Opinion
99 CIV. 9760 (DLC).
February 9, 2001.
John Passanante, Pro Se, New York, NY., For Plaintiff[s].
Mark E. Spund, Davidoff Malito LLP, New York, NY., Christopher J. Crawford, Brody, Fabiani Cohen, New York, NY., For Defendant[s].
OPINION AND ORDER
In his verified amended complaint, filed October 25, 1999, plaintiffpro se John Passanante ("Passanante") principally asserts that defendants — real estate owners and managers and their employees — denied him housing and thereby discriminated against him on the basis of his race, sexual orientation, and disability, in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., ("ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 621 et seq., the New York State Human Rights Laws, N.Y. Exec. Law § 296, and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. Plaintiff also asserts that defendants committed libel and slander against him. Plaintiff seeks the immediate provision of "proper" housing and damages. Defendants R.Y. Management Co., Inc., Marylyn Mercardo, Holga Garcia, Natalie Padua, and Dora Rua (collectively, "RY defendants"), and 39th Street Realty Co., Glenwood Management Corp., Rosa Delgado, and Jerry Toomey (collectively, "39th Street defendants") move to dismiss and for summary judgment. The motions for summary judgment by the RY and 39th Street defendants are granted in part.
Plaintiff has brought suit against Olga Garcia, but defendant's name is actually "Holga Garcia."
The record does not reflect that Dora Rua has been served. Rua has, however, moved with the RY defendants to dismiss or for summary judgment.
Plaintiff has brought suit against "John" Tome, but defendant's name is actually "Jerry Toomey."
Four named defendants — Yvette Ortiz, "Jane" Wilson, Wendy Johnson, and "John" Henry — have not been served. On July 12, 2000, the Court ordered that the plaintiff serve all defendants by August 11, 2000. On July 25, 2000, the Court reset the service deadline to September 15, 2000. In both Orders, the Court stated that it would dismiss plaintiff's case against the unserved defendants if plaintiff did not provide proof of service or a written request for an extension of time. Accordingly, in an accompanying order, all claims against these four defendants are dismissed. Affidavits reflecting service on Michael Burke, "Jane" Persons, and "Jane" James were filed in October 2000, but defendants have not answered. The remaining defendants — Related Management Co., Vera Silver, Daniel Luccheto, Grenadier Management Co., JLWS Management Co., and 5th and 106th Street Associates Lakeview Apartments — have answered and are not parties to these motions.
STATEMENT OF FACTS
The following facts are undisputed, unless otherwise noted. Plaintiff Passanante asserts that he is a homosexual, white man who suffers from a psychiatric disability which was recognized by the Social Security Administration in 1982. Because of his psychiatric disability, Passanante is eligible for Section 8 housing.
Although plaintiff has not responded to defendants' motions to dismiss or for summary judgment, it is appropriate to decide defendants' motions on the merits. See LeSane v. Hall's Security Analyst, Inc., 2001 WL 10324, at *3 (2d Cir. Jan. 4, 2001). Plaintiff has not filed a Rule 56.1 statement in response to the defendants' Rule 56.1 statement. Ordinarily, unopposed facts set forth in a moving party's Rule 56.1 statement are deemed admitted. See Local Civil Rule 56.1(c); LeSane, 2001 WL 10324, at *3; Titan Indem. Co. v. Triborough Bridge Tunnel Auth., Inc., 135 F.3d 831, 835 (2d Cir. 1998). Plaintiff has, however, filed a verified complaint that can serve as an affidavit for summary judgment purposes. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Although a verified complaint generally cannot be used to circumvent the requirements of Rule 56.1, see Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000), it is appropriate in this case to consider a psychiatrically disabled, pro se plaintiff's verified complaint in deciding defendants' summary judgment motions.
RY Management Co., Inc. ("RY") is a real estate management company that manages Knickerbocker Plaza, an apartment development that is operated pursuant to the regulations of the New York City Department of Housing Preservation and Development ("HPD") and the United States Department of Housing and Urban Development ("HUD"). HPD and HUD provide low financing costs and rent subsidies at Knickerbocker Plaza. Defendants Marylyn Mercado, Holga Garcia, Natalie Padua, and Dora Rua are employees of RY.
Glenwood Management Corp. ("Glenwood") is a real estate management company that manages the Paramount Tower at 240 East 39th Street. The Paramount Tower is owned by 39th Street Realty Co. ("39th Street"). 39th Street participates in an "80/20 program," which means that it offers 20% of the Paramount Tower's apartments to low income tenants and receives, in exchange, lower financing costs and real estate abatements. Rose Delgado and Jerry Toomey are employees of Settlement Housing Fund, Inc., which administers the 80/20 program for Paramount Tower.
RY Defendants
In September 1995, RY advertised for requests for applications for the waiting list at Knickerbocker Plaza. Passanante submitted a letter requesting an application, which, with all of the other letters requesting applications for housing at Knickerbocker Plaza, was randomly drawn from a bag by HPD and assigned a number on the master waiting list. Based upon this random selection process, plaintiff was placed 2,033rd on RY's master waiting list. Passanante was then sent an application form, which he completed and returned. Based upon the information on plaintiff's application form and his position on the master waiting list, plaintiff was placed 437th on the waiting list for studio apartments.
Plaintiff asserts that Marylyn Mercado informed plaintiff that he would have an apartment within six months. After six months, no apartment was assigned to plaintiff. Over the next two years, Passanante regularly visited RY's offices to check his status on the waiting list. In late September or early October 1998, Passanante was notified that a studio apartment was available. On October 21, 1998, Passanante was interviewed for the apartment but notified RY that he had recently signed a lease for a different apartment and needed time to break his lease and obtain the documents required to obtain a Section 8 rent subsidy. On February 3, 1999, after holding the apartment for over two months, Holga Garcia advised plaintiff that RY could no longer hold the apartment at Knickerbocker Plaza, but would try to accommodate him when he received his Section 8 rent subsidy. On or about April 28, 1999, plaintiff advised RY that he had been relieved from his other lease and was again interested in an apartment at Knickerbocker Plaza. In June 1999, Passanante came to RY for second interview and filled out another application. In August 1999, Passanante was offered a second apartment at Knickerbocker Plaza but refused it and said that he would wait for an apartment on a higher floor. On January 25, 2000, when an apartment on a higher floor became available, Passanante came to RY for a third interview, but without his Section 8 subsidy. Passanante was informed that his application would be cancelled if he did not submit evidence of his Section 8 subsidy by March 10, 2000. Having heard nothing from him by March 10, 2000, RY cancelled plaintiff's application for an apartment.
At HPD's request, RY agreed to reopen Passanante's application and offer him the first available studio apartment. When a studio became available, on April 17, 2000, RY sent notice to Passanante and stated that if he did not respond within five days, RY would no longer hold any apartments for him. The letter came back unclaimed. Passanante asserts that during this period "non-whites, non-gays, and non-disabled people have been given apartments [in Knickerbocker Plaza after] waiting only six months."
39th Street Defendants
In the summer of 1998, Passanante was one of 4,586 applicants for 93 low-income apartments at the Paramount Tower. The 93 apartments were divided into four categories depending upon the prospective tenant's income and the number of members in the prospective tenant's family. Passanante's application was received and reviewed in the manner established by the State Housing Finance Agency. The applications were placed in a locked box and were removed from the box by a State Housing Finance Agency official, who put them, in their envelopes, on a table. The applications were then randomly taken off the table and assigned a number in the order in which they were removed. Passanante's application was the 2,869th application removed from the table. Based upon Passanante's application and an interview, Passanante was found eligible for a one-bedroom apartment. Based upon his placement on the list of all applicants, Passanante was placed fifth on 39th Street's waiting list for a one bedroom apartment in his income bracket. Since that time, there have been two vacancies at the Paramount Tower: one for a two bedroom apartment, and one for a one bedroom apartment reserved for applicants in a lower income bracket than Passanante. Plaintiff claims that non-whites, non-gays, and non-disabled people have been given apartments, including people who were "obvious alcoholics, drug users, etc." Passanante remains on the waiting list at Paramount Tower. Passanante asserts that when he went to local politicians to assist in obtaining housing, the RY defendants and 39th Street defendants "slandered" Passanante, claiming that he was "violent" and a "threat to other tenants."
PROCEDURAL HISTORY
Passanante filed his complaint on September 16, 1999, and after having been given an opportunity to amend his complaint to plead his claims with more specificity, filed an amended complaint on October 25, 1999. This case was assigned to this Court on November 22, 1999. The RY and 39th Street defendants were served in August through October, 2000.
On September 28, 2000, the Court granted RY defendants' request for an extension of time to submit a motion to dismiss and set a schedule that required defendants to file their motion by October 27, 2000, and plaintiff to file an opposition by December 1, 2000. The September 28, 2000 Order also notified plaintiff that, if he failed to file an opposition to defendants' motion, "this Court will decide the motion solely on the papers submitted by defendants. Specifically, failure to oppose defendant's motion to dismiss may result in the motion being granted." RY defendants moved to dismiss Passanante's complaint and for summary judgment on October 27, 2000. Defendants served plaintiff with a Notice to Pro Se Litigants Opposing Motion for Summary Judgment with their motion. As of this date, plaintiff has failed to oppose the RY defendants' motion.
On October 27, 2000, this Court granted the 39th Street defendants' request for an extension of time to submit a motion to dismiss and set a schedule that required defendants to file their motion by November 17, 2000, and plaintiff to file an opposition by December 22, 2000. The Court's October 27, 2000 Order again warned plaintiff of the consequences of failing to submit an opposition to defendants' motion. On November 17, 2000, the 39th Street defendants moved to dismiss the complaint and for summary judgment, and served plaintiff with a Notice to Pro Se Litigants Opposing Motion for Summary Judgment with their motion. As of this date, plaintiff has failed to oppose the 39th Street defendants' motions.
In their motions, RY defendants and 39th Street defendants seek to dismiss the entire complaint as to the individual defendants pursuant to Rules 8(a) and 12(b)(6), Fed.R.Civ.P. and seek summary judgment on the first, second, and third causes of action for discrimination pursuant to Rule 56, Fed.R.Civ.P. Defendants also seek to dismiss plaintiff's complaint for failure to plead with specificity, in violation of Judge Griesa's September 16, 1999 Order, and seek to dismiss the fourth, fifth, and sixth causes of action for defamation pursuant to Rule 12(b)(6), Fed.R.Civ.P. and Section 3012(b) of the New York Civil Procedure Law and Rules ("CPLR").
DISCUSSION
At the outset, it is important to note that defendants' motions have been made prior to the conduct of any discovery and without plaintiff having the assistance of counsel. Since the grounds for dismissal advanced by the defendants are based on legal arguments and facts that are unlikely to change with discovery, it is appropriate to consider these motions without appointing counsel to assist a plaintiff who describes himself as, and who has been found to be, psychiatrically disabled. As the Second Circuit has advised, counsel should be appointed if a pro se plaintiff has made a "threshold showing of some likelihood of merit." Cooper v. A. Sargenti Co., 877 F.2d 170, 173 (2d Cir. 1989) (per curiam). Because plaintiff's assertions at issue here, even when viewed generously, fail to meet this threshold showing, it is unnecessary to appoint counsel before deciding these motions.
A. Individual Defendants
There is no individual liability under Title II of the ADA or Section 794(a) of the Rehabilitation Act. See, e.g., Hallett v. New York State Dep't of Correctional Servs., 109 F. Supp.2d 190, 199 (S.D.N.Y. 2000) (collecting cases); Menes v. CUNY University, 92 F. Supp.2d 294, 306 (S.D.N.Y. 2000) (collecting cases). Accordingly, plaintiff's ADA and Rehabilitation Act claims against the individual defendants — Delgado, Toomey, Mercado, Garcia, Padua, and Rua — are dismissed.
B. Summary Judgment on Discrimination Claims
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record and (2) whether the facts in dispute are material based on the substantive law at issue.
The Fair Housing Act makes it unlawful "[t]o refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person" because of their race or sex. 42 U.S.C. § 3604(a). The Fair Housing Act also makes it unlawful "[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap." 42 U.S.C. § 3604(f)(1). To prove a violation of the Fair Housing Act, a plaintiff must show that: (1) the plaintiff belongs to a class protected by the statute; (2) the plaintiff sought and was qualified for the dwelling; (3) the plaintiff was denied the opportunity to rent the dwelling; and (4) the dwelling remained available. Cabrera v. Jakabovitz, 24 F.3d 372, 381 (2d Cir. 1994)
The ADA and the Rehabilitation Act prohibit disability-based discrimination by a public entity or a "recipient of federal financial assistance." Forest City Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 150 (2d Cir. 1999). Title II of the ADA provides, in pertinent part:
[N]o 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 subjected to discrimination by any such entity.42 U.S.C. § 12132. Similarly, the Rehabilitation Act provides:
No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.29 U.S.C. § 794(a). To establish a prima facie case of discrimination under either Title II of the ADA or the Rehabilitation Act, plaintiff must show (1) that he has a disability; (2) that he was otherwise qualified for the benefit that has been denied; and (3) that plaintiff was denied the benefit by reason of his disability. Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998); Henrietta D. v. Guilianni, 119 F. Supp.2d 181, 206 (E.D.N.Y. 2000). To establish a claim under the ADA, plaintiff must additionally show that defendants are subject to the ADA; to establish a claim under the Rehabilitation Act, plaintiff must additionally show that defendants receive federal funding. Pfrommer, 148 F.3d at 82; Henrietta D., 119 F. Supp. 2d at 206.
The burden shifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972), applies to discrimination claims brought under the Fair Housing Act, see Cabrera, 24 F.3d at 383, the ADA, Heyman v. Queens Village Committee for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999), and the Rehabilitation Act, D'Amico v. City of New York, 132 F.3d 145, 150 (2d Cir. 1998). Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. Upon establishing a prima facie case of discrimination, the burden shifts to the defendant to articulate a non-discriminatory reason for the employment action. If the defendant has met its burden, the plaintiff must show that the defendant intentionally discriminated against the plaintiff. In the context of a summary judgment motion, a plaintiff must "point to evidence that reasonably supports a finding of prohibited discrimination." James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) See also Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000). Plaintiff has not established a prima facie case of discrimination against defendants under the Fair Housing Act, the ADA, or the Rehabilitation Act. Moreover, defendants have articulated non-discriminatory reasons for any adverse action taken against him.
The Fair Housing Act, the Rehabilitation Act, and the ADA each require that a plaintiff show that he was qualified for an available benefit and was denied that benefit. Although the RY defendants offered plaintiff four apartments in two years at Knickerbocker Plaza, plaintiff was not qualified to rent an apartment from the RY defendants because he did not have a Section 8 rent subsidy. Broome v. Biondi, 17 F. Supp.2d 211, 217 (S.D.N.Y. 1997) (an applicant is "qualified" if he is financially able to rent dwelling) (collecting cases). Nor has plaintiff established a prima facie case against the 39th Street defendants under the Fair Housing Act, the Rehabilitation Act, or the ADA because he has not been denied a benefit. Since plaintiff submitted his application for an apartment at Paramount Tower with the 39th Street defendants, only two apartments have become available, and neither has been a one-bedroom apartment for an applicant at Passanante's income level. Moreover, defendants have provided a non-discriminatory reason for any delay in offering plaintiff an apartment: his placement, through random processes, on the waiting lists at Knickerbocker Plaza and Paramount Tower.
Accordingly, plaintiff has neither established a prima facie case of discrimination under the Fair Housing Act, the Rehabilitation Act, or the ADA, nor pointed to evidence that reasonably supports a finding of discrimination. The RY and 39th Street defendants' motions for summary judgment on plaintiff's claims of discrimination under the Fair Housing Act, the Rehabilitation Act, and the ADA are granted. For these same reasons, summary judgment is also granted to the RY and 39th Street defendants on plaintiff's claims under the New York State and New York City Human Rights Laws. See Broome, 17 F. Supp. 2d at 216.
Having granted summary judgment against plaintiff on his federal law claims against RY defendants and 39th Street defendants, it may be appropriate to decline to exercise supplemental jurisdiction over plaintiff's remaining state law claims. See 28 U.S.C. § 1367(c)(3);Grace v. Rosenstock, 228 F.3d 40, 55 (2d Cir. 2000); Itar-Tass Russian News Agency et al. v. Kurier, Inc., 140 F.3d 442, 445 (2d Cir. 1998). Because additional federal claims remain against other defendants, however, the Court reserves decision on that issue.
CONCLUSION
Defendants' motions to dismiss plaintiff's ADA and Rehabilitation Act claims against defendants Rose Delgado, Jerry Toomey, Marylyn Mercado, Holga Garcia, Natalie Padua, and Dora Rua are granted. The motions by defendants R.Y. Management Co., Inc., Marylyn Mercado, Olga Garcia, Natalie Padua, Dora Rua, 39th Street Realty Co., Glenwood Management, Rose Delgado, and Jerry Toomey for summary judgment on their claims brought under the Fair Housing Act, the ADA, the Rehabilitation Act, the New York State Human Rights Law, and the New York City Human Rights Law are also granted. The Court reserves decision on these defendants' motion to dismiss plaintiff's defamation claims.
SO ORDERED