Francis v. Kings Park Manor, Inc.

Decision Date16 March 2015
Docket NumberNo. 14–cv–3555 ADSGRB.,14–cv–3555 ADSGRB.
Citation91 F.Supp.3d 420
PartiesDonahue FRANCIS, Plaintiff, v. KINGS PARK MANOR, INC., Corrinne Downing, and Raymond Endres, Defendants.
CourtU.S. District Court — Eastern District of New York

Relman, Dane & Colfax PLLC, by: John P. Relman, Esq., Timothy Smyth, Esq., Yiyang Wu, Esq., Ryan C. Downer, Esq., of Counsel, Washington, DC, for the Plaintiff.

Somer & Heller, LLP, by: Stanley J. Somer, Esq., Melissa Corwin, Esq., of Counsel, Commack, NY, for the Defendant Kings Park Manor, Inc. and Corrine Downing.

No Appearances: The Defendant Raymond Endres.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On June 5, 2014, the Plaintiff Donahue Francis (the Plaintiff) commenced this action for a declaratory judgment, permanent injunctive relief, damages, costs, and attorneys' fees, alleging a continuing pattern of racially discriminatory conduct in violation of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1982, and the Fair Housing Act of 1968, as amended, 42 U.S.C. §§ 3601 –19 (the “FHA”). The Plaintiff also asserts causes of action for breach of contract and negligent infliction of emotional distress.

On July 16, 2014, the Clerk of the Court noted the default of the Defendant Raymond Endres (Endres). The Plaintiff has yet to move for a default judgment against Endres.

On August 1, 2014, the Defendants Kings Park Manor, Inc. (KPM) and Corrine Downing (Downing)(collectively the “KPM Defendants) moved pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 12(b)(6) to dismiss the complaint as against them for failure to state a claim upon which relief can be granted.

For the reasons set forth, the motion to dismiss filed by the KPM Defendants is granted in part and denied in part.

I. BACKGROUND

Unless stated otherwise, the following factual allegations are drawn from the complaint and construed in a light most favorably to the non-moving party, the Plaintiff.

A. The Parties

The Plaintiff is an African–American male who self-identifies himself as black. At all relevant times, the Plaintiff resided at Kings Park Manor Apartment Complex (the “Complex”), at 186 Ardito Avenue, Unit # 186, Kings Park, New York 11754.

KPM is a New York corporation that owns Unit # 186 and acts as the property management company for the Complex.

Downing, an agent and employee of KPM, is the property manager of the Complex.

Endres, at all relevant times until January 28, 2013, resided at 184 Ardito Avenue, Unit # 184, Kings Park, New York, 11754.

B. Factual Allegations

On April 21, 2010, the Plaintiff and agents of KPM signed a lease agreement.

On May 1, 2010, the Plaintiff and agents of KPM signed a second lease agreement to rent Unit 186 at the Complex. The May 1, 2010 lease was signed by Downing as “Landlord/Agent: Kings Park Manor.” The lease was renewed three times.

The Plaintiff participated in the Housing Choice Voucher Program, 42 U.S.C. § 1437f(o )et seq., commonly known as Section 8.”

The Plaintiff moved into Unit # 186 at 186 Ardito Avenue. The Plaintiff's first eighteen months at the Complex were uneventful.

However, according to the Plaintiff, in February 2012, the Plaintiff heard his next door neighbor, the Defendant Endres, say “Jews, fucking Jews” and called him a “fucking nigger.” (Compl., at ¶ 16.) The Plaintiff was shocked and fearful, but did not respond.

On March 3, 2012, Endres approached the front of their respective apartments and said “damn fucking Jews.” (Id. at ¶ 18.) He looked toward the Plaintiff's open door and at the Plaintiff and said “fucking asshole.” (Id. ) The Plaintiff understood this insult to be directed towards him.

On March 10, 2012, the Plaintiff overheard Endres and another tenant discussing him in derogatory terms.

On March 11, 2012, Endres threateningly approached him and called him a “nigger” several times. Endres stated “fucking nigger, close your god-darn, fucking lazy, god-damn fucking nigger.” (Id. at ¶ 20.) The Plaintiff phoned 911, and in response, Suffolk County Police Hate Crimes Unit Officer Patricia E. Keller (“Keller”) arrived at the scene, interviewed witnesses, and spoke to Endres, admonishing him about the alleged racial epithets towards the Plaintiff. The Plaintiff filed a police report.

On March 20, 2012, the Plaintiff encountered Endres in the parking lot at the Complex. Before driving away, Endres repeatedly used the word “nigger” to insult and denigrate the Plaintiff. The Plaintiff experienced fear and anxiety.

Upon information and belief, the Plaintiff alleges that Keller communicated with KPM, by and through Downing, concerning the March 2012 incidents. KPM allegedly took no actions or steps to investigate the situation.

On May 14, 2014, Endres stood in front of the Plaintiff's front door and yelled “fuck you,” apparently because he wanted the Plaintiff to close his front door.

On May 15, 2012, Endres again approached the Plaintiff as he was leaving his residence and said “keep your door closed you fucking nigger.” (Id. at ¶ 29.)

On May 22, 2012, Endres told the Plaintiff: “I oughta kill you, you fucking nigger.” (Id. at ¶ 30.) The Plaintiff filed another police report.

By certified mail return receipt requested dated May 23, 2012, the Plaintiff notified the KPM Defendants of Endres' racial threats and harassment. The letter provided details concerning the Suffolk County Police Hate Crimes Unit's investigation, including the names, badge numbers, and contact information of the relevant officers.

The Plaintiff alleges that KPM could have terminated the Endres lease based on his conduct, yet they did not do so, nor did they take any actions or steps reasonably calculated to address the Plaintiff's complaints of harassment.

On August 10, 2012, Endres called the Plaintiff a “fucking nigger” and a “black bastard.” (Id. at ¶ 36.) The Plaintiff again contacted the Suffolk County Police Hate Crimes Unit.

Soon after, the Suffolk County Police arrested Endres and charged him with, among other counts, aggravated harassment, a class A misdemeanor.

By certified mail return receipt requested dated August 10, 2012, the Plaintiff notified the KPM Defendants of Endres' arrest and his continued use of racial slurs. The Plaintiff also provided the name and address of a Suffolk County Police Hate Crimes Unit Detective, Lola Quesada. Again, according to the Plaintiff, KPM could have terminated the Endres lease based on his conduct, yet they did not do so, nor did they take any actions or steps reasonably calculated to address the Plaintiff's complaints of harassment.

On September 2, 2012, Endres appeared at the Plaintiff's front door and took a series of pictures of the inside of the Plaintiff's apartment. The Plaintiff again contacted the Suffolk County Police Hate Crimes Unit.

By certified mail return receipt request dated September 3, 2012, the Plaintiff notified the KPM Defendants' of Endres' continued harassment. Again, according to the Plaintiff, KPM could have terminated the Endres lease based on his conduct, yet they did not do so, nor did they take any actions or steps reasonably calculated to address the Plaintiff's complaints of harassment.

As confirmed by a New York State Division of Human Rights (“NYSDHR”) Investigator, Downing contacted the owners of Kings Park, Inc. concerning Endres' discriminatory conduct and was told by the owners not to get involved.

The Plaintiff alleges, upon information and belief, that Endres' lease expired on January 25, 2013 and that he vacated the Complex on January 28, 2013.

On April 2, 2013, Endres pled guilty to harassment under New York Penal Law § 240.26(1). In addition, an order of protection was entered prohibiting Endres from having any contact with the Plaintiff.

C. Procedural History

On June 5, 2014, the Plaintiff commenced this action. As against all the Defendants, he raises claims under the Civil Rights Act of 1866, the FHA, New York Executive Law § 296(5) and § 296(6), and negligent infliction of emotional distress. As against the KPM Defendants only, the Plaintiff raises a claim of breach of contract. As against Endres only, who has defaulted, the Plaintiff raises a claim of intentional infliction of emotional distress.

As noted above, on August 1, 2014, the KPM Defendants moved to dismiss the complaint as against them.

II. BACKGROUND
A. The Legal Standard Governing a Rule 12(b)(6) Motion

Under Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must provide grounds upon which their claim rests through “factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In other words, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir.2010) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). “A claim has facial plausibility 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

[I]n 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.’ Bebry v. ALJAC LLC, 954 F.Supp.2d 173, 176 (E.D.N.Y.2013) (quoting Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (quoting Allen v. WestPoint–Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) )).

B. The Claims Under the Civil Rights Act of 1866

One portion of the Civil Rights Act of 1866 relevant to the Plaintiff's claim is codified at 42 U.S.C. § 1981, which...

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