The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
On January 10, 2011, Plaintiffs La'Keemon Dixon and Housing Opportunities Made Equal, Inc. ("Home") commenced this civil rights action by filing a Complaint in the United States District Court for the Western District of New York. Therein, Plaintiffs allege two causes of action relating to alleged discrimination in the sale or rental of a property Plaintiff Dixon was interested in renting. Presently before this Court is Defendant Semyon Ziskind's Motion to Dismiss.*fn1 For the reasons discussed below, Defendant's Motion to Dismiss is denied.
In adjudicating Defendant's Motion to Dismiss, this Court assumes the truth of the following factual allegations contained in Plaintiffs' Complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S. Ct. 1848, 1850, 48 L. Ed. 2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).
Plaintiff La'Keemon Dixon is an African-American woman. (Complaint ("Comp."), Docket No. 1, ¶ 4.) At the time of the acts complained of, she was 32 years old, the mother of five children, and a resident of Buffalo, New York. (Id. ¶ 4.) Home is a not-for-profit corporation incorporated under the laws of New York with its principal place of business in Buffalo, New York. (Id. ¶ 6.) Defendants Demyan and Galina Muchnik are the owners of a property located at 259 Paradise Road, East Amherst, County of Erie, New York (the "property"). (Id. ¶ 9.) Defendant Ziskind is a resident of Williamsville, New York, and acted under the names "Sam," "Mr. Zisk," and Ziskind throughout the events relevant to this action. (Id. ¶¶ 11, 19, 26, 29.)
On March 4, 2009, Dixon responded to an advertisement on the website Craigslist, advertising for rent or purchase a 4-bedroom house. (Id. ¶ 19.) Dixon called Ziskind at the number listed and made an appointment to view the premises the same day. When Dixon arrived at the house, Ziskind was not present. (Id. ¶ 21.) Dixon was instead invited in by Demyan and Galina Muchnik who appeared startled by her arrival. (Id.) The pair proceeded to ask how many children Dixon had before stating that they were going to sell rather than rent, but that Dixon could call back after March 15, 2009 for their final decision. (Id. ¶ 22.) Ziskind called Dixon after the viewing, and Dixon informed him that she had been asked to follow up directly with the Muchniks. (Id. ¶ 23.)
Dixon called the Muchniks back on March 16, 2009. (Id. ¶ 24.) Galina did not remember Dixon initially, but eventually informed Dixon that they had decided to sell. (Id. ¶ 24.) In response, Dixon notified Home and reported her situation. Throughout the period from March 17, 2009 to April 3, 2009 the property continued to be advertised on Craigslist, with Ziskind still listed as the contact. (Id. ¶ 26.) In response to Dixon's report, Home initiated an investigation employing two testers to respond to Ziskind's ad. (Id. ¶ 28.)
Tester #1 was an African-American female working together with Home to investigate Defendants and played the role of a single mother with four children. (Id. ¶ 29.) On March 30, 2009 she called Ziskind in regards to the property and made an appointment to view it on March 31, 2009. When Tester #1 arrived the following day Ziskind was not present, but she was greeted by a pair who introduced themselves as Remma and Damien. (Id. ¶ 30.) Another unidentified female present inquired whether Tester #1 had children and was married. (Id. ¶ 31.) Tester #1 was also asked whether she was interested in potentially buying the premises. (Id.) When Tester #1 asked about the application process for the property, she was directed to contact Ziskind because he had the applications. (Id. ¶ 32.) Ziskind was identified by the women present as their realtor. (Id.)
Tester #1 called Ziskind the next day, April 1, 2009, in regards to submitting an application. Ziskind did not answer and Tester #1 left a message. (Id. ¶ 33.) On April 3, 2009, after Ziskind still had not called her back, Tester #1 called again. (Id. ¶ 34.) This time, Ziskind answered, and set up an appointment for April 4, 2009 to meet Tester #1 at a predetermined address. (Id.) When Tester #1 showed up at the location and time, however, Ziskind was not present. (Id. ¶ 35.) Tester #1 called Ziskind, who informed her that he had not yet left his home and was some distance away, but that he would call her later to make another appointment. (Id. ¶ 35.)
Ziskind did not call Tester #1 back until April 12, 2009. (Id. ¶ 36.) At that time, he did not schedule a new appointment, but instead inquired whether Tester #1 was still looking for an apartment. When she responded that she was, Ziskind stated that a different property in North Buffalo was available. When questioned regarding the ...