Oksen v. Fort Drum Mountain Community Homes, LLC et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Natalie J. Oksen,
Plaintiff,
v. 5:25-CV-822
(AJB/MJK)
Fort Drum Mountain Community Homes, LLC., et. al.,
Defendant.
_____________________________________________________________________
Natalie J. Oksen, Pro Se Plaintiff
Mitchell J. Katz, U.S. Magistrate Judge
To the Honorable Anthony J. Brindisi, U.S. District Judge:
REPORT- RECOMMENDATION
Oksen began this action on June 25, 2025, by filing a Complaint,
and moving for leave to proceed in forma pauperis (“IFP”). (Dkts. 1, 2).
The Clerk sent her Complaint and IFP application to this Court for
review. (Dkts. 1, 2). After reviewing the Complaint, this Court
recommended the District Court dismiss the Complaint in its entirety
without prejudice and with leave to amend. (Dkt. 6). The District Court
adopted that recommendation in its entirety. (Dkt. 8). Months later,
Oksen has filed an Amended Complaint, which this Court now reviews
for its sufficiency. (Dkt. 17).
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I. BACKGROUND
Around May 2022, Oksen, who suffers from “disabilities affecting
neurological, autoimmune, gastrointestinal, psychiatric, and
thermoregulatory functioning,” requested disability accommodations
from Defendants.1 (Amended Complaint, Dkt. 17, at ¶19). In this
request, Oksen asked Defendants to provide her with “a two-bedroom,
one-and-a-half-bath home to permit separation of work and living space,
non-carpeted flooring, and housing that was recently renovated or
newer construction.” (Id. at ¶21). She also asked Defendants to provide
her with “housing without shared walls or common interior areas.” (Id.
at ¶22). Oksen submitted medical documentation along with her
request. (Id. at ¶20).
On February 1, 2023, Defendants approved, in part, and rejected,
in part, Oksen’s accommodations request. (Id. at ¶¶24-28). Specifically,
Defendants denied Oksen’s “request for housing without shared walls
and for recently renovated [housing] or newer construction” housing
because the “accommodations were not reasonable . . . and granting
1 Defendants refer to all defendants, which includes. Fort Drum Mountain
Community Homes, LLC, Fort Drum Mountain Community Homes Property
Management, WinnCompanies, WinnResidential Military Housing Services,
Lendlease, and Centinel. See (Amended Complaint, Dkt. 17, at ¶17).
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them would constitute an undue hardship and a fundamental alteration
to Defendant’s housing program.” (Id. at ¶¶25, 26). Oksen does not
identify the approved accommodations. See (Id. at ¶¶24-28). After
partially approving and denying the request, Defendants “closed upon
[Oksen’s] execution of the lease and move-in to the assigned housing
unit.” (Id. at ¶28).
Eight months later, Oksen submitted a new reasonable
accommodations request, noting that her housing placement has
“caused adverse impacts to her health, employment, and daily
functioning.” (Id. at ¶¶29-31). Defendants again approved, in part, and
rejected, in part, Oksen’s second accommodations request. (Id. at ¶33-
34). Defendants approved Oksen’s request for “a standalone, single-
story, handicap-adaptable home” with “related features” but denied
other aspects of the request. (Id. at ¶33, 34). Defendants then sought
additional documents from Oksen’s doctor. (Id. at ¶35). Defendants
notified Oksen although her request was partially approved, “the
approved unit was not yet ready for occupancy” and no timeline was
provided (Id. at ¶¶37,38).
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At some point, Oksen filed complaints with the New York State
Human Rights Division and a Complaint with this Court. (Id. at ¶40).
In October 2025, Defendants conducted a walkthrough inspection
of Oksen’s apartment. (Id. at ¶54). During the walkthrough, Defendants
found Oksen’s apartment to be following their pet policy; on November
8, 2025, they issued a letter stating such. (Id.). But on December 5,
2025, Defendants issued Oksen a citation and fine “related to a dog
licensing or animal compliance issue.” (Id. at ¶42). “The notice asserted
that Defendants had attempted prior contact[.]” (Id.). The notice also
notified Oksen that she had until December 12, 2025 to come into
compliance with the pet policy or she would lose the ability to house a
pet, or her lease may be terminated. (Id.). On December 19, 2025,
Defendants issued Oksen another warning notice. (Id. at ¶46). In that
notice, Defendants directed Oksen to “permanently remove the 4
additional dogs.” (Id.). Finally, on December 29, 2025, Defendants tried
to conduct another inspection of Oksen’s home to see if she complied
with the December 19 notice. (Id. at ¶58).
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II. STANDARD OF REVIEW
In addition to determining whether plaintiffs meet the financial
criteria to proceed IFP, courts must also review the sufficiency of the
allegations in the complaint under 28 U.S.C. § 1915. That statute
requires a court to dismiss a case—at any time—if it determines that
the action is (1) frivolous or malicious; (2) fails to state a claim on which
relief may be granted; or (3) seeks monetary relief against a defendant
who is immune from such relief. See 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must
consider whether the complaint lacks an arguable basis in law or in
fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on
other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); 28
U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent
abuses of court process and to discourage the waste of judicial
resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802,
804 (8th Cir. 1974).
To be sure, courts have a duty to show liberality toward pro se
litigants and must use extreme caution when sua sponte dismissing pro
se complaints before adverse parties have been served and had an
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opportunity to respond. See Fitzgerald v. First E. Seventh St. Tenants
Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may
dismiss a frivolous complaint sua sponte even when plaintiff has paid
the filing fee). But courts still have a responsibility to determine that a
claim is not frivolous before permitting a plaintiff to proceed. See id.
III. DISCUSSION
Below, the Court examines the Amended Complaint and
recommends the District Court:
1. dismiss Oksen’s FHA §3604(f) claim with prejudice and
without leave to amend;
2. dismiss Oksen’s FHA §3617 claim without prejudice and
with leave to amend; and
3. decline to exercise supplemental jurisdiction over the
state law claims.
A. The District Court should dismiss Oksen’s FHA §3604(f)
claim because the Complaint does not plausibly allege a
violation.
“The FHA makes it unlawful to discriminate in the sale or rental
or otherwise make unavailable or deny, a dwelling to any renter
because of a” disability.2 CNY Fair Hous., Inc. v. WellClover Holdings
2 While the statute uses the phrase handicapped, the Court uses the phrase
disabled (and attempts to limit the use of the word handicapped) to avoid using
language persons with disabilities may find offensive.
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LLC, 738 F. Supp. 3d 175, 190 (N.D.N.Y. 2024) (Sannes C. J.) (quoting
42 U.S.C. § 3604(f)(3)(B)) (cleaned up). “Discrimination includes a
refusal to make reasonable accommodations in rules, policies, practice,
or services when such accommodations may be necessary to afford such
persons equal opportunity to use and enjoy a dwelling.” Id. (cleaned up).
Plaintiffs “may establish discrimination under the FHA under one of
three theories: disparate treatment, disparate impact, or failure to
make reasonable accommodations.” Hevner v. Vill. E. Towers, Inc., 06-
CIV-3983, 2011 WL 666340 at * 2 (S.D.N.Y. Feb. 7, 2011). To prevail on
a reasonable accommodation theory, plaintiffs must allege: (1) they are
“handicapped” within the meaning of 42 U.S.C. § 3602(h); (2) the
“defendant knew or should have known of” the plaintiff’s disability; (3)
the “accommodation is necessary to afford the” disabled “person an
equal opportunity to use and enjoy the dwelling;” (4) the
“accommodation is reasonable”; and (5) “the defendant refused to make
the requested accommodations.” Id. (cleaned up). “Reasonable
accommodation claims under the NYSHRL . . . are evaluated under the
same framework as claims brought under the FHA.” CNY Fair Hous.,
Inc., 738 F. Supp. 3d. at 191.
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Oksen’s Amended Complaint does not plausibly allege element
one. To be considered disabled under the FHA, the plaintiff must have
an “impairment which substantially limits one or more of” their “major
life activities.” 42 U.S.C. § 3602(h)(1). In her Amended Complaint,
Oksen notes that she has “disabilities affecting neurological,
autoimmune, gastrointestinal, psychiatric, and thermoregulatory
functioning,” which “substantially limit major life activities, including
walking, regulating body temperature, sleeping, working/concentrating,
navigating stairs, and safely occupying residential housing.” (Amended
Complaint, Dkt. 17, pg. 2, at ¶15-16). But that is not enough to
plausibly allege an impairment under the FHA. Cf. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements do not
suffice.”) (cleaned up). Oksen needs to at least name her ailments to
plausibly allege a disability under the FHA. See, e.g., Oksen v. Fort
Drum Mountain Cmty. Homes, LLC, No. 25-CV-822 (AJB/MJK), 2025
WL 2106702, at *5 (N.D.N.Y. July 25, 2025) (cleaned up) (finding that
Oksen plausibly alleged element one where she pleaded that she suffers
from “benign idiopathic intracranial hypertension; polycystic ovary
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syndrome; major depressive disorder; epilepsy; chronic daily migraines;
migralepsy; keratoconus; gastroparesis; and irritable bowel disease as
her disabilities.”) As a result, Oksen’s Amended Complaint—which
omits information from the original pleading—does not plausibly allege
element one.3
Oksen’s Complaint plausibly alleges element two. To plead
element two, Oksen needs to plausibly allege that Defendants knew or
should have known of her disability. See Hevner, 2011 WL 666340 at *2.
The Amended Complaint does so. Oksen submitted a request for
reasonable accommodations to Defendants’ housing office and Oksen
included medical documentation to support her request. (Amended
Complaint, Dkt. 17, at ¶¶ 19-21. Defendants also requested more
medical documents, showing that they knew of her disability. (Amended
Complaint, Dkt. 17, at ¶ 35). As a result Oksen’s Amended Complaint
plausibly alleges the second element.
3 Amended Complaints “completely replace,” they do “not supplement , the original
complaint.” Evans v. Absolute Results, No. 21-CV-00280 (LLS), 2021 WL 603227, at
*4 (S.D.N.Y. Feb. 12, 2021). So Oksen’s removal of facts harms her Amended
Complaint.
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In contrast, Oksen’s Amended Complaint does not plausibly allege
element three. In her first request, Oksen requested “a two-bedroom,
one-and-a-half bath home to permit separation of work and living space,
non-carpeted flooring, . . . housing that was recently renovated[,]” and
“housing without shared walls or common interior areas due to
disability-related limitations that made shared living environments
unsuitable.” (Amended Complaint, Dkt. 17, at ¶21-22). In her second
accommodations request, Oksen requested “a standalone, single-story,
handicap-adaptable home and related features.” (Amended Complaint,
Dkt. 17, at ¶33). Yet the Amended Complaint fails to explain how any of
these accommodations are necessary for Oksen’s equal opportunity to
use and enjoy the dwelling. Contrast with CNY Fair Hous., Inc., 738 F.
Supp. 3d. at 191. (Finding that designated parking was necessary to
afford the plaintiffs—who all had disabilities that impair their
mobility—equal opportunity to use and enjoy their apartments). In
consequence, Oksen’s Amended Complaint does not allege element
three.
Even assuming the accommodations were reasonable because
Defendants tried to comply, Oksen’s Amended Complaint does not
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plausibly allege element five. Oksen’s Amended Complaint notes that
Defendants approved some of her accommodations and denied others
because “it would constitute an undue hardship and a fundamental
alteration of Defendant’s housing program.” (Amended Complaint, Dkt.
17, at ¶¶23, 26). In fact, Defendants cited reason is enough to deny
Oksen’s request. See Austin v. Town of Farmington, 826 F.3d 622, 630
(2d Cir. 2016) (“A requested accommodation is reasonable where the
cost is modest and it does not pose an undue hardship or substantial
burden on the rule maker.”). Put another way, Oksen’s Amended
Complaint plausibly alleges that Defendant properly denied, in part,
her accommodations request. So the Amended Complaint does not
plausibly allege element five.
* * *
All told, Oksen’s Amended Complaint fails to state an FHA claim.
The Amended Complaint does not plausibly allege the first, third, or
fifth element of an FHA claim. As a result, the District Court should
dismiss Oksen’s FHA claim with prejudice and without leave to amend.
B. The District Court should dismiss Oksen’s FHA retaliation
claim because the Amended Complaint shows Defendants
trying to enforce its pet policy rather than engaging in
retaliatory conduct.
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“To state a retaliation claim under the FHA, a plaintiff must
allege: (1) that [they] engaged in protected activity by opposing conduct
prohibited under the FHA; (2) that the defendant(s) was aware of the
protected activity; (3) that the defendant(s) subsequently took adverse
action against the plaintiff; and (4) that there is a causal connection
between the protected activity and the adverse action, i.e., that a
retaliatory motive played a part in the adverse action.” Gokhberg v. 200
Corbin Owners Corp., No. 24-CV-7010, 2025 WL 2782547, at *6
(E.D.N.Y. Sept. 30, 2025) (cleaned up).
Oksen plausibly alleges the first three elements. First, the Court
can infer that Defendants are aware of the complaints Oksen filed with
the New York State Human Rights Division. (Amended Complaint, Dkt.
17, at ¶40); see Wilson v. Wilder Balter Partners, Inc., No. 13-CV-2595,
2015 WL 685194, at *12 (S.D.N.Y. Feb. 17, 2015) (“Protected activity
under the FHA refers to action taken to protest or oppose statutorily
prohibited discrimination . . . [s]uch action includes the ‘[f]iling [of]
complaints ...[.]”) (cleaned up).4 This satisfies the first and second
4 The Court cannot infer that Defendants are aware of this litigation because initial
review occurs before Defendants have been served.
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elements. Second, Defendants engaged in the citing and fining of Oksen
after she filed the two Human Rights Division Complaints. (Amended
Complaint, Dkt. 17, at ¶¶41-42). This satisfies the third element.
But Oksen cannot satisfy the fourth element. Oksen’s Amended
Complaint contends that Defendants’ enforcement of their pet policy is
retaliatory. But the pleading alleges a far more hum drum motive.
“Defendants issued a citation and fine to [Oksen’s] household related to
a dog licensing or animal compliance issue.” (Amended Complaint, Dkt.
17, at ¶42). Defendants gave Oksen seven days to come into compliance
with the policy. (Id.). Seven days after the compliance deadline,
Defendants issued a notice to Oksen directing her to come into
compliance. (Id. at ¶46). Seven days after the second notice was issued,
Defendants tried to conduct a site visit to make sure that Oksen was
following the housing pet policy. (Id. at ¶58). At bottom, nothing in the
Amended Complaint establishes that Defendants’ attempts at having
Oksen comply with the pet policy were done because (or in part
because) of Oksen’s FHA complaints. Even if the December 5 notice
could be considered retaliatory, that analysis would not change.
Defendants were aware of the complaints to the New York Human
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Rights Division on November 8, but they still issued a letter saying
Oksen was complying with the pet policy. (Amended Complaint, Dkt.
17, at ¶45). The only thing that changed was Oksen’s addition of four
additional dogs. (Id. at ¶46). As a result, Oksen has failed to plausibly
allege the fourth element of a retaliation claim. In consequence, the
Court should dismiss Oksen’s FHA retaliation claim without prejudice
and with leave to amend.
C. The District Court should dismiss Oksen’s state law claims.
The District Court should decline to exercise supplemental
jurisdiction over Oksen’s state law claims. District courts “may decline
to exercise supplemental jurisdiction if it has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3) “Four factors
bear on whether it is appropriate to exercise supplemental jurisdiction:
‘judicial economy, convenience, fairness, and comity.’” Dixon v. New
York City Hous. Dev. Corp., No. 23-CV-6114, 2024 WL 3823170, at *7
(E.D.N.Y. Aug. 13, 2024) (quoting Catzin v. Thank You & Good Luck
Corp., 899 F.3d 77, 81 (2d Cir. 2018)). That said, when “a plaintiff's
federal claims are dismissed before trial, the state claims should be
dismissed as well. Brzak v. United Nations, 597 F.3d 107, 113–14 (2d
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Cir. 2010) (internal citation omitted). Here, the Court is recommending
dismissal of all federal claims, so the District Court should decline to
exercise supplemental jurisdiction over any remaining state law claims.
See, e.g., Dixon, 2024 WL 3823170, at *7 (declining to exercise
supplemental jurisdiction over state law claims when all the federal
claims have been dismissed); see also Oksen, 2025 WL 2106702, at *5
(recommending that the District Court find that it lacks subject matter
jurisdiction over Oksen’s Human Rights Law claims because the
Division limits appeals New York State Supreme Court).
D. The District Court should only allow Oksen to amend her
Complaint as to the newest claim.
Oksen should only be allowed to amend her FHA §3617 retaliation
claim. Generally, before courts dismiss a pro se complaint or any part of
the complaint on its own, they should afford the plaintiff the
opportunity to amend at least once; but leave to re-plead may be denied
where any amendment would be futile. See Ruffolo v. Oppenheimer &
Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the
problem with a plaintiff’s causes of action is substantive such that
better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (citation omitted). Here, the District Court gave
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Oksen the opportunity to amend her Complaint so that it could
plausibly allege a claim. Yet the Amended Complaint—in an effort to
provide clarity—has only shown that there is no FHA §3604(f) violation.
So the District Court should not allow Oksen to amend that claim. The
District Court should allow Oksen to amend her FHA §3617 claim
because the Amended Complaint is the first time she has presented this
issue.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, the District Court dismiss Oksen’s FHA
§3604(f) claim WITH PREJUDICE and WITHOUT LEAVE TO
AMEND; and it is further
RECOMMENDED, the District Court dismiss Oksen’s FHA
§3614 claim WITHOUT PREJUDICE and WITH LEAVE TO
AMEND; and it is further
RECOMMENDED, the District Court decline to exercise
supplemental jurisdiction over Oksen’s state court claims; and it is
further
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ORDERED, that the Clerk of the Court serve a copy of this Order
and Report-Recommendation on Plaintiff by regular mail.5
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties
have 14 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 14 DAYS
WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and
Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(e), 72.
Dated: January 21, 2026
5 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited
herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per
curiam).
______________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Dixon v. New York City Housing Development Corporation, Not Reported in Fed. Supp....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 3823170
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Terrance DIXON, Plaintiff,
v.
NEW YORK CITY HOUSING DEVELOPMENT CORPORATION; Eric Enderlin; Thaddeus Piekarski;
Jospehine Logozzo; K&R Realty Management; Michelle Cavazza; Chris Allred; Robert Ezrapour; J2 Owner
LLC; Artemis Construction; James Spithogiannis; L'Abatte, Balkan, Colavita & Contini, LLP, Defendants.
23-CV-6114 (RPK) (LB)
|
Signed August 13, 2024
Attorneys and Law Firms
Terrance Dixon, Jamaica, NY, Pro Se.
Isabella Jacqueline Kendrick, New York City Law Department, New York, NY, for Defendants Thaddeus Piekarski, Josephine
Logozzo, New York City Housing Development Corporation;, Eric Enderlin.
James D. Spithogianni, L'Abbate Balkan Colavita & Contini, Melville, NY, for Defendants K&R Realty Management, Michelle
Cavazza, Chris Allred, Robert Ezrapour, J2 Owner LLC, Artemis Construction, James Spithogiannis, L'Abatte, Balkan, Colavita
& Contini, LLP.
MEMORANDUM AND ORDER
RACHEL P. KOVNER, United States District Judge:
*1 Pro se plaintiff Terrance Dixon brings this suit against twelve defendants—the New York City Housing Development
Corporation (“HDC”); Eric Enderlin; Thaddeus Piekarski; Josephine Logozzo; K&R Realty Management; Michelle Cavazza;
Chris Allred; Robert Ezrapour; J2 Owner LLC; Artemis Construction; James Spithogiannis; and L'Abbate, Balkan, Colavita &
Contini, LLP (“LBCC”)—alleging violations of federal and state law arising from the denial of his application for affordable
housing. For the reasons stated below, defendants’ motions to dismiss the complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) are granted. *
BACKGROUND
The following factual allegations are taken from plaintiff's complaint and state court submissions and orders, to the extent they
are subject to judicial notice. See, e.g., Dixon v. von Blanckensee, 994 F.3d 95, 103 n.6 (2d Cir. 2021) (taking judicial notice
of the “fact that the state court dismissed [a litigant's] claims on specified grounds” but not “any historical facts referenced in
the state court order”); see also Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (“[C]ourts routinely take judicial
notice of documents filed in other courts, ... not for the truth of the matters asserted in the other litigation, but rather to establish
the fact of such litigation and related filings.”).
I. Factual Background
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Dixon v. New York City Housing Development Corporation, Not Reported in Fed. Supp....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
HDC is a New York state “public benefit corporation” that runs an affordable housing lottery. Am. Compl. 2 (Dkt. #24); see
N.Y. Priv. Hous. Fin. Law § 653. In March 2022, plaintiff applied to rent an affordable housing unit through HDC's lottery. Am.
Compl. 5. J2 Owner LLC owned the unit to which plaintiff applied, while K&R Realty managed it. See id. at 2–3. As part of
its management duties, K&R Realty was responsible for selecting a tenant. See id. at 2.
During the application process, plaintiff communicated with Michelle Cavazza, a marketing agent for K&R Realty. Am. Compl.
3, 5. Cavazza informed plaintiff that, because the documentation he had submitted “indicate[d] [he] would be under income for
the unit,” K&R Realty could not “proceed with [his] application.” Id. at 6. Cavazza then stopped communicating with plaintiff.
See id. at 6, 8.
Plaintiff appealed K&R Realty's denial of his application to HDC. See id. at 8. HDC denied plaintiff's appeal on the ground
that “[t]he documents [he] provided” to K&R Realty showed that his “historical earnings” were “below the minimum income
limit for any unit in the project.” Ibid.
In June 2022, plaintiff filed a petition challenging HDC's decision in state court pursuant to Article 78 of New York's Civil
Practice Law and Rules, which authorizes New York courts to review state administrative actions. Id. at 9; see N.Y. C.P.L.R. §§
7801–06. The petition asserted that HDC failed to follow Department of Housing and Urban Development (“HUD”) guidelines
when calculating plaintiff's income. Decl. of Isabella J. Kendrick (Dkt. #43) (“Kendrick Decl.”), Ex. A 11 (Dkt. #43-1) (“Art.
78 Pet.”).
*2 At the Article 78 hearing, HDC—through its employees Thaddeus Piekarski and Josephine Logozzo—“misrepresented”
plaintiff's income as well as its authority over K&R Realty. Am. Compl. 10.
The state court initially dismissed plaintiff's petition, see Kendrick Decl., Ex. B (Dkt. #43-2) (“Aug. 4, 2022, State Ct. Order”),
but then granted plaintiff's renewal motion on the ground that “facts pertaining to [plaintiff's] income sources were previously
overlooked,” Kendrick Decl., Ex. C 3 (Dkt. #43-3) (“Oct. 13, 2022, State Ct. Order”). The court also ordered HDC “to conduct
an additional review” of plaintiff's application, “while taking all income documents submitted by [plaintiff] into consideration.”
Id. at 4.
HDC began conducting an additional review in October 2022. See id. at 10. During that process, plaintiff communicated with
K&R Realty employee Christopher Allred. See id. at 10–11. Allred “stop[ped] responding” to plaintiff on November 7, 2022.
Id. at 11. On November 17, 2022, however, HDC notified plaintiff that he qualified for a studio apartment and advised him that
if he was “interested in being processed for a studio,” he should “contact the marketing agent directly.” Ibid. Plaintiff followed
up with Allred but did not receive a response. Ibid.
Plaintiff filed a motion in the Article 78 court to “hold [HDC] in contempt of Court, order sanctions, and compel [HDC] to
award [him] a one-bedroom unit” rather than a studio. Kendrick Decl., Ex. D 2 (Dkt. #43-4) (“Dec. 19, 2022, State Ct. Order”).
In December 2022, the court denied plaintiff's motion on the ground that HDC “ha[d] not violated” its previous order directing
HDC “to conduct an additional review” of its denial of plaintiff's application, “while taking all income documents submitted by
[plaintiff] into consideration.” Id. at 4. Plaintiff filed a series of motions challenging the court's December 2022 order including
two motions to renew his motion to hold HDC in contempt, see Kenrick Decl., Ex. E (Dkt. #43-5) (“Jan. 30, 2023, State Ct.
Order”); Kendrick Decl., Ex. F (Dkt. #43-6) (“Feb. 15, 2023, State Ct. Order”), and another motion to hold HDC in contempt,
see Kendrick Decl., Ex. G (Dkt. #43-7) (“Aug. 9, 2023, State Ct. Order”). The Article 78 court denied each of those motions.
See Jan. 30, 2023, State Ct. Order 4; Feb. 15, 2023, State Ct. Order 4; Aug. 9, 2023, State Ct. Order 3. Plaintiff also moved for
default judgment against HDC, and the Article 78 Court denied that motion. See Kendrick Decl., Ex. H 1 (Dkt. #43-8) (“Sept.
25, 2023, State Ct. Order”).
In January 2023, plaintiff filed a new action in state court against HDC, Piekarski, Logozzo, K&R Realty, and Allred. See
Kendrick Decl., Ex. K (Dkt. #43-11) (“State Ct. Compl.”); Kendrick Decl., Ex. M (Dkt. #43-13) (“July 24, 2023, First State Ct.
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Order”); Decl. of James Spithogiannis (Dkt. #34-1) (“Spithogiannis Decl.”), Ex. K (Dkt. #34-12) (“July 24, 2023, Second State
Ct. Order”). He alleged violations of 42 U.S.C. §§ 1982, 1983, and 1985(3), the Fair Housing Act (“FHA”), see id. § 3601 et
seq., and state law. See State Ct. Compl. The court dismissed the action in July 2023, holding that it was “barred as against HDC,
Thaddeus Piekarski, and Josephine Logozzo, by the doctrine of res judicata,” July 24, 2023, First State Ct. Order 3, and that
plaintiff had failed to establish that he had properly served any of the defendants, ibid.; July 24, 2023, Second State Ct. Order 2.
II. Procedural Background
*3 Plaintiff filed this lawsuit in August 2023. He brings claims under federal and state law against HDC, Eric Enderlin (HDC's
president), Piekarski, Logozzo, J2 Owner LLC, K&R Realty, Robert Ezrapour (K&R Realty's chief executive), Cavazza, Allred,
Artemis Construction (a development company under Ezrapour's “control”), LBCC (a law firm that represented K&R Realty
in state court), and James Spithogiannis (a lawyer at LBCC). Am. Compl. 2–3.
Plaintiff alleges that, during the Article 78 proceedings, defendants made misrepresentations in court, raised frivolous defenses,
and improperly sought adjournments or dismissals. See Am. Compl. 17, 24–26, 31–34, 43–46. He also alleges that defendants
violated several laws in their review of his application for a one-bedroom unit and in their acceptance of federal funds. See id. at
14–18, 21–24, 29–31, 33–37, 39–42, 42–43. Based on those allegations, he brings claims under (i) 42 U.S.C. §§ 1982 and 1983,
see Am. Compl. 14–15; (ii) the FHA, see Am. Compl. 16–18, 39–42; (iii) the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), see 18 U.S.C. § 1961; see also Am. Compl. 18–21; and (iv) state law, see Am. Compl. at 21–31, 33–39, 42–43.
Defendants moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See K&R Mot. to Dismiss (Dkt. #35); HDC Mot. to
Dismiss (Dkt. # 42-1).
While defendants’ motions to dismiss were pending, plaintiff filed a motion for partial summary judgment against HDC,
Enderlin, Piekarski, and Logozzo. See Pl.’s Mot. for Partial Summ. J. (Dkt. #65). Those defendants moved to strike the motion.
See May 8, 2024, Letter Mot. (Dkt. #66).
STANDARD OF REVIEW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), a plaintiff must show that the Court has “the
statutory or constitutional power to adjudicate” the action. Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790
F.3d 411, 417 (2d Cir. 2015). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).
Under Federal Rule of Civil Procedure 12(b)(6), a court must grant a motion to dismiss for failure to state a claim if the complaint
does not contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint fails
to plausibly state a claim and is properly dismissed when “the allegations in a complaint, however true, could not raise a claim
of entitlement to relief” as a matter of law, Twombly, 550 U.S. at 558, or when “the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct” as a matter of law. Iqbal, 556 U.S. at 679.
The complaint of a pro se plaintiff must be “liberally construed, and ... however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations
omitted). Pro se status, however, does not “exempt a party from compliance with relevant rules of procedural and substantive
law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir. 1983)).
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*4 In reviewing a motion to dismiss, a court may consider only (i) the complaint itself, (ii) documents attached to the complaint
or incorporated by reference, (iii) documents the plaintiff both relied on and knew of when bringing suit, and (iv) matters in
the public record which are properly subject to judicial notice. See, e.g., ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d
87, 98 (2d Cir. 2007); Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004); Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107
(2d Cir. 1999).
DISCUSSION
Defendants’ motions to dismiss the complaint are granted. The Rooker-Feldman doctrine does not bar this Court from reviewing
plaintiff's federal-law claims, but those claims are dismissed for failure to state a claim. And I decline to exercise supplemental
jurisdiction over plaintiff's state-law claims.
I. Federal Claims
The Court has jurisdiction over plaintiff's federal causes of action, but they are dismissed for failure to state a claim.
A. Rooker-Feldman Does Not Preclude Review of the Plaintiff's Federal Claims.
Defendants err in contending that the Court lacks jurisdiction over plaintiff's federal claims under the Rooker-Feldman doctrine.
See K&R Mot. to Dismiss 10–13; HDC Mot. to Dismiss 11–13.
The Rooker-Feldman doctrine derives from two Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). “Together, those cases ‘established the clear principle
that federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments.’ ” Sung Cho v.
City of New York, 910 F.3d 639, 644 (2d Cir. 2018) (quoting Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir.
2005)). For a claim to be barred, “four requirements must be met: (1) the federal-court plaintiff must have lost in state court;
(2) the plaintiff must complain of injuries caused by a state-court judgment; (3) the plaintiff must invite district court review
and rejection of that judgment; and (4) the state-court judgment must have been rendered before the district court proceedings
commenced.” Id. at 644–45 (citing Hoblock, 422 F.3d at 85).
Though plaintiff alleges that defendants made misrepresentations and otherwise committed misconduct in state court, those
allegations “speak not to the propriety of the state court judgments, but to the fraudulent course of conduct that defendants
pursued in obtaining such judgments.” Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 94–95 (2d Cir. 2015). They therefore
do not invite review of those judgments. See ibid. Nor do his claims alleging that defendants violated state and federal law in
reviewing his application and accepting federal funds. Though plaintiff raised similar claims in state court, “Rooker-Feldman
... does not deprive a district court of subject-matter jurisdiction ‘simply because a party attempts to litigate in federal court a
matter previously litigated in state court.’ ” Hoblock, 422 F.3d at 86 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 293 (2005)).
B. Plaintiff's Federal Claims Are Dismissed for Failure to State a Claim.
Because plaintiff has failed to state a claim under any of the federal causes of action alleged in his complaint, his federal claims
are dismissed.
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Section 1982 Claim. Plaintiff fails to state a Section 1982 claim because he does not “allege facts supporting [defendants’]
intent to discriminate against him because of his race,” Francis v. Kings Park Manor, Inc., 992 F.3d 67, 80 (2d Cir. 2021)
(citation omitted). Plaintiff alleges that defendants use “community preferences” that “inadvertently” favor “applicants currently
residing in a zip code,” thereby “creat[ing] racial barriers and disparities.” Am. Compl. 14–15. And though plaintiff's opposition
brief asserts, in a conclusory manner, that defendants “intentionally off[ered] a community preference” that “steer[s] races of ...
certain communities to stay within that community,” Pl.’s Opp'n to HDC Mot. 15 (Dkt. #53), he does not allege any facts
supporting the inference that defendants used “community preferences” for the purpose of discriminating against plaintiff on
the basis of race. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”).
*5 Section 1983 Claim. Plaintiff fails to state a Section 1983 claim because he does not sufficiently “allege the violation of a
right secured by the Constitution and laws of the United States.” Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (quoting
West v. Atkins, 487 U.S. 42, 48 (1998)). Instead, his complaint contains only the conclusory allegations that “[d]efendants
individually and collectively conspired to deprive [p]laintiff of constitutionally and federally guaranteed rights and privileges”
and that “[d]efendants have policies in place that are unconstitutional.” Am. Compl. 15. His opposition briefs add (i) that K&R
Realty and its employees engaged in “income discrimination,” “family status” discrimination, and “occupancy discrimination,”
Pl.’s Opp'n to K&R Mot. 5 (Dkt. #38), and (ii) that HDC violated his due process rights by denying his appeal without a hearing,
Pl.’s Opp'n to HDC Mot. 15. But even if plaintiff's complaint were liberally construed to allege unlawful discrimination in
violation of the Fourteenth Amendment, that claim fails because he does not allege any facts establishing that he “suffered
purposeful or intentional discrimination.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004)
(citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977)). And plaintiff's due process claim
fails because plaintiff has not alleged the deprivation of a “liberty or property interest protected by the United States Constitution
or federal statutes.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). Plaintiff fails to identify any source of law protecting a
property interest in an affordable housing unit of a particular size. Cf. Lindsey v. Normet, 405 U.S. 56, 74 (1972) (holding that
the Constitution contains no “guarantee of access to dwellings of a particular quality”).
FHA Claims. Plaintiff fails to state a claim under Sections 3631, 3604, and 3617 of the FHA.
First, Section 3631 is “the criminal provision of the FHA,” Mee Wah Chan v. Nashty, No. 08-CV-1089 (CBA), 2009 WL
10700936, at *3 (E.D.N.Y. July 31, 2009) (citing 42 U.S.C. § 3631), and “federal criminal statutes do not provide private causes
of action,” Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).
Second, plaintiff fails to state a claim for discrimination under Section 3604. To state such a claim, a plaintiff must “plausibly
allege ... at least minimal support for the proposition that” the defendant's actions were “motivated by discriminatory intent.”
Francis, 992 F.3d at 73. Plaintiff alleges that defendants’ “refusal to make a proper unit size available to him” constituted
“family size discrimination” because defendants were “aware” that plaintiff has a son. Am. Compl. 16. But defendants’ “mere
awareness” of plaintiff's family size “does not provide sufficient support for [his] allegation of discriminatory intent.” Palmer
v. Fannie Mae, 755 F. App'x 43, 46 (2d Cir. 2018). Plaintiff also alleges that defendants “hav[e] more stringent policies for
self employed individuals,” Am. Compl. 42, yet he fails to allege any facts supporting the inference that those policies are
motivated by an intent to discriminate based on race, color, religion, sex, familial status, or national origin, Francis, 992 F.3d at
71, 73. Finally, plaintiff cites Section 3604(c)’s prohibition against discriminatory notices, statements, and advertisements, but
he fails to identify any particular notice, statement, or advertisement that violates the prohibition. See Am. Compl. 40. He has
therefore failed to “plead[ ] factual content that allows the court to draw the reasonable inference that [defendants] are liable
for the misconduct alleged.” Iqbal, 556 at 678.
Third, plaintiff fails to state a claim under Section 3617, which makes 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 ... any right granted or protected
by section 3603, 3604, 3605, or 3606” of the FHA. 42 U.S.C. § 3617. To state a claim for retaliation under Section 3617, a
plaintiff must plausibly allege that he was “engaged in protected activity,” that the defendant “was aware of this activity,” that
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the defendant “took adverse action against the plaintiff,” and that “a causal connection exists between the protected activity
and the adverse action.” Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 54 (2d Cir. 2002) (quoting
Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994)), superseded by statute on other grounds, ADA Amendments of 2008,
Pub. L. No. 110-325, 122 Stat. 3553.
*6 Plaintiff has failed to plausibly allege a retaliation claim under those principles. Plaintiff asserts that K&R Realty, Cavazza,
and Allred retaliated against him “for exercising rights under [the] FHA to file complaints and litigation” because they “ceas[ed]
communication[s]” and “offer[ed him] a unit smaller than” the one to which he was “entitled.” Am. Compl. 17. And he alleges
that Logozzo and Piekarski retaliated against him for exercising his rights under the FHA by making misrepresentations during
the Article 78 hearing. Ibid. But he does not plausibly allege that he engaged in any protected activity with a causal connection
to those actions. To start, he alleges that Cavazza stopped communicating with him before he filed his Article 78 petition or
initiated any other litigation. See Am. Compl. 6. He therefore has not alleged that the Article 78 petition or any ensuing litigation
are causally connected to Cavazza's alleged failure to communicate. See, e.g., Thomas-Tupper v. Cath. Charities, No. 22-689,
2023 WL 4044101, at *2 (2d Cir. June 16, 2023) (holding that a plaintiff “failed to demonstrate a prima facie case of retaliation”
under Section 3617 where adverse actions occurred “before” the protected activity). Though the other alleged adverse actions
plaintiff cites occurred after he filed the Article 78 petition, see Am. Compl. 10–11, he does not sufficiently allege that the
petition was protected activity. While the petition asserts that HDC failed to follow HUD's guidelines for calculating income,
it does not assert that HDC violated the FHA or any fair housing guidelines. See generally Art. 78 Pet. It therefore does not
“constitute opposition to an act or practice made unlawful by” the FHA. Reg'l Econ. Cmty. Action Program, Inc., 294 F.3d at
54 (citation and brackets omitted) (defining “protected activity”). Nor does plaintiff allege any other FHA-protected activity
predating defendants’ alleged adverse actions. See generally Am. Compl. He has accordingly failed to state a claim for retaliation
under Section 3617.
RICO Claim. Plaintiff fails to state a RICO claim because he does not plausibly allege that defendants committed “a substantive
RICO violation under [18 U.S.C.] § 1962.” Skyes, 780 F.3d at 83 (quoting In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d
108, 117 (2d Cir. 2013)). To plead a substantive violation of the RICO statute under Section 1962, a plaintiff must allege “(1)
that the defendant (2) through the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering activity’ (5)
directly or indirectly invests in, or maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect
interstate or foreign commerce.” Williams v. Affinion Grp., LLC, 889 F.3d 116, 123–24 (2d Cir. 2018) (quoting Moss v. Morgan
Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983)); see 18 U.S.C. § 1962(a)–(c).
Plaintiff alleges a pattern of racketeering activity consisting of wire fraud, in violation of 18 U.S.C. § 1343, and mail fraud,
in violation of 18 U.S.C. § 1341, see Am. Compl. 19–21, “which are subject to the heightened pleading requirements of
Fed. R. Civ. Proc. 9(b).” Knoll v. Schectman, 275 F. App'x 50, 51 (2d Cir. 2008) (citing First Cap. Asset Mgmt., Inc. v.
Satinwood, Inc., 385 F.3d 159, 178 (2d Cir. 2004)). Under those requirements, a plaintiff “alleging fraud ... must state with
particularly the circumstances constituting fraud,” Fed. R. Civ. Proc. 9(b), including “the contents of the [allegedly fraudulent]
communications, who was involved, where and when they took place, and ... why they were fraudulent.” Knoll, 275 F. App'x
at 51 (alteration added) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1176 (2d Cir. 1993)). Plaintiff, however,
alleges only that “[d]efendants commit[ted] ... wire fraud through the receiving and transmitting of federal funds ... under
the false pretenses of being compliant” with “non[-] discriminatory practices” and that they “committed ... mail fraud on
December 23, 2019[,] and every year thereafter through compliance renewal.” Am. Compl. 19–21. Those allegations do not
satisfy Rule 9(b)’s requirements. See, e.g., Knoll, 275 F. App'x at 51 (holding that a plaintiff bringing a RICO claim failed to
allege mail and wire fraud even though his complaint “set[ ] forth the dates, locations, senders and recipient of the allegedly
fraudulent communications” because his “assertions as to their contents and the reason each communication was fraudulent
[were] conclusory”).
Plaintiff also suggests that defendants engaged in a pattern of racketeering activity consisting of witness tampering, in violation
of 18 U.S.C. § 1512, and witness retaliation, in violation of 18 U.S.C. § 1513, by “retaliat[ing] against plaintiff ... for commencing
this case.” Am. Compl. 21. But because plaintiff does not allege how defendants retaliated against him, see ibid., he has failed
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to “plead[ ] factual content that allows the court to draw the reasonable inference that [defendants are] liable for the misconduct
alleged,” Iqbal, 556 U.S. at 678.
*7 Plaintiff's federal-law claims are accordingly dismissed.
C. I Decline to Exercise Supplemental Jurisdiction Over Plaintiff's State-Law Claims.
Because I have dismissed all the federal claims, I decline to retain jurisdiction over plaintiff's state-law claims. Under 28 U.S.C.
§ 1367(c)(3), “a district court may decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has
original jurisdiction.” Four factors bear on whether it is appropriate to exercise supplemental jurisdiction: “judicial economy,
convenience, fairness, and comity.” Catzin v. Thank You & Good Luck Corp., 899 F.3d 77, 81 (2d Cir. 2018). As a general matter,
where “a plaintiff's federal claims are dismissed before trial, the state claims should be dismissed as well.” Brzak v. United
Nations, 597 F.3d 107, 113–14 (2d Cir. 2010); see Pension Benefit Guar. Corp. ex rel. St. Vincent Cath. Med. Ctrs. Ret. Plan v.
Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013). Plaintiff does not provide a persuasive reason to depart from
the usual practice of declining to exercise supplemental jurisdiction once federal claims are dismissed. See Pl.’s Opp'n to HDC
Mot. 18 (arguing that the Court should exercise supplemental jurisdiction since “this matter ... addresses constitutional issues”);
accord Pl.’s Opp'n to K&R Mot. 9 (Dkt. #38). Accordingly, I decline to exercise supplemental jurisdiction over plaintiff's state-
law claims.
CONCLUSION
For the foregoing reasons, defendants’ motions to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) are granted and the motion for summary judgment is denied as moot. The Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for
the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 3823170
Footnotes
* Because the complaint is dismissed, plaintiff's motion for partial summary judgment is denied as moot.
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2021 WL 603227
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Dallas X. EVANS, Plaintiff,
v.
ABSOLUTE RESULTS, Defendant.
21-CV-00280 (LLS)
|
Signed 02/12/2021
Attorneys and Law Firms
Dallas X. Evans, Rochester, NY, pro se.
ORDER TO AMEND
LOUIS L. STANTON, United States District Judge:
*1 Plaintiff brings this pro se action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and 42
U.S.C. § 1981, alleging that his employer discriminated against him based on his race and color. By order dated February 9,
2021, the Court granted Plaintiff's request to proceed in forma pauperis (IFP). For the reasons set forth below, the Court grants
Plaintiff leave to file an amended complaint within sixty days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim
on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)
(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint
when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris
v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But
the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits – to state a claim, pro se pleadings still must
comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement
showing that the pleader is entitled to relief.
The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough
factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the
complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal
conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must
determine whether those facts make it plausible – not merely possible – that the pleader is entitled to relief. Id.
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BACKGROUND
Using the Court's employment discrimination complaint form, Plaintiff asserts claims of discrimination, retaliation, harassment,
disparate treatment, and constructive termination against Defendant, his former employer. (ECF 1 ¶ IV(A).) Where prompted to
provide facts to support those claims, Plaintiff writes “see attached,” but there is no attachment detailing the events giving rise to
this action. (Id. ¶ IV(B).) According to the complaint, Plaintiff currently resides in Rochester, New York, and he was employed
in Cedar Rapids, Iowa. (Id. ¶ I.) A notice of right to sue from the Equal Employment Opportunity Commission (EEOC), dated
October 13, 2020, shows a New York City address for Plaintiff and a Des Moines, Iowa address for Defendant. (Id. 1-1.)
DISCUSSION
A. Discrimination Claims
*2 Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 (Title VII) and 42 U.S.C. § 1981. Title VII
provides that “[i]t shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a). Section 1981
prohibits discrimination in the making and enforcing of contracts, including employment contracts, “on account of [a person's]
race, ancestry, or ethnic characteristics.” Zemsky v. City of New York, 821 F.2d 148, 150 (2d Cir. 1987).
These antidiscrimination provisions prohibit employers from mistreating an individual because of the individual's protected
characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any
practice made unlawful by those statutes, see Crawford v. Metro. Gov't, 555 U.S. 271, 276 (2009) (holding that conduct
is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a
reason other than an employee's protected characteristic or opposition to unlawful conduct is not actionable under these federal
antidiscrimination statutes. See Chukwuka v. City of New York, 513 F. App'x 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001)).
At the pleading stage in an employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took
adverse employment action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the
employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff “may do so
by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible
inference of discrimination.” Id. at 87.
Plaintiff's complaint does not state a claim under Title VII or § 1981. He does not provide any facts explaining what occurred,
and thus he fails to show that his employer took adverse action against him because of a protected characteristic. The Court
grants Plaintiff leave to file an amended complaint demonstrating that his employer took adverse action against him because
of his race and color.
B. Venue
1. Title VII
A Title VII claim must be asserted in:
any judicial district in the State in which the unlawful employment practice is alleged to have been
committed, in the judicial district in which the employment records relevant to such practice are
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maintained and administered, or in the judicial district in which the aggrieved person would have worked
but for the alleged unlawful employment practice, but if the respondent is not found within any such
district, such [a claim] may be brought within the judicial district in which the respondent has his principal
office.
42 U.S.C. § 2000e-5(f)(3).
Plaintiff's submission indicates that his place of employment was Cedar Rapids, Iowa, and that Defendant's human resources
office is located in Des Moines, Iowa. (ECF 1 ¶¶ I, IV, V & ECF 1-1.) If the events giving rise to this complaint occurred in
Cedar Rapids, Iowa, and Defendant's principal office is in Des Moines, Iowa, venue for Plaintiff's Title VII claim is likely not
proper here, notwithstanding the fact that Plaintiff resided in this District when he filed an EEOC complaint and now resides
in Rochester, New York.
2. Venue for Claims under 42 U.S.C. § 1981
*3 Claims under § 1981 are governed by the general venue provision, 28 U.S.C. § 1391(b), which provides that a civil action
may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which
the district is located; (2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred ...; or (3) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any defendant is subject to the court's personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b). For venue purposes, a “natural person” resides in the district where the person is domiciled. § 1391(c)(1).
And an entity that is not a person, “whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district
in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question.” § 1391(c)(2).
Because Plaintiff does not allege that Defendant resides or is subject to jurisdiction in this District, or that any of the events
giving rise to his § 1981 claims arose in this district, venue for those claims does not appear to be proper in this Court under
§ 1391(b). If Plaintiff believes that venue is proper in this District, he may provide facts in an amended complaint to support
that finding.
Plaintiff is alerted, however, that even if venue were proper here for all the claims, the Court may transfer claims “[f]or the
convenience of the parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). “District courts have broad discretion
in making determinations of convenience under Section 1404(a) and notions of convenience and fairness are considered on a
case-by-case basis.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006). Moreover, courts may transfer cases on
their own initiative. See Cento v. Pearl Arts & Craft Supply Inc., No. 03-CV-2424 (LAK), 2003 WL 1960595, at *1 (S.D.N.Y.
Apr. 24, 2003) (“Courts have an independent institutional concern to see to it that the burdens of litigation that is unrelated to
the forum that a party chooses are not imposed unreasonably on jurors and judges who have enough to do in determining cases
that are appropriately before them. The power of district courts to transfer cases under Section 1404(a) sua sponte therefore
is well established.”); see also Lead Indus. Ass'n. Inc. v. OSHA, 610 F.2d 70, 79 n.17 (2d Cir. 1979) (noting that the “broad
language of 28 U.S.C. § 1404(a) would seem to permit a court to order transfer sua sponte”).
In determining whether transfer is appropriate, courts consider the following factors: (1) the convenience of witnesses; (2)
the convenience of the parties; (3) the locus of operative facts; (4) the availability of process to compel the attendance of the
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unwilling witnesses; (5) the location of relevant documents and the relative ease of access to sources of proof; (6) the relative
means of the parties; (7) the forum's familiarity with the governing law; (8) the weight accorded to the plaintiff's choice of
forum; (9) trial efficiency; and (10) the interest of justice, based on the totality of circumstances. Keitt v. N.Y. City, 882 F. Supp.
2d 412, 458-59 (S.D.N.Y. 2011); see also N.Y. Marine and Gen. Ins. Co. v. LaFarge No. Am., Inc., 599 F.3d 102, 112 (2d Cir.
2010) (setting forth similar factors).
*4 If Plaintiff files an amended complaint, he should address why this Court is a proper venue for his claims under § 1981
and why the Court should not transfer this matter under § 1404(a).
LEAVE TO AMEND
Plaintiff is granted leave to amend his complaint. In the statement of claim, Plaintiff must provide a short and plain statement
of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed
to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff's amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff's case including what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant's acts or omissions violated Plaintiff's rights and describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief.
Essentially, the body of Plaintiff's amended complaint must tell the Court: who violated his federally protected rights; what
facts show that his federally protected rights were violated; when such violation occurred; where such violation occurred; and
why Plaintiff is entitled to relief. Moreover, Plaintiff should address the venue issue discussed in this order.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that
Plaintiff wishes to maintain must be included in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit
the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document
as an “Amended Complaint,” and label the document with docket number 21-CV-00280 (LLS). An Amended Complaint for
Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within
the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state
a claim upon which relief may be granted. 1
Plaintiff has consented to electronic service of documents. (ECF 2.)
SO ORDERED.
Attachment
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United States District Court
Southern District of New York
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Pro Se (Nonprisoner) Consent to Receive Documents Electronically
Parties who are not represented by an attorney and are not currently incarcerated may choose to receive documents in their
cases electronically (by e-mail) instead of by regular mail. Receiving documents by regular mail is still an option, but if you
would rather receive them only electronically, you must do the following:
1. Sign up for a PACER login and password by contacting PACER 1 at www.pacer.uscourts.gov or 1-800-676-6856;
2. Complete and sign this form.
If you consent to receive documents electronically, you will receive a Notice of Electronic Filing by e-mail each time a document
is filed in your case. After receiving the notice, you are permitted one “free look” at the document by clicking on the hyperlinked
document number in the e-mail. 2 Once you click the hyperlink and access the document, you may not be able to access the
document for free again. After 15 days, the hyperlink will no longer provide free access. Any time that the hyperlink is accessed
after the first “free look” or the 15 days, you will be asked for a PACER login and may be charged to view the document. For
this reason, you should print or save the document during the “free look” to avoid future charges.
IMPORTANT NOTICE
Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court's Electronic Case Filing Rules &
Instructions, documents may be served by electronic means. If you register for electronic service:
1. You will no longer receive documents in the mail;
2. If you do not view and download your documents during your “free look” and within 15 days of when the court sends the
e-mail notice, you will be charged for looking at the documents;
3. This service does not allow you to electronically file your documents;
4. It will be your duty to regularly review the docket sheet of the case. 3
CONSENT TO ELECTRONIC SERVICE
I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I affirm that:
*5 1. I have regular access to my e-mail account and to the internet and will check regularly for Notices of Electronic Filing;
2. I have established a PACER account;
3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil Procedure and Rule 5.2 of the
Local Civil Rules, and that I will no longer receive paper copies of case filings, including motions, decisions, orders, and
other documents;
4. I will promptly notify the Court if there is any change in my personal data, such as name, address, or e-mail address, or
if I wish to cancel this consent to electronic service;
5. I understand that I must regularly review the docket sheet of my case so that I do not miss a filing; and
6. I understand that this consent applies only to the cases listed below and that if I file additional cases in which I would like
to receive electronic service of notices of documents, I must file consent forms for those cases.
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Civil case(s) filed in the Southern District of New York:
Note: This consent will apply to all cases that you have filed in this court, so please list all of your pending
and terminated cases. For each case, include the case name and docket number (for example, John Doe
v. New City, 10-CV-01234).
Return completed form to:
Pro Se Intake Unit (Room 200)
500 Pearl Street
New York, NY 10007
All Citations
Not Reported in Fed. Supp., 2021 WL 603227
Footnotes
1 Alternatively, if Plaintiff's amended complaint contains sufficient facts to state a claim, but shows that venue is not proper
in this District, or that transfer is appropriate, the Court will issue an order transferring this matter to a proper venue.
1 Public Access to Court Electronic Records (PACER) (www.pacer.uscourts.gov) is an electronic public access service
that allows users to obtain case and docket information from federal appellate, district, and bankruptcy courts, and the
PACER Case Locator over the internet.
2 You must review the Court's actual order, decree, or judgment and not rely on the description in the email notice alone.
See ECF Rule 4.3
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3 The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of
electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk's
Office at the Court.
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2025 WL 2782547
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Yury GOKHBERG and Marat Gokhberg
v.
200 CORBIN OWNERS CORP., et al.
No. 24-CV-7010 (RER) (JRC)
|
Signed September 30, 2025
Attorneys and Law Firms
Yury Gokhberg, Brooklyn, NY, Pro Se.
Marat Gokhberg, Brooklyn, NY, Pro Se.
A. G. Chancellor III, Tromello, McDonnell & Kehoe, Melville, NY, Deborah E. Riegel, Rosenberg & Estis P.C., New York,
NY, for 200 Corbin Owners Corp., Arthur Weiner, Alla Berger, Irene Buch, Israel Odesky, United Management Corp.
Deborah E. Riegel, Rosenberg & Estis P.C., New York, NY, Noah Nunberg, L'Abbate Balkan Colavita & Contini, Melville,
NY, for Rosenberg & Estis, P.C.
Ira N. Glauber, Dilworth Paxson LLP, New York, NY, for Harvey D. Kampton.
Malvina Lin, Malvina Lin, P.C., Brooklyn, NY, for Elton Cohn, Sarah Cohn.
Christina Marie Rieker, Winget Spadafora & Schwartzberg, LLP, New York, NY, for Henry Daley.
Stacey Anne Van Malden, Bronx, NY, for Robert Renzulli.
MEMORANDUM & ORDER
RAMÓN E. REYES, JR., District Judge:
*1 Pro se plaintiffs Yury and Marat Gokhberg (“Yury” and “Marat,” respectively, and “Plaintiffs” or “Gokhbergs,” collectively)
bring this action against 200 Corbin Owners Corp., Arthur Weiner, Alla Berger, Irene Buch, Israel Odesky, and United
Management Corp. (collectively, the “Co-op Defendants”); Corbin Realty LLC; the corporation's attorneys, Harvey D. Kampton
and Rosenberg & Estis, P.C. (the “Professional Defendants”); Elton Cohn and Sarah Cohn (the “Purchaser Defendants”);
Mannion Auctions, LLC (the “Auction Defendant”); and City Marshals Henry Daley and Robert Renzulli (the “Marshal
Defendants,” and together with the Co-op Defendants, the Professional Defendants, the Purchaser Defendants, and the Auction
Defendant, “Defendants”). Plaintiffs assert claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
18 U.S.C. §§ 1961–1968, and the Fair Housing Act (“FHA” or “Fair Housing Act”), 42 U.S.C. §§ 3601–3619, along with ten
state-law causes of action.
Six motions to dismiss are before the Court. For the reasons explained below, the motions are granted. Plaintiffs’ RICO and
FHA claims are dismissed for failure to state a claim. Plaintiffs’ remaining state-law claims are dismissed for lack of subject
matter jurisdiction. The Court also dismisses, sua sponte, the claims against Corbin Realty LLC and the Auction Defendant. 1
Because the defects are jurisdictional, time-barred, or otherwise incurable, the Court will not grant any further leave to amend.
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BACKGROUND
I. Factual Background 2
The Gokhbergs have been shareholders in 200 Corbin Owners Corp. for more than twenty years. In April 1997, Yury first became
a 200 Corbin Owners Corp. shareholder by purchasing shares corresponding to apartment 6V, 200 Corbin Place, Brooklyn, New
York. (Amended Complaint, ECF No. 10 (“Amended Complaint”) ¶ 12). 3 In October 2000, Yury purchased additional shares
corresponding to apartments 6M and 6N. (Id. ¶ 13). In March 2002, Marat purchased shares corresponding to apartment 3C.
(Id. ¶ 11). Subsequently, Marat and Yury purchased additional shares corresponding to another apartment. (Id. ¶ 14). In April
2012, apartments 6M and 6N were combined into one apartment, 6MN, and the corresponding shares were issued to Yury. (Id. ¶
15). Eight years later, in December 2020, Marat came to hold the shares to apartment 6MN as security for a purported $800,000
mortgage to Yury, which was subsequently registered and recorded as a UCC-1 lien. (Id. ¶ 16).
*2 Beginning in 2017, 200 Corbin Owners Corp. initiated a series of Housing Court proceedings against Yury for unpaid
maintenance under the proprietary lease. (ECF Nos. 37-4, 37-5, 37-6). On March 16, 2022, that court entered a judgment of
possession and eviction against Yury. 200 Corbin Owners Corp. v. Gokhberg, Index No. LT-311514-21/KI (N.Y. Civ. Ct. Kings
Cnty. Mar. 16, 2022), ECF No. 29-29 (the “Housing Court Judgment”). Plaintiffs allege that, in connection with the foreclosure
and eviction, Yury lost personal property valued at more than $200,000, that Marat's asserted lien was disregarded, and that
they were subjected to retaliation and other governance abuses at 200 Corbin. (Am. Compl. ¶¶ 82, 194, 198, 209, 221).
In 2023, Plaintiffs filed a plenary action in Supreme Court, Kings County, against the Co-op, its board members, managing
agent, counsel, purchasers, and auctioneer, raising claims related to the foreclosure, eviction, and auction of Apartment 6MN.
On July 24, 2024, the court dismissed the complaint in its entirety after Plaintiffs failed to submit opposition or appear for
argument. Gokhberg v. 200 Corbin Owners Corp., Index No. 525322/2023 (N.Y. Sup. Ct. Kings Cnty. July 24, 2024), ECF No.
29-8 (the “Kings County Dismissal”). Plaintiffs now assert similar claims in this federal action.
II. Procedural Background
Plaintiffs filed their initial complaint on October 4, 2024, and their Amended Complaint on December 4, 2024. (ECF Nos. 1,
10). After the Amended Complaint, each defendant group moved to dismiss. Marshal Defendant Daley filed the first motion
on December 18, 2024. (ECF No. 12). The Co-op Defendants followed on February 20, 2025. (ECF Nos. 26–27). Professional
Defendant Rosenberg & Estis, P.C. filed its motion the next day, February 21, 2025. (ECF Nos. 28–29). Professional Defendant
Harvey D. Kampton filed his motion on March 5, 2025. (ECF Nos. 31–32). The Purchaser Defendants moved on March 13,
2025. (ECF No. 37). Finally, Marshal Defendant Renzulli filed his motion on April 1, 2025. (ECF No. 38).
Although six separate motions are pending, Defendants advance overlapping grounds for dismissal. First, they argue that the
Court lacks subject-matter jurisdiction under the Rooker–Feldman doctrine because the relief sought would effectively undo
the March 16, 2022 Housing Court Judgment and the July 24, 2024 Kings County Dismissal. (ECF Nos. 12, 26–27, 28–29,
38). Second, Defendants contend that the RICO claim fails to plead a cognizable enterprise, predicate acts, a pattern, or Rule
9(b) particulars. (Id.) Third, Defendants assert that the FHA section 3617 retaliation claim does not allege protected activity,
causation, or timeliness (ECF Nos. 26–27, 28–29). Fourth, Defendants urge the Court to decline supplemental jurisdiction over
any remaining state-law claims if the federal claims are dismissed. (Id.)
LEGAL STANDARDS
“[F]ederal courts are courts of limited jurisdiction and may not decide cases over which they lack subject matter jurisdiction.”
Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000). Rule 12(b)(1) of the Federal Rules of Civil
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Procedure provides for dismissal of a claim when the federal court lacks jurisdiction over the subject matter. Fed. R. Civ. P.
12(b)(1). In reviewing a motion to dismiss under Rule 12(b)(1), courts must “accept as true all material factual allegations in
the complaint,” Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998), but refrain from “drawing from the
pleadings inferences favorable to the party asserting [jurisdiction],” APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003). The
plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005).
*3 Rule 12(b)(6) authorizes dismissal where the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ.
P. 12(b)(6). To survive such a motion, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631
F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). While all factual allegations contained in the
complaint are assumed to be true, this presumption is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
When a plaintiff proceeds pro se, the court must liberally construe the complaint “as raising the strongest arguments they
suggest”. Lovelace v. Wells Fargo Bank, NA, 762 F. Supp. 3d 186, 189 (E.D.N.Y. 2025) (quoting Graham v. Henderson, 89 F.3d
75, 79 (2d Cir. 1996)); see Sause v. Bauer, 585 U.S. 957, 960 (2018) (per curiam). As a result, the court may accept as true
well pleaded factual allegations in his opposition to a motion to dismiss. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir.
2013). This is because the “pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see
also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (concluding that regardless of the holdings of Twombly and Iqbal that the
court is obligated to liberally interpret pro se complaints).
DISCUSSION
Plaintiffs assert twelve causes of action. The Court first addresses the Eleventh Cause of Action, brought under RICO against
all defendants. (Am. Compl. at 32). Second, the Court turns to the Twelfth Cause of Action, brought under the FHA. (Id. at
33). Next, the Court considers whether it has subject matter jurisdiction over the Plaintiffs’ state-law and common-law causes
of action, set out as the First through Tenth Causes of Action, under the Rooker–Feldman doctrine. (Id. at 10–31). Finally, the
Court explains why, even if Rooker–Feldman doctrine does not apply, it would decline to exercise supplemental jurisdiction.
Because the defects are jurisdictional, time-barred, or otherwise incurable, further leave to amend would be futile and is denied.
I. Plaintiffs’ RICO Claim Is Dismissed
RICO makes it unlawful “for any person employed by or associated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs
through a pattern of racketeering activity or collection of unlawful debt.” 18 U.S.C. § 1962(c). Section 1962(d) further makes it
unlawful for “any person to conspire to violate” Section 1962. Id. § 1962(d). As the Second Circuit has explained, if a plaintiff
fails to “allege a substantive violation of RICO,” a claim alleging a RICO conspiracy under section 1962(d) must fail as well.
Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 182 (2d Cir. 2004). Accordingly, the Court begins with the claim
under Section 1962(c).
Courts in this Circuit have recognized that the pleading burden in civil RICO cases is high as “[c]ourts look with particular
scrutiny at claims for a civil RICO, given RICO's damaging effects on the reputations of individuals alleged to be engaged in
RICO enterprises and conspiracies.” Spiteri v. Russo, No. 12-CV-2780 (MKB) (RLM), 2013 WL 4806960, at *45 (E.D.N.Y.
Sept. 7, 2013). To state a violation of Section 1962(c), a plaintiff must plead four elements: “(1) conduct, (2) of an enterprise,
(3) through a pattern (4) of racketeering activity.” DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir.2001); see also S.Q.K.F.C.,
Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir. 1996).
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*4 Under this framework, a “pattern of racketeering activity” is a prerequisite to a Section 1962(c) claim. Katzman v. Victoria's
Secret Catalogue, 167 F.R.D. 649, 656 (S.D.N.Y. 1996). The statute defines “racketeering activity” by listing specific criminal
acts that may serve as predicate offenses, including “any act or threat involving ... bribery ... which is chargeable under State
law and punishable by imprisonment for more than one year,” as well as “any act which is indictable under ... section 201
(relating to bribery), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud) ... [and] section 1956 (relating
to the laundering of monetary instruments).” 18 U.S.C. § 1961(1). “[F]ailure to plead RICO predicate acts, much less a pattern
of racketeering activity, is itself fatal to [p]laintiff's RICO claim.” Katzman, 167 F.R.D. at 656.
Here, Plaintiffs conclusorily allege that Defendants “used interstate wires and mail to transmit false financial statements and
fraudulent UCC filings,” “transferred misappropriated funds through various entities ... to conceal the illegal source and use of
these funds,” and “engaged in bribery of third parties, including but not limited to city marshals.” (Am Compl. ¶¶ 251–53). The
Court therefore considers, in turn, mail and wire fraud, bribery, and money laundering as potential predicate acts.
A. Mail Fraud and Wire Fraud
Plaintiffs fail to plausibly plead the predicate acts of mail fraud and wire fraud.
A RICO claim alleging mail and wire fraud as predicate acts must show “(1) the existence of a scheme to defraud, (2) defendant's
knowing or intentional participation in the scheme, and (3) the use of interstate mails or transmission facilities in furtherance
of the scheme.” S.Q.K.F.C., Inc. v. Bell Atlantic TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir. 1996) (citation omitted). “The
term ‘scheme to defraud’ is measured by a non-technical standard reflecting fundamental notions of honesty, fair play and right
dealing.” Aiu Ins. Co. v. Olmecs Med. Supply, Inc., No. CV-04-2934 (ERK), 2005 WL 3710370, at *10 (E.D.N.Y. Feb. 22,
2005) (citing United States v. Trapilo, 130 F.3d 547, 550 (2d Cir.1997)). It has been described as “a plan to deprive a person
‘of something of value by trick, deceit, chicane or overreaching.’ ” Id. (quoting United States v. Autuori, 212 F.3d 105, 115
(2d Cir. 2000)). “The use of the mails need not be essential to the fraudulent scheme as long as the mailing is incident to an
essential part of the scheme.” Zigman v. Giacobbe, 944 F. Supp. 147, 153 (E.D.N.Y.1996) (citing Pereira v. United States, 347
U.S. 1, 8 (1954)).
Furthermore, “[i]n pleading a violation of the mail and wire fraud statutes, Rule 9(b) of the Federal Rules of Civil Procedure
must be satisfied.” In re Sumitomo Copper Litig., 995 F. Supp. 451, 455 (S.D.N.Y. 1998) (citing Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1176 (2d Cir.1993)). Rule 9(b) requires a plaintiff to “state with particularity the circumstances constituting
fraud.” Fed. R. Civ. P. 9(b). Pursuant to this higher pleading standard, a complaint must “specify the statements it claims were
false or misleading, give particulars as to the respect in which plaintiffs contend the statements were fraudulent, state when and
where the statements were made, and identify those responsible for the statements.” Colony at Holbrook, Inc. v. Strata G.C.,
Inc., 928 F. Supp. 1224, 1230 (E.D.N.Y. 1996) (quoting McLaughlin v. Anderson, 962 F.2d 187, 191 (2d Cir. 1992)). “[T]he
‘overwhelming trend’ amongst the lower courts is to apply Rule 9(b) strictly in order to effect dismissal of civil RICO suits.”
In re Sumitomo Copper Litig., 995 F. Supp. at 455 (citations omitted).
Here, Plaintiffs’ allegations fall short of these requirements. In the Amended Complaint, Plaintiffs only assert that Defendants
“used interstate wires and mail to transmit false financial statements [and] fraudulent UCC filings.” (Am. Compl. ¶ 251).
Plaintiffs do not identify any specific misrepresentation, explain why it was false, or otherwise set forth a scheme designed to
deprive them of property by trick or deceit. Although Plaintiffs invoke the mails and wires, they do not allege the circumstances
of any mailing or transmission—when it occurred, by whom, to whom, or how it furthered a fraudulent plan. The same is true
for the allegations in the Gokhbergs’ opposition. (Plaintiffs’ Combined Opposition, ECF No. 40 (“Pls.’ Opp.”) at 7). Plaintiffs
contend that the “200 Corbin Insider Group”—comprising the cooperative, its board members, the managing agent, outside
counsel, and the city marshals—operated with a common purpose of seizing Apartment 6MN, with each actor playing a discrete
role (board members voting policy, the agent mailing arrears notices, counsel drafting filings, and marshals enforcing them).
(Id.) These generalized and conclusory allegations are wholly insufficient under Rule 9(b) and do not plausibly plead mail or
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wire fraud as predicate acts. See Mills, 12 F.3d at 1176 (finding that allegations on mail and wire fraud, when pled as RICO
predicate acts, must satisfy Rule 9(b)).
B. Money Laundering
*5 Plaintiffs’ allegations of money laundering likewise fail to state a predicate act.
To state a claim for money laundering under RICO, a plaintiff must plead: “(1) that the defendant conducted a financial
transaction; (2) that the transaction in fact involved the proceeds of specified unlawful activity as defined in [18 U.S.C.] §
1956(c)(7); (3) that the defendant knew that the property involved in the financial transaction represented the proceeds of some
form of unlawful activity; and (4) that the defendant knew that the financial transaction was designed in whole or in part to
conceal or disguise the source, ownership, control, etc., of those proceeds.” Dale v. Banque SCS Alliance S.A., No. 02 Civ. 3592
(RCC) (KNF), 2005 WL 2347853, at *5 n.2 (S.D.N.Y. Sept. 22, 2005) (citing United States v. Maher, 108 F.3d 1513, 1527–28
(2d Cir. 1997)); see also In re 650 Fifth Ave. & Related Properties, 777 F. Supp. 2d 529, 558–59 (S.D.N.Y. 2011).
Here, Plaintiffs allege that Defendants “transferred misappropriated funds through various entities, including Corbin Realty
LLC, to conceal the illegal source and use of these funds for personal benefit.” (Am. Compl. ¶ 253). This allegation does not
identify a particular financial transaction, let alone facts showing that the transaction involved “proceeds of specified unlawful
activity” under Section 1956(c)(7). Nor does it allege that any Defendant knew the property involved represented such proceeds,
or that the transaction was designed to conceal the source or ownership of those proceeds. Instead, the complaint offers only
conclusory references to laundering money without factual detail as to what occurred, when, by whom, or with what knowledge.
C. Bribery
The Court considers Plaintiffs’ bribery allegations under both federal law and state law. See 18 U.S.C. § 1961(1).
Federal law defines bribery as “giving or attempting to give something of value to a public official to influence an official act,
commit fraud, or to omit any act in violation of his lawful duty, or for a public official to demand something of value to do
the same.” 18 U.S.C. § 201. “Pursuant to 18 U.S.C. § 201 (bribery of a public official), the person receiving the alleged bribe
must be a federal official.” Laverpool v. New York City Transit Auth., 760 F. Supp. 1046, 1058 (E.D.N.Y. 1991). Thus, as a
threshold matter, a bribery predicate requires a suitable federal public official. Here, Plaintiffs allege that Defendants “engaged
in bribery of third parties, including but not limited to city marshals.” (Am. Compl. ¶ 253). But New York City marshals are
not “federal official[s]” within the meaning of § 201(a)(1). See United States v. Aloi, 449 F. Supp. 698, 709 n.14 (E.D.N.Y.
1977) (interpreting Second Circuit precedent to hold that a city official was not a federal public official under § 201); see also
United States v. Hoskins, 520 F. Supp. 410, 414 (N.D. Ill. 1981) (explaining that persons acting on behalf of a state or municipal
government are not “acting for or on behalf of the United States” within § 201).
Nor have Plaintiffs pleaded facts that would plausibly state a violation of New York's bribery statutes, which may serve as
RICO predicates if “chargeable under State law and punishable by imprisonment for more than one year.” 18 U.S.C. § 1961(1).
Bribery is defined under New York Penal Law Sections 180.00–180.55 (bribery not involving public servants) and 200.00–
200.50 (bribery involving public officials). Here, only Sections 200.00–200.50 are relevant. According to Section 200.00 of
the New York Penal Law, “a person is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any
benefit upon a public servant upon an agreement or understanding that such public servant's vote, opinion, judgment, action,
decision or exercise of discretion as a public servant will thereby be influenced.” N.Y. Penal Law § 200.00.
*6 Plaintiffs, however, do not identify which provision of New York law Defendants allegedly violated, nor do they allege
any facts regarding “an agreement or understanding” with a marshal, the “value of the benefit” conferred, or the “official act” to
be influenced. The bare assertion of “bribery” is therefore conclusory and does not plausibly allege a felony chargeable under
New York law. Absent factual allegations satisfying the elements of either federal or state bribery, Plaintiffs have not pleaded
a predicate act for bribery under RICO.
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With no adequately pleaded predicate acts, Plaintiffs fail to properly plead a “pattern of racketeering activity,” 4 so their Section
1962(c) claim fails; the Section 1962(d) conspiracy claim fails for the same reason. Capital Asset Mgmt., Inc., 385 F.3d at 182.
II. Plaintiffs’ FHA Claim Is Inadequately Pleaded and Untimely
Plaintiffs’ FHA retaliation theory rests on four allegations: (1) that Yury “was deprived of his use of Apt. 6MN ... as a result of
retaliation for raising accounting and legal concerns” (Am. Compl. ¶ 102); (2) that Yury “was deprived of his ability to rent or
sell” due to withheld permission, failure to process a buyer's application, and alleged discrimination against buyers with children
and persons with disabilities (id. ¶ 102); (3) that “defendants have retaliated ... over objections and requests for information” (id.
¶ 127); and (4) that certain defendants “retaliated ... by engaging in discriminatory practices, obstructing [Plaintiffs’] ability
to rent or sell ... and taking adverse actions ... for raising concerns about illegal activities and mismanagement” (id. ¶ 260).
Defendants argue these allegations fail to state a claim and are time-barred (ECF No. 26-3 at 13–19; ECF No. 44 at 7–8); the
Court agrees.
The FHA forbids discrimination in housing because of race, color, religion, sex, familial status, national origin and disability.
See 42 U.S.C. §§ 3604–3606. Section 3617 prohibits retaliation for exercising rights under the FHA. See 42 U.S.C. § 3617;
Favourite v. 55 Halley St., Inc., 381 F. Supp. 3d 266, 278 (S.D.N.Y. 2019). To state a retaliation claim under the FHA, a plaintiff
must allege: (1) that he engaged in protected activity by opposing conduct prohibited under the FHA; (2) that the defendant(s)
was aware of the protected activity; (3) that the defendant(s) subsequently took adverse action against the plaintiff; and (4) that
there is a causal connection between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in
the adverse action.’ ” Favourite, 381 F. Supp. 3d at 278 (quoting Lynn v. Vill. of Pomona, 373 F. Supp. 2d 418, 432 (S.D.N.Y.
2005)). The term “protected activity” 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) (cleaned up).
*7 Here, Plaintiffs fail to allege that they engaged in any protected activity—action taken to protest or oppose statutorily
prohibited discrimination. Plaintiffs assert retaliation “for raising accounting and legal concerns involving defendants”, or “over
objections and requests for information”, and for “raising concerns about illegal activities and mismanagement” shareholder
disputes—not for opposing or reporting housing discrimination prohibited by the FHA. (Am. Compl. ¶¶ 98, 102, 127, 260). In
their opposition, Plaintiffs further point to a rejected application by a prospective purchaser, Dmitry Basov, and contend that
Yury insisted on fair treatment. (Pls.’ Opp. at 10). Plaintiffs make only general references to alleged discrimination against
prospective buyers “based on the number of children” or against “persons with disabilities,” and these assertions are not tied
to any protected activity by Plaintiffs themselves. (Am. Compl. ¶ 102). Plaintiffs have simply failed to plead that they engaged
in any protected activity.
The claim is also untimely. FHA claims are subject to a two-year statute of limitations. See 42 U.S.C. § 3613(a)(1)(A) (providing
in relevant part that a civil action may be commenced “not later than 2 years after the occurrence or the termination of an
alleged discriminatory housing practice”). For example, in Pantoja v. Scott, the court held that the statute of limitations began
to run when the defendant refused to provide secondary financing, which “occurred or terminated” on the date of the closing,
even though eviction and rescission proceedings followed. No. 96 Civ. 8593 (AJP), 2001 WL 1313358, at *9 (S.D.N.Y. Oct.
26, 2001). The court further explained that the continuing violation doctrine did not apply because the alleged discriminatory
act concluded at the closing, and later events were merely consequences rather than new violations. Id. at 10–11. Likewise
here, any possible FHA violation ended no later than the September 1, 2021 foreclosure sale, when Plaintiffs’ housing interest
in Apartment 6MN was extinguished, even if they continued to feel its effects afterward. (Am. Compl. ¶¶ 76–83). Plaintiffs
commenced this action on October 4, 2024—more than two years later. (ECF No. 1). Accordingly, the FHA retaliation claim
is time-barred.
For these reasons, Plaintiffs’ FHA retaliation claim is dismissed.
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III. Plaintiffs’ State-Law Claims Are Dismissed under Rooker–Feldman Doctrine
“The Rooker–Feldman doctrine prevents the lower federal courts from exercising jurisdiction over cases brought by ‘state-
court losers’ challenging ‘state-court judgments rendered before the district court proceedings commenced.’ ” Lance v. Dennis,
546 U.S. 459, 460 (2006) (per curiam) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005));
see also Hoblock v. Albany County Bd. of Elecs.,422 F.3d 77, 85 (2d Cir.2005) (same). The Rooker–Feldman doctrine applies
where the federal-court plaintiff: (1) lost in state court, (2) complains of injuries caused by the state-court judgment, (3) invites
the district court to review and reject the state court judgment, and (4) commenced the district court proceedings after the state-
court judgment was rendered. Hoblock, 422 F.3d at 85; see also Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423,
426 (2d Cir. 2014).
The Court observes that Plaintiffs’ federal complaint is, in substance, an attack on two separate state-court judgments: first, the
March 16, 2022 judgment of eviction entered by the New York City Housing Court (the “Housing Court Judgment”); and second,
the July 24, 2024 dismissal of their action in the New York Supreme Court, Kings County (the “Kings County Dismissal”).
Under Hoblock, two of the four Rooker–Feldman requirements are plainly satisfied. Plaintiffs are “state-court losers” within the
meaning of the doctrine, having lost possession of apartment 6MN in Housing Court and suffered dismissal of their subsequent
claims in Supreme Court. 5 Likewise, both judgments were rendered well before the commencement of this action in October
2024, satisfying the timing requirement. 6
*8 In determining the second and third requirements, the Court first considers the Kings County Dismissal, then turns to the
Housing Court Judgment.
A. The Kings County Dismissal
The Court begins with the Kings County Dismissal. That order dismissed, in its entirety, Plaintiffs’ claims against 200
Corbin Owners Corp., Arthur Weiner, Alla Berger, Irene Buch, Israel Odesky, United Management Corp., Corbin Realty LLC,
Rosenberg & Estis, P.C., Harvey D. Kampton, Elton and Sarah Cohn, and Mannion Auctions, LLC. (ECF No. 29-8). In this
action, Plaintiffs assert the very same state-law causes of action against those same defendants, and seek relief that would
effectively nullify the Kings County Dismissal.
Federal courts in this Circuit have repeatedly emphasized that the critical inquiry under Rooker–Feldman is whether the injury
complained of was caused by the state court judgment itself. See McKithen v. Brown, 481 F.3d 89, 97–98 (2d Cir. 2007). That
principle applies with equal force to default judgments and dismissals. See Shieh v. Chase Bank USA, N.A., No. 11–CV–5505
(CBA)(SMG), 2012 WL 2678932, at *5 (E.D.N.Y. July 6, 2012) (holding that “[Rooker–Feldman] applies to default judgments
just as it does to other types of judgments,” and that challenges must be brought through state vacatur procedures); Granger
v. Harris, No. CV–05–3607 (SJF)(ARL), 2007 WL 1213416, at *5 (E.D.N.Y. Apr. 24, 2007) (finding that claims of wrongful
service and a resulting lien “in essence, seek to overturn the default judgment entered against Granger in the state court action”).
Here, by reasserting essentially the same claims against the same defendants, Plaintiffs are, in substance, inviting this Court to
undo the injury inflicted by the Kings County Dismissal. The causal link is direct: absent the Kings County Dismissal, Plaintiffs
would still have a vehicle for the relief they now seek. Thus, Plaintiffs’ federal complaint falls squarely within the second and
third prongs of the doctrine, because it both complains of injuries caused by the state-court judgment and invites this Court to
review and reject that judgment.
Accordingly, the state-law claims against the Co-op Defendants, the Professional Defendants, the Purchaser Defendants, Corbin
Realty LLC, and the Auction Defendant are dismissed for lack of subject matter jurisdiction.
B. The Housing Court Judgment
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The only defendants not encompassed by the Kings County Dismissal are the Marshal Defendants, and the claims against
them necessarily rise or fall with the Housing Court Judgment. The Amended Complaint alleges that the Marshal Defendants
“facilitated the unlawful seizure and fraudulent transfer of Apartment 6MN” by executing the eviction order. (Am. Compl. ¶
256). But, as the Marshal Defendants themselves argue, their role was limited to carrying out the Housing Court Judgment.
(ECF No. 12-6 at 6).
In Bush v. Danziger, the court held that the plaintiff's alleged injuries—including the lockout by a marshal, the removal of
belongings by movers, and the actions of NYCHA employees—were all “produced by a state-court judgment and not simply
ratified, acquiesced in, or left unpunished by it.” No. 06 Civ. 5529 (PKC), 2006 WL 3019572, at *4 (S.D.N.Y. Oct. 23, 2006).
The Housing Court judgment in favor of NYCHA was the direct legal cause of the eviction, and each downstream injury flowed
from enforcement of that judgment. The court explained that the source of injury was the Housing Court judgment itself, because
without that order none of the alleged injuries would have occurred.
*9 Here, the same reasoning applies. Plaintiffs’ allegations against the Marshal Defendants are not independent of the Housing
Court Judgment but are inseparable from it, because their alleged misconduct consisted entirely of executing the eviction
order. Without the Housing Court Judgment, the Marshal Defendants would have had no authority to act and no injury would
have followed. The injuries Plaintiffs ascribe to the Marshal Defendants were “produced by a state-court judgment,” Hoblock,
422 F.3d at 88. Thus, Plaintiffs’ claims against the Marshal Defendants also satisfy the second and third prongs of Rooker–
Feldman. 7
Because the alleged injuries all flow directly from these judgments, the Court lacks subject matter jurisdiction over Plaintiffs’
First through Tenth Causes of Action under the Rooker–Feldman doctrine. 8
IV. Supplemental Jurisdiction Over State-Law Claims Is Declined
Even if Rooker–Feldman did not deprive the Court of subject-matter jurisdiction, dismissal of Plaintiffs’ state law claims would
be appropriate. See 28 U.S.C. § 1367(a). “[W]here all the federal claims have been dismissed at a relatively early stage, the
district court should decline to exercise supplemental jurisdiction over pendent state-law claims.” Astra Media Grp., LLC v.
Clear Channel Taxi Media, LLC, 414 F. App'x 334, 337 (2d Cir. 2011); see also Marcus v. AT & T Corp., 138 F.3d 46, 57
(2d Cir.1998). Dismissal is favored because it allows “state courts ... if so called upon, [to] decide for themselves whatever
questions of state law this case may present.” Giordano v. City of N.Y., 274 F.3d 740, 754 (2d Cir. 2001) (citation omitted). After
considering these factors, the Court declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state-law claims.
V. Leave to Amend Will Not Be Granted
Courts in this Circuit often consider whether pro se litigants should be afforded leave to amend upon the dismissal of their
claim. Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795–96 (2d Cir. 1999); Branum v. Clark, 927 F.2d 698, 705 (2d Cir.
1991). However, “[l]eave to amend ... may properly be denied for: ‘undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, futility of amendment, etc.’ ” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d
Cir. 2008) (citation omitted).
Here, the Gokhbergs have already amended once, and the defects identified here—jurisdictional bars under Rooker–Feldman,
untimeliness under the FHA, and substantive pleading deficiencies in the RICO claim 9 —are not ones that could be cured by
better pleading. Tocker v. Philip Morris Cos., Inc., 470 F.3d 481, 491 (2d Cir. 2006) (holding that “a motion for leave to amend a
complaint may be denied when amendment would be futile.” (citing Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003))); Wlosinski
v. Smith, No. 17-CV-6865-FPG, 2018 WL 1827671, at *4 (W.D.N.Y. Apr. 17, 2018) (declining to grant leave to amend because
the court did not have subject matter jurisdiction pursuant to the FTCA). Under these circumstances, leave to amend is denied.
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CONCLUSION
*10 For the foregoing reasons, Defendants’ motions to dismiss (ECF Nos. 12, 26–27, 28–29, 31–32, 37, 38) are granted. The
Clerk of Court is respectfully directed to enter judgment and close the case.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 2782547
Footnotes
1 Corbin Realty LLC and the Auction Defendant did not file a motion to dismiss. However, the Court addresses the
claims against these parties sua sponte. District courts have the inherent authority to dismiss meritless claims sua sponte.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000) (per curiam) (affirming the district
court's conclusion that it had the power to dismiss a frivolous action sua sponte); Wachtler v. Cty. of Herkimer, 35
F.3d 77, 82 (2d Cir. 1994) (“The district court has the power to dismiss a complaint sua sponte for failure to state a
claim.”) (quoting Leonhard v. United States, 633 F.2d 599, 609 n.11 (2d Cir. 1980)). Plaintiffs must be given notice and
an opportunity to be heard, but a court can dismiss claims sua sponte, particularly where a defendant has neither been
served nor appeared. Alki Partners, L.P. v. Vatas Holding GMBH, 769 F. Supp. 2d 478, 499 (S.D.N.Y. 2011) (dismissing,
sua sponte, claims against a non-appearing, non-moving defendant where motions by other defendants put the plaintiff
on notice of the ground for dismissal), aff'd sub nom Alki Partners, L.P. v. Windhorst, 472 F. App'x 7 (2d Cir. 2012)
(summary order).
2 Unless otherwise noted, all facts are drawn from the Plaintiffs’ Amended Complaint (ECF No. 10) and are assumed
true for purposes of these motions.
3 The Amended Complaint contains a version that is redlined over the original complaint. (ECF No. 10 at 36-73). The
references herein are to the Amended Complaint appearing at ECF No. 10 pages 1-35, which the Court construes as
the operative pleading.
4 The Court further notes that even if Plaintiffs could adequately allege two predicate acts—which they have not—the
continuity element of a RICO “pattern” can never be satisfied on the facts alleged. A RICO pattern may be established
only through open-ended or closed-ended continuity. Reich v. Lopez, 858 F.3d 55, 60 (2d Cir. 2017). Plaintiffs cannot
show open-ended continuity because the alleged scheme was inherently terminable: it was directed solely at recovering
possession of a single apartment and ended with the Housing Court's judgment of possession and eviction on March 16,
2022. See Cofacrédit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 244 (2d Cir. 1999); Spool v. World Child Int'l
Adoption Agency, 520 F.3d 178, 185 (2d Cir. 2008). Nor can Plaintiffs show closed-ended continuity. Plaintiffs contend
that the misconduct dates to 2015 when the co-op mailed them “fraudulent arrears notices.” (Pls. Opp. at 7–8) The Court
is not convinced, as disputed arrears in 2015 is at most a billing dispute rather than a statutory predicate act. The earliest
arguable predicate act was the foreclosure in September 2020 and the latest was the March 2022 eviction, a period
of approximately eighteen months. The Second Circuit has “never held a period of less than two years to constitute a
‘substantial period of time’ ” sufficient for closed-ended continuity. Cofacrédit, S.A., 187 F.3d at 242.
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5 Plaintiffs contend that only Yury “lost” in state court. (Pls’ Opp. at 5). The record forecloses that contention: whatever
the posture in Housing Court, both Yury and Marat were plaintiffs in the 2023 Kings County action, and that complaint
was dismissed in its entirety on July 24, 2024. (ECF No. 29-8).
6 Plaintiffs argue that the relevant judgment for Rooker–Feldman purposes is the February 6, 2025 order denying vacatur.
(Pls.’ Opp. at 5). That contention is misplaced. The operative judgments are the March 16, 2022 Housing Court judgment
and the July 24, 2024 Kings County dismissal, because those judgments created the injuries of which Plaintiffs complain.
See McKithen v. Brown, 481 F.3d 89, 98 (2d Cir. 2007) (“the applicability of the Rooker–Feldman doctrine turns ... on
the causal relationship between the state-court judgment and the injury of which the party complains in federal court”).
The 2025 vacatur denial did not itself cause any new injury, but merely left the prior judgments undisturbed.
7 The Court also notes that a substantial portion of Plaintiffs’ state-law counts—though styled against non-marshal
defendants—seek relief that would effectively undo the Housing Court Judgment, including challenges to the auction
and share reissuance, the eviction and seizure of property, and subsequent transfers of Apartment 6MN. The remedies
requested, such as quiet title, restoration of possession, reinstatement of liens, invalidation of share/title reissuance, and
disgorgement of sale proceeds, would require review and reject the eviction's operative effect and thus amount to a de
facto appeal.
8 The Marshal Defendants also invoke quasi-judicial immunity. Because the Court dismisses Plaintiffs’ state-law claims
under the Rooker–Feldman doctrine and their federal claims on other grounds, the Court need not reach this argument.
9 The RICO claim fails not merely for lack of factual detail but because the continuity element of a “pattern of racketeering
activity” cannot be satisfied on the facts alleged and cannot be cured even if Plaintiffs were to plead additional details.
See supra note 4.
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Hevner v. Village East Towers, Inc., Not Reported in F.Supp.2d (2011)
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KeyCite Yellow Flag
Distinguished by CNY Fair Housing, Inc. v. Welltower Inc., N.D.N.Y., February 28, 2022
2011 WL 666340
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Debra HEVNER, Plaintiff,
v.
VILLAGE EAST TOWERS, INC., Barbara McLoughlin and David Baron, Defendants.
No. 06 Civ. 3983(GBD)(FM).
|
Feb. 7, 2011.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, District Judge.
*1 Pro se Plaintiff Debra Hevner (“Hevner”) brings this housing discrimination action pursuant to the Fair Housing
Amendments Act of 1988, 42 U.S.C. § 3601, against defendants Village East Towers, Inc. (“VET”), Barbara McLoughlin, and
David Baron (collectively, “Defendants”). 1 Hevner alleges that Defendants, a limited equity cooperative housing development
and its officers, failed to provide her reasonable housing accommodations for her depression. Defendants move for summary
judgment pursuant to Fed.R.Civ.P. 56.
This Court referred the matter to Magistrate Judge Frank Maas. Magistrate Judge Maas issued a Report and Recommendation
(“Report”) recommending that the Court grant the motion for summary judgment and dismiss the case.
The Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. 28
U.S.C. § 636(b)(1). When there are objections to the Report, the Court must make a de novo determination of those portions of
the Report to which objections are made. Id.; see also Rivera v. Barnhart, 432 F.Supp.2d 271, 273 (S.D.N.Y.2006). The district
judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. See Fed.R.Civ.P. 72(b);
28 U.S.C. § 636(b)(1)(c). It is not required, however, that the Court conduct a de novo hearing on the matter. See United States v.
Raddatz, 447 U.S. 667, 676 (1980). Rather, it is sufficient that the Court “arrive at its own, independent conclusions” regarding
those portions to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189–90 (S.D.N.Y.1985) quoting Hernandez
v. Estelle, 711 F.2d 619. 620 (5th Cir.1983). When no objections to a Report are made, the Court may adopt the Report if
“there is no clear error on the face of the record.” Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y.2005)
(citation omitted).
In his Report, Magistrate Judge Maas advised the parties that failure to file timely objections to the Report would constitute
a waiver of those objections. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Plaintiff timely filed an objection to which the
Defendant responded. Plaintiff's substantive objections were not meritorious and the new evidence she provided was of no
probative value. Therefore, this Court adopts the Report in its entirety.
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Allegations of Discrimination
Hevner suffers from asthma, anxiety, and “chronic major depression exacerbated by bouts of severe clinical depression,” Hevner
Dep. at 16:2–3, 14:10–16, 70:19–21. Her principal claim is that VET's failure to consider and to grant her requests for the Skewed
Rent Program (“SRP”) violated the FHAA's requirement that landlords and sellers provide “reasonable accommodations” for
handicapped individuals. See 42 U.S.C § 3604(f)(3)(B). Hevner also alleges that VET discriminated against her by making
“false claims” against her including (i) falsely claiming that she had not submitted a required income affidavit for 2004; (ii)
falsely claiming she owed VET tens of thousands of dollars in 2010; (iii) falsely claiming that she had failed to fill out a window
guard form in 2009; (iv) failing to act on her noise complaints; (v) falsely submitting an application for Section 8 housing
benefits and listing someone elses name as owner of her apartment.
*2 After careful review of the entire record including Plaintiff's voluminous submissions, Magistrate Judge Maas properly
concluded that there is no genuine issue of material fact and summary judgment was warranted. Even a pro se litigant cannot
overcome a motion for summary judgment by relying on “bald assertion[s], completely unsupported by evidence.” Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir.1991).
To prevail on her FHAA discrimination claim, Hevner must show that the landlord “refus[ed] to make reasonable
accommodations in rules, policies, practices, or service, when such accommodation may be necessary to afford such person
equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). A plaintiff may establish discrimination under the
FHA under one of three theories: disparate treatment, disparate impact, or failure to make reasonable accommodations. Reid
v. Zackenbaum, 2005 WL 1993394, at *3 (E.D . N.Y. Aug. 17, 2005) (citing Tsombanidis v. West Haven Fire Dep't, 352 F.3d
565, 573 (2d Cir.2003)).
As to her reasonable accommodation claim, Plaintiff must establish:
(1) that she is handicapped within the meaning of § 3602(h) and defendant knew or should have known of
this fact; (2) that an accommodation is necessary to afford the handicapped person an equal opportunity
to use and enjoy the dwelling; (3) that such accommodation is reasonable; and (4) that the defendant
refused to make the requested accommodation.
Echeverria v. Krystie Manor, LP, 2009 WL 857629, at *6 (E.D.N.Y. Mar. 30, 2009) (citing 42 U.S.C. § 3604(f)(3)(B)). However,
the FHAA does not require that landlords and sellers provide economic accommodations. See Salute, 136 F.3d at 302. The
FHAA “addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with
having handicaps.” Id. at 310 (emphasis added).
Hevner fails to establish that any accommodations are “necessary to afford [her] an equal opportunity to use and enjoy the
dwelling.” See id. Hevner seeks reduced maintenance fees, contending that VET should “waive her arrears from 2002 to 2005
and by provide her with skewed rent beginning in June 2005” because of the financial strain her depression causes. Providing
such a remedy would only “remedy her economic status” not provided her with “reasonable accommodations.” See Salute, 136
F.3d at 301. This is insufficient to state an FHAA claim. Salute, 136. F.3d at 302.
Magistrate Judge Maas properly concluded that Hevner would not be entitled to relief under either an intentional discrimination
or disparate impact theory. She has not shown that Defendants were motivated by a discriminatory animus in rejecting her
requests. Further, Hevner provides no evidence that the administration of the reduced rent program had a discriminatory impact
on disabled shareholders as a class.
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Magistrate Judge Maas correctly concluded that all her “false claims” discrimination allegations are independent of her requests
for reduced rent and do not involve any accommodation of Plaintiff's depression. Such an FHAA claim can only be sustained
under an intentional discrimination or disparate impact theory. See Roffman v. Knickerbocker Plaza Assocs., 2008 WL 919613,
at *13 (S.D.N.Y. Mar. 31, 2008) (citing Tsombanidis v.W. Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir.2003)). There is no
evidence in the record that would support either theory. Accordingly, no reasonable jury could find that Defendants' actions
were discriminatory.
Conclusion
*3 Defendant's motion for summary judgment is granted. Plaintiff's complaint is dismissed.
SO ORDERED:
All Citations
Not Reported in F.Supp.2d, 2011 WL 666340
Footnotes
1 Hevner, filed her complaint pro se and is now currently without counsel, but she was represented by counsel at various
points of the proceeding.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Oksen v. Fort Drum Mountain Community Homes, LLC, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2106702
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Natalie J. OKSEN, Plaintiff,
v.
FORT DRUM MOUNTAIN COMMUNITY HOMES, LLC., et al., Defendant.
5:25-CV-822 (AJB/MJK)
|
Signed July 25, 2025
Attorneys and Law Firms
Natalie J. Oksen, Pro Se Plaintiff.
ORDER and REPORT-RECOMMENDATION
Mitchell J. Katz, United States Magistrate Judge
*1 To the Honorable Anthony J. Brindisi, U.S. District Judge:
Oksen began this action on June 25, 2025, by filing a Complaint, and moving for leave to proceed in forma pauperis (“IFP”).
(Dkts. 1, 2). The Clerk sent her Complaint and IFP application to this Court for review. (Dkts. 1, 2).
I. BACKGROUND
In April 2022, the United States military ordered Oksen's spouse to transfer military bases. (Complaint, Dkt. 1, at ¶ 2). This
order prompted Oksen and her family's move to Fort Drum, New York. (Id.). In response to this required move, Oksen contacted
Fort Drum Mountain Community Homes LLC's housing office and requested a reasonable accommodations form. (Id.). Before
moving into her new home, Oksen submitted the form to the housing office, and attached “documentation from licensed medical
providers, which clearly outlined the medical necessity of” her requested accommodations. (Id. at ¶ 4). Presumably, the medical
forms support Oksen's claim that she suffers from benign idiopathic intracranial hypertension; polycystic ovary syndrome; major
depressive disorder; epilepsy; chronic daily migraines; migralepsy; keratoconus; gastroparesis; and irritable bowel disease. (Id.
at pg. 6-7).
A month after Oksen submitted the reasonable accommodations request form, Fort Drum Mountain Community Home's
Property Management (“Property Management”) partially approved it. (Id. at ¶ 3). Specifically, Property Management granted
Oksen's request for carpet-free flooring, a non-shared common area, and a 2-bedroom, 1.5-bathroom housing unit. (Id.). But
they denied her request for no shared walls and recently renovated housing. (Id.).
Once Oksen moved into the housing unit, she found carpeting throughout the home, despite the approved accommodation. (Id.
at ¶ 6). When she notified Defendants of her issue, they said, “the carpet on the stairs [was] required for safety.” (Id. at ¶ 7).
At this point, Oksen did not file a formal complaint. (Id. at ¶ 11). She and Property Management opted to conduct an informal
walkthrough of the housing unit, and during the walkthrough, Oksen communicated her concerns to the property manager. (Id.
at ¶ 11). After this, Oksen and Property Management's staff met. (Id. at ¶ 12). During this meeting, Property Management staff
allegedly told Oksen “she had one week to move out or relocate off post” and if she did not, they would notify her spouse's
military chain of command. (Id. at ¶ 12). There are no allegations that Oksen moved out within a week or that her spouse's
military superior was notified. See generally (id.).
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Sometime in 2023, Oksen emailed the Fort Drum Mountain Community Homes Project Director, noting her perceived
Americans with Disability Act (“ADA”) violations. See (id. at ¶ 14). In response, the project director told Oksen that her
accommodation request was considered closed and he invited her to submit a new request. (Id.).
Yet in July 2023, Oksen filed a Complaint with the New York State Division of Human Rights, alleging Fort Drum Mountain
Community Homes, LLC., and its employees engaged in unlawful discriminatory housing practices. (Division Decision One,
Dkt. 1-1, at pg. 1). Specifically, Oksen alleged those Defendants treated her differently because of her disability. (Id.).
*2 At the end of 2023, Oksen requested a “move over due to” her “worsening medical issues.” (Complaint, Dkt. 1, at ¶ 16). In
addition to that request, Oksen submitted a new reasonable accommodations request, which included “all previously requested
modifications” and “additional modifications ... due to changes in” her “medical condition.” (Id.). At no point during the process
did Defendants issue a formal denial. (Id.). Rather, Property Management approved her move-over request, but they told her
that no handicap-accessible homes were available. (Id. at ¶ 18).
On June 10, 2024, Property Management showed Oksen a newly-available-handicap-accessible-housing unit and notified her
that she had one week to vacate her unit and move into the new one. (Id. at ¶ 20). Oksen reluctantly complied. See (Id.). Four
days later, Oksen emailed Property Management and notified them that the AC unit was broken and needed to be replaced. (Id.
at ¶ 22). She also told Property Management that the walk-in shower was not the correct size. (Id. at ¶ 22) (cleaned up). Oksen
claims Property Management denied that the broken AC unit was an emergency. (Id.). Additionally, Oksen created several work
orders, but the orders were repeatedly rescheduled. (Id. at 23).
So on September 17, 2024, Oksen filed another Complaint with the Human Rights Division alleging the same unlawful practices.
(Division Decision Two, Dkt. 1-2, at 1). Yet on June 3, 2025, the Human Rights Division determined that there was no probable
cause to support Oksen's Complaints of unlawful behavior. (Id. at 3; Division Decision One, Dkt. 1-1, at 3).
As of May 2025, Oksen alleges that her backyard remains inaccessible. (Complaint, Dkt. 1, at ¶ 27).
Oksen now sues Fort Drum Mountain Community Homes, LLC., Fort Drum Mountain Community Homes Property
Management, LLC., Lendlease (US) Public Partnerships, LLC., Winn Residential Military Housing Services, LLC., Winn
Companies (the parent company of Winn Residential), and Centinel. (Complaint, Dkt. 1, at pgs. 2, 5-6). In her Complaint, Oksen
alleges that Defendants violated the Fair Housing Act (“FHA”), New York Human Rights law, ADA, and Servicemembers
Civil Relief Act (“SCRA”).
II. IFP APPLICATION
Oksen declares in her IFP application that she is unable to pay the filing fee. (Dkt. 2). And after reviewing her application, this
Court agrees. Thus, the Court finds that Oksen is financially eligible for IFP status.
III. STANDARD OF REVIEW
In addition to determining whether plaintiffs meet the financial criteria to proceed IFP, courts must also review the sufficiency
of the allegations in the complaint under 28 U.S.C. § 1915. That statute requires a court to dismiss a case—at any time—if it
determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks
monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915 (e)(2)(B)(i)-(iii).
When determining whether an action is frivolous, courts must consider whether the complaint lacks an arguable basis in law or
in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007); 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process and to discourage
the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974).
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To be sure, courts have a duty to show liberality toward pro se litigants and must use extreme caution when sua sponte dismissing
pro se complaints before adverse parties have been served and had an opportunity to respond. See Fitzgerald v. First E. Seventh
St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte
even when plaintiff has paid the filing fee). But courts still have a responsibility to determine that a claim is not frivolous before
permitting a plaintiff to proceed. See id.
III. DISCUSSION
*3 The Court recommends dismissing Oksen's Complaint in its entirety without prejudice and without leave to amend. First,
the Northern District does not have subject matter jurisdiction over Oksen's Human Rights Law claims. Second, the District
Court should dismiss Oksen's SCRA claim without prejudice but with leave to amend because it does not comply with Fed.
R. Civ. P. 8. Third, the Court should also dismiss Oksen's ADA and FHA, claims because neither claim survives § 1915’s
forgiving review.
A. The District Court cannot hear Oksen's Human Rights Law claims because N.Y. Exec. Law §§ 297 and 298
prevent Oksen from bringing her case to Federal court.
The Court recommends dismissing Oksen's Complaint without prejudice and without leave to amend. New York Human Rights
Law contains an election-of-remedies provision. Once plaintiffs file a complaint with the human rights division, they can
only seek redress for the Human Rights Law claims in New York's trial court. Federal Courts no longer have subject matter
jurisdiction. Here, Oksen filed two Complaints with the Human Rights Division. So the Northern District lacks jurisdiction to
hear her Human Rights Law claims.
“N.Y. Exec. Law § 297(9) provides a right of actions against unlawful discriminatory practice.” York v. Ass'n of Bar of City of
New York, 286 F.3d 122, 127 (2d Cir. 2002). Specifically, § 297(9) allows persons “claiming to be aggrieved by an unlawful
discriminatory practice” to file suit “in any court of appropriate jurisdiction” unless that “person has filed a complaint ... with any
local commission on human rights.” N.Y. Exec. Law § 297(9). So by its terms, “the election-of-remedies provision contained
in § 297(9) ... precludes” plaintiffs from bringing human rights law “claims that were first brought before the” Human Rights
Division to another court “as a plenary action.” McDonald v. City of New York, 786 F. Supp. 2d 588, 615 (E.D.N.Y. 2011)
(cleaned up). In essence, plaintiffs limit their choice of remedies. Importantly, N.Y. Exec. Law § 298 identifies plaintiffs’ remedy:
“once a plaintiff brings a case before the” Human Rights Division, they “may appeal only to the Supreme Court of the State of
New York.” York, 286 F.3d at 127 (citing N.Y. Exec. Law § 298). The election-of-remedies provision does not apply when the
Division dismisses the complaint “on the grounds of administrative convenience” or “untimeliness.” N.Y. Exec. Law § 297(9).
But if the Division dismisses a claim for lack of probable cause the Plaintiff cannot litigate those same Human Rights Law
claims in Federal court. See MacEntee v. IBM (Int'l Bus. Machines), 783 F. Supp. 2d 434, 447 (S.D.N.Y. 2011).
The election-of-remedies provision applies to Oksen's case. Attached to Oksen's Complaint are two Division decisions
dismissing Oksen's claims for lack of probable cause. See (Division Decision One, Dkt. 1-1, at 3; Division Decision Two, Dkt.
1-2, at 3). Working backwards, the decisions mean that Oksen filed two complaints with the Human Rights Division. In fact,
Oksen confirms that she filed a complaint with the Division. See (Complaint, Dkt. 1, at ¶ 15). As a result, Oksen necessarily
availed herself of § 297(9)’s election-of-remedies provision. See York, 286 F. 3d at 127.
And since the election-of-remedies provision applies to Oksen's case, it bars the District Court from hearing Oksen's Human
Rights Law claims. “The election-of-remedies bar is jurisdictional.” Thompson v. Odyssey House, 14-CV-3857, 2015 WL
5561209 at *11 (E.D.N.Y Sept. 21, 2015). “An individual who files a complaint with the” Human Rights Division “is
jurisdictionally barred from filing a lawsuit in state or federal court for the same claims.” Id. (cleaned up) And “because” Oksen's
“claims arise out of the same group of facts, the matter before this court is jurisdictionally barred.” Carroll v. U.P.S., No. 00–
CV–7032, 2000 WL 1185583, at *3 (2d Cir. Aug. 21, 2000).
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*4 The last paragraph in the Division's decisions do not change the analysis. Both of those paragraphs note that “in cases
alleging housing discrimination only, a person whose complaint has been dismissed” by the division “after investigation for
lack of jurisdiction or lack of probable case may file the same cause of action in a court of appropriate jurisdiction pursuant to
this section, unless appeal to the New York State Supreme Court as stated above has been sought.” (Division Decision One,
Dkt. 1-1, at 3; Division Decision Two Dkt. 1-2, at 3-4). Oksen's does not only allege housing discrimination as required by
the second paragraph, but she also alleges violations of the ADA and SCRA. In consequence, this paragraph is not applicable
to Oksen's claim.
B. The Court should dismiss Oksen's SCRA claim because she has failed to state a claim upon which relief can be
granted.
The Court should dismiss Oksen's SCRA claim, without prejudice but with leave to amend. Rule 8 requires plaintiffs to plead
claims with enough specificity to give defendants notice of what they are being sued for. Yet here, Oksen's Complaint does
not identify (nor can this Court find) any statutory hook for her SCRA claim. As a result, Oksen's SCRA claim is not Rule
8 compliant.
Pleadings must contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to
relief ...” Fed. R. Civ. P. 8(a)(2). “The purpose of” Rule 8 “is to give fair notice of the claim being asserted so” adverse parties have
“the opportunity to file a responsive answer, prepare an adequate defense, and determine whether the doctrine of res judicata is
applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (cleaned up). The rule also requires the pleading to include
“a short and plain statement of the grounds for the court's jurisdiction” and “a demand for the relief sought.” Fed. R. Civ. P. 8(a)
(1), (3) (cleaned up). “Although no technical form is required, the Federal Rules make clear that each allegation contained in
the pleading must be simple, concise, and direct.” Cole v. Smrtic, No. 24-CV-847, 2024 WL 4870495, at *2 (N.D.N.Y. 2024)
(cleaned up). Allegations “so vague as to fail to give the defendants adequate notice of the claims against them” are subject to
dismissal. Sheehy v. Brown, 335 Fed. App'x 102, 104 (2d Cir. 2009) (summary order). Indeed, to survive dismissal for failure
to state a claim, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements do not suffice.” Id. (cleaned up).
Oksen alleges that “Defendants threatened to interfere with the military career of” her “spouse by stating they would involve
his military chain of command as retaliation for Plaintiff's pursuit of her legal rights.” (Complaint, Dkt. 1, at 21). She continues,
“Defendants further violated SCRA provisions by improperly conditioning Plaintiff's housing rights and threatening adverse
consequence linked to her spouse's military service.” (Id.). But frankly—even construing her claim liberally, Oksen has not
identified—nor can this Court identify—a specific cause of action SCRA authorizes for threats. See Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (Reminding trial courts to construe pro se complaints liberally). As a result, the
District Court should dismiss Oksen's SCRA claim without prejudice but with leave to amend. See 28 U.S.C. § 1915(e)(2)(B)
(ii) (“the court shall dismiss the case at anytime if the court determined that the action ... fails to state a claim on which relief
can be granted.”).
C. The Court should dismiss Oksen's ADA claim because she has not plausibly alleged that the ADA applies to
Defendants or that the alleged discriminatory treatment occurred because of her disability.
*5 The Court should dismiss Oksen's ADA claim without prejudice but with leave to amend. The ADA prohibits public
entities from discriminating against a disabled person because of their disability. See 42 U.S.C. § 12132. Here, Oksen neither
pleads that Defendants are public entities nor that the discriminatory treatment occurred because of her disability. Thus, her
ADA claim is insufficient.
“Title II of the ADA forbids discrimination against” persons with disabilities in “public life, public services, programs, and
activities.” Avila v. Promesa, Inc., 24-CV-1689, 2024 WL 2747822 at *5 (S.D.N.Y. May 22, 2024) (cleaned up). Specifically,
the ADA prohibits denying “qualified individuals with a disability” the “participation in or ... the benefits of the services,
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programs, or activities of a public entity” because of their disability. 42 U.S.C. § 12132. To sustain an ADA claim, plaintiffs
must plausibly allege three elements: (1) they are “a qualified individual with a disability;” (2) “the defendants are subject to
the act; and” (3) the plaintiff “was denied the opportunity to benefit from defendants’ services, programs, or activities or was
otherwise discriminated against by defendants,” because of their “disability.” Matagrano v. New York State Dep't of Corr. &
Cmty. Supervision, 19-CV-00763 (BKS/DJS), 2020 WL 7338586 at * 12 (N.D.N.Y. Decision 14, 2020). The ADA does not
apply to private entities. See Avila, 2024 WL 2747822 at *5.
Under § 1915’s forgiving standard, Oksen has pled enough information to establish element one—that she is a qualified
individual with a disability. In her Complaint, Oksen lists several medical conditions that could substantially limit major life
activities. See (Complaint, Dkt. 1, at 6). Specifically, she notes benign idiopathic intracranial hypertension; polycystic ovary
syndrome; major depressive disorder; epilepsy; chronic daily migraines; migralepsy; keratoconus; gastroparesis; and irritable
bowel disease as her disabilities. (Id. at 6-7). Thus, element one could be met.
But Oksen's Complaint plausibly allege element two or three even under § 1915’s lenient review.
Taking element two first, Oksen's ADA claim fails. First the Court takes judicial notice of Fort Drum Mountain Community
Homes’ website, which notes: “Fort Drum Mountain Community Homes is a privatized military housing community formed
through a partnership between Centinel and the U.S. Army.” 1 See Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC,
127 F. Supp. 3d 156, 167 (S.D.N.Y. 2015) (“A court may take judicial notice of information publicly announced on a party's
website, as long as the website's authenticity is not in dispute and it is capable of accurate and ready determination.”) (quotation
omitted). From the face of the website, the defendants are private actors, so they are not subject to the ADA. See Avila, 2024
WL 2747822 at *5. And Oksen has not pled that Defendants receive federal funding. See Id. at 4. In consequence, Oksen's
complaint, as it is now, does not plausibly allege element two.
Element three is no different. Construing her claim liberally, Oksen never pled that Defendants alleged discriminatory treatment
occurred because of her disability. That nexus is missing. And because it is, Oksen's claim, as it now stands, fails to state an ADA
claim. See Matagrano, 2020 WL 7338586 at * 12 (N.D.N.Y. Dec. 14, 2020). And because that is true, this Court recommends
that the District Court dismiss Oksen's ADA claim without prejudice and with leave to amend. See 28 U.S.C. § 1915(e)(2)(B)(ii).
D. The Court should dismiss Oksen's FHA and Human Rights Law claims because her Complaint fails to allege
that Defendants refused to make the requested accommodations.
*6 The Court recommends dismissing Oksen's FHA and Human Rights Law claims (if the Court determines that it has
jurisdiction over Oksen's Human Rights Law claim). Relevantly, both claims require plaintiffs to plausibly allege that the
defendants failed to make the necessary accommodations. But here, Oksen provides evidence Defendants made the repairs they
could. Thus, the Complaint, as it is, cannot sustain Oksen's FHA and Human Rights law claims.
“The FHA makes it unlawful to discriminate in the sale or rental or otherwise make unavailable or deny, a dwelling to any renter
because of a” disability. 2 CNY Fair Hous., Inc. v. WellClover Holdings LLC, 738 F. Supp. 3d 175, 190 (N.D.N.Y. 2024) (Sannes
C. J.) (quoting 42 U.S.C. § 3604(f)(3)(B)) (cleaned up). “Discrimination includes a refusal to make reasonable accommodations
in rules, policies, practice, or services when such accommodations may be necessary to afford such persons equal opportunity
to use and enjoy a dwelling.” Id. (cleaned up). Plaintiffs “may establish discrimination under the FHA under one of three
theories: disparate treatment, disparate impact, or failure to make reasonable accommodations.” Hevner v. Vill. E. Towers, Inc.,
06-CIV-3983, 2011 WL 666340 at * 2 (S.D.N.Y. Feb. 7, 2011). To prevail on a reasonable accommodation theory, plaintiffs
must allege: (1) they are “handicapped within the meaning of 42 U.S.C. § 3602(h);” (2) the “defendant knew or should have
known of” the plaintiff's disability; (3) the “accommodation is necessary to afford the” disabled “person an equal opportunity
to use and enjoy the dwelling;” (4) the “accommodation is reasonable”; and (5) “the defendant refused to make the requested
accommodations.” Id. (cleaned up). “Reasonable accommodation claims under the NYSHRL ... are evaluated under the same
framework as claims brought under the FHA.” CNY Fair Hous., Inc., 738 F. Supp. 3d. at 191.
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Oksen's Complaint plausibly alleges element one. To be considered disabled under the FHA, the plaintiff must have an
“impairment which substantially limits one or more of” their “major life activities.” 42 U.S.C. § 3602(h)(1). 3 As discussed
earlier, Oksen has pled ailments that may constitute impairments that substantially limit her major life activities. See (Complaint,
Dkt. 1, at pg. 6). As a result, her Complaint plausibly alleges element one.
Oksen's Complaint plausibly alleges element two. To plead element two, Oksen needs to plausibly allege that Defendants knew
or should have known of her disability. See Hevner, 2011 WL 666340 at *2. The Complaint does so. Oksen submitted a request
for reasonable accommodations to Defendants’ housing office and those “requests were supported by documentation from
licensed medical providers” and they “outlined the medical necessity” of her requested accommodations. (Complaint, Dkt. 1, at
¶¶ 2, 4). Oksen also alleged that Defendants requested more medical documents, which shows that they knew of her disability.
(Complaint, Dkt. 1, at ¶ 14). As a result Oksen's complaint plausibly alleges the second element.
Oksen's Complaint also plausibly alleges elements three and four. Presumably, the medical documentation that Oksen submitted
shows that carpet-free flooring, a larger shower, and a ramp for yard access were reasonable accommodations necessary for
Oksen's use of the housing unit. Thus, the Complaint alleges elements three and four. (Complaint, Dkt. 1, at ¶¶ 3, 21, 23, 27).
*7 Element five is where Oksen's claim dies on the vine. Oksen alleges Defendants showed her a handicap-accessible unit and
she moved into it. (Complaint, Dkt. 1, at ¶ 21). Beyond that, both Human Rights Division decisions identify that Defendants
communicated with Oksen regarding “the needs for repairs at the subject property and completed repairs as necessary.” (Division
Decision Two, Dkt. 1-2, at pg. 3); see also (Division Decision One, Dkt. 1-1, at pg. 2). Flatly, there is not enough information
to plausibly allege that Defendants refused to make Oksen's requested accommodations because of her disability. As a result,
Oksen's Complaint cannot sustain an FHA claim. This analysis extends to Oksen's Human Right Law claim because the analysis
is the same. See CNY Fair Hous., Inc., 738 F. Supp. 3d. at 191. So the Court recommends dismissing Oksen's FHA and Human
Rights Law claims without prejudice but with leave to amend.
* * *
To recap, the Court recommends dismissing Oksen's Complaint in its entirety without prejudice but with leave to amend because
the Northern District does not have subject matter jurisdiction over Oksen's New York Human Rights Law claims, Oksen's
SCRA allegations do not comply with Rule 8, and Oksen's ADA and FHA claims fail to pass muster under § 1915’s forgiving
review.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
ORDERED, that Plaintiff's motion to proceed IFP (Dkt. 2) is GRANTED, 4 and it is further
RECOMMENDED, the District Court dismiss Oksen's complaint, in its entirety, WITHOUT PREJUDICE and WITHOUT
LEAVE TO AMEND because the Court does not have jurisdiction to hear the case; Alternatively it is
RECOMMENDED, the District Court dismiss Oksen's SCRA claim, in WITHOUT PREJUDICE and WITH LEAVE TO
AMEND because it does not comply with Fed. R. Civ. P. 8; it is further
RECOMMENDED, the District Court dismiss Oksen's ADA claim, WITHOUT PREJUDICE but WITH LEAVE TO
AMEND because the Complaint does not allege that the ADA applies to Defendants, or the discrimination occurred because
of her disability; and it is further
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RECOMMENDED, the District Court dismiss Oksen's FHA and Human Rights law claim, WITHOUT PREJUDICE but
WITH LEAVE TO AMEND because the Complaint does not allege that Defendants refused to make Oksen's requested
accommodations; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation on Plaintiff by regular mail. 5
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have 14 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 14 DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993)
(citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
6(a), 6(e), 72.
All Citations
Slip Copy, 2025 WL 2106702
Footnotes
1 https://www.fortdrummch.com/about-us (last visited July 9, 2025).
2 While the statute uses the phrase handicapped, the Court uses the phrase disabled (and attempts to limit the use of the
word handicapped) to avoid using language persons with disabilities may find offensive.
4 The court notes that although Plaintiff's IFP application has been granted, Plaintiff will still be required to pay fees that
he may incur in the future regarding this action, including but not limited to copying and/or witness fees.
5 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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Wilson v. Wilder Balter Partners, Inc., Not Reported in F.Supp.3d (2015)
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2015 WL 685194
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Valerie WILSON, et al., Plaintiffs,
v.
WILDER BALTER PARTNERS, INC., et al., Defendants.
No. 13–CV–2595 (KMK).
|
Signed Feb. 17, 2015.
Attorneys and Law Firms
Valerie Wilson, White Plains, NY, pro se.
Ettawanda Wilson, White Plains, NY, pro se.
Joshua E. Kimerling, Esq., Cuddy & Feder, LLP, New York, NY, for Defendants.
Thomas Aquinas Cunnane, Esq., Cuddy & Feder, LLP, White Plains, NY, for Defendants.
OPINION AND ORDER
KENNETH M. KARAS, District Judge.
*1 Pro se Plaintiffs Valerie Wilson and Ettawanda Wilson (collectively “Plaintiffs”) filed the instant Complaint against Wilder
Balter Partners, Inc. (“Wilder Balter Partners”), Angela Grullon (“Grullon”), Catherine Peagler (“Peagler”), and Juan Gonzalez
(“Juan Gonzalez”) (collectively “Defendants”), alleging that Defendants engaged in discriminatory practices in violation of
the Fair Housing Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601, et seq. (the
“FHA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the “Rehabilitation Act”), Title II of the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12132 (the “ADA”), and Article 15 of the New York State Human Rights Law,
New York Executive Law § 290, et seq. (“NYHRL”). (See Second Am. Compl. (“SAC”) (Dkt. No. 26).) Before the Court is
Defendants' Motion To Dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b) (6). (See
Mot. To Dismiss (“Mot.”) (Dkt. No. 30).) For the following reasons, Defendants' Motion is granted.
I. Background
A. Factual Background
The following facts are drawn from Plaintiffs' Second Amended Complaint and are taken as true for the purposes of resolving
the instant Motion. Plaintiffs are African–American residents in a one-bedroom apartment at Battle Hill House Apartments
(“Battle Hill”) in White Plains, New York. (See SAC at 1, ¶¶ 2, 20.) Valerie Wilson is Ettawanda Wilson's daughter and live-in
aide. (Id.) Plaintiffs allege that even though Ettawanda Wilson's “name was the next and only [name] on [the] waiting list for a
two[-]bedroom” apartment at Battle Hill, Defendants denied her the two[-]bedroom apartment that she wanted—Unit 405—by
discriminating against her or Valerie Wilson on the basis of their race and/or Ettawanda Wilson's disability. (Id. ¶¶ 1–3, 5.)
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Plaintiffs “inform[ed] the management office in writing of [their] need for a two[-]bedroom [apartment],” on January 26, 2013,
and Grullon, the property manager, advised Valerie Wilson that she was waiting for the approval of Peagler, the regional
property manager. (Id. at ¶¶ 7, 15; SAC Ex. 1, at unnumbered 1.) In the meantime, Grullon “continued showing [Unit 405] ...
to prospective tenants, including [Grullon's] own father.” (SAC ¶ 8 .) Moreover, Juan Gonzalez “beg[a]n frequenting the
[Unit,] presumably to prepare the apartment for the next tenants.” (Id. ¶ 9.) Valerie Wilson informed Grullon that she “tried to
communicate with ... Peagler, but when [she] asked for her business card in [the] hope[ ] [that she] could reach out to [Peagler]
by email, [Peagler] was extremely brash and responded, ‘[n]o!’ “ (Id. ¶ 12.) Grullon informed Valerie Wilson that Peagler “said
that [Ettawanda Wilson] is not getting that apartment,” (id. ¶ 13), and Peagler asked Grullon to “call another woman to try
to lease the apartment to her,” (id. ¶ 14). Plaintiffs allege that Grullon and Peagler “both demonstrated their clear intent of
[ensuring] [Ettawanda] Wilson was not even being considered” for the two-bedroom apartment. (Id. ¶ 15 (internal quotation
marks omitted).) Grullon also informed Valerie Wilson that neither the “inquiry list” nor the “waiting list” existed. (Id. ¶ 19.)
*2 At Valerie Wilson's request, and notwithstanding Grullon's apparent intent not to offer the apartment to Ettawanda Wilson,
Grullon accompanied Valerie Wilson to view Unit 405. (Id. ¶ 22.) Valerie Wilson informed Grullon that “[her] mother would
like the unit ... [and] ... told her not to install carpet until [her] mother was allowed to see the apartment.” (Id. ¶ 24.) Specifically,
Valerie Wilson told Grullon that her mother would not want carpet because “bed[ ] bugs thrive in carpet.” (Id. ¶ 27.) Grullon
responded that carpet had already been ordered, and “was mandatory.” (Id. ¶¶ 24, 26.) Plaintiffs claim that the “decision to
install the carpet clearly indicated the decision had already been made to violate [Ettawanda] Wilson's Fair Housing Act rights,”
and that Plaintiffs were denied the “same rights as the current Caucasian family and the prior Asian family ... in ... apartment
# 404 ... [because] [b]oth [families] were allowed not to have carpet forced upon them prior to tenancy and both were never ...
forced to have carpet after they accepted [the] tenancy.” (Id. ¶¶ 30–33 (second, third, and fourth emphasis omitted).)
Plaintiffs also allege that Grullon informed Valerie Wilson that a woman was “trying to bribe her way in[to] the building” and
that the “woman was able to unlawfully lease [a one-bedroom unit, Unit 103] for herself and a senior woman who appear[ed]
to be her disabled mother.” (Id. ¶¶ 37, 41.) Plaintiffs claim that the former tenants in Unit 103 moved into Unit 405 “just so
[Ettawanda] Wilson would not be able to rent [Unit 405].” (Id. ¶ 44.)
Next, Plaintiffs allege that “[m]anagement sent a person to serve a document to [Ettawanda] Wilson concerning her
recertification and [the person] told her, ‘The building can evict you for this.’ “ (Id. ¶ 45 (internal quotation marks omitted).) The
person advised Ettawanda Wilson that she needed to complete her recertification requirements, and Ettawanda Wilson told “him
she had done so already, and until this day states she ha[s] done it.” (Id. ¶ 47 (internal parenthesis omitted).) Plaintiffs claim that
Wilder Balter Partners “serve[d] a fictitious court document to scare, intimidate, and coerce [Ettawanda Wilson] into doing what
they wanted her to do[,]” (id. ¶ 71), and the legal proceeding against Ettawanda Wilson “was completely fabricated,” (id. ¶¶ 72–
73), and without regard to “the physical consequence such a fabrication could have on a chronically disabled senior tenant,” (id.
¶ 74). By letter dated July 8, 2012, Valerie Wilson sent a “response to the served document” to Wilder Balter Partners. (SAC
¶ 57; SAC Ex. 3, at unnumbered 1.)
The Second Amended Complaint also alleges that Defendants sent Plaintiffs letters that “represented more harassment,” and
point the Court to Exhibit 4. (SAC ¶ 60.) Exhibit 4, appended to the Complaint, includes one letter dated March 12, 2012 from
property manager Mairim Gonzalez (“Gonzalez”) informing Ettawanda Wilson that her “apartment is due to be painted,” and
requesting that Ettawanda Wilson indicate whether or not she would like her apartment painted by March 19, 2012. (SAC Ex. 4,
at unnumbered 1.) The next letter in Exhibit 4 is dated March 27, 2012 from Gonzalez to Ettawanda Wilson stating that “[y]ou
are receiving this notice again as your apartment is due to be painted and we have not heard from you.” (Id. at unnumbered
2.) The third letter in Exhibit 4 is dated April 6, 2012 from Gonzalez to Ettawanda Wilson explaining that “as a result of you
cancelling our scheduled unit inspection on April 3, 2012, your apartment is still due [for an inspection],” and requesting that
Ettawanda Wilson “[p]lease arrange a new inspection date with management as soon as possible.” (Id. at unnumbered 3.) In a
letter dated April 23, 2012, also included in Exhibit 4, Gonzalez informed Ettawanda Wilson that:
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*3 It has come to management's attention that you do not wish to be included in the 2012 painting cycle.
Please be advised that due to the strict rules and regulations set forth by HUD, an inspection of your unit
must be conducted to avoid any compliance issues. If your apartment is found to be in good condition,
management will honor your wishes and not include you in the painting cycle. However, should your
apartment need painting, you will automatically be added to the cycle list.... As a result of the upcoming
cycle, your apartment must be available for inspection tomorrow, Tuesday, April 24, 2012. I apologize
in advance for the short notice, however, the response time of many residents was severely delayed, thus
affecting the overall schedule.
(Id. at unnumbered 4.) The last letter in Exhibit 4 is dated May 1, 2012 from the regional manager, Cristina Clark, to
Ettawanda Wilson. (Id. at unnumbered 5.) The letter advises that “management is in receipt of your letter, dated April 24, 2012,
alleging continued intimidation and discrimination against you on several pending items.” (Id.) Clark explained that “[i]t [was]
management's responsibility to execute re-certifications and projects in a timely fashion .... [and][a]s a result of non compliance
with the Section 8 regulations, [m]anagement has been forced to contact you in writing several times on various issues due
to your lack of response.” (Id.) The letter includes a timeline as to four pending items: (1) recertification; (2) 50059 form; (3)
Painting cycle; and (4) Unit inspection. (Id.) Clark also states that “[i]n addition to the communications in writing, [m]anagement
verbally relayed to you the need for the pending recertification unit inspection and painting cycle unit inspections when you
signed your HUD 50059 form on April 17, 2012.” (Id.)
Plaintiffs allege that Defendants harassed them by “demand[ing] ... access to complete [a] dual inspection immediately.” (SAC
¶¶ 61–63.) Plaintiffs claim that “every single violation” that prompted the dual inspection “ha[d] not been addresse[d] ...
demonstrating it was never about the HUD inspection[,] [but, rather] ... just abuse and harassment.” (Id. ¶ 64 (emphasis omitted).)
Plaintiffs state that they had never been required to participate in an inspection before, and that HUD inspections were not “done
for everyone.” (Id. ¶¶ 66–67.) Moreover, Plaintiffs allege that “Management ... had the ... exterminator ... knock[ ] on the door
and once inside he[ ] [would] first make small talk and [then] ask” if Valerie Wilson lived in the apartment. (Id. ¶ 68.) Valerie
Wilson claims that her health was affected by the harassment, and Ettawanda Wilson “decided that if Wilder Balter Partners ...
continu[ed] to treat her horribly ... she did not want the apartment.” (Id. ¶¶ 77–79 (emphasis omitted).)
Valerie Wilson visited a HUD representative to discuss several issues, “including the bed bug policy,” and the “fact that
management was made aware [that Plaintiffs] did not want a paint job” for their current apartment. (Id. ¶ ¶ 48–52.) Valerie
Wilson also showed the representative from HUD the document that Ettawanda Wilson had received at her apartment, (id. ¶
53), and notified him that she lived with her mother as a live-in aide, (id. ¶ 56).
*4 On February 1, 2013, Valerie Wilson sent an inquiry to Jason O'Neill (“O'Neill”), the HUD project manager for Battle Hill,
informing him that she was aware of her “rights available via the courts,” and that Peagler was ignoring Plaintiffs' “reasonable
accommodation request” to rent the two-bedroom apartment. (Id. ¶¶ 82, 84, 86.) O'Neill responded by email on February 21,
2013, explaining that the management at Battle Hill had informed him that they had contacted Ettawanda Wilson and outlined
the steps that she needed to take to have Valerie Wilson added as an additional tenant to the lease, or as a live-in aid. (Id. ¶
92.) The instant Complaint references such a letter from Peagler dated February 5, 2013, and Plaintiffs attached the letter to the
Complaint. (Id. ¶ 96.) Valerie Wilson has not requested to be a tenant on her mother's lease, (id. ¶¶ 97, 104), and she “do[es]
not believe caretakers are required to be on the lease nor required to recertify because income from a live[-]in aid is excluded
from the households [sic] income,” (id. ¶ 98). She alleges that she informed O'Neill that she was her mother's caretaker in 2012,
and that Peagler was aware that she lived with her mother. (Id. ¶ 105.) Valerie Wilson states that when she tried to contact
Peagler, she “was denied.” (Id.)
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The Second Amended Complaint also discusses a claim that Plaintiffs filed against Battle Hill in 2011. Plaintiffs allege that
in October 2011, “the management ke[pt] send[ing] exterminators[ ] to inspect for bed [ ] bugs, but not exterminating though
management was fully aware [that Plaintiffs] had an infestation of bed bugs.” (Id. ¶ 110.) Plaintiffs allege that after Ettawanda
Wilson did not answer the door to the apartment, Juan Gonzalez and an exterminator unlocked the door and entered Ettawanda
Wilson's bedroom. (Id. ¶ 114.) Juan Gonzalez explained that he and the exterminator were in the apartment to inspect for bed
bugs. (Id. ¶ 116.) Plaintiffs allege that the management at Battle Hill did not provide notice of the inspection. (Id. ¶ 121.) Valerie
Wilson also claims that “[e]arly on, the local Wilder Balter Management denied [her] a key for entry, until [her] mother was
located incapacitated, and Juan [Gonzalez] was forced to let [her] in to check on [her] mother.” (Id. ¶ 125.) Finally, the Second
Amended Complaint asks several questions about whether tenants and Valerie Wilson are authorized to use parking spaces at
Battle Hill and whether Ettawanda Wilson can install a “professional grade lock” on the apartment door. (Id. ¶¶ 133–35.)
B. Procedural History
Plaintiffs filed the original Complaint on April 19, 2013. (Dkt. No. 3.) The Court granted Plaintiffs' request to proceed in forma
pauperis on April 24, 2013. (Dkt. No. 7.) Plaintiffs filed an Amended Complaint on December 4, 2013, (Dkt. No. 22), and
a Second Amended Complaint on March 28, 2014, (Dkt. No. 26). Pursuant to a scheduling order adopted at a pre-motion
conference before the Court on May 19, 2014, (Dkt. No. 29), Defendants filed their Motion To Dismiss and supporting papers
on June 10, 2014, (Dkt.Nos.30–32). At Plaintiffs' request, the Court granted Plaintiffs an extension to file their opposition to
the Motion until August 18, 2014. (Dkt. No. 35.) On August 26, 2014, the Court granted Plaintiffs an additional thirty days to
submit their opposition papers, and stated that “[t]here will be no more extensions.” (Dkt. No. 40.) Plaintiffs did not submit
papers in opposition to the Motion.
II. Discussion
A. Applicable Law
1. Standard of Review
*5 The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to
dismiss, “a plaintiff's obligation to provide the ‘grounds' of his [or her] ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (second alteration in original) (citations omitted). Instead, the Supreme Court has emphasized that “[f]actual
allegations must be enough to raise a right to relief above the speculative level,” id., and that “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563. A
plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570. But if a plaintiff has
“not nudged [his or her] claims across the line from conceivable to plausible, the [ ] complaint must be dismissed.” Id.; see also
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“Determining whether a complaint states a plausible claim for relief will ... be a
context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-
pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.’ “ (alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))).
For the purposes of Defendants' Motion To Dismiss, the Court is required to consider as true the factual allegations contained
in the Second Amended Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (“We review de novo a
district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing
all reasonable inferences in the plaintiff's favor.” (internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d
463, 466 (S.D.N.Y.2008) (same). “In adjudicating a Rule 12(b) (6) motion, a district court must confine its consideration to facts
stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and
to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal
quotation marks omitted). Moreover, the “failure to oppose [Defendants'] [M]otion [T]o [D]ismiss does not, by itself, require
the dismissal of [Plaintiffs'] claims.” Leach v. City of New York, No. 12–CV–2141, 2013 WL 1683668, at *2 (S.D.N.Y. Apr. 17,
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2013). Rather, even though “a party is of course to be given a reasonable opportunity to respond to an opponent's motion, the
sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and
knowledge of the law.” McCall v. Pataki, 232 F.3d 321, 322–23 (2d Cir.2000). Finally, the court construes “the submissions of
a pro se litigant ... liberally” and interprets them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (internal quotation marks omitted).
2. Federal Antidiscrimination Law
*6 The purpose of the FHA is “to provide, within constitutional limitations, for fair housing throughout the United States.”
42 U.S.C. § 3601. Enacted as Title VIII of the Civil Rights Act of 1968, the FHA “originally barred discrimination in housing
on the basis of race, color, religion, or national origin, and Congress added gender as a protected class in 1974.” Williams v.
N.Y.C. Hous. Auth., 879 F.Supp.2d 328, 334 (E.D.N.Y.2012) (quoting Schwarz v. City of Treasure Is., 544 F.3d 1201, 1212 (11th
Cir.2008)) (internal quotation marks omitted). “The Fair Housing Act makes it unlawful ‘[t]o refuse to ... rent after the making
of a bona fide offer, or to refuse to negotiate for the ... rental of, or otherwise make unavailable or deny, a dwelling to any person
because of race, color, religion, sex, familial status, or national origin.’ “ Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir.2003) (first
alteration in original) (quoting 42 U.S.C. § 3604(a)); Williams, 879 F.Supp.2d at 334 (same). The statute similarly provides that,
“property owners and their agents may not ‘unlawfully discriminate against any person in the terms, conditions, or privileges
of ... rental of a dwelling.’ “ Mitchell, 350 F.3d at 47 (quoting 42 U.S.C. § 3604(b)).
“[T]he Fair Housing Amendments Act of 1988 ... extended the Fair Housing Act's principle of equal opportunity in housing to
individuals with [disabilities] [by] making it 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 with such dwelling, because of a handicap
of that person.’ “ Logan v. Matveevskii, ––– F.Supp.3d ––––, 2014 WL 5025953, at *15 (S.D.N.Y. Sept. 29, 2014) (alteration
omitted) (quoting 42 U.S.C. § 3604(f)(2)(A) (internal quotation marks omitted)); see also Williams, 879 F.Supp.2d at 334
(noting that “[i]n 1988, Congress amended the FHA to prohibit discrimination based on handicap and familial status” (internal
quotation marks omitted)). As amended, then, the statute makes it “unlawful ... ‘[t]o discriminate in the ... rental, or to otherwise
make unavailable or deny, a dwelling to any ... renter because of a handicap of that ... renter ... or any person associated with
that ... renter.” 42 U.S.C. § 3604(f)(1); see also Olsen v. Stark Homes, Inc., 759 F.3d 140, 152 (2d Cir.2014) (same); Logan,
2014 WL 5025953, at *15 (same); Freeland v. Sisao LLC, No. 07–CV–3741, 2008 WL 906746, at *3 (E.D.N.Y. Apr. 1, 2008)
(same). Discrimination for the purposes of this subsection includes “a refusal to make reasonable accommodations in rules,
policies, practices, or services, when such accommodations may be necessary to afford [an individual with a disability] equal
opportunity to use and enjoy a dwelling[.]” 42 U.S.C. § 3604(f) (3)(B); see Williams, 879 F.Supp.2d at 335 (same). Federally
assisted public housing authorities are governed by the discrimination provisions in the FHA. See 42 U.S.C. § 3603; Sinisgallo
v. Town of Islip Hous. Auth., 865 F.Supp.2d 307, 336 (E.D.N.Y.2012).
*7 Like the FHA, “ ‘[t]he ADA and the Rehabilitation Act also prohibit all discrimination based on disability by public entities'
and both statutes ‘require[ ] that covered entities make reasonable accommodations in order to provide qualified individuals with
an equal opportunity to receive benefits from or to participate in programs run by such entities.’ “ Logan, 2014 WL 5025953,
at *15 (alterations in original) (quoting Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 45 (2d
Cir.2002), superseded by statute on other grounds, ADA Amendments Act of 2008, Pub.L. No. 110–325, 122 Stat. 3553)).
Specifically, Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to
discrimination by any such entity.” 42 U.S.C. § 12132; see also Disabled in Action v. Bd. of Election in City of N.Y., 752 F.3d 189,
196 (2d Cir.2014) (same). “A housing authority is a ‘public entity’ covered by Title II of the ADA.” Sinisgallo, 865 F.Supp.2d
at 337 (citing 42 U.S.C. § 12131(1)). Section 504 of the Rehabilitation Act, in turn, “prohibits programs and activities receiving
federal financial assistance from excluding, denying benefits to, or discriminating against otherwise qualified individuals with
a disability.” Disabled in Action, 752 F.3d at 196 (internal quotation marks omitted).
A plaintiff may show that a defendant has engaged in discrimination proscribed by the FHA and the ADA under “three
available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable
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accommodation.” Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir.2003); see also Candlehouse, Inc. v. Town
of Vestal, No. 11–CV–93, 2013 WL 1867114, at *6 (N.D.N.Y. May 3, 2013) (same); Williams, 879 F.Supp.2d at 335 (FHA
claim); Doe v. Deer Mountain Day Camp, Inc., 682 F.Supp.2d 324, 343 (S .D.N.Y.2010) (ADA claim); Kennedy v. Related
Mgmt., No 08–CV–3969, 2009 WL 2222530, at *4 (S.D.N.Y. July 23, 2009) (FHA claim). The Court construes Plaintiffs'
Second Amended Complaint to allege discrimination under theories of disparate treatment and a failure to make a reasonable
accommodation, as discussed below. 1
“Claims of housing discrimination are evaluated under the familiar burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” Mancuso v. Douglas Elliman LLC, 808 F.Supp.2d 606, 617 (S.D.N.Y.2011). Under this framework,
“Plaintiffs must first establish a prima facie case” of discrimination, and then “ ‘the burden shifts to the defendant to assert
a legitimate, nondiscriminatory rationale for the challenged decision.’ “ Id. (quoting Mitchell v. Shane, 350 F.3d 39, 47 (2d
Cir.2003)). “ ‘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. (quoting Mitchell, 350 F.3d at 47). To establish a prima facie case of housing
discrimination under the FHA or ADA based on a theory of disparate treatment, Plaintiffs must allege “(1) that they are members
of a protected class; (2) that they sought and were qualified to rent ... the housing; (3) that they were rejected; and (4) that the
housing opportunity remained available to other renters.” Id. (internal quotation marks omitted); see also Johnson v. Levy, 812
F.Supp.2d 167, 179 (E.D.N.Y.2011) (same). When analyzing the second prong of a prima facie case, “courts have used as a
starting point the applicable criteria that the owner has established regarding who is ‘qualified.’ “ Mancuso, 808 F.Supp.2d at
618. In other words, to establish a prima facie case of discrimination for housing under the statutes, “the renter must satisfy
the applicable criteria that the owner established.” Johnson, 812 F.Supp.2d at 180 (internal quotation marks omitted); see also
Passanante v. R.Y. Mgmt. Co., Inc., No. 99–CV–9760, 2001 WL 123858, at *5 (S.D.N .Y. Feb. 13, 2001) (holding a plaintiff
did not make out a prima facie case of discrimination where the plaintiff was not financially qualified to rent the apartment).
*8 As to discrimination based on failure to offer a reasonable accommodation, because “[t]he relevant portions of the FHA,
ADA, and Section 504 ... offer the same guarantee that a covered entity, such as a public housing authority, must provide
reasonable accommodations in order to make the entity's benefits and programs accessible to people with disabilities [,] ...
analysis of a reasonable [accommodation] claim under the three statutes is treated the same.” Sinisgallo, 865 F.Supp.2d at 337
(alterations, citations, and internal quotation marks omitted); see also Logan, 2014 WL 5025953, at *16 (collecting cases);
accord Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 335 (2d Cir.1995) (explaining that an FHA claim based on a failure to make
a reasonable accommodation, is analyzed under the “standards for reasonable accommodations developed under [§ ] 504 [of the
Rehabilitation Act of 1973]” (internal quotation marks omitted)). “To make out a claim of discrimination based on a failure to
accommodate, a plaintiff must allege that: (1)[s]he suffers from a handicap as defined by the FHA[ ] [or a disability as defined
by the ADA and the Rehabilitation Act]; (2) the defendant knew or reasonably should have known of the plaintiff's handicap
[or disability]; (3) accommodation of the handicap [or disability] may be necessary to afford plaintiff an equal opportunity to
use and enjoy the dwelling; and (4) [the] defendant[ ] refused to make such accommodation.” Logan, 2014 WL 5025953, at *18
(third, fourth, and fifth alterations in original) (internal quotation marks omitted). “To prevail on a reasonable accommodation
claim, plaintiffs must first provide the [covered] entity an opportunity to accommodate them through the entity's established
procedures....” Tsombanidis, 352 F.3d at 578.
3. New York Antidiscrimination Law
NYHRL § 296 makes it unlawful “[t]o refuse to ... rent or lease or otherwise to deny to or withhold from any person ... such
housing accommodations because of the race, creed, color, disability, national origin, sexual orientation, military status, age,
sex, marital status, or family status of such person ... or to represent that any housing accommodation ... is not available for
inspection, ... rental, or lease when in fact it is so available.” N.Y. Exec. Law § 296(2–a)(a). “The elements of a claim under the
NYHRL are the same as under the Fair Housing Act.” Echeverria v. Krystie Manor, LP, No. 07–CV–1369, 2009 WL 857629,
at *8 (E.D.N.Y. Mar. 30, 2009); see also Johnson, 812 F.Supp.2d at 179 (same).
4. Retaliation Under The FHA and NYHRL
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The FHA makes 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 section ... 3604[.]” 42 U.S.C. § 3617. Accordingly, the statute “safeguards
members of the protected class from coercion, intimidation, threats, or interference in the exercise or enjoyment of their Fair
Housing Rights ... [and] it protects third parties, not necessarily members of the protected class, who aid or encourage protected
class members in the exercise or enjoyment of their Fair Housing Act rights.” Frazier v. Rominger, 27 F.3d 828, 833 (2d Cir.1994)
(citations omitted). “The elements of a prima facie retaliation claim under the FHA are (1) the plaintiff engaged in protected
activity, (2) the defendant was aware of this activity, (3) the defendant took adverse action against the plaintiff, and (4) a causal
connection exists between the protected activity and the adverse action.” Ponce v. 480 E. 21st St., LLC, No. 12–CV–4828, 2013
WL 4543622, at *3 (E.D.N.Y. Aug. 28, 2013); see also Cain v. Rambert, No. 13–CV–5807, 2013 WL 6194294, at *3 (E.D.N.Y.
Nov. 26, 2013) (same); Mazzocchi Windsor v. Owners Corp., No. 11–CV–7913, 2013 WL 5295089, at *12 (S.D.N.Y. Sept.
17, 2013) (same). Moreover, “the plaintiff is required to show that [the] defendants' action against him [or her] arose from a
discriminatory motive.” Haber v. ASN 50th St. LLC, 847 F.Supp.2d 578, 586 (S.D.N.Y.2012).
*9 Under New York Law, it is unlawful to “retaliate or discriminate against any person because he or she has opposed
practices[,]” including a refusal to “sell, rent, lease or otherwise deny or withhold from any person ... such a housing
accommodation because of the race, creed, color, national origin, sexual orientation, military status, sex, age, disability, marital
status, or familial status of such person[.]” N.Y. Exec. Law §§ 296(5),(7) The same standards that govern retaliation under the
FHA apply to retaliation claims under the NYHRL. See Broome v. Biondi, 17 F.Supp.2d 211, 218–219 (S.D.N.Y.1997) (listing
elements of a prima facie case of retaliation under the FHA and NYHRL); cf. Richardson v. City of New York, 285 F.Supp.2d
303, 305 (E.D.N.Y.2003) (“New York courts have adopted the federal standards for retaliation claims.)
B. Analysis
1. Housing Discrimination Claims
The Court construes Plaintiffs' first and second causes of action, as well as other allegations made throughout the Second
Amended Complaint, as claims that Defendants violated the FHA, ADA, Section 504, and NYHRL by failing to provide
Ettawanda Wilson with reasonable accommodations. Specifically, Plaintiffs claim that Defendants did not accommodate
Ettawanda Wilson by permitting her to rent a two-bedroom apartment, and, relatedly, by installing carpet in the two-bedroom
unit that she wanted to rent. (SAC at 1, 4.) The Court construes the third cause of action, as well as other allegations made
throughout the Complaint, as claims that Defendants discriminated against Plaintiffs on the basis of their race, in violation of
the FHA and NYHRL by failing to allow Plaintiffs to rent the two-bedroom unit.
Defendants argue that Plaintiffs cannot survive a motion to dismiss under any of the applicable federal and state statutes,
because Plaintiffs fail to allege facts “from which the Court could infer satisfaction of the required conditions for a two-bedroom
apartment.” (Defs.' Mem. of Law in Supp. of Mot. To Dismiss (“Defs.' Mem.”) 5 (Dkt. No. 32).) The Court agrees.
“[C]ommon to all housing discrimination claims under the FHA, NYHRL, ADA, and the Rehabilitation Act is the requirement
that ... ‘plaintiff[s] show that [they were] qualified for an available benefit and w[ere] denied that benefit.’ “ Johnson, 812
F.Supp.2d at 180 (quoting Passanante, 2001 WL 123858, at *5). Moreover, “to survive a motion to dismiss the plaintiff[s] must
plead more than the conclusory assertion that they met the stated requirements and therefore were qualified to rent or purchase
the housing.” Id. at 181 (internal quotation marks omitted). Instead, the “plaintiff[s] must allege facts from which the court can
infer that they satisfied any necessary preconditions.” Id. (internal quotation marks omitted); see also Tsombanidis, 352 F.3d
at 578 (“To prevail on a reasonable accommodation claim, plaintiffs must first provide the [covered] entity an opportunity to
accommodate them through the entity's established procedures [.]”); Passanante, 2001 WL 123858, at *5 (“The Fair Housing
Act, the Rehabilitation Act, and the ADA each require that a plaintiff show that he [or she] was qualified for an available benefit
and was denied that benefit.”).
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*10 Here, not only do Plaintiffs fail to “allege facts from which the court can infer that they satisfied [the] necessary
preconditions” to qualify for a two-bedroom apartment, Johnson, 812 F.Supp.2d at 181 (alteration and internal quotation marks
omitted), but Plaintiffs' Second Amended Complaint and the exhibits appended to it, which the Court may consider on a motion
to dismiss, see Leonard F., 199 F.3d at 107, confirm that Plaintiffs did not take the steps necessary to apply for the benefit that
they seek. 2 In a letter dated January 26, 2013, Valerie Wilson informed Peagler that Ettawanda Wilson “is in dire need of a
two[-]bedroom [apartment,] for which her name is at this time the present and next in line.” (SAC Ex. 1, at unnumbered 1
(internal quotation marks omitted); see also SAC ¶ 7.) Valerie Wilson also sent an inquiry dated February 1, 2013 to O'Neill,
stating, among other things, that Peagler was “ignoring reasonable accommodation request[s] for a two[-]bedroom apartment
that has been put forth [on] two separate verbal occasions and with former management.” (SAC Ex. 7, at unnumbered 1 (internal
quotation marks omitted); see also SAC ¶¶ 82, 86.)
Peagler addressed Valerie Wilson's request, however, in a letter to Ettawanda Wilson, dated February 5, 2013. (SAC Ex. 10; see
also SAC ¶ 96.) In the letter, Peagler informed Ettawanda Wilson “that based on [her] last recertification, [Ettawanda Wilson]
currently [is] a household of one person[,] and [i]n order for Valerie to reside in [the] apartment as [her] primary residence,
[Ettawanda Wilson] may either request that [Valerie Wilson] be added to the household (in which case [management] must
include her income and assets to the household) or provide documentation satisfactory to HUD to qualify [Valerie Wilson]
as a live-in aide.” (SAC Ex. 10, at unnumbered 1.) Peagler then provided the “regulations for the HUD Section 8 program ...
[concerning] the eligibility requirements for a live-in aide who is also a relative of a tenant.” (Id.) The regulations require,
among other things, that “[t]he housing company ... verify that the tenant requires the support of a live-in aide because of
a disability-related need[,]” and “[t]he live-in aide must undergo[ ] screening for drug activity, credit and criminal activity,
and the screening process should be the one the owner has established for new applicants and additions to households.” (Id.)
Accordingly, Peagler explained, that in order to consider the request for a two-bedroom apartment, management “must verify
that [Ettawanda Wilson's] need for a live-in aide is a disability-related need.” (Id.) Moreover, Peagler indicated that management
“must also receive adequate written verification from [Ettawanda Wilson's] physician or other health-care provider that [she has]
a disability related need for a live-in aide.” (Id.) Peagler explained that “[t]he letter [she] received from [Ettawanda Wilson's]
physician—Dr. Atler—states that [Ettawanda Wilson] need [ed] a two-bedroom apartment for adequate space and privacy [and]
unfortunately these reasons do not meet the HUD requirements.” (Id.) Peagler also stated that if Valerie Wilson was living in
the apartment, Ettawanda Wilson failed to report the “addition of a household member to [m]anagement[,] ... in violation of
HUD Section 8 regulations and [Ettawanda Wilson's] lease agreement.” (Id.). Peagler's letter also requested that Ettawanda
Wilson share the information with her daughter, and indicated that “[s]hould Valerie have Power of Attorney that authorizes
her to handle matters related to [Ettawanda Wilson's] tenancy,” to forward her mailing address and contact information, so that
the management could respond to Valerie Wilson directly. (Id. at unnumbered 2.)
*11 In an e-mail sent on February 21, 2013, O'Neill acknowledged that HUD received two inquiries from Valerie Wilson.
(SAC Ex. 9, at unnumbered 1; see also SAC ¶ 91.) O'Neill explained that HUD “contacted a representative of the management
agent ... regarding the matter[,]” and that “[t]hey informed [HUD] that they ... responded to [Ettawanda Wilson], the official
tenant for the unit, in writing, outlining the steps required to have [Valerie Wilson] added to the lease as an additional tenant
or as a live-in aide.” (SAC Ex. 9, at unnumbered 1.) O'Neill explained that the management is “not objecting to [the] requests,
but they are obligated to abide by HUD regulations” and “[t]he letter [from Peagler] outlines in detail what is required ... to
comply with them.” (Id.; see also SAC ¶ 93.)
Moreover, Plaintiffs do not claim that they followed the necessary procedures to apply for the two-bedroom apartment. Instead,
the allegations in the Second Amended Complaint confirm that Plaintiffs did not attempt to add Valerie Wilson to the household
or qualify her as a live-in aide, as Peagler's letter and O'Neill's email explained was necessary to comply with HUD regulations
and thus qualify for the benefit that Plaintiffs seek. Specifically, after Plaintiffs received O'Neill's email response, Plaintiffs
state that they “were both in full agreement ... that [they] were completely done with the matter.” (SAC ¶ 94 (emphasis added).)
Indeed, Plaintiffs admit that Valerie Wilson has “not requested to be a tenant on [her] mother['s] lease[,]” (id. ¶ 97), and that
she does “not believe caretakers are required to be on the lease nor ... [is there a requirement] to recertify because income from
a live[-]in aid is excluded from the household['s] annual income[,]” (id. ¶ 98). The Second Amended Complaint also states that
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Valerie Wilson “h[as] no problem ... submitting to the screenings [required of a live-in aid] as long as” certain “evidence can be
submitted to [the] court proving” various things about other individuals residing in the apartment. (Id. at ¶ 98 (emphasis added).)
The exhibits appended to the Second Amended Complaint and the allegations therein leave insufficient room for the Court to
“infer that [Plaintiffs] satisfied [the] necessary preconditions” to qualify for a two-bedroom apartment. Johnson, 812 F.Supp.2d
at 181 (alteration and internal quotation marks omitted). Rather, the allegations in the Second Amended Complaint make
clear that Plaintiffs did not “first provide the [Defendants] an opportunity to accommodate them through the ... established
procedures,” namely that they attempt to qualify Valerie Wilson as a live-in aide, or otherwise add her to the household.
Tsombanidis, 352 F.3d at 578. Accordingly, Plaintiffs do not “satisfy the ‘qualified’ element for a prima facie housing
discrimination claim,” and they therefore cannot make out a claim for housing discrimination under the applicable statutes.
Johnson, 812 F.Supp.2d at 180 (alteration and internal quotation marks omitted); see also Passanante, 2001 WL 123858, at
*5 (holding that the plaintiff did not establish a prima facie violation of the FHA, Rehabilitation Act, or ADA because he was
not “qualified” to rent an apartment without a Section 8 rent subsidy and he “ha[d] not been denied a benefit” because “only
two apartments [had] become available, and neither [had] been a one-bedroom apartment for an applicant at [the plaintiff's]
income level”). Moreover, as Plaintiffs never applied for the benefit that they seek, they cannot claim they were rejected for
the housing opportunity, as required for a prima facie case of disparate treatment, see Mancuso, 808 F.Supp.2d at 617, or that
Defendants refused to reasonably accommodate Ettawanda Wilson, as required for a prima facie case of failure to make a
reasonable accommodation, see Logan, 2014 WL 5025953, at *18. In sum, Plaintiffs must first apply for the benefit that they
seek before a prima facie case of discrimination may be pled. Accordingly, Plaintiffs' first, second, and third causes of action
must be dismissed for failure to state a claim under the applicable federal and state anti-discrimination statutes.
2. Retaliation Claims
*12 The Court construes Plaintiffs' fourth and fifth causes of action as claims that Defendants retaliated against them in
violation of the FHA and NYHRL. (SAC at 8, 16.) As an initial matter, it is worth noting that “[e]ven when a plaintiff's
underlying discrimination claim is dismissed, her retaliation claim may survive if she ‘had a good faith, reasonable belief’ that
she was opposing the unlawful practice.” Ponce, 2013 WL 4543622, at *3 n. 4 (quoting Kelly v. Howard I. Shapiro & Assocs.
Consulting Eng'rs P.C., 716 F.3d 10, 14 (2d Cir.2013)). The Court, therefore, considers Plaintiffs' retaliation claims even though
Plaintiffs fail to state plausible claims of discrimination.
As discussed above, “[u]nder the [FHA] and the [NYHRL], [a plaintiff is] required to make a prima facie case of retaliation by
showing that (1) she engaged in protected activity by opposing conduct prohibited under each of these laws, (2) the ... defendants
were aware of that activity, (3) she was subject to an adverse action, and (4) there was a causal connection between the protected
activity and the adverse action.” Broome, 17 F.Supp.2d at 218–19; see also Ponce, 2013 WL 4543622, at *3 (“[T]he elements of
a prima facie retaliation claim under the FHA are (1) the plaintiff 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.”).
In the fourth cause of action, Plaintiffs claim that Defendants retaliated against them by “serving” and sending various letters to
Ettawanda Wilson about recertification, the unit inspection, and painting requirements, as described in detail above. To begin,
it is unclear what protected activities Plaintiffs allege to have engaged in to state a claim of retaliation under 42 U.S.C. § 3617
or the NYHRL to satisfy the first prong of retaliation under the statutes. Nevertheless, the Court construes the allegations in
the fourth cause of action to suggest that Defendants retaliated against Plaintiffs because (1) they protested perceived racial
or disability discrimination against them, and/or (2) they requested a reasonable accommodation, specifically that Plaintiffs be
allowed to live in a two-bedroom apartment.
“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 Cond. 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)). Such action includes the “[f]iling [of] complaints ... and even less
formal means of protest such as letter writing, ... if it is lodged in protest of statutorily prohibited discrimination.” Kendrick
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v. Greenburgh Hous. Auth., No. 07–CV–5859, 2011 WL 1118664, at *9 (S.D.N.Y. Mar. 22, 2011). Moreover, to plausibly
state a claim of retaliation, Plaintiffs must allege facts to support that they “took action to affirmatively oppose discrimination
against [them] by [Defendants].” Broome, 17 F.Supp.2d at 219. Here, the allegedly adverse actions that Plaintiffs point to—
that Defendants sent Ettawanda Wilson notices regarding recertification and painting requirements and that, when Ettawanda
Wilson failed to respond to the requests for a paint job, Defendants sent her a letter scheduling a unit inspection—predate
any activities Plaintiffs allege that they engaged in to protest or oppose discrimination. Specifically, the letters that Plaintiffs
complain of were sent on March 12, 2012, March 27, 2012, April 6, 2012, and April 23, 2012. (SAC Ex. 4, at unnumbered
1–4.) The first indication in the Second Amended Complaint that Plaintiffs “protest[ed] or oppose[d] statutorily prohibited
discrimination,” Miller, 457 F.Supp. at 131, is the letter dated April 24, 2012, which Clark references in her letter dated May 1,
2012. (Id. at unnumbered 5.) The other letters, visits, and complaints of discrimination to Peagler and O'Neill to which Plaintiffs
refer were dated or occurred in 2013. Although Plaintiffs allege that Defendants were aware in 2012 that Valerie Wilson was
living with Ettawanda Wilson, (SAC ¶ 105), Plaintiffs do not state that they “took action to affirmatively oppose discrimination
against [them] by [Defendants],” Broome, 17 F.Supp.2d at 219, before the alleged retaliation occurred in 2012, like filing a
complaint or threatening to take legal action. Cf. Ponce, 2013 WL 4543622, at *3 (concluding that the plaintiff pled a prima
facie case of retaliation in part because “[s]he engaged in protected activity by filing a complaint against [the defendant]”);
Lynn v. Vill. of Pomona, 373 F.Supp.2d 418, 432 (S.D.N.Y.2005) (“Clearly, the filing of [the] plaintiffs' HUD complaint is a
protected activity[.]”). Moreover, even though “[a] request for a reasonable accommodation is [a] protected activity” under the
FHA, Goonewardena v. N. Shore Long Island Jewish Health Sys., No. 11–CV–2456, 2013 WL 1211496, at *10 n. 14 (E.D.N.Y.
Mar. 25, 2013) (citing Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 149 (2d Cir.2002)), here there is no indication
that Plaintiffs requested a reasonable accommodation—specifically the two-bedroom apartment—prior to receiving the March
and April 2012 letters. Cf. Petrillo v. Schultz Props., Inc., No. 11–CV–6483, 2011 WL 4899963, at *3 (W.D.N.Y. Oct. 13,
2011) (finding that the plaintiff's “allegation that she complained of [the] defendants' alleged failure to accommodate her needs
constitutes protected activity under the FHA and, therefore, ... [the] plaintiff ha[d] satisfactorily alleged that she engaged in
a protected activity”). In short, at the time Plaintiffs received the letters of which they complain, they do not allege that they
had engaged in protected activity by protesting or opposing discrimination, or by requesting a reasonable accommodation, for
the purposes of a retaliation claim. Accordingly, Plaintiffs fail to “allege that they were retaliated against for engaging in a
protected activity as required under § 3617” or state law. Miller, 457 F.Supp.2d at 131. See Mazzocchi, 2013 WL 5295089, at
*12 (“Because the amended complaint fails to show that [the plaintiff] was protesting or opposing discrimination prohibited
under the FHA, or that [the defendants] were aware that [the plaintiff] was complaining about discrimination, the retaliation
claims are dismissed.” (citation omitted)). Put simply, “[w]here the adverse action precedes the [p]laintiff's complaints, [the]
[p]laintiff cannot meet the subsequent-adverse-action or causal-connection prongs of his [or her] prima facie case.” Kendrick,
2011 WL 1118664, at *10.
*13 Even assuming, arguendo, that Plaintiffs were engaged in a protected activity, there is nothing in the Second Amended
Complaint to suggest that the letters regarding the status of Plaintiffs' recertification, painting, and unit inspection requirements
constitute adverse actions within the meaning of the FHA. “To be actionable, an adverse action must have some materially
adverse effect on the plaintiff.” Cain v. Rambert, No. 13–CV–5807, 2014 WL 2440596, at *6 (E.D.N.Y. May 30, 2014) (internal
quotation marks omitted). Plaintiffs do not, however, state how the letters adversely affected them. See Marks v. BLDG Mgmt.
Co., Inc., No. 99–CV–5733, 2002 WL 764473, at *13 (S.D.N.Y. Apr. 26, 2002) (noting that the “basic principle—that in order
for an alleged adverse action to constitute unlawful retaliation, the action must have some materially adverse effect on the
plaintiff—has been affirmed by numerous courts in a variety of contexts” and collecting cases). “Moreover, the record does not
show, or even suggest, that the [letters] had any chilling effect on [Plaintiffs'] willingness to assert [their] rights under the FHA.”
Id. Indeed, after Ettawanda Wilson received the letters, Valerie Wilson spoke with O'Neill about her concerns with disability
and/or racial discrimination and requested a two-bedroom apartment from Peagler. See id. at *13–14 (holding that the plaintiff
failed to show “injurious action” to establish retaliation because the plaintiff “neither suffered actual interference with her use
and enjoyment of her apartment, nor was she actually chilled in the exercise of her rights under the [FHA]” (internal quotation
marks omitted)). Accordingly, Plaintiffs' fourth cause of action is dismissed without prejudice for failure to state a claim.
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In their fifth cause of action, Plaintiffs allege that after they filed a complaint against Defendants in 2011 for failure to exterminate
for bed bugs, Gonzalez entered Plaintiffs' apartment on at least two occasions to exterminate the apartment for bed bugs,
without giving Plaintiffs notice. (SAC ¶¶ 113, 119–24.) Plaintiffs cannot, however, make out a claim of retaliation based on their
complaint of bed bugs, as it is not “protected activity” within the meaning of the housing discrimination statutes. See Miller v.
270 Empire Realty LLC, No. 09–CV–2857, 2012 WL 1933798, at *5 n. 9 (E.D.N.Y. Apr. 6, 2012) (“Filing a complaint with [New
York City's Housing Preservation Department] that is not related to unlawful discrimination is not protected activity within the
meaning of the FHA or analogous State and City laws.”); Williams v. N.Y.C. Hous. Auth., No. 07–CV–7587, 2009 WL 804137,
at *8 (S.D.N.Y. Mar. 26, 2009) (holding that complaints about “general conditions” at a housing complex “were not protected
activities for the purposes of establishing a retaliation claim in connection with allegations of disability discrimination” (internal
quotation marks omitted)); cf. United States v. Weisz, 914 F.Supp. 1050, 1054 (S.D.N.Y.1996) (“[T]o bring a claim within §
3617 [of the FHA], a plaintiff must allege conduct on the part of a defendant which in some way or other implicates the concerns
expressed by Congress in the FHA. If it were otherwise, the FHA would federalize any dispute involving residences and people
who live in them.”). Accordingly, Plaintiffs have failed to state a plausible claim of retaliation under the FHA or NYHRL and
their fifth cause of action is dismissed without prejudice.
*14 Plaintiffs' sixth cause of action, which lists the applicable housing discrimination statutes and repeats many of the same
allegations of the first five causes of action, is also dismissed without prejudice for failure to state a claim for the same reasons
as described above.
III. Conclusion
In light of the foregoing analysis, the Court grants Defendants' Motion To Dismiss Plaintiffs' Second Amended Complaint
without prejudice. Plaintiffs are given 30 days to file a Third Amended Complaint. Failure to do so may result in dismissal of
this case. The Clerk of Court is respectfully requested to terminate the pending Motion. (Dkt. No. 30.)
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 685194
Footnotes
1 There are no plausible allegations or inferences that the Court may draw from the allegations in the Second Amended
Complaint that would support a disparate impact claim, as Plaintiffs point to no “outwardly neutral practices” that have
“a significantly adverse or disproportionate impact on persons of a particular type produced by [Defendants'] facially
neutral acts or practices.” Tsombanidis, 352 F.3d at 575 (emphasis and internal quotation marks omitted).
2 In addition to the fact that the exhibits are appended to the Second Amended Complaint, the Second Amended Complaint
incorporates the relevant exhibits by reference. “To be incorporated by reference, the complaint must make a clear,
definite, and substantial reference to the documents ... [and][t]o be integral to a complaint, the plaintiff must have (1)
actual notice of the extraneous information and (2) relied upon the documents in framing the complaint.” DeLuca v.
AccessIT Grp., Inc., 695 F.Supp.2d 54, 60 (S.D.N.Y.2010) (alteration and internal quotation marks omitted). Here, as
Plaintiffs attached the exhibits to the Second Amended Complaint, there is no doubt that they had actual notice of the
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information therein. Moreover, as detailed above, Plaintiffs rely on and/or extensively quote the documents in framing
the Second Amended Complaint. Accordingly, the Court considers the exhibits in evaluating the instant Motion.
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