See Village Defendants' 3(g) Statement P 4. In late 1991, Mr. Blanche moved out and was replaced by a Mr. Charles McGrath who is not an African-American.
At the time mentioned in the complaint regarding the 56 Underhill premises, the property located at 55 Underhill Street did not have any tenants. In 1992, plaintiff had electrical work done at his 55 Underhill building and repair work done at his 56 Underhill Building. Defendant Ron Gallo who owns a two family house at 58 Underhill Street filed a complaint with the Village of Tuckahoe about plaintiff's doing electrical work on the 55 Underhill premises without a permit. Finally, it is agreed that defendant Ron Gallo owns a two-family house at 58 Underhill Street.
Both sides concede that Mr. Puglisi's complaint alleges harassment during the term of the leasehold of Mr. Bromfeld, Mr. Blanche, and Mr. Lawrence by the Mayor of the Village, the Village of Tuckahoe Board of Trustees and its building inspector. Additionally, the parties agree that a Mr. Joseph Yancy who is an African American, was a member of the Board from 1989 to 1992, the time period in which the three gentleman named above rented plaintiff's premises. He is not a named defendant in the litigation while the other members of the Board during this same period were named as defendants in plaintiff's complaint.
Pursuant to Rule 56(b) and (c)
, both defendants filed motions for summary judgment and urged this court to grant their motions and dismiss plaintiff's claims arguing that there is no evidence to support plaintiff's allegations. The Underhill defendants' contend that plaintiff's own deposition refutes many of the allegations in his complaint and shows that there is no evidence supporting the notion that defendants' conspired to discriminate against plaintiff's African-American tenants due to their race or any other impermissible reasons in an effort to force their eviction by harassing plaintiff. The Village defendants also rely on plaintiff's deposition to show that there is no evidence of the Village defendants' conspiring with the Underhill defendants to force the eviction of plaintiff's tenants or of the Village defendants selectively enforcing its codes and regulation due to a racially discriminatory animus. In his response to defendants' motion for summary judgment, plaintiff resubmitted the two verified complaints maintaining that because the complaints were verified, they were being submitted as affidavits in opposition to the motions for summary judgment. Furthermore, plaintiff argued that neither of the defendants' affidavits in support of their motions for summary judgment actually supported the motions and did little to question the validity of the complaint.
For the reasons set forth herein, this court agrees with defendants and grants their motions for summary judgment.
A. Summary Judgment.
A court may grant summary judgment only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Where, as in this case, the non moving party has the burden of proof at trial, the moving party need only demonstrate that there is a lack of evidence to support the non movant's claim. Celotex Corp. V. Catrett, 477 U.S. 317, 323-325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the movant has established a prima facie case demonstrating the lack of a genuine issue of material fact, the non moving party must provide enough evidence to support a jury verdict in its favor. Anderson, 477 U.S. at 249. All of the facts must be read in the most favorable manner for the non moving party. Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
At that point, the court must determine whether the evidence presents a "genuine factual issue that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either party." 477 U.S. at 250. The court may grant summary judgment only when "no rational jury could find in favor of the nonmoving party." Gallo v. Prudential Residential Services, 22 F.3d 1219, 1224 (2d Cir. 1994).
Applying these general principles to the case before the court, the court rules in favor of the defendants on their motions for summary judgment. Before making its decision, the court held a hearing. At the hearing, plaintiff continuously repeated to the court that there were disputes over material facts and issues warranting a trial, specifically, a dispute over the factual allegation that Underhill defendant, DeMeo, approached the plaintiff threateningly and told him that renting to ' niggers ' caused the property value in the neighborhood to decrease. The Underhill defendants' denied the interaction and plaintiff thereby surmised that this dispute was a factor showing why this case should advance to trial.
Furthermore, at the hearing and in her Memorandum of Law in Opposition to Summary Judgment, plaintiff, in response to defendants' attack on plaintiff's responsive pleading as not conforming to Rule 56(e)
, maintained that her verified complaints were being resubmitted as affidavits to establish genuine issues warranting a trial. See Memorandum of Law in Opposition to Summary Judgment p. 7. Therefore, plaintiff concluded that her alleged non-compliance with Rule 56(e) cannot be a basis for granting the motion since she complied by submitting an affidavit. Moreover, plaintiff argued, defendants where the parties who did not comply with Rule 56 because defendants' affidavits were of little value and thereby, failed to establish that there was no issue warranting trial. Because defendants' failed to make and support a motion in compliance with the Rule 56, plaintiff concluded that defendants' motions should be denied. Therefore, the form of plaintiff's reply to the defendants' motion would not be dispositive since defendants', themselves, had made an improper motion for summary judgment.
With respect to plaintiff's conclusion that a genuine issue of fact exists because of the factual dispute over whether Underhill defendant DeMeo made the alleged statement, this court informed plaintiff then, as it does now, in considering the motion "this Court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Dean Tarry Corp. v. Friedlander, 650 F. Supp. 1544, 1549 (S.D.N.Y. 1987); New Burnham Prairie Homes, Inc., v. Village of Burnham, 910 F.2d 1474, 1477 (7th Cir. 1990) (summary judgment is inappropriate "if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.") (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505, 2509-11, 91 L. Ed. 2d 202 (1986); Knight v. United States Fire Insurance Co., 804 F.2d 9, 10-11 (2d Cir. 1986) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505, 2509-11, 91 L. Ed. 2d 202 (1986); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985).
The court finds plaintiff's reasoning about his responsive pleadings unpersuasive and insufficient. Even if the court were to accept plaintiff's position on his responsive pleadings, his verified complaints, turned affidavits for purposes of opposing defendants' motions, present no specific facts other than what has been alleged and denied in the verified complaints. Courts have prohibited such responsive pleadings. In Celotex, 477 U.S. at 324, the court held "Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, ...Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits,...designate 'specific facts showing that there is a genuine issue for trial'." Id. (original emphasis); Dean Tarry, 650 F. Supp. at 1550; Clifton Terrace Associates, 728 F. Supp. at 31 (plaintiff may not rely on mere speculative allegations but must set forth affirmative evidence of the existence of a genuine issue warranting trial) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257-257, 106 S. Ct. 2505, 2514-15, 91 L. Ed. 2d 202 (1986)); Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) (the last two sentences of Rule 56(e) were added to disapprove cases allowing a party opposing a properly made summary judgment to resist the motion by relying only on its pleadings).
Lastly, in regards to plaintiff's argument that defendants' fail to produce evidence showing that there is no genuine issue warranting trial due to the fact that defendants' affidavits are of no value, the court acknowledges that "the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact." Catrett v. Johns-Manville Sales Corp., 244 U.S. App. D.C. 160, 163, 756 F.2d 181 (1985). However, this court notes that in Celotex, the Supreme Court held that in cases where the non moving party will bear the burden of proof at trial on a dispositive issue (here the plaintiff), "a summary judgment motion may properly be made in reliance solely on the pleadings...the burden on the moving party [here the defendants] may be discharged by "showing"--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case" Celotex, 477 U.S. at 324. Furthermore, the Court reasoned;
Rule 56(c) mandates the entry of summary judgment...against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial... In such a situation, there can be "no genuine issues as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.