PREET BHARARA United States Attorney Southern District of New York By: SARAH E. LIGHT
BRIAN M. FELDMAN LIYU Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel. Nos. (212) 637-2774/2777/2734 Fax Nos. (212) 637-2717 Sarah.Light@usdoj.gov Brian.Feldman@usdoj.gov Li.Yu@usdoj.gov
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
- against ­
L&M 93RD STREET LLC and COSTAS KONDYLIS & PARTNERS, LLP,
Defendants.

ECFCASE COMPLAINT 10 Civ. - - -

Plaintiff United States of America (the "United States") alleges as follows: 1. This action is brought by the United States to enforce the Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988 (the "Fair Housing Act" or the "Act"), 42 U.S.C. §§ 3601-3619. As set forth in full below, the United States alleges that the Defendants, the developer and architect of The Melar, a residential apartment complex in Manhattan, have unlawfully discriminated against persons with disabilities under the Fair Housing Act by failing to design and construct The Melar so as to be accessible to persons with disabilities.

Jurisdiction and Venue

2.

This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and

1345 and 42 U.S.C. § 3614(a). 3. Venue is proper pursuant to 28 U.S.C. § 1391(b) and (c) because the claims

alleged in this action arose in the Southern District of New York, and concern or otherwise

relate to real property located in this District. The Property

4. The Melar is a residential apartment building located at 250 West 93rd Street

in New York City. The complex consists of a 22-story tower with elevator access, and

contains 143 rental dwelling units, as well as public and common use areas, including a

health club and a landscaped roof terrace.

5. The rental units at The Melar are "dwellings" within the meaning of 42

U.S.C. § 3602(b) and "dwelling units" within the meaning of24 C.F.R. § 100.21.

6. The Melar was designed and constructed for first occupancy after March 13,

1991. All of the residential units are "covered multifamily dwellings" within the meaning of

42 U .S.C. § 3604(f)(7) and 24 C.F.R. § 100.21. The complex is subject to the accessibility

requirements of 42 U.S.C. § 3604(f)(3)(C) and 24 C.F.R. § 100.205(a), (c).

The Defendants

7. L&M 93rd Street LLC, a Delaware limited liability company, is the builder

and developer of The Melar, and, in those capacities, designed and constructed the complex.

2 


8.

Costas Kondylis and Partners, LLP, is a New York limited liability

partnership that drew the architectural plans for The Melar and, in that capacity, designed

and constructed the complex. Inaccessible Features of The Melar

9.

The Melar, which Defendants designed and constructed, is inaccessible to

persons with disabilities.

10. For instance, Defendants designed and constructed:

a.

Excessively high thresholds, interfering with accessible routes for

persons in wheelchairs;

b. Terraces inaccessible to persons in wheelchairs;

c.

Insufficient clear floor space within bathrooms for maneuvering by

persons in wheelchairs;

d. Bathroom fixtures precluding installation of bathroom grab bars;

e. Kitchen entries too narrow to accommodate persons in wheelchairs;

f.

Kitchen ranges not usable by persons in wheelchairs;

g. Kitchen electrical outlets inaccessible to persons in wheelchairs;

h. Walk-in closets inaccessible to persons in wheelchairs;

i.

Common area doors requiring excessive force for persons with certain

disabilities;

j.

Common area doors closing too quickly for disabled persons to pass

through;

k. Common area bathrooms not usable by persons in wheelchairs;

3 


l.

Mailboxes inaccessible to persons in wheelchairs;

m. Protruding objects in common areas, not detectable by canes of

visually impaired persons;

n.

Features within the fitness room inaccessible to persons in

wheelchairs;

o.

Features within the laundry room inaccessible to persons in

wheelchairs; and

p.

Insufficient clear floor space within basement storage room for

maneuvering by persons in wheelchairs.

11. In designing and constructing The Melar in this manner, Defendants failed to

comply with all applicable State and local design and construction provisions, including

New York City Local Law 58.

Other Properties'

12. Upon information and belief, some or all of the Defendants have designed

and constructed other multifamily housing complexes for first occupancy after March 13,

1991, which are also subject to the Fair Housing Act's accessibility requirements, and which

also may not comply with those requirements.

4 


Fair Housin2 Act Claims 13. Plaintiff re-alleges and incorporates by reference the allegations set forth in

paragraphs 1-12 above. 14. Defendants violated 42 U.S.C. § 3604(f)(3)(C) and 24 C.F.R. § 100.205(c),

by failing to design and construct The Melar in such a manner that:

a.

the public use and common use portions of the dwellings are readily

accessible to and usable by persons with disabilities; and

b.

all premises within such dwellings contain the following features of

adaptive design:

i) an accessible route into and through the dwelling;

ii) light switches, electrical outlets, thermostats, and other

environmental controls in accessible locations; and

iii) usable kitchens and bathrooms, such that an individual using a

wheelchair can maneuver about the space.

15. Defendants, through the actions and conduct referred to in the preceding 


paragraph, have: 
 a.
b.

Discriminated in the sale or rental of, or otherwise made unavailable or denied, dwellings to buyers or renters because of a disability, in violation of 42 U.S.C. § 3604(f)(1) and 24 C.F.R. § 100.202(a); Discriminated against persons in the terms, conditions, or privileges of the sale or rental of a dwelling, or in the provision of services or

5

facilities in connection with a dwelling, because of a disability, in

violation of42 U.S.C. § 3604(f)(2) and 24 C.F.R. § 100.202(b); and

c.

Failed to design and construct dwellings in compliance with the

accessibility and adaptability features mandated by 42 U.S.C.

§ 3604(f)(3)(C) and 24 C.P .R. § 100.205.

16. The conduct of Defendants described above constitutes:

a.

A pattern or practice of resistance to the full enjoyment of rights

granted by the Fair Housing Act, 42 U.S.C. §§ 3601-3619; and/or

b. A denial to a group of persons of rights granted by the Fair Housing

Act, 42 U.S.C. §§ 3601-3619, which denial raises an issue of general

public importance.

17. Persons who may have been the victims of Defendants' discriminatory

housing practices are aggrieved persons under 42 U .S.C. § 3602(i), and may have suffered

injuries as a result of Defendants' conduct described above.

18. Defendants' discriminatory actions and conduct described above were

intentional, willful, and taken in disregard for the rights of others.

Prayer for Relief

WHEREFORE, the United States prays that the Court enter an order that:

1. Declares that the policies and practices of Defendants, as alleged herein,

violate the Fair Housing Act; 2. Enjoins Defendants, their officers, employees, agents, successors, and all 


other persons in active concert or participation with any of them, from: 


6 


a.

Failing or refusing to bring the dwelling units and public use and

common use areas at The Melar into compliance with 42 U.S.C. § 3604(f)(3)(C), and 24 C.F.R. § 100.205;

b.

Failing or refusing to take such affirmative steps as may be necessary

to restore, as nearly as practicable, persons harmed by Defendants'

unlawful practices to the position they would have been in but for the

discriminatory conduct; and

c. Designing and/or constructing any covered multifamily dwellings in

the future that do not contain the accessibility and adaptability features required by 42 U.S.C. § 3604(t)(3)(C), and 24 C.F.R.

§ 100.205; d. Failing or refusing to retrofit the dwelling units and public and

common use areas in these and other covered multifamily dwellings

designed and constructed by the Defendants to bring them into

compliance with the requirements of 42 U.S.C. § 3604(f)(3)(C); and

e. Failing or refusing to conduct a compliance survey at all covered multifamily dwellings designed and constructed by the Defendants to determine whether the retrofits ordered in paragraph 2(a) and 2(d) were made properly;

3. Awards appropriate monetary damages, pursuant to 42 U.S.C. § 3614(c)(l)

and § 3614(d)(l)(B), to each person harmed by Defendants' discriminatory conduct and

practices; and

7

4. Assesses a civil penalty against each Defendant in the maximum amount authorized by 42 U.S.C. § 3614(d)( 1)(C) to vindicate the public interest.
The United States further prays for such additional relief as the interests of justice
may require.
ER'IC H. FIOLDER, JR. 
 Attorney General of the United States 

~[C7¥
TI-fC)MAS E. PEREZ ~ Assistant Attorney General Civil Rights Division
PREET BI-IARARA States Attornev
- ;~ ?---­
RAH E. LIGHT BRIANM. FELDMAN LJ YU Assistant LJ nited States Attorneys 86 Chambers Street, 3rd Floor New York, New York I 0007 Telephone Nos. (212) 637-2774/2777/2734 Facsimile Nos. (212) 637-2717
Sarah.Lighti£~usdoj.gov
Brian.FeIdman(~usdoj. gov 1..." i. Yu(~usdoj .gov
8 


 
 Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 1 of 12

fB) [§ ©[§ n\Yl[§ rrJl

L'NITED STATES DISTRICT COURT

U\\ WJ JUl 222011

SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA,

ECFCASE

CHAMBERS OF RICHARD M. BERMAN
U.S.D.J.

Plaintiff,
against L&M 93RD STREET LLC and COSTAS KONDYLIS & PARTNERS, LLP,
Defendants.

CONSENT DECREE BETWEEN THE UNITED STATES OF AMERICA AND DEFENDANT COSTAS KONDYLIS & PARTNERS, LLP
10 Civ. 7495 (RM.Ir:====,"~=:=::=:=====
USDC SONY DOCUMENT

ELECTRONICALLY FILED

A. Background

INTRODUCTION

DOC#:_ _
DATE FI~~I~:¢?f_- •

This Consent Decree is entered into between the United States of America (the "United

States") and Costas Kondylis & Partners. LLP (the "Architect Defendant"), a New York limited

liability partnership that drew the architectural plans for The Melar Apartments ("The Melar"). a

residential apartment building in New York, New York, and, in that capacity, designed and/or

constructed The Melar;

WHEREAS, the United States brought this action (the "Action") to enforce provisions of

the Fair Housing Act ("FHA"), codified at 42 U.S.C. §§ 3601-3619. Specifically, the United

States' complaint in this Action alleges that defendants have engaged in a pattern or practice of

discrimination, and have denied rights to a group of persons in a manner raising an issue of

general public importance, including by failing to design and/or construct the Melar in

accordance with the requirements of the FHA, 42 U.S.C. § 3604(t)(3)(C);

WHEREAS, The Melar is subject to the accessible design and construction requirements

of the FHA, 42 U.S.c. § 3604(t)(3)(C);

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 2 of 12
WHEREAS, the Architect Defendant denies the allegations of the complaint and enters into this Consent Decree for settlement purposes only, prior to motion practice or trial, without admitting any issue offact or law; B. Relevant Requirements of the Fair Housing Act
WHEREAS, the FHA provides that residential buildings with four or more dwelling units, and one or more elevators, designed and constructed for first occupancy after March 13, 1991, are "covered multifamily dwellings" ("Covered Multifamily Dwellings") and must include certain basic features of accessible and adaptive design to make such units accessible to or adaptable for use by persons with disabilities, 42 U.S.c. §§ 3604(f)(3)(C) and (f)(7)(A);
WHEREAS, the accessible and adaptive design provisions of the FHA require that for Covered Multifamily Dwellings: (i) the public use and common use portions of such dwellings are readily accessible to and usable by persons with a disability; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by persons with a disability using wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C) (these provisions and features are referred to herein as the "Accessible Design Requirements");
Page 2 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 3 of 12

C. Violations at The Melar

WHEREAS, The Melar is a residential rental apartment building located at 250 West

93rd Street in New York, New York. The building consists of a tower with elevator access, with

143 rental apartment units, as well as public and common use areas. The building features a

landscaped sun terrace, a fitness center, and a residents' lounge;

WHEREAS, the United States alleges in its complaint that it has inspected The Me1ar

and specifically identified, inter alia, the following failures to meet the Accessible Design

Requirements at The Melar:

•

Excessively high thresholds, interfering with accessible routes lor persons in

whee lchairs;

•

Terraces inaccessible to persons in wheelchairs;

•

Insufficient clear floor space within bathrooms for maneuvering by persons in

wheelchairs;

•

Bathroom fixtures precluding installation of bathroom grab bars;

•

Kitchen entries too narrow to accommodate persons in wheelchairs;

•

Kitchen ranges not usable by persons in wheelchairs;

Kitchen electrical outlets inaccessible to persons in wheelchairs;

•

Walk-in closets inaccessible to persons in wheelchairs;

•

Common area doors requiring excessive force for persons with certain

disabilities;

•

Common area doors closing too quickly for disabled persons to pass through;

Common area bathrooms not usable by persons in wheelchairs;

•

Mailboxes inaccessible to persons in wheelchairs;

Page 3 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 4 of 12

Protruding objects in common areas, not detectable by canes ofvisually impaired

persons;

Features within the fitness room inaccessible to persons in wheelchairs;

•

Features within the laundry room inaccessible to persons in wheelchairs; and

•

Insufficient clear floor space \,"ithin basement storage room for maneuvering by

persons in wheelchairs.

D. Consent of the Parties to Entry of this Order

WHEREAS, the United States and the Architect Defendant (collectively, the "parties")

agree that this Court has jurisdiction over the subject matter of this Action pursuant to 28 US.c.

§§ 1331 and 1345, and 42 U.S.C. § 3614(a). The parties further agree that this Action should be

resolved without further proceedings and without an evidentiary hearing or a trial; and

WHEREAS, the parties agree to the entry of this Consent Decree.

It is hereby ORDERED, ADJUDGED, and DECREED:

I. GENERAL INJUNCTION

I. The Architect Defendant and each of its officers, employees, agents, successors,

and assigns, and all other persons in active concert or participation with them, are enjoined from

discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. § 3604.

II. NON-DISCRIMINATION IN OTHER DESIGN AND CONSTRUCTION 2. The Architect Defendant shall maintain, and provide to the United States upon request, the following information and statements regarding any Covered Multifamily Dwelling

intended to be designed, iu whole or in part, by the Architect Defendant:

•

the name and address of the project;

•

a description of the project and the individual units;

Page 4 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 5 of 12

•

the name, address, and telephone number of the civil engineer(s) involved with

the project;

•

the name, address and telephone number of the architect(s) who are employed or

retained by the Architect Defendant and are involved with the project;

•

a statement from all architcct(s) who arc employed or retained by the Architect

Defendant and are involved with the project, acknowledging and describing

his/her knowledge of and training in the requirements of the Fair Housing Act and

tbe Guidelines, and in the field of accessible site design, certifying that he/she has

reviewed the architectural plans for the project and that the design specifications

therein fully comply with the requirements of the FHA, and stating that the design

specifications comply with the Guidelines, another H"lJD-recognized safe harbor,

or the accessibility specifications of an applicable Slate or municipal building

code (to the extent that design or construction in compliance with such building

code(s) does not violate the FHA).

3. If the architectural plans referred to in paragraph 2 are revised, and the revisions

would have any impact on whether the dwellings or complex complies with the Fair Housing Act

and/or the Guidelines, another safe harbor recognized by the United States Department of

Housing and Urban Development CHUD"), or the accessibility specifications of an applicable

State or municipal building code (to the extent that design or construction in compliance with

such building code(s) does not violate the FHA), the Architect Defendant shall obtain, maintain,

and provide to the United States upon request, a statement from the architcct(s) who are

employed or retained by the Architect Defendant and are involved with the project, as

applicable, that aU specifications in the revised engineering documents or architectural plans, as

Page 5 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 6 of 12
pertinent, comply with the requirements of the Fair Housing Act, as well as the Guidelines, another HUD-recognized safe harbor, or the accessibility specifications of an applicable State or municipal building code (to the extent that design or construction in compliance with such building code(s) does not violate the FHA).
4. For the term of this Consent Decree, if the Architect Defendant prepares any architectural or site plans, drawing, or blueprints for covered multi-family housing, as defined in the Fair Housing Act, it shall include on such plans, drawing, or blueprints a statement attesting to compliance with the Fair Housing Act, and the Architect Defendant shall maintain and provide such plans, drawing, or blueprints to the United States upon request.
5. The Architect Defendant will make its designs for all new construction of Covered Multifamily Dwellings fully compliant with the Accessible Design Requirements, the Americans with Disabilities Act, and the Americans with Disabilities Act Accessibility Standards to the extent applicable to Covered Multifamily Dwellings. Moreover, with respect to all new construction of Covered Multifamily Dwellings outside of New York City, the Architect Defendant shall make its design(s) for all such construction fully compliant with the Guidelines or any other safe harbor recognized by HUD. In addition, with respect to all new construction of Covered Multifamily Dwellings within New York City, the Architect Defendant shall make its designs for all such construction fully compliant with either: (a) the Guidelines or any other safe harbor recognized by HUD; or (b) the accessibility specifications of any applicable State or municipal building code (to the extent that design or construction in compliance with such building code(s) does not violate the FHA).
III. PAYMENT TO THE UNITED STATES
Page 6 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 7 of 12
6. Within 30 days of the date of the entry of this Consent Decree, the Architect Defendant shall pay the United States FORTY THOUSAND DOLLARS ($40,000) pursuant to 42 U.S.c. § 36l4(d)(1)(C) to vindicate the public interest. Said sum shall be paid by submitting a check made payable to the "United States of America" to the United States.
IV. EDUCATIONAL PROGRAM 7. Within 30 days of the entry of this Consent Decree, the Architect Defendant shall provide a copy of this Consent Decree to all its agents and employees involved in the design or construction of The Mclar, and shall secure a signed statement from each such agent or employee acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix A. 8. During the term of this Consent Decree, any new employee or agent of the Architect Defendant who will be involved in the design or construction of any Covered Multifamily Dwelling shall, within 30 days after the date on which he or she commences an employment or agency relationship with the Architect Defendant, be given a copy of this Consent Decree by the Architect Defendant, and the Architect Defendant shall require each such new employee or agent to sign a statement, acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix A. 9. The Architect Defendant shall also ensure that it and its employees, as well as any entities (e.g., firms) acting as its agent, who are involved in the design or construction of any Covered Multifamily Dwelling have a copy of, are familiar with, and personally have reviewed, the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991), and the United States
Page 7 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 8 of 12
Department of Housing and Urban Development, Fair Housing Act Design Manual, A Manual to Assist Builders in Meeting the Accessibility Requirements of the Fair Housing Act (August 1996, Rev. April 1998).
10. Within 90 days of the date of entry of this Consent Decree, the Architect Defendant and all its employees and agents whose duties, in whole or in part, involve or will involve supervision over the development, design and/or construction of Covered Multifamily Dwellings shall undergo training on the design and construction requirements of the Fair Housing Act. l The training shall be conducted by a qualified third-party individual, not associated with the Architect Defendant or its counsel, and approved in advance by the Department of Justice; and any expenses associated with this training shall be borne by the Architect Defendant. The Architect Defendant shall provide to the United States, 30 days before the training, the name(s), addressees) and telephone number(s) of the trainer(s); and copies of the training outlines and any materials to be distributed by the trainers. The Architect Defendant shall provide to the United States certifications executed by all its covered employees and agents confirming their attendance, in a form substantially equivalent to Appendix B.
V. NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS II. No later than 180 days after the date of entry of this Consent Decree, the Architect Defendant shall submit to the United States the executed certifications and statements required by paragraphs 7, 8, and 10 of this Consent Decree.
1 The educational program provided to employees not engaged in design, construction, or maintenance, such as sales and rental employees, may focus on the portions ofthe law that relate generally to accessibility requirements as opposed to technical design and construction requirements.
Page 8 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 9 of 12
12, Thereafter, during the term of this Consent Decree, the Architect Defendant shall, on the anniversary of the entry of this Consent Decree, submit to the United States any additional signed statements required by paragraph 8 of this Consent Decree,
13, For the duration ofthis Consent Decree, the Architect Defendant shall advise the United States in writing within 15 days of receipt of any written administrative or legal fair housing complaint regarding any Covered Multifamily Dwelling designed or constructed by the Architect Defendant, or against any of its employees or agents of working at or for any such property, alleging discrimination on the basis of disability in housing under federal law, Upon reasonable notice, the Architect Defendant shall also provide the United States all information it may request concerning any such complaint. The Architect Defendant shall also advise counsel for the United States, in writing, within 15 days of the resolution of any complaint.
14, For the term of this Consent Decree, the Architect Defendant is required to preserve all records related to this Consent Decree for The Melar and for any other Covered Multifamily Dwelling designed or constructed, in whole or in part, by the Architect Defendant during the duration of this Consent Decree, Upon reasonable notice to the Architect Defendant, representatives of the United States shall be permitted to inspect and copy any records of the Architect Defendant bearing on compliance with this Consent Decree at any and all reasonable times, provided, however, that the United States shall endeavor to minimize any inconvenience to the Architect Defendant from such inspections,
VI. DURATION OF CONSENT DECREE AND TERML"ATION OF LEGAL ACTION
IS, This Consent Decree shall remain in effect for three years following entry of this Consent Decree by the Court, By consenting to entry of this Consent Decree, the parties agree
Page 9 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 10 of 12

that in the event that the Architect Defendant engages in any futnre conduct occurring after entry

of this Consent Decree that leads to any judicial or administrative determination of a violation of

the Fair Housing Act, any civil penalty relating to such futnre conduct shall be calculated as if

",UlT the conduct were a "subsequent violation" purslllnt to 42 U.S.c. § 36l4(d)(I)(C)(ii). /WIIt..,·1I

i("'6

16. The Court,..,. rctain jurisdiction for the duration of this C~nsent Decree to

enforce the tenns of the Consent Decree. The United States may move the Court to extend the

duration of the Consent Decree in the interests ofjustice, and the Architect Defendant may

oppose such a motion. 17. The United States and the Architect Defendant shall endeavor, in good faith, to

resolve informally any differences regarding interpretation of and compliance with this Consent

Decree prior to bringing such matters to the Court for resolution. However, in the event of a

failure by the Architect Defendant to perform, in a timely manner, any act required by this

Consent Decree or otherwise for their failure to act in conformance with any provision thereof,

the United States may move this Court to impose any remedy authorized by law or equity,

including, but not limited to, an order requiring perfonnance of such act or deeming such act to

have been performed, and an award of any damages, costs, and reasonable attorney's fees which

may have been occasioned by the violation or failure to perform. The Architect Defendant may

oppose such a motion.

18. Upon the termination of this Consent Decree, the Court shall dismiss this Action

with prejudice. Such dismissal shall only release the Architect Defendant from claims by the

United States regarding alleged failures to design and construct The Melar pursuant to the FHA

as of the date of suit in this Action. Such a dismissal shall not release the Architect Defendant

from any other claims by the United States, including but not limited to any claims regarding

Page 10 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 11 of 12
other Covered Multifamily Dwellings designed and constructed by the Architect Defendant. and any claims regarding FHA violations at The Melar other than failures to design and construct The Melar as required by the FHA.
TIl. TIME FOR PERFORMANCE
19. Any time limits for performance imposed by this Consent Decree may be
extended by the mutual written agreement oftne United States and the Architect Defendant without Court approval.
TIll. COSTS OF LITIGATION 20, Each party to this litigation will bear its own costs and attorney's fees associated with this litigation, The undersigned apply for and consent to the entry of this Consent Decree:
For the United States:
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
By:
Page 11 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 12 of 12
• •

For Costas Kondylis & Partners.l.LP:
By: ~~;'Ml'1!ALf~~ MILBERMAKRlS PLOUSADIS & SElDEN, LLP
3 Barker Avenue, Sixth Floor White Plains, New York 10601 Telephone No. (914) 681-8700 Facsimile No. (914) 681-8709
CAlbanese@milbennarkis.com

SO

ORDERED this 121..
~~

day

Of_:r;""",-",~"-'g _

_

_- J '

2011.

HON.

UNITED STATES DISTRICT COURT JUDGE

Page 12 of 12

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 1 of 5

United States District Court
Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213

Date:
InRe: -v-

Case #:

(

)

Dear Litigant,
Enclosed is a copy of the judgment entered in your case.
Your attention is directed to Rule 4(a)(I) of the Federal Rules of Appellate Procedure, which requires that if you wish to appeal the judgment in your case, you must file a notice ofappeal within 30 days of the date of entry ofthe judgment (60 days if the United States or an officer or agency of the United States is a party).
If you wish to appeal the judgment but for any reason you are unable to file your notice of appeal within the required time, you may make a motion for an extension of time in accordance with the provision of Fed. R. App. P. 4(a)(5). That rule requires you to show "excusable neglect" or "good cause" for your failure to file your notice of appeal within the time allowed. Any such motion must first be served upon the other parties and then filed with the Pro Se Office no later than 60 days from the date of entry of the judgment (90 days if the United States or an officer or agency of the United States is a party).
The enclosed Forms I, 2 and 3 cover some common situations, and you may choose to use one of them if appropriate to your circumstances.
The Filing fee for a notice of appeal is $5.00 and the appellate docketing fee is $450.00 payable to the "Clerk of the Court, USDC, SDNY" by certified check, money order or cash. No personal cbecks are accepted.
Ruby J. Krajick, Clerk of Court
by: ________________________________
, Deputy Clerk

APPEAL FORMS
U.S.D.C. S.D.N.Y. CM/ECF Support Unit

Revised: May 4. 2010

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 2 of 5

United States District Court
Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213

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

I

I

I

-v-

I

I

I

I

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

NOTICE OF APPEAL

CIV.

( )

Notice is hereby given that _ _ _ _ _ _ _ _ _ _-;-_-:-_ _ _ _ _ _ _ _ _ _ __
(party)
hereby appeals to the United States Court ofAppeals for the Second Circuit from the Judgment [describe it]

entered in this action on the _ _ _ _ _ day of _ _ _ _--,--_ __

(day)

(month)

(year)

Date: _ _ _ _ _ __

(Signature) (Address) (City. State and Zip Code)
( )----
(Telephone Number)

Note: You may use this form to take an appeal provided that it is received by the office of the Clerk of the District Court within 30 days of the date on which the judgment was entered (60 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S.D.C. S.D.N.Y. CM/ECF Support Unit

2

Revised: May 4, 2010

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 3 of 5

United States District Court
Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213

------------------------------------------------------------)(
I I

I

-v-

I

I I I

------------------------------------------------------------)(

MOTION FOR E)(TENSION OF TIME TO FILE A NOTICE OF APPEAL

elY.

( )

Pursuant to Fed. R. App. P. 4(a)(5), _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ respectfully
(party)
requests leave to file the within notice of appeal out of time.
(party)
desires to appeal the judgment in this action entered on __________ but failed to file a
(day)
notice of appeal within the required number of days because:

[Explain here the "excusable neglect" or "good cause" which led to your failure to file a notice of appeal within the required number of days.)

(Signature)

(Address)

Date: _ _ _ _ _ _ _ __

(City, State and Zip Code)
( )---------
(Telephone Number)

Note: You may use this form, together with a copy of Form 1, if you are seeking to appeal a judgment and did not file a copy of Form 1 within the required time. If you follow this procedure, these forms must be received in the office of the Clerk of the District Court no later than 60 days of the date which the judgment was entered (90 days if the United States or an officer or agency ofthe United States is a party).

APPEAL FORMS

U.S. D.C. S.D.N.Y. CM/ECF Support Unit

3

Revised: May 4, 2010

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 4 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213

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

I

I

I

-\T-

I

I

I

I

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

NOTICE OF APPEAL AND
MOTION FOR EXTENSION OF TIME

civ.

( )

1.

Notice is hereby given that _ _ _ _ _ _ _ _ _-:-_ _ _ _ _ _ __ hereby appeals to

(party)

the United States Court of Appeals for the Second Circuit from the judgment entered on _ _ _ _ __

[Give a description of the judgment1

2.

In the event that this form was not received in the Clerk's office within the required time

_ _ _ _ _ _,---,--_ _ _ _ _ _ _ respectfully requests the court to grant an extension of time in
(party)
accordance with Fed. R. App. P. 4(a)(5).

a.

In support of this request, _ _ _ _ _ _ _ _,--,-_ _ _ _ _ _ _ _ states that

(party)
this Court's judgment was received on _ _ _-:-:-:-:_ _ _ _ _ and that this form was mailed to the

court on _ _ _ _ _ _ _ __

(date)

(date)

(Signature)

(Address)

Date: _ _ _ _ _ _ __

(City, State and Zip Code)
( )
(Telephone Number)

Note: You may use this form if you are mailing your notice of appeal and are not sure the Clerk of the District Court will receive it within the 30 days of the date on which the judgment was entered (60 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S.D.C. S.D.N.Y. CMIECF Support Unit

4

Revised: May 4, 2010

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 5 of 5

United States District Court Southern District of New York
Office ofthe Clerk U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

------------------------------------------------------------)(
I

I

I

-V-

I

I

I

I

------------------------------------------------------------)(

AFFIRMATION OF SERVICE

elY.

( )

I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, declare under penalty of perjury that I have

served a copy of the attached

upon whose address is: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____

Date: _ _ _ _ _ _ _ __
New York, New York
APPEAL FORMS U.S.D.C. S.D.N.Y. CM/ECF Support Unit

(Signature) (Address) (City. State and Zip Code)

5

Revised: May 4, 20 I0

 
 rm © fQ1 Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 1 of 29 [§ [§ I] \Yl [§

1M lliJ JUl 222011

UNITED STATES DISTRICT COURT SOUTHERN llISTRICT OF NEW YORK
UNITED STATES OF AMERICA,

ECFCASE

CHAMBERS OF RICHARD M. BERMAN
U.S.O.J.

- against-

Plaintiff,

CONSENT DECREE BETWEEN THE UNITED STATES OF AMERICA AND DEFENDANT L&M 93RD STREET LLC

L&M 93RD STREET LLC and COSTAS

10 Civ. 7495 (RM~

_

KONDYLIS & PARTNERS, LLP, Defendants.

\USDC SDNY
\IDOCL.:MENT IiELECTRONICALLY FILED

A. Background

ll;:FILEI) INTRODUCTION

i-~Z; I

This Consent Decree is entered into between the United States of America (the O'United

States") and defendant L&M 93rd Street LLC.

WHEREAS, the United States brought this action (the "Action") to enforce provisions of

the Fair Housing Act ("FHA"), codified at 42 U.S.c. §§ 3601-3619; specifically, the United

States' complaint in this Action alleges that defendants L&M 93rd Street LLC and Costas

Kondylis & Partners have engaged in a pattern or practice of discrimination, and have denied

rights to a group of persons in a manner raising an issue of general public importance, including

by failing to design andlor construct the Melar Apartments ("The Melar"), a residential apartment

building in New York, New York, in accordance with the requirements of the FHA, 42 U.s.C.

§ 3604(f)(3)(C);

WHEREAS, defendant L&M 93rd Street LLC denies the allegations of the complaint and

enters into this Consent Decree for settlement purposes only, prior to motion practice or trial,

without admitting any issue of fact or law;

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 2 of 29
WHEREAS, The Me1ar is subject to the accessible design and construction requirements of the FHA, 42 USc. § 3604(f)(3)(C); B. Defendant
WHER£A.S, defendant L&M 93rd Street LLC (the "Developer Defendant"), a Delaware limited liability company, is the builder and developer of The Melar, and, in those capacities, designed and constructed The Melar;
WHEREAS, the Developer Defendant hereby represents that neither it, nor any entities or persons with an ownership interest or membership in it, whether direct or indirect, have designed and constructed any other property subject to the design and construction requirements of the FHA;
WHEREAS, Costas Kondylis & Partners, UP, is a New York limited liability partnership that drew the architectural plans for The Melar and, in that capacity, designed and constructed The Melar (referred to as the "Architect Defendant");
WHEREAS, this Consent Decree does not resolve the United States' claims against the Architect Defendant; C. Relevant Requirements of the Fair Housing Act
WHEREAS, the FHA provides that residential buildings with four or more dwelling units, and onc or more elevators, designed and constructed for first occupancy after March 13, 1991, are "covered multifamily dwellings" ("Covered Multifamily Dwellings") and must include certain basic features of accessible and adaptive design to make such units accessible to or
u.s adaptable for use by persons with disabilities, 42 ,C. §§ 3604(f)(3)(C) and (f)(7)(A);
Page 2 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 3 of 29

WHEREAS, the accessible and adaptive design provisions of the FHA require that for

Covered Multifamily Dwellings: (i) the public use and common use portions of such dwellings

arc readily accessible to and usable by persons with a disability; (ii) all the doors designed to

allow passage into and within all premises within such dwellings are sufficiently wide to allow

passage by persons with a disability using wheelchairs; and (iii) all premises within such
<n dwellings contain the following features of adaptive design: an accessible route into and

through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental

controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation

of grab bars; and (IV) usable kitchens and bathrooms such that an individual using a wheelchair

can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C) (these provisions and features are

referred to herein as the "Accessible Design Requirements");

D. Violations at Tbe Melar Alleged In Tbe Complaint

WHEREAS, The Melar is a residential rental apartment building located at 250 West

93rd Street in New York, New York. The building iOOnsists of a tower with elevator access, with

143 rental apartment units, as well as public and common use areas. The building features a

landscaped sun terrace, a fitness center, and a residents' lounge;

WHEREAS, the United States alleges in its complaint that it has inspected The Melar and

specifically identified, inter alia, the following failures to meet the Accessible Design

Requirements at The Melar:

•

Excessively high thresholds, interfering with accessible routes for persons in

wheelchairs;

•

Terraces inaccessible to persons in wheelchairs;

Page 3 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 4 of 29

Insufficient clear floor space within bathrooms for maneuvering by persons in

wheelchairs;

•

Bathroom fixtures precluding installation of bathroom grab bars;

•

Kitchen entries too narrow to accommodate persons in wheelchairs;

•

Kitchen ranges not usable by persons in wheelchairs;

•

Kitchen electrical outlets inaccessible to persons in wheelchairs;

•

Walk-in closets inaccessible to persons in wheelchairs;

•

Common area doors requiring excessive force for persons with certain disabilities;

•

Common area doors closing too quickly for disabled persons 10 pass through;

•

Common area bathrooms not usable by persons in wheelchairs;

•

Mailboxes inaccessible to persons in wheelchairs;

•

Protruding objects in common areas, not detectable by canes of visually impaired

persons;

•

Features within the fitness room inaccessible to persons in wheelchairs;

•

Features within the laundry room inaccessible to persons in wheelchairs; and

•

Insufficient clear floor space within basement storage room for maneuvering by

persons in wheelchairs.

E. Consent of the Parties to Entry of this Order

WHEREAS, the Government and the Developer Defendant (herein, "the parties") agree that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.c. §§ 1331

and 1345, and 42 U.S.c. § 36J 4(a}. The parties further agree that this Action should be resolved

without further proceedings and without an evidentiary hearing or a trial;

Page 40f 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 5 of 29
WHEREAS, the Developer Defendant agrees to make modifications to The Melar as set forth herein; and
WHEREAS, the parties agree to the entry of this Consent Decree. It is bereby ORDERED, ADJUDGED, and DECREED:
I. GENERAL INJUNCTION 1. The Developer Defendant and each of its officers, employees, agents, successors, and assigns, and all other persons in active concert or participation with it, are enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.c. § 3604.
II. CORRECTIVE ACTIONS I RETROFITS 2. The United States alleges that 1110 Melar was not designed or constructed in accordance with the FHA. To address these alleged violations of the FHA, the Developer Defendant agrees to make the modifications to The Melar as described in Appendices A and B. Modifications to the Public and Common Use Areas 3. The Developer Defendant agrees to modify the public and common use areas of The Melar by taking the actions described below. 4. As soon as reasonably possible, but no later than 6 months from the entry of this Consent Decree, the Developer Defendant shall complete the retrofits listed in Appendix A. The Developer Defendant shall make reasonable efforts to minimize inconvenience to residents in making such retrofits. Modification.• to Dwelling Unit Interiors
5. The Developer Defendant agrees to modify dwelling units within The Melar by
taking the actions described below.
Page 5 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 6 of 29
6. For each unit listed in Appendix B, as soon as reasonably possible, but no later
than 6 months from the entry of this Consent Decree (except as otherwise provided in Appendix
ill, the Developer Defendant shall complete the retrofits listed in Appendix B. The Developer
Defendant shall make reasonable efforts to minimize inconvenience to residents in making such retrofits.
7. Within 10 days from the date of the entry of this Consent Decree, the Developer Defendant shall inform each resident whose dwelling unit is to be retrofitted pursuant to Appendix B that: (I) as a result of a settlement of an action brought by the United States, the Developer Defendant has agreed to retrofit certain features of the unit; (2) the retrofits set forth in Appendix B applicable to the resident's unit (with each notice tailored to the specific retrofit(s) to be made to the particular resident's unit) will be provided within 45 days of any request but will, in any event, take place within six months; and (3) the scheduling of the retrofits will take into account the preferences and convenience of the resident or prospective resident and that
relocation costs, if any, wi II be provided in advance. The notice shall be substantially in the fonn
of Appendix C-I. 8. Within 10 days from the date of the entry of this Ccnsent Decree, the Developer
Defendant shall inform all current residents of apartments having conditions listed in Appendix
.§ and all those who have signed leases to become residents of those apartments that: (I) as a
result of a settlement of an action brought by the United States, to the extent provided in Appendix B, certain retrofits to apartment units are available upon request of current or prospective residents (each notice to be tailored to the specific retrofits that could apply to that particular unit); and (2) the scheduling ofthe retrofits will take into account the preferences and
Page 6 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 7 of 29
convenience of the resident or prospective resident and that relocation costs, if any, will be provided in advance. The Developer Defendant sballlikewise provide such notice to all prospective tenants. The notice shall be substantially in the form of Appendix C-2.
9. The Developer Defendant shall certifY to the United States in writing that the notices described in paragraphs 7 and 8 have been distributed and shall specify the manner in which they were distributed as part oftheir annual reporting requirement. Such certification shall include the names and addresses of the persons to whom the notices were distributed.
10. In the event that a resident of a unit within The Melar scheduled to undergo a modification is dislocated from his or her unit for more than a fourteen (14) consecutive hour period, the Developer Defendant shall pay such resident, pro rata, the applicable federal government per diem rate for food and lodging for the local area (as available at www.gsa.govclick on "per diem rates" under travel) for each day or half-day of undue inconvenience or hardship. Such payment shall be made prior to the commencement of any retrofit work on the resident's unit, so that the resident can use the payment to obtain alternative living accommodations while dislocated.
II. Present andlor future residents may not be charged any additional rent, deposit, fee, or other consideration for the units in which retrofits are or may be implemented by reason of completed, contemplated, or possible retrofits. Nothing in this paragraph precludes the Developer Defendant from the implementing rent increases, or imposing fees for any other reason, at the Melar.
Page 7 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 8 of 29
UI. NOTICE OF RETROFITS TO PUBLIC AND COMMON USE AREAS 12. Within 10 days of the entry of this Consent Decree, the Developer Defendant shall provide written notices to all residents at The Melar stating that the retrofits required by this Consent Decree will be perfonned to the public and common use areas of The Melar. Such notice shall confonn to Appendix D. 13. The Developer Defendant shall certify to the United States in writing that the notices required by paragraph 12 have been distributed and shall specify the manner in which they were distributed within tcn days after such distribution; and, upon the specific request of the United States, the Developer Defendants shall provide to the United States a list of the names and addresses of the persons to whom the notices were distributed, which the United States shall return to the Developer Defendants within thirty days.
IV. NEUTRAL INSPECTOR 14. The Developer Defendant shall enter into a contract with a neutral inspector approved by the United States CInspector") to conduct on-site inspections of all retrofits perfonned pursuant to APpendices A and B of this Consent Decree to detenninc compliance with the specifications in those appendices. The Inspector shall have expertise in the design and construction requirements of the FHA. 15. Only if requested to do so by the Developer Defendant, the inspector ""ill review and comment upon the sufficiency of any proposed repair in writing in advance of any repair by the Developer Defendant.
Page 8 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 9 of 29
16. An initial inspection of The Melar shall take place within 30 days of the completion of all of the retrofits set forth in Appendices A and B, or as soon thereafter as practicable.
17. For the inspection of The Melar, the Developer Defendant shall give the United States at least three weeks prior notice of the inspection and shall give the United States an opportunity to have its representative present for the inspection.
J 8. The Inspector shall set out in writing the results of the inspection of The Melar, including any deficits, and shall send that report to the Developer Defendant and to the United StatesI
J9. If the inspection indicates that not all of the required retrofits have been made to The Melar as specified in the applicable Appendices, the Developer Defendant shall correct any deficiencies within 60 days and shall pay for another inspection by the same Inspector to certify that the deficiencies have been corrected. This process shall continue until the Inspector certifies that all of the necessary modifications have been made. The Developer Defendant shall pay all of the Inspector's reasonable costs associated with these inspections, and such payments shall be made without regard to the Inspector's findings. Upon reasonable notice, representatives of the United States shall he permitted to inspect the modifications and/or the third"party inspection reports provided for in this Consent Decree, to ensure compliance.
For purposes of this Consent Decree, notices provided to the United States shall be addressed to Chief, Civil Rights Unit, Office of the United States Attorney for the Southern District of New York, 86 Chambers Street, Third Floor, New York., New York J0007.
Page 9 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 10 of 29
V. TRANSFER OF INTEREST IN PROPERTIES 20. The sale or transfer of ownership, in whole or in part, of any entity or person's interest(s) in The Melar shall not affect the Developer Defendant's continuing obligation to retrofit, and/or conduct or allow inspections or surveys of, The Melar, as specified in this Consent Decree, unless the Developer Defendant has obtained in writing, as a condition of sale or transfer, the purchaser's or transferee's commitment to assume such obligations, so that the purchaser or transferee will be bound by the terms of this Consent Decree to make retrofits and allow or conduct inspections or surveys as set forth in this Consent Decree, and will be subject to the jurisdiction of this Court. 21. Should an owner of The Melar decide to sell or transfer any ownership of The Melar, in whole or in part, or any portion thereof, prior to the completion of the retrofits specified
in this Consent Decree's Appendices describing the retrofits for The Melar, the owner of The Melar will at least 30 days prior to completion of the sale or transfer, unless the contract of sale
shall provide for a shorter period between contract and closing, but at least 15 days prior to completion of the sale or transfer: (a) provide each prospective buyer with a copy ofthis Consent Decree and written notice that Melar is subject to this Consent Decree, including specifically the Developer Defendant's obligations to either (i) complete required retrofit work and allow inspections, or (ii) assign such obligations to the purchaser or transferee by obtaining the purchaser or transferee's commitment to be bound by this Order, subject to the jurisdiction of this Court; and (b) provide to the United States, by facsimile and first-class mail, written notice ofthe owner's intent to sell or transfer ownership, along with a copy ofthe notice sent to each buyer, and each buyer's name, address and telephone number.
Page 10 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 11 of 29

Vll. NON-DISCRIMINATION IN OTHER DESIGN A.'1D CONSTRUCTION

22. The Developer Defendant shall maintain, and provide to the United States upon

request, the following information and statements regarding any Covered Multifamily Dwellings

intended to be developed, built, designed, and/or engineered in whole or in part, by it or by any

entities in which it has a position of control as an officer, director, member, or manager, or has a

ten-percent (10%) or larger ownership share:

the name and address of the project;

a description of the project and the individual units;

•

the name, address, and telephone number of the civil enginecr(s) involved with

the project;

a statement from the civil engineer(s) involved with the project acknowledging

and describing hislher knowledge of and training in the requirements of the Fair

Housing Act and in the field of accessible site design, certifying that he/she has

reviewed the architectural plans for the project and that the design specifications

therein fully comply with the requirements of the FHA, and stating that the design

specifications comply with the Guidelines, another HUD-recognized safe harbor,

or the accessibility specifications of an applicable State or municipal building

code (to the extent the Developer Defendant's construction in compliance with

such building coders) does not violate the FHA).

the name, address and telephone number of the architect(s) who are employed or

retained by the Developer Defendant and are involved with the project;

Page II of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 12 of 29

•

a statement from all architect(s) who are employed or retained by the Developer

Defendant and are involved with the project, acknowledging and describing

hislher knowledge of and training in the requirements of the Fair Housing Act and

the Guidelines, and in the field of accessible site design, certifying that he/she has

reviewed the architectural plans for the project and that the design specifications

therein fully comply with the requirements of the FHA, and stating that the design

specifications comply with the Guidelines, another HUD-recognized safe harbor,

or the accessibility specifications of an applicable State or municipal building

code (to the extent the Developer Defendant's construction in compliance with

such building code{s) does not violate the FHA).

23. lfthe engineering documents or architectural plans referred to in paragraph 22 are

revised, and the revisions would have any impact on whether the dwellings or complex complies

with the Fair Housing Act and/or the Guidelines, another HUD-recognized safe harbor, or the

accessibility specifications of an applicable State or municipal building code (to the extent

Defendant's construction in compliance with such building code{s) does not violate the FHA),

the Developer Defendant shall obtain, maintain, and provide to the United States upon request, a

statement from the site engineer{s) or architect{s) who are employed or retained by any

Defendant and are involved with the project, as applicable, that all specifications in the revised

engineering documents or architectural plans, as pertinent, comply with the requirements of the

Fair Housing Act, as well as the Guidelines, another HUD-recognized safe harbor, or the

accessibility specifications of an applicable State or municipal building code {to the cxtent the

Page 12 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 13 of 29
Developer Defendant's construction in compliance with such building code(s) does not violate the FHA).
24. The Developer Defendant will make all new construction of Covered Multifamily Dwellings fully compliant with the Accessible Design Requirements, the Americans with Disabilities Act, and the Americans with Disabilities Act Accessibility Standards to the extent applicable to Covered Multifamily Dwellings. Moreover, with respect to all new construction of Covered Multifamily Dwellings outside ofNew York City, tbe Developer Defendant shall make all sucb construction fully compliant with the Guidelines or any other safe harbor recognized by HUD. In addition, with respect to all new construction of Covered Multifamily Dwellings within New York City, the Developer Defendant shall make all such construction fully compliant with either: (a) the Guidelines or any other safe harbor recognized by HUD; or (b) the accessibility specifications ofany applicable State or municipal building code (to the extent the Developer Defendant's construction in compliance with such building code(s) does not violate the FHA). During the term of this Consent Decree, upon reasonable notice, the United States will be
permitted full access to such properties of the Developer Defendant to inspect for compliance
with such standards, rules, and laws. VII. PAYMENTS TO AGGRlEVED PERSONS
25. Within 30 days of entry of this Consent Decree, the Developer Defendant shall deposit in an interest-bearing account the total sum of ONE HUNDRED EIGHTY THOUSAND DOLLARS ($180,OOO) for the purpose of compensating any aggrieved persons in connection with alleged discriminatory housing practices involving The Melar. This sum, which constitutes a cap on any such compensation, shall be referred to as the "Settlement Fund."
Page 13 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 14 of 29
26. Except as otherwise provided in this paragraph, within 15 days of the entry of this Consent Decree, the Developer Defendant shall publish the Notice to Persons Who May Have Suffered Housing Discrimination ("Notice") at Appendix E informing readers of the availability of compensatory funds. The Notice shall be no smaller than three columns by six inches and shall be published on three occasions in each of the following newspapers: the Wall Street Journal and the New York Post. The three publication dates shall be separated from one another by 21 days, and at least two of the publication dates shall be on a Sunday for the New York Post and the weekend edition for the Wall Street Journal. Within 10 days of each publication date, the Developer Defendant shall provide the newspapers containing the Notice to the United States. In lieu of publishing the Notice as provided in the preceding four sentences, the Developer Defendant may publish a notice jointly with the Real Estate Board of New York and/or other entities that have resolved FHA suits brought by the United States (a "Joint Notice"), if: (I) the Developer Defendant publishes the Joint Notice within three months of the entry ofthis Consent Decree; (2) the Joint Notice contains all ofthe information contained in the Notice; (3) the Developer Defendant obtains the approval of the United States with respect to any additional content included in the Joint Notice, as well as to the form of the Joint Notice, at least 15 days prior to publication; (4) the Joint Notice is published on at least five occasions in each of the following newspapers: the Wall Street Journal; the New York Times; the Daily News, and the New York Post; (5) the five publication dates are separated from one another by 21 days, with at least two of the publication dates on a Sunday; and (6) within 10 days of each publication, the Developer Defendant provides the newspapers containing the Joint Notice to the United States.
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 15 of 29
27. Within 15 days of entry of this Consent Decree, the Developer Defendant shall place, on http://www.themelar.com.alink to an electronic version of the Notice in an Adobe Acrobat Portable Document Format ("PDF"). The link should state "Notice to Persons Who May Have Suffered Housing Discrimination," and should appear on the upper half of the website, in a red font, in a font size no smaller than the font size for any of the terms "home," "amenities," "neighborhood," "floor plans" or "contact us," as they appeared as of June 1,2011.
28. Within 15 days of the entry of this Consent Decree, the Developer Defendant shall send a copy of the Notice to each of the following organizations: Fair Housing Justice Center, 5 Hanover Square, 17th Floor, New York, New York 10004; and United Spinal Association, 75-20 Astoria Blvd., Jackson Heights, New York 11370.
29. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall send, by first-class mail, postage pre-paid, a copy of the Notice to each present resident at The Melar and to all former residents of The Melar. For past residents, the Developer Defendant will have complied with the requirements of this paragraph by mailing such notice to the forwarding address, if any, provided by the former resident at the time the former resident moved out of The Melar. Within 60 days of entry of this Consent Decree, the Developer Defendant shall provide the United States with a sworn affidavit that the Notices have been sent. Within thirty (30) days of receipt of the affidavit, the United Statcs may exercise its option to inspect the records of the Developer Defendants to confirm that the facts asserted in the affidavit are correct.
30. The United States may make its own efforts to locate and provide notice to potential aggrieved persons.
Page 15 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 16 of 29
31. The Developer Defendant shall pennit the United States, upon reasonable notice,
to review any records that may reasonably facilitate it~ detenninations regarding the claims of alleged aggrieved persons.
32. The United States shall investigate the claims of allegedly aggrieved persons and shall determine which persons are aggrieved and an appropriate amount of damages that should be paid to eaeh such person. The United States will inform the Developer Defendant in writing of each of its determinations together with a copy of a sworn declaration from each aggrieved person setting forth the factual basis of the claim. One year after the entry of this Consent Decree, the United States shall inform the Developer Defendant of all determinations made by that time, and, two and a half years of the entry of this Consent Decree, the United States shall inform the Developer Defendant of all of its remaining determinations.
33. If the Developer Defendant disputes the grievance determination or amount of a payment to an aggrieved person, the Developer Defendant shall, within thirty (30) days of receiving notice of a determination (a "Determination") from the United States, provide a written objection to the United States, along with any information or documents tbat they believe may refute the aggrieved person's claim. For good cause shown, the United States shall extend for a reasonable time the Developer Defendant's time to object to any Determination. The United States shall give due consideration to any objections it receives from the Developer Defendant and shall submit, following any objection, its reconsidered detem1ination (a "Reconsidered Determination") to the Developer Defendant, in writing, setting forth the aggrieved person and the amount that the aggrieved person shall be paid. If the Developer Defendant disputes the Reconsidered Determination, the Developer Defendant shall submit an objection to the United
Page 16 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 17 of 29
States '.\ithin ten (\ 0) days of receiving the Reconsidered Determination, and the United States shall submit the matter to the Court for a final determination.
34. The Developer Defendant shall, no later than thirty (30) days after receiving a Determination to which no objection has been made, twenty (20) days after receiving a Reconsidered Determination to which no objection has been made, or twenty (20) days after any decision by the Court overruling a filed objection, whichever is earliest, deliver to the United States checks drawn upon the Settlement Fund payable to aggrieved persons in the amounts identified by the United States. In no event shall the aggregate of all such checks exceed the amount of the Settlement Fund, including accrued interest. No aggrieved person shall be paid until he/she has executed and delivered to the United States, with a copy to the Developer Defendant, the release at Appendix F.
35. In the event that less than the total amount in the Settlement Fund, including accrued interest, is distributed to aggrieved persons, the remainder of the funds in the Settlement Fund shall be released to the Developer Defendant.
VIII. PAYMENT TO THE UNITED STATES 36, Within 30 days of the date of the entry of this Consent Decree, the Developer Defendant shall pay the United States FORTY THOUSAND DOLLARS ($40,000) pursuant to 42 U.S.G § 36 l4(dXI)(C) to vindicate the public interest. Said sum shall be paid by submitting a check made payable to the "United States of America" to the United States.
Page 17 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 18 of 29

IX. ESTABLISHMENT OF ACCESSIBILITY PROJECT FUND

37. The Developer Defendant shall establish an Accessibility Project Fund in the

amount of TWO If(jNDRED EIGHTY EIGHT THOUSAND THREE HUNDRED DOLLARS

($288,300) (the "Fund Amount").

3. The Accessibility Project Fund shall be used prior to the termination of this

Consent Decree for the construction of facilities, or the provision of services, at the Melar for the

primary benefit 0 f persons with disabilities.

b.

Up to 75% of the Accessibility Project Fund, however, may be expended prior to

the termination of this Consent Decree on the design or construction of features, or the purchase

of items to be installed, that enhance accessibility at a Covered Multifamily Dwelling (the "New

Building") the construction of which is commenced during the term of the Consent Decree by a

New Developer, as defined in the footnote below.'

c. None of the retrofit or other requirements of this Consent Decree shall qualify for

expenditures of the Accessibility Project Fund, except the expenses that the Developer Defendant

may incur in connection with the installation of low-profile refrigerators upon the request of

residents in units with less than 40 inches of clearance at the refrigerdtor, as shown on Appendix

B. For any expenditure to be made from the Accessibility Project Fund for the design or

construction of a feature or features at The Melar or a New Building, the Developer Defendant or

the New Developer, respectively, must give the United States thirty (30) days notice, adequately

describing the proposed expenditure and, if the expenditure is for a New Building, certifying that

,

A "New Developer" shall be an entity that is at least 50% owned by persons who

collectively hold at least 50% of the ownership interest in the Developer Defendant.

Page 18 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 19 of 29
the accessibility-enhancing features would not have been included in the New Building but for the availability of money from the Accessibility Project Fund. The United States may disapprove any such expenditure if the proposed expenditure: (i) is for features that do not materially enhance the accessibility ofthe New Building for persons with disabilities; Oi) is for features that are otherwise required by this Consent Decree (with respect to the Melar), the certification specified in Paragraph 22 above (with respect to the New Building), or by law (with respect to either building); or (iii) is not a reasonable reflection of the cost of designing and constructing the accessibility-enhancing features (in which case only the excess cost will be di sapprovcd). The proposed expenditure will be deemed approved by the United States unless, within thirty (30) days of the United States' receipt of the notice, the United States responds in writing and explains why the expenditure does not qualifY under this paragraph.
d. One month before the termination date of this Consent Decree, the Developer Defendant shall present a full and accurate accounting of the Accessibility Project Fund. The aggregate expenditures under subparagraphs a through d above shall be subtracted from the Accessibility Project Fund, and the Developer Defendant shall, within twenty (20) days of the accounting, pay the difference by an electronic funds transfer pursuant to wiring instructions to a charitable organization mutually agreed upon by the Developer Defendant and the United States, which organization has as its purpose to assist persons with disabilities to locate accessible housing or to assist persons with disabilities to modifY housing to improve accessibility.
X. EDUCATIONAL PROGRAM 38. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall provide a copy of this Consent Decree to all their agents and employees involved in the design or
Page 19 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 20 of 29
construction of The Melar (meaning a representative of Rose Associates, Inc. ("Rose Associates"» and shall secure a signed statement from each such agent or employee acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix G.
39. During the term of this Consent Decree, any new agent or supervisor of the Developer Defendant who will be involvedin the design or construction of Covered Multifamily Dwellings shall, within 30 days after the date he or she commences an agency or employment relationship with the Developer Defendant, be given a copy of this Consent Decree by the Developer Defendant, and the Developer Defendant shall require each such neW agent or employee to sign a statement. acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix G.
40. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall provide a copy of this Consent Decree to all their agents and employees involved in rental of units at The Melar, and/or the supervision of services to residents at The Melar (including the following personnel at Rose Associates: the Melar Resident Property Manager (who supervises the Melar lobby attendants, porters, and handymen); tile Mclar Property Manager stationed at Rose Associates; the Melar on-site Leasing Manager; the Mclar Leasing Director stationed at Rose Associates), and shall secure the signed statement from each agent or employee acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be
Page 20 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 21 of 29
substantially similar to the fonn of Appendix G. In addition, the supervisor(s) of the Melar porters and handymen shall certify that he/she has explained the obligations ofthe Melar porters and handymen to those individuals. and that those individuals have had an opportunity to have their questions about their obligations answered.
41. During the tcnn of this Consent Decree any new agent or supervisor of the Developer Defendant, or of Rose Associates, who will be involved in the renting ofunits at The Melar, and/or the provision of services to residents at The Melar shall, within 30 days after the date he or she commences an agency or employment relationship with the Developer Defendant, be given a copy of this Consent Decree by the Developer Defendant, and the Developer Defendant shall require each such new agent or employee to sign a statement, acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the fonn of Appendix G.
42. In lieu ofproviding entities, agents, supervisors, or employees with copies ofthe Consent Decree as required in paragraphs 38 through 41, the Developer Defendant may provide entities, agents, supervisors, or employees with a summary of the Consent Decree, designed to provide personnel with infonnation relevant to their positions. The Developer Defendant may provide such summaries in lieu of copies of the Consent Decree with the United States' advance written approval of the fonn and content of any proposed summary, which approval will not be unreasonably withheld or delayed.
43. The Developer Defendant shall also ensure that it and its employees, as well as any entities (e.g., finns) acting as the Developer Defendant's agent, who have supervisory
Page 21 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 22 of 29

authority over the design and/or construction of covered, multifamily dwellings have a copy of, are familiar with, and personally have reviewed, the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991), and the United States Department of Housing and Urban Development, Fair Housing Act Design Manual. A M.anual to Assist Builders in Meeting the Accessibility Requirements of the Fair Housing Act (August 1996, Rev. April 1998). The Developer Defendant and all employees, as well as any entities (e.g., firms) acting as the agent(s) of the Developer Defendants, whose duties, in whole or in part, involve the management, sale and/or rental of multifamily dwellings at issue in this case shall, in the case of any such employees, be informed of those portions of the Fair Housing Act that relate to accessibility requirements, reasonable accommodations and reasonable modifications, and, in the case ofany such entities, be provided with a copy of the Fair Housing Act, the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991), and the United States Department of Housing and Urban Development, Fair Housing Act Design Manual, A Manual to Assist Builders in Meeting the Accessibility Requirements of the Fair Housing Act (August 1996, Rev. April 1998).
44. Within 90 days of the date of entry of this Consent Decree, the Developer Defendant and all employees and agents whose duties, in whole or in part, involve or will involve supervision over the development, design and/or construction of Covered Multifamily Dwellings (including any such employees at Rose Associates) shall undergo training on the design and construction requirements of the Fair Housing Act.' The training shall be condueted

3

The educational program provided to employees not engaged in design, construction, or

maintenance, such as sales and rental employees, may focus on the portions of the law that relate

generally to accessibility requirements as opposed to technical design and construction

requirements.

Page 22 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 23 of 29

by a qualified third-party individual, not associated with the Developer Defendant or its counsel,

-

and approved in advance by the Department of .Tustice; and any expenses associated with this

training shall be borne by the Developer Defendant. The Developer Defendant shall provide to

the United States, 30 days before the training, the name(s), addressees) and telephone number(s)

of the trainer(s); and copies of the training outlines and any materials to be distributed by the

trainers. The Developer Defendant shall provide to the United States certifications executed by

the Developer Defendant and all covered employees and agents confirming their attendance, in a

form substantially equivalent to Appendix H.

XI. NOTICE OF DEFENDANT'S NON-DISCRIMINATION POLICY

45. Within ten days of the date of entry of this Consent Decree, the Developer

Defendant shall post and prominently display in the sales Or rental offices of all Covered

Multifamily Dwellings owned or operated by them a sign no smaller than 10 by 14 inches

indicating that all dwellings are available for rental on a nondiscriminatory basis. A poster that

comports with 24 C.F.R. Part 110 will satisfY this requirement.

46. For the duration of this Consent Decree, in all future advertising in newspapers

and electronic media, and on pamphlets, brochures and other promotional literature regarding the

existing Covered Multifamily Dwelling or any new Covered Multifamily Dwellings that the

Developer Defendant may develop or construct, the Developer Defendant shall place, in a

conspicuous location, a statement that the dwelling units include features for persons with

disabilities required by the federal Fair Housing Act.

Page 23 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 24 of 29
XII. NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS 47. No later than 180 days after the date of entry of this Consent Decree, the Developer Defendant shall: (a) submit to the United States the executed certifications and statements required by paragraphs 38-43 of this Consent Decree; and (b) certifY to the United States in writing that the notices required by paragraphs 7, 8, and 12 of this Consent Decree have been distributed, and specifY the manner in which they were distributed. 48. Thereafter, during the term of this Consent Decree, the Developer Defendant shall, on the anniversary of the entry of this Consent Decree, submit to the United States any additional signed statements required by paragraphs 39 or 41 of this Consent Decree, and a report, as applicable, indicating that notices pursuant to paragraph 8 of this Consent Decree were distributed to new residents. 49. For the duration of this Consent Decree, the Developer Defendant shall advise the United States in writing within IS days of receipt of any written administrative or legal fair housing complaint regarding any Covered Multifamily Dwelling owned, managed, and/or designed or constructed by it, or against any employees or agents of the Developer Defendant working at or for any such property, alleging discrimination on the basis of disability in housing under federal law. Upon reasonable notice, the Developer Defendant shall also provide the United States all information it may request concerning any such complaint. The Developer Defendant shall also advise counsel for the United States, in writing, within 15 days of the resolution of any complaint. 50. For the term of this Consent Decree, the Developer Defendant is required to preserve all records related to this Consent Decree for The Melar and for any other Covered
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 25 of 29
Multifamily Dwellings designed, constructed, owned, operated, or acquired by it during the duration of this Consent Decree. Upon reasonable notice to the Developer Defendant, representatives of the United States shall be permitted to inspect and copy any records of the Developer Defendant or inspeet any developments or residential units under the Developer Defendant's control bearing on compliance with this Consent Decree at any and all reasonable times, provided, however, that the United States shall endeavor to minimize any inconvenience to the Developer Defendant from such inspections.
XIII. RENT STABILIZATION 51. In the event a resident of The Melar files a complaint with the New York State Division of Housing and Community Renewal under Section 26-5141 of the Rent Stabilization Law or Section 2523.4 of the Rem Stabilization Code alleging tbat the perfonnance of a retrofit as required by this Consent Decree constitutes a diminution of services, the Developer Defendant will infonn the United States that such a claim has been filed and the Developer Defendant will defend against the claim in good faith with all best efforts. If the New York State Division of Housing and Community Renewal rules against the Developer Defendant, the Developer Defendant will promptly enter into negotiations with the United States to reach agreement on an appropriate substitute for the particular retrofit at issue. If the United States is not satisfied with the substitute(s) proposed by the Developer Defendant, the United States may apply to the Coun (i.e., the United States District Court for the Southern District of New York), in which case this Court shall select a substitute for the particular retrofit at issue.
Page 25 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 26 of 29
XIV. LOW-INCOME HOUSL~G TAX CREDIT PROGRAM COMPLIANCE 52. With respect to low-income housing tax credits, the Developer Defendant understands that, in the event that the Developer Defendant fails to comply with any of the terms or this Consent Decree and the United States, on notice to the Developer Defendant, obtains an order establishing such noncompliance, the United States may take action, including but not limited to notifYing the appropriate state housing finance agency of the violation. See 26 U.S.C § 42(m)(l )(B)(iii).
XV. DURATION OF CONSENT DECREE AND TERMINATION OF LEGAL ACTION
53. This Consent Decree shall remain in effect for three years following entry of this Consent Decree by the Court. By consenting to entry of this Consent Decree, the parties agree that in the event that the Developer Defendant engages in any future conduct occurring after entry of this Consent Decree that leads to any judicial or administrative determination of a violation of the Fair Housing Act, any civil penalty relating to such future conduct shall be calculated as if the conduct were a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(1)(C)(ii).
"..., .,.", ...,Nh
54. The Court~ietain jurisdiction for the duration of this Consent Decree to enforce the terms of the Consent Decree. The United States may move the Court to extend the duration of the Consent Decree in the interests ofjustice, and the Developer Defendant may oppose such a motion.
55. The United States and the Developer Defendant shall endeavor, in good faith, to resolve informally any differences regarding interpretation of and compliance with this Consent Decree prior to bringing such matters to the Court for resolution. However, in the event of a
Page 26 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 27 of 29
f~ by the Developer Defendant to perform, in a timely manner, any act required by this Consent Decree or otherwise for its failure to act in conformance with any provision thereof, the United States may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and reasonable attorney's fees which may have been occasioned by the violation or failure to perform. The Developer Defendant may oppose such a motion.
56. Upon the termination of this Consent Decree, the Court shall dismiss this Action with prejudice. Such dismissal shall only release the Developer Defendant from claims by the United States regarding alleged failures to design and construct The Melar pursuant to the FHA as of the date of suit in this Action. Such a dismissal shall not release the Developer Defendant from any other claims by the United States, including but not limited to any claims regarding other designed and constructed Covered Multifamily Dwellings, and any claims regarding FHA violations at The Melar other than failures to design and construct The Melar as required by the FHA.
XVI. TIME FOR PERFORMANCE 57. Any time limits for performance imposed by this Consent Decree may be extended by the mutual written agreement of the United States and the Developer Defendant without Court approval.
XVII. COSTS OF LITIGATION 58. Eaeh party to this litigation will bear its own costs and attorney's fees associated with this litigation.
Page 27 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 28 of 29

•

.Tbe~ apply fur and consent to the entry of this Consent Decree;
For the United States:
THOMAS E. PEREZ
Assistant Attorney General Civil Rights Division
PREET BHARARA
U~tA Attorney
~MAN By: BRIAN M. tiYU CARINA H. SCHOENBERGER Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Tel. Nos. (212) 637-2777 Fax Nos. (212) 637-2717 Brian.Feldman@usdoj.gov U.Yu@usdoj.gov Carina.Schoenberger@usdoj.gov
By:

733 Third Avenue - 12th Floor New Yark, New York 10017 Tel.: (212) 551-1217 Fax: (212) 551-8484 nunderberg@rosenbergestis.com jbadloek@rosenbergestis.com
Page 28 of 29
. -"-

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 29 of 29
aJ~ SO ORDERED this day of_"~J~;J~lr-~~..~_' 201 L
HON. RICHARD M. BERMA1' UNITED STATES DISTRICT COURT JUDGE
of Page 29 29

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 1 of 5

United States District Court
Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213

Date:
InRe: -v-

Case #:

(

)

Dear Litigant,
Enclosed is a copy of the judgment entered in your case.
Your attention is directed to Rule 4(a)(I) of the Federal Rules of Appellate Procedure, which requires that if you wish to appeal the judgment in your case, you must file a notice ofappeal within 30 days of the date of entry ofthe judgment (60 days if the United States or an officer or agency of the United States is a party).
If you wish to appeal the judgment but for any reason you are unable to file your notice of appeal within the required time, you may make a motion for an extension of time in accordance with the provision of Fed. R. App. P. 4(a)(5). That rule requires you to show "excusable neglect" or "good cause" for your failure to file your notice of appeal within the time allowed. Any such motion must first be served upon the other parties and then filed with the Pro Se Office no later than 60 days from the date of entry of the judgment (90 days if the United States or an officer or agency of the United States is a party).
The enclosed Forms I, 2 and 3 cover some common situations, and you may choose to use one of them if appropriate to your circumstances.
The Filing fee for a notice of appeal is $5.00 and the appellate docketing fee is $450.00 payable to the "Clerk of the Court, USDC, SDNY" by certified check, money order or cash. No personal cbecks are accepted.
Ruby J. Krajick, Clerk of Court
by: ________________________________
, Deputy Clerk

APPEAL FORMS
U.S.D.C. S.D.N.Y. CM/ECF Support Unit

Revised: May 4. 2010

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 2 of 5

United States District Court
Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213

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

I

I

I

-v-

I

I

I

I

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

NOTICE OF APPEAL

CIV.

( )

Notice is hereby given that _ _ _ _ _ _ _ _ _ _-;-_-:-_ _ _ _ _ _ _ _ _ _ __
(party)
hereby appeals to the United States Court ofAppeals for the Second Circuit from the Judgment [describe it]

entered in this action on the _ _ _ _ _ day of _ _ _ _--,--_ __

(day)

(month)

(year)

Date: _ _ _ _ _ __

(Signature) (Address) (City. State and Zip Code)
( )----
(Telephone Number)

Note: You may use this form to take an appeal provided that it is received by the office of the Clerk of the District Court within 30 days of the date on which the judgment was entered (60 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S.D.C. S.D.N.Y. CM/ECF Support Unit

2

Revised: May 4, 2010

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 3 of 5

United States District Court
Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213

------------------------------------------------------------)(
I I

I

-v-

I

I I I

------------------------------------------------------------)(

MOTION FOR E)(TENSION OF TIME TO FILE A NOTICE OF APPEAL

elY.

( )

Pursuant to Fed. R. App. P. 4(a)(5), _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ respectfully
(party)
requests leave to file the within notice of appeal out of time.
(party)
desires to appeal the judgment in this action entered on __________ but failed to file a
(day)
notice of appeal within the required number of days because:

[Explain here the "excusable neglect" or "good cause" which led to your failure to file a notice of appeal within the required number of days.)

(Signature)

(Address)

Date: _ _ _ _ _ _ _ __

(City, State and Zip Code)
( )---------
(Telephone Number)

Note: You may use this form, together with a copy of Form 1, if you are seeking to appeal a judgment and did not file a copy of Form 1 within the required time. If you follow this procedure, these forms must be received in the office of the Clerk of the District Court no later than 60 days of the date which the judgment was entered (90 days if the United States or an officer or agency ofthe United States is a party).

APPEAL FORMS

U.S. D.C. S.D.N.Y. CM/ECF Support Unit

3

Revised: May 4, 2010

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 4 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213

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

I

I

I

-\T-

I

I

I

I

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

NOTICE OF APPEAL AND
MOTION FOR EXTENSION OF TIME

civ.

( )

1.

Notice is hereby given that _ _ _ _ _ _ _ _ _-:-_ _ _ _ _ _ __ hereby appeals to

(party)

the United States Court of Appeals for the Second Circuit from the judgment entered on _ _ _ _ __

[Give a description of the judgment1

2.

In the event that this form was not received in the Clerk's office within the required time

_ _ _ _ _ _,---,--_ _ _ _ _ _ _ respectfully requests the court to grant an extension of time in
(party)
accordance with Fed. R. App. P. 4(a)(5).

a.

In support of this request, _ _ _ _ _ _ _ _,--,-_ _ _ _ _ _ _ _ states that

(party)
this Court's judgment was received on _ _ _-:-:-:-:_ _ _ _ _ and that this form was mailed to the

court on _ _ _ _ _ _ _ __

(date)

(date)

(Signature)

(Address)

Date: _ _ _ _ _ _ __

(City, State and Zip Code)
( )
(Telephone Number)

Note: You may use this form if you are mailing your notice of appeal and are not sure the Clerk of the District Court will receive it within the 30 days of the date on which the judgment was entered (60 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S.D.C. S.D.N.Y. CMIECF Support Unit

4

Revised: May 4, 2010

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 5 of 5

United States District Court Southern District of New York
Office ofthe Clerk U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

------------------------------------------------------------)(
I

I

I

-V-

I

I

I

I

------------------------------------------------------------)(

AFFIRMATION OF SERVICE

elY.

( )

I, _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _, declare under penalty of perjury that I have

served a copy of the attached

upon whose address is: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ____

Date: _ _ _ _ _ _ _ __
New York, New York
APPEAL FORMS U.S.D.C. S.D.N.Y. CM/ECF Support Unit

(Signature) (Address) (City. State and Zip Code)

5

Revised: May 4, 20 I0

 
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------ ------------------------------------ ------X IDHTED STATES OF A:\1ERICA,

USDCSDNY'

--l\1

\ DOCUMENT

II

ELECTRONICALLY FILED '

Plaintiff,
-against-
L&M 93RD STREET LLC and COSTAS KONDYLIS & PARTNERS, LLP,

10 Civ. 7495 (RMB) ADMINISTRATIVE ORDER

Defendants. ---------- ----- -- ------ ----- -- ------------ -- -------- -- ------X

The Court has reviewed the Consent Decree Between the United States of America and

Defendant L&M 93rd Street LLC ("Developer") submitted by the United States Government on

September 30, 20 I0 ("Consent Decree"), which arose from the fact that Developer designed and

constructed the Melar Apartments in New York City ("The Melar") but allegedly failed to

comply with the Fair Housing Act ("FHA''), 42 U.S.C. § 3604(f)(3)(C) in doing so. In the

Consent Decree (a copy of which is attached), Developer "denies the allegations of the complaint

and enters into th[e] Consent Decree for settlement purposes only." The Court finds that it

needs more information as set forth below in order to approve the Consent Decree.

The core provisions of the Consent Decree are certainly appropriate, such as the

provisions (i) enjoining L&M 93rd Street LLC "from discriminating on the basis of disability as

prohibited by the [FHA]"; (ii) requiring modifications (retrofits) to The Melar at the Developer's

expense so as to comply with the FHA; and (iii) directing "written notices to all residents at The

Melar stating that the retrofits required by th[e] Consent decree will be performed." (Consent

Decree~~ I, 2, 12.) The Consent Decree also requires, presumably as a "penalty," that the

Developer ''pay the United States $40,000 ... to vindicate the public interest" See 42 U.S.C. §

3614(d)(l )(C)(i) which states, in part, that "the court may, to vindicate the public interest,

~~~~-··~-
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assess a civil penalty against the respondent- in an amount not exceeding $50,000 for a Jlrst violation." (Consent Decree~ 36.)
And, the Court certainly recognizes that the enforcement of42 U.S. C.§ 3604 of the FHA relating to accommodations in housing for persons with disabilities is appropriate. Se."' I.~ombaniQis v,West IJ<tyen Fire Dept., 352 F. 3d 565, 572 (2d Cir. 2003). The Court also recognizes the value in consensual resolution of cases (and notes that the Consent Decree has already been signed by the Government and the Developer). Viii. of Arlington Heights, 616 F.2d 1006, I014 (7th Cir. 1980); see; also Pattt;rson~"lew§paper & Ylail Deliverers' Union ofN.Y. & Vicinitv, et aL, 514 F.2d 767, 771 (2d Cir. 1975).
At the same time, the Consent Decree appears to impose costly and bureaucratic additional burdens upon Developer, and does so without explaining why they are needed. particularly in light of the above-described Developer's agreement to, among other things, make retrofits at The Melar at its expense in order to comply with 42 U.S.C. § 3604(f)(3)(C).
The provisions of the Consent Decree which require further explanation include. by way of exampk, the following:
(i) the requirement that Developer also pay "the total sum of $180,000 for the purpose of compensating any aggrieved persons in connection with (the] alleged discriminatory housing practices involving The Melar";
(ii) the requirement that Developer also "establish an Accessibility Project Fund in the amount of $288,300" to, among other things, construct facilities for the primary benelit of persons with disabilities;
(iii) the requirement that Developer also provide, among other things, the names and
2

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addresses (to the United States) of any multifamily dwellings (covered under the FHA) "to be developed. built. designed. and/or engineered in whole or in part'" by Developer;
(iv) the requirement that Developer also ensure as opposed, for example. to taking reasonable measures to ensure that it and its employees are "familiar with, and personally have reviewed the Fair Housing Accessibility Guidelines";
(v) the requirement that Developer also ·'undergo training on the design and construction requirements of the [FHA["; and
(vi) the requirement that the Consent Decree "remain in effect for three years following ently ofth[c] Consent Decree by the Court.'' as opposed to, for example, one year. The Consent Decree also allows ''[t]he United States [to] move the Court to extend the duration of the Consent Decree in the interests of justice." (Consent Decree';'; 37(a), 42, 43, 52, 53.)
The Court respectfully requests that the parties address these concerns by submitting a brief letter explaining: (a) each requirement refern:d to in the preceding paragraph and its rationale and legal basis: (b) why such requirement is appropriate and necessary ''on top of' the Consent Decree obligations set forth in paragraph three above; (c) how the $180,000 and $288300 amounts outlined in requirements (i) and {ii) were arrived at and why; and (d) how such requirement specifically furthers the objectives of the FHA as set forth in 42 U.S.C.~ 3604. ~e~ 42 U.S. C.§ 3614: Lo.c:al No~93. Intern. Ass'n ofFirelighter~~l'tEL-CIQC.L.C. v. Citv of (levcland, 478 U.S. 501, 525 (1986) ("a consent decree must come within the general scope of the case made by the pleadings and must further the objectives of the law upon which the complaint is based.") (intemal citation and quotation marks omitted): see also Christopher C. Sabis. ExecutingtheJ"<l''·s or .!;.xecuting~l!l1 Agenda: Usurpation~St<~.l,l!\Ory andConsJitutional Rights bv th(!J2epartment of Justice, 37 U. Mich. J. L. Reform 257 (2003) (arguing that "consent
3

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decrees reveal remedies that appear to stretch the Fair Housing Act beyond the goals authorized

1982). The Court would appreciate the parties' submission(s) by October 29,2010.

Dated: New York. l\iew York October 22.2010

~~-;;~~-
RICHARD M. BERMAN, U.S.D..J

4

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USDC SDNY DOCUMENT
ELECTRONICALLY FILED

·UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,

DOC
I,IJ?ATE F~~ED: II/tiP·:-.
ECFCASE

-against-

Plaintiff,

CONSENT DECREE BETWEEN THE UNITED STATES OF AMERICA AND DEFENDANT L&M 93RD STREET LLC

L&M 93RD STREET LLC and COSTAS KONDYLIS & PARTNERS, LLP,

10 Civ. 7495 (RMB)

Defendants.

INTRODUCTION A. Background
This Consent Decree is entered into between the United States of America (the "United States") and defendant L&M 93rd Street LLC.
WHEREAS, the United States brought this action (the "Action") to enforce provisions of the Fair Housing Act ("FHA"), codified at 42 U.S.C. §§ 3601-3619; specifically, the United States' complaint in this Action alleges that defendants L&M 93rd Street LLC and Costas Kondylis & Partners have engaged in a pattern or practice of discrimination, and have denied rights to a group of persons in a manner raising an issue of general public importance, including by failing to design and/or construct the Melar Apartments ("The Melar"), a residential apartment building in New York, New York, in accordance with the requirements of the FHA,
42 u.s.c. § 3604(f)(3)(C);
WHEREAS, defendant L&M 93rd Street LLC denies the allegations of the complaint and enters into this Consent Decree for settlement purposes only, prior to motion practice or trial, without admitting any issue of fact or law;

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WHEREAS, The Melar is subject to the accessible design and construction requirements of the FHA, 42 U.S.C. § 3604(f)(3)(C); B. Defendant
WHEREAS, defendant L&M 93rd Street LLC (the "Developer Defendant"), a Delaware limited liability company, is the builder and developer of The Melar, and, in those capacities, designed and constructed The Melar;
WHEREAS, the Developer Defendant hereby represents that neither it, nor any entities or persons with an ownership interest or membership in it, whether direct or indirect, have designed or constructed any other property subject to the design and construction requirements of the FHA;
WHEREAS, Costas Kondylis & Partners, LLP, is a New York limited liability partnership that drew the architectural plans for The Melar and, in that capacity, designed and constructed The Melar (referred to as the "Architect Defendant");
WHEREAS, this Consent Decree does not resolve the United States' claims against the Architect Defendant; C. Relevant Requirements of the Fair Housing Act
WHEREAS, the FHA provides that residential buildings with four or more dwelling units, and one or more elevators, designed and constructed for first occupancy after March 13, 1991, are "covered multifamily dwellings" ("Covered Multifamily Dwellings") and must include certain basic features of accessible and adaptive design to make such units accessible to or adaptable for use by persons with disabilities, 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(A);
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WHEREAS, the accessible and adaptive design provisions of the FHA require that for Covered Multifamily Dwellings: (i) the public use and common use portions of such dwellings are readily accessible to and usable by persons with a disability; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by persons with a disability using wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (Ill) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C) (these provisions and features are referred to herein as the "Accessible Design Requirements"); D. Violations at The Melar
WHEREAS, The Melar is a residential rental apartment building located at 250 West 93rd Street in New York, New York. The building consists of a tower with elevator access, with 143 rental apartment units, as well as public and common use areas. The building features a landscaped sun terrace, a fitness center, and a residents' lounge;
WHEREAS, the United States alleges in its complaint that it has inspected The Melar and specifically identified, inter alia, the following failures to meet the Accessible Design Requirements at The Melar:
Excessively high thresholds, interfering with accessible routes for persons in wheelchairs; Terraces inaccessible to persons in wheelchairs;
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Insufficient clear floor space within bathrooms for maneuvering by persons in wheelchairs; Bathroom fixtures precluding installation of bathroom grab bars; Kitchen entries too narrow to accommodate persons in wheelchairs; Kitchen ranges not usable by persons in wheelchairs; Kitchen electrical outlets inaccessible to persons in wheelchairs; Walk-in closets inaccessible to persons in wheelchairs; Common area doors requiring excessive force for persons with certain disabilities; Common area doors closing too quickly for disabled persons to pass through; Common area bathrooms not usable by persons in wheelchairs; Mailboxes inaccessible to persons in wheelchairs; Protruding objects in common areas, not detectable by canes of visually impaired persons; Features within the fitness room inaccessible to persons in wheelchairs; Features within the laundry room inaccessible to persons in wheelchairs; and Insufficient clear floor space within basement storage room for maneuvering by persons in wheelchairs. E. Consent of the Parties to Entry ofthis Order WHEREAS, the Government and the Developer Defendant (herein, "the parties") agree that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. §§ 1331
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and 1345, and 42 U.S.C. § 3614(a). The parties further agree that this Action should be resolved without further proceedings and without an evidentiary hearing or a trial;
WHEREAS, the Developer Defendant agrees to make modifications to The Melar as set forth herein; and
WHEREAS, the parties agree to the entry of this Consent Decree. It is hereby ORDERED, ADJUDGED, and DECREED:
I. GENERAL INJUNCTION I. The Developer Defendant and each of its officers, employees, agents, successors, and assigns, and all other persons in active concert or participation with it, are enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. § 3604.
II. CORRECTIVE ACTIONS I RETROFITS 2. The United States alleges that The Melar was not designed or constructed in accordance with the FHA. To address these alleged violations of the FHA, the Developer Defendant agrees to make the modifications to The Melar as described in Appendices A and B. Modifications to the Public and Common Use Areas 3. The Developer Defendant agrees to modify the public and common use areas of The Melar by taking the actions described below. 4. As soon as reasonably possible, but no later than 6 months from the entry of this Consent Decree. the Developer Defendant shall complete the retrofits listed in Appendix A. The Developer Defendant shall make reasonable efforts to minimize inconvenience to residents in making such retrofits.
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Modifications to Dwelling Unit Interiors

5. The Developer Defendant agrees to modify dwelling units within The Melar by

taking the actions described below.

6. For each unit listed in Appendix B, as soon as reasonably possible, but no later

than 6 months from the entry of this Consent Decree (except as otherwise provided in Appendix
ID, the Developer Defendant shall complete the retrofits listed in Appendix B. The Developer

Defendant shall make reasonable efforts to minimize inconvenience to residents in making such

retrofits. 7.

Within 10 days from the date of the entry of this Consent Decree, the Developer

Defendant shall inform each resident whose dwelling unit is to be retrofitted pursuant to

Appendix B that: (I) as a result of a settlement of an action brought by the United States, the

Developer Defendant has agreed to retrofit certain features of the unit; (2) the retrofits set forth

in Appendix B applicable to the resident's unit (with each notice tailored to the specific

retrofit(s) to be made to the particular resident's unit) will be provided within 45 days of any

request but will, in any event, take place within six months; and (3) the scheduling ofthe

retrofits will take into account the preferences and convenience of the resident or prospective

resident and that relocation costs, if any, will be provided in advance. The notice shall be

substantially in the form of Appendix C-1.

8. Within 10 days from the date ofthe entry of this Consent Decree, the Developer

Defendant shall inform all current residents of apartments having conditions listed in Appendix
!! and all those who have signed leases to become residents of those apartments that: (I) as a

result of a settlement of an action brought by the United States, to the extent provided in

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Appendix B, certain retrofits to apartment units are available upon request of current or prospective residents (each notice to be tailored to the specific retrofits that could apply to that particular unit); and (2) the scheduling of the retrofits will take into account the preferences and convenience ofthe resident or prospective resident and that relocation costs, if any, will be provided in advance. The Developer Defendant shall likewise provide such notice to all prospective tenants. The notice shall be substantially in the form of Appendix C-2.
9. The Developer Defendant shall certify to the United States in writing that the notices described in paragraphs 7 and 8 have been distributed and shall specifY the manner in which they were distributed as part of their annual reporting requirement. Such certification shall include the names and addresses of the persons to whom the notices were distributed.
I0. In the event that a resident of a unit within The Melar scheduled to undergo a modification is dislocated from his or her unit for more than a fourteen (14) consecutive hour period, the Developer Defendant shall pay such resident, pro rata, the applicable federal government per diem rate for food and lodging for the local area (as available at www.gsa.gov click on "per diem rates" under travel) for each day or half-day of undue inconvenience or hardship. Such payment shall be made prior to the commencement of any retrofit work on the resident's unit, so that the resident can use the payment to obtain alternative living accommodations while dislocated.
II. Present and/or future residents may not be charged any additional rent, deposit, fee, or other consideration for the units in which retrofits are or may be implemented by reason of completed, contemplated, or possible retrofits. Nothing in this paragraph precludes the
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Developer Defendant from the implementing rent increases, or imposing fees for any other reason, at the Melar.
III. NOTICE OF RETROFITS TO PUBLIC AND COMMON USE AREAS 12. Within 10 days of the entry of this Consent Decree, the Developer Defendant shall provide written notices to all residents at The Melar stating that the retrofits required by this Consent Decree will be performed to the public and common use areas of The Melar. Such notice shall conform to Appendix D. 13. The Developer Defendant shall certify to the United States in writing that the notices required by paragraph 12 have been distributed and shall specify the manner in which they were distributed within ten days after such distribution. Such certification shall include the names and addresses of the persons to whom the notices were distributed.
IV. NEUTRALINSPECTOR 14. The Developer Defendant shall enter into a contract with a neutral inspector approved by the United States ("Inspector") to conduct on-site inspections of all retrofits performed pursuant to Appendices A and B of this Consent Decree to determine compliance with the specifications in those appendices. The Inspector shall have expertise in the design and construction requirements of the FHA. 15. Only if requested to do so by the Developer Defendant, the Inspector will review and comment upon the sufficiency of any proposed repair in writing in advance of any repair by the Developer Defendant.
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16. An initial inspection of The Melar shall take place within 30 days of the completion of all of the retrofits set forth in Appendices A and B, or as soon thereafter as practicable.
17. For the inspection of The Melar, the Developer Defendant shall give the United States at least three weeks prior notice of the inspection and shall give the United States an opportunity to have its representative present for the inspection.
18. The Inspector shall set out in writing the results of the inspection of The Melar, including any deficits, and shall send that report to the Developer Defendant and to the United States.'
19. If the inspection indicates that not all of the required retrofits have been made to The Melar as specified in the applicable Appendices, the Developer Defendant shall correct any deficiencies within 60 days and shall pay for another inspection by the same Inspector to certify that the deficiencies have been corrected. This process shall continue until the Inspector certifies that all of the necessary modifications have been made. The Developer Defendant shall pay all of the Inspector's reasonable costs associated with these inspections, and such payments shall be made without regard to the Inspector's findings. Upon reasonable notice, representatives of the United States shall be permitted to inspect the modifications and/or the third-party inspection reports provided for in this Consent Decree, to ensure compliance.
V. TRANSFER OF INTEREST IN PROPERTIES
1 For purposes of this Consent Decree, notices provided to the United States shall be addressed to Chief, Civil Rights Unit, Office of the United States Attorney for the Southern District of New York, 86 Chambers Street, Third Floor, New York, New York 10007.
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20. The sale or transfer of ownership, in whole or in part, of any entity or person's interest(s) in The Melar shall not affect the Developer Defendant's continuing obligation to retrofit, and/or conduct or allow inspections or surveys of, The Melar, as specified in this Consent Decree, unless the Developer Defendant has obtained in writing, as a condition of sale or transfer, the purchaser's or transferee's commitment to assume such obligations, so that the purchaser or transferee will be bound by the terms of this Consent Decree to make retrofits and allow or conduct inspections or surveys as set forth in this Consent Decree, and will be subject to the jurisdiction ofthis Court.
21. Should an owner of The Melar decide to sell or transfer any ownership of The Melar, in whole or in part, or any portion thereof, prior to the completion of the retrofits specified in this Consent Decree's Appendices describing the retrofits for The Melar, the owner of The Melar will at least 30 days prior to completion of the sale or transfer, unless the contract of sale shall provide for a shorter period between contract and closing, but at least 15 days prior to completion of the sale or transfer: (a) provide each prospective buyer with a copy of this Consent Decree and written notice that Melar is subject to this Consent Decree, including specifically the Developer Defendant's obligations to either (i) complete required retrofit work and allow inspections, or (ii) assign such obligations to the purchaser or transferee by obtaining the purchaser or transferee's commitment to be bound by this Order, subject to the jurisdiction of this Court; and (b) provide to the United States, by facsimile and first-class mail, written notice of the owner's intent to sell or transfer ownership, along with a copy of the notice sent to each buyer, and each buyer's name, address and telephone number.
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VII. NON-DISCRIMINATION IN OTHER DESIGN AND CONSTRUCTION 22. The Developer Defendant shall maintain, and provide to the United States upon request, the following information and statements regarding any Covered Multifamily Dwellings intended to be developed, built, designed, and/or engineered in whole or in part, by it or by any entities in which it has a position of control as an officer, director, member, or manager, or has a ten-percent (10%) or larger ownership share:
the name and address of the project; a description of the project and the individual units; the name, address, and telephone number of the civil engineer(s) involved with the project; a statement from the civil engineer(s) involved with the project acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and in the field of accessible site design, certifying that he/she has reviewed the architectural plans for the project and that the design specifications therein fully comply with the requirements of the FHA, and stating that the design specifications comply with the Guidelines, another BUD-recognized safe harbor, or the accessibility specifications of an applicable State or municipal building code (to the extent the Developer Defendant's construction in compliance with such building code(s) does not violate the FHA). the name, address and telephone number of the architect(s) who are employed or retained by the Developer Defendant and are involved with the project;
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a statement from all architect(s) who are employed or retained by the Developer Defendant and are involved with the project, acknowledging and describing his/her knowledge of and training in the requirements of the Fair Housing Act and the Guidelines, and in the field of accessible site design, certifying that he/she has reviewed the architectural plans for the project and that the design specifications therein fully comply with the requirements of the FHA, and stating that the design specifications comply with the Guidelines, another HUD-recognized safe harbor, or the accessibility specifications of an applicable State or municipal building code (to the extent the Developer Defendant's construction in compliance with such building code(s) does not violate the FHA). 23. If the engineering documents or architectural plans referred to in paragraph 22 are revised, and the revisions would have any impact on whether the dwellings or complex complies with the Fair Housing Act and/or the Guidelines, another HUD-recognized safe harbor, or the accessibility specifications of an applicable State or municipal building code (to the extent Defendant's construction in compliance with such building code(s) does not violate the FHA), the Developer Defendant shall obtain, maintain, and provide to the United States upon request, a statement from the site engineer(s) or architect(s) who are employed or retained by any Defendant and are involved with the project, as applicable, that all specifications in the revised engineering documents or architectural plans, as pertinent, comply with the requirements of the Fair Housing Act, as well as the Guidelines, another HUD-recognized safe harbor, or the accessibility specifications of an applicable State or municipal building code (to the extent the
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Developer Defendant's construction in compliance with such building code(s) does not violate the FHA).
24. The Developer Defendant will make all new construction of Covered Multifamily Dwellings fully compliant with the Accessible Design Requirements, the Americans with Disabilities Act, and the Americans with Disabilities Act Accessibility Standards to the extent applicable to Covered Multifamily Dwellings. Moreover, with respect to all new construction of Covered Multifamily Dwellings outside ofNew York City, the Developer Defendant shall make all such construction fully compliant with the Guidelines or any other safe harbor recognized by HUD. In addition, with respect to all new construction of Covered Multifamily Dwellings within New York City, the Developer Defendant shall make all such construction fully compliant with either: (a) the Guidelines or any other safe harbor recognized by HUD; or (b) the accessibility specifications of any applicable State or municipal building code (to the extent the Developer Defendant's construction in compliance with such building code{s) does not violate the FHA). During the tenn of this Consent Decree, upon reasonable notice, the United States will be permitted full access to such properties of the Developer Defendant to inspect for compliance with such standards, rules, and laws.
VII. PAYMENTS TO AGGRIEVED PERSONS
25. Within 30 days of entry of this Consent Decree, the Developer Defendant shall deposit in an interest-bearing account the total sum of ONE HUNDRED EIGHTY THOUSAND DOLLARS ($180,000) for the purpose of compensating any aggrieved persons in connection with alleged discriminatory housing practices involving The Melar. This sum, which constitutes a cap on any such compensation, shall be referred to as the "Settlement Fund."
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26. Except as otherwise provided in this paragraph, within 15 days of the entry of this Consent Decree, the Developer Defendant shall publish the Notice to Persons Who May Have Suffered Housing Discrimination ("Notice") at Atwendix E informing readers of the availability of compensatory funds. The Notice shall be no smaller than three columns by six inches and shall be published on three occasions in each of the following newspapers: the Wall Street Journal; the New York Times, the Daily News; and the New York Post. The three publication dates shall be separated from one another by 21 days, and at least two of the publication dates shall be on a Sunday. Within I0 days of each publication date, the Developer Defendant shall provide the newspapers containing the Notice to the United States. In lieu of publishing the Notice as provided in the preceding four sentences, the Developer Defendant may publish a notice jointly with the Real Estate Board of New York and/or other entities that have resolved FHA suits brought by the United States (a "Joint Notice"), if: (I) the Developer Defendant publishes the Joint Notice within three months of the entry of this Consent Decree; (2) the Joint Notice contains all of the information contained in the Notice; (3) the Developer Defendant obtains the approval of the United States with respect to any additional content included in the Joint Notice, as well as to the form of the Joint Notice, at least 15 days prior to publication; (4) the Joint Notice is published on at least five occasions in each of the following newspapers: the Wall Street Journal; the New York Times; the Daily News; and the New York Post; (5) the five publication dates are separated from one another by 21 days, with at least two of the publication dates on a Sunday; and (6) within I0 days of each publication, the Developer Defendant provides the newspapers containing the Joint Notice to the United States.
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27. Within 15 days of entry of this Consent Decree, the Developer Defendant shall place, on http:l/www.themelar.com, a link to an electronic version of the Notice in an Adobe Acrobat Portable Document Format ("PDF"). The link should state "Notice to Persons Who May Have Suffered Housing Discrimination," and should appear on the upper half of the website, in a red font, in a font size no smaller than the font size for any of the terms "home," "amenities," "neighborhood," "floor plans" or "contact us," as they appeared as of July I, 2010.
28. Within 15 days of the entry ofthis Consent Decree, the Developer Defendant shall send a copy of the Notice to each of the following organizations: Fair Housing Justice Center, 5 Hanover Square, 17th Floor, New York, New York I0004; and United Spinal Association, 75-20 Astoria Blvd., Jackson Heights, New York 11370.
29. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall send, by first-class mail, postage pre-paid, a copy of the Notice to each present resident at The Melar and to all former residents of The Melar. For past residents, the Developer Defendant will have complied with the requirements of this paragraph by mailing such notice to the forwarding address, if any, provided by the former resident at the time the former resident moved out of The Melar. Within 60 days of entry of this Consent Decree, the Developer Defendant shall provide the United States with proof that the Notices have been sent.
30. The United States may make its own efforts to locate and provide notice to potential aggrieved persons.
31. The Developer Defendant shall permit the United States, upon reasonable notice, to review any records that may reasonably facilitate its determinations regarding the claims of alleged aggrieved persons.
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32. The United States shall investigate the claims of allegedly aggrieved persons and shall determine which persons arc aggrieved and an appropriate amount of damages that should be paid to each such person. The United States will inform the Developer Defendant in writing of each of its determinations, together with a copy of a sworn declaration from each aggrieved person setting forth the factual basis of the claim.
33. If the Developer Defendant disputes the grievance determination or amount of a payment to an aggrieved person, the Developer Defendant shall, within fourteen ( 14) days of receiving notice of a determination (a "Determination") from the United States, provide a written objection to the United States, along with any information or documents that they believe may refute the aggrieved person's claim. The United States shall give due consideration to any objections it receives from the Developer Defendant and shall submit, following any objection, its reconsidered determination (a "Reconsidered Determination") to the Developer Defendant, in writing, setting forth the aggrieved person and the amount that the aggrieved person shall be paid. lfthe Developer Defendant disputes the Reconsidered Determination, the Developer Defendant shall submit an objection to the United States within ten (I 0) days of receiving the Reconsidered Determination, and the United States shall submit the matter to the Court for a final determination.
34. The Developer Defendant shall, no later than twenty (20) days after receiving a Determination to which no objection has been made, ten (I 0) days after receiving a Reconsidered Determination to which no objection has been made, or ten (10) days after any decision by the Court overruling a filed objection, whichever is earliest, deliver to the United States checks drawn upon the Settlement Fund payable to aggrieved persons in the amounts
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identified by the United States. In no event shall the aggregate of all such checks exceed the amount of the Settlement Fund, including accrued interest. No aggrieved person shall be paid until he/she has executed and delivered to the United States, with a copy to the Developer Defendant, the release at Appendix F.
35. In the event that less than the total amount in the Settlement Fund, including accrued interest, is distributed to aggrieved persons, and after the United States detennines that no further aggrieved persons will be identified, the remainder of the funds in the Settlement Fund shall be distributed to a qualified organization(s) mutually agreed upon by the United States and the Developer Defendant, subject to the approval of the Court, for the purpose of assisting individuals with physical disabilities in locating accessible housing or in modifying housing to be more accessible in New York City. The organization shall not receive the funds until it has executed and delivered to the United States, with a copy to the Developer Defendant, a release precluding the organization from bringing any claims against the Developer Defendant for any matters covered by this Consent Decree. The Developer Defendant shall distribute the funds in a manner directed by the Court after the United States infonns the Court that no further aggrieved persons will be identified.
VIII. PAYMENT TO THE UNITED STATES 36. Within 30 days of the date of the entry of this Consent Decree, the Developer Defendant shall pay the United States FORTY THOUSAND DOLLARS ($40,000) pursuant to 42 U.S.C. § 3614(d)(I)(C) to vindicate the public interest. Said sum shall be paid by submitting a check made payable to the "United States of America" to the United States.
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IX. ESTABLISHMENT OF ACCESSIBILITY PROJECT FUND

37. The Developer Defendant shall establish an Accessibility Project l'und in the

amount ofTWO HUNDRED EIGHTY EIGHT THOUSAND THREE HUNDRED DOLLARS

($288,300) (the "Fund Amount").

a. The Accessibility Project Fund shall be used prior to the termination of this

Consent Decree for the construction of facilities, or the provision of services, at the Melar for the

primary benefit of persons with disabilities. The Developer Defendant, thirty (30) days in

advance of any proposed expenditure of the Accessibility Project Fund at the Melar, may seek

the approval of the United States to deem the costs of such construction or services as qualifying

as expenditures of the Accessibility Project Fund, and such approval shall be given at the United

States' discretion, which shall not be unreasonably withheld or delayed. In the event that the

Developer Defendant engages in construction, or provides services, at the Melar for the primary

benefit of persons with disabilities without providing notice to the United States, the Developer

Defendant may seek the approval of the United States to deem the costs of such construction or

services as qualifying as expenditures of the Accessibility Project Fund, and such approval shall

be given at the United States' discretion, which shall not be unreasonably withheld or delayed.

b.

To the extent that such expenditures are approved by the United States as

provided below, up to 50% of the Accessibility Project Fund may be expended prior to the

termination of this Consent Decree on the design and construction of features that enhance

accessibility at a Covered Multifamily Dwelling (the "New Building") the construction of which

is commenced during the term of the Consent Decree by a New Developer, as defined in the

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footnote below.1 For any expenditure to be made from the Accessibility Project Fund for the design or construction of a feature or features at a New Building, the Developer Defendant shall request approval from the United States. In connection with such a request, the Developer Defendant and the New Developer shall submit certifications that (i) such features are for the primary benefit of persons with disabilities and are not otherwise required under paragraph 24 of this Consent Decree or otherwise required by law; (ii) such accessibility-enhancing features would not have been included in the New Building but for the availability of money from the Accessibility Project Fund; and (iii) the expenditure reasonably reflects the cost of designing and constructing the accessibility-enhancing features. The United States may approve or disapprove expenditures from the Accessibility Project Fund on a New Building in its discretion, which shall not be unreasonably withheld or delayed.
c. None ofthe retrofit or other requirements of this Consent Decree shall qualifY for expenditures of the Accessibility Project Fund, except the expenses that the Developer Defendant may incur in connection with the installation of low-profile refrigerators upon the request of residents in units with less than 40 inches of clearance at the refrigerator, as shown on Appendix B.
d. Three months before the termination date of this Consent Decree, the Developer Defendant shall present a full and accurate accounting of the Accessibility Project Fund. The aggregate expenditures shall be subtracted from the Accessibility Project Fund, and the Developer Defendant shall, within 30 days of the accounting, pay the difference to the United
1 A "New Developer" shall be an entity that is at least 50% owned by persons who collectively hold at least 50% of the ownership interest in the Developer Defendant.
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States by an electronic funds transfer pursuant to wiring instructions to be provided by the United States.
X. EDUCATIONAL PROGRAM 38. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall provide a copy of this Consent Decree to all their agents and employees involved in the design or construction of The Melar (meaning a representative of Rose Associates, Inc. ("Rose Associates")) and shall secure a signed statement from each such agent or employee acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Atmendix G. 39. During the term of this Consent Decree, any new agent or supervisor of the Developer Defendant who will be involved in the design or construction of Covered Multifamily Dwellings shall, within 30 days after the date he or she commences an agency or employment relationship with the Developer Defendant, be given a copy of this Consent Decree by the Developer Defendant, and the Developer Defendant shall require each such new agent or employee to sign a statement, acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix G. 40. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall provide a copy of this Consent Decree to all their agents and employees involved in rental of units at The Melar, and/or the supervision of services to residents at The Melar (including the following personnel at Rose Associates: the Melar Resident Property Manager; the Melar
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Property Manager stationed at Rose Associates; the Melar on-site Leasing Manager; the Melar Leasing Director stationed at Rose Associates; the Melar lobby attendants; and the supervisor(s) of the Melar porters and handymen), and shall secure the signed statement from each agent or employee acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix G. In addition, the supervisor(s) of the Melar porters and handymen shall certifY that he/she has explained the obligations of the Melar porters and handymen to those individuals, and that those individuals have had an opportunity to have their questions about their obligations answered.
41. During the term of this Consent Decree any new agent or supervisor of the Developer Defendant, or of Rose Associates, who will be involved in the renting of units at The Melar, and/or the provision of services to residents at The Melar shall, within 30 days after the date he or she commences an agency or employment relationship with the Developer Defendant, be given a copy of this Consent Decree by the Developer Defendant, and the Developer Defendant shall require each such new agent or employee to sign a statement, acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix G.
42. The Developer Defendant shall also ensure that it and its employees, as well as any entities (e.g., firms) acting as the Developer Defendant's agent, who have supervisory authority over the design and/or construction of covered, multifamily dwellings have a copy of, are familiar with, and personally have reviewed, the Fair Housing Accessibility Guidelines, 56
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Fed. Reg. 9472 (1991), and the United States Department of Housing and Urban Development, fair Housing Act Design Manual. A Manual to Assist Builders in Meeting the Accessibility Regujremems of the fair Housing Act (August 1996, Rev. Apri11998). The Developer Defendant and all employees and agents whose duties, in whole or in part, involve the management, sale and/or rental of multifamily dwellings at issue in this case shall be informed of those portions of the Fair Housing Act that relate to accessibility requirements, reasonable accommodations and reasonable modifications. In addition, the Developer Defendant shall provide Rose Associates with a copy of the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991 ), and the United States Department of Housing and Urban Development, Fair Housing Act Design Manual, A Manual to Assist Builders in Meeting the Accessibility Reguirements of the Fair Housing Act (August I996, Rev. April 1998), and shall inform Rose Associates of those portions of the Fair Housing Act that relate to accessibility requirements, reasonable accommodations and reasonable modifications.
43. Within 90 days of the date of entry of this Consent Decree, the Developer Defendant and all employees and agents whose duties, in whole or in part, involve or will involve supervision over the development, design and/or construction of Covered Multifamily Dwellings (including any such employees at Rose Associates) shall undergo training on the design and construction requirements of the Fair Housing Act.' The training shall be conducted by a qualified third-party individual, not associated with the Developer Defendant or its counsel,
1 The educational program provided to employees not engaged in design, construction, or maintenance, such as sales and rental employees, may focus on the portions of the law that relate generally to accessibility requirements as opposed to technical design and construction requirements.
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and approved in advance by the Department of Justice; and any expenses associated with this training shall be borne by the Developer Defendant. The Developer Defendant shall provide to the United States, 30 days before the training, the name(s), address(es) and telephone number(s) of the trainer(s); and copies of the training outlines and any materials to be distributed by the trainers. The Developer Defendant shall provide to the United States certifications executed by the Developer Defendant and all covered employees and agents confirming their attendance, in a form substantially equivalent to Appendix H.
XI. NOTICE OF DEFENDANT'S NON-DISCRIMINATION POLICY 44. Within ten days of the date of entry of this Consent Decree, the Developer Defendant shall post and prominently display in the sales or rental offices of all Covered Multifamily Dwellings owned or operated by them a sign no smaller than I0 by 14 inches indicating that all dwellings are available for rental on a nondiscriminatory basis. A poster that comports with 24 C.F.R. Part II 0 will satisfy this requirement. 45. For the duration of this Consent Decree, in all future advertising in newspapers and electronic media, and on pamphlets, brochures and other promotional literature regarding the existing Covered Multifamily Dwelling or any new Covered Multifamily Dwellings that the Developer Defendant may develop or construct, the Developer Defendant shall place, in a conspicuous location, a statement that the dwelling units include features for persons with disabilities required by the federal Fair Housing Act.
XII. NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS 46. No later than 180 days after the date of entry of this Consent Decree, the Developer Defendant shall: (a) submit to the United States the executed certifications and
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statements required by paragraphs 38-43 of this Consent Decree; and (b) certifY to the United States in writing that the notices required by paragraphs 7, 8, and 12 ofthis Consent Decree have been distributed, and specifY the manner in which they were distributed.
47. Thereafter, during the term of this Consent Decree, the Developer Defendant shall, on the anniversary of the entry of this Consent Decree, submit to the United States any additional signed statements required by paragraphs 39 or 41 of this Consent Decree, and a report, as applicable, indicating that notices pursuant to paragraph 8 of this Consent Decree were distributed to new residents.
48. For the duration of this Consent Decree, the Developer Defendant shall advise the United States in writing within 15 days of receipt of any written administrative or legal fair housing complaint regarding any Covered Multifamily Dwelling owned, managed, and/or designed or constructed by it, or against any employees or agents of the Developer Defendant working at or for any such property, alleging discrimination on the basis of disability in housing under federal law. Upon reasonable notice, the Developer Defendant shall also provide the United States all information it may request concerning any such complaint. The Developer Defendant shall also advise counsel for the United States, in writing, within 15 days of the resolution of any complaint.
49. For the term of this Consent Decree, the Developer Defendant is required to preserve all records related to this Consent Decree for The Melar and for any other Covered Multifamily Dwellings designed, constructed, owned, operated, or acquired by it during the duration of this Consent Decree. Upon reasonable notice to the Developer Defendant, representatives of the United States shall be permitted to inspect and copy any records of the
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Developer Defendant or inspect any developments or residential units under the Developer Defendant's control bearing on compliance with this Consent Decree at any and all reasonable times, provided, however, that the United States shall endeavor to minimize any inconvenience to the Developer Defendant from such inspections.
XIII. RENT STABILIZATION 50. In the event a resident of The Melar files a complaint with the New York State Division of Housing and Community Renewal under Section 26-5141 of the Rent Stabilization Law or Section 2523.4 of the Rent Stabilization Code alleging that the performance of a retrofit as required by this Consent Decree constitutes a diminution of services, the Developer Defendant will inform the United States that such a claim has been filed and the Developer Defendant will defend against the claim in good faith with all best efforts. If the New York State Division of Housing and Community Renewal rules against the Developer Defendant, the Developer Defendant will promptly enter into negotiations with the United States to reach agreement on an appropriate substitute for the particular retrofit at issue. If the United States is not satisfied with the substitute(s) proposed by the Developer Defendant, the United States may apply to the Court
(i.e., the United States District Court for the Southern District of New York), in which case this
Court shall select a substitute for the particular retrofit at issue. XIV. LOW-INCOME HOUSING TAX CREDIT PROGRAM COMPLIANCE
51. With respect to low-income housing tax credits, the Developer Defendant understands that, in the event that the Developer Defendant fails to comply with any of the terms of this Consent Decree and the United States, on notice to the Developer Defendant, obtains an order establishing such noncompliance, the United States may take action, including but not
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limited to notifying the appropriate state housing finance agency of the violation. See 26 U.S.C. § 42(m)(I)(B)(iii).
XV. DURATION OF CONSENT DECREE AND TERMINATION OF LEGAL ACTION
52. This Consent Decree shall remain in effect for three years following entry of this Consent Decree by the Court. By consenting to entry of this Consent Decree, the parties agree that in the event that the Developer Defendant engages in any future conduct occurring after entry of this Consent Decree that leads to any judicial or administrative determination of a violation of the Fair Housing Act, any civil penalty relating to such future conduct shall be calculated as if the conduct were a "subsequent violation" pursuant to 42 U.S.C. § 3614(d)(l )(C)(ii).
53. The Court shall retain jurisdiction for the duration of this Consent Decree tc enforce the terms of the Consent Decree. The United States may move the Court to extend the duration of the Consent Decree in the interests ofjustice, and the Developer Defendant may oppose such a motion.
54. The United States and the Developer Defendant shall endeavor, in good faith, to resolve informally any differences regarding interpretation of and compliance with this Consent Decree prior to bringing such matters to the Court for resolution. However, in the event of a failure by the Developer Defendant to perform, in a timely manner, any act required by this Consent Decree or otherwise for its failure to act in conformance with any provision thereof, the United States may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and reasonable attorney's fees which may have
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been occasioned by the violation or failure to perfonn. The Developer Defendant may oppose such a motion.
55. Upon the tennination of this Consent Decree, the Court shall dismiss this Action with prejudice. Such dismissal shall only release the Developer Defendant from claims by the United States regarding alleged failures to design and construct The Melar pursuant to the FHA as of the date ofsuit in this Action. Such a dismissal shall not release the Developer Defendant from any other claims by the United States, including but not limited to any claims regarding other designed and constructed Covered Multifamily Dwellings, and any claims regarding FHA violations at The Melar other than failures to design and construct The Melar as required by the FHA.
XVI. TIME FOR PERFORMANCE 56. Any time limits for perfonnance imposed by this Consent Decree may be extended by the mutual written agreement of the United States and the Developer Defendant without Court approval.
XVII. COSTS OF LITIGATION 57. Each party to this litigation will bear its own costs and attorney's fees associated with this litigation.
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The undersigned apply ror and consent to the entry of this Consent Decree:

For the United States:

TIIOMAS E. PEREZ Assistant Attorney General Civil Rights Division

PREET BHARARA

United States Attorney

By·~
~GHT

--....

BRIAN M. FELDMAN

LIYU

Assistant United States Attorneys

86 Chambers Street, 3rd Floor

New York, New Yorl< 10007

Tel. Nos. (212) 637-2777

Fax Nos. (212) 637-2717

Sarah.Light@usdoj.gov

Brian.Feldman@usdoj.gov

Li.Yu@usdoj.gov

For Defondant L&M 9r Street LLC:

~TLLC By:

.{_

Member

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00 Park Avenue New York, New York 10166-4193 Telephone Nos. (212) 294-267712679 Facsimile Nos. (212) 294-4700 nunderberg@winston.eom Jhadlock@winston.eom SO ORDERED this ~-..._ _ _ day of~~~~~~~~--' 2010. HON. UNITED STATES DISTRICT COURT JUDGE
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APPENDIX A PUBLIC AND COMMON USE AREAS

As soon as reasonably possible, but no later than 6 months from the entry of this Order, Defendants shall finish the retrofits identified in this Appendix A.

FAIR HOUSING ACCESSIBILITY GUIDELINES REQUIREMENT 2

ELEMENT Swinging doors adjacent to revolving door

MAIN BUILDING ENTRANCE
CONDITION
Left door opening force of 9 lbs. and right door opening force of I 0 lbs. (left/right orientation is facing the doors from the inside)

AGREED UPON RETROFIT
Will decrease opening force to no more than 8.5 lbs with the option of installing a magnetic lock that can be released by an accessible push button on either side of the door if weather conditions make it necessary

1

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ELEMENT Entrance door Entrance door Entrance door Coat hooks

LEASING OFFICE

CONDITION

AGREED UPON RETROFIT --

Opening force of 16 lbs.

Will decrease opening force to no more

than 5 lbs.
---

Closing speed less than 3 second minimum Will change to 3 sec. min. from 70 degrees i

to 3 in. from latching

Level change at entrance door 3/4" high with no bevel
65" to 69" above the finished floor ("AFF")

Will make the level change 112" high

max.; beveled at I :2 above 1/4"
J Will lower coat hooks to max. of 54" AFF I
for side reach; lower to 48" max. AFF for

forward reach

_

UNISEX BATHROOM IN LEASING OFFICE This bathroom shall be for the use of staff onlv. The fitness center bathroom, on the same floor, is ooen to the oublic.

ELEMENT Entrance door
Toilet seat Rear grab bar

UNISEX BATHROOM NEAR FITNESS CENTER

CONDITION 2' -I 0" wide door; 31" clear width
---
19 3/4" AFF

AGREED UPON RETROFIT

-

Will widen to 32" min. clear opening

width between the face of the door at 90

degrees to the stop on the latch side

Will lower the toilet seat to 17" min. to 19" max.AFF

Obstructed by mirror frame above the grab Will replace the mirror frame with a non-

bar projecting 1 3/4" from wall _

obstructing frame

2

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UNISEX BATHROOM IN LAUNDRY ROOM This space shall be converted into a storage room, which shall comply with ANSI 1986 and the Guidelines if it is open to tenants.

ELEMENT Mailboxes

MAILBOXES ________r------------------------,

CONDITION

AGREED UPON RETROFIT

Top3 rowsat661/2"and61",551/2" AFF

Willassignaccessiblcspareboxedto provide access, if permitted by USPS

ELEMENT Door
Shelf at entrance door Fire extinguisher

LOUNGE CONDITION
--
Pull side latch clearance 2 1/4"
---
Protrudes 8 3/4" at 38 1/4" AFF
--
Protrudes 5" at 44" AFF

AGREED UPON RETROFIT

J

Will convert the door to an emergency egress door with no hardware on the pull side; will provide another accessible routt in full compliance with ANSI 1986 and th e Guidelines

Will adjust the shelf to protrude 4" max; cr move it to 80" min. AFF; or provide cane detectable barrier below

Will adjust the extinguisher to protrude 4' max; or move it to 80" min. AFF; or provide cane detectable barrier below

ELEMENT Vestibule door

FITNESS CENTER CONDITION Opening force 18 lbs.

---

---

J AGREED UPON RETROFIT
Will decrease opening force to no more than 5 lbs.

3

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Entrance door from vestibule Fire extinguisher
Hand scanner
ELEMENT Entrance door Entrance door Entrance door "Value Add" vending machine
Fire extinguisher
Sink Sink

Opening force 17 lbs. Protrudes 5" at 44" AFF
Protrudes 8 lf2" at 41" AFF

Will decrease opening force to no more than 5 lbs.
Will adjust the extinguisher to protrude 4" max; or move it to 80" min. AFF; or provide cane detectable barrier below
Will adjust the scanner to protrude 4" max; or move it to 80" min. AFF; or provide cane detectable barrier below

LAUNDRY ROOM

CONDITION Opening force 13 lbs.
·-·
Closing speed less than 3 second minimum
·-
Threshold, room side- I 1/2" high, no bevel

AGREED UPON RETROFIT

··-

Will decrease opening force to no more

than Sibs.

Will change closing speed to 3 second min. from 70 degrees to 3" from latching

Will make the level change 1/2" high max.; beveled at I;2

Protrudes 7" at 52 1/2" AFF

Will adjust machine to protrude 4" max; or move it to 80" min. AFF; or provide cane detectable barrier below

Protrudes 5" at 42" AFF

Will adjust extinguisher to protrude 4"

I I

max; or move it to 80" min. AFF; or

provide cane detectable barrier below

CountertoJl36" AFF No knee clearance for forward approach

Will lower sink to 34" max. AFF

·-,

Will provide knee and toe clearance and

pipe insulation in accordance with ANSI

4.19.3 & 4.19.4

1

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ELEMENT ---
Door
--
Door Chute access door - 4th floor Chute access door -hardware Overhead fire protection system piping Metal sign hanging from overhead piping

TRASH CHUTE ROOMS

CONDITION

AGREED UPON RETROFIT

All floors- 2' I0" wide door; 31" to 31

Will provide alternative trash pick-up by

114" clear o~ning width

building staff for any disabled residents or

All floors - 0" pull side lateh clearance Opening force- 6 lbs.

guests, according to the following procedure: The disabled individual will notify the concierge desk, at any time

Requires twisting to open chute door

between 8:30am and 5:30pm daily, that

---

--~

Headroom 78" AFF

trash pick-up is needed, and the concierge

will arrange for a porter to be dispatched to

Headroom 70 112" to 72" AFF

the apartment promptly. Residents will be

notified of this procedure in writing, and

' notices of this procedure will be posted on

I building bulletin boards.
---

ELEMENT Approach to terrace door
Terrace door

4TH FLOOR TERRACE

CONDITION

AGREED UPON RETROFIT

13" level change at terrace door (2 steps up Will install a ramp or lift

to terrace door)

---

--

ll lbs. opening force

Will decrease the opening force to 8.5 lbs.

--·- - - - -

max.

ELEMENT Maneuvering clearance at cage doors

BASEMENT STORAGE CONDITION One aisle 42" wide; remainder 36" wide
--

:l AGREED UPON RETROFIT
There are 143 units in the building at 35 storage cages, which are available for r<

on a first-come first-serve basis. If a

I

5

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Fire extinguisher
ELEMENT Si11.n Sign
[ELEMENT Sign_ ~~

Protrudes 5" at 40 1/2" AFF

- - - - - --~

LEASING OFFICE

CONDITION

Mounted on door

Centerline 61" AFF

---

storage cage becomes avai Iable for rent by a disabled resident, The Melar will assign that resident one of the two cages closest to the entrance of the room. The Melar will prominently display a sign at the opposing bicycle rack stating that only children's bicycles may be hung on the first two hooks of the rack, so as to ensure the availability of a 60" min. diameter turnaround space.
Will adjust the extinguisher to protrude 4" max.; or move it to 80" min. AFF; or provide cane detectable barrier below

AGREED UPON R~:TROFIT

Will mount on latch side of door

Will lower to 60" AFF measured to

centerline of the sign

--

UNISEX BATHROOM IN LEASING OFFICE

I CONDITION

AGREED UPON RETROFIT

Mounted on door _

Will mount on latch side of door

6

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APPENDIXB UNIVERSAL RETROFITS

As soon as reasonably possible, but no later than 6 months from the entry of this Order, Defendants shall complete the retrofits listed in this Appendix B.

UNIT(S) 5F-15F

UNIT ENTRANCE DOOR THRESHOLD

...,._._"'-"''-'.._.._ .. a·~._

\ " ' ' J ... ~..._. CL'-'"'-'.L:..V<J.LA~ll&J.LJl ... ""v.a.A.J"...:..L~al~-.:....;, •~vv•.:,-.:..J.•.LI:J.l"~ . , , ...., ..... ' - " •

CONDITION

AGREED UPON RETROFIT

Level change at entrance door is 1/2" high, Will make level change 114" high max.; or

beveled at 1:1

3/4" high max. beveled at I:2 above 114"

UNIT(S) 161h Floor Units

TERRACE THRESHOLD
.& .. ,.. ....,.. .................. ..., .. ~ · - . --~ ....... &..1.._.....,,._......................,.....,_..,..,.AJ ..... ,. ............- .._ ....
CONDITION

...---· ... .. ..... ......-..._., -~"'' .....

,..

AGREED UPON RETROFIT

Level change at terrace door exceeds maximum of3/4"

If requested by a disabled resident or disabled prospective resident, will installl lift

BATHROOM CLEAR FLOOR SPACE

... • ~·1.11- .-... ..._. . _ ...................................... .....,_.&:..<OJ'-J.L-Jl'"'->-'L .a ... - ..........JU>............ _._... ~ ...............

" ' " " .......................a.;.t.. " ... , , j,JAJ ........ , ..., , _ , , . ,

UNIT(S)

CONDITION

AGREED UPON RETROFIT

I

Common issue to all units

CLFS beyond door swing 30" wide minimum by 48" long minimum

If requested by a disabled resident or prospective resident, will reverse door swing

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UNIT(S) Common issue to all units

OBSTRUCTION OF GRAB BAR LOCATION

FAIR HOUSING ACCESSIBILITY GUIDELINES REQUIREMENT6

CONDITION

AGREED UPON RETROFIT

Banjo counter top at lavatory obstructs grab bar location

If requested by a disabled tenant, will remove the banjo and install a grab bar above the toilet

UNIT(S) 5F-15F
iuNIT(S) 116B-22B
I

KITCHEN ENTRY

,&_·£1a.a:.. -.I..L""''-'~.JtJ."''"" ...,.._,.,._.,.a:J>.JV.&..,.Jt&.JI .1. ......... V.LA.I'A:.I ...... I.l"'..,;.IIJ &~""-.[.'l ..A;'Oit..L.IJ. ...S..&;.jJ_"'. ,

IJ.I.:.IV• \.l#

CONDITION

AGREED UPON RETROFIT

Less than 40'' minimum width at entry and at refrigerator

Will remove the kitchen entrance wall

opposite the refrigerator and rebuild the

wall flush against the vertical beam;

provided, however, that this retrofit will be

made upon a resident's request, the

vacancy of the unit, or prior to the

termination of the Consent Decree,

whichever is earlier

--

KITCHEN CLEARANCE

FAIR HOUSING ACCESSIBILITY GUIDELINES REQUIREMENT 7, SEC. (l)(b)

CONDITION

I~GREED UPON RETROFIT

Less than 40" minimum width at refrigerator

Install a low-profile refrigerator or recess refrigerator to provide 40" minimum
I width; provided, however, that this retrofit

will be made upon a resident's request, the

&DVHFY50%0+''RFXPHQW)LOHG3DJHRI

I

~

Ivacancy or the unit, or fifteen os) molllh:L]

KITCHEN RANGES PROVIDE INSUFFICIENT CLEARANCE

... ..._.....,_......,_.;.;<JL.t&.i. .. .&c .o···:...&.o.'- .L-L"'-">J.L.< ..,....., ~..._.-.L..I._,....,. A#.& ...... A :&

I 1 \ & J \ R } .L.t. . . . . ., •.~"-£'-'.LJi........::J'l.-'I'.A.L.I.t"' Jl

U'L.o'--'•

UNIT(S)

CONDITION

AGREED UPON RETROFIT

All units except 16B-22B, 50-150, 5J-ISJ, SK-ISK, and 160-22[) SA-lSA, 5C-15C, 50-lSD, SE-15E, 16A22A, 16B-22B

Less than 40" minimum width at refrigerator
A 30" x 48" clear floor space parallel to and centered on the range for a side approach is not available.

---
50-150, SH-ISH, 160-220
SJ-151, 5K-15K, \6E-22E, \6F-22F

A 30" x 48" clear floor space parallel to and centered on the range for a side approach is not available.
----
A 30" x 48" clear floor space parallel to and centered on the range for a side approach is not available.

I

5J-15J, 5K-15K, 16E-22E, 16F-22F

A 30" x 48" clear floor space parallel to and centered on the range for a side approach is not available.
----

If requested by a resident, will install a low-profile refrigerator

If requested by a disabled resident or a

disabled prospective resident, will provide

a 30" x 48" clear floor space centered on

the range for a side approach.

---

Install a low-profile refrigerator; provided,

however, that this retrofit will be made

only upon a resident's request. ----
Will move the range 2" towards the

hallway by removing a 2" portion ofthe

countertop and placing that portion of

countertop on the other side of the

range; provided, however, that this

retrofit will be made upon a resident's

request, the vacancy of the unit, or fifteen

(15) months after entry of the Consent

Decree, whichever is earlier.

Will either:

(i) make the wall adjacent to the

range, on the hallway side, flush

with the range and countertop, bj'_

&DVHFY50%0+''RFXPHQW)LOHG3DJHRI

shaving that wall, or (ii) make the range flush with the face of the adjacent wall, on the hallway side, by pulling the range forward. Provided, however, that this retrotit will be made upon a resident's reouest.

KITCHEN OUTLETS

r------------'F=AIR!fO_USING AC_!:F;SSffiiLITY GUIDELINES REQUIREMENT 5

UNITeS

CONDITION

AGREED UPON RETROFIT

Common issue to all units 5G-15G, 5H-15H, 160-220

Kitchen outlets more than 46" above

Will install power strips to provide outlets

finished floor or ground surface measured at or below 46" from finished floor and at

to the centerline of the highest outlet

or less than 12" from side wall

and/or more than 12" from side wall or

appliance measured to the centerline of the

.. outlets

Kitchen outlets less than 36" minimum

Will install power strips to provide at least

from comer measured to the centerline of 36" from the comer

the outlets

&DVHFY50%0+''RFXPHQW)LOHG3DJHRI

KITCHEN SINKS PROVIDE INSUFFICIENT CLEARANCE

UNIT(S)

I FAIR

HOUSING

ACCESSIBILIY CONDITION

GUIDELINES

REQ!JIRE"'M..:r-Eo..:N.!:.T-'-7'-',S:::E=-:C"-'.-'-''O.J.'""'~"'-'- - - - AGREED UPON RETROFIT

-

-

-

, ~

5G-15G, 5H-15H, 16D-22C

Removable base cabinets required;

I Will cover pipes beneath kitchen sinks

however, upon removable of base cabinet,

unwrapped pipes are exposed

UNIT(S) 5B-15B, 51-151

CLOSETS

.,.,._,._..._......... ..._......,,v .... ,..._.. .,_., ...._. . ...,....,.....,....._.....,.,......,,. .. & "'-".,....,....,._._......,..,..,,.....,.._,."'

..................... ~ ........... ~ ....... , .................. - J

CONDITION

AGREED UPON RETROFIT

Clear width at closet doors less than a nominal32"
---

Will provide disabled residents with adjustable wheeled garment rack, or will reduce the dep_th of the closet to 26"

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APPENDIX C-1
NOTICE TO RESIDENTS OR PROSPECTIVE RESIDENTS OF RETROFITS FOR THE MELAR APARTMENTS,
WHICH MUST BE SCHEDULED WITHIN THE NEXT SIX MONTHS
The Melar is dedicated to the principle of equal housing opportunity. The federal Fair Housing Act requires that apartments in newer apartment communities have certain features of physical accessibility for people with disabilities.
This is to advise you, as a result of a settlement in a case brought by the United States against the owners and the other builders and designers of this apartment complex, we have agreed to modify, by varying degrees, the apartments at The Melar to provide greater accessibility for people with disabilities. Your unit or prospective unit is one of the units that will be modified.
We will be making the following modification[s] to your unit [NOTE: each notice will be separately tailored to the specific modifications to be made to that particular unit]:
Adjustment of threshold at entrance door
Installation of power strips for kitchen outlets
Replacement of the wall opposite the refrigerator, to provide greater clearance between the refrigerator and the wall
Installation of a new, low-profile refrigerator
Adjustment of position of range
Installation of adjustable wheeled garment rack, or modification of closets
Any scheduling of the modifications will take into account your preferences and convenience. In most instances, the actual work will take no than several hours; a small subset of modifications in the F line of apartments may take up to two days. Should you have to move out temporarily, we will pay reasonable relocation and housing expenses while the modifications are being made. The modifications are being made at no cost to you.
While you do not have to request the modifications now, you should be aware that this work must be completed within the next six months, regardless of your intention to stay in the apartment for a longer time. A representative will be contacting you soon to review these modifications and to discuss a time frame within which these modifications may be made.
If you have any questions, please contact us at the management office.

&DVHFY50%0+''RFXPHQW)LOHG3DJHRI
APPENDIX C-2
NOTICE TO RESIDENTS OR PROSPECTIVE RESIDENTS OF AVAILABLE RETROFITS FOR THE MELAR APARTMENTS
The Melar is dedicated to the principle of equal housing opportunity. The federal Fair Housing Act requires that apartments in newer apartment communities have certain features of physical accessibility for people with disabilities.
This is to advise you, as a result of a settlement in a case brought by the United States against the owners and the other builders and designers of this apartment complex, we have agreed to offer certain modifications to apartment units at The Melar to provide greater accessibility for people with disabilities upon request of residents or prospective residents.
The modifications available upon request are: [NOTE: each notice will be separately tailored to the specific modifications to be made to that particular unit]:
Installation of a lift in the 16th floor units to provide access to the terrace
Reversal of the swing of the bathroom door
Removal of the banjo countertop and installation of a grab bar above the toilet
Substitution of a low-profile refrigerator, to provide greater clearance between the refrigerator and the opposing counter
Adjustment of position of range
Any scheduling of the modifications will take into account your preferences and convenience. The actual work wili take no more than five days and, should you have to move out temporarily, we will pay reasonable relocation and housing expenses while the modifications are being made. The modifications are being made at no cost to you.
In addition to these modifications, please be advised that, upon the request of residents or prospective residents or guests with disabilities, The Melar will make arrangements for alternative trash pick-up by building staff, according to the following procedure: The disabled individual will notifY the concierge desk, at any time between 8:30am and 5:30pm, that trash pick-up is needed, and the concierge will arrange for a porter to be dispatched to the apartment promptly.
If you have any questions, please contact us at the management office.

&DVHFY50%0+''RFXPHQW)LOHG3DJHRI
APPENDIXD
NOTICE OF RETROFITS TO PUBLIC AND COMMON USE AREAS OFTHEMELAR
To Our Residents and Prospective Residents:
Federal law requires that the public and common use areas at the Melar contain accessibility features for persons with disabilities. Within the next six months, we will be undertaking a program of retrofits to the public and common use areas to make them more accessible to persons with disabilities. A list of retrofits we will be undertaking is available at the leasing office. We do not anticipate that current residents will have to be relocated during the term of their tenancy or that prospective residents will have their move-in dates delayed because of the retrofits we will be undertaking.
Should you have questions regarding this letter, please contact the leasing office at the Melar or the United States Attorney's Office, Southern District of New York, at (212) 637-0840.
Sincerely, TheMelar

&DVHFY50%0+''RFXPHQW)LOHG3DJHRI

APPENDIXE

NOTICE TO PERSONS WHO MAY HAVE SUFFERED HOUSING DISCRIMINATION

On , the United States District Court for the Southern District of New York entered a consent order relating to The Melar. The United States Department of Justice had alleged that the building lacked certain accessible features for persons with disabilities, as required by the Fair Housing Act, 42 U.S.C. § 3604(t)(3)(c). The Melar denied the allegations and agreed to the consent order to settle the matter without Iitigation.

Under this consent order, a person may be entitled to receive monetary relief if he or she:

•

WAS DISCOURAGED FROM LIVING AT THE MELAR BECAUSE OF

THE LACK OF ACCESSIBLE FEATURES;

•

HAS BEEN HURT IN ANY WAY BY THE LACK OF ACCESSIBLE

FEATURES AT THE MELAR;

•

PAID TO HAVE AN APARTMENT ATTHEMELARMADEMORE

ACCESSIBLE TO PERSONS WITH DISABILITIES; OR

•

WAS OTHERWISE DISCRIMINATED AGAINST ON THE BASIS OF

DISABILITY AT THE MELAR.

If you wish to make a claim for discrimination on the basis of disability, or if you have any information about persons who may have such a claim, please contact the United States Attorney's Office, Southern District of New York at 212-637-2800, and ask for the Civil Rights Unit Chief. You may also fax us at 212-637-2702 or write to:

United States Attorney's Office, Southern District of New York Attn: Civil Rights Unit 86 Chambers Street
New York, New York 10007

NOTE: You must call or write no later than ,200_

• Defendant denies the allegations of the complaint, and entered into the consent order for settlement purposes only, without admitting any issue of fact or law. Defendant's denial of liability, however, does not preclude any person from receiving monetary relief under the consent order.

&DVHFY50%0+''RFXPHQW)LOHG3DJHRI

APPENDIXF

RELEASE FORM

In consideration of the payment of the sum of

dollars

($

, pursuant to the Consent Decree entered in United States of America v. L &

M 93rd Street LLC, et al., (S.D.N.Y.), I hereby release the defendants named in this

action from any and all liability for any claims, legal or equitable, I may have against

them arising out of the issues alleged in the above-styled action.

I fully acknowledge and agree that this release of tbe defendants shall be binding on my heirs, representatives, executors, successors, administrators, and assigns.

I hereby acknowledge that I have read and understand this release and have executed it voluntarily and with full knowledge of its legal consequences.

(Signature)

(Print name)

(Date)

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APPENDIXG ACKNOWLEDGMENT OF RECEIPT OF CONSENT ORDER - - - - - ' ' am an employee of _ _ _ _ _ at The Melar and my duties include------I have received and read a copy of the Consent Decree in United States of America v. L & M 93rd Street LLC, et al., (S.D.N.Y.), and have had all of my questions concerning the Consent Decree answered to my satisfaction.
Employee Signature

 
 Case 1:10-cv-07495-RMB -MHD Document 5 Filed 11/04/10 Page 1 of 3

®
REAL ESTATE BOARD OF NEW YORK

MEMO ENDORSED

November 3, 2010

BY HAND

't1-/1v PM-h:u, JflU ( ""t+

bt\"tr.~ ... ~tk,#-tt+JtVlS~ .,.,

Hon. Richard M. Berman United States District Judge United States Courthouse 500 Pearl Street New York, New York 10007

,. ~~..,) -I4.J X .,.,,.....I!t-I~J"

"'!fA.''''''' "'SIUJj~;I f'O /d.$.O '1 IIIOtl:~ito/O

@ N'iN. "flu t _ttl NI T
I'.

•

I,

Re: United States v. L&M 93rd treet LLC. et al.

~-----

Dear Judge Berman:

?w!J.ftf'~•• IOCiv.74950 ~DateO: R"Drt(,,jr1,0/ • I

N
Richa~ M. &rNt.~ r:.S. 0 ..1.

Onbehalf ofthe Real Estate Board " .•~n ,v.a,

n

•

12,000 owners, brokers, and managers of real property in New York City, and in light of the questions

raised in Your Honor's Administrative Order in the above-referenced action dated October 22,2010,

we are submitting this letter to bring to the Court's attention the grave conceros of New York City's real

estate industry regarding the proposed consent decree that has recently been submitted for the Court's

approval.

The real estate industry strongly supports the importance of providing access to people with disabilities in multifamily residential apartment buildings. More specifically, we appreciate the importance of compliance with the design and construction requirements of the Fair Housing Act. Since 1987, even prior to the enactment of these provisions of the Fair Housing Act, design and construction in this City has been governed by New York City Local Law 58, which provides a detailed and comprehensive code of accessibility that is inclusive of all of the requirements of the Fair Housing Act (REBNY collaborated with disability rights groups in connection with passage of that law). The City's current accessibility law, which became effective in 2009, also incorporates all of the requirements of the Fair Housing Act. See 42 U.S.c. § 3604(f)(5)(A) ("If a State or unit of general local government has incorporated into its laws the requirements set forth in paragraph (3)(C) [the design and construction provisions of the Fair Housing Act], compliance with such laws shall be deemed to satisfy the requirements of that paragraph").

The proposed Melar consent decree, however, is creating tremendous uncertainty for New York

City real estate and construction. Components of the consent decree would create inconsistencies with

New York City law and call into question everyjLuilging in the City completed after March 13, 1991,

-,--

.. Cf'IMf:rl\J?L~~ fith both local and federal

\ U£~i ~uirements. DOCUMENT
1, ELECTRONICALLY FILED

---~"':#JOG I G3'1ld XTlYJINOll..lJ3'13 !I

! DOC

.lN3WOJOG I

\ DATE FILED: I

A.NQS ;)(JSfl

570 Lexington Avenue. New York. N.Y. 10022 IEL (212) 532·3100 FAX (212) 779-8774

Ov.r 100 Y.ars of Building and Serving New York

Case 1:10-cv-07495-RMB -MHD Document 5 Filed 11/04/10 Page 2 of 3
The United States Attorney's Office is already pursuing similar investigations against at least 10 additional real estate developers that in total have designed or constructed thousands of housing units in New York City since 1991. REBNY estimates that there are approximately 176,000 dwelling units across the City that could be subjected to investigation and face similar penalties through enforcement by the U.S. Attorney's Office. The costs associated with mandating these kinds of modifications in existing buildings, or in those that are well into their design or construction phases, could be prohibitively high, especially given today's struggling economy and real estate capital crisis.
Further, the implications for affordable housing in the City could be even more severe. The City, through the Department of Housing Preservation and Development ("HPD"), explicitly mandated the use of Local Law 58, and now thc City's new accessibility code, in its architectural standards for all affordable housing projects that it oversees. According to HPD, the City has financed more than 64,000 new-construction affordable housing units since 1991: A consent decree that will invariably result in passing unnecessary and wasteful costs onto future tenants is not good policy, but more importantly we believe that it is well beyond the appropriate goals of the Fair Housing Act.
We agree that the proposed consent decree, in the Court's words, "appears to impose costly and bureaucratic additional burdens" on the Developer. In particular:
• Aggrieved Persons Fund - Consistent with the consent decree recently entered in United States v. CVP I, et aI., No. 08 Civ. 7194 (SHS) (S.D.N.Y.) ("Avalon Bay"), the Melar consent decree requires the Developer to deposit monies into a fund to compensate aggrieved persons (see" 25-35 & Appendix E). However, unlike the Avalon Bay decree, monies not used to compensate aggrieved persons do not revert to the Developer. Such a reversion would havc ensured that the Developer not be compelled to pay an amount beyond what is actually necessary to compensate aggrieved persons. Without a reversion, this provision in essence imposes an unauthorized additional penalty on the Developer. The fund amount, moreover, appears excessive, given REBNY's understanding that the building, which only opened in 2006, has not received a single complaint regarding accessibility.
• Accessibility Project Fund - The consent decree also requires the Developer to establish an Accessibility Projcct Fund in the amount of $288,300 (see' 37). The decree does not identify any violations or other bases for the establishment of this sizcable fund, which effectively imposes a back door penalty on the Developer. Moreover, to the extent that the fund is intended as a proxy for specific retrofits, it underscores the unfairness to the Melar and countless other developers who will be confronted with the Hobson's choice of imposing potentially unneeded, unwanted retrofits on tenants or paying significant monies into an amorphous Accessibility Project Fund.
• Retrofit Provisions- The Melar consent decree requires various retrofits to correct alleged violations of the Fair Housing Act that REB1'-i'Y does not agree are violations at all. Among these items, the consent decree requires the Developer to move kitchen ranges two inches, with the attendant disruption caused by the removal and replacement of kitchen countertops; the Developer is requircd to do SO because in the current configuration the ranges are not centered on the parallel clear floor space in front of the ranges (see Appendix B at p.3). But this requirement is imposed notwithstanding that New York City's accessibility code and the Fair
2

Case 1:10-cv-07495-RMB -MHD Document 5 Filed 11/04/10 Page 3 of 3

Housing Act do not require that the ranges be centered. REB1'.1Y views these types of provisions, which do not remedy any actual violations of the law, as burdensome, wasteful, and costly, without any corresponding benefit to current or future residents of the building.
• Retrofits Not "On Request" The consent decree also requires the Developer to impose potentially unwanted modifications to residential units rather than allowing the Developer to do so upon request. Tenants may not want the disruption of a retrofit construction or may prefer the existing components, which may even have factored into the decision to rent that particular apartment. For example, the consent decree requires the Developer to enter current tenants' apartments and either recess walls or replace their refrigerators with smaller refrigerator units, for the purpose of slightly widening the distance between the refrigerator and the opposing counter (see Appendix B at pp. 2-3). This approach has been imposed notwithstanding that the "adaptive" solution of offering a smaller refrigerator at the request of a disabled tenant comports fully with the requirements of the Fair Housing Act. See Phillips v. Downtown AJJordables. LLC, CV. No. 06-00402 DAE-BMK, 2007 WL 2668637, at *6-*8 (D. Haw. Sept. 5,2007). By mandating these retrofits within a prescribed timeframe, rather than allowing them on request of a tenant, the consent decree causes undue disruption, removes choice from all tenants, and raises the possibility of significant owner/tenant disputes.
• Future Construction - Finally, the Decree imposes intrusive goverrunent oversight over future
mr construction in the City (see 22-24), when the government would have no authority in this
area absent the Decree. As discussed above, the City has a detailed and comprehensive local accessibility code, and owners and developers are obligated to design and construct their buildings pursuant to it. The provisions of the consent decree governing future construction heighten the uncertainty that now pervades the industry, threatening to deter future development and hamper the economic recovery of New York, again without improving New York City's accessibility laws or increasing accessibility in the City's buildings.
The Real Estate Board recognizes that parties to a litigation choose to settle for a variety of reasons, and we do not purport to speak for the Developer regarding its reasons for signing the consent decree. From the industry's perspective, however, the unduly onerous and burdensome terms of the proposed consent decree far exceed the appropriate reach of the law, and we are deeply concerned about the implications of this consent decree for the thousands of other buildings in the City, publicly and privately owned, that are subject to the design and construction provisions of the Fair Housing Act.
We thank the Court for its consideration of this submission.

cc: (by Electronic Mail) Brian M. Feldman, Esq. John M. Hadlock, Esq.

~'
~~ir4iJl:---f

3

 
 J iE C[E \VI leN' D NOV-15-2010Ca2s0e:315:10-cv-074u9s5-ARTMTOBRN-EMYHD Document 7 Filed 11/16/10 Page 1 of 13

I

U NOV 162010

WINSTON
& STRAWN
LLP

cHAY8l!Jli OF
RICHARD M.,8EFIMAN
U.S.D.J. .-

JOHN M. HADLOf;X.
OfCounscl
(212).294-2679 jhadlOcl!;@winston.eom

November IS, 2010

C",,",Rlom

BXHANR
The Honorable Richard M. Berman
United States Di$trlct Court
Southern District ofNew Yark DlDIiel Patrick Moynihan United States Courthouse SOO Pearl Street New York. New Yon. 10007
al: Re: Uuited States v. L&M 93rd Street LLC, et 10 Civ. ~utRMB~~)L..-_ _ _~~
Dear Judge Be.tmaII:
During the course of the telephone conference on Wednesday you set forth six COn<:errul that you had conceming the proposed consent decree in this matter . and invited the parties to attempt to address them and report Dac.k to you at the hearing tomorrow concerning any progress that we might have been able to make (page 23 of the U'anscript of the conference, a copy of which is attached.) Your expressed concerns were: first, whether the City of New York bas a primary role to play in ensuring that new construction is compliant with the FHA; fIeIlQnd, whether more than a single statutoty penalty is appropriate as to a single·building and whether the penalty, in this instance, which approaches the statutory IDIIXimum i$ appropriate; third, whether unclaimed money in the Aggrieved Person's Fund should revert to the Developer; fourth, whether thefe needs to be some IlSSW'anOe that the money deposited into the Accessibility Project Fund is
appropriately expended and whether a reverter to the Developer should be . included; fifth, whether the education program should be directed only to the "decision mllker.i"; and sixth, whether the three year term of the consent decree is
too long. (The tranBcrlpt at pages 23 through 25.)

O;N!.VA
HONOl<ONC
WHoa,..,
MOSCOW
N.eWA~
PARIS SAN FRANCISCO
W><$tlINOTON, D.C:

Following the conference further discussions with the attorneys in the U.S. Attorney's Office ("USAO',) have not been productive. As described in the USAO's letter to you dated October 29, 2010, the settlement from the Govemment's perspective is the result of input from several Department of

NY:1314S07.1

." '._'l< .-1 ~
" , ,'~!!' ,~. I .' r','V, , L .
\. .

NOV-15-2010Ca2s0e:316:10-cv-074u9s5-ARTMTrBnN-EMYHD Document 7 Filed 11/16/10 2P1a2g6e327 o2f71173

WINSTON & STRAWN Lt.P

The Honarable Richard M. Berman November 15,2010 Page 2

Justice officials in Washington and perhaps for that reason the USAO attorneys. following the

telephone conference, reasserted that from the Govern:r:nent's perspective none of the terms of the

Consent Decree may be modified in any way, including any of the six: terms that you addressed

during the telephone conference. Moreover. in response to your observation that the parties are

free to enter into a private settlement agreement, without the need for any input by the Court, the

USAO attorneys asserted that it's not the policy ofthe USAO or the Jufftioe Department to utilize

private settlements and that is not an option. They did Suggest a bifurcated settlement in which

only the terms that the Court finds to be objectionable wonld be transferred to a private side

ag.:eement. Our response was that such an mangement wonld be an obvious "end run" around

the Court's concerns and wonld likely not be satilifuctory to the Court, but in any event it is not

satisftlctory to 1)Uf client. The resqlt therefore is that whereas OUI clieut has no particular appetite

for a complex and potentially expensive lawsuit. the Federal Gove~ent bas left it with no

realistic option. It is therefore prepared to proceed with the lawsuit with the objective of se.:k:inj

a final resolution that Is mote clearly reflective of the publio i:nterest as suggested by the Court,

and wIlich is not as burdensome and p~tive as the existing Consent Decree. It is relegated to.
litigation whether or not that Is its deSice, bot in the proCCS!l it will se.:k a. prruient resolution of

the

critical

issues

that

will

be

conte,up,

including

those

that. '.

the

Court

.O::~cwry

ilescrlbed.

In. its endorsed order dated '~veinbet 1;' 201 0, the oourtr invited our cltent,:the Developer,

I. temPonUY in its respoxise to provide copies of any building QOlIlpletion approvals by,. e.g., any building

in:IpectOI'5, such as certificates of occupancy, and we have previously submitted the most rer.ent

temporary certificate of occupancy. In tilrther response to ~t iw.itatioIi ~ ereJ.ncblding with

this

the Department of Buildings Inspection Hist6t)i. for the buildlJ!g. It !dlows that the

building .bas been inspected on several occasions since the fiist

C of 0 was issued.

We are also enolosing two inspection rePorts that we have been able to obtain from the Building

Department. dated June 23, 2006 and August 14, 2006. Further. several times during the COUl'Se

of the telephone conference you inquired concerning what role 1l!e City plays in ensuring that

new buildings are designed and built in compliance witl:\ the City's II #58, as well as in

compliance with the FHA, and you suggested that it does not appear to have been Congress'

intent to make US AtIOmeys after the fact building inspectors, following the completion of new

buildings and after the issuance of certificates of occupancy. (Transcript pages 10 and 13-15).

10 respolUle to that inquiry we enclose a copy of a letter dated July 14, 2008 from Michael

.CjIl\lozo, Corporation Counsel of the City of New YOtk, to Michael A. G!u'oia, the then U.s.

Attorney, addressing precisely that Issue. As Bet forth by Mr. Cardozo,.it Is.the City's view that

compliance with Local Law 58 corurtitutes compliance with the FHA as SpeCifically provided in

the FHA statute. When the City inspects for compliance with the NYC building code, including

LL 58, it believes that it is aIsQ effectiVely, if indirectly, inspecting for compliance with the FHA.

Mr. Cardozo's office on Friday specifieaI\y authorized me to deliver this letter to you setting

forth the City's position.

.

While the USAO asserts that this LL 58 issue is a. "red herring" because it has alleged that the building in question also violates LL 58, the Developer has denied that and it is Wldisputed that the USAO has not conducted Blly LL 58 inspection and has produced no list of

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1-0)-15-2011C3 as2e0:13:610-cv-0749u5s-RAMTTBOR-NMEYHD Document 7 Filed 11/16/10 P21a2ge6337o2f71137 p.e4
WINSTON &; STRAWN LLP
The Honorable Rjchard M. Berman November 15, 2010 Page 3
alleged LL 58 violations to the Developer, The!:efore. we beHeve the issues raised by the
'Corporation Counsel Cardozo are critioal to the Developer', dispute with the USAO and Will be
a critical issue to be resolved in this litigation. We lIpologize that we are submitting Ibis letter after the noon deadline that you requested.
We were not able to meet with our client until Ibis morning.

lMHIcm Enclosures

d,

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NY:13I4S01, I

NOV-15-2010Ca2s0e:316:10-cv-074U9S5A-RTTMORBNE-MY HD Document 7 Filed 11/16/10 21P2ag6e3742o7f1173 P.BS

\U(lIARI.... rARP(YI.Q
CM(H"d'tMlt/ft £'t;Im.ttl

THE CITY OF NEW YORK
LAW DEPARTMENT
1.00 Clfl'RC>! 5T1IJiZT NlI\V YQ1!l<. N,Y. 10007·2801

(212) 788·0800

f~" (212) 227-5641 mcot<lotO@l.w.nyc.gov

, .

July 14, 2008
Michael A. Garcia United Slates Attorney Southern District ofNew York 86 Chambers Street New York, NY 10007
Re: Fair H!i,!lSing AS inveslig(lloo
Dear Mike:
The Real Cslate Board of New YQrk ("REBNY',) has apprl$ed the City of Ihe investigation your office hIlS undertaken con<:emlng the complilm(:c of a number of developers with the design and conslrUetion requirements of the Fair Housing Act. It has also advised us of the meeting your Office had with REBNY ""presentative'S last week. Following Up on my conversations wilh Lev Dawson, I am wriling to urge that your office consider thaI, in the opinion of the City of New York, eomplillllC(l with New York City'S l.ocal Law 58 of 1987 satisfies the Fair'Housing Act reqllirements.
The City of New York takes pride in ils leadership in regulating desIgn and construction to promote accessibility. represented by the adoption of Local Law 58. This was reC<JgIlized in Congress when then RepreSlllltailve Charles Schumer alluded to Local Law 58 during debate on the proposed Fair Housing Act Amendmants, slating: "After worl'.!:n!! wilh the disllbility rights groups, the National Assoeiation of Home 'BlIllders, II1ld the realtors in my districl who are currently opel1lting under a similar, but more .stringenl New York law, I am convinced that the bill's mlnimal requirements for accessibility are the way to go."
The Fair Housing Act, as you know, requires at §3604(f)(3){C) thal multifamily dwellings have niM elements of llCCeSSible design, II1ld provides at §3604(f)(5) that "Jf a ". loeal government bas incorporated into its laws !he requirements set forth in paragIaph (3){C), compliance with such laws sball be deemed to satisfy the requirements of that paragraph." Our Local Law 58 indeed addresses all the f=tUI'CS of nccclISibility requlred by §3604(f){3)(C). While it does nol impose precisely the Slime requirements as the variou. standard. thal have been
!'e(;ognized as "SlIfe: harbors" for purpOses of the Fair Housing ACt, this is not required in order 10

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NOU-15-2010Ca2s0e:316:10-cv-074U9S5-ARTMTOBRN-EMYHD Document 7 Filed 11/16/10 2P12ag6e375 o27f 1173

sa.tisfy the IllteN of §3604(f){S). To the cont<1lT}', HUD's regulatory materials acknowledge thaI the Act allows for II variety of technical stlll1dardillo be recognized I!..'l meeting ilS requirements:

Congress did not intend 10 limit the ways to comply with the

rcquiremenu of Ibe Act to the ANSI AI! 7, I standard. Congrll$S

specified the ANSI A117.! standllfd in the Act In order to IISS\lI:e

designm of new multifamily housing that jf they follow the ANSI .

stalldard, they will have mel the Act's adaptive desiSll requirements.

Congress also noted thai its reference 10 ANSI was nol intended to require "that designers follow this sllll1dard exclusively, for there
may he other local or state standards with which compliance is

" \ :,.:
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:required or there may be other creative methods of meetill@, these

standards." H.R. Rep. No, 711, 100ln Cong,. 2<1 Bess,. p.27. (1988).

[nterpreting the Pair Housing Act to impose requirements developments beyond those contained iu the Local Law could force IIl'l owner to lncu:r Significant COSlS, even where lin Investigation does not proceed [0 trial. The City is particularly concerned with the potential destabilizing impact on affordable hO\lslng dwelopments !hat have slim operating margins and can ill afford the legal costs I~y would entail in Ihe course ofan investigatioD.
As I told Lev, I would very much appreciate the opportllnity to meet with YOIl to
discuss this maner further.

Sincerely yours,
~ Micbael A. Cardozo

MAClay

cc: Sara Shudofsky SlIl'iIh E, Light
Brian M. Feldman

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 Case 1:10-cv-07495-RMB -MHD Document 9 Filed 11/16/10 Page 1 of 9

CHAMSEA$OF RICH"'RO M.i,BERMAN
_ _...;:U:.:.;:.S"".D=.:,.J=.:,'_ _ _

U.S. Department of Justice
United States Attorney Southern District of New York
86 Cham hers Street., Third Ploor ,Veil' York, l'lerr York 10007

October 29, 2010
BY HAND Honorable Richard M. Berman United States District Court for the Southern District of New York 500 Pearl Street, Room 650 New York, New York 10007
Re: United States v. L&M 93rd Street LLC, 10 Civ. 7495 (RMB)
Dear Judge Berman:
Plaintiff the United States of America (the "Government") respectfully submits this letter in response to the Court's Administrative Order, dated October 22, 2010 (the "Order"), directing that the Government and defendant L&M 93rd Street LLC ("the Developer Defendant") explain more fully the bases for several provisions in the proposed Consent Decree (the "Proposed CD") relating to The Melar, a multifamily dwelling in Manhattan.
The Proposed CD is a product of approximately two years of extensive and intense negotiations between sophisticated counsel. Those negotiations included not only the undersigned attorneys, but, moreover, the input of supervisory attorneys at the United States Attorney's Office for the Southern District of New York, counsel in the Housing and Civil Enforcement Section at the Civil Rights Division of the Department of Justice in Washington, D.C., as well as the Office of the Assistant Attorney General for Civil Rights. The Proposed CD represents a compromise by both sides, and, as explained below, each term within the Proposed CD is necessary and appropriate to achieve the parties' purposes. As further set forth below, each of those terms is entirely consistent with the Fair Housing Act ("FHA"), which provides the statutory basis for the Government's suit in this matter.

Case 1:10-cv-07495-RMB -MHD Document 9 Filed 11/16/10 Page 2 of 9
I. BACKGROUND
A. The Fair Housing Act's Accessibility Requirements
As background, the FHA's design and construction requirements, codified at 42 U.S.C. § 3604(f)(3)(C), were promulgated to ensure that people with disabilities will have access to multifamily housing. Those requirements are not intended as a unrealistic "standard of total accessibility," but rather to mandate "basic features" of accessibility that could be "eas[ily] incorporate[d] in housing design and construction." H.R. REP. No. 100-711, 1988 U.S.C.C.A.N. 2173, 2188-89 (1988). As Congress recognized, the consequence of failing to provide such basic features of accessibility is stark - a "person using a wheelchair is just as effectively excluded from the opportunity to live in a particular dwelling by the lack of access into a unit and by too narrow doorways as by a posted sign saying 'No Handicapped People Allowed.'" Id. at 2186.
The FHA specifies several methods for enforcing its accessible design and construction requirements. As relevant here. the Government is authorized to bring a civil action, based on a defendant's denial of rights under the FHA. seeking injunctive and equitable relief, as well as compensatory and punitive damages. See 42 U.S.C. § 3614; see generally United States v. CVP I, et al., 08 Civ. 7194 (SHS) (consent decree approved on Oct. 15, 2010); United States v. Shanrie Co., Inc., 669 F. Supp. 2d 932 (S.D. Ill. 2009); United States v. Tanski, 1:04-CV-714, 2007 WL 1017020 (N.D.N.Y. ~ar. 30, 2007). In addition, any "aggrieved person" can commence a civil action to seek actual and punitive damages. injunctive relief, as well as costs and fees, based on a violation of FHA's design and construction requirements. See 42 U.S.C. § 3613; see also e.g., Davis v. Lane Management, LLC, 524 F. Supp. 2d 1375,1377-78 (S.D. Fla. 2007) (awarding default judgment to plaintiff with disabilities and against rental building owner for compensatory damages and punitive damages, each in the amount of $420,000).
The Government brought this action to enforce the FHA with respect to the design and construction of The ~elar, a residential rental property in Manhattan.
B. The Court's Review of FH..4. Consentpecrees
As recognized by the authorities cited in the Court's Order, consent decrees are the most favored means of resolving FHA suits, such as this one. See Metro. Hous. Dev. Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1014 (7th Cir. 1980) ("in this case under the Fair Housing Act national policy ... strongly favors settlement"), cited by Order at 2; Jones v. Amalgamated Warbasse Houses, Inc., 97 F.R.D. 355, 358-39 (E.D.N.Y. 1982) ("voluntary out of court settlement of disputes is highly favored in the law, ... particularly ... in Fair Housing Act cases, where the alternative to voluntary agreement - a court-ordered injunction - may inhibit cooperation and voluntary compliance"), cited by Order at 4. Cf. Local No. 93 v. City of Cleveland, 478 U.S. 501. 515 (1986) ("We have on numerous occasions recognized that Congress intended voluntary compliance to be the preferred means of achieving
2

Case 1:10-cv-07495-RMB -MHD Document 9 Filed 11/16/10 Page 3 of 9
the objectives of Title VII"), cited by Order at 3; Patterson v. Newspaper & Mail Delivers' Union of New York & Vicinity, 514 F.2d 767,771 (2d Cir. 1975) nhe clear policy in favor of encouraging settlements must also be taken into account, particularly in an area where voluntary compliance by the parties over an extended period will contribute significantly toward ultimate achievement of statutory goals"), cited by Order at 2. "Because of the consensual nature ofthe decree, voluntary compliance is rendered more likely," and "[sJettlements also contribute greatly to the efficient utilization of scarce federal judicial resources." Metro. Hous. Dev. Corp., 616 F.2d at 1014 & n.10.
Consistent with these principles, the Government seeks to resolve Fair Housing Act cases, such as this one, through consent decrees, whenever possible. See, e.g., CVP I, 08 Civ. 7194 (SHS) (consent decree entered on Oct. 15, 2010); United States v. Berk·Cohen Assocs., 09 Civ. 4368 (DLC) (consent decree entered on Feb. 19, 2010). "Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case and thus save themselves the time, expense, and inevitable risk of litigation." United States v. Armour & Co., 402 U.S. 673,681·82 (1971).
Because "it is the parties' agreement that serves as the source of the court's authority to enter any judgment at all," Local No. 93, 478 U.S. at 522, a court's review of a proposed FHA consent decree is limited. As the Second Circuit has instructed, the role of this Court is to make "only the minimal determination of whether the agreement is appropriate to be accorded the status of a judicially enforceable decree." United States v. IBM, 163 F.3d 737,740 (2d Cir. 1998) (quoting Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986». In particular, in reviewing a proposed consent decree, "the court will not substitute its judgment for that of counsel," Local No. 93, 478 U.S. at 522, and "need not inquire into the precise rights of the parties nor reach and resolve the merits of the case or controversy," llfetro. Hous. Dev. Corp., 616 F.2d at 1014. "Rather, the court must accept the settlement unless there is evidence of procedural unfairness, unreasonableness, or inadequacy." Note, Executing the Law or Executing an Agenda: Usurpation of Statutory and Constitutional Rights by the Department of Justice, 37 U. Mich. J. L. Reform 257, 264·65 (2003) (quotation marks omitted), cited by Order at 3; Metro. Hous. Dev. Corp., 616 F.2d at 1014.1 Indeed, where, as
Courts generally scrutinize consent decrees more searchingly in the context of class action settlements. See, e.g., Beane v. Bank of New York Mellon, 07 Civ. 9444 (RMB), 2009 WL 874046 (S.D.N.Y. Mar. 31, 2009). In such cases, a primary concern is the possibility of collusion between the defendant and class counsel, whose interests may run counter to that of the represented class. In re Nortel Networks Corp. Sees. Litig., 01 Civ. 1855 (RMB), 2006 WL 3802198, at *4 (S.D.N.Y. Dec. 26, 2006). No such conflict of interest exists in FHA suits brought by the Attorney GeneraL United States v. City of Miami, 614 F.2d 1322, 1332 n.18 (5th Cir. 1980) ("Unlike ... class actions litigation, [wJhen the Department
3

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here, "'there has been arms length bargaining among the parties. .. there is a presumption in favor of the settlement,' particularly where 'a government agency committed to the protection of the public interest' has participated in and endorsed the agreement." City of New York v. Exxon Corp., 697 F. Supp. 677, 692 (S.D.N.Y. 1988) (quoting Wellman v. Dickinson, 497 F. Supp. 824, 830 (S.D.N.Y. 1980), aff'd, 647 F.2d 163 (2d Cir. 1981»; see also City of Miami, 614 F.2d at 1333 ("the decree .. _should be entitled to a presumption of validity"); United States v. Rohm & Haas Co., 721 F. Supp. 666, 681 (D.N.J. 1989) ("a presumption of validity attaches").
Significantly, consent decrees entered in FHA cases may properly impose broad and diverse forms of relief. "[P]articularly in a fair housing situation, the existence of a federal statutory right implies the existence of all measures necessary and appropriate to protect federal rights and implement federal policies." Metro. Hous. Dev. Corp., 616 F.2d at 1011. "More importantly, it is the agreement of the parties, rather than the force ofthe law on which the complaint was originally based, that creates the obligations embodied in a consent decree." Local No. 93,478 U.S. at 522. "Therefore, a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial." Id. at 525.
II. THE PROPOSED CONSENT DECREE SHOULD BE APPROVED
This action arose from an investigation of The Melar conducted by the Government. That investigation, including an inspection of the property, identified numerous conditions that do not comply with the "basic features" of accessible design and construction under the FHA. The Government provided the findings from that inspection to the Developer Defendant. Those findings, in turn, became the basis for extensive settlement discussions, conducted by experienced counsel over approximately two years, which culminated in the Proposed CD.
This letter addresses those aspects of the Proposed CD identified by the Court in its Order.
A. The Aggrieved Persons Fund
The Proposed CD provides for the establishment of a fund by the Developer Defendant, in the amount of $180,000, to compensate persons who allege disabilitybased discrimination at The Melar ("aggrieved persons"). who may only accept the funds by waiving their own FHA claims against The Melar. This provision, together with accompanying provisions on the resolution of claims on the fund made by aggrieved persons, creates a process through which the Government could
ofJustice advocates a settlement, we need not fear that its pecuniary interests will tempt it to agree to a settlement unfair to unrepresented persons."). In any event, even in class action settlements, courts presume a consent decree is fair so long as, like here, the decree resulted from arms-length negotiations between experienced counsel. Beane, 2009 WL 874046, at *4.
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facilitate the consensual resolution of such claims. Absent such a process, aggrieved persons are more likely to seek recourse by filing individual lawsuits pursuant to 42 U.S.C. § 3613, requiring the Developer Defendant to incur future litigation costs, as well as federal courts to devote judicial resources to such litigations. The size ofthe fund was agreed to by the parties, in the context of their overall negotiations.
The FHA expressly provides for the establishment of aggrieved persons funds, like the one set forth in the Proposed CD, as part of the relief to be rewarded in actions. such as this one, brought by the Attorney General under 42 U.S.C. § 3614. See 42 U.s.C. § 3614(d)(I)(B) (providing that the court "may award ... monetary damages to persons aggrieved"); see H. R. Rep. 100·711, 1988 U.S.C.C.A.N. 2173, 2201 (1988) (explaining that, in cases brought by the Attorney General, "relief may awarded to all persons affected by the discriminatory housing practice"). As Congress explained, aggrieved persons funds promote efficiency: "Allowing the court to award monetary reliefto persons aggrieved avoids later duplicative litigation as such persons bring actions to vindicate their rights." H.R. Rep. 100·711, 1988 U.S.C.CAN. at 2201; see also United States v. &listrieri, 981 F.2d 916. 935 (7th Cir. 1992).
Funds like the one established in the Proposed CD have been a regular feature of past settlements under the FHA, including the consent decree signed by Judge Stein on October 15, 2010 in CVP I, 08 Civ. 7194 (SHS) (filed Oct. 15, 2010) (providing for $2,045,600 aggrieved persons fund). See generally http://www. justice.gov/crtlhousing/fairhousing/caseslist.htm#disabil (listing cases with similar consent decrees).
B. The Accessibility f'und
The Proposed CD also provides for the establishment of a fund by the Developer Defendant, in the amount of $288,300, to be devoted to constructing facilities that would benefit persons with disabilities (the "Accessibility Fund"). Although, as noted above, the Court need not locate a statutory basis for agreed· upon features of a consent decree, see Local No. 93, 478 U.S. at 522, the Accessibility Fund comes within the Court's authority to reward "such other relief as the court deems appropriate" in suits, like this one, brought by the Attorney General, see 42 U.S.C. § 3614(d)(1)(B).
The Accessibility Fund was the product of compromise. The Government seeks to have defendants bring every feature within every unit of a subject property into full compliance with the FHA. See United States v. Shanrie Co., Inc., 07.491· DRH, 2010 WL 996750, at *2 (S.D. Ill. Mar. 17.2010) ("[it] is unacceptable and would defeat the purposes of the FHA [to] leave [even] some units [i]naccessible to disabled individuals"). Where the Government prevails on its view of FHA compliance at trial, it may seek an order requiring retrofits to ensure full compliance. In settlement negotiations, where defendants identify difficulties with respect to certain retrofits sought by the Government, the Government may, in lieu
5

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of requiring certain retrofits, instead seek to further the objectives of the FHA by requiring the construction of additional features substantially improving accessibility at a property. Here, the Accessibility Fund serves such a purpose.
A fund similar to the Accessibility Fund was approved in the consent decree signed by Judge Stein in CVP I, 08 Civ. 7194 (SHS) (consent decree filed Oct. 15, 2010), and many other consent decrees have similarly required defendants to provide features substantially improving accessibility, which would not otherwise be required by the FHA, see http://www.justice.gov/crt/housing/fairhousing! caseslist.htm#disabil (listing, for instance, United States v. West Creek, L.L.C. (D. Del); Memphis Ctr. For Independent Living v. l~fakowsky Constr. Co. (W.D. Tenn.); United States u. Cedar Builders, Inc. (E.D. Wash); United States v. Rose & Sons (E.D. Mich.); and United States v. Joyner (E.D.N.C.».
C. Notice Provision Regarding New Construction
The parties also negotiated a provision whereby the Developer Defendant would notify the Government of any future design or construction activities coming within the scope of the FlL<\'. This notice provision - which only lasts for the threeyear term of the Proposed CD - allows the Government to monitor the Developer Defendant's future compliance with the FHA.
The notice provision is consistent with the purposes of the FHA; indeed, it exists to ensure compliance with the FHA. It comes within the scope of "such preventive relief ... as is necessary to assure the full enjoyment of the rights granted by the [FHA]," which the Court may award the Government in an FHA action brought by the Attorney General. 42 U.S.C. § 3614(d)(1)(A). Such notice is entirely consistent with the relief imposed by other courts in other J!'HA actions. See, e.g., Johnson v. Kakvand, 192 F.3d 656,659 (7th Cir. 1999) (requiring, in case involving violations of FHA by lender, "a record of each loan application submitted" during a five-year period); United States v. Real Estate One, Inc., 433 F. Supp. 1140, 1156 (E.D. Mich. 1977) (holding that "the judgment must also provide for the defendant to maintain records with the names. addresses, and phone numbers (if available) of all persons involved in every instance in which a prospective black buyer visits a suburban office" for a five-year period); see also United States v. Shanrie Co., Inc., 07-491-DRH, 2008 WL 4566309, at *3 (S.D. Ill. Oct. 1,2008) (ordering defendants to maintain "records related to certain covered multifamily dwellings" and to "report to the United States regarding any future housingdiscrimination complaints").
Parties have agreed to notice provisions similar to this one in many other settlements under the FlL4.. See, e.g. CVP I, 08 Civ. 7194 (SHS) (consent decree filed Oct. 15, 2010); see also http://www.justice.gov/crtihousing/fairhousing/ caseslist.htm#disabil (listing cases with similar consent decrees).
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D. Training and Review Provisions
The parties further agreed in the Proposed CD that the Developer Defendant and its employees shall familiarize themselves with the FHA's design and construction requirements by (i) undergoing training on such requirements and (ii) personally reviewing the Fair Housing Accessibility Guidelines. These provisions are designed to prevent future violations of the FHA, as it is much more cost effective to avoid any FHA design and construction violations in the first instance than to retrofit properties already constructed. In light of Congress's recognition that non-compliance with the FHA effectively precludes people with disabilities from housing opportunities, and considering the costs associated with retrofitting fully occupied buildings, such as The Melar, we respectfully submit that the limited set offuture obligations that the Proposed CD imposes on the Developer Defendant are entirely appropriate.
These training and review provisions, like the notice provision, are consistent with the purposes of the FHA and fall within the scope of "such preventive relief ... as is necessary to assure the full enjoyment of the rights granted by the [FHAJ," which the Court may award the Government in an FHA action brought by the Attorney General. 42 U.S.C. § 3614(d)(1)(A). Courts, in fact, have repeatedly ordered similar relief in other FHA cases. See, e.g., Johnson, 192 F.3d at 659 (requiring "educational programs ... to inform ... employees of their duties under [the FHA]"); Shanrie Co., Inc., 2008 WL 4566309, at *3 ("Defendants shall ensure that their agents and employees read and understand the terms of the Court's injunctive relief, and that the Defendants, as well as certain agents and employees, shall receive FHA training'); Real Estate One, Inc., 433 F. Supp. at 1150 ("The defendant shall be required to put into a effect a program of education").
Parties have agreed to provisions similar to these in many other settlements under the FHA. See, e.g. CVP I, 08 Civ. 7194 (SHS) (consent decree filed Oct. 15. 2010); Berk-Cohen Assocs., 09 Civ. 4368 (DLC) (consent decree entered on Feb. 19, 2010); see also http://www.justice.gQv/crt/housing/fairhousing/caseslist.htm#disabii (listing cases with similar consent decrees).
E. Three-Year Term
As the Court noted in the Order, the parties agreed that the Proposed CD should have a three-year term, which. subject to the Court's approval, may be extended on a motion of the Government asserting that the interests of justice requires such extension. This is consistent with the Supreme Court's observation that "public law settlements are often complicated documents designed to be carried out over a period of years." Local No. 93,478 U.S. at 524 n.13 (quotation marks omitted).
Here, the three-year term serves several functions. As an initial matter, the three-year period allows the Developer Defendant to implement certain retrofits
7

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over time, granting the defendant greater flexibility as to when, exactly, it must make those retrofits. This flexibility increases the likelihood that retrofits will be made during times when apartments are vacant, thereby resulting in fewer disruptions to existing tenants and lower costs for the Developer Defendant. Likewise, the three·year term increases the likelihood that "on demand" retrofits (i.e., those retrofits which the Developer Defendant agreed to provide only upon a tenant's demand) will be requested and made; and, each additional retrofit made during the three-year period will increase accessibility at The Melar. Moreover, the three-year term ensures that injunctive relief aimed at preventing future violations of the FHA will operate over a meaningful period of time.
The three-year term is a reasonable compromise, and it reflects other precedents in this area. The term is a compromise because, if the Government were to prove its case, it could seek permanent injunctions, rather than injunctions limited to three years. The term likewise reflects terms set by courts on similar obligations in other FHA cases. See, e.g., Johnson, 192 F.3d at 659 (imposing fiveyear terms for FHA injunctions); Shanrie Co., Inc., 2008 WL 4566309, at *3 (imposing three-year term for FHA injunctions); Real Estate One, Inc., 433 F. Supp. at 1156 (imposing five-year term for FHA injunctions).
Parties have agreed to provisions similar to these in many other settlements under the FHA. See, e.g., CVP I, 08 Civ. 7194 (SHS) (consent decree filed Oct. 15, 2010) (providing for four-year term); Berk-Cohen Assocs., 09 Civ. 4368 (DLC) (consent decree entered on Feb. 19,2010) (providing for three-year term); see generally http://www.justice.gov/crt/housing/fairhousing/caseslist.htm#disabil (listing cases with similar consent decrees).
*****
We thank the Court for an opportunity to offer a more detailed explanation of certain terms of the Proposed CD. As set forth above, the terms of the Proposed CD are both procedurally and substantively fair, are consistent with the FHA and further its purposes, and were the product of arms-length negotiation over approximately two years between sophisticated counsel. The Proposed CD allows the parties to achieve finality and conserves judicial resources.
8

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The Government therefore respectfully requests that the Court enter the Proposed CD. We also respectfully request that the Court direct the Clerk's Office to enter this letter on the docket to be maintained as a part of the record in this case.
Respectfully, PREET BHARAR.4. ~ States Attorney
Byes;-=d --~-
c
SARAH E. LIGHT BRIAN M. FELDMAN LI YU CARINA SCHOENBERGER Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Telephone: (212) 637-2774/2777/2734 Facsimile: (212) 637·2717
cc: BY ELECTRONIC MAIL John Hadlock, Esq. Neil Underberg, Esq. Christopher Albanese, Esq.
9

 
 .. fi"c, Case 1:10-cv-07495-RMB -MHD Document 10 9F'iletd~1t1/16/10 Page 1 of 5
f&t40 u.s. Department of Justice
Un.ited States Attorney Southern. District of New York
86 Chamb... Sl""~ 3rd Floor New Y",*. New York I1J1107
November 9.2010
BY BAND
The Honorable Richard M. Berman United States District Judge Daniel Patrick Moynihan United States Courthouse 500 Pearl Street New York. New York 10007·1312
Re: United States u. L&M 98rd Street LLC, 10 Civ. 7495 (RMB)
Dear Judge Berman:
The Government writes in response to the letter submitted by the Real Estate Board of New York C'REBNY") on November 3,2010.
REBNY represents real estate developers with interests divergent from those ofthe defendante in this matter, who have chosen to settle this suit by agreement to the Proposed Consent Decree. REBNY's letter to the Court appears to be an attempt to force the defendants in this action to bear the burdens and risks of litigating questions that those same defendants have already decided they would rather settle. REBNY has no standing, of course, to object to defendants' choice, or to block the entry of the Proposed Consent Decree, as it is not a party to this action and cannot be injured by the parties' settlement. See, e.g., Conservation Law Fou.nd. of New England, In.c. u. Franklin, 989 F.2d 54, 59 (1st Cir. 1993) \'in instances in which the rights ofthird parties are the basis for blocking the entry of, or vacating, a consent decree, there must be a demonstrable injury or adverse effect upon the group not party to the decree"); United States u. Int'l Bhd. of Teamsters, 88 Civ. 4486 (LAP), 2006 WL 2466246, at *3 (S.D.N.Y. July 14, 2005) (''rrhe objector] is not a party to the Consent Decree. Nor is it a party to any ofthe stipulations ... Accordingly, [it] lacks standing to seek relief here."). The Court should therefore reject any attempt by REBNY to obstruct the parties' settlement.
Moreover, REBNY's representations and arguments regarding this case are inaccurate and misleading. While we are reluctant to burden the Court with legal

Case 1:10-cv-07495-RMB -MHD Document 10 Filed 11/16/10 Page 2 of 5
doctrine and evidence that it need not consider in light of the parties' settlement of this action, we provide this brief response to highlight some of the inaccuracies and misleading information in REBNY's letter. In particular:
The Government Has AlIeged Violations Of Both Federal And Local Law. REBNY's basic premise - that the Government is challenging New York City accessibility laws - makes sense only if The Melar were built in compliance with that law. But, as the Government's complaint alleges, The Melar was not; instead it was designed and constructed in violation of both federal and local accessibility codes (the Developer Defendant denies this allegation). See Complaint 'Ti 11 ("Defendants failed to comply with all applicable State and local design and construction provisions, including New York City Local Law 58."). The City's issuance of a certificate of occupancy does not prove otherwise. The FHA expressly states that "[d]eterminations of a State or unit of general local government ... shall not be conclusive in enforcement proceedings under th[e FHA]." 42 U.S.C. § 3604(t)(6)(B).
Federal Law Does Not Conflict With Local Law. Contrary to REBNY's suggestion, the FHA creates no dilemma for developers, in which they must choose between the conflicting mandates of federal and local accessibility laws. (If there were a conflict, basic principles of federal supremacy would require compliance with the FHA. See U.S. Const. art. VI). For instance, there are ten safe harbors under the FHA, see 72 Fed. Reg. 39432, 39437-38 (July 18, 2007), each of which contains certain accessibility elements not required by New York City's local law. Developers may readily comply with both local law and a federal safe harbor by following the local law and applying the elements of the federal safe harbor wherever it calls for greater accessibility. The ability to comply with these safe harbors illustrates that the FHA and local law do not set out conflicting mandates, and there is thus no basis for uncertainty. In any event, one ofthe advantages of settlement is that it gives the parties certainty.
REBNY Misreads FHA Accessibility Requirements. REBNY purports to identify "alleged violations of the Fair Housing Act that ... are [not] violations at all." REBNY does so, however, only by misreading the safe harbors and misstating the law. Compare REBNY Ltr. at 2-3 (asserting that the FHA does not require that required clear floor space be centered on ranges) with United States u. Tanski, 2007 WL 1017020, at *15-16 (N.D.N.Y. Mar. 30, 2007) (holding lack of a "clear floor space centered on the ranges in the kitchens" violates the FHA); cf. United States u. Shanrie Co., 2007 WL 980418, at *10 (S.D. Ill. Mar. 30, 2007) (noting "common-sense reading ... that the space [must] be centered, in order for the sink or fixture to be useable"). In any event, it is the Government's position that a developer
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;,
cannot claim the benefit of a safe harbor unless it complies with every aspect of a particular safe harbor. See 72 Fed. Reg. at 39438 ("once a safe harbor document has been selected, the building in question should comply with all of the provisions in that document"). Here, ifthis matter were litigated, the Government would prove that The Melar was not constructed in compliance with any safe harbor in its entirety. REBNY's erroneous interpretations of specific provisions would thus not even affect liability in this case.
Tenants Cannot Unilaterally Veto FHA Accessibility Requirements. REBNY complains that the Proposed Consent Decree requires allegedly "unneeded, unwanted retrofits" and "removes choice from all tenants." REBNY's suggestion that retrofits should be made on the request of tenants would grant tenants, who are likely to be largely free from disabilities, a veto over bringing The Melar into compliance with the FHA. This would thwart the statute's basic purposes by preventing persons with disabilities from living in the property in the future (i.e., after the termination of the threeyear consent decree). Such arguments are patently insufficient to excuse defendants from bringing residences into compliance with the FHA's accessibility requirements. See, e.g., Sec'y v. Nelson, 2007 WL 1705614 (HUD ALJ June 1, 2007) ("Respondents have a heavy burden to prove that they should not be required to comply with the requirements of the Act"); United States v. Shanrie Co., No. 05-CV-306-DRH, 2007 WL 1722207, ·4 (S.D. Ill. Apr. 20, 2007) ("[T]his Court, like other courts, rejects Defendants' proposal that certain repairs be made only if requested."); Baltimore Neighborhoods, Inc. v. Rommel Builders, 40 F. Supp. 2d 700, 707 (D. Md. 1999) (rejecting argument that "upon request" retrofits may suffice).
Indeed, in light of the barriers to accessibility, it is the Government's view, contrary to the view of the Developer Defendant, that a person with disabilities interested in living at The Melar likely would not be able to rent there. Congress stated in passing the FHA that a "person using a wheelchair
[will bel just as effectively excluded from the opportunity to live in a
particular dwelling by the lack of access into a unit and by too narrow doorways as by a posted sign saying 'No Handicapped People Allowed.'" H.R. REP. No. 100-711, 1988 U.S.C.C.A.N. 2173, 2186 (1988). The retrofit provisions of the Proposed Consent Decree would not merely make The Melar more accessible to current residents, but, even more importantly, would enhance The Melar's accessibility to individuals with disabilities who may become residents in the future.
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Case 1:10-cv-07495-RMB -MHD Document 10 Filed 11/16/10 Page 4 of 5
The Aggrieved Persons Fund Conserves The Parties' And The Court's Resources. REBNY challenges the wisdom behind the parties' decision to achieve finality by setting exact terms for an Aggrieved Persons Fund. This challenge ignores the savings that the fund represents - in terms oftime and expense. If the parties were to litigate regarding aggrieved persons, as set forth in the FHA. see 42 U.S.C. § 3614(d)(1)(B). there would need to be: (1) discovery. both of the defendants and third parties. supervised by this Court; (2) hearings regarding defendants' violations of victims' rights; and (3) hearings regarding proper damages awards. all of which may be subject to appeals. remands. and re-litigation. Moreover. with REBNY's suggested provision requiring that left-over funds revert to defendants. this Court and the Court of Appeals could expect disputes at every stage. as the defendants would have no incentive to identify victims and every incentive to minimize damages payments. The Proposed Consent Decree, instead. provides a discrete Aggrieved Persons Fund and a process for identifying victims and setting awards. In the absence of a provision requiring left-over funds to revert to the defendants. the Government expects neither obstruction nor unreasonable disputes from the defendants in implementing these provisions - all of which will save the judicial system from the burdens and expenses of future conflict.
The Accessibility Project Fund Furthers The Aims Of The FHA. Contrary to REBNY's insistence, the Accessibility Project Fund mandates injunctive relief to further the aims ofthe FHA, and is not a penalty. The provision requires "the construction of facilities, or the provision of services. at The Melar for the primary benefit of persons with disabilities." The fund is set at a particular dollar amount. agreed upon by the parties. to specify on ascertainable terms the efforts the defendant must make to increase accessibility at The Melar in ways not otherwise contemplated by the specific retrofit provisions. The parties agreed to this fund as part of the overall terms of the settlement. Rather than a "Hobson's choice," the creation of this fund allows the parties to avoid the risks and burdens oflitiglltion and to further the aims of the FHA.
These are a few of the many issues raised by REBNY's inaccurate and misleading letter. The Court need not address these issues in light of the current posture of this case - the parties have settled their disputes and REBNY lacks standing to object to the Proposed Consent Decree. The parties' two years of extensive negotiations culminated in the Proposed Consent Decree now before this Court. The Government respectfully requests that the Court enter that the Proposed Consent Decree to resolve this suit.
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Case 1:10-cv-07495-RMB -MHD Document 10 Filed 11/16/10 Page 5 of 5
:l .
Thank you for considering this submission.
Respectfully submitted,
PREET BHARARA United States Attorney
By: dtuw4~W SARAH E. LIOH BRIAN M. FELDMAN LIYU CARINA SCHOENBERGER Assistant United States Attorneys Tel. Nos. (212) 637·269612777/2734 Fax Nos. (212) 637·2717 Sarah.Light@usdoj.gov Brian.Feldman@usdoj.gov Li.Yu@usdoj.gov Carina Schoenberger@usdoj.gov
cc: BY EI,ECTRONIC MAIL Neil Underberg John Hadlock
WINSTON & STRAWN LLP
nunderberg@winston.com jhad1ock@winston.com Attorneys for Defendan.t L&M 98rd Street LLC
Christopher A. Albanese MILBER MAKRIS PLOUSADIS & SEIDEN, LLP CAlbanese@milbermarkis.com Attorneys for Defendant Costas Kondylis & Partners, LLP
cc: BYFACSIMII.E Steven Spinola Real Estate Board of New York Fax No. (212) 779·8774
·5·

 
 Case 1:10-cv-07495-RMB -MHD Document 14 Filed 12/10/10 Page 1 of 3

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USDC SDNY DOCUMENT

BY HAND
Hon. Richard M. Berman United States District Judge United States Courthouse 500 Pearl Street New York, New York 10007

ELECTRONICALLY FILED
i DOC#:
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RE: United States v. L&M 93rd Street LLC. et aI.
10 Civ. 7495 (RMB)

Dear Judge Berman:
On behalf of the Real Estate Board of New York ("REBNY"), we are sUbmitting this letter to advise the Court that REBNY plans to move to intervene as a defendant in this action. Pursuant to our understanding of this Court's "Individual Practices," we are setting forth the basis for the anticipated motion.
REBNY respectfully believes that its participation may assist the Court, and the parties, in addressing an important issue in tbe litigation - wbether compliance with New York City Local Law 58 establisbes compliance with the Fair Housing Act. REBNY is a nonprofit trade association with more than 12,000 member owners, brokers, and managers of real property in New York City_ REBNY is uniquely positioned to assist the Court in its consideration of this important legal issue.

Case 1:10-cv-07495-RMB -MHD Document 14 Filed 12/10/10 Page 2 of 3
Hon. Richard M. Berman December 10,2010 Page 2
In reliance on Local Law 58, the real estate industry has invested billions of dollars and developed more than 175,000 housing units throughout New York City, The United States Attorney's Office, however, has begun investigations and threatened legal action against at least thirteen real estate developers based on its apparent position that compliance with Local Law 58 is not relevant to compliance with the Fair Housing Act. REBNY believes that, among other flaws, this position ignores the important role that New York City plays in ensuring accessibility in New York real estate, For more than 20 years, New York City has approved building plans and inspected buildings based on compliance with Local Law 58, which provides developers with the certainty they need to make the substantial investments required to develop real estate in New York City before construction is complete,
By contrast, if the position of the U.S, Attorney's Office in this case is accepted, the resulting uncertainty will cause countless disruptions to New York City's residents. In existing buildings, the government may require expensive retrofits even in the absence of a violation of the law, If the U.S. Attorney's Office is correct that devclopers cannot rely on New York City'S determinations that their developments are accessible and compliant with law, the resulting threat of uncapped liability would deter investment and make new construction and residential rehabilitations even more difficult to finance, especially given today's struggling economy and real estate capital crisis.
REBNY is aware that the government has stated that it believes that, in some respects, the Melar is not in compliance with Local Law 58. REBNY respectfully submits that a threshold determination whether the standards of Local Law 58 comport with the FHA will narrow the scope of the litigation before the court and provide for an orderly and efficient adjudication. In addition, the public interest strongly favors prompt resolution of the legal status of Local Law 58. The uncertainty created by the position of the Department of Justice is already affecting real estate development in New York.
REBNY has communicated with counsel for the existing parties regarding its proposed motion to intervene. The defendants support REBNY's proposed motion to intervene, and the government opposes it.
The Court has scheduled a hearing on the proposed consent decree on Decemher 16, 2010. Under the briefing schedule that would ordinarily govern a motion to intervene, the Court would not have an opportunity to rule on REBNY's motion until after the hearing. REBNY respectfully requests that the Court reschedule the December 16, 20 I0 hearing (or at least any part of it that would address the status of Local Law 58) until after ruling on the motion to intervene, and, to avoid duplicative discovery and scheduling negotiations between the parties, allow

Case 1:10-cv-07495-RMB -MHD Document 14 Filed 12/10/10 Page 3 of 3
HOIl. Richard M. Berman December 10,2010 Page 3
the current parties to reb'ain from submitting a proposed discovery schedule until after ruling on that motion as well.
Respectfully submitted,
Lawrence S. Spiegel Clifford M. Sloan Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates Four Times Square New York, NY 10036
cc: Counsel for Plaintiff Counsel for Defendants

so ORDERED: Date: \').IIo/to

Richard M. Berman. U.S.DJ.

 
 Case 1:10-cv-07495-RMB -MHD Document 43 Filed 04/05/11 Page 1 of 7

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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

UNITED STATES OF AMERICA,

:

:

Plaintiff,

:

:

- against -

:

:

L&M 93RD STEET LLC and COSTAS

:

KONDYLIS & PARTNERS, LLP,

:

:

Defendants.

:

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

10 Civ. 7495 (RMB) DECISION & ORDER

I. Background

On September 30, 2010, the United States (“Government”) commenced this action

pursuant to the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601–3619, against L&M 93rd Street

LLC (“L&M”) and Costas Kondylis & Partners, LLP (“Costas,” and collectively, “Defendants”),

the developer and architect of The Melar, a residential apartment complex in Manhattan.

(Compl., filed Sept. 30, 2010.) The Government alleges that Defendants “unlawfully

discriminated against persons with disabilities . . . by failing to design and construct The Melar

so as to be accessible to persons with disabilities.” (Compl. ¶ 1.) And, on September 30 and

November 10, 2010, respectively, the Government submitted executed settlement agreements

with L&M and Costas (collectively, “Agreements”), seeking the Court’s entry of such

Agreements as consent decrees. (See Govt.’s Ltr. to the Ct., dated Nov. 10, 2010, at 1

(“Together, these two proposed consent decrees resolve this action in its entirety. Accordingly,

the Government respectfully requests that the Court enter the enclosed consent decrees.”).)

On March 21, 2011, following a period of negotiations among the Government, L&M,

and Costas which did not lead to any modification of the Agreements, the Real Estate Board of

New York (“REBNY”) moved pursuant to Rule 24 of the Federal Rules of Civil Procedure

Case 1:10-cv-07495-RMB -MHD Document 43 Filed 04/05/11 Page 2 of 7
(“Fed. R. Civ. P.”) “to intervene as a defendant at this stage of the litigation, before the proposed consent decree[s are] entered.” (REBNY’s Mem. of Law in Supp. of Mot. to Intervene, dated Mar. 21, 2011 (“REBNY Mem.”), at 2.) REBNY argues that it should be permitted to intervene “as a matter of right” under Fed. R. Civ. P. 24(a) because, among other reasons, REBNY, a real estate trade association with 12,000 members, “has an interest in the validity and enforceability of the proposed consent decree[s]” which “the broader real-estate-development industry cannot rely solely on the defendants in this case to vindicate.” (REBNY Mem. at 8, 11, 19.) Alternatively, REBNY argues that the Court should grant it “permission to intervene” under Fed. R. Civ. P. 24(b) because, among other reasons, “REBNY’s proposed defenses involve issues of law and fact common to the main action,” and “REBNY’s intervention would not produce delay in the proceedings.” (REBNY Mem. at 19–21.)
On March 28, 2011, the Government filed an opposition, arguing, among other things, that the Court should deny REBNY’s motion to intervene “outright” for failure to submit with the motion “‘a pleading that sets out the claim or defense for which intervention is sought.’” (Govt.’s Mem. of Law in Opp’n to REBNY’s Mot., dated Mar. 28, 2011 (“Govt. Opp’n”), at 8 (quoting Fed. R. Civ. P. 24(c)).) The Government also argues that “REBNY has no interest in the transaction and property at issue in the [proposed] consent decrees,” and “[D]efendants vociferously share REBNY’s [alleged] interest in setting the consent decrees aside,” as evidenced by Defendants’ planned motion to withdraw from the Agreements (“Motion to Withdraw”).1 (Govt. Opp’n at 13, 14; see Tr. of Proceedings, dated Mar. 14, 2011 (“Tr.”), at 17:22-23.) Alternatively, the Government contends that “REBNY has failed to identify common

1

Defendants’ opening brief in support of their Motion to Withdraw is due on April 15,

2011; briefing will be completed on May 13, 2011.

2

Case 1:10-cv-07495-RMB -MHD Document 43 Filed 04/05/11 Page 3 of 7
claims or defenses,” and “[i]ntervention . . . would merely prolong this case.” (Govt. Opp’n at 17, 19.)
On April 1, 2011, REBNY filed a reply, requesting, among other things, that the Court excuse its failure to file a pleading because the Court is “otherwise apprised of the grounds for the motion and there is an absence of prejudice to the parties.” (REBNY’s Reply Mem. of Law, dated Apr. 1, 2011 (“REBNY Reply”), at 9 (internal quotation marks omitted).) The parties waived oral argument. (Tr. at 31:17-21.)
For the reasons set forth below, REBNY’s motion to intervene is respectfully denied. II. Legal Standard
Intervention as of right under Rule 24(a) is granted when all four of the following conditions are met: “(1) the motion is timely; (2) the applicant asserts an interest relating to the property or transaction that is the subject of the action; (3) the applicant is so situated that without intervention, disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the applicant’s interest is not adequately represented by the other parties.” MasterCard Int’l Inc. v. Visa Int’l Serv. Ass’n, 471 F.3d 377, 389 (2d Cir. 2006).
Permissive intervention under Rule 24(b) “may be granted when an applicant’s claim or defense and the main action have a question of law or fact in common,” AT&T Corp. v. Sprint Corp., 407 F.3d 560, 561 (2d Cir. 2005) (internal quotation marks omitted), and when intervention will not “unduly delay or prejudice the adjudication of the original parties’ rights,” Fed. R. Civ. P. 24(b)(3); see AT&T, 407 F.3d at 561–62.
A motion to intervene “must . . . be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Fed. R. Civ. P. 24(c).
3

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III. Analysis Preliminarily, even if the Court were able to find REBNY eligible to intervene (which it
would not for the reasons set forth below), REBNY’s failure to submit a pleading that sets out the claim or defense for which intervention is sought, see Fed. R. Civ. P. 24(c), “alone warrants denial of the motion to intervene under both Rule 24(a) and (b),” Gen. Ins. Co. of Am. v. Clark Mali Corp., No. 08 Civ. 2787, 2010 WL 807433, at *8 (N.D. Ill. Mar. 10, 2010); see SEC v. Bear, Stearns & Co., No. 03 Civ. 2937, 2003 WL 22000340, at *4 & n.3 (S.D.N.Y. Aug. 25, 2003).
(1) Intervention of Right REBNY argues, among other things, that “[a] settlement between two parties that affects a third party’s legally protected rights can suffice as an ‘interest’ warranting intervention of right”; and REBNY “would make a more vigorous presentation” than Defendants who have “demonstrated an interest in settling the case.” (REBNY Mem. at 11, 18 (citing Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 130, 132–33 (2d Cir. 2001)).) The Government responds, among other things, that REBNY misconstrues the content of consent decrees “as well as their limited precedential weight”; and “REBNY has identified no defects in [D]efendants’ representation by sophisticated counsel who have been involved in this dispute for years [and] . . . cannot overcome the presumption that [D]efendants adequately represent REBNY’s interest in opposing settlement.” (Govt. Opp’n at 12, 14.) REBNY has not shown that its interest is “direct, substantial, [or] legally protectable.” Wash. Elec. Coop. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 96–97 (2d Cir. 1990). The Agreements, as noted, were entered into among the Government, L&M, and Costas, all of whom were represented by capable and experienced counsel. REBNY speculates that the Court’s
4

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entering of consent decrees “would give a green light for future enforcement actions . . . and would embed the decree[s] as a template for resolution of such actions,” which, in turn, “would cause tremendous uncertainty and expense in the New York real estate market.” (REBNY Mem. at 14.) But, “an interest [as propounded here by REBNY] . . . that is contingent upon the occurrence of a sequence of events before it becomes colorable[] will not satisfy the rule.” Wash. Elec., 922 F.2d at 97; see H.L. Hayden Co. of N.Y. v. Siemens Med. Sys., Inc., 797 F.2d 85, 88 (2d Cir. 1986). Moreover, a consent decree is “not a ruling on the merits . . . that . . . becomes precedent applicable to any other proceedings.” Langton v. Hogan, 71 F.3d 930, 935 (1st Cir. 1995) (emphasis omitted); see United States v. Tex. E. Transmission Corp., 923 F.2d 410, 414 (5th Cir. 1991); Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 531 (7th Cir. 1988) (“When a would-be intervenor says that it fears only the stare decisis effect of a decision . . . the desire to block a settlement is never a legitimate reason to intervene, because if the case settles the possibility of an authoritative appellate decision vanishes, and with it the only substantial concern of the putative intervenor.”). REBNY’s claim of strong and significant interest in this case is also somewhat inconsistent with its failure to seek intervention in two similar cases in this district in which consent decrees were recently approved. See United States v. Berk-Cohen Assocs., No. 09 Civ. 4368 (Feb. 19, 2010 [#13]) (Cote, J.); United States v. CVP I, L.L.C., No. 08 Civ. 7194 (Oct. 15, 2010 [#52]) (Stein, J.); (Tr. at 29:6-12 (Court: “[Y]ou never intervened in those proceedings.” Counsel for REBNY: “We did not, your Honor.”).)
REBNY identifies no “direct” interest in any of the (property or other) rights implicated in the Agreements. Restor-A-Dent Dental Labs., Inc. v. Certified Alloy Prods., Inc., 725 F.2d 871, 874 (2d Cir. 1984) (“[A]n interest must be direct, as opposed to remote or contingent.”); see Wash. Elec., 922 F.2d at 96–97. This is a different posture than that of intervenors in cases cited
5

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by REBNY such as Brennan, 260 F.3d at 132, where employees sought “to protect their present employment status – in particular, their seniority rights,” which they stood to lose “ineluctably [as] the result of the proposed [settlement a]greement,” and New York Public Interest Research Group, Inc. v. Regents of University of State of New York, 516 F.2d 350, 352 (2d Cir. 1975) (per curiam), where a pharmacists’ association had “a sufficient interest to permit it to intervene since the validity of a regulation from which its members benefit is challenged” and could result in “an adverse decision” with “stare decisis effect.”
And, as both parties acknowledge, “[D]efendants themselves dispute the validity of the consent decrees.” (REBNY Reply at 7.) “[W]here the putative intervenor and a named party have the same ultimate objective,” the movant “must rebut the presumption of adequate representation by the party already in the action.” Butler, 250 F.3d at 179–80; see Wash. Elec., 922 F.2d at 98. REBNY has made no showing that L&M (a REBNY member (see Govt. Mem. at 20)) or Costas inadequately will pursue relief from the Agreements (as evidenced by the proposed filing of the Motion to Withdraw), and there is no “evidence of collusion, adversity of interest, nonfeasance, or incompetence . . . to overcome the presumption of adequacy,” Butler, 250 F.3d at 180.
(2) Permissive Intervention REBNY argues, among other things, that its “challenges to the validity and enforceability of the proposed consent decree[s]” involve issues of law and fact common to the main action and “[t]here is no colorable argument that intervention would delay the proceedings.” (REBNY Mem. at 20–21.) The Government responds, among other things, that the consent decrees nowhere resolve the legal question REBNY seeks to adjudicate and “‘[t]he prospect that a new party might string out a case that the original parties want[ed] to resolve usually is a compelling
6

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objection to intervention rather than a reason to allow it. ", (Govt. Opp' n at 17, 18 (quoting Bethuue Plaza, 863 F.2d at 531).)
The Court respectfully denies REBKY's motion for permissive intervention. See H.L. Hayden, 797 F.2d at 89. Assuming, without deciding, that REBNY's interest in exploring the relationship between the FHA, 42 U.S.c. § 3604(t)(3)(C), and Local Law 58 of 1987, NYC. Admin. Code tit. 27 (amended 2008), constitutes "a claim or defense that shares with the main action a common question oflaw or fact," Fed. R. Civ. P. 24(b)(l )(B), REBNY's intervention in the current settlement dispute could "unduly delay" the proceedings, Fed. R. Civ. P. 24(b)(3); see N.Y. News, Inc. v. Kheel, 972 F.2d 482, 487 (2d Cif. 1992); fu!gsdale v. Turnock, 941 F.2d 501, 504 (7th Cif. 1991). "[IJntervention at this time would render worthless all of the parties' painstaking negotiations because negotiations would have to begin again and [the intervenor) would have to agree to any proposed consent decree." City of Bloomington v. Westinghouse Elec. Corp., 824 F.2d 531, 535 (7th Cif. 1987)? IV. Conclusion
For the foregoing reasons, REBNY's motion to intervene [#36] is respectfully denien.

Dated: New York, New York April 5,2011

.~
RICHARD M. BERMAN, U.S.D.J.

2

United States v. American Cyanamid Co., 556 F. Supp. 357, 358 (S.D.N. Y. 1982), atTd,

719 F.2d 558 (2d Cif. 1983), where termination of a proposed consent decrce would have ended

the intervenor's "substantial ... annual sales" and "effectively forcc[d] it out of business," is

distinguishable. REBNY has not ShOV,l1 such a "direct and substantial adverse impact" in this

dispute over a single residential building (The Melar). Am. Cyanamid, 719 F.2d at 561; sec

Moore's Fed. Prac. 3d § 24JO[2)[c), at 24-69; U.S. Postal Servo v. Brennan, 579 F.2d 188, 191

(2d Cif. 1978) ("[Wle fuil to see what [the movant] would ... gain by intervening and

superimposing a motion ... to secure the same relief [sought by defendants]."); see also R Best

Produce, Inc. v.Shulman-Rabin Mktg. Corp., 467 F.3d 238, 240 (2d Cif. 2006).

7

 
 Case 1:10-cv-07495-RMB -MHD Document 57 Filed 07/22/11 Page 1 of 10

U.S. Department of Justice

CHAMBERS OF
:: 1
j .II ELECTRONICALLY FILED
BY HA~.D~O'C~iJ. F'L~_D:~i%A{_-=_J

Un.ited States Attomey Southem District of New York
86 Chambers Street. Third Floor New York, New York 10007
July 21.2011

Honorable Richard M. Berman United States District Court for the Southern District of New York 500 Pearl Street, Room 650 New York, New York 10007

MEMO ENDORSED
'10

Re: United States u. L&M 93rd Street LLC, 10 Civ. 7495 (RMB)

Dear Judge Berman:

In accordance with Your Honor's direction at the June 30 conference, we respectfully submit, for the Court's review, two copies of (i) a fully executed, revised, proposed consent decree (the "Revised Developer Decree"). which resolves the claims against defendant L&M 93rd Street LLC ("Developer"); and (ii) a fully executed proposed consent decree (the "Architect Decree"), which resolves the claims against defendant Costas Kondylis & Partners, LLP ("Architect"). To provide the Court with some of the information relevant to its review, we also summarize below the relevant provisions of the Fair Housing Act, 42 U.S.C. § 3601, et seq. ("FHA"), the procedural history of this action, and the events leading up to execution of the two enclosed decrees. In that regard, these decrees not only are products of extensive, arms' length negotiations, but they also adhere to the purpose of the FHA's design and construction provisions - to ensure the inclusion of "basic features" of accessibility. Further, the Revised Developer Decree reflects modifications that address two specific concerns that the Court has noted.
The Revised Developer Decree and the Architect Decree, in short, are fair, equitable, and consistent with the FHA's purpose. Accordingly, we request - on behalf of all parties that the Court approve these proposed decrees.
I. The Fair Housing Act's Accessibility and Enforcement Provisions

As Congress recognized, unless persons with disabilities have access to housing that contains accessible features, they "are [as] effectively excluded from living in a particular dwelling .. , as by a posted sign saying 'No Handicapped People Allowed.'" H.R. Rep. No. 100-711, at 25 (1988). Accordingly, Congress added the accessible design and construction provisions to the FHA in J988. to ensure that multifamily dwellings constructed for occupancy after March 13, 1991 would have

Case 1:10-cv-07495-RMB -MHD Document 57 Filed 07/22/11 Page 2 of 10
"basic features" of accessibility that can be "eas lily] incorporated in housing design and construction." ld. at 26-27.
Specifically, the FHA requires that the "public use and common use" areas must bc "readily accessible to and usable" by persons with disabilities and that "all the doors designed to allow passage into and within all" covered dwellings must be "sufficiently wide to allow passage by" persons with disabilities using wheel chairs. See 42 US.C. § 3604(f)(3)(C)(i)-(ii). The FHA also requires "all premises within such dwellings" to have features that provide (i) accessible routes; (ii) light switches, electrical outlets, and environmental controls, such as thermostats, in accessible locations; (iii) reinforcements in bathroom walls for installation of grab bars; and (iv) maneuvering spaces in kitchens and bathrooms for persons using wheelchairs. ld. § 3604(f)(3)(C)(iii).
To ensure compliance with these requirements, the FHA provides several mechanisms of enforcement. First, the Government can bring civil actions to seek injunctive and equitable relief, civil penalties, as well as compensatory and punitive damages on behalf of aggrieved persons. See 42 U.S.C. § 3614; see generally United States v. Shanrie Co., Inc., 669 F. Supp. 2d 932 (S.D. IlL 2009); United States v. Tanski, 1:04-CV-714, 2007 WL 1017020 (N.D.N.Y.Mar. 30, 2007). Further, "aggrieved persons" themselves can commence civil actions based on violations of the FHA's accessibility requirements to obtain actual and punitive damages, injunctive relief, and costs and fees. See 42 US.C. § 3613; see also Davis v. Lane Management, LLC, 524 F. Supp. 2d 1375 (S.D. Fla. 2007).
II. BackgrQund on the Proposed Decrees
A. The Melar and the Government's Investigation
The Melar the multifamily dwelling at issue in this action - is a twentytwo story apartment building, located at 250 West 93,d Street in Manhattan. The Melar has 143 apartment units, as well as public and common use areas such as a rental office, a fitness room, and laundry rooms. The Melar was designed and constructed by the Developer and the Architect approximately from 2004 to 2007.
Prior to initiating this action, the Government conducted an investigation of The Melar, which included an inspection of the building's public and common areas and individual dwelling units. That investigation revealed, in the Government's view, some conditions not in compliance with the FHA's accessible design and construction requirements - including, among others, features that inhibit accessibility for persons in wheelchairs, such as mailboxes that are too high to reach; excessively high thresholds; insufficient clear floor spaces in bathrooms for maneuvering; and kitchen entrances that are too narrow. See Complaint, 'II~ 9--1 L
B. The Parties' Pre-Litigation Negotiations
To facilitate a consensual resolution of issues relating to the design and
2

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construction of The Melar, the Government shared the findings of its investigation with the Developer and the Architect. Based on these findings, the parties engaged in extensive settlement discussions, starting in 2008. In September 2010, the Government and the Developer reached agreement on the terms of a proposed consent decree for resolving claims against the Developer relating to The Melar (the "Original Developer Decree").l
The Original Developer Decree resulted from more than one and half years of arms' length negotiations. That proposed decree reflected compromises, by both the Government and the Developer, on matters such as how to apply the FHA's requirements to features at The Melar; whether it is feasible to retrofit certain allegedly inaccessible features at The Melar, given that construction was finished; the speed with which retrofits should be made; and what amount the Developer should pay into an aggrieved persons fund (the "Aggrieved Persons Fund") and what the amount of civil penalty should be. Specifically, under the Original Developer Decree, the Developer agreed, among other things, (i) to retrofit - in accordance with deadlines specified in that decree - some of the features at The Melar that the Government has alleged to be inaccessible; (ii) to deposit $180,000 into the Aggrieved Persons Fund; (iii) to set up a separate, $288,3000 fund for purposes of investing in accessibility-enhancing features and services at The Melar and in a new building contemplated by one of the owners of the Developer (the "Accessibility Project Fund"); (iv) to provide education and training on accessibility to its employees and agents; (v) to pay a civil penalty of $40,000; and (vi) to abide by certain injunctive requirements during the term of that decree.
C. The Court's Questions about Terms of the Original Developer Decree and the Government's Responsesz
On September 30, 2010, the Government commenced this action, asserting claims under the FHA against the Developer and the Architect relating to their design and construction ofthe Melar. Simultaneously, the Government also submitted the Original Developer Decree for the Court's review.
In an Administrative Order issued on October 22, 2010, and during a telephone conference on November 10, 2010, the Court sought explanations for aspects of the Original Developer Decree, and expressed concerns about some of the provisions in that decree. See Transcript of November 16, 2010 Conference ("Nov. 16 Conf. Tr.") at 3-4. Specifically, the Court invited the parties to explain several aspects of that decree, including: the amount of function of the Aggrieved Persons Fund; the amount and function of the Accessibility Project Fund; the purposes of a
1 A copy of the Original Developer Decree, which previously was submitted to the Court, also is enclosed for purposes of comparison.
2 'While the Court was reviewing the Original Developer Decree, the Government and the Architect reached a settlement, and submitted a fully executed Architect Decree to the Court's review on November 10, 2010.
3

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provision requiring the Developer to provide information concerning other covered constructions; the usefulness of the education and training provisions; and the length of the term of the Original Developer Decree. See Administrative Order at 23. Further, as the Court explained on November 10, 2010, an "overarching question" concerned the respective roles and responsibilities of the federal government and New York City officials in ensuring that multifamily dwellings in New York City comply with the FHA's accessibility requirements. See Nov. 16 Conf. Tr. at 3-4.
We responded to the Court's questions in a series ofletter submissions and at two conferences in November 2010 and March 2011. First, although it is disputed by the Developer, we noted that, as a legal matter, complying with Local Law 58 ("Local Law 58") - the New York City accessibility code in effect when the Melar was designed and constructed- did not constitute compliance with the FHA under both federal and local law . In that regard, the FHA expressly states that "[d]eterminations of a ... local government ... shall not be conclusive in [FHA] enforcement proceedings." 42 U.s.C. § 3604(f)-(6)(B). Moreover, as the City itself recognized in a 2007 memorandum, FHA's accessibility requirement "is not reflected in the current city building code [i.e., Local Law 58]." See City's Memorandum in Support of Law of July 3,2007, at 74, available at http://www.nyc.govlhtmlldob/downloads/pdflcons_code_mis.pdf.
Second, and as a practical matter, we reported that, contemporaneously with this action, the City appeared to be utilizing the consultative process established by the Department of Housing and Urban Development ("HUD") for providing technical assistance regarding the FHA to state and local governments. 3 See Transcript of March 14, 2011 Conference ("March 14 Conf. Tr.") at 4-5. Specifically, we reported that it appears that, in December 2010, officials from the City contacted HUD officials to discuss the interrelationship between New York City's current local accessibility code and the FHA. HUD, in turn, offered to provide technical assistance to the City upon request.
Third, in response to the Court's question about the amount of the Aggrieved Persons Fund, we explained that the $180,000 amount resulted from arms' length negotiations among counseL See Letter from the U,s. Attorney's Office, dated October 29, 2010 ("Oct. 29 USAO Letter"), at 4. Further, we noted that establishing such a fund promotes efficiency because as Congress recognized - it "avoids later duplicative litigation" brought by aggrieved persons. See H.R. Rep. 100-711, at 29; see also United States v. Balistrieri, 981 F.2d 916, 935 (7th Cir. 1992). The Court, in turn, noted its concern with the fact that, under the Original Developer Decree, a disability rights organization, rather than the Developer, would receive any sum remaining in the Aggrieved Persons Fund at the end of the term of that decree. See Nov. 16 Conf. Tr. at 16-18.
3 HUD is the federal agency principally responsible for administering the FHA. See 42 U.S.C, § 3608.
4

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Fourth, and as we reported, the Accessibility Project Fund reflects a compromise between the Government and the Developer as to whether the Developer must bring all features at The Melar into full compliance with the FHA.
See Oct. 29 USAO Letter, at 5. Specifically, the Government proposed
establishment of the Accessibility Project Fund in lieu of requiring the Developer to make certain retrofits. The amount of that fund, in turn, was the product of negotiations. [d. Finally, we explained that any part of the fund not spent to improve accessibility would be forfeited by the Developer because to do otherwise would give the Developer an incentive not to invest the money in accessibility improvements. See Nov. 16 Conf. Tr. at 20.
Fifth, the notice, training, and review provisions in the Original Developer Decree are all types of "preventive relief ... necessary to assure the full enjoyment of the rights granted by the [FHA]." 42 U.S.C. § 3614(d)(l)(A). As we advised the Court, these provisions are appropriate here bec.ause they provide an effective means for the Government to monitor the Developer's future compliance with the FHA. See Oct. 29 USAO Letter at 5-6.
Finally, as we explained in our Oct. 29 Letter, the three-year term of the decree served the interests of both the public and the Developer. See id. at 7. Specifically, the public benefits from a three-year term because more "on-demand" retrofits are likely to be made, thus enhancing accessibility in the long run. A three-year term also benefits the Developer, by providing greater flexibility as to when, exactly, it must make different retrofits at The Melar.
D. Proceedings to Date
In response to the Court's Administrative Order directing the parties to explain various aspects of the Original Developer Decree, the Developer, by letter dated November 2,2010, began to express reservations about that agreement. The Developer raised concerns about certain retrofit obligations, the Aggrieved Persons Fund, the Accessibility Project Fund, the impact of Local Law 58, future construction restrictions, and the education requirements. In an effort to address the reservations raised by the Court and then the Developer, the Government and the Developer engaged in further negotiations between November 2010 and March 2011, including a settlement conference before Magistrate Judge Dolinger. However, these discussions did not result in a new consensual resolution.
At the conference on March 14, 2011, the Developer informally sought leave to withdraw its consent to the Original Developer Decree. See March 14 Conf. Tr. at 17-20. The Court required the Developer to formally move for withdrawal of its consent, and stayed discovery, as well as the due date for defendants' responsive pleadings, pending the resolution of the Developer's motion to withdraw. See id. An industry group, the Real Estate Board of New York ("REBNY"), also moved to intervene in connection with that motion to withdraw. But the Court denied REBNY's motion. See Decision and Order dated April 5, 2011. The Developer flIed its motion on April 15, 2011, and the Architect joined in that motion.
5

Case 1:10-cv-07495-RMB -MHD Document 57 Filed 07/22/11 Page 6 of 10
In the meantime, the Government and the Developer resumed their negotiations, and these settlement discussions have proved productive. Specifically, as we advised the Court previously, the Government and the Developer reached an agreement in principle on June 20, 2011, and, on June 28, agreed on the terms of the Revised Developer Decree.
On July 20, 2011, the Government and the Developer executed that decree. Further, the Architect also has consented to resubmit the fully executed Architect Decree for the Court's review in light of the Revised Developer Decree.
E. Modifications in the Revised Developer Decree
In their recent negotiations, the Government and the Developer agreed to change the Original Developer Decree in several respects. Specifically, the Revised Developer Decree reflects substantive modifications in the following aspects:
• Aggrieved Persons Fund: The Original Developer Decree required the Developer to pay to a disability rights organization any sum in this fund that has not been distributed to aggrieved persons by the
end of that decree's term. See Original Developer Decree at 'lI 35. By
contrast, under the Revised Developer Decree, any such "remainder ... shall be released to the Developer." Revised Developer Decree at
'lI 35.
• Accessibility Project Fund: The Original Developer Decree established an Accessibility Project Fund at $288,300 to be used to improve the accessibility for handicapped persons, 50% of which must be expended on The Melar and 50% could be expended in a new building to be developed by one of the owners of the Developer, subject to Government approval in advance. Any portion of the Fund not expended, as provided, would be paid to the Government. The Revised Developer Decree increases the amount that may be expended on a new building to 75%, gives the Government only a limited veto right over how the money is expended and provides that any part of the Fund not expended, as provided, will be paid to a charitable organization that benefits persons with disabilities.
• Educational Program: The Original Developer Decree required the Developer to provide a copy of that decree to its agents, supervisors and employees involvement in the design and construction of The Melar as well as those involved in apartment rentals and building services at The Melar. See Original Developer Decree at '\I"if 38-41. By contrast, the Revised Developer Decree permits the Developer to give the designated agents, supervisors and employees - in lieu of the
entire decree - "a summary of the [1 Decree, designed to provide
personnel with information relevant to their positions." Revised
'1 Developer Decree at 42.
6

Case 1:10-cv-07495-RMB -MHD Document 57 Filed 07/22/11 Page 7 of 10
• Posting of Notice to Potential Victims: The Original Developer Decree required the Developer to post notices to potential victims in four major newspapers in the New York area - the Wall Street Journal, the New York Times, the New York Post, and the Daily News. See Original Developer Decree at ~ 26. By contrast, under the Revised Developer Decree, the Developer only needs to post such notices in two of these newspapers - the Wall Street Journal and the New York Post. See Revised Developer Decree at ~ 26.
• Kitchen Entry Retrofit: The Original Developer Decree required the Developer to remove a section of a wall in certain apartments, which limits the clearance space at the entry to the kitchens. See Original Developer Decree, Appendix B at 3. Under the Revised Developer Decree, the Developer has the option of either removing a section of the wall or installing a low-profile refrigerator, to create the appropriate amount of clearance space. See Revised Developer Decree, Appendix B at 2-3.
• Kitchen Range Retrofit: The Original Developer Decree required the Developer to move the kitchen ranges in certain apartments to the side by two inches, to create a more center-lined approach to these ranges. See Original Developer Decree, Appendix B at 3. The Revised Developer Decree does not require this retrofit.
II. The Court Should Approve the Revised Developer Decree and the Architect Decree
A. The Standard for the Court's Review of the Proposed Consent Decrees
As courts have long recognized, consensual resolutions of FHA cases are "highly favored" because they encourage "cooperation and voluntary compliance," limit litigation costs, and reduce the burden on judicial resources. Jones v. Amalgamated Warbasse Houses, Inc., 97 F.R.D. 355, 358-59 (E.D.N.Y. 1982); see also Durrett v. HouB. Auth. of City of Providence, 896 F.2d 600, 604 (1st Cir. 1990)
(recognizing "a clear policy in favor of [ 1settlements" in FHA cases). Further, in
the design and construction context, settlements advance the purpose of the FHA, and benefit the public, by ensuring that inaccessible features are retrofitted promptly, rather than after lengthy litigation.
In light of the policy favoring settlement in FHA cases, judicial review of a proposed consent decree does not entail an inquiry "into the precise legal rights of the parties" or resolving "the merits of the claims or controversy." Metro. llous. Dev. Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1014 (7th Cir. 1980). Instead, the Court "need only determine that the settlement is fair, adequate, reasonable and appropriate under the particular facts and that there has been valid consent by the concerned parties." Id. Further, because "it is the agreement of the parties, rather than the force of the law upon which the complaint was originally
7

Case 1:10-cv-07495-RMB -MHD Document 57 Filed 07/22/11 Page 8 of 10
based, that creates the obligations embodied in a consent decree," Local No, 93 lJ, City of ClelJeland, 478 U.S. 501, 522 (1986), the Court "is not necessarily barred from entering a consent decree merely because [it] provides broader relief than the court could have awarded after a trial," id. at 525.
B. The Revised Developer Decree and the Architect Decree Are Fair and Reasonable and Adhere to the Purpose ofthe FHA
"[A] presumption of fairness, adequacy, and reasonableness attaches to lal settlement" that is the "product of arms' length bargaining" between experienced counsel. In re IPO Sec. Litig., 671 F. Supp. 2d 467, 480-81 (S.D.N.Y. 2009); see also In re Nortel Networks Corp, Sec, Litig., 01 Civ. 1855 (RMB), 2006 WL 3802198, at *4 (S,D,N,Y. Dec, 26, 2006).
Here, the proposed resolution of this action - as embodied in the Revised Developer Decree and the Architect Decree - resulted from almost three years of negotiations among counsel for the Government, the Developer, and the Architect, as well as input from the Court, Specifically, the two proposed decrees reflect compromises by all parties relating to issues such as the timing and extent of retrofits at The Melar, the amounts of penalties and compensation, and the scope and duration of the injunctive terms. See supra at 3·5, For example, as a result of the most recent negotiations, and to reduce the Developer's compliance costs, the Government agreed to reduce the number of newspapers in which notices to potential victims must be posted, see Revised Developer Decree at ~ 26, and to give the Developer the option to either remove a section of the wall in certain kitchens or to installlow·profile refrigerators, see id. Appendix B at 2, The Revised Developer Decree and the Architect Decree, in short, are products of "arms' length bargaining"; and the Court can accord "the presumption offairness, adequacy, and reasonableness" to these proposed decrees. See In re lPO Sec. Litig., 671 F. Supp. 2d at 480·81.
In addition, and as discussed above, see supra at 4-5, the retrofits, injunctive, and financial terms of the Revised Developer Decree are designed to require prompt retrofits to make The Melar more accessible, ensure future compliance with the FHA, and compensate individuals denied housing opportunities as result of inaccessibility. These terms, accordingly, adhere to the
basic purpose of the FHA - to "extend [ 1the principle of equal housing opportunity to [ 1persons [with disabilities]" and to compensate victims of housing
discrimination. See H.R. Rep. 1"'0.100-711, at 24
• Further, it appears that, prompted by the Court's questions, the City has begun to engage in a consultative process with HUD to seek technical assistance on harmonizing the local accessibility code in New York City with the requirements of the FHA. See March 14 Conf, Tr. at 4-5. Thus, this process resolves any concern of conflicting or inconsistent enforcement of the FHA's requirements.
8

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C. Modifications in the Revised Developer Decree Address the Court's Concerns About the Aggrieved Persons Fund and Educational Programs
Finally, to the extent that the Court expressed concerns about the Original Developer Decree's mandate for any leftover sum in the Aggrieved Persons Fund to be paid to a disability rights group, see Nov. 16 Conf. Tr. at 16-18, or the training requirement for the Developer's agents, employees, and supervisors, see Administrative Order at 3, the Government has agreed to modifications in the Revised Developer Decree that address such concerns.
Specifically, if the full amount of Aggrieved Persons Fund has not been fully distributed to aggrieved persons by the end of the Revised Developer Decree's term, such funds will "be released to the Developer [J." See Revised Developer Decree at ~ 35. Further, rather than requiring all of the Developer's agents, employees, and supervisors to review the Revised Developer Decree in its entirety, the Developer can provide its personnel with appropriate summaries of the decree that are tailored to the particular duties of such personnel. See id. at ~ 42.
'* '* *' '* '*
We thank the Court for the opportunity to set forth the relevant background, and to offer an explanation for the terms of enclosed proposed decrees. As set forth above, we respectfully submit that the terms of these decrees are procedurally and substantively fair, further the purposes of the FHA's design and construction provisions, address the questions and concerns that the Court has raised, and allow the parties to achieve a consensual resolution of this matter without the expenditure of additional resources. Accordingly, on behalf of all parties, we respectfully request that the Court approve the Revised Developer Decree and the Architect Decree.
Respectfully,
PREET BHARARA United States Attorney
By:
B="R"'=r""AN"-='=M"':-.F....E.....L. ::-D:-:tv:1-:-A:-cN-:: - - - - LI YU CARINA H. SCHOENBERGER Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 Telephone: (212) 637-2774/2734/2822 Fax: (212) 637-2686/2702
Enel. (3).
9

Case 1:10-cv-07495-RMB -MHD Document 57 Filed 07/22/11 Page 10 of 10 cc: By E-Mail
Jack Hadlock, Esq. (Jhadlock@rosenbergestis.com) Neil Underberg, Esq. (Nunderberg@rosenbergestis.com) Christopher Albanese, Esq. (Calbanese@milbermarkis.com)
10

 
 United States Of America v. L&M 93rd Street LLC et al, Docket No. 1:10-cv-07495 (S.D.N.Y. Sept 30, 2010), Court Docket
Printed By: Joseph Chatham on Saturday, October 27, 2012 - 11:09 AM

Part Description 1 29 pages 2 Notice of Right to Appeal

Multiple Documents

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LEG811O2?documentName=65.xml

rm © w fQ1 Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 1 of 29 [§ [§ 11 [§

lM lliJ JUL 222011

UNITED STATES DISTRICT COURT SOUTHERN lliSTRICT OF NEW YORK
UNITED STATES OF AMERICA,

ECFCASE

CHAMBERS OF RICHARD M. BERMAN
U.S.O.J.

-against-

Plaintiff,

CONSENT DECREE BETWEEN THE UNITED STATES OF AMERICA AND DEFENDANTL&M93RDSTREETLLC

L&M 93RD STREET LLC and COSTAS

10 Civ. 7495 (RMJ:ll._

_

KONDYLIS & PARTNERS, LLP, Defendants.

\USDC SDNY
1I DOCL.:MENT IiELECTRONICALLY FILED

A. Background

lt;:FJLEI) INTRODUCTION

i-~ZJ" I

This Consent Decree is entered into between the United States of America (the o'United

States") and defendant L&M 93rd Street LLC.

WHEREAS, the United States brought this action (the "Action") to enforce provisions of

the Fair Housing Act ("FHA"), codified at 42 U.S.C. §§ 3601-3619; specifically, the United

States' complaint in this Action alleges that defendants L&M 93rd Street LLC and Costas

Kondylis & Partners have engaged in a pattern or practice of discrimination, and have denied

rights to a group of persons in a manner raising an issue of general public importance, including

by failing to design and/or construct the Melar Apartments ("The Melar"), a residential apartment

building in New York, New York, in accordance with the requirements of the FHA, 42 U.S.C.

§ 3604(f)(3)(C);

WHEREAS, defendant L&M 93rd Street LLC denies the allegations of the complaint and

enters into this Consent Decree for settlement purposes only, prior to motion practice or trial,

without admitting any issue of fact or law;

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 2 of 29
WHEREAS, The Melar is subject to the accessible design and construction requirements of the FHA, 42 U.S. C.§ 3604(f)(3)(C); B. Defendant
WHER.EA.S, defendant L&M 93rd Street LLC (the "Developer Defendant"), a Delaware limited liability company, is the builder and developer of The Melar, and, in those capacities, designed and constructed The Melar;
WHEREAS, the Developer Defendant hereby represents that neither it, nor any entities or persons with an ownership interest or membership in it, whether direct or indirect, have designed and constructed any other property subject to the design and construction requirements of the FHA;
WHEREAS, Costas Kondylis & Partners, ILP, is a New York limited liability partnership that drew the architectural plans for The Melar and, in that capacity, designed and constructed The Melar (referred to as the "Architect Defendant");
WHEREAS, this Consent Decree does not resolve the United States' claims against the Architect Defendant; C. Relevant Requirements of the Fair Housing Act
WHEREAS, the FHA provides that residential buildings with four or more dwelling units, and one or more elevators, designed and constructed for first occupancy after March 13, 1991, are "covered multifamily dwellings" ("Covered Multifamily Dwellings") and must include certain basic features of accessible and adaptive design to make such units accessible to or adaptable for use by persons with disabilities, 42 U.S.C. §§ 3604(f)(3)(C) and (f)(7)(A);
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 3 of 29

WHEREAS, the accessible and adaptive design provisions of the FHA require that for

Covered Multifamily Dwellings: (i) the public use and common use portions of such dwellings

are readily accessible to and usable by persons with a disability; (ii) all the doors designed to

allow passage into and within all premises within such dwellings are sufficiently wide to allow

passage by persons with a disability using wheelchairs; and (iii) all premises within such

dwellings contain the following features of adaptive design: (Dan accessible route into and

through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental

controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation

of grab bars; and (IV) usable kitchens and bathrooms such that an individual using a wheelchair

can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C) (these provisions and features are

referred to herein as the "Accessible Design Requirements");

D. Violations at Tbe Melar Alleged In Tbe Complaint

WHEREAS, The Melar is a residential rental apartment building located at 250 West

93rd Street in New York, New York. The building 1;0nsists of a tower with elevator access, with

143 rental apartment units, as well as public and common use areas. The building features a

landscaped sun terrace, a fitness center, and a residents' lounge;

WHEREAS, the United States alleges in its complaint that it has inspected The Melar and

specifically identified, inter alia, the following failures to meet the Accessible Design

Requirements at The Melar:

•

Excessively high thresholds, interfering with accessible routes for persons in

wheelchairs;

•

Terraces inaccessible to persons in wheelchairs;

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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 4 of 29

Insufficient clear floor space within bathrooms for maneuvering by persons in

wheelchairs;

•

Bathroom fixtures precluding installation of bathroom grab bars;

•

Kitchen entries too narrow to accommodate persons in wheelchairs;

•

Kitchen ranges not usable by persons in wheelchairs;

•

Kitchen electrical outlets inaccessible to persons in wheelchairs;

•

Walk-in closets inaccessible to persons in wheelchairs;

•

Common area doors requiring excessive force for persons with certain disabilities;

•

Common area doors closing too quickly for disabled persons to pass through;

•

Common area bathrooms not usable by persons in wheelchairs;

•

Mailboxes inaccessible to persons in wheelchairs;

•

Protruding objects in common areas, not detectable by canes of visually impaired

persons;

•

Features within the fitness room inaccessible to persons in wheelchairs;

•

Features within the laundry room inaccessible to persons in wheelchairs; and

•

Insufficient clear floor space within basement storage room for maneuvering by

persons in wheelchairs.

E. Consent of the Parties to Entry of this Order WHEREAS, the Government and the Developer Defendant (herein, "the parties") agree

that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. §§ 1331

and !345, and 42 U.S.C. § 361 4(a). The parties further agree that this Action should be resolved

without further proceedings and without an evidentiary hearing or a trial;

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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 5 of 29
WHEREAS, the Developer Defendant agrees to make modifications to The Molar as set forth herein; and
WHEREAS, the parties agree to the entry of this Consent Decree. It is hereby ORDERED, ADJUDGED, and DECREED:
I. GENERAL INJUNCTION 1. The Developer Defendant and each of its officers, employees, agents, successors, and assigns, and all other persons in active concert or participation with it, are enjoined from discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 li.S.C. § 3604.
II. CORRECTIVE ACTIONS I RETROFITS 2. The United States alleges that lhe Melar was not designed or constructed in accordance with the FHA. To address these alleged violations of the FHA, the Developer Defendant agrees to make the modifications to The Melar as described in Appendices A and B. Modifications to the Public and Common Use Areas 3. The Developer Defendant agrees to modify the public and common use areas of The Melar by taking the actions described below. 4. As soon as reasonably possible, but no later than 6 months from the entry of this Consent Decree, the Developer Defendant shall complete the retrofits listed in Appendix A. The Developer Defendant shall make reasonable efforts to minimize inconvenience to residents in making such retrofits. Modification.• to Dwelling Unit Interiors 5. The Developer Defendant agrees to modify dwelling units within The Melar by taking the actions described below.
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 6 of 29
6. For each unit listed in Appendix B, as soon as reasonably possible, but no later
than 6 months from the entry of this Consent Decree (except as otherwise provided in Appendix !!), the Developer Defendant shall complete the retrofits listed in Appendix B. The Developer
Defendant shall make reasonable efforts to minimize inconvenience to residents in making such retrofits.
7. Within 10 days from the date of the entry of this Consent Decree, the Developer Defendant shall inform each resident whose dwelling unit is to be retrofitted pursuant to Appendix B that: (I) as a result of a settlement of an action brought by the United States, the Developer Defendant has agreed to retrofit certain features of the unit; (2) the retrofits set forth in Appendix B applicable to the resident's unit (with each notice tailored to the specific rctrofit(s) to be made to the particular resident's unit) will be provided within 45 days of any request but will, in any event, take place within six months; and (3) the scheduling of the retrofits will take into account the preferences and convenience of the resident or prospective resident and that
relocation costs, if any, wi II be provided in advance. The notice shall be substantially in the form
of Appendix C-1. 8. Within l 0 days from the date of the entry of this Ccnsent Decree, the Developer
Defendant shall inform all current residents of apartments having conditions listed in Appendix
.§ and all those who have signed leases to become residents of those apartments that: (I) as a
result of a settlement of an action brought by the United States, to the extent provided in Appendix B, certain retrofits to apartment units are available upon request of current or prospective residents (each notice to be tailored to the specific retrofits that could apply to that particular unit); and (2) the scheduling ofthe retrofits will take into account the preferences and
Page 6 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 7 of 29
convenience of the resident or prospective resident and that relocation costs, if any, will be provided in advance. The Developer Defendant sballlikewise provide such notice to all prospective tenants. The notice shall be substantially in the form of Appendix C-2.
9. The Developer Defendant shall certifY to the United States in writing that the notices described in paragraphs 7 and 8 have been distributed and shall specify the manner in which they were distributed as part oftheir annual reporting requirement Such certification shall include the names and addresses of the persons to whom the notices were distributed.
10. In the event that a resident of a unit within The Melar scheduled to undergo a modification is dislocated from his or her unit for more than a fourteen ( 14) consecutive hour period, the Developer Defendant shall pay such resident, pro rata, the applicable federal government per diem rate for food and lodging for the local area (as available at www.gsa.govclick on "per diem rates" under travel) for each day or half-day of undue inconvenience or hardship. Such payment shall be made prior to the commencement of any retrofit work on the resident's unit, so that the resident can use the payment to obtain alternative living accommodations while dislocated.
11. Present and/or future residents may not be charged any additional rent, deposit, fee, or other consideration for the units in which retrofits are or may be implemented by reason of completed, contemplated, or possible retrofits. Nothing in this paragraph precludes the Developer Defendant from the implementing rent increases, or imposing fees for any other reason, at the Melar.
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 8 of 29
UI. NOTICE OF RETROFITS TO PUBLIC AND COMMON USE AREAS 12. Within 10 days of the entry of this Consent Decree, the Developer Defendant shall provide written notices to all residents at The Melar stating that the retrofits required by this Consent Decree will be perfonned to the public and common use areas of The Melar. Such notice shall confonn to APPendix D. 13. The Developer Defendant shall certify to the United States in writing that the notices required by paragraph 12 have been distributed and shall specify the manner in which they were distributed within ten days after such distribution; and, upon the specific request of the United States, the Developer Defendants shall provide to the United States a list of the names and addresses of the persons to whom the notices were distributed, which the United States shall return to the Developer Defendants within thirty days.
IV. NEUTRAL INSPECTOR 14. The Developer Defendant shall enter into a contract with a neutral inspector approved by the United States ("Inspector") to conduct on-site inspections of all retrofits perfonned pursuant to ,Appendices A and B of this Consent Decree to detenninc compliance with the specifications in those appendices. The Inspector shall have expertise in the design and construction requirements of the FHA. 15. Only if requested to do so by the Developer Defendant, the Inspector v.ill review and comment upon the sufficiency of any proposed repair in writing in advance of any repair by the Developer Defendant.
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 9 of 29
16. An initial inspection of The Melar shall take place within 30 days of the completion of all of the retrofits set forth in Appendices A and B, or as soon thereafter as practicable.
17. For the inspection of The Melar, the Developer Defendant shall give the United States at least three weeks prior notice of the inspection and shall give the United States an opportunity to have its representative present for the inspection.
J 8. The Inspector shall set out in writing the results of the inspection of The Melar, including any deficits, and shall send that report to the Developer Defendant and to the United States-'
J9. If the inspection indicates that not all of the required retrofits have been made to The Melar as specified in the applicable Appendices, the Developer Defendant shall correct any deficiencies within 60 days and shall pay for another inspection by the same Inspector to certify that the deficiencies have been corrected. This process shall continue until the Inspector certifies that all of the necessary modifications have been made. The Developer Defendant shall pay all of the Inspector's reasonable costs associated with these inspections, and such payments shall be made without regard to the Inspector's findings. Upon reasonable notice, representatives of the United States shall he permitted to inspect the modifications and/or the third"party inspection reports provided for in this Consent Decree, to ensure compliance.
For purposes of this Consent Decree, notices provided to the United States shall be addressed to Chief, Civil Rights Unit, Office of the United States Attorney for the Southern District of New York, 86 Chambers Street, Third Floor, New York, New York l 0007.
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 10 of 29
V. TRANSFER OF INTEREST IN PROPERTIES 20. The sale or transfer of ownership, in whole or in part, of any entity or person's interest(s) in The Melar shall not affect the Developer Defendant's continuing obligation to retrofit, and/or conduct or allow inspections or surveys of, The Melar, as specified in this Consent Decree, unless the Developer Defendant has obtained in writing, as a condition of sale or transfer, the purchaser's or transferee's commitment to assume such obligations, so that the purchaser or transferee will be bound by the terms of this Consent Decree to make retrofits and allow or conduct inspections or surveys as set forth in this Consent Decree, and will be subject to the jurisdiction of this Court. 21. Should an owner of The Melar decide to sell or transfer any ownership of The Melar, in whole or in part, or any portion thereof, prior to the completion of the retrofits specified
in this Consent Decree's Appendices describing the retrofits for The Melar, the owner of The Melar will at least 30 days prior to completion of the sale or transfer, unless the contract of sale
shall provide for a shorter period between contract and closing, but at least 15 days prior to completion of the sale or transfer: (a) provide each prospective buyer with a copy of this Consent Decree and written notice that Melar is subject to this Consent Decree, including specifically the Developer Defendant's obligations to either (i) complete required retrofit work and allow inspections, or (ii) assign such obligations to the purchaser or transferee by obtaining the purchaser or transferee's commitment to be bound by this Order, subject to the jurisdiction of this Court; and (b) provide to the United States, by facsimile and first-class mail, written notice of the owner's intent to sell or transfer ownership, along with a copy of the notice sent to each buyer, and each buyer's name, address and telephone number.
Page 10 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 11 of 29

Vll. NON-DISCRIMINATION IN OTHER DESIGN A.'!D CONSTRUCTION

22. The Developer Defendant shall maintain, and provide to the United States upon

request, the following information and statements regarding any Covered Multifamily Dwellings

intended to be developed, built, designed, and/or engineered in whole or in part, by it or by any

entities in which it has a position of control as an officer, director, member, or manager, or has a

ten-percent (10%) or larger ownership share:

the name and address of the project;

a description of the project and the individual units;

•

the name, address, and telephone number of the civil engineer(s) involved with

the project;

a statement from the civil engineer(s) involved with the project acknowledging

and describing his/her knowledge of and training in the requirements of the Fair

Housing Act and in the field of accessible site design, certifying that he/she has

reviewed the architectural plans for the project and that the design specifications

therein fully comply with the requirements of the FHA, and stating that the design

specifications comply with the Guidelines, another HUD-recognized safe harbor,

or the accessibility specifications of an applicable State or municipal building

code (to the extent the Developer Defendant's construction in compliance with

such building code(s) does not violate the FHA).

the name, address and telephone number of the architect(s) who are employed or

retained by the Developer Defendant and are involved with the project;

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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 12 of 29

•

a statement from all architect(s) who are employed or retained by the Developer

Defendant and are involved with the project, acknowledging and describing

his/her knowledge of and training in the requirements of the Fair Housing Act and

the Guidelines, and in the field of accessible site design, certifying that he/she has

reviewed the architectural plans for the project and that the design specifications

therein fully comply with the requirements of the FHA, and stating that the design

specifications comply with the Guidelines, another HUD-recognized safe harbor,

or the accessibility specifications of an applicable State or municipal building

code (to the extent the Developer Defendant's construction in compliance with

such building code(s) does not violate the FHA).

23. Ifthe engineering documents or architectural plans referred to in paragraph 22 are

revised, and the revisions would have any impact on whether the dwellings or complex complies

with the Fair Housing Act and/or the Guidelines, another HUD-recognized safe harbor, or the

accessibility specifications of an applicable State or municipal building code (to the extent

Defendant's construction in compliance with such building code(s) does not violate the FHA),

the Developer Defendant shall obtain, maintain, and provide to the United States upon request, a

statement from the site engineer(s) or architcct(s) who are employed or retained by any

Defendant and are involved with the project, as applicable, that all specifications in the revised

engineering documents or architectural plans, as pertinent, comply with the requirements of the

Fair Housing Act, as well as the Guidelines, another HUD-recognized safe harbor, or the

accessibility specifications of an applicable State or municipal building code (to the extent the

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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 13 of 29
Developer Defendant's construction in compliance with such building code(s) does not violate the FHA).
24. The Developer Defendant will make all new construction of Covered Multifamily Dwellings fully compliant with the Accessible Design Requirements, the Americans with Disabilities Act, and the Americans with Disabilities Act Accessibility Standards to the extent applicable to Covered Multifamily Dwellings. Moreover, with respect to all new construction of Covered Multifamily Dwellings outside ofNew York City, the Developer Defendant shall make all such construction fully compliant with the Guidelines or any other safe harbor recognized by HUD. In addition, with respect to all new construction of Covered Multifamily Dwellings within New York City, the Developer Defendant shall make all such construction fully compliant with either: (a) the Guidelines or any other safe harbor recognized by HUD; or (b) the accessibility specifications ofany applicable State or municipal building code (to the extent the Developer Defendant's construction in compliance with such building code(s) does not violate the FHA). During the term of this Consent Decree, upon reasonable notice, the United States will be
permitted full access to such properties of the Developer Defendant to inspect for compliance
with such standards, rules, and laws. VII. PAYMENTS TO AGGRJEVED PERSONS
25. Within 30 days of entry of this Consent Decree, the Developer Defendant shall deposit in an interest-bearing account the total sum of ONE HUNDRED EIGHTY THOUSAND DOLLARS {$180,000) for the purpose of compensating any aggrieved persons in connection with alleged discriminatory housing practices involving The Melar. This sum, which constitutes a cap on any such compensation, shall be referred to as the "Settlement Fund."
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 14 of 29
26. Except as otherwise provided in this paragraph, within 15 days of the entry of this Consent Decree, the Developer Defendant shall publish the Notice to Persons Who May Have Suffered Housing Discrimination ("Notice") at Appendix E informing readers of the availability of compensatory funds. The Notice shall be no smaller than three columns by six inches and shall be published on three occasions in each of the following newspapers: the Wall Street Journal and the New York Post. The three publication dates shall be separated from one another by 21 days, and at least two of the publication dates shall be on a Sunday for the New York Post and the weekend edition for the Wall Street Journal. Within I0 days of each publication date, the Developer Defendant shall provide the newspapers containing the Notice to the United States. In lieu of publishing the Notice as provided in the preceding four sentences, the Developer Defendant may publish a notice jointly with the Real Estate Board of New York and/or other entities that have resolved FHA suits brought by the United States (a "Joint Notice"), if: (I) the Developer Defendant publishes the Joint Notice within three months of the entry of this Consent Decree; (2) the Joint Notice contains all of the information contained in the Notice; (3) the Developer Defendant obtains the approval of the United States with respect to any additional content included in the Joint Notice, as well as to the form of the Joint Notice, at least 15 days prior to publication; (4) the Joint Notice is published on at least five occasions in each of the following newspapers: the Wall Street Journal; the New York Times; the Daily News, and the New York Post; (5) the five publication dates are separated from one another by 21 days, with at least two of the publication dates on a Sunday; and (6) within I0 days of each publication, the Developer Defendant provides the newspapers containing the Joint Notice to the United States.
Page 14 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 15 of 29
27. Within 15 days of entry of this Consent Decree, the Developer Defendant shall place, on http://www.themelar.com, a link to an electronic version of the Notice in an Adobe Acrobat Portable Document Format ("PDF"). The link should state "Notice to Persons Who May Have Suffered Housing Discrimination," and should appear on the upper half of the website, in a red font, in a font size no smaller than the font size for any of the terms "home," "amenities," "neighborhood," "floor plans" or "contact us," as they appeared as of June 1, 2011.
28. Within 15 days of the entry of this Consent Decree, the Developer Defendant shall send a copy of the Notice to each of the following organizations: Fair Housing Justice Center, 5 Hanover Square, 17th Floor, New York, New York 10004; and United Spinal Association, 75-20 Astoria Blvd., Jackson Heights, New York 11370.
29. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall send, by first-class mail, postage pre-paid, a copy of the Notice to each present resident at The Melar and to all former residents of The Melar. For past residents, the Developer Defendant will have complied with the requirements of this paragraph by mailing such notice to the forwarding address, if any, provided by the former resident at the time the former resident moved out of The Melar. Within 60 days of entry of this Consent Decree, the Developer Defendant shall provide the United States with a sworn affidavit that the Notices have been sent. Within thirty (30) days of receipt of the affidavit, the United States may exercise its option to inspect the records of the Developer Defendants to confirm that the facts asserted in the affidavit are correct.
30. The United States may make its own efforts to locate and provide notice to potential aggrieved persons.
Page 15 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 16 of 29
31. The Developer Defendant shall pennit the United States, upon reasonable notice,
to review any records that may reasonably facilitate it~ detenninations regarding the claims of alleged aggrieved persons.
32. The United States shall investigate the claims of allegedly aggrieved persons and shall determine which persons are aggrieved and an appropriate amount of damages that should be paid to each such person. The United States will inform the Developer Defendant in writing of each of its determinations together with a copy of a sworn declaration from each aggrieved person setting forth the factual basis of the claim. One year after the entry of this Consent Decree, the United States shall inform the Developer Defendant of all determinations made by that time, and, two and a half years of the entry of this Consent Decree, the United States shall inform the Developer Defendant of all of its remaining determinations.
33. If the Developer Defendant disputes the grievance determination or amount of a payment to an aggrieved person, the Developer Defendant shall, within thirty (30) days of receiving notice of a determination (a "Determination") from the United States, provide a written objection to the United States, along with any information or documents tbat they believe may refute the aggrieved person's claim. For good cause shown, the United States shall extend for a reasonable time the Developer Defendant's time to object to any Determination. The United States shall give due consideration to any objections it receives from the Developer Defendant and shall submit, following any objection, its reconsidered detem1ination (a "Reconsidered Determination") to the Developer Defendant, in writing, setting forth the aggrieved person and the amount that the aggrieved person shall be paid. If the Developer Defendant disputes the Reconsidered Determination, the Developer Defendant shall submit an objection to the United
Page 16 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 17 of 29
States "ithin ten (I 0) days of receiving the Reconsidered Determination, and the United States shall submit the matter to the Court for a final determination.
34. The Developer Defendant shall, no later than thirty (30) days after receiving a Determination to which no objection has been made, twenty (20) days after receiving a Reconsidered Determination to which no objection has been made, or twenty (20) days after any decision by the Court overruling a filed objection, whichever is earliest, deliver to the United States checks drawn upon the Settlement Fund payable to aggrieved persons in the amounts identified by the United States. In no event shall the aggregate of all such checks exceed the amount of the Settlement Fund, including accrued interest. No aggrieved person shall be paid until he/she has executed and delivered to the United States, with a copy to the Developer Defendant, the release at Appendix F.
35. In the event that less than the total amount in the Settlement Fund, including accrued interest, is distributed to aggrieved persons, the remainder of the funds in the Settlement Fund shall be released to the Developer Defendant.
VIII. PAYMENT TO THE UNITED STATES 36. Within 30 days of the date of the entry of this Consent Decree, the Developer Defendant shall pay the United States FORTY THOUSAND DOLLARS ($40,000) pursuant to 42 U.S.G § 3614(dXl)(C) to vindicate the public interest. Said sum shall be paid by submitting a check made payable to the "United States of America" to the United States.
Page 17 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 18 of 29

IX. ESTABLISHMENT OF ACCESSIBILITY PROJECT FUND

37. The Developer Defendant shall establish an Accessibility Project Fund in the

amount of TWO illJNDRED EIGHTY EIGHT THOUSAND THREE HUNDRED DOLLARS

($288,300) (the "Fund Amount").

a. The Accessibility Project Fund shall be used prior to the termination of this

Consent Decree for the construction of facilities, or the provision of services, at the Melar for the

primary benefit of persons with disabilities.

b.

Up to 75% of the Accessibility Project Fund, however, may be expended prior to

the termination of this Consent Decree on the design or construction of features, or the purchase

of items to be installed, that enhance accessibility at a Covered Multifamily Dwelling (the "New

Building") the construction of which is commenced during the term of the Consent Decree by a New Developer, as defined in the footnote below.2

c. None of the retrofit or other requirements of this Consent Decree shall qualify for

expenditures of the Accessibility Project Fund, except the expenses that the Developer Defendant

may incur in connection with the installation of low-profile refrigerators upon the request of

residents in units with less than 40 inches of clearance at the refrigemtor, as shown on Appendix

B. For any expenditure to be made from the Accessibility Project Fund for the design or

construction of a feature or features at The Melar or a New Building, the Developer Defendant or

the New Developer, respectively, must give the United States thirty (30) days notice, adequately

describing the proposed expenditure and, if the expenditure is for a New Building, certifying that

2

A "New Developer" shall be an entity that is at least 50% owned by persons who

collectively hold at least 50% of the ownership interest in the Developer Defendant.

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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 19 of 29
the accessibility-enhancing features would not have been included in the New Building but for the availability of money from the Accessibility Project Fund. The United States may disapprove any such expenditure if the proposed expenditure: (i) is for features that do not materially enhance the accessibility ofthe New Building for persons with disabilities; (ii) is for features that are otherwise required by this Consent Decree (with respect to the Melar}, the certification specified in Paragraph 22 above (with respect to the New Building), or by law (with respect to either building); or (iii) is not a reasonable reflection of the cost of designing and constructing the accessibility-enhancing features (in which case only the excess cost will be di sapprovcd). The proposed expenditure will be deemed approved by the United States unless, within thirty (30) days of the United States' receipt of the notice, the United States responds in writing and explains why the expenditure does not qualifY under this paragraph.
d. One month before the termination date of this Consent Decree, the Developer Defendant shall present a full and accurate accounting of the Accessibility Project Fund. The aggregate expenditures under subparagraphs a through d above shall be subtracted from the Accessibility Project Fund, and the Developer Defendant shall, within twenty (20) days of the accounting, pay the difference by an electronic funds transfer pursuant to wiring instructions to a charitable organization mutually agreed upon by the Developer Defendant and the United States, which organization has as its purpose to assist persons with disabilities to locate accessible housing or to assist persons with disabilities to modifY housing to improve accessibility.
X. EDUCATIONAL PROGRAM 38. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall provide a copy of this Consent Decree to all their agents and employees involved in the design or
Page 19 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 20 of 29
construction of The Melar (meaning a representative of Rose Associates, Inc. ("Rose Associates")) and shall secure a signed statement from each such agent or employee acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix G.
39. During the term ofthis Consent Decree, any new agent or supervisor of the Developer Defendant who will be involvedin the design or construction of Covered Multifamily Dwellings shall, within 30 days after the date he or she commences an agency or employment relationship with the Developer Defendant, be given a copy of this Consent Decree by the Developer Defendant, and the Developer Defendant shall require each such new agent or employee to sign a statement acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix G.
40. Within 30 days of the entry of this Consent Decree, the Developer Defendant shall provide a copy of this Consent Decree to all their agents and employees involved in rental of units at The Melar, and/or the supervision of services to residents at The Melar (including the following personnel at Rose Associates: the Melar Resident Property Manager (who supervises the Melar lobby attendants, porters, and handymen); tl1c Mclar Property Manager stationed at Rose Associates; the Melar on-site Leasing Manager; the Mclar Leasing Director stationed at Rose Associates), and shall secure the signed statement from each agent or employee acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be
Page 20 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 21 of 29
substantially similar to the fonn of Appendix G. In addition, the supervisor(s) of the Melar porters and handymen shall certify that he/she has explained the obligations ofthe Melar porters and handymen to those individuals, and that those individuals have had an opportunity to have their questions about their obligations answered.
41. During the tenn of this Consent Decree any new agent or supervisor of the Developer Defendant, or of Rose Associates, who will be involved in the renting ofunits at The Melar, and/or the provision of services to residents at The Melar shall, within 30 days after the date he or she commences an agency or employment relationship with the Developer Defendant, be given a copy of this Consent Decree by the Developer Defendant, and the Developer Defendant shall require each such new agent or employee to sign a statement, acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the fonn of Appendix G.
42. In lieu ofproviding entities, agents, supervisors, or employees with copies of the Consent Decree as required in paragraphs 38 through 41, the Developer Defendant may provide entities, agents, supervisors, or employees with a summary of the Consent Decree, designed to provide personnel with infonnation relevant to their positions. The Developer Defendant may provide such summaries in lieu of copies of the Consent Decree with the United States' advance written approval of the fonn and content of any proposed summary, which approval will not be unreasonably withheld or delayed.
43. The Developer Defendant shall also ensure that it and its employees, as well as any entities (e.g., finns) acting as the Developer Defendant's agent, who have supervisory
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 22 of 29

authority over the design and/or construction of covered, multifamily dwellings have a copy of, are familiar with, and personally have reviewed, the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991 ), and the United States Department of Housing and Urban Development, Fair Housing Act Design ManuaL A .M:.anual to Assist Builders in Meeting the Accessibility Requirements of the Fair Housing Act (August 1996, Rev. April 1998). The Developer Defendant and all employees, as well as any entities (e.g., firms) acting as the agent(s) of the Developer Defendants, whose duties, in whole or in part, involve the management, sale and/or rental of multifamily dwellings at issue in this case shall, in the case of any such employees, be informed of those portions of the Fair Housing Act that relate to accessibility requirements, reasonable accommodations and reasonable modifications, and, in the case ofany such entities, be provided with a copy of the Fair Housing Act, the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991), and the United States Department of Housing and Urban Development, Fair Housing Act Design Manual, A Manual to Assist Builders in Meeting the Accessibility Requirements of the Fair Housing Act (August 1996, Rev. April1998).
44. Within 90 days of the date of entry of this Consent Decree, the Developer Defendant and all employees and agents whose duties, in whole or in part, involve or will involve supervision over the development, design and/or construction of Covered Multifamily Dwellings (including any such employees at Rose Associates) shall undergo training on the design and construction requirements of the Fair Housing Act.3 The training shall be conducted

3

The educational program provided to employees not engaged in design, construction, or

maintenance, such as sales and rental employees, may focus on the portions of the law that relate

generally to accessibility requirements as opposed to technical design and construction

requirements.

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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 23 of 29

by a qualified third-party individual, not associated with the Developer Defendant or its counsel,

-

and approved in advance by the Department of Justice; and any expenses associated with this

training shall be borne by the Developer Defendant. The Developer Defendant shall provide to

the United States, 30 days before the training, the name(s), address(es) and telephone number(s)

of the trainer(s); and copies of the training outlines and any materials to be distributed by the

trainers. The Developer Defendant shall provide to the United States certifications executed by

the Developer Defendant and all covered employees and agents confirming their attendance, in a

form substantially equivalent to Appendix H.

XI. NOTICE OF DEFENDANT'S NON-DISCRIMINATION POLICY

45. Within ten days of the date of entry of this Consent Decree, the Developer

Defendant shall post and prominently display in the sales or rental offices of all Covered

Multifamily Dwellings owned or operated by them a sign no smaller than 10 by 14 inches

indicating that all dwellings are available for rental on a nondiscriminatory basis. A poster that

comports with 24 C.F.R. Part 11 0 will satisfY this requirement.

46. For the duration of this Consent Decree, in all future advertising in newspapers

and electronic media, and on pamphlets, brochures and other promotional literature regarding the

existing Covered Multifamily Dwelling or any new Covered Multifamily Dwellings that the

Developer Defendant may develop or construct, the Developer Defendant shall place, in a

conspicuous location, a statement that the dwelling units include features for persons with

disabilities required by the federal Fair Housing Act.

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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 24 of 29
XII. NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS 47. No later than 180 days after the date of entry of this Consent Decree, the Developer Defendant shall: (a) submit to the United States the executed certifications and statements required by paragraphs 38-43 of this Consent Decree; and (b) certifY to the United States in writing that the notices required by paragraphs 7, 8, and 12 of this Consent Decree have been distributed, and specifY the manner in which they were distributed. 48. Thereafter, during the term of this Consent Decree, the Developer Defendant shall, on the anniversary of the entry of this Consent Decree, submit to the United States any additional signed statements required by paragraphs 39 or 41 of this Consent Decree, and a report, as applicable, indicating that notices pursuant to paragraph 8 of this Consent Decree were distributed to new residents. 49. For the duration of this Consent Decree, the Developer Defendant shall advise the United States in writing within 15 days of receipt of any written administrative or legal fair housing complaint regarding any Covered Multifamily Dwelling owned, managed, and/or designed or constructed by it, or against any employees or agents of the Developer Defendant working at or for any such property, alleging discrimination on the basis of disability in housing under federal law. Upon reasonable notice, the Developer Defendant shall also provide the United States all information it may request concerning any such complaint. The Developer Defendant shall also advise counsel for the United States, in writing, within 15 days of the resolution of any complaint. 50. For the term of this Consent Decree, the Developer Defendant is required to preserve all records related to this Consent Decree for The Melar and for any other Covered
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 25 of 29
Multifamily Dwellings designed, constructed, owned, operated, or acquired by it during the duration of this Consent Decree. Upon reasonable notice to the Developer Defendant, representatives of the United States shall be permitted to inspect and copy any records of the Developer Defendant or inspeet any developments or residential units under the Developer Defendant's control bearing on compliance with this Consent Decree at any and all reasonable times, provided, however, that the United States shall endeavor to minimize any inconvenience to the Developer Defendant from such inspections.
XIII. RENT STABILIZATION 51. In the event a resident of The Melar files a complaint with the New York State Division of Housing and Community Renewal under Section 26-5141 of the Rent Stabilization Law or Section 2523.4 of the Rem Stabilization Code alleging that the performance of a retrofit as required by this Consent Decree constitutes a diminution of services, the Developer Defendant will inform the United States that such a claim has been filed and the Developer Defendant will defend against the claim in good faith with all best efforts. If the New York State Division of Housing and Community Renewal rules against the Developer Defendant, the Developer Defendant will promptly enter into negotiations with the United States to reach agreement on an appropriate substitute for the particular retrofit at issue. If the United States is not satisfied with the substitute(s) proposed by the Developer Defendant, the United States may apply to the Coun (i.e., the United States District Court for the Southern District of New York), in which case this Court shall select a substitute for the particular retrofit at issue.
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Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 26 of 29
XIV. LOW-INCOME HOUSL~G TAX CREDIT PROGRAM COMPLIANCE
52. With respect to low-income housing tax credits, the Developer Defendant understands that, in the event that the Developer Defendant fails to comply with any of the terms of this Consent Decree and the United States, on notice to the Developer Defendant, obtains an order establishing such noncompliance, the United States may take action, including but not limited to notifYing the appropriate state housing finance agency of the violation. See 26 U .S.C. § 42(m)(l )(B)(iii).
XV. DURATION OF CONSENT DECREE AND TERMINATION OF LEGAL ACTION
53. This Consent Decree shall remain in effect for three years following entry of this Consent Decree by the Court. By consenting to entry of this Consent Decree, the parties agree that in the event that the Developer Defendant engages in any future conduct occurring after entry of this Consent Decree that leads to any judicial or administrative determination ofa violation of the Fair Housing Act, any civil penalty relating to such future conduct shall be calculated as if the
,..., .,.,., ,..,Nh conduct were a "'subsequent violation" pursuant to 42 U.S.C. § 3614(d)(l)(C)(ii). 54. The Court~,(etain jurisdiction for the duration of this Consent Decree to enforce the terms of the Consent Decree. The United States may move the Court to extend the duration of the Consent Decree in the interests ofjustice, and the Developer Defendant may oppose such a motion.
55. The United States and the Developer Defendant shall endeavor, in good faith, to resolve informally any differences regarding interpretation of and compliance with this Consent Decree prior to bringing such matters to the Court for resolution. However, in the event of a
Page 26 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 27 of 29
f~ by the Developer Defendant to perform, in a timely manner, any act required by this Consent Decree or otherwise for its failure to act in conformance with any provision thereof, the United States may move this Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and reasonable attorney's fees which may have been occasioned by the violation or failure to perform. The Developer Defendant may oppose such a motion.
56. Upon the termination of this Consent Decree, the Court shall dismiss this Action with prejudice. Such dismissal shall only release the Developer Defendant from claims by the United States regarding alleged failures to design and construct The Melar pursuant to the FHA as of the date of suit in this Action. Such a dismissal shall not release the Developer Defendant from any other claims by the United States, including but not limited to any claims regarding other designed and constructed Covered Multifamily Dwellings, and any claims regarding FHA violations at The Melar other than failures to design and construct The Melar as required by the FHA.
XVI. TIME FOR PERFORMANCE 57. Any time limits for performance imposed by this Consent Decree may be extended by the mutual written agreement of the United States and the Developer Defendant without Court approval.
XVII. COSTS OF LITIGATION 58. Each party to this litigation will bear its own costs and attorney's fees associated with this litigation.
Page 27 of 29

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 28 of 29

•

.The~ apply fur and consent to the entry of this Consent Decree:
For the United States:
THOMAS E. PEREZ
Assistant Attorney General Civil Rights Division
PREET BHARARA
U~tA Attorney
~MAN By: BRIAN M. UYU CARINA H. SCHOENBERGER Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007 TeL Nos. (212) 637-2777 Fax Nos. (212) 637-2717 Brian.Feldman@usdoj.gov U.Yu@usdoj.gov Carina.Schoenberger@usdoj .gov
By:

733 Third Avenue- 12th Floor New York, New York 10017 Tel.: (212) 551-1217 Fax: (212) 551-8484 nunderberg@rosenbergestis.com jbadloek@rosenbergestis.com
Page28of 29
. -··-

Case 1:10-cv-07495-RMB -MHD Document 58 Filed 07/22/11 Page 29 of 29

aJ ~J~;I~lr-~~···~-' ~ SO ORDERED this

day of_..

201 L

HON. RICHARD M. BERMA1' UNITED STATES DISTRICT COURT JUDGE

Page 29 of 29

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 1 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213
Date:
InRe:
-v-

Case#:

(

)

Dear Litigant,
Enclosed is a copy of the judgment entered in your case.
Your attention is directed to Rule 4(a)(l) of the Federal Rules of Appellate Procedure, which requires that if you wish to appeal the judgment in your case, you must file a notice ofappeal within 30 days of the date of entry of the judgment (60 days if the United States or an officer or agency of the United States is a party).
If you wish to appeal the judgment but for any reason you are unable to file your notice of appeal within the required time, you may make a motion for an extension of time in accordance with the provision of Fed. R. App. P. 4(a)(5). That rule requires you to show "excusable neglect" or "good cause" for your failure to file your notice of appeal within the time allowed. Any such motion must first be served upon the other parties and then filed with the Pro Se Office no later than 60 days from the date of entry of the judgment (90 days if the United States or an officer or agency of the United States is a party).
The enclosed Forms 1, 2 and 3 cover some common situations, and you may choose to use one of them if appropriate to your circumstances.
The Filing fee for a notice of appeal is $5.00 and the appellate docketing fee is $450.00 payable to the "Clerk of the Court, USDC, SDNY" by certified check, money order or cash. No personal checks are accepted.
Ruby J. Krajick, Clerk of Court
by: ________________________________
, Deputy Clerk

APPEAL FORMS
U.S.D.C. S.D.N.Y. CM/ECF Support Unit

Revised: May 4, 2010

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 2 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

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

I

I

I

-V-

I

I

I

I

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

NOTICE OF APPEAL

CIV.

( )

Notice is hereby given that - - - - - - - - - - - : - - - : - - - - - - - - - - - - -
(party)
hereby appeals to the United States Court ofAppeals for the Second Circuit from the Judgment [describe it]

entered in this action on the _ _ _ _ _ day of - - - - - , - - - - -

(day)

(month)

(year)

Date:-------

(Signature)
(Address)
(City, State and Zip Code)
( ) ____
(Telephone Number)

Note: You may use this form to take an appeal provided that it is received by the office of the Clerk of the District Court within 30 days of the date on which the judgment was entered (60 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S. D.C. S.D.N.Y. CM/ECF Support Unit

2

Revised: May4, 2010

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 3 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

------------------------------------------------------------)(
I

I

I

-V-

I

I

I I

------------------------------------------------------------)(

MOTION FOR E)(TENSION OF TIME TO FILE A NOTICE OF APPEAL

ClV.

( )

Pursuant to Fed. R. App. P. 4(a)(5), - - - - - - - - - - - - - - - - respectfully
(party)

requests leave to file the within notice of appeal out of time.

(party)

desires to appeal the judgment in this action entered on - - - - - - - - - - but failed to file a
(day)

notice of appeal within the required number of days because:

[Explain here the "excusable neglect" or "good cause" which led to your failure to file a notice of appeal within the required number of days.)

(Signature)

(Address)

Date:---------

_ _ _ _ _ _ _ __ (City, State and Zip Code)

(

)

(Telephone Number)

Note: You may use this form, together with a copy of Form I, if you are seeking to appeal a judgment and did not file a copy of Form I within the required time. If you follow this procedure, these forms must be received in the office of the Clerk of the District Court no later than 60 days of the date which the judgment was entered (90 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S. D.C. S.D.N.Y. CM/ECF Support Unit

3

Revised: May 4, 20 I0

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 4 of 5

United States District Court Southern District of New York
Office of the Clerk
U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

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

I

I

I

-\T-

I

I

I

I

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

NOTICE OF APPEAL AND
MOTION FOR EXTENSION OF TIME

civ.

( )

1.

Notice is hereby given that - - - - - - - - - - , - - - - - - - - - hereby appeals to

(party)

the United States Court of Appeals for the Second Circuit from the judgment entered on - - - - - [Give a description of the judgment]

2.

In the event that this form was not received in the Clerk's office within the required time

- - - - - - , . . . - - - , - - - - - - - - - respectfully requests the court to grant an extension of time in
(party)
accordance with Fed. R. App. P. 4(a)(5).

a.

In support of this request, - - - - - - - - , . . . - - - , - - - - - - - - - states that

(party)

this Court's judgment was received on ---....,.,....,.,----- and that this form was mailed to the

(date)

court on - - - - - - - - -
(date)

(Signature)

(Address)

(City, State and Zip Code)

Date:--------

( )
(Telephone Number)

Note: You may use this form if you are mailing your notice of appeal and are not sure the Clerk of the District Court will receive it within the 30 days of the date on which the judgment was entered (60 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S. D.C. S.D.N.Y. CM/ECF Support Unit

4

Revised: May4, 2010

Case 1:10-cv-07495-RMB -MHD Document 58-1 Filed 07/22/11 Page 5 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

------------------------------------------------------------)(
I

I

I

-V-

I

I I
I

------------------------------------------------------------)(

AFFIRMATION OF SERVICE

ClV.

( )

I, - - - - - - - - - - - - - - - - - - • declare under penalty of perjury that I have

served a copy of the attached

upon

whoseaddressis: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Date:---------
New York, New York
APPEAL FORMS U.S.D.C. S.D.N.Y. CM/ECF Support Unit

(Signature) (Address) (City, State and Zip Code)

5

Revised: May 4, 20 I0

United States Of America v. L&M 93rd Street LLC et al, Docket No. 1:10-cv-07495 (S.D.N.Y. Sept 30, 2010), Court Docket
General Information

Case Name Docket Number Court
Nature of Suit

United States Of America v. L&M 93rd Street LLC et al
1:10-cv-07495
United States District Court for the Southern District of New York
Civil Rights: Housing/Accommodations

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LEG811O2?documentName=65.xml

 
 Case 1:10-cv-07495-RMB -MHD Document 61 Filed 02/09/12 Page 1 of 4

UNITED STATES DISTRlCT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA,
Plaintiff,
- against-
L&M 93RD STREET LLC and COSTAS KONDYLIS & PARTNERS, LLP,

USDC SONY DOCUMENT

ELECTRONICALf Y FILED

DOC#: ------+-~-
DATE FILED: "21':~ II L

E C F C A S E - ~~

IfRSI8.XIPlJLATIO" AND
ORDER EXTENDING CER' AIN

"R "'U

DEADLINES IN AND THE HURATION

OF CONSENT DECREE

10 Civ. 7495 (RMB)

Defendants.

WHEREAS, on July 22, 20] 1, this Cowi entered a Consent Decree bet>vf en plaintiff the United States and defendant L&M 93rd Street LLC (the "Developer Defendant") esolving the United States' claims against the Developer Defendant under the Fair Housing A t ("FHA"). codified at 42 U.S.C. §§ 3601-3619, concerning the Melar Apartments ("The Mellar"), a residential apartment building in New York~ New York;
WHEREAS, pursuant to paragraphs 7, 8, and 12 of the Consent Decree, tle Developer Defendant was required to provide certain notices to current residents and, under paragraph 8, prospective residents concerning retrofits to the public areas and to individual ap~rtments at The Melar (collectively. the "Retrofit Notices"), within 10 days of entry of the Conse t Decree;
WHEREAS, pursuant to paragraphs 26, 27, and 28 of the Consent Deere!, the Developer Defendant was required to (i) commence publishing in certain newspapers a noti e to Persons Who May Have Suffered Housing Discrimination in the form set forth at Appenc ix E of the Consent Decree (the "Aggrieved Persons Notice"), (ii) place an electronic version ofthe
Aggrieved Persons Notice as a link on the website of The Melar, and (iii) send tt e Aggrieved
Persons Notice to the Fair Housing Justice Center and the United Sp,nal Associa .10n, within 1S days of the entry of the Consent Decree;

Case 1:10-cv-07495-RMB -MHD Document 61 Filed 02/09/12 Page 2 of 4
WHEREAS, pursuant to paragraph 29 of the Consent Decree, the Develope Defendant
was required to send a copy of the Aggrieved Persons Notice to all current and fo er residents
ofTbe Melar, within 30 days of the entry of the Consent Decree; WHEREAS, pursuant to paragraphs 38 and 4() of the Consent Decree, the
Defendant was required to (i) provide a copy of the Consent Decree to all agents d employees involved in the design or construction of The Melar (meaning a representative of Associates, Inc,) or involved in the rental of units at the Melar and/or the supervisi n of services at The Melar, and (ii) obtain signed statements from these individuals that they re ived and read the Consent Decree, and had any question about the Consent Decree answered, wi the entry of the Consent Decree;
WHEREAS, pursuant to paragraph 46 of the Consent Decree, and for the d Consent Decree, the Developer Defendant was required to place, in a conspicuous ocation in all advertisements and promotional materials regarding The Melar, a statement that th apartments include features for persons with disabilities as required by the Fair Housing Act~
WHEREAS, the Developer Defendant asserts that, due to certain delays il\ fonn of notice to be sent to each existing or prospective tenant regarding the requi or optional retrofits to the various apartments, and arranging for the publication or other form f distribution of notices as provided in the Consent Decree, it did not commence sending out or electronically the notices required under the Consent Decree until October 20 II , 
 d not complete the required distribution or electronic posting of such notices until December 2011, and did not 
 complete the publication of the Aggrieved Persons Notice in newspapers until Jan ary 20 12; 

WHEREAS, the Developer Defendant and the United States agree that, as esult of the Developer Defendantls delays in meeting the deadlines set forth in the Consent D cree, as
2

Case 1:10-cv-07495-RMB -MHD Document 61 Filed 02/09/12 Page 3 of 4
described above, implementation of the Consent Decree has been delayed;
WHEREAS, the Developer Defendant and the United States agree that it is ill the interest
of justice to extend the term of Consent Decree to ensure timely and full complian e with the terms of the Consent Decree;
IT IS HEREBY STIPULATED, AGREED AND ORDERED, that: 1. The following deadlines for performance by the Developer Defendants Consent Decree are hereby extended, nunc pro tunc, by 150 days: (A) The date by which the Developer Defendant must distribute the Re ofit Notices, as set forth in paragraphs 7, 8, and 12 of the Consent Decree;
(B) The date by which the Developer Defendant must publish the Aggri ved Persons
Notice, place an electronic version of the Aggrieved Persons Notice on The Melar' website, and send a copy of the Aggrieved Persons Notice to the Fair Housing Justice Center, th United Spinal Association, and current and past residenrs of The Melar, in accordance wit paragraph 26, 27, 28, and 29 of the Consent Decree;
(C) The date by which the Developer Defendant must comply with the equirements of the Educational Program, in accordance with· paragraphs 38 and 40 of the Cons t Decree;
(D) The date by which the Developer Defendant shall comply with the equirements of the Non-Discrimination Policy provisions of the Consent Decree, as set forth in aragraph 46 of the Consent Decree;
2. The following deadlines for actions to be taken by the United State under the Consent Decree are hereby extended by [50 days:
(A) The date by which the United States shall inform the Developer De endant of all of
3 


Case 1:10-cv-07495-RMB -MHD Document 61 Filed 02/09/12 Page 4 of 4

its initial determinations regarding the claims of allegedly aggrieved persons, in ac ordance witb paragraph 32 of the Consent Decree; and
(B) Tbe date by which the United States shall inform the Developer De ndant of all of its remaining determinations regarding the claims of allegedly aggrieved persons, i accordance with paragraph 32 of the Consent Decree.
3. All other deadlines andlor time limits for the Developer Defendant t comply with requirements of the Consent Decree not explicitly set forth in paragraphs I and 2 0 this Stipulation and Order remain as set forth in the Consent Decree.
4. The duration of the Consent Decree shall be extended by an additio 1150 days.

For the United States:

For L&M 93rd Street LLC:

PREET BHARARA 


United States Attorney 

By: ~{1v­
LIYU (J

CARINA H. SCHOENBERGER EMILY E. DAUGHTRY Assistant United States Attorneys 86 Chambers Street, 3rd Floor New York, New York 10007
Tel. Nos. (212) 637·2734/2822/2777 Fax No. (212) 637·2686

733 Third Avenue, 12th Flo r New York, New York 1001 Tel. Nos. (212) 551-1217 Fax No. (2J2) 551·8484

02so 11 ili~fI:}----::.F_?=---=-~_r_._~--#-_., 2012.

HON.RIC

M.B 


UNITED STATES DlSTRlCT COURT JUDGE 


4 


 
 United States Of America v. L&M 93rd Street LLC et al, Docket No. 1:10-cv-07495 (S.D.N.Y. Sept 30, 2010), Court Docket
Printed By: Joseph Chatham on Saturday, October 27, 2012 - 11:09 AM

Part Description 1 12 pages 2 Notice of Right to Appeal

Multiple Documents

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LEG811O2?documentName=66.xml

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 1 of 12

fB) l§ ©l§ wn l§ rrJl

L'NITED STATES DISTRICT COURT

U\\ WJ JUL 222011

SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA,

ECFCASE

CHAMBERS OF RICHARD M. BERMAN
U.S.O.J.

against-

Plaintiff,

CONSENT DECREE BETWEEN THE UNITED STATES OF AMERICA AND DEFENDANT COSTAS KONDYLIS & PARTNERS, LLP

L&M 93RD STREET LLC and COSTAS KONDYLIS & PARTNERS, LLP,
Defendants.

10 Civ. 7495 (RM.'fi'::=:.:=:::··~=:=:;=;====:=
USDC SONY

DOCUMENT

ELECTRONICALLY FILED

A. Background

INTRODUCTION

.- . DOC#:__
DATE FI~~~~Jfi#

This Consent Decree is entered into between the United States of America (the "United

States") and Costas Kondylis & Partners, LLP (the "Architect Defendant"), a New York limited

liability partnership that drew the architectural plans for The Melar Apartments ("The Melar"), a

residential apartment building in New York, New York, and, in that capacity, designed and/or

constructed The Melar;

WHEREAS, the United States brought this action (the "Action") to enforce provisions of

the Fair Housing Act ("FHA"), codified at 42 U.S. C. §§ 3601-3619. Specifically, the United

States' complaint in this Action alleges that defendants have engaged in a pattern or practice of

discrimination, and have denied rights to a group of persons in a manner raising an issue of

general public importance, including by tailing to design and/or construct the Melar in

accordance with the requirements of the FHA, 42 U.S.C. § 3604(t)(3)(C);

WHEREAS, The Melar is subject to the accessible design and construction requirements

of the FHA, 42 U.S.C. § 3604(t){3)(C);

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 2 of 12
WHEREAS, the Architect Defendant denies the allegations of the complaint and enters into this Consent Decree for settlement purposes only, prior to motion practice or trial, without admitting any issue of fact or law; B. Relevant Requirements of the Fair Housing Act
WHEREAS, the FHA provides that residential buildings with four or more dwelling units, and one or more elevators, designed and constructed for first occupancy after March 13, 1991, are "covered multifamily dwellings" ("Covered Multifamily Dwellings") and must include certain basic features of accessible and adaptive design to make such units accessible to or adaptable for use by persons with disabilities, 42 U.S. C. §§ 3604(f)(3)(C) and (f)(7)(A);
WHEREAS, the accessible and adaptive design provisions of the FHA require that for Covered Multifamily Dwellings: (i) the public use and common use portions of such dwellings are readily accessible to and usable by persons with a disability; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by persons with a disability using wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about the space. 42 U.S.C. § 3604(f)(3)(C) (these provisions and features are referred to herein as the "Accessible Design Requirements");
Page 2 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 3 of 12

C. Violations at The Melar

WHEREAS, The Melar is a residential rental apartment building located at 250 West

93rd Street in New York, New York. The building consists of a tower with elevator access, with

143 rental apartment units, as well as public and common use areas. The building features a

landscaped sun terrace, a fitness center, and a residents' lounge;

WHEREAS, the United States alleges in its complaint that it has inspected The Melar

and specifically identified, inter alia, the following failures to meet the Accessible Design

Requirements at The Melar:

•

Excessively high thresholds, interfering with accessible routes tor persons in

whee !chairs;

•

Terraces inaccessible to persons in wheelchairs;

•

Insufficient clear floor space within bathrooms for maneuvering by persons in

wheelchairs;

•

Bathroom fixtures precluding installation of bathroom grab bars;

•

Kitchen entries too narrow to accommodate persons in wheelchairs;

•

Kitchen ranges not usable by persons in wheelchairs;

Kitchen electrical outlets inaccessible to persons in wheelchairs;

•

Walk-in closets inaccessible to persons in wheelchairs;

•

Common area doors requiring excessive force for persons with certain

disabilities;

•

Common area doors closing too quickly for disabled persons to pass through;

Common area bathrooms not usable by persons in wheelchairs;

•

Mailboxes inaccessible to persons in wheelchairs;

Page 3 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 4 of 12

Protruding objects in common areas, not detectable by canes of visually impaired

persons;

Features within the fitness room inaccessible to persons in wheelchairs;

•

Features within the laundry room inaccessible to persons in wheelchairs; and

•

Insufficient clear floor space \'lithin basement storage room for maneuvering by

persons in wheelchairs.

D. Consent of the Parties to Entry of this Order

WHEREAS, the United States and the Architect Defendant (collectively, the "parties")

agree that this Court has jurisdiction over the subject matter of this Action pursuant to 28 U.S.C.

§§ 1331 and 1345, and 42 U.S.C. § 3614(a). The parties further agree that this Action should be

resolved without further proceedings and without an evidentiary hearing or a trial; and

WHEREAS, the parties agree to the entry of this Consent Decree.

It is hereby ORDERED, ADJUDGED, and DECREED:

I. GENERAL INJUNCTION

1. The Architect Defendant and each of its officers, employees, agents, successors,

and assigns, and all other persons in active concert or participation with them, are enjoined from

discriminating on the basis of disability as prohibited by the Fair Housing Act, 42 U.S.C. § 3604.

II. NON-DISCRIMINATION IN OTHER DESIGN AND CONSTRUCTION 2. The Architect Defendant shall maintain, and provide to the United States upon request, the following information and statements regarding any Covered Multifamily Dwelling

intended to be designed, in whole or in part, by the Architect Defendant:

•

the name and address of the project;

•

a description of the project and the individual units;

Page 4 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 5 of 12

•

the name, address, and telephone number of the civil engineer(s) involved with

the project;

•

the name, address and telephone number of the architect(s) who are employed or

retained by the Architect Defendant and are involved with the project;

•

a statement from all architect(s) who are employed or retained by the Architect

Defendant and are involved with the project, acknowledging and describing

his/her knowledge of and training in the requirements of the Fair Housing Act and

tbe Guidelines, and in the field of accessible site design, certifying that he/she has

reviewed the architectural plans for the project and that the design specifications

therein fully comply with the requirements of the FHA, and stating that the design

specifications comply with the Guidelines, another H"lJD-recognized safe harbor,

or the accessibility specifications of an applicable State or municipal building

code (to the extent that design or construction in compliance with such building

code(s) does not violate the FHA).

3. If the architectural plans referred to in paragraph 2 are revised, and the revisions

would have any impact on whether the dwellings or complex complies with the Fair Housing Act

and/or the Guidelines, another safe harbor recognized by the United States Department of

Housing and Urban Development ("HUD"), or the accessibility specifications of an applicable

State or municipal building code (to the extent that design or construction in compliance with

such building code(s) does not violate the FHA), the Architect Defendant shall obtain, maintain,

and provide to the United States upon request, a statement from the architect(s) who are

employed or retained by the Architect Defendant and are involved with the project, as

applicable, that all specifications in the revised engineering documents or architectural plans, as

Page 5 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 6 of 12
pertinent, comply with the requirements of the Fair Housing Act, as well as the Guidelines, another BUD-recognized safe harbor, or the accessibility specifications of an applicable State or municipal building code (to the extent that design or construction in compliance with such building code(s) does not violate the FHA).
4. For the term of this Consent Decree, if the Architect Defendant prepares any architectural or site plans, drawing, or blueprints for covered multi-family housing, as defined in the Fair Housing Act, it shall include on such plans, drawing, or blueprints a statement attesting to compliance with the Fair Housing Act, and the Architect Defendant shall maintain and provide such plans, drawing, or blueprints to the United States upon request.
5. The Architect Defendant will make its designs for all new construction of Covered Multifamily Dwellings fully compliant with the Accessible Design Requirements, the Americans with Disabilities Act, and the Americans with Disabilities Act Accessibility Standards to the extent applicable to Covered Multifamily Dwellings. Moreover, with respect to all new construction of Covered Multifamily Dwellings outside of New York City, the Architect Defendant shall make its design(s) for all such construction fully compliant with the Guidelines or any other safe harbor recognized by HUD. In addition, with respect to all new construction of Covered Multifamily Dwellings within New York City, the Architect Defendant shall make its designs for all such construction fully compliant with either: (a) the Guidelines or any other safe harbor recognized by HUD; or (b) the accessibility specifications of any applicable State or municipal building code (to the extent that design or construction in compliance with such building code(s) does not violate the FHA).
III. PAYMENT TO THE UNITED STATES
Page 6 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 7 of 12
6. Within 30 days of the date of the entry of this Consent Decree, the Architect Defendant shall pay the United States FORTY THOUSAND DOLLARS ($40,000) pursuant to 42 U.S.C. § 3614(d)(l)(C) to vindicate the public interest Said sum shall be paid by submitting a check made payable to the "United States of America" to the United States.
IV. EDUCATIONAL PROGRAM 7. Within 30 days of the entry of this Consent Decree, the Architect Defendant shall provide a copy of this Consent Decree to all its agents and employees involved in the design or construction of The Mclar, and shall secure a signed statement from each such agent or employee acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix A. 8. During the term of this Consent Decree, any new employee or agent of the Architect Defendant who will be involved in the design or construction of any Covered Multifamily Dwelling shall, within 30 days after the date on which he or she commences an employment or agency relationship with the Architect Defendant, be given a copy of this Consent Decree by the Architect Defendant, and the Architect Defendant shall require each such new employee or agent to sign a statement, acknowledging that he or she has received and read the Consent Decree, and has had an opportunity to have questions about the Consent Decree answered. This statement shall be substantially similar to the form of Appendix A. 9. The Architect Defendant shall also ensure that it and its employees, as well as any entities (e.g., firms) acting as its agent, who are involved in the design or construction of any Covered Multifamily Dwelling have a copy of, are familiar with, and personally have reviewed, the Fair Housing Accessibility Guidelines, 56 Fed. Reg. 9472 (1991), and the United States
Page 7 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 8 of 12
Department of Housing and Urban Development, Fair Housing Act Design Manual, A Manual to Assist Builders in Meeting the Accessibility Requirements of the Fair Housing Act (August 1996, Rev. April 1998).
10. Within 90 days of the date of entry of this Consent Decree, the Architect Defendant and all its employees and agents whose duties, in whole or in part, involve or will involve supervision over the development, design and/or construction of Covered Multifamily Dwellings shall undergo training on the design and construction requirements of the Fair Housing Act.' The training shall be conducted by a qualified third-party individual, not associated with the Architect Defendant or its counsel, and approved in advance by the Department of Justice; and any expenses associated with this training shall be borne by the Architect Defendant. The Architect Defendant shall provide to the United States, 30 days before the training, the name(s), address(es) and telephone number(s) of the trainer(s); and copies of the training outlines and any materials to be distributed by the trainers. The Architect Defendant shall provide to the United States certifications executed by all its covered employees and agents confirming their attendance, in a form substantially equivalent to Appendix B.
V. NOTIFICATION AND DOCUMENT RETENTION REQUIREMENTS II. No later than 180 days after the date of entry of this Consent Decree, the Architect Defendant shall submit to the United States the executed certifications and statements required by paragraphs 7, 8, and I0 of this Consent Decree.
1 The educational program provided to employees not engaged in design, construction, or maintenance, such as sales and rental employees, may focus on the portions of the law that relate generally to accessibility requirements as opposed to technical design and construction requirements.
Page 8 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 9 of 12
12. Thereafter, during the term of this Consent Decree, the Architect Defendant shall, on the anniversary of the entry of this Consent Decree, submit to the United States any additional signed statements required by paragraph 8 of this Consent Decree.
13. For the duration of this Consent Decree, the Architect Defendant shall advise the United Stales in writing within 15 days of receipt of any written administrative or legal fair housing complaint regarding any Covered Multifamily Dwelling designed or constructed by the Architect Defendant, or against any of its employees or agents of working at or for any such property, alleging discrimination on the basis of disability in housing under federal law. Upon reasonable notice, the Architect Defendant shall also provide the United States all information it may request concerning any such complaint. The Architect Defendant shall also advise counsel for the United States, in writing, within 15 days of the resolution of any complaint.
14. For the term of this Consent Decree, the Architect Defendant is required to preserve all records related to this Consent Decree for The Melar and for any other Covered Multifamily Dwelling designed or constructed, in whole or in part, by the Architect Defendant during the duration of this Consent Decree. Upon reasonable notice to the Architect Defendant, representatives of the United States shall be permitted to inspect and copy any records of the Architect Defendant bearing on compliance with this Consent Decree at any and all reasonable times, provided, however, that the United States shall endeavor to minimize any inconvenience to the Architect Defendant from such inspections.
VI. DURATION OF CONSENT DECREE AND TERML,.,ATION OF LEGAL ACTION
1S. This Consent Decree shall remain in effect for three years following entry of this Consent Decree by the Court. By consenting to entry of this Consent Decree, the parties agree
Page9of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 10 of 12

that in the event that the Architect Defendant engages in any futnre conduct occurring after entry

of this Consent Decree that leads to any judicial or administrative determination of a violation of

the Fair Housing Act, any civil penalty relating to such futnre conduct shall be calculated as if

the conduct were a "subsequent violation" purslllnt to 42 U.S.C. § 3614(d)(l)(C)(ii).
lfll'( AftII ,.fUIT

Kf-16

16. The Court,_.,. retain jurisdiction for the duration of this C~nsent Decree to

enforce the terms of the Consent Decree. The United States may move the Court to extend the

duration of the Consent Decree in the interests ofjustice, and the Architect Defendant may

oppose such a motion.

17. The United States and the Architect Defendant shall endeavor, in good faith, to

resolve informally any differences regarding interpretation of and compliance with this Consent

Decree prior to bringing such matters to the Court for resolution. However, in the event of a

failure by the Architect Defendant to perform, in a timely manner, any act required by this

Consent Decree or otherwise for their failure to act in conformance with any provision thereof,

the United States may move this Court to impose any remedy authorized by law or equity,

including, but not limited to, an order requiring performance of such act or deeming such act to

have been performed, and an award of any damages, costs, and reasonable attorney's fees which

may have been occasioned by the violation or failure to perform. The Architect Defendant may

oppose such a motion.

18. Upon the termination of this Consent Decree, the Court shall dismiss this Action

with prejudice. Such dismissal shall only release the Architect Defendant from claims by the

United States regarding alleged failures to design and construct The Melar pursuant to the FHA

as of the date of suit in this Action. Such a dismissal shall not release the Architect Defendant

from any other claims by the United States, including but not limited to any claims regarding

Page 10 of 12

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 11 of 12
other Covered Multifamily Dwellings designed and constructed by the Architect Defendant, and any claims regarding FHA violations at The Melar other than failures to design and construct The Melar as required by the FHA.
Til. TIMEFORPERFORMANCE 19. Any time limits for performance imposed by this Consent Decree may be extended by the mutual written agreement of the United States and the Architect Defendant without Court approval.
Till. COSTS OF LITIGATION 20. Each party to this litigation will bear its own costs and attorney's fees associated with this litigation. The undersigned apply for and consent to the entry of this Consent Decree:
For the United States:
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
By:
Pagellofl2

Case 1:10-cv-07495-RMB -MHD Document 59 Filed 07/25/11 Page 12 of 12
••
For Costas Kondylis & Partners,l.LP:
By: ~~!Ml'f!ALf~~ MILBERMAKRlS PLOUSADIS & SElDEN, LLP 3 Barker Avenue, Sixth Floor White Plains, New York 10601 Telephone No. (914) 681-8700 Facsimile No. (914) 681-8709 CAlbanese@milbennarkis.com
SO ~~ ORDERED this 12/.. day of_fl"""'-"'~"-'q----'' 20if.
HON. UNITED STATES DISTRICT COURT JUDGE
Page 12 of 12

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 1 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse 500 Pearl Street, New York, N.Y. 10007-1213
Date:
InRe:
-v-

Case#:

(

)

Dear Litigant,
Enclosed is a copy of the judgment entered in your case.
Your attention is directed to Rule 4(a)(l) of the Federal Rules of Appellate Procedure, which requires that if you wish to appeal the judgment in your case, you must file a notice ofappeal within 30 days of the date of entry of the judgment (60 days if the United States or an officer or agency of the United States is a party).
If you wish to appeal the judgment but for any reason you are unable to file your notice of appeal within the required time, you may make a motion for an extension of time in accordance with the provision of Fed. R. App. P. 4(a)(5). That rule requires you to show "excusable neglect" or "good cause" for your failure to file your notice of appeal within the time allowed. Any such motion must first be served upon the other parties and then filed with the Pro Se Office no later than 60 days from the date of entry of the judgment (90 days if the United States or an officer or agency of the United States is a party).
The enclosed Forms 1, 2 and 3 cover some common situations, and you may choose to use one of them if appropriate to your circumstances.
The Filing fee for a notice of appeal is $5.00 and the appellate docketing fee is $450.00 payable to the "Clerk of the Court, USDC, SDNY" by certified check, money order or cash. No personal checks are accepted.
Ruby J. Krajick, Clerk of Court
by: ________________________________
, Deputy Clerk

APPEAL FORMS
U.S.D.C. S.D.N.Y. CM/ECF Support Unit

Revised: May 4, 2010

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 2 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

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I

I

I

-V-

I

I

I

I

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NOTICE OF APPEAL

CIV.

( )

Notice is hereby given that - - - - - - - - - - - : - - - : - - - - - - - - - - - - -
(party)
hereby appeals to the United States Court ofAppeals for the Second Circuit from the Judgment [describe it]

entered in this action on the _ _ _ _ _ day of - - - - - , - - - - -

(day)

(month)

(year)

Date:-------

(Signature)
(Address)
(City, State and Zip Code)
( ) ____
(Telephone Number)

Note: You may use this form to take an appeal provided that it is received by the office of the Clerk of the District Court within 30 days of the date on which the judgment was entered (60 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S. D.C. S.D.N.Y. CM/ECF Support Unit

2

Revised: May4, 2010

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 3 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

------------------------------------------------------------)(
I

I

I

-V-

I

I

I I

------------------------------------------------------------)(

MOTION FOR E)(TENSION OF TIME TO FILE A NOTICE OF APPEAL

ClV.

( )

Pursuant to Fed. R. App. P. 4(a)(5), - - - - - - - - - - - - - - - - respectfully
(party)

requests leave to file the within notice of appeal out of time.

(party)

desires to appeal the judgment in this action entered on - - - - - - - - - - but failed to file a
(day)

notice of appeal within the required number of days because:

[Explain here the "excusable neglect" or "good cause" which led to your failure to file a notice of appeal within the required number of days.)

(Signature)

(Address)

Date:---------

_ _ _ _ _ _ _ __ (City, State and Zip Code)

(

)

(Telephone Number)

Note: You may use this form, together with a copy of Form I, if you are seeking to appeal a judgment and did not file a copy of Form I within the required time. If you follow this procedure, these forms must be received in the office of the Clerk of the District Court no later than 60 days of the date which the judgment was entered (90 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S. D.C. S.D.N.Y. CM/ECF Support Unit

3

Revised: May 4, 20 I0

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 4 of 5

United States District Court Southern District of New York
Office of the Clerk
U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

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

I

I

I

-\T-

I

I

I

I

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

NOTICE OF APPEAL AND
MOTION FOR EXTENSION OF TIME

civ.

( )

1.

Notice is hereby given that - - - - - - - - - - , - - - - - - - - - hereby appeals to

(party)

the United States Court of Appeals for the Second Circuit from the judgment entered on - - - - - [Give a description of the judgment]

2.

In the event that this form was not received in the Clerk's office within the required time

- - - - - - , . . . - - - , - - - - - - - - - respectfully requests the court to grant an extension of time in
(party)
accordance with Fed. R. App. P. 4(a)(5).

a.

In support of this request, - - - - - - - - , . . . - - - , - - - - - - - - - states that

(party)

this Court's judgment was received on ---....,.,....,.,----- and that this form was mailed to the

(date)

court on - - - - - - - - -
(date)

(Signature)

(Address)

(City, State and Zip Code)

Date:--------

( )
(Telephone Number)

Note: You may use this form if you are mailing your notice of appeal and are not sure the Clerk of the District Court will receive it within the 30 days of the date on which the judgment was entered (60 days if the United States or an officer or agency of the United States is a party).

APPEAL FORMS

U.S. D.C. S.D.N.Y. CM/ECF Support Unit

4

Revised: May4, 2010

Case 1:10-cv-07495-RMB -MHD Document 59-1 Filed 07/25/11 Page 5 of 5

United States District Court Southern District of New York
Office of the Clerk U.S. Courthouse
500 Pearl Street, New York, N.Y. 10007-1213

------------------------------------------------------------)(
I

I

I

-V-

I

I I
I

------------------------------------------------------------)(

AFFIRMATION OF SERVICE

ClV.

( )

I, - - - - - - - - - - - - - - - - - - • declare under penalty of perjury that I have

served a copy of the attached

upon

whoseaddressis: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Date:---------
New York, New York
APPEAL FORMS U.S.D.C. S.D.N.Y. CM/ECF Support Unit

(Signature) (Address) (City, State and Zip Code)

5

Revised: May 4, 20 I0

United States Of America v. L&M 93rd Street LLC et al, Docket No. 1:10-cv-07495 (S.D.N.Y. Sept 30, 2010), Court Docket
General Information

Case Name Docket Number Court
Nature of Suit

United States Of America v. L&M 93rd Street LLC et al
1:10-cv-07495
United States District Court for the Southern District of New York
Civil Rights: Housing/Accommodations

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LEG811O2?documentName=66.xml

 
 212 637 2717 P.02 JAN-25-2011 C1a9s:e331:10-cv-07U4S95A-TRTMORBNE-YMHD Document 27 Filed 01/26/11 Page 1 of 2

IEUVE

U.S. Department of Justi4:e

United States A(lorney

Southern District ofNew York

BY FACSIMILE

The Honorable Richard M. Berman

United States District Judge

Daniel Patrick Moynihan

United States Courthouse

SOO Pearl Street

ifi?vo;F,r~mrPEmc;ru

a

. 12) 805r67 I7

• ELECTRONICALLY FILED
!\.ooc#:
•\DATE FILED: --
'"Dear u ge Berman:

The Government' writes to provide the Court with II status update. I

the

. First, the Court grants

tphaertGieos ~haevne tre'acsheodutasntainmdpina.gssreeqinuessettttloemenetnetrnthegeoctoiantsioennst .deAcrceceosrdfionrgmlye,rluynless

signed by all the parties, Ito which the defendants now object, this litigation must proceed. While

the case is proceeding bCifore Your Honor, the Govemment would be emenable to simultaneously

engaging in settlement dlscussions with the assigned Magistrate Judge.

Second, we also write to inform the Court that the City of New York has commenced a
dialogue with the Uni::e.States Department of Housing and Urban Development ("HUO")
regarding the City's c nt accessibility code. In declining to enter the signed consent decrees, the Court expressed an i terest in seeing such a dialogue take place. On January 10, 2011, HUD officials conferred by tel~phone with several New York City officials regarding the City's current
building code requiremejlts for accessibility. On that call, HUD reiterated that, if the City adopts one of the model buildin~ codes that HUD has deemed a "safe harbor," without modifications or waivers that decrease ac'leSSibility, the City's code would be consistent with the Fair Housing Act. In addition, HUD officials offered to provide technical assistance to the City in response to specific questions about l1spects of the City's code. HUD anticipates further communications
with the City regarding its accessibility code.

.,' '

.,i ; .':., ~

<

., \.
"

JAN-2S-201C1 as1e91'3:130-cv-0749u5s-RAMTTBOR-NMEYHD Document 27 Filed 01/26/11 2P12ag6e372 2o7f127 P.103

,

\' 'f",
. , ,'I'
',~

Thank you for considering this status report.

Respectfully submitted,

PREET BHARARA

United States Attorney

By:( ~ 1f"Z!- 2/ ._ __

SARAH E. LIGHT

"",

BRIAN M. FELDMAN

trYU
CARLNASCHOENBERGER

Assistant United States Attorneys

Tel. Nos. (212) 637·2696/2777/2734

Fax Nos. (212) 637-2717

Sarah.Light@usdoj.IlOv

Brillll.F eJdmllll@usdoj.gov

Li. Yu@USdoj.gov

Clll'ina.Schoenberger@Usdoj.gov

cc: BY FACSIMILE Neil Underberg &. John Hadlock Facsimile No. (212) 294.4700
Christopher A. Albanese
Facsimile No. (914) 681-8709
, \
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TOTAL P.12l3

 
 Case 1:10-cv-07495-RMB -MHD Document 44 Filed 04/15/11 Page 1 of 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

________________________________________

|

UNITED STATES OF AMERICA,

|

|

Plaintiff,

| 10 Civ. 7495 (RMB)

|

v.

|

| NOTICE OF MOTION TO

L&M 93rd STREET LLC and COSTAS

| WITHDRAW FROM THE

KONDYLIS & PARTNERS, LLP,

| CONSENT DECREE

|

Defendants.

|

________________________________________ |

PLEASE TAKE NOTICE that, upon the accompanying Memorandum of Law in

Support of Defendant’s Motion to Withdraw from the Consent Decree, dated April 15, 2011, and

the Affirmation of John M. Hadlock, dated April 15, 2011, and all of the pleadings and prior

proceedings herein, the Defendant moves this Court, before the Honorable Richard M. Berman,

United States Courthouse, 500 Pearl Street, New York, New York 10007, Courtroom 21B, for

an Order granting Defendant’s Motion to Withdraw from the Consent Decree.

PLEASE TAKE FURTHER NOTICE that, pursuant to Local Rule 6.1(b) of the

United States District Courts for the Southern and Eastern Districts of New York, any opposing

affidavits and answering memoranda shall be served within fourteen days after service of the

moving papers.

Dated: New York, New York April 15, 2011

By:

s/John M. Hadlock

John M. Hadlock

WINSTON & STRAWN LLP

200 Park Avenue

New York, New York 10166-4193

(212) 294-2679

jhadlock@winston.com

Attorneys for L&M 93rd Street LLC

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 1 of 27

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

________________________________________

|

UNITED STATES OF AMERICA,

|

|

Plaintiff,

| 10 Civ. 7495 (RMB)

|

v.

|

|

L&M 93rd STREET LLC and COSTAS

|

KONDYLIS & PARTNERS, LLP,

|

|

Defendants.

|

________________________________________ |

MEMORANDUM IN SUPPORT OF MOTION TO WITHDRAW FROM THE CONSENT DECREE

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 2 of 27
TABLE OF CONTENTS
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................1
ARGUMENT ...................................................................................................................................5
L&M SHOULD BE PERMITTED TO WITHDRAW FROM THE CONSENT DECREE..........5
I. L&M May Withdraw From the Consent Decree Under the Particular Circumstances Presented Here.................................................................................6
II. In the Alternative, the Court Should Permit L&M to Withdraw From the Consent Decree Because Its Terms Undermine the Objectives of the Fair Housing Act, Are Neither Fair Nor Reasonable and Go Beyond the Case Made by the Pleadings, and Unreasonably Affect Third Parties ..............8
A. The Court Must Independently Scrutinize the Consent Decree To Ensure That It Satisfies the Requirements For Judicial Approval .........9
B. The Consent Decree Conflicts With the Fair Housing Act and Is Not Consistent With Its Objectives .................................................11
C. The Consent Decree Is Not Fair or Reasonable.........................................14
1. The Consent Decree Imposes After-the-Fact Penalties on L&M Years After the Building Received Its Certificate of Occupancy from New York City ...................................................14
2. The Aggrieved Persons Fund Is Unfair and Unreasonable Because It Lacks a Reversion and the Required Amount Is Arbitrary and Excessive .................................................................16
3. The Accessibility Fund Is Unfair and Unreasonable Because It Lacks a Reversion and the Required Amount Is Arbitrary and Excessive .............................................................18
4. The “Educational Program” and the “Non-Discrimination In Other Design and Construction” Provision Impose Unfair and Unreasonable Burdens On L&M and Go Beyond the Case Made By the Pleadings ......................................18
D. The Consent Decree Is Unreasonable As to Third Parties.........................20
CONCLUSION ..............................................................................................................................22
i

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 3 of 27
TABLE OF AUTHORITIES
Cases
City of Burbank v. Gen. Elec. Co., 329 F.2d 825 (9th Cir. 1964) .................................................................................................7, 8
Coca-Cola Bottling Co. of Elizabethtown, Inc. v. Coca-Cola Co., 654 F. Supp. 1419 (D. Del. 1987)..............................................................................................6
Comm’r of Dep’t of Planning and Natural Res. v. Century Alumina Co., Civ Nos. 2005/0062, 2007/114, 2008 WL 4693550 (D. V.I. Oct. 22, 2008) ..........................17
Curry v. Fidelity Consumer Disc. Co., 656 F. Supp. 1129 (E.D. Pa. 1987) ..........................................................................................14
Dydio v. Hesston Corp., 887 F. Supp. 1037 (N.D. Ill. 1995) ..........................................................................................14
E.E.O.C. v. Local 638, No. 71 Civ. 2877, 2003 WL 21804837 (S.D.N.Y. Aug. 6, 2003) ...........................9, 10, 16, 21
Friends of the Earth v. Archer Daniels Midland Co., 780 F. Supp. 95 (N.D.N.Y. 1992) ..................................................................................9, 10, 14
Georgevich v. Strauss, 772 F.2d 1078 (3d Cir. 1985).............................................................................................6, 7, 8
Ibarra v. Texas Employment Comm’n, 823 F.2d 873 (5th Cir. 1987) .....................................................................................................9
Interspace Inc. v. Morris, 650 F. Supp. 107 (S.D.N.Y. 1986)...........................................................................................10
Janus Films, Inc. v. Miller, 801 F.2d 578 (2d Cir. 1986).....................................................................................................10
Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501 (1986).................................................................................................9, 11, 13, 18
Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 616 F.2d 1006 (7th Cir. 1980) .................................................................................................10
Perez v. Danbury Hosp., 347 F.3d 419 (2d Cir. 2003).......................................................................................................9
ii

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 4 of 27
Sec. Exch. Comm’n v. Randolph, 736 F.2d 525 (9th Cir. 1984) .....................................................................................................9
United States v. $69,292.00 in U.S. Currency, 62 F.3d 1161 (9th Cir. 1995) ...................................................................................................14
United States v. Alliedsignal, Inc., 62 F. Supp. 2d 713 (N.D.N.Y. 1999) .......................................................................................17
United States v. Am. Cyanamid Co., 719 F.2d 558 (2d Cir. 1983).......................................................................................................6
United States v. Ashland, Inc., No. 04 Civ. 904S, 2008 WL 2074079 (W.D.N.Y. May 14, 2008) ............................................9
United States v. Atlas Minerals and Chems., Inc., 851 F. Supp. 639 (E.D. Pa. 1994) ......................................................................................11, 20
United States v. Brook Vill. Assocs., No. 05 Civ. 195, 2006 WL 3227769 (D.R.I. Nov. 6, 2006) ....................................................11
United States v. Cannons Eng’g Corp., 899 F.2d 79 (1st Cir. 1990) ......................................................................................................10
United States v. City of Miami, Fla., 664 F.2d 435 (5th Cir. 1981) (en banc) (Rubin, J., concurring) ........................................11, 20
United States v. City of San Diego, 18 F. Supp. 2d 1090 (S.D. Cal. 1998)........................................................................................8
United States v. County of Muskegon, 298 F.3d 569 (6th Cir. 2002) ...................................................................................................10
United States v. CVP I, et al., No. 08 Civ. 7194 (SHS) (S.D.N.Y.) ..................................................................................12, 17
United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989).................................................................................................................12
Vulcan, Inc. v. Fordees Corp., 658 F.2d 1106 (6th Cir. 1981) .................................................................................................10
Statutes & Regulations
42 U.S.C. § 3604(f)(5)(A)..............................................................................................................15
iii

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 5 of 27 42 U.S.C. § 3614(d)(1)(C)(i) .........................................................................................................12 Fair Housing Act, 42 U.S.C. §§ 3604, et seq. (the “FHA”).............................................................2 FHA........................................................................................................................................ passim Other Authorities 28 C.F.R. § 85.3(b)(3)....................................................................................................................12 Christopher C. Sabis, Executing the Laws or Executing an Agenda: Usurpation of
Statutory and Constitutional Rights by the Department of Justice, 37 U. Mich. J.L. Reform 257, 260 ......................................................................................................................10 Non-Discrimination In Other Design and Construction Provision. The “NonDiscrimination In Other Design and Construction”.................................................................19
iv

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 6 of 27
INTRODUCTION L&M 93rd Street LLC (“L&M”) respectfully moves to withdraw its consent to entry of the proposed consent decree between the United States and L&M in this action (the “Consent Decree”). Since the time L&M and the government initially submitted the Consent Decree to the Court for its approval, the Court has repeatedly raised concerns regarding the Consent Decree and has not approved it. Under these particular circumstances, where the Court has expressed reservations regarding entry of the decree, L&M should be permitted to withdraw from the decree of its own accord. In the alternative, the Court in its discretion should permit L&M to withdraw from the Consent Decree because the decree does not meet the requirements for judicial approval. Specifically, the terms of the Consent Decree conflict with the Fair Housing Act and undermine its objectives, are neither fair nor reasonable and go beyond the case made by the pleadings, and would have an unreasonably negative impact on third parties and the real estate industry. L&M’s withdrawal from the Consent Decree would permit the litigation to proceed, allowing for core issues of profound significance to L&M and the industry to be addressed and resolved by this Court.
BACKGROUND The residential building at 250 West 93rd Street in Manhattan (the “Melar”) opened for first occupancy in 2006. The Melar was constructed pursuant to plans that had been approved by the New York City Department of Buildings (“DOB”) as compliant with the New York City Building Code (the “NYC Code”); and a Certificate of Occupancy (“C of O”) was issued for The Melar by the DOB following several inspections by the DOB, also evidencing compliance with the NYC Code. (See Exh. I to Hadlock Affirmation) The NYC Code contains within it a detailed, comprehensive set of provisions governing access for people with

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 7 of 27
disabilities, referred to as Local Law 58 of 1987 (“LL58”); LL58 was enacted prior to enactment of the design and construction provisions of the Fair Housing Act, 42 U.S.C. §§ 3604, et seq. (the “FHA”). See 134 Cong. Rec. H4901 (June 29, 1988) (then-Congressman Charles Schumer stating, during debate over the design and construction provisions, that “[a]fter working with the disability rights groups, the National Association of Home Builders, and the realtors in my district who are currently operating under a similar, but more stringent New York law, I am convinced that the bill’s minimal requirements for accessibility are the only way to go”). A C of O certifies that the building is in conformance with “all laws, rules, regulations and orders” that apply to it, thereby certifying compliance with LL58. See New York City Charter, Chapter 26 §645(b)(3)(d).
In 2008, two years after construction of the Melar was completed and its first temporary C of O was issued, the United States Attorney’s Office for the Southern District of New York (the “USAO” or the “Government”) initiated an investigation into the design and construction of the Melar, along with similar investigations into the design and construction of many other residential buildings in New York City. From the outset, L&M’s position has been that, pursuant to the terms of the FHA, compliance with LL58 is sufficient to establish compliance with the FHA. The government has asserted that compliance with LL58 is irrelevant. [Transcript of November 10, 2010 Conference (“11/1/10 Tr.”) at pp. 11-12, Exh. D the Hadlock Affirmation).
L&M permitted the government to inspect the Melar, and settlement discussions followed. The principal source of contention was whether various alleged deviations from the measuring standard the Government chose to use were in fact violations of the FHA. Further, the USAO demanded that L&M deposit monies into an “Aggrieved Persons Fund” and an
2

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 8 of 27
“Accessibility Project Fund,” which, to the extent unused or unclaimed, would be forfeited by L&M. The USAO also demanded that L&M agree to unduly burdensome terms relating to education, training, reporting, and future construction. (Consent Decree at Articles VII, X and XII; Exh. B to Hadlock Affirmation) Nevertheless, given the severe imbalance of its bargaining position, L&M ultimately signed the Consent Decree, but with grave reservations as to its punitive nature and overarching unfairness.
Following the filing of the complaint and the Consent Decree, this Court issued an Administrative Order acknowledging the function of consent decrees in principle, but observing that “the Consent Decree appears to impose costly and bureaucratic additional burdens upon the Developer, and does so without explaining why they are needed.” (Admin. Order dated October 22, 2010 (attached as Ex. C to Hadlock Affirmation) at 2.) The Court requested further explanation concerning the following components of the decree: (1) the payment of $180,000 into an Aggrieved Persons Fund; (2) the establishment of an Accessibility Project Fund in the amount of $288,300; (3) the disclosure requirements concerning other multi-family dwellings in which L&M intends to be involved in the future; (4) the requirement that L&M ensure that its employees are familiar with and have personally reviewed the Fair Housing Accessibility Guidelines; (5) the requirement that L&M undergo FHA training; and (6) the three-year term of the proposed decree. (Id. at 2-3.) The government and L&M submitted letters to the Court in response to the Court’s Order, and the Court conducted a telephone conference on November 10, 2010 (Exh. D to Hadlock Affirmation) and an open court conference on November 16, 2010 (Exh. E to Hadlock Affirmation) to discuss the issues it raised and the parties’ responses.
During the course of those conferences, the Court articulated multiple concerns about the Consent Decree, noting that “I don't feel that I could approve the consent decree in the
3

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 9 of 27
form in which it is.” (11/10/10 Tr., at p. 26; Exh. D) Among the concerns the Court raised were: (1) the absence of a mechanism, in coordination with New York City, “to get these issues resolved before a building is finished rather than after a building is finished,” so as not to “haul in the architect and the developer” and “say, gotcha, your building, now that it is finished, is in violation of federal law” (11/10/10 Tr. at pp. 13-14; Exh. D); (2) the existence of what appeared to be multiple penalties cumulatively exceeding the statutory penalty limit, specifically in the form of an Aggrieved Persons Fund that, without a reverter, becomes an unauthorized penalty provision (11/10/10 Tr. p. 3; Exh. D) and an Accessibility Project Fund, also without a reverter, that does the same (11/10/10 Tr. p. 3; Exh. D); and (3) the overbreadth of various education, training, and reporting provisions (11/10/10 Tr. pp. 7-8; Exh. D). In short, the Court indicated its dissatisfaction with the Consent Decree and encouraged the parties to continue negotiations. (11/110/10 Tr. at p. 26; Exh. D).
On November 16, 2010, the Court reiterated its concern as to “putting the Court’s imprimatur behind” the Consent Decree (Transcript of Nov. 16 Conference (“11/16/10 Tr.”) at p. 8; Exh. E), and set another conference for December 16, 2010, so that further negotiations could be conducted (11/10/10 Tr. p. 47; Exh. E). On December 15, 2010, the Court adjourned the conference to February 1, 2011, on the “understanding that, in the interim, the parties are attempting to achieve a (more) global resolution, one which endeavors to harmonize New York City and Federal housing construction obligations.” (Administrative Order dated December 15, 2010; Exh. F to Hadlock Affirmation.) Following its receipt on January 26, 2011, of further status reports from the parties, the Court referred the matter to Magistrate Judge Dolinger for settlement and deferred the conference again until March 1, 2011.
4

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 10 of 27
The parties appeared before the Court on March 14, 2011, and upon being told that no progress had been made in the parties’ attempt to reach an agreement on the issues raised by the Court, and being told that L&M wished to withdraw from the Consent Decree, the Court directed L&M to proceed with this motion seeking an order authorizing it to withdraw from the Consent Decree. The Court indicated that L&M’s withdrawal was a necessary first step before the Court could consider the various issues that have been raised by L&M and articulated by the Court in the recent proceedings. (Transcript of March 14, 2011 Conference (“3/14/11 Tr.”) at p. 10; Exh. G to Hadlock Affirmation) at 10:23-25 (“You have to withdraw your consent. You have to make a motion to withdraw the consent that you granted before we can go forward.”).) While the government stated at the conference that L&M should be bound by its prior consent to the decree, it conceded that “[o]f course that is subject to [Y]our Honor’s approval.” (3/14 Tr. at p. 4; Exh. G)
ARGUMENT L&M SHOULD BE PERMITTED TO WITHDRAW
FROM THE CONSENT DECREE Two independent grounds support L&M’s withdrawal from the Consent Decree. First, from the time the Consent Decree was initially submitted to the Court, the Court has declined to approve the decree and has suggested that substantial changes to its terms would be necessary to bring it into conformity with the law and with principles of fairness. Under these particular circumstances, where the Court has expressed reservations regarding entry of the decree during the period when the status of the decree was contingent, L&M should be allowed to reconsider its prior approval of the Consent Decree and withdraw from it. Second, and in the alternative, L&M respectfully requests that the Court exercise its discretion to permit L&M to withdraw from the Consent Decree, because the proposed decree
5

Case 1:10-cv-07495-RMB -MHD Document 45 Filed 04/15/11 Page 11 of 27
is deficient on three grounds: (1) It conflicts with the FHA and undercuts its underlying purpose; (2) It is neither fair nor reasonable, and goes beyond the case made by the pleadings; and (3) It would have a profoundly negative impact on third parties and the real estate industry. I. L&M May Withdraw From the Consent Decree Under the Particular
Circumstances Presented Here As a threshold matter, the fact that L&M signed the Consent Decree and initially
submitted it for the Court’s approval is not an impediment to the litigation proceeding. It is axiomatic that a proposed consent decree does not become legally enforceable unless and until it is approved by a court. See United States v. Am. Cyanamid Co., 719 F.2d 558, 563 (2d Cir. 1983) (“[w]hile [consent decrees] are arrived at by negotiation between the parties . . . [they] must be approved by the court”); see also Sanchez v. Pataki, Nos. 98 Civ. 6282, 95 Civ. 3803, 2008 WL 729097, at *3 (E.D.N.Y. Mar. 18, 2008) (“[P]rivate settlements do not entail the judicial approval and oversight involved in consent decrees.”) (internal quotation marks omitted); Coca-Cola Bottling Co. of Elizabethtown, Inc. v. Coca-Cola Co., 654 F. Supp. 1419, 1437 (D. Del. 1987) (“[C]onsent decrees arise[] as contracts signed in response to pending litigation that must be approved by the court.”).
While a signatory to a proposed consent decree is usually not free to withdraw from the agreement “merely” because the party “changed his mind,” Georgevich v. Strauss, 772 F.2d 1078, 1085 (3d Cir. 1985), the reservations expressed by the court in considering entry of a decree may support the party’s withdrawal from it during the period when the status of the decree is contingent, i.e., prior to the court’s approval. The Ninth Circuit has described this situation as follows:
The court need not approve [a proposed consent decree], but if it did not, or suggested or attempted a substantial change in the proposed consent
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judgment, each party to the consent decree, at the very least, would be free to withdraw from the stipulated ‘consent,’ and proceed to trial. City of Burbank v. Gen. Elec. Co., 329 F.2d 825, 831 (9th Cir. 1964). See also Georgevich, 772 F.2d at 1085 (rejecting plaintiffs’ claim that defendant class waived its right to oppose the consent decree because it initially requested the court to approve it, where the “shift in position by the class representative and his counsel apparently came about as a result of the issues raised by the court”).
This is precisely what has happened here. When the parties initially presented the proposed decree to the Court, the Court declined to approve it. (See Admin. Order dated Oct. 22, 2010 (Exh. C); see also 11/10/10 Tr. at 22 (Exh. D) (“[I]t would be the easiest thing in the world for me to just sign the consent decree when it came in on the signature line and be done with it, but it just doesn’t strike me as the best way to judge these matters.”).) In the period since the Court issued its initial order requesting more information from the parties, the Court has repeatedly indicated that the decree does not comport with the law and has suggested substantial changes to its terms. It first did so at the initial conference with the parties. (11/10/10 Tr. at 3; Exh. D (“at least some of the provisions of the consent decree seem to be unnecessarily or unduly punitive and burdensome and I think can be construed . . . to contain more penalty provisions than appear to be justified under the FHA”); (11/10/10 Tr. at 5; Exh. D) (suggesting that unused money in the Aggrieved Persons fund “should go back to the developer” because there is no “legal basis for the money being directed to charity” as the decree requires); (11/10/10 Tr. at 7; Exh. D) (suggesting that unused money in Accessibility Fund should “revert back to the developer”); see also 11/10/10 at 6 (the Accessibility Project Fund “strikes me more like a penalty”); and 11/10/10 Tr. 7-8 (suggesting that the educational program should be directed at
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“decision makers” only, and that the educational, training, and reporting requirements are “overbroad”).)
The Court continued to reiterate these concerns at its next conference with the parties. (11/16/10 Tr. at 4; Exh. E) (stating that “[i]t is the legality and the fairness in the issues that I’ve identified” that have impeded entry of the decree); (11/16/10 Tr. at 4) (“[F]rom the point of view of entering a consent decree and putting the Court’s imprimatur behind it, it seems that some of the priorities or provisions are unduly harsh to me or penalties beyond what is maybe contemplated by the FHA.”).)
The serious concerns repeatedly expressed by this Court regarding the terms of the proposed Consent Decree, and the “substantial change[s]” to those terms the Court has repeatedly suggested, provide grounds for L&M to reconsider its initial support for the decree and oppose its entry now. See City of Burbank, 329 F.2d at 831; Georgevich, 772 F.2d at 1085; see also United States v. City of San Diego, 18 F. Supp. 2d 1090, 1096 (S.D. Cal. 1998) (noting that court had rejected the proposed consent decree after one of the defendants, which had previously negotiated the decree and agreed to it, “changed positions and opposed the decree”).
Because the particular circumstances present in this case allow L&M to withdraw of its own accord from the proposed decree, the Court should permit L&M to withdraw and the litigation to go forward. II. In the Alternative, the Court Should Permit L&M to Withdraw From the Consent
Decree Because Its Terms Undermine the Objectives of the Fair Housing Act, Are Neither Fair Nor Reasonable and Go Beyond the Case Made by the Pleadings, and Unreasonably Affect Third Parties
Even if as asserted in the preceding Point the circumstances here were not sufficient to permit L&M to withdraw of its own accord from the Consent Decree, – the Court should exercise its discretion to permit L&M to withdraw or alternatively decline entry of the
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decree. The Court may exercise its discretion to either permit L&M to withdraw or itself decline to approve the decree, would either of which negate the parties’ agreement and allow the litigation to proceed. Its decision to exercise its discretion either way would be based on the same considerations. See Ibarra v. Texas Employment Comm’n, 823 F.2d 873, 879 (5th Cir. 1987) (recognizing that “the district court’s discretion to disapprove the consent decree can negate the agreement”); Sec. Exch. Comm’n v. Randolph, 736 F.2d 525, 528 (9th Cir. 1984) (“judicial disapproval of a consent decree is a condition subsequent,” upon which “the parties might claim the right to withdraw their consent to the agreement”) (citing, inter alia, Carson v. Am. Brands Inc., 450 U.S. 79, 87 (1981)). A. The Court Must Independently Scrutinize the Consent Decree To Ensure That It
Satisfies the Requirements For Judicial Approval Whether to approve or reject a proposed consent decree, or to allow a party to
withdarw, “falls squarely within the court’s discretion.” United States v. Ashland, Inc., No. 04 Civ. 904S, 2008 WL 2074079, at *1 (W.D.N.Y. May 14, 2008); cf. Perez v. Danbury Hosp., 347 F.3d 419, 425 (2d Cir. 2003) (“We review a district court’s enforcement of a consent decree for abuse of discretion.”). In exercising that discretion, the court must “independently scrutinize[]” the proposed consent decree, even where both parties support it (which is no longer the case here). E.E.O.C. v. Local 638, No. 71 Civ. 2877, 2003 WL 21804837, at *1 (S.D.N.Y. Aug. 6, 2003).
In determining whether to approve or reject a proposed consent decree in a Fair Housing Act action brought by the United States, a court must assure itself that the consent decree meets certain requirements. First, the decree must “come within the general scope of the case made by the pleadings, and must further the objectives of the law upon which the complaint was based.” Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478
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U.S. 501, 525 (1986) (internal quotation marks, citations, and alterations omitted); see also Friends of the Earth v. Archer Daniels Midland Co., 780 F. Supp. 95, 100 (N.D.N.Y. 1992) (noting that “[i]t is well settled that the parties may not agree to take action, even in the form of a consent decree, which conflicts with or violates the very statute upon which the complaint is based,” and finding on that basis that “the court cannot give its imprimatur to the proposed consent decree”); Christopher C. Sabis, Executing the Laws or Executing an Agenda: Usurpation of Statutory and Constitutional Rights by the Department of Justice, 37 U. Mich. J.L. Reform 257, 260 (warning against “consent decrees [that] reveal remedies that appear to stretch the Fair Housing Act beyond the goals authorized by Congress”); cf. Vulcan, Inc. v. Fordees Corp., 658 F.2d 1106, 1111 (6th Cir. 1981) (noting that consent decrees are subject to judicial supervision to protect parties from “economic overreaching”).
Second, the decree must be “fair, adequate, reasonable, and appropriate under the particular facts” of the case. Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 616 F.2d 1006, 1014 (7th Cir. 1980); see also Local 638, 2003 WL 21804837, at *1 (applying “fair, adequate, and reasonable” standard to consent decree in Title VII case); United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir. 1990) (evaluating fairness and reasonableness of proposed consent decree in CERCLA action). While a court’s role is “minimal” in reviewing a settlement that affects “only private interests,” Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986); see also Interspace Inc. v. Morris, 650 F. Supp. 107, 110 (S.D.N.Y. 1986) (indicating that settlements are reviewed for “fraud, collusion, mistake or accident”), that is not true where, as here, the court is reviewing a consent decree in a case affecting the public interest. In such a case, the court is “required to determine whether [the proposed consent decree is] fair, adequate, and reasonable, as well as consistent with the public interest.” United States v. County of
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Muskegon, 298 F.3d 569, 580-81 (6th Cir. 2002) (internal quotation marks omitted); see also Friends of the Earth, 780 F. Supp. at 99 (explaining that when the underlying lawsuit affects the public interest, the court must be satisfied of the fairness of the settlement, and observing that a lawsuit brought under the citizen suit provision of the Clean Water Act affected the public interest); 11/16/10 Tr. at 8; Exh. E (inquiring into “the legality and the fairness in the issues [the Court has] identified”). In order for the consent decree to be approved, the Government must “proffer sufficient facts and reasons to establish that those factors have been satisfied and that approval is warranted.” United States v. Brook Vill. Assocs., No. 05 Civ. 195, 2006 WL 3227769, at *1 (D.R.I. Nov. 6, 2006) (internal quotation marks omitted).
Last, in a case affecting the public interest, “the court must be satisfied” that the effect of the consent decree on parties outside the litigation “is neither unreasonable nor proscribed.” United States v. City of Miami, Fla., 664 F.2d 435, 441 (5th Cir. 1981) (en banc) (per curiam) (Rubin, J., concurring) (reviewing consent decree in Title VII case brought by United States); see also United States v. Atlas Minerals and Chems., Inc., 851 F. Supp. 639, 649 (E.D. Pa. 1994) (quoting same).
As discussed below, the government cannot meet its burden to overcome any of these hurdles to entry of the proposed decree. B. The Consent Decree Conflicts With the Fair Housing Act and Is Not Consistent
With Its Objectives To start, the Court should reject the proposed Consent Decree, or permit L&M to
withdraw from it, because the penalty scheme imposed by the decree is not consistent with the Fair Housing Act and is contrary to its objectives. While “a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the
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court could have awarded after a trial,” Local No. 93, 478 U.S. at 525, the terms of the decree “must further the objectives of the law upon which the complaint was based,” id.
That is clearly not the case here. The Fair Housing Act limits the civil penalty that may be assessed against an alleged first-time violator of the statute – like L&M – to $55,000. See 42 U.S.C. § 3614(d)(1)(C)(i); 28 C.F.R. § 85.3(b)(3) (raising penalty from $50,000 to $55,000 to adjust for inflation). The civil penalty provision of the proposed Consent Decree requires that L&M pay $40,000 to the United States (Consent Decree, Art. VIII; Exh. B), an amount that is itself within the statutory limit. The proposed decree, however, provides for two funds that each impose a backdoor penalty against L&M that far exceeds the maximum penalty under the statute and undercuts its underlying objectives.
As to the first, the Consent Decree requires L&M to deposit $180,000 into a fund to compensate aggrieved persons (the “Aggrieved Persons Fund”). (Consent Decree at Art. VII; Exh. B) But unlike the consent decree recently entered in United States v. CVP I, et al., No. 08 Civ. 7194 (SHS) (S.D.N.Y.), monies not used to compensate aggrieved persons (because no such persons have been identified) are forfeited by L&M, an outcome that improperly penalizes L&M, as the Court has previously recognized. (11/10/10 Tr. at 6; Exh. D) (“It seems to me that if there are no complaints – nobody has suggested to me that there are any complaints – it seems to me in a reasonable period of time the money should go back to the developer. I don’t see any legal basis for the money being directed to charity.”); 11/10/10 at 6; Exh. D (“I don’t see any legal basis that would suggest that that money should not revert to the developer. Otherwise, it would clearly be an additional penalty. And even if you think it is OK to individualize penalties, you would still be way over the $40,000 amount.”).) This penalty scheme, which is clearly at odds with the Fair Housing Act, should not be given the Court’s imprimatur. See generally
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United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (“[W]here, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.” (internal quotation marks omitted)).
The Consent Decree’s Accessibility Project Fund (the “Accessibility Fund”) of $288,300 suffers from the same infirmity (Consent Decree Art. IX; Exh. B), in that L&M forfeits any unused portion of it. Indeed, the Accessibility Fund is even more punitive than the Aggrieved Persons Fund in that the unused portion of the $288,300 will go directly to the Government. Further, the Consent Decree requires the Government to approve any use by L&M if any of the funds and to the extent the Government does not approve L&M’s proposed use of them, the funds revert to the Government. Accordingly, the Fund appears on its face to be a penalty, as the Court has noted. (11/10/10 Tr. at 6; Exh. D (“The other provision I don’t understand is the accessibility project fund, which is in the amount of $288,000. That strikes me more like a penalty . . . .”); 11/10/10 Tr. at 7; Exh. D (suggesting that unused money in Accessibility Fund should “revert back to the developer”).)
While parties to a consent decree may agree to relief broader than the relief authorized by the statute, see Local No. 93, 478 U.S. at 525, the terms of the consent decree “must further the objectives of the law upon which the complaint was based,” id. Here, taking leftover monies from funds that are ostensibly intended to compensate aggrieved persons for actual damages, and to pay for improvements to accessibility, and diverting those monies to ratchet up the penalty on a party that has chosen to settle, does nothing to further the objectives of the FHA, and in fact contravenes those objectives. The objectives of the FHA are grounded in enhancing access, not in punishing the alleged offender. See Banai v. Sec’y, United States Dep’t of Hous. and Urban Dev. on behalf of Times, 102 F.3d 1203, 1207 & n.4 (11th Cir. 1997)
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(explaining that “[v]ictims of discrimination in violation of the FHA are entitled to ‘actual damages,’” which are “compensation for the victims’ injuries, not punishment for the perpetrator’s wrongdoing”) (emphasis added); United States v. $69,292.00 in U.S. Currency, 62 F.3d 1161, 1164-65 (9th Cir. 1995) (distinguishing forfeiture, which is “punishment,” from civil penalties subject to a statutory maximum, which are not);
Because the penalty scheme imposed by the Consent Decree through the Aggrieved Persons and Accessibility Funds conflicts with the statute on which the complaint and Consent Decree are based, and does not serve the statute’s interests, the decree should be rejected by this Court. See Friends of the Earth, 780 F. Supp. at 100 (“parties may not agree to take action, even in the form of a consent decree, which conflicts with or violates the very statute upon which the complaint is based”); see also Dydio v. Hesston Corp., 887 F. Supp. 1037, 1039 n.2 (N.D. Ill. 1995) (striking request for civil penalties where court is not authorized to impose them); Curry v. Fidelity Consumer Disc. Co., 656 F. Supp. 1129, 1132-33 (E.D. Pa. 1987) (holding, in lawsuit under Truth in Lending Act, that plaintiff who had incurred finance charges over $1,000 was limited to a $1,000 recovery because that was the statutory maximum). C. The Consent Decree Is Not Fair or Reasonable
The Consent Decree is substantively unfair and unreasonable in at least four respects, each of which supports the Court’s rejection of the decree.
1. The Consent Decree Imposes After-the-Fact Penalties on L&M Years After the Building Received Its Certificate of Occupancy from New York City As the Court has observed (11/16/10 Tr. at 3; Exh. E), the “overarching” question
of fairness in connection with the Consent Decree relates to the timing of the government’s inspection of the Melar. The Government initiated its investigation years after L&M had constructed the Melar to comply with LL58, and years after the building had received its first
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temporary Certificate of Occupancy from the DOB. In building the Melar to comply with LL58, L&M understood that it was thereby complying with the FHA. That understanding was based on a longstanding and well-founded industry-wide view that compliance with LL58 was sufficient to establish compliance with the FHA, a view endorsed by the City of New York. (See Letter from Michael A. Cardozo, Corporation Counsel, dated July 14, 2008 (Exh. H to Hadlock Affirmation) (“Cardozo Letter”) (“[I]n the opinion of the City of New York, compliance with New York City’s Local Law 58 of 1987 satisfies the Fair Housing Act requirements.”).) Indeed, the FHA expressly provides that “[i]f a State or unit of general local government has incorporated into its laws the requirements set forth in paragraph (3)(C) [the design and construction requirements], compliance with such laws shall be deemed to satisfy the requirements of that paragraph.” 42 U.S.C. § 3604(f)(5)(A). Congress, moreover, made clear in amending the Fair Housing Act in 1988 that “[s]tate and local fair housing agencies [were to] continue their vital, integral role in fair housing enforcement all across the United States,” 134 Cong. Rec. H6491-02 (Aug. 8, 1988), and, as the Court has noted, it was not the purpose of the FHA “to make the assistant U.S. attorneys into building inspectors” (11/10/10 Tr. at 14; Exh. D). Until this investigation was begun, L&M had never received any indication from any local or federal housing authority that it was allegedly in violation of LL58 or the Fair Housing Act.
The Consent Decree, which reflects the Government’s view that compliance with Local Law 5 is not sufficient to establish compliance with the FHA – indeed, it endorses the Government’s view that compliance with LL58 is not even “relevant” to the question (11/10/10 Tr. at 12; Exh. D), will have enormous negative implications for L&M and the real estate industry if it is approved. Such approval would endorse the Government’s game of “gotcha” after construction of the Melar was completed and approved by the City.
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In order to remedy the “overarching” unfairness of the Consent Decree, the Court should allow L&M to seek to answer, through litigation, the question of whether its compliance with LL58 was sufficient to establish compliance with the FHA. More broadly, that approach will give L&M – and the entire New York City real estate industry – the certainty of knowing that if it builds in compliance with the local law, it will be in compliance with the FHA. The Government, too, will benefit from the judicial resolution of this question, inasmuch as it will give guidance to the Government regarding future litigation that is in fact in furtherance of the objectives of the FHA. The risks involved in allowing the litigation to go forward belong to L&M, and L&M is willing to bear those risks in order to ensure a fair and reasonable resolution of the core issues that profoundly affect both L&M and the industry as a whole.
The balancing of risks and benefits associated with going forward in the litigation militates strongly in favor of this Court’s exercise of its discretion to permit L&M to withdraw from the Consent Decree. In Local 638, 2003 WL 21804837, for example, the court declined to approve a proposed consent decree in a Title VII lawsuit after applying a “risks versus benefits” analysis. Id. at *2. There, the court held a fairness hearing and considering various objections to the proposed consent decree, decided not to approve it, reasoning, among other things, that a risk-benefit analysis “weighs against approval of the Proposed Consent Order,” Id. The same is true here. The court in Local 638 also relied upon the fact that there was strong third-party opposition.
2. The Aggrieved Persons Fund Is Unfair and Unreasonable Because It Lacks a Reversion and the Required Amount Is Arbitrary and Excessive The Aggrieved Persons Fund is unfair and unreasonable in that it forces L&M to
pay a backdoor penalty in excess of the statutory maximum and without serving the interests of the statute, as discussed in Point II.B, supra. L&M forfeits any monies not used to compensate
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aggrieved persons, despite the fact that historically aggrieved persons funds of this type have included consent decrees with reverter provisions, e.g., United States v. CUP I, et al., 08 Civ. 7194 (SDNY Oc. 15, 2010) and no explanation is given why it is not included in this consent decree. The amount is also excessive. Since the Melar opened in 2006, it has not received a single complaint regarding accessibility, as the Court has noted. (11/10/10 Tr. at 6; Exh. D (“nobody has suggested to me that there are any complaints”).) It is totally unclear “how that amount was arrived at” (11/10/10 Tr. at 6; Exh. D), and without a reversion, there is no relationship between the fund amount and the purpose the fund was intended to serve. In short, the arbitrary nature of this fund is neither fair to L&M nor reasonable.
Courts have rejected consent decrees under the “fair, reasonable, and adequate” standard for substantially similar reasons, i.e., where payments required by the decree appeared arbitrary and lacked support in the record. See, e.g., United States v. Alliedsignal, Inc., 62 F. Supp. 2d 713 (N.D.N.Y. 1999) (rejecting proposed consent decree in CERCLA litigation where one party’s payment was disproportionately low, with the result that defendant’s payment was likely to be disproportionately high relative to its degree of fault); Comm’r of Dep’t of Planning and Natural Res. v. Century Alumina Co., Civ Nos. 2005/0062, 2007/114, 2008 WL 4693550, at *5 (D. V.I. Oct. 22, 2008) (rejecting proposed consent decree in CERCLA litigation because, among other things, it provided for a $120,000 payment for response costs and other costs without estimating what the response costs would actually be, and court was “at a complete loss as to where to begin in its determination of whether the $120,000 allotted in the Consent Decree for response costs . . . is substantively fair.”).
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3. The Accessibility Fund Is Unfair and Unreasonable Because It Lacks a Reversion and the Required Amount Is Arbitrary and Excessive For the reasons articulated in Point IIB and in the preceding section C 2;, L&M’s
forfeiture of unused monies also renders the Accessibility Fund arbitrary, unfair and unreasonable.
4. The “Educational Program” and the “Non-Discrimination In Other Design and Construction” Provision Impose Unfair and Unreasonable Burdens On L&M and Go Beyond the Case Made By the Pleadings A consent decree must come within the scope of the case made by the pleadings.
See Local No. 93, 478 U.S. at 525. At least two sets of provisions of the Consent Decree fail to satisfy this requirement because, as the Court has indicated, the provisions are “overbroad”: (1) the “Educational Program” provision, which includes educational, training, and reporting requirements, and (2) the “Non-Discrimination In Other Design And Construction” provision. (11/10/10 Tr. at 7; Exh. D.
(a) The Educational Program Provision. The breadth of the educational program mandated by the Consent Decree (Exh. B, Art. X) goes well beyond the scope of the complaint against L&M, imposing a burdensome degree of micromanagement not tailored to achieve the statute’s intended purpose. The provision requires all of L&M agents and employees involved in the design or construction of The Melar to certify that they have read the 29 page Consent Decree including its various charts and exhibits, and that L&M must ensure that its employees with supervisory authority over the design and/or construction of covered buildings review the Fair Housing Accessibility (Consent Decree’s Guidelines and Fair Housing Accessibility Guidelines and Fair Housing Act Design Manual. Exh. B at Art. X). In addition, the Consent Decree includes the requirement all employees or agents involved in the design and construction of covered buildings submit to extensive FHA training.
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The requirements are extensive, expensive, and burdensome and exceed the scope of the pleadings, and also the bounds of common sense. (11/10/10 Tr. at 7; Exh. D) (“I have read that consent decree now five times and I still don’t understand all of it.”).) Making all L&M’s employees read the Consent Decree is not reasonably grounded in any of the allegations of the Complaint, which gives no indication that such a wide range of employees had anything to do with the alleged FHA violations at the Melar. It is not reasonable to require L&M to “ensure” that a large number of its employees “personally have reviewed” complicated legal documents, as the Consent Decree currently requires. The training requirement is similarly unreasonable. The requirement that L&M provide Government approved training to all employees whose duties include supervision over the design, construction, or maintenance of the Melar – including supervisors of all porters and handymen in the building – goes well beyond the reasonable scope of such relief. (11/10/10 Tr. at 7; Exh.) (suggesting that education and training should be directed at “decision makers” only).)
(b) The Non-Discrimination In Other Design and Construction Provision. The “Non-Discrimination In Other Design and Construction” provision (Consent Decree Art VII; Exh. B) is also neither fair nor reasonable. This provision requires that L&M provide upon request and at its own cost, a substantial amount of information to the Government regarding any covered multifamily dwellings “intended” to be developed in the future by it or a related developer. These demands are onerous and impose intrusive government oversight over future construction and may impede L&M’s ability to engage certain architect’s or contributors of its choice. These burdensome administrative requirements accomplish little relating to the objectives of the settlement but make it more onerous for L&M to conduct its business, with no
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corresponding benefits for increased accessibility for people with disabilities. The imposition of these excessive administrative requirements is not fair or reasonable. D. The Consent Decree Is Unreasonable As to Third Parties
Finally, the Consent Decree will have a serious negative impact upon the real estate industry and those affected by housing in New York City. As the Court has noted, “we . . . need to remember that the real estate industry is an important aspect of our city’s economy and we need to take care to get to the core of the problem without, if possible, imposing unnecessary penalties or regulatory requirements especially where as I understand it bad motive is not an issue in the case.” (11/16/10 Tr. at 5; Exh. E) The proposed consent decree flies in the face of these principles. If approved, the Consent Decree will have a substantial negative impact on those affected by real estate development in this City, providing an additional basis for the Court’s rejection of the decree. See City of Miami, 664 F.2d at 441 (Rubin, J., concurring) (“If the decree also affects third parties, the court must be satisfied that the effect on them is neither unreasonable nor proscribed.”); Atlas Minerals, 851 F. Supp. at 649 (quoting same).
More specifically, approval of the Consent Decree would extend and exacerbate the uncertainty hanging over the real estate industry as to whether compliance with LL58 suffices to establish compliance with the FHA. Current owners and developers have been relying on the understanding that it does, and nothing prior to the government’s investigation had given them reason to doubt that understanding. (See Cardozo Letter; Exh. H (“[I]n the opinion of the City of New York, compliance with New York City’s Local Law 58 of 1987 satisfies the Fair Housing Act requirements.”).) The Court’s refusal to allow L&M to withdraw from the Consent Decree and its approval of it would place a judicial imprimatur on the government’s
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effort to penalize a building for violations of the FHA notwithstanding the express position of the building’s owner that the building complies with Local Law 58 and therefore with federal law.
The costs to address after-the-fact investigations by the Government of buildings that were constructed to comply with LL58 would also be tremendously burdensome for the real estate industry, and in many cases the costs would be passed through to tenants. As the City’s Corporation Counsel noted in his letter, the impact of this uncertainty would be most “destabilizing” on “affordable housing developments that have slim operating margins and can ill afford the legal costs they would entail in the course of an investigation.”
This matter began with the government investigating many developers, not just L&M, and there is every reason to believe that if the Consent Decree is approved the Government will seek to use it as a template in FHA actions against those developers and others. Denial of L&M’s request to withdraw, and approval of the Consent Decree thus raises the specter of negotiations with the government where the only choice for resolving the issues short of litigation would be to agree to terms that are not only patently unfair and unreasonable, but that exceed the penalties set out in the governing statute and do not serve its purposes.
For all of these reasons, there is widespread opposition by owners and developers to the Consent Decree, opposition that has been voiced by the Real Estate Board of New York, which represents approximately 12,000 members. This opposition to the Consent Decree also militates in favor of the Court’s exercise of its discretion to decline to approve the decree. See, e.g., Local 638, 2003 WL 21804837, at *2 (concluding, without discussing its view as to the merits of the opposition, that the fact that there was “strong and substantial opposition to the Proposed Consent Order [by non-parties] . . . weighs against its approval.”).
21

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CONCLUSION For the reasons discussed above, L&M respectfully requests that it be permitted to withdraw from the proposed Consent Decree of its own accord or, in the alternative, that the Court decline to approve the Consent Decree, thereby allowing L&M to withdraw and proceed with the litigation.
Respectfully submitted, Winston & Strawn LLP By: s/John M. Hadlock
John M. Hadlock 200 Park Avenue New York, NY 10166 (212) 294-6700 Attorneys for the Defendant L&M 93rd Street LLC
22

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 Case: 1:10-cv-7495 As of: 10/27/2012 10:53 AM EDT 1 of 8
CLOSED, CASREF, ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:10−cv−07495−RMB −MHD

United States Of America v. LM93rd Street LLC et al Assigned to: Judge Richard M. Berman Referred to: Magistrate Judge Michael H. Dolinger Cause: 42:405 Fair Housing Act
Plaintiff

Date Filed: 09/30/2010 Date Terminated: 07/22/2011 Jury Demand: None Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: U.S. Government Plaintiff

United States Of America

represented by Brian Marc Feldman U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212)−637−2777 Fax: (212)−637−2717 Email: brian.feldman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carina Hyatt Schoenberger United States Attorney's Office Southern District of New York 86 Chambers Street New York, NY 10007 (212) 637−2800 Fax: (212) 637−2702 Email: carina.schoenberger@usdoj.gov LEAD ATTORNEY

Li Yu U.S. Attorney's Office, SDNY (Chambers Street) 86 Chambers Street New York, NY 10007 (212) 637−2734 Fax: (212) 637−2686 Email: li.yu@usdoj.gov ATTORNEY TO BE NOTICED

Sarah Elizabeth Light U.S. Attorney's Office, SDNY (86 Chambers St.) 86 Chambers Street New York, NY 10007 212−637−2774 Fax: 212−637−2686 Email: sarah.light@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant LM93rd Street LLC

represented by John M. Hadlock Winston &Strawn LLP (NY) 200 Park Avenue New York, NY 10166 212 294 2679

Case: 1:10-cv-7495 As of: 10/27/2012 10:53 AM EDT 2 of 8

Fax: 212 294 4700 Email: jhadlock@rosenbergestis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Costas Kondylis &Partners, LLP

represented by Christopher A. Albanese Milber Makris Plousadis &Seiden, LLP (White Plains) 3 Barker Avenue 6th Floor White Plains, NY 10601 (914)−681−8700 Fax: 914 681−8709 Email: calbanese@milbermakris.com ATTORNEY TO BE NOTICED

Intervenor Defendant Real Estate Board of New York

represented by Lawrence Steve Spiegel Skadden, Arps, Slate, Meagher &Flom LLP (NYC) Four Times Square 42nd floor New York, NY 10036 (212)−735−4155 Fax: (917)−777−4155 Email: lawrence.spiegel@skadden.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/30/2010 09/30/2010 09/30/2010 09/30/2010 10/22/2010
11/01/2010
11/03/2010

# Docket Text
1 COMPLAINT against Costas Kondylis &Partners, LLP, LM93rd Street LLC. Document filed by United States Of America.(ama) (Entered: 10/01/2010)
SUMMONS ISSUED as to Costas Kondylis &Partners, LLP, LM93rd Street LLC. (ama) (Entered: 10/01/2010)
Magistrate Judge Michael H. Dolinger is so designated. (ama) (Entered: 10/01/2010)
Case Designated ECF. (ama) (Entered: 10/01/2010)
2 ADMINISTRATIVE ORDER the Court finds that it needs more information as set forth below in order to approve the Consent Decree. The core provisions of the Consent Decree are certainly appropriate and as further set forth in this document. The Court would appreciate the parties' submission(s) by 10/29/10. (Signed by Judge Richard M. Berman on 10/22/10) (cd) (Additional attachment(s) added on 11/1/2010: # 1 Exhibit) (jfe). (Entered: 10/22/2010)
3 ENDORSED LETTER addressed to Judge Richard M. Berman from John M. Hadlock dated 10/29/2010 re: Counsel request an extension of time to file their responsive letter until 11/2/2010 and further request that before counsel release their letter and expose their client to a possible breach of confidentiality counsel receive direction from the Court on this important issue. ENDORSEMENT: Extension to 11/2/10 at 4:00 P.M. granted. Include in any response copies of any building completion approvals by, e.g; any building inspections such as certification of occupancy, etc. Responses to Court's Order are not mandatory − but extension is Final. So Ordered (Signed by Judge Richard M. Berman on 11/1/2010) (jfe) (Entered: 11/01/2010)
4 ENDORSED LETTER addressed to Judge Richard M. Berman from Sarah Light dated 11/2/10 re: The Government requests the opportunity for a conference with the Court in Chambers. ENDORSEMENT: Let's discuss all these issues at the

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11/04/2010
11/05/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/17/2010 12/10/2010
12/14/2010

11/16/10 conference @10:00 am (including the architect defendant's cd if it is received in advance.) The Court does not perceive the need for a meeting in chambers at this time, although that may become appropriate in the future. (Signed by Judge Richard M. Berman on 11/3/10) (cd) (Entered: 11/03/2010)
5 ENDORSED LETTER addressed to Judge Richard M. Berman from Steven Spinola dated 11/3/2010 re: submitting this letter to bring to the Court's attention the grave concerns of New York City's real estate industry regarding the proposed consent decree that has recently been submitted for the Court's approval. ENDORSEMENT: If the parties here (Govt + Developer + Architect) wish to comment, they are respectfully request to do so by 11/9/2010 at noon. They are not required to do so. (Signed by Judge Richard M. Berman on 11/4/2010) (jar) (Entered: 11/04/2010)
6 NOTICE OF APPEARANCE by Li Yu on behalf of United States Of America (Yu, Li) (Entered: 11/05/2010)
7 Letter addressed to Judge Richard M. Berman from John M. Hadlock dated 11/15/10 re: We believe the issues raised by the Corporation Counsel Cardozo are critical to the Developer's dispute with the USAO and will be a critical issue to be resolved in this litigation. (mro) (Entered: 11/16/2010)
8 Letter addressed to Judge Richard M. Berman from Brian M. Feldman dated 11/15/10 re: We request that the Court advise the parties as to whether it would consider a resolution presented to the Court in this form. Document filed by United States Of America.(mro) (Entered: 11/16/2010)
9 Letter addressed to Judge Richard M. Berman from Brian M. Feldman dated 10/29/10 re: The Government submits this letter in response to the Court's Administrative Order, dated October 22, 2010. Document filed by United States Of America.(mro) (Entered: 11/16/2010)
10 Letter addressed to Judge Richard M. Berman from Sarah E. Light dated 11/9/10 re: The Government writes in response to the letter submitted by the Real Estate Board of New York on 11/3/10. Document filed by United States Of America.(mro) (Entered: 11/16/2010)
11 Letter addressed to Judge Richard M. Berman from Sarah E. Light, Brian M. Feldman, Li Yu, Carina Schoenberger dated 10/29/2010 re: Submits this letter in response to the Court's Administrative Order. Document filed by United States Of America.(mbe) (Entered: 11/16/2010)
12 Letter addressed to Judge Richard M. Berman from Sarah E. Light, Brian M. Feldman, Li Yu, Carina Schoenberger dated 11/15/2010 re: To advise the Court of a potential resolution of this matter. Document filed by United States Of America.(mbe) (Entered: 11/16/2010)
Minute Entry for proceedings held before Judge Richard M. Berman: Status Conference held on 11/16/2010, ( Status Conference set for 12/16/2010 at 10:30 AM before Judge Richard M. Berman.) (mbe) (Entered: 11/18/2010)
13 TRANSCRIPT of proceedings held on November 10, 2010 4:50 p.m. before Judge Richard M. Berman. (ajc) (Entered: 11/19/2010)
14 ENDORSED LETTER addressed to Judge Richard M. Berman from Lawrence S. Spiegel, dated 12/10/10 re: counsel submits this letter to advise the Court that REBNY plans to move to intervene as a defendant in this action. ENDORSEMENT: We can discuss at the conference on 12/16. The principal issue at that time will be proposed consent decree. Plaintiff and Defendants are directed to submit a brief (joint) status letter by noon on Tuesday, 12/14/10. (Signed by Judge Richard M. Berman on 12/10/10); (djc) Modified on 12/22/2010 (djc). Modified on 12/28/2010 (djc). (Entered: 12/13/2010)
15 ENDORSED LETTER addressed to Judge Richard M. Berman from United States Attorney, Southern District of New York, dated 12/14/2010, re: The Government writes, jointly with Costas Kondylis &Partners, LLP (the "Architect Defendant") and LM93rd Street LLC (the "Developer Defendant") to report that the parties today recommenced settlement discussions regarding the proposed consent

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12/15/2010
12/15/2010
12/15/2010 12/15/2010 12/15/2010 12/20/2010 01/06/2011 01/10/2011 01/18/2011 01/25/2011

decrees. We anticipate that those discussions will either conclude successfully or reach an impasse within the next 45 days. The parties therefore jointly and respectfully request that the Court: (l) adjourn the conference currently scheduled for Thursday, December 16, 2010, by 45 days; and (2) extend by 45 days the time period in which the Architect Defendant and Developer Defendant must respond to the Govemment's complaint in this action. ENDORSEMENT: Application granted. The conference on 12/16/2010 is adjourned to 2/1/2011 at 10:00 a.m. SO ORDERED. (Status Conference set for 2/1/2011 at 10:00 AM before Judge Richard M. Berman) (Signed by Judge Richard M. Berman, Not dated) (lnl) (Entered: 12/14/2010)
16 ADMINISTRATIVE ORDER: The Court has reviewed the record and letter submissions, dated December 10, 2010, from the Real Estate Board of New York, December 13, 2010, from the Government and LM93rd Street LLC, respectively, and the joint status letter dated, December 14, 2010, from the Government and Costas Kondylis &Partners, LLP. Following this review, the conference scheduled for December 16, 2010 has been adjourned to February 1, 2011 at 10:00 a.m. It is the Court's understanding that, in the interim, the parties are attempting to achieve a (more) global resolution, one which endeavors to harmonize New York City and Federal housing construction obligations. Without in any way commenting upon the merits or outcome of the parties' positions, the Court fully supports this effort. Please let me know if I can be of help in achieving a resolution. (Signed by Judge Richard M. Berman on 12/15/10) (mro) (Entered: 12/15/2010)
17 ENDORSED LETTER addressed to Judge Richard M. Berman from Lawrence S. Spiegel dated 12/14/10 re: Counsel for the Real Estate Board of New York reasserts its intention to file a formal motion to intervene. ENDORSEMENT: It's not ripe for motion practice of this time. Focus on good faith negotiations, instead. SO ORDERED. (Signed by Judge Richard M. Berman on 12/15/10) (mro) Modified on 12/15/2010 (mro). (Entered: 12/15/2010)
18 Letter addressed to Judge Richard M. Berman from Brian M. Feldman dated 12/13/10 re: For the reasons listed herein and in the absence of any ground supporting intervention, the Government opposes REBNY's motion to intervene. Document filed by United States Of America.(mro) (Entered: 12/15/2010)
19 Letter addressed to Judge Richard M. Berman from Brian M. Feldman dated 12/14/10 re: The Government writes, jointly with Costas Kondylis &Partners, LLP to provide a brief letter as to the status of settlement discussions in this proceeding. Document filed by Costas Kondylis &Partners, LLP, United States Of America.(mro) (Entered: 12/15/2010)
20 Letter addressed to Judge Richard M. Berman from John M. Hadlock dated 12/13/2010 re: Ls position is that discovery or other activity in this case should be deferred until it is determined whether REBNY will become a party.(mbe) (Entered: 12/20/2010)
21 TRANSCRIPT of proceedings held on 11/16/10, 11:30 a.m. before Judge Richard M. Berman. (rjm) (Entered: 12/21/2010)
22 TRANSCRIPT of proceedings held on 11/16/10 before Judge Richard M. Berman. (jw) (Entered: 01/06/2011)
23 WAIVER OF SERVICE RETURNED EXECUTED. LM93rd Street LLC waiver sent on 12/7/2010, answer due 2/7/2011. Document filed by United States Of America. (Feldman, Brian) (Entered: 01/10/2011)
24 ADMINISTRATIVE ORDER: The parties are hereby directed to file a joint letter on or before January 25, 2011 updating the Court as to the status of the parties' settlement negotiations. (Signed by Judge Richard M. Berman on 1/18/2011) (jpo) (Entered: 01/18/2011)
25 STATUS REPORT. Letter to Judge Berman providing update concerning status of this matter Document filed by Costas Kondylis &Partners, LLP.(Albanese, Christopher) (Entered: 01/25/2011)

Case: 1:10-cv-7495 As of: 10/27/2012 10:53 AM EDT 5 of 8

01/26/2011 01/26/2011 01/31/2011 01/31/2011 01/31/2011 02/03/2011 02/25/2011
02/25/2011 02/28/2011
03/11/2011

26 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for General Pretrial (includes scheduling, discovery, non−dispositive pretrial motions, and settlement). Referred to Magistrate Judge Michael H. Dolinger. (Signed by Judge Richard M. Berman on 1/26/2011) (jpo) (Entered: 01/26/2011)
27 ENDORSED LETTER addressed to Judge Richard M. Berman from Brian M. Feldman dated 1/25/2011 re: Unless the Court grants the Government's outstanding request to enter the consent decrees formerly signed by all parties, to which the defendants now object, this litigation must proceed. ENDORSEMENT: The matter is referred to Magistrate Dolinger for settlement. February 1, 2011 conference adjourned to March 1, 2011 at 9:00 a.m. (Signed by Judge Richard M. Berman on 1/26/2011) (jpo) (Entered: 01/26/2011)
28 Letter addressed to Judge Richard M. Berman from John M. Hadlock dated 1/25/11 re: We request that you entertain REBNY's request for a briefing schedule for its expressed desire to intervene in the case. (mro) (Entered: 01/31/2011)
29 Letter addressed to Judge Richard M. Berman from Lawrence S. Spiegel dated 1/25/11 re: Counsel for REBNY requests that the Court set a briefing schedule for REBNY's motion to intervene. (mro) (Entered: 01/31/2011)
30 Letter addressed to Judge Richard M. Berman from Christopher A. Albanese dated 1/25/11 re: CKP has no objection to the Parties' request to recommence litigation. Document filed by Costas Kondylis &Partners, LLP.(mro) (Entered: 01/31/2011)
31 ORDER, that a settlement conference has been scheduled in the above captioned action on MONDAY, FEBRUARY 28, 2011, at 10:00 A.M., at which time you are directed to appear in Courtroom 17D, 500 Pearl Street, New York, New York 10007−1312. Additional relief as set forth in this Order. (Signed by Magistrate Judge Michael H. Dolinger on 2/2/11) Copies Sent By Chambers. (pl) (Entered: 02/03/2011)
32 ENDORSED LETTER addressed to Judge Richard M. Berman from The Government, dated 2/25/2011, re: The Government writes to respectfully request a brief adjournment of the conference scheduled before Your Honor on March 1, 2011. By orders dated January 26, 2011, the Court referred the parties to Magistrate Judge Dolinger for settlement discussions and for general pretrial. Magistrate Judge Dolinger has scheduled a settlement conference for February 28, 20l1, i.e., just One day prior to the scheduled March 1 conference before Your Honor. The parties will likely require more than a single day to consummate, and prepare for Your Honor's review, any settlement agreements reached at the February 28 settlement conference. Accordingly, the Government respectfully requests a brief adjournment of the March 1 conference. The defendants consent to this request. ENDORSEMENT: Application granted. The status conference on 3/1/11 is adjourned to 3/14/11 at 9:00 a.m. SO ORDERED. (Status Conference set for 3/14/2011 at 09:00 AM before Judge Richard M. Berman) (Signed by Judge Richard M. Berman on 2/25/2011) (lnl) (Entered: 02/25/2011)
33 NOTICE OF APPEARANCE by Carina Hyatt Schoenberger on behalf of United States Of America. (mbe) (Entered: 02/28/2011)
34 ORDER, that initial disclosures are to be made by no later than FRIDAY, APRIL 8, 2011. All fact discovery is to be completed by FRIDAY, JULY 29, 2011. All remaining expert witness discovery is to be completed by FRIDAY, SEPTEMBER 16, 2011. The parties are to submit a joint pre−trial order by FRIDAY, SEPTEMBER 30, 2011, unless a potentially dispositive motion has been served by that date. ( Discovery due by 9/16/2011., Pretrial Order due by 9/30/2011.) (Signed by Magistrate Judge Michael H. Dolinger on 2/28/11) Copies Sent By Chambers. (pl) (Entered: 02/28/2011)
35 ENDORSED LETTER addressed to Judge Richard M. Berman from Lawrence Spiegel and Sara Shadofsky dated 3/10/11 re: Request that the Court set a briefing schedule for REBNY's motion to intervene. ENDORSEMENT: We can discuss at the conference on 3/14/11. Discovery should proceed (vigorously). (Signed by Judge Richard M. Berman on 3/11/11) (cd) (Entered: 03/11/2011)

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03/14/2011
03/21/2011 03/21/2011 03/24/2011 03/28/2011 03/28/2011 03/31/2011 04/01/2011 04/05/2011 04/15/2011 04/15/2011 04/15/2011
04/18/2011
04/18/2011
04/19/2011

Minute Entry for proceedings held before Judge Richard M. Berman: Status Conference held on 3/14/2011. Motion schedule set: motion to withdraw by 4/15/11; response by 4/29/11; reply by 5/13/11. Page limits apply. Oral argument to be scheduled at a later date. Motion schedule set on motion to intervene by Real Estate Board of New York: motion by 3/21/11; response by 3/28/11; reply by 4/1/11. Page limits apply. Motion to intervene to be decided on the papers submitted. See transcript of proceedings held for a complete record. (mro) (Entered: 03/14/2011)
36 MOTION to Intervene. Document filed by Real Estate Board of New York. (Attachments: # 1 Affidavit of Service)(Abrams, Robert) (Entered: 03/21/2011)
37 MEMORANDUM OF LAW in Support re: 36 MOTION to Intervene.. Document filed by Real Estate Board of New York. (Attachments: # 1 Affidavit of Service)(Abrams, Robert) (Entered: 03/21/2011)
38 TRANSCRIPT of proceedings held on 3/14/2011 before Judge Richard M. Berman. (ama) (Entered: 03/28/2011)
39 MEMORANDUM OF LAW in Opposition re: 36 MOTION to Intervene.. Document filed by United States Of America. (Schoenberger, Carina) (Entered: 03/28/2011)
40 DECLARATION of Carina H. Schoenberger in Opposition re: 36 MOTION to Intervene.. Document filed by United States Of America. (Attachments: # 1 Exhibit A)(Schoenberger, Carina) (Entered: 03/28/2011)
41 NOTICE OF APPEARANCE by Lawrence Steve Spiegel on behalf of Real Estate Board of New York (Spiegel, Lawrence) (Entered: 03/31/2011)
42 REPLY MEMORANDUM OF LAW in Support re: 36 MOTION to Intervene.. Document filed by Real Estate Board of New York. (Attachments: # 1 Affidavit of Service)(Spiegel, Lawrence) (Entered: 04/01/2011)
43 DECISION &ORDER: REBNY's motion to intervene [#36] is respectfully denied. (See DECISION &ORDER as set forth) (Signed by Judge Richard M. Berman on 4/5/2011) (lnl) (Entered: 04/05/2011)
44 MOTION to Withdraw from the Consent Decree. Document filed by LM93rd Street LLC.(Hadlock, John) (Entered: 04/15/2011)
45 MEMORANDUM OF LAW in Support re: 44 MOTION to Withdraw from the Consent Decree.. Document filed by LM93rd Street LLC. (Hadlock, John) (Entered: 04/15/2011)
46 DECLARATION of John M. Hadlock in Support re: 44 MOTION to Withdraw from the Consent Decree.. Document filed by LM93rd Street LLC. (Attachments: # 1 Exhibit A − Complaint, # 2 Exhibit B − Consent Decree, # 3 Exhibit C − 10/22/2010 Administrative Order, # 4 Exhibit D − 11/10/2010 Transcript, # 5 Exhibit E − 11/16/2010 Transcript, # 6 Exhibit F − 12/15/2010 Administrative Order, # 7 Exhibit G − 03/14/2011 Transcript, # 8 Exhibit H − 07/14/2008 letter, # 9 Exhibit I − Temporary Certificate of Occupancy)(Hadlock, John) (Entered: 04/15/2011)
47 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − MOTION to Add Costas Kondylis &Partners in Ls Motion to Withdraw. Document filed by Costas Kondylis &Partners, LLP. Return Date set for 5/13/2011 at 09:30 AM.(Albanese, Christopher) Modified on 4/19/2011 (ldi). (Entered: 04/18/2011)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 47 HAS BEEN REJECTED. Note to Attorney Christopher A. Albanese : THE CLERK'S OFFICE DOES NOT ACCEPT LETTERS FOR FILING, either through ECF or otherwise, except where the judge has ordered that a particular letter be docketed. Letters may be sent directly to a judge. (ldi) (Entered: 04/19/2011)
48 ENDORSED LETTER: addressed to Judge Richard M. Berman from Christopher A. Albanese dated 4/18/2011 re: Counsel for the defendants write that the following is respectfully being submitted as a formal application by CKP to join in

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04/27/2011 05/05/2011 05/13/2011 05/25/2011 06/09/2011 06/22/2011 06/28/2011

LM's pending Motion to withdraw from the Consent Decree. As this Court is aware, CKP entered into its proposed Consent Decree with separate terms and conditions based exclusively on the terms and conditions set forth in Ls proposed Consent Decree with the United States. Based upon Ls arguments and to the extent that LMseeks withdrawal from its Consent Decree, CKP similarly seeks to withdraw its consent to entry of the proposed Consent Decree with the United States. Therefore, to the extent the Court finds that LMbe permitted to withdraw from the proposed Consent Decree of its own accord or, in the alternative, that the Court decline to approve the Consent Decree, CKP similarly should be permitted to withdraw and proceed with the litigation.. ENDORSEMENT: See transcript of Proceedings dated 3/14/11 where the Court indicated that defendants motion should be "joint". It appears that the attached letter affects that the motion submitted by LMis a joint motion. So Ordered. (Signed by Judge Richard M. Berman on 4/19/11) (js) (Entered: 04/19/2011)
49 ENDORSED LETTER addressed to Judge Richard M. Berman from Brian M. Feldman dated 4/26/11 Re: The Government writes respectfully to request a one−week extension of the briefing schedule regarding defendants' motion to withdraw from the proposed consent decree. ENDORSEMENT: Extension(s) granted. The Court encourages the parties to achieve mutually acceptable resolution. So ordered. (Responses due by 5/6/2011. Replies due by 5/20/2011.) (Signed by Judge Richard M. Berman on 4/27/2011) (rjm) (Entered: 04/27/2011)
50 ENDORSED LETTER addressed to Judge Richard M. Berman from Sarah E. Light dated 5/4/2011 re: The Government respectfully requests that the Court permit the Government to file its opposition papers by 5/13/11, and the defendants to file their reply papers by 5/27/11. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge Richard M. Berman on 5/4/2011) (jfe) (Entered: 05/05/2011)
51 ENDORSED LETTER addressed to Judge Richard M. Berman from Li Yu dated 5/12/2011 re: Counsel requests an extension of time regarding the briefing schedule for defendants' motion to withdraw as follows: response due by 5/27/2011 and reply due by 6/10/2011. ENDORSEMENT: Application granted. Set Deadlines/Hearing as to 44 MOTION to Withdraw from the Consent Decree:( Responses due by 5/27/2011, Replies due by 6/10/2011.) (Signed by Judge Richard M. Berman on 5/12/2011) (tro) (Entered: 05/13/2011)
52 ENDORSED LETTER addressed to Judge Richard M. Berman from Brian M. Feldman dated 5/25/11 re: Request for an extension of time until June 10, 2011, to file the Government's response to the motion, with reply due by June 24, 2011. ENDORSEMENT: Application granted. So ordered. (Responses due by 6/10/2011. Replies due by 6/24/2011.) (Signed by Judge Richard M. Berman on 5/25/11) (rjm) (Entered: 05/26/2011)
53 ENDORSED LETTER addressed to Judge Richard M. Berman from Li Yu dated 6/8/11 re: We write respectfully to request an extension of the briefing schedule for defendants' motion to withdraw from the proposed consent decrees. ENDORSEMENT: Application granted. (Responses due by 6/21/2011. Replies due by 7/13/2011.) (Signed by Judge Richard M. Berman on 6/8/11) (rjm) (Entered: 06/09/2011)
54 ENDORSED LETTER addressed to Judge Richard M. Berman from Li Yu dated 6/20/2011 re: Counsel requests that the briefing schedule for defendants' motion to withdraw be adjourned indefinitely. ENDORSEMENT: The briefing schedule is suspended without prejudice. A status conference is scheduled for 6/30/11 at 10:00 a.m. (Status Conference set for 6/30/2011 at 10:00 AM before Judge Richard M. Berman.) (Signed by Judge Richard M. Berman on 6/21/2011) (tro) (Entered: 06/22/2011)
55 ENDORSED LETTER addressed to Judge Richard M. Berman from Christopher A. Albanese dated 6/28/2011 re: This office represents the Defendant Costas Kondylis &Partners, LLP ("CKP") in connection with the above referenced action. Due to prior commitment that this office cannot reschedule, we respectfully request that the conference presently scheduled for Thursday 6/30/2011 be adjourned to a date and time on or after 7/15/2011. The plaintiff and developer Defendants

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consent to this request. ENDORSEMENT: Application respectfully denied. (Signed by Judge Richard M. Berman on 6/28/2011) (mbe) (Entered: 06/28/2011)
Minute Entry for proceedings held before Judge Richard M. Berman: Status Conference held on 6/30/2011. Government submission is due 7/13/11. Status Conference set for 7/20/2011 at 11:00 AM before Judge Richard M. Berman. (ft) (Entered: 06/30/2011)
56 ENDORSED LETTER addressed to Judge Richard M. Berman from John M. Hadlock dated 7/12/11 re: We request, with the consent of the Government and the respondent Costas, Kondylis &Partners, LLP, that the deadline for the Government to submit the revised consent decree be extended from July 13, 2011, to July 22, 2011, and that the conference, which currently is scheduled for July 20, 2011, be rescheduled to a date after the submission of the revised consent decree that is convenient for the Court. ENDORSEMENT: Application granted. The status conference on 7/20/11 is adjourned to 8/8/11 at 9:15 a.m. So ordered. (Conference set for 8/8/2011 at 09:15 AM before Judge Richard M. Berman.) (Signed by Judge Richard M. Berman on 7/13/11) (rjm) (Entered: 07/14/2011)
57 ENDORSED LETTER: addressed to Judge Richard M. Berman from Brian M. Feldmen dated 7/21/2011 re: respectfully submit that the terms of these decrees are procedurally and substantively fair, further the purposes of the FHA's design and construction provisions, address the questions and concerns that the Court has raised, and allow the parties to achieve a consensual resolution of this matter without the expenditure of additional resources. Accordingly, on behalf of all parties, we respectfully request that the Court approve the Revised Developer Decree and the Architect Decree. ENDORSEMENT: As the parties have been advised, the Court is approving the consent decree (relating to the developer and the architect) as modified,following by the parties good job August 8 conference vacated. So Ordered. (Signed by Judge Richard M. Berman on 7/22/2011) (js) (Entered: 07/22/2011)
58 JUDGMENT CONSENT DECREE BETWWEN THE UNITED STATES OF AMERICA AND DEFENDANT LM93RD STREET LLC Settling action. (Signed by Judge Richard M. Berman on 7/22/11) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 07/25/2011)
59 JUDGMENT CONSENT DECREE BETWWEN THE UNITED STATES OF AMERICA AND DEFENDANT COSTAS KONDYLIS &PARTNERS, LLP Settling action. (Signed by Judge Richard M. Berman on 7/22/11) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 07/25/2011)
60 Letter addressed to Judge Richard M. Berman from Marvin Wasserman dated 11/12/2010 re: A proposed Consent Decree submitted by the parties on September 30, 2010. (lmb) (Entered: 07/26/2011)
61 STIPULATION AND ORDER EXTENDING CERTAIN DEADLINES IN AND THE DURATION OF CONSENT DECREE: It is hereby Stipulated, Agreed and Ordered that: 1. The following deadlines for performance by the Developer Defendants under the Consent Decree are hereby extended, nunc pro tunc, by 150 days: (A) The date by which the Developer Defendant must distribute the Reetrofit Notices, as set forth in paragraphs 7, 8, and 12 of the Consent Decree; (B) The date by which the Developer Defendant must publish the Aggrieved Persons Notice, place an electronic version of the Aggrieved Persons Notice on The Melar's website, and send a copy of the Aggrieved Persons Notice to the Fair Housing Justice Center, the United Spinal Association, and current and past residents of The Melar, in accordance wit paragraph 26, 27, 28, and 29 of the Consent Decree; (C) The date by which the Developer Defendant must comply with the requirements of the Educational Program, in accordance with paragraphs 38 and 40 of the Consent Decree; (D) The date by which the Developer Defendant shall comply with the requirements of the Non−Discrimination Policy provisions of the Consent Decree, as set forth in paragraph 46 of the Consent Decree; as further set forth in this Stipulation and Order. ENDORSEMENT: On consent. (Signed by Judge Richard M. Berman on 2/9/2012) (mro) Modified on 2/10/2012 (mro). (Entered: 02/10/2012)