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Miller v. Board of Managers of Whispering Pines at Colonial Woods Condominium II

September 29, 2006

MARK A. MILLER AND SUSAN MILLER ET AL., PLAINTIFFS,
v.
BOARD OF MANAGERS OF WHISPERING PINES AT COLONIAL WOODS CONDOMINIUM II, GORDON RHEIKOFF, FRANK HAYES, ROBERT MORRIS, RUSSELL HARDY, SETH BERMAN, DENIS MURPHY, JANE ROE MURPHY, DEFENDANTS.



The opinion of the court was delivered by: Wexler, District Judge

MEMORANDUM AND ORDER

Plaintiffs Mark A. Miller and Susan Miller, husband and wife, bring this action against defendants Board of Managers of Whispering Pines at Colonial Woods Condominium II ("Board"), Gordon Rheikoff, Frank Hayes, Robert Morris, Russell Hardy, Seth Berman, Denis Murphy, and Jane Roe Murphy, asserting (1) claims for violation of their constitutional rights under 42 U.S.C. §§ 1983 and 1985(3); (2) claims for violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq.; and (3) supplemental state claims. Defendants move to dismiss all claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP") for failure to state a claim upon which relief can be granted. Plaintiffs oppose the motion.

I. BACKGROUND

The allegations of the complaint, accepted as true for purposes of this motion, can be summarized as follows. Plaintiffs were the owners of a condominium unit known as 18 Jefferson Commons, within the Whispering Pines Condominium complex in Yaphank, New York. Mark Miller is an employee of Verizon telephone company. Susan Miller is employed as an exotic dancer; she has performed in various locations patronized by members of the Board.

Defendants sought to compel plaintiffs to leave the condominium by making it impossible or impracticable for them to live there through various conduct including "intimidation, interference, coercion, investigation, enforcement proceedings and/or judicial or other processes." Complaint ¶ 16. Beginning in April 2001, Susan Miller was subject to "public heckling" as she walked or drove through the complex. Id. ¶ 17. The heckling included statements such as "why don't you get out of here, we have all seen your ass." Id. The heckling occurred "every day" during the summers beginning in 2001 and escalated in the spring of 2003 through 2004. Id.

Plaintiffs also had problems with the condition of their condominium unit. During prolonged periods of rain, water collected in front of their unit, with broken gutters from adjoining units contributing to the flooding. Plaintiffs' complaints to the Board were ignored. The condition was worsened by the sprinkler system, and plaintiffs' requests to modify or turn off the system near the unit were ignored. Summer rains ultimately compounded the condition, causing a flood in their daughter's bedroom. Plaintiffs complain that they bore the cost of provisional repairs, performed by outside contractors as arranged by the Board, through increases in their monthly maintenance fee. Those fees continued to grow, and plaintiffs' homeowners' insurance company canceled plaintiffs' policy due to the detrimental condition of their unit's exterior.

Around August 2001, the Board "feigned complaints" to Verizon, Mark Miller's employer, claiming that he was parking Verizon vehicles behind his unit. Id. ¶ 19. Such conduct would be a violation of Verizon policy and would subject him to termination. Because Mark Miller was on disability, the complaints were dismissed by Verizon. Thereafter, "[c]onfrontational incidents" between plaintiffs and the individual defendants heightened. For example, in or around August 2001, Denis Murphy stated to Mark Miller, "I will break your arms if you don't leave. If you don't, you may never come home!" Id.

In the fall and winter of 2003, plaintiffs placed their unit for sale with various real estate firms. After entering into contracts, title searches disclosed that the Board had filed a lis pendens on plaintiffs' unit. Thereafter, plaintiffs' monthly maintenance fee increased again.

In January 2004, the Board brought a foreclosure action to compel the sale of plaintiffs' unit, claiming plaintiffs were in arrears for $12,530 in common area maintenance and management charges. Plaintiffs asserted various counterclaims in the foreclosure action. The Board offered to reduce the amount sought for the unit if the plaintiffs discontinued their counterclaims. Plaintiffs refused.

Plaintiffs then filed this action, asserting (1) claims for violation of their constitutional rights under 42 U.S.C. §§ 1983 and 1985(3); (2) claims for violation of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq.; and (3) supplemental state claims. In their § 1983 claims, plaintiffs assert that defendants intentionally discriminated against them by interfering with plaintiffs' property rights in their unit in violation of due process and equal protection. In their § 1985(3) claims, plaintiffs assert that defendants conspired to deprive them of due process, equal protection and/or equal privileges and immunities. As for their FHA claims, plaintiffs assert violations of §§ 3604, 3605, and 3617 of the FHA based on defendants' coercive and intimidating conduct and retaliation. Plaintiffs' supplemental state claims include claims for, inter alia, abuse of process, false arrest, malicious prosecution, and negligence. Defendants move to dismiss the complaint.

II. DISCUSSION

A. Legal Principles on Motion to Dismiss Under FRCP 12(b)(6)

On a motion to dismiss under FRCP 12(b)(6), the allegations in a plaintiff's complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam). It is well settled that a complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maggette v. ...


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