# Xia v. 65 West 87th Street Housing Development Fund Corporation

> District Court, S.D. New York · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10350042

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10350042

## How later opinions describe it (automated extraction)

- stating that one of the factors that can be considered in evaluating intentional discrimination is a departure from normal substantive criteria
- finding that because the plaintiff failed to show that he was financially responsible, the rejection of the application reasonable
- finding that an unlawful discrimination claim is inherently incompatible with good faith and the exercise of honest judgment and therefore the business judgment rule is not applicable
- finding that the plaintiff failed to raise an inference that defendant cooperative corporation acted in bad faith in rejecting the prospective purchaser of plaintiff’s shares in the coop for financial reasons

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EVA XIA and PAUL PRIVITERA,
Plaintiffs,
– against –
65 WEST 87TH STREET HOUSING OPINION & ORDER
DEVELOPMENT FUND 20-cv-3576 (ER)
CORPORATION, CHRISTINE
ELBERT, SAMANTHA PINKOWITZ,
ANTHONY SARMIENTO, and
ANGELA ROJO,
Defendants.
RAMOS, D.J.:
Eva Xia and Paul Privitera, a married couple, claim that members of the Board of
Directors of a building located at 65 West 87th Street discriminated against them by
denying their application to purchase an apartment in the building due to Xia’s protected
status as an Asian-American. �ey raise claims under the Fair Housing Act, the Civil
Rights Act of 1866, New York State Human Rights Law, and the New York City Human
Rights Law. Defendants move for summary judgment. For the reasons set forth below,
the motion for summary judgment is DENIED.
I. BACKGROUND
�e facts underlying this action are discussed in the Court’s November 30, 2021,
Opinion and Order denying Defendants’ motions to dismiss the complaint. Xia v. 65 W.
87th St. Hous. Dev. Fund Corp., No. 20 Civ. 03576 (ER), 2020 WL 7230961 (S.D.N.Y.
Dec. 8, 2020). �e facts are largely reproduced here, and they are supplemented by
additional evidence obtained through discovery.
A. �e Parties
Eva Xia, a Chinese American woman, and her husband, Paul Privitera, a white
man, began their search for a Manhattan home to purchase in mid-2019.1 �e couple had
two children at the time of the first application. In June 2019, they learned that Unit 4 of
65 West 87th Street (the “Building”) was for sale by Orlando Rymer, the owner of the unit.
�e unit was for sale at a below-market price because the Building was owned by a New
York Housing Development Fund Corporation (“HDFC”). �e Building is a five-unit,
self-managed HDFC.
An HDFC is a type of cooperative, or coop,2 that provides affordable housing to
individuals with qualifying incomes. In exchange for limiting the income of eligible
tenants to 165% of Area Median Income (“AMI”),3 an HDFC receives reduced real estate
taxes and financial assistance from New York City’s Department of Housing Preservation
& Development. Because prospective buyers are required to meet these income
requirements, the seller of a unit in a building owned by an HDFC must refer a buyer to
the Board of Directors for approval before a sale can be finalized. �e tenants of an
HDFC are both its shareholders and members of its Board of Directors. Defendants
Christine Elbert, Anthony Sarmiento, and Angela Rojo are Coop shareholders of the
Building, residents, and the Board members who reviewed and rejected Plaintiffs’
applications.
�e Building’s Certificate of Incorporation states that the Building will provide
housing for persons or families who earn “no more than 165% of the median income” of

1 Unless otherwise noted, all facts in Section I are taken from the Complaint, Doc. 1, and the parties’ Rule
56.1 Statements and Counterstatements. Docs. 138, 146, 151.
2 Owners of coop apartments are both shareholders in and tenants of the same apartment corporation. New
York Attorney General, Cooperatives, https://agny.gov/real-estate-finance-bureau/cooperatives. (last
visited March 29, 2023).
3 Area Median Income is the median income for a specific city, as defined each year by the United States
Department of Housing and Urban Development (“HUD”). See NYC HPD, Affordable Housing: Area
Median Income, https://www.nyc.gov/site/hpd/services-and-information/area-median-income.page. (last
visited March 26, 2023).
the statistical area “as determined from time to time by [HUD].” Doc. 134-1 at 5. For
the relevant years, the income caps for Plaintiffs in New York City were as follows:
$141,735 for 2017; $154,935 for 2018; $176,055 for 2019; and $187,605 for 2020.4
�e Certificate of Incorporation does not specify how the Board will determine
the income of an applicant, the application simply asks for “adjusted gross income as
reflected in your federal tax return,” without specifying which year’s cap the adjusted
gross income (“AGI”) will be compared to. Doc. 134-50 at 11. Defendants represent
that the procedure the Board utilized to assess whether an applicant meets the income cap
was comparing the income on applicants’ last two years of tax returns, along with the
family size, to the AMI chart. For example, if applying in 2019, like Plaintiffs did, the
Board would look at the income caps for 2017, 2018, and 2019 to assess eligibility.
B. �e Initial Offer
Xia and Privitera attended an open house for Unit 4 on June 23, 2019. At that
time, they spoke with Rymer’s real estate broker, Sandra Balan, who was employed by
Brown Harris Stevens.5 Balan indicated that in order to apply for the apartment Plaintiffs
were required to submit an offer form, a financial statement, and their two most recent tax
returns, which were for 2017 and 2018 at the time. �e couple submitted both an offer on
the Unit and the required income verification information that day. �e income
verification information included two IRS Tax Return Transcripts and the couple’s 2017
and 2018 tax returns. Balan performed a preliminary review of the Plaintiffs’ application
and determined that they would likely qualify to purchase the unit. She forwarded the
offer and application to Rymer, who accepted the offer on June 26, 2019.

4 In 2017 Plaintiffs had one child. Plaintiffs’ second child was born in 2019.
5 Balan is the mother of Samantha Pinkowitz, a formerly named defendant, who was also a shareholder in
the building but who did not participate in the review of Plaintiffs’ application. Pinkowitz was also
employed as a real estate broker by Brown Harris Stevens, as Balan’s assistant.
C. Due Diligence and the August 2019 Application
�e approval process began on June 28, 2019, when Balan provided Xia and
Privitera the Building’s by-laws and proprietary lease. �e couple’s lawyer, Justin
Waiser, emailed the Board on July 9, 2019 asking for further relevant information such as
the amount of the flip tax, maintenance fees, impending improvements to the building,

history of complaints in the Unit, any pending litigation, and financing. Doc. 134-29 at 6.
Elbert responded to the inquiries the same day. On July 10, Waiser formally introduced
the Board to his clients, writing, “�e other person on the email was my client Eva Xia.
She and her husband are my clients….” Id. at 4. Waiser made an additional request for
information about financing and insurance on July 11. Id. On July 12, Elbert asked
Waiser for the completion of a “Due Diligence Form” and the payment of the
accompanying $250 fee to continue the due diligence process. Id. at 3. �ere was no due
date given for this form or payment. Elbert sent this email only to Waiser; she did not
copy either Xia or Privitera. In response, Waiser asserted that he did not have any other
questions “other than finding out what percentage of financing the building allows” and

that “at this point [Plaintiffs] would not need to fill out the questionnaire.” Id. 2–3.
Again, on July 15 Waiser asked for more information about the Building, this time asking
for a copy of the Building’s insurance policy. On July 16, 2019, the Board repeated its
request for the Due Diligence Form and fee without addressing Waiser’s additional
questions.
As the approval process continued, Xia and Privitera entered into a contract with
Rymer on July 18, 2019 to purchase the Unit for $900,000 in cash, with a $90,000
deposit. �e purchase price was equal to or above the sale price of recent apartment sales
in the building, which were also purchased with cash. �e contract required confirmation
that the purchaser had examined the “Lease, the Corporation’s Certificate of Corporation,
By-laws, House Rules,” and the most recent financial information related to the
corporation. �e contract was contingent on approval by the Board.
�e next day, July 19, Balan emailed Xia and Privitera a copy of the HDFC’s

2016 purchase application. �is same application had been approved for use in
connection with the most recent purchase of a Unit in 2016, however, Balan had not
obtained the copy of the application from the Board.
D. �e Special Committee and Revised Application
Upon learning that the 2016 purchase application was sent to Plaintiffs without
Board approval, Elbert initiated a special sales committee via email to Sarmiento and
Rojo on July 29, 2019. Sarmiento and Rojo were “the only ‘non-conflicted’ board
members” because Rymer was the seller and Pinkowitz’s mother and employer was

acting as the broker. Indeed, in a Brown Harris Stevens listing for Unit 4 dated June 26,
2019, Balan and Pinkowitz were both listed as the brokers. Additionally, on June 19,
2019, Xia sent an inquiry asking about the flip tax of the Unit via the StreetEasy real
estate platform, and Pinkowitz responded. Balan was copied on this email.
Elbert informed Sarmiento and Rojo, in relevant part, that: (1) Waiser had to be
told repeatedly to submit the due diligence form and fee; (2) the buyers were given the
2016 version of the application without Board approval; (3) due to Waiser’s “refusal” to
pay the required due diligence fee, Elbert wanted to incorporate the fee into the purchase
application; (4) the Board had the ability to put the sale on hold; (5) there was a need to
remove Rymer and Pinkowitz from the Board until the sale for Unit 4 closed due to their
interest in the sale;6 (6) the best course of action was either a special sale committee
comprised of non-interested board members or removing Rymer and Pinkowitz by a vote
of a regular or special board meeting; and (7) the revised application should include an
increase in the application fee, require a due diligence fee, revise the credit/criminal

background check process to ensure compliance with any new legislation, require any
buyer to prove the sale of their then current property and proof of primary residence, and
require a disclosure of conflict of interest and affiliation. See July 30, 2019 email, Doc.
134-35 at 3–5.
On July 30, 2019, Balan sent an email to the Board informing them that the
contract for Unit 4 had been signed and noting it had been brought to her attention that
the application sent to Plaintiffs was under review and may have a few revisions.” Doc.
145-29 at 3. This was confirmed by the special committee on August 7, 2019. Id at 2.
After a few email exchanges amongst Elbert, Sarmiento, and Rojo, on August 2,
the group scheduled a special board meeting for August 4 at noon, but did not inform
Pinkowitz or Eliana Pena,7 until the day before at 1:22 p.m.; less than 24 hours’ notice.

See “Special Board Meeting Tomorrow” email, Doc. 145-4. The relevant by-law states
that “special meetings … may be called… on one day notice.” Doc. 145-33 at 10.
The only attendees at the special board meeting were Elbert, Sarmiento, and Rojo,
who established themselves as a special committee “without a conflict of interest… to

6 In a July 29 email Elbert stated that Pinkowitz had information she should not have known and concluded
that there is “proof of an ongoing conflict of interest.” Doc. 134-35 at 3.
7 Pena typically acted as a proxy on the Board for her brother Rymer, who was the seller of Unit 4. Doc.
144 at 6 n.2.
deal with the sale of Unit #4.” See August 4, 2019 Minutes of Board Meeting, Doc. 145-
5.
On August 22, 2019, Plaintiffs submitted the application to Balan, which was the
2016 version that Plaintiffs had been provided. However, since by July 30, 2019, Balan

was aware that the application was being revised, she did not submit this application to
the Board. Balan Dep. 135:23–25. On August 29, 2019, Rymer sent an email to the
special committee asking why the application was being revised at this time and noting
that a delay may cause him to lose the sale. Doc. 145-6 at 3. Rojo replied to only the
special committee members saying “I don’t know if we want this kind of neighbor
already (supposedly) pressing.” Id. at 2. The special committee replied to Rymer stating
that the sale of an apartment can be a lengthy process and that based on Plaintiffs’ failure
to pay the $250 due diligence fee, Plaintiffs “may not be a good fit for the building.”
Doc. 134-42 at 4–5.
It was only on September 5, after the August 29 email the special committee

sent to Rymer, that Xia and Privitera learned about the required $250 fee and due
diligence form from Waiser. Plaintiffs submitted the payment to the Board on
September 8, writing an apology for the miscommunication and stating that they “would
have submitted the payment immediately” if they had known about it. After receiving
the apology, Rojo wrote an email to the special committee saying “sorry to say I’m not
feeling it.” Doc. 134-42 at 4. �e Due Diligence form was submitted to the Board the
next day, on September 9, 2019. Doc. 134-43. In another email to the special
committee sent on September 11, 2019, Rojo said
After reading and really thinking forward with an open fair mind- the
present situation with [Pinkowitz/Balan] … and this lawyer involvement in
the sale of unit 4- I must admit [at] this point I’m extremely very
uncomfortable and not satisfied with any of them and I’m thinking we
should reject the applicant.

Doc. 145-8 at 2.
On September 27, 2019, the special committee sent Balan the revised application.
Doc. 134-48 at 2. �e revised application required approximately $12,000 more in fees
and deposits than the 2016 application form, including a $500 application fee (increased
from $350), a $1,000 financing fee (increased from $300), a new $250 Due Diligence
fee,8 a new $10,000 refundable primary residence guarantee deposit, and a new $1,000
refundable insurance guarantee fee.9 See 2019 Application form, Doc. 134-50 at 4.
Balan testified that she found these fees to be “astronomically high” and unlike anything
she has ever seen in a HDFC coop. Balan Dep. 56:24–57:9.
It also required several new or revised components: (1) a completed due
diligence application; (2) clear and legible copies of photo identification for all parties to
the sale (including all purchasers, sellers, brokers, and attorneys) and all proposed
occupants of the apartment; (3) completed financial statement as of the most current
month end (new specification); (4) the past three (revised from two) months of statements
(bank, brokerage, retirement accounts, etc.) supporting each asset and each liability
claimed on the financial statement and all supporting statements; (5) data verification and
background check authorization form; (6) Smoking Policy form; (7) and a conflict of
interest disclosure statement, which included:

8 Because Plaintiffs already paid the Due Diligence fee, they did not need to pay it again with submission of
the November 19 application. See November 18, 2019 email from special committee, Doc. 134-52 at 2.
9 �e credit/background check fee was reduced from $108.63 per person to $40 per person, for a net
increase in fees is $11,962.74.
• Copies of all signed contracts between the parties (in this case, that
included the contract of sale, the contract between Rymer and Balan, the
contract between Rymer and his attorney, Murrey Targownik,10 and the
contract between Plaintiffs and their attorney Waiser);

• A declaration of affiliation of professional or personal relationship
between all parties in the form of a table;

• A signature affirmation of each party; and
• Copies of photo identification of all the attorneys and brokers involved in
the sale.

See Blackline of 2016 and 2019 application, Doc. 134-49; see also 2019 Application
form, Doc. 134-50 at 45.11
E. �e November 2019 Application
Plaintiffs submitted the revised application to the Board on November 19, 2019.
Despite approximately $12,000 in fees, the special committee consented to Plaintiffs’
request to pay only the $500 application fee and the $40 credit/background check fee
with their application and for the remainder of the fees to be due at closing. Doc. 134-52
at 2.

10 Murrey Targownik is Sandra Balan’s husband and Samantha Pinkowitz’s stepfather.
11 �e components of the application that remained the same are: contract of sale; fee agreement for
purchaser and seller; apartment usage affirmation; basic information form; sales application worksheet;
purchase application; copies of each applicant’s two most recently filed complete and signed Federal
Income Tax Returns, inclusive of all W-2/1099 statements and all schedules; completed copy of Form
4506-T (Request for Transcript of Tax Return) for each applicant’s two most recently filed Federal Income
Tax Returns; four recent and consecutive pay stubs for each applicant; three personal reference letters for
each applicant; two professional/business reference letters for each applicant; two financial reference letters
for each applicant; reference letter from a landlord/managing agent speaking to monthly charges, length of
occupancy, and whether or not applicant is in good standing/has been an ideal tenant; proof of ownership of
any homes or residential properties applicant currently owns and a statement about the applicant’s plans for
that residence; employment verification letter for each applicant; pet rules and regulations; and the
statement of interest.
�e application included a photo of Xia and her family, and the cover letter
mentioned that Xia was born in China. Of the required documents, Plaintiffs failed to
provide or incorrectly submitted the following:
• Photo identification for seller and buyer attorney.

• In the purchase application section: Plaintiffs failed to list the lot of land
they owned in California the preceding three years. Xia Dep. 29:5–17.
�is lot was sold on December 27, 2017. See 2019 Application Doc. 134-
5 at 35.

• In the completed financial statement section: Plaintiffs failed to list health
saving account assets, student loan and Home Depot liabilities, and
projected monthly expenses (student loan payments, maintenance for
current co-op, Home Depot debt, $640-780 weekly for child care).
Additionally, the completed financial statement was dated July 31, 2019
and the amount in the statements did not correspond to that date. Nothing
was provided as of October 31, which was the most current month end
from the November 19 submission.

• In the past three months of statements section of the application: the data
provided was from July–September, despite a submission date of
November 2019, thus the October information was missing; all Ally Bank,
Schwab, and 529 savings account statements were missing; “some” of the
Marcus by Goldman Sachs, retirement fund, and mortgage statements
were missing; there were no Home Depot debt or student loan debt
statements provided.12

• In the Federal Income Tax Returns section: W2s for 2017 were missing,
as well as the 1099s for 2017 and 2018.

• In the personal reference letters section: instead of receiving three letters
per applicant, there were three letters submitted on behalf of both Xia and
Privitera and one for Xia.

• In the financial reference letters section: instead of receiving two letters
per applicant, there were two letters total, one letter submitted on behalf of
both Xia and Privitera and one for Xia.

• In the conflict of interest disclosure statement section: Rymer’s attorney
and broker, and Plaintiffs’ attorney refused to provide their respective

12 Plaintiffs argue that because they did not receive monthly statements for these two expenses, they were
unable to submit those documents with their application. See Plaintiffs’ Opp., Doc. 144 at 25.
contracts; the attorneys did not sign the affirmation, and the nature of
“familial” relationships indicated in the table were not explained (e.g.,
how exactly different parties were related to one another).

See Unit 4 Purchase Application Review, Doc. 134-12; see also 2019 Application, Docs.
134-3, 134-4, 134-5, 134-6.
�e application specified that the couple was living in an HDFC in Midtown they
had owned since December 2014, and that before that, from May 2013 until December
2014, they lived in a Harlem condo they had owned. Doc. 134-3 at 51–52, 58. However,
in their 2018 tax return, Plaintiffs indicated that the Harlem condo was sold in February
2018, leaving a discrepancy of over three years of unreported information, such as
potential rental income. See 2019 Application Doc. 134-5 at 7.
Plaintiffs’ financial documents indicated that their AGI for 2017 and 2018 was
$174,955 and $136,242, respectively. Docs. 134-5 at 28, 134-4 at 70. �e 2017 tax
return included capital gains from the sale of the property the couple owned in California.
Doc. 134-5 at 35. �e 2018 tax returns did not include the capital gains from the couple’s
sale of the condo in Harlem in 2018, id. at 7, as Plaintiffs claimed a homestead
exemption.13 Defendants allege that the exemption was claimed “wrongfully” because
Plaintiffs had not resided in the Harlem condo for the minimum two-year period required
by the exemption. Plaintiffs now claim that they lived in the Harlem condo from May
2013 until “summer 2015,” thus meeting the 2-year residency and ownership
requirement. See Plaintiffs’ Opp., Doc. 144 at 20.

13 In order to be eligible for this exemption, a tax payer must meet the ownership and residence
requirements (owning the home for at least 24 months out of the last 5 years leading up to the date closing
and having used it as their residence for at least 24 months of the previous 5 years). See 26 U.S.C. § 121;
see also IRS, Topic No. 701 Sale of Your Home, https://www.irs.gov/taxtopics/tc701 (last updated Jan. 27,
2023).
�e special committee agreed, via email, to have the Building’s attorney, Shapiro,
conduct an initial review of the November 2019 application, checking for compliance
with income caps and tax disclosures, as well as general completeness. Doc. 145-20.
However, before receiving Shapiro’s report, Elbert sent an email to Sarmiento and Rojo

stating that she “took a peak [sic]” and was “ready to reject the application.” Doc. 145-
11 at 2. She also stated “of course we will wait for [Shapiro’s] decision” and that perhaps
inviting the applicants to reapply with different brokers/attorneys, or with full discourse
could be a path forward. Id. Elbert expressed concern about the lack of broker contract
and said she “know[s] for a fact that Pinkowitz was originally a co-broker.” Id. Rojo,
without having reviewed the application, and before Shapiro had submitted her report,
responded that she does not do well with dishonest people and that her “vote is to reject
the application.” Id.; see also Rojo Dep. 164:2–166:19.
�e special committee conducted a review of the submission and noted concerns
about the frequency with which Plaintiffs sold property (the California lot in 2017 and the

Harlem condo in 2018). Other aspects of the 2019 application that concerned the special
committee were that the gains from the sale of the Harlem condo were reported as non-
taxable, the potential IRS audit implications if the sale of the Harlem condo were indeed
taxable, and possible unreported income from the rental of the Harlem condo after
Plaintiffs moved. �e application was deemed incomplete and rejected by the special
committee.
Notably, the special committee never informed Balan or Plaintiffs what was
deemed to be missing or incomplete from the November 2019 application. Elbert Dep.
181:8–182:6. Balan testified that in a meeting with Shapiro, Shapiro told her that the
November 2019 application “itself was fine,” Plaintiffs were “income qualified to
purchase” the Unit, and that they just needed to supplement the application with affidavits
and W2s. Balan Dep. 90:7–11, 91:15–20.

F. �e February 2020 Application and Rejection
Balan emailed Xia and Privitera on January 8, 2020, advising them of additional
requirements that Shapiro said that the application now required. According to Balan,
Plaintiffs were now required to submit notarized affidavits stating they had no conflicts in
the transaction. �e special committee also required that the Plaintiffs submit another
application package with updated financial information. �e couple began filling out the
application form over the next month.
�e parties dispute whether Defendants required affidavits with the February 2020
submission, or whether Plaintiffs volunteered the affidavits. Doc. 133 at 18. On January
10, 2020, Elbert sent an email to the special committee expressing that they only “wanted
3 things: completed application, completed broker agreement, and removal of seller
attorney” and that she did not understand why Plaintiffs now “want to add all these
affidavits, statements, substitutions, revisions, above and beyond those 3….” See January
10, 2020 email, Doc. 134-57. Although Balan requested edits on the affidavit forms on
January 23, 2020, and was told Shapiro would provide them soon, Shapiro did not send
them to Plaintiffs until February 2, 2020. Doc. 134-58. In a February 14 email, Balan
informed Plaintiffs that the special committee had set February 17, a federal holiday, as
the deadline for submission of all forms. A deadline had never been imposed on any
other buyers. See Balan Dep. 93:9–21 (stating that in her 22 years of experience she had
never had a Board give her a deadline for when a package had to be submitted); see also
Elbert Dep. 189:22–190:3 (stating that to her knowledge, the Board had never set a
deadline for submission in any of the prior sales that she was involved in).
Xia and Privitera submitted their third application, and the second application to
the special committee, on February 17, 2020. Along with the same photo of Xia and her
family, this application included eight separate signed affidavits,14 a $90,000 cash
deposit, and financial documents demonstrating their estimated total 2019 and 2020 AGI.
�e next day, after reviewing the Plaintiffs’ application, Rojo emailed the special
committee saying she was “baffle[d] with all that … B[ullshit] and garbage these people
can write down on paper.” Doc. 145-12 at 5.
�e financial documents reflected an AGI of $139,493 and $134,100 for 2019 and
2020, respectively. At the time, Plaintiffs owned and lived in a HDFC in Midtown, which
they indicated they planned on selling once their purchase of Unit 4 was approved. Doc.
134-7 at 47. Defendants argue that the income from the sale would place the Plaintiffs
above the income cap for 2020. Doc. 133 at 12.
�e February application included all of the required financial documents, with
the exception of (1) the 2017 W2s, (2) 1099s for 2017–2019, (3) K1s for 2017–2019, and
(4) 3 months of statements from the Plaintiffs’ Schwab brokerage account. �e February
application was also missing the required photos and signature affirmation of Waiser and

14 �e affidavits were not filed as exhibits in this case, but according to the Complaint the special committee
required (1) two affidavits from Plaintiffs swearing that they have no prior relationships to anyone involved
in the sale or the Building, and that they have attached the retainer agreement with their attorney, and a
copy of their attorney’s photo ID; and swearing that the only agreement they had with Balan was a
disclosure notice that she was Rymer’s broker, and that the only agreement they had with Rymer was the
purchase contract; (2) two affidavits from Rymer swearing that he would not use his attorney, Murrey
Targownik, in this transaction or any other transaction at 65 W 87th St. HDFC, that he would not pay
Targownik, and that he will proceed pro se; and swearing that he is resigning from the Board, that he has no
relationship to Plaintiffs or Plaintiffs’ attorney, and that he has attached the only agreement between him
and Balan; (3) one affidavit from Waiser swearing that he has no prior relationships to anyone involved in
the sale or the Building, and that Plaintiffs are now entering into an amendment to the contract of sale; (4)
one affidavit from Targownik swearing that he is no longer the attorney for Rymer, and that Rymer will not
pay him; (5) one affidavit from Balan swearing that she has no prior relationships with Plaintiffs or their
attorney, and that she has attached her agreement with Rymer; and (6) one affidavit from Pinkowitz
swearing that she has a direct conflict in this transaction, and that she has no prior relationships with
Plaintiffs or Plaintiffs’ attorney. Doc. 1 ¶¶ 177–184; see also February 18, 2020 email from Elbert
summarizing the affidavits, Doc. 134-10 at 59; see also Doc. 145-30 (Balan handwritten notes).
Targownik.15 Doc. 134-6 at 27. In place of the signed contract between parties, Rymer’s
attorney, Targownik, and broker, Balan, both submitted a letter informing the special
committee that they are unable to supply the contract because it was protected by
attorney-client privilege. Id. at 47, 49. �e Plaintiffs’ attorney, Waiser, did the same. Id.
at 51.
�e special committee met on February 26, 2020 to discuss the application, Doc.
134-64, and noted that, in addition to the missing financial documents discussed above,
the application was missing student loan statements and the Home Depot consumer debt
statements. Additionally, the special committee raised concerns about:
• �e use and occupancy of the Harlem condo;
• Income generated by the Harlem condo;

• �e homestead exemption Plaintiffs claimed on their taxes regarding the
Harlem condo;
• �e purpose of recurring cash withdrawals averaging $680 per week;16
and
• Contradictory claims in the conflict of interest affidavits.17
�e special committee did not note any concerns about the income caps for 2017,
2018, 2019, or 2020 in the meeting notes, but argue in their briefs that Plaintiffs did not
meet the income cap for 2017 or 2018, and that they could not determine whether the

15 Instead of submitting a copy of their attorneys’ photo identification, Plaintiffs included a page that stated
“�e attorney’s will be happy to present their photo ID’s to the board at closing” with their application.
Doc. 134-3 at 32.
16 Plaintiffs subsequently advised that these withdrawals were for their nanny’s salary, whom they paid in
cash.
17 In an email sent to the special committee on February 18, 2020, Elbert characterizes the affidavits as
“basically garbage,” saying that Rymer and Balan “attest[] to things the board knows are false,” and Xia
and Privitera “attested to something they could not actually know.” Doc. 145-12 at 6.
income caps for 2019 and 2020 were met. �e special committee concluded that the
application was incomplete, inadequate, and inconsistent and voted unanimously to reject
the application. �e special committee transmitted the rejection on March 2, 2020 via
Shapiro, but no reason was given. �ereafter, Xia and Privitera wrote to the Board on

multiple occasions, both through email and certified letters, but did not receive a
response. See March 11, 2020 email from Xia asking for reconsideration, Doc. 145-21 at
3–4. As of the date of Plaintiffs’ complaint on May 7, 2020, Unit 4 had yet to be sold. In
total, the special committee reviewed two of Plaintiffs’ applications: one submitted on
November 19, 2019 and one submitted on February 17, 2020. �e first application,
submitted to Balan on August 22, 2019, was never forwarded to the Board for review.
G. Post Rejection
After rejecting Plaintiffs’ February 2020 application, the form of which had been

revised in 2019, the Board again revised the application as follows:
• Copies of photo identification of all the attorneys and brokers involved in
the sale were no longer required;

• Only two months of financial statements were now required, compared to
three months in the 2019 application;

• �e conflict of interest disclosure was no longer required; and

• �e statement of interest was no longer required.
See 2020 Application, Doc. 145-16.
Additionally, there were a number of changes to the fees—with the application
fee reverted to $350, the $250 due diligence fee removed, the $10,000 refundable primary
residence guarantee fee removed, and the $1,000 refundable insurance guarantee fee
removed.18 �is represents a total decrease of approximately $11,400 in fees. Id.
On March 24, 2020, twenty-two days after rejecting Plaintiffs’ second application,
Elbert emailed the Urban Homestead Assistance Program (UHAB), a non-profit
organization that provides support to HDFCs, to ask about the definition of “income” and
the correct review period for evaluating purchasers to HDFCs. Doc. 145-27 at 3. �e
UHAB advised Elbert that the Board should use an applicant’s most recent tax return to
determine whether they are qualified to purchase in the Building.
H. Experiences of Other Tenants
In support of their claims of anti-Asian bias, the Plaintiffs make several
allegations regarding the experiences of other tenants with the Building’s Board. �ey
allege that Cindy Zhou, an Asian-American and former resident of the Coop, suffered
discrimination by members of the Board. Zhou was Rojo’s roommate and tenant in 2016
for approximately one year, before Rojo asked her to move out to make space for her
niece. Rojo Dep. 93:16–94:6, 96:21–97:2. In 2017, Zhou moved into Rymer’s
apartment, which is directly below Rojo’s apartment. Consequently, Zhou and Rojo had
a falling out and Rojo felt hurt by the fact that neither Zhou nor Rymer informed her that
Zhou was moving into the apartment downstairs. Id. 96:7–23, 195:6–10.
In Board emails, Zhou has been described as a “squatter” by Rojo and
characterized – similarly to Plaintiffs – as “not a good fit” for the building. Rojo also
stated that she did not “approve of [Zhou’s] residence in our FAMILY oriented
BrownStone [sic]” in a January 27, 2020 email to the Board. Doc. 145-13. In March
2020, Rojo also sent text messages to her neighbors raising concerns about Zhou’s lack
of hygiene, saying “the tenant living on the 4th floor… for sure doesn’t clean[] disinfect[]
healthy hygiene” and “does her shopping from Chinatown.” Doc. 145-14 at 19.

18 �e credit/background check fee was reverted to $108.63 per person for a total net increase in fees of
$11,537.26.
Plaintiffs submit that Rojo is referring to Zhou. However, in her deposition, Rojo
testified that she was “probably” referring to a different tenant on the fourth floor. Rojo
Dep. 204:21-206:8.
According to Rymer, Rojo, who lived in the apartment above Rymer’s, also
persistently pounded on the floor when Zhou lived with Rymer. See Amended Complaint
in related case, Rymer v. 65 West 87th HDFC et al., Doc. 134-70 ¶ 153. Additionally,
Elbert referred to Zhou as “Miss Asian” in a May 24, 2017 text message exchange with
Rojo. Doc. 145-15 at 2. No person of Chinese or Asian descent has ever been approved
to purchase an apartment in the building. According to Plaintiffs, the only other buyers
who have been rejected also consisted of a European husband and Asian wife. See Rojo
Dep. 62:2–68:20 (confirming that the applicants were rejected, that Rojo was involved in
the sale, and that there was a note in the Board’s communications about the applicant’s
father being in Taiwan).
Lastly, with respect to Asian-Americans, Balan testified that there was an incident
in which “Rojo attempted to disinfect” a prospective Asian buyer with Lysol after she
finished showing Unit 4 to another potential buyer. As they were leaving, Rojo, who was
in the lobby, began to spray Lysol. Balan testified that “it almost felt like an assault” and
that “it was bizarre.” See Balan Dep. 102:18–103:5, 103:13–16.
In contrast to Plaintiffs’ experience, all three of the purchases that preceded
Plaintiffs’ application closed in four months or less. Defendant Sarmiento used the same
application Plaintiffs originally submitted to Balan when he and his wife purchased Unit
1 in 2016. He was interviewed by the Board within one month of signing the purchase
contract and closed the sale within three months. Moreover, during Sarmiento’s
application process, similar to Plaintiffs, he failed to separately include several
underlying tax forms. See Sarmiento Application, Doc. 145-17. Unlike Plaintiffs,
however, his application was accepted. �e sale of Unit 2 to Pinkowitz in 2015 took two
months after contract-signing, and the sale of Unit 3 to Elbert took four months.
I. Procedural History
�e Complaint was filed on May 7, 2020. Doc. 1. Pinkowitz was voluntarily
dismissed on June 12, 2020. Doc. 18. A conference was held on July 7, 2020 in which
Defendants were granted leave to file a motion to dismiss. On July 28, 2020, Defendants
moved to dismiss on grounds that Plaintiffs were not financially qualified applicants and
did not allege facts that raised an inference of discrimination. Doc. 27.
On December 8, 2020, the Court denied Defendants’ motion, concluding that
Plaintiffs’ allegations, taken as true, did indicate a possibility of discrimination and
therefore presented a plausible disparate treatment claim. Doc. 62. On February 8, 2021,
Defendants filed an answer to the Complaint. Doc. 72. Discovery proceeded.
On July 22, 2021, during a pre-motion conference, the Court granted leave for
Defendants to file a motion for summary judgment. Between August 6 and October 22,
2021, there were a number of motions filed under seal regarding Pinkowitz’s deposition.
On December 1, 2021, the parties were directed to submit a joint proposed protocol for
obtaining her testimony by December 17, and that protocol was approved. Docs. 103–5.
On April 20, 2022, the parties submitted another status report indicating that discovery
was concluded. Doc. 111. On April 29, 2022, the parties informed the Court that they
were pursuing private mediation. Doc. 113. �e parties scheduled a private mediation on
June 23, 2022, Doc. 115, but it was ultimately unsuccessful. Doc. 118. In light of this,
the parties requested a briefing schedule for Defendants’ motion for summary judgment,
which the Court granted. Id.; Doc. 119. Defendants filed the instant motion on August
29, 2022. Doc. 132.
II. LEGAL STANDARD
A. Motion for Summary Judgment
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “An issue of fact is
‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-
moving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467
(S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d
Cir. 2009)). A fact is “material” if it might affect the outcome of the litigation under the
governing law. Id. The party moving for summary judgment is first responsible for

demonstrating the absence of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, “the nonmoving
party must come forward with admissible evidence sufficient to raise a genuine issue of
fact for trial in order to avoid summary judgment.” Saenger v. Montefiore Med. Ctr., 706
F. Supp. 2d 494, 504 (S.D.N.Y. 2010) (internal quotation marks omitted) (citing
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)).
In deciding a motion for summary judgment, the Court must “construe the facts in
the light most favorable to the non-moving party and must resolve all ambiguities and
draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156,
164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d

Cir. 2004)). However, in opposing a motion for summary judgment, the non-moving
party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March
of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). To defeat a motion for
summary judgment, “the non-moving party must set forth significant, probative evidence
on which a reasonable fact-finder could decide in its favor.” Senno, 812 F. Supp. 2d at
467–68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256–57 (1986)).
For claims under New York law, the Court should determine how the New York
Court of Appeals would decide them. Reddington v. Staten Island Univ. Hosp., 511 F.3d
126, 133 (2d Cir. 2007) (citation omitted). Decisions from New York’s intermediate
appellate courts are helpful indicators, but this Court is not bound by those decisions. Id.
(internal quotation marks and citations omitted).

B. McDonnell Douglas
Claims for disparate treatment under each of Plaintiffs’ claims—the Fair Housing
Act (“FHA”), §§1981 and 1982, NYSHRL, and NYCHRL— are evaluated under the
McDonnell Douglas burden-shifting framework. See Robinson v. 12 Lofts Realty, Inc.,
610 F.2d 1032, 1038 (2d Cir. 1979); Haber v. ASN 50th St. LLC, 847 F. Supp. 2d 578, 588
n.5 (S.D.N.Y. 2012).
First, the plaintiff must establish a prima facie case of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–03, 9 (1973). Once a plaintiff has established
a prima facie case of discrimination, the burden shifts to the defendant to assert a
legitimate, nondiscriminatory rationale for the challenged decision. Id.
If the defendant makes such a showing, the burden shifts back to the plaintiff to
demonstrate that the defendant’s proffered reason is pretextual, and that discrimination
was the real reason for the defendant’s actions. See Schnabel v. Abramson, 232 F.3d 83,
87 (2d Cir. 2000). �e ultimate burden of persuading the trier of fact that the defendant
discriminated always remains with the plaintiff. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (1999). Summary judgment is appropriate if no reasonable jury
could find that the defendant’s actions were motivated by discrimination. Schnabel v.
Abramson, 232 F.3d 83, 91.
III. DISCUSSION
Plaintiffs contend that Defendants rejected their application to purchase Unit 4
because Xia is Asian-American. Defendants argue that their decision to reject the
application had nothing to do with her national origin and that the decision was based on
concerns raised by the couple’s financial statements and incomplete and inconsistent
applications. Doc. 133 at 10–11. Plaintiffs assert that this rationale is pretextual.
Defendants move for summary judgment on the grounds that Plaintiffs have failed to
adduce evidence to prove that the special committee’s reasons for rejecting their
application were pretextual.
A. Prima Facie Case
To make out a prima facie case, a plaintiff must demonstrate: (1) that she is a
member of a protected class; (2) that she applied for and was qualified to rent or purchase
the housing for which she applied; (3) that she was rejected; and (4) that said housing
opportunity remained available. See Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003).
Plaintiffs have established a prima facie case of discrimination: (1) Xia, a Chinese-
American woman, is a member of a protected class; (2) Plaintiffs sought and were
qualified to purchase the apartment;19 (3) they were rejected; and (4) the apartment
remained available thereafter. �e Court notes that Defendants begin their argument at
the second step of the analysis.
B. Defendants’ Proffered Nondiscriminatory Reasons
Once Plaintiff establishes a prima facie case of discrimination, the burden of
production shifts to Defendant to introduce evidence that “taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the adverse action.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). �e Defendants’ burden is one of
production, not persuasion. Reeves 530 U.S. at 142. However, under step two,
Defendants cannot prevail by “offering a legitimate and sufficient reason for [their]
decision if that reason did not motivate [them] at the time of the decision.” Price
Waterhouse v. Hopkins, 490 U.S. 228, 52 (1989).

19 Defendants do not argue that Plaintiffs were unqualified to purchase the Unit in response to Plaintiffs’
prima facia case.
Business Judgment Rule
Defendants argue that under the business judgment rule they have a complete
defense against a claim of discrimination because the submissions were “deficient and
misleading,” and the Coop therefore had a duty to reject the Plaintiffs’ application. Doc.
133 at 12–13. Because coop boards are vested with the authority to determine who

becomes a shareholder, Defendants argue, it is important to protect the shareholders from
applicants who might negatively affect the financial profile of the building. See Woo v.
Irving Tenants Corp., 276 A.D.2d 380 (2000) (finding that the disputed actions of the
cooperative in rejecting plaintiff as a purchaser of its shares were within the protective
ambit of the business judgment rule); see also Chapman v. 2 King St. Apartments Corp.,
8 Misc. 3d 1026(A), 806 N.Y.S.2d 444 (Sup. Ct. 2005) (“Coops must worry about the
future ability of their cooperators to pay maintenance, as their failure or delay to do so
jeopardizes the entire enterprise.”). Further, Defendants contend that this authority to
reject applicants whose financial profiles do not meet a board’s standards has been
widely recognized by the courts. See Fishman v. Charles H. Greenthal Mgmt. Corp., 82

A.D.3d 425, 426 (2011) (finding that the plaintiff failed to raise an inference that
defendant cooperative corporation acted in bad faith in rejecting the prospective
purchaser of plaintiff’s shares in the coop for financial reasons); see also Gleckel v. 49 W.
12 Tenants Corp., 52 A.D.3d 469, 470 (2008) (finding that because the plaintiff failed to
show that he was financially responsible, the rejection of the application reasonable).
In response, Plaintiffs first argue that the business judgment rule does not apply to
discrimination claims. Indeed “arbitrary or malicious decision making, or decision-
making tainted by discriminatory considerations is not protected by the business
judgment rule.” Fletcher v. Dakota, Inc., 99 A.D.3d 43 (2012); see also Maun v.
Edgemont at Tarrytown Condo., 156 A.D.3d 873, 874 (2017) (finding that an unlawful
discrimination claim is inherently incompatible with good faith and the exercise of honest
judgment and therefore the business judgment rule is not applicable) (internal quotations
omitted). The Court agrees that “further judicial scrutiny is triggered in instances of …

unlawful discrimination” and that the business judgment rule does not apply as a defense
in this matter. Cannings v. E. Midtown Plaza Hous. Co., 941 N.Y.S.2d 536 (Sup. Ct.
2011), aff’d, 104 A.D.3d 443, 960 N.Y.S.2d 413 (2013).
Plaintiffs’ Applications Were Incomplete
The record reflects that the applications were incomplete, as specific documents
that were requested were not included. However, there is a dispute as to whether the
information that Defendants claim was missing was otherwise incorporated into the
application, and how the income cap should have been calculated. Nonetheless,

Defendants meet their burden at the second stage of the McDonnell analysis by providing
evidence that if “taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.” St. Mary’s Honor Ctr., 509 U.S. at
509.
a. Plaintiffs Failed to Provide Required Documents
Defendants claim that the November 2019 application was “riddled with
inconsistencies, misrepresentations, and red flags about its truthfulness.” Doc. 133 at 10–
11. First, Defendants allege that the November 2019 application omitted financial
documents related to income, assets, and liabilities. As to income and assets, it is
undisputed that the Plaintiffs’ 2017 W2s and 1099s, K1s for 2017–2019, and statements
for their Schwab brokerage account were not included. �ese missing documents are
detailed in the special committee meeting notes dated February 26, 2020. See Doc. 134-
64 at 2. �e meeting notes also state that the application was “incomplete, inadequate,
and inconsistent.” Id. at 3. And as to liabilities, in response to Defendants’ allegations
that Plaintiffs failed to include the monthly student loan or Home Depot statements,
Plaintiffs argue that there were no student loan or Home Depot statements to provide
because they did not receive monthly statements for the charges.
b. Plaintiffs Failed to Report Rental Income for the Harlem Condo
As part of the November 2019 application, Plaintiffs were required to identify all
residential ownership or interests within the last three years. Doc. 134-3 at 56. Plaintiffs
failed to disclose two properties that they owned within three years preceding the
application: a lot of land in California and a condo in Harlem. See Xia Dep. 29:5–17,
159:25–161:12 (Xia testifying she jointly owned a lot of land in Riverside, California and
that she owned the Harlem condo within the last three years). �e record reflects that
while Plaintiffs did not disclose the ownership of these two properties in the designated
space of the application, they did report the proceeds of the sale of both properties,
elsewhere, in their tax returns. See Doc. 134-5 at 7, 35 (listing the sale of the California
property on December 27, 2017, and the sale of the Harlem condo on February 6, 2018).
Moreover, Defendants point out that in the November 2019 application, Plaintiffs
claimed to have moved out of the Harlem condo and into their current home, a Midtown
HDFC, in December 2014, but provided no information as to the occupancy of the condo
between then and the sale of the condo, in February 2018. Doc. 134-3 at 58; Doc. 134-5
at 7. �e Court notes that while there was no explicit question about rental income in the
application, there were several places to list “other” income. See 2019 Application form,
Doc. 134-50 at 19, 30. Indeed, in their November 2019 application Plaintiffs included an
addendum in which they include “other income” for 2017 and 2018. Doc. 134-3 at 43.
Plaintiffs did not include any rental income on this addendum or elsewhere in the
November 2019 application.
During discovery Plaintiffs admitted that they rented the Harlem condo. See Xia
Dep. 22:3–10 (Xia testifying they had one renter in the Harlem condo between the date
the couple moved out and the date the condo was sold); see also Privitera Dep. 14:7–23
(Privitera testifying that after he moved out, but before the Harlem condo was sold he
“rented out the apartment to somebody”). According to Defendants, the failure to
disclose this information prevented them from calculating whether Plaintiffs met the
income cap because of the rental income Plaintiffs received.
c. Plaintiffs Failed to Disclose Monthly Expenses
Additionally, Defendants allege that Plaintiffs misrepresented their projected
monthly expenses by failing to mention their monthly student loan payments ($422), their
Home Depot monthly payments ($130), and approximately $2,700 in nanny payments.20
See 2019 Application, Doc. 134-3 at 65 (listing only maintenance and other mortgages as
projected month expenses). Defendants argue that omitting “several thousands dollars of
expenses per month” is grounds alone to merit the rejection of the application.
d. Income Caps
Defendants argue that they determined that Plaintiffs failed to meet the income
caps for 2017 and 2018. Doc. 133 at 11. It is undisputed that Plaintiffs’ 2017 AGI, as
reported on their tax returns, was well above the 2017 cap. See Doc. 134-9 at 18
(Plaintiffs’ 2017 tax returns reflecting an AGI of $174,955). For 2018, Defendants

allege that despite Plaintiffs’ tax returns reflecting an AGI below the cap, that figure is
inaccurate because Plaintiffs excluded the profit from the sale of their Harlem condo by
wrongfully claiming a homestead exemption. See Doc. 134-5 at 7 (listing the Harlem
condo as selling for a profit of $285,008). Defendants allege that Plaintiffs were not

20 See Xia Dep. 91:24–93:22 (Xia stating she employed a nanny at the time when she submitted the
purchase application and that she paid the nanny in cash).
entitled to take this exemption because they had not resided in the Harlem condo for the
minimum two-year period of the preceding five years required by the homestead
exemption. See Doc. 134-3 at 58–9 (Plaintiffs’ 2019 application noting the dates of
occupancy for the Harlem condo as May 1, 2013 to December 17, 2014). �us,

Defendants allege that taken altogether, Plaintiffs’ income was $423,462, well above the
2018 cap of $154,935. Plaintiffs now claim that they lived in the Harlem condo from
May 2013 until “summer 2015,” thus meeting the 2-year residency and ownership
requirement of the applicable tax regulation, 26 U.S.C. § 121(a). Doc. 144 at 20.
Lastly, the Defendants allege that they were unable to determine whether
Plaintiffs’ 2019 and 2020 income met the relevant caps. Defendants assert that Plaintiffs
failed to provide the required 1099 and K1 forms. See Doc. 134-64 (Special Committee
Meeting notes from February 26, 2020 detailing missing required financial info: 1099s
for 2019 and K-1s for 2019). For 2020, Defendants estimated that Plaintiffs would be
making a profit from the sale of their HDFC in Midtown. See Doc. 134-7 at 47 (Plaintiffs

representing they “will put [their] current residence up for sale” once they are approved
to purchase at 65 West 87th St.). Defendants argue that Plaintiffs would have collected
approximately $55,000 in profit from the sale bringing their 2020 expected income to
$189,000. See Def’s Motion for Summary Judgment, Doc. 133 at 12. �is would have
been higher than the $187,605 income cap for a family of four in 2020. Doc. 134-20 at 9.
The Court finds that Defendants have satisfied their burden of articulating non-
discriminatory reasons for denying Plaintiffs’ application. That the applications were not
completely or correctly filled out, in a manner that raised concerns about the Plaintiffs’
financial eligibility, is a legitimate reason to reject an application.
C. Pretext
Because Defendants have articulated legitimate, non-discriminatory reasons for
their decision to reject Plaintiffs’ application, the burden now shifts back to the Plaintiffs,
who bear the ultimate burden of demonstrating that “the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.” Texas Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). However, Plaintiffs are not
required to show that the Defendants’ proffered reasons were false or played no role in
the decision, but only that they were not the only reasons and that a prohibited factor was
at least one of the “motivating” factors. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203
(2d Cir. 1995).
Plaintiffs must identify disputed material facts which, if resolved in their favor,
would enable a factfinder to find that Defendants’ articulated basis for denying their
application was a pretext for discriminatory action. See De La Fuente v. Sherry
Netherland, Inc., No. 17 Civ. 4759 (PAE), 2019 WL 3430207, at *14 (S.D.N.Y. July 30,
2019), aff’d, 845 F. App’x 29 (2d Cir. 2021).

In response to the Defendants’ proffered reasons, the Plaintiffs advance three
main arguments: (1) Defendants could and should have asked Plaintiffs about the
application components they had concerns about, (2) Defendants departed from their
ordinary process and substantive criteria to reject the Plaintiffs’ application, and (3) there
are genuine disputes of material fact about whether Defendants harbor anti-Asian racial
animus.
First, the Court disagrees with Plaintiffs’ arguments that Defendants “could
simply have asked” about information they found concerning or documents that were
missing from the application. Surely the Defendants were only under an obligation to
review the documents and information that Plaintiffs provided in their application. That
the “Board … may request additional information/documentation during the review
process” does not imply that they must do so. See 2019 Application Form, Doc. 134-50
at 4. For example, Defendants had no reason to question the accuracy of Plaintiffs’

November 2019 submission that they moved out of their Harlem condo in December
2014.21 Plaintiffs’ argument that Defendants should have known to ask if the move out
date was correct at the time the application was submitted is unavailing.
Secondly, Plaintiffs argue that Defendants’ application process was rife with
procedural irregularities. �e alleged irregularities are discussed in turn.
The Special Committee
Plaintiffs allege that after Defendants learned Xia’s name (revealing her race and
national origin)22 on July 10, 2019 they began to alter the application process to deter

Plaintiffs from purchasing the Unit, and were motivated to do so because of racial
animus. Doc. 144 at 10. It was at that time, Plaintiffs allege, that Defendants began
circumventing Board bylaws and notice requirements—by creating a “special committee”
for the sale of Unit 4. The special committee was constituted to “conduct all
communications and decisions regarding the sale” of Unit 4. Doc. 145-19. The three

21 A year and a half after the submission of the 2019 application, in a deposition taken in April 2021, Xia
was unable to recall when exactly she moved out of the Harlem condo but “remember[s] moving out in the
summer.” Xia Dep. 15:11–21.
22 Plaintiffs argue that any cursory web search of “Xia” establishes it as a Chinese surname. Doc. 1 ¶ 85.
The Court takes judicial notice that Xia is a commonly known Chinese Surname. See United States v.
Biaggi, 673 F. Supp. 96, 101 (E.D.N.Y. 1987), aff’d, 853 F.2d 89 (2d Cir. 1988) (taking judicial notice that
Italian-Americans are commonly identified by their last names).
members held a meeting at which they created the special committee, but gave Pinkowitz
and Rymer less than 24 hours’ notice of the meeting. Doc. 145-4.
Plaintiffs claim that the short notice was a violation of the Building’s bylaws.
The relevant bylaw states that “special meetings … may be called… on one day notice.”

Doc. 145-33 at 10.
Plaintiffs also argue that there is a factual dispute as to whether the exclusion of
Pinkowitz and Rymer from the Board was justified. Defendants argue that these two
Board members were excluded because they had “a concrete pecuniary interest in the
sale.” Doc. 133 at 4. In a July 29 email Elbert states Pinkowitz had information she
should not have known and concluded that there is “proof of an ongoing conflict of
interest.” Doc. 134-35 at 3. She suggested that they remove Pinkowitz and Rymer so
that “they cannot approve a sale or documents or other activities without consent of the
rest of the board.” Id. Pinkowitz testified that she was not involved as a broker on the
anticipated sale, and did not communicate with Plaintiffs between the time that they

submitted the application and the time their application was rejected. Pinkowitz Dep.
14:24–15:6. However, it is undisputed that Pinkowitz responded to a StreetEasy inquiry
from Xia about Unit 4 on June 19, 2019, and that the Brown Harris Stevens listing
reflected both Balan and Pinkowitz as brokers. See Pls’ Response to Defs’ 56.1 St. ¶ 10.
There is conflicting evidence as to whether Pinkowitz was a broker on the sale of
Unit 4, and therefore had an interest in the sale. See United States v. Shin, No. 19 cr. 552
(JPC), 2022 WL 3274120, at *2 (S.D.N.Y. Aug. 11, 2022) (“A conflict of interest occurs,
when, for instance, a … board member has an ownership interest or an ‘indirect or direct
financial interest’ [in a transaction]”). The Court finds that there is a genuine issue of
fact as to whether Pinkowitz served as a broker on the transaction and therefore should
have been excluded from the Board’s consideration of the sale.
As to the exclusion of Rymer, Rojo acknowledged that sellers routinely
participated in decisions to approve or reject prospective buyers. See Rojo Dep. 120:14-

24 (confirming that it was not considered a conflict of interest to participate in the sale of
your own apartment). In light of Rojo’s testimony, the Court agrees that there are
genuine issues of fact as to whether Rymer should have been excluded from participating
in the Board’s consideration of the sale.
Revised Application and New Documentation
Plaintiffs allege that the revised application also required them to include
“additional unnecessary documentation never sought from previous applicants.” Doc.
144 at 13. One such new requirement, the conflict of interest form, instructed Plaintiffs to

“indicate in detail the nature of the professional and/or personal relationship or
affiliation” among every party involved in the transaction. See 2019 Application form,
Doc. 134-50 at 45. �e table contained all parties to the sale and boxes in which
applicants could detail, for example, the nature of the familial relationship between
parties. In this case, the parties included the seller (Rymer), his broker (Balan), his
attorney (Targownik), the buyers (Plaintiffs), and the buyers’ attorney (Waiser). See 2019
Application, Doc. 134-6 at 26. �e November 2019 application noted that a familial
relationships existed, but did not disclose the nature of those relationships (e.g., that
Balan and Pinkowitz were mother and daughter, that Balan and Targownik were married,

etc.). Id. Additionally, the attorneys did not sign the affirmation. �e special committee
deemed this to be insufficient. See Unit 4 Purchase Application Review, Doc. 134-12.
With respect to the February 2020 application, it is disputed whether the special
committee required Plaintiffs to submit the affidavits concerning the relationships among
all parties involved in the sales transaction. Defendants contend that they never required
or even suggested these affidavits, but rather accepted Plaintiffs’ offer to supply these

affidavits to prove there were no conflicts. Doc. 133 at 18. Defendants offer
contemporaneous emails sent by Elbert expressing frustration at Plaintiffs’ insistence on
complicating the process rather than simply providing the requested documents. See
Doc. 134-57 (“�e 12/21/19 email was quite clear, that we just wanted 3 things:
completed, application, complete broker agreement, removal of seller attorney. Now they
want to add all these affidavits, statements, substitutions, revisions, above and beyond
those 3… why? We would have been satisfied with our original requests!”); see also
Sarmiento Dep. 182:4–183:4 (recalling that in lieu the supporting documents the special
committee requested, someone proposed the affidavits as a solution, but that he does not

recall whether it was the broker or the buyer); but see Rojo Dep. 171:13–172:21
(testifying that it “must have been the three of us [Rojo, Sarmiento, and Elbert]” who
came up with the idea to request those affidavits, and that she believed that the drafts of
the affidavits were created between Shapiro, Elbert, and Sarmiento).
Plaintiffs rely on testimony from Balan, who testified that in a meeting with
Shapiro, Shapiro relayed that the special committee requested these affidavits. Balan
Dep. 70:3–71:8 (“the special committee wanted these legal papers, these affidavits put
together”). According to Balan, at this meeting, Shapiro handwrote notes describing the
content each affidavit should include. See Doc. 145-30 (handwritten notes); see also
76:6-77:11. Balan followed up in an email dated January 23, 2020 with her “proposed
affidavits.” Doc. 134-58.
After rejecting Plaintiffs’ application, the conflict of interest disclosure section
was removed from the application form altogether. See 2020 Application, Doc. 145-16.

�at this section was entirely removed after Plaintiffs were rejected arguably raises
questions as to the intent of the requirement.
Concerning the revision of the application itself, Defendants argue that it was the
Coop’s practice to revise applications when new potential sales arose and that recent
changes to the law required a revision of the application. Doc. 150 at 6. For example,
Pinkowitz and Elbert revised the application that Sarmiento ultimately submitted in 2016
for the purchase of Unit 1. See Doc. 145-24 (an email detailing the edits made to the
application in November 2015). However, the edits made in 2015 were not as
substantive as the 2019 revisions, and focused more on clarifications, typographical
errors, and formatting. The Court finds that there are factual disputes regarding the

changes made to the 2016 application, and what the intent and purpose of those changes
were. Because the changes in the application were a departure from the criteria used for
past applicants, the Court finds that there is a genuine dispute as to whether the changes
can be attributed to intentional discrimination. See Quad Enters. Co., LLC v. Town of
Southold, 369 F. App’x 202, 207 (2d Cir. 2010) (stating that one of the factors that can be
considered in evaluating intentional discrimination is a departure from normal substantive
criteria).
Increase in Fees
Next, Plaintiffs allege that the “onerous” new and increased fees and deposits
required by the revised application, and Defendants’ failure to plausibly explain why they
were imposed, creates an inference of improper purpose. The revised application
required approximately $12,000 more in fees and deposits for the seller than the previous

application. Defendants argue that because $11,000 of the increase in fees are
refundable, the increase is not significant. However, the Board retained complete
discretion in assessing whether the conditions of the primary residence deposit (of
$10,000) was met, Elbert Dep. 170:9–13, and as Sarmiento acknowledged in an email,
these refundable fees “could represent a liquidity hit for most anyone, even if financially
stable,” especially in light of the uncertainty of the date of closing. Doc. 145-20 at 4.
There are disputes as to the purpose and intent of the primary residence deposit.
In their sworn affidavits Elbert and Sarmiento claim— in the same language—that it was
imposed to “incentivize purchasers to live up to their commitment to reside at, and
participate in the management of, the Coop.” Elbert Aff. ¶ 14; Sarmiento Aff. ¶ 13.

However, Rojo testified that “now… looking here and reading it, [she] agree[s]” that the
$10,000 fee was unusually high. Rojo Dep. 156:23–157:4. Without explanation, after
rejecting Plaintiffs, the $10,000 deposit, along with most of the other increased fees, were
removed from the 2020 application. See 2020 Application, Doc. 145-16 at 5.
Further, there are inconsistencies regarding the rationale for the application fee
increase from $350 to $500. In her deposition taken in April 2021, Rojo testified that she
believed the $350 application fee in place in 2016 was sufficient, Rojo Dep. 73:18–25,
and that she did not remember why the fees were raised to $500 for Plaintiffs’
application. Id. 155:21–156:2. Yet in her sworn affidavit in August 2022, she claimed
that the increased fees were necessary “to assure that the Coop was reimbursed for Board
time spent on the transaction.” Rojo Aff. ¶ 11.
However, Defendants argue that “it simply makes no sense” that they consented
to deferring all but $540 to be paid at closing if their intent was to increase the fees to

deter the Plaintiffs from applying. Doc. 150 at 6; see also Doc. 134-52 at 2.
The Court finds that the disputed testimony regarding the Defendants’ knowledge
and intent raise factual issues that are not appropriate for resolution on a motion for
summary judgment. See Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984).
The Review of the Applications
Defendants agreed that Shapiro would “do a first look to check for compliance
with income caps and tax disclosure, as well as minimal financial resources . . . and
check[] for completeness.” See November 2019 Email, Doc. 145-20 at 2. However,
before receiving Shapiro’s determination, Elbert sent an email to Sarmiento and Rojo
stating that she “took a peak [sic]” and was “ready to reject the application.” Doc. 145-
11 at 2. She also stated “of course we will wait for [Shapiro’s] decision” and that perhaps
inviting the applicants to reapply with different brokers/attorneys, or with full discourse
could be a path forward. Id. Rojo, without having reviewed the application, and before
Shapiro had submitted her determination, responded that “[her] vote is to reject the
application.” Id.; see also Rojo Dep. 164:2–166:19.
a. Financial Documents and Disclosures
There is no dispute that the revised application explicitly required the two most
recently filed Federal Income Tax Returns “inclusive of all W-2/1099 statements and all
schedules.” However, that Sarmiento also failed to separately include several underlying
tax forms when he applied and was not rejected, may raise an inference of discriminatory
intent. See Quad Enters. Co., LLC v. Town of Southold, 369 F. App’x 202, 207 (2d Cir.
2010) (stating that one of the factors that can be considered in evaluating intentional
discrimination is a departure from normal substantive criteria).
Defendants also argue that they did disclose the student loan and Home Depot
monthly payments, and that they did not submit any account statements because they did

not receive monthly statements for those expenses. There is no dispute that Plaintiffs
indeed did list their student loan payments twice in the application. See page 10A
(“Other Income in 2018”) 2019 Application, Doc.134-4 at 43; see also page 18 (“Annual
Income Information”) 2019 Application, Doc. 134-3 at 54. But whether how Plaintiffs
listed their monthly expenses (through bank statements and in “other” sections of the
application) was reasonable presents a triable issue of fact on the question of Defendants’
possible pretextual reasons for rejecting Plaintiffs’ applications.
Lastly, Plaintiffs argue that Defendants falsely claim that the sale of the California
property was a matter of concern. While it is not disputed that Plaintiffs failed to disclose
their ownership of the land on the designated page of the application, Plaintiffs disclosed

the sale in their 2017 tax return, which was included with their November 2019
application. But more importantly, the contemporaneous meeting minutes do no evince
any concern about the sale. See generally Doc. 134-64 at 1. The fact that the sale of the
property was “first enunciated some time after the Plaintiffs challenged the board’s
decision, contributes to the Plaintiffs’ claim of pretext.” Sassower v. Field, 752 F. Supp.
1182, 1189 (S.D.N.Y. 1990) (denying a coop’s motion for summary judgment, in part,
because the 14 reasons stated for rejecting plaintiff’s application were not
contemporaneous and could be deemed to be a pretext for discrimination).
b. Income Caps
Plaintiffs argue that only the year of the expected transaction must meet the
income cap and that Defendants contorted the income definitions and requirements to
justify rejecting Plaintiffs’ applications. See Pl’s Opp. to Motion to Dismiss, Doc. 30 at
12.

�e purchase application simply asks for “adjusted gross income as reflected in
your federal tax return,” without specifying which year’s AMI cap these figures would
be compared to. Doc. 134-50 at 11. �e Certificate of Incorporation is similarly
ambiguous, noting only that qualified applicants’ income cannot exceed 165% AMI “as
determined from time to time by [HUD].” Doc. 134-1 at 5.
Defendants disagree and assert that the procedure the Board utilized to assess
whether an applicant meets the income cap was correct. �e Board compared the
income on applicants’ last two tax returns, along with the family size, to the AMI chart.
See Elbert Dep. 30:14–25 (describing the process of comparing the reported income on
applicants’ tax returns and the family size to the AMI chart for the given year and stating

that “that’s the way to do it, we have always done it that way”). In other words,
according to Defendants, the Plaintiffs also needed to meet the income caps for the two
years prior to the transaction. Doc. 133 at 12.
On March 24, 2020, twenty-two days after rejecting Plaintiffs’ second
application, Elbert emailed UHAB to ask about the income eligibility requirements.
Doc. 145-27 at 3. �e UHAB advised Elbert that the Board “should look at 2 to 3 yrs
of tax returns, however [applicants] only have to qualify with [the] most recent tax
return, which would be 2019,” and that “there’s no statute” that requires that an
applicant’s eligibility be determined solely by reference to their most recent tax return.
Id. at 2. �e Court agrees with Plaintiffs that “a jury could reasonably find that if
Plaintiffs’ [financial] eligibility had been the sole basis for the rejection, the special
committee would have sought to learn the applicable financial requirements before
rejecting them.” Doc. 144 at 28 (emphasis in original).

* * *
One indication of “racially discriminatory intent” are “[d]epartures from the
normal procedural sequences.” Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252, 267 (1977). Plaintiffs have pointed out a number of
instances in which their application was treated significantly differently from those of
previous applicants: the hasty establishment of a special committee, which excluded
two Board members due to purported conflicts of interest; the unprecedented revision of
the application and required documents; the increase of approximately $12,000 in fees;
and the immediate reversal of these changes after rejecting Plaintiffs’ application.
Drawing all inferences in Plaintiffs’ favor, a fact-finder could conclude that

Defendants’ review of Plaintiffs’ application supports an inference of discriminatory
intent. Accordingly, Plaintiffs meet their burden at the third stage of the McDonnell
Douglas analysis.
D. Racial Animus
In support of their argument that the rejection of their application was motivated
by racial animus, Plaintiffs proffer the fraught relationship between Rojo and Cindy Zhou
and evidence of a general pattern of discrimination by Defendants against
Asian-Americans, as well as Rojo’s anti-Asian contemporaneous statements regarding
Plaintiffs’ application.

Treatment of Other Asian Americans by the Board
Plaintiffs argue that a March 24, 2017 text exchange between Elbert and Rojo
indicates discussing Zhou racial animus. Doc. 145-15 (“Elbert: What is the name of
your Asian roommate and when did she move in[?] Elbert: I want to write a letter from
the coop that says miss Asian is authorized and [H]elen is not”). For context, during this
time, Rojo was renting two rooms in her unit: one to Zhou, who is Asian, and one to
another, non-Asian person named Helen, who had failed to pay her rent. As a solution,
Elbert proposed that the Coop write a letter that Zhou was authorized to be in the
apartment and Helen was not. Elbert testified that she does not recall referring to Zhou as
“Miss Asian.” Elbert Dep. 216:2–17.
Next, Plaintiffs point to a number of emails and text messages Rojo sent to Board
members in which she repeatedly disapproved of Zhou living in the building, referred to
her as “that person from the fourth floor” and as “a squatter.”23 Further, in another text
messages Rojo sent to members of the Board in March 2020 about “the tenant living on
the 4th floor,” she stated that she knows that tenant “for sure doesn’t clean[] disinfect[]
healthy hygiene” and “does her shopping from Chinatown.” Doc. 145-14 at 19.
Plaintiffs submit that Rojo is referring to Zhou.24
Lastly, Plaintiffs allege that an anti-Asian animus can be inferred from
Defendants’ general pattern of discrimination against Asian-Americans. According to
Plaintiffs, the only other buyers who have been rejected also consisted of a European
husband and Asian wife. See Rojo Dep. 62:2–68:20 (confirming that the applicants were

23 In her deposition, Rojo testified that she “adore[s] [Zhou],” was angry and hurt about their falling out,
and that she “didn’t mean anything personal towards [Zhou].” Rojo Dep. 193:9–194:25.
24 In her deposition, Rojo testified that she was “probably” referring to a different tenant on the fourth floor.
Rojo Dep. 204:21-206:8.
rejected, and that there was a note in the Board’s communications about the applicant’s
father being in Taiwan). Plaintiffs do not provide any other information on the
sufficiency of the couple’s application or if the application was similar to that of the
buyer that was approved. See Jackson v. City of New York, 29 F. Supp. 3d 161, 172
(E.D.N.Y. 2014) (finding that to establish disparate treatment a plaintiff must demonstrate
that he was treated materially different than similarly situated [person] outside of his
protected class).
Further, Plaintiffs allege that “Rojo attempted to disinfect” a prospective Asian
buyer with Lysol. Doc. 144 at 23. Balan testified that after Plaintiffs were rejected, she
was showing Unit 4 to another potential buyer, who was also Asian, and his broker. As
they were leaving, Rojo, who was in the lobby, began to spray Lysol. Balan testified that
“it almost felt like an assault” and that “it was bizarre.” See Balan Dep. 102:18–103:5,
103:13–16.
Because there are genuine disputes of material facts regarding these alleged
incidents, and “careful scrutiny may reveal circumstantial evidence supporting an
inference of discrimination” the “drastic remedy” of summary judgment in this
discrimination case is denied. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999).
Rojo’s Comments About Plaintiffs’ Applications
Finally, Plaintiffs argue that beginning in August 2019, Rojo began to comment
negatively about them. In an August 29, 2019 email to the special committee, Rojo says
“I don’t know if we want this kind of neighbor…” Doc. 145-6 at 2. Rojo was
responding to an email from Rymer in which he asks why the application was being
revised at this time and notes that a delay may cause him to lose the sale. �e context of
this email, and indeed the portion of the sentence Plaintiffs omit from their brief (“I
don’t know if we want this kind of neighbor already (supposedly) pressing” makes it
clear that Rojo is referring to the Plaintiffs “supposedly pressing” for a quicker process.
Plaintiffs also allege that after learning Xia’s name (and therefore her race), but
before the applications were submitted, Rojo repeatedly lobbied the other two members

of the special committee to reject Plaintiffs. Plaintiffs offer two examples of such
occasions. First, Rojo’s statement in a September 11, 2019 email that she is “extremely
very uncomfortable and not satisfied with any of them” and is thinking of rejecting the
applicant. Doc. 145-8 at 2. Plaintiffs argue that this shows a hostility toward Xia.
However, Plaintiffs fail to account for the full context of the communication. In fact,
Rojo says, in full:
After reading and really thinking [] with an open fair mind- the present
situation with [Pinkowitz/Balan] … and this lawyer involvement in the sale
of unit 4- I must admit [at] this point I’m extremely very uncomfortable and
not satisfied with any of them, I’m thinking we should reject the applicant.

Id. �is message was a response to Elbert’s frustration with Waiser for paying the Due
Diligence fee late, and Pinkowitz and Balan for their involvement in the delay. Id.
Plaintiffs also argue that a September 8, 2019 email in which Rojo stated “sorry to say
I’m not feeling it” in reference to a letter Plaintiffs sent to the special committee
members apologizing for the delay in the Due Diligence fee, also shows racial animus.
Doc. 145-7.
Next, Plaintiffs argue that Rojo’s comments regarding their two applications
contain evidence of discriminatory intent. For example, after the November 2019
application was submitted, but before reviewing the application, Rojo sent an email
response to Elbert commenting that she does not “do well with dishonest/people and
special [sic] when they play games” and that her vote was to reject the application. Doc.
145-11 at 2. Yet Elbert’s original message, to which Rojo is responding, makes it clear
that Rojo is referring to Pinkowitz and Balan (“�e lack of broker contract is particularly
problematic. I know for a fact … that Samantha was originally a co-broker… at this
point I am tired of their games and I am ready to reject the application.”). Id.

Lastly, after reviewing Plaintiffs’ February 2020 application Rojo states in an
email to the special committee that she is “baffle[d] with all that … B[ullshit] and
garbage these people can write down on paper.” Doc. 145-12 at 5.
Because, taken in sum, a reasonable jury could find Rojo’s comments to be
harboring racial animus and “contemporaneous statements by decision-makers
evidencing animus” are a relevant consideration for discerning a racially discriminatory
intent, summary judgment is precluded. MHANY Mgmt., Inc. v. Cnty. of Nassau, 819
F.3d 581, 606 (2d Cir. 2016).
The Court must tread lightly in deciding whether summary judgment should be
granted in a discrimination case that turns on intent. “It is the rare occasion when

discrimination boldly smacks one in the face, rather, it is ‘often accomplished by discreet
manipulations and hidden under a veil of self-declared innocence.’” Fair Hous. Justice
Ctr., Inc. v. Edgewater Park Owners Co-op., 10 Civ. 912, 2012 WL 762323, at *8
(S.D.N.Y. 2012) (citing Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991)).
It is apparent that the Plaintiffs’ claims against the Defendants cannot be resolved
on summary judgment because a reasonable jury could find that Defendants’ actions were
motivated by discrimination. Reeves, 530 U.S. at 91. �e Plaintiffs have stated the
elements of a prima facie case of housing discrimination and the Defendants have
articulated nondiscriminatory reasons for their actions. �e question of pretext, however,
is one that must be decided by a jury. Taken altogether, there is sufficient evidence such
that a rational jury could conclude that Defendants’ reasons for rejecting Plaintiffs’
applications were pretextual and motivated by racial animus. The nature of the evidence
is such that a jury’s evaluation is required. Accordingly, the Defendants’ motion for
summary judgment is denied.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is
DENIED. The parties are directed to appear for a telephonic conference on April 6, 2023,
at 11:00 a.m. To participate, the parties are directed to call (877) 411-9748 and enter
access code 3029857# when prompted. The Clerk of the Court is respectfully directed to
terminate the motion, Doc. 132.

It is SO ORDERED.

Dated: March 31, 2023 me #7 \)
New York, New York FE bt \a_—.
EDGARDO RAMOS, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10350042. Public record. Not legal advice.