Williams v. NYC Dep't of Homeless Servs.

Recitation per CPLR §§2219(a) and/or 3212(b) of papers considered on review of this motion: Papers Document Number Non E-File Plaintiff’s Order to Show Cause       1. dated June 15, 2022 Summons with Notice       2. dated January 25, 2022 Complaint  3. dated May 5, 2022 Affidavit of Service             4. dated May 18, 2022 Request for Judicial Intervention     5. dated June 15, 2022 DECISION/ORDER Upon the forgoing cited papers and after oral argument on February 22, 2023, pursuant to CPLR §§308 and 3013, the Decision and Order on Plaintiffs Nash and Linda Williams’ (“Plaintiffs”) Order to Show Cause (“OSC”) seeking $ 400,000.00 in damages against Defendant Department of Homeless Services (“DHS”), is as follows: Plaintiffs’ OSC is DENIED as it was not properly served on Defendant in accordance with CPLR §308; and on the face of the papers, it is deficient and not in accordance with CPLR §3013. BACKGROUND Plaintiffs Nash and Linda Williams were residents of multiple shelters and housing programs in New York City from August 9, 2019 to August 1, 2020. They brought this action against DHS as their landlord for the timeframe Plaintiffs lived in DHS shelters. Specifically, Plaintiffs assert eight claims against Defendant DHS alleging violation the American Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and the New York City Human Rights Law (“NYCHRL”): 1. disability discrimination in violation of the ADA; 2. retaliation in violation of the ADA; 3. racial harassment in violation of Title VII; 4. retaliation in violation of Title VII; 5. racial harassment in violation of NYCHRL; 6. disability discrimination in violation of NYCHRL; 7. refusal and failure to engage in cooperative dialogue in violation of NYCHRL; and 8. retaliation in violation of NYCHRL. Plaintiffs aver Defendant DHS discriminated against them as a result of their request for a reasonable accommodation, described in Plaintiffs’ complaint as a request for a “kitchen with a fridge and freezer” that was denied while they were residing at the Praxis Third Ave Shelter in June 2020. Plaintiffs claim that the denial of said request, coupled with the experiences they had “from the time spent in the DHS system,” resulted in psychological and physical trauma for the Plaintiffs. DISCUSSION First, the Court must address the lack of proper service on Defendant DHS in violation of CPLR §308. The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with.¹ CPLR §308 provides the methods of service suitable to constitute service, which includes personal service, service by mail, and other acceptable methods. Here, Plaintiffs failed to comply with CPLR §308 or the express terms of the OSC because they did not serve the OSC on Defendant DHS in any method required by §308 or by the express terms of the OSC, which required service on the Defendant DHS on or before September 1, 2022. An affidavit of service was to be presented to the Court by September 14, 2022. Plaintiffs did submit an affidavit of service dated May 18, 2022, that confirmed service of the summons with notice and complaint; however, there is no record of the Plaintiffs submitting an affidavit of service confirming that the OSC was served on the Defendant by September 14, 2022. Therefore, the Plaintiffs failed to properly serve the OSC on the Defendant, and for that reason alone, the OSC must be denied. Second, even if Plaintiffs’ OSC survived the service requirement, the Court finds their OSC to be substantively deficient. CPLR §1303 requires that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Plaintiffs’ papers are lacking because they only include conclusory allegations that Defendant DHS violated the ADA, Title VII, and the NYCHRL by engaging in discrimination and retaliation against Plaintiffs. For example, Plaintiffs fail to specify their disabilities, they fail to name specific individuals who discriminated against them, and they fail to name dates of when the specific discrimination took place. Such conclusory allegations fall short of CPLR §3013 compliance. The established test of sufficiency of a complaint is whether it gives sufficient notice of these transactions or occurrences intended to be proved and whether the requisite elements of any cause of action can be discerned from its allegations.² Courts have been clear that alleged facts in pleadings must sufficiently particularize claims of discrimination under the ADA, Title VII, and NYCHRL.³ Here, while Plaintiffs included generalized statements of the elements for each of the claims in their complaint, they failed to allege facts sufficiently particularizing these claims of discrimination under the ADA, Title VII and NYCHRL. Plaintiffs failed to allege particularized facts meeting each element. For example, in order to plead a violation of disability discrimination under Title II of the ADA, a plaintiff must allege that (1) they are a qualified individual with a disability; (2) the defendant is subject to the ADA; and (3) they were denied the opportunity to participate in or benefit from defendant’s services, programs, or activities, or otherwise discriminated against by defendants by reason of their disability.⁴ In terms of the failure to accommodate, a plaintiff must plead facts to establish that they were denied meaningful access to services, programs, or activities to which they were legally entitled.⁵ Plaintiffs’ statements of claims do not allege particularized facts that they are qualified individuals with a disability nor statements particularizing what disability they have that are being discriminated. Plaintiffs’ second claim in their statement of claims asserts “we did not have the right accommodations to provide proper care for Mrs. Williams (kitchen for specific nutritional needs, fridge and freezer to store medications and ice packs),” but this only alludes to some medication for the care of one Plaintiff and does not particularize facts identifying her as a qualified individual with a disability. Similarly, the Plaintiffs make only conclusory claims that they were denied reasonable accommodation because of their alleged disabilities, but insufficient statement(s) regarding whether Defendant DHS is subject to the ADA and if so, how Defendant violated the same. As in Sikorsky, in the instant matter, Plaintiffs’ self-proclaimed, vague and conclusory allegations that they are disabled within the meaning of the ADA, and such disabilities prevented them from receiving a reasonable accommodation in the form of a fridge and freezer for medications, are insufficient to state a cause of action under the ADA.⁶ Similarly, the Plaintiffs’ OSC must be denied as to their various claims under Title VII and NYCHRL for discrimination and retaliation, as they also fail to allege facts sufficiently particularized to support these claims in their complaint. Under Title VII, absent direct evidence of discrimination, plaintiffs must include allege facts to support that they: (1) are a member of a protected class; (2) suffered an adverse employment action; and (3) have at least minimal support for the claim that the employer was motivated by discriminatory intent; likewise for the elements of discrimination under the NYCHRL.⁷ Here, there are no facts alleged in Plaintiffs’ complaint showing that they are a member of a protected class nor that they are employees of Defendant DHS, so they cannot claim they suffered an adverse employment action. Comparably, Plaintiffs’ complaint also fails to allege facts sufficiently particularizing claims for retaliation under Title VII and NYCHRL. To sustain retaliation claims, plaintiffs must allege facts that: (1) they participated in a protected activity known to defendant; (2) defendant took an action that disadvantaged them; and (3) a causal connection exists between the protected activity and the adverse action.⁸ Here, there are no particularized facts alleged in Plaintiffs’ complaint that they participated in a protected activity known to DHS, nor that a causal connection exists between an alleged protected activity and DHS’s adverse action. Plaintiffs failed to provide sufficient facts in their complaint to sustain an action of discrimination against a residential program for denying housing accommodation. In Wilson v. Phoenix House, 42 Misc. 3d 677 (Sup. Ct., Kings County 2013), a transgender resident of a treatment program sued the program for gender discrimination under NYCHRL §8-107(5)(a), which provides, in relevant part, that it is unlawful for the owner, lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental, or lease of a housing accommodation, to discriminate against someone based on their race, creed, national origin, gender, age, disability, sexual orientation, etc.⁹ Contrary to the case at bar, the Wilson plaintiff clearly stated in the complaint the NYCHRL section for which they sought relief.¹⁰ Further, the Wilson complaint included other particularized facts that tied defendant to the gender discrimination claim, including that one of the defendants, the director of the induction unit of the program, asked whether plaintiff’s hair was “real,” forced the plaintiff to sit with men during required meetings, denied plaintiff’s request to participate in a gender-specific women’s support group and said plaintiff should never have been given permission in the first place, and made the decision to transfer the plaintiff.¹¹ Here, Plaintiffs do not state in their complaint the NYCHRL or the ADA sections from which they seek relief, nor do they include particularized facts specifying how Defendant DHS discriminated or retaliated against them, in accordance with the material elements of those claims. On the other hand, an example where plaintiffs failed to particularize facts to sustain an action of discrimination against a residential program for denying a housing accommodation was outlined in Barker v. Women in Need, Inc., 20-CV-2006 (LLS), 2020 WL 1922633 (S.D.N.Y. 2020) where a self-represented plaintiff brought claims of gender discrimination under the ADA against defendant after residing at their shelter. That Court dismissed plaintiff’s claims because her disability was gender identity disorder, which is excluded from protection under the ADA. Id. at 2. The Court explained that plaintiff did not allege any other facts suggesting that she had a disability that would entitle her to protection under the law and so her claims had to be dismissed for failure to state a cause of action. Id. Here, the Plaintiffs have failed to describe their disability at all, leaving no possible avenue for the court or the Defendant to discern what the disability is and if it is protected by the ADA or NYCHRL. Therefore, Plaintiffs’ OSC must be denied because it was not properly served on the Defendant in accordance with CPLR §308; and even if it were, it is deficient on the face of the papers, as it is not in accordance with CPLR §3013 in alleging particularized facts. This constitutes the Decision and Order of the Court. Dated: May 22, 2023