Makhnevich v. Bougopoulos et al

Filing 86

ORDER terminating 49 Motion for Summary Judgment; terminating 49 Motion to Dismiss for Failure to State a Claim; terminating 49 Motion to Dismiss; finding as moot 62 Motion for Leave to File; denying 73 Motion to Amend/Correct/Supplement. For the reasons set forth in the attached Memorandum and Order, the court denies plaintiff's 73 motion to file a second amended complaint. The court also dismisses the Board of Managers of the 2900 Ocean Condominium and claims asserte d against the Board from this action. The parties are directed to meet, confer, and file a status letter by July 31, 2019 informing the court how they wish to proceed.The court finds as moot plaintiff's 62 motion in light of th is order. The court terminates defendants' 49 motions to dismiss and for summary judgment in light of the proceedings in this case subsequent to the filing of those motions and in accordance with the instructions in this order.The Cle rk of Court is respectfully directed to dismiss the Board of Managers of the 2900 Ocean Condominium from this action, serve a copy of this order on the pro se plaintiff, and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 7/9/2019. (Spriggs, Steven)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
STACY MAKHNEVICH,
Plaintiff,
MEMORANDUM AND ORDER
-against-

18-CV-285 (KAM)(VMS)

GREGORY S. BOUGOPOULOS; NOVICK,
EDELSTEIN, LUBELL, REISMAN, WASSERMAN &
LEVENTHAL, P.C.; BOARD OF MANAGERS OF
THE 2900 OCEAN CONDOMINIUM; and BRYANT
TOVAR,
Defendants.
--------------------------------------X
MATSUMOTO, United States District Judge:
On January 16, 2018, pro se plaintiff Stacy Makhnevich
(“Makhnevich” or “plaintiff”) commenced this action against
defendants Gregory Bougopoulos (“Bougopoulos”); Novick,
Edelstein, Lubell, Reisman, Wasserman & Leventhal, P.C. (“the
Novick firm”) 1; and the Board of Managers of the 2900 Ocean
Condominium (“the Board”), alleging violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. by
Bougopoulos and the Novick firm, breach of contract and fraud by
the Board, and violations of New York’s General Business Law §
349 (“GBL § 349”) by all defendants.

(ECF No. 1, Complaint

The firm has since changed its name to Novick Edelstein Pomerantz P.C.
No. 85, Notice of Change of Firm Name.)
1

1

(ECF

(“Compl.”).)

On October 31, 2018, plaintiff sought leave to

file an amended complaint, which alleged FDCPA violations by all
defendants, including an additional defendant, Bryant Tovar
(“Tovar”), breach of contract and fraud by the Board, and GBL §
349 violations by Bougopoulos, the Novick firm, and the Board.
(ECF No. 52, Motion for Leave to File Amended Complaint.)

The

court granted plaintiff’s motion on November 19, 2018. (Dkt.
Entry dated Nov. 19, 2018; ECF No. 58, Amended Complaint (“Am.
Compl.”).)
Presently before the court is plaintiff’s motion to
amend the first amended complaint.

(ECF No. 73, Motion to Amend

the First Amended Complaint (“Sec. Mot. to Amend”).)

For the

reasons set forth below, the court denies plaintiff’s motion to
file a second amended complaint.
BACKGROUND
On October 9, 2018, the court ordered a briefing
schedule for the defendants’ motions for summary judgment.
(Dkt. Entry dated Oct. 9, 2018.)

After defendants served their

motions on plaintiff, they received her motion to file an
amended complaint.

(ECF No. 53, Def. Nov. 13, 2018 Ltr.)

Defendants requested a pre-motion conference for a new briefing
schedule, stating that they would consent to the filing of the
amended complaint without opposition if they could serve revised
motions for summary judgment.

(Id.)
2

The court granted plaintiff’s motion for leave to file
a first amended complaint on November 19, 2018.
dated Nov. 19, 2018.)

(Dkt. Entry

The court also ordered that “plaintiff

may not further amend the complaint . . . without a court order
granting permission to do so,” and scheduled a pre-motion
conference for December 14, 2018 to discuss an amended briefing
schedule for the motions for summary judgment.

(Dkt. Entry

dated Nov. 19, 2018; Dkt. Entry dated Dec. 4, 2018.)

On

December 9, 2018, plaintiff filed a pre-motion conference letter
regarding her intent to amend her first amended complaint.
No. 61, Pl. Dec. 9, 2018 Ltr.)

(ECF

She also filed her motion to

amend the amended complaint that same day, without receiving
leave to do so.

(ECF No. 62, Motion for Leave to File

Supplemental Complaint.)
In response, the defendants filed pre-motion
conference letters objecting to plaintiff’s motion and seeking
leave to file motions to dismiss and for summary judgment.

(ECF

No. 65, Tovar Dec. 10, 2018 Ltr.; ECF No. 66, Joint Def. Dec.
11, 2018 Ltr.)

On December 14, 2018, the court subsequently

held a pre-motion conference and set a briefing schedule
regarding plaintiff’s motion to file a second amended complaint.
(Dkt. Entry dated Dec. 14, 2018.)

The court also informed the

parties that they could request a pre-motion conference

3

regarding motions to dismiss or for summary judgment after
resolution of the motion to amend.

(Id.)

After the December 14, 2018 conference, plaintiff
filed a motion to amend the first amended complaint. 2
73, Sec. Mot. to Amend.)

(ECF No.

All of the defendants opposed

plaintiff’s motion to amend the first amended complaint.

(ECF

No. 74, Defendant Bryant Tovar’s Memorandum of Law in Opposition
to Plaintiff’s Motion to Amend (“Tovar Opp.”); ECF No. 75,
Memorandum of Law in Opposition to Plaintiff’s Second Motion to
Amend Her Complaint (“Bougopoulos & Novick Firm Opp.”); ECF No.
77, Memorandum of Law in Opposition to Plaintiff’s Second Motion
for Leave to Amend Complaint by Defendant The Board of Managers
of the 2900 Ocean Condominium (“Board Opp.”).)

Plaintiff

subsequently filed a reply to the defendants’ opposition.

(ECF

No. 79, Plaintiff’s Reply to Defendants’ Opposition to
Plaintiff’s Motion to Amend the First Amended Complaint
(“Reply”).)
LEGAL STANDARD
I.

Motion to Amend
When a party is not entitled to amend its complaint as

a matter of course, “a party may amend its pleading only with
the opposing party’s written consent or the court’s leave.”

Although plaintiff’s December 9, 2018 filing was styled as a motion for
leave to file a supplemental complaint, the fully briefed motion before the
court concerns an amended complaint.
2

4

Fed. R. Civ. P. 15(a)(2).
when justice so requires.”

“The court should freely give leave
“[A] pro se plaintiff’s

Id.

proposed amended complaint should be construed to raise the
strongest arguments it suggests.”

Grullon v. City of New Haven,

720 F.3d 133, 140 (2d Cir. 2013).
“Although district judges should, as a general matter,
liberally permit pro se litigants to amend their pleadings,
leave to amend need not be granted when amendment would be
futile.”

Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 633

(2d Cir. 2016) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000)).

“Futility is a determination, as a matter of law,

that proposed amendments would fail to cure prior deficiencies
or to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure.”

Panther Partners Inc. v. Ikanos Commc'ns,

Inc., 681 F.3d 114, 119 (2d Cir. 2012).
DISCUSSION
The operative, first amended complaint charges that 1)
the Board, the Novick firm, Bougopoulos, and Tovar all violated
the FDCPA; 2) the Board breached its contract with plaintiff; 3)
the Board defrauded the plaintiff; and 4) the Board, the Novick
firm, and Bougopoulos violated N.Y. G.B.L. § 349.
Am. Compl. at 19-20, 23, 25.)

(ECF No. 58,

Plaintiff also alleges that

defendants’ “abusive debt collection practices” included their
filing of a state court action seeking to collect fees from her.
5

(Id. at 2.)

Plaintiff seeks to amend the first amended

complaint to include a claim that the Board assessed against
plaintiff a legal fee incurred through defendant Tovar’s “ex
parte illegal oral argument” on March 28, 2018 in the state
court proceeding and then refused to remove that fee from her
bill in violation of 15 U.S.C. § 1692d and § 1692e. 3

(ECF No.

73, Sec. Mot. to Amend at 5 4; ECF No. 73-1, Proposed Second
Amended Complaint (“Proposed SAC”) at 13.)

She asserts that

this charge was fraudulent and illegal because she was not
present in court for that proceeding.
SAC at 13.)

(ECF No. 73-1, Proposed

Plaintiff claims that she received evidence of this

charge on November 14, 2018 and thereafter sought leave to amend
her complaint.

(ECF No. 73, Sec. Mot. to Amend at 2, 4.)

She

argues that leave should be granted under F.R.C.P. 15(a)(2) and
that there are no factors present in the case that would support
denial of the motion to amend.

(Id. at 6-7.)

This appears to be the only substantive amendment to the complaint. See ECF
No. 73, Sec. Mot. to Amend at 1 (“The new complaint . . . adds documentary
evidence obtained after filing of her first amended complaint and makes
certain minor technical corrections . . . .”). To the court’s knowledge, the
minor changes all occur under heading 14 of the factual allegations in the
proposed second amended complaint. The court notes the deletions with
strikethroughs and additions with underlining, as follows: “Tovar is holding
a position of an Honorable Judge was appointed to become of a Judge”; “Tovar
was the council attorney”; “Tovar was confirmed to be holding a position of
an Honorable Judge appointed to a position of a Housing Court Judge”;
“ability to have a sitting Judge an appointed judge for hire.”
4 The court cites to the page numbers generated by the Electronic Court Filing
system for any documents which were filed without preexisting page numbers in
the footer.
3

6

The defendants argue that leave to file a second
amended complaint should be denied.

Bougopoulos and the Novick

firm argue that the plaintiff’s motion was made in bad faith and
after undue delay.
at 3-4.)

(ECF No. 76, Bougopoulos & Novick Firm Opp.

They also argue that the plaintiff disregarded the

court’s order not to further amend the complaint or file
additional motions without an order from the court permitting
her to do so.
3.)

(ECF No. 76, Bougopoulos & Novick Firm Opp. at

Finally, they argue that the amendment of the complaint

would be futile.

(Id. at 4.)

amendment would be futile.

The Board also argues that the

(ECF No. 77, Board Opp. at 3-4.)

All of the defendants also made broader arguments for dismissal
of the plaintiffs’ complaint for failure to state a claim.
In her reply, plaintiff argues the court should grant
the amendment.

She argues that there has not been undue delay

and that the defendants accuse her of bad faith in a conclusory
fashion.

(ECF No. 79, Plaintiff’s Reply to Defendants’

Opposition to Plaintiff’s Motion to Amend the First Amended
Complaint (“Reply”) at 8-11.)

Plaintiff further contends that

the amendment would not be futile.

(Id. at 12.)

Plaintiff also

objects to the defendants’ various arguments for dismissal of
the claims in the operative complaint.

(See generally id.)

The court considers the parties’ arguments regarding
amendment of the complaint, reaching dismissal of claims and
7

parties only as implicated by the amendment analysis.

The court

agrees with the defendants that the amendment would be futile
and further finds that the state law claims asserted against the
Board in the first amended complaint and proposed second amended
complaint should be dismissed as well.
I.

Futility of the Proposed Second Amendment
Plaintiff appears to make two arguments regarding her

proposed second amended complaint.

First, plaintiff argues that

the Board’s billing of legal fees for the March 28, 2018 state
court hearing violated 15 U.S.C. § 1692d and § 1692e of the
FDCPA.

Second, plaintiff argues that the billing for the state

court hearing violated the FDCPA because the hearing was an ex
parte illegal proceeding.
Among its arguments, the Board objects to plaintiff’s
addition of the Board as a direct defendant to her FDCPA claims
in the proposed second amended complaint.
Opp. at 4.)

(ECF No. 77, Board

Plaintiff correctly notes that this is not an

accurate characterization of what the proposed second amended
complaint does.

The Board, with its consent, was named as a

direct defendant for the FDCPA claims in the operative, first
amended complaint.

(ECF No. 58, Am. Compl. at 19; ECF No. 53,

Def. Nov. 13, 2018 Ltr.)

Nevertheless, the court agrees with

the contention that the proposed second amendment would be

8

futile against the Board because it is not an entity that can be
held liable under the FDCPA.
A debt collector under the FDCPA is “any person who
uses any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed
or due another.”

15 U.S.C. § 1692a(6).

By contrast, a creditor

under the FDCPA is “any person who offers or extends credit
creating a debt or to whom a debt is owed[.]”
1692a(4).

15 U.S.C. §

“[B]y its terms, the FDCPA limits its reach to those

collecting the [debts] of another and does not restrict the
activities of creditors seeking to collect their own debts.”
Carlson v. Long Island Jewish Med. Ctr., 378 F. Supp. 2d 128,
131 (E.D.N.Y. 2005) (internal quotation marks omitted).

See

also Cohen v. Ditech Fin., LLC, 342 F. Supp. 3d 460, 466
(S.D.N.Y. 2018) (“The [FDCPA], however, places a limitation on
the scope of the law’s application: [it] applies only to debt
collectors.”).
The Board is not in the principal business of
collecting debts owed to others.

The Board does not become a

debt collector under the FDCPA when it assesses common charges
against condominium unit owners or when it attempts to collect
overdue charges.

Because the Board is not a debt collector, it
9

cannot be liable for violations of the FDCPA.

Thus, plaintiff’s

FDCPA claims do not state a claim and an amendment to add a
claim under the FDCPA would be futile.
Moreover, the Bylaws of 2900 Ocean Condominium also
state that the Board can collect “all costs and expenses paid or
incurred by the Condominium Board . . . including, without
limitation, reasonable attorneys’ fees and disbursements and
court costs” in relation to its attempt to collect defaulted
common charge payments.

(ECF No. 76-8, Def. Ex. G, Bylaws of

the 2900 Ocean Condominium, at 38, Section 6.4.)

The Board’s

addition of the legal costs it incurred while attempting to
collect the overdue common charges to plaintiff’s account
balance is acceptable under the terms of the Bylaws, which apply
to plaintiff. 5
To the extent that plaintiff argues that billing by
the Board violated the FDCPA or was otherwise unlawful because
it was related to an ex parte, illegal oral argument in state
court, this court rejects the premise of that claim.

By

plaintiff’s own admission, she sought and was denied an
adjournment of the state court proceeding.
Mot. to Amend at 4-5.)

(ECF No. 73, Sec.

Her failure to appear as required in a

court proceeding does not render the court proceeding unlawful.

See ECF No. 76-8, Def. Ex. G at 1, Section 1.3 (“These By-Laws are
applicable to the Property and to the use and occupancy thereof.”).
5

10

In any case, plaintiff’s daughter, who has power of attorney,
appeared in her stead at the proceeding.

(ECF No. 79-6, Pl. Ex.

E, Apr. 18, 2018 State Ct. Decision & Order (“Apr. 18, 2018
Order”) at 4; ECF No. 76-18, Def. Ex. Q, New Jersey General
Durable Power of Attorney.)

Plaintiff cannot plausibly assert

that her failure to appear at court proceedings is evidence of
misconduct by the defendants or the state court judge.
The court finds that the proposed second amendment to
add an FDCPA claim is futile, and the second amendment is
denied. 6
II.

Dismissal of Claims Against the Board
Having found that the proposed second amendment is

futile and that the Board is not a debt collector under the
FDCPA, the court considers whether the remaining state law
claims against the Board should be heard in this forum.

“Under

28 U.S.C. § 1367(a), federal courts have supplemental
jurisdiction to hear state law claims that are so related to
federal question claims brought in the same action as to ‘form
part of the same case or controversy under Article III of the
United States Constitution.’”

Briarpatch Ltd., L.P v. Phoenix

Although the amendment appears to be directed at the Board, the court finds
that it is futile to the extent that it is aimed at the other defendants as
well. Plaintiffs’ proffered exhibits in support of the amendment do not
reflect that the other defendants, as opposed to the Board, attempted to
charge her for the oral argument at issue. See ECF No. 73-8, Pl. Ex. G, Mar.
29, 2018 Invoice (“Bill To: The 2900 Ocean Condo”); ECF No. 73-10, Pl. Ex. I,
Apr. 18, 2018 Statement of Account (reflecting payments charged by the
condominium to plaintiff).
6

11

Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004).

State and

federal claims form part of the same case or controversy if they
“derive from a nucleus of operative fact.”
Does, 321 F.3d 83, 97 (2d Cir. 2003)).

Id. (citing Cicio v.

“This is so even if the

state law claim is asserted against a party different from the
one named in the federal claim.”

Id.

The court is not required to hear supplemental state
law claims and has the discretion to decline to do so.

Id.

“However, the discretion to decline supplemental jurisdiction is
available only if founded upon an enumerated category of
subsection 1367(c).”

Itar-Tass Russian News Agency v. Russian

Kurier, Inc., 140 F.3d 442, 448 (2d Cir. 1998).

Under

subsection 1367(c), district courts may decline to exercise
supplemental jurisdiction if “(1) the claim raises a novel or
complex issue of State law, (2) the claim substantially
predominates over the claim or claims over which the district
court has original jurisdiction, (3) the district court has
dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.”
As a preliminary matter, two of the grounds for
declining to exercise supplemental jurisdiction are not present
here.

Section 1367(c)(3) is not applicable to this case because

the court has not dismissed the claims over which it has
12

original jurisdiction, the FDCPA claims, as to remaining
defendants Bougopoulos, Tovar, and the Novick firm.

Section

1367(c)(4) is also not applicable, as the parties have not
identified exceptional circumstances with compelling reasons for
declining jurisdiction.
Section 1367(c)(1), on the other hand, may apply here.
Although it is not clear whether GBL § 349 claims are novel or
complex, it is also not clear whether the Board’s collection of
fees allegedly unauthorized by a purchase agreement or the
condominium bylaws, as alleged by the plaintiff, could be an
actionable violation under GBL § 349.

To bring a GBL § 349

claim, a plaintiff “must, at the threshold, charge conduct that
is consumer oriented.”

New York Univ. v. Cont'l Ins. Co., 662

N.E.2d 763, 770 (N.Y. 1995).

“The conduct need not be

repetitive or recurring but defendant's acts or practices must
have a broad impact on consumers at large; ‘[p]rivate contract
disputes unique to the parties . . . would not fall within the
ambit of the statute[.]’”

Id. (citing Oswego Laborers’ Local

214 Pension Fund v. Marine Midland Bank, 647 N.E.2d 741, 744
(N.Y. 1995)).
“New York courts have split on whether the purchase of
a condominium unit is the sort of ‘consumer-oriented’
transaction to which [G.B.L. § 349] was intended to apply . . .
.”

Waverly Properties, LLC v. KMG Waverly, LLC, 824 F. Supp. 2d
13

547, 566 (S.D.N.Y. 2011).

See also Bd. of Managers of Caton

Court Condo. v. Caton Dev. LP, 983 N.Y.S.2d 201 (N.Y. Sup. Ct.
2013) (collecting cases and recognizing the existence of “a
split in the Appellate Departments as to whether sales of
condominiums within a development meet the ‘consumer’
threshold”); Dzganiya v. Cohen Ehrenfeld Pomerantz & Tenenbaum,
LLP, No. 1:17-CV-04525-GHW, 2018 WL 2247206, at *8 (S.D.N.Y. May
16, 2018) (“The New York Court of Appeals has yet to comment on
th[e] issue [of whether a rent dispute between a landlord and
tenant is inherently consumer oriented], and other courts have
dismissed GBL claims brought by tenants on the basis that the
underlying conduct amounts to nothing more than a private
transaction.”).

The state court is in a better position to

determine which line of authority should govern regarding
applicability of GBL § 349 claims to condominium disputes.
Subsection 1367(c)(2) applies in this case.

“[I]f it

appears that the state issues substantially predominate, whether
in terms of proof, of the scope of the issues raised, or of the
comprehensiveness of the remedy sought, the state claims may be
dismissed without prejudice and left for resolution to state
tribunals.”

United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726-27 (1966).

Adjudication of the FDCPA claims, which are the

basis for the court’s original jurisdiction, requires evaluating
whether the non-Board defendants are debt collectors and, if so,
14

whether they violated the law via the methods they used to
collect a debt.

The state law claims against the Board, by

contrast, would involve evaluating the services the Board
provided or failed to provide, what services the Board was
required to provide by contract, and whether the Board made
fraudulent statements to the plaintiff.
Retaining the GBL § 349 claim against the Board would
require the court to evaluate evidence regarding whether the
Board engaged in consumer oriented conduct, an analysis which
would be distinct from determining whether the other defendants
used improper debt collection methods in violation of the FDCPA
or engaged in consumer oriented conduct.

“[T]he facts material

to the GBL [§ 349] claim are indeed much broader in scope than
those that support the FDCPA claim.

The threshold issue to be

determined in the GBL claim is whether the conduct at issue is
‘consumer oriented.’”

Dzganiya v. Cohen Ehrenfeld Pomerantz &

Tenenbaum, LLP, No. 1:17-CV-04525-GHW, 2018 WL 2247206, at *8
(S.D.N.Y. May 16, 2018).

Because of the additional evidence

needed regarding business practices at large for a GBL § 349
claim, “[r]esolution of the FDCPA claim . . . would not decide
the GBL claim.”

Id. at *10.

But even “[w]here at least one of the subsection
1367(c) factors is applicable, a district court should not
decline to exercise supplemental jurisdiction unless it also
15

determines that doing so would not promote the values . . . [of]
economy, convenience, fairness, and comity.”

Jones v. Ford

Motor Credit Co., 358 F.3d 205, 214 (2d Cir. 2004) (citation
omitted).

Declining to exercise jurisdiction over the state law

claims against the Board would promote the values of comity and
economy.
On comity, the state court twice denied the
plaintiff’s motion to stay the state court proceedings while
plaintiff presented her state counterclaims here.
6, Pl. Ex. E, Apr. 18, 2018 Order at 2.)

(ECF No. 79-

The state court also

rejected the federal suit as a grounds for dismissing the state
court action, stating that it would be “extraordinary if a
litigant could dismiss a state court action by filing a Federal
Complaint two years later, after extensive litigation had
already occurred in state court.”

(Id.)

The state court

decided to sever the plaintiff’s counterclaims, which are the
same breach of contract, fraud, and GBL § 349 claims she
asserted here in federal court, for a separate trial.

(ECF No.

79-6, Pl. Ex. E, Apr. 18, 2018 Order at 4; see also ECF No. 7615, Def. Ex. N, Answer with Counterclaim Demand for Jury Trial.)
The state court not only expressed its intent to hear
plaintiff’s counterclaims, but it is also in a better position
to determine whether plaintiff’s GBL § 349 claim against the
Board is actionable.

See United Mine Workers of Am. v. Gibbs,
16

383 U.S. 715, 726 (1966) (“Needless decisions of state law
should be avoided both as a matter of comity and to promote
justice between the parties, by procuring for them a surerfooted reading of applicable law.”).
Plaintiff claims that she was subsequently told to refile her counterclaims, but that she chose not to do so because
some of her claims were outside the statute of limitations.
(ECF No. 79-1, Makhnevich Affirmation ¶¶ 3-4.)

Plaintiff did

not provide a copy of any court orders regarding the disposition
of her counterclaims, simply stating that she “was told to
refile with a new index number.”

(Id. ¶ 3.)

Although there is

no evidence before this court that the state court would have
placed plaintiff in the position of refiling her claims only to
deny them as untimely, there is nothing before this court that
would bar any of the claims brought here in federal court
against the Board in state court.
“The period of limitations for any [state] claim
[joined with a claim within federal-court competence] shall be
tolled while the claim is pending [in federal court] and for a
period of 30 days after it is dismissed unless State law
provides for a longer tolling period.”

Artis v. D.C., 138 S.

Ct. 594, 598 (2018) (quoting 28 U.S.C. § 1367(d)) (alterations
in original).

In Artis, the Supreme Court held that § 1367(d)’s

tolling provision “stop[s] the limitations clock during the
17

pendency of the federal-court suit.”

Id. at 598.

“That is, the

limitations clock stops the day the claim is filed in federal
court and, 30 days postdismissal, restarts from the point at
which it had stopped.”

Id. at 603.

The statute of limitations

for plaintiff’s state law claims against the Board, therefore,
does not appear to have expired.
As for judicial economy, discovery has not yet
occurred, and this court is no better acquainted with the case
than the state court which heard the Board’s claims against
Maknevich.

Moreover, the evidence needed to establish whether

there was a violation of the FDCPA is different from the
evidence needed to establish that the Condo breached a
contractual duty to provide adequate services, defrauded the
plaintiff with its statements, or engaged in conduct that was
consumer oriented under plaintiff’s state law claims.

Retaining

the state law claims against the Board would require more of the
court’s resources to resolve claims which would be better
addressed in the state court forum in which they were originally
raised.

This court, therefore, dismisses the state law claims

against the Board from this action.
The court cautions that although the FDCPA and GBL §
349 claims remain pending against the remaining defendants, the
plaintiff cannot prevail on any claims that would undermine the
state court’s determination that the common charges were
18

legitimate.

Rather, plaintiff’s claims may only proceed on the

basis that the remaining defendants, who have not yet
conclusively been found to be debt collectors, violated the law
by the manner in which they engaged in debt collection or on a
basis other than one that disputes the legitimacy of the charges
as found by the state court.
CONCLUSION
For the foregoing reasons, the court denies
plaintiff’s motion to file a second amended complaint.

The

first amended complaint shall remain the operative complaint,
except that the Board and plaintiff’s claims against the Board
are dismissed without prejudice to file in state court.

The

parties are directed to meet, confer, and file a status letter
informing the court how they wish to proceed by July 31, 2019.
The Clerk of Court is respectfully directed to dismiss the Board
of Managers of the 2900 Ocean Condominium from this action,
serve a copy of this Memorandum and Order on the pro se
plaintiff, and note service on the docket.
SO ORDERED.
Dated:

July 9, 2019
Brooklyn, New York
_________/s/_________________
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
19