Opinion
99 Civ. 3227 (JGK)
July 15, 2002
OPINION AND ORDER
The plaintiffs, Anita Phocas Sibersky and Alex Sibersky, bring this action against their former landlord, Felds Realty, L.L.C. ("Felds Realty"), their former landlord's law firm and one of its lawyers, Borah, Goldstein, Altschuler Schwartz, P.C. ("Borah Goldstein") and Stephen C. Shulman, Esq., respectively, and a number of individual defendants associated with Felds Realty: Doris Feldstein, Zev M. Feldstein, Jack M. Feldstein, David J. Feldstein, Mala E. Feldstein, and the Estate of Abraham Feldstein, Doris Feldstein Executrix (collectively, the "individual Feldstein defendants"). The plaintiffs allege five causes of action: (i) that Felds Realty discriminated against Mrs. Sibersky because of her race, sex, and familial status in violation of the Fair Housing Act, 42 U.S.C. § 3604(a)-(c), by denying her basic living accommodations at her rental apartment, refusing to repair the apartment, and forcing her to sign a release rider making her the sole tenant on the lease; (ii) that Felds Realty breached the implied warranty of habitability, harassed her and her family in order to induce her to leave the apartment, placed unlawful occupancy restrictions on her apartment, and restricted her ability to name her children as assignees on her lease in the event of her death, because of her race, sex and familial status in violation of the same provisions of the Fair Housing Act; (iii) that Felds Realty defrauded the plaintiffs by intentionally making a number of false promises that it would make certain repairs to the apartment, which Felds Realty knew it never intended to fulfill; (iv) that Felds Realty unlawfully converted Mrs. Sibersky's security deposit by refusing to return it to her in violation of New York General Obligations Law § 7-105; and (v) that Borah Goldstein engaged in a number of abusive debt collection practices in violation of the Fair Debt Collection Practices Act ("FDCPA"), 18 U.S.C. § 1692 et seq., in order to collect debts allegedly owed by Mrs. Sibersky to Felds Realty.
The plaintiffs allege that each of these acts are unlawful under New York State Real Property Law, even without discrimination, but their second cause of action states a claim for discrimination under the Fair Housing Act, not for violation of these underlying state laws. See, e.g., N.Y. Real Prop. § 235-b (implied warrant of habitability); N.Y. Real Prop. § 235-d (prohibiting harassment to induce a tenant to leave a rental situation); N.Y. Real Prop. § 235-f (prohibiting certain restrictions on the occupancy of apartments); N.Y. Real Prop. § 236 (requiring that tenants be allowed to assign their leases to family members in certain circumstances).
Felds Realty and the individual Feldstein defendants move to dismiss all of the claims against them pursuant to Rules 8 and 12(b)(6) for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment dismissing these claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiffs purport to cross-move for partial summary judgment on a number of their claims.
I.
On a motion to dismiss, the allegations in the Third Amended Complaint are accepted as true. See Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998); VTech Holdings Ltd v. Lucent Techs. Inc., 172 F. Supp.2d 435, 437 (S.D.N.Y. 2001). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, a motion to dismiss should only be granted if it appears that the plaintiffs can prove no set of facts in support of their claims that would entitle them to entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Grandon, 147 F.3d at 188; see also Goldman, 754 F.2d at 1065.
In deciding a motion to dismiss, the Court may consider documents referred to in the Third Amended Complaint and documents that the plaintiffs relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of in bringing suit. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer Pincus Assoc., P.C. v. Oppenheimer Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991); Skeete v. IVF America, Inc., 972 F. Supp. 206, 208. The Court may also consider "matters of which judicial notice may be taken." See Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). Thus, it is appropriate to consider public documents on a motion to dismiss. See, e.g., Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992); Bal v. New York City Loft Board, No. 00 Civ. 1112, 2000 WL 890199, at *2 (S.D.N.Y. July 5, 2000).
If, however, the defendants' arguments depend upon an evaluation of documents that cannot be considered on a motion to dismiss, then the motion is converted into a motion for summary judgment. See Fed.R.Civ.P. 12(b). The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219 (2d Cir. 1994); Shaw v. Rizzoli Int'l Publ'ns, Inc., No. 96 Civ. 4259, 1999 WL 160084, at *1, (S.D.N.Y. Mar. 23, 1999). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224.
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will determine those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, 369 U.S. 654, 655 (1962)); Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs., 43 F.3d 29, 37 (2d Cir. 1994).
Where, as here, both parties seek summary judgment, the Court must "'evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.'" Abrams v. United States, 797 F.2d 100, 103 (2d Cir. 1986) (quoting Schwabenbauer v. Bd. of Educ., 667 F.2d 304, 314 (2d Cir. 1981)).
II.
The Court has already set forth a number of the relevant factual allegations in this case in a previous Opinion and Order, familiarity with which is assumed. See Sibersky v. Borah, Goldstein, Altschuler Schwartz, P.C., No. 99 Civ. 3227, 2000 WL 1448635, at *1-3 (S.D.N.Y. Sep. 28, 2000) [hereinafter Sibersky I]. Unless otherwise indicated, the following facts are either undisputed, are matters of public record, or are alleged in the Third Amended Complaint (the "Complaint") and are accepted as true for the purpose of the motion to dismiss.
Mrs. Sibersky is a Hispanic woman. Compl. ¶ 1. In or about January 26, 1979, she began renting an apartment at 301 West 22nd Street in New York, New York from the defendant Felds Realty. Compl. ¶ 3. Mrs. Sibersky subsequently married Alex Sibersky, who moved into the apartment with her. All of the allegedly wrongful conduct alleged in the Complaint purportedly occurred in the context of this landlord-tenant relationship between January 26, 1979 and in or about June 1999, when the plaintiffs ultimately moved out of the apartment. See Affidavit of Edward R. Adams dated December 2, 2001 ("Adams Aff."), at ¶¶ 3, 10; see generally Adams Aff. ¶¶ 1-11; Compl. ¶¶ 4-20 22.
The Complaint alleges that beginning in 1995, a number of problems began to arise in the apartment, which were not adequately repaired. Compl. ¶¶ 4-7. After repeated complaints to Felds Realty, and Felds Realty's repeated failures to fulfill promises to make the needed repairs, the plaintiffs, on or about July 10, 1998, filed an action against Felds Realty in the New York State Civil Court and began making their rent payments into an escrow account with that Court. Compl. ¶ 13. On or about July 30, 1998, the New York City Department of Housing Preservation and Development issued a report of twelve violations against Felds relating to the apartment, and the New York State Civil Court subsequently issued an order to Felds Realty to make repairs. Compl. ¶ 15. The parties dispute the ensuing events, and who exactly was responsible for any continuing problems and conditions with the apartment, but it is clear that problems continued, payments were not made, and relations between the parties deteriorated.
In September 1998, Borah Goldstein, the law firm for the plaintiff, allegedly served the plaintiffs with two three-day notices, which demanded that the plaintiffs make certain rental payments or surrender their premises to Felds Realty within three days or Felds Realty would commence summary proceedings against the plaintiffs to recover the premises. Compl. ¶ 16. On October 8, 1998, Felds filed an action to dispossess the plaintiffs of the apartment for non-payment of rent. Id.
On May 18, 1999, Borah Goldstein commenced a separate holdover proceeding on behalf of Felds Realty against Mrs. Sibersky, as the tenant at 301 West 22nd Street, and Mr. Sibersky, as an occupant, on the grounds that they were allegedly (1) violating housing code regulations by refusing access to the apartment to make repairs; and (2) breaching the lease by maintaining the apartment in an unsanitary condition. See Sibersky I, 2000 WL 1448635, at *3 As defenses to these charges, the plaintiffs alleged that Felds Realty unlawfully discriminated against them on the basis of race, national origin, sex, age and marital status, see Answer to Holdover Complaint ("Ans."), at ¶ 13, attached as Ex. C to Weil Aff.; that Felds Realty retaliated against them for asserting their rights as tenants or occupants, id at ¶ 14; that Felds Realty consistently failed to make needed repairs, id. at §§ XV-XVIII, XVI; and consistently failed to make promised repairs, even when under court orders, id. at §§ IX-X; that Felds Realty engaged in a number of deliberate, affirmative and destructive acts and negligent acts, id. at § XIII; and that Felds Realty breached the implied warrant of habitability relating to the apartment, id. at ¶ 16 § XVIV.
On June 23, 1999, Mrs. Sibersky entered into a stipulation of settlement with Felds Realty in these holdover proceedings, in which she consented to an entry of judgment of possession against her in exchange for which the landlord waived all claims to back rent and paid her a sum of $7,000. See Stipulation of Settlement dated June 23, 1999 ("Stipulation"), attached as Ex. A to Affirmation of Judith H. Weil dated October 17, 2001 ("Weil Aff."). Paragraph Seven of the Stipulation reads: The plaintiff Mrs. Sibersky "hereby grants [Felds Realty] its agents and employees a complete and general release of all claims arising from the beginning of time to date." Stipulation ¶ 7. The Stipulation was signed by Mr. John DeMaio, who was Mrs. Sibersky's attorney at the time. See Sibersky I, 2000 WL 1448635, at *3 On June 25, 1999, Mr. Sibersky signed a Mutual General Release with Felds Realty, which specifically did "not include a Release of Attorneys for Felds Realty Co., LLC, notwithstanding Paragraph 7 of the Stipulation." See Mutual General Release ("Mutual Release"), attached as Ex. B to Weil Aff.
The plaintiffs filed their initial Complaint in this action before these settlements had been executed, and the original Complaint raised claims only against Borah Goldstein and Stephen C. Shulman. However, on August 17, 2001, after their Second Amended Complaint was dismissed without prejudice, and after several other repleadings, the plaintiffs filed the currently-dubbed "Third Amended Complaint," which adds claims against Felds Realty and the individual Feldstein defendants. These defendants (collectively, the "Feld defendants") are the sole moving parties with respect to the current motions.
III.
The individual Feldstein defendants argue that all of the claims against them should be dismissed pursuant to Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a) states, in relevant part, that any pleading that sets forth a claim for relief "shall contain . . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The rule requires simply that plaintiffs provide defendants with fair notice of what their claims are and the grounds upon which they rest. See generally Swierkiewicz v. Sorema N.A., 122 S.Ct. 992, 998 (2002).
In this case, the Third Amended Complaint names the individual Feldstein defendants only in the caption, and it does not mention them at all in the body of the Complaint. The Complaint does not attribute any wrongful actions to them, and does not identify any theory under which they might be liable for the acts of any of the other defendants. Indeed, the Complaint specifies that the first four causes of action are against Felds Realty, and the last is against Borah Goldstein, and the plaintiffs have not even responded to the defendants' arguments that the claims against the individual Feldstein defendants should be dismissed under Rule 8(a).
In these circumstances, the plaintiffs have not met the minimal standards for notice pleading with regard to their purported claims against the individual Feldstein defendants. Any such claims are dismissed under Rule 8(a).
IV.
The Feld Defendants argue that Mrs. Sibersky waived all of the claims she seeks to raise against them in this case by executing the general release in the Stipulation. To the extent that Mrs. Sibersky is raising federal claims, the validity of the release with respect to these claims is a matter of federal law. See, e.g., Dice v. Akron, Canton Youngstown R. Co., 342 U.S. 359, 361 (1952); Olin Corp. v. Consolidated Aluminum Corp., 5 F.3d 10, 15 (2d Cir. 1993); Prunella v. Carlshire Tenants, Inc., 94 F. Supp.2d 512, 517 (S.D.N.Y. 2000). Under federal law, courts should, however, look to state law to provide the content of the relevant federal law. See Olin Corp., 5 F.3d at 15; Prunella, 94 F. Supp.2d at 517; Leonzo v. First Unum Life Ins. Co., No. 93 Civ. 535, 1995 WL 505551, at *3 (S.D.N.Y. Aug. 23, 1995). The scope and validity of the general release with respect to the state law claims that Mrs. Sibersky raises is similarly governed by state law, which is New York law in this case, there being no other state with any connection to the release. See, e.g., Calabrese v. McHugh, 170 F. Supp.2d 243, 253 (D. Conn. 2001).
Under New York law, courts must "discern the intent of the parties to the extent that their intent is evidenced by their written agreement." Olin Corp., 5 F.3d at 15 (internal quotation marks omitted). The meaning and coverage of a general release also necessarily depends upon the controversy being settled and the purpose for which the release was given; a release may not be read to cover matters that the parties did not intend to cover. Cahill v. Regan, 157 N.E.2d 505, 510 (N.Y. 1959); Lefrak SBN Assocs. v. Kennedy Galleries, Inc., 609 N.Y.S.2d 651 (App. Div. 1994). In this case, Mrs. Sibersky executed a general release with very broad language, stating that she "hereby grants [Felds Realty] its agents and employees a complete and general release of all claims arising from the beginning of time to date." Stipulation ¶ 7 (emphasis added). The purpose of the release was to settle a number of disputes between her and Felds Realty that had arisen out of their landlord-tenant relationship, including not only the holdover proceedings but also a number of other litigations that had arisen between the parties as part of the same landlord-tenant relationship and any other disputes relating to these events to date between them. The claims that Mrs. Sibersky had asserted against Felds Realty were very broad. If the release were intended to exclude any particular kinds of claims or disputes arising out of this relationship or events, it could have easily done so, but it did not. See, e.g., Goldberg v. Mfrs. Life Ins. Co., 672 N.Y.S.2d 39, 43-44 (App.Div. 1998); see also Matter of Schaefer, 221 N.E.2d 538, 540 (N.Y. 1966).
By executing a general release with this broad language, Mrs. Sibersky released not only the claims that were specifically in dispute in that action, and in the other actions referenced explicitly in the Stipulation, but also any claims that could have been raised against Felds Realty or its agents or employees at that time. Williamson Cent. Sch. Dist. v. E L Piping, Inc., 690 N.Y.S.2d 352, 353 (App Div. 1999); Mar Co. Export, Inc. v. Banco De Santander — Puerto Rico, 470 N.Y.S.2d 4, 5-6 (App.Div. 1984); Skylon v. Guildford Mills, Inc., 864 F. Supp. 353, 358 (S.D.N.Y. 1994). Mrs. Sibersky raised the exact same claims that she now raises in Counts One and Two as defenses in her holdover proceedings, because she raised defenses based on discrimination, violations of the implied warranty of habitability, and denial of repairs and basic living accommodations. These claims are therefore waived by the general release. Mrs. Sibersky also could have raised her claims for fraud based on the allegation that Felds Realty had made a series of promises to make repairs that it never intended to keep, and could have raised her claims under the FDPCA (Count Five), all of which arise out of facts that were known to her at the time and that were integrally related to her disputes with Felds Realty. Indeed, Mrs. Sibersky had already raised FDPCA claims against Borah Goldstein, and had raised claims for failure to fulfill promised repairs against Felds Realty. These claims against Felds Realty are therefore also waived by the general release. See, e.g., Krumme v. Westpoint Stevens Inc., 238 F.3d 133, 144-45 (2d Cir. 2000) (an unambiguous release must be enforced according to its terms).
In any event, the claim in Count Five does not specifically identify any of the Feld defendants as defendants, and instead identifies Borah Goldstein as the relevant defendant.
Mrs. Sibersky's only remaining claim against the Feld defendants is for return of her security deposit (Count Three), which she argues did not arise until after the settlement had been executed. However, Mrs. Sibersky could have raised the issue of return of her security deposit as part of her negotiations of the Stipulation, and the Stipulation was plainly intended to be a global settlement of the entire range of disputes that had arisen between the parties, which would allow Felds Realty to obtain full possession of the premises in return for $7,000, and for both parties to thereby terminate their prior landlord-tenant relation, along with any further obligations under the lease. The Stipulation contained a number of detailed provisions concerning the parties' obligations going forward, and these provisions were clearly intended to supplant those of the prior lease, except in the event of a default under the Stipulation. See, e.g., Stipulation ¶¶ 10-12. The Stipulation did not give Mrs. Sibersky the right to return of her security deposit as part of this global settlement, and there is no basis for the assertion that such a right survived the Stipulation.
Moreover, the Stipulation also stated that "claims and counterclaims and defenses in all proceedings, including holdover proceedings index #75303/99 and HP action 5332/98, 5002/99 and Supreme Ct #121638/98 action are dismissed with prejudice." Mrs. Sibersky had raised the same claims she raises in Counts One and Two of this action for discrimination relating to her treatment as a tenant and the living conditions in her apartment in those holdover proceedings. Under New York law, a stipulation of discontinuance with prejudice has the same preclusive effect as a judgment on the merits under New York law, and these counts are therefore barred by the doctrine of res judicata. See Elias v. Albanese, No. 00 Civ. 2219, 2000 WL 1182803, at *4 (S.D.N.Y. Aug. 21, 2000). Mrs. Sibersky also raised defenses in those holdover proceedings relating to Felds Realty's failure to fulfill promises to make repairs, and these claims were also discontinued with prejudice. Mrs. Sibersky's claims for fraud in Count Four of this case, which are all predicated on allegations that these very same promises went unfulfilled, are thus also barred by res judicata. See, e.g., Schwartzreich v. E.P.C. Carting Co. Inc., 668 N.Y.S.2d 370, 370 (App.Div. 1998). Finally, "New York law analyzes res judicata questions using a transactional approach. Once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred even if based upon different theories or if seeking a different remedy." Id. (internal quotation marks and alteration marks omitted). All of the claims Mrs. Sibersky raises against Felds Realty arise out of the same transaction or series of transactions as the ones she discontinued with prejudice in the Stipulation, and all of her present claims against Felds Realty are thus barred by res judicata.
Mrs. Sibersky tries to create a material issue of fact by arguing that the Stipulation was invalid because it was signed only by her attorney, who allegedly lacked the authority to sign on her behalf. It is unnecessary to reach this issue in this case, however, because the settlement was indisputedly executed in open court by an attorney who Mrs. Sibersky had retained to represent her during these litigation and settlement proceedings, and Mrs. Sibersky has not pointed to any evidence indicating that she ever represented to Felds Realty or to the court that oversaw those proceedings that her attorney lacked the authority to enter into a settlement on her behalf. Mrs. Sibersky thus cloaked her attorney with apparent authority to execute the Stipulation as a matter of law. See generally Hallock v. State, 474 N.E.2d 1178, 1181-82 (N.Y. 1984). Mrs. Sibersky also never sought to repudiate the agreement until at least April 16, 2001, when she raised claims in this action for the first time against the Feld defendants, and, instead, indisputedly accepted the benefits of the $7,000 payment and left the apartment in accordance with the Stipulation. In these circumstances, the Stipulation need only have been signed by someone with apparent authority to have been binding. See id. at 1181. In any event, Mrs. Sibersky ratified the Stipulation through her subsequent actions. See, e.g., Johnson v. Johnson, 594 N.Y.S.2d 259, 260-61 (App.Div. 1993).
In sum, Mrs. Sibersky is bound by the general release in the Stipulation, and, in it, she waived all of the claims she presently seeks to raise against Felds Realty. In addition, all of her claims against Felds Realty are barred by the doctrine of res judicata because of her Stipulation to a discontinuance with prejudice of her prior claims and defenses. To the extent that Mrs. Sibersky sought to raise any claims against the Feldstein defendants as agents or employees of Felds Realty, these claims are also barred by the general release because this release explicitly extends to "agents and employees" of Felds Realty.
V.
With regard to the claims raised by Alex Sibersky, Mr. Sibersky entered into a general release with Felds Realty that stated that "ALEX SIBERSKY and FELDS REALTY CO., LLC, hereby mutually release each other, their agents, employees, and servants from all claims that they have had against the other or could have brought against the other from the beginning of time through the date of this execution of this agreement." General Release, attached as Ex. B to Weil Aff. The release made a specific exception for the "Attorneys for Felds Realty Co., LLC, notwithstanding Paragraph 7 of the Stipulation" entered into by Mrs. Sibersky. However, none of the attorneys for Felds Realty are parties to this motion, and Mr. Sibersky's release has the same broad scope as Mrs. Siberksy's in relation to his claims against the Feld defendants in this case. These claims by Mr. Sibersky are therefore also dismissed.
VI.
The plaintiffs purport to cross-move for partial summary judgment on a number of their claims. However, the plaintiffs were represented by counsel at the time of this filing, and the filing is signed by them, rather than by their counsel. When parties are represented by counsel, all papers must be submitted through their attorneys and signed under Rule 11 of the Federal Rules of Civil Procedure, unless the Court otherwise determines. See Fed.R.Civ.P. 11. The plaintiffs' cross-motion is stricken because it fails to meet those Rule 11 requirements.
In any event, the purported cross-motion is nearly incomprehensible. To the extent that it seeks partial summary judgment on any of the claims against the Feld defendants, the motion is denied because, for the reasons discussed above, it is the Feld defendants who are entitled to either summary judgment or dismissal of all these claims against them. To the extent that the motion was intended to have any bearing on the claims against Borah Goldstein or Stephen C. Shulman (the "Borah defendants"), the plaintiffs have recently substituted new counsel, who can raise any arguments or motions on their, behalf against the Borah defendants.
CONCLUSION
For the foregoing reasons, the Feld defendants' motion to dismiss or for summary judgment dismissing all the claims against them is granted in its entirety.
SO ORDERED.