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Tuman v. VL Gem LLC

United States District Court, S.D. New York

February 27, 2017


          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge

         Plaintiffs Jessica Tuman and Daniel Kurtz are a married couple residing at an apartment complex operated by Defendants George and Michael Nukho through Defendants VL GEM LLC and GEM Management Partners LLC. Tuman allegedly suffers from post-traumatic stress syndrome ("PTSD") and sought to keep an emotional support dog at her apartment to alleviate the effects of that disorder. She brought this action alleging Defendants discriminated against her after she requested this "reasonable accommodation" for her disability, in violation of the Fair Housing Act, 42 U.S.C. §§ 3601-3631, amended by the Fair Housing Amendments Act of 1988, 102 Stat. 1619 ("FHA"), New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290-301, and Westchester County Fair Housing Law ("WCFHL") §§ 700.19-700.35.[1]Plaintiffs seek injunctive and declaratory relief, as well as compensatory and punitive damages.

         Defendants seek to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that Tuman has failed to provide sufficient medical documentation of the necessity for the emotional support animal to treat her medical condition. Additionally, arguing the action is entirely frivolous, Defendants seek sanctions against Plaintiffs pursuant to 28 U.S.C. § 1927 and Rule 11 of the Federal Rules. For the following reasons, the motion to dismiss is GRANTED in part and DENIED in part, and the motion for sanctions is DENIED.


         I. Factual Allegations[2]

         Plaintiff Jessica Tuman and her spouse, Plaintiff Daniel Kurtz, reside at Defendants' multifamily property located in Yonkers, New York. (Compl. ¶¶ 1-5, ECF No. 1.) Tuman has lived at the property at issue since 2009. (Id. ¶ 4.) Prior to moving into Defendants' apartment building, Tuman was diagnosed with PTSD as a result of an attack she suffered in 2001 and has received mental health treatment “ever since.” (Id. ¶¶ 20-21.) Her PTSD limits her brain function, causes severe anxiety, and limits her ability to socialize with others. (Id. ¶ 22.)

         In 2015, Tuman learned of the potential mental health benefits associated with having an emotional support animal. (Id. ¶ 25.) Since many dogs reside with other residents at the apartment complex, Tuman decided she would simply verbally advise Defendants of her intention to adopt an emotional support dog, which she did in July 2015. (Id. ¶ 26.)[3] Plaintiffs do not provide a copy of the lease agreement for the unit, or explain what restrictions the lease places on keeping animals in a tenant's apartment aside from requiring the landlord's written consent. (See Id. ¶ 28.) It appears that Tuman considered her actions to be a request for a reasonable accommodation for her disability. (Id. ¶¶ 31-37.) Defendants have no written or established policy regarding reasonable accommodations. (Id. ¶ 24.)

         Defendants responded to Tuman's request by requiring a letter from a physician stating that “the dog would provide her a disability related need.” (Id. ¶ 26.) On July 28, 2015, Tuman provided a letter from Dr. Emilio Biagiotti, M.D., of Montefiore Family Medical Associates stating that Plaintiff “suffers from severe anxiety due to post traumatic stress syndrome” and that “[h]er anxiety will be greatly alleviated if she is able to have a companion dog.” (Id. ¶ 27; Defs. Aff. Ex. B.) She also provided Defendants with information about the incident that led to her anxiety disorder. (Id. ¶ 27.)

         On September 2, 2015, Defendants served Plaintiffs with a 10-day notice to cure for harboring a dog without the landlord's written consent. (Id. ¶¶ 28-29.) On September 24, 2015, Plaintiffs were served with a 7-day notice of termination, terminating their lease effective September 30, 2015, for failure to cure the violation. (Id. ¶ 30.)

         II. Procedural History

         On October 2, 2015, after the termination became effective, Plaintiffs commenced this action. Defendants notified Plaintiffs on November 10, 2015, of their contention that the action was frivolous and that, if it was not withdrawn, they would seek Rule 11 sanctions. (Defs. Aff. Ex. D.) As part of that correspondence, Defendants included a notarized copy of a letter, signed by Dr. Biagiotti, purportedly obtained after they communicated with the doctor on August 19, 2015, which states he “cannot verify that she has a medical necessity for a companion dog.” (Id.; see also Defs. Aff. Ex. C.)

         At the pre-motion conference for Defendants' motion to dismiss, the parties discussed the need for medical documentation to establish the necessity of the support animal. At that time, defense counsel represented that “if she [Plaintiff Tuman] gets a real letter . . . that demonstrates a medical necessity, then she can stay in the apartment with the dog[.]” (Transcript of December 17, 2015 Conference; see Defs. Aff. Ex. F.) By letter dated January 8, 2016, Defendants informed Plaintiffs' counsel that they would proceed with their motion to dismiss if they did not receive such a letter by January 11, 2016. (Defs. Aff. Ex. G.) When that deadline passed, Defendants served and filed the pending motion. (Defs. Mem. at 13.)

         In opposition to Defendants' motion to dismiss, Plaintiffs' counsel attached a letter from a licensed clinical social worker (LCSW-R), Carol J. Blitstein, dated January 11, 2016, discussing Ms. Blitstein's prior treatment of Plaintiff Tuman's PTSD in 2002 and Tuman's request to “resume therapy” in “the fall of 2015.” (Pls. Aff. Ex. 5.) In the letter, Blitstein indicates “[t]he dog has been a therapeutic tool for Ms. Tuman to recover from PTSD.” (Id.) In reply, Defendants' renewed their request for sanctions. (Defs. Reply Mem. at 1-3.) Defendants' motions were fully submitted as of March 17, 2016. (ECF No. 25.)


         Under Rule 12(b)(6), the inquiry is whether the complaint “contain[s] 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)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. To survive a motion to dismiss, a complaint must supply “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is “‘not bound to accept as true a legal conclusion couched as a factual allegation, '” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         In determining whether a complaint states a plausible claim for relief, a district court must consider the context and “draw on its judicial experience and common sense.” Id. at 662. A claim is facially plausible when the factual content pleaded allows a court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.


         Defendants assert that Plaintiff Tuman has failed to allege both that she is disabled and that, if she is considered disabled, her emotional support dog is a necessary accommodation. (Defs. Mem. at 6-8.)[4] Defendants also seek an award of sanctions against Plaintiffs and Plaintiffs' counsel for failing to withdraw the action once it purportedly became clear it was frivolous-i.e. in light of the alleged “retraction” of the doctor's note, a written copy of which was provided by Defendants once the complaint was filed. (Id. at 15.)[5]

         I. Fair Housing Act Claims

         The Fair Housing Act, as applicable here, makes it unlawful to “discriminate in the [] rental [of], or to otherwise make unavailable or deny, a dwelling to any . . . renter because of” such individual's disability.[6] 42 U.S.C. § 3604(f)(1) (emphasis added). It also prohibits discrimination “against any person in the terms, conditions, or privileges of . . . rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of” the renter's disability. 42 U.S.C. § 3604(f)(2) (emphasis added). For purposes of the FHA, discrimination also includes a refusal to make “reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). Thus, a plaintiff alleging a violation under subsections (f)(1) or (f)(2) of the FHA can proceed by either of two theories, disparate treatment or disparate impact, and under subsection (f)(3) by claiming failure to make a reasonable accommodation. Regional Economic Community Action Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir. 2002).

         Despite focusing almost entirely on allegations that Defendants did not provide a reasonable accommodation for Plaintiff Tuman's disability (see, e.g, Compl. ¶¶ 2-4), Plaintiffs assert in opposition to Defendants' motion to dismiss that they are also claiming disparate treatment on the basis of disability-though they provide little clarity as to the precise nature of that claim. (Pls. Mem. at 7-8; see Compl. ...

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