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Pu v. Charles H. Greenthal Management Corp.

March 9, 2010


The opinion of the court was delivered by: Richard J. Holwell, District Judge


Richard Pu, an attorney, owns a condominium in a building on East 90th Street in Manhattan. He brings this action pro se against the building's condominium association (the "Association"), its outside counsel, and other related defendants, alleging that they fraudulently imposed a $380,000 assessment on condominium owners, amounting to about $4,200 per owner, to finance hallway renovations. Pu does not contend that defendants embezzled or misapplied the assessment proceeds, nor does he contest that the renovations enhanced the value of the property to a degree proportionate to their cost. Rather, Pu contends the assessment was fraudulent because defendants did not obtain prior written approval from the condominium owners' mortgagees, as he believes the Association's by-laws require, but instead merely notified the mortgagees of the assessment and permitted them an opportunity to object. On this predicate, he asserts federal claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO") and the Fair Debt Collection Practices Act ("FDCPA"), along with a slew of state law claims sounding in tort and contract.

Now before the Court are defendants' motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Magistrate Judge Ronald Ellis issued a report and recommendation (the "Report"), familiarity with which is presumed, recommending that the motions be granted. Judge Ellis found that the notice-and-objection procedure defendants employed to obtain mortgagee consent satisfied, as a matter of law, the Association's by-laws. Report at 10 ("Defendants obtained the requisite consent and therefore did not violate the by-law."). Because Pu's federal claims are premised on alleged violations of the by-laws, Judge Ellis recommended that the Court dismiss those claims. Pu filed timely objections. Upon review, the Court agrees with Judge Ellis's well-reasoned analysis. In addition, the Court finds that the federal claims warrant dismissal for the independent reason that the Complaint fails to plead the elements of a RICO or FDCPA claim. Finally, the Court deems it proper to exercise supplemental jurisdiction to dismiss Pu's state law claims on their merits. Accordingly, the entire complaint is dismissed with prejudice.


A district court may designate a magistrate to hear certain motions and to submit a report and recommendation as to how the Court should resolve the motions. See 28 U.S.C. § 636(b)(1) (2009). Within fourteen days of service of the recommendation, any party may file written objections. Id. In evaluating the magistrate's report, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

The court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; see, e.g., Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226-27 (S.D.N.Y. 2008). "If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 366 (S.D.N.Y. 2007) (citations omitted). Where a party makes "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition," the court reviews for clear error. Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (internal quotation marks and citations omitted). Parties may not "attempt to relitigate the entire content of the hearing. [and] are not to be afforded a 'second bite at the apple....'" Carmardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992).


By-law V(11), the provision in question, reads as follows:

Wherever... the Common Elements [of the building] shall require additions, alterations or improvements costing in excess of $100,000... in any fiscal year, then such additions, alterations or improvements shall not be made unless first approved [by] in excess of two-thirds (2/3) in Common interest of all the Unit Owners and their mortgagees. [sic] (Pu App'x at 133). Pu does not dispute that defendants obtained proper approval for the hallway renovations from 76% of the unit holders. Report at 3. Rather, he alleges violations of only the final phrase in the by-law: "and their mortgagees." Judge Ellis found defendants complied with that language by notifying mortgagees of the renovation plan and allowing them 30 days to object.*fn1 Report at 3, 10. Pu objects to that finding on the ground that, under contract principles, silence does not constitute assent. Pl. Obj. at 7-8 ("If that were the law, each of us would receive thousands of letters every day, and be required to respond to each, lest our silence be deemed consent."). He cites authority for the proposition that parties will not be deemed to assume obligations through silence alone. Id. at 7-11.

Pu's objections misstate the issue in this case, which is one of contract interpretation, not contract formation. Whether a notice-and-objection procedure satisfies specific contract language is a very different question than whether silence may bind one to an obligation or waive a right arising from an independent source. Condominium bylaws constitute, at least for interpretive purposes, a contract between unit owners and the condominium association. See Perlbinder v. Board of Managers of 411 E. 53rd St. Condominium,886 N.Y.S.2d 378, 380-81 (N.Y. App. Div. 2009); Gennis v. Pomona Park Bd. of Managers, 828 N.Y.S.2d 472, 473 (N.Y. App. Div. 2007). Courts may construe contracts as a matter of law if their language is unambiguous. Curry Road Ltd. v. K Mart Corp., 893 F.2d 509, 511 (2d Cir. 1990). While the relevant provision of the by-laws does not specify the required form of mortgagee consent, other provisions expressly require the affirmative, written approval of mortgagees. (White Aff. Ex. A at 25.) The mortgagee consent language in by-law V(11), when read in conjunction with (and in contrast to) the express language in the other provisions, establishes unambiguously that alterations and improvements do not require such affirmative, written approval. See Perlbinder, 886 N.Y.S.2d at 381 ("In construing a contract, an interpretation that gives effect to all the terms of an agreement is preferable to one that ignores terms or accords them an unreasonable interpretation.") (condominium by-laws context) (citation omitted).

Pu's federal claims, however, suffer a much more egregious flaw than unsound interpretation of contract language. He has shoehorned a dispute over the meaning of condominium by-laws into federal claims based on RICO and FDCPA, statutes aimed at "long-term criminal activity" and "abusive debt collection practices," respectively. H.J. Inc. v. Nw. Bell Tel. Co., 429 U.S. 229, 239 (1989) (RICO); 15 U.S.C. § 1692(e) (FDCPA). This litigation strategy-presumably geared to exploit the damage multiples for which the federal statutes provide-is baldly improper, but Pu is not the first to employ it. One court in this district has surmised "that every member of the federal bench has before him or her at least one-and possibly more-garden variety fraud or breach of contract cases that some Plaintiff has attempted to transform into a vehicle for treble damages by resort to what another respected jurist, Judge Allan Schwartz... has referred to as 'the litigation equivalent of a thermonuclear device'-a civil RICO suit." Goldfine v. Sichenzia, 118 F. Supp. 2d 392, 394 (S.D.N.Y. 2000) (quoting Schmidt v. Fleet Bank, 16 F.Supp.2d 340, 346 (S.D.N.Y.1998)). In the same vein, two other courts in this district have issued notably sharp dismissals of RICO claims premised on real estate disputes similar to Pu's dispute with the condo Association. See Calka v. Kucker Kraus & Bruh, LLP, No. 99 Civ. 4999, 2000 WL 557266, at *1 (S.D.N.Y. May 8, 2000) (Mukasey, J.) (calling suit "frivolous and obstructive" where plaintiff brought RICO claims for what was "essentially a landlord/tenant dispute"); West 79th Street Corp. v. Congregation Kahl Minchas Chinuch, No. 03 Civ. 8606, 2004 WL 2187069 (S.D.N.Y. Sept. 29, 2004) (Sweet, J.) ("It has been suggested that the civil provisions of [RICO] are the most misused statutes in the federal corpus of law.... To this end, courts must be wary of putative civil RICO claims that are nothing more than sheep masquerading in wolves' clothing.") (citation omitted).

Pu's complaint does not adequately plead a RICO claim. To state a cause of action under RICO, a plaintiff must plead the seven constituent elements of a substantive RICO violation: "(1) that the defendant (2) through the commission of two or more acts (3) constituting a 'pattern' (4) of 'racketeering activity' (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an 'enterprise' (7) the activities of which affect interstate or foreign commerce." Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983) (quoting 18 U.S.C. § 1962(a)-(c) (1976)). Further, a plaintiff must allege that the substantive RICO violation caused him injury. Id. ("To satisfy this latter burden, plaintiff must allege that he was 'injured in his business or property by reason of a violation of section 1962.'") (quoting 18 U.S.C. § 1964(c) (1976)).

The Complaint clearly fails to satisfy these pleading burdens. Most obviously, in making allegations about what is essentially a disagreement over the meaning of contract language, Pu does not plausibly allege that defendants engaged in any predicate racketeering activity. The Complaint includes a laundry list of purported racketeering acts-"extortion, witness tampering, wire fraud, mail fraud, bank fraud, obstruction with local law enforcement, [and] money laundering"-but all of these varied offenses emanate from Pu's thesis that defendants defrauded the unit owners and mortgagees by collecting the $380,000 assessment without affirmative mortgagee consent, applying the proceeds to the hallway renovations, and subsequently seeking to conceal the supposed wrongdoing. (Compl. ¶ 67 - 68.)*fn2 In other words, all of the alleged racketing activity is premised on the assumption that defendants fraudulently obtained the assessment monies by knowingly violating the mortgagee consent requirement and concealing that violation. But even if Pu had pleaded that defendants' notice methods violated the by-laws (which he has not), he has not plausibly alleged that defendants acted with scienter, as predicate RICO violations grounded in fraud require. W. 79th Street, 2004 WL 2187069 at *6-7.

A RICO plaintiff may prove fraudulent intent by "identifying circumstances indicating conscious behavior by the defendant" or "alleg[ing] a motive for committing fraud and a clear opportunity for doing so." Powers v. British Vita, P.L.C., 57 F.3d 176, 184 (2d Cir. 1995). Pu has done neither. Though a section of the Complaint titled "Facts Going to Scienter" alleges that the mortgagee consent requirement was "well known" to defendants, all of the averments are consistent with a good faith belief that notifying the mortgagees of the assessment and offering them an opportunity to object satisfied the consent requirement. (Compl. ¶¶ 16 -19.) Indeed, the very fact that defendants provided notice to all mortgagees, and informed unit holders of the notice-and-objection process, belies the existence of any pernicious scheme to fraudulently subvert the by-laws' approval requirements. See W. 79thStreet Corp., 2004 WL 2187069 at *7 ("Acts done inadvertently, mistakenly, or in good faith without an intent to defraud are insufficient to satisfy the knowledge and criminal intent elements..."). Pu's allegations about defendants' motives require even less discussion; they fall well short of supporting an inference that defendants intentionally lied to unit holders, mortgagees, or anyone else to obtain the assessment monies. (Compl. ¶ 43 (e.g., "Defendant McCarthy... needed [] money to purchase a farm, where she would pursue a career as a bee keeper. On information and belief, [she] wished to see the renovations performed so that she could receive kickbacks from the contractors"; "Defendant ...

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