Cymbalsky v. 522 Shore Road Owners Inc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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GERALD CYMBALSKY,

Plaintiff, MEMORANDUM

AND ORDER

-against- 23-CV-3104 (SIL)

522 SHORE ROAD OWNERS, INC., JAMIE

COHEN, CHO MANAGEMENT, ADAM

FINKELSTEIN LAW FIRM, CHARLES H.

GREENTHAL CO., KAGAN LUBIC LEPPER

FINKELSTEIN & GOLD LLP, and KATO LIN,

Defendants.

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STEVEN I. LOCKE, United States Magistrate Judge:

Presently before the Court in this statutory racketeering and fair housing

litigation are two motions to dismiss pro se Plaintiff Gerald Cymbalsky’s (“Plaintiff”

or “Cymbalsky”) Amended Complaint for failure to state a claim pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). See Docket Entry

(“DE”) [43], [45]. The first motion is by Defendants Adam Finkelstein, Esq.

(“Finkelstein”) and Kagan Lubic Lepper Finkelstein & Gold LLP (“KLLFG” and

together, the “Finkelstein Defendants”), DE [43], and the second is by Defendants

522 Shore Road Owners, Inc. (“522 Shore Road”), Kato Lin (“Lin”), First Service

Residential New York, Inc. (“First Service Residential”), Charles H. Greenthal

Management Co. (“Greenthal Management”), and Jaime Cohen (“Cohen” and

collectively, the “Co-op Defendants”). DE [45]. For the reasons set forth herein, both

motions to dismiss are granted and Plaintiff’s Amended Complaint is dismissed with

prejudice in its entirety.1

I. BACKGROUND

A. Facts

The following facts are taken from the Amended Complaint (“Am. Compl.”),

DE [18-1], and are accepted as true for purposes of the instant motions. Given

Plaintiff’s pro se status, to the extent there are facts alleged in the original Complaint,

DE [1], or stated in Plaintiff’s opposition to Defendants’ motions, DE [45-6], that are

favorable to Plaintiff, the Court considers them as well. Davila v. Lang, 343 F. Supp.

3d 254, 267 (S.D.N.Y. 2018) (“Because [the plaintiff] is proceeding pro se, the Court

may consider new facts raised in opposition papers to the extent that they are

consistent with the complaint, treating the new factual allegations as amending the

original complaint.”); Washington v. Westchester Cnty. Dep’t of Corr., No. 13 Civ.

5322(KPF), 2015 WL 408941, at *1 n.1 (S.D.N.Y. Jan. 30, 2015) (considering facts

alleged in the pro se plaintiff’s original complaint “that [had] not been repeated in

[his] Amended Complaint”). Although the exact nature of Plaintiff’s claims is unclear

and difficult to discern, as a pro se litigant, the Court construes his allegations as

liberally as possible. See Hammer v. Amazon.com, 392 F. Supp. 2d 423, 427 (E.D.N.Y.

2005) (“[T]he Court recognizes that Plaintiff is proceeding pro se, and affords the

Complaint its most liberal construction.”).

1 This action is before this Court for all purposes pursuant to 28 U.S.C. § 636(c). DE [55].

1. The Parties

Plaintiff resides at 522 Shore Road, Apt. 3WW, Long Beach, New York (the

“Property”). See Am. Compl. § 1(A).2 As a result of a 2007 car accident, he suffers

from severe osteoarthritis, requiring the use of a walker, as well as a persistent open

leg wound. See Plaintiff’s Opposition to Defendants’ Motions to Dismiss (“Pl.’s

Opp’n”), DE [45-6], at 3; Original Complaint (“Compl.”), DE [1], § III(C). Cymbalsky

further alleges that he has an anxiety disorder and is morbidly obese. Id.

522 Shore Road is a co-op that co-owns with Plaintiff the Property in which

Plaintiff lives. Am. Compl. § 1(B); see Co-op Defendants’ Memorandum of Law in

Support of Motion to Dismiss Amended Complaint (“Co-op Mem.”), DE [45-5], at 3-4.

Lin is the President of the 522 Shore Road co-op board. Am. Compl. § 1(B). First

Service Residential and Greenthal Management are the property management

companies responsible for the building in which Plaintiff resides and Cohen is the

building manager.3 Id. The Finkelstein Defendants provided legal services to the

Co-op Defendants, including with respect to Plaintiff and the events related to this

action. Id.; Compl. § I(B); Finkelstein Defendants’ Memorandum of Law in Support

of Motion to Dismiss (“Finkelstein Mem.”), DE [43-8], at 2.

2 On June 30, 2023, Plaintiff sought leave to file an amended complaint, attaching a proposed amended

complaint as an exhibit to his motion. See DE [18]. The Court granted Plaintiff’s motion and

instructed him to file the amended complaint by August 17, 2023. See Electronic Order dated July 18,

2023. He did not do so. Nevertheless, the Court considers the allegations Plaintiff submitted in his

proposed amended complaint and treats the proposed amended complaint as the operative pleading.

3 The Co-op Defendants state that Plaintiff incorrectly named Charles H. Greenthal Management Co.

as Cho Management and Charles. H. Cresthall Co. See Co-op Mem. at 1 n.1. They further clarify that,

after Plaintiff commenced this action, First Service Residential New York, Inc. acquired Charles H.

Greenthal Management Co. Id. This distinction does not substantively affect Plaintiff’s claims.

2. Plaintiff’s Medical Treatment

In September 2020, Plaintiff entered the hospital to receive antibiotic

treatments for an infection in his leg. Am. Compl. § III. He was unable to receive

treatment in his home due to spiking Coronavirus cases, and was therefore required

to receive treatment in a skilled nursing facility until December 2020. See Compl. §

III(C). Although Plaintiff asserts that his apartment would have offered “perfect

isolation,” he states that it was a “mess.” Am. Compl. § III.

When Cymbalsky eventually returned home, a person he identifies as “Dan the

new super” (“Dan”) requested $100 to allow a cleaning crew to clean Cymbalsky’s

apartment. Id. Plaintiff does not state Dan’s last name, and Dan is not a defendant.

When Cymbalsky informed the management company of the demand for $100,

Defendant Cohen told him “that’s the way it works. We get tips. If we get a

contractor, we get something for our help.” Id. Plaintiff does not allege that he paid

Dan $100 or that Dan’s request was illegal. Cymbalsky alleges that his January rent

invoice (of an unspecified year) contained a legal fee for $800. Id. Plaintiff requested

clarification from the management company and was informed the charge was for

Defendant Finkelstein talking to the City of Long Beach Building Commissioner

“about what to do about Gerald Cymbalsky.” Id.

Plaintiff returned to the hospital from March 6, 2021 until September 2021.

Id. He alleges that, during this time, Adult Protective Services was “looking for

[him],” but does not state why. Id. Cymbalsky alleges that, on March 25, 2021, police

and fire personnel “broke into” his apartment. Id. On an unspecified date, Plaintiff

returned to his apartment and “found cash and silver was missing.” Id. He does not

allege who took the cash and silver. Cymbalsky states that, at some point, Dan was

away and that Cohen “left the door unattended for the four days [Dan] was gone.” Id.

Plaintiff does not specify the door that was allegedly left unattended, whether any

Defendant was required to attend the door, or whether leaving the door unattended

resulted in any harm to him.

3. State Court Proceedings

On January 25, 2022, 522 Shore Road commenced an action against Plaintiff

in the Supreme Court of the State of New York, Nassau County, bearing Index

Number 600923/2022 (the “State Court Action”). See Compl. § III(C); Am. Compl. §

III; Pl.’s Opp’n at 2. In the State Court Action, 522 Shore Road sought a temporary

restraining order and a preliminary and permanent injunction granting access to

Plaintiff’s apartment so that it could “be cleaned of the extreme unsanitary and

hoarding condition caused by [Cymbalsky].”4 See Affirmation of Kato Lin in Support

of Motion to Dismiss (“Lin Aff.”), DE [43-2], Ex. D. Plaintiff refers to this as a

“furniture eviction” proceeding and it serves as the primary basis for the claims he

asserts in this action. See Am. Compl. § III. The Finkelstein Defendants represented

522 Shore Road in the State Court Action. Id. at § I(B), III; Lin. Aff. Ex. D.

4 Although the Court does not rely on the facts alleged in the State Court Action in ruling on the

instant motions, the Court recognizes that 522 Shore Road sought a Court Order granting them the

right to enter and clean Plaintiff’s apartment due to complaints of unsanitary conditions. Lynn v.

McCormick, No. 17-CV-1183(CS), 2017 WL 6507112, at *3 (S.D.N.Y. Dec. 18, 2017) (“A court may take

judicial notice of public records such as pleadings . . . and other documents from prior litigation,

including state court cases, but it does so not for the truth of the matters asserted in the other

litigation, but rather to establish the fact of such litigation and related filings.”) (internal quotation

and citation omitted).

Plaintiff alleges that, although a cleaning service cleaned his apartment in

January 2021, Cohen and 522 Shore Road “waited until February 2022” to commence

the State Court Action. Compl. § III(C). Cymbalsky claims that, by commencing the

State Court Action, Defendants sought to “reap a huge profit from [his] thirty years

of equity growth.” Am. Compl. § III. Plaintiff alleges that he “won” the State Court

Action, including that, in January 2023, the Clerk of the Court in the State Court

Action told him that he had “defeated the lawsuit.” Id. Cymbalsky acknowledges

that he was not required vacate his apartment or pay attorney’s fees. Id.

B. Procedural Background

By way of a Complaint dated April 17, 2023, Plaintiff commenced this action

against all Defendants. DE [1]. He neither enumerated specific causes of action nor

articulated which of his allegations pertained to which Defendant. Id. On June 30,

2023, Cymbalsky filed an Amended Complaint, which is the operative pleading in

this action. DE [18-1]. Although the exact nature of his claims remains difficult to

discern, construing his allegations as liberally as possible, Plaintiff asserts causes of

action against each Defendant for violations of: (1) the Racketeering Influenced and

Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961 et seq.; (2) the Fair Housing Act

(“FHA”), 42 U.S.C. § 3601 et seq.; (3) his constitutional rights to privacy; and (4) the

Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Id. Cymbalsky

seeks to recover: (1) exemplary damages “as Linn and Jamie Cohen knew [he] was

[in] extended skilled nursing”; (2) $5,000 from lost silver and cash; (3) $500,000 to

“protect value decline from questionable cost over runs and other management

action.” Am. Compl. § IV. He also seeks equitable relief of having a “black leather

chair placed in [the] lobby so [he] can sit” and allowing him to leave his own lounge

chair on the pool deck during the summer. Id.

II. LEGAL STANDARD

To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint

must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937

(2009) (quoting Bell Atl. Corp. v. Twombley, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007)).

A claim is considered plausible on its face “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft, 556 U.S. at 678, 129 S. Ct. at 1949. In deciding a

motion to dismiss, “a court must ‘accept all allegations in the complaint as true and

draw all inferences in the non-moving party’s favor.’” U.S. ex rel. Siegel v. Roche

Diagnostics Corp., 988 F. Supp. 2d 341, 343 (E.D.N.Y. 2013) (quoting LaFaro v. New

York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009)).

It is well-established that pleadings by pro se plaintiffs are held “to less

stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449

U.S. 5, 9, 101 S. Ct. 173 (1980); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.

Ct. 2197 (2007) (“A document filed pro se is to be liberally construed, and a pro se

complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.”) (internal quotations and citation omitted).

The Second Circuit has held that a court reviewing a pro se complaint must “construe

the complaint broadly, and interpret it to raise the strongest arguments that it

suggests.” Weixel v. Bd. of Educ. of the City of New York, 287 F.3d 138, 146 (2d Cir.

2002) (internal alterations omitted). Nevertheless, “the court need not argue a pro se

litigant’s case nor create a case for the pro se which does not exist.” Kwon v.

Santander Consumer USA, No. 15-CV-3352(SJF)(AKT), 2017 WL 5495811, at *3

(E.D.N.Y. Apr. 18, 2017) (internal quotation omitted).

III. DISCUSSION

The Court interprets Plaintiff’s Amended Complaint to assert claims against

each Defendant for: (1) a civil RICO violation; (2) an FHA violation; (3) a

constitutional violation of his right to privacy; and (4) an FDCPA violation. Even

applying the liberal standards described above, Cymbalsky fails to state a claim

against any Defendant under any theory of liability.

A. Civil RICO Act Claim

The RICO statute provides in relevant part:

It shall be unlawful for any person employed by or associated with any

enterprise engaged in, or the activities of which affect, interstate or

foreign commerce, to conduct or participate, directly or indirectly, in the

conduct of such enterprise’s affairs through a pattern of racketeering

activity . . . .

18 U.S.C. § 1962(c). Although the RICO Act generally applies to criminal matters,

Section 1964(c) provides for a civil remedy. Id. at § 1964(c).

To state a civil RICO violation, the plaintiff must allege “(1) conduct (2) of an

enterprise (3) through a pattern (4) of racketeering activity.” Aerowest GmbH v.

Freitag, No. 15-CV-2894(LDW), 2016 WL 3636619, at *2 (E.D.N.Y. June 28, 2016)

(quoting DeFalco v. Bernas, 244 F.3d 286, 306 (2d Cir. 2001)). “To allege a ‘pattern

of racketeering activity,’ a plaintiff ‘must plead at least two predicate acts’ – i.e., two

racketeering activities – and ‘must show that the predicate acts are related and that

they amount to, or pose a threat of, continuing criminal activity.” Giuliano v. Omni

Hybrid Holdings, LLC, No. 20-CV-3334(RRM)(RML), 2021 WL 9037638, at *10

(E.D.N.Y. June 22, 2021) (quoting GICC Cap. Corp. v. Tech. Fin. Grp., Inc., 67 F.3d

463, 465 (2d Cir. 1995)). The conduct alleged must also affect interstate or foreign

commerce. 18 U.S.C. § 1962(c). Courts in the Second Circuit have observed that

establishing a civil RICO claim is exceedingly difficult and that a majority fail at the

pleading stage. See, e.g., Moss v. BMO Harris Bank, N.A., 258 F. Supp. 3d 289, 297

(E.D.N.Y. 2017) (“[C]ourts have expressed skepticism toward civil RICO claims.”);

Sky Med. Supply Inc. v. Support Claims Servs., Inc., 17 F. Supp. 3d 207, 220 (E.D.N.Y.

2014) (“[A]lthough RICO may be a potent weapon, plaintiffs wielding RICO almost

always miss the mark.”) (internal quotation omitted).

Plaintiff fails to state a civil RICO violation against any Defendant. First,

Plaintiff does not allege two predicate acts as required to state a civil RICO claim.

Although Cymbalsky does not specify the predicate acts that form the basis of his

RICO claims, construing his pleadings as liberally as possible, the only conduct that

would possibly fall under the purview of the RICO statute is the alleged

disappearance of $5,000 and silver and 522 Shore Road’s commencement of the State

Court Action. Am. Compl. § IV; 18 U.S.C. § 1961(1)(A) (defining robbery as a

“racketeering activity”); Black v. Ganieva, 619 F. Supp. 3d 309, 342 (S.D.N.Y. 2022)

(observing that “litigation activity” may serve as a predicate act where the plaintiff

alleges a “concerted abuse of the legal system”).

Standing alone, each of these acts is plainly insufficient to establish a pattern

of racketeering activity. See Smulley v. Fed. Housing Fin. Agency, 754 F. App’x 18,

24 (2d Cir. 2018) (“[T]o the extent [the plaintiff] alleges that any Defendants made

false representations and filed false documents in [the plaintiff’s] state court

action(s), those acts do not constitute RICO predicates.”); Kim v. Kimm, 884 F.3d 98,

101 (2d Cir. 2018) (holding that “a single frivolous, fraudulent, or baseless lawsuit . .

. alone cannot constitute a viable RICO predicate act”); Javino v. Denton, No. 22-CV-

1072(JMA)(ARL), 2024 WL 4189005, at *10 (E.D.N.Y. Sept. 13, 2024) (holding that,

even if the defendants filed false declarations in a state court action, that alone would

not be enough to state a civil RICO claim); Team Obsolete Ltd. v. A.H.R.M.A. Ltd.,

No. 01-CV-1574(ILG), 2002 WL 719471, at *7 (E.D.N.Y. Mar. 1, 2002) (“One predicate

act is therefore per se insufficient to establish[] a civil RICO conspiracy.”); Trautz v.

Weisman, 809 F. Supp. 239, 244 (S.D.N.Y. 1992) (holding that a single predicate act

was insufficient to state a civil RICO claim). This is particularly true here, as

Plaintiff does not allege that any Defendant was responsible for the disappearance of

cash or silver from his apartment.

Moreover, Cymbalsky does not allege that the disappearance of cash and silver

are related to the commencement of the State Court Action. As the RICO Act requires

that the predicate acts forming the basis of a RICO claim be related, Cymbalsky fails

to allege a pattern of racketeering activity. See GICC Cap. Corp., 67 F.3d at 465

(holding that the plaintiff “must show that the predicate acts are related and that

they amount to, or pose a threat of, continuing activity”); Williams v. Long Beach

Mortg. Co., No. 19-CV-970(NSR), 2020 WL 4735354, at *7 (S.D.N.Y. Aug. 14, 2020)

(dismissing civil RICO claim where the plaintiff only alleged one definite predicate

act); Reich v. Lopez, No. 13-CV-5307(JPO), 2015 WL 1632332, at *2-3 (S.D.N.Y. Apr.

13, 2015) (holding that the plaintiff failed to state a civil RICO claim where the

predicate acts were not sufficiently related); Lavian v. Haghnazari, 884 F. Supp. 670,

682 (E.D.N.Y. 1995) (“To constitute a pattern, the RICO predicate acts (1) must be

related, and (2) reveal (a) continued, or (b) the threat of continued, unlawful

conduct.”).

To the extent Cymbalsky alleges that Marvin Gold Management “plead [sic]

guilty to racketeering” in March 2000, see Am. Compl. § III, he again fails to allege

that any such conduct is related to the conduct about which he currently complains

or that it poses an ongoing threat. Accordingly, any such allegations are irrelevant.

GICC Cap. Corp., 67 F.3d at 465; Williams, 2020 WL 4735354, at *7; Reich, 2015 WL

1632332, at *2-3. Moreover, as Plaintiff alleges that Marvin Gold Management’s

conduct occurred prior to March 2000 (when it allegedly pled guilty), see Am. Compl.

§ III, it is too far removed to demonstrate a “pattern” for purposes of a civil RICO

claim. See 18 U.S.C. § 1961(5) (stating that a “pattern” requires commission of an act

of racketeering activity “within ten years . . . after the commission of a prior act of

racketeering activity”).

Finally, Plaintiff fails to allege that Defendants’ conduct affected interstate

commerce. Rather, Cymbalsky alleges that Defendants, all of whom he alleges are

based in New York, interfered with rights related to his apartment, which is also

located in New York. Am. Compl. § I(B), III. Although RICO establishes only a

“minimal” standard in this regard, DeFalco, 224 F.3d at 309, there still must be “some

factual allegations of a nexus with interstate commerce.” Aliev v. Borukhov, No. 15-

CV-6113(ERK)(JO), 2016 WL 3746562, at *12 (E.D.N.Y. July 8, 2016). As Plaintiff

does not plausibly allege that Defendants’ conduct had even a minimal effect on

interstate commerce, he fails to state a civil RICO claim. See Santana v. Adler, No.

17-CV-6147(AT)(SDA), 2018 WL 2172699, at *8 (S.D.N.Y. Mar. 26, 2018) (holding

that the defendants’ conduct did not affect interstate commerce where “all of the

parties live[d] in New York and [the plaintiff’s apartment] [was] in New York”).

Based upon the foregoing, Plaintiff fails to state a civil RICO cause of action

against any Defendant. Accordingly, Defendants’ motions to dismiss are granted

with respect to Cymbalsky’s civil RICO claims.

B. Fair Housing Act Claim

Pursuant to the FHA, it is illegal “to discriminate against any [disabled] person

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

of services or facilities in connection with such dwelling.” 42 U.S.C. § 3604(f)(2). To

survive a motion to dismiss an FHA claim, the plaintiff “must plausibly allege that

he ‘(1) is a member of a protected class, . . . (2) suffered an adverse . . . action, and (3)

has at least minimal support for the proposition that the [housing provider] was

motivated by discriminatory intent.’” Francis v. Kings Park Manor, Inc., 992 F.3d 67,

73 (2d Cir. 2021) (alterations in original) (quoting Littlejohn v. City of New York, 795

F.3d 297, 311 (2d Cir. 2015)); see Jackson v. Wells Fargo Home Mortg., No. 15-CV-

5062(PKC)(ST), 2019 WL 1376840, at *3 (E.D.N.Y. Mar. 27, 2019) (holding that a

plaintiff states an FHA discrimination claim by alleging: “(1) that [she is a] member[

] of a protected class; (2) that [she] sought and w[as] qualified to rent or purchase the

housing; (3) that [she] w[as] rejected; and (4) that the housing opportunity remained

available to other renters or purchasers.”). The plaintiff “must establish that the

basis upon which he was discriminated against was ‘a significant factor’ in the

position taken by the defendants.” Logan v. Matveevskii, 175 F. Supp. 3d 209, 226

(S.D.N.Y. 2016) (quoting Reg’l Econ. Cmty. Action Program, Inc. v. City of

Middletown, 294 F.3d 35, 49 (2d Cir. 2002)).

Plaintiff fails to state an FHA violation against any Defendant. As an initial

matter, Plaintiff does not allege that either of the Finkelstein Defendants owned,

managed, or were otherwise affiliated with the Property other than representing 522

Shore Road in the State Court Action. Therefore, Cymbalsky’s FHA claim against

them fails as a matter of law. See Hannan v. Rose, No. 18-CV-9878(PGG)(DF), 2022

WL 21770560, at *19 (S.D.N.Y. Mar. 15, 2022) (holding that an FHA claim was not

viable where the defendant did “not own, provide, or manage the apartment from

which Plaintiff allege[d] he was evicted”).

Plaintiff also fails to allege that any Defendant discriminated against him. To

the contrary, he alleges that he is still permitted to rent his apartment and that he

“won” in the State Court Action. Am. Compl. § III. He does not allege that he applied

for and was denied the opportunity to rent or purchase housing or that he was denied

access to his own property. Nor does he allege that he requested and was denied any

accommodation to facilitate his alleged disabilities. To the extent that Plaintiff

alleges that Defendants commenced a “furniture eviction” against him, he concedes

that he was not deprived of any property or access to his apartment as a result

thereof. Id. As Plaintiff’s allegations demonstrate that he continues to reside in his

apartment and has not suffered any adverse action, he fails to allege that Defendants

discriminated against him under the FHA. Francis, 992 F.3d at 73; Currin v.

Glenwood Mgmt. Corp., No. 20-CV-6047(DLC), 2021 WL 4710485, at *3 (S.D.N.Y.

Oct. 8, 2021) (dismissing FHA claim where the plaintiff did not allege that the

defendant denied him the ability to use any specific facility as a result of his

disability); Elmowitz v. Exec. Towers at Lido, LLC, 571 F. Supp. 2d 370, 375 (E.D.N.Y.

2008) (“Even though typical FHA claims apply to those seeking to rent or purchase

housing, the language of the statute is broad enough to encompass an existing tenant

who is denied access to [his] dwelling because of a handicap.”) (internal quotation

omitted).

Finally, even if Plaintiff sufficiently pled discriminatory conduct, he does not

allege that it was the result of his alleged disability. Although a plaintiff “need [not]

allege discriminatory animus for [his or] her disparate treatment claim to be

sufficiently pleaded,” Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008), “a claim is

appropriately dismissed where a complaint’s factual allegations do not permit the

conclusion that the complained-of conduct occurred because of discriminatory

animus.” Logan, 175 F. Supp. 3d at 226. Commencement of the State Court Action

is the only conduct alleged that is pertinent to Plaintiff’s FHA claim. See Am. Compl.

§ III. Cymbalsky does not, however, allege that 522 Shore Road commenced the State

Court Action for a discriminatory purpose, and instead alleges that 522 Shore Road

simply sought to profit from his “thirty years of equity growth.”5 Id. Although this

allegation is not particularly clear, there is no plausible interpretation that would

support an inference of a discriminatory animus or a causal nexus to Plaintiff’s

alleged disability. See Logan, 175 F. Supp. 3d at 228 (dismissing FHA claim where

there was “simply nothing other than Plaintiff’s legal conclusions in the [complaint]

from which the court could surmise that ‘animus against the [disabled] was a

significant factor’ in any position taken by Defendants”). Accordingly, Defendants’

motions to dismiss are granted with respect to Plaintiff’s FHA claims.

C. Constitutional Civil Rights Claims

Plaintiff fails to state a claim for violation of his constitutional rights against

any Defendant. Although the Amended Complaint does not contain facts sufficient

to discern the exact nature of Plaintiff’s constitutional claim, in his basis for federal

jurisdiction, he states, “Constitutional individual rights to privacy, to own property,

to be away.” Am. Compl. § II(A). Regardless of Plaintiff’s theory of liability, it is well-

5 Even assuming that Plaintiff was hospitalized because of a disability when 522 Shore Road

commenced the State Court Action, Cymbalsky does not allege that 522 Shore Road did so because of

his disability. Although not dispositive, it certainly bears noting that Plaintiff also does not allege

that his hospitalization hindered his ability to defend against the State Court Action and, in fact, he

alleges that he “won” in the State Court Action. Am. Compl. § III.

established that a claim of a constitutional violation may only be maintained against

a state actor or entity. See Hannan v. Rose, No. 18-CV-9878(PGG)(DF), 2020 WL

3965341, at *14 (S.D.N.Y. Feb. 28, 2020) (“This Court agrees that Plaintiff has not

adequately pleaded that Defendants were state actors, and that dismissal of

Plaintiff’s constitutional claims is therefore warranted.”); Rose v. Soloway, No. 16-

CV-7180(JPO), 2019 WL 688957, at *4 n.2 (S.D.N.Y. Feb. 19, 2019) (“As for [the

plaintiff’s] assorted constitutional claims, such claims are cognizable only where ‘the

party charged with the deprivation [is] a person who may fairly be said to be a state

actor.’”) (quoting Grogan v. Blooming Grove Volunteer Ambulance Corps., 768 F.3d

259, 264 (2d Cir. 2014)); Hewett v. Leblang, No. 12 Civ. 1713(PKC), 2012 WL 2820274,

at *10 (S.D.N.Y. July 5, 2012) (dismissing claims of constitutional violations

“[b]ecause a constitutional violation arises only when a defendant is a state actor”).

Applying this standard, Plaintiff fails to state a constitutional civil rights

violation against any Defendant. Even liberally construing his allegations,

Cymbalsky does not allege that any Defendant was a state entity or state actor, nor

does he allege that any of the individual Defendants were acting on behalf of a state

entity or actor. Therefore, he fails to state a claim for a constitutional violation

against all Defendants. See Cheeks v. Montefiore Med. Ctr., No. 23-CV-2170(JMF),

2023 WL 8235755, at *2 (S.D.N.Y. Nov. 28, 2023) (holding that constitutional

violations may only be maintained against state actors); Coleman v. JP Morgan

Chase Bank, No. 21-CV-6406(RPK)(TAM), 2023 WL 11844263, at *7 (E.D.N.Y. Jan.

31, 2023) (“Where, as here, the plaintiff claims constitutional violations by private

parties, he must adequately allege that the private party qualifies as a state actor

under the ‘few limited circumstances’ identified by the Supreme Court.”) (quoting

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 809, 139 S. Ct. 1921, 1928

(2019)); Hinds v. Option One Mortg. Corp., No. 11-CV-6149(NGG)(RER), 2012 WL

6827477, at *3 n.5 (E.D.N.Y. Dec. 6, 2012) (Report and Recommendation), adopted by

2013 WL 132719 (E.D.N.Y. Jan. 10, 2013) (“The Complaint makes no allegations that

Defendants are state actors, or acting under the color of law with any state actor to

plead a constitutional violation claim.”).

In his opposition, Plaintiff states that “[t]he defendants acted as a government

ignoring State and Federal fair Housing laws, used police and adult protective

services to make false Inaccurate public records, interacted with nursing homes for

their own financial gains, Committed Medicaid and Medicare fraud, attempted

embezzled equity of infirmed shareholders, create a harassment environment of the

disabled and their agency assigned home care attendants, failed to update the

proprietary lease to conform with public policy, padded legal billing.” Pl.’s Opp’n at

1 (errors in original). He does not, however, allege that any Defendant acted jointly

with a government entity, only that they ignored state and federal laws. As there is

no plausible allegation that any Defendant was acting as a government entity, his

constitutional claims fail. See Coleman, 2023 WL 11844263, at *7; Hinds, 2012 WL

6827477, at *3 n.5. Accordingly, Defendants’ motions are granted with respect to

Plaintiff’s claims for violation of his Constitutional rights.

D. FDCPA Claims

Although Plaintiff does not allege facts related to the collection of a debt in his

Amended Complaint, in his basis for jurisdiction, he cites “debt collection.” See Am.

Compl. § II(A). Again construing his allegations as liberally as possible, the Court

evaluates whether Cymbalsky states an FDCPA violation. He does not.

The FDCPA “establishes certain rights for consumers whose debts are placed

in the hands of professional debt collectors for collection.” DeSantis v. Comput.

Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001); see 15 U.S.C. § 1692(e). To establish an

FDCPA violation, “three elements must be proven: ‘(1) the plaintiff [must] be a

‘consumer’ who allegedly owes the debt or a person who has been the object of efforts

to collect a consumer debt, (2) the defendant collecting the debt must be considered a

‘debt collector,’ and (3) the defendant must have engaged in an act or omission in

violation of the FDCPA’s requirements.’” Gabriel v. Experian Info. Sols., Inc., No. 22-

CV-2174(PKC)(MMH), 2023 WL 5935834, at *3 (E.D.N.Y. Sept. 12, 2023) (quoting

Skvarla v. MRS BPO, LLC, No. 21 Civ. 55(ER), 2021 WL 2941118, at *2 (S.D.N.Y.

July 12, 2021)).

Plaintiff fails to state a claim against any Defendant under the FDCPA. The

Amended Complaint contains no allegations whatsoever that any of the Defendants

are “debt collectors” as defined by the statute. See 15 U.S.C. § 1692a(6) (defining

“debt collector”). To the contrary, the most liberal reading of the Amended Complaint

suggests that the Co-op Defendants sought to collect rent and corresponding charges

that Plaintiff was required to pay. The Second Circuit has held that “creditors are

not subject to the FDCPA.” Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235

(2d Cir. 1998); Lautman v. 2800 Coyle St. Owners Corp., No. 13-CV-967(ARR)(VVP),

2014 WL 2200909, at *4 (E.D.N.Y. May 23, 2014) (dismissing FDCPA claim and

holding that a landlord was a creditor “whose conduct is not regulated by the

statute”).

As there is no plausible allegation that the Co-op Defendants had assigned a

debt to a debt collector, or that they were acting as debt collectors themselves,

Cymbalsky fails to state a claim under the FDCPA against the Co-op Defendants.

See Robinson v. Victory Mitsubishi, No. 23-CV-385(LJL), 2023 WL 5509312, at *4

(S.D.N.Y. Aug. 24, 2023) (dismissing FDCPA claim where the defendant “was

attempting to exercise rights belonging to it as Plaintiff’s creditor, and not as a debt

collector”); Brighton v. McIntosh, No. 10 Civ. 8282(PKC), 2011 WL 3585982, at *2

(S.D.N.Y. July 28, 2011) (dismissing FDCPA claim and holding that the defendant

was not a debt collector because “the payment allegedly sought . . . [was] based on a

debt allegedly owed by the plaintiff to the defendant directly”); Yetnikoff v. Mascardo,

No. 06 Civ. 13494(GEL), 2007 WL 690135, at *2 (S.D.N.Y. Mar. 6, 2007) (holding that

the FDCPA was inapplicable because “that statute pertains to the behavior of debt

collectors, not landlords”).

With respect to the Finkelstein Defendants, the Amended Complaint again

contains no facts related to the FDCPA and Plaintiff does not allege that the

Finkelstein Defendants were debt collectors attempting to collect a debt. Although

attorneys or law firms that regularly seek to collect debts may be considered “debt

collectors” under the FDCPA, see Onfroy v. Law Offices of Geoffrey T. Mott, P.C., No.

22-CV-2314(EK)(LB), 2024 WL 4350489, at *5 (E.D.N.Y. Sept. 30, 2024), Plaintiff

does not allege that the Finkelstein Defendants regularly engage in such conduct.

Ciampa v. Law Offices of Igor Dodin, PLLC, 978 F. Supp. 2d 174, 177 (E.D.N.Y. 2013)

(holding that a law firm that did not regularly attempt to collect debts was not a debt

collector). Instead, the most liberal reading of the Amended Complaint suggests that

Plaintiff’s rent bill may have included a charge for services that the Finkelstein

Defendants provided to the Co-op Defendants. As Plaintiff does not allege that the

Finkelstein Defendants regularly attempt to collect debts, or that they contacted him

to collect a debt that had been assigned to them, Plaintiff fails to state an FDCPA

violation. See Gabriel, 2023 WL 5935834, at *3 (dismissing FDCPA claim where the

plaintiff failed to allege that the defendant was a debt collector within the meaning

of the FDCPA or that a third party was attempting to collect a debt); Ciampa, 978 F.

Supp. 2d at 177. Accordingly, both motions to dismiss are granted insofar as Plaintiff

asserts a claim arising under the FDCPA.

E. Leave to Amend

Plaintiff does not seek leave to file a second amended complaint. See DE [45].

He has amended his Complaint once, and, based on the allegations contained in the

Amended Complaint and the bases for dismissal described herein, further

amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)

(affirming dismissal of pro se plaintiff’s complaint without leave to amend where the

plaintiff suggested “no new material she wishe[d] to plead” to cure deficiencies);

Currin, 2021 WL 4710485, at *4 (declining to grant leave for the pro se plaintiff to file

a second amended complaint where amendment would be futile). Therefore,

Plaintiff’s Amended Complaint is dismissed with prejudice and without leave to

amend.

IV. CONCLUSION

For the reasons set forth herein, the Finkelstein Defendants’ motion to dismiss,

DE [43], is granted in its entirety and the Co-op Defendants’ motion to dismiss, DE

[45], is granted in its entirety. Plaintiff’s Amended Complaint is dismissed in its

entirety with prejudice. The Clerk of the Court is directed to close this case.

Dated: Central Islip, New York SO ORDERED

January 8, 2025

s/ Steven I. Locke

STEVEN I. LOCKE

United States Magistrate Judge