Byrd v. Dunn Towers I/Apt's et al

Filing 12

DECISION AND ORDER that Dunn Towers Is Rule 12(b)(6) motion is converted into a Rule 56 motion for summary judgment; and that Phillipones answer is converted into a Rule 56 motion for summary judgment; and that Plaintiffs opposition papers to the co nverted motions for summary judgment are due 14 days from the date of entry of this Order; and that any reply papers by Dunn Towers I and Phillipone are due 7 days from the date Plaintiff files her opposition papers, and that the Clerk of Court shall serve a copy of this Decision and Order along with a copy of the Western District of New Yorks Rule 56 Notice to Pro Se Litigants upon Plaintiff. Responses due by 11/29/2017; Replies due by 12/6/2017; Rule 56 Motion for Summary Judgment will be submitted without oral argument on 12/13/2017 before Hon. Michael A. Telesca. No court appearances are required.. Signed by Hon. Michael A. Telesca on 11/15/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VICKIE DIANNE BYRD,
Plaintiff,

No. 6:16-cv-06785(MAT)
ORDER

-vsDUNN TOWERS I, APT’S, PHILLIPONE
REALTY, INC., DUNN TOWERS I
APARTMENTS,
Defendants.

I.

Background
Proceeding pro se, Vickie Dianne Byrd (“Plaintiff”) instituted

this action against defendants “Dunn Towers I, Apt’s” and “Dunn
Towers I Apartments” (collectively, “Dunn Towers I”) and Phillipone
Realty, Inc. (“Phillipone”) by filing a complaint (Dkt #1) dated
December 1, 2016, alleging that defendants violated the Fair
Housing Act, 42 U.S.C. § 3601 et seq. and generally discriminated
against her on the basis of disability. The Court has jurisdiction
over this matter pursuant to 28 U.S.C. § 1331.
II.

Dunn Towers I’s Motion to Dismiss is Converted to a Rule 56
Motion
Presently before the Court is the pre-answer motion to dismiss

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
(“Rule 12(b)(6)”) filed by Dunn Towers I. Plaintiff did not file
any pleadings in opposition to the motion. Philippone did not join
in Dunn Towers I’s motion.
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Dunn Towers I has submitted an attorney declaration to which
is attached a copy of the amended complaint in Byrd v. Grove Street
Management

Corporation

and

Barbara

Manor,

LLC,

Civil

Action

No. 6:16-cv-6017(MAT) (W.D.N.Y.) (“Grove Street/Barbara Manor”),
which is currently pending before this Court; and a copy of an
judgment

signed

by

County

Court

Judge

James

Piampiano

on

November 24, 2015 (“the County Court Judgment”), in an eviction
proceeding commenced by Barbara Manor Apartments, LLC, in Monroe
County Court of New York State. Dunn Towers I urges the Court to
take judicial notice of these pleadings, and contends that they may
be considered in connection with its Rule 12(b)(6) motion.
Upon reviewing the pleadings filed herein, as well as the
pertinent caselaw, the Court has elected to exercise its discretion
to convert Dunn Towers I’s Rule 12(b)(6)

motion to dismiss into a

motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. See In re G. & A. Books, Inc., 770 F.2d
288, 295 (2d Cir. 1985) (noting that Rule 12(b)(6) “permits the
district court to consider matters outside the pleadings and to
treat a motion for dismissal as one for summary judgment provided
‘all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56’”). In general,
the Second Circuit has explained, “a district court should give
parties specific notice of its intent to convert a motion to
dismiss into a motion for summary judgment.”

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Green v. Doukas, 205

F.3d 1322, 2000 WL 236471, at *2 (2d Cir. 2000) (unpublished opn.)
(citing In re G. & A. Books, Inc., 770 F.2d at 294-95).
Courts
explicit

have

notice

recognized
is

not

that,

in

necessary

certain

before

circumstances,

conversion

of

a

Rule 12(b)(6) motion, Green, 2000 WL 236471, at * 2 (citation
omitted),

such

as

where

the

parties

“should

reasonably

have

recognized the possibility that the motion might be converted to
one for summary judgment” and were not “taken by surprise and
deprived of a reasonable opportunity to meet facts outside the
pleading.” In re G & A Books, Inc., 770 F.2d at 294–95. Here, the
Court finds that in light of Plaintiff’s pro se status, the more
prudent and efficient course is to issue an order explicitly
notifying Plaintiff of the Court’s intention to convert Dunn Towers
I’s

Rule

12(b)(6)

motion

into

a

Rule

56

motion

for

summary

judgment.
III. Phillipone’s Answer Is Converted to a Rule 56 Motion
Similarly, Phillipone’s answer reads more like a motion for
summary judgment insofar as it argues the burden of proof in a
discrimination case. It also attaches documents that, according to
Phillipone, show that it did not discriminate against Plaintiff and
is entitled to judgment as a matter of law. The Court hereby
notifies Plaintiff that it is converting Phillipone’s answer into
a Rule 56 motion for summary judgment.

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IV.

Conclusion and Orders
For

the

foregoing

reasons,

the

Court

hereby

explicitly

notifies Plaintiff that the Court is converting Dunn Towers I’s
Rule 12(b)(6) motion into a Rule 56 motion for summary judgment.
The

Court

further

notifies

Plaintiff

that

it

is

converting

Phillipone’s answer into a Rule 56 motion for summary judgment. For
Plaintiff’s reference, the Court is serving Plaintiff with a copy
of the Western District of New York’s Rule 56 Notice to Pro Se
Litigants, in accordance with Western District of New York Local
Rule 56(b) and Irby v. N.Y. City Transit Auth., 262 F.3d 412, 414
(2d Cir. 2001).
Rule 56(c) provides that a motion for summary judgment “shall
be served at least 10 days before the time fixed for the hearing,”
Fed. R. Civ. P. 56(c), and that the adverse party may serve
opposing

affidavits,

see

id.

Plaintiff

is

advised

that

any

opposition papers she wishes to file regarding the converted
motions for summary judgment are due 14 days from the date of entry
of this Order.
Dunn Towers I and Phillipone will have 7 days from the date
Plaintiff files her opposition papers to file replies, should they
choose to do so.
Accordingly, it is hereby
ORDERED that Dunn Towers I’s Rule 12(b)(6) motion is converted
into a Rule 56 motion for summary judgment; and it is further

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ORDERED that Phillipone’s answer is converted into a Rule 56
motion for summary judgment; and it is further
ORDERED that Plaintiff’s opposition papers to the converted
motions for summary judgment are due 14 days from the date of entry
of this Order; and it is further
ORDERED that any reply papers by Dunn Towers I and Phillipone
are due 7 days from the date Plaintiff files her opposition papers,
and it is further
ORDERED that the Clerk of Court shall serve a copy of this
Order along with a copy of the Western District of New York’s “Rule
56 Notice to Pro Se Litigants” upon Plaintiff.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

November 15, 2017
Rochester, New York.

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