Byrd v. Grove Street Management Corporation et al
Filing
73
DECISION AND ORDER finding as moot 54 Plaintiff's Motion for Punitive Damages; granting 60 Defendants' Motion for Summary Judgment; denying 63 Plaintiff's Motion for Summary Judgment; and dismissing First Amended Complaint.. Si gned by Hon. Michael A. Telesca on 2/15/19. A copy of this Decision and Order was sent to the plaintiff on 2/15/2019 via first-class U.S. Mail. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to correct the caption so that the defendants are listed as "KTB Capital LLC d/b/a Grove Street Management" and "Barbara Manor Apartments LLC." The Clerk of Court is further directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICKIE DIANNE BYRD,
Plaintiff,
DECISION and ORDER
No. 6:16-cv-06017(MAT)
-vsKTB CAPITAL LLC, d/b/a GROVE STREET
MANAGEMENT CORPORATION and BARBARA
MANOR APARTMENTS LLC,
Defendants.
I.
Introduction
On
January
11,
2016,
Vickie
Dianne
Byrd
(“Plaintiff”),
proceeding pro se, instituted this action against KTB Capital LLC,
d/b/a Grove Street Management Corporation (“Grove Street”) and
Barbara Manor
Apartments
LLC
(“Barbara
Manor”)
(collectively,
“Defendants”),1 alleging, inter alia, discrimination based on race
and disability in violation of the Fair Housing Act, 42 U.S.C. §
3601, et seq. (“FHA”) and the New York State Human Rights Law, N.Y.
Exec. Law § 290 et seq. (“NYSHRL”). Presently before the Court is
Defendants’ Motion for Summary Judgment (Docket No. 60) pursuant to
Rule 56 of the Federal Rules of Civil Procedure (“Rule 56”).
1
Defendants indicate in their Answer to the First Amended Complaint (Docket
No. 34) that the correct legal name of the entity identified by Plaintiff in the
caption as “Grove Street Management Corporation” is KTB Capital LLC d/b/a Grove
Street Management. In addition, they state that the correct legal name of the
entity identified as “Barbara Manor LLC” is Barbara Manor Apartments LLC. The
Clerk of Court has been directed to amend the caption accordingly.
-1-
II.
Factual Background
The following factual summary is based on Defendants’ detailed
and
well-supported
Statement
of
Material
Facts
(“Defs’
SOF”)
(Docket No. 60-2), along with Defendants’ Appendix of Exhibits to
Local Rule 56 Statement of Facts (“Defs’ App.”) (Docket No. 60-3
through Docket No. 60-24).
Grove Street is a real estate asset management company that,
during the relevant period, acted as the rental agent and property
manager for apartments located at Emerson Street and Mount Read
Boulevard in the City of Rochester, New York. These apartments were
owned by defendant Barbara Manor. Plaintiff entered into a lease
agreement with Grove Street to rent the unit located at 1403
Emerson Street, Apartment C. The initial lease term commenced
November 30, 2012, and was set to terminate on November 30, 2013.
The monthly rental fee was $545 per month, which included water,
heat, and trash removal.
In
the
fall
of
2013,
Grove
Street
proposed
renewing
Plaintiff’s lease at the rate of $555 per month, for a one-year
term starting November 1, 2013. Plaintiff refused the $10-increase
and
requested
that
her
rent
remain
the
same.
Grove
Street
acquiesced, and Plaintiff signed a new lease on September 23, 2013,
with her rent payment continuing at $545 per month.
About
a
year
later,
on
September 9,
2014,
Grove
Street
proposed renewing Plaintiff’s lease at a rate of $565 per month for
-2-
a one-year term. This was below the market rate for her apartment
unit, which was $575.00. Plaintiff refused, saying she could not
afford the $20-increase and requesting that she be allowed to keep
her current rate of $545.00. Grove Street requested that Plaintiff
either sign the lease renewal and accept the $565-per-month rate,
or provide a notice to vacate in accordance with Section C.52 of
the lease agreement.
Plaintiff neither signed the lease agreement nor provided a
notice to vacate. Plaintiff did not submit her rental payment until
October 6, 2014, five days after it was due on October 1, 2014.
Because it was late, Grove Street imposed a $25-late-fee, in
accordance with Section B.13 of the lease agreement. However, on
October 10, 2014, Grove Street waived the late-fee as a one-time
courtesy and asked her to come into the office to sign the lease
renewal paperwork.
When Plaintiff did not respond, Grove Street sent another
letter on October 14th, reminding Plaintiff that her November rent
2
Section C.5 provides as follows: “In the event you do not vacate the
Apartment at the end of the term, we may use legal process to remove you. Or, if
we accept rent for any period after the end of the Lease term, then you shall be
deemed a holdover Resident and your tenancy shall be month-to-month, with monthly
rent at the current market rate plus an additional monthly fee of Fifty Dollars
($50.00). Either you are [sic] we can terminate the month-to-month lease as of
the last day of any calendar month by giving at least one calendar month’s
written notice to the other party.” Defs’ SOF ¶ 4 (citations omitted).
3
As pertinent here, Section B.1 provides as follows: “If you pay the monthly
rent installment after the end of the 5th day of the month, but before the end
of the 10th day of the month, you will be obligated to pay as additional rent a
Late Fee in the amount of Twenty Five Dollars ($25.00). . . .” Defs’ SOF ¶ 4
(citations omitted).
-3-
would increase to $565 per month plus an additional $50 per month
because she did not have a current lease. The letter also notified
Plaintiff that her lease would terminate on November 30, 2014,
unless she responded.
On October 21, 2014, Grove Street sent a letter reiterating
that Plaintiff’s rent would increase as of November 1, 2014, and
that she needed to vacate her apartment by November 30, 2014. Grove
Street
sent
another
reminder
letter
dated
October
30,
2014,
regarding Plaintiff’s need to quit the premises by November 30th.
November 30, 2014, came and went, and Plaintiff remained in
her apartment.
On December 4, 2014, Grove Street commenced an eviction
proceeding in Rochester City Court.
The parties appeared in court
for a hearing on December 23, 2014. Plaintiff stated she was
willing to pay the increased rental fee of $565 per month and had
only proceeded to the eviction proceeding because she “want[s]
[Defendants] to be responsible for making repairs.” Defs’ SOF ¶ 21
(quotation and citation omitted). She said, “I don’t have a problem
paying what they’re asking. . . . I just need to have somebody to
vent—to hear me. I wanted Your Honor to hear my complaints.” Id.
(quotation
and
citation
omitted).
Plaintiff
did
not
make
allegations of discrimination during the eviction proceeding. Id.
(citing Defs’ Ex. M (Docket No. 60-16)). The City Court judge was
able to assist the parties in reaching a resolution of the eviction
-4-
proceeding whereby Plaintiff’s lease was extended, from January 1,
2015, to October 31, 2015, at the rate of $565 per month. Id. ¶¶
23-24 (citations omitted).
On September 17, 2015, Grove Street sent Plaintiff a letter
informing her that it would not be renewing her lease and that she
was required to vacate her apartment by October 31, 2015. Id. ¶ 25
(citations omitted).
October 31, 2015, passed without Plaintiff vacating her rental
unit.
On November 5, 2015, Plaintiff visited Grove Street’s office
and requested that it accept her November rent payment in the
amount of $565. Tamra James (“James”), Senior Vice President of
Grove Street, advised Plaintiff that Grove Street would not accept
the rent because a notice of non-renewal had already been sent to
her, and because her lease had terminated as of October 31, 2015.
Defs’ SOF ¶ 30-31. Because Plaintiff had not vacated her apartment,
Grove Street considered her to be a holdover tenant, subject to
eviction under Section C.5,
see n. 2, supra, of the rental
agreement. Defs’ SOF ¶ 31.
Grove Street commenced an eviction proceeding on November 10,
2015, in Monroe County Court. At a hearing on November 24, 2015,
the County Court judge issued a judgment and warrant of eviction
for
holdover,
ordering
Plaintiff
to
vacate
her
apartment
December 3, 2015. Plaintiff complied with this order.
-5-
by
III. Procedural Status
On June 25, 2018, the Court issued a Decision and Order
(Docket No. 47) disposing of Defendants’ Motion for Judgment on the
Pleadings as follows: the unlawful eviction claim under N.Y. Real
Prop. Acts. Law § 853 was dismissed with prejudice; any claims
seeking damages under FHA Section 3604(a) or Section 3617 for
injuries
that
Defendants
to
post-dated
the
state
evict
were
dismissed
her
court
judgment
with
allowing
prejudice;
the
remaining claims under FHA Section 3604(a) and Section 3671 were
allowed to proceed because they were not barred by the RookerFeldman doctrine or res judicata; the claims under NYSHRL survived
to the extent that the FHA claims did; and any claims under 18
U.S.C. § 1001 were dismissed with prejudice.
The matter was referred again to Magistrate Judge Jonathan W.
Feldman for completion of discovery. On August 31, 2018, Judge
Feldman ordered that all motions for summary judgment were due by
November 8, 2018. Docket No. 58.
On November 8, 2018, Defendants filed their Motion for Summary
Judgment (Docket No. 60). Plaintiff filed a Declaration (Docket No.
62) and her own Motion for Summary Judgment (Docket Nos. 63 & 64).
Defendants filed their Reply/Response (Docket No. 67) on January 7,
2019. Plaintiff filed a Response (Docket No. 68), Declaration
(Docket No. 69), and Continuation of Exhibits (Docket No. 71). The
summary judgment motion was submitted without oral argument on
-6-
January 24, 2019. Docket No. 72.
IV.
Rule 56 Standard
Rule 56(c) states that summary judgment shall be granted “if
the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
court’s role in determining a motion for summary judgment is not
“to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Id. When
considering a motion for summary judgment, the court must draw
inferences from underlying facts “in the light most favorable to
the party opposing the motion.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). However, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence
on
which
the
jury
could reasonably
find
for
the
plaintiff.”
Anderson, 477 U.S. at 252 (emphasis supplied). To defeat summary
judgment, therefore, the non-movant “must do more than simply show
that there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986), and she “may not rely on conclusory allegations or
unsubstantiated speculation.” Fujitsu Ltd. v. Fed. Express Corp.,
-7-
247
F.3d
423,
428
(2d
Cir.
2001)
(internal
quotation
marks
omitted). At the summary judgment stage, the nonmoving party “must
offer some hard evidence showing that its version of the events is
not wholly fanciful.” D’Amico v. City of N.Y., 132 F.3d 145, 149
(2d Cir. 1998); accord Jeffreys v. City of New York, 426 F.3d 549,
554 (2d Cir. 2005) (holding that district court did not err in
granting defendants’ motion for summary judgment on the basis that
the plaintiff’s “testimony—which was largely unsubstantiated by any
other direct evidence—was ‘so replete with inconsistencies and
improbabilities’ that no reasonable juror would undertake the
suspension of disbelief necessary to credit the allegations made in
his complaint”) (quotation omitted).
V.
Plaintiff’s Summary Judgment Motion
A.
Plaintiff’s Motion Is Untimely
Pursuant to Magistrate Judge Feldman’s Order dated August 31,
2018 (Docket No. 58), dispositive motions were due by November 8,
2018. However, Plaintiff filed her motion for summary judgment on
December 6, 2018, nearly a month late. As Defendants point out,
Plaintiff
presented no reason for her tardy filing; nor did she
seek a modification of the scheduling order or an extension of time
in which to file her motion. Accordingly, the Court finds that
dismissal of her motion as untimely is warranted. See, e.g.,
Bailey-Lynch
v.
Prot.
One
Alarm
Monitoring,
Inc.,
No.
02-CV-0615E(SC), 2005 WL 1334870, at *3 (W.D.N.Y. June 6, 2005)
-8-
(finding pro se plaintiff’s motion untimely where all dispositive
motions had to be filed by January 10, 2005, pursuant to scheduling
order, and plaintiff’s motion was filed on January 12, 2005); NAS
Elecs., Inc. v. Transtech Elecs. Pte Ltd., 262 F. Supp.2d 134, 150
(S.D.N.Y. 2003) (holding that, where the plaintiff’s motion for
summary judgment was filed a month late, “[t]he failure to abide by
the [c]ourt’s scheduling order without any showing of good cause is
sufficient grounds to deny the . . .
B.
Plaintiff’s
Complaint
Motion
motion”).
Improperly
Attempts
to
Amend
Her
Even if the Court were to find Plaintiff’s motion timely, it
improperly raises new claims not presented in any previous filing.
As Defendants point out, the claims to be adjudicated in this case
were clarified by the Court in its Decision and Order dated August
31, 2018. Specifically, the claims under FHA Sections 3604(a) and
3617 and
the
NYSHRL
claims
survived,
while
the
remainder
of
Plaintiff’s claims were dismissed with prejudice. In her motion
papers, however, Plaintiff refers to new statutory provisions such
as 42 U.S.C. § 3631, a provision of the FHA relating to criminal
violations and penalties; 42 U.S.C. § 3614, a provision of the FHA
dealing with enforcement actions by the United States Attorney
General; and New York Real Property Law § 235-B, the warranty of
habitability provision.
It is clearly improper for a litigant to assert new claims for
the first time at the summary judgment stage. E.g., Sec. & Exch.
-9-
Comm’n
v.
Yorkville
Advisors,
LLC,
305
F.
Supp.3d
486,
531
(S.D.N.Y. 2018) (holding that plaintiff “cannot now amend their
complaint merely by raising new facts or theories in their briefs”)
(citing Alali v. DeBara, No. 07 Civ. 2916(CS), 2008 WL 4700431, at
*3 n.6 (S.D.N.Y. Oct. 24, 2008) (refusing to “consider these [new]
allegations in deciding this motion because it is inappropriate to
consider claims not pleaded in the complaint in opposition to
summary judgment”); Kearney v. Cty. of Rockland, 373 F. Supp.2d
434, 440–41 (S.D.N.Y 2005) (plaintiff alleged, in opposition brief
to summary judgment motion, a Title VII hostile work environment
claim for the first time; district court refused to consider Title
VII
claim
defendants
because
on
nothing
notice
of
in
the
complaint
new
or
EEOC
allegation).
To
charge
the
put
extent
Plaintiff purports to assert any new claims, the Court shall not
consider them.
C.
Plaintiff’s Motion Is Procedurally Deficient
When confronted with a properly supported motion for summary
judgment, Rule 56 requires the non-movant to produce evidence in
admissible form. Fed. R. Civ. P. 56(c). Local Rule of Civil
Procedure for the Western District of New York (“W.D.N.Y. L.R.”) 56
further provides that
[t]he papers opposing a motion for summary judgment shall
include a response to each numbered paragraph in the
moving party’s statement, in correspondingly numbered
paragraphs and, if necessary, additional paragraphs
containing a short and concise statement of additional
material facts as to which it is contended there exists
-10-
a genuine issue to be tried. Each numbered paragraph in
the moving party’s statement of material facts may be
deemed admitted for purposes of the motion unless it is
specifically controverted by a correspondingly numbered
paragraph in the opposing statement.
W.D.N.Y. L.R. 56(a)(2).
Plaintiff submitted a pleading captioned “Re: Buttal Statement
of Pro Se Facts” (Docket No. 64-2) that purports to be a statement
of facts for purposes of W.D.N.Y. L.R. 56(a)(2). However, as
Defendants observe, Plaintiff failed to address nearly all of
Defendants’ factual averments, which were supported by evidence in
admissible form. Rather, Plaintiff specifically addressed only
three of the 56 paragraphs in Defendants’ Statement of Material
Facts, and then only with conclusory or self-serving allegations.
As Plaintiff is a frequent litigator in this Court, she
presumably has been made aware of how to oppose a summary judgment
motion,
including
the
requirement
that
the
non-movant
must
specifically respond to the moving party’s statement of facts.
Indeed, in one of Plaintiff’s other cases, this Court recently held
that the defendants’ statement of facts “must be deemed admitted”
because
Plaintiff
failed
to
comply
with
W.D.N.Y.
L.R.
56’s
requirements. Byrd v. NYS Fingerlakes Developmental Disabilities
Servs. O.P.W.D.D., No. 6:14-CV-06470 (MAT), 2018 WL 6119777, at *3
(W.D.N.Y. Nov. 22, 2018).
Because
Plaintiff
failed
to
specifically
respond
to
or
otherwise address Defendants’ Statement of Material Facts, she has
-11-
admitted any uncontested facts as true. See id.; see also, e.g.,
Hamilton v. Robinson, No. 6:12-cv-06449(MAT), 2018 WL 4334769, at
*2 (W.D.N.Y. Sep. 11, 2018) (holding that to the extent the pro se
“failed
to
offer
a
declarative
statement
of
fact
in
a
correspondingly numbered paragraph in opposition to each factual
averment in [the defendant]’s Statement of Material Facts Not in
Dispute,” “such factual averments [were deemed] admitted”); Davis
v. Castleberry, 364 F. Supp.2d 319, 322 (W.D.N.Y. 2005) (same).
VI.
Defendants’ Summary Judgment Motion
A.
Plaintiff’s FHA Claims Fail as a Matter of Law
1.
The
FHA
The
FHA
Framework
provides
and
that
the
“it
Three-Step Burden-Shifting
shall
be
unlawful
.
.
.
to
discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection therewith, because of race[,]”
42 U.S.C. § 3604(b), or handicap. Id. § 3604(f). “An FHA violation
may be established on a theory of disparate impact or one of
disparate treatment.” LeBlanc–Sternberg v. Fletcher, 67 F.3d 412,
425 (2d Cir. 1995). Plaintiff’s claims in this action are based on
a theory of disparate treatment.
Housing
discrimination
claims
are
evaluated
under
the
burden-shifting framework articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).
E.g., Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (citing
-12-
Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1038 (2d Cir.
1979)).
The
elements
of
a
prima
facie
case
of
housing
discrimination are as follows: (1) the plaintiff is a member of a
protected class; (2) the plaintiff sought and was qualified to rent
or purchase the housing; (3) the defendant denied the plaintiff the
opportunity to rent or purchase the housing; and (4) the housing
opportunity remained available to other renters or purchasers.
Mitchell, 350 F.3d at 47. “[O]nce a plaintiff has established a
prima facie case of discrimination, the burden shifts to the
defendant to assert a legitimate, nondiscriminatory rationale for
the
challenged
decision.”
Mitchell,
350
F.3d
at
47
(citing
McDonnell Douglas Corp., 411 U.S. at 802–03).
“If the defendant makes such a showing, the burden shifts back
to the plaintiff to demonstrate that discrimination was the real
reason
for
the
defendant’s
action.”
Id.
(citing
Schnabel
v.
Abramson, 232 F.3d 83, 87 (2d Cir. 2000)). Importantly, “although
the McDonnell Douglas presumption shifts the burden of production
to the defendant, ‘[t]he ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.’”
St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); emphasis
and brackets in original).
2.
The Failure-to-Renew-Lease Claim Fails
-13-
Plaintiff alleges that she wanted to renew her lease and
attempted to make the necessary payment, but Defendants declined to
either renew her lease agreement or accept her payment and then
commenced an ejectment proceeding against her. Plaintiff asserts
that Defendants intended to discriminate against her based on her
race and disabled status.
The Courts assumes arguendo that Plaintiff has made out a
prima facie case; she alleges that she is African-American and
suffers from mental and physical disabilities; she appears to have
been qualified to rent the unit in question insofar as she did so
for several years; Grove Street declined to renew her lease; and
the unit she had inhabited remained available to rent. See, e.g.,
Frazier v. Rominger, 27 F.3d 828, 831 (2d Cir. 1994) (“There is no
dispute that the plaintiffs established a prima facie case at
trial, namely, that [the plaintiff] is African–American, that the
couple was qualified for the housing, that the couple did not get
the housing, and finally that the housing remained open.”) (citing
42 U.S.C. § 3604(a); other citation omitted).
Defendants have fulfilled their burden of production by coming
forward with ample evidence demonstrating that they had legitimate,
non-discriminatory reasons for declining to renew her lease. Grove
Street has submitted declarations from its Senior Vice President
Tamra James (“James”) and former Assistant Property Manager Briana
Mendez (“Mendez”) detailing Plaintiff’s lack of cooperation during
-14-
each lease-renewal process, obdurate refusal to pay modest rent
increases; bellicose and abusive behavior towards staff, which
escalated in the period between the first eviction proceeding and
September 2015; and disruption of other tenants’ enjoyment of their
apartments. See Declaration of Tamra James (“James Decl.”) (Docket
No. 60-25) ¶¶ 27-30; Declaration of Briana Mendez (“Mendez Decl.”)
(Docket No. 60-26) ¶¶ 6-20. For instance, Mendez recounts that
because Plaintiff paid her rent in cash, she made in-person visits
to Grove Street’s offices to remit her rent payment. Mendez Decl.
¶ 7. Mendez recalls that Plaintiff “[o]ften . . . would make
extreme scenes in the office,” engage in “belligerent behavior” and
declare that “Grove Street was ‘against’ her.” Id. Mendez explains
that “[i]t was impossible to have a conversation with [Plaintiff]
during these in-person interactions because she refused to listen
to any of the office workers. . . .” Id. On one visit, Plaintiff
started yelling and waving her cane at the employees in the office,
almost hitting Mendez in the head. Id. ¶ 8.
James corroborates Mendez’s observations about Plaintiff’s
belligerent and unreasonable behavior. See James Decl. ¶¶ 28-29.
James recalls that on April 6, 2015, when Plaintiff came to the
office to pay a late fee, she became “verbally abusive, [started]
swearing, and disrupted the whole office.” Id. ¶ 28. In addition,
Plaintiff raised her cane to eye level, which James personally
perceived as threatening. Id. James explains that during 2015, the
-15-
tenant who occupied the unit below Plaintiff’s apartment complained
to her and other staff members that Plaintiff “was loud and yelled
in her apartment, to a point where it disrupted his enjoyment of
his own unit.” James Decl. ¶ 30. When it came time for this tenant
to
renew
his
lease
at
the
end
of
2015,
James
states,
he
“conditioned his renewal on [Plaintiff]’s eviction (which was then
pending).” Id. & Defs’ Ex. U (Docket No. 60-24) (note from tenant).
Plaintiff has not fulfilled her burden of persuading the Court
that Defendants’ reasons are false or in any way pretextual. At
this stage in the McDonnell-Douglas framework, the litigant “may
satisfy [her] ultimate burden “either directly by persuading the
court that a discriminatory reason more likely motivated the
[defendant]
or
indirectly
by
showing
that
the
[defendant]’s
proffered explanation is unworthy of credence.” Meiri v. Dacon, 759
F.2d 989, 997 (2d Cir. 1985) (citing Burdine, 450 U.S. at 256). In
order
to
“conclusory
defeat
a
well-supported
allegations
of
summary
discrimination
are
judgment
motion,
insufficient
to
satisfy the requirements of Rule 56(e).” Id. at 998 (citing Zahorik
v. Cornell Univ., 729 F.2d 85, 94 (2d Cir. 1984); Mason v.
Continental Illinois Nat. Bank, 704 F.2d 361, 366 (7th Cir. 1983);
other citations omitted).
In opposition to Defendants’ motion, Plaintiff offers only
her personal belief that Defendants were “out to get her” and that
they discriminated and retaliated against her in essentially every
-16-
interaction she had with them. These conclusory and unsupported
assertions
are
belied
by
Grove
Street’s
repeated
efforts
to
accommodate her demands. For instance, in the fall of 2013, when
Plaintiff refused a $10-per-month rent increase and said she wanted
to continue to rent the apartment at the same rate ($545 per
month), Grove Street agreed. See Defs’ SOF ¶¶ 5-6 & Defs’ Ex. E
(Docket No. 60-8). The following year, when Grove Street proposed
to renew her lease at $565 per month, Plaintiff again refused.
While Grove Street did not acquiesce this time in Plaintiff’s
demand to maintain her rent at $545 per month, the Court notes that
the proposed rent of $565 was still below the fair market value of
Plaintiff’s unit, $575 per month. See Defs’ SOF ¶¶ 7, 9 & Defs’ Ex.
H (Docket No. 60-11). And, Grove Street attempted to negotiate with
Plaintiff over the next month to arrive at mutually agreeable lease
terms, but those efforts were unsuccessful. During the ensuing
eviction proceeding, Plaintiff admitted in open court that she
actually did not object to the proposed rental increase; she just
wanted to have the chance to “vent” to the judge. Although Grove
Street certainly was legally entitled to a judgment and warrant of
eviction at that time, it nevertheless agreed to allow Plaintiff to
rent her apartment for another year.
Where, as here, the plaintiff “has failed to show that there
is evidence that would permit a rational factfinder to infer that
the [defendant]’s proffered rationale is pretext, summary judgment
-17-
dismissing the claim is appropriate[.]” Patterson v. Cty. of
Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (citing Smith v.
American
Express
Co.,
853
F.2d
151,
154–55
(2d
Cir.
1988)
(affirming summary judgment in light of plaintiff’s failure to
present
more
than
conclusory
and
substantially
unsupported
assertions that employer’s proffered race-neutral rationale for
denial of promotion was pretext)); see also Waldo v. New York City
Health & Hosps. Corp., No. 06CV2614(SLT)(LB), 2009 WL 2777003, at
*5 (E.D.N.Y. Aug. 31, 2009) (discrimination plaintiff’s unsupported
assertion that the “motive” behind his placement on medical leave
was not “intended for safety reason[s]” but rather to “hurt the
plaintiff” and to “terminate [him] permanently” were “conclusory
allegations” that could not defeat the defendants’ summary judgment
motion) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,
714 (2d Cir. 1996) (dismissing discrimination claim where employer
showed valid, unrefuted reasons for plaintiff’s termination and
plaintiff offered nothing but conclusory allegations regarding
defendant’s actions); other citations omitted).
3.
The Failure-to-Repair Claim Fails
Plaintiff also accuses Defendants of failing to make necessary
repairs that she had requested. She argues that this represents
discrimination based on her race and disabled status. As noted
above, the FHA makes it unlawful to “discriminate against any
person in the terms, conditions, or privileges of . . . rental of
-18-
a dwelling, or in the provisions of services or facilities in
connection therewith, because of race,”
42 U.S.C. § 3604(b), or
“because of a handicap,” 42 U.S.C. § 3604(f)(2)(A). Title 42
U.S.C., § 3604(b) and (f) prohibit, inter alia, “[f]ailing or
delaying maintenance or repairs of sale or rental dwellings” on the
basis of race or handicap. 24 C.F.R. § 100.65(b)(2).
As an initial matter, the Court notes that Defendants have
submitted detailed documentation regarding all of the service and
repair requests by Plaintiff that they have in their records, as
well as the timing and substance of their responses to those
requests. See Defs’ SOF ¶ 41 (citing James Decl. ¶¶ 43-45 & Defs’
Ex. R (Docket No. 60-21)). Defendants point out that Plaintiff
admitted, at her deposition, that maintenance personnel came and
fixed her refrigerator, windows and window screens, bathroom sink,
hall lights, and garbage disposal. See id. ¶ 43 (citing Excerpts
from Deposition of Vickie D. Byrd (“Byrd Dep.”) (Docket No. 60-6)
at 16-18, 19, 21, 22, 26).
The only repairs and improvements that Plaintiff asserts were
not
made
are
(1)
repairs
to
her
kitchen
cabinets;
and
(2)
installation of a peephole in her front door. Defendants admit that
these repairs were not made. The Court therefore will assume
arguendo that Plaintiff has made out a prima facie case under FHA
Section 3604(b) and (f) regarding these two items.
With regard to both the kitchen cabinets and the peephole,
-19-
Defendants have offered a legitimate, nondiscriminatory reason for
not putting in a service call—namely, that they never received a
request from Plaintiff to make such repairs. See Defs’ SOF ¶ 44
(citing James Decl. ¶ 46). Plaintiff has not met her burden by
showing that this was merely a pretext and that the real reason for
not
fixing
her
cabinets
and
installing
the
peephole
was
discriminatory. Significantly, when questioned at her deposition as
to
why
she
believed
Defendants
ignored
her
repair
requests,
Plaintiff testified that she had “‘no idea.’” Defs’ SOF ¶ 46
(quoting Byrd Dep. at 28 (Q: Why do you think Grove Street and
Barbara Manor ignored your requests? A: I have no idea. I have no
idea.”)); see also id. (quoting Byrd Dep. at 30 (Q: I asked you why
you thought they ignored your request, and your answer was you have
no idea; correct? A: Well, I want to say they ignored my request
because–I have no idea. Maybe they wanted me to do them myself.”)).
Plaintiff thus concedes that she has no direct or circumstantial
evidence of any discriminatory animus on Defendants’ part in
connection
with
their
alleged
failure
to
make
repairs
to
Plaintiff’s apartment.
4.
The Retaliation Claim Fails
Plaintiff asserts that Grove Street, in commencing the second
eviction proceeding against her, sought to retaliate against her
for having filed a discrimination complaint with the NYSDHR and
“winning” the first eviction proceeding.
-20-
Section 3617 of the FHA prohibits retaliation for exercising
rights under the FHA. See 42 U.S.C. § 3617 (making it unlawful “to
coerce, intimidate, threaten, or interfere with any person in the
exercise or enjoyment of, or on account of his having exercised or
enjoyed, or on account of his having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or
protected by [, inter alia, 42 U.S.C. §§ 3604, 3605, and 3606]”).
To state a claim for retaliation under the FHA, a plaintiff must
allege that (1) she was engaged in protected activity, (2) the
defendant was aware of that activity, (3) the defendant took
adverse action against the plaintiff, and (4) a causal connection
exists between the protected activity and the adverse action.
Regional
Economic
Community
Action
Program,
Inc.
v.
City
of
Middletown, 294 F.3d 35, 54 (2d Cir. 2002). “Protected activity
under
the
FHA
refers
to
‘action
taken
to
protest
or
oppose
statutorily prohibited discrimination.’” Miller v. Bd. of Managers
of Whispering Pines at Colonial Woods Condo. II, 457 F. Supp.2d
126, 131 (E.D.N.Y. 2006) (quoting Cruz v. Coach Stores, Inc., 202
F.3d 560, 566 (2d Cir. 2000)).
Assuming arguendo that Plaintiff has established the first
three elements of a prima facie case of retaliation under the FHA
in connection with her filing of the NYSDHR complaint, she cannot
make
out
the
connection”
fourth
between
element—that
the
protected
-21-
is,
the
activity
requisite
(the
“causal
filing
of
a
discrimination complaint with the NYSDHR) and the adverse action
(the eviction proceeding in Monroe County Court). It is true that,
“[i]n this Circuit, a plaintiff can indirectly establish a causal
connection to support a discrimination or retaliation claim by
‘showing that the protected activity was closely followed in time
by the adverse [employment] action.’” Gorman-Bakos v. Cornell Co-op
Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001)
(quoting Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d
Cir.1996)
(citation
and
quotation
marks
omitted
in
original;
alteration in original; emphasis supplied)). Here, however, the
adverse
action
preceded
the
protected
activity.
Therefore,
Plaintiff cannot demonstrate a causal connection between the two
events.
With regard to her claim that Defendants retaliated against
her after she “won” the 2014 eviction proceeding, Defendants point
out that Plaintiff did not “win” anything insofar as the City Court
judge made no findings in her favor. Rather, with the judge’s
assistance, the parties reached a settlement whereby Plaintiff
agreed to the rent increase originally proposed by Grove Street,
and Grove Street agreed to extend her lease for a period of time.
Even disregarding this fact, Plaintiff has failed to make out a
prima facie retaliation claim because her opposition to Grove
Street’s eviction petition in December 2014, does not qualify as
protected activity. The Court has reviewed transcript of the
-22-
proceeding in City Court, which reveals that Plaintiff never
asserted discrimination under the FHA or NYSHRL. See Defs’ Ex. M
(Docket No. 60-16). Rather, Plaintiff informed the judge that she
refused to pay the requested rent increase—even though “[m]oney was
never an issue,” id. at 15—and proceeded to court simply because
she wanted someone to “vent” to. Id. at 11.
Without complaints about actions prohibited by the FHA, there
is no protected activity. Fincher v. S. Bend Hous. Auth., 612 F.
Supp.2d 1009, 1024 (N.D. Ind. 2009) (dismissing FHA retaliation
claim due to lack of evidence showing plaintiff was engaged in
protected
activity;
plaintiff’s
filing
of
a
previous
lawsuit
against the housing authority alleging that it failed to comply
with federal rules issued by the United States Department of
Housing and Urban Development pertaining to due process hearing
rights of tenants but there was “no suggestion” that plaintiff
complained about discrimination or tried to enforce any other right
that could be construed as protected by the FHA).
To
the
extent
Plaintiff
argues
that
she
was
protesting
discrimination because she told the City Court judge that she
“wanted [Defendants] to be responsible for making repairs,” Defs’
Ex. M at 11, and she believes that Defendants’ alleged failure to
make repairs was discriminatory, the Court finds this unavailing.
As the City Court judge pointed out at the hearing, Defendants had
informed that they were willing to make the repairs that she
-23-
requested in the marked-up copy of the lease she sent back to
them—provided that she signed the lease and agreed to the rent
increase, which is what she ultimately agreed to do. Furthermore,
as discussed elsewhere in this Decision and Order, there is no
evidence that Defendants failed to make any repairs of which they
had
been
made
aware.
Likewise,
there
is
no
evidence
that
discriminatory intent was behind Defendants’ failure to repair the
kitchen cabinets and install a peephole. Rather, the evidence
establishes that Defendants simply were not aware of these issues
because Plaintiff had not notified Defendants about them.
Even assuming that Plaintiff’s statements in court during the
2014 eviction proceeding counted as protected activity—which the
Court finds not to be the case—Plaintiff cannot show an adverse
action by Defendants in response. As noted above, Defendants agreed
to extend her lease until October 31, 2015, and to make all of the
repairs with which she had annotated her lease agreement.
In sum, Plaintiff cannot make out a prima facie claim of
retaliation with regard to either of the allegedly protected
activities in which she engaged. Accordingly, dismissal of her
retaliation claims as a matter of law is warranted.
VII. The State Law Claims Fail
Because Plaintiff is pro se, the Court liberally construed her
First Amended Complaint as raising the State law claims under the
NYSHRL, codified at N.Y. Exec. Law § 290 et seq., that she
-24-
presented in her verified complaint to the NYSDHR. Subject to
exceptions
not
relevant
here,
the
NYSHRL
contains
provisions
prohibiting housing discrimination similar to those in the FHA. See
N.Y. Exec. Law § 296(5)(a)(2).4 Claims under the FHA and N.Y. Exec.
Law § 296 are “evaluated under the same framework.” Olsen v. Stark
Homes, Inc., 759 F.3d 140, 153 (2d Cir. 2014) (citation and
quotation marks omitted). As discussed above, Plaintiff’s claims
under the FHA fail as a matter of law. As the NYSHRL claims are
also evaluated under the same McDonnell Douglas framework, they
fail as a matter of law for the identical reasons the FHA claims
do. Defendants therefore are entitled to summary judgment as to the
NYSHRL claims. E.g., Francis v. Kings Park Manor, Inc., 91 F.
Supp.3d 420, 434 (E.D.N.Y. 2015); see also Haber v. ASN 50th St.
LLC, 847 F. Supp.2d 578, 588 (S.D.N.Y. 2012) (because plaintiff’s
“discriminatory treatment claims under the FHA fail under the
McDonnell Douglas test,” the claims under the NYSHRL “must fail as
well”).
VIII.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary
Judgment
(Docket
No.
60)
is
granted
in
its
entirety,
and
4
“It shall be an unlawful discriminatory practice for the owner, . . . or
managing agent of, or other person having the right to sell, rent or lease a
housing accommodation, . . . or any agent or employee thereof: (2) To
discriminate against any person because of race . . . [or] disability . . . in
the terms, conditions or privileges of the sale, rental or lease of any such
housing accommodation or in the furnishing of facilities or services in
connection therewith.” N.Y. Exec. Law § 296(5)(a)(2).
-25-
Plaintiff’s Motion for Summary Judgment (Docket No. 63) is denied
in its entirety. The First Amended Complaint (Docket No. 33) is
dismissed with prejudice. In light of the Court’s dismissal of
Plaintiff’s
First
Amended
Complaint,
her
Motion
for
Punitive
Damages (Docket No. 54) is denied as moot. The Clerk of Court is
directed to close this case.
SO ORDERED.
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
DATED:
February 15, 2019
Rochester, New York
-26-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?