United States District Court, S.D. New York
May 20, 2004.
ROBERTA RICH, Plaintiff
STEVEN LUBIN, MIDWOOD REALTY CO., LLC, RUDY CARACAS, MR. GLUCK, MR. BENAROSCH, CHARLES FRIED, and MR. ROSENWASSER, Defendants
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
This is a housing discrimination action by pro se plaintiff
Roberta Rich against her former landlord and against employees of the
landlord. Defendant Midwood Realty Co. was the landlord of Rich's
apartment building at 1420 Avenue L in Brooklyn, New York. Defendant Rudy
Caracas was the superintendent of the building, and defendant Rosenwasser
was the manager of the building. Defendants Gluck, Benarosch, and Charles
Fried were also employed in some capacity by Midwood. It is not clear
from the pleadings what relationship defendant Steven Lubin had to the
other defendants or to Rich. In any event, Lubin is not relevant to the
motion before the Court.
Rich alleges that she was sexually harassed by Lubin, Caracas, Gluck,
Benarosch, Fried, and Rosenwasser, and that the harassment created a
hosfile housing environment in violation of the Fair Housing Act,
42 U.S.C. § 3601 et seq. Rich also alleges that she was illegally evicted from her apartment.
Defendants Midwood, Caracas, Gluck, Benarosch, Fried, and Rosenwasser
move for summary judgment on both of Rich's claims. Taking together the
allegations in the complaint and Rich's deposition, the Court finds that
there are triable issues with respect to Caracas and with respect to
Midwood as Caracas's employer. There are surely substantial issues of
credibility, but these issues cannot be determined on a motion for
summary judgment. As to the other defendants the motion for summary
judgment is granted, and in view of this, certain further discussion as
to those defendants is necessary.
On April 1, 1979 Rich moved to 1420 Avenue L, apartment A4, in
Brooklyn. She resided there until she was evicted on November 7, 2001. It
appears from the record that Rich had one or more roommates for some or
all of that period.
Rich alleges with respect to defendant Gluck that he placed sexually
harassing telephone calls to her during an unspecified period of time
beginning after 1994. Rich stated in her deposition that when she began
receiving the phone calls she did not know who the caller was, and that
she therefore reported the calls to the police. Rich stated that a
detective handling her complaint reported to her that the calls were
traced to the home of Rosenwasser, and that the calls were made by Gluck.
The complaint does not describe the content of the calls, and Rich
stated in her deposition that she did not recall what was said in the
Rich does not allege when the calls took place, or how often they
occurred. It is possible that the time frame for the calls is established
by a February 10, 1997 letter from NYNEX telephone company, attached to
the complaint, which makes reference to a trace that was placed on calls
received by Rich. The letter states that the evidence obtained by NYNEX
from the trace would be provided to the local police department. :
With respect to defendant Benarosch, Rich makes several allegations of
harassment. Rich states that Benarosch asked her for dates on several
occasions, and harassed her in other ways. In one instance when Benarosch
was speaking with Rich regarding bathroom file that needed to be replaced
in her apartment, Benarosch suggested that he and Rich could go out and
discuss the file. Rich states that on this occasion Benarosch also noted
that Rich's roommate was not at home. Rich points to this as evidence
that Benarosch harassed her because she was a single woman. On another
occasion, according to Rich, when Benarosch was in Rich's apartment with
defendant Fried and another individual to repair Rich's stove, Benarosch,
standing directly in front of Rich in her kitchen, commented, "Oh, that
feels good." Rich interpreted that comment as being sexual in nature and in reference to her standing near Benarosch. Rich also states
that there was an occasion when she was walking on Coney Island Avenue
and Benarosch "cut her off" in his car. Finally, Rich states that on one
occasion she tried to enter her apartment building and Benarosch
"cornered" her to prevent her from entering. Rich states that she
threatened to call the police, and that Benarosch said, "By the time they
get here I'll be gone."
It is unclear in what time period these actions by Benarosch occurred.
Rich's complaint states that they occurred in 2001. However, in her
deposition she indicated that Benarosch harassed her on several occasions
between 1998 and 2001.
Rich's allegations against defendants Fried and Rosenwasser are
substantially sparser even than those against Gluck and Benarosch. Rich
stated in her deposition that Fried behaved in an unfriendly way toward
her when he came to her apartment to make repairs. With respect to
Rosenwasser, Rich stated in her deposition that she hardly dealt with
him, but that on one occasion when she saw him outside the building he
told her, "I can't wait until you're evicted."
Rich also asserts a cause of action for illegal eviction. She states
that defendants "made up charges" in order to evict her from her
apartment, and that she was subjected to "intimidation, burglaries, and
bribery" by defendants in order to coerce her to leave.
Midwood's attempts to evict Rich were the subject of extensive
proceedings in the Brooklyn Housing Court between 1999 and 2001. Some
time in 1999 Midwood initiated eviction proceedings against Rich alleging
violations of Section 2524.3(e) of the New York City Rent Stabilization
Code. Midwood alleged that Rich created a nuisance in her apartment by
harassing Midwood and its agents and denying them access to her apartment
in order to make repairs that Rich herself had demanded be made. In a
November 30, 1999 decision Judge Marcia Sikowitz of the Kings County
Housing Court found in favor of Midwood and ordered that Midwood be
awarded possession of Rich's apartment. In her decision Judge Sikowitz
reviewed a history of conflict between Rich and defendants in the instant
action, dating back to 1997. Judge Sikowitz found that Rich had blocked
defendants from accessing her apartment to make repairs, while continuing
to file complaints about the need for the repairs and herself causing
damage to the apartment. It should be noted that the decision-made no
mention of any issue with regard to sexual harassment of Rich by Midwood
It appears that Rich was not represented by counsel in-the proceedings
leading to the judge's opinion. Judge Sikowitz conducted an examination
of Rich to ascertain whether Rich was able to proceed without
representation, and concluded that Rich "is extremely intelligent and fully understood the petition, the
trial, and the ultimate ramifications."
Rich later obtained counsel, and on January 5, 2000, upon an
application by the counsel, Judge Sikowitz granted a stay of execution of
a warrant of eviction until February 29, 2000, "to provide respondent
with an opportunity to re-locate." The stay was conditioned upon Rich
paying certain sums owed to Midwood, and upon Rich providing access to
Midwood and its agents in order to make repairs.
On September 7, 2000 Rich filed a complaint against Midwood and Caracas
with the New York State Division of Human Rights, alleging discrimination
in the terms of her housing on the basis of sex. Although a copy of the
complaint is not in the record, the February 8, 2001 decision of the
Division of Human Rights indicates that Rich alleged that Caracas and
Benarosch (who was not a named respondent in that proceeding) sexually
harassed her and targeted her for eviction because she was a single
On December 28, 2000 Judge Sikowitz approved a stipulation of
settlement entered into by Midwood and Rich. The parties agreed that the
warrant of eviction would be stayed until September 30, 2001, in exchange
for Rich discontinuing her proceeding in the State Division of Human
Rights and making certain stipulated rent payments to Midwood. Rich was
represented by counsel in connection with this stipulation. It appears from the record that Rich decided in spite of the
stipulation to pursue her claim before the Division. On February 8, 2001
the Division found for Midwood and Caracas and dismissed Rich's
complaint. The Division apparently accepted Rich's allegations that
Benarosch asked Rich for dates on several occasions, and that Caracas
"mooned" Rich once in 1995 and touched himself in front of her several
times over the next four years. The Division concluded that Caracas's
acts were "at best inappropriate but do not constitute actionable sexual
harassment." The Division concluded on the whole that "the alleged acts
of sexual harassment do not rise to a level that a reasonable person
could view as creating a hosfile environment, " because the "acts were
not sufficiently severe or pervasive to violate the law." The Division
concluded that "[t]he preponderance of the evidence shows that eviction
proceedings were begun because of complainant's continuous complaints
regarding repairs and other charges that respondent was bribing the
police and building inspectors."
In April 2001 counsel for Midwood contacted Rich to inform her that she
was in breach of the December 28, 2000 agreement for failure to make
timely rent payments, and that a warrant of eviction would be executed on
April 25, 2001 if Rich did not cure her default by that time. Rich
subsequently moved in the Housing Court for an order staying execution of
the warrant. On May 17, 2001 Judge Sikowitz issued an opinion staying execution of the
warrant through May 25, 2001, to give time for Rich to pay the $2700
owed. On May 25, 2001, with the $2700 still not paid, Judge Sikowitz
entered an order lifting the stay and ordering that the marshal serve a
marshal's notice of eviction. On November 7, 2001 Rich was evicted.
In her submissions on the instant motion Rich disputes the findings of
the Housing Court in the above-described proceedings. Rich contends that
she gave defendants adequate access to her apartment to make repairs, and
also gives a litany of examples of the inadequacy of defendants' response
to her requests for repairs. Rich also proffers as evidence of
defendants' animus toward her that during her tenancy both Gluck and
Benarosch offered her money to vacate her apartment. Finally, Rich states
that at the time of her eviction she did not have notice that the marshal
was coming, and that she therefore had to leave behind her possessions.
Rich states that as a result of this her possessions were moved to
Yonkers, and that when she went to retrieve them $6000 worth of items
A motion for summary judgment shall be granted 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). Once a motion for summary judgment is made, a plaintiff
is required "to go beyond the pleadings and by her own affidavits, or by
the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for
trial." Celotex v. Catrett, 477 U.S. 317, 324 (1986). The
submissions of a pro se litigant should be read generously to
raise the strongest possible arguments that they suggest. McPherson
v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). Nevertheless, the
nonmoving party whether pro se or represented by
counsel may not rely merely upon speculative or conclusory
allegations, or denials of the moving party's pleadings. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
I. Sexual Harassment
The FHA prohibits "discriminat[ion] against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith, because of
. . . sex." 42 U.S.C. § 3604(b). Sexual harassment constitutes
discrimination in the terms, conditions, or privileges of rental of a
dwelling on the basis of sex.
The legal standard for sexual harassment claims under the FHA has been
analogized in the Second Circuit to the standard pertaining to hosfile work environment claims under Title VII.
Thus, in order to prevail in a hosfile environment sexual harassment
claim, Rich must establish that she was subjected to harassment that was
sufficiently pervasive and severe so as to create a hosfile environment,
and that a basis exists for imputing the allegedly harassing conduct to
the defendants. See Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993); Briones v. Runyon, 101 F.3d 287, 291-92 (2d Cir.
1996); Anonymous v. Goddard Riverside Community Center, Inc.,
No. 96 Civ. 9198, 1997 WL 475165 (S.D.N.Y. Jul. 18, 1997). Isolated or
sporadic sexually inappropriate acts are not sufficiently pervasive and
severe to constitute sexual harassment under the FHA. See Abrams v.
Merlino, 694 F. Supp. 1101, 1104 (S.D.N.Y. 1988); Goddard
Riverside Community Center, 1997 WL 475165, at *4. The Second
Circuit has cautioned that, because the above factors require highly
fact-sensitive legal determinations, hosfile environment cases are not
well-suited to disposition on summary judgment unless on the facts
alleged no reasonable jurors could differ on the conclusion to be drawn.
See Richardson v. New York State Department of Correctional
Services, 180 F.3d 426, 438 (2d Cir. 1999).
Without contesting the facts alleged by Rich, defendants contend that
Rich's allegations fail to establish the existence of a hosfile
environment as a matter of law. As stated earlier, the Court has found that there are triable issues of fact as to
Caracas and Midwood. However, the Court will now determine as to each of
the other defendants whether a triable issue of fact exists with respect
to Rich's sexual harassment allegations.
As to Benarosch, Rich's allegation that he asked her out on several
occasions over a period of years does not, on its own, constitute sexual
harassment in violation of the FHA. Rich has not stated the number of
times Benarosch asked her out, nor has she been consistent as to whether
it occurred over a period of one year or three years. Rich has alleged no
facts indicating that there was anything intimidating about Benarosch's
requests, or that the requests were accompanied by any physical advances.
Nor has Rich indicated what, if any, response or rebuff she ever conveyed
Nor do Rich's other allegations add anything persuasive to her claim.
Rich's description of Benarosch's comment in Rich's kitchen is cryptic at
best. Even if the Court were to accept Rich's interpretation that the
comment was both directed at her and sexual in nature, that single
comment, combined with several requests for dates over the course of at
least two years, does not rise to a level of severe or pervasive
harassment creating a hosfile environment. As to the two instances of
Benarosch "cornering" Rich in her building and cutting her off on Coney
Island Avenue, there are no facts in the record that suggest to the Court that, assuming the events occurred as described, there
was anything sexual or sexually discriminatory about them.
Rich's allegations of Benarosch's behavior, taken as a whole, do not
present a triable issue of fact as to Benarosch's liability for sexual
harassment under the FHA.
As to Gluck, the only allegations of harassment attributable to him are
Rich's claims that he made sexually harassing telephone calls to her.
Assuming the truth of Rich's allegation that the police informed her that
Gluck was the individual placing the calls, Rich puts forth no evidence
of the content of the calls, beyond merely characterizing them as
"harassing." Thus, Rich has put forth no specific facts of any instances
of harassment by Gluck, and therefore there is no triable issue of fact
as to his liability for sexual harassment.
As to Fried and Rosenwasser, the record is entirely devoid of
allegations of sexually harassing conduct by either individual. Assuming
the truth of Rich's allegations that Fried behaved in a generally
unpleasant way toward her, and that Rosenwasser told her that he
"couldn't wait until she was evicted." there is no evidence that the
alleged conduct was sexual in nature, based on animus toward Rich as a
woman, or sufficiently severe and pervasive to create a hosfile
environment. Therefore, there is no triable issue of fact as to the
liability of Fried or Rosenwasser for sexual harassment. II. Illegal Eviction
The complaint does not contain any cause of action for illegal
eviction. However, in her Request to Proceed In Forma Pauperis, Rich
states that she was "illegally evicted from my apartment due to made up
charges harassment and irresponsible lawyers and corrupt
lawyers." In her opposition to defendants' motion, Rich states that
"there is a claim of illegal eviction." Rich goes on in her opposition to
contest the findings of the Housing Court regarding her failure to
provide defendants with access to her apartment and the status of repairs
that were to be made to her apartment.
If Rich is making a claim of illegal eviction, this is necessarily a
challenge to the propriety of the Housing Court's findings and to the
issuance of the warrant of eviction against Rich. However, under the
Rooker-Feldman doctrine this Court has no jurisdiction over
cases that "effectively seek review of judgments of state courts."
Santini v. Connecticut Hazardous Waste Management Service,
342 F.3d 118, 126 (2d Cir. 2003); Weissbrod v. Housing Part Civil Court
of City of New York, 293 F. Supp.2d 349, 353-54 (S.D.N.Y. 2003);
see also District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983); Rooker v. Fidelity Trust, 263 U.S. 413 (1923).
Thus, this Court will not revisit the factual conclusions of the Housing
Court regarding the basis for Rich's eviction, nor will it revisit the legal conclusion of the Housing Court that Rich's eviction was, on
the facts before it, lawful.
Rich's other allegations regarding the marshal's failure to provide
notice and defendants' responsibility for missing property pertain to
events that were not before the Housing Court. However, Rich has raised
no triable issue of fact as to any discriminatory animus behind these
acts, as is necessary to bring them within the ambit of an FHA claim.
Therefore, Rich's illegal eviction claim is dismissed.
Defendants' motion for summary judgment is denied as to Midwood and
Caracas, and granted as to Benarosch, Gluck, Fried, and Rosenwasser. The
action is dismissed as to Benarosch, Gluck, Fried, and Rosenwasser.
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