Greer v. Mehiel et al
MEMORANDUM AND ORDER. For the foregoing reasons, Greer's request for a preliminary injunction is DENIED. This resolves Docket Nos. 2 and 133. So ordered. Denying 133 LETTER MOTION for Oral Argument on Order to Show Cause addressed to Judge Alison J. Nathan from Steven Greer dated February 2, 2016. Document filed by Steven E. Greer. (Signed by Judge Alison J. Nathan on 2/24/2016) (rjm).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Steven E. Greer,
l 5-cv-6119 (AJN)
Dennis Mehiel, et al.,
ALISON J. NATHAN, District Judge:
Plaintiff Steven E. Greer, a resident of the Battery Park City community at the
southwestern tip of Manhattan, brings this action pro se against the company that owns his
apartment building, the company that manages the building, the Battery Park City Authority
("BPCA"), and several individuals associated with each entity. Greer's suit alleges violations of
his First Amendment rights, violations of the Fair Housing Act, 42 U.S.C. § 3601 et seq., and
defamation. Before the Court today is Greer's request for a preliminary injunction to halt what
he claims is a retaliatory eviction proceeding in state housing court. For the reasons set forth
below, Greer's request for a preliminary injunction is DENIED.
Steven E. Greer resides in Battery Park City, where he rents an apartment at 200 Rector
Place. Second Amended Complaint ("Compl.") ii 4. Mariners Cove Site B Associates
("Mariners Cove") and Milford Management are New York corporations that, respectively, own
and manage the 200 Rector Place building. Id.
iii! 11-12 &
Ex. A at 1. Howard Milstein is the
owner of Milford Management and a 40% owner of Mariners Cove. Id.
Rossi and Janet Maiiin are employees of Milford Management. Id.
Martin, and the landlord corporations comprise the "Landlord Defendants."
The Battery Park City Authority ("BPCA") is a New York State public benefit
corporation established in 1968 to improve the area around Battery Park. See N.Y. Pub. Auth.
Law§ 1971 et seq.; In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 66 F. Supp. 3d
466, 468 (S.D.N.Y. 2014) (describing the BPCA). Dennis Mehiel and Robert Serpico are the
Chairman and Chief Financial Officer of the BPCA, respectively, and with the BPCA are the
"BPCA Defendants." Compl.
Factual Background 1
Greer first moved into his apartment at 200 Rector Place in 2002. Compl.
time, his rent was $2,265 per month. Id. He has since renewed his lease nine times, most
recently in 2013, at which point his rent had risen to $3,395 per month. Id.
Greer's complaint, and the subject of the state housing court litigation (described below),
concerns his claim that his apartment should be considered "rent-stabilized." See id.
In 2009, Greer created a local news website called BatteryPark.TV. Id.
published a number of articles on the website that, among other topics, purported to leak inside
information from sources within the BPCA about the entity's activities. On several occasions,
Greer reported on the resignation of BPCA employees due to scandal, allegedly prior to those
resignations becoming public knowledge. See, e.g., id., Ex. H at 5-6. Greer also alleges that he
founded a tenant's association called "Friends of BPC," which had its first meeting on March 23,
He claims that he has encouraged other tenants to assert their rent stabilization
The facts described herein are taken from Greer's complaint, supporting exhibits, and the affidavits
submitted by the Landlord Defendants in response to Greer's preliminary injunction motion. They are undisputed
unless otherwise noted.
In February 2014, Greer received a letter stating that his lease would not be renewed and
instructing him to vacate the premises by April 30, 2014.
35. In early May 2014, Mariners
Cove began an eviction proceeding against Greer in the Civil Court of the City of New York
("state housing court"). Id.
33 & Ex. C. Greer alleges that at the time the eviction proceedings
were initiated, he was paying above-market rate for his apartment and had not been the subject of
any complaints by residents or the Landlord Defendants. Id.
40. The Landlord Defendants,
however, claim that the decision not to renew Greer's lease was made because Greer had
frequently been late in paying his rent since 2012 and was more than $10,000 in arrears by April
2014. Rossi Aff., Dkt. No. 104, ~~ 10-12.
In March 2014, the state housing court issued an order in which it determined that
Greer's residence is "an unregulated, condominium apartment." Compl., Ex.Fat 1. The court
awarded Mariners Cove "all unpaid use and occupancy from April, 2014 through March, 2015"
and set the case for trial. Id. at 3-4. The court also decided that it would permit Greer to raise
the affirmative defense ofretaliatory eviction. Id. at 2. On January 28, 2016, the state housing
court entered a judgment against Greer for failure to pay court-ordered use and occupancy and
awarded Mariners Cove $44,135. Dkt. No. 134 at 4. The court also awarded Mariners Cove "a
final judgment of possession and the forthwith issuance of [a] warrant of eviction," but stayed
execution of the warrant of eviction to March 31, 2106, on the condition that Greer pays his
February and March use and occupancy. Id.
Greer filed suit in this Court on August 4, 2015. Dkt. No. 1. Greer separately filed an
application for a temporary restraining order and a preliminary injunction preventing Defendants
from continuing the state court eviction proceeding or otherwise attempting to evict him. Dkt.
No. 2. On August 6, 2015, the Court denied Greer's motion for a temporary restraining order,
but permitted him to seek a preliminary injunction and ordered briefing. Dkt. No. 4. The BPCA
Defendants responded on August 24, 2015, with a declaration from their counsel, Steven
Barshov. Dkt. No. 37. Barshov's declaration stated that the motion for a preliminary injunction
should be denied as to the BPCA Defendants because they are not parties to the state housing
court litigation. Id. ~~ 8-9. The next day, the Landlord Defendants responded with a
memorandum of law in opposition to Greer's application for a preliminary injunction. Dkt. No.
40. Greer filed a reply on August 26, 2015. Dkt. No. 48.
The current operative complaint, the Second Amended Complaint, was filed on
November 4, 2015. Dkt. No. 85. Both groups of Defendants have moved to dismiss the Second
Amended Complaint, Dkt. Nos. 102 & 114, and those motions are currently pending before the
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter
v. Nat. Res. Def Council, Inc., 555 U.S. 7, 24 (2008). A court may issue a preliminary
injunction only "upon a clear showing that the plaintiff is entitled to such relief." Id. at 22. In
this circuit, a party seeking a preliminary injunction must make one of two showings. First, he
may "show that he is likely to succeed on the merits; that he is likely to suffer irreparable harm
in the absence of preliminary relief; that the balance of equities tips in his favor; and that an
injunction is in the public interest." Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 825 (2d
Cir. 2015). Alternatively, "he may show irreparable harm and either a likelihood of success on
the merits or 'sufficiently serious questions going to the merits to make them a fair ground for
litigation and a balance of hardships tipping decidedly toward the party requesting the
preliminary relief.'" Id. (quoting Christian Louboutin SA. v. Yves Saint Laurent Am. Holdings,
Inc., 696 F.3d 206, 215 (2d Cir. 2012)).
In considering a motion for a preliminary injunction, "'there is no hard and fast rule in
this circuit that oral testimony must be taken ... or that the court can in no circumstances dispose
of the motion on the papers before it." Md. Cas. Co. v. Realty Advisory Bd. on Labor Relations,
107 F.3d 979, 984 (2d Cir. 1997) (internal quotation marks and citation omitted). Rather, an
evidentiary hearing is required only if there are "essential facts" in dispute. Jn re Rationis
Enters., Inc. of Panama, 261 F.3d 264, 269 (2d Cir. 2001). When assessing Greer's pleadings,
the Court is mindful that "the submissions of a pro se litigant must be construed liberally and
interpreted to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original) (quotation marks and citation
Greer's complaint raises four causes of action: (1) that the Defendants retaliated against
him for exercising his First Amendment rights, in violation of 42 U.S.C. § 1983; (2) that the
Defendants violated the Fair Housing Act by withholding rent-stabilization protections, thus
making 200 Rector Place unaffordable to non-white tenants; (3) that the Defendants retaliated
against him for his reporting and tenant organizing activities, in violation of the Fair Housing
Act; and (4) that the Landlord Defendants defamed him. He seeks a preliminary injunction
preventing Defendants from continuing the state comt eviction proceeding or otherwise
attempting to evict him.
Although a preliminary injunction is always an extraordinary remedy, the relief Greer
seeks is particularly exceptional: he asks this Court to intervene in a state housing court case and
halt an eviction that the state court has now approved. Any time a federal court confronts the
prospect of staying a state court action or enjoining state court relief, questions concerning the
jurisdiction of the federal courts are likely to arise. That is certainly true here, and the Landlord
Defendants have put forward several reasons why the Court should not reach the merits of
Greer's preliminary injunction application. The Court concludes, however, that it has subject
matter jurisdiction over this dispute and that Greer may seek a preliminary injunction on the
basis of his First Amendment retaliation claim. But the Court also concludes that Greer has not
alleged an irreparable injury and that his request for a preliminary injunction must therefore be
The Landlord Defendants advance three main arguments as to why the Court lacks
jurisdiction over this case or otherwise does not have the authority to issue an injunction. First,
they contend that the Court lacks subject matter jurisdiction over state landlord-tenant disputes;
second, they argue that the Anti-Injunction Act bars the Court from enjoining the state eviction
proceeding; and third, they claim that the Court must or should abstain from interfering with the
Subject Matter Jurisdiction
"[B]efore deciding any case," a court must assure itself that "the case is properly within
[its] subject matter jurisdiction." United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014)
(quotation marks and citation omitted). The Landlord Defendants argue that the Court broadly
lacks subject matter jurisdiction over landlord-tenant matters involving eviction proceedings, and
they cite several cases in which courts held that a plaintiff could not bring or remove actions that
sought only to raise issues of state housing law. See, e.g., Glen 6 Assocs. Inc. v. Dedaj, 770 F.
Supp. 225 (S.D.N.Y. 1991) (New York summary eviction proceeding could not be removed to
federal court). Three of Greer's four causes of action, however, arise directly under federal law.
131, 135, 141. And the Landlord Defendants have not suggested, much less
shown, that there is a landlord-tenant exception to federal question jurisdiction.
The Landlord Defendants do suggest though that Greer's two Fair Housing Act claims
should be decided in state court, citing a case from this district in which the court held that it
lacked jurisdiction over a plaintiff's Fair Housing Act claims. See Kristopher v. Stone St.
Properties, LLC, No. 13-CV-566 (RJS), 2013 WL 499752 (S.D.N.Y. Jan. 29, 2013). But in
Kristopher, the plaintiff brought suit in federal court after the state housing court had already
issued a warrant of eviction. Id. at 2013 WL 499752, *2. Accordingly, the court held that, to the
extent the plaintiff was challenging that eviction order, it lacked jurisdiction under the Rooker-
Feldman abstention doctrine (discussed below). Id. at 2013 WL 499752, *3. The court did not,
however, suggest that it generally lacked jurisdiction over the plaintiff's Fair Housing Act
claims. To the contrary, the court explained that to the extent the plaintiff sought to "stay further
eviction proceedings in state court," the court did have jurisdiction over such claims but was
precluded from enjoining the proceedings under the Anti-Injunction Act. Id. (emphasis added).
The same is true of Geer' s claims here: because he brought suit in federal court before the state
housing court issued its warrant of eviction, the Court has subject matter jurisdiction over all his
claims. But as explained below, the Anti-Injunction Act bars this Court from issuing a
preliminary injunction on the basis of his Fair Housing Act claims.
The Anti-Injunction Act
The Anti-Injunction Act (AIA) prohibits a federal court from granting "an injunction to
stay proceedings in a State court except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283.
For three of Greer's four claims-his two Fair Housing Act claims and his defamation claimthe AIA bars the Court from enjoining the state housing court proceeding or staying the warrant
of eviction. As the court held in Kristopher, none of the three exceptions to the AIA apply to
Fair Housing Act claims, so long as the plaintiff "may raise [his] claim that Defendants violated
the Fair Housing Act as an affirmative defense to the eviction proceeding." Kristopher, 2013
WL 499752, at *3-4. That is the case here because the state housing court permitted Greer "to
raise the defense ofretaliatory eviction." Compl., Ex.Fat 2. 2 Similarly, Greer's defamation
claim, which arises under state law, does not trigger any of the AIA's exceptions.
But the primary ground on which Greer seeks a preliminary injunction is his First
Amendment Retaliation claim. See Pl. Br. 5 ("The retaliatory eviction proceedings in this case,
In its most recent order, the state housing court indicated that Greer's affirmative defenses and
counterclaims were "dismissed without prejudice to a plenary action." Dkt. No. 134 at 4. But even when a state
housing court chooses to "sever complicated discrimination defenses or counterclaims," so long as "the severed
claims still would be litigated in state court[,] the possibility of severance ... has no effect on the Anti-Injunction
Act analysis." Kristopher, 2013 WL 499752, at *4 (quotation marks and citation omitted).
which the Plaintiff seeks an injunction to stop, is a First Amendment issue."). 3 That claim,
which arises under 42 U.S.C. § 1983, is not barred by the AIA. The Supreme Court has held that
"§ 1983 is an Act of Congress that falls within the 'expressly authorized' exception of[the
AIA]." Mitchum v. Foster, 407 U.S. 225, 243 (1972); see also Ram v. Lal, 906 F. Supp. 2d 59,
71 (E.D.N.Y. 2012) (holding that the AIA does not bar a First Amendment claim where the
"Plaintiffs have made out a cognizable Section 1983 claim"). The Landlord Defendants do not
address the applicability of the AIA to Greer's First Amendment Claim, however, on the grounds
that Greer only raises that claim with respect to the BPCA Defendants. Landlord Defs. Opp. Br.
15. And the BPCA Defendants do not address the issue because they are not parties to the state
housing court proceeding, and Greer therefore cannot obtain injunctive relief, with respect to that
proceeding, against them. See Barshov Deel., Dkt. No. 37, at iii! 8-9. Although the "First Cause
of Action" heading in Greer's complaint does indicate that he brings his First Amendment
retaliation claim against only the BPCA Defendants, see Compl. at 24, none of the Defendants
address whether the Court must nonetheless read his complaint as stating a claim for First
Amendment retaliation against both the BPCA Defendants and the Landlord Defendants. If
Greer states such a claim, then the AIA is no bar to injunctive relief.
First Amendment Retaliation Claim
As previously explained, the Court has an obligation to construe Greer's pleadings
liberally and to interpret them as raising the strongest possible arguments they suggest.
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). Viewed through that
lens, Greer's complaint states a cognizable section 1983 claim for First Amendment retaliation
against both the BPCA Defendants and the Landlord Defendants.
Although section 1983 only applies to acts committed under color of state law, a plaintiff
may state a section 1983 claim against a private entity "on a section 1983 conspiracy theory" if
The Court uses "Pl. Br.," "Landlord Defs. Opp. Br.," and "Reply Br." to refer to the briefing materials
submitted with respect to Greer's request for a preliminary injunction. Citations to the briefing on the motions to
dismiss are identified according to the party that filed the motion, i.e., "Pl. Opp. to BPCA Defs. Mot. to Dismiss Br."
the complaint "allege[s] facts demonstrating that the private entity acted in concert with the state
actor to commit an unconstitutional act." Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324 (2d
Cir. 2002) (quotation marks and citation omitted). "Put differently, a private actor acts under
color of state law when the private actor 'is a willful participant in joint activity with the State or
its agents."' Id. (quoting Adickes v. S.H Kress & Co., 398 U.S. 144, 152 (1970)). The Second
Circuit has long cautioned that a conspiracy to violate civil rights is easy to allege, and that
courts should therefore subject such claims to greater scrutiny. See Angola v. Civiletti, 666 F.2d
1, 4 (2d Cir. 1981). Accordingly, "[a] merely conclusory allegation that a private entity acted in
concert with a state actor does not suffice to state a§ 1983 claim against the private entity."
Ciambriello, 292 F.3d at 324.
Although Greer identifies only the BPCA Defendants under the "First Cause of Action"
heading in his complaint, his allegations under that heading-and throughout the complaintmake clear that he views his eviction as the product of a conspiracy between the Landlord
Defendants and the BPCA Defendants to retaliate against him for his reporting. See, e.g.,
1 (alleging that the Defendants "colluded to evict Plaintiff from his apartment" and in
doing so "violated Plaintiffs First Amendment rights"). Many of Greer's allegations going to
this conspiracy are indeed conclusory. For instance, he claims that Milstein, the owner of the
company that manages Greer's apartment, was "working in collusion with [the BPCA
Defendants] who also wanted the Plaintiff silenced." Compl.
46. But elsewhere in Greer's
complaint the allegations are more specific. He dedicates an entire section of the complaint to
recounting conversations with purported witnesses to the conspiracy between the BPCA
Defendants and the Landlord Defendants. See id
58-67. In that section, Greer includes
detailed allegations about specific conversations he had with former BPCA employees
concerning the alleged conspiracy. For instance, Greer claims that on January 12, 2014, "Vince
McGowan, a former senior executive employed by the BPCA who still had connections to
BPCA insiders, tipped off Plaintiff that the BPCA was working to evict him." Id.
further alleges that he "subsequently spoke to Mr. McGowan on the phone, and Mr. McGowan
confirmed that ... Serpico [BPCA's CFO] was working with other Defendants to evict the
Plaintiff by not renewing his lease." Id. ~ 59. Additionally, Greer claims that he was contacted
by another former BPCA employee, Kirk Swanson, on May 5, 2014. Id. ~ 63. Greer recounts a
conversation with Swanson in which Swanson reportedly "acknowledged that it was well known
within the offices of the BPCA that the BPCA had pressured Mariners, Milford, and Rossi to not
renew Plaintiff's lease." Id.
64. Adding detail to this allegation, Greer claims that "Swanson
said that he was first informed in January of 2014 of the plan to not renew Plaintiff's lease by
Kevin McCabe, the Chief of Staff to Mehiel [BPCA' s Chairman and CEO]." Id.
allegedly received additional proof of the BPCA's involvement in the decision not to renew
Greer's lease when he "directly asked Serpico in January of 2014 whether he was responsible for
the non-renewal letter sent to Plaintiff, and Serpico confirmed that he was." Id.
In the briefing on their pending motion to dismiss, the BPCA Defendants label Greer's
conspiracy allegations "grossly inadequate." BPCA Defs. Mot. to Dismiss Br. 15. 4 But that
characterization overlooks the above allegations, which provide details as to the dates on which
Greer spoke with former BPCA employees, the individuals who participated in (and allegedly
initiated) the conspiracy, and the object of the conspiracy-i.e., the non-renewal of Greer's lease.
In other words, Greer does more than just assert a conspiracy without any plausible factual basis.
Compare Corsini v. Brodsky, No. 13-CV-2587 (LTS), 2015 WL 3456781, at *9 (S.D.N.Y. May
27, 2015) (dismissing section 1983 conspiracy claim where plaintiff alleged that two supposedly
false arrests "occurred 'with the aid and in conspiracy with the City defendants,' without
explaining what facts he relied on to draw this conclusion"). To be sure, the Defendants may
have good reason to think that Greer's allegations will ultimately prove to be meritless. But
although Greer's "claim may one day be ripe for summary judgment," Dunkelberger v.
Dunkelberger, No. 14-CV-3877 (KMK), 2015 WL 5730605, at *22 (S.D.N.Y. Sept. 30, 2015), at
Although the Comi does not decide either of the pending motions to dismiss today, much of the analysis in
this Memorandum and Order will of course apply in resolving those motions.
this preliminary stage the Court must read his complaint to state a claim that the Landlord
Defendants and BPCA Defendants conspired to evict him.
This alleged conspiracy is only actionable under section 1983, however, if it is in
retaliation for Greer's exercise of his First Amendment rights. "To plead a First Amendment
retaliation claim a plaintiff must show: (1) he has a right protected by the First Amendment; (2)
the defendant's actions were motivated or substantially caused by [plaintiff's] exercise of that
right; and (3) the defendant's actions caused him some injury." Smith v. Campbell, 782 F.3d 93,
100 (2d Cir. 2015) (alteration in original) (quotation marks and citation omitted). The only
prong of this test that is fairly in dispute here is the second: whether Greer has sufficiently
alleged that the Defendants were motivated to evict Greer on the basis of his reporting. 5 With
respect to that prong, the Second Circuit has observed that "[t]he ultimate question ofretaliation
involves a defendant's motive and intent, which are difficult to plead with specificity in a
complaint." Gagliardi v. Vil!. of Pawling, 18 F.3d 188, 195 (2d Cir. 1994). Accordingly,
although "a bald and uncorroborated allegation of retaliation might prove inadequate to
withstand a motion to dismiss, it is sufficient to allege facts from which a retaliatory intent on the
part of the defendants reasonably may be inferred." Id.
Here, Greer's allegations concerning the blog posts he wrote about the BPCA are
sufficient to infer a retaliatory intent. For instance, on September 12, 2012, Greer published a
blog post with the headline "Exclusive: President/CEO of BPCA Gayle Horwitz resigns."
Compl., Ex. Hat 5. The post implies that Horwitz had acted corruptly, observing: "Ironically,
or perhaps not, Ms. Horwitz is taking a position at Nardella & Co, which specializes in
uncovering information related to bribery and corruption investigations." Id. On August 21,
The BPCA Defendants, in their motion to dismiss briefing, make an argument that Greer has not suffered
a sufficient First Amendment injury, as there is no indication that the eviction proceeding has chilled his speech.
BPCA Defs. Mot. to Dismiss Br. 15-16. The question of whether Greer has alleged a chilling effect is discussed
inji·a, in the context of irreparable injury, but a plaintiff need not allege such a chilling effect in order to state a claim
for First Amendment retaliation. See Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) ("Chilled speech is
not the sine qua non of a First Amendment claim. A plaintiff has standing ifhe can show either that his speech has
been adversely affected by the government retaliation or that he has suffered some other concrete harm" (emphasis
in original)). Here, that concrete harm is Greer's impending eviction.
2013, Greer published another blog post about personnel changes at the BPCA, this one with the
headline: "BPCA President Demitrios Boutris resigns amidst internal investigation." Id.
Included in the post was the claim that"[ s]ome staff alleged to investigators hired by the BPCA
that Mr. Boutris used the 'N-word' with African American staff." Id. It is reasonable to infer
from these posts, which report unfavorably on previous BPCA employees and imply that those
individuals engaged in corruption and harassment, that the BPCA Defendants had motive to
retaliate against Greer. He has therefore stated a claim for First Amendment retaliation.
Having concluded that Greer alleges a conspiracy to engage in First Amendment
retaliation-a claim that is not subject to the AIA-the only remaining basis for declining to
reach the merits of the preliminary injunction application would be a finding that the Court
should abstain from exercising its jurisdiction over this case. The Landlord Defendants claim
that two distinct abstention doctrines apply here. The Court disagrees.
The first basis for abstention on which the Landlord Defendants rely is Burford
abstention. See Burford v. Sun Oil Co., 319 U.S. 315 (1943). The underlying rationale for
Burford abstention is that federal courts should abstain from interfering in complex state
administrative schemes. As the Supreme Comt has explained:
Where timely and adequate state-court review is available, a federal court sitting in equity
must decline to interfere with the proceedings or orders of state administrative agencies:
(1) when there are difficult questions of state law bearing on policy problems of
substantial public import whose importance transcends the result in the case then at bar;
or (2) where the exercise of federal review of the question in a case and in similar cases
would be disruptive of state efforts to establish a coherent policy with respect to a matter
of substantial public concern.
New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (quotation
marks and citation omitted). The Landlord Defendants argue that, because landlord-tenant law
"is a complex subject area that is heavily regulated by state authorities," Burford abstention
applies here. Landlord Defs. Opp. Br. 9.
This rationale, however, suffers from the same defect as the Landlord Defendants' claim
that the Court lacks subject matter jurisdiction: it ignores the federal question claims that are
plead because they arise in the context of a landlord-tenant dispute. Whatever the Landlord
Defendants may think of the merits of Greer's complaint, the claim that they conspired with the
BPCA Defendants to evict Greer in response to his reporting falls within the realm of
constitutional violations that federal courts adjudicate under section 1983. Greer's First
Amendment retaliation claim involves no "difficult questions of state law," nor does it risk
disrupting "state efforts to establish a coherent policy with respect to a matter of substantial
public concern." New Orleans, 491 U.S. at 361 (quotation marks and citation omitted). By
contrast, the principal case the Landlord Defendants rely on-Moos v. Wells, 585 F. Supp. 1348
(S.D.N.Y. 1984)-involved only an effort "to evict and collect back rent from ... tenants" and
did not raise any federal questions. Id. at 1348. The Landlord Defendants' rationale for Burford
abstention is therefore inapplicable here. 6
The Landlord Defendants additionally argue that "[a]bstention is also appropriate where a
federal court is asked to adjudicate a dispute concerning a state tax program." Landlord Defs.
Opp. Br. 9. It is unclear whether they advance this as a second argument in favor of Burford
abstention or as a distinct abstention doctrine. Either way, the only controlling authority the
Landlord Defendants cite is a passage from Colorado River Water Conservation District v.
United States-a case known for an entirely different abstention doctrine that the Landlord
Defendants decline (wisely) to invoke-in which the Court noted that "abstention is appropriate
where ... federal jurisdiction has been invoked for the purpose of restraining ... collection of
state taxes." 424 U.S. 800, 816. This case does not involve an effort to collect taxes. Nor does
In a footnote to their discussion of Burford abstention, the Landlord Defendants suggest that Younger
abstention would be appropriate "for public entities," i.e., the BPCA Defendants (though implicitly not for the
Landlord Defendants). Landlord Defs. Opp. Br. 9 n.5; see also Younger v. Harris, 401 U.S. 37 (1971). But as the
Supreme Court recently held, the "exceptional" cases subject to Younger abstention are "state criminal
prosecutions," "civil enforcement proceedings," and "civil proceedings involving certain orders that are uniquely in
furtherance of the state courts' ability to perform their judicial functions." Sprint Commc 'ns, Inc. v. Jacobs, 134 S.
Ct. 584, 588 (2013). The Landlord Defendants do not argue that this case fits into any of these three categories, and
the Court concludes that none apply.
Greer's First Amendment retaliation claim raise the prospect that this Court would engage in "a
judicial review of a state tax program," which the Landlord Defendants also claim is sufficient
for abstention. Landlord Defs. Opp. Br. 10. The Court cannot abstain from exercising its
jurisdiction on these grounds.
The second basis for abstention the Landlord Defendants invoke is the Rooker-Feldman
doctrine. See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D. C. Court ofAppeals v. Feldman,
460 U.S. 462 (1983). The Rooker-Feldman doctrine provides that "federal district courts lack
jurisdiction over suits that are, in substance, appeals from state-court judgments." Hob lock v.
Albany Cty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). The doctrine has four
First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must
complain of injuries caused by a state-court judgment. Third, the plaintiff must invite
district court review and rejection of that judgment. Fourth, the state-court judgment
must have been rendered before the district court proceedings commenced-i.e., RookerFeldman has no application to federal-court suits proceeding in parallel with ongoing
Id at 85 (quotation marks, citation, and alterations omitted).
Rooker-Feldman is inapplicable here because the fourth factor does not apply. The state
housing court's decision to issue a warrant of eviction-the "state-court judgment" that Greer
would have to be appealing to trigger the doctrine-was issued months after Greer commenced
this suit. The Landlord Defendants nonetheless argue that, because the state housing court issued
a decision in March 2015-a decision awarding the Landlord Defendants unpaid use and
occupancy for April 2014 through March 2015, see Compl., Ex. F-the fourth requirement is
met. But that judgment is irrelevant to the claim Greer has raised in seeking a preliminary
injunction, namely that he is the victim of a retaliatory eviction. To be sure, the state housing
court's March 2015 order also allowed Greer to bring his retaliatory eviction claim, but it did not
purport to decide it. Rather, the court made clear that "[i]t shall be left to the trial court to decide
whether respondent has met his burden to prove this defense." Id at 2. Accordingly, when
Greer commenced this suit in August 2015, he was not seeking review of a state court judgment.
Rooker-Feldman abstention therefore does not apply.
With those threshold matters addressed, the Court turns to the showing Greer must make
to succeed on his preliminary injunction motion. In assessing whether to issue a preliminary
injunction, "[t]he showing of irreparable harm is '[p ]erhaps the single most important
prerequisite."' Kamerling v. Massanari, 295 F .3d 206, 214 (2d Cir. 2002) (second alteration in
original) (quoting Bell & Howell: Mamiya Co. v. Mase! Supply Co., 719 F.2d 42, 45 (2d Cir.
1983)). To make such a showing, a party seeking a preliminary injunction must demonstrate that
"there is a continuing harm which cannot be adequately redressed by final relief on the merits
and for which money damages cannot provide adequate compensation." Id. (quotation marks
and citation omitted). Moreover, this harm must be "actual and imminent, not remote or
speculative." Id. Greer points to two injuries that he claims constitute irreparable harm: his
impending eviction and the chilling effect that the eviction proceeding has on his speech. But, as
elaborated below, eviction is not an irreparable injury in Greer's case, and Greer has not alleged
an actual chilling effect. Accordingly, Greer has not made a clear showing of ineparable injury,
and his request for a preliminary injunction must be denied.
If Greer is evicted from his apartment, he will not suffer an irreparable injury. 7 Greer
claims that "[t]he cost to move is enormous" and that he may have difficulty finding another
apartment because of "reference checks from previous landlords." Pl. Reply Br. 4. But the
Second Circuit has held that eviction is not an irreparable injury in circumstances similar to
Greer's. See Tellock v. Davis, 84 F. App'x 109 (2d Cir. 2003). In Te/lock, the defendants
Because the state housing court has issued a wmTant of eviction, it is no longer premature to consider
whether evicting Greer would cause irreparable harm. See Mullarkey v. Borglum, 323 F. Supp. 1218, 1229
(S.D.N.Y. 1970) (holding plaintiff had not shown irreparable harm where state housing court had not issued warrant
of eviction and the defense of retaliatory eviction was available).
terminated the plaintiff's lease after he objected to a rent increase. Id. at 111. He brought suit in
federal court, arguing that the defendants discriminated against him on the basis of race, and
sought a preliminary injunction to halt proceedings in state housing court. Id. The Second
Circuit affirmed the district court's denial of a preliminary injunction, in part because the
plaintiff "failed to demonstrate that he will suffer irreparable harm." Id. The court reasoned that
the costs of finding a new apartment after eviction, "includ[ing] the price of increased rent plus
moving expenses," are injuries that "can be compensated by money damages." Id. at 112.
Additionally, the court emphasized that the plaintiff earned "approximately $70,000 a year as an
attorney and takes home approximately $3,000 each month" and that he "does not face the threat
of imminent eviction" because there was approximately a month in between the court's decision
and the date on which the parties had stipulated that the plaintiff would vacate the apartment. Id.
The facts of Tellock map well onto Greer's situation. Greer claims that he pays $3,395 in
rent a month, and he does not allege (nor could he plausibly) that he cannot afford another
apartment. See Reply Br. 1, 4. Additionally, the state housing court stayed the execution of the
warrant of eviction until March 31, 2016, which is more than a month from now. Dkt. No. 144
at 4. Accordingly, the costs and inconveniences of moving, including perhaps the cost of renting
a more expensive apartment, are harms that can be compensated by money damages. See
Demarco v. Redwood Mgmt. Co., No. 11-CV-2665, 2011 WL 6292199, at *2 (N.D. Ohio Dec.
14, 2011) (holding that "monetary damages will remedy rental payments and moving costs
should the Demarcos prevail" and explaining that "[a]lthough the Court is sensitive that a midDecember eviction in Northern Ohio may cause the Demarco family a hardship, that unfortunate
fact does not make eviction an irreparable harm"). In the unlikely event that Greer cannot find a
new apartment between now and March 31, 2106, it is likely that he could recover damages for
whatever short-term accommodations are necessary while he completes his apartment search.
Cf Am. Postal Workers Union v. US. Postal Serv., 766 F.2d 715, 721 (2d Cir. 1985) (noting
that, in government personnel cases, "irreparable harm is not shown ... by a showing of
financial distress or difficulties in obtaining other employment").
To be sure, courts in this circuit have held that eviction can be an irreparable injury. Yet
in every such case the Court has found, the party facing eviction also faced the real threat of
homelessness. See, e.g., Wiesner v. 321 W 16th St. Assocs., No. OO-CV-1423 (RWS), 2000 WL
1191075, at *7 (S.D.N.Y. Aug. 22, 2000) ("Wiesner has made the necessary showing of
irreparable injury because of the likelihood that the Defendants will proceed with eviction,
coupled with the unlikely prospect that Wiesner could find alternative, affordable housing in
New York City."); Ayyad-Ramallo v. Marine Terrace Assocs. LLC, No. 13-CV-7038 (PKC),
2014 WL 2993448, at *4 (E.D.N.Y. July 2, 2014) (noting that "[g]enerally, eviction from one's
home constitutes irreparable injury" in a case where the plaintiff lived in low-income housing);
Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp. 2d 307, 328 (E.D.N.Y. 2012) ("[l]f the IHA
is not enjoined from pursuing the summary holdover proceeding, the Plaintiffs will be evicted
and rendered homeless."). Compared with these cases, the facts of Tellock apply far more
squarely here. Consistent with the Second Circuit's holding in Tellock, Greer's eviction would
not be an irreparable injury.
Finally, in addition to the generalized injuries stemming from eviction, Greer claims that
his apa1iment "has a unique location" and that he cannot operate his local news site from an
apartment outside of Battery Park City. Reply Br. 3-4. But Greer makes no factual allegations
that would allow the Court to infer that he cannot obtain another apartment in Battery Park City.
To the contrary, he repeatedly alleges that he is paying "above-market rent" for his apartment.
iii! 1, 40, 42, 46.
At bottom, Greer has alleged that eviction would be unpleasant and
inconvenient, but he has not alleged that it would be an irreparable harm.
Greer's second basis for claiming that he will suffer irreparable harm is that evicting him
will have a chilling effect on his speech, particularly his future reporting. 8 There is no dispute
In the briefing on the BPCA Defendants' motion to dismiss, Greer also alleges that he has been chilled
from attending BPCA public meetings and "fear[s] for his safety" when he writes about the BPCA because of
"numerous threats and harassing incidents" perpetrated by the BPCA 's Park Enforcement Patrol. Pl. Opp. to BPCA
Defs. Mot. to Dismiss Br. 8. A preliminary injunction concerning the state court eviction proceeding would have no
that"[ v]iolations of First Amendment rights are commonly considered irreparable injuries for the
purposes of a preliminary injunction." Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.
1996). But as the Second Circuit has explained, courts treat claims of First Amendment
abridgement differently depending on the nature of the restriction on speech. See Bronx
Household of Faith v. Bd. of Educ. of City of New York, 331 F.3d 342, 349 (2d Cir. 2003). On
the one hand, "[w ]here a plaintiff alleges injury from a rule or regulation that directly limits
speech, the irreparable nature of the harm may be presumed." Id. (emphasis added). On the
other hand, "in instances where a plaintiff alleges injury from a rule or regulation that may only
potentially affect speech, the plaintiff must establish a causal link between the injunction sought
and the alleged injury." Id. at 350. In those instances, the plaintiff must "establish an actual
chilling effect." Id. at 349. And "[a]llegations of a 'subjective chill [of First Amendment rights]
are not an adequate substitute for a claim of specific present objective harm or a threat of specific
future harm."' Latino Officers Ass'n v. Safir, 170 F.3d 167, 170 (2d Cir. 1999) (alteration in
original)(quotinglairdv. Tatum,408U.S.1, 13-14(1972)).
Greer's case fits into the second category of First Amendment claims-he does not argue
that the Defendants are directly regulating or restricting his speech, but rather that their actions
will chill his "future reporting and behavior." Reply Br. 4. But based on Greer's pleadings and
exhibits, he cannot show the actual chilling effect required to establish irreparable harm. First,
Greer has continued to report unfavorably on the BPCA during the pendency of the state court
eviction proceeding. When courts evaluate claims that an individual's speech has been chilled,
they often look to whether that speech has continued in the wake of the allegedly retaliatory
action. In Curley v. Village of Suffern, for instance, the court rejected the plaintiffs First
Amendment retaliation claim on the grounds that he had not demonstrated an actual chilling
effect. 268 F.3d 65, 73 (2d Cir. 2001). The plaintiff, a previous mayoral candidate, claimed that
he had been "arrested in retaliation for his comments made during the 1993 mayoral campaign"
effect on these actions, however, and therefore this source of an alleged chilling effect is irrelevant to the irreparable
and that this arrest had a chilling effect on his speech. Id. The court found, however, that the
fact that he "continued his 1994 campaign for village trustee even after the arrest and ran again
for village public office in 1995" demonstrated that he could "show no change in his behavior,''
and therefore had "quite plainly shown no chilling of his First Amendment right." Id.; see also
Ghaly v. Simsarian, No. 04-CV-1779 (DJS) (TPS), 2006 WL 3346213, at *7 (D. Conn. Nov. 17,
2006) (finding no chilling effect when "the evidence indicate[d] that since receiving her notice of
transfer, the plaintiff ha[d] continued to complain about her conditions of employment").
Here, the blog posts Greer attached to his complaint leave no question that Greer has
continued, if not increased, his criticism of the BPCA since he received the letter indicating his
lease would not be renewed in February 2014. In October 2014, for instance, he published a post
with the headline "Exclusive: BatteryPark.TV obtains sexually inappropriate emails sent by CFO
Robert Serpico to BPCA staff." Compl., Ex.Hat 7. The post claims that a "reliable source"
described the CFO's "pattern of 1960's Mad-Men-like sexual misconduct." Id. Greer returned
to this theme several times in the ensuing year. See id. at 19 ("Did BPCA' s General Counsel get
a raise in exchange for not investigating Robert Serpico's latest sexual harassment scandal?"); id.
at 3 ("The BPCA's CFO Robert Serpico has a human resource file filled with decades of sexual
harassment complaints."). Greer's own exhibits conclusively demonstrate that the eviction
proceeding has not chilled his reporting. See Curley, 268 F.3d at 73 ("Although plaintiff insists
that his 1995 campaign was affected by his arrest-namely, that it was demoralized and only
amounted to a token effort-the fact remains that Curley chose to run for public office even after
the events of August 1994. Where a party can show no change in his behavior, he has quite
plainly shown no chilling of his First Amendment right to free speech.").
Second, to the extent Greer's claim is that he will be chilled after he is evicted, that
argument does not withstand scrutiny. As several courts in this circuit have noted, an individual
cannot be chilled from speaking after the retaliating entity has lost whatever leverage it
purportedly had. For instance, in Shady v. Tyson the plaintiff was a neurosurgeon who sought a
preliminary injunction because he was "on the verge of losing his faculty appointment" and
hospital privileges, allegedly in retaliation for voicing concerns about the treatment of patients at
the hospital where he worked. 5 F. Supp. 2d 102, 104 (E.D.N.Y. 1998). In holding that the
plaintiff had not established that his speech would be chilled in the absence of an injunction, the
court explained that the plaintiff did not allege "that he is being forced to choose between
exercising his First Amendment rights and retaining his job." Id. at 108. Rather, the court
continued, "[h]e already has lost his position and is free to speak on any subject he pleases." Id.
In other words, once the retaliatory action has been taken, and there is no possibility of future
retaliation, there is no threat to future speech. Or as another court put it, there is a distinction
between situations in which "a person has lost his First Amendment right and has retained his
employment," and situations in which "a person has lost his employment but retained his First
Amendment rights." Blum v. Schlegel, 830 F. Supp. 712, 723 (W.D.N.Y. 1993), aff'd, 18 F.3d
1005 (2d Cir. 1994). "[I]n the latter case, the damage is the loss of income, not the loss of First
Amendment rights." Id. Here, even if Greer loses his apartment, he will retain his First
Amendment rights. He therefore has not alleged an "actual chilling effect." Bronx Household,
331 F.3d at 349.
In sum, evicting Greer would not cause him irreparable injury, and he has not shown that
halting the eviction proceeding would preserve any of his First Amendment rights. Greer
therefore has not made the clear showing of irreparable harm required to secure a preliminary
injunction. Because the Court reaches this conclusion based on the facts alleged in Greer's
complaint and the exhibits he has submitted, there are no "essential facts" in dispute that would
require the Court to conduct an evidentiary hearing. In re Rationis Enters., Inc. of Panama, 261
F.3d 264, 269 (2d Cir. 2001). Taking all of Greer's allegations as true, there is no dispute that
Greer can afford his apartment in Battery Park City, that Greer will have more than a month to
find a new apartment, and that Greer has continued his criticism of the BPCA during the
pendency of the state housing comi proceeding. Accordingly, he cannot demonstrate irreparable
harm and is not entitled to the extraordinary remedy of a preliminary injunction. See Fournier v.
Bank ofAm. Corp., No. 13-CV-702, 2014 WL 421295, at *9 (N.D.N.Y. Feb. 4, 2014) (denying
request for preliminary injunction on the pleadings because "Plaintiff has failed to allege any
facts plausibly indicating that she would suffer irreparable harm").
For the foregoing reasons, Greer's request for a preliminary injunction is DENIED. This
resolves Docket Nos. 2 and 133.
Dated: February_, 2016
New York, New York
United States District Judge
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