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Dimatteo v. Sweeney, Gallo, Reich & Bolz, LLP

United States District Court, S.D. New York

September 9, 2014



PAUL A. CROTTY, District Judge.

Plaintiff Eugene DiMatteo is a statutory tenant in a rent-controlled apartment in New York City. His landlord refused to cash a year's worth of rent checks tendered, not by DiMatteo, but rather by a person who lives with DiMatteo, because doing so might establish a right to succeed to DiMatteo's rent-controlled tenancy. The landlord, represented by Defendants, commenced a summary eviction proceeding in New York City Housing Court for nonpayment of rent. That action promptly settled. Apparently, the settlement was only partially satisfactory to DiMatteo, and within a short time, he instituted this action, asserting that Defendants violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and New York Judiciary Law § 487. Defendants move to dismiss the Complaint. The motion is granted.


In September 2012, the landlord, nonparty Tom Sullivan LLC, "refused to accept payments" unless they were made by DiMatteo, the statutory tenant. ( See Compl. ¶¶ 23-25.) On September 6, 2013, Defendant Sweeney, Gallo, Reich & Bolz, LLP ("SGRB"), sent DiMatteo a letter, demanding that he make back rent payments for September, 2012 to September, 2013. ( Id. ¶¶ 25-27 & Ex. C ("Demand Letter").) The Demand Letter began as follows:

Despite this demand for payment, if any portion of this claim is disputed, you are to notify us within thirty (30) days after receipt of this notice, indicating the nature of the dispute, as to the amount due or any part thereof. If we do not hear from you within said thirty (30) days, we will assume the debt to be valid as stated in the Notice.

( Id. Ex. C.) It continued that SGRB "may be considered to be acting as a debt collector' under the FDCPA and that "[t]his notice shall not prevent your landlord from proceeding with such other remedies as may be available to it, as a summary proceeding." ( Id. ) The next page warned that unless full payment was made by September 19, 2013, "the Landlord will commence summary proceedings under the Statute to recover the possession" of the apartment. ( Id. )

On October 18, 2013, SGRB commenced a summary proceeding in New York City Housing Court on behalf of the landlord, seeking (1) the eviction of DiMatteo and the nonstatutory tenant, (2) payment of the rent in arrears, and (3) "legal fees" of $750. ( Id. Ex. D). On November 1, 2013, DiMatteo's counsel wrote to Defendants that no debt was owed because the landlord "has simply failed to cash his rent checks" and that "there is no lease provision authorizing the collection of attorneys' fees." (Gallo Decl. Ex. 4.)[1] The letter also asserted that SGRB's Demand Letter violated the FDCPA but suggested that "[t]his dispute can be resolved without Federal court litigation." ( Id. )

Four days later, on November 5, the landlord-tenant dispute was settled by stipulation in the Housing Court. (Compl. ¶ 35 & Ex. E (the "Settlement").) The Settlement provides that the landlord "had refused to cash the checks, because the checks were signed by" the nonstatutory tenant living with DiMatteo. (Settlement ¶ 2.) It also states that the landlord "is now in possession of a check for $6180.93, drawn on a joint account in the name of [DiMatteo and the nonstatutory tenant], signed by [the nonstatutory tenant]." ( Id. ) The amount tendered "represents all rent due." ( Id. ¶ 3.) The Settlement further provides that the parties reserved their rights with respect to any future dispute regarding the nonstatutory tenant's right to succeed DiMatteo as a rent-controlled tenant in the apartment. ( Id. ¶¶ 4-6)[2]

Three weeks after the Settlement, on November 26, DiMatteo commenced this action against SGRB and one of its attorneys, David A. Gallo, alleging FDCPA violations and a pendent state-law claim.


I. Legal Standards

A. Motion to Dismiss

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That is, a complaint must "nudge[] [the plaintiff's] claims across the line from conceivable to plausible." Twombly, 550 U.S. at 570. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. Nevertheless, the Court must accept well-pleaded factual allegations as true, "drawing all reasonable inferences in the plaintiff's favor." Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 637 F.3d 112, 115 (2d Cir. 2011). Upon a motion to dismiss, "[c]ourts may also properly consider matters of which judicial notice ...

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