Brake v. Slochowsky & Slochowsky, LLP

• Decision Date: 22 November 2020
• Docket Number: 19-CV-280 (ENV)(JO)
• Parties: Tammy BRAKE, Plaintiff, v. SLOCHOWSKY & SLOCHOWSKY, LLP, East 22nd Street Towers LLC, Yossel Lichtman, Sara Lichtman, and Mayer Waldman, Defendants.
• Court: U.S. District Court — Eastern District of New York

504 F.Supp.3d 103

Tammy BRAKE, Plaintiff,

v.SLOCHOWSKY & SLOCHOWSKY, LLP, East 22nd Street Towers LLC, Yossel Lichtman, Sara Lichtman, and Mayer Waldman, Defendants.

19-CV-280 (ENV)(JO)

United States District Court, E.D. New York.

Signed November 22, 2020

Filed December 3, 2020

Michael J. Grinthal, Urban Justice Center, New York, NY, for Plaintiff.

Anthony D. Green, Winget, Spadafora & Schwartzberg LLP, New York, NY, for Defendant Slochowsky & Slochowsky LLP.

Dov Ber Medinets, Gutman Weiss, P.C., Brooklyn, NY, for Defendants East 22nd Street Towers LLC, Yossel Lichtman, Sara Lichtman, Mayer Waldman.

MEMORANDUM & ORDER

VITALIANO, D.J.

Plaintiff Tammy Brake initiated this action against her landlord corporation, affiliated officers and agents, and the corporation's former attorneys for alleged violations of federal, state, and local law in connection with rent demands and repeated housing court actions for purported nonpayment of rent. She asserts claims under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. , and N.Y. Judiciary Law § 487 ("Judiciary Law"), against the law firm Slochowsky & Slochowsky, LLP ("Slochowsky"), as well as a claim under N.Y.C. Admin. Code § 27-2005(d), against East 22^nd Street Towers LLC ("East 22"), Yossel Lichtman, Sara Lichtman, and Mayer Waldman (collectively, "landlords"). Further, plaintiff claims all defendants violated New York General Business Law § 349 ("GBL"). Defendants move to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Alternatively, defendants seek an order declining supplemental jurisdiction, and severing and remanding non-federal claims, pursuant to 28 U.S.C. § 1367(c). For the reasons set forth below, Slochowsky's motion to dismiss is granted with respect to plaintiff's claims under FDCPA § 1692d, Judiciary Law § 487, and GBL § 349, but denied with respect to plaintiff's claims under FDCPA §§ 1692e and 1692f. The landlords’ motion to dismiss with respect to plaintiff's claims under GBL § 349 is granted, but denied with respect to plaintiff's N.Y.C. Admin. Code § 27-2005(d) claim.

Background

Plaintiff is the rent-stabilized tenant of 596 East 22^nd Street, Apt. 4B, in Brooklyn, where she has resided for over 30 years. Dkt. 1 ("Compl.") ¶ 12. The apartment building is owned by East 22. Compl. ¶ 8. Defendants Yossel Lichtman, Sara Lichtman, and Mayer Waldman are officers and agents affiliated with East 22. See Compl.

¶¶ 9–11. On or around January 11, 2018, plaintiff received a "five-day notice" from East 22, advising her that she owed $2130.81 total in past due rent for the months of November 2017, December 2017, and January 2018. See Compl. ¶ 15.¹ On February 13, 2018, the Urban Justice Center, acting as plaintiff's attorney, responded by letter to East 22 that plaintiff had already paid rent for the noticed months and even provided relevant canceled checks as proof. Id. ¶ 17. Moving quickly, however, Slochowsky had already commenced a housing court action on East 22's behalf, seeking $2130.81 in rent arrears and $272.00 in legal fees. Id. ¶¶ 18-19.

Both parties appeared in housing court on February 21, 2018, where a Slochowsky associate provided a rent ledger from East 22, showing that plaintiff had paid rent for all months between February 2016 and 2018. See id. ¶ 20. But, the ledger also listed an unspecified "carried balance" of $637.54 from prior to February 2016. Id. ¶ 21. Because of the carried balance, Slochowsky declined to discontinue the proceeding. Id. The proceeding was adjourned until March 13, 2018, for Slochowsky to substantiate the carried balance, but the firm was unable to do so. Id. ¶¶ 21–22. With the absence of any proof, the parties signed a stipulation discontinuing the action with prejudice through February 2018. Id. ¶ 22. Then, on or around June 4, 2018, plaintiff received another five-day notice from East 22, again alleging she owed $2130.81 in past due rent. Id. ¶ 23. Slochowsky commenced a second housing court action on East 22's behalf, seeking $1711.75 in rent arrears and legal fees. Id. ¶ 24. The parties again appeared in housing court on August 6, 2018, where a Slochowsky associate again produced a rent ledger from East 22. Id. ¶ 25. The ledger did not appear to have been updated to reflect the prior action, as the original carried balance still appeared. Id. The proceeding was adjourned until October 3, 2018, for the parties to review ledger. Id. ¶ 26. Immediately after the August 2018 hearing and again in September, the Urban Justice Center emailed Slochowsky with an attached copy of the March 13 stipulation requesting the firm discontinue the action. Id. ¶¶ 27–28. Slochowsky responded that they would not discontinue because of rent owed by plaintiff prior to 2018. Id. ¶ 28. Presumably, rather than come up empty again before the housing court judge, the landlords affirmed and the parties signed, on October 3, 2018 (the day before the scheduled hearing), a stipulation discontinuing the action. Id. ¶¶ 30–32.

Standard of Review

"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000). "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). When determining if a plaintiff has met this burden, a district court may consider evidence outside the pleadings. See Makarova , 201 F.3d at 113. Since subject matter jurisdiction is a threshold issue, when a party moves to dismiss under both Rule 12(b)(1) and 12(b)(6), as defendants do here, the motion court must address the 12(b)(1) motion first. Sherman v. Black , 510 F.Supp.2d 193, 197 (E.D.N.Y. 2007) (citing Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n , 896 F.2d 674, 678 (2d Cir. 1990) ).

Assuming subject matter jurisdiction is established, surviving a Rule 12(b)(6) motion requires that the complaint "contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007) ). This "plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted). Additionally, a court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co. , 517 F.3d 104, 115 (2d Cir. 2008).

In deciding a Rule 12(b)(6) motion, a court may consider documents that are attached to or referenced in the complaint, documents that the plaintiff relied on in bringing suit, and matters of which judicial notice may be taken. Chambers v. Time Warner, Inc. , 282 F.3d 147, 152-53 (2d Cir. 2002). "Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,’ which renders the document ‘integral’ to the complaint." Id. at 153 (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co. , 62 F.3d 69, 72 (2d Cir. 1995) (emphasizing that "mere notice or possession [of a document] is not enough")).

Discussion

I. The FDCPA Claim

FDCPA was enacted to "eliminate abusive debt collection practices by debt collectors, to [e]nsure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). Its protections extend to a variety of "deceptive or harassing actions taken by debt collectors." Kropelnicki v. Siegel , 290 F.3d 118, 127 (2d Cir. 2002). A particular goal was to address " ‘the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.’ " Jacobson v. Healthcare Fin. Servs., Inc. , 516 F.3d 85, 89 (2d Cir. 2008) (quoting S.Rep. No. 95–382, at 4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1699). Because of its remedial nature, FDCPA is construed liberally to effectuate its statutory purpose. See Vincent v. The Money Store , 736 F.3d 88, 98 (2d Cir. 2013) (citation omitted).

Brake alleges that Slochowsky's pursuit of meritless litigation violated three of FDCPA's consumer protections: 15 U.S.C. §§ 1692d, 1692e, and 1692f. Slochowsky raises several grounds for dismissal, including: (1) lack of subject matter jurisdiction under preclusion principles, (2) failure to state a cognizable claim, and (3) lack of compensatory damages. Because subject matter jurisdiction is an overarching issue, it is addressed first.

A. Rooker-Feldman Doctrine

The Supreme Court's decisions in Rooker and Feldman "established the clear principle that federal district courts lack jurisdiction over suits that are, in substance, appeals from state-court judgments." Hoblock v. Albany Cnty. Bd. of Elections , 422 F.3d 77, 84 (2d Cir. 2005) ; Rooker v. Fidelity Trust Co. , 263 U.S. 413, 416, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923) ("no court of the United States other than [the Supreme Court]" has appellate jurisdiction over state court judgments); District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 482, 103 S.Ct. 1303, 1315, 75 L.Ed.2d 206 (1983) ("a United States District Court has no authority to review final judgments of a state court in judicial proceedings"). Under Rooker -Feldman , a federal district court lacks jurisdiction over a claim where: (1) the plaintiff lost in state court, (2) the plaintiff complains of injuries caused by the state court judgment, (3) the...