Tuman et al v. VL GEM LLC et al
OPINION AND ORDER re: 25 MOTION to Dismiss . filed by GEM Management Partners LLC, Michael Nukho, George Nukho, VL GEM LLC. GEM Management Partners LLC answer due 4/21/2017; George Nukho answer due 4/21/2017; Michael Nukho answe r due 4/21/2017; VL GEM LLC answer due 4/21/2017. For the foregoing reasons, Defendants' motion to dismiss the complaint is DENIED in part and GRANTED in part: Plaintiffs state law claims are dismissed. Since Plaintiffs withdrew their claim purs uant to 42 U.S.C. § 3604(c), that portion of Defendants' motion is denied as moot. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 25. (Amended Pleadings due by 3/20/2017. Initial Conference set for 4/27/2017 at 10:00 AM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 2/27/2017) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JESSICA TUMAN and DANIEL KURTZ,
No. 15 Civ. 7801 (NSR)
-againstOPINION & ORDER
VL GEMLLC, GEM MANAGEMENT PARTNERS LLC,
GEORGE NUKHO, and MICHAEL NUKHO,
NELSON S. ROMAN, United States District Judge
Plaintiffs Jessica Tuman and Daniel Kurtz are a married couple residing at an apa1tment
complex operated by Defendants George and Michael Nukho through Defendants VL GEM LLC
and GEM Management Partners LLC. Tuman allegedly suffers from post-traumatic stress
syndrome ("PTSD") and sought to keep an emotional support dog at her apaitment to alleviate
the effects of that disorder. She brought this action alleging Defendants discriminated against
her after she requested this "reasonable accommodation" for her disability, in violation of the
Fair Housing Act, 42 U.S.C. §§ 3601-3631, amended by the Fair Housing Amendments Act of
1988, 102 Stat. 1619 ("FHA"), New York State Human Rights Law ("NYSHRL"), N.Y. Exec.
Law§§ 290-301, and Westchester County Fair Housing Law ("WCFHL") §§ 700.19-700.35. 1
Plaintiffs seek injunctive and declaratory relief, as well as compensatory and punitive damages.
Plaintiffs reference the Westchester County Human Rights Law, but only the county's Fair Housing Law
provides for a private right of action. Garcia v. Yonkers Bd. ofEduc., 188 F. Supp. 3d 353, 364 (S.D.N.Y. 2016) .
. ;---,:c:c.... ~--~]
Defendants seek to dismiss the action pursuant to Federal Rule of Civil Procedure
12(b)(6) on the grounds that Tuman has failed to provide sufficient medical documentation of the
necessity for the emotional support animal to treat her medical condition. Additionally, arguing
the action is entirely frivolous, Defendants seek sanctions against Plaintiffs pursuant to 28 U.S.C.
§ 1927 and Rule 11 of the Federal Rules. For the following reasons, the motion to dismiss is
GRANTED in part and DENIED in part, and the motion for sanctions is DENIED.
Factual Allegations 2
Plaintiff Jessica Tuman and her spouse, Plaintiff Daniel Kurtz, reside at Defendants’
multifamily property located in Yonkers, New York. (Compl. ¶¶ 1-5, ECF No. 1.) Tuman has
lived at the property at issue since 2009. (Id. ¶ 4.) Prior to moving into Defendants’ apartment
building, Tuman was diagnosed with PTSD as a result of an attack she suffered in 2001 and has
received mental health treatment “ever since.” (Id. ¶¶ 20-21.) Her PTSD limits her brain
function, causes severe anxiety, and limits her ability to socialize with others. (Id. ¶ 22.)
In 2015, Tuman learned of the potential mental health benefits associated with having an
emotional support animal. (Id. ¶ 25.) Since many dogs reside with other residents at the
apartment complex, Tuman decided she would simply verbally advise Defendants of her
intention to adopt an emotional support dog, which she did in July 2015. (Id. ¶ 26.) 3 Plaintiffs
do not provide a copy of the lease agreement for the unit, or explain what restrictions the lease
places on keeping animals in a tenant’s apartment aside from requiring the landlord’s written
The Court assumes the truth of the facts alleged in Plaintiff’s complaint, Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009), and considers only documents incorporated into the complaint by reference. Nicosia v. Amazon.com,
Inc., 834 F.3d 220, 230 (2d Cir. 2016); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002).
All other extrinsic materials are not considered at this stage of the litigation. Chambers, 282 F.3d at 154.
Plaintiff refers to her emotional support dog as a “service” animal. (See, e.g., Compl. ¶ 26.)
consent. (See id. ¶ 28.) It appears that Tuman considered her actions to be a request for a
reasonable accommodation for her disability. (Id. ¶¶ 31-37.) Defendants have no written or
established policy regarding reasonable accommodations. (Id. ¶ 24.)
Defendants responded to Tuman’s request by requiring a letter from a physician stating
that “the dog would provide her a disability related need.” (Id. ¶ 26.) On July 28, 2015, Tuman
provided a letter from Dr. Emilio Biagiotti, M.D., of Montefiore Family Medical Associates
stating that Plaintiff “suffers from severe anxiety due to post traumatic stress syndrome” and that
“[h]er anxiety will be greatly alleviated if she is able to have a companion dog.” (Id. ¶ 27; Defs.
Aff. Ex. B.) She also provided Defendants with information about the incident that led to her
anxiety disorder. (Id. ¶ 27.)
On September 2, 2015, Defendants served Plaintiffs with a 10-day notice to cure for
harboring a dog without the landlord’s written consent. (Id. ¶¶ 28-29.) On September 24, 2015,
Plaintiffs were served with a 7-day notice of termination, terminating their lease effective
September 30, 2015, for failure to cure the violation. (Id. ¶ 30.)
On October 2, 2015, after the termination became effective, Plaintiffs commenced this
action. Defendants notified Plaintiffs on November 10, 2015, of their contention that the action
was frivolous and that, if it was not withdrawn, they would seek Rule 11 sanctions. (Defs. Aff.
Ex. D.) As part of that correspondence, Defendants included a notarized copy of a letter, signed
by Dr. Biagiotti, purportedly obtained after they communicated with the doctor on August 19,
2015, which states he “cannot verify that she has a medical necessity for a companion dog.” (Id.;
see also Defs. Aff. Ex. C.)
At the pre-motion conference for Defendants’ motion to dismiss, the parties discussed the
need for medical documentation to establish the necessity of the support animal. At that time,
defense counsel represented that “if she [Plaintiff Tuman] gets a real letter . . . that demonstrates
a medical necessity, then she can stay in the apartment with the dog[.]” (Transcript of December
17, 2015 Conference; see Defs. Aff. Ex. F.) By letter dated January 8, 2016, Defendants
informed Plaintiffs’ counsel that they would proceed with their motion to dismiss if they did not
receive such a letter by January 11, 2016. (Defs. Aff. Ex. G.) When that deadline passed,
Defendants served and filed the pending motion. (Defs. Mem. at 13.)
In opposition to Defendants’ motion to dismiss, Plaintiffs’ counsel attached a letter from
a licensed clinical social worker (LCSW-R), Carol J. Blitstein, dated January 11, 2016,
discussing Ms. Blitstein’s prior treatment of Plaintiff Tuman’s PTSD in 2002 and Tuman’s
request to “resume therapy” in “the fall of 2015.” (Pls. Aff. Ex. 5.) In the letter, Blitstein
indicates “[t]he dog has been a therapeutic tool for Ms. Tuman to recover from PTSD.” (Id.) In
reply, Defendants’ renewed their request for sanctions. (Defs. Reply Mem. at 1-3.) Defendants’
motions were fully submitted as of March 17, 2016. (ECF No. 25.)
STANDARD ON A MOTION TO DISMISS
Under Rule 12(b)(6), the inquiry is whether the complaint “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Id.
at 679. To survive a motion to dismiss, a complaint must supply “factual allegations sufficient
‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all
material factual allegations as true and draw reasonable inferences in the non-moving party’s
favor, but the Court is “‘not bound to accept as true a legal conclusion couched as a factual
allegation,’” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements
of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In determining whether a complaint states a plausible claim for relief, a district court
must consider the context and “draw on its judicial experience and common sense.” Id. at 662.
A claim is facially plausible when the factual content pleaded allows a court “to draw a
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Defendants assert that Plaintiff Tuman has failed to allege both that she is disabled and
that, if she is considered disabled, her emotional support dog is a necessary accommodation.
(Defs. Mem. at 6-8.) 4 Defendants also seek an award of sanctions against Plaintiffs and
Plaintiffs’ counsel for failing to withdraw the action once it purportedly became clear it was
frivolous—i.e. in light of the alleged “retraction” of the doctor’s note, a written copy of which
was provided by Defendants once the complaint was filed. (Id. at 15.) 5
Defendants also contest the validity of Plaintiffs’ claims brought pursuant to 42 U.S.C. § 3604(c), which
“protects against the psychic injury caused by discriminatory statements made in connection with the housing
market.” Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 52 (2d Cir. 2015) (alterations and citations omitted).
(See Defs. Mem. at 8-9.) In response, Plaintiffs have withdrawn that claim. (Pls. Opp’n at 2, 18.)
The Court will not consider the competing doctor’s note, which Defendants did not have until after the
complaint in this action was filed. (Compare Compl. (filed Oct. 2, 2015), with Defs. Aff. Ex. C (letter dated Oct. 9,
2015).) Indeed, Defendants do not indicate that they discussed with Plaintiffs their purported August 19, 2015
conversation with Dr. Biagiotti prior to initiating eviction proceedings. Thus, the letter is extrinsic and irrelevant to
the allegations contained in the complaint, and the Court declines to convert Defendants’ motion to dismiss into a
motion for summary judgment on the issue of the competing doctor’s notes. See Chambers, 282 F.3d at 154.
Fair Housing Act Claims
The Fair Housing Act, as applicable here, makes it unlawful to “discriminate in the 
rental [of], or to otherwise make unavailable or deny, a dwelling to any . . . renter because of”
such individual’s disability. 6 42 U.S.C. § 3604(f)(1) (emphasis added). It also prohibits
discrimination “against any person in the terms, conditions, or privileges of . . . rental of a
dwelling, or in the provision of services or facilities in connection with such dwelling, because
of” the renter’s disability. 42 U.S.C. § 3604(f)(2) (emphasis added). For purposes of the FHA,
discrimination also includes a refusal to make “reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to afford such person equal
opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). Thus, a plaintiff alleging a
violation under subsections (f)(1) or (f)(2) of the FHA can proceed by either of two theories,
disparate treatment or disparate impact, and under subsection (f)(3) by claiming failure to make a
reasonable accommodation. Regional Economic Community Action Program, Inc. v. City of
Middletown, 294 F.3d 35, 48 (2d Cir. 2002).
Despite focusing almost entirely on allegations that Defendants did not provide a
reasonable accommodation for Plaintiff Tuman’s disability (see, e.g, Compl. ¶¶ 2-4), Plaintiffs
assert in opposition to Defendants’ motion to dismiss that they are also claiming disparate
treatment on the basis of disability—though they provide little clarity as to the precise nature of
The FHA uses the term “handicap,” which may derive from gambling, trading, golfing, horse-racing,
or—perhaps worst—begging. Oxford English Dictionary (Web ed., 22 February 2017) (describing various origins
for “handicap, n.” including horse racing and other forms of gambling or sport); Christy Hetherington, Rhode Island
Facing the Wrongful Birth/life Debate: Pro-Disabled Sentiment Given Life, 6 Roger Williams U. L. Rev. 565, 582
(2001) (“‘Handicapped’ is rumored to have originated as a term used to describe a disabled pauper begging on the
street corner with his cap in hand.”). Whatever its origin, individuals with disabilities disfavor the term “handicap.”
Michael A. Rebell, Structural Discrimination and the Rights of the Disabled, 74 Geo. L.J. 1435, 1437 n.14 (1986)
(discussing the etymology of the word “handicap” and opining that it has “greater connotations of inferior status”).
Indeed, if for no other reason, the term is open to critique due to its association with the 19th and early-20th centuries’
paternalistic attitudes towards such individuals. Therefore, this Court like many others will use the term
“disability,” which is generally considered preferable. Rodriguez, 788 F.3d at 38 n.8 (terms are interchangeable).
that claim. (Pls. Mem. at 7-8; see Compl. ¶ 44-45.) Plaintiffs also allege that Defendants
retaliated against them when they sought to exercise their FHA rights.
At this stage, Plaintiffs allegations must be accepted as true and all reasonable inferences
drawn from those allegations must be made in their favor.
a. Disparate Treatment
Disparate treatment analysis focuses on whether a complainant was treated less favorably
than others by a party subject to the FHA’s protections. Reg’l Econ. Cmty. Action Program, 294
F.3d at 48-50. Proof of discriminatory animus is crucial for a disparate treatment claim, which at
summary judgment is analyzed under the McDonnell Douglas framework. Id.; Rodriguez v.
Village Green Realty, Inc., 788 F.3d 31, 40 n.11 (2d Cir. 2015) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). To state a claim under either Section 3604(f)(1) or (f)(2)
on the basis of disparate treatment, Plaintiffs “can establish a prima facie case by showing that
animus against the protected group”—here, individuals with disabilities—“was a significant
factor in the position taken” by Defendants. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425
(2d Cir. 1995) (citations omitted). But at the motion to dismiss stage, all that is required are
sufficiently pleaded allegations that Plaintiffs are part of a protected class and that Defendants
took actions against them that are forbidden by the FHA on the basis of their membership in the
protected class. Boykin v. KeyCorp, 521 F.3d 202, 214-16 (2d Cir. 2008) (Sotomayor, J.) (“The
merits of a claim . . . , which on its face presents a plausible allegation of disparate treatment,
should be tested on summary judgment.”).
i. Disability under the FHA
“To demonstrate a disability under the FHA, a plaintiff must show: (1) ‘a physical or
mental impairment which substantially limits one or more . . . major life activities’; (2) ‘a record
of having such an impairment’; or (3) that he or she is ‘regarded as having such an impairment.’”
Rodriguez, 788 F.3d at 40 (quoting 42 U.S.C. § 3602(h)). Plaintiff Tuman has alleged she
suffers from PTSD that “causes her to have severe anxiety and difficulties with socialization,” so
much so that she “frequently seeks seclusion and solitude.” (Compl. ¶ 22.) Relatedly, the
Second Circuit has determined that “a plaintiff is ‘substantially limited’ in ‘interacting with
others’ when the mental or physical impairment severely limits the fundamental ability to
communicate with others.” Jacques v. DiMarzio, Inc., 386 F.3d 192, 203–04 (2d Cir. 2004)
(discussing major life activities in the ADA context).7 In describing the bounds of this standard,
the Circuit explained:
This standard is satisfied when the impairment severely limits the
plaintiff's ability to connect with others, i.e., to initiate contact with
other people and respond to them, or to go among other people—at
the most basic level of these activities. The standard is not satisfied
by a plaintiff whose basic ability to communicate with others is not
substantially limited but whose communication is inappropriate,
ineffective, or unsuccessful. A plaintiff who otherwise can perform
the functions of a job with (or without) reasonable accommodation
could satisfy this standard by demonstrating isolation resulting from
any of a number of severe conditions, including acute or profound
cases of: autism, agoraphobia, depression or other conditions that
we need not try to anticipate today.
Id. (emphasis added).
Plaintiff Tuman’s alleged difficulties with socialization resulting in self-seclusion and
solitude is comparable to the major life activity of “interacting with others,” and at this stage of
the litigation the Court finds it plausible that she is isolated from others such that she may be
substantially limited in a major life activity. See cf. U.S. v. East River Housing Corp., 90 F.
Supp. 3d 118, 124-29 (S.D.N.Y. 2015) (describing two plaintiffs suffering from PTSD, which
Prior to 2008, the FHA and the ADA shared nearly identical definitions for “disability.” As the FHA
definition of disability was not correspondingly amended when the amendments were made to the ADA in 2008,
pre-amendment ADA cases continue to guide the interpretation of FHA cases. Rodriguez, 788 F.3d at 40 n.10.
impacted their “ability to socialize, maintain relationships, sleep, and concentrate,” and led to
“depression, anxiety, panic attacks, and insomnia”).
Therefore, she has pleaded her disability and membership in a protected group.
ii. Prohibited actions under the FHA
Aside from their reasonable accommodation claims discussed below, Plaintiffs have
alleged that dogs reside with other residents at the apartment complex, that Plaintiffs were denied
the opportunity to keep a dog, and that Defendants sought to have them evicted after they
adopted their emotional support dog and informed them of Plaintiff Tuman’s disability. Under
the FHA, a landlord is prohibited from discriminating “against any person in the terms,
conditions, or privileges of . . . rental” or “otherwise mak[ing] unavailable or deny[ing] a
dwelling to any . . . renter because of” an individual’s disability. 42 U.S.C. § 3604(f)(2) & (f)(1).
Plaintiffs are entitled to the reasonable inference that since other individuals are allowed to keep
pets, they were discriminated against on the basis of Tuman’s disability—both in the privilege of
keeping a dog and in their continued lease.
Despite surviving Defendants’ motion to dismiss, the Court takes no position on the
likelihood of Plaintiffs’ having sufficient evidence to establish a prima facie case of intentional
discrimination, or disparate treatment “because of” Plaintiff Tuman’s disability, at the summary
judgment stage where evidence of substantial limitations on her major life activities and of
discriminatory intent will be required. Compare Olsen v. Stark Homes, Inc., 759 F.3d 140, 157
(2d Cir. 2014) (evidence adduced precluded summary judgment on the question of whether
plaintiffs’ son had a disability), with Mazzocchi v. Windsor Owners Corp., --- F. Supp. 3d ----,
No. 11 CIV. 7913 (AT), 2016 WL 4542035, at *15 (S.D.N.Y. Aug. 31, 2016) (evidence did not
“establish a genuine dispute as to whether the alleged impairment ‘substantially limit[ed]’ any of
[Plaintiff’s girlfriend’s] major life activities”).
b. Failure to Make a Reasonable Accommodation
In contrast to Plaintiffs’ claims of intentional discrimination, when proceeding on a claim
for failure to provide a reasonable accommodation, discriminatory motive is not required.
Instead, a plaintiff with an alleged disability must establish that: (1) she is disabled within the
meaning of the FHA, (2) the defendant knew or should have known of this fact, (3) an
accommodation may be necessary to afford her an equal opportunity to use and enjoy the
dwelling; (4) such accommodation is reasonable; and (5) the defendant refused to make the
requested accommodation. See Austin v. Town of Farmington, 826 F.3d 622, 627 (2d Cir. 2016).
The Court has already determined that the complaint sufficiently alleges Plaintiff Tuman suffers
from a disability. Furthermore, Plaintiffs allege that Defendants were made aware of her
disability and that they refused to provide the requested accommodation. (See Compl. ¶¶ 26-30.)
The remaining questions are whether the accommodation may be necessary to afford Plaintiffs
the equal opportunity to use and enjoy their apartment and whether it is reasonable.
“[A] ‘necessary’ accommodation is one that alleviates the effects of a disability.”
Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., 765 F.3d 1277, 1288 (11th Cir. 2014).
Plaintiffs’ pleadings incorporated the July 28, 2015 letter from Dr. Biagiotti stating that Plaintiff
Tuman “suffers from severe anxiety due to” her PTSD and that “[h]er anxiety will be greatly
alleviated if she is able to have a companion dog.” (Id. ¶ 27; see Defs. Aff. Ex. B.) At this stage,
all that is required are allegations that the emotional support dog may be necessary—i.e. alleviate
the effects of her disability—in order to afford her the same enjoyment of her apartment as a
non-disabled individual. See Ass’n of Apartment Owners of Liliuokalani Gardens at Waikiki v.
Taylor, 892 F. Supp. 2d 1268, 1287 (D. Haw. 2012) (citing Hubbard v. Samson Mgmt. Corp.,
994 F. Supp. 187, 191 (S.D.N.Y. 1998)). 8
Thus, Plaintiffs’ pleadings are sufficient to demonstrate a plausible necessity for her
emotional support dog. Cf. East River Housing Corp., 90 F. Supp. 3d at 124-29 (noting that
HUD had found reasonable cause to believe two plaintiffs, both with PTSD seeking to alleviate
the effects of the mental disorder, were discriminated against when reasonable accommodations
were not made for their emotional support animals (one was a stray dog, the other a trained
support dog)); see also Fair Hous. of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc., 778 F.
Supp. 2d 1028, 1035-36 (D.N.D. 2011) (discussing the “difference between not requiring the
owner of a movie theater to allow a customer to bring her emotional support dog, which is not a
service animal, into the theater to watch a two-hour movie, an ADA-type issue,” and “permitting
the provider of housing to refuse to allow a renter to keep such an animal in her apartment in
order to provide emotional support to her and to assist her to cope with her depression, an FHAtype issue,” and concluding “the FHA encompasses all types of assistance animals regardless of
training, including those that . . . ameliorate a mental disability”); Janush v. Charities Housing
Development Corp., 169 F. Supp. 2d 1133, 1134, 1136 (N.D. Cal. 2000) (denying motion to
dismiss on the question of whether “plaintiff’s pets, two birds and two cats, lessen[ed] the effects
The Court notes that “[i]f a landlord is skeptical of a tenant’s alleged disability [then] it is incumbent
upon the landlord to request documentation or open a dialogue.” Hubbard, 994 F. Supp. at 192 (quoting Jankowski
Lee & Assoc. v. Cisneros, 91 F.3d 891, 896 (7th Cir. 1996)); see also Montano v. Bonnie Brae Convalescent Hosp.,
Inc., 79 F. Supp. 3d 1120, 1127 (C.D. Cal. 2015) (citing Jankowski, 91 F.3d at 895) (“defendant was required to
engage in the ‘interactive process’ with plaintiff to discuss and explore plaintiff’s requested accommodations”).
Plaintiffs allege the interactive process was initiated but there is insufficient material in the pleadings to determine
whether the Defendants saw the process through to completion prior to serving the eviction notices on Plaintiffs.
of [her] [mental health] disability by providing her with companionship and [were] necessary to
her mental health” despite not being trained “service animals”).
The “crux of a reasonable-accommodation claim typically will be the question of
reasonableness,” and the “[r]easonableness analysis is ‘highly fact-specific, requiring a case-bycase determination.’” Austin, 826 F.3d at 629-30. Here, where Plaintiffs allege that other
tenants keep animals at the apartment complex, the Court cannot “decide as a matter of law on
the pleadings” that Plaintiffs’ proposed accommodation is unreasonable. See id. at 629; see also
Perez v. Cambeyro, No. 15 Civ. 21958 (CMA), 2015 WL 9942641, at *4 (S.D. Fla. Sept. 1,
2015) (the “reasonableness determination under the FHA ‘requires a factual inquiry not
appropriate at the motion to dismiss stage.’”) (citation omitted).
As previously mentioned, at summary judgment or trial Plaintiffs must produce evidence
demonstrating her PTSD-based disability, that the support dog alleviates the symptoms of that
disability such that it is necessary for her equal enjoyment of the premises, and that keeping the
dog at Plaintiffs’ apartment would be reasonable under the circumstances. See, e.g., Bhogaita,
765 F.3d at 1288 (plaintiff “produced evidence from which a reasonable fact finder could
conclude that his dog alleviated the effects of his PTSD”); Taylor, 892 F. Supp. 2d at 1288
(“whether Nell, as an untrained emotional support animal, [was] a ‘reasonable accommodation’
under the FHA” would depend “largely on the determination of [the plaintiff’s] disability and the
accommodation necessary to ameliorate the effects of the disability”).
A retaliation claim under Section 3617, like Plaintiffs’ claims for disparate treatment,
also requires “a showing of a particular state of mind, i.e., a retaliatory motive.” Austin, 826
F.3d at 630 (citing Zhu v. Countrywide Realty Co., 165 F. Supp. 2d 1181, 1198 (D. Kan. 2001)
(“[I]n order to make out a prima facie case under Section 3617, [a] plaintiff must demonstrate
that intentional discrimination motivated defendants’ conduct, at least in part.”)); 42 U.S.C.
§ 3617 (“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” sections 3603—3606). “The elements of a prima facie retaliation claim under the
FHA are (1) the plaintiff engaged in protected activity, (2) the defendant was aware of this
activity, (3) the defendant took adverse action against the plaintiff, and (4) a causal connection
exists between the protected activity and the adverse action.” Wilson v. Wilder Balter Partners,
Inc., No. 13 Civ. 2595 (KMK), 2015 WL 685194, at *8 (S.D.N.Y. Feb. 17, 2015).
Plaintiffs correctly point out that Defendants do not specifically address Plaintiffs’ claim
of FHA retaliation brought pursuant to 42 U.S.C. § 3617. (Pls. Opp’n at 7-8.) Moreover, on the
basis of the allegations in the complaint, a reasonable inference is that Defendants chose to
retaliate against Plaintiffs by sending them eviction notices after they requested a reasonable
accommodation—a “right granted or protected” by Section 3604(f)(3).
Therefore, this claim may proceed.
State Law Claims
Plaintiffs do not address Defendants’ arguments in favor of dismissing Plaintiffs’ pendent
state law claims, which largely mirror their arguments against the FHA claims. (Defs. Mem.
at 9-12.) Although the Court has disagreed with Defendants’ arguments in that regard, Plaintiffs
are clearly aware of the implications of failing to address particular grounds for dismissal. (See
Pls. Opp’n at 7-8 (discussing the fact that Defendants did not specifically seek to dismiss
Plaintiffs’ Section 3617 claims).) Plaintiffs’ choice to oppose Defendants’ motion to dismiss
only with respect to the FHA claims is, therefore, deemed purposeful—and the state law claims
considered abandoned. See, e.g., Westchester Cty. Indep. Party v. Astorino, 137 F. Supp. 3d 586,
618 (S.D.N.Y. 2015) (“abandonment constitutes an independent ground for dismissal”).
Accordingly, Plaintiffs’ state law claims are dismissed without prejudice.
Defendants complain vehemently of Plaintiffs delay in providing the second doctor’s
note (dated January 11, 2016, but provided in February after Defendants filed their motion to
dismiss), characterizing that act as one of many dilatory tactics designed to prolong this—in their
view—frivolous litigation. (Defs. Reply Mem. at 1-3, 9-10; see also Defs. Mem. at 13.) But as
previously noted, see supra note 6, there is little indication that Defendants are not equally
culpable of engaging in gamesmanship. Simply put, Defendants waited until Plaintiffs filed their
suit to attack the credibility of Plaintiffs’ doctor’s note. Then, though it would have been better
for all involved if Plaintiffs had proceeded more quickly, Plaintiffs waited until after Defendants
filed their motion to dismiss before providing another letter regarding Plaintiff Tuman’s need for
her emotional support dog. And even after providing this note, albeit with delay, Defendants
have not withdrawn their motion to dismiss as promised at the pre-motion conference and as
suggested by their initial papers. (See Defs. Mem. at 8 (“no letter = no dog”).)
An attorney “who so multiplies the proceedings in any case unreasonably and vexatiously
may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees
reasonably incurred because of such conduct.” 28 U.S.C. § 1927. Rule 11 of the Federal Rules
of Civil Procedure similarly requires counsel to conduct a reasonable inquiry to ensure “the
claims, defenses, and other legal contentions” made in the litigation “are warranted by existing
law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law” and “the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery[.]” Fed. R. Civ. P. 11(b)(2) & (b)(3). Neither Defendants’ delay in
questioning the sufficiency of Plaintiffs’ original doctor’s letter nor Plaintiffs’ delay in providing
the new letter constitute commendable behavior on the part of litigants appearing before this
Court. 9 As both parties, however, have contributed to protracting the litigation thus far, the
Court denies Defendants’ motion for sanctions.
Leave to Amend
In light of the claims dismissed and withdrawn, as well as the suggestion of competing
physician’s letters, the Court grants Plaintiffs the opportunity to amend their complaint to
conform to the facts currently available and to the principles set forth in this opinion—keeping in
mind the strictures of Rule 11.
For the foregoing reasons, Defendants’ motion to dismiss the complaint is DENIED in
part and GRANTED in part: Plaintiffs’ state law claims are dismissed. Since Plaintiffs withdrew
their claim pursuant to 42 U.S.C. § 3604(c), that portion of Defendants’ motion is denied as
moot. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 25.
The Court reiterates that neither of the supplemental doctors’ letters submitted along with the pending
motions were considered in deciding the motion to dismiss. Plaintiffs’ cross-motion to strike the letters was
unnecessary given that the letters could not be considered at this stage of the proceedings.
Plaintiff shall file an amended complaint in conformance with the above on or before
March 20, 2017. Defendants shall answer or seek a pre-motion conference on any potential nonfrivolous and non-repetitive motion to dismiss by April 21, 2017. The patties are directed to
appear for an initial pre-trial conference on April 27, 2017 at I 0:00 am.
February -z.1, 2017
White Plains, New York
NELSON S. ROMAN
United States District Judge
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