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Rivera v. The Inc. Village of Farmingdale

United States District Court, E.D. New York

December 31, 2013

ISIDORO RIVERA, et al., Plaintiffs,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Isidoro Rivera, Jose Alvarado, Juan Bustillo, Noberto Alvarez, Elsa Mejia Villalobo, Brian Fredericks, Eli Chavez, Marta Villatoro, Ana Maria Mora Gomez, Plaintiffs: Reza Rezvani, LEAD ATTORNEY, Rezvani Law Firm, New York, NY; Stefan Hillel Krieger, LEAD ATTORNEY, Lynn Capuano, Community Legal Assistance Corp., Hempstead, NY; Daniel Case Gibbons, James W. Weller, Thomas M Mealiffe, Nixon Peabody LLP, Jericho, NY.

For The Incorporated Village of Farmingdale, Defendant: Stephen Paul Markus, LEAD ATTORNEY, Claudio DeBellis, Walsh Markus McDougal & DeBellis, LLP, Garden City, NY; Edward Fogarty, Jr., Litchfield Cavo, New York, NY; Russell J. McBrearty, Litchfield Cavo LLP, New York, NY.

For The Incorporated Village of Farmingdale, Cross Claimant, Cross Defendant: Edward Fogarty, Jr., LEAD ATTORNEY, Litchfield Cavo, New York, NY; Claudio DeBellis, Walsh Markus McDougal & DeBellis, LLP, Garden City, NY.

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PAMELA K. CHEN, United States District Judge.

This Court presumes the parties' familiarity with the facts in this case, particularly as they pertain to the claims against Defendant the Incorporated Village of Farmingdale (the " Village" ).[1] In essence, Plaintiffs claim that, in violation of the Fair Housing Act, 42 U.S.C. § § 3601 et seq., the Village carried out a redevelopment plan for an area populated predominantly by Latinos, intending to discriminate against or, at the very least, having a discriminatory impact on its Latino residents. Plaintiffs' specific allegation is that, pursuant to this plan, the Village facilitated Fairfield Acquisition, LLC's (" Fairfield" ) privately-funded renovation of--thereby forcing Latino residents, including Plaintiffs, to vacate--a rental apartment building in that area (the " Building" or " 150 Secatogue Avenue" ). See generally Rivera, 784 F.Supp.2d 133.

The parties have litigated this case for more than seven years, and are finally ready to go to trial. In anticipation of a projected six-week trial, scheduled to begin on January 13, 2014, the Village has filed an omnibus motion to exclude evidence (Dkt. No. 194).[2] For the reasons set forth below, the Village's motion is GRANTED in part and DENIED in part.

I. Discussion

A. Standard of Review

A motion in limine lies in this Court's " inherent authority to manage the course of its trials." Highland Capital Mgmt., L.P. v. Schneider, 551 F.Supp.2d 173, 176 (S.D.N.Y. 2008) (Leisure, J.). " The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial." Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (quotations omitted).

The Federal Rules of Evidence provide that " [r]elevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court." Fed.R.Evid. 402. Even relevant evidence should be excluded, however, " if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Id. at 403.

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B. Evidence Regarding the Secatogue Avenue Redevelopment Plan (" SARP" ), Traffic Enforcement Policies, Day Laborers, and Financing of the Building

The Village categorically challenges the admission of evidence regarding (i) the SARP (Dkt. No. 196 (" Vill. Br." ), at 14-17); (ii) traffic enforcement policies ( id. at 18-20); (iii) day laborers ( id. at 8-9); and (iv) financing for the purchase and renovation of the Building by Fairfield ( id. at 21). As the Village contends, any evidence in the above categories raises dual admissibility concerns, i.e., that such evidence is (i) irrelevant and/or (ii) confusing, misleading, and prejudicial.

The Village's categorical challenges are little more than a veiled attempt to relitigate findings that Judge Hurley made in denying the Village's summary judgment motion. The Village will not be permitted to invalidate Judge Hurley's findings indirectly through a motion in limine. See NIC Holding Corp. v. Lukoil Pan Ams., No. 05-CV-9372, 2009 WL 996408, at *2 (S.D.N.Y. Apr. 14, 2009) (holding that the court " will not indulge [the moving party's] efforts to revive its unsuccessful summary judgment arguments" in a motion in limine ) (collecting cases); U.S. Underwriters Ins. Co. v. Falcon Constr. Corp., No. 02-CV-4182, 2006 WL 3146422, at *3 (S.D.N.Y. Oct. 30, 2006) (" [The defendant's] motion attempts to relitigate an issue already decided by the Court. This is an improper use of an in limine motion. If [the defendant] wanted to contest the legal conclusions in the Court's [decision denying its summary judgment motion], it should have filed a timely motion for reconsideration." ).[3]

In denying summary judgment, Judge Hurley found that, with respect to whether Plaintiffs had standing to bring claims based on the Village's alleged redevelopment plan:

[G]enuine issues of fact do exist as to the role the Village played in Fairfield's renovation of the Building, whether via a formal redevelopment plan such as the SARP or a more informal course of action taken to achieve the Village's desired redevelopment result.

Rivera, 784 F.Supp.2d at 139. Even though the Village insisted that Plaintiffs lacked such standing, in that it never enacted the SARP through its " legislative body," there was, at the very least, an issue of whether it reached the same result intended by the SARP through some " informal" process. Id. at 139-41. The SARP would be significant in proving Plaintiffs' standing, whether it was enacted formally or informally. The Village cannot use its motion in limine now to undo this finding, by again arguing that Plaintiffs " should be precluded from referring to SARP" which was " nothing more than a

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concept or idea" (Vill. Br., at 14).[4]

Judge Hurley also found an issue of fact for trial with respect to the discriminatory intent that the Village purportedly possessed when implementing its alleged redevelopment plan. Rivera, 784 F.Supp.2d at 147, 153. This finding was premised on, among other things, the fact that pre-existing issues with the presence of day laborers in the Village, and the Village's increasing efforts to employ traffic enforcement policies to resolve these issues, supported a context in which such intent likely informed the adoption of the alleged redevelopment plan. Id. at 147-49; see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (Powell, J.) (holding that, in inferring the intent regarding a racially-discriminatory housing decision, the " historical background of the decision" is relevant). Although these activities centered on " day laborers congregating near the Building," and Plaintiffs " are not day laborers themselves," Judge Hurley ruled that, because the Village's day laborers were predominantly Hispanic and treated as synonymous with its Hispanic population, a " reasonable juror could find" that these activities reflected an " anti-Hispanic element." Rivera, 784 F.Supp.2d at 149-50. The present motion by the Village simply rehashes its earlier argument that the Village's activities pertained solely to day laborers, and not its Hispanic residents or the availability of housing in the Village (Vill. Br., at 8-9, 18-20). This argument ignores Judge Hurley's prior finding that, even though these activities otherwise involved day laborers, they could still support an inference of discriminatory intent, viewed in the overall context.

Finally, Judge Hurley's finding of a triable issue with respect to intent was reinforced further by the fact that the Village allegedly failed to require Fairfield to bring the Building into conformity with the building code, even though the renovation exceeded 50% of the Building's value. As Judge Hurley explained, this failure constituted one of the Village's disputed " [d]epartures from [n]ormal [p]rocedure" from which its discriminatory intent is possibly inferred. Rivera, 784 F.Supp.2d at 150-52; see also Vill. of Arlington Heights, 429 U.S. at 267 (" Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role." ). The Village voices its dissatisfaction with this finding by trying to block the very evidence, i.e., evidence of the " extent of mortgages taken out by Fairfield" to purchase and renovate the Building (Vill. Br., at 21), which would permit Plaintiffs to prove that the Village failed to follow " [n]ormal [p]rocedure." As Plaintiffs argue, such evidence will show that Fairfield procured (i) a mortgage greater than the Building's purchase price, purportedly to cover " extensive renovation costs," and (ii) a specific loan for renovating the Building; and that, given the amount of financing for the renovation, Fairfield's conformity with the building code should have been required. (Dkt. No. 211 (" Pls. Opp." ), at 20-21.)

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Accordingly, this Court denies the Village's motion to categorically exclude the evidence identified above, since it directly conflicts with Judge Hurley's prior findings that such evidence is relevant to resolving disputed issues of material fact in Plaintiffs' case against the Village.

C. Evidence Regarding the Bartone Project

The Village contends that another category of evidence regarding the redevelopment of a separate property at 120 Secatogue Avenue, also called the " Bartone Project," [5] similarly raises dual admissibility concerns. (Vill. Br., at 30-31; see Vill. Reply, at 10.) Allegedly, the Bartone Project is privately-funded, but has been approved by the Village, and proposes to replace a non-residential warehouse with a " mixed-use development (commercial space on the ground level and residences above)." (Vill. Br., at 30.)

The Village's dispute over the admissibility of the Bartone Project evidence is no different than its dispute over the admissibility of evidence about the SARP's existence. This Court already considered, and rejected, the contention that the existence of the SARP is irrelevant, since the Village did not formally enact it. See supra discussion at Section I.B. There is no reason now to exclude other evidence relevant to a finding that the SARP was enacted.

Plaintiffs argue that the Bartone Project evidence will show that, in fact, the SARP was enacted, be it formally or informally. (Pls. Opp., at 32-34.) The project, unlike the renovation of the Building, (i) does not propose to deplete affordable housing options, in that " there are no and have never been residential structures" at 120 Secatogue Avenue; and (ii) seeks to allocate 10% of the new residences as " workforce/affordable housing." (Vill. Br., at 30-31; see Vill. Reply, at 10.) However, the project purportedly " perpetuates the depletion of available affordable housing," and therefore is possibly related to the same alleged redevelopment plan as the renovation of the Building. (Pls. Opp., at 34-35 (emphasis added).)

Accordingly, this Court denies the Village's motion to exclude evidence regarding the Bartone Project. The possible relationship between the project and the Building's renovation is relevant--and, by no means, confusing, misleading, or prejudicial--in proving that the Village carried out its alleged redevelopment plan against Hispanic residents, including Plaintiffs.

D. Newspaper Articles & Internet Postings

1. Hearsay

The Village argues for the exclusion of newspaper articles and internet postings, by reciting a general rule that these materials, as hearsay, are " not covered by any exception." (Vill. Br., at 2-5 (quotations omitted); see Vill. Reply, at 1-2.)

The Village's preoccupation with this rule truly misses the proverbial forest for the trees: before deciding that the hearsay exceptions do not apply, the first question is whether these materials even constitute hearsay. See Munafo v. Metro. Transp. Auth., Nos. 98-CV-4572, 00-CV-134, 2003 WL 21799913, at *16 (E.D.N.Y. Jan. 22, 2003) (Korman, C.J.) (" While defendants are correct that as a general matter, newspaper articles are inadmissible to prove the truth of their contents, . . . they may be used for other relevant non-hearsay purposes." ) (citation omitted). If these

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materials (i) are not being introduced for a hearsay purpose, i.e., " to prove the truth of the matter[s] asserted," Fed.R.Evid. 801(c) (defining " hearsay" ), or (ii) are otherwise excluded from the definition for hearsay, id. at 801(d) (defining " [s]tatements [t]hat [a]re [n]ot [h]earsay" ); then they are not hearsay, and no such exception is needed. See U.S. v. Kone, 216 F.App'x 74, 76 (2d Cir. 2007) (" [The defendant's] statements . . . were not within the definition of hearsay, . . . and hence were not excludable as hearsay regardless of whether they would fall . . . under an exception to the hearsay rule." ) (citation omitted); Smith v. Duncan, 411 F.3d 340, 346 n.4 (2d Cir. 2005) (noting that " [o]ffering evidence under [a hearsay exception] is different than offering it for a non-hearsay purpose," and that such an exception is only " invoked when the statement is offered for the truth of the matter asserted" ).

For the most part, the articles and postings that Plaintiffs propose to put forth at trial may serve relevant non-hearsay purposes; in which case, the application of the hearsay rule, and its exceptions, is inapposite. As Plaintiffs point out, many of these materials[6] will show that, historically, Hispanic day laborers, gangs, and immigrants, and their purported effect on the Village, were subjects of concern and hostility in the community. (Pls. Opp., at 4.) What matters is not that the concern and hostility, as reflected in these materials, were real or accurate, but that their mere expression could have set the tone and thus shaped the Village's discriminatory purpose behind its alleged redevelopment plan. See Munafo, 2003 WL 21799913, at *16-17 (holding that an article reflecting the plaintiff's " public criticisms" were admissible for the non-hearsay purpose of showing the defendants' " motive for retaliating against him" ); Roniger v. McCall, 119 F.Supp.2d 407, 410 (S.D.N.Y. 2000) (holding that articles about a prior incident were not hearsay, if offered to prove the defendant's " state of mind" when firing the plaintiff for another incident, which also revealed a " compromised political independence" between the defendant and the mayor); Jackson v. Jimino, 506 F.Supp.2d 105, 113-14 (N.D.N.Y. 2007) (denying reconsideration of a summary judgment decision based on its reference to " negative publicity" in several articles, because " most importantly" these articles " reflect the state of mind of [the defendant], who decided not to re-appoint [the plaintiff]" ); accord Yarborough v. City of Warren, 383 F.Supp. 676, 682 (E.D. Mich. 1974) (noting that a " series of newspaper articles" were " ostensibly concerned with the issue of motivation," but that, where the housing discrimination claims were based on disparate impact, motivation was not a " subject for inquiry" ; and holding that these articles were still admissible " as evidence of the 'historical context'" in which the purported discrimination occurred).

Indeed, Judge Hurley himself relied on these materials to show that comments contained therein suggested a " climate of extreme public anti-Hispanic sentiment," from which a jury could infer that the Village deliberately devised its alleged redevelopment plan for the same discriminatory reasons. Rivera, 784 F.Supp.2d at 147-48; see also Vill. of Arlington Heights, 429 U.S. at 267 (" historical background" ). Judge Hurley's reliance on these materials at the summary judgment stage rebuts any argument that they are only inadmissible hearsay. See, e.g., Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998) (" On a summary judgment motion,

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the district court properly considers only evidence that would be admissible at trial." ). This Court agrees with Judge Hurley that, at trial, these materials should be admissible not to prove the truth of their contents, but to contextualize the Village's intent in creating this alleged plan.

Plaintiffs similarly state that several other of the proposed articles[7] are admissible only to show that the Village had " notice" of the " heated public controversy" surrounding the proposal to renovate the Building and its potential impact on the Village's Hispanic residents, and not to show the truth of the matters that these articles assert. (Pls. Opp., at 4.) While it would be inappropriate to admit these articles to show that there actually was such a controversy, they are admissible for the more limited purpose of showing that the Village itself knew or believed there was a controversy, yet still allowed the renovation to proceed according to its alleged redevelopment plan.[8]See Munafo, 2003 WL 21799913, at *17 (holding that the same article was also admissible for the non-hearsay purpose of showing " defendants' knowledge of the substance of [the plaintiff's] public criticisms" ). Put simply, such a controversy, and the Village's awareness of it, could potentially support another inference ...

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