Opinion
01-CV-8208(RR)(LB)
February 13, 2002
REPORT AND RECOMMENDATION
By Order dated December 19, 2001, the Honorable Reena Raggi, United States District Judge, referred plaintiffs request for appointment of counsel to me for a decision. At a conference held January 28, 2002, I denied plaintiffs request for pro bono counsel. Plaintiffs request to proceed in forma pauperis is granted, but I respectfully recommend that plaintiffs complaint be dismissed as frivolous or malicious and for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2).
STATEMENT OF FACTS
Plaintiff, Hermon Hearn, appearing pro se brings this action against: Ting Lin Zhou, his landlord; Mohamed El-Goarany and Goarany Properties, the authorized broker for plaintiffs apartment complex; and Park City Estates, the co-op owners' corporation where plaintiff currently resides. This action came before the Honorable Reena Raggi on December 13, 2001 on plaintiffs order to show cause why the defendants should not be barred from evicting him from his apartment located at 61-25 98th Street, #14A, Rego Park, New York 11374, for non-payment of rent, and for a stay of a 72 hour eviction notice against both plaintiff and his co-tenant, Ayanna Jarvis. Judge Raggi denied plaintiffs motion for a preliminary injunction and referred the matter to me for all pretrial proceedings including to decide plaintiffs request for pro bono counsel. On January 28, 2002, the parties informed the Court tat the underlying landlord-tenant action is still ongoing in the Queens County Civil Court.
Defendant's counsel informed the Court at the January 28, 2002 conference that defendant's correct name is Ting Lin Thou.
Plaintiff alleges tat in 1998, he and his co-tenant, Ayanna Jarvis, entered into an agreement for "a studio apartment of which I purchased with the option to buy." Complaint at p. 3. Plaintiff states he paid $650 a month for the apartment which he believed to be installment payments on the purchase of the apartment. See December 13, 2001 Hearing Transcript at p. 6. Plaintiff states "I am finished paying" the $28,000 purchase price of the apartment, but the defendants have moved to evict him instead of selling him the apartment. Complaint at p. 3. Plaintiff further alleges that he has "suffered severe psychological and physical pains permanently because of the above named defendants." Complaint at p. 2. Plaintiff states that "defendants Mohamed [El-Gosarany] and Zhou Ting Lin continued to misrepresent, discriminate, commit fraud and take advantage of plaintiffs handicap intentionally." Complaint at p. 2. Plaintiff further states that defendants Zhou and El-Goarany misrepresented who owned the apartment and that plaintiff had the option to purchase the apartment. Complaint at p. 2. Moreover, plaintiff alleges the defendants "took advantage of my handicap" by coercing him to sign the lease agreement. Complaint at p. 2.
Plaintiff seeks "justice, judgment and ownership" along with $7,000,000.00 in damages and injunctive relief, "to stop all evictions against plaintiff." Complaint at p. 3; Order to Show Cause. Plaintiff also requests that the Court appoint him counsel "because I plaintiff cannot successfully gain justice and Win [sic] my case because of my mental and physical handicap." Application for Appointment of Counsel. The Court notes that plaintiff has retained an attorney to represent him in the Queens County landlord-tenant action against him. See Application for Appointment of Counsel.
Plaintiff attaches doctors' reports which state that plaintiff suffers from mental illness of long-standing duration including major depressive disorder with psychotic features and chronic schizophrenia, paranoid type. See Application for Appointment of Counsel.
DISCUSSION
A. Request for Counsel
Plaintiffs request for appointment of counsel is denied. Pursuant to 28 U.S.C. § 1915(e) (1994 Supp. V 1999), "the court may request any attorney to represent any person unable to afford counsel." The factors the Court must consider before appointing counsel for an indigent litigant include: (1) whether the indigent's position seems likely to be one of substance, (2) the indigent's ability to investigate the crucial facts, (3) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, (4) the indigent's ability to present the case or obtain private counsel, (5) the complexity of the legal issues, (6) the availability of counsel, (7) and special reasons why appointment of counsel would be likely to lead to a more just determination. Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir. 1989).
In Cooper, the Court of Appeals emphasized that a court should closely scrutinize the merits of the indigent's claim to determine if it is likely to be one of substance. 877 F.2d at 172. Only if the claim meets this "threshold requirement" should the other criteria be considered.Id. quoting Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). Here, plaintiffs complaint does not meet the threshold requirement. Therefore, plaintiffs request for counsel is denied.
B. Review under 28 U.S.C. § 1915(e)(2)
The Supreme Court has held that a district court has "the authority to 'pierce the veil of the complaint's factual allegations'" when considering an in forma pauperis complaint. Denton v. Hernandez, 504 U.S. 25, 32 (1992). The Court further stated that "a court is not bound . . . to accept without question the truth of the plaintiffs allegations. We therefore reject the notion that a court must accept 'as having an arguable basis in fact,' all allegations that cannot be rebuffed by judicially noticeable facts." Id. In the instant case, documents submitted in opposition to plaintiffs request for a preliminary injunction shed light on plaintiffs factual allegations. ("Defendant's Opposition").
On January 26, 1998, plaintiff and his co-tenant Ayanna Jarvis submitted an application to rent an apartment from defendant Zhou. The application lists Ms. Jarvis as the applicant and plaintiff as the co-applicant. Ms. Jarvis stated that she earned $30,000 per year as a liquidation specialist for the Bank of New York. See Defendant's Opposition, Exhibit F Affirmation. Only Ms. Jarvis's bank account was listed on the application. Plaintiff listed no source of income on the application but stated that he earned $8,625 per year. The rental application that plaintiff and Ms. Jarvis co-signed contained an agreement to pay Goarany Properties Inc. a commission "in the event I shall rent any apartments shown to me by this real estate office." Id. (emphasis supplied).
On January 26, 1998, plaintiff and co-tenant Jarvis signed a sublease agreement with defendant Zhou. The sublease agreement does not contain any reference to an option to purchase the apartment. See Defendant's Opposition, Exhibit C. On January 6, 1999, plaintiff and his co-tenant entered into a three-year extension of the sublease with defendant Zhou which specifically states "this is a three year term lease." The extension of the sublease does not contain any reference to an option to purchase the apartment. See Defendant's Opposition, Exhibit D.
Plaintiffs contention that he had an option to purchase the subject apartment is also belied by a copy of the money order he submitted to defendant Zhou which is notated "rent payment for February 2001." See Defendant's Opposition, Exhibit G. Plaintiff and his co-tenant ceased paying rent in August 2001. See Defendant's Opposition, Zhou Affidavit, ¶ 8. As a result, an eviction proceeding was commenced in the Queens County Civil Court on October 1, 2001. See Defendant's Opposition, Exhibit E. A default judgment was entered against plaintiff and Jarvis and a five day notice of eviction was served on plaintiff and Jarvis.See Defendant's Opposition, Zhou Affidavit, ¶ 8.
On December 7, 2001, the same date plaintiff filed the instant action in this Court, plaintiff also filed an order to show cause in Queens County Civil Court to vacate the default judgment, stay the eviction and restore the proceeding to the landlord-tenant calendar. Plaintiffs December 7, 2001 submission to the Civil Court raises the issue of his disability for the first time. See Defendant's Opposition, Exhibit H, Affirmation of Attorney David Harris, ¶¶ 10(d) and 11. Plaintiffs writings of September 2001, October 25, 2001 and November 18, 2001 complain that defendant Zhou assaulted and harassed him. In addition, plaintiff writes "[i]t is time to take action immediately against my enemies or denfant's [sic] I am very angry at my enemies!" See Defendant's Opposition, Exhibit H Attachments.
A district court shall dismiss a case at any time if the court determines that the action is frivolous or malicious or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2) (emphasis added). An action is frivolous as a matter of law when, inter alia, it "lacks an arguable basis in law." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
Plaintiffs claims that defendants violated his rights under the Americans with Disabilities Act and 42 U.S.C. § 1983 lack an adequate basis in law or fact. Plaintiff alleges, without any support, that the lease agreement that he entered into contained an option to buy the subject apartment. All the documents submitted to the Court demonstrate plaintiff leased the subject apartment. Nothing reflects that plaintiff was given an option to buy. Ms. Ayanna Jarvis, listed as the applicant for the apartment and plaintiffs co-tenant, although joined in the Civil Court eviction proceeding, does not join plaintiff in bringing the instant action. Further, except for plaintiffs allegation of discrimination, there is no basis for this Court to hear this action. Plaintiff first raises his disability and allegations of discrimination in his request to vacate the Default Judgment in Civil Court to stay the eviction. Although the Court does not question plaintiffs disability, piercing the veil of plaintiffs factual allegations, the Court finds that plaintiff is raising his disability in an effort to defeat the ongoing eviction proceeding in the Civil Court. Plaintiff may raise any and all of his claims and defenses in the Civil Court proceeding. Plaintiffs allegations that defendants perpetrated a fraud, or" took advantage of my handicap" by coercing plaintiff into signing the sublease agreement, or that plaintiffs mental illness made him incapable of entering into the agreement, can be raised in state court. Complaint at p. 2.
To state a claim under 42 U.S.C. § 1983 plaintiff must allege facts showing that the defendants acted under color of a state "statute, ordinance, regulation, custom or usage," The defendants in the instant action are private parties, and are thus not liable under § 1983.Rendell-Baker v. Kohn, 457 U.S. 830, 838-42 (1982); Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 155-57 (1978); Moose Lodge No. 107 v. Irvis 407 U.S. 163, 173 (1972); Adickes v. S.H. Kress Co., 398 U.5. 144, 152 (1970).
Moreover, it is well settled that the landlord-tenant relationship is fundamentally a matter of state law. See MRM Management Co. v. Ali No. 97-1029, 1997 WL 285043, at 1 (E.D.N.Y. 1997) (remand of summary eviction proceeding to state court based on principles of comity and federalism);see also McAlan v. Malatzky, No. 97-8291, 1998 WL 24369, at 2-3 (S.D.N.Y. 1998) (no subject matter jurisdiction where plaintiff attempted to recloak his charges regarding a state housing court matter as a violation of his constitutional rights), aff'd, 173 F.3d 845 (table) (2d Cir. 1999); DiNapoli v. DiNapoli, No. 95-7822, 1995 WL 555740, at 1 (S.D.N.Y. 1995) (federal courts do not have subject matter jurisdiction over landlord-tenant matters); Chiania v. Broadmoor Associates, No. 94-0613, 1994 WL 30412, at 1 (S.D.N.Y. 1994) (finding no subject matter jurisdiction over a landlord-tenant dispute). But for plaintiffs allegation that defendants discriminated against him on the basis of his disability, there is no basis for this court's subject matter jurisdiction over this matter.
"The absence of such jurisdiction is non-waivable; before e are required to assure ourselves that the case is properly within our subject matter jurisdiction." Wynn v. AC Rochester, 273 F.3d 15 (2d Cir. 2001).
CONCLUSION
For the reasons stated, plaintiffs request for appointment of counsel is denied. Further, the Court finds that plaintiffs allegation that defendants discriminated against him on the basis of his disability lacks an arguable basis in law or fact. Accordingly, it is recommended that plaintiffs complaint be dismissed under 28 U.S.C. § 1915(e)(2).FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made to the District Judge within the ten day period. Failure to file a timely objection to this Report generally waives any further judicial review. DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000); See Thomas v. Arn, 474 U.S. 140, 155 (1985).