Wenning v. On-Site Manager, Inc.
| Decision Date | 22 June 2016 |
| Docket Number | 14 Civ. 9693 (PAE) |
| Parties | DEBORAH WENNING and ANDRES CORREA, Plaintiffs, v. ON-SITE MANAGER, INC., Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs Deborah Wenning and Andres Correa each rented an apartment in New York City until they agreed with their respective landlords to vacate. Those agreements led to the entry, in New York City Housing Court, of judgments of possession in favor of plaintiffs' landlords. Later, defendant On-Site Manager, Inc. ("On-Site"), which provides tenant screening reports to landlords, produced reports stating that Wenning and Correa had each been a defendant in a "Forcible Entry/Detainer" case ending in a judgment for the landlord.
Plaintiffs now bring this action under the Fair Credit Reporting Act, 15 U.S.C. § 1681 ("FCRA"), the New York Fair Credit Reporting Act ("NYFCRA"), and Section 349 of the New York General Business Law ("NYGBL"). They claim that On-Site did not maintain reasonable procedures to assure the accuracy of the reports it provided to landlords. In particular, plaintiffs claim that the term "Forcible Entry/Detainer" was inaccurate; that On-Site's failure to use a more accurate term and to provide additional information clarifying the nature of plaintiffs' Housing Court proceedings was unreasonable; and that On-Site's dissemination of inaccurate reports caused plaintiffs emotional distress.
On-Site now moves for summary judgment, and plaintiffs move for partial summary judgment. For the following reasons, On-Site's motion is granted and plaintiffs' is denied.
The Court begins by reviewing the evidence relating to Wenning and Correa, including the Housing Court proceedings that gave rise to the entries on their respective On-Site screening reports. The Court then reviews the evidence relating to On-Site's procedures for reporting Housing Court proceedings.
Since at least 2005, and continuing into 2011, Wenning was the tenant in a rent-stabilized apartment at 208 East 82nd Street, Apt. 31, New York, NY 10028. Joint 56.1, ¶ 1. On or about November 15, 2010, Wenning's landlord, 82nd Street Associates LLC, notified her that it intended not to renew her lease, which was set to expire on February 28, 2011. Id. ¶¶ 3-4. The notice alleged, inter alia, that Wenning had not been using the apartment as her primaryresidence and had illegally sublet and/or assigned the apartment to another person. Id. ¶ 5. Wenning retained counsel. Id. ¶ 8.
On February 28, 2011, Wenning, her landlord, and their attorneys executed a "Stipulation of Settlement." See Dkt. 74 ("Scher Decl."), Ex. I ("Wenning Stip." or "Stipulation"). On or about March 11, 2011, the landlord commenced a proceeding in the Housing Part of the Civil Court of the City of New York ("Housing Court"), and soon thereafter filed the Stipulation there. Joint 56.1, ¶¶ 9, 11. In the Stipulation, Wenning consented to "a final judgment of possession" in the landlord's favor. Wenning Stip. ¶ 3. The Stipulation also provided that Wenning would be named as the respondent in the Housing Court proceeding,2 id. ¶ 1, and would vacate the apartment by August 31, 2011, id. ¶ 5. Wenning further consented to pre-service of a Marshal's notice at any time after August 10, 2011, so that possession could be recovered on September 1 if Wenning had not, by then, vacated the apartment. Id. The landlord, in turn, agreed to waive Wenning's rent from March through July and to apply a security deposit toward the August rent. Id. ¶ 11.
On March 14, 2011, based on the Stipulation, the Housing Court entered a judgment of possession in the landlord's favor. Joint 56.1, ¶ 19; see Scher Decl., Ex. J ("Wenning Judgment"). Wenning voluntarily vacated and surrendered possession of the apartment on or before August 31, 2011, and no warrant of eviction was executed to recover possession. Joint 56.1, ¶¶ 21, 168, 170.
Wenning subsequently applied to rent a subsidized apartment at 510-550 West 45th Street, known as "Gotham West." Id. ¶ 22. Her application for the Gotham West lottery was handled by an organization called Common Ground Community Housing Development Fund Corporation, Inc. ("Common Ground"). Id. ¶ 23. On or about May 12, 2014, Common Ground obtained a tenant screening report on Wenning from On-Site. Id. ¶ 24; see Scher Decl., Ex. K ("Wenning Report"). The Wenning Report, which stated that it contained information "accurately copied from public records," included information relating to Wenning's 2011 Housing Court proceeding.3 Joint 56.1, ¶ 176. It set out the case number, the court, and the filing date, and listed Wenning's landlord as the "plaintiff" and Wenning as the "defendant." See Wenning Report. Most relevant here, it described the 4 as "Forcible Entry/Detainer" (highlighted in yellow) and described the "Judgment" as "For Plaintiff."5 See id.; Joint 56.1, ¶ 175. At the bottom of the Housing Court section, the Report stated that "[a] housing court record does not necessarily mean that a tenant owed rent or was evicted from an apartment." See Wenning Report.
Common Ground and/or Gotham West had set their tenant-screening criteria to automatically "fail" any prospective tenant who had any housing court record collected by On-Site. See Joint 56.1, ¶ 25.6 On this basis, Wenning's application failed, and on or about May 15, 2014, Denise St. Just-Cordero of Common Ground informed Wenning that her application for an apartment through the Gotham West lottery had been rejected. Id. ¶ 28. Just-Cordero told Wenning, inter alia, that Common Ground generally sees the term "Forcible Entry/Detainer" used "in situations where landlords institute a case against a tenant to have them removed from the apartment/lease." Scher Decl., Ex. M (email of May 15, 2014, 6:16 p.m.). Common Ground also gave Wenning a formal notice of rejection that listed, as the reason for rejection, "Housing court record - April 2011 - 'Forcible Entry/Detainer.'" Id., Ex. N ("Wenning Rejection Letter"). However, Just-Cordero encouraged Wenning to appeal her rejection. Joint 56.1, ¶ 35.
A few days later, Wenning retained the services of her present counsel to aid in that appeal. Id. ¶ 36. Counsel promptly contacted On-Site to obtain a copy of the Wenning Report. Id. ¶¶ 37-38. Counsel also contacted Wenning's former landlord's attorney, seeking the landlord's consent to a stipulation vacating the Wenning Judgment, as well as a letter of reference for Wenning. See id. ¶¶ 39-40. On or about May 21, 2014, the landlord's counsel executed the stipulation and Wenning's counsel filed it with the Housing Court, copying On-Site. See id. ¶¶ 42-43.
On or about May 22, 2014—one week after Wenning first learned about the problem with her On-Site report—On-Site generated an amended screening report that no longer contained any reference to the Housing Court proceeding, and provided that report to Wenning'scounsel. Id. ¶ 45. Wenning then forwarded the amended report to Common Ground. Id. ¶ 46. Finally, on May 28, 2014—13 days after Wenning's application was denied—Wenning was approved as a tenant at Gotham West. Id. ¶ 47.
In her deposition, Wenning repeatedly testified that, when she heard the term "Forcible Entry/Detainer" used to describe her 2011 Housing Court proceeding, she felt she was being called a criminal. See Wenning Dep. 55-57, 59, 82, 129; see also id. at 145 ( ); see id. at 56 (similar testimony). She testified that she was "blindsided" because "[e]verything was perfect" with her application and she could "almost taste having a lease of [her] own." See id. at 57, 82. The words "Forcible Entry/Detainer" rung in her ears. See id. at 57, 139. She was "highly embarrassed" and "humiliated." See id. at 57, 83. She "had a meltdown and cried hysterically" and "was in a complete upset panic." Id. at 83, 117. She "became totally unglued" and her "world came apart." Id. at 81-82. Her life "was turned into hell" and she suffered "horrible distress" as she "[came] up against a very intimidating process" that required her "to go through hell and high water to turn it around." Id. at 130-32.
Wenning did not obtain medical treatment relating to this distress. Joint 56.1, ¶ 48. She testified that she "could have used some therapy," Wenning Dep. 143, but could not afford it. See id. 145-46.
Correa's story is quite similar to Wenning's, at least in its essential facts.
In 2012, Correa had been the subtenant of a rent-stabilized apartment at 309 West 57th Street, Apt. 1208, New York, NY for about four years. Joint 56.1, ¶ 49. Alexander Scroczynski was the prime tenant of the apartment; he sublet the apartment to Correa, and Correa believed that Scroczynski had the landlord's consent to do so. Id. ¶¶ 50, 181. On or about January 3, 2012, Correa's landlord mailed a Notice to Cure to Scroczynski's attention at Apt. 1208, alleging that Scroczynski was subletting the apartment without consent. Id. ¶¶ 52-53. On or about January 27, 2012, the landlord mailed a Notice of Termination, stating that Scroczynski's tenancy would be terminated effective February 10, 2012 because he had failed to cure the defects cited in the Notice to Cure. Id. ¶¶ 56-57. On or about February 15, 2012, the landlord commenced a proceeding in Housing Court, identifying "Andres 'Doe'" as a "Respondent-Undertenant." Id. ¶¶ 59-60.
On or about February 28, 2012, Correa and the landlord executed a Stipulation of Settlement. Id. ¶ 63; see Scher Decl., Ex. S ("Correa Stip." or "Stipulation"). In the Stipulation, Correa acknowledged that he...
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