Opinion
101054/2008.
Decided April 19, 2010.
Peter H. Paretsky, Esq., Jeffrey Samel Partners, Attorneys for Plaintiff.
Errol F. Margolin, Esq., Margolin Pierce, LLP, Attorneys for Defendants CitiHabitats, Knight Miller.
Jaffe Asher LLP, Attorneys for Defendants Pinnacle Managing Co., LLC 32 Realty NY LLC.
Defendants Citi Habitats, New York Real Estate, Inc., a subsidiary of NRT New York, LLC ("Citi Habitats"), Russel K. Miller ("Miller") and Keith Knight ("Knight") (collectively the "Citi Habitats defendants") move for summary judgment in their favor dismissing the complaint against them. Co-defendants Pinnacle Managing Co., LLC and 32 Realty NY LLC (the "landlord") support the motion. Plaintiff Connie L. Carr ("plaintiff" or "Carr") opposes.
It is undisputed that defendants Citi Habitats, Inc., Citi Habitats New York, Inc. and NRT New York Inc. are non-existent entities.
While the notice of motion requests only summary judgment pursuant to CPLR 3212, the supporting memorandum of law also cites CPLR 3211(a)(1) and (7) challenging the amended complaint's sufficiency based upon documentary evidence.
Other entities related to the landlord, including Pinnacle Group, Wiener Realty, LLC and Joel Wiener, have been voluntarily dismissed.
Plaintiff is a 52 year old disabled woman pursuant to a ruling of the Social Security Administration, as of October 5, 2000. She claims she must use a "service dog" and a cane to ambulate. On or about December 11, 2006, she contacted defendant Citi Habitats, a rental agency for residential property, to help her find an apartment and obtained the services of defendants Miller and Knight, real estate agents employed by Citi Habitats. Carr explained the circumstances of her needs and they were able to observe her disabled condition in several meetings with her in December 2006 and January 2007.
Knight showed Carr apartment 7C at 7-9 East 32nd Street, New York County (the "apartment"), a property owned and operated by the landlord, which she found suitable for her needs. After agreeing to pay one full year's rent in advance and have a guarantor because she was starting a new business venture, plaintiff alleges that the Citi Habitats defendants informed her on January 18, 2007 that the landlord approved her application to rent the apartment and the lease was ready to be signed. On January 19, 2007, Carr signed the lease and paid one year's rent, including the broker's fee. In her amended complaint (Exh. A to Motion) plaintiff states that the lease term was January 24, 2007 to December 31, 2007 and the landlord and the Citi Habitats defendants "unequivocally represented to plaintiff that she could lawfully begin her tenancy of apartment 7C on January 24, 2007" ( Id. at ¶ 195). Thus, Carr moved into the apartment on January 24, 2007.
On her first day of occupancy, plaintiff alleges a man claiming to be from Pinnacle Management came to her apartment and inter alia looked at her family photographs and asked about "the race and national origin" of her and her family members. Carr Aff. in Opp. at ¶ 35. About one hour later, John Doe 1, the building superintendent, came to the apartment and questioned Carr about the nature and extent of her disability, which he had observed when they met the day before. After that, plaintiff went to the lobby and spoke to John Doe 2, the doorman of the building, about providing a list of prospective family visitors who need not be announced, thereby saving her the trouble of getting out of bed to answer the intercom. Plaintiff alleges that the doorman refused her request (Amended Complaint at ¶ 198).
Thereafter, Carr alleges John Doe 1 and a different man purportedly from the landlord "violently ejected" her and her property from the apartment, causing inter alia "permanent physical injuries requiring extensive medical intervention" ( Id. at ¶¶ 200-201). Subsequently, the landlord and the Citi Habitats defendants informed plaintiff that the apartment was "not available," Knight allegedly telling her that she would not have "fit in" with the "young, working couples" occupying the building ( Id. at ¶¶ 207-208). While the amended complaint alleges that Carr's money was not returned to her in spite of her requests, including visits to the landlord's and Citi Habitats' offices ( Id. at ¶¶ 209-213), in her opposition to the motion plaintiff acknowledges the eventual return of the funds, but claims that it took "significant legal fees in order to extract the money to which she was lawfully entitled." Carr Aff. in Opp. at ¶ 27.
Plaintiff's counsel wrote to Citi Habitats and the landlord on February 14, 2007 requesting the return of all funds plaintiff paid. See Paretsky Aff. in Opp. at Exh. 4R. It is undisputed that the funds were returned on or about February 20, 2007 in their original forms, that is, the checks and money orders were uncashed.
The amended complaint asserts the following causes of action against the City Habitats defendants: 1) unlawful discriminatory practices in violation of federal, state and local fair housing laws based upon the alleged "false denial of availability" of the apartment and "steering" (second and sixth causes of action); deceptive acts and practices in violation of General Business Law ("GBL") § 349 (seventh cause of action); breach of fiduciary duty (eighth cause of action) and breach of duty of good faith and fair dealing (ninth cause of action).
The sixth cause of action for steering is not asserted against Miller. Further, although the motion analyzes the first cause of action for housing discrimination and seeks its dismissal, a review of the amended complaint reveals that it was not asserted against the Citi Habitats defendants. Accordingly, the court does not address this cause of action.
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman , 39 AD3d 303 , 306 (1st Dept 2007), citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact.'" People ex rel. Spitzer v Grasso, 50 AD3d 535, 545 (1st Dept 2008), quoting Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable issue of fact, summary judgment must be denied. Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978); Grossman v Amalgamated Hous. Corp., 298 AD2d 224, 226 (1st Dept 2002).
The Citi Habitats defendants dispute plaintiff's version of events after she completed the application and remitted funds to Citi Habitats, both of which it claims to have forwarded to the landlord. Citi Habitats claims Carr "was specifically told that the Landlord had discretion over who it accepted and that the Landlord would contact her to inform her whether she was accepted" (Malin Aff. in Support of Motion at ¶ 6) and disclaims any role in what followed. When plaintiff complained to the Citi Habitats defendants in late January, they "had no knowledge of what had transpired since forwarding the paperwork and checks to the Landlord, and had not heard whether or not plaintiff's application had been accepted" ( Id. at ¶ 7).
The copy of the lease attached to the motion (Exh. C) bears only plaintiff's signature and it is undisputed that the landlord never signed the lease. The Citi Habitats defendants rely on this fact as establishing that the landlord's approval was lacking and Carr had no authority to move into the apartment, speculating that doing so "had a role" in the landlord's having her removed from the apartment and its subsequent decision to deny her application (Margolin Aff. in Supp. at ¶ 5). Citi Habitats maintains that it refunded its fee to plaintiff once it learned of these events and also offered to help her find a suitable apartment.
Plaintiff opposes this motion as premature because: no party depositions have been conducted; the motion lacks evidence in admissible form because it relies upon an attorney affirmation and an affidavit of Citi Habitats' president, who allegedly lacks personal knowledge; and several unresolved issues of material fact exist, including the apartment's availability before and after Carr's one-day occupancy.
False Denial of Availability and Steering
The second cause of action for false denial of availability and the sixth cause of action for steering are rooted in Executive Law § 296(5)(a)(1):
It shall be an unlawful discriminatory practice for . . . [a] person having the right to sell, rent or lease a housing accommodation . . .: (1) To refuse to sell, rent, lease or otherwise to deny to or withhold from any person or group of persons such a housing accommodation because of the race, creed, color, national origin, sexual orientation, military status, sex, age, disability, marital status, or familial status of such person or persons, or to represent that any housing accommodation or land is not available for inspection, sale, rental or lease when in fact it is so available. (Emphasis added)
Carr alleges the Citi Habitats defendants initially told her the apartment was available then after her removal therefrom falsely stated that it was not available. Plaintiff relies upon the following to establish her claim that defendants represented the apartment was available: 1) the Citi Habitats defendants showed the apartment and several others in the building to her and Dr. Gary Fromm, her friend and guarantor; 2) an e-mail from Citi Habitats dated December 21, 2006 to Dr. Fromm that stated "7C is already renovated and ready for 1/1/07 occupancy" (Paretsky Aff. in Opp. at Exh. 5); 3) prior allegations of " absolute and unconditional assurances that I was not only approved for the apartment, but that I could move in on January 24, 2007" (Carr Aff. in Opp. at ¶ 42, emphasis in original); 4) the amount of the advance payment was pro-rated for a term beginning on January 24, 2007; 5) Knight recommended that Carr have electrical service commenced immediately on January 19, 2007; 6) Miller directed plaintiff to pick up keys from the superintendent so she could move in by January 24, 2007; and 7) plaintiff ordered a new couch to be delivered to the apartment on January 24, 2007.
See photocopied Con Edison bill showing electrical service to the apartment under plaintiff's name commencing on January 19, 2007 and ending on January 25, 2007. Paretsky Aff. in Opp. at Exh. 4E.
See photocopied order for a sofabed from Jennifer Convertibles dated January 20, 2007 listing plaintiff's name and the address of the apartment for delivery. Paretsky Aff. in Opp. at Exh. 4M.
The Citi Habitats defendants do not challenge any of these facts with the exception of Carr's statement that she received "absolute and unconditional assurances" of approval and permission to move in. According to them, plaintiff was informed upon submission of her application and deposit that the landlord's approval was necessary and discretionary. The City Habitats defendants argue that the absence of a countersigned lease demonstrates that the landlord's approval had not been conveyed by January 24, 2007.
The parties present vastly differing accounts of what happened. Plaintiff claims the Citi Habitats defendants advised her she was approved to rent the apartment and to move in on January 24, 2007. Indeed, the landlord's staff gave her keys to the apartment and permitted her to move her belongings in. Based upon her subsequent forcible removal therefrom and her allegations concerning statements the landlord's staff made to her on the January 24, 2007 move-in date, plaintiff concludes, in essence, that the landlord reneged on the lease for an impermissible reason, viz., her disability and/or her age, by denying its prior approval to rent to Carr. By contrast, Citi Habitats claims the landlord ejected Carr because she moved in prior to receiving the landlord's approval and, as a result of her actions, the landlord elected to deny her rental application.
The Citi Habitats defendants have not met their burden of establishing that no issues of fact exist and summary judgment must be denied with respect to these causes of action. With regard to the false denial of availability claim, central to the court's inquiry is whether or not the landlord had approved Carr's tenancy and informed its agents, the Citi Habitats defendants, of such approval and to proceed with the rental. The lease, which the landlord never countersigned, is probative but not dispositive.
In support of their motion, the Citi Habitats defendants submit an affidavit from Gary Malin, Citi Habitats' president. However, Malin had no dealings with Carr and lacks personal knowledge of the representations his employees made to her. While Malin, as Citi Habitats' president, may seem a reasonable choice to speak for the company generally and explain its leasing procedures and protocols, the only probative affidavits here would necessarily come from Knight and Miller. Their affidavits denying plaintiff's specific and detailed allegations are conspicuously absent. While their answer denies Carr's allegations as to what they allegedly represented to her, it was verified by counsel and also lacks probative value for purposes of this motion.
Regardless, even if the Citi Habitats defendants had submitted affidavits with specific denials of plaintiff's claims, summary judgment would be inappropriate. As is readily apparent, material issues of fact are in dispute as evidenced by the parties' differing versions of the events leading to this unfortunate incident.
As to the cause of action for steering, Carr alleges that after her removal from the apartment, Knight allegedly told her that she would not have "fit in" with the "young, working couples" occupying the building and that Citi Habitats "may have listings for apartments in buildings that were more appropriate' and suitable' for someone like you.' (Amended Complaint at ¶ 249). Plaintiff elaborates in her affidavit in opposition that Knight allegedly explained that "some buildings in the city . . . are more tolerant and accommodating of tenants with disabilities and that he would try to find such an apartment building for me." Carr. Aff. in Opp. at ¶ 43.
Taking these allegations as true, they sufficiently state a cause of action for unlawful discriminatory practices based upon steering, a practice whereby housing is either granted or denied based upon the applicant's status. See, e.g., Davis v. New York City Hous. Auth., 1992 WL 420923 (S.D.NY) (public housing applicants assigned to certain housing projects and excluded from others on the basis of race) and its progeny. As with the second cause of action, summary judgment dismissing this cause of action is similarly inappropriate based upon the moving defendants' failure to submit an affidavit from Knight denying the alleged statements.
GBL § 349
Plaintiff's seventh cause of action for violation of GBL § 349 is based on the following alleged deceptive business practices (Amended Complaint at ¶ 258):
(a)Advising plaintiff that an apartment was available;
(b)Accepting money for such apartment — in this case an entire year's rent up front;
(c)Falsely advising plaintiff that the apartment was actually not available after accepting said money; and
(d)Refusing to return said money.
GBL § 349(a) prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce . . ." The essential elements of a cause of action under GBL § 349 are: "(1) a deceptive consumer-oriented act or practice which is misleading in a material respect, and (2) injury resulting from such act (citations omitted)." Exxonmobil Inter-America, Inc. v. Advanced Info. Eng'g Servs., Inc., 328 F.Supp.2d 443, 447 (S.D.NY 2004). "A defendant engages in consumer-oriented' activity if his actions cause any consumer injury or harm to the public interest.'" New York v. Feldman, 210 F.Supp.2d 294, 301 (S.D.NY 2002), citing to Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2nd Cir. 1995), cert. den., 516 U.S. 1114 (1996).
Here, the transactions between plaintiff and the Citi Habitats defendants are more akin to a contractual dispute unique to these parties. See, e.g., Kirk v. Heppt, 532 F.Supp.2d 586, 591 (S.D.NY 2008) (dismissing clients' GBL § 349 cause of action against their attorney for mailing alleged fraudulent invoices). While plaintiff speculates that Citi Habitats could potentially engage in the alleged deceptive acts on a wide scale basis, the allegation is conclusory and unsubstantiated. This isolated incident does not affect consumers at large. Accordingly, the seventh cause of action is dismissed as against the Citi Habitats defendants.
Breach of Fiduciary Duty
Plaintiff's eighth cause of action for breach of fiduciary duty is based on Citi Habitats "unlawfully withholding plaintiff's monies." Id. at ¶ 265. This issue is moot in light of Citi Habitats' return of plaintiffs' funds. For all of the foregoing reasons, the eighth cause of action is dismissed against the Citi Habitats defendants.
Breach of Duty of Good Faith and Fair Dealing
Finally, plaintiff's ninth cause of action for breach of duty of good faith and fair dealing is based upon Citi Habitats "depriving the plaintiff of the benefits . . . she was entitled to under the contract for the premises . . . [and] unlawfully withholding plaintiff's monies." Id. at ¶¶ 269, 271. If there was a "contract for the premises," it was between plaintiff and the landlord and, if she was denied its benefits, it was by the conduct of the landlord alone on January 24, 2007. None of plaintiff's allegations implicate Citi Habitats' conduct prior to January 24, 2007 when it located an apartment for her and handled the administrative steps leading to her occupancy. There is no triable issue of fact in this regard and the second allegation regarding the return of funds is moot, as previously stated. The ninth cause of action is therefore dismissed as against the Citi Habitats defendants.
The court has considered the parties' remaining arguments and finds them lacking in merit. Accordingly, for the reasons set forth above, it is
ORDERED that the Citi Habitats defendants' motion for summary judgment in their favor dismissing the complaint as against them is granted only to the extent that the seventh cause of action for violation of GBL § 349, the eighth cause of action for breach of fiduciary duty and the ninth cause of action for breach of duty of good faith and fair dealing are dismissed against defendants Citi Habitats, New York Real Estate, Inc., Miller and Knight; and it is further
ORDERED that the motion is denied with respect to the second cause of action for false denial of availability and the sixth cause of action for steering.
Counsel for the parties are directed to appear for a status conference on May 4, 2010 at 9:30 a.m., 60 Centre Street, Room 325, New York, New York.
The foregoing constitutes this court's decision and order. Courtesy copies of this decision and order have been faxed to counsel for the parties.