A.L.M. v. Board of Managers of the Vireum Schoolhouse Condominium

J] USDC SDN3

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UNITED STATES DISTRICT COURT DOCt ME oe

SOUTHERN DISTRICT OF NEW YORK JP ELECTRONICALLY Pie bb □

DOC #:

A.L.M., a minor, by and through her Parent and DATE FILED: 2) / Zu / IF

Guardian, Scott M. Moore, and SCOTT M. MOORE,

individually,

Plaintiffs, 0. 17-cv-07385 (NSR)

OPINION & ORDER

-against-

BOARD OF MANAGERS of the Vireum

Schoolhouse Condominium,

Defendant.

NELSON S. ROMAN, United States District Judge

Plaintiffs A.L.M. and Scott M. Moore (“Moore”) (collectively, “Plaintiffs”) bring this

action against the Board of Managers of the Vireum Schoolhouse Condominium (“Defendant” or

the “Board”) asserting claims under the Civil Rights Act, 42 U.S.C. §§ 1981, 1982, and the Fair

Housing Act, id. § 3617. (Compl., ECF No. 1.) Plaintiffs allege “a continuing pattern of purposeful

acts of discrimination by the Board and its agent, John Mulazzi (“Mulazzi’’), based on A.L.M.’s

race, age, sex, and national origin” designed to drive Plaintiffs out of their home and to keep

Plaintiffs from leasing or selling their home. (/d. { 1.)

Before the Court is Defendant’s Motion for Summary Judgment (ECF No. 25), Plaintiff's

Cross-Motion for Summary Judgment (ECF No. 50), and Defendant’s Motion for Sanctions (ECF

No. 31). Upon the conclusions set forth below, Defendant’s Motion for Summary Judgment is

GRANTED, Plaintiff's Cross-Motion for Summary Judgment is DENIED, and Defendant’s

Motion for Sanctions is DENIED.

BACKGROUND

The following facts are drawn from the parties’ Rule 56.1 statements, affidavits,

declarations, and exhibits, and are not in dispute unless otherwise noted.

In 2004, Moore and his wife, Marilisa Moore, adopted A.L.M., a female of Chinese race

and national origin. (See Plaintiffs’ Rule 56.1 Statement (“Pls.’ Statement’) 1-2 & Ex. 1, ECF

No. 51.)

In the spring of 2005, Moore purchased a unit (the “Moore Unit”) in the Vireum

Schoolhouse Condominium (the “Vireum”) in Ossining, New York. (Pls.’ Statement 15; id. Ex.

4; Defendant’s Rule 56.1 Statement (“Def.’s Statement”) § 3, ECF No. 27-1; Declaration of

William H. Bave, Jr. in Support of Defendant’s Motion for Summary Judgment (“Bave Decl.”)

Ex. D (“S. Moore Dep. Tr.”) 7:19-8:4, ECF No. 26-4.)!

The Moore Unit is located on the ground floor of the Vireum and is accessible only from

an outside door, i.e., is not accessible from inside the Vireum. (Pls.’ Statement § 21; Declaration

of John Fox in Support of Plaintiffs’ Cross-Motion for Summary Judgment (“Fox Decl.) 95, ECF

No. 52.)* The door to the Moore Unit opens to a brick enclosed terrace, with a matching brick

sidewalk (the “Moore Unit Sidewalk”) leading directly from the brick terrace to a public sidewalk.

(See id; Def.’s Statement 94; Bave Decl. Ex. K, ECF No. 26-11) The public sidewalk leads to

Excerpts of Moore’s deposition transcript were also provided by Plaintiffs. (See Pls.’ Statement Exs. 5-7 & 21, ECF

Nos. 51-5-7 & 51-21.)

2 A copy of this declaration was also submitted as an exhibit to Plaintiffs’ Rule 56.1 Statement of Facts. (See Pls.’

Statement Ex. 8, ECF No. 51-8.)

Vireum’s east parking lot and a public street known as Snowden Avenue. (See Pls.’ Statement

21; Fox Decl. 5; Bave Decl. Ex. L, ECF No. 26-12.)

At all relevant times, Mulazzi resided in Unit 1C of the Vireum (the “Mulazzi Unit”). (See

Pls.’ Statement 9] 25-26; Def.’s Statement {| 6; Bave Decl. Ex. M, ECF No. 26-13; id. Ex. T

(Affidavit of John Mulazzi (“Mulazzi Aff.”)) § 2, ECF No. 26-20.) The Mulazzi Unit was located

directly above the Moore Unit and has windows on three sides, with one side looking down over

the entrance of the Moore Unit, the second side facing the Moore Sidewalk, and the third side

facing Vireum’s east parking lot. (See Pls.’ Statement § 25; Fox Decl. 4 9; Bave Decl. Ex. M.)

Moore, his wife, and A.L.M. first moved into the Moore Unit in April 2005 (Def.’s

Statement 2; S. Moore Dep. Tr. 8:25-9:8). According to Moore, the day he and his family moved

in, Mulazzi “looked at [A.L.M.],” “screwed up his face, [and] looked at [the Moores] as a mixed

race family.” (Pls.’ Statement J 48; S. Moore. Dep. Tr. 87:6-10.)

Moore was elected to the Board in September 2005. (Def.’s Statement 7; S. Moore Dep.

Tr. 28:15-20; Pls.’ Statement J 55.) At various times relevant to this case, the Board included the

following members, among others: Mulazzi; Patrick Ryan (“Ryan”); and Duncan Kennedy

(“Kennedy”). (See Pls.’ Statement 3, 5, 7, 9, 11; Pls.’ Statement Ex. 3 (“Def.’s Resp. Pls.’ First

Req. for Admis.”) at 1-2) Ryan and Mulazzi both knew that A.L.M. was a female child of Chinese

or Asian race who resided in the Moore Unit. (See Pls.’ Statement {ff 4, 6, 8, 10, 12; Def.’s Resp.

Pls.’ First Req. for Admis. at 2.)

Moore testified during his deposition that, at some point in 2005, he and other members of

the Board went to each unit to “check the locks” and ensure it had keys to all of the units (Pls.’

Statement □□ 48; S. Moore Dep. Tr. 87:19-23) According to Moore, A.L.M. was with him at the

time and Mulazzi gave her a “nasty sneer” upon their arrival to the Mulazzi Unit. (Pls.’ Statement

48; S. Moore Dep. Tr. 87:23-88:4.)

Moore’s Board membership ended in the fall of 2006. (See Def.’s Statement 4 8; 5S. Moore

Dep. Tr. 30:16-9; Pls.’ Statement § 55.) According to Defendant, Moore’s departure from the

Board occurred because Mulazzi and another Board member organized a vote at the annual

meeting to vote Moore off the Board. (Def.’s Statement § 8.) Plaintiff, for his part, notes that the

minutes from an August 16, 2006 Board meeting reflect that Moore stated to the Board that “he

may not stand for election in September 2006 and encouraged the new board [to] continue the

momentum.” (Pls.’ Statement 4 55; id. Ex. 23.)

In the spring of 2010, Moore hired a private investigator named John Fox (“Fox”) to look

into certain instances of harassment and other difficulties that the Moores were experiencing while

living at Vireum.? (See Pls.’ Statement § 19; Fox Decl. 3; S. Moore Dep. Tr. 39:4-40:4.) As part

of this engagement, Fox learned that the Moores had experienced excessive noise coming from the

floor of the Mulazzi Unit into the Moore Unit, as well as damage to some of their personal property,

including their car and packages they had delivered to Vireum’s mailroom. (See Pls.’ Statement §

20; Fox Decl. {ff 4, 9.) Fox found that no packages in the mailroom were being damaged except

those addressed to the Moores, and that the only time the Moores’ packages were not being

damaged was when Fox was in the vicinity to observe. (Pls.’ Statement ¢ 20; Fox Decl. { 4, 8.)

3 Plaintiff never received a written report from Fox as to his investigation in findings (Def.’s Counterstatement §[ 3; S.

Moore Decl. 42:6-9), but a declaration to that end was submitted by Fox in connection with Plaintiffs’ Motion for

Summary Judgment (Fox Decl., ECF No. 52). Nor does the Court agree with Defendant that the declaration constitutes

inadmissible speculation.

Fox also learned about incidents involving another Vireum resident, Thomas Elders

(“Elders”), in which Elders would interfere with the Moores’ ability to walk to or from the Moore

Unit, their car, A.L.M.’s school bus, or a nearby park. (Pls.’ Statement 20; Fox Decl. § 4). In

particular, Fox learned that whenever the Moores would walk to or from these places, Elders would

appear and “intersect” them, i.e., approach them in such a way that they would physically collide

with Elders unless they stopped walking or changed their direction (the “intersecting behavior”).

(Id.) This intersecting behavior occurred both day and night, and was often accompanied by a noise

to attract attention, such as the jingling of keys, whistling, or coughing. U/d.) Furthermore, the

Moore Family was unable to avoid these interactions with Elders by making changes to their

routine because Elders would adapt the timing of his intersecting behavior in accordance with any

changes the Moores would make to their routine. (Pls.’ Statement { 20; Fox Decl. {{] 4, 7.) Fox

learned that Elders lived in Unit 2B, which did not have any windows overlooking the door to the

Moore Unit, its terrace, or the sidewalk leading from its terrace. (Pls.’ Statement § 22; Fox Decl.

6.)

In light of the foregoing discoveries, Fox began to investigate whether any other Vireum

residents were assisting Elders with his harassment. (Pls.’ Statement [| 22-23; Fox Decl. {J 7-8.)

Fox eventually learned that the Mulazzi Unit was the only other unit occupied during the relevant

times, such as when A.L.M. would go to or from her school bus stop, which led him to suspect

that Mulazzi and the Board (of which Mulazzi was a member) were involved. (Pls.’ Statement □□□

25-26; Fox Decl. □□ 9-10.) In particular, Fox believed that Mulazzi used sounds and his windows

to alert Elders when members of the Moore family were preparing to leave the Moore Unit. (Pls.’

Statement § 27; Fox Decl. ¥ 11.) To test this theory, Fox and Moore decided to see what would

happen if they opened and shut a closet door near the front door to the Moore Unit, thereby creating

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a sound akin to that created when someone leaves their home. (/d.) Accordingly, at different and □

staggered times over a three-day period, Moore opened and closed the closet door; each time he

did so, Elders appeared outside the Moore Unit a short time later. (/d.)

Fox also advised Moore to maintain a log of any incidents that occurred. (Pls.’ Statement

{ 29; Fox Decl. J 13; Bave Decl. Ex. C (“Moore’s Log”), ECF No. 26-3.) This log contains

descriptions of interactions with Elders, damages to packages, and other events that occurred

between June 10, 2010 and April 26, 2012. (See generally Moore’s Log.) Moore testified at his

deposition that “approximately forty ... incidents [in his Log] involve [A.L.M.]” (Pls.’ Statement

{ 48; S. Moore Dep. Tr. 89:9-90:3.) Moore’s Log likewise indicates that, on August 20, 2010,

Moore told local police that Elders had been harassing his family for nine months and expressed

his belief that Mulazzi was involved in the harassment. (Moore’s Log at 1; Def.’s Statement { 9.)

As Mulazzi and the Board were suspects of Fox’s investigation, Moore executed and gave

Fox his proxy to attend Vireum’s annual meeting on September 27, 2010. (Pls.’ Statement { 28;

Fox Decl. ¥ 12; id. Ex. 1.) Upon arriving to the meeting and showing the proxy, however, the

Board ejected him on the ground that only unit owners were allowed to attend an annual meeting.

(Id.) Fox requested proof of such a policy but it was never provided. (/d.)

Moore and his family moved out of the Moore Unit in September 2012. (Def.’s Statement

3; S. Moore Dep. Tr. 8:25-9:8.) They subsequently decided to rent the Moore Unit and, in about

May or June of 2013, Plaintiffs’ property manager showed it to a prospective tenant who was a

female “of the Black race.” (Pls.’ Statement {{ 30, 50.) During this showing of the Moore Unit,

Mulazzi opened a window in the Mulazzi Unit, which was above the door to the Moore Unit, and

spoke to Plaintiffs’ property manager. (Pls.’ Statement § 50; Def.’s Resp. Pls.’ First. Req. for

Admis. at 7.) Sometime after this prospective tenant was shown the Moore Unit, but before Moore

notified the Board of his intent to rent the Moore Unit to this person, the Board informed Moore

that the Moore Unit could not be rented. (Pls.’ Statement { 30; id Ex. 9.) The Board reasoned that

the maximum number of rentals permitted by Vireum’s regulations—25% of the building’s

units—had already been reached. (/d.) When asked for proof of such a regulation, the Board did

not respond. (/d.)

On July 8, 2014, Moore emailed the Board to share his family’s intent to move back into

the Moore Unit. (Pls.’ Statement J 58; id. Ex. 24.) In that email, Moore also asked the Board to

take steps to ensure that his wife would be left alone by Mulazzi and Elders, explaining that his

wife was diagnosed with “Panic Disorder with agoraphobia, Posttraumatic stress disorder, and

Obsessive-compulsive disorder” arising out of “the repetition of unwanted attention to her by

[Mulazzi and Elders]” and the “package damage” that occurred during their previous occupancy

of the Moore Unit. (/d.) On August 1, 2014, the Board responded to Moore’s complaints, noting,

among other things, that Elders was neither an owner nor a member of the Board and that his

actions therefore did not fall under the Board’s purview, and that the Board had not received any

other complaints regarding damaged packages. (Pls.’ Statement § 34; id. Ex. 13.) The Board

likewise stated that it “do[es] not ensure against the private actions of [its] members, [but would]

take seriously any documented claims of improper behavior on the part of a [Board] member” and

encouraged Moore to “notify the [BJoard and contact the proper authorities contemporaneously”

should any further incidents occur. (/d.) Two days later, Moore requested that “the common area

garden .. . maintained by [Elders] immediately adjacent to [the Moore Unit’s] terrace and only

door be either eliminated, or moved to another area far away from [the Moore Unit] .. . [so that]

there will be no excuse for [Elders] to hang about [the Moore Unit’s] door.” (Pls.’ Statement § 61;

id. Ex. 27.) Moore explained that this request was based on a concern for his wife’s medical

condition, as well as the protection of A.L.M. Ud.) On August 16, 2014, Moore provided the Board

with evidence relating to his complaints against Mulazzi and Elders, such as copies of police

reports he filed, his Log, images of damaged packages, and his wife’s medical records. (Pls.’

Statement { 60; id. Ex. 26 & 30.)

The Moores moved back into the Moore Unit at the end of August or beginning of

September 2014 (Def.’s Statement 4 3; S. Moore Dep. Tr. 8:25-9:8). On September 2, 2014,

Mulazzi e-mailed other members of the Board, writing: “Just FYI: Today [the Moores] moved a

great deal of boxes and furniture into [the Moore Unit]. No issues as yet, but I will keep you all

informed if I observe anything out of the ordinary. Mrs. Moore seems well, if a bit unsteady on

her feet. All is quiet on the western front as of now.” (Pls.’ Statement 4 32; id Ex. 11.) A few days

after that, Moore e-mailed the Board to note that, when he was moving boxes and other items into

the Moore Unit on September | or 2, 2014, he saw Mulazzi and Elders “standing together nearby

in the lot, and talking together in an excited manner,” and that when Elders saw Moore

approaching, he said to Mulazzi, “[W]e’Il talk again.” (Pls.’ Statement 33; id Ex. 12.)

On September 5, 2014, Moore sent an email to the Board stating that, as he had yet to

receive any “communication about any steps taken, or planned to be taken[,] by the [B]oard,” he

planned to “sue the [B]oard and the building for damages suffered by [his] wife, and for whatever

actions a court may require to remedy the failing of the [B]oard.” (Pls.’ Statement § 59; id. Ex.

25.)

Between the fall of 2014 and the summer of 2015, Moore sent the Board numerous e-mails

complaining of interactions that he, his wife, and A.L.M. had with Elders, Mulazzi, and other

Vireum residents. (Def.’s Counterstatement { 4; id. Ex. E; Pls.’ Statement {J 33, 35-39, 56-57; id.

Ex. 10, 12, 14-18.; Def.’s Ex. U (“Ryan Aff.”) 3-4.) In one such e-mail, Moore reported: “A

short time ago, 4:30 [p.m.,] I walked out with our 12 year old daughter and went across the street

to... shoot basketball with her. No one was outside. When we returned 15 minutes later, Mulazzi

was standing by our walkway and door, and we had to walk by him to our door. [Five] minutes

after we walked inside, Mulazzi was nowhere to be seen.” (Pls.’ Statement 36; id. Ex. 15.) In

addition, on March 24, 2016, Moore sent an e-mail to all Vireum unit owners, directing them to

“Ts|tay off of and away from [the Moore Unit’s] private back walkway and terrace ... so [Mrs.

Moore’s] medical condition can improve.” (Def.’s Statement 4 18; id. Ex. S.)

In anticipation of a lawsuit against the Board, Moore began contacting former owners of

Vireum units for information regarding acts committed by Mulazzi and Elders. (S. Moore Dep. Tr.

55:18-60:25.) Among the individuals Moore contacted was Kennedy, who was on the Board from

2005 until 2009. Ud. 56:3-7.) When Moore spoke to Kennedy in March 2015 (S. Moore Dep. Tr.

26:3-4), Kennedy relayed certain statements Mulazzi made during a Board meeting that took place

in the fall of 2006, after Moore had left the Board. (Pls.’ Statement { 17; S. Moore Dep. Tr. 56:1-

22.) Specifically, Kennedy said that Mulazzi announced his intent “to make [Moore’s] family’s

life miserable using the proximity of his unit over [the Moore Unit],” for example, by “dragging

chains across his floor so that the noise would bother [them].” (Pls.’ Statement J 17; S. Moore

Dep. Tr. 56:3-17.) Kennedy further told Moore that “Mulazzi didn’t care who heard him say

[this],” and that Mulazzi’s statements were “chilling for [Kennedy] to hear.” (Pls.’ Statement § 17;

S. Moore. Dep. Tr. 56:18-22.) In his affidavit, Mulazzi denied having made these statements.

(Mulazzi Aff. { 9.)

On November 23, 2015 and December 14, 2015, Moore sent correspondence entitled

“Notice of Claim” to Vireum’s insurance companies, Harleysville Insurance Company of New

York and Traveler’s Insurance Co. (Def.’s Statement J 11; id Ex. O & P.) These Notices of Claim

sought, among other things, monetary compensation for aggravation of Moore’s wife’s mental

health condition and for the interference with Moore’s peaceful enjoyment of the Moore Unit.Ud.)

At his deposition, Moore acknowledged that any stalking or interference of A.L.M. is not

mentioned in either of these documents. (S. Moore Dep. Tr. 48:5-49:24.) Moore testified that, “in

the bundle of claims that [the Moores] had and have, [his wife] was suffering the immediate effects

from [the interference],” including her hospitalization. (S. Moore Dep. Tr. 48:5-14.) According to

Moore, both claims were ultimately denied by the insurance companies on the basis that neither

policy covered intentional acts. (id. 48:14-17.)

A.L.M. testified at her deposition that she had personal knowledge of and recalled several

of the incidents of interference alleged in the Complaint. (Pls.’ Statement § 40; Bave Decl. Ex. Q

(“A.L.M. Dep. Tr.”) 7:4-17, ECF No. 26-17.) For example, she testified that, on a daily basis, she

would hear loud sounds coming from above the Moore Unit, like someone was “stomp[ing] . . .

and . . . walk[ing] all over the ceiling,” “drag[ging] things[,] or mov[ing] furniture.” (Pls.’

Statement J 41; A.L.M. Dep. Tr. 7:18-9:11.) A.L.M. also recalled times when she would be getting

off her school bus and Elders or Mulazzi would appear “in front of the walkway, or just in the way

in general, and [she would] have to walk around them.” (Pls.’ Statement § 43; A.L.M. Dep. Tr.

11:15-12:11.) During these interactions, Elders or Mulazzi would be four or five feet away—not

“too close, but [close] enough” that “their presence” bothered her. (Pls.’ Statement § 43; A.L.M.

Dep. Tr. 12:8-11.) However, A.L.M. testified that no one at Vireum ever said to her, “‘you’re

Chinese; you shouldn’t live here.” (Def.’s Statement 4 12; A.L.M. Dep. Tr. 13:23-14:3.) A.L.M.

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added that, when she was about seven or eight years old, she would have occasional nightmares

about Mulazzi and the other man who lived in the Mulazzi Unit. (Pls.’ Statement ¢ 44; A.L.M.

Dep. Tr. 14:4-23.)

Marilisa Moore testified at her deposition that she “was there during a lot of the intersecting

behavior,” including instances in which she was bringing A.L.M. to the bus and Elders or Mulazzi

would appear. (Bave Decl. Ex. R (“M. Moore Dep. Tr.””) 7:24-9:9, ECF No. 26-18.)* She believed

this alleged harassment was initiated as a result of A.L.M.’s national origin because the behavior

was not targeted at any other resident of the Vireum and everyone involved knew that A.L.M. was

Chinese. (Def.’s Counterstatement | 21; M. Moore Dep. Tr. 33:6-34:11.) However, she never

heard Mulazzi speak to A.L.M. directly during these incidents. (Def.’s Counterstatement □ 22; M.

Moore Dep. Tr. 35:10-14.) Marilisa Moore further testified that her family never identified the

individual or individuals responsible for damaging their packages or other property. (Def.’s

Statement {] 13-14; M. Moore Dep. Tr. 20:23-21:20).

Plaintiffs state that the Board never conducted a neutral and independent into Moore’s

reports of harassment of his family by Mulazzi and Elders, nor took prompt corrective action in

response to such reports. (Pls.’ Statement ff 56-57.) In support of this assertion, Plaintiffs point to

an e-mail dated September 17, 2014, in which members of the Board discuss how to address a

report from Moore that Elders was taking pictures of the Moore Unit. (/d. Ex. 10.) In this e-mail,

Board member Ryan writes, “[Moore is] an attorney, he should take action on his own, he’s trying

to suck us in.” Ud.) Defendant disputes this statement, asserting that it attempted to address

4 Excerpts of Mrs. Moore’s deposition transcript were also provided by Plaintiffs. (See Pls.’ Mem. Opp. Def.’s Mot.

Summ. J. Ex. 20 (is this the first time this was cited?).)

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Plaintiffs’ complaints through its attorney.° (Def.’s Counterstatement § 6; id. Ex. F). The Board

likewise notes that Mulazzi responded to Moore’s complaints in e-mails to his fellow Board

members (id. 7; id. Ex. G), as did other Board members, who were admittedly “less diplomatic”

in their responses (id. 8; id. Ex. H.)

In his e-mails responding to Moore’s complaints, Mulazzi wrote to the Board, among other

things, that he had “no idea when [Moore] or his family leave or arrive” (Bave Decl. Ex. D at 6,

ECF No. 32-5); he found it “unfortunate that (Moore] finds movements by persons who are owners

here in the common areas offensive” (id. at 3); that he was entitled to “exit or enter the building at

any time of the day or night as is permitted by any owner, resident, tenant or visitor” (id); and that

Moore “cannot control the movements of [owners] in the parking areas (id. at 1). In these e-mails,

Mulazzi often admitted to the Board that he was in the common areas or leaving the Vireum at the

times that Moore saw him, but maintained that his movements were for innocent reasons and

rejected Moore’s interpretation of the incidents. (See generally id. at 1-6.)

Mulazzi stated that he has not had any contact with the Moores since Moore was voted off

the Board in 2006 and denied that he took any action or encouraged others to take any action with

the intent to drive Plaintiffs out of the Moore Unit. (Def.’s Counterstatement 4 26; Mulazzi Decl.

{ 8.)

Ryan stated that Moore never indicated to him before this lawsuit that any of the actions

> One e-mail from the Board’s attorney to Moore writes: “As you know, the Board has no authority to prohibit

residents from moving about their homes, using their vehicles, the common elements and/or the surrounding streets.

If you believe that the use of common elements is done with an intent to commit unlawful or criminal act[s,] you

have been advised, on numerous occasions, to report the activity to the proper authorities. Your email below

describes the kind of activity that any unit is within his rights to engage in. It is your characterization that [Mulazzi]

is ‘stalking’ your wife and that is an issue for the local authorities to determine and deal with.” (/d. at 4.)

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about which he complained over the years were motivated by A.L.M.’s Chinese background, and

that the Vireum has had “residents of African-American, Japanese, Filipino, Chinese (in addition

to [A.L.M.]) and Indian descent,” with three current residents “of Asian descent.” Ud. 9.) Ryan

further affirmed that he has never received a complaint from any other unit owner regarding noise

from the Mulazzi Unit. (Ryan Decl. {{ 5-6.)

On March 23, 2016, Moore refused to pay an invoice sent by the condominium association,

stating that he had previously “notified the [B]oard that common charges [were] being withheld

because of [his pending claims against the Board] and litigation, until and unless the [B]oard

cure[d] [its] gross breach of the Vireum bylaws and of [its] fiduciary duty to protect [Moore’s]

bylaw rights as a unit owner.” (Def.’s Counterstatement { 9; id. Ex. I.)

Plaintiffs moved out of the Moore Unit for the second time in September 2016. (S. Moore

Dep. Tr. 8:25-9:8.)

On August 29, 2017, Defendant’s attorney sent Moore a letter informing him that

Defendant was filing a “formal lien upon the [Moore Unit],” and that “in the absence of payment

... [the Board would] initiate foreclosure proceedings without further notice to Moore.” (Pls.’

Statement 53-54 & Ex. 22; Def.’s Counterstatement { 10; id. Ex. J.)

On September 27, 2017, Plaintiffs filed their Complaint in the instant action. (Compl., ECF

No. 1.)

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LEGAL STANDARD

L Summary Judgment

Summary judgment is appropriate only where “there is no genuine issue as to any material

fact and... the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Thus, summary judgment will not lie where there is a “dispute[] over facts that might affect the

outcome of the suit under the governing law” and “the evidence is such that a reasonable jury could

return a verdict for the [non-moving] party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “The Supreme Court has made clear that ‘at the summary judgment stage the judge’s

function is not himself to weigh the evidence and determine the truth of the matter[.]’”

Westinghouse Elec. Corp. v. N.Y.C. Trans. Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y. 1990)

(quoting Anderson, 477 U.S. at 249). Rather, the relevant inquiry is “whether the evidence presents

a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Anderson, 477 U.S. at 251-52. Moreover, in deciding a motion

for summary judgment, courts must “constru[e] the evidence in the light most favorable to the non-

moving party and draw[] all reasonable inferences in its favor.” Fincher v. Depository Trust &

Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal citation and quotation marks omitted).

The moving party bears the initial burden of pointing to evidence in the record “which it

believes demonstrate[s| the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The moving party may also support an assertion that there is no genuine

dispute by showing “that [the] adverse party cannot produce admissible evidence to support the

fact.” Fed. R. Civ. P. 56(c)(1)(B). Ifthe moving party fulfills its preliminary burden, the onus shifts

to the non-moving party to identify “specific facts showing that there is a genuine issue for trial.”

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Anderson, 477 U.S. at 248 (internal citation and quotation marks omitted).

The party asserting that a material fact is genuinely disputed must support his or her

assertion by “citing to particular parts of materials in the record” or “showing that the materials

cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). “Statements

that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly

supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.

1999), In addition, “[t]he mere existence of a scintilla of evidence in support of the [non-moving

party’s] position will be insufficient; there must be evidence on which the jury could reasonably

find for [that party].” Anderson v, 477 U.S. at 252.

DISCUSSION

I. Plaintiffs’ Claims Under the FHA

A. Applicable Law

Section 3604 of the FHA makes it unlawful “[t]o discriminate against any person in the

terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services in

connection therewith, because of race, color . . . or national origin.” 42 U.S.C. § 3604(b). In

addition, Section 3617 makes it unlawful “to coerce, intimidate, threaten, or interfere with any

person in the exercise or enjoyment of... any right granted or protected by” Section 3604. Id.

§3617. Courts within this Circuit have held that Section 3617 “can, at times, serve as a separate

basis for an FHA claim even where there is no predicate for liability under any of the statute’s

specifically referenced enumerated provisions.” Lachira v. Sutton, 2007 WL 1346913 at *17 (D.

Conn. May 7, 2007). Collectively, these provisions are designed “to eliminate all traces of

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discrimination within the housing field.” Cabrera v. Jakabovitz, 24 F.3d 372, 390 (2d Cir. 1994)

(quotation marks omitted).

B. Discussion

Plaintiffs claim that Mulazzi and/or Elders engaged in discrimination based on A.L.M.’s

race, age, sex, and national origin insofar as they attempted to drive the Moores out of the Vireum

by making noise in the Mulazzi Unit and “intersecting” members of the Moore family when they

left their home.® Plaintiffs further contend that the Board is liable for Mulazzi’s discriminatory

practices and its subsequent “ratification” of such practices, as well as for failing to investigate or

end the harassment of both Mulazzi, its agent, and Elders, a Vireum tenant.

Thus, Plaintiffs’ claims involve three questions that remain unresolved in this Circuit:

whether post-acquisition harassment is actionable under Section 3617, whether the Board may be

liable under Section 3617 for failing to redress tenant-on-tenant harassment, and whether the

Board’s knowing or negligent failure to intervene to combat such harassment, without

discriminatory intent, is actionable against the Board.’ See Francis v. Kings Park Manor, Inc., 91

F, Supp. 3d 420, 432 (E.D.N.Y. 2015), aff'd in part, vacated in part, remanded, 917 F.3d 109 Qd

6 Plaintiffs additionally point to the damage done to their packages, car, and other property as evidence of a hostile

housing environment. However, the fact that Plaintiffs’ personal property was allegedly tampered with cannot support

Plaintiffs’ case, as nothing in the record ties such damage to Defendant, Mulazzi, or Elders. Indeed, Moore’s wife

testified that her family never discovered the identity of the individual or individuals responsible for the damage.

? Plaintiffs appear to believe that these questions are answered by certain rules promulgated by the Department of

Housing and Urban Development. (See generally Pls.” Mem. Supp. Mot. Cross-Summ. J., ECF No. 53 (relying

extensively on 24 C.F.R. §§ 100.6 and 100.7); see also Pls.’ Mem. Opp. Def.’s Mot. Sanctions at 6-7, ECF No. 43

(arguing that Defendant’s summary judgment motion papers “wholly misrepresented the housing discrimination laws

by failing to present the [FHA] implementing regulations [24 C.F.R. §§ 100.6 and 100.7].”) At most, these regulations

are entitled to deference under Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837 (1984). In any case,

even assuming these rules are binding on this Court, Plaintiffs’ claims are unsuccessful for the reasons described in

this Opinion.

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Cir. 2019), opinion withdrawn, 920 F.3d 168 (2d Cir. 2019). Whatever the answers to these open

questions, however, Plaintiffs’ FHA claims still fail for the reasons that follow.

District courts in this Circuit have held that a plaintiff bringing a post-acquisition hostile

housing environment claim under Section 3617 must prove (1) that he or she was subjected to

harassment that was sufficiently pervasive and severe so as to create a hostile housing

environment; (2) that the harassment was because of the plaintiff?s membership in a protected

class; and (3) that a basis exists for imputing the allegedly harassing conduct to the landlord or

property manager.® See, e.g., Pierre v. Lantern Grp. Found. Inc., 14-cv-8449 (JMF), 2016 WL

3461309 at *2 (S.D.N.Y. June 20, 2016); D.K. by L.K. v. Teams, 260 F. Supp. 3d 334, 367

(S.D.N.Y. 2017); Cain v. Rambert, 2014 WL 2440596 at *5 (E.D.N.Y. May 30, 2014).

In this case, Plaintiffs have not shown that a hostile environment existed. As noted, the

only conduct that may be attributed to the Board, one of its agents, or a Vireum resident is the

noise coming from the Mulazzi Unit and the intersecting behavior, i.e., the presence of residents

near members of the Moore family or their unit. A reasonable person would not view this conduct

as sufficiently severe or pervasive. Moreover, Plaintiffs state that the harassment began almost

immediately upon moving into the Vireum in 2005, but they did not move out of the Vireum until

2012, and then moved back into the Vireum two years later. Thus, while they did vacate the Vireum

twice, the Moores also remained at the Vireum for a total of about nine years. This suggests that,

8 As the scope of this third element has not yet been defined by the Second Circuit, the Court assumes for purposes of

this motion that the conduct of Mulazzi or Elders may be imputed to the Board based on the Mulazzi’s status as an

agent of the Board and/or the Board’s failure to stop the alleged harassment by Plaintiffs’ neighbors. See, e.g., Reeves

v. Carrollsburg Condo. Unit Owners Ass'n, No. 96-CV-2495, 1997 WL 1877201, at *7 (D.D.C. Dec. 18,

1997) (finding that a defendant condominium association could be held liable for creation of a hostile housing

environment where the defendant “knew or should have known of the harassment, and took no effectual action to

correct the situation.”).

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even from the Moores’ perspective, the unwelcome conduct was not sufficiently severe or

pervasive.

Furthermore, the record is devoid of evidence that the acts arose from a discriminatory

motive. Plaintiffs argue that Mulazzi’s and Elders’ discriminatory intent can be reasonably inferred

because (1) Mulazzi made faces at A.L.M. on two occasions shortly after the Moores moved into

the Vireum in 2005; (2) in announcing to the Board in 2006 his plan to make the Moores’ lives

miserable, Mulazzi identified the Moore “family” as the target of his harassment, rather than just

Moore individually;? and (3) A.L.M. or the members of her family were the only residents enduring

the noise and the intersecting behavior. But these conclusory assertions, without more, cannot give

rise to a reasonable inference of discriminatory animus. See, e.g., Haber v. ASN 50th St. LLC, 847

F. Supp. 2d 578, 586 (S.D.N.Y. 2012) (finding plaintiffs “own conclusory assertions that [the

defendants] acted for racially motivated reasons[,]” for example, plaintiffs statement that “people

‘wouldn’t do this’ unless they were racially motivated[,]” insufficient to demonstrate

discrimination).

Nor do the facts in the record allow for such an inference. Not one of Moore’s Log entries

or e-mails to the Board suggests that he or a member of his family believed the harassment was

related to A.L.M.’s protected status;'° A.L.M. testified that neither Mulazzi nor Elders ever said

° Defendant objects to the Court’s consideration of this statement on the ground that it is inadmissible hearsay

because Moore had no personal knowledge of the statement to which he testified. Plaintiffs respond that this

statement is admissible hearsay as a statement of the declarant’s, i.¢., Mulazzi’s, then-existing state of mind. While

this may be true as to Mulazzi’s statement, Plaintiffs overlook the fact that this evidence involves two layers of

hearsay—the second layer being Kennedy’s statement to Moore in 2015 in which he relayed this information.

Without an exception to account for this double hearsay, the evidence is inadmissible. In any case, because this

statement serves neither to defeat Defendant’s motion for summary judgment nor support Plaintiffs’ cross-motion

for summary judgment, the Court includes it in its discussion.

10 Tn fact, Moore’s e-mails to the Board focus almost exclusively on his wife’s mental health.

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anything to her, particularly about her racial background; and Moore’s notice of claims to the

Vireum’s insurers only mention his wife’s mental health. Furthermore, Ryan affirmed that the

Vireum has had residents from many different backgrounds, that he has never received a complaint

from any other unit owner regarding noise from the Mulazzi Unit, and that, until this lawsuit,

Moore never indicated to him that any of the actions were motivated by A.L.M.’s ethnic

background. In sum, Plaintiffs have proffered no evidence that any of the complained-of actions

arose from a discriminatory motive as opposed to a neutral motive, such as a personal feud between

neighbors. Cf United States v. Weisz, 914 F. Supp. 1050, 1054 (S.D.N.Y. 1996) (granting motion

to dismiss where allegations “recite[d] nothing more than a series of skirmishes in an unfortunate

war between neighbors”); Lachira v. Sutton, 2007 WL 1346913 at *20 (D. Conn. May 7, 2007)

(granting motion for summary judgment where the conduct at issue was “more akin to a ‘quarrel’

between a tenant and her landlord than the ‘pattern of harassment’ found to be actionable [under

Section 3617]”). Accordingly, any claim against the Board based on the conduct of Mulazzi as its

agent cannot withstand a motion for summary judgment.

Moreover, in the absence of any discriminatory intent on the part of Mulazzi or Elders,

Plaintiffs’ claims against the Board for allegedly ratifying and failing to intervene in their

harassment necessarily fail, given that the Board could not have approved of or tried to address

discriminatory harassment that never existed in the first place. See Cain, 2014 WL 2440596 at *6

(dismissing claim against landlord for failing to intervene in alleged harassment from plaintiffs

neighbors where plaintiff failed to plausibly state a claim of discriminatory harassment against

those neighbors).

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But even if one could objectively view Mulazzi’s or Elders’ actions as discriminatory

harassment, Plaintiffs’ claims remain unavailing because they have not demonstrated that the

Board ratified or failed to intervene in such discrimination. When Moore e-mailed the Board about

the perceived harassment, he primarily complained of residents’ presence in the common areas of

the garden or the public sidewalk near the Moore Unit and the effect that this activity was having

on his wife’s mental health. In response, the Board sent a notice to all residents regarding respect

for other residents’ quiet enjoyment of their units, banned Elders from the garden areas near the

Moore Unit and fined the owner of Elders’ unit when he violated this rule, and reached out to

Mulazzi about Moore’s complaints. Mulazzi in turn explained to the Board the nature of his

conduct, denied any intent to harass the Moores, and insisted that he had a right to access the

common areas of the property without being accused of harassment. Thus, contrary to Plaintiffs’

assertions, the evidence illustrates that the Board did in fact take steps to investigate and address

Moore’s complaints.'! Indeed, given the nature of the perceived harassment and the location of the

Moore Unit—on the ground floor, abutting one of the Vireum’s parking lots, a public walkway,

and a common area garden—it is difficult to imagine what else the Board might have done to

address Moore’s grievances without compromising the ability of other residents to access their

units and enjoy the benefits of the common areas.'* As such, the evidence indicates that, after

receiving Moore’s complaints, the Board addressed the perceived harassment of its agent, Mulazzi,

and tenant, Elders.

is true notwithstanding the fact that some internal e-mails among Board members suggest a growing impatience

with Moore’s complaints regarding the presence of residents near the Moore Unit or members of the Moore family.

” Plaintiffs have not argued that the Board should have, or even had the power to, evict any tenants; they only contend

that the Board failed to conduct a neutral and independent investigation.

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Plaintiffs also argue that the Board itself facilitated or ratified the discrimination, as

demonstrated by the fact that the Board failed to investigate Moore’s complaints, ejected Fox from

a Board meeting in September 2010, neglected to maintain meeting minutes after 2006, and

refused to permit the Moore Unit’s rental to an African-American tenant because of a cap on the

number of rentals at a time. However, the record shows that the Board did investigate Moore’s

complaints, as previously discussed, and the remaining facts are insufficient to support Plaintiffs’

claims because there is no evidence that these policies were enforced for some unlawful reason

rather than a lawful one. For example, while there have always been and continue to be owners

and residents of different backgrounds at the Vireum, nothing indicates that these policies were

not applicable to Vireum residents of a different race, sex, or age. See Haber, 847 F. Supp. 2d at

588 (plaintiff failed to show uninvited contractor was allowed into his apartment because of his

race where nothing in the record suggested that plaintiff “was being treated differently from tenants

of any other race”), Accordingly, no rational finder of fact could find that the Board ratified the

conduct of Mulazzi or Elders or otherwise facilitated discrimination of Plaintiffs based on

A.L.M.’s protected status.

To summarize, Plaintiffs have failed to establish that a hostile housing environment

existed; that Mulazzi or Elders acted with any discriminatory animus; or that the Board is liable

for the individuals’ actions, whether on a theory of vicarious liability or failure to intervene.

Defendant’s motion for summary judgment as to Plaintiffs’ FHA claims is therefore granted.

Il. Plaintiffs’ Claims Under 42 U.S.C. §§ 1981 and 1982

A. Applicable Law

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Section 1981 provides in pertinent part that “[ajll persons within the jurisdiction of the

United States shall have the same right in every State and Territory to make and enforce contracts

... as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). “[T]he term ‘make and enforce

contracts’ includes the making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Jd. §

1981(b). Section 1982 similarly provides that “[a]ll citizens of the United States shall have the

same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase,

lease, sell, hold, and convey real and personal property.” Jd. § 1982. To establish a claim under

Sections 1981 and 1982, a plaintiff must prove the following elements: (1) the plaintiffis a member

ofa... minority; (2) the defendant acted with the requisite intent to discriminate on the basis of

[the plaintiffs protected status]; and (3) the discrimination concerned one or more of the activities

enumerated in the statute. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., ‘7 F.3d 1085, 1087

(2d Cir. 1993). Additionally, “a plaintiff does not have to be a member of the . . . minority to bring

a claim under these statutes, but can be a plaintiff alleging a personal injury derivative of

defendant’s discriminatory actions against a... minority.” Puglisi v. Underhill Park Taxpayer

Assoc., 947 F. Supp. 673, 700 (S.D.N.Y. 1996),

B. Discussion

As with Plaintiffs’ claims under the FHA, Plaintiffs’ claims under Sections 1981 and 1982

fail. Plaintiffs have not presented evidence sufficient to conclude that A.L.M.’s race, national

origin, sex, or age was a motivating factor in any of the actions at issue, or that the Board failed to

adequately intervene in the perceived discrimination.

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Ill. Sanctions

A. Applicable Law

Federal Rule of Civil Procedure 11, which confers on a district court authority to sanction

a litigant or its counsel, provides, in relevant part:

By presenting to the court a pleading, written motion, or other paper . . . an attorney or

unrepresented party certifies that to the best of the person’s knowledge, information, and

belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary

delay, or needlessly increase the cost of litigation; and

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a

nonfrivolous argument for extending, modifying, or reversing law or for establishing new

law.

Fed. R. Civ. P. 11(b).

Rule 11(c)(2) provides for a “safe harbor” that gives the offending attorney or litigant an

opportunity to withdraw or correct a challenged submission so as to avoid sanctions. Under this

safe harbor provision, a motion for sanctions must initially be served only on the offending party.

In re Pennie & Edmons LLP, 323 F.3d 86 (2d Cir. 2003). If the challenged submission has not

been “withdrawn or appropriately corrected” by the offending party within 21 days of such service,

the motion for sanctions may be filed with the Court. Jd. A court may only sanction an attorney or

litigant that violates Rule 11(b) if these procedural requirements have been satisfied. See Lawrence

v. Richman Group of CT LLC, 620 F.3d 153, 156 (2d Cir. 2010) (“A court may sanction an

attorney, law firm, or party that violates Rule 11(b), but only after providing notice and reasonable

opportunity to respond.”) (citing Fed. R. Civ. P. 11(c)(1)).

“When considering whether to impose monetary sanctions based on meritless pleadings,

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‘[t]he operative question is whether the argument is frivolous, i.e., the legal position has ‘no chance

of success,’ and there is ‘no reasonable argument to extend, modify or reverse the law as it stands.’”

Ferguson v. Comm of Tax & Fin.,739 F. App’x 19, 22 (2d Cir. 2018) (quoting Star Mark Mgmt.,

Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 177 (2d Cir. 2012)). In

addition, “[i]n deciding whether the signer of a pleading, motion, or other paper has crossed the

line between zealous advocacy and plain pettifoggery, the court applies an objective standard of

reasonableness.” United States v. Int’! Bhd. of Teamsters, 948 F.2d 1338, 1344 (2d Cir. 1991)

(citation omitted); see also McCabe v. Lifetime Entm’t Servs., 761 F. App’x 38, 41 (2d Cir. 2019)

(“Rule 11 requires that the conduct in question be objectively unreasonable and therefore does not

require a finding of subjective bad faith.”). Finally, while courts have “broad discretion in

determining whether to impose sanctions under Rule 11,” Jn Re Welspun Litig., 16-cv-6792 (VB),

2019 WL 2174089, at *6 (S.D.N.Y. May 20, 2019) (citation omitted), such sanctions should “be

imposed carefully lest they chill the creativity essential to the evolution of the law,” Greenberg v.

Churst, 297 F. Supp. 2d 699, 703 (S.D.N.Y. 2004) (citations omitted).

B. Discussion

Defendant has moved for an award of sanctions under Rule 11 against A.L.M. and Moore,

both in his capacity as one of the Plaintiffs and as Plaintiffs’ counsel in this matter. (Def.’s Mem.

Supp. Mot. Sanctions, ECF No. 33.) Plaintiffs, for their part, have argued that Defendant failed to

comply with the procedural requirements set forth in Rule 11(c), that the motion is frivolous, and

that, if Defendant “does not voluntarily withdraw this frivolous motion, the Court should consider

sanctions against [Defendant] and its counsel under Rule 11(c)(3).” (Pls. Mem. Opp. Def.’s Mot.

Sanctions at 1, 6, ECF No. 43.)

24

Contrary to Plaintiffs’ assertions, Defendant did in fact comply with Rule 11’s safe harbor

provision. During a conference on May 16, 2018, at which both parties were present, Defendant

requested leave to file a motion for sanctions against Plaintiffs.'? (Def.’s Reply Mem. Supp. Mot.

Sanctions, Ex. A 15:13-15.) The Court granted this request and stated that such a motion could be

filed at the same time as Defendant’s motion for summary judgment, i.e., on September 7, 2018.

Ud. 15:16-25) The Board served Plaintiffs with the motion for sanctions on June 14, 2018 (Def.’s

Reply Mem. Supp. Mot. Sanctions, Ex. B), and did not file the motion with this Court until

September 7, 2018 (Def.’s Mot. Sanctions, ECF No. 31).

However, Defendant’s motion for sanctions fails on the merits, Although Plaintiffs’ claims

did not withstand summary judgment, it was not “patently clear” that their claims had “absolutely

no chance of success[.]” Eastway Constr. Corp. v. City of N.Y., 762 F.2d 243, 254 (2d Cir. 1985).

Nor is the Court convinced that A.L.M. or Moore acted for an improper purpose in bringing this

litigation. The Court is equally unpersuaded by Plaintiffs’ argument that Defendant’s Rule 11

motion is a “bad faith attempt to chill enforcement of the housing discrimination laws.” (Pls.’

Mem. Opp. Def.’s Mot. Sanctions at 7.)

As such, the Court declines to impose sanctions against either party.

CONCLUSION

Based on the foregoing conclusions, Defendant’s Motion for Summary Judgment is

GRANTED, Plaintiffs’ Cross-Motion for Summary Judgment is DENIED, and Defendant’s

3 Plaintiffs note that Defendant did not submit a pre-motion letter with the Court describing its intent to file a Rule

11 motion. (Pls. Mem. Opp. Def.’s Mot. Sanctions at 6, ECF No. 43.) While this may be true, as already noted,

Plaintiffs did share with the Court of its plan to file the Rule 11 motion during the May 16, 2018 conference (Def.’s

Reply Mem. Supp. Mot. Sanctions, Ex. A 15:13-25).

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Motion for Sanctions is DENIED. The Clerk of the Court is respectfully directed to terminate the

motions at ECF Nos. 25, 31, and 50, and to close the case.

SQ.ORDERED:..

Dated: August 2, 2019 ee ye”

White Plains, New York Op

NELSON S. ROMAN

United States District Judge

26