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Isidoro Rivera, Jose Alvarado, Juan Bustillo, Noberto Alvarez, Elsa Mejia v. the Incorporated Village of

March 30, 2011


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


Plaintiffs Isidoro Rivera, Jose Alvarado, Juan Bustillo, Noberto Alvarez, Elsa Mejia Villalobo, Brian Fredericks, Eli Chavez, Marta Villatoro, and Ana Maria Mora Gomez (collectively, "Plaintiffs") bring this action alleging that: (1) defendant Village of Farmingdale (the "Village") violated the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. (the "FHA"); and (2) defendants Secatogue Realty, LLC ("Secatogue"), John Tosini, and Michelle Tosini (collectively, "Defendants") violated the FHA, New York Executive Law § 296(6), and New York Real Property Law § 235-b. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56.*fn1 For the reasons that follow, Defendants' motion is granted, and Plaintiffs' claims against them are dismissed in their entirety.


The material facts, drawn from the parties' Local Civil Rule 56.1 Statements, are undisputed unless otherwise noted.

The Parties

Plaintiffs are all Hispanic individuals who are former residents of a 54-unit apartment building at 150 Secatogue Avenue (the "Building"), which is located in the Village. The Village is a municipal corporation incorporated pursuant to New York Village Law, and is located in Nassau County, New York. Secatogue is a New York limited liability company with its principal place of business in New York. Secatogue owned the Building from 1999 until July 2006. John Tosini is a member of Secatogue, and Michelle Tosini is an agent for Secatogue.

Interactions Between John Tosini and the Village

In 1999, John Tosini met with the Village Clerk and learned that the Village had an interest in redeveloping both the Building and its surrounding area. During a second meeting between John Tosini and the Village Clerk, the Village raised the idea of acquiring the Building via eminent domain, but the meeting ended without a clear resolution. In April 2000, John Tosini received a "Public Notice" dated March 28, 2000 from the Village indicating that the Village Board of Trustees would be holding a public hearing to consider a proposal to acquire title to the Building, as well as a neighboring building located at 130 Secatogue Avenue, "for the purpose of constructing housing pursuant to Eminent Domain Procedure Law." (Decl. of John Tosini, dated March 15, 2010 ("Tosini Decl.") ¶ 11.)

Throughout the period between 2000 and 2004, the Village continued to consider the possibility of acquiring the Building and surrounding properties through eminent domain, but never made any official decision in that regard. As a result of this uncertainty, John Tosini concluded by late 2004 that it "did not make fiscal sense for [him] to make capital improvements to the property," although he states that he continued to "make necessary repairs" to the Building. (Id. ¶ 21.) In November 2004, John Tosini engaged a real estate agent to represent Secatogue and market the Building for sale because he "had come to the determination that [he] no longer wanted to own apartment buildings." (Id. ¶ 30.)

Sale of the Building

On December 16, 2004, Fairfield Acquisition, LLC ("Fairfield") signed an agreement of sale with Secatogue for the purchase of the Building.

Alleged Condition of the Building

Plaintiffs assert that between 1999, when Secatogue assumed ownership of the Building, and 2006, when the Building was sold to Fairfield, numerous problems existed with its condition.

Plaintiffs allege that they, as well as various engineers and inspectors who examined the Building during that time period, either on behalf of the Village or as Plaintiffs' retained experts, have found, inter alia: raw sewage spills, cracks in foundation walls, water damage, fire hazards, overflowing refuse containers, evidence of mice and bed bug infestations, mold, collapsed ceilings, and leaks in Plaintiffs' apartments and common areas of the Building. Plaintiffs also allege that they complained to John and Michelle Tosini about these problems, but their complaints were either ignored or inadequately addressed.


Fairfield was initially named as a defendant in this action, which was commenced on May 25, 2006. Subsequently, however Fairfield reached a settlement agreement with Plaintiffs by which Fairfield agreed to pay nine plaintiffs certain monetary amounts in exchange for Fairfield's dismissal from the suit. On January 17, 2007, Plaintiffs filed an amended complaint reflecting the withdrawal of plaintiffs Lorena Umana and Oscar Ramirez and the addition of three new plaintiffs, Ana Maria Mora Gomez, Orlando Pintor Jimenez, and Marta Villatoro.*fn2 The Amended Complaint also named John and Michelle Tosini as defendants. (See Mag. Judge Lindsay's June 16, 2008 R&R at 4.)


I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and ...

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