Petition for Writ of Certiorari — Steven Eric Greer, Petitioner v. Dennis Mehiel, et al.

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PRESENT: DENNY CHIN,

RICHARD J. SULLIVAN,

WILLIAM J. NARDINI,

Circuit Judges.

x

STEVEN E. GREER, M.D.,

Plain tiff- Co un ter -Defen dant-Appellan t,

v

DENNIS MEHIEL, an individual, ROBERT

SERPICO, an individual, BATTERY PARK CITY

AUTHORITY, a New York State authority,

Defendan ts Appellees,

HOWARD P. MILSTEIN, an individual, STEVEN

ROSSI, an individual, JANET MARTIN, an

individual, MILFORD MANAGEMENT, a New

York corporation, MARINERS COVE SITE B

ASSOCIATES, a New York corporation,

Defen dants- Co un ter - Claim an ts.

x

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FOR PLAINTIFF-COUNTER- DEFENDANTAPPELLANT:

STEVEN ERIC GREER, M.D., pro se,

Port Saint Lucie, Florida.

FOR DEFENDANTS-APPELLEES:

NOAM BIALE

(Michael Tremonte and Michael W. Gibaldi, on the

brief),

Sher Tremonte LLP, New York, New York.

Appeal from a judgment of the United States

District Court for the Southern District of New York

(Nathan, J., Cott, M.J).

UPON DUE CONSIDERATION, IT IS

HEREBY ORDERED, ADJUDGED, AND DECREED

that the judgment of the district court is AFFIRMED.

Plaintiff-counter-defendant-appellant Steven

E. Greer, proceeding pro se, appeals the district court's

orders granting in part defendants' motions to dismiss,

granting summary judgment in favor of defendants,

and denying his motion for relief from judgment

pursuant to Federal Rule of Civil Procedure 60(b).

Greer sued the Battery Park City Authority (the

"BPCA"), two BPCA officials (the "BPCA Defendants"),

and several private individuals and corporations (the

"Landlord Defendants"), claiming, inter alia, that they

conspired to deprive him of his First Amendment

rights. Specifically, Greer alleged that the Landlord

Defendants and BPCA Defendants conspired, because

of posts he made about the BPCA on his website, to (l)

not renew his lease and evict him from his apartment

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and (2) ban him from public BPCA meetings. The

district court granted in part the motions to dismiss,

allowing Greer's First Amendment retaliation claim

and First Amendment equal access claim to move

forward but, as relevant here, dismissing his equal

access claim as to defendant Robert Serpico and the

retaliation and equal access claims as to defendant

Dennis Mehiel. The district court later granted

summary judgment to defendants and denied Greer's

Rule 60(b) motion. After summary judgment, Greer

and the Landlord Defendants entered into a

stipulation of settlement; thus, this appeal concerns

only the claims against the BPCA and BPCA

Defendants. We assume the parties' familiarity with

the underlying facts, the procedural history of the

case, and the issues on appeal.

I.

Dismissal

We review de novo the dismissal of a complaint

for failure to state a claim. Chambers v. Time Warner,

Inc., 282 F.3d 147, 152 (2d Cir. 2002). A complaint

must plead "enough facts to state a claim to relief that

is plausible on its face," Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007), and "allowG the court to

draw the reasonable inference that the defendant is

liable for the misconduct alleged," Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). The district court must

construe the complaint liberally, "accepting all factual

allegations in the complaint as true, and drawing all

reasonable inferences in the plaintiffs favor."

Chambers, 282 F.3d at 152.

The district court properly dismissed the

retaliation claim against Mehiel and the equal access

claim against both Serpico and Mehiel. "It is well

settled that ... to establish a defendant's individual

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liability in a suit brought under § 1983, a plaintiff

must show, inter alia, the defendant's personal

involvement

the

m

alleged

constitutional

deprivation." Grullon v. City ofNew Haven, 720 F.3d

133, 138 (2d Cir. 2013). Greer's second amended

complaint did not allege any involvement by Serpico

in the BPCA's decision to ban Greer from meetings

and did not allege any involvement by Mehiel in either

the decision not to renew his lease or the decision to

ban him from the meetings. The complaint alleged

that " [defendants" made those decisions without

specifying which of the eight different defendants

were involved. Appellant's Br. at 20. Such a vague

reference did not sufficiently put the defendants on

notice about the specific claims against each of them.

On appeal, Greer also argues that dismissal

was improper because Mehiel later admitted during

discovery that he had personally made the decision to

ban Greer from the meetings. That later admission,

however, does not affect the district court's decision on

a motion to dismiss, which was properly based solely

on the allegations in the complaint. To the extent

Greer argues that the district court should have

allowed Greer to amend the complaint based on that

admission -- after the close of discovery and during

briefing for summary judgment -- the district court did

not abuse its discretion in finding that such a request

for amendment was untimely. See Grochowski

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v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)

(denial of leave to amend is generally reviewed for

abuse of discretion). "While generally leave to amend

should be freely granted, it may be denied when there

is a good reason to do so, such as futility, bad faith, or

undue delay." Kropelnicki v. Siegel, 290 F.3d 118, 130

(2d Cir. 2002) (citation omitted). As the BPCA

Defendants argue, they would have been prejudiced

by such a late amendment because they had

proceeded through discovery on the understanding

that the equal access claim was against only the

BPCA (and not Mehiel individually). See McCarthy v.

Bun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.

2007) (holding that the district court did not abuse its

discretion in denying leave to amend where

"discovery had closed, defendants had filed for

summary judgment, and nearly two years had passed

since the filing of the original complaint").

II.

Summary Judgment

We review a grant of summary judgment de

novo, "resolv[ing] all ambiguities and draw[ing] all

inferences against the moving party." Garcia v.

Hartford Police Dep't, 706 F.3d 120, 126-27 (2d Cir.

2013). "Summary judgment is proper only when,

construing the evidence in the light most favorable to

the non-movant, 'there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.'" Doninger v. Niehoff, 642 F.3d 334,

344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

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A.

Retaliation

"To state a First Amendment retaliation claim,

a plaintiff must show that: (i) he has a right protected

by the First Amendment; (2) the defendant's actions

were motivated or substantially caused by the

plaintiffs exercise of that right; and (3) the defendant's

actions caused the plaintiff some injury." Ragbir v.

Homan, 923 F.3d 53, 66 (2d Cir. 2019) (internal

quotation marks, brackets and citation omitted). Even

where such a showing is made, however, "a defendant

may be entitled to summary judgment if he can show

dual motivation, i.e., that even without the improper

motivation the alleged retaliatory action would have

occurred." Scott v. Coughlin, 344 F.3d 282, 287-88 (2d

Cir. 2003) (citing Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 287 (1977)). To succeed

on this defense, the defendant bears the burden of

showing that "it would have taken exactly the same

action absent the improper motive." Id. at 288.

The district court did not err in granting

summary judgment for defendants on Greer's First

Amendment retaliation claim. The sole evidence in the

record purportedly showing that an improper motive

played any part in the decision not to renew Greer's

lease came from the deposition testimony of two BPCA

employees -- one who stated he believed that Serpico

pressured Steven Rossi, a Landlord Defendant, to not

renew Greer's lease after seeing Serpico "smirkD"

when directly asked if he had "anything to do with" the

non-renewal, Dist. Ct. Dkt. No. 440-9 at 7, and another

who stated that Serpico was angered by Greer's

website and regularly discussed that website at the

BPCA office. Of course, even assuming Serpico

"smirked" and regularly discussed Greer's website,

that is hardly concrete evidence that Serpico and

others sought to punish Greer for exercising his First

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Amendment rights, or that Serpico had the

wherewithal to influence the Landlord Defendants

into not renewing Greer's lease.

In contrast to this speculative testimony, the

evidence that defendants would have "taken exactly

the same action absent [an] improper motive,"

Coughlin, 344 F.3d at 288 -- i.e., declined to renew

Greer's lease regardless of his blog posts -- was

overwhelming. The undisputed evidence showed that

Greer was routinely 30 or even 60 days late with his

rent payments. Greer's own emails and copies of rent

checks showed he was late with his rent payments in

at least eight months throughout 2012 and 2013.

Although Greer adamantly disputed the evidence that

showed his arrears, he did not present any evidence

contradicting that evidence! instead, the emails he

submitted (showing disputes about amounts owed)

supported defendants' contention that he was

frequently late in making payments. These emails also

showed Greer repeatedly making excuses for his late

payments, including that he "mistakenly" wrote a

check from a recently closed account. Dist. Ct. Dkt. No.

381 Ex. 17. Indeed, defendants' evidence showed that

by the time the eviction lawsuit against Greer

commenced, he was $10,887 in arrears. Defendants

further submitted competent evidence, in the form of

Legal Action Status Reports, showing that they had

taken "legal action" against tenants who were behind

in rent payments. Although Greer challenged that

evidence, he did so only in a conclusory manner, and,

despite the opportunity to conduct discovery, he did

not identify any other tenant who was similarly in

frequent arrears who was not subjected to legal action.

On this record, no reasonable juror could

conclude that a "smirk" and office chit chat

transformed what would otherwise have been routine

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landlord conduct -- declining to renew the lease of a

tenant who repeatedly failed to make timely rent

payments -- into First Amendment retaliation. See

Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494,

499 (2d Cir. 2001) ("Although all inferences must be

drawn in favor of the nonmoving party, mere

speculation and conjecture is insufficient to preclude

the granting of (a summary judgment] motion.").1

Accordingly, the dismissal of Greer's First

Amendment retaliation claim is affirmed.

B.

Equal Access

The district court properly held that Greer's

equal access claim against the BPCA failed as a matter

of law. The BPCA is a "public benefit corporation"

created by New York state law. See In re World Trade

Ctr. Lower Manhattan Disaster Site Litig., 892 F.3d

108, 109-10 (2d Cir. 2018). It therefore can be held

liable under § 1983 only if the alleged constitutional

deprivation is the result of a "policy or custom."

Patterson v. County of Oneida, 375 F.3d 206, 226 (2d

Cir. 2004) (citing Monell v. Dep't of Soc. Servs., 436

U.S. 658, 692-94 (1978)); see also Dangler v. NYC.

Off Track Betting Corp., 193 F.3d 130, 142-43 (2d Cir.

1999) (applying Monell to claims against another

public benefit corporation). To hold a governmental

entity liable for a decision by a government official,

the plaintiff must show that the official has "final

policymaking authority" with respect to "the ‘

1 Notably, in a related state court litigation concerning Greer's

eviction, a state court ruled that Greer's apartment was

unregulated and that, accordingly, the Landlord Defendants

were under no obligation to renew Greer's lease. See, e.g., Dime

Sav. Bank of N.Y., FSB v. Montague St. Realty Assocs., 686

N.E.2d 1340, 1342 (N.Y. 1997).

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particular conduct challenged in the lawsuit." Roe v.

City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008).

"Whether an official has final policymaking authority

is a legal question, determined on the basis of state

law." Id.

As the district court correctly determined, Greer

failed to demonstrate a genuine issue of material fact

as to whether Mehiel -- who made the decision to ban

Greer from public BPCA meetings

had final

policymaking authority with respect to that ban.

Although Greer correctly points to N.Y. Pub. Auth.

Law § 1973(7)

which provides that final

policymaking authority may be delegated to an

individual BPCA board member or officer -- Greer

failed to present evidence that the BPCA in fact

delegated such authority to Mehiel. Instead, the BPCA

Defendants presented evidence that such final

authority had not been delegated to Mehiel, as Mehiel

affirmed that the BPCA board could have reviewed his

decision (but chose not to). See City of St. Louis v.

Praprotnik, 485 U.S. 112,127 (1988) (plurality opinion)

("[W]hen a subordinate's decision is subject to review

by the municipality's authorized policymakers, they

have retained the authority to measure the official's

conduct for conformance with their policies."

(emphasis omitted)). Further, Greer's argument that

Mehiel, as CEO, must have had final policymaking

authority is unpersuasive; although CEOs may have

such authority in typical private corporations, Greer

provided no evidence that the CEO of the BPCA -a

public benefit corporation -- had such authority. We

therefore affirm the grant of summary judgment to

the BPCA on this claim.

III.

Rule 60 Motion

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We review the denial of Rule 60(b) motions for

abuse of discretion. Gomez v. City of New York, 805

F.3d 419, 423 (2d Cir. 2015). "A district court is said

to abuse its discretion if it bases its ruling on an

erroneous view of the law or on a clearly erroneous

assessment of the evidence. . . ." Id. (internal

quotation marks omitted). Rule 60(b) is "a

mechanism for 'extraordinary judicial relief invoked

only if the moving party demonstrates 'exceptional

circumstances.'" Ruotolo v. City of New York, 514

F.3d 184, 191 (2d Cir. 2008) (quoting Paddington

Partners v. Bouchard, 34 F.3d 1132, 1142 (2d Cir.

1994)). Here, the district court did not abuse its

discretion in finding that Greer failed to demonstrate

"exceptional circumstances" warranting relief. Id.

IV Discovery

We review discovery rulings for abuse of

discretion. DG Creditor Corp. v. Dabah, 151 F.3d 75,

79 (2d Cir. 1998). We likewise conclude that the

magistrate judge and the district court did not abuse

their discretion in their discovery rulings.

We have considered Greer's remaining

arguments and conclude they are without merit. For

the foregoing reasons, we AFFIRM the judgment of

the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of

Courts

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Appendix-B: Summary Judgment Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Steven E. Greer,

15-cv-6119 (AJN)

Plaintiff,

—v—

Dennis Mehiel, et al,

Defendants.

MEMORANDUM

OPINION & ORDER

ALISON J. NATHAN, District Judge:

Pro se Plaintiff Steven E. Greer brings this suit

against the company that owns his former apartment,

the company that manages that apartment building,

the Battery Park City Authority ("BPCA"), and

several individuals associated with those entities. At

this stage, two claims remain in Plaintiffs suit-a First

Amendment retaliation claim and a First Amendment

equal access claim. Before the Court are three motions

for summary judgment: one from Plaintiff, one from a

group of Defendants defined below as the Landlord

Defendants, and one from a group of Defendants

defined below as the BPCA Defendants. Also before

the Court are requests by Plaintiff for sanctions and

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to "reinstate" two previously dismissed defendants, as

well as several sealing requests from all parties. For

the reasons set forth below, Plaintiffs motion for

summary judgment is denied, and Defendants'

motions for summary judgment are granted.

Plaintiffs other requests are also denied. The sealing

requests are granted in part and denied in part.

I. BACKGROUND

Plaintiff rented Apartment 35F in the building

located at 200 Rector Place from 2002 through April

2014. Dkt. No. 381 (Rossi Decl.) THf 1, 5! Dkt. No. 373,

Ex. 16 (Non-Renewal Notice); Dkt. No. 382 (L 56.1) THf

7-9.

At all relevant times, Milford Management

("Milford") managed the property located at 200

Rector Place. L 56.1 2; Rossi Decl.

1-2. Stephen

Rossi is the Vice President and Director of

Management Services for Milford. Rossi Decl. Tf 1.

Mariners Cove Site B Associates ("Mariners Cove"),

where Howard Milstein is a partner, owns certain

units in the building located at 200 Rector Place. Rossi

Decl.

1-2. Janet Martin is involved in the

management of properties that Milstein has an

interest in. Rossi Decl. t 2. Milstein, Rossi, Martin,

Milford, and Mariners Cove comprise the "Landlord

Defendants."

The BPCA owns the land on which 200 Rector

Place is located. .Fee Rossi Decl. ^ 54, 59-60; Dkt. No.

376 (Hyman Decl.) ^ 5. The BPCA is a New York State

public benefit corporation. See N.Y. Pub. Auth. Law§

1973(l). The membership of the BPCA consists of

seven members, a majority of which constitutes "a

quorum for the transaction of any business or the

exercise of any power or function of the authority."

N.Y. Pub. Auth. Law§ 1973(l), (7). The members elect

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one of themselves as chairman, and the BPCA may

delegate to one or more members, officers, agents, or

employees "such powers and duties as it may deem

proper." N.Y. Pub. Auth. Law § 1973(2), (7). The BPCA

has the power to "acquire, lease, hold, mortgage and

dispose of real property." N.Y. Pub. Auth. Law§

1974(3). Beginning June 20, 2012, Dennis Mehiel was

the Chairman and CEO of the BPCA. Dkt. No. 375

(Mehiel Decl.) ^ 1. At all times relevant to this

litigation, Robert Serpico served as the Chief

Financial Officer of the BPCA. Dkt. No. 374 (Serpico

Decl.) Tf 1. The Court refers to Serpico and the BPCA,

together, as the "BPCA Defendants."

In 2009, Plaintiff created a blog called

BatteryPark.TV, where he published articles about

the BPCA's activities. Dkt. No. 377 (BPCA 56.1) t 9!

Dkt. No. 394 (PI. Counter to BPCA 56.1) f 9.

According to one BPCA employee, Plaintiffs reporting

angered Serpico, who told the BPCA staff that the blog

was not credible and discouraged the staff from

reading it. Dkt. No. 395, Ex.16 (Ford Depo.) at 10D511Y.

Serpico and Rossi sometimes met for lunch or

coffee, including one such meeting during the fall of

2013. See Serpico Decl.^j 3; Rossi Decl. *[HI 61-63! Dkt.

No. 395, Ex. 20 (Swanson Depo.) at 21 ^8-22-4.

In a letter dated January 24, 2014, Milford

informed Plaintiff that his lease would not be renewed

and instructed him to vacate his apartment by April

30, 2014. Non-Renewal Notice. Plaintiff insists that

there is no proof that he failed to pay rent, see, e.g.,

Dkt. No. 368 (PL 56. 1) ^ 28, but there is evidence in

the record that Plaintiff often submitted late

payments or owed money on his apartment. See Greer

Ex. T (Greer Checks)! Dkt. No. 373, Ex. 25

(Spreadsheet); Dkt. No. 381, Ex. 6 (7/2/12 Email from

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Greer); Dkt. No. 381, Ex. 7 (7/30/12 Email RossiGreer); Dkt. No. 381, Ex. 9 (9/27/12 Greer-Hill

Emails); Dkt. No. 381, Ex. 10 (12/6/12 Email from

Greer); Dkt. No. 381, Ex. 11 (3/20/13 Greer-Hill

Emails); Dkt. No. 381, Ex. 12 (4/25/13 Email from

Greer); Dkt. No. 381, Ex. 15 (5/16/13 Email from

Greer); Dkt. No. 381, Ex. 16 (8/7/13

Email from Greer); Dkt. No. 381, Ex. 17; Dkt. No. 381,

Ex. 20 (7/3/12 Greer-Rossi Emails). Though disputed,

there is also some evidence that the Landlord

Defendants took legal action against other tenants

when they owed two months' rent or more. See L 56.1

lit 55, 58, 60; Dkt. No. 381, Exs. 34-43.

When one BPCA employee asked Serpico "if

[Serpico] had anything to do with Greer not getting

his lease renewed," Serpico, according to the

employee, visibly smirked, shrugged," and did not

answer the question. Swanson Depo. at 19:9-21, 24^720.

Despite the non-renewal notice, Plaintiff did

not vacate his apartment by April 30, 2014. See BPCA

56.1 113; PI. Counter to BPCA 56.1 113. Accordingly,

Mariners Cove began an eviction proceeding against

Plaintiff. See PI. 56.1 1 46. In response to an email

from Plaintiff warning Defendants not to delete any

emails, Serpico emailed Rossi on May 28, 2014, and

asked, "Is [Plaintiff] now evicted? Where is he living?"

Dkt. No. 374, Ex. 1 (5/28/14 Serpico Email).

Plaintiff was ultimately evicted from his

apartment in the spring of 2016. Dkt. No. 184, Ex. D

(Housing Court Decision).

Defendants contend that Plaintiff regularly

harassed and bothered BPCA employees and Battery

Park City residents. See, e.g., BPCA 56.1 1 14.

Plaintiff denies those accusations and emphasizes

that any alleged misconduct occurred after Plaintiffs

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lease was not renewed. PL Counter to BPCA 56.1 H 14.

However, there is evidence that the BPCA Defendants

were aware of at least one incident in which Plaintiff

acted antagonistically before January 2014. See Dkt.

No. 3 73, Ex. 11 (March 11, 2013 Email) (detailing an

incident in which a woman called the police because

Plaintiff was yelling at her and trying to videotape

her).

Plaintiff attended the BPCA board meeting

held on June 9, 2015. BPCA 56.1 HH 40-42; PI. Counter

to BPCA 56.1 H 41. At the end of the meeting, the

BPCA board transitioned to an executive session,

which was closed to the public. See BPCA 56.1 H 43;

PI. Counter to BPCA 56.1 HH 41-42. However, Plaintiff

refused to leave the meeting room. BPCA 56.1 H 44; PI.

Counter to BPCA 56.1 H 43. Kevin McCabe, Mehiel's

Chief of Staff, asked Plaintiff to leave the room and

advised Plaintiff that if he did not leave the police

would be called. BPCA 56.1 HH 44-48; PI. Counter to

BPCA 56.11j47. Plaintiff then left the room. PI.

Counter to BPCA 56.1H 48.

After the June 9, 2015, board meeting, Mehiel

decided to exclude Plaintiff from the BPCA offices,

including future BPCA board meetings, to ensure

safety and minimize disruptions. Mehiel Decl.HH 1315; see also Dkt. No. 373, Ex. 3 (McCabe Depo.) at

32:24-33-3 (McCabe stating that Mehiel directed

security to ban Plaintiff from BPCA offices because of

Plaintiffs "abusive and disruptive behavior"); Dkt. No.

376, Ex. 13 (6/9/15 Email from Mehiel) (instructing

security to exclude Plaintiff from the BPCA office

because of his "[c]onsistent hostile behavior").

According to Mehiel, the BPCA could have reviewed

that decision but chose not to. Mehiel Decl. if 16.

Instead of attending the July 29, 2015 BPCA board

meeting, Plaintiff was allowed to watch a live video

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feed of the meeting in a building several blocks away

from the BPCA main offices. See Mehiel Decl. if 14!

BPCA 56.1 if 56! PI. Counter to BPCA 56.1 if 50.

On August 4, 2015, Plaintiff filed a complaint

in this action. Dkt. No. 1. He filed a Second Amended

Complaint on November 4, 2015. Dkt. No. 85 (SAC).

Plaintiff alleged, inter alia, that Defendants violated

his First Amendment rights. Specifically, he claimed

that the nonrenewal of his lease, which led to his

ultimate eviction, was the result of a conspiracy by the

Landlord Defendants and the BPCA, Mehiel, and

Serpico to retaliate against Plaintiff for his blog. See

SAC 42-43, 64. In addition, Plaintiff claimed that the

BPCA, Mehiel, and Serpico unlawfully excluded him

from the July 2015 board meeting. *9eeSAC Tff 68-73.

Plaintiff initially sought an order enjoining

Defendants from evicting him. 5eeSAC if 36; Dkt. No.

2. On February 24, 2016, the court denied Plaintiffs

motion for a preliminary injunction enjoining the

then-ongoing eviction proceedings in state court. Dkt.

No. 138.

Defendants filed motions to dismiss, Dkt. Nos.

102, 114, which the Court granted in part and denied

in part on September 30, 2016,2 see Dkt. No. 177.

Relevant here, the Court granted a motion to dismiss

the retaliation claim against Mehiel but denied the

motion to dismiss that claim against the Landlord

Defendants, the BPCA, and Serpico. iSteeDkt. No. 177

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The Court granted the motion to dismiss Plaintiffs First

Amendment claim alleging harassment by security officers, Dkt.

No. 177 at 6, his claim for a suhstantive violation of the Fair

Housing Act, Dkt. No. 177 at 15-19, his claim for retaliation

under the Fair Housing Act, Dkt. No. 177 at 19-21, and his

defamation claim, Dkt. No. 177 at 21-23. The Court later denied

Plaintiffs motion to dismiss the Landlord Defendants'

counterclaim for attorney's fees, fee Dkt. No. 425.

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at 6. The Court also granted a motion to dismiss the

second claim-unlawful exclusion from the board

meeting-against Mehiel and Serpico but allowed the

claim to continue against the BPCA. She Dkt. No. 177

at 6. Accordingly, at this point, Plaintiff has two

remaining claims^ (l) a First Amendment retaliation

claim against Defendants BPCA and Robert Serpico

(the "BPCA Defendants") and Defendants Mariners

Cove Site B Associates, Howard Milstein, Steve Rossi,

Janet Martin, and Milford Management (the

"Landlord Defendants"), and (2) a First Amendment

equal access claim against the BPCA.

The Landlord Defendants and the BPCA

Defendants each move for summary judgment. Dkt.

Nos. 371, 379. Plaintiff also moves for summary

judgment. Dkt. No. 366.

II. MOTIONS FOR SUMMARY JUDGMENT

A. Legal Standard

A party is entitled to summary judgment only if there

is no genuine dispute of material fact and the movant

is entitled to judgment as a matter of law. Ramos v.

Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d

Cir. 2012). In reviewing the evidence on a motion for

summary judgment, courts construe the evidence in

the light most favorable to the nonmoving party and

draw all reasonable inferences in that party's favor.

Id. "A fact is material if it might affect the outcome of

the suit under the governing law, and an issue of fact

is genuine if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party."

Id. (quoting Niagara Mohawk Power Corp. v. Hudson

River-Black River Regulating Dist., 673 F.3d 84, 94

(2d Cir. 2012)).

B. First Amendment Retaliation Claim

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Plaintiff contends that he is entitled to summary

judgment because he has established Defendants'

liability on his First Amendment retaliation claim.

Dkt. No. 367 (PI. Memo) at 12-19. Each set of

Defendants has cross-moved for summary judgment

on the claim.

Because the Landlord Defendants are private

actors, to succeed on his § 1983 claim

against them Plaintiff must demonstrate that they

conspired with the BPCA Defendants, who are state

actors, to retaliate against Plaintiff. See Pangburn v.

Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) ("To prove

a § 1983 conspiracy, a plaintiff must show: (l) an

agreement between ... a state actor and a private

entity! (2) to act in concert to inflict an

unconstitutional injury; and (3) an overt act done in

furtherance of that goal causing damages."). The

BPCA Defendants and the Landlord Defendants

contend there is no evidence of a conspiracy between

them; Plaintiff argues that the evidence clearly

establishes that a conspiracy existed. *9eePl. Memo at

12-16; Dkt. No. 380 (L Memo) at 7-10; Dkt. No. 372

(BPCA Memo) at 3-7. The Landlord Defendants

further argue that, even if there were evidence of a

conspiracy, they would be entitled to summary

judgment because Plaintiffs failure to pay rent on

time and his harassment of building tenants and staff

caused the Landlord Defendants not to renew

Plaintiffs lease. L Memo at 10-18.

Assuming arguendo that sufficient evidence

exists to support a conclusion that the BPCA

Defendants and the Landlord Defendants conspired to

retaliate against Plaintiff, Defendants are entitled to

summary judgment on Plaintiffs First Amendment

retaliation claim because there is no genuine issue of

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material fact that could lead a reasonable juror to

conclude that Defendants retaliated against Plaintiff.

To succeed on a First Amendment retaliation

claim, a plaintiff must prove that "(l) he has an

interest protected by the First Amendment; (2)

defendants' actions were motivated or substantially

caused by the exercise of that right; and (3)

defendants' actions caused" the plaintiff some injury.

Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir.

2001); see also BeechwoodRestorative Care Center v.

Leeds, 436 F.3d 147, 152 (2d Cir. 2006) ("To survive

summary judgment on a section 1983 First

Amendment retaliation claim a plaintiff must

demonstrate that he engaged in protected speech, and

that the speech was a substantial or motivating factor

in an adverse decision taken by the defendant."). "A

causal relationship [between the protected activity

and the adverse action] can be demonstrated either

indirectly by means of circumstantial evidence,

including that the protected speech was followed by

adverse treatment, or by direct evidence of animus."

Wrobel v. County of Erie, 692 F.3d 22, 32 (2d Cir.

2012); see also Gorman-Bakos v. Cornell Co-op

Extension of Schenectady County, 252 F.3d 545, 554

(2d Cir. 2001) (explaining that a causal connection

may be established by showing that the adverse action

closely followed the protected activity). In the context

of speech-based retaliation, the defendant may prevail

"by demonstrating by a preponderance of the evidence

that it would have taken the same adverse action in

the absence of the protected speech." Mandell v.

County of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003);

see also Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 286-87 (1977) (same).

Here, the heart of the retaliation issue is

whether the non-renewal of Plaintiffs lease was

21a

motivated by Plaintiffs exercise of his First

Amendment right. Because the record could not lead

a reasonable juror to conclude that it was, Defendants

are entitled to summary judgment on this claim.

Plaintiffs evidence of retaliation rests on little

more than speculation. Although Serpico was aware

of and disapproved of Plaintiffs blog, see Ford Depo.

at 9: 15*11 '1, and may have been involved in the

decision not to renew Plaintiffs lease, see, e.g.,

Swanson Depo. at 19:9*21, 24:7*20, there is no

evidence in the record that Serpico wanted to harm

Plaintiff because of Plaintiffs blog. Indeed, Plaintiff

had been operating his blog for several years before

the nonrenewal of his lease, BPCA 56.1 Tj 9! PI.

Counter to BPCA 56.1]f9; PL 56.1^2, and at all times

during that period Serpico was the Chief Financial

Officer of the BPCA, Serpico Decl. f 1.

By contrast, the record contains extensive

evidence to support a conclusion that Defendants

would not have renewed Plaintiffs lease even in the

absence of Plaintiffs blog. Most significantly, the

undisputed record demonstrates that Plaintiff did not

consistently pay rent on time. Copies of rent checks

from Plaintiff show that he paid rent late on several

occasions throughout 2012 and 2013. See Greer Ex. T

("Greer Checks") (check dated January 1, 2013, for

December rent; check dated February 19, 2013, for

January rent; check dated March 1, 2013 for February

and March rent; check dated March 31, 2013 for

March rent-presumably for the amount remaining

after the March 1, 2013 check; check dated December

25, 2013, for December rent); Dkt. No. 381, Ex. 17

(check dated August 31, 2012, for August and

September rent; check dated December 1, 2012, for

November rent); see also Dkt. No. 184, Ex. A (filings

in housing court listing payments owed by Plaintiff).

22a

In addition, emails between the Landlord Defendants

and Plaintiff from 2012 and 2013 reveal discussions in

which Plaintiff acknowledges that he owes money to

the Landlord Defendants. See 7130112 Email RossiGreer (Plaintiff explaining to Rossi that he is "getting

some banking matters corrected" and will bring a

check shortly for money that was outstanding" from

July); 8/7 /13 Email from Greer (Plaintiff stating, "I

screwed up. I recently closed an account but failed to

throw away that checkbook .... I mistakenly gave you

a check from the wrong closed out account."); see also

712112 Email from Greer (Plaintiff stating that rent

for June 2012 and July 2012 would be arriving soon);

9/27/12 Greer-Hill Emails (showing that Plaintiff

owed unpaid storage fees); 12/6/12 Email from Greer

("I see that I owe as of today $4,142 for apartment

rent, including December, and $214 for storage. I did

miss a few months (but not 6!).") (emphasis added));

5/16/13 Email from Greer (Plaintiff stating that he

would drop off the May rent if he receives his

countersigned lease); 7 /3/12 Greer-Rossi Emails

(Rossi explaining that a late fee would be charged for

the June rent). Although in one email from April 2013,

Plaintiff claims that he paid rent every month for 11

years, see 4/25/13 email from Greer, the evidence

outlined above shows that he did not pay that rent on

time. And even in that April 2013 email Plaintiff

admits that he owes a balance in excess of $3000.

4/25/13 Email from Greer.

Besides the contemporaneous admissions by

Plaintiff of his late payments, Plaintiff has also made

statements recognizing that the evidence produced in

this litigation demonstrates that he failed to

consistently pay his rent on time. For example,

Plaintiff cites to rent checks for the years 2012 and

2013 and states that they prove "he paid on the first

23a

of the month and was never more than 30-days late."

PI. 56.1 ]f 31 (emphasis added). Plaintiff also

recognizes that there were "[o]ngoing disagreements

over the actual balances owed." PI. 56.1 Tf 31. In

addition, Plaintiff acknowledges that a spreadsheet

submitted by the BPCA Defendants, Dkt. No. 373, Ex.

253, shows that Plaintiff had "running balances equal

to two-months or more of rent," PI. Counter to BPCA

56.1 If 81. However, Plaintiff argues that the balance

appears because Milford was late in processing his

payments. PI. Counter to BPCA 56.1 If 81.

Nevertheless, although there are emails indicating

that the Landlord Defendants sometimes reduced the

amounts that Plaintiff owed in response to his

protestations, see Dkt. No. 370, Ex. W, there is no

evidence that the Landlord Defendants' accounting

system was inaccurate-or at least that its inaccuracy

accounts for every late payment by Plaintiff.

In his final counter-argument to the

overwhelming evidence of his non-payment of rent,

Plaintiff asks why, if he was "truly failing to pay rent

for two-months at a time" the Landlord Defendants

renewed his lease in 2012 and 2013. See PI. Counter

to BPCA 56.1 If 81. Although the record provides no

clear answer why Plaintiffs lease was not renewed in

2014 as opposed to any other year, there is no evidence

that Plaintiffs blog motivated the non-renewal.

Furthermore, there is evidence that the

Landlord Defendants took legal action against other

tenants who owed amounts comparable to that owed

by Plaintiff. Rossi Decl. Tff 42-50. Plaintiff adamantly

3 Plaintiff refers to Docket Number 373, Exhibit 17 in his Counter

Statement to the BPCA Defendants' 56.1 Statement, but it

appears from the context of Plaintiffs Counter Statement and the

56.1 Statement that he is countering that Plaintiff likely

intended to reference Exhibit 25.

24a

disputes that conclusion and insists that there is no

evidence the other tenants were taken to court or

evicted. See Dkt. No. 397 (PI. Counter to Landlord

56.1) 53. Plaintiff is correct that Defendants have

not provided eviction notices or court filings for other

tenants. But the "Legal Action Update Report" shows

when legal action was taken against a particular

tenant, and the Reports in the record show that action

was often taken when tenants owed two months' rent.

*SeeDkt. No. 381, Exs. 34-43.

Finally, Defendants argue that incidents of

harassment by Plaintiff also contributed to the

decision not to renew Plaintiffs lease and to his

ultimate eviction. However, several of the incidents

that Defendants highlight occurred after the non­

renewal of Plaintiffs lease on January 24, 2014. The

Court declines to consider those incidents because

they could not have motivated the non-renewal of

Plaintiffs lease. Nevertheless, there is evidence that

the BPCA Defendants were aware of at least one

instance of Plaintiffs antagonistic behavior before

January 2014. See March 11, 2013 Email (describing

an incident in which Plaintiff yelled at a woman and

tried to videotape her, prompting the woman to call

the police).

Despite Plaintiffs arguments to the contrary,

there is no evidence beyond mere speculation that

Plaintiffs blog motivated Defendants not to renew

Plaintiffs lease. Speculation alone is insufficient to

support Plaintiffs claims at this stage. See Harlen

Assocs. v. Inc. Village of Mineola, 273 F ,3d 494, 499

(2d Cir. 2001). Instead, the evidence, taken in the light

most favorable to Plaintiff, only supports a conclusion

that Defendants "would have taken the same adverse

action in the absence of the protected speech."

Mandell, 316 F.3d at 382. No reasonable jury could

25a

conclude otherwise. Indeed, there is extensive

evidence of Plaintiffs frequent untimely rent

payments and Defendants' taking legal action against

other tenants in similar circumstances. Because the

undisputed evidence does not support a reasonable

conclusion that the decision not to renew Plaintiffs

lease was motivated or substantially caused by

Plaintiffs exercise of his First Amendment rights, the

Landlord Defendants and the BPCA Defendants are

entitled to summary judgment on Plaintiffs First

Amendment retaliation claim.

C. First Amendment Equal Access Claim

The BPCA also moves for summary judgment on

Plaintiffs equal access claim, as does Plaintiff. See

BPCA Memo at 8-13; PI. Memo at 5-12. Plaintiff

maintains that he "proved" his equal access claim,

while the BPCA responds that it did not violate

Plaintiffs First Amendment rights by excluding him

from the July 29, 2015, board meeting. The BPCA

emphasizes that the decision to exclude Plaintiff was

a response to Plaintiffs prior disruptive and

threatening behavior and that Plaintiff was still

allowed to watch the meeting from a different room.

BPCA Memo at 2, 8-13. The BPCA also argues that it

is entitled to summary judgment because Plaintiffs

exclusion from the July 29, 2015, board meeting was

not the result of an official policy or custom, as

required to impose liability on the BPCA.4 See BPCA

Memo at 13-17.

4 The BPCA further argues that for the same reason, summary

judgment should be entered in favor of Serpico, in his official

capacity, on the equal access claim. See BPCA Memo at 13, 17

n.13. Because the operative complaint, Dkt. No. 85, lists "Robert

Serpico, an individual," as a defendant and does not assert claims

against Serpico in his official capacity, the Court does not

consider that argument.

26a

A municipal entity can be sued under § 1983 if

its "policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury." Monell v.

Dep 't of Soc. Servs., 436 U.S. 658, 694 (1978). The

same law applies to public benefit corporations. See

Estes-El v. State Dep 't of Motor Vehicles Office of

Admin. Adjudication Traffic Violation Bureau, 95 Civ.

3454, 1997 WL 342481, at *4 (S.D.N.Y. June 23, 1997).

"Where the contention is not that the actions

complained of were taken pursuant to a local policy

that was formally adopted or ratified but rather that

they were taken or caused by an official whose actions

represent official policy, the court must determine

whether that official had final policymaking authority

in the particular area involved." Jeffes v. Barnes, 208

F.3d 49, 57 (2d Cir. 2000). Courts look to state law in

determining whether the official in question possessed

final policymaking authority. Id. The Second Circuit

has "explicitly rejected the view that mere exercise of

discretion [is] sufficient to establish municipal

liability." Anthony v. City ofNew York, 339 F.3d 129,

139 (2d Cir. 2003). "[W]hen a subordinate's decision is

subject to review by the municipality's authorized

policymakers, they have retained the authority to

measure the official's conduct for conformance with

their policies." City ofSt. Louis v. Praprotnik, 485 U.S.

112, 127 (1988) (plurality opinion) (emphasis

omitted). "Where a plaintiff relies ... on the theory that

the conduct of a given official represents official policy,

it is incumbent on the plaintiff to establish that

element as a matter of law. Jeffes, 208 F.3d at 57-58!

see also Roe v. City of Waterbury, 542 F.3d 31, 37 (2d

Cir. 2008) (stating that, when a plaintiff "seeks to hold

a municipality liable for a single decision by a

municipal policymaker, the plaintiff must show that

27a

the official had final policymaking power" (internal

quotations omitted)).

New York law establishes the BPCA as a public

benefit corporation. N.Y. Pub. Auth. Law § 1973(l).

The law provides that the BPCA shall consist of seven

members. N. Y. Pub. Auth. Law§ 1973(l). A majority

of the members of the BPCA "shall constitute a

quorum for the transaction of any business or the

exercise of any power or function of the authority."

N.Y. Pub. Auth. Law § 1973(7). Still, the BPCA "may

delegate to one or more of its members, or to its

officers, agents or employees, such powers and duties

as it may deem proper." N.Y. Pub.

Auth. Law § 1973(7).

There is no evidence that the officials who

decided to deny Plaintiff entry to the July 2015 board

meeting had final policymaking authority. Mehiel,

Chairman and CEO of the BPCA, made the decision

to exclude Plaintiff from the BPCA board meeting

after concluding "that Plaintiff posed a threat to

public safety, the orderly conduct of BPCA board

meetings, and the smooth continued operations of the

BPCA." Mehiel Decl. 13! see also McCabe Depo. At

32:24-33;3 (McCabe stating that Mehiel told security

to exclude Plaintiff from BPCA offices); 619115 Email

from Mehiel (instructing security to ban Plaintiff from

the BPCA office). According to Mehiel, the "BPCA

board could have, if it so chose, reviewed [Mehiel's]

decision." Mehiel Decl.U 16. The record contains no

evidence to contradict that assertion. Although, as

Plaintiff points out, see Dkt. No. 396 (PI. BPCA Opp.)

at 11, New York law allows the BPCA board to

delegate "powers and duties as it may deem proper,"

there is no evidence that the BPCA in fact delegated

to Mehiel the power to exclude individuals from board

meetings. Similarly, that Mehiel was both Chairman

28a

of the Board and CEO, see PI. BPCA Opp. at 11, does

not on its own demonstrate that he had final

policymaking power. Plaintiffs other argument-that

the BPCA failed to train anyone on the New York

Open Meeting Law, document retention, or ethics, see

PI. BPCA Opp. at 11-12-is not relevant to the question

whether Plaintiffs exclusion from the July 2015 board

meeting represented official policy.

Because the undisputed evidence shows that

Mehiel's decision to exclude Plaintiff was "subject to

review" by the BPCA board, Praprotnik, 485 U.S. at

127, the record does not support a conclusion that

Mehiel had "final policymaking authority," Jeffes, 208

F.3d at 57.

III. PLAINTIFF’S REQUEST FOR SANCTIONS

Plaintiff alleges an "egregious pattern of spoliation by

all defendants" and requests sanctions pursuant to

Federal Rule of Civil Procedure 37 or the Court's

inherent powers. PL Memo at 19-22. Specifically,

Plaintiff alleges that (l) Defendants deleted emails,

including an email from Serpico to Rossi that Serpico's

secretary, Linda Soriero, witnessed; (2) the BPCA

engaged in witness tampering by firing that secretary

after she began to assist Plaintiff in this

case! and (3) Serpico's counsel inappropriately

instructed Serpico not to answer certain questions

during his deposition. PI. Memo at 19-20. As a

sanction, Plaintiff seeks entry of summary judgment

or default judgment against Defendants. See PI.

Memo at 21-22.

Federal Rule of Civil Procedure 37 provides

that, ”[i]f electronically stored information that should

have been preserved ... is lost because a party failed to

take reasonable steps to preserve it, and it cannot be

29a

restored or replaced through additional discovery,"

the court may, "upon finding prejudice to another

party from loss of the information, ... order measures

no greater than necessary to cure the prejudice." Fed.

R. Civ. Proc. 37(e)(1). In addition, "upon funding that

the party acted with the intent to deprive another

party of the information's use in the litigation," the

court may "presume that the lost information was

unfavorable to the party [or] ... dismiss the action or

enter a default judgment."5 Fed. R. Civ. Proc. 37(e)(2).

"[D]ismissing a complaint or entering judgment

against a defendant[] are severe sanctions, but they

may be appropriate in 'extreme situations,' as 'when a

court finds willfulness, bad faith, or any fault on the

part of the' noncompliant party." Guggenheim

Capital, LLC v. Birnbaum, 722 F.3d 444, 450-51 (2d

Cir. 2013) (quoting Bobal v. Rensselaer Polytechnic

Inst., 916 F.2d 759, 764 (2d Cir. 1990)).

The Court declines to impose sanctions on

Defendants. As an initial matter, Plaintiffs

contention that the BPCA engaged in witness

tampering is mere speculation and lacks any

evidentiary support. Moreover, sanctions are not

warranted against Serpico or the BPCA as a result of

their attorney's instruction to not answer certain

questions during Serpico's deposition. Counsel stated

on the record his basis for directing Serpico not to

answer those questions. See Greer Ex. H (Serpico

Depo.) at 3B 18-33:22. Finally, although there is

5 Plaintiff argues that sanctions are appropriate pursuant to

Federal Rule of Civil Procedure 37(c). See PI. Memo at 20-21.

Rule 37(c) provides for sanctions if a party "fails to provide

information or identify a witness as required by Rule 26(a) or (e)."

However, the heart of Plaintiffs request is the argument that

Defendants deleted emails, to which Rule 37(e), which

provides for sanctions if a party fails to preserve electronically

stored information, is more applicable.

30a

evidence that some of the Landlord Defendants'

emails were deleted, the BPCA Defendants produced

copies of those emails. Those emails thus can "be

restored or replaced through additional discovery."

Fed. R. Civ. Proc. 37(e). To the extent that Plaintiff

believes that a "smoking gun" email was deleted and

not produced by either group of Defendants, there is

simply no basis to conclude that such an email existed.

The only evidence Plaintiff cites is Soriero's statement

that she saw an email between Serpico and Rossi

discussing Plaintiff. However, assuming arguendo

that the Court should consider Soriero’ s statement,

the record contains no details regarding the alleged

"smoking gun" email. It is thus quite possible that the

May 2014 email between Serpico and Rossi was the

one Soriero was alluding to. In any event, Plaintiff has

not demonstrated "willfulness, bad faith, or any fault"

on the part of Defendants that would justify the

"severe" sanction of the entry of summary or default

judgment. Plaintiffs request for sanctions is denied.

IV. PLAINTIFF'S REQUEST TO REINSTATE

MEHIEL AND SERPICO AS DEFENDANTS

In its September 30, 2016 Order, the Court

explained that Plaintiff had included "no allegations

in the complaint that either [Mehiel or Serpico] had a

role in excluding Greer from the [July 2015 board]

meeting." Dkt. No. 177 at 12. Accordingly, the Court

granted the motion to dismiss the First Amendment

equal access claim against those individuals. See id. ‘

Plaintiff now requests that his First

Amendment equal access claim be reinstated against

Mehiel and Serpico. PI. Memo at 6. Plaintiff appears

to cite to Federal Rule of Civil Procedure 60(b) in

support of his request. See PI. Memo at 6 & n.4.

However, Rule 60(b) is not applicable here because the

31a

Court's decision regarding Defendants' motions to

dismiss is not a final order. See Glendora v. Malone,

165 F.R.D. 42, 43 (S.D.N.Y. 1996) (stating that an

order dismissing certain defendants is not final,

"unless the court makes the findings contemplated by

Fed. R. Civ. P. 54(b) and enters partial final judgment

as to those parties").

Alternatively, if Plaintiffs argument is

construed as a motion for reconsideration of the

Court's September 30, 2016 Order, it is untimely. See

McDowell v. Eli Lilly & Co., No. 13 Civ. 3786, 2015

WL 4240736, at *1 (S.D.N.Y. July 13, 2015) ("Under

Local Civil Rule 6.3, 'a notice of motion for

reconsideration or reargument of a court order

determining a motion shall be served within fourteen

(14) days after the entry of the Court's determination

of the original motion, or in the case of a court order

resulting in a judgment, within fourteen (14) days

after the entry of the judgment.'" (quoting Local Civil

Rule 6.3)).

Finally, to the extent that Plaintiff is seeking to

amend his complaint under Federal Rule of Civil

Procedure 15, that request is denied. As an initial

matter, the Court notes that Plaintiff previously

sought to amend his complaint for a third time to

clarify other claims, and the Court denied that request

because Plaintiff had chosen not to amend his

complaint in response to Defendants' motions to

dismiss. See Dkt. No. 192; see also Dkt. No. 221. In

any event, at this point, Plaintiff has already amended

his complaint twice, discovery has been completed,

and all parties have moved for summary judgment. To

allow Plaintiff to amend his complaint now would

unduly delay this litigation. Although some of the

discovery regarding Serpico's and Mehiel's alleged

involvement in Plaintiffs exclusion from the board

32a

meeting undoubtedly would overlap with some of the

discovery that has already occurred, additional

discovery, at least as to Serpico's role, would likely be

needed. Indeed, there is no evidence in the record that

Serpico was involved in the decision to exclude

Plaintiff from the meeting, thus suggesting that

amendment as to the claim against Serpico would be

futile. See McCarthy v. Dun & Bradstreet Corp., 482

F.3d 184, 200 (2d Cir. 2007) ("A district court has

discretion to deny leave [to amend] for good reason,

including futility, bad faith, undue delay, or undue

prejudice to the opposing party."). Moreover, Mehiel

has raised the defense of qualified immunity, Dkt. No.

400 (BPCA Opp. to P) at 19-21, a question that the

parties would likely need an opportunity to brief.

Given the late stage of litigation, the Court denies

Plaintiff leave to amend his complaint.

V. SEALING REQUESTS

The parties also make several sealing requests.

The BPCA Defendants request that Exhibits 1 and 2

to the Declaration of Shari Hyman, Dkt. No. 376, be

filed in redacted form to protect the identities and

personal information of third parties. That request is

granted. Those documents already appear on the

docket in redacted form and shall remain on the

docket in that form. Within three weeks of the date of

this Order, the BPCA Defendants shall file

unredacted versions of those exhibits under seal.

The BPCA Defendants have also requested to

file under seal certain documents and testimony that

Plaintiff has produced and designated as

"Confidential." Specifically, Plaintiff informed the

BPCA Defendants that he wanted to maintain the

following exhibits under seab Exhibits 2, 9, 10, 15, 16,

17, 19, 20, 21, 22, 23, and 24 to the Declaration of

33a

Michael Tremonte, Dkt. No. 373. There does not

appear to be any valid reason to file those documents

under seal. As the BPCA Defendants point out,

Exhibits 15 and 16 have already been filed publicly in

this case. Accordingly, the BPCA Defendants are

instructed to file the exhibits at issue on the public

docket within three weeks of the date of this Order.

Furthermore, on July 20, 2017, Plaintiff

informed the Court that Docket Numbers 381-1, 3813, 381-5-filed by the Landlord Defendants-revealed

Plaintiffs bank account information. Dkt. No. 407. The

Court ordered that the exhibits be temporarily sealed.

Dkt. No. 408. On July 24, 2017, the BPCA Defendants

informed the Court that Docket Number 381-5, filed

by the Landlord Defendants and which the Court had

temporarily sealed, was the same as Docket Number

373-5, filed by the BPCA Defendants. Dkt. No. 409.

Accordingly, the Court temporarily sealed Docket

Number 373-5. Dkt. No. 411.

The Landlord Defendants have

since

acknowledged that redactions to Docket Numbers

381-1 and 381-3 are necessary to protect Plaintiffs

bank account information. Accordingly, the Landlord

Defendants' request to file redacted versions of 381-1

and 381-3 on the public docket is granted. Within

three weeks of the date of this Order, the Landlord

Defendants shall file redacted versions of those

exhibits on the public docket. The unredacted versions

of 381-1 and 381-3 shall be filed and remain under

seal. Document 381-5 does not, however, include any

bank account information. Accordingly, the temporary

seal on Docket Numbers 381-5 and 373-5 is lifted.

Within three weeks of the date of this Order, the

Landlord Defendants shall file unredacted versions of

381-5 and 373-5 on the public docket. In his July 20,

2017 letter, Plaintiff also stated that 381-4, 381-9,

34a

381-17, 381-19, 381-25, 381-26, 381-27, 381-29, 38130, and 404-6 were classified as "Confidential" and

should not have been filed on the public docket. Dkt.

No. 407. The Court ordered that the exhibits be

temporarily sealed. Dkt. No. 408. Similarly, at

Plaintiffs request, the Landlord Defendants

requested to file under seal the following exhibits:

Exhibits 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 20, 58, 62,

64, 65, 66, and 67 to the Declarations of Stephen Rossi

and Deborah Riegel, Dkt. Nos. 381 & 383. The

Landlord Defendants also requested to seal certain

documents that quote from the "Confidential"

documents, specifically: the memorandum of law in

support of their motion for summary judgment, Dkt.

No. 380; the 56.1 statement of material facts, Dkt. No.

382; Stephen Rossi's declaration, Dkt. No. 381; and

Deborah Riegel's declaration, Dkt. Nos. 383. Since

making that sealing application essentially on

Plaintiffs behalf, the Landlord Defendants have

acknowledged that some redactions to those exhibits

are necessary to protect Plaintiffs bank account

number. There does not appear to be any other basis

to redact or file under seal the documents identified

by Plaintiff. Accordingly, within three weeks of the

date of this Order, the Landlord Defendants shall file

all exhibits and documents that were the subject of the

sealing application on the public docket, with only

Plaintiffs bank account information redacted as

necessary. Finally, Plaintiff has requested that

several of his own exhibits be filed under seal. As to

the exhibits to his memorandum of law in support of

his motion for summary judgment, Dkt. No. 367,

Plaintiff complains that Exhibits B, D, J, T, U, W, X,

zD, and zE "would be embarrassing and harmful to

[his] reputation." Although some of the exhibits may

harm Plaintiffs reputation by demonstrating that he

35a

failed to pay rent in a timely manner or was thought

to be a security threat, those issues are at the core of

this case. Accordingly, Plaintiffs request to seal those

documents because they may damage his reputation

are denied. However, Exhibits T, U, and W appear to

contain banking information for Plaintiff. Those

exhibits should thus be filed in redacted form, with the

banking information removed. Within three weeks of

the date of this Order, Defendants6 shall file on the

public docket Exhibits B, D, J, X, and zE and a

redacted version of Exhibits T, U, and W. In addition,

the Court is in receipt of only a redacted version of

Exhibit zD. To fully evaluate whether the redactions

are necessary, Plaintiff shall submit via email a clean,

unredacted version of Exhibit zD to the Court within

three weeks of the date of this Order. For other

exhibits to his motion for summary judgment

(Exhibits A, F-M, OV, Y), Plaintiff makes no

argument why they should be sealed and states that

if the Court decides that the exhibits are "not worthy

of being sealed," he "will not contest that decision."

Similarly, Plaintiff requests that Exhibits 1-11, 13-16,

and 19 to his declaration in opposition to the Landlord

Defendants' motion for summary judgment, Dkt. No.

399, be filed under seal, but he does not make specific

arguments why they should be sealed and again states

that he will not contest the Court's decision that the

exhibits are "not worthy of being sealed." Plaintiff

takes the same approach regarding Exhibits 3-7, 9,

10-12, 13, 17-19, 21, and 22 to Plaintiffs declaration

in opposition to the BPCA Defendants' motion for

summary judgment, Dkt. No. 395. Neither the

Landlord Defendants nor the BPCA Defendants

contend that those exhibits should be filed under seal.

6 Because Plaintiff is pro se, the Court requests that Defendants

file the documents at issue on the docket.

36a

Accordingly, the Court rejects the request to file under

seal Exhibits A, F-M, OV, and Y to Plaintiffs motion

for summary judgment; Exhibits 1-11, 13-16, and 19

to Plaintiffs declaration in opposition to the Landlord

Defendants' motion for summary judgment; and

Exhibits 3-7, 9, 10-12, 13, 17-19, 21, and 22 to

Plaintiffs declaration in opposition to the BPCA

Defendants' motion for summary judgment. Within

three weeks of the date of this Order, Defendants shall

file those exhibits on the public docket.

VI. CONCLUSION

Defendants' motions for summary judgment

are granted, while Plaintiffs motion for summary

judgment is denied. This resolves Docket Numbers

366, 371, and 379. Within three weeks of the date of

this Order, Defendants shall file on the public docket

the documents discussed above. Similarly, within

three weeks of the date of this Order, Plaintiff shall

submit to the Court a clean, unredacted copy of

Exhibit zD to Plaintiffs motion for summary

judgment. In addition, within three weeks of the date

of this Order, the parties shall submit a status update

regarding the remaining counterclaim for attorneys'

fees and a proposed schedule for resolution

of that claim. *SteeDkt. Nos. 235, 425.

SO ORDERED

Dated: March 28, 2019

New York, New York

/s/ Alison J. Nathan District Judge

37a

Appendix-C: Rule 60 Motion Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

Steven E. Greer,

15-cv-6119 (AJN)

Plaintiff,

—v—

MEMORANDUM

OPINION & ORDER

Dennis Mehiel, et al.,

Defendants,

ALISON J. NATHAN, District Judge:

Pro se Plaintiff Steven E. Greer moves

pursuant to Federal Rule of Civil Procedure 60(b)

for reconsideration of the Court’s March 28, 2018

Memorandum Opinion & Order granting summary

judgment in favor of Defendants. Dkt. No. 466. For the

reasons set forth below, Plaintiffs motion for relief

under rule 60(b) is denied.

I. BACKGROUND

Pro se Plaintiff Steven E. Greer brought this

suit against the company that owns his former

apartment, the company that manages that

apartment building, the Battery Park City Authority

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("BPCA"), and several individuals associated with

those entities. The facts are described in the Court's

March 28, 2018 Memorandum Opinion & Order. Dkt.

No. 433. Briefly, in 2009, Plaintiff created a blog called

BatteryPark.TV, where he published articles about

the BCPA's activities. On January 24, 2014,

Defendant Milford Management informed Plaintiff

that his lease would not be renewed. When Plaintiff

did not vacate his apartment as requested, Defendant

Mariners Cove began an eviction proceeding against

him, which was ultimately successful in the spring of

2016. In June 2015, while the eviction proceedings

were ongoing, Plaintiff was asked to leave a BPCA

board meeting when the board planned to transition

to an executive session. Plaintiff refused until a BPCA

employee threatened to call the police. Following that

incident, BPCA Chairman Dennis Mehiel decided to

exclude Plaintiff from the BPCA offices, including

future board meetings. Shortly thereafter, Plaintiff

filed his complaint in this action.

At issue in the Court's March 28, 2018 Order

were two remaining claims that survived the motion

to dismiss phase-a First Amendment retaliation claim

and a First Amendment equal access claim against

BPCA only. With respect to the retaliation claim,

Plaintiff alleged that the non-renewal of his lease,

which led to his ultimate eviction, was an action taken

in retaliation for articles posted on his blog. Based on

the evidence in the record, though, the Court assessed

that "Plaintiffs evidence of retaliation rest[ed] on little

more than speculation," whereas there was "extensive

evidence to support a conclusion that Defendants

would not have renewed Plaintiffs lease even in the

absence of Plaintiffs blog." Dkt. No. 433 at 8-9. As for

the equal access claim, Plaintiff alleged that he was

unlawfully excluded from a July 2015 meeting of the

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BPCA board. As a matter of law, to succeed on this

claim against a municipal entity like BPCA, Plaintiff

needed to demonstrate that Mehiel 's actions

represented official policy-in other words, that Mehiel

exercised final decision-making authority. Reviewing

the record, however, the Court concluded that

"undisputed evidence" showed that Mehiel's decision

to exclude Plaintiff from the meeting was subject to

review by the BPCA board. Dkt. No. 433 at 15. The

Curt accordingly granted summary judgment in favor

of Defendants on both claims.

On July 5, 2018, Plaintiff filed the instant

motion. Dkt. No. 466. Plaintiff moves pursuant to

FRCP 60(b)(1), FRCP 60(b)(3), and FRCP 60(b)(6) for

relief from the Court's grant of summary judgment in

favor of Defendants. See id. The BCP A Defendants7

filed their opposition on July 16, 2018. Dkt. No. 472.

Plaintiff filed a reply on July 18, 2018.

II. DISCUSSION

Rule 60(b) of the Federal Rules of Civil

Procedure provides that a court may, in its discretion,

relieve a party from a final judgment or order on the

following grounds:

(l) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered

evidence

that,

with

reasonable

diligence, could not have been

discovered in time to move for a new

trial under Rule 59(b ); (3) fraud

(whether previously called intrinsic or

7 The Landlord Defendants requested an extension of time to

oppose the motion and ultimately reached a settlement

agreement with Plaintiff that terminated their involvement in

this litigation. ^SeeDkt. Nos. 469, 482-83.

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misrepresentation,

or

extrinsic),

misconduct by an opposing party; ( 4)

the judgment is void; (5) the judgment

has been satisfied, released, or

discharged! it is based, on an earlier

judgment that has been reversed or

vacated; or applying it prospectively is

no longer equitable; or ( 6) any other

reason that justifies relief.

Fed. R. Civ. P. 60(b). The burden of proof is on

the party seeking relief from judgment, and the

Second Circuit has repeatedly recognized that such

relief is "extraordinary, exceptional and generally not

favored." Ognibene v. Parkes, No. 08-01335 (LTM),

2015 WL 12991206, at *2 (S.D.N.Y. June 19, 2015)

(describing Second Circuit precedent). Rule 60(b) is

not intended to "provide [the] movant an additional

opportunity to make arguments or attempt to win a

point already carefully analyzed and justifiably

disposed." In re Bulk Oil (USA) Inc., No. 89-B-13380,

No. 93-cv-4492, 93-cv4494 (PKL), 2007 WL1 121739,

at* 10 (S.D.N.Y. Apr. 11, 2007) (internal quotation

marks omitted). If none of the grounds enumerated in

Rules 60(b )(l) through ( 5) are present, relief under

Rule 60(b )( 6) is only proper if "the failure to grant

relief would work an extreme hardship on the

movant." ISC Holding AG v. Nobel Biocare Fin. AG,

688 F.3d 98, 109 (2d Cir. 2012).

Plaintiffs primary argument in favor of Rule

60(b) relief is that the Supreme Court's June 18, 2018

opinion in Lozman v. City ofRiviera Beach, Fla., 13 8

S. Ct. 1945 (2018), created new law that governs this

case. According to Plaintiff, Lozman "establishes that

the 'official policy' question is unnecessary to decide

when the 'probable cause' defense is used ... and that

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a jury should have decided the 'official policy'

question." Dkt. No. 467 at 1. But Plaintiff misreads

the opinion in Lozman, which decided only the limited

question of whether the presence of probable cause for

an arrest precludes a retaliatory arrest claim. See

Lozman, 138 S. Ct. at 1949. It is therefore inapplicable

to Plaintiffs case.

Indeed, the portions of the opinion cited by

Plaintiff do not support his argument for relief.

Plaintiff points to the Supreme Court's statement that

it assumes -rather than requires proof, as did this

Court -that "the arrest was taken pursuant to an

official city policy." Dkt. No. 467 at 3 (quoting Lozman,

13 8 S. Ct. at 1951). But this sentence illustrates that

the Supreme Court did not reach the issue of whether

there was an official policy. In fact, the Court

expressly affirmed elsewhere that such a showing

would nevertheless be required on remand. See

Lozman, 13 8 S. Ct. at 1951 ("It is well established

that in a § 1983 case a city or other local governmental

entity cannot be subject to liability at all unless the

harm was caused in the implementation of "official

municipal policy.") (citation omitted). Second, Plaintiff

analogizes probable cause for an arrest to Mehiel's

public safety justification for excluding him from

meetings, concluding that under Lozman, this

justification does not defeat a First Amendment claim.

SfeeDkt. No. 467 at 4. Plaintiffs equal access claim did

not survive summary judgment because there was

undisputed evidence that his exclusion from meetings

was subject to review and therefore not an official

policy, however, not because the BPCA had a

justification for its decision. Dkt. No. 433 at 14-15.

Third, Plaintiff highlights language from the opinion

affirming that the right to petition is "one of the most

precious of the liberties safeguarded by the Bill of

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Rights." Dkt. No. 467 at 5 (quoting Lozman, 138 S. Ct.

at 1954). This statement is not "new law," nor does the

importance of the constitutional right alter the legal

standard for a decision on summary judgment.

Though Lozman may have certain factual similarities

with Plaintiffs case, the precedent on which the Court

ruled against Plaintiff on his retaliation and equal

access claims are unaltered by the opinion. As a

result, there is no "new law" to justify relief under

Rule 60(b)(6).

With respect to his other arguments, Plaintiff

does not point to any facts or law that the Court

overlooked that would alter the conclusions reached in

the Court's March 28, 2018 Memorandum Opinion

and Order.8 Instead, Plaintiff relitigates the

underlying factual disputes already briefed and

considered by the Court during motion practice in this

case. First, Plaintiff argues that the Court's

conclusion that Plaintiffs evidence of retaliation was

simply speculative is "contradictory to the evidence

and to the previous Court's opinion," which found that

Plaintiff had sufficiently alleged retaliation in his

complaint. Dkt. No. 467 at 6. Second, Plaintiff

contends that the Court ignored his rebuttal

arguments on the issue of rent payments, id. at 7, but

the Court did consider and address these arguments,

though it was ultimately unpersuaded, Dkt. No. 433

at 9-10. Third, Plaintiff accuses the Court of

considering evidence of an alleged altercation

8 Plaintiffs Rule 60(b)(3) argument rests on allegations of fraud

in the billing statements submitted by counsel for the Landlord

Defendants. Dkt. No. 467 at JO. Because the alleged

misrepresentations concern a motion for attorneys' fees that was

never decided and was ultimately resolved by Plaintiffs

settlement agreement with the Landlord Defendants, no relief

would be available even if the Court did credit Plaintiffs

allegations.

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involving Plaintiff in its analysis of the retaliation

claim, when that evidence was submitted by the

BPCA Defendants as relevant to the equal access

claim. Id. at 9. Plaintiff does not, however, raise any

new arguments to undermine the credibility of that

evidence.

A Rule 60(b) motion is not a substitute for

appeal. See Nemaizer v. Baker, 793 F.2d 58, 61 (2d

Cir. 1986). Plaintiff has made no argument that

warrants disturbing the summary judgment order in

this case.

III. CONCLUSION

The Court denies Plaintiffs Rule 60 motion. The

Clerk of the Court is respectfully directed to close this

case.

SO ORDERED

Dated: January 31, 2019

New York, New York

Isl Alison J. Nathan