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Joseph Mancuso and Karla Mancuso, Individually and As Parents and v. Douglas Elliman

August 26, 2011


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


Plaintiffs commenced this action, which claims violations of the Fair Housing Act, 42 U.S.C. § 3601 et seq., the New York State Human Rights Law, and the New York City Administrative Code, on March 22, 2007. Plaintiffs' claims arise out of two attempts to rent an apartment at 15 Broad Street in New York City, which they allege were unsuccessful because plaintiff M.M. is in a wheelchair and has a service dog and because of plaintiffs' familial status. Now before the Court are three sets of defendants' motions for summary judgment, as well as plaintiffs' motion for permanent injunction and partial motion for summary judgment on liability. For the reasons that follow, plaintiffs' motions are DENIED; the motion of defendants Maidan and Talel is GRANTED; the motion of defendant Stimmel is DENIED; and the motion of defendants Kouperman, Voight, and Douglas Elliman LLC is GRANTED in part and DENIED in part.


I.The Parties

Plaintiffs are a family of four-Joseph Mancuso ("Mancuso"), his wife Karla Mancuso, and their two children, Max and M.M.-and CEO Clubs International, Inc. ("CEO Clubs"), a nonprofit organization managed and operated by Joseph and Karla Mancuso. (Douglas Elliman LLC, Faina Kouperman, and Gordon Voight's Rule 56.1 Stmt. ("DE Rule 56.1 Stmt.") ¶ 1; Declaration of Joseph Mancuso dated October 25, 2010 ¶ 16.) M.M., a minor child during all times relevant to this motion, has a disability and uses a motorized wheelchair and a service dog. (DE Rule 56.1 Stmt. ¶ 2; Pl.'s Rule 56.1 Stmt. ¶ 2, 7, 8.)

Defendant Douglas Elliman LLC ("DE") is a real estate brokerage firm with over sixty offices in Manhattan, Brooklyn, Queens, and Long Island. (DE Rule 56.1 Stmt. ¶ 9.) Defendant Gordon Voight was engaged by DE as a real estate salesperson from October 4, 2000, to November 2007. (Id. ¶ 25.) Defendant Faina Kouperman has been engaged in the same capacity since April 25, 2005. (Id. ¶ 50.)

At all relevant times, defendant John Stimmel owned Apartment 1520 at 15 Broad Street, New York, New York ("Apartment 1520"), one of the apartments that plaintiffs attempted to rent. (Id. ¶ 26.)

Defendant Michael Maidan owned Apartment 2020 in the same building, which plaintiffs also attempted to rent. (Id. ¶ 51.) In December 2006, Maidan decided to sell Apartment 2020 to defendant Emil Talel, and did so on July 12, 2007. (Id. ¶¶ 53, 55.)

II.Apartment 1520

Plaintiffs' first attempt to rent an apartment at 15 Broad Street involved Apartment 1520. On April 4, 2006, DE, through Voight, entered into a Residential Brokerage Agreement with Stimmel providing Voight with the exclusive right to rent Apartment 1520 from May to December 31, 2006. (DE Rule 56.1 Stmt. ¶ 27; see Courtian Aff. dated September 7, 2010 ("First Courtian Aff.") Ex. T.) In November 2006, Mancuso contacted Voight to inquire about Apartment 1520. (First Courtian Aff. Ex. H ("Voight Dep.") at 166:15-25, 170:5-171:6.) Mancuso was in Texas at the time he first contacted Voight, and they agreed to meet when he returned to New York at Mancuso's then-current apartment at 47 West Street. (Id. at 171:14-21; Courtian Aff. dated Oct. 20, 2010 ("Second Courtian Aff.") Ex. C at 171:25-172:7.) At this meeting, Mancuso talked with Voight about CEO Clubs, his children, the service dog, his credit, and a rent offer. (Voight Dep. at 177:5-11.) In searching for a new place to live, the Mancusos preferred to rent as a corporation (i.e., rent in the name of CEO Clubs), though Mancuso also testified that they "were flexible and could do whatever was necessary to live where [they] wanted to live." (First Courtian Aff. Ex. C ("Mancuso Dep.") at 145:16-23.) Mancuso also told Voight that he might need to run special wiring so that the copy machines he planned to use would not cause power outages or broken fuses. (Mancuso Dep. at 148:24-149:10.)

At some point prior to December 11, 2006, Voight informed Stimmel of details of the Mancusos' application, including M.M.'s wheelchair and service dog, Mancuso's desire for a corporate lease, and Mancuso's intent to use the apartment as an office and a residence. (Voight Dep. at 226-31, 324-25; First Courtian Aff. Ex. J ("Stimmel Dep.") at 66-67, 69-71, 77-78, 86-87.) Prior to Thanksgiving, Voight also told Stimmel that Mancuso's offer was under the asking price and that Mancuso's salary was $700,000, received from a nonprofit organization. (Stimmel Dep. at 66:14-18.) Stimmel told Voight that "something didn't make sense on the salary," that it didn't "ring true to" him that a person could make a $700,000 salary at a nonprofit organization, that he disfavored a corporate lease, and that he believed the building rules did not allow commercial use of the apartment. (Id. at67:8-24.)

The monthly rental asking price of Apartment 1520 varied in November 2006. On November 1, 2006, it was $7,700; that figure dropped to $7,600 on November 8, $7,500 on November 15, rose to $8,000 on November 22, fell to $7,400 on November 26, and finally fell to $7,200 on December 3, 2006. (Bahamonde Decl. dated Sept. 7, 2010 ("First Bahamonde Decl.") Ex. 20 at 2.) During that time, Mancuso made several offers that were "few hundred dollars under the current listed" price. (Mancuso Dep. at 322:23-19; see also Voight Dep. 185:16-187:8.) In early December, another potential renter, Cyrus Cooper, surfaced and contacted Voight. (Voight Dep. at 193:20-194:17.) Cooper offered $7,200 per month to rent Apartment 1520 and to pay half of Voight's commission. (Id. at 199:18-200:4.) Cooper had no pets, one son, a $650,000 combined family income, and did not intend to run a company out of the apartment. (First Courtian Aff. Ex. V.)

Voight advised Stimmel that three prospective tenants were interested in renting Apartment 1520, and at Stimmel's request, Voight summarized their profiles in a December 11, 2006 e-mail to Stimmel.*fn1 (First Courtian Aff. Ex. V.) That e-mail reflected that M.M. uses a wheelchair, that she would not keep the dog in the apartment, and that plastic guards would be installed to prevent damage to the doors, but did not mention a bankruptcy of which Mancuso had informed Voight. (Id.; see First Bahamonde Decl. Ex. 7 ("Phone Call 121406") at 7:4-18.) On December 12, 2006, Stimmel decided to rent Apartment 1520 to the Cooper family. (DE Rule 56.1 Stmt. ¶ 40.)

On December 14, 2006, Mancuso called Voight and recorded the conversation, the relevant portions of which are excerpted below:

MR. MANCUSO: Okay, I got a question for you.

MR. VOIGHT: Uh-huh.

MR. MANCUSO: Um, you said that the deal killer was, uh, the daughter, uh, the wheelchair and the dog.

MR. VOIGHT: Yeah, they were really concerned about scraping up things. They-they feel bad about, you know, the daughter and everything but he was just-they-he's just trying to protect his apartment, that's all. .. .

MR. MANCUSO: But he was pretty upset about that-that-is that what's holding us back from getting the place?

MR. VOIGHT: He's, uh, he's not upset, he just, uh-

MR. MANCUSO: Oh, he's concerned.

MR. VOIGHT: --that's not the word. He's just a little concerned.

MR. MANCUSO: Yeah. Uh, is it --is it a deal killer, that's the question because if it-

MR. VOIGHT: That's been-yeah, it's gonna be kind of the deal killer, yeah. MR. MANCUSO: It is a deal killer? Wow.

MR. VOIGHT: He just-he seems to be really concerned about that-that-he's not upset. He's not angry. He feels bad for having that viewpoint because of your daughter's unfortunate situation. . ..

MR. VOIGHT: . . . I really took up for you 'cause I told him, I said, look I went to your place on West Street. I said, there's no scratches on the floor and there's no marks anywhere in the apartment as far as damaged walls or scruffed up floors with-from a wheelchair or anything. And I pointed it out to him. But he-this is very normal. This is just not him. I've had other people who have bought developments and they rented them out. And they were totally nervous about who went in there. Uh, another man I-I-I'm renting-I'm renting out his development, he's-he was terrified they were gonna cut-uh, stink up the place. So there's just little things like that. And this is very common. . . .

MR. MANCUSO: I see. So, he --this is the first time he's renting, so you think he's a little biased against, uh, this, uh, dog, uh, wheelchair?

MR. VOIGHT: He's just nervous, period. . . .

MR. MANCUSO: But I hate to lose it over the damn-I mean I-I don't mind losing it over price 'cause the price is-everybody has it. But I feel-

MR. VOIGHT: Well tell me-

MR. MANCUSO: Uh, the wheelchair, uh, dog, you know, that-that's not like fair. I mean, you know, I hate that. But I can deal with it by the plastic strips and get rid of the dog.

MR. VOIGHT: Well, you're dealing with the first time a man has ever rented out something. . . .

MR. VOIGHT: -they [co-ops]-it-you know they're like country clubs. And whether they-they-it doesn't-it-the money certainly is a factor, but it's whether or not they like you.

MR. MANCUSO: Well, uh, in this case, does this guy know that you can't, uh, discriminate against disabled people? You know he could get sued.

MR. VOIGHT: Well, I-

MR. MANCUSO: I mean I'm asking you-between you and me.

MR. VOIGHT: Talked about it, but I don't think, uh-

MR. MANCUSO: It's not true in condos is it? Is that same law true?

MR. VOIGHT: I don't know. I don't think it really-he can-an owner can-we looked into that and an owner can choose whoever he wants. That's just his right. So I don't think-I don't think that's really a case. . . . . . .

MR. MANCUSO: The floor never is a problem, it's the door. It's the door at the same height as the wheelchair where it hits the thing. And, um, and you could get a scratch. I mean we haven't had one in four years here. But we go to other people who have wheelchair-kids that are disabled and some of them have these plastic covers, hard-it looks like glass-cover over a certain section of the door. It's only about 8, 10 inches of plastic. And, uh, if it ever hits there, it just hits the plastic and then when you leave, you just peel the plastic off. They stick on. They're really easy to put on, you know like glue on.

MR. VOIGHT: Uh-huh. Well, so, that is something. That's-that's workable. (Phone Call 121406 at 2:21-3:6, 5:2-20, 9:15-10:5, 10:16-20, 14:10-20; 19:24-20:14, 21:15-22:5.) Mancuso called Voight a second time and recorded that conversation as well:

MR. MANCUSO: . . . I really like the apartment and I'd like to get it, but what's the status?

MR. VOIGHT: Well, the status is, uh, we're-he-he likes this other couple. . . .

MR. VOIGHT: And, uh, uh, we're gonna see if-uh, he liked the fact that they have just one person. Uh, they have a-they're married and with a-with a son. MR. MANCUSO: No dog and no wheelchair.

MR. VOIGHT: No, nothing like that. He's very comfortable with that. . . .

MR. VOIGHT: So I told him everything that you're willing to do. But now the only thing that he doesn't know about-

MR. MANCUSO: All right.

MR. VOIGHT: --is I never told or talked to him about the credit. . ..

MR. MANCUSO: But you did tell him about the dog, the wheelchair and he-he still feels the same way. He doesn't really care.

MR. VOIGHT: It wasn't-and it wasn't-and it's just the fact that he just like this-and then likes the other couple. He liked this other couple. Now they-we haven't done a bill and his apartments are local. We're just giving him first crack at it to see what happens.

MR. MANCUSO: Well, you know, I wouldn't-well what's the price, the same as mine roughly?

MR. VOIGHT: No, they're higher than you.

MR. MANCUSO: About how much higher 'cause maybe-

MR. VOIGHT: They're at, uh, 72.


MR. VOIGHT: And the second year is 7750.

MR. MANCUSO: Well, you know, I would match that, so you would know, or I'd go $100 more. . . .

MR. VOIGHT: So, uh, anyway I've got a [sic] call into Mr. Stim[mel] and I'll run it by him.

MR. MANCUSO: All right, well tell him that I'll match or do $100 better than the other offer.

MR. VOIGHT: So you'll be at 73?

MR. MANCUSO: Yeah, I'd go 73. I mean, you know, you know $100 is not a lot.


MR. MANCUSO: And I want to show him that we have good faith and I'm moving the dog for his sake and we would do the-you know guards for the wheelchair. ...

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