Mazzocchi v. Windsor Owners Corp., 11 Civ. 7913 (AT)

• Decision Date: 31 August 2016
• Docket Number: 11 Civ. 7913 (AT)
• Citation: 204 F.Supp.3d 583
• Parties: Frank MAZZOCCHI, Plaintiff, v. WINDSOR OWNERS CORP., Tudor Realty Services, Corp., U.F.H. Apartments Inc., Isaac Stern, Vivienne Gilbert, Maureen Dunphy, Scott Nagle, James Taylor, Paul Matten, Jin Han, Nancy Barsotti, Michael George Inc., Flowerschool New York Inc., Ferruh Beceriklisoy, and Norberto Hernandez, individually and in their corporate capacity, Defendants.
• Court: U.S. District Court — Southern District of New York

204 F.Supp.3d 583

Frank MAZZOCCHI, Plaintiff,
v.
WINDSOR OWNERS CORP., Tudor Realty Services, Corp., U.F.H. Apartments Inc., Isaac Stern, Vivienne Gilbert, Maureen Dunphy, Scott Nagle, James Taylor, Paul Matten, Jin Han, Nancy Barsotti, Michael George Inc., Flowerschool New York Inc., Ferruh Beceriklisoy, and Norberto Hernandez, individually and in their corporate capacity, Defendants.

11 Civ. 7913 (AT)

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

Signed August 31, 2016

204 F.Supp.3d 590

Bryan Louis Arbeit, David Harry Rosenberg, Jeffrey Kevin Brown, Rick Ostrove, Leeds Brown Law PC, Carle Place, NY, for Plaintiff.

Deborah Beth Koplovitz, Rosen Livingston & Cholst LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

ANALISA TORRES, District Judge:

Plaintiff, Frank Mazzocchi, brings this action on behalf of himself and his long-term girlfriend, Jane Doe, alleging that Defendants discriminated against Mazzocchi and Doe because of Doe's disability in violation of Section 3604(f)(2) of the Fair Housing Act and 42 U.S.C. § 1985(3). Defendants move to strike an expert report pursuant to Federal Rule of Evidence 702. Defendants also seek summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, the motion to strike is GRANTED, and the motion for summary judgment is GRANTED in part and DENIED in part.

BACKGROUND

I. The Parties

In 1977, Frank Mazzocchi leased Unit 821 (the "Apartment") in the building located at 5 Tudor City Place (the "Building") in Manhattan. Decl. of Frank Mazzocchi ("Pl. Decl.") ¶ 4, ECF No. 162-32. The Building was converted into a residential co-op, and in 1987, Mazzocchi bought the Apartment and entered into a proprietary lease with Defendant Windsor Owners Corp. ("Windsor"), the cooperative corporation that owns the Building. Defs.' Rule 56.1 Statement of Material Facts ("Defs. 56.1") ¶¶ 1-3, ECF No. 146; Pl. Decl. ¶ 5. Defendant Tudor Realty Services Corp. ("Tudor") serves as managing agent for Windsor, Aff. of Drew Moschella ¶ 37, ECF No. 143, and Defendants Nancy Barsotti, Maureen Dunphy, Vivienne Gilbert, Paul Matten, and James Taylor were members of Windsor's board of directors (the "Board") during the relevant time period, Tr. of Board Meeting on May 4, 2011 ("May 4 Tr.") 1, Moschella Aff., Ex. D, ECF No. 143-4.¹

Mazzocchi's relationship with Jane Doe began by phone in 1991, when Doe lived in California. Dep. of Frank Mazzocchi ("Pl. Dep.") 43-44, ECF No. 141-9. They spoke "[a] dozen, two dozen times." Id. 44. Mazzocchi then booked a flight for Doe and met her in person for the first time at Newark Airport. Id. 43, 45. On August 26, 1991, Doe moved into the Apartment with Mazzocchi, and the couple lived there together until 2010, aside from 18 months when they lived in Brooklyn between 1994 and 1996.² Pl. Decl. ¶¶ 6-8, 71. Although Mazzocchi and Doe are not married, Def. 56.1 ¶ 10, Mazzocchi states that he has "maintained a close relationship with Doe"

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since 1991 and "consider [s] Doe [his] common law wife and ha[s] treated her as such,"³ Pl. Decl. ¶¶ 2-3. Mazzocchi is Doe's "sole means of support." Pl. Rule 56.1 Counterstatement of Material Facts ("Pl. 56.1") ¶ 10, ECF No. 167. The couple has maintained a joint bank account since 2003, Pl. Decl. ¶ 9, and Mazzocchi pays all of Doe's living expenses, provides Doe with an allowance, and does not charge Doe for living at the Apartment, Pl. 56.1 ¶ 10. Doe and Mazzocchi celebrate the anniversary of their relationship, spend holidays and birthdays together, and exchange greeting cards and flowers. Pl. Decl. ¶¶ 12-13, 15. Doe has spent time with Mazzocchi's family, Pl. Dep. 67-68, 78, and the couple raised two dogs that Mazzocchi "consider[s] ... to be [their] children," Pl. Decl. ¶ 19. In 2003, Mazzocchi named Doe the executor of his will, left her his entire estate, and designated her as his healthcare proxy. Pl. Dep. 68-70. Mazzocchi also arranged for the couple to be buried in the same burial plot. Pl. Decl. ¶ 10.

II. Jane Doe's Mental Health

Mazzocchi contends that Doe suffers from symptoms of mental illness that first became evident to him in 1991. See Pl. Decl. ¶¶ 21, 24-26. When Doe arrived in New York that year, she told Mazzocchi that she had been fired from a waitressing job because she could not record customers' orders, and that she had been let go from a position at a hospice because she told the patients that they would get better. Id. ¶¶ 25-26. Subsequently, Mazzocchi "personally observed Doe behaving in ways which demonstrate[ ] she is not able to work, think clearly, or take care of herself." Id. ¶ 24. Doe could not, for example, perform basic arithmetic, had difficulty retaining information, and "barely can write [and] scribbles like a six-year-old kid in kindergarten." Pl. Dep. 220-21; accord Pl Decl. ¶¶ 24-27. Nor could Doe write a check, use a computer, prepare a budget, or count change. Pl. Decl. ¶¶ 28-29.

According to Mazzocchi, Doe's mental health began to deteriorate in 2006, which Mazzocchi attributes to "Tudor and Windsor's curtailment of activities which Doe had been engaging in for years." Id. ¶¶ 34-35. Mazzocchi contends that Tudor and Windsor's actions were motivated by a desire to improve the Building's image, and that Norberto Hernandez, the Building's superintendent, told him in 2006 that the Windsor Board now had "powerful people" who planned to "bring about big changes" and "clean up the image of the building." Pl. Decl. ¶ 68. Specifically, Mazzocchi states that Building staff asked Doe to stop feeding pigeons and squirrels on the sidewalk in front of the Building and in a nearby park—activities which were "central to [Doe's] daily routine" "[b]ecause Doe did not work." Id. ¶ 35. Mazzocchi also states that Doe was told to stop sunbathing on the sidewalk with the couple's dog and visiting with elderly people in the lobby or in front of the Building. Id. Thereafter, Doe's "delusional beliefs increased," id. ¶ 34; see also id. ¶ 30 ("Doe ha[s] told me that she will be kept safe by her only friends, God, Jesus and the Holy Spirit, ... [that] God is going to provide her with a condominium in California[,] [and] that she is a prophet."); id. ¶ 32 ("Doe believes

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she is capable of completing impossible goals, like becoming a boxer, after we saw the movie, ‘Million Dollar Baby.’ "); id. ¶ 33 ("On occasion [ ], Doe believes she is 15 years old and acts that way."), and she began having increasingly frequent fits of anger, during which she would curse and scream, id. ¶ 34. In 2007, Doe became reluctant to go outside, frequently thought she was being followed, and believed that her telephone and apartment had been bugged with a listening device. Id. ¶ 42. Doe sometimes went for days without sleeping and had "violent nightmares" in which she had "bouts with the devil." Id. ¶ 43. She also began painting "religious symbols" on the walls of the Apartment and covered the windows with black paint to block out sunlight. Id. ¶ 37.

In their deposition testimony, Building staff, residents, and Board members corroborated some aspects of Mazzocchi's account of Doe's conduct. Doe was occasionally observed yelling or screaming at passersby—sometimes using profane language, making nonsensical statements, or issuing threats. See, e.g., Dep. of Norberto Hernandez 61-62, 74-75, ECF No. 162-12 (recounting that Doe told him, "I'm a prophet; I'm Jesus; F you," and that Doe "yelled at [him], cursed at [him] and ... said her name was God" when he addressed her as Jane Doe); Dep. of Scott Nagle 34-35, ECF No. 162-26 ("Her behavior changed.... She was more combative, more moody, more aggressive."); Dep. of James Taylor 26, ECF No. 162-29 ("[Her interactions with others] were typically abusive.... Whenever she walked through the lobby she would yell at the doormen. She would call them names. She would insult them. She would threaten them.... You know she would say ‘F you’ ... intimidating things like I'm going to get you or ... that type of thing."); Dep. of Drew Moschella 53, ECF No. 162-18 ("Well, she would threaten people and say I'll get you .... She used a lot of profane words."). Building staff, residents, and Board members also observed Doe in front of the Building sunbathing with her dog, dancing while listening to music on her headphones, and feeding pigeons. See, e.g., Hernandez Dep. 62; Moschella Dep. 52; Gilbert Dep. 146.

On January 1, 2009, Building staff contacted Mazzocchi and asked him to come to the Building immediately because "there was a problem with Doe." Pl. Decl. ¶ 45. Upon arriving at the Apartment, Mazzocchi found Doe "speaking incoherently in a bathroom full of steam." Id. ¶ 46. The Apartment's windows were open, and a bed comforter and clock that Mazzocchi had bought for Doe were lying on the ground below outside the Building. Id. ¶ 47. A team of emergency medical technicians arrived at the Apartment, and one EMT told Mazzocchi that Doe was "dissociated." Id. ¶ 48. Doe was then transported to Bellevue Hospital, involuntarily confined, and placed in Bellevue's Comprehensive Psychiatric Emergency Program unit, where she remained for approximately a month. Id. ¶ 49.⁴ On January 2 and 5, 2009, Mazzocchi spoke with a Bellevue...