (Entered: 06/07/2017)

06/13/2017

541 MOTION to Withdraw 523 MOTION to Quash by Village of Great Neck Estates, Village of Hewlett Bay Park, Village of North Hills, Village of Rockville Centre, Village of Sea Cliff. (Millus, Paul) (Entered: 06/13/2017)

06/14/2017

ORDER re 541 : The Village Defendants' motion to quash 523 has been withdrawn and is hereby terminated. The remaining motions to quash 521 - 522 are terminated without prejudice to renew should the parties be unable to resolve their issues. Ordered by Magistrate Judge Arlene R. Lindsay on 6/14/2017. (Lanin, Debbie) (Entered: 06/14/2017)

06/16/2017

542 Letter MOTION to Compel by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Brown, Stanley) (Entered: 06/16/2017)

06/21/2017 543 Consent MOTION for Extension of Time to File Response/Reply as to 542 Letter MOTION to Compel until 6.28.2017 by County Of Nassau. (Kreppein, Scott) (Entered: 06/21/2017)

06/22/2017

ORDER re 543 : The application is granted. Ordered by Magistrate Judge Arlene R. Lindsay on 6/22/2017. c/ecf (Imrie, Robert) (Entered: 06/22/2017)

06/28/2017 544 RESPONSE in Opposition re 542 Letter MOTION to Compel filed by County Of Nassau. (Kreppein, Scott) (Entered: 06/28/2017)

06/29/2017

545 RESPONSE in Opposition re 542 Letter MOTION to Compel (supplemental response) filed by County Of Nassau. (Attachments: # 1 Exhibit Photographs of Documents Available For Inspection) (Kreppein, Scott) (Entered: 06/29/2017)

06/30/2017

546 Letter MOTION for Leave to File a reply in response to: (1) Defendant County of Nassaus (the County) Opposition to Plaintiffs Motion to Compel (ECF No. 544) (the Opposition) and; (2) the Countys unauthorized filing styled as a Supplemental Opposition to Plaintiffs Motion to Compel (ECF No. 545) (the Supplemental Opposition) by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 06/30/2017)

07/07/2017

ORDER: Due to a change in the Court's calendar, the July 11, 2017 conference is rescheduled for 1:30 p.m. Ordered by Magistrate Judge Arlene R. Lindsay on 7/7/2017. c/ecf (Imrie, Robert) (Entered: 07/07/2017)

07/11/2017

547 Minute Order for proceedings held before Magistrate Judge Arlene R. Lindsay re 542 ; Discovery Hearing held on 7/11/2017. See attached Order for details. (Lanin, Debbie) (Entered: 07/11/2017)

07/28/2017 548 Letter proposing a revised schedule for the completion of fact and expert discovery by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 07/28/2017)

07/31/2017

ORDER: re 548 : All discovery, inclusive of expert discovery, to be concluded by January 15, 2018. Ordered by Magistrate Judge Arlene R. Lindsay on 7/31/2017. c/ecf (Imrie, Robert) (Entered: 07/31/2017)

08/07/2017 549 Letter to the Court regarding Plaintiffs' remanded disparate impact claim by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 08/07/2017)

09/19/2017

550 MEMORANDUM OF DECISION & ORDER re 510 , 514 , 516 - For the foregoing reasons, the Court finds that the Plaintiffs met their burden at trial in establishing that Garden City's legitimate, substantial, non-discriminatory interests in not overburdening public schools and reducing traffic could have been served by R-M zoning. The Court confirms its finding, that the adoption of R-T zoning instead of R-M zoning had a disparate impact on minorities in Garden City. This matter is respectfully referred to Magistrate Judge Arlene R. Lindsay for the conclusion of discovery on the Plaintiffs "steering" claims under the FHA and Title VII. SEE ATTACHED DECISION for details. So

Ordered by Judge Arthur D. Spatt on 9/19/2017. (Coleman, Laurie) (Entered: 09/20/2017)

10/24/2017

551 STATUS REPORT 2017 Annual Compliance Report by Garden City Board of Trustees, Incorporated Village of Garden City (Attachments: # 1 Exhibit, # 2 Exhibit) (Ronneburger, Ariel) (Entered: 10/24/2017)

11/08/2017 552 Notice of MOTION for Entry of Judgment under Rule 54(b) by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 11/08/2017)

11/08/2017

553 MEMORANDUM in Support re 552 Notice of MOTION for Entry of Judgment under Rule 54(b) filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 11/08/2017)

11/08/2017

554 AFFIDAVIT/DECLARATION in Support re 552 Notice of MOTION for Entry of Judgment under Rule 54(b) filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Exhibit 1) (Brown, Stanley) (Entered: 11/08/2017)

11/17/2017

555 Letter MOTION to Compel by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Brown, Stanley) (Entered: 11/17/2017)

11/21/2017 556 RESPONSE to Motion re 552 Notice of MOTION for Entry of Judgment under Rule 54(b) filed by Garden City Board of Trustees. (Ryan, James) (Entered: 11/21/2017)

11/21/2017

557 RESPONSE in Opposition re 555 Letter MOTION to Compel filed by County Of Nassau. (Attachments: # 1 Exhibit A - Interrogatory Response, # 2 Exhibit B - Email with Supplemental Production) (Kreppein, Scott) (Entered: 11/21/2017)

11/27/2017

558 Letter MOTION for Leave to File Reply in connection with Motion to Compel Doc. No. 555 by MHANY Management, Inc., McCray, Francine. (Attachments: # 1 Exhibit A - to Request for Reply to NC Opp, # 2 Exhibit B - to Request for Reply to NC Opp) (Brown, Stanley) (Entered: 11/27/2017)

11/28/2017

559 EXHIBIT in support of Letter Motion Doc. 555 by MHANY Management, Inc., New York Communities For Change, Inc.. Related document: 555 Letter MOTION to Compel filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 11/28/2017)

11/29/2017

560 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on July 11, 2017, before Magistrate Judge Arlene R. Lindsay. Transcriber AA Express Transcripts, Telephone number 888-456-9716. Email address: AAExpress@Court-Transcripts.net. Transcript may be viewed at the court public terminal or purchased through the Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/20/2017. Redacted Transcript Deadline set for 1/1/2018. Release of Transcript Restriction set for 2/27/2018. (Kanellopoulos, John) (Entered: 11/29/2017)

11/30/2017

561 PARTIAL FINAL JUDGMENT as against Defendants Incorporated Village of Garden City and Garden City Board of Trustees. THE COURT finds that, under these circumstances, there is no just reason for delay in entering a partial final judgment in this case against Garden City; NOW, THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED, pursuant to Federal Rule of Civil Procedure 54(b), that final judgment is entered against Garden City on the terms set forth in the 2014 Judgment, as modified by the Court in the Judgment Extension Order. SEE ATTACHED JUDGMENT for details. So Ordered by Judge Arthur D. Spatt on 11/30/2017. (Coleman, Laurie) (Entered: 11/30/2017)

12/08/2017

562 MOTION for Attorney Fees (MOTION FOR COURT TO CONSIDER AND DECIDE PLAINTIFFS FULLY BRIEFED MOTION FOR ATTORNEYS FEES AND COSTS AND EXTEND THE TIME FOR ANY SUPPLEMENTAL MOTION FOR FEES) by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Memorandum in Support) (Brown, Stanley) (Entered: 12/08/2017)

12/08/2017

563 MEMORANDUM in Support re 562 MOTION for Attorney Fees (MOTION FOR COURT TO CONSIDER AND DECIDE PLAINTIFFS FULLY BRIEFED MOTION FOR ATTORNEYS FEES AND COSTS AND EXTEND THE TIME FOR ANY SUPPLEMENTAL MOTION FOR FEES) filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 12/08/2017)

12/19/2017

564 MOTION to Withdraw as Attorney for Caroline H. Cheng, Peter J. Denin, Sabrina H. Cochet, Kim Bridges, Toby William Smith, Jenny Rubin Robertson and Sarah J. Gregory by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Declaration Declaration of Stanley J. Brown, # 2 Proposed Order) (Brown, Stanley) (Entered: 12/19/2017)

12/20/2017 565 ORDER granting 564 Motion to Withdraw as Attorney. It is hereby ordered that the Motion is GRANTED and the appearances of Caroline

H. Cheng, Peter J. Denin, Sabrina H. Cochet, Kim Bridges, Toby William Smith, Jenny Rubin Robertson and Sarah J. Gregory on behalf of the Plaintiffs MHANY Management Inc. and Intervenor-Plaintiff New York Community for Change are hereby withdrawn. So Ordered by Judge Arthur D. Spatt on 12/20/2017. Attorney's Luz Maria Henriquez terminated by DE #412; Andrew Jaan Sein previously terminated by DE #435. (Coleman, Laurie) (Entered: 12/20/2017)

12/20/2017

566 ORDER re 555 , 557 and 558 . See attached Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 12/20/2017. (Lanin, Debbie) (Entered: 12/20/2017)

12/21/2017 567 Joint MOTION for Extension of Time to Complete Discovery by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 12/21/2017)

12/22/2017

ORDER granting 567 Motion for Extension of Time to Complete Discovery. All discovery, inclusive of expert discovery, is to be concluded by March 19, 2018. Ordered by Magistrate Judge Arlene R. Lindsay on 12/22/2017. (Lanin, Debbie) (Entered: 12/22/2017)

12/22/2017

568 MEMORANDUM in Opposition re 562 MOTION for Attorney Fees (MOTION FOR COURT TO CONSIDER AND DECIDE PLAINTIFFS FULLY BRIEFED MOTION FOR ATTORNEYS FEES AND COSTS AND EXTEND THE TIME FOR ANY SUPPLEMENTAL MOTION FOR FEES) filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ryan, James) (Entered: 12/22/2017)

12/29/2017

569 REPLY in Support re 562 MOTION for Attorney Fees (MOTION FOR COURT TO CONSIDER AND DECIDE PLAINTIFFS FULLY BRIEFED MOTION FOR ATTORNEYS FEES AND COSTS AND EXTEND THE TIME FOR ANY SUPPLEMENTAL MOTION FOR FEES) filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 12/29/2017)

01/02/2018

570 BILL OF COSTS by MHANY Management, Inc., New York Communities For Change, Inc. (Attachments: # 1 Exhibit Filing Fees, # 2 Exhibit Transcript Fees, # 3 Exhibit Witness Fees) (Brown, Stanley) (Entered: 01/02/2018)

01/10/2018

571 Letter addressed to the Honorable Arlene R. Lindsay in connection with Your Honors order dated December 20, 2017 by MHANY Management, Inc., New York Communities For Change, Inc. (Attachments: # 1 Copy of letter dated 12/27/2017) (Brown, Stanley) (Entered: 01/10/2018)

01/11/2018 572 Letter in response to Plaintiff's 1.10.18 Ltr and requesting extension of 1.10.18 deadlines in 12.20.17 Order until 1.19.18 by County of Nassau (Kreppein, Scott) (Entered: 01/11/2018)

01/11/2018

ORDER: The Court is in receipt of 571 and 572 and will extend the compliance deadline to January 19, 2018. Ordered by Magistrate Judge Arlene R. Lindsay on 1/11/2018. c/ecf (Imrie, Robert) (Entered: 01/11/2018)

01/19/2018

573 MOTION for Discovery dates in 12.20.2017 Order to be further extended until 2.9.2018 by County of Nassau. (Kreppein, Scott) (Entered: 01/19/2018)

01/22/2018

574 RESPONSE to Motion re 573 MOTION for Discovery dates in 12.20.2017 Order to be further extended until 2.9.2018 filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Exhibit A) (Brown, Stanley) (Entered: 01/22/2018)

01/23/2018

ORDER re 573 : The compliance deadline is extended to and including February 2, 2018. Ordered by Magistrate Judge Arlene R. Lindsay on 1/23/2018. c/ecf (Imrie, Robert) (Entered: 01/23/2018)

01/23/2018

575 ORDER: The Court sees no reason as to why it should waste judicial resources and consider two separate motions for attorneys fees months apart. Therefore, the Plaintiffs request for consideration of the motion for initial attorneys fees before the filing of the motion for supplement attorneys fees is denied. The Court will decide the motions together. Accordingly, the Plaintiffs are directed to file a motion for all attorneys fees incurred in the prosecution of the case against Garden City. The Plaintiffs need not file consolidated briefs. Instead, the Plaintiffs may file a motion for supplemental attorneys fees, and renew their motion for initial attorneys fees, which has already been fully briefed.The parties are directed to file a proposed schedule for the briefings of the motion for supplemental attorneys fees. The Clerk of the Court is respectfully directed to terminate the motion for initial attorneys fees. (ECF No. 562 ). The Plaintiffs are granted leave to renew their motion for initial attorneys fees when they file their motion for supplemental attorneys fees. SEE ATTACHED ORDER for details. SO ORDERED by Judge Arthur D. Spatt on 1/23/2018. (Coleman, Laurie) (Entered: 01/23/2018)

01/26/2018 576 NOTICE of Appearance by Allison Michele Wuertz on behalf of MHANY Management, Inc., New York Communities For Change, Inc. (aty to be noticed) (Wuertz, Allison) (Entered: 01/26/2018)

01/31/2018 577 Letter regarding Proposed Scheduling Order on Motion for Attorneys' Fees by MHANY Management, Inc., New York Communities For

Change, Inc. (Attachments: # 1 Proposed Scheduling Order on Motion for Attorneys' Fees) (Brown, Stanley) (Entered: 01/31/2018)

02/01/2018

578 SCHEDULING ORDER: IT IS HEREBY ORDERED that briefing on the Second FeesMotion shall proceed as follows: I. Plaintiffs' Second Fees Motion shall be filed no later than Friday, March 23, 2018; 2. Garden City's opposition shall be served no later than Friday, April 27, 2018; and 3. Plaintiffs' reply in further support of their motion shall be filed no later than Friday, May 11, 2018.. Ordered by Judge Arthur D. Spatt on 2/1/2018. (Bollbach, Jean) (Entered: 02/01/2018)

02/13/2018

NOTICE re 570 Bill of Costs. Plaintiff's bill of costs does not include the affidavit required by Local Civil Rule 54.1(a). As such, costs are not taxed at this time, without prejudice to refiling in conformity with the requirements of Fed. R. Civ. P. 54(d) and Local Civ. R. 54.1, within thirty days of this notice. Douglas C. Palmer, Clerk of Court, by Brenna B. Mahoney, Chief Deputy for Court Operations. (Mahoney, Brenna) (Entered: 02/13/2018)

02/23/2018

579 Joint MOTION for Extension of Time to Complete Discovery by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 02/23/2018)

02/26/2018

ORDER re 579 : The time to complete all discovery is extended to and including June 19, 2018. Due to the length of extensions, no further extensions will be permitted absent a showing of good cause. Ordered by Magistrate Judge Arlene R. Lindsay on 2/26/2018. c/ecf (Imrie, Robert) (Entered: 02/26/2018)

03/06/2018

580 BILL OF COSTS 570 by MHANY Management, Inc., New York Communities For Change, Inc. (Attachments: # 1 Declaration of Benjamin A. Fleming in Support of Plaintiffs' Taxation of Costs, # 2 Exhibit A) (Fleming, Benjamin) (Entered: 03/06/2018)

03/22/2018

Costs Taxed in amount of $ 15,628.25 against the Garden City Defendants, and included in the Judgment. The cost of the trial transcripts has been disallowed because of the short duration of the trial. See Hogan v. Novartis Pharm. Corp., 2012 WL 5898473, at *3 (E.D.N.Y. Nov. 20, 2012). Douglas C. Palmer, Clerk of Court, by Brenna B. Mahoney, Chief Deputy for Court Operations. (Mahoney, Brenna) (Entered: 03/22/2018)

03/23/2018 581 MOTION for Attorney Fees by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 03/23/2018)

03/23/2018 582 MEMORANDUM in Support re 581 MOTION for Attorney Fees filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 03/23/2018)

03/23/2018

583 AFFIDAVIT/DECLARATION in Support re 581 MOTION for Attorney Fees (Declaration of Stanley Brown) filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Exhibit 1 - Village brief on appeal, # 2 Exhibit 2 Hogan Lovells fee records, # 3 Exhibit 3 Hogan Lovells costs records) (Brown, Stanley) (Entered: 03/23/2018)

03/23/2018

584 AFFIDAVIT/DECLARATION in Support re 581 MOTION for Attorney Fees (Declaration of Joseph Rich) filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Exhibit 1 - Lawyers' Committee fee records, # 2 Exhibit 2 - Lawyers' Committee costs records) (Brown, Stanley) (Entered: 03/23/2018)

03/23/2018

585 AFFIDAVIT/DECLARATION in Support re 581 MOTION for Attorney Fees (Declaration of Frederick Brewington) filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Exhibit A - Brewington firm fee records, # 2 Exhibit B - Second Circuit decision on appeal) (Brown, Stanley) (Entered: 03/23/2018)

03/26/2018

Electronic ORDER. On 03/23/2018, the Plaintiffs filed a motion for attorneys' fees 581 . As the motion is not dispositive, it is deemed referred to United States Magistrate Judge Arlene R. Lindsay for all purposes. Therefore, any requests related to the motion are to be directed to Magistrate Judge Lindsay. So Ordered by Judge Arthur D. Spatt on 3/26/2018. (Fell, Christopher) (Entered: 03/26/2018)

04/04/2018

586 Letter (Joint) with Defendant County of Nassau addressed to Judge Arthur D. Spatt requesting a stay while they pursue settlement by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 04/04/2018)

04/05/2018

587 ORDER re 586 Letter requesting a stay while pursuing settlement. The parties' request to stay discovery is granted. The parties are directed to file a status update by May 15, 2018. SO ORDERED by Judge Arthur D. Spatt on 4/5/2018. (Coleman, Laurie) (Entered: 04/05/2018)

04/27/2018

588 AFFIDAVIT/DECLARATION in Opposition re 581 MOTION for Attorney Fees filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit A - Transcript) (Ronneburger, Ariel) (Entered: 04/27/2018)

04/27/2018

589 AFFIDAVIT/DECLARATION in Opposition re 581 MOTION for Attorney Fees filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Attachments: # 1 Exhibit A - Anaylis and Audit) (Ronneburger, Ariel) (Entered: 04/27/2018)

04/27/2018

590 MEMORANDUM in Opposition re 588 Affidavit in Opposition to Motion, 589 Affidavit in Opposition to Motion filed by Garden City Board of Trustees, Incorporated Village of Garden City. (Ronneburger, Ariel) (Entered: 04/27/2018)

05/11/2018

591 Letter motion (Joint) with Defendant County of Nassau addressed to Judge Arthur D. Spatt requesting an extension of the stay while they further pursue settlement by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) Modified on 5/14/2018 to change event type to motion. (Coleman, Laurie). (Entered: 05/11/2018)

05/11/2018 592 REPLY in Support re 581 MOTION for Attorney Fees filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 05/11/2018)

05/11/2018

593 AFFIDAVIT/DECLARATION in Support re 581 MOTION for Attorney Fees filed by MHANY Management, Inc., New York Communities For Change, Inc.. (Attachments: # 1 Exhibit 1, # 2Exhibit 2) (Fleming, Benjamin) (Entered: 05/11/2018)

05/14/2018

594 ORDER re 591 letter motion (Joint) with Defendant County of Nassau requeting an extension of the stay while they further pursue settlement. All deadlines are hereby stayed until June 14, 2018. SO ORDERED by Judge Arthur D. Spatt on 5/14/2018. (Coleman, Laurie) (Entered: 05/14/2018)

06/13/2018

595 Letter motion (Joint) with Defendant County of Nassau addressed to Judge Arthur D. Spatt Spatt requesting a second extension of the stay while they further pursue settlement by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) Modified on 6/13/2018 for statistical purposes (Coleman, Laurie). (Entered: 06/13/2018)

06/13/2018

596 ORDER re 595 joint letter motion requesting a second extension of the stay. Application granted. Ordered by Judge Arthur D. Spatt on 6/13/2018. (Coleman, Laurie) (Entered: 06/13/2018)

07/31/2018

597 Letter (Joint) with Defendant County of Nassau addressed to Judge Arthur D. Spatt requesting an additional extension of the stay by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 07/31/2018)

08/02/2018

598 ORDER re 597 Letter. The parties' request to stay discovery through September 14, 2018 is granted. If the parties are unable to finally resolve this matter by September 14, 2018, discovery shall recommence and the parties will complete discovery by on before January 14, 2019. The parties are directed to file a status update by September 14, 2018. SO ORDERED by Judge Arthur D. Spatt on 8/2/2018. (Coleman, Laurie) (Entered: 08/02/2018)

08/02/2018

Email Notification Test - DO NOT REPLY. (Coleman, Laurie) (Entered: 08/02/2018)

08/31/2018 599 MOTION to Withdraw as Attorney Joseph D. Rich by MHANY Management, Inc., New York Communities For Change, Inc.. (Silverstein, Thomas) (Entered: 08/31/2018)

09/04/2018

600 ORDER granting 599 Motion to Withdraw as Attorney. Attorney Joseph D. Rich terminated for Plaintiff and Plaintiff-Intervenor in the above-captioned case. SO ORDERED by Judge Arthur D. Spatt on 9/4/2018. (Coleman, Laurie) (Entered: 09/04/2018)

09/14/2018

601 Letter (Joint) with Defendant County of Nassau addressed to Judge Arthur D. Spatt requesting an additional extension of the stay by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 09/14/2018)

09/17/2018

Electronic ORDER. The parties' request to stay discovery through September 28, 2018 is granted. If the parties are unable to finally resolve this matter by September 28, 2018, discovery shall recommence and the parties will complete discovery by or before January 28, 2018. The Court will conduct an in-person conference on October 1, 2018 at 9:00 AM in Courtroom 1020 of the Long Island Courthouse to discuss the status of the case. Any requests for an adjournment must be made on ECF, and must include three alternative proposed dates previously agreed upon by the parties. So Ordered by Judge Arthur D. Spatt on 9/17/2018. (Kanellopoulos, Paul) (Entered: 09/17/2018)

09/27/2018 602 Joint MOTION to Adjourn Conference by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 09/27/2018)

09/27/2018

603 ORDER granting 602 Motion to Adjourn Conference. Request to adjourn the conference is granted to October 12, 2018 at 1:30 p.m. Request to extend the stay of discovery is granted to October 12, 2018. Ordered by Judge Arthur D. Spatt on 9/27/18. Movant to serve parties by fax. (Coleman, Laurie) (Entered: 09/28/2018)

10/12/2018

605 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Status Conference held on 10/12/2018. Counsel for all sides present. Other: Stay extended for 2 weeks for the reasons stated on the record. Counsel to submit the letter extending this matter. (Court Reporter Fred Geurino.) (Coleman, Laurie) (Entered: 10/17/2018)

10/16/2018

604 Letter (Joint) enclosing a proposed Order for your consideration extending the discovery stay until October 26, 2018 by MHANY Management, Inc., New York Communities For Change, Inc. (Attachments: # 1 Proposed Order to Extend Stay of Discovery) (Brown, Stanley) (Entered: 10/16/2018)

10/17/2018

606 ORDER to Extend Stay of Discovery. IT IS HEREBY ORDERED that the Court's discovery stay be extended until October 26, 2018 so that the parties can focus on final settlement issues and the discovery deadline be extended accordingly to February 11, 2019. SO ORDERED by Judge Arthur D. Spatt on 10/17/2018. (Coleman, Laurie) (Entered: 10/17/2018)

10/22/2018

607 STATUS REPORT by Incorporated Village of Garden City (Attachments: # 1 Exhibit A - 555 Stewart Resolution to Approve Application) (Ronneburger, Ariel) (Entered: 10/22/2018)

10/26/2018 608 Joint MOTION to Stay of discovery, continuing until 11.9.18 by County of Nassau. (Kreppein, Scott) (Entered: 10/26/2018)

10/27/2018

Electronic ORDER granting 608 Motion to Stay. The Court hereby extends the stay of discovery until November 9, 2018. So Ordered by Judge Arthur D. Spatt on 10/27/2018. (Kanellopoulos, Paul) (Entered: 10/27/2018)

11/09/2018 609 Joint MOTION for Extension of Time to Complete Discovery until 6.10.19 and extend stay until 2.8.19 by County of Nassau. (Kreppein, Scott) (Entered: 11/09/2018)

11/13/2018

Electronic ORDER granting 609 Motion for Extension of Time to Complete Discovery. The parties' request to stay discovery through February 8, 2019 is granted. If the parties are unable to finally resolve this matter by then, discovery shall recommence and the parties will complete discovery by or before June 10, 2019. So Ordered by Judge Arthur D. Spatt on 11/13/2018. (Kanellopoulos, Paul) (Entered: 11/13/2018)

11/14/2018 610 Letter regarding fee application by MHANY Management, Inc. (Brewington, Frederick) (Entered: 11/14/2018)

11/27/2018 611 ORDER re 581 : See attached Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 11/27/2018. c/ecf (Imrie, Robert) (Entered: 11/27/2018)

12/10/2018

612 Letter addressed to Honorable Arlene R. Lindsay respectfully request that the Court enter a revised order awarding Plaintiffs $5,255,098.97 in fees and costs by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 12/10/2018)

12/13/2018

613 Letter to Honorable Arlene R. Lindsay by Garden City Board of Trustees, Incorporated Village of Garden City (Ronneburger, Ariel) (Entered: 12/13/2018)

12/13/2018

614 AMENDED ORDER re 612 , 613 , 615 : See the attached Order for details. The Clerk of Court is directed to enter judgment in the amount of $5,255,108.94. Ordered by Magistrate Judge Arlene R. Lindsay on 12/13/2018. c/ecf (Imrie, Robert) (Modified to correct a typographical error on on 12/17/2018) (Imrie, Robert). (Entered: 12/13/2018)

12/14/2018

615 Letter regarding the Courts Amended Order on Plaintiffs Motion for Fees and Costs 614 by MHANY Management, Inc., New York Communities For Change, Inc. (Attachments: # 1 Exhibit A - Proposed Amended Order) (Brown, Stanley) (Entered: 12/14/2018)

12/20/2018

616 JUDGMENT for Attorneys' Fees & Costs: ORDERED AND ADJUDGED that Plaintiffs are awarded attorneys fees and cost against Defendants the Incorporated Village of Garden City and the Garden City Board of Trustees in the amount of $5,255,108.94, to be distributed in the manner described in the December 13, 2018 Amended Order.Ordered by Clerk of Court on 12/20/2018. (Toritto, Jim) (Entered: 12/20/2018)

02/08/2019 617 Letter requesting a status conference by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 02/08/2019)

02/12/2019

Electronic ORDER. The Court will conduct an in-person conference on February 25, 2019 at 10:00 AM in Courtroom 1020 of the Long Island Courthouse to discuss the status of the case. Any requests for an adjournment must be made on ECF, and must include three alternative proposed dates previously agreed upon by the parties. So Ordered by Judge Arthur D. Spatt on 2/12/2019. (Kanellopoulos, Paul) (Entered: 02/12/2019)

02/12/2019 618 NOTICE of Appearance by Eric J. Lobenfeld on behalf of MHANY Management, Inc., New York Communities For Change, Inc. (aty to be noticed) (Lobenfeld, Eric) (Entered: 02/12/2019)

02/20/2019 619 Letter MOTION to Adjourn Conference currently scheduled for February 25, 2019 by MHANY Management, Inc., New York Communities For Change, Inc.. (Brown, Stanley) (Entered: 02/20/2019)

02/21/2019

ORDER granting 619 Motion to Adjourn Conference. The February 25, 2019 status conference is hereby adjourned to March 4, 2019 at 10:00 AM. So Ordered by Judge Arthur D. Spatt on 2/21/2019. (Kanellopoulos, Paul) (Entered: 02/21/2019)

03/04/2019 620 NOTICE of Appearance by Laurel R. Kretzing on behalf of County of Nassau (aty to be noticed) (Kretzing, Laurel) (Entered: 03/04/2019)

03/04/2019

621 Proposed Scheduling Order by County of Nassau (Attachments: # 1 Proposed Order staying discovery until 3.25 and extending disclosure end date until 7.29.19) (Kreppein, Scott) (Entered: 03/04/2019)

03/04/2019

622 MINUTE ENTRY for proceedings held before Judge Arthur D. Spatt: Civil Cause for Conference held on 3/4/2019. APPEARANCES: Eric J. Lobenfeld, Esq. for Plaintiff; Jared A. Kasschau, Esq. for Defendant. Case called. Counsel for all sides present. Other: Mr. Kasschau was advised that he must file a Notice of Appearance today. Counsel to submit a joint proposed order extending the stay of discovery. Matter adjourned to 4/1/2019 at 9:00 a.m. (Court Reporter Fred Geurino.) (Coleman, Laurie) (Additional attachment(s) added on 3/8/2019: # 1) (Coleman, Laurie). Modified on 3/8/2019 to include adjournment date (Coleman, Laurie). (Entered: 03/05/2019)

03/04/2019

623 ORDER: IT IS HEREBY ORDERED that the Court's discovery stay be extended until March 25, 2019 and the discovery deadline be extended accordingly to July 29, 2019. So Ordered by Judge Arthur D. Spatt on 3/4/2019. (Coleman, Laurie) (Entered: 03/05/2019)

03/04/2019

Set/Reset Hearings: Conference set for 4/1/2019 09:00 AM in Courtroom 1020 before Judge Arthur D. Spatt. (Coleman, Laurie) (Entered: 03/08/2019)

03/05/2019 624 NOTICE of Appearance by Jared Andrew Kasschau on behalf of County of Nassau (aty to be noticed) (Kasschau, Jared) (Entered: 03/05/2019)

03/14/2019

625 Letter advising the Court that the proposed settlement has been approved by the legislature by County of Nassau (Kreppein, Scott) (Entered: 03/14/2019)

03/15/2019 626 STIPULATION of Discontinuance (so-ordered) by MHANY Management, Inc., New York Communities For Change, Inc.

(Attachments: # 1 Exhibit Settlement Agreement) (Brown, Stanley) (Entered: 03/15/2019)

03/15/2019

627 Letter to Judge Spatt dated March 15, 2019 re: so-ordering the proposed Stipulation of Discontinuance by MHANY Management, Inc., New York Communities For Change, Inc. (Brown, Stanley) (Entered: 03/15/2019)

03/18/2019

628 ORDER DISMISSING CASE re 626 stipulation of discontinuance. The above-captioned action is hereby discontinued with prejudice, except without prejudice to this Court's retention of jurisdiction as set out in paragraph 2, and without costs or expenses to any party except as specifically provided for in the Settlement Agreement. Case closed. SEE ATTACHED ORDER for details. So Ordered by Judge Arthur D. Spatt on 3/18/2019. (Coleman, Laurie) Modified on 3/20/2019 to correct a clerical error (Coleman, Laurie). (Entered: 03/19/2019)