Schoengood v. Hofgur LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BRYAN SCHOENGOOD, ANNETTA KING

SIMPSON and WILLIE ROLAND,

Plaintiffs,

MEMORANDUM AND ORDER

-against- 20-CV-2022 (KAM)

HOFGUR LLC D/B/A QUEENS ADULT CARE

CENTER, and GEFEN SENIOR CARE GROUP,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

On May 4, 2020, Plaintiffs Bryan Schoengood, Annetta

King Simpson, and Willie Rolland (collectively “plaintiffs”), on

behalf of themselves and those similarly situated, commenced

this action against Defendants Hofgur, LLC d/b/a Queens Adult

Care Center (“QACC”) and Gefen Senior Care Group (“Gefen”)

(collectively “defendants”), seeking declaratory and injunctive

relief pursuant to Title III of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. §§ 12101 et seq. and Section 504 of the

Rehabilitation Act (“RA”), 29 U.S.C. §§ 701 et seq. Plaintiffs

allege that defendants have permitted “substandard conditions in

an assisted living facility that primarily houses disabled

individuals with physical or mental impairment[s]” during the

COVID-19 pandemic. (ECF No. 1, Complaint (“Compl.”) at ¶ 7.)

Presently before the court are the defendants’ motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

(“Rule 12(b)(6)”) for failure to state a claim, (ECF No. 36,

Motion to Dismiss), plaintiffs’ memorandum of law in opposition

to defendants’ motion to dismiss, (ECF No. 37, Memorandum in

Opposition (“Pl. Opp.”)), and defendants’ reply in support of

the motion to dismiss. (ECF No. 38, Reply.) Defendants’ motion

to dismiss is granted as set forth below.

BACKGROUND

I. Facts

In considering the defendants’ Rule 12(b)(6) motion,

the Court accepts as true the following facts alleged in

plaintiff’s complaint. (See generally Compl.) Defendant Gefen

owns Defendant QACC, an assisted living facility in Elmhurst,

New York. (Compl. at ¶¶ 33-35.) QACC is marketed as a “home

for old, sick, or mentally ill New York residents,” and has a

350-bed capacity. (Id. ¶ 3.) Of the 350 beds, 200 are reserved

for “assisted living program beds.” (Id.) Plaintiffs qualify

as “assisted living” residents because they are disabled, but do

not “require nursing home care around the clock.” (Id. ¶ 5.)

Plaintiffs are limited in their abilities, such as, “taking

medication, housekeeping, laundry, dressing, bathing, toileting,

hygiene, food preparation, and transportation.” (Id. ¶ 4.)

Plaintiffs generally allege that QACC failed to provide “the

most basic level of care to safeguard their health and safety in

the context of a global health pandemic.” (Id. ¶ 7.)

Specifically, plaintiffs allege that defendants have

violated the ADA and RA by failing to comply with regulations

and guidelines provided by the Centers for Disease Control and

Prevention (“CDC”) and the Department of Health and Human

Services Centers for Medicare and Medicaid Services (“CMS”),

which has led to a rapid increase in COVID-19 cases at the

facility. (Id. ¶ 58.) This lack of adherence to the guidelines

has posed a “grave health risk” to most of the population at

QACC who suffer from an underlying disability. (Id. ¶ 65.) The

residents are kept in close proximity to one another and cannot

“achieve ‘social distancing.’” (Id. ¶ 66.) Rather than impose

strict regulations on the residents, QACC has only provided

“instructions framed as voluntary requests that are often

ignored,” especially by those residents with disabilities. (Id.

¶ 68.) Additionally, the facility has not implemented a

protocol to test and screen for COVID-19 symptoms, nor has QACC

provided or enforced the use masks and other protective gear.

(Id. ¶¶ 69, 74.) QACC has also failed to transfer residents

that have COVID-19 to the hospital or to another facility to

prevent transmission. (Id. ¶ 97.) As of May 4, 2020, the

filing date of the complaint, more than ten residents had died

from COVID-19. (Id. ¶ 82.)

Plaintiffs contend that QACC has “demonstrated a

pattern of reckless disregard for the well-being of its

residents and the applicable guidelines in place to prevent and

control the spread of COVID-19.” (Id. ¶ 85.) Specifically,

plaintiffs allege that defendants have failed to “accommodate

its disabled residents in the context of the COVID-19 pandemic.”

(Id. ¶ 86.) The three named plaintiffs in the complaint all

suffer from disabilities, placing them at “greater risk for

serious illness or death if infected by COVID-19.” (Id. ¶ 102.)

Mr. Schoengood, a long-term resident, suffers from paranoid

schizophrenia, making him “unable to understand the risk of

COVID-19 and [adhere to] the necessary precautions to prevent

the disease.” (Id. ¶ 103.) Ms. Simpson and Mr. Roland

contracted COVID-19 and allege that they were “critically

vulnerable to COVID-19 because of [their] disabilit[ies].” (Id.

¶¶ 104-105.) Ms. Simpson suffers from cardiovascular disease,

diabetes, and hypertension, (Id. ¶ 104), and Mr. Roland suffers

from chronic obstructive pulmonary disease and diabetes, has a

cardiac valve pump, and is legally blind. (Id. ¶ 105.) Ms.

Simpson provided care to Mr. Roland during his bout with COVID-

19 because “QACC providers and staff would not assist or even

enter the rooms of those residents who were suspected as having

COVID-19.” (Id. ¶ 104.)

II. Procedural History

On May 4, 2020, plaintiffs filed their complaint

against the defendants alleging violations of Title III of the

ADA and Section 504 of the RA. (ECF No. 1, Compl.) On May 8,

2020, plaintiffs filed a letter requesting a pre-motion

conference for leave to file a motion for a preliminary

injunction. (ECF No. 7, Letter Motion for Pre-Motion

Conference.) This court held a pre-motion conference on May 19,

2020, directing the parties to engage in discovery and perform

an investigation as to whether QACC has been complying with

COVID-19 safety protocols. (ECF No. 42, Official Transcript of

Proceedings held on May 19, 2020.)

On May 29, 2020, the parties filed a joint status

report stating that they had “conferred and continue to have

ongoing discussions regarding the management, operations,

policies, procedures and conditions at Queens Adult Care Center

facility.” (ECF No. 19, Joint Status Report.) Plaintiffs

requested documents from defendants after the pre-motion

conference, but there was a dispute between the parties as to

whether defendants had complied with these requests. (Id.) On

June 1, 2020, Magistrate Judge Ramon E. Reyes Jr. issued a

protective order, stipulated to and agreed to by the parties,

protecting the confidentiality of nonpublic and competitively

sensitive information. (ECF No. 19-1, Proposed Confidentiality

and Protective Order; Dkt. Order, 6/1/2020.)

On July 15, 2020, this court issued a scheduling order

in light of defendants’ proposed motion to dismiss. (Scheduling

Order, 7/15/2020.) Defendants filed their motion to dismiss on

October 14, 2020. (ECF No. 36, Motion to Dismiss.) Plaintiffs’

memorandum in opposition and defendants’ reply to plaintiffs’

memorandum were also filed on October 14, 2020. (ECF Nos. 37

and 38.)

LEGAL STANDARD

When considering a motion to dismiss under Rule

12(b)(6), a district court must “accept as true all factual

statements alleged in the complaint and draw all reasonable

inferences in favor of the non-moving party.” McCarthy v. Dun &

Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation

omitted). In considering a 12(b)(6) motion, the court may refer

to “documents attached to the complaint as an exhibit or

incorporated in it by reference, to matters of which judicial

notice may be taken, or to documents either in plaintiffs’

possession or of which plaintiffs had knowledge and relied on in

bringing suit.” Brass v. Am. Film Tech., Inc., 987 F.2d 142,

150 (2d Cir. 1993) (internal citations omitted); see also

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 1993)

(clarifying that “reliance on the terms and effect of a document

in drafting the complaint is a necessary prerequisite to the

court’s consideration of a document on a dismissal motion; mere

notice of possession is not enough.”) (emphasis in original).

To survive a motion to dismiss pursuant to Rule

12(b)(6), a complaint must contain sufficient factual matter,

accepted as true, to “‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

conduct alleged.” Id.

DISCUSSION

I. Legal Standard under the Americans with Disabilities Act

and Rehabilitation Act

Both the ADA and RA “prohibit discrimination against

qualified disabled individuals by requiring that they receive

reasonable accommodations that permit them to have access to and

take a meaningful part in public services and public

accommodations.” Powell v. National Bd. of Med. Exam’rs, 364

F.3d 79, 85 (2d Cir. 2004)(citations and quotation marks

omitted). To analyze the sufficiency of claims brought under

the ADA and RA, the Second Circuit employs a three-part test.

Id. Plaintiff must demonstrate that (1) he is a “qualified

individual” with a disability; (2) that the defendants are

subject to the ADA and Rehabilitation Act; and (3) that

plaintiff was denied the opportunity to participate in or

benefit from defendants' services, programs, or activities, or

were otherwise discriminated against, by reason of a plaintiff's

disabilities. Id. at 85.

In order to satisfy the third prong as to whether

there was discrimination, three theories of liability are

plausible: “disparate treatment, disparate impact, or failure to

make a reasonable accommodation.” Fulton v. Goord, 591 F.3d 37,

43 (2d Cir. 2009). Defendants have a presumptive obligation to

provide “reasonable accommodations” to individuals with

disabilities. Consequently, a covered entity’s failure to

provide such accommodations will be sufficient to satisfy the

third element. See 42 U.S.C. § 12182(b)(2)(a)(ii); Powell, 364

F.3d at 85. The question of whether a proposed accommodation is

reasonable is fact-specific and must be evaluated on a case-by-

case basis. Kennedy v. Dresser Rand Co., 193 F.3d 120, 122 (2d

Cir. 1999)

Title III of the ADA allows for injunctive relief, but

not damages. Powell, 364 F.3d at 86. The Rehabilitation Act

allows for the recovery of damages, provided that the plaintiff

shows that the statutory violation resulted from “deliberate

indifference” to the rights secured by the Rehabilitation Act.

Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d

98, 115 (2d Cir. 2001). Plaintiff must also show that

defendants received federal funding in order to establish a

violation under the RA. Doe v. Pfrommer, 148 F.3d 73, 82 (2d

Cir. 1998). Because the standards adopted by [Title III] are,

in most cases, “the same as those required under the

Rehabilitation Act,” the Court considers these claims together.

Powell, 364 F.3d at 85. (citation omitted).

Plaintiffs are “qualified individuals” with

disabilities under the RA and ADA, (Compl. ¶¶ 29-31), and the

QACC’s programs and activities “are financed by Medicare and

Medicaid among other federal funding programs.” (Compl. ¶ 183.)

Thus, the issues in dispute are whether plaintiffs have

sufficiently stated that they have been discriminated against

because of their disabilities and whether plaintiffs have failed

to identify any reasonable accommodation that they requested but

were denied because of the plaintiffs’ disabilities.

II. Disparate Impact

Plaintiffs contend that they have pled sufficient

facts to show disparate impact. (Pl. Opp. at 18-19.) In order

to show disparate impact plaintiffs must demonstrate “(1) the

occurrence of certain outwardly neutral practices, and (2) a

significantly adverse or disproportionate impact on persons of a

particular type produced by the defendant’s facially neutral

acts or practices.” Tsombanidis v. W. Haven Fire Dep't, 352

F.3d 565, 574–75 (2d Cir. 2003) (emphasis omitted), superseded

on other grounds by regulation as stated in Mhany Mgmt., Inc. v.

County of Nassau, 819 F.3d 581, 619 (2d Cir. 2016); B.C. v.

Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016).

According to plaintiffs’ complaint, as COVID cases

began to rise in 2020, QACC began to implement instructions for

residents with respect to “hygiene, safety isolation, or

separation.” (Compl. at ¶ 68.) The instructions were voluntary

and the QACC did not implement a “protocol . . . for

comprehensive testing or screening of residents or staff for

cough, fever, and respiratory symptoms.” (Id. at ¶ 69.) Nor did

defendants “identify or isolate those residents who are

particularly susceptible or vulnerable to COVID-19 because of

their disabilities” (Id. at ¶ 70). Additionally, the facility

failed to enforce social distancing among the residents who were

“permitted to congregate in large groups and at close distances

. . . often without the proper use of facemasks and without

enforcement of social distancing.” (Id. at ¶¶ 72-73). At the

time the complaint was filed, there was also an “absence of

protocol for prompt transfer to a hospital” and QACC staff were

allowing residents to freely travel outside of the facility

which put “residents with disabilities including mental

illnesses at a particularly heightened risk because of their

inability to comprehend the grave and urgent need for self-

quarantine.” (Id. at ¶¶ 76, 79). These instructions, or lack

thereof, are “outwardly neutral,” as they are directed to all

residents at QACC, thus plaintiffs have established the first

prong of the disparate impact test. Tsombanidis v. W. Haven

Fire Dep't, 352 F.3d 565, 574–75 (2d Cir. 2003).

Defendants contend that plaintiffs have failed to

demonstrate “a significantly adverse or disproportionate impact

on persons of a particular type produced by the defendant’s

facially neutral acts or practices.” Id. Specifically,

defendants argue that plaintiffs have not “identified members of

a particular, clearly-defined protected group that are

negatively affected by QACC’s neutral policies.” (Def. Mem. at

9.) Additionally, defendants note that plaintiffs have pleaded

facts that impact all residents of QACC and that “without a

comparative component, plaintiffs simply do not state a

disparate impact claim.” (Id. at 10.) Plaintiffs alternatively

argue that there are two separate disabled groups at QACC, the

Assisted Living Program (“ALP”) residents and the psychiatric

residents, and there is a “natural comparison group” which

includes those residents who are not in either of the disabled

categories. (Pl. Opp. at 19.) The court agrees with defendants

that plaintiffs have not demonstrated a disparate impact.

“The basis for a successful disparate impact claim

involves a comparison between two groups – those affected and

those unaffected by the facially neutral policy. This

comparison must reveal that although neutral, the policy in

question imposes a significantly adverse or disproportionate

impact on a protected group of individuals.” Wilson v. New

York, No. 15-CV-23, 2017 WL 9674497, at 15 (E.D.N.Y. Jan. 24,

2017) (internal quotation marks omitted), report and

recommendation adopted, 2018 WL 1466770 (E.D.N.Y. Mar. 26,

2018). “Oftentimes, disproportionate impact is demonstrated

through the use of statistics.” Valdez v. Town of Brookhaven,

No. 05-CV-4323, 2005 WL 3454708, at 13 (E.D.N.Y. Dec. 15, 2005).

Plaintiffs have not alleged a plausible set of facts

showing that defendants’ facially neutral acts or practices

caused significantly adverse or disproportionate impact on

persons in either of the two allegedly disabled groups:

residents in the assisted living program, or psychiatric

residents. The conduct of which plaintiffs complain – that

defendants have not properly handled the COVID-19 outbreak at

QACC – is a facility-wide issue with impacts on all residents.

The court agrees with defendants’ observation that plaintiffs

“repeatedly allege that COVID-19 threatens all residents of

QACC,” (Def. Mem. at 10), and that the allegations are a

“broadside challenge to QACC’s COVID-19 policies that impact

everyone.” (Id.) Plaintiffs acknowledge that they have not

specified “exactly how the members of each group are being

affected by COVID-19,” (Pl. Opp. at 19), but it is unclear

whether this information, if available, would even support

plaintiffs’ claim. Plaintiffs have combined all assisted living

residents with every kind of disability into their proposed

class. Statistical evidence on COVID-19’s impact on those

disabled residents and evidence pertaining to those non-disabled

residents would likely not provide probative value nor show a

disparate impact of the facility’s policies on disabled

residents because the proposed disabled class is so large and

diverse. Because the complaint contains little to no facts

rendering plausible plaintiffs’ conclusory claim of a neutral

policy that has a disparate impact on a protected group,

plaintiffs’ disparate impact claims under the ADA and RA against

defendants are dismissed.

III. Reasonable Accommodation

Defendants argue that plaintiffs have failed to

identify any reasonable accommodation that is needed by reason

of their disabilities. Under both the ADA and the RA, “a

defendant discriminates when it fails to make a reasonable

accommodation that would permit a qualified disabled individual

‘to have access to and take a meaningful part in public

services.’” McElwee v. Cty. of Orange, 700 F.3d 635, 640-641

(2d Cir. 2012) (quoting Powell, 364 F.3d at 85, and citing 42

U.S.C. § 12112(b)(5)(A) (the term “discriminate” under the ADA

includes “not making reasonable accommodations to the known

physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employee”)).

“‘A reasonable accommodation is one that gives the otherwise

qualified plaintiff with disabilities meaningful access to the

program or services sought.’” Id. (quoting Henrietta D. v.

Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003)).

Defendants primarily argue that plaintiffs have failed

to state an ADA claim because plaintiffs did not allege that

they notified the defendants of their disabilities, specified a

requested accommodation, nor did plaintiffs explain why

modification of the defendants’ policy or practice was required

prior to commencing this action. (Def. Mem. at 11; citing

Shaywitz v. Am. Bd. of Psychiatry & Neurology, 848 F. Supp. 2d

460, 466 (S.D.N.Y. 2012).) It is true that “notice of the

alleged disability ... is an assumed prerequisite” of a Title

III claim for failure to make reasonable accommodations.

Shaywitz v. Am. Bd. of Psychiatry & Neurology, 848 F. Supp. 2d

460, 466 (S.D.N.Y. 2012); see also McBride v. BIC Consumer

Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009) (listing notice

as a required element of a failure to accommodate claim in an

employment discrimination case). A “plaintiff must show that

defendants had notice of her disability ... [and] has the

initial duty to inform the [defendant] of a disability before

ADA liability may be triggered for failure to provide

accommodations.” Thompson v. City of New York, No. 98 Civ.

4725, 2002 WL 31760219, at 7 (S.D.N.Y. Dec. 9, 2002).

Additionally, as the court noted in Shaywitz v. Am. Bd. of

Psychiatry & Neurology, “Title III’s requirement that private

entities make ‘reasonable accommodations’ for disabled

individuals would be rendered meaningless if the entity had no

basis for knowing (1) what accommodations the examinee was

seeking, and (2) whether those accommodations were reasonable in

light of the disability and the test.” 848 F. Supp. 2d 460, 467

(S.D.N.Y. 2012). Plaintiffs have complied with the inherent

requirement under Title III of notifying defendants of their

disability, but nowhere in the complaint do plaintiffs mention

notifying defendants prior to commencing this action of their

requested accommodations. (See generally Compl.)

Plaintiffs reside at QACC because they “are elderly or

dependent individuals with disabilities and associated care

needs.” (Compl. at ¶ 4.) The named plaintiffs’ disabilities

vary amongst them, and include schizophrenia, chronic and severe

cardiovascular disease, and legal blindness. (Compl. at ¶¶ 103-

105.) QACC is “one of the largest assisted living facilities in

the State of New York.” (Compl. at ¶ 9.) The residents of QACC

receive assisted living benefits because they “[a]re medically

eligible for nursing home care. However, their functional

ability . . . [is not] so limiting that they require nursing

home care around the clock.” (Compl. at ¶ 2.) It is plainly

understood that in qualifying for assisted living and being

residents at QACC, plaintiffs suffer from some type of

disability. However, despite defendants being on notice of

plaintiffs’ disabilities, they were not on notice regarding

plaintiffs’ requested accommodations, which inherently

invalidates the reasonable accommodation claim. See Shaywitz v.

Am. Bd. of Psychiatry & Neurology, 848 F. Supp. 2d 460, 466

(S.D.N.Y. 2012).

Defendants further contend that “plaintiffs do not

seek any reasonable accommodation that is connected to any

particular disability.” (Def. Mem. at 14.) Plaintiffs’

proposed accommodations include “modifications of QACC’s

polices, practices, and procedures to ensure immediate and

strict compliance with applicable regulations and guidelines

from CDC, CMS, 42 C.F.R. § 483, and New York Department of

Health governing nursing homes and assisted living facilities

with regard to the control and prevention of COVID-19,” along

with the appointment of a Special Master “to help bring

QACC’s response to the coronavirus in line with the mandates of

ADA and RA.” (Pl. Opp. at 22-24.)

“The ADA mandates reasonable accommodation of people

with disabilities in order to put them on an even playing field

with the non-disabled; it does not authorize a preference for

disabled people generally.” Felix v. N.Y.C. Transit Auth., 324

F.3d 102, 107 (2d Cir.2003). The court agrees with defendants

that plaintiffs have failed to articulate the nexus between the

disabilities allegedly suffered by the QACC residents and the

proposed accommodations.

In Felix v. N.Y.C. Transit Auth., the plaintiff

suffered from insomnia and asked for a workplace accommodation

which would allow for her to not work in the subway because she

was “terrified of being alone and closed in.” 324 F.3d 102, 107

(2d Cir.2003). The court determined that “the impairment for

which Felix seeks an accommodation does not arise because of the

disability. If the requested accommodation addressed a

limitation caused by Felix’s insomnia, it would be covered by

the ADA.” Id. Similarly here, plaintiffs have failed to

articulate a connection between all of the plaintiffs’

collective disabilities and the accommodations sought. Mr.

Schoengood is the only named plaintiff that suffers from a

mental disability, which causes an “apparent lack of

comprehension and self-awareness regarding the risk of COVID-19

infection and consequences.” (Compl. at ¶ 75.) Conversely, Ms.

Simpson and Mr. Roland appear to suffer from physical

disabilities, and it is unclear how all of the plaintiffs’

disabilities warrant similar accommodations because of their

disabilities, rather than all QACC residents warranting the same

changes to the COVID-19 protocols at the facility. Therefore,

plaintiffs’ reasonable accommodation claims under the ADA and RA

against defendants are dismissed.

CONCLUSION

For the reasons set forth above, the plaintiffs’

disparate impact and reasonable accommodation claims pursuant to

the ADA and RA are dismissed. It is “well established that

leave to amend a complaint need not be granted when amendment

would be futile.” Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.

2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); see

also Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126

(2d Cir. 2008) (“[M]otions to amend should generally be denied

in instances of futility.”) Amendment would be futile because

of the broad nature of disabilities suffered by the proposed

class and the failure to articulate a nexus between the

disabilities and the reasonable accommodations requested. The

Clerk of Court is respectfully directed to enter judgment in

favor of defendants and close the case. SO ORDERED.

Dated: May 12, 2021

Brooklyn, New York

_________/s/_________________

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York