Lax v. 29 Woodmere Boulevard Owners, Inc.

• Decision Date: 23 September 2011
• Docket Number: No. 10–CV–4008 (JFB)(WDW).,10–CV–4008 (JFB)(WDW).
• Citation: 812 F.Supp.2d 228
• Parties: Jeffrey LAX, Plaintiff, v. 29 WOODMERE BOULEVARD OWNERS, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

812 F.Supp.2d 228

Jeffrey LAX, Plaintiff,

v.29 WOODMERE BOULEVARD OWNERS, INC., et al., Defendants.

No. 10–CV–4008 (JFB)(WDW).

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

Sept. 23, 2011.

Michael Todd Parker, Moskowitz & Book LLP, New York, NY, for Plaintiff.

David A. Boyar, D'Amato & Lynch, New York, NY, for Woodmere.

Andrew E. Curto, Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP, Mineola, NY, for Berkowitz.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Jeffrey Lax (hereinafter “plaintiff” or “Lax”) brought this action against defendants 29 Woodmere Boulevard Owners, Inc. (the “Co-op”), Alexander Wolf & Company, Inc. (“Wolf”), Steven Mirsky (“Mirsky”), Erik J. Kinney, Jeanne Kinney, Lon Samuelson, Lisa Arian, Francine Rosen, Angela Dalmazio (collectively the “Woodmere defendants”), Sylvia Berkowitz, Martin Berkowitz, and Murray Berkowitz (collectively the “Berkowitz defendants”), alleging that they violated the Fair Housing Act, 42 U.S.C. § 3604, and various state laws.

The Woodmere defendants and Berkowitz defendants separately moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). On September 16, 2011, following oral argument, plaintiff voluntarily dismissed all claims against the Berkowitz defendants without prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, thereby rendering the Berkowitz defendants' motion to dismiss moot. For the reasons discussed herein, the Court denies the Woodmere defendants' motion to dismiss. ¹

I. Background

A. The Complaint

The following facts are taken from the amended complaint and are not findings of fact by the Court. They are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to the plaintiff, the non-moving party.

On April 30, 2010, plaintiff executed a contract with Martin and Sylvia Berkowitz for the purchase of apartment 4J at 29 Woodmere Boulevard for a sum of $200,000, to be paid in cash. (Am. Compl. ¶¶ 5, 17.) All the negotiations had taken place between plaintiff and Murray Berkowitz, the son of Martin and Sylvia Berkowitz, who acted as his parents' agent. ( Id. ¶¶ 16, 25.) Although the contract for the sale of apartment 4J was executed, the sale had to be approved by the Board of Directors of defendant Co-op because plaintiff was purchasing shares in a cooperative. ( Id. ¶¶ 5–6.) Defendants Erik J. Kinney, Jeanne Kinney, Lon Samuelson, Lisa Arian, Francine Rosen and Angela Dalmazio were on the Board of Directors (hereinafter the “Board”). ( Id. ¶¶ 9–14.) On or about May 13, 2010, plaintiff received from Wolf, the Co-op's managing agent, the application package that he had to complete and submit to the Board. ( Id. ¶ 18.) Plaintiff submitted the completed application to the Board, meeting all of the requirements listed in the application package. ( Id. ¶¶ 19–20.)

Mirsky contacted plaintiff to let him know that his application was denied without reason; plaintiff's request for reconsideration was similarly denied. ( Id. ¶¶ 21–22.) Eventually, Murray Berkowitz indicated to plaintiff that he heard back from the Board and was told that the sale was rejected because the sale price for the apartment was too low. ( Id. ¶ 25.) Murray Berkowitz insisted that, if plaintiff was willing to pay a higher price, he could convince the Board to approve the sale. ( Id.) On or about July 23, 2010, plaintiff received an email from Murray Berkowitz that the Board was unwilling to sell to plaintiff regardless of how much he would be willing to offer for the apartment. ( Id. ¶ 28.)

Murray Berkowitz was told by Wolf soon after July 23 that the Board rejected plaintiff's application because of his single male status. ( Id. ¶ 29.) Before plaintiff made an offer to Berkowitz for apartment 4J, the official sales price for the apartment was listed as $219,000. ( Id. ¶ 30.) On or about July 24, 2011, after Murray Berkowitz learned that there was no chance that plaintiff's application would be reconsidered, the apartment was listed for $215,000. ( Id.) Two open-houses were scheduled for August 17 and 29 with the apartment still listed at $215,000. ( Id. ¶ 33.) However, on or about August 30, 2010, the apartment was listed for an asking price of $200,000. ( Id. ¶ 37.)

Approximately one month prior, on or about June 25, 2010, plaintiff learned from a “current unit owner and resident of the 29 Woodmere Co–Op ... who had direct knowledge of the Board of Directors' activities[,]” that the Board had a pattern of discriminatory conduct against “men who were single.” ( Id. ¶ 23.) This discriminatory conduct was a result of a bad experience with a previous male tenant who threw loud parties and smoked marijuana. ( Id.)

Plaintiff contacted Wolf via email on August 6, 2010, alleging a discriminatory scheme against plaintiff. ( Id. ¶ 31.) Murray Berkowitz stated to plaintiff in a phone conversation that took place several days later on August 10, 2010 that plaintiff was rejected by the Board for “discriminatory reasons.” ( Id. ¶ 36.) However, on August 28, 2010, plaintiff received a letter from counsel for Wolf, the Board, and Co-op that plaintiff was rejected solely based on the “negotiated purchase price” for the apartment. ( Id. ¶ 34.) Counsel did not respond to plaintiff's questions about why the Board was unwilling to consider plaintiff when he made it clear that he would be amenable to paying a price above $200,000. ( Id. ¶ 35.)

B. Procedural History

Plaintiff filed his complaint on September 1, 2010. At a pre-motion conference held on October 13, 2010, plaintiff indicated he wanted to amend his complaint. In an Order dated October 19, 2010 the Court set a deadline for plaintiff to file his amended complaint (“Am. Compl.”), which was filed by plaintiff on October 20, 2011. On November 30, 2010, the Woodmere and Berkowitz defendants filed their motions to dismiss. Plaintiff filed his opposition to the Woodmere defendants' motion to dismiss on January 5, 2011. On January 20, 2011 the Woodmere defendants filed their reply. Then, on January 24, 2011, plaintiff filed his opposition to the Berkowitz defendants' motion to dismiss. The Berkowitz defendants filed their reply on February 3, 2011. Plaintiff filed his motion for sanctions on February 2, 2011. Oral argument was held on September 9, 2011. As noted above, on September 16, 2011, plaintiff voluntarily dismissed all claims against the Berkowitz defendants without prejudice pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, thereby rendering the Berkowitz defendants' motion to dismiss moot. With respect to the remaining motion by the Woodmere defendants, the Court has fully considered the submissions and arguments of the parties.

II. Motion to Dismiss

A. Standard of Review

When a Court reviews a motion to dismiss for failure to state a claim for which relief can be granted, it must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). “In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege a plausible set of facts sufficient ‘to raise a right to relief above the speculative level.’ ” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court instructed district courts to first “identify[ ] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Although “legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. Second, if a complaint contains “well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “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. The 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. at 1949 (internal citations omitted) (quoting and citing Twombly, 550 U.S. at 556–57, 127 S.Ct. 1955).

The Court notes that, in adjudicating this motion, it is entitled to consider: “(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents ‘integral’ to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 356–57 (S.D.N.Y.2003) (internal citations omitted), aff'd in part and vacated in part on other grounds sub nom., Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir.2005), vacated on other grounds, 547 U.S. 71, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[T]...