The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM DECISION AND ORDER
Plaintiff pro se Joseph Riccardo filed a complaint alleging that defendant Jonathan Cassidy violated the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq., by discriminating against him on the basis of his disability*fn1 because defendant refused to accept plaintiff as a Section 8 tenant and perform the repairs necessary to the rental unit at issue to pass the inspection required for disbursement of Section 8 funds. Defendant moves pursuant to Rule 12(b)(6) on the basis that it fails to state a claim. Plaintiff opposes dismissal and moves to amend the complaint.
The following is a summary of the facts and allegations contained in the complaint. Plaintiff resides at 676 4th Avenue, Apartment 1, Troy, New York. The property "is deeded as one . . . parcel, yet Defendant has been leasing it as two . . . separate and distinct dwellings." Defendant is the landlord of that property. Plaintiff is "handicapped or disabled"*fn2 and works "part-time at a local Walmart [sic] as a People Greeter." Plaintiff recently began receiving "SSI checks" to supplement his pay. As a result of his disability, plaintiff can work only limited hours at Wal-Mart every other day. Working more "would create extreme fatigue and exacerbate Plaintiff's symptoms from his disability."
"Defendant . . . appears to Plaintiff as a perfectly healthy person, with no outstanding . . . physical . . . or cognitive deficits. Defendant has boasted to Plaintiff and members of Plaintiff's family of his stamina and his high amount of strength, which he claimed he obtained over time, working in the laundry at a local hospital."
The property at 676 4th Avenue "was leased to Plaintiff and Plaintiff's wife." On February 27, 2010, plaintiff's wife left him and presently resides in another state. "Plaintiff's wife was the only member of the family capable of paying the rent for both floors of Property 676 and thus, it was her income that paid the rent for the entire property." After plaintiff's wife left, defendant "declared the [l]ease voided."
Defendant offered plaintiff a second lease for the first floor of the property. Plaintiff "mentioned to Defendant that he could not pay the rent as stipulated in Lease 2 without assistance from either the State of New York under the N[ursing] H[ome] T[ransition and] D[iversion] Waiver Program or from the Federal Government under HUD's Section 8 Housing Program." "Defendant verbally indicated to both Plaintiff and Plaintiff's NHTD Waiver Program coordinator Laura Loughran . . . that Defendant would work with Plaintiff and any and all agencies assisting Plaintiff in order for Plaintiff to receive rental assistance under the Section 8 program for renting Floor 1." Further:
Defendant verbally represented to both Plaintiff and Ms. Loughran he understood Floor 1 would have to pass any required inspections in order for Plaintiff to receive rental assistance under the Section 8 voucher. Plaintiff has secured a Section 8 voucher and, as his nineteen year-old-son is going to live with Plaintiff, Plaintiff more than satisfies the rental residency requirements the City of Troy, NY has placed on Plaintiff's Section 8 voucher. Defendant verbally represented to Plaintiff and Ms. Loughran that he understood Plaintiff could not pay any rent until rental assistance was secured. The aforementioned verbal representations from Defendant to Plaintiff and Ms. Loughran took place from the period of time on or about March 11, 2010, when Plaintiff signed Lease 2, up until April 9, 2010.
On April 9, 2010, defendant informed plaintiff in writing that he wanted plaintiff "to vacate the residence on the Floor 1" because defendant had not "received any consideration for payment of lease since signing this lease". On April 10, 2010, plaintiff filed a complaint against defendant with the United States Department of Housing and Urban Development alleging discrimination on the basis of disability.
According to the complaint, "Defendant has been totally aware Plaintiff would not be able to pay rent or any form of consideration until Floor 1 passed inspection and Section 8 funds were released to Defendant". Plaintiff alleges that he will not know the portion of rent he will be required to pay until Section 8 funds are released to Defendant. "Plaintiff has been more than willing to help Defendant get Floor 1 in shape to pass inspection so Section 8 monies could be released to Defendant and has verbally stated that to Defendant."
According to the complaint, "almost every weekday from March 22, 2010 to the present, Defendant has been . . . on the second floor . . . getting that floor ready to rent" and despite having the time and resources, has not fixed "Floor 1". Plaintiff further alleges that to rent Floor 1 and Floor 2 as separate units, defendant "would be required by the City of Troy . . . to place a second water meter on the property" but that defendant "was trying to circumvent the City of Troy's requirement that each separate residence needs to have its own water meter."
The allegations in the complaint, plaintiff contends, "clearly indicate Defendant has violated the Fair Housing Act. [Defendant] made verbal representations indicating he would work with Plaintiff and Ms. Loughran to help Plaintiff secure Section 8 funding for Plaintiff and is now acting if [sic] those statements were never made." As a result, ...