Higgins v. 120 Riverside Boulevard at Trump Place Condo.

Decision Date31 August 2022
Docket Number21-cv-4203 (LJL)
CourtU.S. District Court — Southern District of New York


Defendants 120 Riverside Boulevard at Trump Place Condominium (120 Riverside); the Board of Managers of 120 Riverside (the Board of Managers); Michael Ritchken (“Ritchken”), individually and as President of the Board of Managers; AKAM Associates, Inc. (“AKAM”); and Ronald Starcic (“Starcic”) (collectively, the “Condominium Defendants) move, pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the second amended complaint against them.[1] Dkt. No. 95. Defendants Carlos A. Galgiani and Nancy Galliani (together, “the Gallianis” and with the Condominium Defendants, Defendants) also move, pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the second amended complaint against them. Dkt. Nos. 76, 93.

For the reasons that follow, the Condominium Defendants' motion is granted in part and denied in part, and the Gallianis' motion is granted.


For the purposes of this motion, the Court accepts as true the well-pleaded allegations of the second amended complaint (“Second Amended Complaint”), as supplemented by the documents incorporated by reference. Dkt. No. 89.

Plaintiff Joanne Noel Higgins (Plaintiff or “Higgins”) owns a condominium unit (the “Unit”) at 120 Riverside.[2] Id. ¶ 3. Higgins is “a disabled person as defined by state and federal law,” id. ¶ 2, having suffered a back injury and traumatic brain injury that cause her pain vertigo, headaches, cognitive problems, anxiety, and symptoms from post-traumatic stress disorder, id. ¶¶ 3, 30. Higgins purchased the Unit on or about June 8, 2016 from the Gallianis. Id. ¶¶ 29-30. In her application to the to the Board of Managers prior to her purchase, Higgins disclosed that she was disabled from a back injury and traumatic brain injury and noted the symptoms she experiences. Id. ¶ 30. Higgins alleges that [a]t all times relevant hereto defendants [120 Riverside], Board of Managers, AKAM Ritchken, and Starcic had actual notice of Higgins's disabilities and her ongoing requests for a reasonable accommodation under the [Fair Housing Act (“FHA”)] as a necessity to allow her to enjoy the [Unit] in the same manner as the other residents of the Building,” id. ¶ 12, but that they refused to “make requested reasonable accommodations and modifications necessary for Higgins' disability,” id., and that they “had notice that as a disabled person, Higgins' health was declining as a result of their failure to accommodate her reasonable requests due to her disability,” id. ¶ 13.

Since purchasing the Unit, Higgins has faced a number of problems with the Unit and the conduct of the Condominium Defendants that have forced her to move out of the Unit on various occasions and have caused her distress and deteriorating health. As a result of the conditions in her Unit, she has moved out. Her complaints about the Unit and the Defendants' conduct (or lack thereof) generally center around three issues: problems associated with leaks water penetration, and mold in the Unit; problems with noxious odors and disruptive construction in the Building; and other allegedly discriminatory acts, including harassing behavior and statements made by various people associated with the Building. The Court will review the relevant allegations for each.

I. Leaks, Water Penetration, and Mold

During her final walkthrough of the Unit prior to purchasing it, Higgins observed water staining at the window in the bedroom, but she did not observe the existence of an active or present leak. Id. ¶¶ 4-5. An attorney for the Gallianis signed a sworn statement that stated he had spoken to Nancy Galliani and she confirmed that there was no leak from the window and there had not been for several years. Id. ¶ 6. A rider to the contract of sale also stated that the Unit would be delivered free from leaks and had not had any leaks in the twelve months prior to closing. Id. Because of these representations, Higgins did not attribute the water staining she observed to an active leak. Id. ¶ 7. Higgins alleges that the representations made by the Gallianis concerning the water damage and status of leaks in the units were “fraudulent.” Id. ¶ 8.

Soon after Higgins purchased the Unit, her window began to leak. Id. ¶ 9. Upon information and belief, the leak was from water penetration from the facade of the Building. Id. During renovations of the Unit to accommodate her disabilities-renovations which occurred shortly after Higgins took occupancy of the Unit-contractors discovered water penetration in the walls near her bedroom window. Id. ¶¶ 31-32. In July of 2016, Higgins notified Patrick Crotty (“Crotty”), the property manager and AKAM, the managing agent of the Building, about the water penetration. Id. ¶ 33.

Water began leaking into the bedroom window of the Unit on May 18, 2019. Id. ¶ 108. On June 6, 2019, water came through the ceiling, down the walls, and outside of the window, and water was coming down the side of the Building. Id. ¶ 114. There was water “leaking in the [Unit] like a faucet,” but the manager refused to observe the leak and “no accommodation was offered.” Id. On August 14, 2019, a doctor wrote a letter [t]o whom it may concern,” explaining that, since the recent increase in construction noise and the water leak, Higgins has had “recent severe exacerbation of her brain injury symptoms” and that Higgins should “remain in a quiet, clean, mold free living environment.” Dkt. No. 108 at 4.

The Condominium Defendants failed to conduct repairs to the leak Higgins experienced for years, Dkt. No. 89 ¶ 129, even though she requested that they repair the window leak and water damage to her walls, id. ¶ 131, and identify and seal the source of the ongoing water penetration, id. ¶ 132. Multiple property managers visited the Unit to inspect the conditions, but the Condominium Defendants “insisted that Higgins hire her own contractor to remedy the problem,” id., and on other occasions, building staff have refused to come to the Unit to observe the leak, id. ¶ 133. In 2019, “the Building” indicated it would take steps to remedy the water leak. Id. ¶ 154. Correspondence appended to the Second Amended Complaint, and incorporated by reference thereto, shows that on September 9, 2019, Higgins asked Starcic when the window was going to be repaired; she requested “a proper timeline, details and dates” and expressed a “need for all water damage fixed [sic] and checked for mold.” Dkt. No. 89-7 at 8. In that email, Higgins complained that it has taken a very long time to get the window fixed and that she “can't have [Starcic] take more then [sic] a few days on this project.” Id. at 8-9. The following day, Starcic responded, appearing to attach an email from August 23, 2019 requesting access to the apartment and stating that he had a call out to a contractor to see if the contractor could inspect the Unit the following day (September 11, 2019) for a proposal for the work. Id. at 7. Higgins suggested instead that someone come on “Monday from 10:30 to 12:30” and stated that she required Starcic to have two different contractors to inspect the space, that the repair should be no longer than three days, and that the repair should include repainting the affected portion of the bedroom with her paint, which is “a custom blend with sparkles” and “was very costly.” Id. at 7. She also requested information about the Building's insurance. Id. Starcic replied that the vendor would be there on the requested day and time-Monday from 10:30 to 12:30-to inspect the space. Id. at 6. Starcic later explained that “vendors have looked at [Higgins'] window in the past but were unable to pinpoint the problem,” which is why they “shifted the focus on the exterior facade to caulk [Higgins'] window and the two [apartments] above [her] unit.” Id. In response, Higgins attached letters from her doctors and stated that she “should be able to live i[n] a peaceful environment with no construction noise, gas fumes, water leaks & banging and marijuana smoke!” Id. at 5. She also wrote that Starcic “refused to have any understanding of [her] disability.” Id. at 4. It is not clear from the correspondence or the Second Amended Complaint whether the inspection was ever conducted.

On January 6, 2021, Starcic emailed Higgins a proposed agreement that would have had the Condominium Defendants pay the costs of repairing the leak to the window in the Unit but would have required Higgins to forfeit her rights to her Unit and provided that Higgins would pay to repair items behind the wall to the Unit, for which the Condominium Defendants were responsible. Id. ¶ 134.

Higgins began experiencing respiratory issues in late 2020, and her doctor determined that her symptoms were caused by exposure to mold. Id. ¶ 130. On February 26, 2021, a contractor provided by Higgins' insurance carrier who was repairing portions of the Unit that sustained water damage discovered mold behind the sheetrock near the bedroom window. Id. ¶ 137. The contractor contacted a hygienist to provide a protocol for the mold removal because the mold discovered was greater than ten square feet. Id. ¶¶ 137-138. The hygienist inspected the Unit, and the resulting report found that the area near the window of Higgins' bedroom “exhibited an abnormal and above-background total airborne spore presence” and “that the swab sample taken at the drywall ceiling adjacent to the bedroom window indicated the presence of fungal spores and potential growth and amplification.” Id. ¶ 138.

On April 9, 2021, agents of the...

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