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finding no third party standing where the pro se plaintiff had failed to allege, inter alia, that the third party suffered "incapacity caused by [an] illness"
Summary of this case from Ong v. Park Manor (Middletown Park) Rehab. & Healthcare Ctr.Opinion
11 Civ. 7913 (LBS)
08-06-2012
FRANK MAZZOCCHI, Plaintiff, v. WINDSOR OWNERS CORP. et al., Defendants.
MEMORANDUM & ORDER
In this action, pro se Plaintiff Frank Mazzocchi ("Mazzocchi") brings claims against Defendants Windsor Owners Corporation ("Windsor"), Tudor Realty Services ("Tudor"), U.F.H. Apartments Inc. ("UFH"), Michael George, Inc. ("Michael George"), Flora Ventures LLC d/b/a Flower School New York ("Flower School"), Ferrah Beceriklisoy ("Beceriklisoy"), Norberto Hernandez ("Hernandez"), and members of Windsor's Board of Directors pursuant to 42 U.S.C. §§ 1981, 1985(3), 1986, 1988; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Fair Housing Act ("FHA"), 42 U.S.C. §§ 3613, the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. Admin. Code §§ 8-101 et seq.
Defendants have moved the Court to dismiss the complaint in its entirety. For the reasons stated herein, this motion is granted.
This section is based on facts alleged in the Complaint ("Compl."), filed November 4, 2011.
Plaintiff Frank Mazzocchi is the proprietary lessee of apartment #821 in Windsor Towers, a 22-story building that is owned by Windsor, managed by Tudor Realty, and located in the Tudor City complex in Manhattan. Mazzocchi bought the apartment in 1987, after residing in it as a renter for ten years. He currently splits his time between the apartment and another apartment he owns in Brooklyn. In 1991, Mazzocchi's long-term girlfriend, "Jane Doe," moved in to apartment #821, where she continues to reside.
Mazzocchi asks the Court to protect Jane Doe's privacy by allowing the use of the pseudonym in lieu of her legal name. The decision to allow the use of pseudonyms "rests within the sound discretion of the court." EW v. New York Blood Ctr., 213 F.R.D. 108, 110 (E.D.N.Y. 2003). In exercising its discretion, the ultimate question the court decides is whether the plaintiff has a "substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." Id. (quoting Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992) (internal punctuation removed)). Courts frequently find privacy interests to justify the use of pseudonyms in cases requiring the disclosure of information of "the utmost intimacy." Guerrilla Girls, Inc. v. Kaz, 224 F.R.D. 571, 573 (S.D.N.Y. 2004) (quoting Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y. 1996)). Information relating to an individuals' mental health, or lack thereof, is information of this kind. Frank, 951 F.2d at 324; Doe v. Smith, 189 F.R.D. 239, 242 (E.D.N.Y. 1998) (internal citations removed). For this reason, and because we can see no prejudice to Defendants, we grant Mazzocchi's request. Parties are hereby ordered, in all future pleadings filed in this case, to refer to Jane Doe only by this appellation.
Mazzocchi alleges that, on or around February 1, 2006, members of the Windsor Board formed a conspiracy with Tudor Realty to drive Jane Doe from Windsor Towers by curtailing her freedom in various ways. Employees of Tudor Realty allegedly curtailed Jane Doe's freedom by, among other things, preventing her from feeding the birds and squirrels in the Windsor Tower parks and on the sidewalk or street in front of the building, forbidding her from walking her dog in the parks in the building or from playing with her dog in the hall outside the Apartment, ordering her to lower the volume of the music she played in the apartment, and teasing her about the way she dressed and her crooked teeth. Mazzocchi alleges that Michael George and Flower School, two of the building's commercial tenants, and Beceriklisoy, the manager of a dry cleaning establishment located in Windsor Towers, also participated in the campaign against Jane Doe. He also alleges that Hernandez, the building superintendent, in order to curry favor with Windsor and Tudor Realty, participated in the conspiracy to drive Jane Doe from the building by ordering his subordinates to harass and torment Jane Doe by turning off the intercom connection to her apartment, shutting off her hot water supply at odd times and intervals, and tapping on the door of the apartment at odd times.
Mazzocchi claims that Defendants entered into this campaign of discrimination against Jane Doe in order to protect Windsor Tower's property values by driving from the building one of its more eccentric inhabitants. In 2009, Jane Doe was diagnosed as suffering from bipolar disorder and for years prior to the diagnosis had exhibited increasingly erratic behavior. Mazzocchi alleges that Jane Doe's eccentric behavior was the cause of the campaign of discrimination against her. It was also, Mazzocchi alleges, significantly exacerbated by the trauma Jane Doe suffered as a result of Defendants' conduct.
On "information and belief" Mazzocchi alleges that Jane Doe was also diagnosed with post-traumatic stress disorder ("PTSD"). Compl. ¶ 65.
In 2009, Mazzocchi began to receive complaints from Tudor Realty about Jane Doe. On October 30, 2009, he received a letter from Janice Keller-McDowall, an employee of Tudor Realty, which claimed that Jane Doe "verbally accosted residents in the elevator." Compl. ¶ 102. On July 26, 2010, Mazzocchi received another letter from Janice Keller-McDowall. This letter asserted that Jane Doe's dog "snapped aggressively at residents in the elevator." Id. at 103. On or about September 24, 2010, Mazzocchi received a phone call from a lawyer representing Windsor and Tudor Realty. The lawyer informed Mazzocchi that he was calling on behalf of the Windsor Board, which had decided to evict Jane Doe from the building because "she was illegally subletting, she looked like a wreck, and she was a nuisance." Id. at ¶ 107. Mazzocchi warned counsel that Jane Doe suffered from Bipolar Disorder and that if the Board took any action to interfere with his life or property he would file suit.
On December 30, 2010, Mazzocchi went to the offices of Tudor Realty to discuss the complaints about Jane Doe from residents in the building. He allegedly told Tudor Realty to ignore the complaints because although Jane Doe "has a big mouth... she won't physically harm anybody." Compl. ¶ 109. Tudor Realty did not take Mazzocchi's advice. On March 21, 2011, Mazzocchi received a formal notice of default, dated February 26, 2011, from Vivienne Gilbert, President of the Windsor Board. The notice asserted that Jane Doe's presence in the Apartment violated Article 15 of the proprietary lease, which prohibited unauthorized subletting. It also noted Jane Doe's "objectionable" conduct towards other residents of the building. The notice of default warned Mazzocchi that if he did not remove Jane Doe from the Apartment within 10 days, his proprietary lease would be terminated. Mazzocchi did not remove Jane Doe and on October 20, 2011, Windsor commenced ejectment proceedings against Plaintiff and Jane Doe in New York state court. Sharrow Decl. Ex. 4.
In response, Mazzocchi filed suit in this court, claiming that Jane Doe's treatment as a resident in the building, and the attempts by the Windsor to evict either one or both of them from the apartment, constituted discrimination on the basis of mental illness. Mazzocchi also alleges that the means by which he was served notice of the default and subsequent action violated his due process rights under the proprietary lease. He seeks money damages for the harm both he and Jane Doe suffered at Defendants' hands, as well as various forms of injunctive and declaratory relief.
II. Standard of Review
In deciding a motion to dismiss a complaint pursuant to Rule 12(b)(6), a court must "accept as true all factual statements alleged in the complaint and draw reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2nd Cir. 2007) (internal citations omitted). While detailed factual allegations are not required, a "formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570).
While pro se plaintiffs remain bound by these standards, courts are required to construe their complaints liberally, to "raise the strongest arguments that they suggest." Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) and "to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of their rights because of lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
In reviewing a complaint, a court is not limited to the four corners of the complaint; a court may also consider "documents attached to the complaint as an exhibit or incorporated in it by reference, . . . matters of which judicial notice may be taken, or . . . documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
III. Discussion
a. Standing
The first question that this Court must address is that of Mazzocchi's standing. Litigants who bring suit in federal court must satisfy both constitutional and prudential standing requirements. To establish standing under Article III of the U.S. Constitution, plaintiffs must demonstrate, with respect to each claim, three elements: (1) an "injury in fact," or in other words, "an invasion of a legally protected interest which is both concrete and particularized...and actual or imminent, not conjectural or hypothetical;" (2) "a causal connection between the injury and the conduct complained of;" and (3) the likelihood that "that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-1 (1992) (internal citations omitted).
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) ("[O]ur standing cases confirm that a plaintiff must demonstrate standing for each claim he seeks to press.").
Plaintiffs must also satisfy three additional prudential requirements. First, they "must assert [their] own legal rights and interests, and cannot rest [their] claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975). Second, they may not seek to litigate "generalized grievances" involving "abstract questions of wide public significance [that are]... most appropriately addressed in the representative branches." Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 474-475 (1982). Finally, their injury must fall "within the zone of interests protected by the law invoked." Allen v. Wright, 468 U.S. 737, 751 (1984). Because prudential standing requirements are "judicially self-imposed limits on the exercise of federal jurisdiction," Allen v. Wright, 468 U.S. 737, 751 (1984), they can be waived in certain circumstances. The Article III standing requirements, in contrast, provide an "irreducible constitutional minimum" and must be satisfied in every case. Lujan, 504 U.S. at 560-561.
Mazzocchi brings claims under 42 U.S.C. §§ 1981, 1985, 1986, the ADA, the FHA, the NYSHRL, and the NYCHRL on his own behalf and on behalf of Jane Doe, whom he claims is incapable of asserting her own interests. Compl. 33-34. We first address his standing to bring suit on Jane Doe's behalf, before examining his standing to bring claims on his own behalf.
i. Third-party standing
The third-party standing doctrine is a prudential exception to the usual requirement that the plaintiff have personally suffered the "injury in fact" he or she seeks to vindicate. See W. R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 107 (2d Cir. 2008) (noting that "[a]s a general rule, the 'injury-in-fact' requirement means that a plaintiff must have personally suffered an injury"). Under the doctrine, courts allow plaintiffs to assert claims on behalf of a third party when they can demonstrate three things: (1) that they have "suffered an injury in fact, thus giving [them] a sufficiently concrete interest in the outcome of the issue in dispute"; (2) "a close relation to the third party"; and (3) "some hindrance to the third party's ability to protect his or her own interests." Miller v. Albright, 523 U.S. 420, 447 (1998) (internal citations omitted). In addition, the hindrance should be a "substantial" one. Id. at 449-50 (permitting third-party standing only where sufficiently serious obstacles exist that the "party's absence from a suit more likely stems from disability than from disinterest" and that "the rightholder did not simply decline to bring the claim on his own behalf, but could not in fact do so").
Mazzocchi satisfies the first requirement for third-party standing. The mental suffering he experienced as a result of Jane Doe's deteriorating mental health, as well as the imminent threat of the loss of his New York residence, give him a sufficiently concrete interest in the outcome of the dispute. Mazzocchi satisfies the second requirement as well. As Jane Doe's long-term domestic partner and caregiver, he has a "close relationship" to her, and therefore is an appropriate person to litigate Jane Doe's claims on her behalf. See McGRX, Inc. v. Vermont, No. 5:10-cv-1, 2011 U.S. Dist. LEXIS 924, at *26 (D. Vt. Jan. 5, 2011) (noting that the close relationship requirement asks whether "the third party can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.") (quoting Sec'y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956 (1984)).
Mazzocchi has not, however, pled sufficient facts to establish the third requirement of third-party standing: namely, a substantial hindrance to the third party's ability to assert her own rights. Mazzocchi claims that Jane Doe's mental illness substantially hinders her ability to assert her own interests because it makes her unwilling to join in, or cooperate with, this litigation. Compl. 33 (noting that "because of the nature of her Disorders, Jane Doe will be furious when she learns of Plaintiff's filing this complaint and she will not become a willing complainant"). Mazzocchi does not however provide any further details to support the assertion that it is Jane Doe's disorder, rather than a choice on her part, that leads her to resist participation in the litigation.
Without more evidence that it is disability rather than disinterest that has led to Jane Doe's absence from the suit, we cannot grant third-party standing. Courts "cannot simply assume that every disabled or chronically ill person is incapable of asserting his or her own claims." McGRX, Inc. v. Vermont, 2011 U.S. Dist. LEXIS 924, 29-30 (D. Vt. Jan. 5, 2011) (quoting Freilich v. Upper Chesapeake Health, 313 F.3d 205, 215 (4th Cir. 2002)). In the absence of evidence demonstrating that this is not the case, courts should adhere to the longstanding principle that "third parties themselves usually will be the best proponents of their own rights." Singleton v. Wulff, 428 U.S. 106, 114 (1976). This principle is particularly relevant when there is evidence to suggest, as in this case, that the third party is actively opposed to the actions being taken on her behalf. Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989) (When determining whether third-party standing is appropriate, courts should take into consideration not only whether a barrier exists to the third party's assertion of their rights but also "the impact of the litigation on third-party interests").
We recognize that mental illness may pose a substantial hindrance on a party's ability to bring suit, and hence justify the application of third-party standing. As the United States Court of Appeals for the Third Circuit noted recently, the stigma of mental illness can combine with the incapacity created by the illness itself to "operate[] as a powerful deterrent to bringing suit." Pennsylvania Society v. Green Spring Health Services, 280 F.3d 278, 290 (3d Cir. 2002). However, Mazzocchi has not alleged sufficient facts to demonstrate that this is, in fact, what has occurred in this case and that the reason Jane Doe has refused to take part in the litigation is her fear of the stigma, or the incapacity caused by her illness. Thompson v. Cnty. of Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (""[I]t is the burden of the party who seeks an exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.") (internal quotation marks and citation omitted).
We therefore dismiss the third-party claims. In the interest of justice, however, we grant Mazzocchi leave to amend the complaint, to better detail the factual grounds of his claim for third-party standing. See Fed. R. Civ. P. 15(a) ("[L]eave to amend shall be freely given when justice so requires."); Warth v. Seldin, 422 U.S. 490, 501 (1975) ("It is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint . . . further particularized allegations of fact deemed supportive of plaintiff's standing.").
ii. First-person standing
With respect to the claims he brings on his own behalf, there is little doubt that Mazzocchi satisfies the constitutional requirements for standing. As noted above, the injuries he identifies in the Complaint—including among these the emotional harm he suffered as a result of the campaign of discrimination against Jane Doe, and the imminent threat of the loss of his residence—constitute an "injury in fact." These injuries are "fairly traceable" to Defendants' actions and redressable by a favorable decision of this Court. Allen, 468 U.S. at 751.
With respect to the §§ 1981 and 1985 claims, however, Mazzocchi fails to satisfy the prudential requirement that his claim fall within the "zone of interests" that each statute protects. He falls outside the "zone of interests" protected by § 1981 because he makes no allegations of discrimination on the basis of race or ethnicity. Zemsky v. New York, 821 F.2d 148, 150 (2d Cir. 1987) ("A plaintiff states a viable cause of action under Section 1981 . . . only by alleging a deprivation of his rights on account of his race, ancestry, or ethnic characteristics."). Although § 1985, in contrast to § 1981, has been interpreted, in this Circuit, to apply to discrimination against the mentally ill or disabled, People by Abrams v. 11 Cornwell Co., 695 F.2d 34, 43 (2d Cir. 1982), Mazzocchi falls outside the "zone of interests" of this statute as well because he is not himself a member of the protected class. Gleason v. McBride, 869 F.2d 688, 694-95 (2d Cir. 1989) (holding that, in order to state a § 1985 claim, a plaintiff must "allege that he was a member of a protected class"). Accordingly, his §§ 1981 and 1985 claims must both be dismissed for lack of standing. As a consequence, his § 1986 claim must also be dismissed. Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000) ("[A] § 1986 claim must be predicated on a valid § 1985 claim.")
The same is not true, however, of Mazzocchi's FHA and ADA claims. Both statutes have been interpreted as evincing "a congressional intention to define standing to bring a private action . . . as broadly as is permitted by Article III of the Constitution." Innovative Health Sys. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (reaching this conclusion with respect to the ADA); Gladstone, Realtors v. Bellwood, 441 U.S. 91, 103 (1979) (reaching this conclusion with respect to the FHA). The prudential standing requirements are not therefore imposed on claims brought under these statutes. Because Mazzocchi has satisfied the Art. III standing requirements, his claim under both statutes can therefore proceed.
Mazzocchi also has standing under the NYSHRL and NYCHRL, both of which allow individuals who were not themselves the direct target of discrimination to bring claims for harms they nevertheless suffered as a result of the discrimination. Morton v. 303 W. 122nd St. H.D.F.C, No. 100677/09, 2011 N.Y. Misc. LEXIS 3478, at *11-12 (N.Y. Sup. Ct. July 7, 2011) ("[T]he NYSHRL, like the NYCHRL, permits "claims by persons who were not themselves members of the protected class but who were personally affected, albeit indirectly, by virtue of the alleged discrimination.") (quoting Axelrod v 400 Owners Corp., 733 N.Y.S.2d 587, 733 N.Y.S.2d 587, 591 (N.Y. Sup. Ct. 2001)).
b. The ADA Claim
Mazzocchi claims that Defendants violated the ADA when they engaged in a campaign of discrimination and harassment that was designed to drive Jane Doe out of Windsor Towers. Title III of the ADA governs discrimination in places of "public accommodation" and is the only section of the Act relevant to the allegations in the complaint. See 42 U.S.C. § 12182(a) (prohibiting discrimination "on the basis of disability . . . by any person who owns, leases (or leases to), or operates a place of public accommodation"). We thus construe Plaintiff's claim as arising under this provision. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (courts should read the "pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest").
To state a claim under Title III of the ADA, a plaintiff must establish "(1) that he or she is disabled within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of public accommodation; and (3) that the defendants discriminated against the plaintiff within the ADA." Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008). Mazzocchi cannot satisfy the first element of the claim. He does not allege that he is disabled within the meaning of the ADA. Instead, he alleges only that Jane Doe is. Compl. ¶ 99.
With respect to most of the Defendants named in the complaint, Mazzocchi also fails to satisfy the second element of the claim. The term "public accommodation" as used in the ADA includes most "inn[s], hotel[s], motel[s], or other place[s] of lodging," 42 U.S.C. § 12181, but it does not include residential facilities or apartment buildings such as Windsor Towers. Kitchen v. Phipps Houses Group of Cos., No. 08 Civ. 4296 (DC), 2009 U.S. Dist. LEXIS 12559, at *7 n.3 (S.D.N.Y. Feb. 3, 2009) (citing Reid v. Zackenbaum, No. 05 Civ. 1569, 2005 U.S. Dist. LEXIS 17177 (E.D.N.Y. Aug. 17, 2005)). The claims against these Defendants must be dismissed.
Although Defendants Michael George, Flower School, and Beceriklisoy, all of whom operate or own "service establishment[s]," may be considered places of "public accommodation" under Title III of the ADA, see 42 U.S.C. § 12181(7)(F), because Mazzocchi is not the proper party to bring claims under the ADA, the claims against these Defendants must also be dismissed.
c. The FHA Claim
Mazzocchi also alleges that Defendants violated the FHA when they conspired to drive Jane Doe out of the building because of her mental illness. Although the complaint does not specify, the allegations in the complaint suggest that Mazzocchi brings this claim pursuant to 42 U.S.C. § 3604(f)(2), and we will so construe it. McPherson, 174 F.3d at 280.
Section 3604(f)(2) makes it unlawful to "discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of (A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person." 42 U.S.C. § 3604(f)(2). The section further specifies that discrimination includes "a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3).
Claims of intentional discrimination under the FHA are analyzed under the burden-shifting framework originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Frazier v. Rominger, 27 F.3d 828, 831 (2nd Cir., 1994). To state a claim for intentional discrimination under§ 3604(f)(2), a plaintiff must establish that: (1) he is a member of the protected class; (2) that defendants took adverse action against him; and (3) that the adverse action took place under circumstances giving rise to an inference of discrimination. Petrillo v. Schultz Props., Inc., No. 11-CV-6483T, 2011 U.S. Dist. LEXIS 118268, at *4-5 (W.D.N.Y. Oct. 13, 2011).
We do not have to reach the question of whether Defendants' actions against Mazzocchi—namely, their commencement of ejectment proceedings—constitutes "adverse action" under the ADA, or whether they took place under circumstances giving rise to an inference of discrimination, because we find that Mazzocchi has not pled sufficient facts to satisfy the first element of the claim—that he is a member of the protected class.
As defined by the statute, the class protected by the FHA consists of (1) individuals with handicaps; (2) individuals associated with those with handicaps; and (3) individuals who rent or own a dwelling in which a person with a handicap resides or plans to reside. 42 U.S.C. § 3604(f)(2). Because Mazzocchi is associated with Jane Doe, and because Jane Doe lives in the dwelling in question, Mazzocchi would satisfy the first element of the claim if he could show that Jane Doe has a handicap, as the term is defined in the FHA. Section 3602(h) defines "handicap" under the FHA to include: (1) "a physical or mental impairment which substantially limits one or more of [a] person's major life activities;" or (2) "a record of having such an impairment;" or (3) "being regarded as having such an impairment." 42 U.S.C. § 3602(h).
The allegations in the complaint establish that Jane Doe has a "mental impairment," as defined in the implementing regulations to include "mental or psychological disorder[s]." 24 C.F.R. § 100.201. The complaint does not allege sufficient facts, however, to establish that Jane Doe's mental illness substantially limits one of more of her major life activities, as 42 U.S.C. § 3602(h)(1) requires. The term "major life activities" as used in the FHA refers to "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 24 CFR 100.201. The complaint alleges that, as a result of her disorder, Jane Doe suffers from paranoia and persecutory delusions and exhibits odd behavior, causing her to rarely venture outside the apartment. Compl. ¶¶ 53; 61. But it does not allege any facts that suggest that Jane Doe's ability to walk, talk, see, hear, speak, breathe, learn or work, or more generally, to care for herself, has been substantially impacted by her mental illness. Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 147 (2d Cir. 2002) (in order to satisfy the first prong of the definition, plaintiffs must "identify the activity claiming to be impaired and establish that it constitutes a 'major life activity'" and must show that the "impairment [substantially limits' the major life activity previously identified").
Mazzocchi does allege that Jane Doe does not work, but he does not allege that Jane Doe cannot work, because of her mental illness. Compl. ¶ 26. In fact, it appears that Jane Doe did not work even when she did not appear to be suffering from a mental disorder. Id. (noting that Jane Doe has never worked during the time Mazzocchi has known her). The fact that Jane Doe does not work does not imply that she cannot work, or that her ability to do so has been substantially impacted by her bipolar disorder. To the contrary: the complaint indicates that the only treatment that Jane Doe receives for her mental illness is out-patient therapy, and periodic visits from the Bellvue Hospital Out Patient Team. Compl. ¶¶ 59, 68. This does not suggest an impairment so severe as to prevent Jane Doe from being able to perform manual tasks or care for herself. The complaint therefore does not establish that Jane Doe suffers from a handicap under the first prong of the § 3602(h) definition. Mazzocchi also alleges no facts to support a finding of handicap under the second or third prongs of the definition. The claim must therefore be dismissed. In the interest of justice, however, we grant Mazzocchi leave to amend the complaint, to provide greater factual detail concerning the nature and severity of Jane Doe's mental impairment.
d. The State Claims
Having dismissed all of Mazzocchi's federal claims, we decline to exercise supplemental jurisdiction over his remaining state-law claims. These claims are therefore dismissed, without prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
e. Sealing and Gag Orders
To protect Jane Doe's privacy, Mazzocchi has asked the Court to seal the case, and to impose a gag order on all parties to the litigation, their agents, servants and employees, as well as court personnel, witnesses and news media. We decline to do so at this time. Rule 26 of the Federal Rules of Civil Procedure provides that "[a] court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense." Fed. R. Civ. P. 26(c)(1). The rule "confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). Ultimately, it is the burden of the party seeking the order to "show[] that good cause exists for issuance of [the] order." Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004). We do not find that Mazzocchi has met this burden.
Although Mazzocchi indicates that the request for both a sealing and a gag order is motivated by his desire to protect both the privacy and the dignity of Jane Doe, he does not demonstrate that these interests would not be adequately protected by allowing Jane Doe to be referred to pseudonymously, as this Court has agreed to do. He therefore does not provide good cause to justify the overruling of the general presumption, favoring public access to judicial records. Nixon v. Warner Communications, 435 U.S. 589, 602 (1978).
We conclude, accordingly, that Mazzocchi has not demonstrated the requisite "good cause" to justify more protection of Jane Doe's privacy and dignity than we have already provided. Accordingly, we deny both motions, without prejudice to renewal at a later date if necessary.
f. Attorneys' Fees
The final issue to be addressed is Defendants' request for attorneys' fees. Plaintiffs argue that, under the terms of the proprietary lease, Defendants should be awarded legal fees as the prevailing party under paragraph 28 of the proprietary lease, which provides:
"If the Lessee [Plaintiff] shall at any time be in default hereunder and the Lessor [the Coop] shall incur any expense (whether paid or not) in performing acts which the Lessee is required to perform, or in instituting any action or proceeding based on such default, or defending, or asserting a counterclaim in, any action or proceeding brought by the Lessee, the expense thereof to the Lessor, including reasonable attorneys' fees and disbursements, shall be paid by the Lessee to the Lessor, on demand, as additional rent." Sharrow Decl. Ex. 2 (Proprietary Lease ¶ 28).
Federal courts will enforce contractual attorneys' fees wherever they are valid under the applicable state law. Alland v. Consumers Credit Corp., 476 F.2d 951, 956 (2d Cir. 1973). We therefore must determine what state law to apply to the contract. The parties have not provided any evidence that the proprietary lease included a choice of law provision. In the absence of such a provision, we apply the federal common law rule, which dictates that we apply the law of the jurisdiction that has the greatest interest in the litigation. Wells Fargo Asia, Ltd. v. Citibank, N.A., 936 F.2d 723, 726-727 (2d Cir. 1991). In this case, that jurisdiction is clearly New York, the state in which Mazzocchi entered into the proprietary lease, and where Windsor Towers is located.
New York law generally disfavors awards of attorneys' fees. See Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 199-200 (2d Cir. 2003) ("Promises by one party to indemnify the other for attorneys' fees run against the grain of the accepted policy that parties are responsible for their own attorneys' fees."). However, parties to a private agreement may explicitly provide for an award of attorneys' fees as a form of damages. Flagstar Bank, FSB v. Caribbean Mortg. Corp., 2007 U.S. Dist. LEXIS 75, 11-12 (E.D.N.Y. Jan. 3, 2007) Such agreements, however, "must be strictly construed to avoid inferring duties that the parties did not intend to create." Oscar Gruss, 337 F.3d at 199.
Construing the language of the contract strictly, as we are required to do, we find that Defendant Windsor can recover attorneys' fees if it can show that (1) Mazzocchi was in default; and (2) that it incurred expenses either instituting an action or proceeding based on that default, or defending an action or proceeding instituted that Mazzocchi instituted, or asserting a counterclaim to an action or proceeding brought by Mazzocchi. Windsor can therefore only recover attorneys' fees, under the terms of the proprietary lease, if it can show that Mazzocchi was in default of the proprietary lease.
Defendants have provided the Court, however, no evidence of any kind demonstrating how, and when, Mazzocchi was in default of the proprietary lease. Although Windsor deemed Mazzocchi to be in default as of February, 2011, Mazzocchi himself denies the proprietary of its conclusion under the terms of the proprietary lease. See Compl. ¶ 121. Neither side has provided us sufficient factual allegation to be able to determine the question. Instead, that issue appears to be what is currently being litigated in the state court ejectment proceedings. See Sharrow Decl. Exs. 3, 4. We therefore deny Defendant's request for an award of attorneys' fees without prejudice to renewal at a later date.
III. Conclusion
For the foregoing reasons, Defendants' motion to dismiss the complaint in its entirety is granted. Defendant Windsor's application for attorneys' fees is denied, without prejudice to renewal at a later date. Leave is granted to amend the complaint where indicated above. SO ORDERED. Dated: August 6, 2012
The Court has considered all of the parties' other arguments and found them to be moot or without merit. --------
New York, NY
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U.S.D.J.