Francis v. Kings Park Manor, Inc. et al
Filing
28
MEMORANDUM OF DECISION AND ORDER granting in part and denying in part 15 Motion to Dismiss - As noted above, on July 16, 2014, the Clerk of the Court noted the default of Endres. There having been no activity on the docket as to Endres since that date, the Court permits the Plaintiff to file a motion for default judgment against Endres on or before May 1, 2015. Should the Plaintiff fail to do so or to move for an extension, the Court will dismiss this action as against Endres for failure to prosecute under Rule 41(b). So Ordered by Judge Arthur D. Spatt on 3/16/2015. (Coleman, Laurie) (Main Document 28 replaced on 3/16/2015) (Coleman, Laurie). Modified on 3/16/2015; The Decision has been replaced and the docket text modified to correct a clerical error; The 2nd sentence in the last paragraph of page 29 should state that "the Court permits the Plaintiff to file a motion for default judgment", not "the Court permit the Plaintiff to file a default judgment". (Coleman, Laurie).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
DONAHUE FRANCIS,
Plaintiff,
MEMORANDUM OF
DECISION AND ORDER
14-cv-3555 (ADS)(GRB)
-againstKINGS PARK MANOR, INC., CORRINNE
DOWNING, and RAYMOND ENDRES,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Relman, Dane & Colfax PLLC
Attorneys for the Plaintiff
1225 19th Street NW
Suite 600
Washington, DC 20036
By: John P. Relman, Esq.
Timothy Smyth, Esq.
Yiyang Wu, Esq.
Ryan C. Downer, Esq., Of Counsel
Somer & Heller, LLP
Attorneys for the Defendant Kings Park Manor, Inc. and Corrine Downing
2171 Jericho Tpke., Suite 350
Commack, NY 11725
By: Stanley J. Somer, Esq.
Melissa Corwin, Esq., Of Counsel
NO APPEARANCES:
The Defendant Raymond Endres
SPATT, District Judge.
On June 5, 2014, the Plaintiff Donahue Francis (the “Plaintiff”) commenced this action
for a declaratory judgment, permanent injunctive relief, damages, costs, and attorneys’ fees,
alleging a continuing pattern of racially discriminatory conduct in violation of the Civil Rights
1
Act of 1866, 42 U.S.C. §§ 1981, 1982, and the Fair Housing Act of 1968, as amended, 42 U.S.C.
§§ 3601-19 (the “FHA”). The Plaintiff also asserts causes of action for breach of contract and
negligent infliction of emotional distress.
On July 16, 2014, the Clerk of the Court noted the default of the Defendant Raymond
Endres (“Endres”). The Plaintiff has yet to move for a default judgment against Endres.
On August 1, 2014, the Defendants Kings Park Manor, Inc. (“KPM”) and Corrine
Downing (“Downing”)(collectively the “KPM Defendants”) moved pursuant to Federal Rule of
Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6) to dismiss the complaint as against them for failure
to state a claim upon which relief can be granted.
For the reasons set forth, the motion to dismiss filed by the KPM Defendants is granted in
part and denied in part.
I.
BACKGROUND
Unless stated otherwise, the following factual allegations are drawn from the complaint
and construed in a light most favorably to the non-moving party, the Plaintiff.
A. The Parties
The Plaintiff is an African-American male who self-identifies himself as black. At all
relevant times, the Plaintiff resided at Kings Park Manor Apartment Complex (the “Complex”),
at 186 Ardito Avenue, Unit # 186, Kings Park, New York 11754.
KPM is a New York corporation that owns Unit # 186 and acts as the property
management company for the Complex.
Downing, an agent and employee of KPM, is the property manager of the Complex.
Endres, at all relevant times until January 28, 2013, resided at 184 Ardito Avenue, Unit #
184, Kings Park, New York, 11754.
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B. Factual Allegations
On April 21, 2010, the Plaintiff and agents of KPM signed a lease agreement.
On May 1, 2010, the Plaintiff and agents of KPM signed a second lease agreement to rent
Unit 186 at the Complex. The May 1, 2010 lease was signed by Downing as “Landlord/Agent:
Kings Park Manor.” The lease was renewed three times.
The Plaintiff participated in the Housing Choice Voucher Program, 42 U.S.C. § 1437f(o),
et seq., commonly known as “Section 8.”
The Plaintiff moved into Unit # 186 at 186 Ardito Avenue. The Plaintiff’s first eighteen
months at the Complex were uneventful.
However, according to the Plaintiff, in February 2012, the Plaintiff heard his next door
neighbor, the Defendant Endres, say “Jews, fucking Jews” and called him a “fucking nigger.”
(Compl., at ¶ 16.) The Plaintiff was shocked and fearful, but did not respond.
On March 3, 2012, Endres approached the front of their respective apartments and said
“damn fucking Jews.” (Id. at ¶ 18.) He looked toward the Plaintiff’s open door and at the
Plaintiff and said “fucking asshole.” (Id.) The Plaintiff understood this insult to be directed
towards him.
On March 10, 2012, the Plaintiff overheard Endres and another tenant discussing him in
derogatory terms.
On March 11, 2012, Endres threateningly approached him and called him a “nigger”
several times. Endres stated “fucking nigger, close your god-darn, fucking lazy, god-damn
fucking nigger.” (Id. at ¶ 20.) The Plaintiff phoned 911, and in response, Suffolk County Police
Hate Crimes Unit Officer Patricia E. Keller (“Keller”) arrived at the scene, interviewed
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witnesses, and spoke to Endres, admonishing him about the alleged racial epithets towards the
Plaintiff. The Plaintiff filed a police report.
On March 20, 2012, the Plaintiff encountered Endres in the parking lot at the Complex.
Before driving away, Endres repeatedly used the word “nigger” to insult and denigrate the
Plaintiff. The Plaintiff experienced fear and anxiety.
Upon information and belief, the Plaintiff alleges that Keller communicated with KPM,
by and through Downing, concerning the March 2012 incidents. KPM allegedly took no actions
or steps to investigate the situation.
On May 14, 2014, Endres stood in front of the Plaintiff’s front door and yelled “fuck
you,” apparently because he wanted the Plaintiff to close his front door.
On May 15, 2012, Endres again approached the Plaintiff as he was leaving his residence
and said “keep your door closed you fucking nigger.” (Id. at ¶ 29.)
On May 22, 2012, Endres told the Plaintiff: “I oughta kill you, you fucking nigger.” (Id.
at ¶ 30.) The Plaintiff filed another police report.
By certified mail return receipt requested dated May 23, 2012, the Plaintiff notified the
KPM Defendants of Endres’ racial threats and harassment. The letter provided details
concerning the Suffolk County Police Hate Crimes Unit’s investigation, including the names,
badge numbers, and contact information of the relevant officers.
The Plaintiff alleges that KPM could have terminated the Endres lease based on his
conduct, yet they did not do so, nor did they take any actions or steps reasonably calculated to
address the Plaintiff’s complaints of harassment.
On August 10, 2012, Endres called the Plaintiff a “fucking nigger” and a “black bastard.”
(Id. at ¶ 36.) The Plaintiff again contacted the Suffolk County Police Hate Crimes Unit.
4
Soon after, the Suffolk County Police arrested Endres and charged him with, among other
counts, aggravated harassment, a class A misdemeanor.
By certified mail return receipt requested dated August 10, 2012, the Plaintiff notified the
KPM Defendants of Endres’ arrest and his continued use of racial slurs. The Plaintiff also
provided the name and address of a Suffolk County Police Hate Crimes Unit Detective, Lola
Quesada. Again, according to the Plaintiff, KPM could have terminated the Endres lease based
on his conduct, yet they did not do so, nor did they take any actions or steps reasonably
calculated to address the Plaintiff’s complaints of harassment.
On September 2, 2012, Endres appeared at the Plaintiff’s front door and took a series of
pictures of the inside of the Plaintiff’s apartment. The Plaintiff again contacted the Suffolk
County Police Hate Crimes Unit.
By certified mail return receipt request dated September 3, 2012, the Plaintiff notified the
KPM Defendants’ of Endres’ continued harassment. Again, according to the Plaintiff, KPM
could have terminated the Endres lease based on his conduct, yet they did not do so, nor did they
take any actions or steps reasonably calculated to address the Plaintiff’s complaints of
harassment.
As confirmed by a New York State Division of Human Rights (“NYSDHR”)
Investigator, Downing contacted the owners of Kings Park, Inc. concerning Endres’
discriminatory conduct and was told by the owners not to get involved.
The Plaintiff alleges, upon information and belief, that Endres’ lease expired on January
25, 2013 and that he vacated the Complex on January 28, 2013.
5
On April 2, 2013, Endres pled guilty to harassment under New York Penal Law §
240.26(1). In addition, an order of protection was entered prohibiting Endres from having any
contact with the Plaintiff.
C. Procedural History
On June 5, 2014, the Plaintiff commenced this action. As against all the Defendants, he
raises claims under the Civil Rights Act of 1866, the FHA, New York Executive Law § 296(5)
and § 296(6), and negligent infliction of emotional distress. As against the KPM Defendants
only, the Plaintiff raises a claim of breach of contract. As against Endres only, who has
defaulted, the Plaintiff raises a claim of intentional infliction of emotional distress.
As noted above, on August 1, 2014, the KPM Defendants moved to dismiss the
complaint as against them.
II.
BACKGROUND
A. The Legal Standard Governing a Rule 12(b)(6) Motion
Under Fed. R. Civ. P. 12(b)(6), a defendant may move to dismiss a complaint for “failure
to state a claim upon which relief can be granted.” To survive a Rule 12(b)(6) motion to dismiss,
a plaintiff must provide grounds upon which their claim rests through “factual allegations
sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). In other words, the complaint must allege
“enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music
Entm’t, 592 F.3d 314, 321 (2d Cir. 2010)(quoting Twombly, 550 U.S. at 570, 127 S. Ct. 1955,
167 L. Ed. 2d 929). “A claim has facial plausibility when the plaintiff pleads factual content that
6
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
“[I]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration
‘to facts stated on the face of the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of which judicial notice may be
taken.’” Bebry v. ALJAC LLC, 954 F. Supp. 2d 173, 176 (E.D.N.Y. 2013)(quoting Leonard F. v.
Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)(quoting Allen v. WestPoint–
Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)).
B. The Claims Under the Civil Rights Act of 1866
One portion of the Civil Rights Act of 1866 relevant to the Plaintiff’s claim is codified at
42 U.S.C. § 1981, which provides in pertinent part that “[a]ll persons within the jurisdiction of
the United States shall have the same right in every State and Territory to make and enforce
contracts . . . as is enjoyed by white citizens. . . .” 42 U.S.C. § 1981(a). Section 1982 of the Civil
Rights Act of 1866 provides that “[a]ll citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property.” 42 U.S.C. § 1982; MHANY Mgmt. Inc. v. Inc.
Vill. of Garden City, 985 F. Supp. 2d 390, 410 (E.D.N.Y. 2013)(quoting Section 1982).
“To state a claim for racial discrimination under §§ 1981 or 1982, a plaintiff must allege
intentional discrimination on the part of the defendant.” Samuels v. William Morris Agency, No.
10 CIV. 7805 (DAB), 2011 WL 2946708, at *4 (S.D.N.Y. July 19, 2011)(citing Mian v.
Donaldson, Lufkin & Jenrette Sec., 7 F.3d 1085 (2d Cir. 1993)); Perry v. State of New York, No.
08 Civ. 4610 (PKC), 2009 WL 2575713 (S.D.N.Y. Aug. 20, 2009)(“A plaintiff is required to set
forth factual circumstances from which discriminatory motive can be inferred. . . . In the absence
7
of such allegations, dismissal at the pleading stage is warranted.”)(internal citations omitted).
Indeed, for the Plaintiff’s Section 1981 claim to withstand dismissal, “the events of the
intentional and purposeful discrimination, as well as the racial animus constituting the
motivating factor for the defendant’s actions must be specifically pleaded in the complaint.”
Yusuf v. Vassar College, 827 F. Supp. 952, 955 (S.D.N.Y. 1993)(citation omitted), aff’d in part,
rev’d in part on other grounds, 35 F.3d 709 (2d Cir. 1994).
In this action, the Court finds that the Plaintiff has failed to allege specific facts sufficient
to support an inference that the KPM Defendants, rather than Endres, intentionally discriminated
against him on the basis of his race. Indeed, the Plaintiff makes no allegation of derogatory
remarks directed at him by a KPM agent, disparate treatment based on race, or any allegations of
circumstantial evidence supporting an inference of discrimination on basis of race.
Here, “[the] naked assertion[s] by [the P]laintiff that race was a motivating factor [in the
alleged failure to intervene by the KPM Defendants] without a fact-specific allegation of a causal
link between [KPM Defendants’] conduct and the [P]laintiff’s race [are] too conclusory.” Hardin
v. Meridien Foods, No. 98 Civ. 2268 (BSJ), 2001 WL 1150344 at *8 (S.D.N.Y. Sep. 27,
2001)(quoting Yusuf, 827 F. Supp. at 955-56)(citation omitted); see also Albert v. Carovano, 851
F.2d 561, 562 (2d Cir. 1988)(“naked allegation” that the defendants selectively enforced college
rules against the plaintiffs because they were black or Latino is “too conclusory to survive a
motion to dismiss”). Accordingly, the Court grants that part of the motion by the KPM
Defendants’ dismissing the Section 1981 and Section 1982 claims as against them.
8
C. The FHA claims
The FHA provides that “it shall be unlawful . . . to discriminate against any person in the
terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race . . .” 42 U.S.C. § 3604(b).
The FHA also makes it “unlawful to coerce, intimidate, threaten, or interfere with any
person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on
account of his having aided or encouraged any other person in the exercise or enjoyment of, any
right granted or protected by section . . . 3604[.]” 42 U.S.C. § 3617.
“Accordingly, the statute ‘safeguards members of the protected class from coercion,
intimidation, threats, or interference in the exercise or enjoyment of their Fair Housing Rights
. . . [and] it protects third parties, not necessarily members of the protected class, who aid or
encourage protected class members in the exercise or enjoyment of their Fair Housing Act
rights.’” Wilson v. Wilder Balter Partners, Inc., No. 13-CV-2595 (KMK), 2015 WL 685194, at
*8 (S.D.N.Y. Feb. 17, 2015)(quoting Frazier v. Rominger, 27 F.3d 828, 833 (2d Cir.
1994)(citations omitted).
As an initial matter, the Court notes that the Plaintiff also brings an FHA claim against
the Defendant-in-default Endres, but that claim is not subject to the instant motion, so the Court
does not address it.
“It is clear that under the FHA, owners of real estate may be held vicariously liable for
discriminatory acts by their agents and employees.” Glover v. Jones, 522 F. Supp. 2d 496, 506
(W.D.N.Y. 2007). However, as described later, a novel question arises here because the alleged
discriminatory acts were carried out by the Plaintiff’s co-tenant, not anybody alleged to be a
KPM agent or employee.
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Further, “[i]t is unclear to what extent the FHA prohibits “post-acquisition”
discrimination — that is, discrimination that occurs after a putative plaintiff acquires housing.
District courts in this Circuit have held that § 3617 prohibits certain types of post-acquisition
discrimination.” Haber v. ASN 50th St. LLC, 847 F. Supp. 2d 578, 584 n. 3 (S.D.N.Y. 2012); see
Davis v. City of New York, 902 F. Supp. 2d 405, 436 (S.D.N.Y. 2012)(“I conclude that the law
is best understood to prohibit post as well as pre-acquisition discrimination in the provision of
housing-related services.”); Ohana v. 180 Prospect Place Realty Corp., 996 F. Supp. 238, 239
(E.D.N.Y. 1996)(holding that FHA not only “protects individuals from discrimination in the
acquisition of their residences because of race, color, religion, sex, familial status, or national
origin, but also protects them,” through § 3617, “from interference by their neighbors for such
discriminatory reasons in the peaceful enjoyment of their homes”); Puglisi v. Underhill Park
Taxpayer Ass’n, 947 F. Supp. 673, 696 (S.D.N.Y. 1996)(holding that nonminority landlord
accusing neighborhood association of attempting to force him to evict his minority tenants had
standing to sue under § 3617).
Also, “the Second Circuit has yet to rule on whether §§ 3604(a) and (b) also prohibit
post-acquisition harassment, as the only substantive opinion touching upon this issue merely
assumed for the purposes of argument, without actually holding, that a post-acquisition
harassment claim could be made.” Haber, 847 F. Supp. 2d at 584 (citing Khalil v. Farash Corp.,
277 Fed. Appx. 81, 84 (2d Cir. 2008)(“[a]ssuming, without deciding, that a plaintiff may state an
FHA claim of discrimination against families with children based on a hostile housing
environment theory”).
“Courts in this Circuit have construed § 3604(b) of the FHA to prohibit the creation of a
‘hostile environment’ by individuals who have control or authority over the ‘terms, conditions,
10
or privileges of sale or rental of a dwelling,’ similar to the prohibition imposed by Title VII
against the creation of a hostile work environment.” Cain v. Rambert, No. 13-CV-5807 (MKB),
2014 WL 2440596, at *4 (E.D.N.Y. May 30, 2014)(emphasis added); Anonymous v. Goddard
Riverside Cmty. Ctr., Inc., No. 96–CV–9198 (SAS), 1997 WL 475165, at *4 (S.D.N.Y. July 18,
1997)(“The Second Circuit has repeatedly recognized that Title VII (employment discrimination)
cases are relevant to Title VIII (housing discrimination) cases by virtue of the fact that the ‘two
statutes are part of a coordinated scheme of federal civil rights laws enacted to end
discrimination.’)(quoting Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926,
934 (2d Cir. 1988)).
In the employee-employer context, a plaintiff seeking to state such a hostile work
environment claim must establish that (1) “[he or] she was subjected to harassment that was
sufficiently pervasive and severe so as to create a hostile [housing] environment,” Rich v. Lubin,
No. 02 CIV. 6786 (TPG), 2004 WL 1124662, at *4 (S.D.N.Y. May 20, 2004), (2) the harassment
was because of the plaintiff’s membership in a protected class, Rivera v. Rochester Genesee
Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014), and (3) “a basis exists for imputing the
allegedly harassing conduct to the defendants,” Rich, 2004 WL 1124662, at *4.
The main question here is, assuming a hostile housing environment claim is actionable
under the FHA, what allegations are necessary under that statute to impute the conduct of a cotenant to the landlord. The KPM Defendants contend that, even if a hostile housing environment
theory of liability against landlords is viable under the FHA, a plaintiff must allege that the
landlord or its agents acted, or failed to act, due to animus based on a protected category.
In the employee-employer context, “[a]n employer is liable for a hostile work
environment in the workplace when the employer knew, or should have known, of the hostile
11
work environment but failed to take appropriate remedial action.” D’Annunzio v. Ayken, Inc.,
No. 11-CV-3303 (WFK)(WDW), 2014 WL 2600322 (E.D.N.Y. June 10, 2014); see Duch v.
Jakubek, 588 F.3d 757, 763 (2d Cir. 2009); Howley v. Town of Stratford, 217 F.3d 141, 154 (2d
Cir. 2000)(an employer is liable if it failed to provide a reasonable avenue for complaint or if it
knew, or in the exercise of reasonable care should have known, about the harassment yet failed
to take appropriate remedial action). The sufficiency of an employer’s remedial actions is
evaluated under the totality of the circumstances. Duch, 588 F.3d at 766.
It is true that the FHA is often interpreted similarly to Title VII. However, while it is
well-settled that a hostile work environment claim may be brought under Title VII, it is not clear
that this theory is viable under all federal civil rights statutes. Indeed, whether such a claim is
actionable under the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. (the “ADA”) has
not been decided yet by the Second Circuit. Giambattista v. Am. Airlines, Inc., 584 F. App’x 23,
26 n. 1 (2d Cir. 2014)(“[t]his court has not yet decided whether a hostile work environment claim
is actionable under the ADA”).
In any case, as noted above, the districts courts in this Circuit have recognized a hostile
housing environment claim against a landlord under the FHA only where the landlord “created”
the conditions of harassment, rather than was merely notified about it and failed to take
corrective action. This is presumably due to the well-known legal distinctions between the
employer-employee relationship and the landlord-tenant relationship – including, that an
employee is considered an agent of the employer while the tenant is not considered an agent of
the landlord.
Indeed, “[n]either the Second Circuit nor district courts in this Circuit have opined on
whether a landlord may be held liable under the FHA for failing to intervene in harassment
12
between tenants based on protected status.” Cain, 2014 WL 2440596, at *6. In this regard, the
Plaintiff’s reliance on Khalil and Rich is misplaced. Both of those cases involved direct
discrimination by a landlord or its agents against a tenant.
The case law on this question outside this Circuit is sparse. In support of its argument
that a landlord’s failure to intervene in tenant-on-tenant harassment is a violation of the FHA, the
Plaintiff points to Neudecker v. Boisclair Corp., 351 F.3d 361, 364 (8th Cir. 2003). However,
that case does not necessarily support the Plaintiff’s position. There, some of the harassment
allegedly endured by the plaintiff-tenant came at the hands of children of the building managers,
who “sent letters to [the] property manager . . . containing false counter-accusations as reprisal”
for the plaintiff’s complaints about harassment, and on one occasion, one of these children
“pinned [the Plaintiff] against a wall after [the Plaintiff] had made another complaint.”
Neudecker, 351 F.3d at 363. The property manager also “falsely accused [the Plaintiff] of
‘stalking’ another tenant and threatened to evict him, and . . . threatened to evict [the Plaintiff]
‘as reprisal’ for his continued complaints about being harassed.” Id. Unlike in this case, the
Plaintiff ultimately surrendered his apartment as a result of the harassment. Id.
Thus, contrary to the Plaintiff’s contention, Neudecker does not stand for the proposition
that a tenant may assert an actionable claim for hostile housing environment under the FHA
against the landlord based on harassment by a co-tenant where the landlord is simply made
aware of the harassment but fails to take corrective action. See Cain, 2014 WL 2440596, at *5
(distinguishing Neudecker from the facts of that case in which the Plaintiff did not allege a
“familial or other relationship to the landlord or manager of the building” or that the landlord
contributed to the harassment).
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However, to the extent that Neudecker could be construed to hold that a landlord’s
knowing failure to intervene in response to tenant-on-tenant harassment, without more, states a
claim under the FHA, it did so without engaging in any substantive analysis of the text of the
statute. Further, that reasoning was expressly rejected by the Supreme Court of Ohio in Ohio
Civ. Rights Comm. V. Akron Metro Hous. Auth., 2008-Ohio-3320, ¶ 17, 119 Ohio St. 3d 77, 81,
892 N.E.2d 415, 419 (2008). Addressing a claim under a state housing statute, that court aptly
distinguished the employer-employee relationship from the landlord-tenant relationship.
In Burlington Industries and Faragher, the United States Supreme Court noted that
imposing liability on an employer who knew or should have known about coworker harassment was an application of negligence liability. In Faragher, the
Supreme Court noted in dicta that “combined knowledge and inaction may be
seen as demonstrable negligence.” Id. at 789, 118 S. Ct. 2275, 141 L. Ed. 2d 662.
In Burlington Industries, 524 U.S. at 759, 118 S. Ct. 2257, 141 L. Ed. 2d 633, the
Supreme Court noted, also in dicta, that “[a]n employer is negligent with respect
to sexual harassment if it knew or should have known about the conduct and
failed to stop it.”
2 {¶ 19} This liability of an employer for an employee’s negligence derives from
the established principles of agency law. In Burlington, the Supreme Court
discussed employer liability for the tortious actions of an employee in the context
of master-servant liability, noting that a master is not liable for the torts of a
servant acting outside the scope of employment unless one of four factors exists.
Id. at 758, 118 S. Ct. 2257, 141 L. Ed. 2d 633, citing 1 Restatement of the Law
2d, Agency (1958), Section 219(2). None of those factors apply to the liability of
a landlord for the actions of a tenant.
34 {¶ 20} The agency principles that govern employer-employee liability have no
parallel in the context of landlord-tenant disputes: “The relation of landlord and
tenant in itself involves no idea of representation or of agency. It is a relation
**420 *82 existing between two independent contracting parties. The landlord is
not responsible to third persons for the torts of his tenant.” Midland Oil Co. v.
Thigpen (C.A.8, 1925), 4 F.2d 85, 91. See also Darnell v. Columbus Show–Case
Co. (1907), 129 Ga. 62, 65, 58 S.E. 631 (“a tortious act done by one tenant to
another tenant of a common landlord, without the authority, consent, or
connivance of the landlord, is not the latter’s tort, but the tort of him who does the
act”).
5 {¶ 21} The amount of control that a landlord exercises over his tenant is not
comparable to that which an employer exercises over his employee. As the
14
appellants observe, a landlord does enjoy a measure of control through his ability
to evict tenants. In the present case, the lease signed by Kaisk gives the AMHA
authority to evict a tenant who disturbs other tenants’ “peaceful enjoyment of
their accommodations.” The power of eviction alone, however, is insufficient to
hold a landlord liable for his tenant’s tortious actions against another tenant. See
Siino v. Reices (1995), 216 A.D.2d 552, 553, 628 N.Y.S.2d 757 (“Absent
authority to control the conduct of a third person, a landowner does not have a
duty to protect a tenant from the conduct of another tenant. A reasonable
opportunity or effective means to control a third person does not arise from the
mere power to evict.” [Citations omitted]). We therefore reject the argument that
our precedent in the employment context applies to the cause of action at issue
here.
Id. at 81-82.
In Lawrence v. Courtyards at Deerwood Association, Inc., 318 F. Supp. 2d 1133, 1144
(S.D. Fla. 2004), the plaintiffs were an African–American couple who sued their homeowners’
association, property manager, and a neighbor, alleging that the homeowner association and the
property manager allowed the neighbor to create a racially hostile housing environment in
violation of Sections 3604 and 3617 of the FHA and 42 U.S.C. § 1982. Id. at 1136–38. The
complaint alleged that the association addressed the complaints and problems of white
homeowners, but refused to protect the plaintiffs’ right to the quiet enjoyment of their property
because they were African–American. Id. at 1138. The Lawrence court found that the plaintiffs
failed to state a claim under Section 3617, reasoning that “[a] failure to act does not rise to the
level of the egregious over conduct that has been held sufficient to state a claim under section
3617.” Id. at 1144-45. Finally, the court held that the “defendants’ failure to take action is not a
‘direct and intentional act of interference’ unless the Defendants had a duty to stop [the
harassing] conduct.” Id. at 1145 (S.D. Fla. 2004).
However, “the court in Lawrence appeared to leave open the possibility that if there had
been evidence that the homeowners’ association or property manager failed to act due to
discriminatory motives, the plaintiffs would have been able to establish a Section 3617 claim.”
15
Martinez v. California Investors XII, No. CV 05-7608 (JTL), 2007 WL 8435675, at *7 (C.D.
Cal. Dec. 12, 2007).
In Fahnbulleh v. GFZ Realty, LLC, 795 F. Supp. 2d 360, 364 (D. Md. 2011), the
Plaintiff-tenant was allegedly subjected to sexual harassment by a fellow tenant, and the landlord
knowingly failed to intervene. The Plaintiff brought a federal action raising FHA and other
claims. The landlord moved to dismiss the FHA claim on the ground that the statute did not
authorize hostile-environment sexual-harassment claims for tenant-on-tenant harassment. The
court denied the motion, finding that “there is no categorical rule that prevents FHA recovery for
hostile-housing-environment sexual harassment based on tenant-on-tenant harassment.” Id.
However, in so holding, the Court did not engage the text of the FHA, but rather drew
upon general Title VII employer-employee principals. The Court primarily relied on a previous
district court FHA decision in that Circuit, Williams v. Poretsky Mgmt., Inc., 955 F. Supp. 490,
496 (D. Md. 1996), which, in turn relied exclusively on Katz v. Dole, 709 F.2d 251, 256 (4th Cir.
1983), partially abrogated by Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999), a Title VII
employer-employee case.
The Fahnbulleh Court did, however, acknowledge that, unlike a landlord-tenant
relationship, a “clear agency relationship exists between the employer and the [employee]
perpetrator.” 795 F. Supp. at 364. The Court aptly responded to this distinction as follows:
[E]mployer liability under Title VII is not limited to harassment perpetrated by
employees. Employers can also be liable for the harassing conduct of a third
party, such as a customer, “if the employer ratifies or acquiesces in the customer’s
demands.” Hylind v. Xerox Corp., 380 F. Supp. 2d 705, 716 (D. Md. 2005). In
some circumstances, employers are “required to protect [their] employees from
illegal acts of [their] own employees and non-employees alike,” and this duty
“may require employers to exercise control over individuals not under [their]
employ.” Graves v. Cnty. Of Dauphin, 98 F. Supp. 2d 613, 620 (M.D.
Pa. 2000).
16
795 F. Supp. at 364.
That said, the Fahnbulleh decision expressly limited itself to a rejection of a categorical
rule that prevents FHA recovery for hostile-housing environment sexual harassment based on a
tenant-on-tenant harassment. The Court specifically stated that it was not deciding “what factual
circumstances justify holding landlords liable for tenant harassment, nor whether such
circumstances are present in th[at] case.” Id.
In that respect, Fahnbulleh is, in fact, consistent with Lawrence because, as noted above,
the latter case “[left] open the possibility that if there had been evidence that the homeowners’
association or property manager failed to act due to discriminatory motives, the plaintiffs would
have been able to establish a Section 3617 claim.” Martinez, 2007 WL 8435675, at *7.
Circling back to this Circuit, the Court notes again that the Second Circuit has not yet
decided whether post-acquisition harassment is actionable under the FHA and, by extension,
whether a landlord or property owner’s knowing failure to intervene to combat such harassment,
without more, is actionable against the landlord or property owner. Further, no district court in
this Circuit has addressed the latter question.
With that in mind, the Court turns to the text of the relevant statutes: Sections 3604(b)
and 3617 of the FHA. As noted above, Section 3604(b) makes it “unlawful . . . to discriminate
against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith, because of race . . .”
“Violations of section 3604(b) are recognized where such differences include showing a
member of a protected class fewer apartments, quoting higher rents, quoting later days of
availability, requiring applications and credit checks, or representing apartment features
differently (e.g., ‘a one bedroom for the white tester; black tester told unit is really small’).” Fair
17
Housing Justice Center, Inc. v. Broadway Crescent Realty, Inc., No. 10 Civ. 34(CM), 2011 WL
856095, at *6 (S.D.N.Y. Mar. 9, 2011). They also include making an apartment available to a
white tenant and making a non-white tenant wait for an apartment to become available at a later
date, Williamsburg Fair Housing Committee v. New York City Housing Authority, 493 F. Supp.
1225, 1248 (S.D.N.Y. 1980)(“When the staff filled a vacancy in a White-designated apartment
by going down the list to find the next White family, they would be denying the apartment to the
non-White families passed over. Such a non-White family would, at least for a time, have been
denied an apartment for which it was eligible. Stated differently, that family would have been
discriminated against in the privileges of a rental.”), and falsely stating to a black customer that
no homes are for sale, see Village of Bellwood v. Dwivedi, 895 F.2d 1521 (7th Cir. 1990)(stating
that this conduct constitutes discrimination on racial grounds against the person in the provision
of real estate services).
In addition, as noted above, Section 3617 makes it unlawful “to coerce, intimidate,
threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having
exercised or enjoyed, or on account of his having aided or encouraged any other persons in the
exercise of enjoyment of any right granted by section [3603, 3604, 3605, and 3606 of this title.]”
Typically, “[i]n order to prevail on [a] § 3617 claim, [a] Plaintiff must show that: (1) she is a
member of a protected class under the FHA, (2) she was engaged in the exercise or enjoyment of
her fair housing rights, (3) Defendants were motivated in part by an intent to discriminate, and
(4) Defendants coerced, threatened, intimidated or interfered with Plaintiff on account of her
protected activity under the FHA.” Lachira v. Sutton, No. 305CV1585 (PCD), 2007 WL
1346913, at *18 (D. Conn. May 7, 2007). The Lachira Court assumed, following Seventh
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Circuit precedent, that “a showing of intentional discrimination is an essential element of a §
3617 claim.” Id. at n. 18.
Fairly read, the text of both Section 3604(b) and Section 3617 of the FHA, and the abovementioned cases interpreting those statutes, require intentional discrimination on the part of a
Defendant in order to state a claim under those provisions. The Court identifies no compelling
reason why that requisite showing is also not necessary for a “hostile housing environment”
claim, assuming, without deciding, such a claim is actionable against a landlord or property
owner under the FHA. Such a holding is consistent with the Neudecker, Lawrence, and
Fahnbulleh cases decided outside this Circuit.
The Court recognizes that all the Circuits, including the Second Circuit, have recognized
a claim of disparate impact under Section 3604(a) of the FHA, which does not require proof of
intentional discrimination, MHANY Mgmt. Inc. v. Inc. Vill. of Garden City, 985 F. Supp. 2d
390, 424 (E.D.N.Y. 2013)(following bench trial, finding Village and Board of Trustees liable
under FHA under both theories of disparate treatment and disparate impact); Tsombanidis v. W.
Haven Fire Dep’t, 352 F.3d 565, 574 (2d Cir. 2003)(applying disparate impact theory under the
FHA), though the viability of such a claim is set to be resolved by the Supreme Court this term in
Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 46, 189
L. Ed. 2d 896 (2014)(granting writ of certiorari). In any event, here, the Plaintiff does not bring
a disparate impact claim under Section 3604(a) against the KPM Defendants, nor, on these facts,
could he plausibly do so.
In sum, the Court concludes that, assuming, without deciding, that a “hostile housing
environment” claim is actionable against a landlord or property owner under the FHA, a question
unresolved at this time by the Second Circuit, such a claim would require allegations of
19
intentional discriminatory conduct, or failure to intervene, by the landlord or property owner
based on a protected category. Turning to whether the Plaintiff has adequately done so in this
case, the Court concludes that he has not.
To survive a motion to dismiss under Rule 12(b)(6), “the events of the intentional and
purposeful discrimination, as well as the racial animus constituting the motivating factor for the
defendant’s actions must be specifically pleaded in the complaint.” Nelson v. Brown, No. 13CV-3446 (KAM)(MDG), 2014 WL 4470798, at *3 (E.D.N.Y. Sept. 10, 2014)(citation and
quotation marks omitted). Again, “naked assertions by plaintiffs that race was a motivating
factor without a fact-specific allegation of a causal link between defendant’s conduct and the
plaintiff’s race are too conclusory.” Poles v. Brooklyn Cmty. Hous. & Servs., No. 11 CIV. 4796
(BMC), 2012 WL 668910, at *3 (E.D.N.Y. Feb. 29, 2012).
The Court finds that, on the facts in this case, that the Plaintiff alleges no basis for
imputing the allegedly harassment conduct to the KPM Defendants as opposed to Endres, or that
the KPM Defendants failed to intervene on account of their own racial animus toward the
Plaintiff. Accordingly, the Court grants that part of the motion by the KPM Defendants
dismissing the Plaintiff’s FHA claims against them.
D. The New York Executive Law Claims
The New York Executive Law, with exceptions not pertinent here, contains provisions
prohibiting housing discrimination similar to those in the FHA:
It shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee,
assignee, or managing agent of, or other person having the right to sell, rent or
lease a housing accommodation, constructed or to be constructed, or any agent or
employee thereof:
(2) To discriminate against any person because of race . . . in the terms,
conditions or privileges of the sale, rental or lease of any such housing
20
accommodation or in the furnishing of facilities or services in connection
therewith.
N.Y. Exec. Law § 296(5)(a)(2).
Claims under the FHA and New York Executive Law § 296 are “evaluated under
the same framework.” Olsen v. Stark Homes, Inc., 759 F.3d 140, 153 (2d Cir.
2014)(citation and quotation marks omitted); see Barkley v. Olympia Mortgage Co., No.
04–CV–875 (RJD)(KAM), 2007 WL 2437810, at *18, 2007 U.S. Dist. LEXIS 61940, at
*56–57 (E.D.N.Y. Aug. 22, 2007)(“the standard relevant to [the NYHRL] claims parallel
those applicable under the Fair Housing Act”). Thus, the Plaintiff’s claim under New
York Executive law § 296(5)(a)(2) against the KPM Defendants fails as a matter of law
for the same reason the FHA claims do, and those claims are dismissed.
The Plaintiff also invokes New York Executive law § 296(6), which states:
“It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel
or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.”
The term “person” includes “one or more individuals, partnerships, associations,
corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.”
N.Y. Exec. Law § 292(1).
As a preliminary matter, the Court notes that it has not uncovered a successful
claim under Section 296(6) against an employer or landlord, rather than an individual
participating in the alleged discrimination of that employer or landlord. However, by its
plain terms, claims under Section 296(6) can be brought against corporate entities such as
KPM. The most likely scenario of when such a claim is successful is when the corporate
entity is alleged to have “aided and abetted” another entity, not its employee or tenant.
Turning to the substantive law, “[c]laims of discrimination under § 296(6) of the
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NYHRL are analyzed under the same framework as is used for the FHA.” Rivera v. Inc.
Vill. of Farmingdale, No. 06-CV-2613 (DRH)(ARL), 2011 WL 1260195, at *4
(E.D.N.Y. Mar. 30, 2011).
Under § 296(6), an individual or entity must “actually participate[] in the conduct
giving rise to a discrimination claim” to be held liable. DiPilato v. 7-Eleven, Inc., 662 F.
Supp. 2d 333, 353 (S.D.N.Y. 2009). Here, for the reasons explained in conjunction with
the Plaintiff’s FHA claims against the KPM Defendants, the Plaintiff’s claim under
Section 296(6) fails as a matter of law. Again, there is no plausible allegation that the
KPM Defendants actually participated in Endres’ alleged discriminatory conduct.
Accordingly, the Court grants that part of the motion by the KPM Defendants dismissing
the Plaintiff’s Section 296(6) claim against them.
E. Negligent Infliction of Emotional Distress
Under New York law, the tort of negligent infliction of emotional distress has
four elements: “(1) breach of a duty owed to the plaintiff, which breach either
unreasonably endangered the plaintiff’s physical safety or caused the plaintiff to fear for
his or her physical safety; (2) extreme and outrageous conduct; (3) a causal connection
between the conduct and the injury; and (4) severe emotional distress.” Walia v. Holder,
No. 12-CV-5944 (ADS)(SIL), 2014 WL 5820293, at *18 (E.D.N.Y. Nov. 10, 2014).
In this case, even drawing all inferences in favor of the Plaintiff, the Court
finds that he has failed to adequately plead the existing common law duty of care owed
by the KPM, his landlord, or Downing, its alleged agent, toward him, the tenant.
In New York, “[a] landlord has no [common law] duty to prevent one tenant from
attacking another tenant unless it has the authority, ability, and opportunity to control the
22
actions of the assailant.” Britt v. New York City Hous. Auth., 3 A.D.3d 514, 514, 770
N.Y.S.2d 744, 745 (2d Dep’t 2004). KPM’s power to evict Endres did not furnish it
“with a reasonable opportunity or effective means to prevent or remedy [Endres’s
alleged] unacceptable conduct, since the incident[s] giving rise to the injuries sustained,
and indeed, the pattern of harassment alleged by the plaintiff, arose from a purely
personal dispute between the two individuals [citations omitted].” Id. (citation and
quotation marks omitted).
Contrary to the Plaintiff’s contention, the mere fact that the KPM Defendants
were allegedly made aware of the underlying verbal abuse and threats of physical assault
did not trigger a common law duty on their part to investigate and intervene.
Accordingly, the Court grants that part of the motion by the KPM Defendants
dismissing the Plaintiff’s claims of negligent infliction of emotional distress against them.
F. Breach of Contract
“Under New York law, the elements of a cause of action for breach of contract are
(1) the existence of a contract, (2) performance of the contract by one party, (3) breach by
the other party, and (4) damages suffered as a result of the breach.” In re Sona Mobile
Holdings Corp., No. 13CV04702 (LTS)(DCF), 2014 WL 5781101, at *5 (S.D.N.Y. Nov.
6, 2014)(quoting Beautiful Jewellers Private Ltd. v. Tiffany & Co., 438 F. App’x 20, 21–
22 (2d Cir. 2011).
Here, the parties dispute whether the Plaintiff has adequately plead a breach of
any terms of the lease or other contract. First, the Plaintiff alleges that KPM breached
Part B of a Housing Assistance Payments (“HAP”) Contract, which is attached to the
complaint, entered into between the Plaintiff and KPM. Section 9(a) of Part B provides,
23
in pertinent part: “In accordance with applicable equal opportunity statutes, Executive
Orders, and regulations: The owner must not discriminate against any person because of
race . . . in connection with the HAP contract.” (Compl., Exh 6, at 7.)
The Court has not uncovered, nor does the Plaintiff cite, any case where a claim
for breach of a HAP contractual discrimination provision was sustained against a landlord
or property owner for failure to intervene, whether based on racial animus or not, in
response to harassing behavior from a co-tenant. In fact, the Plaintiff cites no cases of a
successful HAP breach of contract claim in general.
In any event, the Court finds that the Plaintiff’s claim for breach of Section 9(a) of
the HAP contract fails as a matter of law because, as explained above, there is no
plausible allegation that the KPM Defendants acted, or failed to act, on account of the
Plaintiff’s race.
In the complaint, the Plaintiff also invokes Paragraph 12 of the April 21, 2010
Lease which, provides that “[b]y paying the rent and observing all the terms and
conditions herein, Tenant shall peaceably and quietly have, hold and enjoy the Premises
during the term of this Lease.” (Compl., at Exh 4.) The Plaintiff now frames the claim as
one of breach of the “warranty of habitability” under Paragraph 8 of the April 21, 2010
Rental Agreement and statutorily implied in New York leases. Therefore, the Court
deems the Plaintiff to have abandoned his claims based on Paragraph 12 of the April 21,
2010 lease, and dismisses those claims.
Although the complaint makes no specific reference to a “warranty of
habitability,” implied or otherwise, the Court construes the complaint liberally, as it must
on this motion to dismiss, to assert such a claim and determines that notice of this claim
24
is sufficient. (See Compl. ¶ 70)(“Because of [the] Defendants’ actions, Mr. Francis was
unable to fully use and enjoy the Premises despite having met his rent obligations each
month.”). Further, the KPM Defendants had an opportunity to respond to this claim in
their reply papers. For these reasons, the Plaintiff did not need to move for leave to file
an amended complaint to assert this claim.
Turning to the merits of this claim, the Court notes that “[p]ursuant to Real
Property Law § 235–b, every residential lease contains an implied warranty of
habitability which is limited by its terms to three covenants: (1) that the premises are “fit
for human habitation,” (2) that the premises are fit for “the uses reasonably intended by
the parties,” and (3) that the occupants will not be subjected to conditions that are
dangerous, hazardous or detrimental to their life, health or safety.” Solow v. Wellner, 86
N.Y.2d 582,587, 658 N.E.2d 1005 (1995).
The New York Court of Appeals has interpreted this statute broadly, extending a
landlord’s liability to acts of third parties. Park West Mgt. Corp. v. Mitchell, 47 N.Y.2d
316, 327, 418 N.Y.S.2d 310, 391 N.E.2d 128 (1979). The lower courts in New York
have followed suit. See Elkman v. Southgate Owners Corp., 233 A.D.2d 104, 649
N.Y.S.2d 138 (1st Dep’t 1996)(an alleged noxious odor emanating from a retail fish store
in an adjacent building neither owned nor controlled by the landlord cooperative
corporation may be a breach of the implied warranty of habitability); Sargent Realty
Corp. v. Vizzini, 101 Misc.2d 763, 421 N.Y.S.2d 963 (Civ. Ct. N.Y. County 1979)
(floods caused by the upstairs tenant on four occasions which the landlord allowed to
persist resulted in substantial abatement).
25
“Although a landlord may lack direct control over the actions of another tenant,
courts have often applied the implied warranty of habitability to conditions beyond the
landlord’s direct control.” Upper E. Lease Associates, LLC v. Cannon, 30 Misc. 3d
1213(A), 924 N.Y.S.2d 312 (Dist. Ct. 2011) aff’d, 37 Misc. 3d 136(A), 961 N.Y.S.2d 362
(App. Term 2012).
Furthermore, in Poyck v. Bryant, 13 Misc. 3d 699, 705, 820 N.Y.S.2d 774, 780
(Civ. Ct., New York County 2006), the court held that a tenant’s smoking habits may
give rise to a duty to act, to prevent “unreasonable interference” with the rights of other
tenants.
Also, in Auburn Leasing Corp. v. Burgos, 160 Misc.2d 374, 609 N.Y.S.2d 549
(Civ. Ct, Queens County 1994), following a bench trial, the court held that a landlord
breached the statutorily implied warranty of habitability by failing to evict cotenant drug
dealers who bullied, harassed, and threatened the tenant and her family. In that case, the
Court noted that “[t]he defendant-tenant acted reasonably and prudently in vacating the
apartment before the expiration of the lease since it became evident that it was not safe
for her or her family to live in the apartment any longer.” Id. at 377. However, the
Court’s determination that the landlord breached the warranty of habitability did not turn
on whether the tenant vacated the premises or was constructively evicted.
The Court also considers Regensburg v. Rzonca, 14 Misc. 3d 1221 (A), 836
N.Y.S.2d 489 (Dist. Ct. 2007), an eviction proceeding. Following a bench trial, the Court
found a breach of the warranty of habitability for failure to intervene in response to the
harassing behavior of a neighbor. The Court stated: “The notion of leaving emotionally
vulnerable tenants to their own resort, instructing them to (call the police) after being
26
informed of [the fellow tenant]’s harassing behavior, is inconsistent with a boarding
house environment.” Id.
Although this case does not involve a boarding house environment, the Court also
held, relying on Auburn Leasing Corp., that “[e]ven without a bargained for duty, case
law requires a landlord to protect tenants from being bullied and harassed by other drug
dealing tenants.” Id. To be sure, there were additional findings against the landlord in
that case, including the landlord’s pattern of withholding promised “essential services”
such as water and electricity. Id.
While the foregoing cases have recognized a cause of action for breach of the
statutorily implied warranty of habitability, the Appellate Term, First Department has
held that the statutorily implied warranty of habitability “should not be stretched beyond
its breaking point to provide a means for recovering damages allegedly caused by the
personal animus between a residential tenant” and in that case, a roommate. Cameron v.
Aurora Associates, L.P., 26 Misc. 3d 80, 82, 896 N.Y.S.2d 562 (App. Term 2009)
Similarly, in Freda v. Phillips, 36 Misc. 3d 1231(A), 959 N.Y.S.2d 89 (Just. Ct.,
Town of Dutchess County, 2012), following a bench trial, the Court dismissed a petition
based on a breach of the statutorily implied warranty of habitability. The Court stated as
follows:
The Court invited both sides to provide it with any statutory or case law authority
that would support the proposition that the landlord, under the implied warranty
of habitability, had to supervise the behavior of co-tenants.
Despite the industry of plaintiff’s counsel, she was unable to provide any such
clear authority. It is the finding of the Court that the landlady/defendant is under
no obligation to be the den mother of her tenants and assure that they get along.
Id. at *2.
27
This Court respectfully disagrees with this aspect of Freda. As noted above, there
is New York case law, including Poyck, Auburn Leasing Corp., and Regensburg,
holding that the warranty of habitability includes responding to the behavior of cotenants.
Further, in Park West Mgt. Corp., the New York Court of Appeals
extended this warranty to third parties. If landlords can be liable, in certain
circumstances, for tortious and other misconduct by third-parties committed on the
premises by individuals or entities not within their direct control, they should logically be
held liable, in certain circumstances, for tortious and other misconduct of co-tenants, over
whom they enjoy some degree of control.
Having concluded that a tenant may state a claim for breach of the statutorily
implied warranty of habitability against a landlord for failure to intervene in response to
harassing behavior by a co-tenant, the Court turns to the merits of the claim in this case.
The statutory warranty of habitability set forth in New York Real Property Law §
235–b protects against conditions that materially affect the health and safety of tenants or
deficiencies that “in the eyes of a reasonable person . . . deprive the tenant of those
essential functions which a residence is expected to provide.” Solow, 86 N.Y.2d 582,
588, 635 N.Y.S.2d 132, 658 N.E.2d 1005 (citations and quotations omitted).
Here, at this stage of the litigation, the Court concludes that the Plaintiff has
adequately plead a breach of the implied warranty of habitability against KPM. That the
Plaintiff elected to renew his lease during the period of complained-of harassment does
not, as a matter of law, bar this claim, and the KPM Defendants do not cite any authority
to the contrary. Accordingly, the Court denies that part of the motion by the KPM
28
Defendants to dismiss the Plaintiff’s claim for breach of the statutorily implied warranty
of habitability against KPM.
As to Downing, the Court declines to consider her declaration submitted in
support of the motion to dismiss in which Downing denies that she is an officer or
manager of KPM or that she has an ownership interest in the corporation. Such material
is extraneous to the Court’s consideration of a motion to dismiss.
However, although Downing is a signatory to the underlying lease, she signed it
as an agent for KPM, not in her personal capacity. Therefore, the claim for breach of the
statutorily implied warranty of habitability against Downing is dismissed. Compare Yarn
Trading Corp. v. United Pads & Trim Inc., 118 A.D.3d 600, 601, 988 N.Y.S.2d 622, 623
(1st Dep’t 2014)(“The deposition testimony, affidavits, and lease agreement also raise
triable issues as to whether the individual defendant negotiated, as well as signed, the
lease agreement in his personal capacity or only as an agent on behalf of the corporate
defendant”).
III.
CONCLUSION
Based on the foregoing reasons, the motion to dismiss filed by the KPM
Defendants is granted in part and denied in part. The motion is denied as to the
Plaintiff’s claims for breach of the statutorily implied warranty of habitability against
KPM. The motion is otherwise granted. The Clerk of the Court is directed to terminate
Downing as a Defendant.
As noted above, on July 16, 2014, the Clerk of the Court noted the default of
Endres. There having been no activity on the docket as to Endres since that date, the
Court permits the Plaintiff to file a motion for a default judgment against Endres on or
29
before May 1, 2015. Should the Plaintiff fail to do so or to move for an extension, the
Court will dismiss this action as against Endres for failure to prosecute under Rule 41(b).
SO ORDERED.
Dated: Central Islip, New York
March 16, 2015
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Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge
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