Mitchell v. Shane

Decision Date17 November 2003
Docket NumberDocket No. 02-9425.
PartiesClarence MITCHELL, Aischa Mitchell, Plaintiffs-Counter-Defendants-Appellants, v. Sheila SHANE, Harvey Shane, Defendants-Counter-Claimants-Appellees, Century 21 Rustic Realty, Century 21 Rustic Realty, Matthew Ryan, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

STEPHEN T. MITCHELL, Stephen T. Mitchell, P.C., New York, NY, for Plaintiffs-Appellants.

NEIL J. MORITT, Moritt, Hock, Hamroff & Horowitz, LLP, Garden City, N.Y. (Ellen R. Storch, on the brief), for Defendants-Counter-Claimants-Appellees.

DOUGLAS FALCH, Penino & Moynihan, LLP, White Plains, N.Y. (Stephen J. Penino, on the brief), for Defendant-Appellee Century 21 Rustic Realty.

THALIA FEILEN, Goldson, Nolan Associates LLP, Melville, N.Y. (Howard W. Goldson, of counsel), for Defendant-Appellee Matthew Ryan.

Before: CARDAMONE, MINER, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge.

Plaintiffs Clarence and Aischa Mitchell ("plaintiffs" or the "Mitchells") appeal from a decision of the United States District Court for the Eastern District of New York (Platt, J.), granting summary judgment to defendants Sheila and Harvey Shane (the "Shanes"), Matthew Ryan ("Ryan"), and Century 21 Rustic Realty ("Century 21"), on plaintiffs' claims of racial discrimination in connection with their unsuccessful attempt to purchase real property located at 2548 Deerfield Road, Southampton, New York (the "Property").

The Mitchells, an African-American couple, allege that they were denied, in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., 42 U.S.C. §§ 1981 and 1982, and New York Executive Law § 296(5)(a)(1), the right to purchase the Property. The district court referred the matter to Magistrate Judge William D. Wall, who held a three-day evidentiary hearing in March 2002. Adopting Magistrate Judge Wall's Report and Recommendation, the district court denied the plaintiffs' motion for a preliminary injunction to prevent the sale of the Property to Michael Selleck ("Selleck"), see Mitchell v. Century 21 Rustic Realty, 233 F.Supp.2d 418 (E.D.N.Y.2002) ("Mitchell I"), and we affirmed, 2002 WL 31006358, 45 Fed.Appx. 59 (2d Cir. Sept.6, 2002). The Shanes then moved for summary judgment on the Mitchells' housing discrimination claims, for cancellation of the Notice of Pendency filed by plaintiffs, and for sanctions and attorneys' fees against the plaintiffs and their counsel, Stephen Mitchell. Defendants Ryan and Century 21 also sought summary judgment, sanctions, and attorneys' fees. The district court granted summary judgment to all defendants, cancelled the Notice of Pendency, and deferred decision on sanctions and fees. It also denied plaintiffs' motions for the recusal of Judges Platt and Wall. See Mitchell v. Century 21 Rustic Realty, 233 F.Supp.2d 445 (E.D.N.Y.2002) ("Mitchell II").

We affirm the denial of recusal, and the grants of summary judgment as to the claims against the Shanes. However, because we find that disputed issues of material fact preclude summary judgment as to the claims against Ryan and Century 21, we vacate and remand these for further proceedings.

I. Background

Clarence and Aischa Mitchell, residents of New York City, began to search for a home in eastern Long Island in May 2001. Robin Kaplan ("Kaplan"), an employee of Allen M. Schneider Associates, Inc., first showed the Mitchells the Property in late November or early December of 2001.1 After consulting with an architect to determine whether desired changes to the Property were possible, the Mitchells made an initial offer of $655,000. On December 26, while the Mitchells were vacationing in California, they received a call from Kaplan indicating that the Shanes had received another offer on the Property, for $672,000.2 Eager to demonstrate their genuine interest in purchasing the Property, the Mitchells authorized Kaplan to increase their offer to $685,000. Kaplan faxed a note to defendant Ryan, the listing agent on the Property. The note indicated that the Mitchells would offer that amount, "subject to engineer's report and 80% financing," with an approximate closing date of March 1, 2002.3 The following day, Kaplan phoned the Mitchells to indicate that the Shanes were very interested in their offer, but required some evidence of the Mitchells' ability to deliver on it. The Mitchells expeditiously obtained from the Manhattan Mortgage Company a preapproval letter for financing of $616,500, which amounted to 90% of the purchase price, and had it faxed to Kaplan and Ryan on December 27.

Ryan testified that after seeing the Mitchells' preapproval letter, the Shanes expressed concern about the 90% financing figure, fearing that insufficient equity would hamper a "smooth[ ] transition." Ryan says he called Kaplan to convey this qualm, and Kaplan told him that the preapproval letter was meant merely to indicate that the Mitchells were approved for 90% financing, not to suggest that an 80% contingency was a problem for them. Ryan subsequently issued a memorandum of sale providing for a $685,000 purchase price and 80% financing, which he sent to Kaplan, the Shanes, Marie Ongioni (the Mitchells' real estate attorney) ("Ongioni"), and Kara Bak (the Shanes' real estate attorney) ("Bak"). Kaplan apparently prepared her own memorandum of sale on December 27, containing the 80% figure, but it is not clear from the record whether she conveyed it to anyone else. On December 29, Kaplan faxed a different document, which she termed a "history sheet," to Bak, Ongioni, and Ryan; this document specified a 90% financing contingency. Kaplan testified that she changed the contingency figure from 80% to 90% based on the Mitchells' preapproval letter.

On January 3, 2002, Bak sent four copies of a contract of sale for the Property to Ongioni. An accompanying cover letter stated that if the Mitchells approved the terms, they were to sign the contracts and return them with a check for $68,500, ten percent of the proposed purchase price. The cover letter also specified that "[s]ince this is not to be considered a continuing offer to sell, if the signed contracts are not returned to my office within ten days from your receipt same [sic], then this offer shall be considered terminated without prejudice to either party." Bak's letter also requested that Ongioni telephone her before making any alterations to the contract. Ongioni apparently received the letter and the contracts on the following day, January 4.

On January 5, 2002, the Mitchells brought an engineer to inspect the Property. The engineer discovered several problems with the Property, which he described in a report to the Mitchells issued on January 10. After reviewing the report, the Mitchells concluded that the necessary repairs would cost approximately $20,000 to $25,000.

Ongioni testified that she sent the contracts to the Mitchells on Friday, January 11, 2002, the day before she was to leave for a week-long vacation. She stated that she told Bak she was sending the contracts to the Mitchells for their signature, and indicated that she would be on vacation the following week, so that the signed contracts would not be returned to Bak until the week of January 21. Ongioni stated at the preliminary hearing that Bak did not object to this arrangement.

In the meantime, the Mitchells contacted Kaplan to request that she negotiate a reduction of $8,000 to $10,000 in the price of the Property to compensate for the repairs that the engineer's report suggested were necessary. Ryan, meanwhile, was vacationing in St. Croix, but according to his testimony, he was making frequent telephone inquiries regarding the status of the Shane—Mitchell contracts, since they had not yet been signed and returned. When he got home on the evening of January 14, 2002, he found a message from Kaplan on his answering machine explaining the Mitchells' request for a price reduction. Ryan testified that he immediately telephoned the Shanes to convey this proposal, and that Mr. Shane was "very frustrated" by the new demand. Despite Mr. Shane's initial reluctance to renegotiate, Ryan said he convinced the Shanes to accept an $8,000 reduction on the condition that the contracts be signed and returned by January 17. Ryan says he called Kaplan back later that night, and left a message on her answering machine with details about the price reduction and the new deadline.

Subsequently, Kaplan testified, she contacted the Mitchells to tell them that the Shanes had accepted the proposed reduction and that the contracts should be returned as soon as possible. Mr. Mitchell told Kaplan that he was in Chicago, but would be happy to sign the contracts when he returned to New York on Friday, January 18. Kaplan asked if there was anything the Mitchells could do in the interim, and they arranged to fax a signed copy of the signature page of the contract to Kaplan and Bak. On January 15, Kaplan returned Ryan's phone call. According to Ryan's testimony, Kaplan conveyed the Mitchells' thanks to him for holding the deal together, and assured Ryan that she would personally ensure that the contracts were returned to Bak by the end of the day on January 17.

Ryan testified that on January 17, 2002, he called Kaplan to inform her that the Property would remain on the market until contracts were signed, and that another real estate agency had a client interested in making an offer on the Property.

On January 18, 2002, the Mitchells obtained a certified check from Citibank for $67,700, which amounted to 10% of the renegotiated purchase price. Mr. Mitchell then modified the contracts by crossing out the $685,000 purchase price and replacing it with the renegotiated price of $677,000, and by crossing out the 80% mortgage contingency figure of $548,000 and replacing it with a 90% contingency, or $609,300. The Mitchells sent the contracts and the check to...

To continue reading

Request your trial
175 cases
  • De Reyes v. Waples Mobile Home Park Ltd.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • April 18, 2017
    ...the dwelling remained available to others outside of plaintiffs' protected class.See Martin , 535 Fed.Appx. at 244 ; Mitchell v. Shane , 350 F.3d 39, 47 (2d Cir. 2003) (similar); see also Murrell v. Ocean Mecca Motel, Inc. , 262 F.3d 253, 257 (4th Cir. 2001) (setting forth similar standard ......
  • M & T Mortgage Corp. v. White
    • United States
    • U.S. District Court — Eastern District of New York
    • August 26, 2010
    ...(3) that they were rejected; and (4) that the housing opportunity remained available to other renters or purchasers." Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir.2003) (citing Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1038 (2d Cir.1979)); see also Powell, 310 F.Supp.2d at 487. The pr......
  • Bunting v. Nagy
    • United States
    • U.S. District Court — Southern District of New York
    • September 27, 2006
    ...issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir.2003) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). "A fact is `material' if it might affect the outcome of the suit under g......
  • Favourite v. 55 Halley St., Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • May 23, 2019
    ...Claims of housing discrimination under the FHA are viewed under the McDonnell Douglas burden-shifting framework. Mitchell v. Shane , 350 F.3d 39, 47 (2d Cir. 2003) (citing Robinson v. 12 Lofts Realty, Inc. , 610 F.2d 1032, 1038 (2d Cir.1979) ). Plaintiff asserts claims of discrimination und......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT