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Andujar v. Hewitt

United States District Court, S.D. New York
Aug 2, 2002
02 Civ. 2223 (SAS) (S.D.N.Y. Aug. 2, 2002)


02 Civ. 2223 (SAS)

August 2, 2002

Scott A. Bursor, Esq., New York, New York, for Plaintiffs.

Christopher B. Hitchcock, Esq., Joyce Campbell Priviterre, Esq., Ohrenstein Brown, L.L.P., New York, New York, for Defendants Mary Spink, Thomas Flocco, and the Lower East Side People's Mutual Housing Association, Inc.

Richard C. Agins, Esq., Agins, Siegel Reiner, L.L.P., New York, New York, for Defendants Herman Hewitt, United Mutual Houses, L.P., and UMH Corp.


On March 20, 2002, Teresita Andujar, her son Ryan, and her goddaughter Marybeth Cordero brought this housing discrimination action under the Fair Housing Act, 42 U.S.C. § 3604, and section 1983, 42 U.S.C. § 1983, as well as state and local antidiscrimination laws, against United Mutual Houses, L.P. ("United Mutual"), The Lower East Side People's Mutual Housing Association, Inc. ("the Housing Association"), UMH Corp., and officers Herman Hewitt, Mary Spink, and Thomas Flocco (collectively "defendants"). Plaintiffs' suit also includes state law claims for wrongful eviction, intentional infliction of emotional distress, and defamation.

Plaintiffs also cite 42 U.S.C. § 3613(c) and 1988, which govern enforcement proceedings of sections 3604 and 1983, respectively.

Defendants now move for dismissal on the following grounds: (1) the Rooker-Feldman doctrine deprives this Court of jurisdiction over the case; (2) this Court should abstain pursuant to the Younger abstention doctrine in deference to an ongoing summary holdover proceeding filed by United Mutual against Teresita Andujar in state court; (3) plaintiffs lack standing to assert claims under 42 U.S.C. § 3604; (4) defendants are not state actors and therefore cannot be held liable under 42 U.S.C. § 1983; (5) Spink, Flocco, and Hewitt cannot be held personally liable because they acted as disclosed agents for the Housing Association; (6) Cordero fails to state a claim of wrongful eviction. For the reasons set forth below, defendants' motion is denied in part and granted in part.

Defendants Herman Hewitt, United Mutual, and UMH Corp. join in the motion as it pertains to the claims against them.


A. Rule 12(b)(1)

"The court properly dismisses a case for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Tasini v. New York Times Co., 184 F. Supp.2d 350, 353 (S.D.N.Y. 2002) (quotations, alterations omitted) Plaintiffs bear the burden of proving, by a preponderance of the evidence, that this Court has subject matter jurisdiction over their case. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

"It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 68 (1987). When faced with a Rule 12(b)(1) motion that contains a factual challenge, a court must draw jurisdictional facts from the complaint, affidavits and exhibits submitted by the parties. See Robinson v. Government of Malaysia, 269 F.3d 133, 140 (2d Cir. 2001); In Re Ski Train Fire in Kaprun, Austria on November 11, 2000, 198 F. Supp.2d 420, 422 (S.D.N.Y. 2002).

If a defendant challenges only the legal sufficiency of a plaintiff's jurisdictional allegations, a court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff. See Robinson, 269 F.3d at 140; Tasini, 184 F. Supp.2d at 353 (referring to such a challenge as "facial" as distinguished from a "factual attack"); Virtual Countries, Inc. v. Republic of South Africa, 148 F. Supp.2d 256, 262 (S.D.N.Y. 2001). of course, "where "evidence relevant to the jurisdictional question is before the court, the district court may refer to that evidence." Robinson, 269 F.3d at 140 (quotation marks, citation and alterations omitted).

B. Rule 12(b)(6)

Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 222 (2d Cir. 2001) (quoting Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999)). "At the Rule 12(b)(6) stage, the issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (internal quotation marks omitted)).

Under the Federal Rules of Civil Procedure, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Such a statement must simply `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 122 S.Ct. 992, 998 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. at 998.

Consideration of the sufficiency of a plaintiff's claim in a 12(b)(6) motion is limited "to the allegations of the complaint and any documents attached to or incorporated by reference in the complaint." Ullah v. NYDOCS, No. 00 Civ. 9506, 2002 WL 1424590, at *2 (S.D.N.Y. June 28, 2002) (quoting Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999)). A court must view "[a]ll reasonable inferences that can be drawn from such allegations and documents in the light most favorable to the plaintiff." Dangler, 193 F.3d at 138. Thus, a court "must accept as true all of the factual allegations contained in the complaint." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993).


A. Cordero's Residence with Andujar

The following facts are taken from the Amended Complaint. United Mutual is the owner and landlord of a low-income apartment building in Manhattan managed by the Housing Association. See 6/18/02 Amended Complaint ("Am. Compl.") ¶¶ 9-10. Teresita Andujar has lived in the building since December 1, 2000, in a two-bedroom apartment with her three-year-old son Ryan. Id. ¶¶ 7, 15-16. In April 2001, after being contacted by the New York City Administration for Children's Services ("ACS"), Andujar took in her goddaughter, Marybeth Cordero. Id. ¶¶ 17-18. Cordero, then seventeen, was in need of a home following the death of her mother and grandmother. Id. Cordero had been staying in her brother's home but serious problems had developed. Id. ¶ 17. Before ACS placed Cordero with Andujar on April 25, two social workers visited the home to inspect it and interview Andujar and Ryan. Id. ¶¶ 19-20. Satisfied with the arrangements, ACS turned over supervision of Cordero's case to the Catholic Home Bureau, a social service organization. Id. ¶¶ 20-21. The next day, Andujar enrolled in the Catholic Home Bureau's Kinship Foster Parents Program, the first step to becoming certified as a foster parent. Id. ¶ 21. In May, Andujar attended ten hours of foster parent training. Id. ¶ 22.

Andujar did not notify defendants of the additional person residing with her. See Am. Compl. ¶ 27. At some point, however, they became aware of Cordero's presence in Andujar's apartment. Id. ¶ 23. In late May or early June 2001, Andujar received a letter from defendant Thomas Flocco, a Housing Association employee and the property manager, stating: "It has come to our attention that you have another person occupying your apartment, and also that the person has a key to the building . . . You must contact the office immediately about the above issues." Id. ¶¶ 14, 23. When Andujar contacted Flocco, he told her that no one not listed on the lease was permitted to live in the apartment. Id. ¶ 23. Flocco directed her to contact defendant Mary Spink, executive director of the Housing Association. Id. ¶¶ 13, 23.

Andujar contacted Spink and explained who Cordero was and why she was living in the apartment. See Am. Compl. ¶ 24. At Andujar's request, Catherine Guggenheimer, a social worker with the Catholic Home Bureau, sent a letter to Spink confirming Andujar's account: "We have placed Ms. Marybeth Cordero in this home as a foster placement because Ms. Andujar has known Ms. Cordero since she was born. Ms. Cordero has been through many difficult and painful experiences in her young life and needs the stability and caring that Ms. Andujar provides. It would be very detrimental to all involved if Ms. Cordero would need to be moved from this placement." Id. ¶ 25. Guggenheimer also called Spink regarding the matter. Id. ¶ 26. Spink insisted that Cordero be removed from the home, and stated that she wanted Andujar out as well. Id.

On June 18, 2001, Andujar wrote to defendant Herman Hewitt, president of the board of directors of the Housing Association and an officer of defendant UMH Corp. (the general partner of United Mutual). See Am. Compl. ¶¶ 11-12, 27. In the letter, Andujar explained her situation and apologized for not informing management of Cordero's presence: "During this ordeal, I over look [sic] the policy stating (anyone staying 2 weeks must be report to management) [sic]. Therefore I would like to apologize for this error. I only had good intention [sic] for Marybeth. I hope you accept my apology." Id. ¶ 27.

Andujar and Guggenheimer also had a meeting with Spink, who stated that "rules and regulations" prohibited a family with two children of opposite sexes from occupying a two-bedroom apartment because they were not permitted to share a bedroom. See Am. Compl. ¶ 28. Spink said Andujar would be; evicted because she had taken Cordero into her home in violation of these rules and without notifying the landlord. Id. Spink gave Andujar sixty days to move out or face eviction. Id. She further stated that she had "never lost a case" and that if the matter went to court, it would "create a bad record" for Andujar and cause her problems in finding a new apartment. Id. Andujar began to cry, saying that she could not move out within sixty days. Id. ¶ 29. At that point, in an attempt to resolve the situation, Guggenheimer offered to remove Cordero from the home. Id. Spink requested a firm date, and Guggenheimer responded that she would remove Cordero within the week. Id.

After the meeting, Guggenheimer attempted to console Andujar by promising to try to place Cordero in a home nearby so that the two could visit often, but Andujar was "inconsolable." See Am. Compl. ¶ 30. When Cordero learned of her impending removal from Andujar's home, "she too was crying and inconsolable." Id. ¶ 31. Ryan was also "greatly distressed." Id. Cordero was removed from Andujar's home on June 21, 2001 and placed in a foster home in Brooklyn. Id. ¶ 32. The move required her to change schools. Id.

B. Procedural History

On November 6, 2001, more than four months after Cordero's departure, Andujar received a Notice of Termination from Hewitt. See Am. Compl. ¶ 33. The Notice alleged that Andujar had violated various provisions of her Lease Agreement ("the Lease") and appended Rules and Regulations governing occupancy and notification ("the Rules"). See Notice of Termination, Ex. C to Defendants' Notice of Motion ("Def. Mot."), ("the Notice"), at 1. The specified provisions read as follows:

. . . Occupancy in the Apartment is limited to Income Qualified Tenants and those members of your household listed below [Andujar and Ryan], up to the limitations set by the landlord for the number of occupants for each size unit.

Lease, Ex. B to Def. Mot., ¶ 1.

The occupancy of all units will be limited to those who are identified on the lease or have otherwise received written permission from the Association to occupy a Mutual Housing unit. Any violation of this policy may be grounds for eviction.

This section of the Rules goes on to set forth "Initial Occupancy Limits," providing that two bedroom units are limited to a "Maximum of 4 persons." See Rules ¶ I.A.2.

Rules ¶ I.

All residents are considered legal residents, not subject to eviction unless . . . [their] behavior or actions evidence . . . willful misrepresentation or concealment by a resident of any material fact which would affect admission eligibility requirements imposed by the Supervisory agencies.

Rules ¶ II.C.3.

The Notice further stated:

. . . In addition, pursuant to the governmental rules and regulations governing the subject building and occupancy, you cannot have a female foster child residing in the subject two bedroom apartment in addition to yourself and your son. . . . Said rules prohibit children of different sexes from sharing a bedroom and thus said foster child cannot stay in the same bedroom as your son. In addition, a child is prohibited from sharing the same bedroom as an adult, and thus this foster child cannot stay in your bedroom.
. . . [H]ad you revealed to the landlord prior to signing your lease that you were planning to have foster children occupy the apartment, the landlord would have been prohibited from leasing the premises to you since it would constituted [sic] a violation of your lease agreement and the rules and regulations under which the building is administered regarding the number, familial relationship and gender of the apartment's occupants.
Further, your actions could jeopardize the landlord's eligibility under the applicable tax credit programs and subject it to penalties.

Notice at 2-3.

On December 3, 2001, United Mutual began a summary holdover proceeding against Andujar in the Civil Court of New York County, Housing Part. See 12/3/01 Petition Holdover, Ex. D to Def. Mot, ("the Petition"). The Petition enumerated all of the allegations contained in the Notice. Andujar subsequently filed motions to dismiss and for summary judgment, which the Housing Court denied. See 3/20/02 Andujar's Motion to Dismiss; 4/12/02 Andujar's Motion for Summary Judgment, attached to Removal Notice; United Mutual's Memorandum of Law in Support of Its Motion to Remand at 3; Andujar's Memorandum of Law in Opposition to United Mutual's Motion to Remand at 8.

In Housing Court, the Petition is the equivalent of the Complaint.

On March 20, 2002, Andujar, joined by Ryan and Cordero, filed this federal action against United Mutual and the additional named defendants. See 3/20/02 Compl. The suit alleges that defendants' actions constituted unlawful discrimination on the basis of familial status under the Fair Housing Act, 42 U.S.C. § 3604, New York's Real Property Law ("RPL") sections 235-f and 236, and the Administrative Code of the City of New York section 8-107, as well as a violation of plaintiffs' constitutional rights pursuant to 42 U.S.C. § 1983, and intentional infliction of emotional distress. See Am. Compl. ¶¶ 36-65. Further, Cordero asserted a claim for wrongful eviction under section 853 of New York's Real Property Actions and Proceedings Law ("RPAPL") and the common law; Andujar added a claim against Spink for defamation. Id. ¶¶ 66-76.

On May 7, 2002, Andujar removed the summary holdover proceeding to this Court, arguing that it raised questions of federal law. See 5/7/02 Notice of Removal. This Court remanded the case to Housing Court on July 8, 2002, on the ground that federal defenses such as those asserted by Andujar do not give rise to removal jurisdiction, and that this Court has no authority to entertain eviction proceedings. See United Mutual Houses, L.P., v. Andujar, No. 02 Civ. 3503, 2002 WL 1467807, at *4-*5 (S.D.N.Y. July 8, 2002). While the two suits are pending, Cordero has returned to live with Andujar and her son.


A. The Rooker-Feldman Doctrine Is Inapplicable

Defendants first argue that the Rooker-Feldman doctrine deprives this Court of jurisdiction over plaintiffs' claims. "The Rooker-Feldman doctrine holds that inferior federal courts lack subject matter jurisdiction `over cases that effectively seek review of judgments of state courts and that federal review, if any, can occur only by way of a certiorari petition to the Supreme Court.'" Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002) (citing Moccio v. New York State Office of Court Admin., 95 F.3d 195, 197 (2d Cir. 1996)). The doctrine derives from two Supreme Court cases: In Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923), the Court established that the jurisdiction of district courts is strictly original, and that these courts may not entertain claims to reverse or modify state court judgments. Id. In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 (1983), the Court expanded upon this principle, holding that inasmuch as a plaintiff's claims are "inextricably intertwined" with a state court judgment, district courts lack jurisdiction over those claims. Id.

Courts have faced knotty questions in applying the "inextricably intertwined" test. See Phifer, 289 F.3d at 55-56. "`Inextricably intertwined means,' at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding . . . subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Id. (quoting Moccio, 93 F.3d at 199-200) (internal citation omitted). One point, however, is clear: The existence of a judgment by the state court is a sine qua non to the doctrine's application. See Doctor's Assocs., Inc. v. Distajo, 107 F.3d 126, 137-38 (2d Cir. 1997) (holding that both final and interlocutory judgments implicate Rooker-Feldman). Because the Housing Court has not issued any judgment in the summary holdover proceeding, the Rooker-Feldman doctrine does not bar plaintiffs' claims.

Perhaps anticipating this problem, defendants argue that Andujar's discrimination claims cannot be litigated here because they have been "the subject of two unsuccessful motions." See Defendants' Memorandum of Law in Support of Their Motion to Dismiss ("Def. Mem.") at 9. Andujar contends that the Housing Court denied her motions on technical grounds — for lack of a supporting affidavit to accompany the first motion and her failure to notarize the declarations accompanying the second. Whatever the grounds may have been, Andujar's failure to dismiss the holdover suit or to obtain summary judgment inflicted no mortal wound on her claims of discrimination; she may continue to assert her defenses in that proceeding. There has still been no state court judgment which this Court, by exercising jurisdiction, would purportedly review.

B. Younger Abstention Is Not Warranted

Defendants also invoke the Younger abstention doctrine to argue that this Court should abstain from exercising jurisdiction in deference to the ongoing state court proceeding. There are three requirements for a federal court to abstain under Younger. First, there must be an ongoing state proceeding. Second, that proceeding must implicate an important state interest. Third, the plaintiff must have an open avenue for review of constitutional claims in the state court. See Grieve v. Tamerin, 269 F.3d 149 (2d Cir. 2001). The first requirement is clearly met here, but defendants' argument for abstention founders on the second.

In this Circuit, the importance of the state's interest in the ongoing proceeding turns on whether "the state action concerns the central sovereign functions of state government." Grieve, 269 F.3d at 152 (citing Philip Morris, Inc. v. Blumenthal, 123 F.3d 103, 106 (2d. Cir. 1997)). Rather than scrutinizing the state's "interest in the outcome of the particular case," a federal court should instead look to "the importance of the generic proceedings to the State." Schemer v. New York Health and Hospitals Corp., No. 98 Civ. 8330, 1999 WL 771383, at *5 (S.D.N.Y. Sept. 28, 1999) (citing New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 365 (1989)). "Here, the state proceeding, when distilled to its generic content, is nothing more than a routine labor dispute over the terms of an ordinary collective bargaining agreement. The proceeding therefore does not concern the central sovereign functions of state government and thus does not implicate the federalism considerations that animate Younger abstention." Id. (internal quotation marks and citation omitted). Cf. Doe v. State of Connecticut, 75 F.3d 81, 85 (2d Cir. 1996) ("Connecticut's legislative scheme for disciplining doctors serves important and obvious public health objectives.").

In this case, the state proceeding consists — in generic terms — of a landlord-tenant dispute, a type of litigation distinguished only by its ubiquity. The summary holdover proceeding cannot be said to "concern the central sovereign functions of state government." See The Brooklyn Institute of Arts and Sciences v. The City of New York, 64 F. Supp.2d 184, 194 (E.D.N.Y. 1999). "An ejectment action is neither a `civil enforcement proceeding' nor one `uniquely in furtherance of the state courts' ability to perform their judicial functions.' It is a landlord-tenant action that is routinely available in disputes between private parties." Id. In Brooklyn Institute, the district court declined to abstain in a First Amendment challenge brought by the Brooklyn Museum against the City of New York, where the City had subsequently filed state court eviction proceedings against the Museum over a funding dispute. "[T]here is nothing inherently significant in a government landlord's claim of a lease violation by a tenant, even one which is publicly chartered and publicly subsidized. To be sure, this is no ordinary landlord-tenant dispute. But the importance of this litigation arises from the significance of the First Amendment issues involved; and it is precisely for that reason that the federal interests are supreme and that the federal courts should not be ousted of jurisdiction." Id. See also McNeill v. New York City Housing Authority, 719 F. Supp. 233, 255 (S.D.N.Y. 1989) ("The housing court proceedings against plaintiffs are purely civil matters involving private litigants. Thus, in this case the State has only limited interest in the pending "state proceedings — the interest in protecting their `fair adjudication.'").

Though I need not address whether the third requirement for Younger abstention is satisfied here, I note that while the Housing Court must give full hearing to Andujar's defenses based in federal law, it lacks jurisdiction to afford her the affirmative relief she seeks here. See, e.g., North Waterside Redevelopment Co., L.P. v. Febbraro, 682 N.Y.S.2d 202, 203 (1st Dept. 1998) (noting the limited jurisdiction of the Civil Court).

Abstention must be the exception, not the rule. "[F]ederal courts have a strict duty to exercise jurisdiction conferred on them by Congress. . . . Abdication of the obligation to decide cases can be justified . . . only in exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest." Scheiner, 1999 WL 771383, at *4 (citing Philip Morris, 123 F.3d at 105). In deference to these principles, Younger abstention is not warranted here.

C. Plaintiffs Have Standing Under the Fair Housing Act

Defendants next argue that both Andujar and Cordero lack standing to assert claims under the Fair Housing Act. First, they contend that because Andujar's status as a foster parent was never finalized, there is no familial relationship between her and Cordero, or between Ryan and Cordero.

The Fair Housing Act, also known as Title VIII of the Civil Rights Act of 1968, was amended in 1988 to add "familial status" to the list of prohibited bases for housing discrimination. See 42 U.S.C. § 3604(b). The statute defines the term as follows:

[O]ne or more individuals (who have not attained the age of 18 years) being domiciled with — (1) a parent or another person having legal custody of such individual or individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person.
The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or in the process of securing legal custody of any individual who has not attained the age of 18 years.
42 U.S.C. § 3604(b).

The status of foster parents presents a novel issue under the Fair Housing Act, one which most courts, including the Second Circuit, have yet to address. The Seventh Circuit, however, has ruled on the question, and unhesitatingly extended the umbrella of statutory protection to this class. "The plain language of the Act convinces us that foster parents licensed in Illinois are protected by the FHA from discrimination on the basis of familial status. The definition of familial status specifically includes the `designee' of parents or other persons having custody of children." Gorski v. Troy, 929 F.2d 1183, 1187 (7th Cir. 1991).

This discussion applies equally to the state and local housing discrimination claims, which arise under analogous statutes.

In Gorski, a couple had requested permission from their landlord to take in foster children and were refused. The authorities had not yet placed a child in their care nor designated a child for placement with them. For this reason, the court held that the plaintiffs were not members of the protected class. Nevertheless, the Seventh Circuit held that the plaintiffs had standing to sue as "aggrieved persons" under section 3613 of the Act. "`Aggrieved Person' includes any person who — (1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur." 42 U.S.C. § 3602(i). As courts have noted, in amending the definition of "aggrieved person," Congress intended to broaden the standing rules for FHA claims to the constitutional limits. See Gorski, 929 F.2d at 1188; Le-Blanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995) ("An injury need not be economic or tangible in order to confer standing); Comer v. Cisneros, 37 F.3d 775, 788-89 (2d Cir. 1994) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982)) ("Thus the sole requirement for standing under [the FHA] is the Art. III minima of injury in fact: that the plaintiff allege that as a result of the defendant's actions he [or she] has suffered a `distinct and palpable injury.'").

The Supreme Court has made clear that because the Fair Housing Act gives standing to "aggrieved persons," membership in a protected class is not required as a prerequisite to sue. See Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 (1979) (quoted in Gorski, 929 F.2d at 1188) (holding that nonminority residents had standing to sue real estate brokers on the ground that discriminatory sales practices denied them the benefits of a racially integrated community). "[A]s long as the plaintiff suffers actual injury as a result of the defendant's conduct, he is permitted to prove that the rights of another were infringed." Id. at 103 n. 9.

Here, the relationship between Andujar and Cordero places them more squarely under the protection of the "familial status" category than the plaintiffs in Gorski. Cordero is Andujar's goddaughter. Moreover, ACS gave Andujar physical custody of the teen, and Andujar immediately began foster parent training. According to affidavits submitted by Andujar from Catholic Home Bureau officials, the sole factor keeping the organization from licensing Andujar is the threat of eviction by her landlord. See Declarations of Claire Quinn Halligan and Angela Tiffin, attached to Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss. Thus, she was "in the process of securing legal custody" over Cordero, and allegedly would have succeeded but for defendants' actions. Alternatively, Andujar easily qualifies as an "aggrieved person" under section 3613(a).

Defendants make much of the fact that unlike the Gorskis, who had completed a foster parent program, Andujar attended only ten hours of training. While it is unclear whether Andujar completed the program, her training spanned one month — the same duration as the Gorskis' training period.

Defendants note that the Gorskis had already been evicted, while here the holdover proceeding against plaintiffs is ongoing. Eviction, however, is not a prerequisite for housing discrimination. The Amended Complaint alleges that defendants' unlawful conduct, namely, their threatened eviction of Andujar, caused Cordero's removal from Andujar's home.

These same principles apply to Cordero's and Ryan's Fair Housing Act claims. While defendants correctly maintain that Cordero, now eighteen, is no longer eligible for injunctive relief, she may assert a claim for damages for the period of discrimination alleged to have occurred prior to her eighteenth birthday. On the other hand, Ryan's standing to assert claims both for damages and injunctive relief is not limited in time.

D. The Amended Complaint Fails to Establish that Defendants Are State Actors

With the exception of the Thirteenth Amendment, Our federal Constitution regulates only the government, not private parties. See Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (citing Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-39 (1968). As a result, plaintiffs claiming that their constitutional rights have been violated must first establish that the challenged conduct constitutes "state action." See Ciambriello, 292 F.3d at 323. Accordingly, defendants argue that the Amended Complaint fails to demonstrate state action with regard to plaintiffs' constitutional claims under section 1983. See 42 U.S.C. § 1983 (establishing liability for deprivation of constitutional rights by anyone acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.").

"The traditional definition of acting under color of state law requires that the defendant in a section 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Kia P. v. McIntyre, 235 F.3d 749, 755 (2d Cir. 2000) (quoting West v. Atkins, 487 U.S. 42, 49 (1988)), cert. denied, 122 S.Ct. 51 (2001). Private conduct may become "so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Id. at 757 (quoting Perez v. Sugarman, 499 F.2d 761, 764 (2d Cir. 1974)) (internal quotation marks and citation omitted). This occurs when the private parties "are performing a function public or governmental in nature and which would have to be performed by the Government but for the activities of the private parties." Id.

Neither government funding nor regulation, however extensive, is sufficient to confer section 1983 liability on private actors. See Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996) (holding that student editors of City University of New York newspaper were not state actors). An aggregation of these factors also does not create state actor status. See id.; see also Hack v. The President and Fellows of Yale College, 237 F.3d 81, 84 (2d Cir. 2000), cert. denied, 122 S.Ct. 201 (2001), (holding that Yale College was not a state actor) Timmons v. Alexion, No. 99 Civ. 6335, 2000 WL 194684, at *1 (E.D.N.Y. Feb. 15, 2000) (holding that despite contractual relationship with the City of New York, the Legal Aid Society was not a state actor); Robinson v. Lindsay Park Housing Corp., No. 00 Civ. 6305, 2001 WL 483493, at *9 (E.D.N.Y. May 8, 2001) (holding that publicly assisted housing cooperative was not a state actor). "[I]nstead, the state must have exerted its coercive power over, or provided significant encouragement to, the defendant" in regard to the unlawful conduct alleged. Leeds, 85 F.3d at 54.

Plaintiffs allege that the Housing Association "and/or" United Mutual have various ties to the state, including regulation, funding, and the provision of social services. None, however, is sufficient to support their claims under section 1983. Though they devote several paragraphs of the Complaint to establishing their state action theory, plaintiffs simply do not allege that defendants' actions took place under the direction or control of a state entity or involved performance of a function traditionally within the province of the state. Thus, plaintiffs fail to state a claim for constitutional violations pursuant to sections 1983 and 1988 of Title 42 of the United States Code.

E. Defendants Hewitt and Spink, But Not Flocco, Can Be Held Personally Liable

Hewitt, Spink, and Flocco assert that as disclosed agents of the Housing Association, they cannot be held personally liable to plaintiffs. In support of this contention, defendants cite a host of New York cases setting forth the state law governing principals and agents. New York's agency law, however, is inapplicable to the federal claims alleged here.

The Fair Housing Act does not specify who may be held liable but simply establishes that "it shall be unlawful . . . to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling . . . because of . . . familial status. . . ." 42 U.S.C. § 3604(b).
New York's housing discrimination statute addresses "Any person, firm or corporation owning or having in charge any apartment house. . . ." RPAPL § 236(a); the state statute prohibiting unlawful restrictions on occupancy refers to unlawful restrictions by a "landlord." RPAPL § 235.
New York City's Administrative Code is the most explicit, making it illegal for any "owner, lessor . . . or any agent or employee thereof. . . ." to engage in discriminatory housing practices. N.Y.C. Admin. Code § 8-107 (emphasis added).
The discussion of the personal liability of defendants under federal law applies as well to the state and local law claims against them.

Aggrieved persons have long been permitted to assert Fair Housing Act claims against individual defendants who engaged in affirmative acts of discrimination or enforced a corporation's discriminatory rules or policies. See Holley v. Crank, 258 F.3d 1127 (9th Cir. 2001), cert. granted, 122 S.Ct. 1959 (2002); Hamilton v. Svatik, 779 F.2d 383 (7th Cir. 1985); The Open Hous. Ctr. v. Kessler Realty, Inc., No. 96 Civ. 6234, 2001 WL 1776163 (E.D.N.Y. 2001); United States v. Sea Winds of Marco, Inc., 893 F. Supp. 1051, 1055 (M.D. Fla. 1995) ("The complaint . . . states that Sea Winds instituted a policy requiring identification wristbands to be worn by unit renters. . . . It alleges that this policy was enforced by [the individual defendants] in consultation with the condominium association board, only against Hispanic renters . . .); Biondi v. Beekman Hill House Apartment Corp., 94 N.Y.2d 659, 662 (2000) ("After trial, the jury found that the Beekman defendants, including Biondi both personally and in his official capacity, violated the Federal Fair Housing Act . . ."); see also United States v. Lorantiffy Care Ctr., 999 F. Supp. 1037, 1045 (N.D. Ohio 1998) ("[T]he government does not allege that each individual himself engaged in a pattern or practice of discrimination. This would, of course, be actionable.").

Having established that individual defendants may be held personally liable in Title VIII actions, the next question is whether plaintiffs have stated a claim against each of the individual defendants. The Amended Complaint contains extensive allegations about Spink's conduct toward Andujar directly, and Cordero and Ryan indirectly, which are sufficient to support the claims against her. Hewitt signed the Notice of Termination which delineated Andujar's alleged violations of the landlord's rules, including those which form the basis for this suit. Moreover, as president of the board of directors of the Housing Association, Hewitt may be held vicariously liable for the actions of his agents under the doctrine of respondeat superior. See Coleman v. Cranberry Baye Rental Agency, 202 F.R.D. 106, 110 (N.D.N.Y. 2001) (citing Cabrera v. Jakabovitz, 24 F.3d 372, 385 (2d Cir. 1994)).

As to Flocco, however, the only allegation against him is that he sent Andujar a letter stating that the landlord had become aware of another person living in her apartment and directing Andujar to contact the office immediately. The letter did not contain any threat of eviction or reference to any problem with the number, familial relationship, or gender of the apartment's occupants. Thus, the Amended Complaint fails to state a claim against Flocco.

F. Cordero Cannot Assert a Claim for Wrongful Eviction

Finally, defendants argue that Cordero's wrongful eviction claim must be dismissed because she never had defendants' consent to occupy the apartment. Under section 853 of the RPAPL, a person who has been "disseized, ejected, or put out of real property in a forcible or unlawful manner . . ."may recover treble damages. See RPAPL § 853. However, in order for section 853 to apply, it is not enough for the would-be plaintiff merely to have occupied the premises; rather, the party must have been in "peaceable possession" of it. See Runquist v. Koeppel, 146 Misc.2d 569, 571 (Civ.Ct. N.Y. Co. 1990). "Possession to be peaceable must have been uncontested at the time of entry." Id. Since defendants never consented to Cordero's occupancy of the apartment, she cannot assert a claim under the statute.

Cordero fares no better under the common law. Though the Amended Complaint alleges that the Catholic Home Bureau removed Cordero solely to forestall defendants' threatened eviction of Andujar, it does not allege any facts suggesting that defendants evicted Cordero. Accordingly, her claim for wrongful eviction must be dismissed.


For the foregoing reasons, defendants' motion to dismiss plaintiffs' sections 1983 and 1988 claims, the claims against Thomas Flocco, and Cordero's wrongful eviction claim is granted, and the motion is denied in all remaining respects. A conference is scheduled for August 22 at 4:30 p.m.

Defendants assert that Andujar's defamation claim "should be dismissed and remanded to state court, since plaintiffs have not alleged cognizable federal claims." Def. Mem. at 18 n. 1. They do not offer any other arguments for dismissal of the defamation or intentional infliction of emotional distress claims. Because plaintiffs' claims under the Fair Housing Act survive, the defamation and intentional infliction of emotional distress claims also survive as pendent state claims.


Summaries of

Andujar v. Hewitt

United States District Court, S.D. New York
Aug 2, 2002
02 Civ. 2223 (SAS) (S.D.N.Y. Aug. 2, 2002)
Case details for

Andujar v. Hewitt

Case Details


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

Date published: Aug 2, 2002


02 Civ. 2223 (SAS) (S.D.N.Y. Aug. 2, 2002)

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