Johnson v. Levy, No. 10–CV–3217 (ADS)(ETB).

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: SPATT
• Citation: 812 F.Supp.2d 167
• Decision Date: 19 September 2011
• Docket Number: No. 10–CV–3217 (ADS)(ETB).
• Parties: Ennis JOHNSON, Sharon Johnson, Plaintiffs, v. Jay LEVY, Diane Levy, Sue Campbell, 51 Smith Street L.L.C. its members, managers, and/or assigned, agent or otherwise in his/her official and individual capacity, Defendants.

812 F.Supp.2d 167

Ennis JOHNSON, Sharon Johnson, Plaintiffs,
v.
Jay LEVY, Diane Levy, Sue Campbell, 51 Smith Street L.L.C. its members, managers, and/or assigned, agent or otherwise in his/her official and individual capacity, Defendants.

No. 10–CV–3217 (ADS)(ETB).

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

Sept. 19, 2011.

[812 F.Supp.2d 171]

Law Offices of Frederick K. Brewington, by Frederick K. Brewington, Esq., Marjorie Mesidor, Esq., of Counsel, Hempstead, NY, for plaintiffs.

Kardisch, Link & Associates, P.C., by Josh H. Kardisch, Esq., of Counsel, Rockville Centre, NY, for defendants.

MEMORANDUM OF DECISION AND ORDER SPATT, District Judge.

Plaintiffs Ennis Johnson and Sharon Johnson (“the Plaintiffs”) commenced this action on July 14, 2010 against 51 Smith Street L.L.C., Jay Levy, Diane Levy, and Sue Campbell, all of whom are alleged to be either owners or employees of 51 Smith Street L.L.C. (collectively “the Defendants”), asserting violations of the Fair Housing Amendments Act (“FHA”), 42 U.S.C. §§ 3604(f) and 3617, the Americans with Disabilities Act (“ADA”),

[812 F.Supp.2d 172]

42 U.S.C. § 12182; Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 794; and the New York State Human Rights Law (“NYHRL”), in addition to various state law claims. Presently before the Court is Defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the Defendants' motion is granted.

I. BACKGROUND A. Factual Background

The following facts are drawn from the complaint and are construed in the light most favorable to the Plaintiffs.

Plaintiff Ennis Johnson (“Ennis”) is an African–American male who is currently and was at all relevant times HIV-positive. In addition, at all relevant times, Ennis received public assistance from the Department of Social Services (“DSS”) in the areas of medical and food services and housing accommodations, and also received Social Security Income (“SSI”). Plaintiff Sharon Johnson (“Sharon”) is a Caucasian female and Ennis Johnson's wife. The Johnsons are both residents of Suffolk County in the State of New York.

Defendant 51 Smith Street L.L.C. is a New York limited liability company with its principal offices located in Nassau County, and which, during all relevant times, either owned, in whole or in part, and/or operated an apartment building located at 51 Smith Street, Merrick, New York (“51 Smith Street apartment building”). Defendant Jay Levy (“Levy”) at all relevant times held an ownership interest in 51 Smith Street L.L.C. and was an owner and/or the property manager of the 51 Smith Street apartment building. According to the Plaintiffs, at all relevant times, defendant Diane Levy, Jay Levy's wife, held an ownership interest in 51 Smith Street L.L.C., and defendant Sue Campbell was either employed by or a representative of one or all of the other defendants— i.e., Jay Levy, Diane Levy and 51 Smith Street L.L.C.

In or about November 2008, the Johnson's then current apartment experienced a fire, rendering them homeless. As a result, in January 2009, the Johnson's moved into the Gateway Hotel while they looked for a new apartment. On or about January 14, 2009, the Johnsons saw an advertisement in Newsday for one bedroom luxury apartments available for rent at the 51 Smith Street apartment building. Sharon called the number listed on the advertisement and spoke with Levy about her interest in renting one of the advertised one-bedroom apartments. At this time, Sharon informed Levy that Ennis was recipient of DSS and SSI governmental public assistance and that they were in need of immediate housing. Levy informed Sharon that there were two apartments available, Unit B–2, at a rental price of $1375 per month, and Unit C–3, which was $1,275 per month. Sharon made an appointment to see both units later that afternoon. After viewing the two units Sharon informed Levy that she was interested in Unit B–2. As required for DSS and SSI recipients, on January 15, 2009, Levy prepared and provided the Johnsons with an offer letter for Unit B–2 setting forth the conditions for leasing the apartment (the “initial offer letter”). The letter stated:

This is to confirm that I will provide you one-year lease for apartment B2 at 51 Smith Street, Merrick, N.Y. at the monthly rental of $1375. The conditions are two months security and the first month's rent must be paid at the lease

[812 F.Supp.2d 173]

signing and the rent must be guaranteed by a governmental agency.

(Compl., ¶ 33.)

According to the Johnsons, after receiving the initial offer letter, a DSS caseworker identified as “Mrs. Pearson”, contacted Levy and informed him that Ennis only qualified for $1,275 per month in DSS rental payments and therefore the Johnsons would only qualify for DSS funding for Unit C–3. Thus, Levy revised by hand the initial offer letter to reflect the same conditions, but for the rental of Unit C–3 (the “amended offer letter”). Subsequently, DSS requested a typed version, which Levy provided on January 27, 2009 (the “Offer Letter” and together with the initial offer letter and the amended offer letter, the “Offer Letters”). The January 27, 2009 letter provided:

This is to confirm that I will provide you one-year lease for apartment C–3 at 51 Smith Street, Merrick, N.Y. at the monthly rental of $1275. The conditions are two months security and the first month's rent must be paid at the lease signing and the rent must be guaranteed by a governmental agency.

(Compl., ¶ 41.)

That same day, after receiving the Offer Letter, DSS, consistent with their general practice and with the knowledge and consent of Levy, performed a health and safety inspection of Unit C–3 and approved the apartment as inhabitable. This approval allowed the Johnsons to qualify for rent payments from DSS and continue with the leasing process.

On February 5, 2009, Sharon met with one of Levy's employees, defendant Sue Campbell (“Campbell”), at the DSS offices in Hempstead in order to acquire “a DSS rental guarantee letter and/or its equivalent” (the “Rent Guarantee”). (Compl., ¶ 55.) As defined in the complaint, the Rent Guarantee “indicate[d] all amounts DSS w[ould] pay for the security deposit and subsequent rental payments guaranteed by its agency”. (Compl., ¶ 56.) According to the Johnsons, the Rent Guarantee was the requisite guarantee of rent “by a government agency” required in the Offer Letter.

In order for DSS to process the payment request, Sharon needed to get the Rent Guarantee notarized. For reasons not specified in the complaint, Campbell drove Sharon to find a local Notary public. According to Sharon, during the course of this drive, she informed Campbell that her husband Ennis was HIV-positive. Sharon claims that immediately after she revealed this information, she overheard Campbell call Levy and tell him that Ennis was HIV-positive. Thereafter, at a time unspecified in the complaint, Levy directly, or Campbell on behalf of Levy, allegedly conveyed to Ennis and Sharon “that he would not rent to anyone who was HIV positive because children and elderly persons resided at the apartment building located at 51 Smith Street, Merrick, New York”. (Compl., ¶¶ 63 & 64.) Levy did not provide the Johnsons with a written notice indicating the reasons for denying the apartment to them. However, after “numerous verbal requests”, again, at an unspecified time, Levy allegedly told the Johnsons that he denied their application to lease Unit C–3 because Ennis had misrepresented his employment status. (Compl., ¶¶ 68 & 69.)

The Johnsons then contacted Nassau Suffolk Law Services, Inc. (“NSLS”). On February 10, 2009, attorney Robert Halpern of NSLS (“Halpern”), contacted Levy on the Johnson's behalf to discuss the denial of the Johnson's application. According to the Johnsons, when Halpern asked Levy why he had denied their apartment application, Levy allegedly replied “[Ennis] has AIDS ... I can't have that in my

[812 F.Supp.2d 174]

building”. (Compl., ¶ 72.) Based on his belief that Levy had discriminated against him, and that housing discrimination was a matter of public concern, Ennis expressed his version of the above-stated facts to various news outlets.

As a result, on February 18, 2009, Levy commenced an action against the Johnsons, Halpern, and various media outlets in New York State Supreme Court, Nassau County for defamation, among other causes of action (“the Defamation Action”). See Levy v. Johnson, No, 2851/09 (N.Y. Sup.Ct., Nassau Cnty.). On July 14, 2009, the Johnsons commenced the instant action against Jay and Diane Levy, Sue Campbell, and 51 Smith Street, L.L.C. asserting sixteen causes of action for violations of federal and state statutes as well as state common law based on alleged housing discrimination and the subsequent Defamation Action.

B. The Instant Motion

On September 30, 2010, the Defendants collectively moved to dismiss the complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(6) “or for other relief”. In opposition, the Johnsons voluntarily dismissed Counts VII, VIII, XI, XII, XIII, XIV, XV, and XVI and therefore the Court deems them withdrawn. In addition, because Counts VII and XVI were the only causes of action asserted against Sue Campbell, the Court deems the complaint voluntarily dismissed as to Sue Campbell.

Moreover, for the purposes of clarity and consistency, the Court deems it prudent to clarify certain mislabeled causes of action in the complaint. First, Count V of the complaint alleges housing discrimination in violation of 42 U.S.C. § 3604 of the FHA generally, without specifying the applicable subsection. Because the cause of action alleges housing discrimination based on disability the Court treats it as a cause of action under section 3604(f)(1). Next, the Court notes that the Plaintiffs labeled Count II as a violation of...