Greer v. Mehiel et al
MEMORANDUM OPINION & ORDER re: 371 MOTION for Summary Judgment; 366 FIRST MOTION for Summary Judgment; 379 MOTION for Summary Judgment: Defendants' motions for summary judgment are granted, while Plaintiff's motion for sum mary judgment is denied. This resolves Docket Numbers 366, 371, and 379. Within three weeks of the date of this Order, Defendants shall file on the public docket the documents discussed above. Similarly, within three weeks of the date of this Order, Plaintiff shall submit to the Court a clean, unredacted copy of Exhibit zD to Plaintiff's motion for summary judgment. In addition, within three weeks of the date of this Order, the parties shall submit a status update regarding the remaining counterclaim for attorneys' fees and a proposed schedule for resolution of that claim. See Dkt. Nos. 235, 425. (Signed by Judge Alison J. Nathan on 3/28/2018) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Steven E. Greer,
OPINION & ORDER
Dennis Mehiel, et al.,
ALISON J. NATHAN, District Judge:
Pro se Plaintiff Steven E. Greer brings this suit against the company that owns his former
apartment, the company that manages that apartment building, the Battery Park City Authority
("BPCA"), and several individuals associated with those entities. At this stage, two claims
remain in Plaintiffs suit-a First Amendment retaliation claim and a First Amendment equal
access claim. Before the Court are three motions for summary judgment: one from Plaintiff, one
from a group of Defendants defined below as the Landlord Defendants, and one from a group of
Defendants defined below as the BPCA Defendants. Also before the Court are requests by
Plaintiff for sanctions and to "reinstate" two previously dismissed defendants, as well as several
sealing requests from all parties. For the reasons set forth below, Plaintiff's motion for summary
judgment is denied, and Defendants' motions for summary judgment are granted. Plaintiff's
other requests are also denied. The sealing requests are granted in part and denied in part.
Plaintiff rented Apartment 35F in the building located at 200 Rector Place from 2002
through April 2014. Dkt. No. 381 (Rossi Deel.) iii! 1, 5; Dkt. No. 373, Ex. 16 (Non-Renewal
Notice); Dkt. No. 382 (L 56.1) iii! 7-9.
At all relevant times, Milford Management ("Milford") managed the property located at
200 Rector Place. L 56.1
2; Rossi Deel.
1-2. Stephen Rossi is the Vice President and
Director of Management Services for Milford. Rossi Deel.
1. Mariners Cove Site B
Associates ("Mariners Cove"), where Howard Milstein is a partner, owns certain units in the
building located at 200 Rector Place. Rossi Deel.
1-2. Janet Martin is involved in the
management of properties that Milstein has an interest in. Rossi Deel.
2. Milstein, Rossi,
Martin, Milford, and Mariners Cove comprise the "Landlord Defendants."
The BPCA owns the land on which 200 Rector Place is located. See Rossi Deel.
59-60; Dkt. No. 376 (Hyman
5. The BPCA is a New York State public benefit
corporation. See N.Y. Pub. Auth. Law§ 1973(1). The membership of the BPCA consists of
seven members, a majority of which constitutes "a quorum for the transaction of any business or
the exercise of any power or function of the authority." N.Y. Pub. Auth. Law§ 1973(1), (7).
The members elect one of themselves as chairman, and the BPCA may delegate to one or more
members, officers, agents, or employees "such powers and duties as it may deem proper." N.Y.
Pub. Auth. Law § 1973(2), (7). The BPCA has the power to "acquire, lease, hold, mortgage and
dispose ofreal property." N.Y. Pub. Auth. Law§ 1974(3). Beginning June 20, 2012, Dennis
Mehiel was the Chairman and CEO of the BPCA. Dkt. No. 375 (Mehiel
1. At all times
relevant to this litigation, Robert Serpico served as the Chief Financial Officer of the BPCA.
Dkt. No. 374 (Serpico
The Court refers to Serpico and the BPCA, together, as the
In 2009, Plaintiff created a blog called BatteryPark.TV, where he published articles about
the BPCA's activities. Dkt. No. 377 (BPCA 56.1)
9; Dkt. No. 394 (Pl. Counter to BPCA 56.1)
9. According to one BPCA employee, Plaintiffs reporting angered Serpico, who told the
BPCA staff that the blog was not credible and discouraged the staff from reading it. Dkt. No.
Serpico and Rossi sometimes met for lunch or coffee, including one such meeting during
the fall of2013. See Serpico
61-63; Dkt. No. 395, Ex. 20 (Swanson
Depo.) at 21 :8-22:4.
In a letter dated January 24, 2014, Milford informed Plaintiff that his lease would not be
renewed and instructed him to vacate his apartment by April 30, 2014. Non-Renewal Notice.
Plaintiff insists that there is no proof that he failed to pay rent, see, e.g., Dkt. No. 368 (Pl. 56. l)
28, but there is evidence in the record that Plaintiff often submitted late payments or owed
money on his apartment. See Greer Ex. T (Greer Checks); Dkt. No. 373, Ex. 25 (Spreadsheet);
Dkt. No. 381, Ex. 6 (7/2/12 Email from Greer); Dkt. No. 381, Ex. 7 (7/30/12 Email Rossi-Greer);
Dkt. No. 381, Ex. 9 (9/27/12 Greer-Hill Emails); Dkt. No. 381, Ex. 10 (12/6/12 Email from
Greer); Dkt. No. 381, Ex. 11 (3/20/13 Greer-Hill Emails); Dkt. No. 381, Ex. 12 (4/25/13 Email
from Greer); Dkt. No. 381, Ex. 15 (5/16/13 Email from Greer); Dkt. No. 381, Ex. 16 (8/7/13
Email from Greer); Dkt. No. 381, Ex. 17; Dkt. No. 381, Ex. 20 (7/3/12 Greer-Rossi Emails).
Though disputed, there is also some evidence that the Landlord Defendants took legal action
against other tenants when they owed two months' rent or more. See L 56.1
55, 58, 60; Dkt.
No. 381, Exs. 34-43.
When one BPCA employee asked Serpico "if [Serpico] had anything to do with Greer not
getting his lease renewed," Serpico, according to the employee, "visibly smirked, shrugged," and
did not answer the question. Swanson Depo. at 19:9-21, 24:7-20.
Despite the non-renewal notice, Plaintiff did not vacate his apartment by April 30, 2014.
Pl. Counter to BPCA
Accordingly, Mariners Cove began an
eviction proceeding against Plaintiff. See Pl. 56.1
46. In response to an email from Plaintiff
warning Defendants not to delete any emails, Serpico emailed Rossi on May 28, 2014, and
asked, "Is [Plaintiff] now evicted? Where is he living?" Dkt. No. 374, Ex. 1 (5/28/14 Serpico
Plaintiff was ultimately evicted from his apartment in the spring of 2016. Dkt. No. 184,
Ex. D (Housing Court Decision).
Defendants contend that Plaintiff regularly harassed and bothered BPCA employees and
Battery Park City residents. See, e.g., BPCA 56.1
14. Plaintiff denies those accusations and
emphasizes that any alleged misconduct occurred after Plaintiffs lease was not renewed. Pl.
Counter to BPCA 56.1
14. However, there is evidence that the BPCA Defendants were aware
of at least one incident in which Plaintiff acted antagonistically before January 2014. See Dkt.
No. 373, Ex. 11 (March 11, 2013 Email) (detailing an incident in which a woman called the
police because Plaintiff was yelling at her and trying to videotape her).
Plaintiff attended the BPCA board meeting held on June 9, 2015. BPCA 56.1
42; Pl. Counter to BPCA 56.1
43; Pl. Counter to BPCA
41-42. However, Plaintiff refused to leave the meeting room. BPCA 56.l
Counter to BPCA 56.1
41. At the end of the meeting, the BPCA board transitioned to
an executive session, which was closed to the public. See BPCA 56.l
43. Kevin McCabe, Mehiel's Chief of Staff, asked Plaintiff to leave the
room and advised Plaintiff that if he did not leave the police would be called. BPCA 56.1
48; Pl. Counter to BPCA
Plaintiff then left the room. Pl. Counter to BPCA
After the June 9, 2015, board meeting, Mehiel decided to exclude Plaintiff from the
BPCA offices, including future BPCA board meetings, to ensure safety and minimize
13-15; see also Dkt. No. 373, Ex. 3 (McCabe Depo.) at 32:24-33:3
(McCabe stating that Mehiel directed security to ban Plaintiff from BPCA offices because of
Plaintiffs "abusive and disruptive behavior"); Dkt. No. 376, Ex. 13 (6/9/15 Email from Mehiel)
(instructing security to exclude Plaintiff from the BPCA office because of his "[ c]onsistent
hostile behavior"). According to Mehiel, the BPCA could have reviewed that decision but chose
not to. Mehiel Deel. if 16. Instead of attending the July 29, 2015 BPCA board meeting, Plaintiff
was allowed to watch a live video feed of the meeting in a building several blocks away from the
BPCA main offices. See Mehiel Deel. if 14; BPCA 56.1
Pl. Counter to BPCA 56.1
On August 4, 2015, Plaintiff filed a complaint in this action. Dkt. No. 1. He filed a
Second Amended Complaint on November 4, 2015. Dkt. No. 85 (SAC). Plaintiff alleged, inter
alia, that Defendants violated his First Amendment rights. Specifically, he claimed that the nonrenewal of his lease, which led to his ultimate eviction, was the result of a conspiracy by the
Landlord Defendants and the BPCA, Mehiel, and Serpico to retaliate against Plaintiff for his
blog. See SAC iii! 42-43, 64. In addition, Plaintiff claimed that the BPCA, Mehiel, and Serpico
unlawfully excluded him from the July 2015 board meeting. See SAC iii! 68-73. Plaintiff
initially sought an order enjoining Defendants from evicting him. See SAC if 36; Dkt. No. 2. On
February 24, 2016, the Comi denied Plaintiffs motion for a preliminary injunction enjoining the
then-ongoing eviction proceedings in state court. Dkt. No. 138.
Defendants filed motions to dismiss, Dkt. Nos. 102, 114, which the Court granted in part
and denied in part on September 30, 2016, 1 see Dkt. No. 177. Relevant here, the Court granted a
motion to dismiss the retaliation claim against Mehiel but denied the motion to dismiss that
The Court granted the motion to dismiss Plaintiffs First Amendment claim alleging harassment
by security officers, Dkt. No. 177 at 6, his claim for a suhstantive violation of the Fair Housing
Act, Dkt. No. 177 at 15-19, his claim for retaliation under the Fair Housing Act, Dkt. No. 177 at
19-21, and his defamation claim, Dkt. No. 177 at 21-23. The Court later denied Plaintiffs
motion to dismiss the Landlord Defendants' counterclaim for attorney's fees. See Dkt. No. 425.
claim against the Landlord Defendants, the BPCA, and Serpico. See Dkt. No. 177 at 6. The
Court also granted a motion to dismiss the second claim-unlawful exclusion from the board
meeting-against Mehiel and Serpico but allowed the claim to continue against the BPCA. See
Dkt. No. 177 at 6. Accordingly, at this point, Plaintiff has two remaining claims: (1) a First
Amendment retaliation claim against Defendants BPCA and Robert Serpico (the "BPCA
Defendants") and Defendants Mariners Cove Site B Associates, Howard Milstein, Steve Rossi,
Janet Martin, and Milford Management (the "Landlord Defendants"), and (2) a First Amendment
equal access claim against the BPCA.
The Landlord Defendants and the BPCA Defendants each move for summary judgment.
Dkt. Nos. 371, 379. Plaintiff also moves for summary judgment. Dkt. No. 366.
MOTIONS FOR SUMMARY JUDGMENT
A. Legal Standard
A party is entitled to summary judgment only if there is no genuine dispute of material
fact and the movant is entitled to judgment as a matter of law. Ramos v. Baldor Specialty Foods,
Inc., 687 F.3d 554, 558 (2d Cir. 2012). In reviewing the evidence on a motion for summary
judgment, courts construe the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that paiiy's favor. Id. "A fact is material if it might affect the
outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the nomnoving party." Id. (quoting Niagara
Mohawk Pcrwer Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 94 (2d Cir.
B. First Amendment Retaliation Claim
Plaintiff contends that he is entitled to summary judgment because he has established
Defendants' liability on his First Amendment retaliation claim. Dkt. No. 367 (Pl. Memo) at 1219. Each set of Defendants has cross-moved for summary judgment on the claim.
Because the Landlord Defendants are private actors, to succeed on his § 1983 claim
against them Plaintiff must demonstrate that they conspired with the BPCA Defendants, who are
state actors, to retaliate against Plaintiff. See Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999) ("To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between ... a
state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3)
an overt act done in furtherance of that goal causing damages."). The BPCA Defendants and the
Landlord Defendants contend there is no evidence of a conspiracy between them; Plaintiff argues
that the evidence clearly establishes that a conspiracy existed. See Pl. Memo at 12-16; Dkt. No.
380 (L Memo) at 7-10; Dkt. No. 372 (BPCA Memo) at 3-7. The Landlord Defendants further
argue that, even ifthere were evidence of a conspiracy, they would be entitled to summary
judgment because Plaintiff's failure to pay rent on time and his harassment of building tenants
and staff caused the Landlord Defendants not to renew Plaintiff's lease. L Memo at 10-18.
Assuming arguendo that sufficient evidence exists to supp01i a conclusion that the BPCA
Defendants and the Landlord Defendants conspired to retaliate against Plaintiff, Defendants are
entitled to summary judgment on Plaintiff's First Amendment retaliation claim because there is
no genuine issue of material fact that could lead a reasonable juror to conclude that Defendants
retaliated against Plaintiff.
To succeed on a First Amendment retaliation claim, a plaintiff must prove that "(1) he
has an interest protected by the First Amendment; (2) defendants' actions were motivated or
substantially caused by the exercise of that right; and (3) defendants' actions caused" the plaintiff
some injury. Curley v. Village ofSuffern, 268 F.3d 65, 73 (2d Cir. 2001); see also Beechwood
Restorative Care Center v. Leeds, 436 F.3d 147, 152 (2d Cir. 2006) ("To survive summary
judgment on a section 1983 First Amendment retaliation claim a plaintiff must demonstrate that
he engaged in protected speech, and that the speech was a substantial or motivating factor in an
adverse decision taken by the defendant."). "A causal relationship [between the protected
activity and the adverse action] can be demonstrated either indirectly by means of circumstantial
evidence, including that the protected speech was followed by adverse treatment, or by direct
evidence of animus." Wrobel v. County of Erie, 692 F.3d 22, 32 (2d Cir. 2012); see also
Gorman-Bakos v. Cornell Co-op Extension ofSchenectady County, 252 F.3d 545, 554 (2d Cir.
2001) (explaining that a causal connection may be established by showing that the adverse action
closely followed the protected activity). In the context of speech-based retaliation, the defendant
may prevail "by demonstrating by a preponderance of the evidence that it would have taken the
same adverse action in the absence of the protected speech." Mandell v. County of Suffolk, 316
F.3d 368, 382 (2d Cir. 2003); see also Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 286-87 (1977) (same).
Here, the heart of the retaliation issue is whether the non-renewal of Plaintiffs lease was
motivated by Plaintiffs exercise of his First Amendment right. Because the record could not
lead a reasonable juror to conclude that it was, Defendants are entitled to summary judgment on
Plaintiffs evidence ofretaliation rests on little more than speculation. Although Serpico
was aware of and disapproved of Plaintiffs blog, see Ford Depo. at 9: 15-11 :7, and may have
been involved in the decision not to renew Plaintiffs lease, see, e.g., Swanson Depo. at 19:9-21,
24:7-20, there is no evidence in the record that Serpico wanted to harm Plaintiff because of
Plaintiffs blog. Indeed, Plaintiff had been operating his blog for several years before the nonrenewal of his lease, BPCA 56.1 ~ 9; Pl. Counter to BPCA 56.1~9; Pl. 56.1~2, and at all times
during that period Serpico was the Chief Financial Officer of the BPCA, Serpcio Deel.
By contrast, the record contains extensive evidence to support a conclusion that
Defendants would not have renewed Plaintiffs lease even in the absence of Plaintiffs blog.
Most significantly, the undisputed record demonstrates that Plaintiff did not consistently
pay rent on time. Copies of rent checks from Plaintiff show that he paid rent late on several
occasions throughout 2012 and 2013. See Greer Ex. T ("Greer Checks") (check dated January 1,
2013, for December rent; check dated February 19, 2013, for January rent; check dated March 1,
2013 for February and March rent; check dated March 31, 2013 for March rent-presumably for
the amount remaining after the March 1, 2013 check; check dated December 25, 2013, for
December rent); Dkt. No. 381, Ex. 17 (check dated August 31, 2012, for August and September
rent; check dated December 1, 2012, for November rent); see also Dkt. No. 184, Ex. A (filings in
housing comi listing payments owed by Plaintiff). In addition, emails between the Landlord
Defendants and Plaintiff from 2012 and 2013 reveal discussions in which Plaintiff acknowledges
that he owes money to the Landlord Defendants. See 7130112 Email Rossi-Greer (Plaintiff
explaining to Rossi that he is "getting some banking matters corrected" and will bring a check
shortly for money that was "outstanding" from July); 8/7 /13 Email from Greer (Plaintiff stating,
"I screwed up. I recently closed an account but failed to throw away that checkbook .... I
mistakenly gave you a check from the wrong closed out account."); see also 712112 Email from
Greer (Plaintiff stating that rent for June 2012 and July 2012 would be arriving soon); 9/27/12
Greer-Hill Emails (showing that Plaintiff owed unpaid storage fees); 12/6/12 Email from Greer
("I see that I owe as of today $4,142 for apartment rent, including December, and $214 for
storage. I did miss a few months (but not 6!).") (emphasis added)); 5/16/13 Email from Greer
(Plaintiff stating that he would drop off the May rent if he receives his countersigned lease);
7/3/12 Greer-Rossi Emails (Rossi explaining that a late fee would be charged for the June rent).
Although in one email from April 2013, Plaintiff claims that he paid rent every month for 11
years, see 4125113 Email from Greer, the evidence outlined above shows that he did not pay that
rent on time. And even in that April 2013 email Plaintiff admits that he owes a balance in excess
of $3000. 4/25/13 Email from Greer.
Besides the contemporaneous admissions by Plaintiff of his late payments, Plaintiff has
also made statements recognizing that the evidence produced in this litigation demonstrates that
he failed to consistently pay his rent on time. For example, Plaintiff cites to rent checks for the
years 2012 and 2013 and states that they prove "he paid on the first of the month and was never
more than 30-days late." PI. 56.1
31 (emphasis added). Plaintiff also recognizes that there
were "[ o]ngoing disagreements over the actual balances owed." Pl. 56.1
31. In addition,
Plaintiff acknowledges that a spreadsheet submitted by the BPCA Defendants, Dkt. No. 373, Ex.
25 2, shows that Plaintiff had "running balances equal to two-months or more ofrent," Pl.
Counter to BPCA 56.1
81. However, Plaintiff argues that the balance appears because Milford
was late in processing his payments. Pl. Counter to BPCA 56.1
81. Nevertheless, although
there are emails indicating that the Landlord Defendants sometimes reduced the amounts that
Plaintiff owed in response to his protestations, see Dkt. No. 370, Ex. W, there is no evidence that
Plaintiff refers to Docket Number 373, Exhibit 17 in his Counter Statement to the BPCA
Defendants' 56.1 Statement, but it appears from the context of Plaintiffs Counter Statement and
the 56.1 Statement that he is countering that Plaintiff likely intended to reference Exhibit 25.
the Landlord Defendants' accounting system was inaccurate-or at least that its inaccuracy
accounts for every late payment by Plaintiff.
In his final counter-argument to the overwhelming evidence of his non-payment of rent,
Plaintiff asks why, if he was "truly failing to pay rent for two-months at a time" the Landlord
Defendants renewed his lease in 2012 and 2013. See Pl. Counter to BPCA 56.1
the record provides no clear answer why Plaintiffs lease was not renewed in 2014 as opposed to
any other year, there is no evidence that Plaintiffs blog motivated the non-renewal.
Furthermore, there is evidence that the Landlord Defendants took legal action against
other tenants who owed amounts comparable to that owed by Plaintiff. Rossi Deel.
Plaintiff adamantly disputes that conclusion and insists that there is no evidence the other tenants
were taken to court or evicted. See Dkt. No. 397 (Pl. Counter to Landlord 56.1) ~ 53. Plaintiff is
correct that Defendants have not provided eviction notices or court filings for other tenants. But
the "Legal Action Update Report" shows when legal action was taken against a particular tenant,
and the Reports in the record show that action was often taken when tenants owed two months'
rent. See Dkt. No. 381, Exs. 34-43.
Finally, Defendants argue that incidents of harassment by Plaintiff also contributed to the
decision not to renew Plaintiffs lease and to his ultimate eviction. However, several of the
incidents that Defendants highlight occurred after the non-renewal of Plaintiffs lease on January
24, 2014. The Court declines to consider those incidents because they could not have motivated
the non-renewal of Plaintiffs lease. Nevertheless, there is evidence that the BPCA Defendants
were aware of at least one instance of Plaintiffs antagonistic behavior before January 2014. See
March 11, 2013 Email (describing an incident in which Plaintiff yelled at a woman and tried to
videotape her, prompting the woman to call the police).
Despite Plaintiffs arguments to the contrary, there is no evidence beyond mere
speculation that Plaintiffs blog motivated Defendants not to renew Plaintiffs lease. Speculation
alone is insufficient to support Plaintiffs claims at this stage. See Harlen Assocs. v. Inc. Village
of Mineola, 273 F .3d 494, 499 (2d Cir. 2001 ). Instead, the evidence, taken in the light most
favorable to Plaintiff, only supports a conclusion that Defendants "would have taken the same
adverse action in the absence of the protected speech." Mandell, 316 F.3d at 382. No reasonable
jury could conclude otherwise. Indeed, there is extensive evidence of Plaintiffs frequent
untimely rent payments and Defendants' taking legal action against other tenants in similar
circumstances. Because the undisputed evidence does not support a reasonable conclusion that
the decision not to renew Plaintiffs lease was motivated or substantially caused by Plaintiffs
exercise of his First Amendment rights, the Landlord Defendants and the BPCA Defendants are
entitled to summary judgment on Plaintiffs First Amendment retaliation claim.
C. First Amendment Equal Access Claim
The BPCA also moves for summary judgment on Plaintiffs equal access claim, as does
Plaintiff. See BPCA Memo at 8-13; Pl. Memo at 5-12. Plaintiff maintains that he "proved" his
equal access claim, while the BPCA responds that it did not violate Plaintiffs First Amendment
rights by excluding him from the July 29, 2015, board meeting. The BPCA emphasizes that the
decision to exclude Plaintiff was a response to Plaintiffs prior disruptive and threatening
behavior and that Plaintiff was still allowed to watch the meeting from a different room. BPCA
Memo at 2, 8-13. The BPCA also argues that it is entitled to summary judgment because
Plaintiffs exclusion from the July 29, 2015, board meeting was not the result of an official
policy or custom, as required to impose liability on the BPCA. 3 See BPCA Memo at 13-17.
A municipal entity can be sued under § 1983 if its "policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury." Monell v. Dep 't of Soc. Servs., 436 U.S. 658, 694 (1978). The same law applies to
public benefit corporations. See Estes-El v. State Dep 't of Motor Vehicles Office ofAdmin.
Aqjudication Traffic Violation Bureau, 95 Civ. 3454, 1997 WL 342481, at *4 (S.D.N.Y. June 23,
1997). "Where the contention is not that the actions complained of were taken pursuant to a
local policy that was formally adopted or ratified but rather that they were taken or caused by an
official whose actions represent official policy, the court must determine whether that official
had final policymaking authority in the particular area involved." Je.ffes v. Barnes, 208 F.3d 49,
57 (2d Cir. 2000). Courts look to state law in determining whether the official in question
possessed final policymaking authority. Id. The Second Circuit has "explicitly rejected the view
that mere exercise of discretion [is] sufficient to establish municipal liability." Anthony v. City of
New York, 339 F.3d 129, 139 (2d Cir. 2003). "[W]hen a subordinate's decision is subject to
review by the municipality's authorized policymakers, they have retained the authority to
measure the official's conduct for conformance with their policies." City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion) (emphasis omitted). "Where a plaintiff
relies ... on the theory that the conduct of a given official represents official policy, it is
incumbent on the plaintiff to establish that element as a matter oflaw. Je.ffes, 208 F.3d at 57-58;
The BPCA further argues that for the same reason, summary judgment should be entered in
favor of Serpico, in his official capacity, on the equal access claim. See BPCA Memo at 13, 17
n.13. Because the operative complaint, Dkt. No. 85, lists "Robert Serpico, an individual," as a
defendant and does not assert claims against Serpico in his official capacity, the Court does not
consider that argument.
see also Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008) (stating that, when a plaintiff
"seeks to hold a municipality liable for a single decision by a municipal policymaker, the
plaintiff must show that the official had final policymaking power" (internal quotations
New York law establishes the BPCA as a public benefit corporation. N.Y. Pub. Auth.
Law § 1973(1 ). The law provides that the BPCA shall consist of seven members. N. Y. Pub.
Auth. Law§ 1973(1). A majority of the members of the BPCA "shall constitute a quorum for
the transaction of any business or the exercise of any power or function of the authority." N.Y.
Pub. Auth. Law § 1973(7). Still, the BPCA "may delegate to one or more of its members, or to
its officers, agents or employees, such powers and duties as it may deem proper." N.Y. Pub.
Auth. Law § 1973(7).
There is no evidence that the officials who decided to deny Plaintiff entry to the July
2015 board meeting had final policymaking authority. Mehiel, Chairman and CEO of the
BPCA, made the decision to exclude Plaintiff from the BPCA board meeting after concluding
"that Plaintiff posed a threat to public safety, the orderly conduct of BPCA board meetings, and
the smooth continued operations of the BPCA." Mehiel Deel.
13; see also McCabe Depo. at
32:24-33:3 (McCabe stating that Mehiel told security to exclude Plaintiff from BPCA offices);
619115 Email from Mehiel (instructing security to ban Plaintiff from the BPCA office).
According to Me hi el, the "BPCA board could have, if it so chose, reviewed [Mehiel' s] decision."
16. The record contains no evidence to contradict that assertion. Although, as
Plaintiff points out, see Dkt. No. 396 (Pl. BPCA Opp.) at 11, New York law allows the BPCA
board to delegate "powers and duties as it may deem proper," there is no evidence that the BPCA
in fact delegated to Mehiel the power to exclude individuals from board meetings. Similarly,
that Mehiel was both Chairman of the Board and CEO, see Pl. BPCA Opp. at 11, does not on its
own demonstrate that he had final policymaking power. Plaintiffs other argument-that the
BPCA failed to train anyone on the New York Open Meeting Law, document retention, or ethics,
see Pl. BPCA Opp. at 11-12-is not relevant to the question whether Plaintiffs exclusion from
the July 2015 board meeting represented official policy.
Because the undisputed evidence shows that Mehiel' s decision to exclude Plaintiff was
"subject to review" by the BPCA board, Praprotnik, 485 U.S. at 127, the record does not support
a conclusion that Mehiel had "final policymaking authority," Jeffes, 208 F.3d at 57.
PLAINTIFF'S REQUEST FOR SANCTIONS
Plaintiff alleges an "egregious pattern of spoliation by all defendants" and requests
sanctions pursuant to Federal Rule of Civil Procedure 37 or the Court's inherent powers. Pl.
Memo at 19-22. Specifically, Plaintiff alleges that (1) Defendants deleted emails, including an
email from Serpico to Rossi that Serpico's secretary, Linda Soriero, witnessed; (2) the BPCA
engaged in witness tampering by firing that secretary after she began to assist Plaintiff in this
case; and (3) Serpico's counsel inappropriately instructed Serpico not to answer certain questions
during his deposition. Pl. Memo at 19-20. As a sanction, Plaintiff seeks entry of summary
judgment or default judgment against Defendants. See Pl. Memo at 21-22.
Federal Rule of Civil Procedure 37 provides that, "[i]f electronically stored information
that should have been preserved ... is lost because a party failed to take reasonable steps to
preserve it, and it cannot be restored or replaced through additional discovery," the court may,
"upon finding prejudice to another party from loss of the information, ... order measures no
greater than necessary to cure the prejudice." Fed. R. Civ. Proc. 37(e)(l). In addition, "upon
funding that the party acted with the intent to deprive another party of the information's use in
the litigation," the court may "presume that the lost information was unfavorable to the party
[or] ... dismiss the action or enter a defaultjudgment." 4 Fed. R. Civ. Proc. 37(e)(2).
"[D]ismissing a complaint or entering judgment against a defendant are severe sanctions, but
they may be appropriate in 'extreme situations,' as 'when a court finds willfulness, bad faith, or
any fault on the part of the' noncompliant party." Guggenheim Capital, LLC v. Birnbaum, 722
F.3d 444, 450-51 (2d Cir. 2013) (quoting Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759,
764 (2d Cir. 1990)).
The Court declines to impose sanctions on Defendants. As an initial matter, Plaintiff's
contention that the BPCA engaged in witness tampering is mere speculation and lacks any
evidentiary support. Moreover, sanctions are not warranted against Serpico or the BPCA as a
result of their attorney's instruction to not answer certain questions during Serpico's deposition.
Counsel stated on the record his basis for directing Serpico not to answer those questions. See
Greer Ex. H (Serpico Depo.) at 31: 18-33:22. Finally, although there is evidence that some of the
Landlord Defendants' emails were deleted, the BPCA Defendants produced copies of those
emails. Those emails thus can "be restored or replaced through additional discovery." Fed. R.
Civ. Proc. 37(e). To the extent that Plaintiff believes that a "smoking gun" email was deleted
and not produced by either group of Defendants, there is simply no basis to conclude that such an
email existed. The only evidence Plaintiff cites is Soriero's statement that she saw an email
between Serpico and Rossi discussing Plaintiff. However, assuming arguendo that the Court
Plaintiff argues that sanctions are appropriate pursuant to Federal Rule of Civil Procedure
37(c). See Pl. Memo at 20-21. Rule 37(c) provides for sanctions if a party "fails to provide
information or identify a witness as required by Rule 26(a) or (e)." However, the heart of
Plaintiff's request is the argument that Defendants deleted emails, to which Rule 37(e), which
provides for sanctions if a party fails to preserve electronically stored information, is more
should consider Soriero' s statement, the record contains no details regarding the alleged
"smoking gun" email. It is thus quite possible that the May 2014 email between Serpico and
Rossi was the one Soriero was alluding to. In any event, Plaintiff has not demonstrated
"willfulness, bad faith, or any fault" on the part of Defendants that would justify the "severe"
sanction of the entry of summary or default judgment. Plaintiffs request for sanctions is denied.
PLAINTIFF'S REQUEST TO REINSTATE MEHIEL AND SERPICO AS
In its September 30, 2016 Order, the Court explained that Plaintiff had included "no
allegations in the complaint that either [Mehiel or Serpico] had a role in excluding Greer from
the [July 2015 board] meeting." Dkt. No. 177 at 12. Accordingly, the Court granted the motion
to dismiss the First Amendment equal access claim against those individuals. See id.
Plaintiff now requests that his First Amendment equal access claim be reinstated against
Mehiel and Serpico. Pl. Memo at 6. Plaintiff appears to cite to Federal Rule of Civil Procedure
60(b) in support of his request. See Pl. Memo at 6 & n.4. However, Rule 60(b) is not applicable
here because the Court's decision regarding Defendants' motions to dismiss is not a final order.
See Glendora v. Malone, 165 F.R.D. 42, 43 (S.D.N.Y. 1996) (stating that an order dismissing
certain defendants is not final, "unless the court makes the findings contemplated by Fed. R. Civ.
P. 54(b) and enters partial final judgment as to those parties").
Alternatively, if Plaintiffs argument is construed as a motion for reconsideration of the
Court's September 30, 2016 Order, it is untimely. See McDowell v. Eli Lilly & Co., No. 13 Civ.
3786, 2015 WL 4240736, at *1 (S.D.N.Y. July 13, 2015) ("Under Local Civil Rule 6.3, 'a notice
of motion for reconsideration or reargument of a court order determining a motion shall be
served within fourteen (14) days after the entry of the Court's determination of the original
motion, or in the case of a court order resulting in a judgment, within fourteen (14) days after the
entry of the judgment.'" (quoting Local Civil Rule 6.3)).
Finally, to the extent that Plaintiff is seeking to amend his complaint under Federal Rule
of Civil Procedure 15, that request is denied. As an initial matter, the Court notes that Plaintiff
previously sought to amend his complaint for a third time to clarify other claims, and the Court
denied that request because Plaintiff had chosen not to amend his complaint in response to
Defendants' motions to dismiss. See Dkt. No. 192; see also Dkt. No. 221. In any event, at this
point, Plaintiff has already amended his complaint twice, discovery has been completed, and all
parties have moved for summary judgment. To allow Plaintiff to amend his complaint now
would unduly delay this litigation. Although some of the discovery regarding Serpico's and
Mehiel's alleged involvement in Plaintiff's exclusion from the board meeting undoubtedly would
overlap with some of the discovery that has already occurred, additional discovery, at least as to
Serpico's role, would likely be needed. Indeed, there is no evidence in the record that Serpico
was involved in the decision to exclude Plaintiff from the meeting, thus suggesting that
amendment as to the claim against Serpico would be futile. See McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 200 (2d Cir. 2007) ("A district court has discretion to deny leave [to
amend] for good reason, including futility, bad faith, undue delay, or undue prejudice to the
opposing party."). Moreover, Mehiel has raised the defense of qualified immunity, Dkt. No. 400
(BPCA Opp. to P) at 19-21, a question that the parties would likely need an opportunity to brief.
Given the late stage of litigation, the Court denies Plaintiff leave to amend his complaint.
The parties also make several sealing requests.
The BPCA Defendants request that Exhibits 1 and 2 to the Declaration of Shari Hyman,
Dkt. No. 376, be filed in redacted form to protect the identities and personal information of third
parties. That request is granted. Those documents already appear on the docket in redacted form
and shall remain on the docket in that form. Within three weeks of the date of this Order, the
BPCA Defendants shall file unredacted versions of those exhibits under seal.
The BPCA Defendants have also requested to file under seal certain documents and
testimony that Plaintiff has produced and designated as "Confidential." Specifically, Plaintiff
informed the BPCA Defendants that he wanted to maintain the following exhibits under seal:
Exhibits 2, 9, 10, 15, 16, 17, 19, 20, 21, 22, 23, and 24 to the Declaration of Michael Tremonte,
Dkt. No. 373. There does not appear to be any valid reason to file those documents under seal.
As the BPCA Defendants point out, Exhibits 15 and 16 have already been filed publicly in this
case. Accordingly, the BPCA Defendants are instructed to file the exhibits at issue on the public
docket within three weeks of the date of this Order.
Fmihermore, on July 20, 2017, Plaintiff informed the Court that Docket Numbers 381-1,
381-3, 381-5-filed by the Landlord Defendants-revealed Plaintiffs bank account information.
Dkt. No. 407. The Court ordered that the exhibits be temporarily sealed. Dkt. No. 408. On July
24, 2017, the BPCA Defendants informed the Court that Docket Number 381-5, filed by the
Landlord Defendants and which the Court had temporarily sealed, was the same as Docket
Number 373-5, filed by the BPCA Defendants. Dkt. No. 409. Accordingly, the Court
temporarily sealed Docket Number 373-5. Dkt. No. 411.
The Landlord Defendants have since acknowledged that redactions to Docket Numbers
381-1 and 381-3 are necessary to protect Plaintiff's bank account information. Accordingly, the
Landlord Defendants' request to file redacted versions of 381-1and381-3 on the public docket
is granted. Within three weeks of the date of this Order, the Landlord Defendants shall file
redacted versions of those exhibits on the public docket. The unredacted versions of 381-1 and
381-3 shall be filed and remain under seal. Document 381-5 does not, however, include any
bank account information. Accordingly, the temporary seal on Docket Numbers 381-5 and 3735 is lifted. Within three weeks of the date of this Order, the Landlord Defendants shall file
unredacted versions of 381-5 and 373-5 on the public docket.
In his July 20, 2017 letter, Plaintiff also stated that 381-4, 381-9, 381-17, 381-19, 381-25,
381-26, 381-27, 381-29, 381-30, and 404-6 were classified as "Confidential" and should not
have been filed on the public docket. Dkt. No. 407. The Court ordered that the exhibits be
temporarily sealed. Dkt. No. 408.
Similarly, at Plaintiff's request, the Landlord Defendants requested to file under seal the
following exhibits: Exhibits 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 20, 58, 62, 64, 65, 66, and 67 to
the Declarations of Stephen Rossi and Deborah Riegel, Dkt. Nos. 381 & 383. The Landlord
Defendants also requested to seal certain documents that quote from the "Confidential"
documents, specifically: the memorandum of law in support of their motion for summary
judgment, Dkt. No. 380; the 56.1 statement of material facts, Dkt. No. 382; Stephen Rossi's
declaration, Dkt. No. 381; and Deborah Riegel's declaration, Dkt. Nos. 383.
Since making that sealing application essentially on Plaintiff's behalf, the Landlord
Defendants have acknowledged that some redactions to those exhibits are necessary to protect
Plaintiff's bank account number. There does not appear to be any other basis to redact or file
under seal the documents identified by Plaintiff. Accordingly, within three weeks of the date of
this Order, the Landlord Defendants shall file all exhibits and documents that were the subject of
the sealing application on the public docket, with only Plaintiffs bank account information
redacted as necessary.
Finally, Plaintiff has requested that several of his own exhibits be filed under seal. As to
the exhibits to his memorandum of law in support of his motion for summary judgment, Dkt. No.
367, Plaintiff complains that Exhibits B, D, J, T, U, W, X, zD, and zE "would be embarrassing
and harmful to [his] reputation." Although some of the exhibits may harm Plaintiffs reputation
by demonstrating that he failed to pay rent in a timely manner or was thought to be a security
threat, those issues are at the core of this case. Accordingly, Plaintiffs request to seal those
documents because they may damage his reputation are denied. However, Exhibits T, U, and W
appear to contain banking information for Plaintiff. Those exhibits should thus be filed in
redacted form, with the banking information removed. Within three weeks of the date of this
Order, Defendants 5 shall file on the public docket Exhibits B, D, J, X, and zE and a redacted
version of Exhibits T, U, and W. In addition, the Court is in receipt of only a redacted version of
Exhibit zD. To fully evaluate whether the redactions are necessary, Plaintiff shall submit via
email a clean, unredacted version of Exhibit zD to the Court within three weeks of the date of
For other exhibits to his motion for summary judgment (Exhibits A, F-M, 0-V, Y),
Plaintiff makes no argument why they should be sealed and states that if the Court decides that
the exhibits are "not worthy of being sealed," he "will not contest that decision." Similarly,
Plaintiff requests that Exhibits 1-11, 13-16, and 19 to his declaration in opposition to the
Landlord Defendants' motion for summary judgment, Dkt. No. 399, be filed under seal, but he
Because Plaintiff is pro se, the Court requests that Defendants file the documents at issue on the
does not make specific arguments why they should be sealed and again states that he will not
contest the Court's decision that the exhibits are "not worthy of being sealed." Plaintiff takes the
same approach regarding Exhibits 3-7, 9, 10-12, 13, 17-19, 21, and 22 to Plaintiff's declaration
in opposition to the BPCA Defendants' motion for summary judgment, Dkt. No. 395. Neither
the Landlord Defendants nor the BPCA Defendants contend that those exhibits should be filed
under seal. Accordingly, the Court rejects the request to file under seal Exhibits A, F-M, 0-V,
and Y to Plaintiff's motion for summary judgment; Exhibits 1-11, 13-16, and 19 to Plaintiffs
declaration in opposition to the Landlord Defendants' motion for summary judgment; and
Exhibits 3-7, 9, 10-12, 13, 17-19, 21, and 22 to Plaintiff's declaration in opposition to the BPCA
Defendants' motion for summary judgment. Within three weeks of the date of this Order,
Defendants shall file those exhibits on the public docket.
Defendants' motions for summary judgment are granted, while Plaintiff's motion for
summary judgment is denied. This resolves Docket Numbers 366, 371, and 379. Within three
weeks of the date of this Order, Defendants shall file on the public docket the documents
discussed above. Similarly, within three weeks of the date of this Order, Plaintiff shall submit to
the Court a clean, unredacted copy of Exhibit zD to Plaintiff's motion for summary judgment. In
addition, within three weeks of the date of this Order, the parties shall submit a status update
regarding the remaining counterclaim for attorneys' fees and a proposed schedule for resolution
of that claim. See Dkt. Nos. 235, 425.
New York, New York
United States District Judge
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