The opinion of the court was delivered by: John G. Koeltl, District Judge:
Plaintiff Eva Hughes ("Hughes") brings this action against the Lillian
Goldman Family, L.L.C., Lillian Goldman, Soul Management Corp.
(collectively the "Solil defendants"),*fn1 J.M.G. Properties ("JMG"),
and Richard Marks ("Marks"). The plaintiff, who is African-American,
alleges that the defendants unlawfully discriminated against her in
housing because of her race or color in violation of the Fair Housing
Act, Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et
seq., (the"Fair Housing Act"), the New York State Human Rights Law, N Y
Exec. Law § 296 et seq. ("HRL"), and the New York City Human Rights
Law, N.Y.C. Admin. Code. § 8-107 et seq. ("NYCHRL").
The plaintiff alleges the following six claims: (1) that the defendants
violated 42 U.S.C. § 3604(a), N.Y. Exec. Law § 296(5)(a)(1), and
N YC. Admin. Code. § 8-107(5)(a)(1) by refusing to rent a dwelling
or housing accommodation to the plaintiff because of her race or color
(First Cause of Action); (2) that the defendants violated
42 U.S.C. § 3604(b), N.Y. Exec. Law § 296(5)(a)(2), and N.Y.C.
Admin. Code. § 8-107(5)(a)(2) by discriminating against the plaintiff
in the terms, conditions, or privileges of the rental or lease of a
dwelling or housing accommodation because of her race or color (Second
Cause of Action); (3) that the defendants violated 42 U.S.C. § 3604(d)
and N Y Exec. Law § 296(5)(c)(1) by, among other things, representing
to the plaintiff because of her race or color that a dwelling or housing
accommodation was not available for inspection or rental when such a
dwelling was in fact so available (Third Cause of Action); (4) that the
defendants violated 42 U.S.C. § 3605, N.Y. Exec. Law §
296(5)(c)(1), and N YC. Admin. Code. § 8-107(5)(c)(1) by, among other
things, discriminating against the plaintiff in making available a
residential real estate-related transaction, or in the terms or
conditions of such a transaction, because of race or color (Fourth Cause
of Action); (5) that JMG has violated N.Y. Exec. Law § 296(8) by
violating the terms of a Pre-Determination Conciliation Agreement and
Order after Conciliation entered into between the plaintiff and JMG and
ordered by the New York State Division of Human Rights (the "Conciliation
Agreement") (Fifth Cause of Action); and (6) that JMG fraudulently
induced the plaintiff to enter into the Conciliation Agreement rendering
the agreement null and void (Sixth Cause of Action).
Three motions are now pending before the Court:
1. Defendant JMG moves to dismiss the Amended Complaint pursuant to
Fed. R. Civ. 2. 12(b)(6) for failure to state a claim upon which relief
can be granted or for summary judgment pursuant to Fed. R. Civ. P. 56; to
dismiss the Amended Complaint on the grounds that the plaintiff is
estopped by the Conciliation Agreement from pursuing her claims; and, in
the alternative, to strike from the Amended Complaint all damages as
demanded as to JMG, and to limit any damages against JMG to those for
violation of the Conciliation Agreement.
2. Defendant Marks moves to dismiss the Amended Complaint pursuant to
Fed. R. Civ. P. 12(c).
3. The Solil defendants move for summary judgment pursuant to Fed. R.
Civ. P. 56.
The same standards apply to a Rule 12(c) motion for judgment on the
and to a Rule 12(b)(6) motion to dismiss for failure to state a
claim. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999);
Narvarte v. Chase Manhattan Bank, N.A., 969 F. Supp. 10, 11 (S.D.N Y
1997). The Court "must view the pleadings in the light most favorable
to, and draw all reasonable inferences in favor of, the nonmoving party."
Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994); see also Madonna v.
United States, 878 F.2d 62, 65 (2d Cir. 1989); National Ass'n of
Pharmaceutical Mfrs., Inc. v. Ayerst Labs., 850 F.2d 904, 909 n. 2 (2d
Cir. 1988) (indicating that the Court treats a motion for judgment on the
pleadings as if it were a motion to dismiss); Slavsky v. New York City
Police Dep't, 967 F. Supp. 117, 118 (S.D.N.Y. 1997), aff'd, 159 F.3d 1348
(2d Cir. 1998). A court should not dismiss a complaint unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of
the claim that would entitle the plaintiff to relief. See Valmonte v.
Bane, 18 F.3d 992, 998 (2d Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41
(1957)). In deciding the motion, the Court can consider documents
referenced in the complaint and documents that are in the plaintiff's
possession or that the plaintiff knew of and relied on in bringing suit.
See Brass v. American Film Technolocies, Inc., 987 F.2d 142, 150 (2d
Cir. 1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48
(2d Cir. 1991); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co.,
Inc., 936 F.2d 759, 762 (2d Cir. 1991); Skeete v. IVF America, Inc.,
972 F. Supp. 206, 208 (S.D.N.Y. 1997).
The standard for granting summary judgment is also well established.
Summary judgment may not be granted unless "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 a judgment as a
matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs.
Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's
task at the summary judgment motion stage of the litigation is carefully
limited to discerning whether there are genuine issues of material fact
to be tried, not to deciding them. Its duty, in short, is confined at
this point to issue-finding; it does not extend to issue-resolution."
Gallo, 22 F.3d at 1224. The moving party bears the initial burden of
"informing the district court of the basis for its motion" and
identifying the matter that "it believes demonstrate [s] the absence of a
genuine issue of material fact." Celotex, 477 U.S. at 323. The
substantive law governing the case will identify those facts which are
material and "only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of
summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
In determining whether summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences against the
moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. If the moving
party meets its burden, the burden shifts to the nonmoving party to come
forward with "specific facts showing that there is a genuine issue for
trial." Fed. R. Civ. P. 56(e). With respect to the issues on which
summary judgment is sought, if there is any evidence in the record from
any source from which a reasonable inference
could be drawn in favor of the nonmoving party, summary judgment is
improper. See Chambers v. TRM Copy Ctrs. Corp.,
43 F.3d 29, 37 (2d Cir. 1994).
The following facts are not in dispute, except as otherwise indicated.
*fn2 The plaintiff is an African-American woman. Marks is a licensed
real estate sales agent employed by JMG, which is a real estate brokerage
company engaged in renting residential apartments in Manhattan, New
York. (Solil Defs.' 56.1 St. ¶¶ 1, 4; Pl.'s Solil 56.1 Counter-St.
¶¶ 1, 4; Affidavit of Joan M. Campbell dated July 17, 2000 ("Campbell
Aff."), ¶¶ 2-3.) Lillian Goldman and the Lillian Goldman Family
L.L.C. are the owners and landlords of a building at 145 West 55th
Street, New York, New York ("145 West 55th Street"). (Solil Defs.' 56.1
St. ¶ 6; Pl.'s Solil 56.1 Counter-St. ¶ 6.) Solil is a New York
State corporation engaged in the business of real estate management and
participates in the management and rental of 145 West 55th Street. (Am.
Compl. ¶ 7.)
On March 30, 1998, the plaintiff called JMG in response to an
advertisement in the March 18, 1998 issue of Loot Magazine advertising
"best deal in town, 1 bedroom, doorman building new renovation, over 700
sq. ft., full services, in west 50's." (Solil Defs.' 56.1 St. ¶ 2;
Pl.'s Solil 56.1 Counter-St. ¶ 2; Affidavit of Eva Hughes sworn to
August 10, 2000 ("Hughes Aff."), Ex. A.) The Loot advertisement provided
a telephone number, and directed interested parties to call Marks at
JMG. (Solil Defs.' 56.1 St. ¶ 3; Pl.'s Solil 56.1 Counter-St. ¶
3; Hughes Aff. Ex. A.) During a telephone conversation between the
plaintiff and Marks, Marks told the plaintiff that the advertised
apartment was 12A at 145 West 55th Street ("12A"), and that the plaintiff
should see the building superintendent if she was interested in seeing
12A. (Solil Defs.' 56.1 St. ¶ 5; Pl.'s Solil 56.1 Counter-St. ¶
5.) The plaintiff alleges that Marks also informed her that the rent for
12A was $900 per month. (Hughes Aff. ¶ 5.)
That same day, the plaintiff went to 145 West 55th Street and found the
superintendent who showed her 12A. (Solil Defs.' 56.1 St. ¶ 7; Pl.'s
Solil 56.1 Counter-St. ¶ 7.) When the plaintiff asked the
superintendent whether there were any other vacant apartments in the
building, the superintendent showed her apartment 6G ("6G"). (Solil
Defs.' 56.1 St. ¶ 8; Pl.'s Solil 56.1 Counter-St. ¶ 8.) The
superintendent allegedly told the plaintiff that she could rent 6G for
$600 per month. (Hughes Aff. ¶ 7.) Later that day, the plaintiff
telephoned Marks to tell him that she was interested in renting 12A.
(Solil Defs.' 56.1 St. ¶ 9; Pl.'s Solil 56.1 Counter-St. ¶ 9.)
Marks told the plaintiff to come to JMG's office to fill out an
application and to bring with her a recent pay stub, a letter of
employment, and identification. Marks also told the plaintiff that Marks
would need to run a credit check. (Solil Defs.' 56.1 St. ¶ 10; Pl.'s
Solil 56.1 Counter-St. ¶ 10.) The plaintiff alleges that she told
Marks that her current lease expired on April 30, 1998, and that she
wanted to move in on May 1, 1998 and that Marks said that would be fine.
(Hughes Aff. ¶ 9.)
On March 31, 1998, the plaintiff went to JMG's office where she met
Marks for the first time and filled out an application. (Solil Defs.'
56.1 St. ¶ 11; Pl.'s Solil 56.1 Counter-St. ¶ 11; Hughes Aff.
Ex. B.) The plaintiff alleges that Marks looked shocked when he saw the
plaintiff in person. (Hughes Aff. ¶ 10.) The Solil defendants allege
that the application form for the apartment filled out by the plaintiff
was provided and created by JMG. (Solil Defs.' 56.1 St. ¶ 11.) The
parties dispute whether the application was then faxed to Solil. (Solil
Defs.' 56.1 St. ¶ 12; Pl.'s Solil 56.1 Counter-St. ¶ 12.)
The plaintiff alleges that on April 1, 1998, she called JMG three
times. On the first occasion, the plaintiff was allegedly told that Marks
was not in. On the second occasion, Marks allegedly answered the
telephone and requested that the plaintiff call him back at about 6:15
p.m. On the third occasion, at approximately 6:15 p.m., the plaintiff
allegedly spoke to Marks, introduced herself as Eva Hughes, and informed
Marks that she was calling about 12A. Marks allegedly asked the plaintiff
the maximum amount of money she was willing to spend to rent 12A. The
plaintiff allegedly indicated that she was willing to spend up to
$1,200.00 per month and Marks told the plaintiff to call back the next
day. (Hughes Aff. ¶¶ 11-12.)
The plaintiff alleges that she called JMG on April 2, 1998 and that
Marks informed the plaintiff that she had been outbid for 12A because
someone else offered to pay $1,246.00 per month. The plaintiff allegedly
informed Marks that she was willing to pay that amount for 12A and that
Marks then insisted that 12A was not available. (Hughes Aff. ¶ 13.)
The plaintiff allegedly pressed Marks about why he had originally offered
her the apartment to which Marks allegedly responded by saying he though
the plaintiff was "Eva from Russia." (Hughes Aff. ¶ 14.) Marks
allegedly told the plaintiff that 6G would be available on May 1, 1998,
for $1,300-1,400 per month and that the rent was being raised due to
needed repairs. The plaintiff alleges that she told Marks that she was
willing to rent 6G. (Hughes Aff. ¶ 14.) The Solil defendants allege
that Solil informed Marks that 12A had been rented to someone other than
the plaintiff on April 3, 1998. (Solil Defs.' 56.1 St. ¶ 12.)
The plaintiff alleges that on April 2, 1998, a JMG representative1
identified as Anatoliy, came to the plaintiff's office to give her
another application to complete for 6G. (Hughes Aff. ¶ 19.) Although
the application is dated April 1, 1998, the plaintiff alleges that she
filled it out on April 2, 1998. (Hughes Aff. ¶ 19 & Ex. E.) The
plaintiff asserts that on April 3, 1998, she called JMG and spoke to
Anatoliy, who ...