Tufano v. One Toms Point Lane Corp.

• Decision Date: 13 September 1999
• Docket Number: No. 98-CV-7020(JS).,98-CV-7020(JS).
• Citation: Tufano v. One Toms Point Lane Corp., 64 F.Supp.2d 119 (E.D. N.Y. 1999)
• Parties: Alfred TUFANO, Plaintiff, v. ONE TOMS POINT LANE CORPORATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

64 F.Supp.2d 119

Alfred TUFANO, Plaintiff, v.ONE TOMS POINT LANE CORPORATION, et al., Defendants.

No. 98-CV-7020(JS).

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

September 13, 1999.

COPYRIGHT MATERIAL OMITTED

Alfred Tufano, Howard Beach, New York, plaintiffpro se.

Dale J. Degenshein, Cantor, Epstein, Bailey & Degenshein, LLP, New York City, for One Toms Point Lane, defendants.

George Nager, Hempstead, NY, for Lee & George Kalinsky, defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

SEYBERT, District Judge.

Presently pending before the Court are Plaintiff's objections to Magistrate Judge E. Thomas Boyle's Report and Recommendation (hereinafter "R & R"), dated July 17, 1999, recommending dismissal of Plaintiff's complaint in its entirety for failing to state a claim upon which relief can be granted, with leave to replead within 45 days, and recommending that the lis pendens file against the Kalinsky cooperative shares be vacated.

BACKGROUND

Familiarity with the factual and procedural history of this litigation is presumed.An abridged version of the events leading up to the filing of the lawsuit involves a contract entered into between PlaintiffAlfred Tufano and DefendantsGeorge Kalinsky and Lee Kalinksy(hereinafter "the Kalinskys"), on or about October 7, 1998, for the sale of 440 shares of stock in a cooperative housing corporation, One Toms Lane Corporation(hereinafter the "Corporation"), and the proprietary lease for unit 9H, subject to the approval of the Corporation.On or about October 29, 1998, Plaintiff was interviewed by a "screening committee" comprised of DefendantsBarbara Healy and Mrs. MacMann, at which time Plaintiff also presented previously requested documents.On or about November 6, 1998, the day after the Board of Directors of the Corporation (hereinafter the "Board"), held a meeting to consider Plaintiff's application, Tufano's attorney was informed that the application was disapproved, without reason, and a letter to that effect, dated November 7, 1998, (hereinafter the "Letter"), was sent by the Board to Alfred Tufano.

On November 10, 1998, Plaintiff filed the instant action, initially alleging a conspiracy and fraud by Defendants to violate Plaintiff's civil rights in violation of 42 U.S.C. §§ 1983 & 1988, and a claim for unfair competition under New York state law.Plaintiff filed an Amended Complaint on November 24, 1998, adding jurisdictional predicates pursuant to 42 U.S.C. §§ 1981 & 1982, the United States Constitution and the Fair Housing Act.After issue was joined, Defendants moved to dismiss and/or for summary judgment and Plaintiff cross-moved for summary judgment.The Kalinskys also moved to vacate the lis pendens, filed with the Clerk of the County of Nassau on November 10, 1998, against their apartment.

DISCUSSION

I.STANDARD OF REVIEW

A motion to dismiss or for summary judgment is a dispositive motion and as such it may be referred to a Magistrate Judge for proposed findings of fact and recommendations for its disposition pursuant to 28 U.S.C. § 636(b)(1)(B), and specific objections thereto shall be reviewed de novo by this Court to accept, reject, or modify, in whole or in part, the Magistrate's findings or recommendations.See28 U.S.C. § 636(b)(1)(C);Fed.R.Civ.P. 72(b).

Magistrate Judge Boyle, in a thorough and well-reasoned opinion, counseled dismissal of the complaint because, inter alia, there are no allegations articulating a civil rights violation, nor has the complaint been pled with sufficient particularity to allege fraud or to state a claim sounding in conspiracy.Moreover, as this Court finds, a review of the complaint and other documents reveals that there is no claim alleged against the Kalinskys, save Tufano's oral assertion at a hearing that they are "intertwixed and intertwined with the Corporation."

II.STANDARD GOVERNING MOTIONS TO DISMISS

A district court should grant a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."H.J. Inc. v. Northwestern Bell Tel. Co.,492 U.S. 229, 249-50, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195(1989)(quotingHishon v. King & Spalding,467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59(1984)).In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true.Id. at 249, 109 S.Ct. at 2906;seeScheuer v. Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90(1974);see alsoLeatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,507 U.S. 163, 167, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517(1993)(citingFed.R.Civ.P. 8(a)(2) to demonstrate liberal system of `notice pleading' employed by the Federal Rules of Civil Procedure).This is especially so when analyzing a complaint filed by a pro se plaintiff.Burgos v. Hopkins,14 F.3d 787, 790(2d Cir.1994).When the complaint alleges a violation of a civil rights statute, allegations must specify the violations rather than offering "a litany of general conclusions that shock but have no meaning."Barr v. Abrams,810 F.2d 358, 363(2d Cir.1987);see alsoLeon v. Murphy,988 F.2d 303, 310(2d Cir.1993)("`A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss.'")(quotingSommer v. Dixon,709 F.2d 173, 175(2d Cir.1983));Neustein v. Orbach,732 F.Supp. 333, 346(E.D.N.Y.1990)(holding to survive a motion to dismiss, a civil rights complaint must contain "more than naked improbable unsubstantiated assertions without any specifics").The issue before the Court on a Rule 12(b)(6) motion"is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim."

The Second Circuit stated that in deciding a Rule 12(b)(6) motion, a court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken."Samuels v. Air Transport Local 504,992 F.2d 12, 15(2d Cir.1993);see alsoInternational Audiotext Network, Inc. v. American Tel. & Tel.,62 F.3d 69, 72(2d Cir.1995);Paulemon v. Tobin,30 F.3d 307, 308-09(2d Cir.1994);Rent Stabilization Ass'n of the City of New York v. Dinkins,5 F.3d 591, 593-94(2d Cir.1993)(citingSamuels,992 F.2d at 15).

According to Rule 12(b), however, "[i]f, on a motion ... to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."A district court may not convert a motion under Fed.R.Civ.P. 12(b)(6) into a Rule 56motion for summary judgment without sufficient notice to the opposing party to respond.Groden v. Random House, Inc.,61 F.3d 1045, 1052(2d Cir.1995).The essential inquiry is whether the plaintiff should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings.In re G. & A. Books, Inc.,770 F.2d 288, 294-95(2d Cir.1985).

In deciding whether to convert a motion to dismiss into one for summary judgment, the Court recognizes that the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.Cortec Indust. Inc. v. Sum Holding, L.P.,949 F.2d 42, 47(2d Cir.1991).When a plaintiff chooses not to attach to the complaint or incorporate by reference a document upon which it solely relies and which is integral to the complaint, the court may under certain circumstances take the document into consideration in deciding the defendant's motion to dismiss without converting the proceeding to one for summary judgment.Id. at 47-48;International Audiotext Network,62 F.3d at 72.In addition, the Court may consider documents annexed to the movant's papers which, although not annexed to the complaint, plaintiff either had in his possession or had knowledge of and upon which he relied in bringing suit.Roucchio v. Coughlin,923 F.Supp. 360, 366(E.D.N.Y.1996)(citingCortec,949 F.2d at 48).The Second Circuit has warned, however, that it is error to consider factual allegations contained in legal briefs or memoranda without converting the motion to one for summary judgment.Fonte v. Board of Managers of Continental Towers Condominium,848 F.2d 24, 25(2d Cir.1988).

Here, the parties have submitted affidavits and correspondence beyond the pleadings.Further, the parties are aware that the Court might convert this motion into summary judgment, in fact, Defendant has moved to dismiss or in the alternative for summary judgment and Plaintiff has cross-moved for summary judgment.Because Judge Boyle recommended dismissal of the instant action without prejudice to replead, it is unnecessary for the Court to consider whether the motion to dismiss should be converted to a motion for summary judgment, however, the Court will utilize the affidavits and other documents presented, as all parties are sufficiently on notice that summary adjudication is a feasible option.It is within this framework that the Court addresses Tufano's specific objections to Magistrate Judge Boyle's Report and Recommendation.

III.TUFANO'S OBJECTIONS

A.Conspiracy Claims

First, Tufano declares that he is not alleging a conspiracy pursuant to 42 U.S.C. § 1985(3), yet Plaintiff's Amended Complaint, although never citing § 1985, does allege...