Opinion
104359/07.
Decided March 27, 2008.
Plaintiffs, individuals with disabilities who live at defendant Lakeside Manor Home for Adults, Inc. move by show cause for an order pursuant to CPLR Article 63 preliminarily enjoining defendants, their agents, servants, employees, and associates from (1) retaliating against them in terms, e.g., of their accommodation, transfer, hospitalization, over-or under-medication, harassment, or other interference with their personal rights and needs during the pendency of this action, and (2) engaging them in conversation regarding the substance of this action or any matters incident thereto. In addition, movants ask that the requirement that plaintiffs file an undertaking pursuant to CPLR section 6312 be waived.
Lakeside Manor Home for Adults, Inc. and Lakeside Manor Homes for Adults, Inc. (hereinafter collectively, "Lakeside").
During oral argument, this Court questioned the harm, if any, to Lakeside should the ultimate relief be granted and the facility was directed to install two (2) additional public telephones. The parties have submitted additional papers after the motion was marked "Decision Reserved"on this issue.
Defendants oppose the motion. Pending the determination of this motion, this temporary restraining order remains in effect.
In their complaint, plaintiffs allege causes of action for (1) breach of contract, (2) breach of the warranty of habitability and (3) violation of the Fair Housing Act. Underlying each of these causes of action is the allegation that an insufficient number of public telephones (two) have been installed for the use of the 200 or so residents at Lakeside. Plaintiffs maintain that at least one telephone capable of making outside calls must be provided for every 40 residents, or portion thereof. In addition, plaintiffs contend that Lakeside has discriminated against its residents by requiring them to pay fifty ($.50) cents for every telephone call made to a toll-free number from the only two extant telephones. It is plaintiffs' contention that insufficient telephone access and the charge for calling toll-free numbers interferes with their ability to communicate privately with (1) friends and family members, (2) healthcare service providers, (3) attorneys and other advocates, (4) governmental agencies such as the United States Social Security Administration, the New York State Department of Health, police and fire departments, (5) banks and other financial institutions, and (6) ambulances and other transportation providers. Additionally, it is alleged that both of the public telephones available at Lakeside are frequently out of service.
In support of the preliminary injunction, plaintiffs rely upon an attorney's affirmation, as well as the affidavits of two of the four resident-plaintiffs, Barry Green and Philip Noonan. In the residents' affidavits, plaintiffs claim, in general terms, that they are not being respected; that they are being treated in an abusive manner; and that they fear retribution if complaints are made against the institution. Surprisingly, no mention of prior reprisals is made in either affidavit, nor is the purported need for more public telephones discussed. Plaintiffs' attorney's affirmation contains the hearsay complaints of other residents, who are alleged to be fearful "that, upon [the] filing [of] this lawsuit, the owners, administrators and/or their employees and staff people will retaliate against them by withholding their medication, food, and other essential services".
In opposition, Lakeside has submitted the affidavit of Sander Lustig, one of its principals, who states that as an adult care facility, Lakeside is extensively regulated by the New York State Department of Health, and that any retaliatory conduct against its residents would expose the facility to disciplinary charges and/or the loss of its operating certificate. With respect to the application for an injunction, Lakeside offers several reasons why it should be denied. First, it is claimed that there is no private cause of action for enforcement of a Health Department regulation. Second, it is alleged that the residents, who can sue only on their own behalf, lack any individual right of access to a public telephone. Third, Lakeside contends that it has not violated any regulation, since a significant number of its residents have their own cell phones, while others lack the capacity to make telephone calls because of their disabilities. Fourth, it is claimed that there are other telephones available on site, and that the residents are able to receive private telephone calls in their rooms. Fifth, it is alleged that the cited regulation does not require that "public pay telephones" be made available. Sixth, Lakeside contends that plaintiffs' claims regarding inadequate telephone access have been fabricated, and that affiant has "never heard of any of these plaintiffs seeking to use a telephone and not having access to one". Seventh, and lastly, it is argued that the continuance of the temporary restraining order or the issuance of a preliminary injunction will not only place residents at risk, but would represent an abuse of the legal system.
In reply, plaintiffs contend that since the lawsuit is based upon Lakeside's alleged breach of contract, the warranty of habitability and violation of the Fair Housing Act, a private right of action does exist for each of their claims. In addition, it is argued that plaintiffs' claims cannot be properly addressed in administrative proceedings before the Department of Health. Finally, plaintiffs argue that Lakeside's claim that an injunction would prevent it from hospitalizing and/or transferring residents in need of enhanced medical care is erroneous and based upon a mischaracterization of the relief sought.
It is familiar law that a preliminary injunction represents a drastic remedy which should only be granted upon the movant's demonstration of a clear legal right to the relief demanded based upon undisputed facts ( see Gagnon Bus Co., Inc. v. Vallo Transp., Ltd., 13 AD3d 334, 335; Blake Agency v. Leon, 283 AD2d 423, 424). This includes a demonstration of (1) movant's likelihood of success on the merits; (2) the prospect of irreparable injury, and (3) a balancing of the equities in the movant's favor ( Coby Group LLC v. Hasenfeld, 46 AD3d 593).
In the instant case, the court finds the plaintiffs have satisfied the requisite criteria. Though, it is not readily apparent whether the alleged failure to provide more pay telephones constitutes a breach of contract or the warranty of habitability, or that it violates the Fair Housing Act, this court finds such a request to be de minimus. It is the court's understanding that defendants merely have to make a request from Verizon to install two (2) more pay telephones. Expenditures, if any, should be minimal by the defendants. Conversely, the plaintiffs, as well as the other two hundred (200) residents may be severely affected. Many of these residents are mentally challenged and/or disabled and their need to communicate with their families, advisors, healthcare providers, etc. is essential to their well-being, the lack of which could cause irreparable harm. The court sees no prejudice to the defendants. If the installation of two (2) additional pay phones causes prohibitive cost or other prejudice to the defendants, this court grants them leave to request redress. Further, as agreed, the defendants will no longer charge for toll free telephone calls.
At this time, the plaintiffs have not alleged acts of prior reprisals, however, should the defendants fail to provide necessary services, medical or otherwise, a prompt complaint to either this Court or the Department of Health should provide plaintiffs with an expeditious remedy.Accordingly, it is
ORDERED that plaintiffs' application for a preliminary injunction is granted; and it is further
ORDERED that the temporary restraining order presently in effect is incorporated into the preliminary injunction. .