Logan v. Matveevskii et al
Filing
128
OPINION & ORDER re: 111 MOTION to Dismiss Third Amended Complaint. filed by Irina Matveevskii, Tuckahoe Housing Authority, Tuckahoe Housing Authority Board of Commissioners, Mark Kamensky, Jeff Zuckerman. Plaintiff's TAC is dismissed in its entirety. Because this is Plaintiff's Third Amended Complaint, the dismissal is with prejudice. See, e.g., Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff was not entitled to "a third go-aro und"); Anthony v. Brockway, No. 15-CV-451, 2015 WL 5773402, at *3 (N.D.N.Y. Sept. 30, 2015) (dismissing amended complaint with prejudice where the "[p]laintiff has already been given one opportunity to amend his complaint..., and there is nothing in his second amended complaint suggesting that [he] could do better given another opportunity"); Al-Qadaffi v. Servs. for the Underserved (SUS), No. 13-CV-8193, 2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015) (denying leave to amend w here "[the plaintiff] has already had one chance to amend his [c]omplaint, and there is still no indication that a valid claim might be stated if given a second chance"), aff'd, F. App'x, 2016 WL 320938 (2d Cir. Jan. 27, 2016); Bui v. Indus. Enters. of Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (dismissing an amended complaint with prejudice where the plaintiff failed to cure the deficiencies identified in his complaint despite "being given ample opportunit y to do so"); cf. Treppel v. Biovail Corp., No. 03-CV-3002, 2005 WL 2086339, at *12 (S.D.N.Y. Aug. 30, 2005) (declining to grant leave to amend upon dismissing a complaint, "because [the] plaintiff has already had two bites at the apple[,] and they have proven fruitless"'). The Clerk of the Court is respectfully directed to terminate the pending Motion, (see Dkt. No. 111) and to close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/30/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THOMAS LOGAN,
Plaintiff,
-v-
Case No. 10-CV-9247 (KMK)
OPINION & ORDER
IRINA MATVEEVSKII, TUCKAHOE HOUSING
AUTHORITY, TUCKAHOE HOUSING
AUTHORITY BOARD OF COMMISSIONERS,
MARK KAMENSKY, JEFF ZUCKERMAN,
ADOLPHO ORRIOL, and MIRZA ORRIOL,
Defendants.
Appearances:
Thomas Logan
Tuckahoe, NY
Pro Se
Joan M. Gilbride, Esq.
Kaufman, Borgeest & Ryan, LLP
New York, NY
Counsel for Defendants Irena Matveevskii, Tuckahoe Housing Authority, Jeff Zuckerman, and
Mark Kamensky1
KENNETH M. KARAS, District Judge:
Pro se plaintiff Thomas Logan (“Plaintiff”) brings the instant lawsuit alleging various
causes of action against defendants Irina Matveevskii (“Matveevskii”), Tuckahoe Housing
Authority (“THA”), Tuckahoe Housing Authority Board of Commissioners, Mark Kamensky
1
The Clerk of Court is respectfully requested to update the docket to reflect that Ms. Gilbride
also represents Defendants Jeff Zuckerman and Mark Kamensky. (See Dkt. No. 23.)
(“Kamensky”), and Jeff Zuckerman (“Zuckerman”) (collectively, “Defendants”).2 Defendants
have moved to dismiss the Third Amended Complaint. For the reasons that follow, Defendants’
Motion is granted.
I. Background
A. Factual Background
The following facts are taken from Plaintiff’s Third Amended Complaint and, for
purposes of this Motion, are accepted as true. Plaintiff currently resides at 31 Midland Place,
Apartment 3D, in Tuckahoe, New York. (Third Am. Compl. (“TAC”) ¶ 1 (Dkt. No. 104).) The
THA, which was incorporated in 1938 as a not-for-profit public corporation, and is charged with
providing affordable housing for low-income families, owns and operates a four-building
complex called Sanford Gardens, as well as a single-building complex called Jefferson Gardens.
(Id, at unnumbered 1 ¶ 2.) In addition, THA administers 175 Section 8 housing choice vouchers,
and receives funding under the “capital fund” program. (Id., at unnumbered 1 ¶ 2.)3 According
2
The docket also includes as defendants Adolpho Orriol and Mirza Orriol, (see Dkt.),
and the Second Amended Complaint—but not the Third—includes as defendants “Adolofo
Carrion” and “Mirza Orriol (A.K.A. Mirzal Negron Morales),” (compare Dkt. No. 100, with Dkt.
No. 104). However, in light of (1) the letter from counsel to former Department of Housing and
Urban Development (“HUD”) director Adolfo Carrión and HUD Deputy Regional Administrator
Mirza Orriols noting their apparent omission from the Third Amended Complaint, (see Dkt. No.
106), and (2) the lack of any allegations relating to these Defendants in the Third Amended
Complaint, the Court believes Plaintiff did not intend to include them as Defendants. In any
event, because the Third Amended Complaint does not assert any allegations against them, they
are dismissed. See Clarke v. Flushing Manor Care Ctr., No. 02-CV-3079, 2009 WL 2136385, at
*1 n.1 (S.D.N.Y. July 17, 2009) (dismissing a named defendant where “[the] complaint ma[de]
no allegations about how th[at] [defendant] was liable to [the plaintiff].”) It is of no moment that
the Second Amended Complaint mentioned them because “[i]t is well established that an
amended complaint ordinarily supersedes the original and renders it of no legal effect.” Int’l
Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977); see also Myers v. New York, No. 14CV-1492, 2016 WL 538470, at *1 n.2 (N.D.N.Y. Feb. 9, 2016) (same).
3
“The housing choice voucher program is the federal government's major program for
assisting very low-income families, the elderly, and the disabled to afford decent, safe, and
2
to Plaintiff, he contracted with the THA to reside in his current apartment on October 1, 1981,
although the Parties had earlier signed a contract stating the terms of the rental agreement lease
under the Section 8 housing program in March 1981. (Id., at unnumbered 1 ¶¶ 3–4; see also id.,
at unnumbered 8 ¶¶ 1–2.)4
1. Plaintiff’s Quest for Reasonable Accommodations
According to Plaintiff, on March 27, 1996, Plaintiff made a written request for a larger
apartment to the THA’s then-acting Executive Director. (See id., at unnumbered 2 ¶ 5.) The
THA responded that Plaintiff’s family composition did not warrant a two-bedroom unit like the
one that he currently lived in, but that he would be relocated to the first one-bedroom unit to
accommodate his family status. (Id.) Roughly a year and a half later, on October 30, 1997,
Plaintiff received a letter from the Social Security Administration indicating that he was
disabled. (Id., at unnumbered 2 ¶ 6.)
Additionally, on approximately June 19, 2008, according to Plaintiff, the THA was
reported to Department of Housing and Urban Development (“HUD”) for non-compliance for
failing to adequately administer its low-rent program. (See id., at unnumbered 2 ¶ 7; id., at
unnumbered 8 ¶ 4.) “Within . . . this complaint[,] it was found that THA was cited with noncompliance with the Regulations at 24 [C.F.R.] Part 8[,] implementing the provisions of Section
504 of the Rehabilitation Act of 1973 that require[] that Public Housing maintain a minimum
sanitary housing in the private market.” U.S. Dep’t of Hous. & Urban Dev., Housing Choice
Vouchers Fact Sheet, http://portal.hud.gov/hudportal/HUD?src=/topics/housing_choice_
voucher_program_section_8 (last visited March 21, 2016).
4
Here and elsewhere, Plaintiff refers to “Defendant.” (See TAC, at unnumbered 1 ¶ 3.)
Because Plaintiff says early on in his TAC that “Defendant is the Tuckahoe Housing Authority,”
(see id., at unnumbered 1 ¶ 2), despite the fact that Plaintiff has, in fact, sued multiple
defendants, this Opinion will assume that such references are properly understand as alluding to
the THA.
3
number of units as handicap[] accessible.” (Id., at unnumbered 2 ¶ 7; see also id., at unnumbered
8–9 ¶ 4) In addition, the THA was “noted to be in non-compliance with the admission policy
under HUD regulations 24 CFR 960.206[](b)(2)[] that requires that applicants for low-rent
housing units be given working family preference if the head of household and spouse or sole
member is age 62 or older or is a person with disabilities.” (Id., at unnumbered 2 ¶ 7; id., at
unnumbered 8–9 ¶ 4.) Despite such regulations, according to Plaintiff, the THA did not extend
this preference to disabled persons, giving preference instead to working, non-disabled
applicants. (Id., at unnumbered 2 ¶ 7; see also id., at unnumbered 9 ¶ 4.)
On or about August 7, 2008, Plaintiff emailed Matveevskii, “describing [his] needs and
concerns” as a disabled tenant with a heart condition and a third-floor apartment, to ask for a
“reasonable accommodation” for a first-floor apartment at either 31 Midland Place or 25
Midland Place. (Id., at unnumbered 2 ¶ 8.) Plaintiff’s request allegedly went “unanswered and
ignored.” (Id.)
On or about March 3, 2010, Plaintiff received a letter from the THA indicating that his
rent would be increased from $473 to $527. (Id., at unnumbered 3 ¶ 9.) Around the same time,
Plaintiff “requested reasonable accommodations under the Fair Housing Act” to be moved to a
lower floor apartment at either 31 Midland Place or 25 Midland Place. (Id., at unnumbered 3
¶ 10.) Additionally, Plaintiff requested a formal hearing to “discuss the delay in providing his
reasonable accommodation request,” (id.), a request apparently acknowledged on July 30, 2014,
(see id., at unnumbered 7 ¶ 32).5 The request for a reasonable accommodation was again
ignored. (See id., at unnumbered 3 ¶ 10.) Approximately two weeks later, Plaintiff sent a letter
5
More specifically, Plaintiff alleges that “[o]n or about July 30, 2014, Defendant’s
attorney Mr. Kamensky initially acknowledged the request of Plaintiff for a ‘formal hearing’ (4
years later) as requested in Item 9 [sic] of this complaint.” (See TAC at unnumbered 7 ¶ 32.)
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to the THA “Board of Commissioners” and Matveevskii reiterating his earlier requests and
asking why he had been overlooked when an apartment in one of the units he requested became
available. (Id., at unnumbered 3 ¶ 11.)
On approximately May 12, 2010, Plaintiff learned that the certified letters he sent to the
“Board of [D]irectors” had “never [been] forwarded to them,” despite having signed receipts
indicating they were delivered. (Id., at unnumbered 3 ¶ 12.) Accordingly, as apparently
described in a police report, he “slapped . . . down” the letters on the table, and Matveevskii,
concerned for her safety, called the Tuckahoe Police Department, which was dispatched to 4
Union Place as a result. (See id. (internal quotation marks omitted).)
Throughout the coming months, Plaintiff’s submissions relating to his desire to be
relocated to a new apartment continued: On October 25, 2010, Plaintiff’s orthopedic doctor, Dr.
Rozbruch, sent a letter to the THA requesting a “reasonable accommodation,” which was
allegedly ignored. (Id., at unnumbered 3 ¶ 13 (internal quotation marks omitted).) On
approximately December 2, 2010, Plaintiff filed a complaint against Matveevskii and the THA.
(Id., at unnumbered 4 ¶ 14.) On April 2, 2011, Plaintiff “requested a FOIA to the Tuckahoe
Police Department for a copy of the Police Report where[,] during a [t]enants[’] meeting[,] Ms.
Matveevskii called 911 to report that Plaintiff was attending the THA tenants meetings with a
‘gang’ of people coming at her.” (Id., at unnumbered 4 ¶ 15.)
On approximately July 14, 2011, the THA proposed two offers of what it felt would be
“an appropriate accommodation to show a ‘good faith’ offer for a ‘reasonable accommodation,’”
but which were inappropriate as “the unit locations [would] place [Plaintiff’s] disabled mother
and [Plaintiff] in further physical harm,” and, as a result, Plaintiff declined the offers based on
concern for their physical safety. (Id., at unnumbered 5 ¶ 18.) That request was followed up by
5
a “fraudulent offer” for a unit in 31 Midland Place that was not available for immediate
occupancy. (Id., at unnumbered 5 ¶ 19.)
2. The THA’s Alleged Acts of Aggression Towards Plaintiff
On approximately May 10, 2011, Defendants allegedly reported Plaintiff to the
“Department of Housing,” indicating that “Plaintiff was housing a pedophile.” (Id., at
unnumbered 4 ¶ 16.) As a result, three HUD officers entered Plaintiff’s apartment “on the
pretense that a pedophile had been living at [his] address for the past 15 years.” (Id.) Plaintiff
gave the officers—who had their guns drawn—permission to search the apartment, and the
officers showed Plaintiff and his mother a picture of the person for whom they were looking.
(Id.) Neither Plaintiff nor his mother recognized the person. (Id.) After the officers finished
their search, Plaintiff asked how they came to believe that a pedophile was living at the address.
(Id.) The officers told Plaintiff that someone had called the HUD office from the THA and
informed them so. (Id.) Plaintiff also called Chief Constanza at the Tuckahoe Police
Department, who confirmed for Plaintiff that the call came from the THA. (Id.) At the time the
call was placed, Plaintiff and Matveevskii were “in a law[]suit . . . with the Human Rights
Commissioner of Westchester . . . regarding violations of Tenants rights.” (Id.)
Approximately a week later, on or about May 18, 2011, Zuckerman, the Chairman of the
Board of Commissioners for the THA, wrote a letter to Plaintiff’s sister, the substance of which
seemed to be that Zuckerman was pressured by others to seek her resignation from some
organization affiliated with the THA in light of the perception that Plaintiff’s family had been
“stealing extraordinary sums of money.”6 (Id., at unnumbered 4–5 ¶ 17.)
6
Plaintiff’s allegation, which is unclear, reads:
6
3. Lease Terminations and Plaintiff’s Search for a New Apartment
On November 4, 2011, THA, or its representatives, “terminated [Plaintiff’s] lease without
‘good cause,’” and, the same day, refused a request that Plaintiff’s brother, John Gunther, be
permitted to reside in Plaintiff’s apartment to look after John Gunther’s 83-year-old disabled
mother, Anne Gunther, who lived in the unit, while Plaintiff was “going to be in the hospital for
an undisclosed period of time.” (Id., at unnumbered 5 ¶¶ 20–21.)7 Two months later, Plaintiff
was served “an affidavit for [e]viction” by Matveevskii and Zuckerman, albeit in a manner that
Plaintiff considers to be out of accord with certain legal requirements. (See id., at unnumbered 5
¶ 22.) “On or about January 4, 2012[,] Mr. Zuckerman admitted on the affidavit that he had been
stalking . . . Plaintiff[’]s brother John Gunther the entire year of 2011 for the purpose of the
affidavit of eviction.” (Id., at unnumbered 6 ¶ 23.)
In spring 2012, Plaintiff apparently corresponded with Defendants’ counsel about his
housing options. On or about April 3, 2012, Plaintiff sent a letter to Defendants’ attorney, Mr.
Leo (“Leo”), requesting a copy of the “breakdown of his rent calculations” and to be issued a
new lease. (Id., at unnumbered 6 ¶ 24.) Around that same time, Leo sent Plaintiff an offer for
the unit at 31 Midland Place, Apt. 1D, and Leo further “advised [Plaintiff] that the Unit at 31
On or about May 18, 2011[,] Defendant (Zuckerman, Chairman of the Board of
Commissioners for the THA) wrote a letter to Trudy, Plaintiff’s sister questioning her
ability to contribute to “our Board and the THA.” Zuckerman stated that he has been
deluged by members of the community as well as Board members to seek her resignation
because you (Trudy) “had to have known” that your family members were stealing
extraordinary sums of money, while other residents were legally paying their rents required
by law. These people find it more than a little uncomfortable having you now “represent”
their interests . . . . This letter continues to “bad mouth” Trudy and Plaintiff’s family within
the rest of the letter.
(TAC, at unnumbered 4 ¶ 17 (ellipses in original).)
7
Context makes clear that Anne Gunther is also Plaintiff’s mother.
7
Midland Place Apt. 1D was not the ‘apartment for me,’” going on to say that the “‘1’ floor
apartment in building 31 Midland Place” was neither handicap accessible nor compliant with the
Americans with Disabilities Act (“ADA”). (Id., at unnumbered 6 ¶ 25.) In order to take
possession of the unit, Plaintiff would have to waive his rights to a handicap accessible/ADA
compliant apartment, and further assent to the unit’s continued noncompliance. (Id.) Leo then
presented Plaintiff with a new lease containing those provisions, and, about one month later,
Defendants’ lawyer sent Plaintiff, John Gunther, and Anne Gunther a letter regarding signing the
lease. (See id., at unnumbered 6 ¶¶ 25–26.)
Additionally, sometime around approximately September 11, 2013, Plaintiff received a
letter from Defendants’ lawyer, Kamensky, accusing Plaintiff of loud, abusive, and aggressive
behavior when asking someone named Ms. Jones (“Jones”) questions about his rent several days
earlier. (Id., at unnumbered 6 ¶ 27.) The letter further indicated that Matveevskii and Jones “felt
threatened by [Plaintiff’s] behavior” and called the police. (Id.) The letter warned Plaintiff that
if this sort of behavior continued, it would result in the termination of Plaintiff’s lease. (Id.)
In addition to these disputes, Plaintiff and Defendants also found themselves in various
legal entanglements: On January 29, 2014, Matveevskii submitted an affidavit in support of a
Motion to Dismiss, which stated that Matveevskii provided a “true and accurate copy of
documentation showing Plaintiff’s annual rent calculations for years 2009, 2010, 2011 along
with a copy of the Public Housing lease Agreement, [d]ated February 18, 2009,” but which,
allegedly, was in fact “invalid” “documentation” that “d[id] not correspond to the years in
question” or “follow the guidelines esta published [sic] by HUD and the Fair Housing Act.” (Id.,
at unnumbered 6 ¶ 29.) On or about April 25, 2014, Plaintiff submitted a Freedom of
8
Information Act request to, among others, the THA for a copy of his rental budget and
computations dating back to 2009. (See id., at unnumbered 6–7 ¶ 28.)
On approximately June 18, 2014, Plaintiff received notice signed by Matveevskii that his
lease was terminated, because he apparently had not “provid[ed] re-certification within the
allotted time.” (Id., at unnumbered 7 ¶ 30.) On July 8, 2014, Defendants “replied with
acknowledgment and receipt for recertification,” but indicated that they would not take
Plaintiff’s medical expenses into account when recertifying his rent. (See id., at unnumbered 7
¶ 31.) Nevertheless, on approximately October 3, 2014, Defendants notified Plaintiff that there
was an apartment at 39 Midland Place that would become available on October 20, 2014,
although, Plaintiff alleges, “[t]his was another fraudulent offer made by the THA as the unit was
not readily available for immediate occupancy . . . .” (Id., at unnumbered 7 ¶ 33.) On October
13, 2014, Plaintiff’s doctor, Dr. Ro, sent a letter to the THA management offices requesting
reasonable accommodations for Anne Gunther, as her medical condition took a turn for the
worse. (Id., at unnumbered 7 ¶ 34.) Shortly thereafter, on or about November 17, 2014 and
December 3, 2014, Plaintiff filed “Housing Discrimination Complaint[s]” against Defendants.
(Id., at unnumbered 7–8 ¶¶ 35–36.) On December 12, 2014, Defendants called the “Protective
Services for Adults hotline to report elderly abuse against Anne Gunther.” (Id., at unnumbered 8
¶ 37.) Afterwards, “Protective Services” conducted an investigation, which was “found to be
ineligible to receive Protective Services that Ms. Anne Gunther had another system or person
willing and able to assist in a responsible manner” [sic]. (Id.)
4. Putative Legal Misdeeds
In his Third Amended Complaint, Plaintiff also posits a number of other wrongs that
Defendants allegedly committed. First, he claims that the THA violated the Architectural
9
Barriers Act, 42 U.S.C. §§ 4151–57. (Id., at unnumbered 8 ¶ 3.) Additionally, as noted, Plaintiff
asserts that the THA was reported to HUD in the summer of 2008 for noncompliance with § 504
of the Rehabilitation Act and regulations promulgated thereunder, including “24 [C.F.R.] Part 8”
and 24 C.F.R. § 960.206(b)(2). (Id., at unnumbered 9 ¶ 4.) In addition, Plaintiff alleges that the
THA discriminates against the disabled in that (1) it does not have an appropriate number of
handicap-accessible units, (2) the Policy of the THA does not accommodate disabled tenants, (3)
there is a continued practice to deny requests for reasonable accommodations “[o]ver applicants
who[] are working, non-disabled[,] or elderly,” and, with respect to Plaintiff specifically, and (4)
by “refusing to provide ‘reasonable accommodations’ that were requested in March of 1997 and
on several other occasions following the initial request.” (Id., at unnumbered 9 ¶¶ 5–6.) Plaintiff
also alleges that Defendants “[i]mproper[ly] execut[ed] . . . the [r]ental [a]greement,” in that the
lease “stated . . . that if a reasonable accommodation is needed . . . [t]he THA has the right to
make changes in the utilization of the currently rented units to make changes to accommodate
the needs of a disabled tenant.” (Id., at unnumbered 9–10 ¶ 8.) Similarly, by “prolong[ing]
providing . . . the ‘reasonable accommodations,’” Defendants allegedly “[i]ntentionally plac[ed]
[Plaintiff’s] family in physical harm on a daily basis,” as exemplified by the fact that Plaintiff
twice fell down the stairs. (Id., at unnumbered 10 ¶ 9.) Plaintiff similarly accuses the
Defendants of “[d]elay and refusal to provide reasonable accommodations,” citing 42 U.S.C.
§ 3604(f)(3), a provision of the Fair Housing Act clarifying the scope of discrimination within
the Act’s provisions concerning persons with disabilities. (Id., at unnumbered 10 ¶ 10.)
Additionally, Plaintiff alleges that (1) Matveevskii “[d]iscriminat[ed] against a black
family” by saying that Plaintiff “had a ‘gang’ coming after her . . . in a public meeting whereby
10
[sic] she called 911 to come investigate,” when, in fact, “[t]here was no gang but a gathering of
tenants for the monthly tenants meeting.” (Id., at unnumbered 9 ¶ 7.)
Somewhat duplicatively, Plaintiff alleges “[h]arassments/[r]etaliation against [Plaintiff]
due to [his] having filed a complaint with the Dept. of HUD” for (a) “noncompliance of our
needed Reasonable Accommodations,” (b) “[v]iolations of the Architectural Barriers Act,” (c)
“[c]ontinued disregard for [t]he Rehabilitation Act Section 504,” (d) the Fair Housing Act, (e)
“Real Property Laws, The Apartment Law,” (f) “[v]iolations of [c]ivil [r]ights, discrimination
against the disabled, family status, elderly, and race,” (g) “[t]enants [r]ights,” (h) “[h]ealth and
[s]afety [c]odes” and “[c]oercing Plaintiff to accept a unit with known flooding,” and (i) “Village
of Tuckahoe Building and Planning codes.” (Id., at unnumbered 10–11 ¶ 11.)
Additionally, Plaintiff alleges that Defendants are responsible for the “[i]ntentional
[i]nfliction of undue emotional distress,” inasmuch as they “created a state of depression in
[Plaintiff’s] mother that eventually le[]d to her untimely death,” and “also placed an increased
stress[] load on [Plaintiff],” through “continued attacks against [Plaintiff’s] family, bringing to
court over rent [sic], writing letters accusing [Plaintiff’s] family of stealing from the THA, and
continually calling the police.” (Id., at unnumbered 12–13 ¶ 15.)
Plaintiff also imputes a variety of other “improper” actions to Defendants. First, he says,
Defendants, in a number of respects, “[i]ntentional[ly] [i]mproper[ly] calculate[ed] . . . [his]
rent,” including by refusing Plaintiff copies of all his rent receipts and his signed 50059 Lease
Change forms showing year-to-year changes in rent, “mandated by DCHR, HUD, and the Fair
Housing act,” and also by refusing to accept medical deductions in calculating his rent, which
“can be construed as trying to de-regulate the THA rental housing programs.” (Id., at
unnumbered 11 ¶ 12.) Second, in a set of allegations he categorizes as “[i]mproper use of
11
services,” Plaintiff says Defendants “t[ook] him to court for an improper eviction 4 times,”
“utilize[ed] the Tuckahoe police department for unwarranted reasons,” including when
Matveevskii called 911 to say that Plaintiff was “threatening and scaring her,” and by reporting
Plaintiff’s family to “the Department of HUD Homeland security” and to the “Elder Abuse
Hotline.” (Id., at unnumbered 12 ¶ 13.) Next, Plaintiff accuses Defendants of “[i]mproper[ly]
handling . . . [his] private and personal information,” including through “sale of personal
information that was to be safe[]guarded under the Rights to Privacy within the boundaries of the
Fair Housing Act.” (Id., at unnumbered 12 ¶ 14.) Additionally, Plaintiff accuses Defendants of
“[i]nterference of [his] rights as a tenant to have equal enjoyment.” (Id., at unnumbered 13 ¶ 16.)
Finally, Plaintiff alleges “[d]iscrimination with regards to family status,” in that Defendants
attempted to remove Anne Gunther from 31 Midland Place by calling Adult Protective Services
with the complaint that she could not care for herself. (Id., at unnumbered 14 ¶ 17.)
At the end of his TAC, Plaintiff breaks out separately a one-item list of his counts,
comprising a single count of negligence. As Plaintiff alleges therein:
Defendant failed to perform the duties in the written contract in a safe and effective
manner[,] leading to the injuries sustained by Plaintiff. That if the reasonable
accommodations had been granted when originally requested in 1996, the injuries
that resulted in the falls [sic] down the stairs would not have occurred. Matveevskii
was aware of [Plaintiff’s] walking disabilities that have been documented several
times by [Plaintiff’s] doctors.
Falling down the stairs from the 3r[d] floor 2 times. As a result of the fall has [sic]
had to have knee surgery on the right [k]nee and will now as a result of the second
fall have to have surgery on the left knee with possible back surgery along with
nerve damage.
(Id., at unnumbered 14.)
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B. Procedural Background
Plaintiff filed a Complaint on December 2, 2010, in which he named Matveevskii and
THA as Defendants. (See Dkt. No. 2.) On April 7, 2011, Plaintiff voluntarily dismissed the
causes of action that he had asserted against Matveevskii without prejudice, leaving only the
causes of action that he had asserted against THA. (See Dkt. No. 9.) Plaintiff then voluntarily
dismissed the causes of action that he had asserted against THA as well, again without prejudice,
on May 13, 2011. (See Dkt. No. 11.) Approximately two months later, on July 11, 2011,
Plaintiff moved to reopen the case and file an Amended Complaint. (See Dkt. No. 12.) On
December 14, 2011, Plaintiff’s case was reassigned to this Court. (See Dkt. No. 17.) The Court
granted Plaintiff’s request to reopen the case and file an Amended Complaint on January 12,
2012. (See Dkt. No. 19.) On January 31, 2012, Plaintiff filed an Amended Complaint. (See Dkt.
No. 21.) Defendants filed an Answer in response to Plaintiff’s Amended Complaint on June 6,
2012. (See Dkt. No. 32.) On March 7, 2013, Plaintiff submitted an application for pro bono
counsel, which the Court subsequently denied. (See Dkt. Nos. 48, 49.)
On August 9, 2013, Defendants moved for summary judgment, (see Dkt. Nos. 61–69),
and certain then-defendants affiliated with HUD moved to dismiss, (see Dkt. Nos. 56–59). On
September 25, 2013, Plaintiff requested an extension of time to respond to the motions, which
request the Court granted, (see Dkt. No. 72), and, on October 28, 2013, Plaintiff submitted his
opposition to the motions, (see Dkt. No. 89). Defendants then submitted a reply memorandum in
support of their motion for summary judgment on November 14, 2013, (see Dkt. No. 73), and the
HUD then-defendants submitted their reply memorandum the next day as well, (see Dkt. No.
75). On May 14, 2014, in an attempt to clarify certain aspects of Plaintiff’s allegations, the
Court directed the parties to submit supplemental memoranda of law. (See Dkt. No. 86.)
13
Defendants thereafter submitted a supplemental reply memorandum on May 28, 2014, (see Dkt.
No. 87), and, on May 21, June 2, June 8, June 13, and June 25, 2014, Plaintiff submitted various
documents and photographs to the Court, none of which was responsive to the Court’s May 14,
2014 Order, (see Dkt. Nos. 90–92).
On September 29, 2014, the Court issued its Opinion and Order (the “Opinion”) granting
summary judgment in favor of Defendants, and further granting the HUD then-defendants’
motion to dismiss. (See Dkt. No. 93.) That Opinion also granted Plaintiff leave within 30 days
to file a Second Amended Complaint. (See id.) Plaintiff then submitted a number of letters to
the Court, including (1) a letter “ask[ing] for an extension the motion [sic] made by Mr. Tyra R
Saechao of kbr LLP,” (see Dkt. No. 94), to which the Court instructed Defendants to respond,
(see Dkt. No. 94–95), (2) another letter submitted “to this [C]ourt to ask for a DISONANCE
motion [sic],” (see Dkt. No. 96), and (3) a letter enclosing a copy of a housing discrimination
complaint apparently submitted by Plaintiff to HUD’s Office of Fair Housing and Equal
Opportunity, (see Dkt. No. 97), and (4) a letter “[e]nclos[ing] . . . additional information that
support[s][Plaintiff’s] case,” and attaching a letter to Matveevskii from THA’s commercial
general liability insurance provider, (see Dkt. No. 98). On February 23, 2015, the Court issued
an Order informing Plaintiff that he had 30 more days to file a Second Amended Complaint if he
chose to do so, but that, otherwise, his case would be closed. (See Dkt. No. 99.)
On March 19, 2015, Plaintiff filed a four-page Second Amended Complaint, making
seven “charges against the defendants[],” identifying several putative “Laws and Acts” that
Defendants allegedly violated, and detailing, in a semi-epistolary form, Plaintiff’s past dealings
with Defendants. (See Dkt. No. 100.) Additionally, by letter dated March 26, 2015, Plaintiff
wrote that his mother had passed away, and informed the Court that he was “working very hard
14
to get to [the Court’s] chambers the rest of the time line to [Plaintiff’s] documented complaints,”
which the Court memo-endorsed, expressing its condolences to Plaintiff, and granting him a final
30 days to submit an amended Complaint. (See Dkt. No. 101.)
Thereafter, on April 17, 2015, Plaintiff submitted a letter to the Court
“[e]nclos[ing] . . . some of the information [Plaintiff had been] gathering,” and informing the
Court that “Matveevskii . . . has [Plaintiff] back in local court in the Village of Tuckahoe.” (See
Dkt. No. 103.) Likewise, on April 21, 2015, the Court received a second letter from Plaintiff,
indicating that Plaintiff had had an accident involving his left eye, and that he may have a
concussion, but that, nevertheless, he was “trying very hard to make [the Court’]s dead[]line of
30 days.” (See Dkt. No. 102.)
Finally, on April 29, 2015, Plaintiff submitted his Third Amended Complaint. (See Dkt.
No. 104.) On May 13, 2015, Defendants submitted a pre-motion letter to the Court in advance of
their anticipated Motion to Dismiss, (see Dkt. No. 105), which the Court granted leave to file on
May 19, 2015, (see Dkt. No. 107). On May 19, 2015, counsel for Adolfo Carrión and Mirza
Orriols submitted a letter noting that the TAC did not name any HUD employee or HUD itself as
a defendant, and informed the Court that the Government did not intend to file an answer or a
pre-motion letter. (See Dkt. No. 106.)
On June 5, 2015, Plaintiff submitted a request dated May 25, 2015 to the Court asking for
a “ruling on the information requested[ ]in [Plaintiff’s] two [Freedom of Information Law
requests]” sent to THA and a “[r]uling on how many lawyers . . . Plaintiff ha[s] to answer[] to,”
issues in which the Court declined to involve itself prior to discovery. (See Dkt. No. 108.) In
support of this letter, Plaintiff submitted yet another letter to the Court attaching additional
15
documents on June 11, 2015, which Plaintiff asserted would “support [his] argument and make a
strong case for a favorable decision by the Supreme Court.” (See Dkt. No. 118.)
On June 18, 2015, Defendants submitted an Answer to the TAC, (see Dkt. No. 109),
which they then withdrew that same day, (see Dkt. No. 110), before submitting their Motion to
Dismiss and accompanying papers the following day, (see Dkt. Nos. 111–17). By letter dated
July 14, 2015, Plaintiff submitted a letter informing that Court that he had contacted an attorney
who agreed to review his case, and asked for an extension to file his opposition by August 21,
2015, a request the Court granted. (See Dkt. No. 119.) On August 19, 2015, Plaintiff submitted
a one-page self-styled “Response Complaint” to the Court informing the Court that it was his
“understanding under the Fifth Amendment . . . [that] [he] [is] entitled to due process,” and
summarizing what he believes that proposition to entail. (See Dkt. No. 120.) On September 21,
2015, Defendants submitted their Reply Memorandum, arguing that Plaintiff’s August 19, 2015
submission did not constitute an opposition to their Motion, and requesting that Plaintiff’s claims
be deemed abandoned. (See Dkt. No. 121.)
On October 1, 2015, Plaintiff submitted a letter to the Court attaching various other
documents, apparently further describing the merits of his complaint, and invoking such
authorities as the “[l]egal [p]roof defining [s]lander,” the Emancipation Proclamation, and the
works of Danish philosopher Søren Kierkegaard. (See Dkt. No. 122.) Additionally, on October
5, 2015, Plaintiff submitted a document entitled “Response to: Complaint,” describing his
complaints concerning the defendants’ conduct, detailing certain personal losses, and enclosing a
copy of Defendants’ withdrawn answer. (See Dkt. No. 125.) On October 7, 2015, the Court
tabled the issues in the October 1, 2015 letter until such time as the Motion to Dismiss was
resolved. (See Dkt. No. 124.)
16
II. Discussion
A. Standard of Review
“The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction and under 12(b)(6) for failure to state a claim are ‘substantively identical.’”
Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn.
June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)); see also
Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (same),
aff’d, 591 F. App’x 28 (2d Cir. 2015). “In deciding both types of motions, the Court must accept
all factual allegations in the complaint as true, and draw inferences from those allegations in the
light most favorable to the plaintiff.” Gonzalez, 2014 WL 2475893, at *2 (internal quotation
marks omitted); see also Seemann v. U.S. Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1
(D. Vt. June 4, 2012) (same). However, “[o]n a Rule 12(b)(1) motion, . . . the party who invokes
the Court’s jurisdiction bears the burden of proof to demonstrate that subject matter jurisdiction
exists, whereas the movant bears the burden of proof on a motion to dismiss under Rule
12(b)(6).” Gonzalez, 2014 WL 2475893, at *2; see also Sobel v. Prudenti, 25 F. Supp. 3d 340,
352 (E.D.N.Y. 2014) (“In contrast to the standard for a motion to dismiss for failure to state a
claim under Rule 12(b)(6), a plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” (internal quotation marks omitted)).
This difference as to the allocation of the burden of proof is “[t]he only substantive difference”
between the standards of review under these two rules. Smith v. St. Luke’s Roosevelt Hosp., No.
08-CV-4710, 2009 WL 2447754, at *9 n.10 (S.D.N.Y. Aug. 11, 2009), adopted by 2009 WL
2878093 (S.D.N.Y. Sept. 2, 2009); see also Fagan v. U.S. Dist. Court for S. Dist. of N.Y., 644 F.
Supp. 2d 441, 447 n.7 (S.D.N.Y. 2009) (same).
17
1. Rule 12(b)(1)
“A federal court has subject matter jurisdiction over a cause of action only when it has
authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233,
241 (E.D.N.Y. 2014) (internal quotation marks omitted). “Determining the existence of subject
matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (internal quotation marks omitted), aff’d, 561 U.S. 247 (2010); see also N.Y. State
Citizens’ Coal. for Children v. Carrion, 31 F. Supp. 3d 512, 516 (E.D.N.Y. 2014) (same).
2. Rule 12(b)(6)
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alterations,
citations, and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alterations and internal quotation marks
omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[ ] across the
18
line from conceivable to plausible, the[ ] complaint must be dismissed,” id.; see also Iqbal, 556
U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” (second alteration in original) (citation omitted) (quoting Fed. R.
Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
For the purposes of Defendants’ Motion To Dismiss, the Court is required to consider as
true the factual allegations contained in the Amended Complaint. See Ruotolo v. City of N.Y.,
514 F.3d 184, 188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a complaint
pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all
reasonable inferences in the plaintiff's favor.” (italics and internal quotation marks omitted)); see
also Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008) (same). “In 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.” Leonard F. v. Isr. Disc. Bank
of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted). Finally, the Court
construes “the submissions of a pro se litigant . . . liberally” and interprets them “to raise the
strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (internal quotation marks omitted).
19
B. Analysis
1. Subject Matter Jurisdiction
As with his First Amended Complaint, it is less than entirely clear what claims Plaintiff
intends to press in his TAC. Defendants rightly note that Plaintiff asserts only one cause of
action for negligence. (See Mem. of Law in Supp. of Mot. To Dismiss Third Am. Comp.
(“Defs.’ Mem.”) 4 (Dkt. No. 113).) Because negligence is not a federal question, and because
diversity of citizenship is lacking, Defendants argue that this matter must be dismissed for want
of subject matter jurisdiction. (Id. at 4–5.)
Because the Parties are non-diverse (i.e., New Yorkers), (see TAC, at unnumbered 1
¶¶ 1–2), and all other constitutional bases for jurisdiction are plainly inapposite, the only possible
basis upon which to find subject matter jurisdiction is if the TAC implicates a federal question.
See Zelawska v. Lufthansa German Airlines, No. 13-CV-5114, 2013 WL 6330672, at *1
(E.D.N.Y. Dec. 5, 2013) (“[B]ecause [the] [p]laintiff does not meet the requirements for
diversity jurisdiction, or allege a federal cause of action, the [c]omplaint is sua sponte dismissed
for lack of subject matter jurisdiction.” (italics omitted)); Richards v. W2005 Wyn Hotels, LP,
No. 11-CV-8880, 2011 WL 7006505, at *1 (S.D.N.Y. Dec. 13, 2011) (dismissing complaint in
light of its “assertions identifying [the] [p]laintiffs and a defendant as citizens of the same state,”
which “defeat[ed] complete diversity and render[ed] subject matter jurisdiction lacking in th[e]
case”); Receiveables Exch., LLC v. Hotton, No. 11-CV-292, 2011 WL 239865, at *1 (E.D.N.Y.
Jan. 21, 2011) (dismissing complaint, where, “on its face, [it] fail[ed] to properly plead the
existence of diversity jurisdiction”). For subject matter jurisdiction purposes, it is sufficient that
the complaint could be liberally construed to raise a federal question. See, e.g., Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (“Based upon the record before
20
us and following our policy of liberal construction of complaints, we believe [the plaintiff]’s
complaint should not have been dismissed for lack of subject matter jurisdiction.”); Qian Jin Lin
v. Anderson, No. 12-CV-451, 2013 WL 3776249, at *2 (S.D.N.Y. July 18, 2013) (“Liberally
construed, however, the [c]ourt concludes that [the] [p]laintiff’s complaint can be read as
asserting certain federal claims over which the [c]ourt may have subject matter jurisdiction,
pursuant to 28 U.S.C. § 1331.”). Here, liberally construed, the TAC arguably alleges not just a
single count of negligence, but indeed violations of several federal statutes, to be discussed
below. Therefore, at least prior to considering the merits of those claims, the Court plainly has
subject matter jurisdiction.
2. What Are Plaintiff’s Claims?
Defendants move to dismiss Plaintiff’s claim on several grounds. Before delving into
those reasons and whether Defendants are correct, it is first necessary to determine what, exactly,
Plaintiff is claiming. By the Court’s liberal read, Plaintiff at least attempts to assert a claim for
the following:
Failure to provide a reasonable accommodation and a hearing on those accommodations.8
Violations of the Architectural Barriers Act.9
Violations of the Rehabilitation Act § 504.10
8
(See TAC, at unnumbered 2 ¶ 8; id., at unnumbered 3 ¶ 10; id., at unnumbered 3 ¶ 11;
id., at unnumbered 3 ¶ 13; id., at unnumbered 5 ¶¶ 18–19; id. at unnumbered 6 ¶ 25; id. at
unnumbered 7 ¶¶ 32–34; id. at unnumbered 9 ¶¶ 5–6; id., at unnumbered 9–10 ¶¶ 8–11(a); id., at
unnumbered 13 ¶ 16.)
9
(See TAC, at unnumbered 8 ¶ 3; id. TAC, at unnumbered 10 ¶ 11(b).)
10
(See TAC, at unnumbered 8–9 ¶ 4; id., at unnumbered 11 ¶ 11(c).)
21
Violations of HUD regulations.11
Unspecified disability discrimination.12
Racial discrimination, including allegations said Plaintiff had a “gang” of people coming
after Matveevskii.13
Unspecified discrimination based on familial status.14
Unspecified discrimination against the elderly.15
Violations of the Fair Housing Act, including failure to accommodate and “Rights to
Privacy” under it.16
Violations of health, safety, building, planning, and occupancy codes, and coercing
Plaintiff into accepting a unit with “known flooding[].”17
Rent over-charging, including by not allowing medical deductions and/or not providing
Plaintiff with breakdowns of his rent calculations.18
Terminating Plaintiff’s lease and/or evicting him.19
11
(See TAC, at unnumbered 2 ¶ 7; id. at unnumbered 8–9 ¶ 4; id., at unnumbered
¶ 11(g).)
12
(See TAC, at unnumbered 8–9 ¶ 4; id., at unnumbered 11 ¶ 11(f).)
13
(See TAC, at unnumbered 4 ¶ 15; id., at unnumbered 9 ¶ 7; id., at unnumbered 11
¶ 11(f).)
14
(See TAC, at unnumbered 11 ¶ 11(f); id., at unnumbered 14 ¶ 17.)
15
(See TAC, at unnumbered 11 ¶ 11(f).)
16
(See TAC, at unnumbered 10 ¶ 10; id., at unnumbered 11 ¶¶ 11(d), 11(g); id., at
unnumbered 12 ¶ 14.)
17
(See TAC, at unnumbered 11 ¶¶ 11(h)–11(i); id., at unnumbered 13 ¶ 16(c).)
18
(See TAC, at unnumbered 6 ¶ 24; id., at unnumbered 6–7 ¶ 29; id., at unnumbered 7
¶ 31; id., at unnumbered 11 ¶ 12.)
19
(See TAC, at unnumbered 5 ¶¶ 21–22; id., at unnumbered 7 ¶ 30; id., at unnumbered
12 ¶ 13(a); id., at unnumbered 12 ¶ 14(a); id., at unnumbered 12 ¶ 15; id., at unnumbered 13
¶ 16(b).)
22
Calling the police.20
Informing HUD and/or the Department of Homeland Security that Plaintiff was housing a
pedophile.21
Calling the Elder Abuse Hotline.22
Putting stress on and/or otherwise attacking Plaintiff’s family.23
Not letting Plaintiff’s brother live in the apartment, and stalking him “for the purpose of
the affidavit of eviction.”24
Violations of “Real Property Law, The Apartment Law.”25
Interfering with Plaintiff’s “rights as a tenant to have equal enjoyment” to his
apartment.26
Negligence, in that Plaintiff fell down the stairs twice.27
For the following reasons, to the extent these claims raise a federal question, dismissal is
appropriate.
20
(See TAC, at unnumbered 3 ¶ 12; id. at unnumbered 6 ¶ 27; id., at unnumbered 12
¶ 13(b); id., at unnumbered 12 ¶ 14(a).)
21
(See TAC, at unnumbered 4 ¶ 16; id., at unnumbered 12 ¶ 13(c); id., at unnumbered 13
¶ 16(a).)
22
(See TAC, at unnumbered 8 ¶ 37; id., at unnumbered 12 ¶ 13(d); id., at unnumbered 14
¶ 17.)
23
(See TAC, at unnumbered 4–5 ¶ 17; id., at unnumbered 12 ¶ 14(a); id., at unnumbered
12–13 ¶ 15.)
24
(See TAC, at unnumbered 5 ¶ 20; id., at unnumbered 6 ¶ 23; id., at unnumbered 13
¶¶ 16(d)–(f).)
25
(See TAC, at unnumbered 11 ¶ 11(e); id., at unnumbered 13–14 ¶ 16(f).)
26
(See TAC, at unnumbered 13 ¶ 16.)
27
(See TAC, at unnumbered 10 ¶ 9; id., at unnumbered 14.)
23
3. Types of Discrimination
As noted, Plaintiff’s Third Amended Complaint may well implicate the Fair Housing Act
(“FHA”), the ADA, and § 504 of the Rehabilitation Act. The FHA proscribes “refus[al] to sell
or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or
otherwise make unavailable or deny, a dwelling to any person because of race, color, religion,
sex, familial status, or national origin,” 42 U.S.C. § 3604(a), or “[t]o 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” for any of those same reasons, id. § 3604(b). In
addition, in 1988, Congress amended the FHA to forbid discrimination on the basis of disability,
see Fair Housing Amendments Act of 1988, sec. 6, § 3604(f), 102 Stat 1619 (1988), such that the
FHA today prohibits “discriminat[ing] in the sale or rental, or . . . otherwise mak[ing]
unavailable or deny[ing], a dwelling to any buyer or renter because of a handicap of” certain
persons, including the renter or anyone associated with the renter, and further prohibits
“discriminat[ing] 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 with such dwelling, because of
a handicap of,” among others, that person or anyone associated with that person, see
§ 3604(f)(1), (2). Similarly, the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132. Finally, § 504 of the Rehabilitation Act, in pertinent part,
states that “[n]o otherwise qualified individual with a disability in the United States . . . , shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
24
financial assistance or under any program or activity conducted by any Executive agency or by
the United States Postal Service.” 29 U.S.C. § 794(a).
In the context of a disability claim, “plaintiffs who allege violations under the ADA, the
FHA, and the Rehabilitation Act may proceed under any or all of three theories: disparate
treatment, disparate impact, and failure to make reasonable accommodation.” Reg’l Econ. Cmty.
Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir. 2002), superseded by
statute on other grounds, ADA Amendments of 2008, Pub. L. No. 110–325, 122 Stat. 3553, as
recognized in Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 46 (2d Cir. 2015);
see also Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (“A qualified individual can base a
discrimination claim [under Title II of the ADA or § 504 of the Rehabilitation Act] on any of
‘three available theories: (1) intentional discrimination (disparate treatment); (2) disparate
impact; and (3) failure to make a reasonable accommodation.’” (quoting Tsombanidis v. W.
Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir. 2003)). Similarly, under §§ 3604(a) and (b) of the
Fair Housing Act, “[a] plaintiff can make out a claim of discrimination either on a theory of
disparate impact or one of disparate treatment.” Fair Hous. in Huntington Comm. Inc. v. Town
of Huntington, N.Y., 316 F.3d 357, 366 (2d Cir. 2003) (internal quotation marks omitted)
(describing standard under § 3604(a)); see also Khalil v. Farash Corp., 452 F. Supp. 2d 203, 207
(W.D.N.Y. 2006) (noting same in context of § 3604(a) and (b) claims), aff’d, 277 F. App’x 81
(2d Cir. 2008).
Read liberally, Plaintiff’s TAC can be taken to assert (1) a claim for disparate treatment
under the FHA, the ADA, and Rehabilitation Act, and (2) a claim for failure to accommodate
under these same statutes.
25
a. Disparate Treatment
As noted in the Opinion resolving the prior Motions for Summary Judgment and To
Dismiss, “subtle differences” exist among these laws. Logan v. Matveevskii, 57 F. Supp. 3d 234,
253 (S.D.N.Y. 2014) (internal quotation marks omitted). Unlike at that juncture, here, one of
those differences is arguably significant, as will be explained below.
i. FHA, ADA
To begin, a plaintiff asserting a claim of housing discrimination must establish that the
basis upon which he was discriminated against was “a significant factor” in the position taken by
the defendants. See Reg’l Econ. Cmty. Action Program, 294 F.3d at 49 (“To establish a prima
facie case of discrimination under the FHA and the ADA, the plaintiffs must present evidence
that animus against the protected group was a significant factor in the position taken by the
municipal decision-makers themselves or by those to whom the decision-makers were knowingly
responsive.”) (internal quotation marks omitted); L.C. v. LeFrak Org., Inc., 987 F. Supp. 2d 391,
400 (S.D.N.Y. 2013) (“[F]or disparate treatment cases, ‘[t]o establish a prima facie case of
discrimination under the FHA [ ], the plaintiffs must present evidence that animus against the
protected group was a significant factor’ in the position taken by the defendant.” (second and
third alterations in original) (quoting Reg’l Econ. Cmty. Action Program, 294 F.3d at 49));
Palmieri v. Town of Babylon, No. 01-CV-1399, 2006 WL 1155162, at *14 (E.D.N.Y. Jan. 6,
2006) (noting at summary judgment stage in race discrimination case, that “[t]o [establish a
prima facie case of FHA discrimination], [a plaintiff] must offer evidence that ‘animus against
the protected group was a significant factor in the position taken by the municipal decisionmakers themselves or by those to whom the decision-makers were knowingly responsive.’”
26
(quoting LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995))), aff’d, 277 F. App’x
72 (2d Cir. 2008).28
While this is not a pleading requirement, and a plaintiff “need [not] allege discriminatory
animus for [his or] her disparate treatment claim to be sufficiently pleaded,” Boykin v. KeyCorp,
521 F.3d 202, 215 (2d Cir. 2008), and while it may be “sufficient that [a] plaintiff state[] [his or]
her protected status, set forth the circumstances under which [he or] she was treated differently,
and include[] an allegation that this differential treatment was on the basis of [his or] her
protected status,” L.C., 987 F. Supp. 2d at 401 (citing Boykin, 521 F.3d at 215), a claim is
appropriately dismissed where a complaint’s factual allegations do not permit the conclusion that
the complained-of conduct occurred because of discriminatory animus, see Smith v. NYCHA, No.
08-CV-4717, 2009 WL 2486930, at *1 (S.D.N.Y. Aug. 14, 2009) (concluding a complaint failed
to state a claim where “there [was] nothing in [it] . . . that could . . . permit the conclusion that
anything of which [the] [p]laintiff complain[ed] occurred because the [housing authority
defendant] acted with a discriminatory animus on account of any disability . . . .”), aff’d, 410 F.
App’x 404 (2d Cir. 2011).
Here, Plaintiff simply has not alleged sufficient facts to conclude that he was in any way
directly discriminated against on the basis of race, family status, age, or disability. With respect
to racial discrimination, Plaintiff has alleged (1) in conclusory fashion that he was the victim of
racial discrimination or, at best redundantly, “[d]iscrimination against a black family,” (TAC, at
unnumbered 9 ¶ 7; id., at unnumbered 11 ¶ 11(f)), and (2) that Matveevskii called 911 over
Plaintiff’s presence at a meeting, where she reported that Plaintiff had a “gang” of people coming
28
Although this language refers to “municipal decision-makers,” the doctrine is also
applied against private actors as well. Cf. L.C., 987 F. Supp. 2d at 400–01 (applying the same
standard in claim against defendant other than the municipality itself).
27
after her, (id., at unnumbered 4 ¶ 15; id., at unnumbered 9, ¶ 7). With regard to the latter, even a
public allusion to gangs is not sufficient to form the basis of discriminatory intent in a FHA
disparate treatment claim. See Bonasera v. City of Norcross, 342 F. App’x 581, 584 (11th Cir.
2009) (per curiam) (finding statements made at a meeting about, inter alia, “gang types” in the
neighborhood insufficient to establish discriminatory animus in intentional-discrimination FHA
claim). Even recognizing that the word “gang” can have racially offensive connotations; cf.
Williams v. Lindenwood Univ., 288 F.3d 349, 356 (8th Cir. 2002) (“[The defendant] argues on
appeal that there is no . . . intent to discriminate . . . because . . . phrases such as “gang
bangers[]” . . . were never used in connection with the plaintiff or in a manner exhibiting
negative racial connotations. We disagree.”); it can also have innocuous meanings, see
Webster’s II New Riverside University Dictionary 519 (Anne H. Soukhanov et al. 1988) (listing
as the first definition of “gang” “[a] group of people who socialize regularly”). Consequently,
even were the Court to conclude that Matveevskii’s gang reference rendered “conceivable,”
Twombly, 550 U.S. at 570, that racial animosity was a “significant factor,” Reg’l Econ. Cmty.
Action Program, Inc., 294 F.3d at 49 (internal quotation marks omitted), in the putative wrongs
visited upon Plaintiff, the line of plausibility remains uncrossed. Without this tittle of factual
support, the rest of Plaintiff’s race-based FHA claim—to the extent he ever had one—fails: his
other assertions that tread near race discrimination are pure conclusion, (see TAC, at
unnumbered 9 ¶ 7; id., at unnumbered 11 ¶ 11(f)), and, therefore, cannot stand, see Iqbal, 556
U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.”).
This latter observation also dooms any possible disparate treatment discrimination claims
based upon disability, age, or familial status. (See TAC, at unnumbered 8–9 ¶ 4; id., at
28
unnumbered 11 ¶ 11(f); id., at unnumbered 14 ¶ 17.) The latter two are particularly infirm
because age is not a protected class under the FHA, see § 3604(a), (b); see also Quad Enters.,
LLC v. Town of Southold, 369 F. App’x 202, 206 (2d Cir. 2010) (“[A]ge itself is not a protected
category under the [FHA] or ADA.”); Mesi v. Wash. Mut. Home Loans, Inc., No. 08-CV-486,
2011 WL 2174967, at *2 (D. Nev. June 3, 2011) (“[A]ge is not a protected category under the
FHA.”), and “familial status” is elsewhere defined in the FHA as “mean[ing] one or more
individuals (who have not attained the age of 18 years) being domiciled with” either “(1) a parent
or another person having legal custody of such individual or individuals; or (2) the designee of
such parent or other person having such custody, with the written permission of such parent or
other person,” see § 3602(k), which is fatal because, vague though it may at times seem, the
TAC simply contains no facts relating to a minor cohabitant.29 With respect to any potential
disability-based disparate treatment claim that Plaintiff intends to bring above and beyond his
failure-to-accommodate disability claim, there is simply nothing other than Plaintiff’s legal
conclusions in the TAC from which the Court could surmise that “animus against the [disabled]
was a significant factor” in any position taken by Defendants, see Reg’l Econ. Cmty. Action
Program, 294 F.3d at 49 (emphasis omitted), and, accordingly, he has not stated a disparate
treatment disability discrimination claim, cf. Mazzocchi v. Windsor Owners Corp., No. 11-CV-
29
It is possible that Plaintiff’s many allegations concerning Defendants’ purported
mistreatment of his family—specifically, stalking and forbidding Plaintiff’s brother from living
in the apartment, (see TAC, at unnumbered 5 ¶ 20; id., at unnumbered 6 ¶ 23; id., at unnumbered
13 ¶¶ 16(d)–(f)), calling the Elder Abuse Hotline, (see id., at unnumbered 8 ¶ 37; id., at
unnumbered 12 ¶ 13(d)), putting stress on or otherwise attacking Plaintiff’s family, (id., at
unnumbered 4, ¶ 17; id., at unnumbered 12 ¶ 14(a))—could be construed as an effort to show
that Defendants discriminated against Plaintiff on the basis of familial status. However, given
the specialized and even arguably unintuitive meaning of “familial status” as defined in
§ 3602(k), coupled with the non-cognizability of age claims under the FHA, they do not give rise
to a housing discrimination claim.
29
7913, 2013 WL 5295089, at *11 (S.D.N.Y. Sept. 17, 2013) (finding that “[t]he amended
complaint allege[d] enough facts that, when combined with reasonable inferences, show[ed] a
plausible disparate treatment discrimination claim under the FHA,” where “complaints about
[an] illegal subtenancy [by the plaintiff’s girlfriend, who had bipolar disorder] were paired with
vague comments about [her] appearance and behavior” and where “the timing of the . . . decision
to initiate a state-court ejectment proceeding . . . g[a]ve[] rise to the inference that the action was
pretextual”). Therefore, Plaintiff’s disparate treatment claims under the FHA and ADA are
dismissed.
ii. Rehabilitation Act
In contrast with Plaintiff’s FHA and ADA claims, “[t]o establish a prima facie case of
discrimination under the Rehabilitation Act . . . , [a] plaintiff[] must show that the defendants
denied the permit solely because of the disability.” Reg’l Econ. Cmty. Action Program, Inc., 294
F.3d at 49 (emphasis added) (internal quotation marks omitted). As noted in the previous
section, Plaintiff has failed to adequately allege that “animus against the [disabled] was a
significant factor in [Defendants’] position taken.” Id. (emphasis and internal quotation marks
omitted). A fortiori, he has failed to adequately allege that it was the “sole[]” reason. See id.;
see also Logan, 57 F. Supp. 3d at 254 (noting that “the reach of the Rehabilitation Act is limited
to denials of benefits solely by reason of disability, while the ADA applies more broadly to such
denials by reason of disability.” (alterations, citation, emphasis, and internal quotation marks
omitted).
b. Reasonable Accommodation
In its last Opinion, the Court found that Plaintiff’s failure-to-accommodate claims under
the ADA, FHA, and Rehabilitation Act all failed because (1) Plaintiff could not make out a
30
prima facie claim, and (2) Plaintiff could not show that Defendants constructively denied his
accommodation request. With respect to the former, the Court found that Plaintiff’s claim failed
because Defendants offered to reasonably accommodate Plaintiff’s needs for a lower-level
apartment when, in March 2011, they proposed moving a family out of a two-bedroom,
handicap-accessible unit at 4 Union Place. See Logan, 57 F. Supp. 3d at 263–65. It rejected
Plaintiff’s two stated reasons for why that offer did not make for a reasonable accommodation—
specifically, that he was more comfortable in his current building, 31 Midland Place, and his
discomfort being around the elderly for whom the Union Place building was partially designed—
on the grounds that neither putative need was conveyed to Defendants. See id. at 263–65.
Similarly, the Court concluded that Defendants did not constructively deny Plaintiff’s request for
a reasonable accommodation through delay in granting it, because (1) Plaintiff’s first potential
request for a reasonable accommodation that accrued even arguably within the statute-oflimitations period was an August 7, 2008 submission to Matveevskii, although, for a variety of
reasons, the Court would not consider that letter, and (2) Plaintiff’s next submission—a March 7,
2010 letter—was not constructively denied because, even though Defendants did not respond for
four months, there was an insufficient basis to conclude the delay was caused by
unreasonableness, unwillingness to grant the requested accommodation, or bad faith. See id. at
266–73.
With regard to the reasonable accommodation issue, it has already been decided that
Defendants’ March 2011 offer was a reasonable accommodation of Plaintiff’s need for a lowerlevel apartment. Plaintiff again has provided no basis to conclude that he conveyed additional
needs to Defendants such that the March 2011 offer was somehow unreasonable. (See generally
31
TAC.) Therefore, absent some reason to depart from its prior decision, the Court declines to do
so.
As a general matter, “[w]hen a court has ruled on an issue, that decision should generally
be adhered to by that court in subsequent stages in the same case unless cogent and compelling
reasons militate otherwise.” Grimes v. Fremont Gen. Corp., 933 F. Supp. 2d 584, 608 (S.D.N.Y.
2013) (internal quotation marks omitted); see also Musacchio v. United States, 136 S. Ct. 709,
716 (2016) (“The law-of-the-case doctrine generally provides that when a court decides upon a
rule of law, that decision should continue to govern the same issues in subsequent stages in the
same case. The doctrine expresses the practice of courts generally to refuse to reopen what has
been decided but it does not limit courts’ power.” (alteration, citations, and internal quotation
marks omitted)). While Plaintiff apparently has deleted references to Defendants’ March 2011
offer in the TAC, his subterfuge is not a “cogent and compelling reason[],” Grimes, 933 F. Supp.
2d at 608 (internal quotation marks omitted), to avoid application of the doctrine, see Colliton v.
Cravath, Swaine & Moore LLP, No. 08-CV-400, 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24,
2008) (“Where a plaintiff blatantly changes his statement of the facts in order to respond to the
defendant’s motion to dismiss and directly contradicts the facts set forth in his original
complaint, a court is authorized to accept the facts described in the original complaint as true.”
(alterations and internal quotation marks omitted)), aff’d, 356 F. App’x 535 (2d Cir. 2009).
With regard to the latter, given the procedural posture of this case, the Court is obligated
to accept as true Plaintiff’s assertion that he sent an email on August 7, 2008 to Matveevskii—
the same date as the correspondence the Court declined to consider in its last Opinion—
describing “[his] needs and concerns for being a disabled tenant with a heart condition,
especially with [his] apartment being located on the 3rd floor and the difficulty [he] [was]
32
experiencing walking up and down the 3 flights of stairs” and “ask[ing] for a ‘reasonable
accommodation’ for a first floor apartment in either 31 Midland [P]lace or 25 Midland Place.”
(TAC, at unnumbered 2 ¶ 8.) However, apart from Plaintiff’s assertion that his request went
“unanswered and ignored,” Plaintiff offers no reason to believe that the delay was caused by
other than benign reasons.
To be sure, taking August 7, 2008 and the March 2011 reasonable accommodation as the
relevant dates, Plaintiff alleges a delay of over two and a half years, which courts have found
sufficient to constitute constructive denial of a reasonable accommodation. See Bhogaita v.
Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1286 (11th Cir. 2014) (six-month delay in
a Fair Housing Act case); Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 272 (4th
Cir. 2013) (15-month delay between request to use all-terrain vehicle in community’s roads and
driveways and a follow-up request by the board of directors for additional information); Astralis
Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urban Dev., 620 F.3d 62, 68 (1st Cir. 2010)
(noting that “the [administrative law judge] found that the complainants had been requesting a
parking space accommodation for at least a year prior to the commencement of
the . . . investigation”); Groome Res. Ltd., L.L.C. v. Par. of Jefferson, 234 F.3d 192, 199 (5th Cir.
2000) (finding FHA suit ripe where “the application had been pending for 127 days without
action at the time of the court’s decision”). However, in so doing, courts have typically found
something other than mere silence to suggest that the delay was indeed a constructive denial.
See Bhogaita, 765 F.3d at 1286 (the defendants had “request[ed] additional information
and . . . indicate[d] that if [the plaintiff] failed to provide that information, [the defendant] would
file for arbitration”); Scoggins, 718 F.3d at 272 (noting that “[t]he board of directors twice
‘tabled’ the . . . request pending a decision to seek additional information from the plaintiffs”
33
before eventually asking for more information); Astralis Condo., 620 F.3d at 68 (“Although
[b]oard representatives had at times offered to grant the accommodation, it never materialized.”);
Groome, 234 F.3d at 199 (only 95 of the eventually-elapsed 127 days had passed at the filing of
the lawsuit, and the plaintiff was forced to delay the closing date for the property at issue four
times).
As explained in the last Opinion, “case law makes clear that the length of the delay is not
the only factor that courts consider in determining whether a constructive denial has taken
place[;] [i]nstead, to make out a claim of constructive denial, a plaintiff bears the burden of
demonstrating discriminatory intent.” Logan, 57 F. Supp. 3d at 271; see also Taylor v. Hous.
Auth. of New Haven, 267 F.R.D. 36, 70 (D. Conn. 2010) (If . . . [the defendant] failed to respond
to [the plaintiff’s] request because of bureaucratic incompetence, that fact . . . does not show
violations of [§] 504 or the [FHA], which are addressed to rules that hurt people with disabilities
by reason of their handicap, rather than that hurt them solely by virtue of what they have in
common with other people.” (emphasis in original) (alterations and internal quotation marks
omitted)), aff’d sub nom. Taylor ex rel. Wazyluk v. Hous. Auth. of City of New Haven, 645 F.3d
152 (2d Cir. 2011).30 This is, however, a problem for Plaintiff’s claim, because while Plaintiff
30
In the prior Opinion, the Court noted the “paucity of case law in the Second Circuit
addressing the issue of constructive denial of a request for a reasonable accommodation under
the FHA, Title II of the ADA, and the Rehabilitation Act.” See Logan, 57 F. Supp. 3d at 272.
While it is still a slim jurisprudence, it merits acknowledgement that, in the intervening months,
the Second Circuit decided Sunrise Detox V, LLC v. City of White Plains, 769 F.3d 118, 119 (2d
Cir. 2014). In that case, the plaintiff company applied for a special permit under the zoning
ordinance of White Plains, New York to establish a facility for persons recovering from drug or
alcohol addiction, which the plaintiff proposed be designated as a “community residence.” Id. at
119. Finding it was not a community residence, the relevant city authorities determined that the
city could take no further action until the plaintiff applied for a variance or appealed the
determination. Id. In considering the “specific ripeness requirements applicable to land use
disputes,” see id. at 122 (internal quotation marks omitted), the Second Circuit explicitly
differentiated the case before it from a scenario involving “the manipulation of a zoning process
34
has adduced sufficient facts to conclude that his August 7, 2008 email went unaddressed; he
offers no factual groundwork from which one could divine any sort of improper motive on
Defendants’ part.31 In reaching this conclusion, the Court has sincerely endeavored to liberally
construe Plaintiff’s TAC to raise the strongest arguments it suggests, Triestman, 470 F.3d at 474
(internal quotation marks omitted); however, it simply cannot find facts alleged in the TAC that
make plausible that Defendants acted with the proscribed “discriminatory intent,” Logan, 57 F.
Supp. 3d at 271, in ignoring Plaintiff’s email. Because, at best, Plaintiff’s claim is “merely
consistent with” such misfeasance, yet does not “plausibly suggest[]” it, Twombly, 550 U.S. at
557, he cannot make out a claim for failure to accommodate on a constructive denial theory, see
Logan, 57 F. Supp. 3d at 271.
4. Architectural Barriers Act
Next, Plaintiff invokes the Architectural Barriers Act (“ABA”), 42 U.S.C. §§ 4151–56.
(See TAC, at unnumbered 8 ¶ 3; id., at unnumbered 10 ¶ 11(b).) “Congress enacted the ABA ‘to
insure whenever possible that physically handicapped persons will have ready access to, and use
of, [federal] buildings.’” Cooke v. U.S. Bureau of Prisons, 926 F. Supp. 2d 720, 727 (E.D.N.C.
2013) (alteration in original) (quoting 42 U.S.C. § 4152). As used in the ABA, however,
“building” has a specialized meaning, and refers to
any building or facility (other than (A) a privately owned residential structure not leased
by the Government for subsidized housing programs and (B) any building or facility on a
out of discriminatory animus to avoid a final decision,” and cited Groome. Id. at 123.
Therefore, to the extent that the Second Circuit, like this Court, considers Groome sound
authority that opens the courthouse doors to litigants aggrieved by a delays stemming from
discriminatory animus, such a view further counsels against finding that Plaintiff has stated a
plausible constructive failure-to-accommodate claim.
31
Plaintiff does, however, claim that his request was “ignored,” (see TAC, at
unnumbered 2 ¶ 8); however, that is too conclusory, and does not offer any plausible explanation
as to why it was “ignored.”
35
military installation designed and constructed primarily for use by able bodied military
personnel) the intended use for which either will require that such building or facility be
accessible to the public, or may result in the employment or residence therein of physically
handicapped persons, which building or facility is—
(1) to be constructed or altered by or on behalf of the United States;
(2) to be leased in whole or in part by the United States after August 12, 1968;
(3) to be financed in whole or in part by a grant or a loan made by the United States
after August 12, 1968, if such building or facility is subject to standards for design,
construction, or alteration issued under authority of the law authorizing such grant
or loan; or
(4) to be constructed under authority of the National Capital Transportation Act of
1960, the National Capital Transportation Act of 1965, or title III of the Washington
Metropolitan Area Transit Regulation Compact.
42 U.S.C. § 4151.
With respect to residential structures in particular, the statute further provides that:
[t]he Secretary of Housing and Urban Development, in consultation with the Secretary of
Health and Human Services, shall prescribe standards for the design, construction, and
alteration of buildings which are residential structures subject to this chapter to insure
whenever possible that physically handicapped persons will have ready access to, and use
of, such buildings.
42 U.S.C. § 4153. The relevant regulations further define what HUD considers to be a
“residential structure.” See 24 C.F.R. § 40.2. Furthermore, 24 C.F.R. § 40.4 provides that
“[r]esidential structures subject to this part shall be designed, constructed or altered to ensure that
physically handicapped persons have access to, and use of, these structures. This requirement is
satisfied by using the specifications contained in . . . the Uniform Federal Accessibility Standards
(UFAS).”
The UFAS were promulgated in connection with input from the Architectural and
Transportation Barriers Compliance Board (“ATBCB”), see Uniform Federal Accessibility
Standards, 49 Fed. Reg. 31528, 31528 (Aug. 7, 1984) (“Issuance of this document follows
36
consideration of public comments received on proposed uniform standards and involved close
cooperation with the staff of the Architectural and Transportation Barriers Compliance Board.”),
a body created in 1973, see Act of Sept. 26, 1973, Pub. L. No. 93–112, § 502, 87 Stat. 355,
which, today, is charged with, among other things, “ensur[ing] compliance with the standards
prescribed pursuant to the [ABA],” 29 U.S.C. § 792(b)(1), as well as establishing and
maintaining “minimum guidelines and requirements for the standards issued pursuant to the
[ABA],” id. § 792(b)(3)(A). Importantly, the ATBCB is empowered to “conduct investigations,
hold public hearings, and issue such orders as it deems necessary to ensure compliance with the
provisions of the [ABA].” Id. § 792(e)(1).
Since the passage of the ABA and the development of the ATBCB, a number of courts
have grappled with whether and when a plaintiff may maintain a suit for alleged violations of the
ABA. A number of well-reasoned decisions have concluded that a plaintiff cannot bring a
private cause of action pursuant to the ABA, at least not without first presenting a claim to the
ATBCB. See, e.g., Weber v. Eash, No. 15-CV-225, 2015 WL 8481885, at *4 (E.D. Wash. Dec.
8, 2015) (“[T]he ABA provides for purely administrative remedies and does not provide for a
private cause of action.” (internal quotation marks omitted)), reconsideration denied, 2015 WL
9166084 (E.D. Wash. Dec. 15, 2015); Cooke, 926 F. Supp. 2d at 727 (“[U]nder the statutory
scheme [a] plaintiff[] first must exhaust the administrative process under the ABA, and then seek
judicial review.”); Gray v. United States, No. 10-CV-467, 2011 WL 5191294, at *6 (D. Me. Oct.
31, 2011) (“[B]etter-reasoned caselaw has held, consistent with the language of the ABA, that it
creates no direct private right of action . . . .”), adopted by 2011 WL 5826600 (D. Me. Nov. 18,
2011); Jackson v. Fed. Bureau of Prisons, No. 06-CV-1347, 2007 WL 843839, at *20 (D. Minn.
Mar. 16, 2007) (noting that the ABA “does [not] provide for a private cause of action”); Telep v.
37
Potter, No. 04-CV-6, 2005 WL 2454103, at *9 (E.D. Va. Sept. 30, 2005) (“There is no private
right of action by handicapped individuals complaining of a violation of the ABA; enforcement
is purely administrative.”); Crowder v. True, No. 95-CV-4704, 1998 WL 42318, at *2 (N.D. Ill.
Jan. 29, 1998) (“There is no private right of action by handicapped individuals complaining of a
violation of the [ABA]; enforcement is purely administrative.” (internal quotation marks
omitted)). But see Rose v. U.S. Postal Serv., 774 F.2d 1355, 1363 (9th Cir. 1984) (“Because this
case was dismissed at the pleadings stage, we cannot determine whether plaintiffs could prevail
on their claims under the Rehabilitation Act as to buildings that are not currently subject to
alteration under the Barriers Act.”).
It makes sense that the ABA would not provide a private right of action. 29 U.S.C.
§ 792(e) expressly contemplates both an investigatory mission for the ATBCB and judicial
review of its orders. Because, “[t]he judicial task is to interpret the statute Congress has passed
to determine whether it displays an intent to create not just a private right but also a private
remedy,” Alexander v. Sandoval, 532 U.S. 275, 286 (2001), and because the statute evinces an
intent for the ATBSB to remedy violations of the ABA, the Court concludes that a litigant may
not initiate his challenge under the ABA, at least in the first instance, in a federal court.
Here, “[P]laintiff does not allege that [he] filed a complaint with the ATBCB and that
[he] appeals any final order of that body,” Gray, 2011 WL 5191294, at *6, suggesting that his
action is premature. (See also TAC, at unnumbered 8 ¶ 3; id., at unnumbered 10 ¶ 11(b).)
Plaintiff’s ABA claim is therefore dismissed.32
32
In case it bears mentioning, any theoretical claim brought pursuant to the UFAS, rather
than the ABA directly, would be unavailing. Courts have recognized that the UFAS themselves
do not establish a private right of action. See, e.g., Gray, 2011 WL 5191294, at *6 (“[T]he
UFAS do not, standing alone, provide a private right of action against the United States.”);
DeFrees v. West, 988 F. Supp. 1390, 1393 (D. Kan. 1997) (“[T]he UFAS serve as standards by
38
5. Rent Overcharges
Plaintiff also includes a number of claims concerning Defendants’ alleged miscalculation
of his rent, apparently given their failure to consider certain medical deductions and otherwise
not providing Plaintiff with breakdowns of his rent calculations. (See TAC, at unnumbered 6
¶ 24; id., at unnumbered 6–7 ¶ 29; id., at unnumbered 7 ¶ 31; id., at unnumbered 11 ¶ 12.)
Defendants argue that Plaintiff’s rental rate issues were resolved by a stipulation on the record in
the Village Court of Tuckahoe in April 2013, and that his claim of rent overcharge was
dismissed by the New York State Supreme Court, in a decision that Plaintiff did not appeal. (See
Defs.’ Mem. 11 n.6 (citing Decl. of Joan M. Gilbride (“Gilbride Decl.”) Ex. E (Dkt. No. 116);
Gilbride Decl. Ex. F).) In essence, Defendants argue that Plaintiff’s claims are barred by the
doctrine of res judicata.
“A federal court must give to a state-court judgment the same preclusive effect as would
be given that judgment under the law of the [s]tate in which the judgment was rendered.”
O’Connor v. Pierson, 568 F.3d 64, 69 (2d Cir. 2009) (alteration and internal quotation marks
omitted (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)); see also
Yoon v. Fordham Univ. Faculty & Admin. Ret. Plan, 263 F.3d 196, 200 (2d Cir. 2001) (citing 28
U.S.C. § 1738) (same). “Federal courts must use the res judicata doctrine of the state in which
the state court judgment was granted.” Fequiere v. Tribeca Lending, No. 14-CV-812, 2016 WL
1057000, at *5 (E.D.N.Y. Mar. 11, 2016) (italics omitted); see also Barnes v. N.Y. State Div. of
Human Rights, No. 14-CV-2388, 2016 WL 110522, at *6 (S.D.N.Y. Jan. 8, 2016) (“[W]here a
federal court is considering the res judicata effect of a state court judgment, the federal court
which to measure compliance with the requirements of . . . the Architectural Barriers Act . . . . As
such, they do not appear to provide for [a] separate and distinct cause[] of action . . . .”).
39
must afford the state court judgment the same preclusive effect it would have under the law of
the state in which it was entered.”) Therefore, because the preclusive effect of a New York state
court decision is asserted, the Court must consider New York’s law of res judicata. See Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (noting that the court would apply
“New York law in determining the preclusive effect of a New York State court judgment”).
“Under New York’s transactional approach to the rule, once a claim is brought to a final
conclusion, all other claims arising out of the same transaction or series of transactions are
barred, even if based upon different theories or if seeking a different remedy.” Josey v. Goord,
880 N.E.2d 18, 20 (N.Y. 2007) (internal quotation marks omitted); see also Giannone v. York
Tape & Label, Inc., 548 F.3d 191, 194 (2d Cir. 2008) (same); Gordon v. First Franklin Fin.
Corp., No. 15-CV-775, 2016 WL 792412, at *6 (E.D.N.Y. Feb. 29, 2016) (same); Toscano v.
4B’'s Realty VIII, 921 N.Y.S.2d 882, 883 (App. Div. 2011) (same).
Here, res judicata bars Plaintiff’s rent claims. First, the Supreme Court’s Decision and
Order made clear that it dismissed Plaintiff’s rent overcharge claim pursuant to C.P.L.R.
3211(a)(1), (see Gilbride Decl. Ex. F 2–3), a determination sufficiently final to trigger res
judicata, see Corsini v. Bloomberg, 26 F. Supp. 3d 230, 246 (S.D.N.Y. 2014) (“In New York, a
dismissal is on the merits if granted pursuant [to] Rule 3211(a)(1) of the CPLR . . . .”), aff’d in
part, appeal dismissed in part sub nom. Corsini v. Nast, 613 F. App’x 1 (2d Cir. 2015);
Randall’s Island Aquatic Leisure, LLC v. City of N.Y., No. 12-CV-6039, 2013 WL 2951945, at
*3 (S.D.N.Y. June 13, 2013) (“[D]ismissals based on Rule 3211(a)(1) and supporting
documentary evidence are on the case’s merits, and thus have preclusive effect.” (internal
40
quotation marks omitted)).33 Similarly, there can be no serious question that Plaintiff’s claims
relating to alleged miscalculation of his rent arise out of the same transaction or series of
transactions, as his allegations very strongly suggest that Plaintiff’s complaints center around the
exact same conduct at issue in his state court proceeding. Indeed, his statements about his rent
amount issues include assertions that (1) he requested a copy of his rent calculations on
approximately April 3, 2012, (TAC, at unnumbered 6 ¶ 24), (2) documents Matveevskii
submitted in support of “[a] Motion to Dismiss, Index No. 50208/2014” reflecting Plaintiff’s rent
calculations for 2009–11 were “invalid as [they] d[id] not correspond to the years in question,
nor d[id] [they] follow the guidelines esta published [sic] by the HUD and the Fair Housing
Act,” (TAC, at unnumbered 6–7 ¶ 29), (3) Defendants indicated on July 8, 2014 that they “would
not be utilizing [Plaintiff’s] medical expenses in the calculation of [his] rent,” (id., at
unnumbered 7, ¶ 31), and (4) Defendants refused to accept certain medical deductions in a
manner that “can be construed as trying to de-regulate the THA rental housing programs,” (id., at
unnumbered 11 ¶ 12). In so alleging, it is telling that Plaintiff alludes to documents Matveevksii
submitted in connection with “Index No. 50208/2014,” (see id., at unnumbered 6–7, ¶ 29), as
that is the same index number as was used in the New York State Supreme Court case upon
which Defendants rely, (see Gilbride Decl. Ex. F, at 1). Therefore, because Plaintiff’s rent
overcharge claim arises from “the same transaction or series of transactions,” Josey, 880 N.E.2d
at 20, as his state court judgment, it is barred by the doctrine of res judicata, see Marinelli
Assocs. v. Helmsley-Noyes Co., 705 N.Y.S.2d 571, 576 (App. Div. 2000) (finding New York’s
33
It bears noting that, while the defendants in that case raised the statute of limitations
defense as well, (see Gilbride Decl. Ex. F, at 2 (“[T]he defendants contend that the rent
overcharge claim should be dismissed . . . as time barred.”)), the court, in dismissing the claim,
ruled on its merits, (see id. at 2–3).
41
res judicata doctrine barred a claim where “[t]he underlying factual setting [was] identical,
involving the precise claims of overcharging . . . that underlie all of the other claims”).
Conceptually, it is possible that, index-number reference notwithstanding, Plaintiff also
claims improper rent calculation for subsequent conduct, at least inasmuch as he alleges that
Defendants indicated on approximately July 8, 2014 “that they would not be utilizing
[Plaintiff’s] medical expenses in the calculation of his rent,” (TAC, at unnumbered 7 ¶ 31), and
that date comes not much earlier than the August 4, 2014 decision of the Supreme Court, (see
Gilbride Decl. Ex. F, at 3). There is, however, nothing else in the Third Amended Complaint to
suggest that Plaintiff intends to bring such a claim, and, of note, “[t]he Second Circuit has held
that the ‘key to Rule 8(a)’s requirements is whether adequate notice is given,’ and that ‘fair
notice’ is,” among other things, “‘that which will . . . allow the application of res judicata . . . .’”
Vantone Grp. Ltd. Liab. Co. v. Yangpu NGT Indus. Co., No. 13-CV-7639, 2015 WL 4040882, at
*3 (S.D.N.Y. July 2, 2015) (quoting Wydner v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004)).
Therefore, because one cannot even be sure whether Plaintiff indeed intends to bring a claim
over Defendants’ rent charges that is not barred by the doctrine of res judicata, Rule 8(a)’s notice
requirement has been flouted, and dismissal is therefore appropriate.34
6. Does a Federal Question Remain?
Having dismissed Plaintiff’s FHA, ADA, Rehabilitation Act, and ABA claims, the
presence of a federal question in this case is no longer quite so clear. Plaintiff makes three
allegations that tread near issues of federal law; however, none is sufficient to create a federal
question. First, Plaintiff persists in claiming that Defendants failed to comply with certain
34
This is assuming there is even a federal cause of action to be maintained on the basis of
Defendants’ alleged rent miscalculations, which the Court is not at all prepared to hold.
42
federal housing regulations, (see TAC, at unnumbered 2 ¶ 7; id. at unnumbered 8–9 ¶ 4; id. at
unnumbered 11 ¶ 11(g)); however, as noted in the last Opinion, “there is generally no private
right of action to enforce HUD regulations.” Logan, 57 F. Supp. 3d at 274 (citing Taylor ex rel.
Wazyluk v, 645 F.3d at 153). Second, Plaintiff also purports to bring a claim for “[i]mproper
handling of [his] private and personal information,” which he describes as “sale of personal
information that was to be safe[]guarded under the Rights to Privacy within the boundaries of the
Fair Housing Act.” (TAC, at unnumbered 12 ¶ 14.) This misfires, however, because, simply
put, there is no FHA “Right[] to Privacy.” Finally, Plaintiff stresses that he was “coerc[ed]”
apparently into signing an agreement for an apartment that he otherwise would not have signed if
not for Defendants’ intransigence in providing him what he refers to as a “reasonable
accommodation.” (See TAC, at unnumbered 11 ¶ 11(h); id., at unnumbered 13 ¶ 16(c).) To be
sure, the FHA and ADA both have anti-coercion provisions.35 Plaintiff, however, offers nothing
by way of factual support to establish that he was indeed so coerced. See Iqbal, 556 U.S. at 679
(“While legal conclusions can provide the framework of a complaint, they must be supported by
35
The FHA’s provision reads:
It shall be 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 3603, 3604, 3605, or 3606 of this title.
42 U.S.C. § 3617.
The ADA’s analogous provision reads:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the
exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on
account of his or her having aided or encouraged any other individual in the exercise or
enjoyment of, any right granted or protected by this chapter.
42 U.S.C § 12203(b).
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factual allegations.”); see also United States v. Weisz, 914 F. Supp. 1050, 1053 (S.D.N.Y. 1996)
(rejecting as “entirely conclusory” the allegation that “[the defendant] ‘has coerced, intimidated,
threatened, and interfered with the [neighbors’] enjoyment of their dwelling because of the [the
neighbors’] religion,’ which tracks the language of the FHA”). Likewise, the same logic
forecloses any argument that Plaintiff was the subject of undescribed
“[h]arassments/[r]etaliation” under a variety of sources of law, some federal. (See TAC, at
unnumbered 10–11 ¶ 11.)
The remaining claims in Plaintiff’s TAC—to the extent they are claims at all—pose no
federal question. Indeed, Plaintiff’s remaining grievances have to do with violations of various
local codes, (see id., at unnumbered 11 ¶¶ 11(h)–11(i)), Defendants terminating Plaintiff’s lease
and/or evicting him, (see id., at unnumbered 5 ¶¶ 21–22; id., at unnumbered 7 ¶ 30; id., at
unnumbered 12 ¶ 13(a); id., at unnumbered 12 ¶ 14(a); id. at unnumbered 12–13 ¶ 15; id., at
unnumbered 13 ¶ 16(b)), calling the police, (see id., at unnumbered 3 ¶ 12; id., at unnumbered 6
¶ 27; id., at unnumbered 12 ¶ 13(b); id., at unnumbered 12 ¶ 14(a)), calling HUD and/or the
Department of Homeland Security to claim that Plaintiff was housing a pedophile, (see id., at
unnumbered 4 ¶ 16; id., at unnumbered 12 ¶ 13(c); id., at unnumbered 13 ¶ 16(a); id., at
unnumbered 14 ¶ 17), calling the Elder Abuse Hotline, (see id., at unnumbered 8 ¶ 37; id., at
unnumbered 12 ¶ 13(d); id., at unnumbered 14 ¶ 17), putting stress on and/or otherwise attacking
Plaintiff’s family, (see id., at unnumbered 4–5 ¶ 17; id., at unnumbered 12 ¶ 14(a); id., at
unnumbered 12–13 ¶ 15), violations of the “Real Property Laws, The Apartment Law,” (see id.,
at unnumbered 11 ¶ 11(e); id., at unnumbered 13–14 ¶ 16(f)), interfering with Plaintiff’s “rights
as a tenant to have equal enjoyment” to his apartment, (see id., at unnumbered 13 ¶ 16), and
negligence, (see id., at unnumbered 10 ¶ 9; id., at unnumbered 14). Plaintiff has provided no
44
basis to conclude that these allegations implicate a federal question, and, indeed, they at best
state a claim for relief under state law. In such circumstances, the Court may decline jurisdiction
over the remaining state claims, as the Court opts now to do. See United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as
well.”); Westchester Cty. Indep. Party v. Astorino, —F. Supp. 3d—, 2015 WL 5883718, at *27
(S.D.N.Y. Oct. 8, 2015) (“Because the Court dismisses all of [the] [p]laintiffs’ federal claims, it
declines to exercise supplemental jurisdiction over [the] [p]laintiffs’ state law claims.”).
III. Conclusion
For the foregoing reasons, Plaintiff’s TAC is dismissed in its entirety. Because this is
Plaintiff’s Third Amended Complaint, the dismissal is with prejudice. See, e.g., Denny v.
Barber, 576 F.2d 465, 471 (2d Cir. 1978) (holding that the plaintiff was not entitled to “a third
go-around”); Anthony v. Brockway, No. 15-CV-451, 2015 WL 5773402, at *3 (N.D.N.Y. Sept.
30, 2015) (dismissing amended complaint with prejudice where the “[p]laintiff has already been
given one opportunity to amend his complaint . . . , and there is nothing in his second amended
complaint suggesting that [he] could do better given another opportunity”); Al-Qadaffi v. Servs.
for the Underserved (SUS), No. 13-CV-8193, 2015 WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015)
(denying leave to amend where “[the plaintiff] has already had one chance to amend his
[c]omplaint, and there is still no indication that a valid claim might be stated if given a second
chance”), aff’d, —F. App’x—, 2016 WL 320938 (2d Cir. Jan. 27, 2016); Bui v. Indus. Enters. of
Am., Inc., 594 F. Supp. 2d 364, 373 (S.D.N.Y. 2009) (dismissing an amended complaint with
prejudice where the plaintiff failed to cure the deficiencies identified in his complaint despite
“being given ample opportunity to do so”); cf. Treppel v. Biovail Corp., No. 03-CV-3002, 2005
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WL 2086339, at *12 (S.D.N.Y. Aug. 30, 2005) (declining to grant leave to amend upon
dismissing a complaint, "because [the] plaintiff has already had two bites at the apple[,] and they
have proven fruitless '').
The Clerk of the Court is respectfully directed to terminate the pending Motion, (see Dkt.
No. I I I) and to close this case.
SO ORDERED.
Dated:
March3C 2016
White Plains, New York
ET
D STATES DISTRICT JUDGE
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