Opinion
5:22-CV-1202 (MAD/ML)
04-04-2024
BISHME SMITH; and PARIS SMITH, Plaintiffs, v. HOLLEY DAVIS; TERESA JOHNSON; JULIE RICHARDSON; STEPHANIE ALBERT; PRESERVATION MGMT., INC.; and COLD BLACK RIVER L.P., Defendants.
BISHME SMITH Plaintiff, Pro Se PARIS SMITH, Plaintiff, Pro Se GORDON REES SCULLY MANSUKHANI, LLP TRISTAN SMITH, ESQ. Counsel for Defendants Davis, Johnson, Richardson, Albert, and Preservation Mgmt., Inc. BOND, SCHOENECK & KING, PLLC JAMES P. WRIGHT, ESQ. Counsel for Defendant Cold Black River, L.P. TRISTAN SMITH, ESQ. JAMES P. WRIGHT, ESQ.
BISHME SMITH Plaintiff, Pro Se
PARIS SMITH, Plaintiff, Pro Se
GORDON REES SCULLY MANSUKHANI, LLP TRISTAN SMITH, ESQ. Counsel for Defendants Davis, Johnson, Richardson, Albert, and Preservation Mgmt., Inc.
BOND, SCHOENECK & KING, PLLC JAMES P. WRIGHT, ESQ. Counsel for Defendant Cold Black River, L.P.
TRISTAN SMITH, ESQ.
JAMES P. WRIGHT, ESQ.
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge
The Clerk has sent a pro se amended complaint in the above captioned action filed by Bishme Smith and Paris Smith (collectively “Plaintiffs”) to the Court for review. (Dkt. No. 42.) For the reasons discussed below, I recommend that Plaintiffs' Amended Complaint be (1) accepted in part for filing, and (2) dismissed in part without leave to replead. (Dkt. No. 42.)
I. BACKGROUND
Plaintiffs commenced this action on November 15, 2022, by the filing of a verified Complaint against defendants Holley Davis, Teresa Johnson, Julie Richardson, Stephanie Albert, Preservation Management, Inc. (“Defendant Preservation”), Cold Black River L.P. (“Defendant Cold Black River”), and Kelley Cannon. (Dkt. No. 1.) On March 28, 2023, the undersigned granted Plaintiffs' motion for leave to proceed in forma pauperis and recommended that (1) the Court accept for filing Plaintiffs' Complaint (Dkt. No. 1) to the extent that it asserted (a) a claim pursuant to the FHA alleging retaliation against Defendants Davis, Johnson, Richardson, Albert, Preservation Management, Inc., and Cold Black River (collectively “Defendants”), (b) a claim pursuant to N.Y. Exec. Law §§ 296(6-7) alleging retaliation against Defendants, (c) a claim pursuant to N.Y. Real Prop. Law § 223-b against Defendants, (d) a claim pursuant to N.Y. Real Prop. Law § 235-b against Defendants, and (e) a claim of breach of contract pursuant to New York common law against Defendants; (2) the Court dismiss with leave to replead Plaintiffs' Complaint (Dkt. No. 1) to the extent that it asserted (a) a claim pursuant to 42 U.S.C. § 1981 against Defendants and Ms. Cannon, (b) a claim pursuant to 42 U.S.C. § 1982 against Defendants and Ms. Cannon, (c) a claim pursuant to 29 U.S.C. § 794 against Defendants Cold Black River and Preservation, (d) a claim pursuant to 42 U.S.C. § 2000d against Defendants Cold Black River and Preservation, (e) claims pursuant to the FHA against Defendants to the extent that it alleged (i) discrimination, and (ii) hostile living environment, (f) a claim pursuant to N.Y. Exec. Law § 296(5-6) to the extent it alleged discrimination against Defendants, and (g) a claim pursuant to New York common law alleging intentional infliction of emotional distress against Defendants and Ms. Cannon, because it failed to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and (3) the Court dismiss without prejudice but without leave to replead Plaintiff's Complaint (Dkt. No. 1) to the extent that it alleged claims pursuant to 29 U.S.C. § 794 and 42 U.S.C. § 2000d against Defendants Davis, Johnson, Richardson, and Albert because it failed to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B). (See generally Dkt. No. 8.)
On July 5, 2023, United States District Judge Mae A. D'Agostino issued an order adopting the undersigned's Report and Recommendations. (Dkt. No. 9.) Because no claims against Ms. Cannon survived, the Clerk of the Court terminated Ms. Cannon from the action. (See generally docket sheet.)
On October 16, 2023, Defendants Albert, Davis, Johnson, Richardson, and Preservation filed an answer. (Dkt. No. 21.) On November 9, 2023, the undersigned issued a Uniform Pretrial Scheduling Order, which directed that any amended pleadings be filed by January 3, 2024. (Dkt. No. 38.) On November 15, 2023, an affidavit of service was filed indicating that Defendant Cold Black River was served on November 13, 2023. (Dkt. No. 40.) On December 18, 2023-thirty-five days after service of the Complaint on Defendant Cold Black River- Plaintiffs filed an Amended Complaint. (Dkt. No. 42.)
The undersigned notes that the Amended Complaint was properly filed as a matter of course pursuant to Fed.R.Civ.P. 15(a)(1)(B) which permits amendments to the complaint “once as a matter of course” either (1) within twenty-one days after serving it, or (2) within twenty-one days after service of a responsive pleading or motion under Rule 12(b), (e), or (f). Although there is some disagreement within the Circuit, this Court has held that “when a responsive pleading is required-there is no ‘time gap' during which a party cannot amend as a matter of course when no responsive pleading or motion under 12(b), (e), or (f) has been filed.” Doe #1 v. Syracuse Univ., 335 F.R.D. 356, 358-59 (N.D.N.Y. Apr. 29, 2020) (Sannes, J.).
Construed as liberally as possible, Plaintiffs' Amended Complaint (Dkt. No. 42) largely tracks their original Complaint (Dkt. No. 1) with the deletion of Ms. Cannon-who has since died-as a party to the action. (See generally Dkt. No. 42.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
To review, but not supplant the undersigned's summary of Plaintiffs' allegations found in the Order and Report-Recommendation dated March 28, 2023 (Dkt. No. 8), Plaintiffs allege that their rights were violated by Defendants. (See generally Dkt. No. 42.) Plaintiffs allege that beginning on November 30, 2021, they rented an apartment in a complex called “Black River Apartments,” which is owned by Defendant Cold Black River, and managed by Defendant Preservation. (Dkt. No. 42 at 2-5.) Plaintiffs allege that Defendants Davis, Johnson, Richardson, and Albert are employed by Defendant Preservation. (Id. at 2-3.)
Plaintiffs allege Plaintiff Bishme is a Black man diagnosed with schizophrenia, manic depression, PTSD, and physical disabilities. (Dkt. No. 42 at 1-2, 36.) Plaintiffs allege that Plaintiff Paris is a white woman diagnosed with ADHD, borderline personality disorder, depression, PTSD, and physical disabilities. (Id. at 2, 36.) Plaintiffs allege that Defendants Davis and Johnson are white females. (Id. at 2.)
Plaintiffs allege that during the course of their rental arrangement (1) the amount that they owed for rent was incorrectly calculated and, despite their communication about the issue, Defendants failed to timely recalculate the accurate rent amount, (2) they had numerous issues with Ms. Cannon-who also rented a space in the same complex-but that Defendants failed to intervene on behalf of Plaintiffs and satisfactorily remedy their concerns, and (3) Plaintiffs filed a complaint with FHEO HUD regarding race and disability discrimination they believed that they experienced during interactions with Defendants and shortly after filing the FHEO HUD complaint, they received a retaliatory notice directing them to vacate their apartment. (See generally Dkt. No. 42.)
Based on these factual allegations, Plaintiffs appear to assert the following eleven causes of action: (1) a claim pursuant to 42 U.S.C. § 1981 against Defendants; (2) a claim pursuant to 42 U.S.C. § 1982 against Defendants; (3) a claim pursuant to 29 U.S.C. § 794 against Defendants; (4) a claim pursuant to 42 U.S.C. § 2000d against Defendants; (5) a claim pursuant to 42 U.S.C. § 3604 against Defendants; (6) a claim pursuant to 42 U.S.C. § 3617 against Defendants; (7) a claim pursuant to New York Executive Law § 296(5-7) against Defendants;(8) a claim pursuant to New York Real Property Law § 223-b against Defendants; (9) a claim pursuant to New York Real Property Law § 235-b against Defendants; (10) a claim of intentional infliction of emotional distress pursuant to New York common law against Defendants; and (11) a claim of breach of contract pursuant to New York common law against Defendants. (Dkt. No. 42 at 30-47.) As relief, Plaintiffs seek declaratory judgment, a permanent injunction prohibiting Defendants from discriminating against them, compensatory damages in the amount of $350,000, punitive damages “in an amount that would punish Defendants . . . and . . . deter [them] from future discriminatory behavior,” and attorney's fees and costs. (Id. at 47-48.)
The Amended Complaint states that this claim is against “ALL PMI Defendants.” (Dkt. No. 42 at 36.) However, Plaintiffs appear to define all Defendants as “PMI Defendants.” (Dkt. No. 42 at 2-3.) Hence, it appears that this was a leftover from the Complaint (Dkt. No. 1) and Plaintiffs intended this claim to be asserted against Defendants.
The Amended Complaint states that this claim is against “PMI and Cold Black River L.P. Defendants.” (Dkt. No. 42 at 37.) However, Plaintiffs appear to define all Defendants as “PMI Defendants.” (Dkt. No. 42 at 2-3.) Hence, it appears that Plaintiffs intended this claim to be asserted against Defendants.
See, supra, note 3.
See, supra, note 3.
See, supra, note 3.
See, supra, note 3.
See, supra, note 3.
See, supra, note 3.
II. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
III. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe her pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiffs' Amended Complaint with this principle in mind, I recommend that Plaintiffs' Amended Complaint be accepted in part for filing and dismissed in part for failure to state a claim upon which relief may be granted.
A. Claims Pursuant to 42 U.S.C. §§ 1981, 1982 Against Defendants
The Second Circuit notes that, “Section 1981 provides that ‘all persons have equal right to make and enforce contracts,' and § 1982 ‘establishes that all persons have equal right to purchase, lease, sell, hold, and convey real and personal property.'” Silva v. Farrish, 47 F.4th 78, 89-90 (2d Cir. 2022) (quoting Costello v. Town of Huntington, 14-CV-2061, 2015 WL 1396448, at *12 (E.D.N.Y. Mar. 25, 2015) (citing 42 U.S.C. §§ 1981, 1982)). To state a prima facie claim under either provision, plaintiffs must prove: “(1) they are members of a racial minority; (2) an intent to discriminate on the basis of their race by defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
With respect to the second element, at the pleading stage, a plaintiff must “specifically allege the ‘circumstances giving rise to a plausible inference of racially discriminatory intent.'” Wade v. Kay Jewelers, Inc., 17-CV-0990, 2018 WL 4440532, at *7 (D. Conn. Sept. 17, 2018) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994)).
Here, the Amended Complaint contains the following pertinent allegations: (1) on June 29, 2022, “Plaintiffs stressed that they felt that it was based on race and that they were being treated differently . . . and management did not respond or deny that accusation (Dkt. No. 42 at 11-12), (2) Defendant Johnson spoke differently to Plaintiff Paris (who is Caucasian) than she spoke to Plaintiff Bishme (who is Black) (id. at 14), (3) on August 9, 2022, Defendant Davis yelled at Plaintiffs' son about running on the stairs but Defendants had not yelled at Ms. Cannon's white son and he ran “up and down the stairs every day” (id. at 16), (4) Plaintiff Bishme and Ms. Cannon had an altercation and Defendants believed the version of events provided by Ms. Cannon (who is white) over Plaintiff Bishme (id. at 21), (5) Defendant Albert reviewed documents dismissing the criminal charges against Plaintiff Bishme-that resulted from the altercation he had with Ms. Cannon-and stated that Plaintiffs' lease was still not being renewed (id. at 22-23), (6) while renting an apartment from Defendants, Ms. Cannon was arrested, had active warrants, and committed lease violations but did not receive a non-renewal notice or eviction (id. at 26-27), (7) another (unnamed) white tenant who lived below Plaintiffs' apartment was allowed to renew her lease despite multiple eviction notices, non-payment of rent, criminal activity, and drug use (id. at 30).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' 42 U.S.C. §§ 1981, 1982 discrimination claims against Defendants. See e.g., Wiltz v. New York Univ., 19-CV-3406, 2019 WL 8437456, at *11 (S.D.N.Y. Dec. 23, 2019) (holding that the plaintiff failed “to allege even a minimal inference of discriminatory motivation” where the complaint contained “only conclusory allegations that he was denied a lease renewal based on his race and/or disability,” that the defendant “imposed different rental application standards for white and non-disabled residents,” and failed to “identif[y] any white or non-disabled tenant who received a lease renewal under similar circumstances.”).
B. Claim Pursuant to 29 U.S.C. § 794 Against Defendants
Plaintiffs next assert non-intentional discrimination in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, alleging that Defendants violated the statute by failing to provide them with the reasonable accommodation that they requested-the ability to “get away from the neighbor who was disrupting their peace and causing [an] unwelcome intrusion creating a hostile environment.” (Dkt. No. 42 at ¶ 97.)
“To state a prima facie case for discrimination based on a failure to reasonably accommodate, a plaintiff must demonstrate that: (1) he suffers from a . . . disability as defined by the ADA and Rehabilitation Act; (2) the defendant knew or reasonably should have known of the plaintiff's . . . disability; (3) accommodation of the . . . disability may be necessary to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendant[ ] refused to make such accommodation.” Logan v. Matveevskii, 57 F.Supp.3d 234, 256 (S.D.N.Y. 2014) (internal quotation marks, citations, and brackets omitted).
“[I]ndividuals cannot be held liable under the Rehabilitation Act.” Burris v. Hous. and Servs. Inc., 17-CV-9289, 2019 WL 1244494, at *5 (S.D.N.Y. Mar. 18, 2019) (citing J.L. on behalf of J.P. v. N.Y.C. Dep't of Educ., 324 F.Supp.3d 455, 467 n.4 (S.D.N.Y. 2018)). As a result, I recommend that Plaintiff's Rehabilitation Act claims against Defendants Davis, Johnson, Richardson, and Albert, be dismissed with prejudice. Burris, 2019 WL 124494, at *5 (dismissing with prejudice the plaintiff's Rehabilitation Act claims against individual defendants).
With respect to Plaintiffs' Section 504 claim against Defendants Preservation and Cold Black River, I recommend that it be dismissed for lack of standing.
“[I]t is well-settled that injunctive relief is the only relief available for non-intentional violations of” the Rehabilitation Act. Forziano v. Independent Grp. Home Living Program, Inc., 613 Fed.Appx. 15, 18-19 (2d Cir. 2015) (citing Powell v. Nat'l Bd. Of Med. Examiners, 364 F.3d 79, 86 (2d Cir. 2004); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009)).
“Both standing and jurisdictional ripeness require ‘a conclusion that the complaining party will sustain immediate injury and that such injury would be redressed by the relief requested.'” Forziano, 613 Fed.Appx. at 17 (quoting Simmonds v. I.N.S., 326 F.3d 351, 358 (2d Cir. 2003)). The Amended Complaint alleges that Ms. Cannon-the neighbor who Plaintiffs sought to move away from-is now deceased. (Dkt. No. 42 at ¶¶ 11.) Moreover, Plaintiffs no longer live at Black River Apartments. (Dkt. No. 42 at ¶ 69.) Hence, any injunction claim would seek to prevent harm that plaintiffs may or may not suffer in the future. Forziano, 613 Fed.Appx. at 17 (affirming the district court's dismissal of the plaintiffs' injunction claims where the plaintiffs were seeking an injunction prohibiting defendants from refusing to provide them with residential services as a cohabiting couple, but after commencing the lawsuit, plaintiffs received residential placement at another facility and although they may have to move out of the other facility “at some point, such speculative harm is insufficient to confer standing on the plaintiffs.”); Jones v. Volunteers of Am. Greater New York, 20-CV-5581, 2022 WL 768681, at *7 (S.D.N.Y. Mar. 14, 2022) (citing Am. Freedom Def. Initiative v. Metro. Transp. Auth., 815 F.3d 105, 110 (2d Cir. 2015) (case moot where ongoing harm not present and where challenged conduct has been completely eliminated); Wiltz v. New York Univ., 19-CV-3406, 2019 WL 8437456, at *16, (S.D.N.Y. Dec. 23, 2019) (no standing under FHA, ADA, or Rehabilitation Act where plaintiff no longer resided with defendants, so no showing of “a real or immediate threat that he will be wronged again.”) report and recommendation adopted 2020 WL 614658 (S.D.N.Y. Feb 10, 2020) appeal dismissed 2020 WL 8839487 (2d Cir. Sept. 23, 2020)) (“Plaintiff can suffer no ongoing harm at the hands of the Defendants because he no longer lives at the facility at-issue in this cause of action.”).
As a result, I recommend that Plaintiffs' claim pursuant to the Rehabilitation Act be dismissed.
C. Claim Pursuant to 42 U.S.C. § 2000d Against Defendants
Section 601 of Title VI of the Civil Rights Act of 1964 provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. To state a claim under Title VI, a plaintiff must allege that (1) the defendant discriminated against him on the basis of race, color, or national origin; (2) the discrimination was intentional; and (3) the discrimination was a substantial and motivating factor for the defendant's actions. See Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001); Alexander v. Sandoval, 532 U.S. 275, 281 (2001) (“Title VI itself directly reach[es] only instances of intentional discrimination,” not disparate impact).
“Title VI does not provide for individual liability.” Sherman v. Yonkers Pub. Schs., 21-CV-7317, 2023 WL 137775, at *7 (S.D.N.Y. Jan. 9, 2023) (citing Bayon v. State Univ. of N.Y. at Buffalo, 98-CV-0578, 2001 WL 135817, at *2) (W.D.N.Y. Feb. 15, 2001)). As a result, I recommend that Plaintiffs' Title VI claim against Defendants Davis, Johnson, Richardson, and Albert, be dismissed with prejudice.
With respect to Plaintiffs' Title VI claim against Defendants Cold Black River and Preservation, out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required.
D. Claims Pursuant to the Fair Housing Act (42 U.S.C. §§ 3604, 3617) Against Defendants
The Fair Housing Act (“FHA”) also provides that “it 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 [or] color.” 42 U.S.C. § 3604(b). The FHA also forbids “coerc[ing], intimidat[ing], threaten[ing], or interfer[ing] 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 . . . 3604 ....” 42 U.S.C. § 3617. “The FHA also prohibits retaliation against persons who have asserted their rights under the FHA.” Bethea v. NYCHA Law Dep't, 23-CV-0803, 2023 WL 2394116, at *2 (S.D.N.Y. Mar. 6, 2023) (citing 42 U.S.C. § 3617).
Construing the Amended Complaint liberally, Plaintiffs appear to make three separate claims pursuant to the FHA against Defendants: (1) a claim of discrimination, (2) a claim of retaliation, and (3) a claim of hostile housing environment. (See generally Dkt. No. 42.)
1. Discrimination
To set out a prima facie case of discrimination under the FHA, the plaintiffs must show that: (1) they are members of a protected class; (2) the defendants took adverse action against them; and (3) the adverse action took place under circumstances giving rise to an inference of discrimination. DeSouza v. Park W. Apartments, Inc., 15-CV-1668, 2018 WL 2990099, at *7 (D. Conn. June 14, 2018); see McCulloch v. Town of Milan, 559 Fed.Appx. 96, 98 (2d Cir. 2014) (“To establish a prima facie case of discrimination under the disparate treatment theory, ‘the plaintiff[ ] must present evidence that animus against the protected group was a significant factor in the position taken by the [defendants]'”) (internal quotation marks and citations omitted).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' FHA discrimination claim against Defendants.
2. Retaliation
The plaintiffs bear the initial burden to make their prima facie case by showing that: (1) they engaged in protected activity; (2) the alleged retaliators knew that the plaintiffs were involved in protected activity; (3) an adverse decision or course of action was taken against the plaintiffs; and (4) a causal connection exists between the protected activity and the adverse action. Reg'l Econ. Cmty. Action Program, Inc., 294 F.3d 35, 53-54 (2d Cir. 2002), superseded by statute on other grounds. A causal connection can be shown either “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow [individuals] who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Natofsky v. City of New York, 921 F.3d 337, 353 (2d Cir. 2019). The “plaintiff's burden at this prima facie stage is de minimis.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' FHA retaliation claim against Defendants. See Burris v. Hous. and Servs. Inc., 17-CV-9289, 2023 WL 1966120, at *10-11 (S.D.N.Y. Feb. 13, 2023) (holding that (1) the plaintiff engaged in protected activity by filing a “NYSDHR Complaint,” (2) a reasonable jury could conclude that an eviction constitutes an adverse action, and (3) the evidence was sufficient to establish the required causal link for a prima facie case where the adverse action occurred less than one month after the plaintiff's participation in a protected activity).
3. Hostile Housing Environment
Courts in this Circuit have construed Section 3604(b) of the FHA to prohibit the creation of a “hostile environment” by individuals who have control or authority over the “terms, conditions, or privileges of sale or rental of a dwelling.” Favourite v. 55 Halley St., Inc., 381 F.Supp.3d 266, 277 (S.D.N.Y. 2019) (citations omitted). A plaintiff asserting a hostile housing environment claim pursuant to Section 3604(b) must establish that (1) he was subjected to harassment that was sufficiently pervasive and severe so as to create a hostile housing environment, (2) the harassment was because of the plaintiff's membership in a protected class, and (3) the defendants are responsible for the allegedly harassing conduct towards the plaintiff. Favourite, 381 F.Supp.3d at 277 (citing Cain v. Rambert, 13-CV-5807, 2014 WL 2440596 at *5 (E.D.N.Y. May 30, 2014)) (internal citations omitted).
Here, the Amended Complaint appears to allege that Defendants failed to adequately ameliorate Ms. Cannon's behavior by not intervening at Plaintiffs' request. (Dkt. No. 42 at 38.) While there can be little doubt that the relations between Plaintiffs and Ms. Cannon were antagonistic, “Congress did not intend the FHA to provide a remedy for every squabble, even continuing squabbles, between neighbors ....” Lachira v. Sutton, 05-CV-1585, 2007 WL 1346913, at *20 (D. Conn. May 7, 2007) (internal quotation marks omitted). “Behavior that is rude or mean-spirited, but not discriminatory, does not fall within the ambit of the FHA.” Kalashnikov v. Myfield Lane Homeowners' Assn., Inc., 20-CV-1018, 2023 WL 1862763, at *15 (D. Conn. Feb. 9, 2023). The Amended Complaint fails to allege facts plausibly suggesting that Plaintiffs were harassed by Ms. Cannon because of their race or any other protected status or that Defendants are responsible for the allegedly harassing conduct.
As a result, I recommend that Plaintiffs' claim for hostile housing environment be dismissed for failure to state a claim upon which relief may be granted.
E. New York State Law Claims
1. New York State Human Rights Law (“NYSHRL”) a. New York Executive Law § 296(5)
The NYSHRL provides that it is unlawful discriminatory practice to refuse to (1) “sell, rent, lease or otherwise to deny . . . any person or group of persons . . . a housing accommodation because of the race . . . [or] national origin . . . of such person or persons”; (2) “discriminate against any person because of race . . . [or] national origin . . . in the terms, conditions or privileges of the sale, rental or lease of any . . . housing accommodation”; or (3) “make any record or inquiry in connection with the prospective purchase, rental or lease of . . . a housing accommodation which expresses, directly or indirectly, any limitation, specification or discrimination as to race . . . [or] national origin . . ., or any intent to make any such limitation, specification or discrimination.” N.Y. Exec. Law §§ 296(5)(a)(1)-(3), 296(5)(c)(2).
“‘Claims under the FHA and [NYS]HRL § 296 are evaluated under the same framework.'” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 80 (2d Cir. 2021) (quoting Olsen v. Stark Homes, Inc., 759 F.3d 140, 153 (2d Cir. 2014)).
For the reasons set forth above in Part III.A. of this Report and Recommendation, I recommend that a response be required to Plaintiffs' NYSHRL discrimination claims pursuant to N.Y. Exec. Law § 296(5) against Defendants.
b. New York Executive Law § 296(7)
To state a claim for retaliation under the NYSHRL, “the plaintiff must, at the very least, allege that as a result of her engagement in protected activity, the defendant engaged in conduct that was reasonably likely to deter a person from engaging in the protected activity.” Rubin v. New York City Bd. of Educ., 20-CV-10208, 2023 WL 1972729, at *19 (S.D.N.Y. Jan. 6, 2023) (citing Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)).
For the reasons set forth above in Part III.D.2. of this Report and Recommendation, I recommend that a response be required to Plaintiffs' NYSHRL retaliation claims pursuant to N.Y. Exec. Law § 296(7) against Defendants.
c. New York Executive Law § 296(6)
Claims that individual defendants aided and abetted violations of NYSHRL, in violation of N.Y. Exec. L. § 296(6), are tied to the primary NYSHRL violation. If a plaintiff is unable to establish retaliation pursuant to NYSHRL, then he likewise cannot establish liability for aiding and abetting such retaliation. See White v. Pacifica Found., 973 F.Supp.2d 363, 378 (S.D.N.Y. 2013) (collecting cases).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' aiding and abetting NYSHL discrimination and retaliation claims against Defendants.
2. New York Real Prop. Law
a. New York Real Prop. Law § 223-b
Pursuant to New York Real Prop. Law § 223-b, a landlord shall be subject to a civil action if the landlord retaliates against a tenant for actions that the tenant took in good faith to secure or enforce his/her rights. To succeed on a claim pursuant to N.Y. Real Prop. § 223-b, Plaintiffs must establish that “(1) they exercised a protected right in her conduct; (2) they had a serious, reasonable, bona fide grievance with a foundation in fact; (3) they did not create the condition; (4) the grievance was present at the time Petitioner commenced the proceeding; and (5) Petitioner's overriding reason to evict Respondents was to retaliate for exercising their constitutional rights.” Stefanis v. Cavicchio, 75 Misc.3d 1225(A), at *2 (N.Y. Westchester Cnty. Mar. 10, 2022) (citing Toms Point Apts. v. Goudzward, 72 Misc.2d 629 (N.Y. Dist. Ct. Nassau Cnty. 1972)). In addition, N.Y. Real Prop. Law § 223-b(5) “provides for a rebuttable presumption that a landlord is acting in retaliation if the tenant establishes that the landlord served a notice to quit, or institutes an action or proceeding to recover possession, within one year after a good faith complaint was made.” MKBH Mgmt. LLC v. Strachin, 72 Misc.3d 1211(A), at *4 (N.Y. City Ct. Mount Vernon July 13, 2021).
For the reasons set forth above in Part III.D.2. of this Report and Recommendation, I recommend that a response be required to Plaintiffs' retaliation claim pursuant to N.Y. Real Prop. Law § 223-b against Defendants.
b. New York Real Prop. Law § 235-b
New York Real Prop. Law § 235-b provides that “in any lease agreement for residential premises there is an implied warranty of habitability under which a landlord has a nonwaivable duty to make sure that tenants are not subjected to any conditions endangering or detrimental to their life, health or safety.” Zar Realty LLC v. Xia, 77 Misc.3d 1225(A), at *2 (N.Y. New York Cnty. Jan. 9, 2023). This duty is a condition to tenants' obligation to pay rent. See Park W. Mgmt. Corp. v Mitchell, 47 N.Y.2d 316, 327 (N.Y. 1979). Depending on the extent of a landlord's breach, tenants may be entitled to a full withholding of rent or “an abatement in their contracted-for rent,” which is measured as “the difference between the fair market value of the premises if they had been as warranted and the value of the premises during the period of the breach.” Park W. Mgmt. Corp., 47 N.Y.2d at 329.
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' breach of the warranty of habitability claim against Defendants pursuant to N.Y. Real Prop. Law § 223b.
3. Intentional Infliction of Emotional Distress (“IIED”)
In New York, to state a claim for IIED, plaintiffs must plead: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress.” Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 (N.Y. 1993). “The standard for extreme and outrageous conduct is incredibly high.” Phillips v. The Fashion Institute of Tech., 20-CV-0221, 2023 WL 2525677, at *7 (S.D.N.Y. Mar. 15, 2023). The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.” Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303 (N.Y. 1983). Due to this very high threshold, IIED claims “generally do not survive dispositive motions.” Allam v. Meyers, 09-CV-10580, 2011 WL 721648, at *6 (S.D.N.Y. Feb. 24, 2011). “Indeed, the New York Court of Appeals has rejected every claim for intentional infliction of emotional distress it has considered because the conduct was not sufficiently outrageous or extreme.” Phillips, 2023 WL 2525677, at *7) (citing Howell, 81 N.Y.2d at 122). The few claims upheld by the Appellate Divisions have involved “longstanding campaign[s] of deliberate, systematic, and malicious harassment.” Seltzer v. Bayer, 272 A.D.2d 263, 264 (N.Y.App.Div. 1st Dep't 2000).
The actions alleged in the Amended Complaint do not approach the type of egregious conduct necessary to support a claim for intentional infliction of emotional distress. Courts have repeatedly declined to hold behavior such as threats to be extreme and outrageous. See e.g., Walther v. Maricopa Int'l Inv., Corp., 97-CV-4816, 1998 WL 689943, at *4 (S.D.N.Y. Sept. 30, 1998) (repeated verbal threats such as “c[***]sucker you're gonna pay” fell short of “extreme and outrageous” threshold); Torain v. Casey, 16-CV-2682, 2016 WL 6780078, at *2 (S.D.N.Y. Sept. 16, 2016) (threat to break plaintiff's jaw insufficient to establish IIED), report and recommendation adopted, 2016 WL 6775440 (S.D.N.Y. Nov. 14, 2016); Saleh v. United States, 12-CV-4598, 2013 WL 5439140, at *11-12 (S.D.N.Y. Sept. 27, 2013) (defendant's threats and plaintiff's resulting fear “that at any moment he could be attacked physically or harassed[,] . . . kidnapped[,] or even killed” did not rise to required level of conduct), aff'd, 580 Fed.Appx. 22 (2d Cir. 2014); Owen v. Leventritt, 174 A.D.2d 471, 472 (N.Y.App.Div. 1st Dep't 1991) (threat to kill pregnant plaintiff insufficient to support a cause of action for IIED). It follows that the much less heinous conduct alleged here also fails to constitute “extreme and outrageous” behavior. As a result, I recommend that Plaintiffs' IIED claim be dismissed for failure to state a claim upon which relief may be granted.
4. Breach of Contract
“[I]n order to establish a claim for breach of contract, a plaintiff must prove, by a preponderance of the evidence, (1) the existence of a contract between itself and that defendant, (2) performance of the plaintiff's obligations under the contract, (3) breach of the contract, and (4) damages to the plaintiff caused by the defendant's breach.” OOCL (USA) Inc. v. Transco Shipping Corp., 13-CV-5418, 2015 WL 9460565, at *4 (S.D.N.Y. Dec. 23, 2015) (citation omitted).
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiffs can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiffs' breach of contract claim against Defendants.
IV. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to replead is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
Out of deference to Plaintiffs' pro se status, the undersigned previously recommended that they be permitted to amend their Complaint. (Dkt. No. 8 at 22-24.) However, at this juncture, Plaintiffs have already amended the complaint after the Court's analysis identifying the deficiencies in the Complaint. (See generally docket sheet.) “In general, a plaintiff's failure to fix deficiencies in the previous pleading, after being provided notice of them, is alone sufficient ground to deny leave to amend.” Sherman v. Yonkers Public Schs., 21-CV-7317, 2023 WL 137775, at *11 (S.D.N.Y. Jan. 9, 2023) (citing Nat'l Credit Union Admin. Bd. v. U.S. Bank Nat'l Ass'n, 898 F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the deficiencies in his complaint when he first amended, he clearly has no right to a second amendment even if the proposed second amended complaint in fact cures the defects of the first. Simply put, a busy district court need not allow itself to be imposed upon by the presentation of theories of seriatim.”); In re Eaton Vance Mut. Funds Fee Litig., 380 F.Supp.2d 222, 242 (S.D.N.Y. 2005) (denying leave to amend because “the plaintiffs have had two opportunities to cure the defects in their complaints, including a procedure through which the plaintiffs were provided notice of defects in the Consolidated Amended Complaint by defendants and given a chance to amend their Consolidated Amended Complaint,” and “plaintiffs have not submitted a proposed amended complaint that would cure these pleading defects”), aff'd sub nom.; Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) (per curiam) (“[P]laintiffs were not entitled to an advisory opinion from the Court informing them of the deficiencies in the complaint and then an opportunity to cure those deficiencies.”)). As a result, I recommend that the following four claims be dismissed without leave to replead: (1) the claim pursuant to 29 U.S.C. § 794 against Defendants; (2) the claim pursuant to 42 U.S.C. § 2000d against Defendants Davis, Johnson, Richardson, and Albert; (3) the claim pursuant to the FHA alleging hostile housing environment against Defendants; and (4) the intentional infliction of emotional distress claim against Defendants.
ACCORDINGLY, it is
RECOMMENDED that the Court ACCEPT FOR FILING and require an answer to Plaintiffs' Amended Complaint (Dkt. No. 42) to the extent that it asserts the following nine claims: (1) a claim pursuant to 42 U.S.C. § 1981 against Defendants; (2) a claim pursuant to 42 U.S.C. § 1982 against Defendants; (3) a claim pursuant to 42 U.S.C. § 2000d against Defendants Preservation and Cold Black River; (4) a claim pursuant to the FHA alleging discrimination against Defendants; (5) a claim pursuant to the FHA alleging retaliation against Defendants; (6) claims pursuant to N.Y. Exec. Law §§ 296(5-7) alleging discrimination and retaliation against Defendants; (7) a claim pursuant to N.Y. Real Prop. Law § 223-b against Defendants; (8) a claim pursuant to N.Y. Real Prop. Law § 235-b against Defendants; and (9) a claim of breach of contract pursuant to New York common law against Defendants; and it is further respectfully
RECOMMENDED that the Court DISMISS WITHOUT LEAVE TO REPLEAD
Plaintiffs' Amended Complaint (Dkt. No. 42) to the extent that it asserts the following four claims: (1) a claim pursuant to 29 U.S.C. § 794 against Defendants; (2) a claim pursuant to 42 U.S.C. § 2000d against Defendants Davis, Johnson, Richardson, and Albert; (3) a claim pursuant to the FHA against Defendants alleging a hostile living environment; and (4) a claim pursuant to New York common law alleging intentional infliction of emotional distress against Defendants, because it fails to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiffs with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).