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United States District Court, Southern District of New York

March 28, 2003


The opinion of the court was delivered by: Thomas P. Griesa, United States District Judge.


In this pro se action, plaintiff alleges harassment in the occupancy of his apartment on account of his HIV-positive medical condition. One of the defendants, the City of New York, moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint as against it for failure to state a claim. Plaintiff moves to have the court request pro bono counsel for him.

The City's motion is granted. Plaintiffs motion is denied.

The Complaints

Plaintiff is a tenant of the New York City Housing Authority ("NYCHA"). Rosenberg Housing Group and Marion Scott Real Estate, Inc., are entities which perform management services for the NYCHA. The original complaint named as defendants Rosenberg Housing Group and Marion Scott Real Estate, Inc., as well as two neighbors, Aida Chapman Ayalla and Luis Feliz. The original complaint alleged that defendants were harassing plaintiff.

Under the procedures of the court for review of pro se complaints, the original complaint was dismissed sua sponte for lack of subject matter jurisdiction. Plaintiff moved for reconsideration. On February 13, 2002 Chief Judge Mukasey directed that plaintiffs case be reopened and determined that, liberally construed, his complaint raised a claim under the Fair Housing Act, 42 U.S.C. § 3601 et seq., and therefore the court had jurisdiction. The case was assigned to Judge Griesa.

Plaintiff filed an amended complaint on February 21, 2002. It is essentially identical to the original complaint except for the handwritten addition of the NYCHA in the caption. On May 2, 2002 plaintiff wrote the court seeking to file a second amended complaint for the reason that he wished to deal in some different fashion with the NYCHA. On May 10, 2002 the court granted plaintiff leave to file the second amended complaint.

Plaintiff has filed his second amended complaint. The new caption names as defendants Rosenberg Housing Group, Marion Scott Real Estate, Inc. and the NYCHA. It adds, for the first time, the City of New York. It omits defendants Ayalla and Feliz, despite the fact that the body of the complaint contains allegations of harassment against the latter two defendants.

Since the present motion to dismiss is by the City, the court sets forth the portion of the complaint dealing with the City:

That's what I have been complaining to City Hall but unfortunately the city doesn't stand up to the NYCHA staff and with authority still don't get strong in order for the staff to execute the rules and regulations that by law has to be enforced. Because neither the police, the management office, NYCHA, nor the city have a little clemency for the people with disability living among people that already had been in court for fighting with tenants in my case I have been attacked, harassed, and discriminated.

As shown by the above quotation, plaintiff groups the City and its police, along with the NYCHA and the building management, in asserting that they all lack "a little clemency" toward people with disabilities. Plaintiff also asserts that he has been complaining to City Hall, which unfortunately "will not stand up to the NYCHA staff."

This is obviously not sufficient to allege a cause of action against the City for violation of the Fair Housing Act. That Act makes it unlawful to discriminate in the rental or sale of housing based upon various factors, including a person's handicap. 42 U.S.C. § 3604 (f)(1). It is also unlawful to coerce, intimidate, threaten or otherwise interfere with the enjoyment of a handicapped person's protected rights. 42 U.S.C. § 3617.

The City did not rent to plaintiff. The NYCHA, which apparently did so, is an independent public corporation, not an agent of the City. See e.g., Montenegro v. City of New York, No. 00 Civ. 8434, 2002 WL 500355, at *3 (S.D.N.Y. Apr. 3, 2002); Rosario v. City of New York, 689 N.Y.S.2d 519, 520 (N.Y. App. Div. 1999). Moreover, the allegations in the complaint against the City do not amount to any valid claim that the City interfered with plaintiffs protected rights as a handicapped person.

In his papers opposing the present motion, plaintiff makes certain allegations against the police which are not contained in the second amended complaint. However, the court has considered whether those allegations, even though not pleaded, might amount to a possible Fair Housing Act claim so that the court would be justified in keeping the City as a defendant in this action so that a further amended complaint could be filed. The court concludes that this is not the case.


For the reasons stated above, the court grants the motion of the City to dismiss the action as against it. Also, the court denies the motion to have the court request pro bono counsel.



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