Burke v. Verizon Commc'ns, Inc.

661 F.Supp.3d 277

Brian BURKE, Plaintiff, v. VERIZON COMMUNICATIONS, INC.; Housing & Services, Inc.;Kenmore Housing Development Fund Corporation; Kenmore Housing Corporation;Kenmore Associates, L.P.; New York City Transit Authority;New York City Health & Hospitals Corporation (Bellevue);New York City Police Department; New York City Fire Department;Ryan Camire L.C.S.W.; City University of New York;Transport Workers Union Local 100; Madeline O'Brien;John/Jane Doe; Derick Echevarria; Johnson Controls, Inc.;the City of New York; and the Attorney General of New York, Defendants.

18 Civ. 4496 (PGG) (GWG)

United States District Court, S.D. New York

Signed March 16, 2023

Brian Burke, New York, NY, Pro Se.

Andrew L. Klauber, Jeffrey Neil Rejan, Malapero & Prisco LLP, New York, NY, for Defendants Housing & Services, Inc., Kenmore Housing Development Fund Corporation, Kenmore Housing Corporation, Kenmore Associates, L.P.

Alissa Schecter Wright, New York State Office of the Attorney General, New York, NY, for Defendants City University of New York, The Attorney General of New York.

ORDER

PAUL G. GARDEPHE, United States District Judge:

Pro se Plaintiff Brian Burke has asserted numerous federal and state law claims against more than a dozen defendants, including Housing & Services, Inc. ("HSI"); Kenmore Housing Development Fund Corporation; Kenmore Housing Corporation; and Kenmore Associates, L.P. (collectively, the "Kenmore Defendants"). On September 14, 2021, the Kenmore Defendants moved for summary judgment. (See Dkt. No. 177) On November 10, 2021, this Court referred the Kenmore Defendants' motion to Magistrate Judge Gabriel W. Gorenstein for a Report and Recommendation ("R & R"). (Dkt. No. 186) On March 25, 2022, Judge Gorenstein issued an R & R recommending that the Kenmore Defendants' motion for summary judgment be granted. (R & R (Dkt. No. 190)) Plaintiff has filed objections to the R & R. (Pltf. Obj. (Dkt. No. 192)) For the reasons stated below, Plaintiff's objections will be overruled, and the R & R will be adopted in its entirety.

BACKGROUND¹

I. THE AMENDED COMPLAINT'S ALLEGATIONS AND THE R & R'S FACTUAL STATEMENT²

The Kenmore Defendants and former Defendant Verizon are allegedly the "putative owners" of a building at 145 East 23rd Street in Manhattan - known as the "Kenmore" - where Burke has lived since 1989. (R & R (Dkt. No. 190) at 3)³ Burke's claims against the Kenmore Defendants relate primarily to two incidents: (1) a visit by two social workers to Burke's apartment, which resulted in an allegedly defamatory medical report containing a false diagnosis of "delusional disorder," which Burke alleges was wrongfully shared with his employer; and (2) efforts by the Kenmore Defendants to replace a defective smoke detector in Burke's apartment. (Id. at 3-7)

Burke alleges that Verizon hired HSI to act as Verizon's " 'Managing Agent' . . . and that HSI 'has continuously engaged in [ ] willful, intentional (with scienter) unlawful, harmful, dangerous, fraudulent, etc., misconduct' " with respect to the Kenmore. (Id.) (quoting Am. Cmplt. (Dkt. No. 38) ¶ 6) Plaintiff has been "in litigation with [HSI,] Verizon's Shell Company, for most of this century." (Am. Cmplt. (Dkt. No. 38) ¶ 7) In retaliation for attempting to contact Verizon about HSI's criminal activity at the Kenmore, Defendant Francesca Rossi (a social worker employed by HSI) "ordered/instructed Bellevue Hospital [New York City Health & Hospitals Corporation] . . . to perform witting, intentional Defamation/Defamation per se/Medical Malpractice . . . and attempted to have Plaintiff removed from [his] home without [a] court order" (id. ¶ 8), and to terminate Burke's employment with the New York City Transit Authority (the "NYCTA") as a train operator. (R & R (Dkt. No. 190) at 4)

Burke further alleges that New York City Health & Hospitals Corporation (Bellevue) social worker Ryan Camire and Rossi appeared at his home between 10:00 and 10:30 a.m. on February 7, 2014, and - after speaking with him - prepared a defamatory mental health report stating, inter alia, that Plaintiff had "previously been hospitalized for psychosis, [suffered from delusions,] and that [D]efendants communicated this inaccurate information to Burke's then-employer, the NYCTA." (Id.) Judge Gorenstein notes that Burke has produced (1) "some relevant medical records, including Camire's report from his wellness check of Burke" (id.); (2) "an affidavit from his sister stating that she never told Bellevue Hospital, the Kenmore [D]efendants, or their employees that Burke had been hospitalized for psychosis" (id. at 5 (citing Pltf. Opp., Ex. C (Kelly A. Burke Aff.) (Dkt. No. 184) at 36-40)); (3) "an affidavit from Burke's brother-in-law stating his belief that Burke is a 'moral, sane, fair, intelligent person' " (id. (quoting Pltf. Opp., Ex. B (Dann M. Church Aff.) (Dkt. No. 184) at 35)); and (4) "a letter from [Burke's] psychologist [Dr. Kari Sherman] stating that Burke 'has beliefs that against doctors' orders Ms. Rossi may have released information to his employer.' " (Id. (quoting Apr. 5, 2021 Affm. of Service, Ex. C (Sherman Ltr.) (Dkt. No. 169) at 19-20)) The R & R notes however that Burke has provided "no evidence of any communication between [the Kenmore Defendants] and the NYCTA." (Id.)

According to the Kenmore Defendants, in a February 3, 2014 email to more than a hundred individuals - including Verizon and HIS employees, and local, state, and federal officials - Burke "expressed [his] frustration with attempts by HSI maintenance workers to perform work in his apartment." (Id. at 6) On February 7, 2014, Rossi contacted the New York City Health Department, and asked that the "mobile crisis unit assess" Burke. (Id.) This appears to be the visit that led to the allegedly defamatory mental health report prepared by social worker Camire.

Burke also alleges that the Kenmore Defendants " 'swatted' him 'and gave NYPD/FDNY a false 911 call to gain unwarranted access' " to his apartment in relation to a "smoke alarm" that malfunctioned on July 24, 2016. (Id. at 5) (quoting Am. Cmplt. (Dkt. No. 38) ¶ 32) Burke claims that this conduct constitutes " 'a pattern of unconstitutional denial of Due Process, or Equal Protection.' " (Id. at 6 (quoting Am. Cmplt. (Dkt. No. 38) ¶ 32)) In support of this claim, Burke has submitted (1) a January 31, 2019 email from Francesca Rossi which references Burke's request for a "reasonable accommodation" that no smoke alarm work be completed in his apartment (id. (citing Pltf. Opp., Ex. D (Dkt. No. 184) at 41)); (2) a June 6, 2018 email from Almir Lalicic which references an incident in which the police were called by HSI employees in order to gain access to Burke's apartment to complete smoke alarm related work (see id. at 5-6 (citing Ptlf. Opp., Ex. E (Dkt. No. 184) at 42); and (3) a transcript of an administrative hearing regarding citations issued to Kenmore Associates for performing electrical and plumbing work without a permit. (Id. at 6 (citing Pltf. Opp., Ex. F (Dkt. No. 184) at 43-53).⁴

The Kenmore Defendants have submitted an incident report which describes an HSI employee and technician's efforts to enter Burke's apartment on July 14, 2016 and replace a smoke detector. (Id. at 7) After Burke refused entry, the HSI employee contacted the New York City Police Department, and Burke then allowed the work to be completed. (Id.)

Judge Gorenstein interprets "Burke's § 1983, Racketeer Influenced and Corrupt Organizations Act ("RICO"), False Claims Act, and [Health Insurance Portability and Accountability Act ("HIPAA")] claims to be premised on [the Kenmore Defendants'] request for a wellness check on Burke and their alleged communication of his health information to the NYCTA." (Id. at 7) Judge Gorenstein understands Burke's Americans with Disabilities Act ("ADA") "claim to be premised on [the Kenmore Defendants'] attempts to install and/or maintain a smoke detector in Burke's apartment." (Id. at 7-8)

II. PROCEDURAL HISTORY

The Complaint was filed on May 21, 2018 and asserts federal and state law claims against more than a dozen defendants. (Cmplt. (Dkt. No. 1)) The Amended Complaint was filed on July 18, 2018. (Am. Cmplt. (Dkt. No. 38)) All Defendants other than the Kenmore Defendants moved to dismiss, and this Court granted those motions to dismiss. (See Mar. 29, 2019 Order (Dkt. No. 107) (dismissing claims against Verizon, the New York City Transit Authority, Bellevue Hospital, Ryan Camire, Local 100 of the Transport Workers Union, Madeline O'Brien, Derick Echevarria, the City of New York, the New York City Police Department, the New York City Fire Department, and Johnson Controls); Nov. 6, 2020 Order (Dkt. No. 153) (dismissing claims against the Attorney General of the State of New York and the City University of New York))

The Kenmore Defendants filed an answer to the Amended Complaint on August 7, 2018 (Kenmore Ans. (Dkt. No. 49)), and moved for summary judgment on September 14, 2021. (Dkt. No. 177) On November 10, 2021, this Court referred the motion to Judge Gorenstein for an R & R. (Dkt. No. 186) On March 25, 2022, Judge Gorenstein issued an R & R recommending that this Court grant the Kenmore Defendants' summary judgment motion. (R & R (Dkt. No. 190))

Plaintiff filed objections to the R & R on May 26, 2022. (Pltf. Obj. (Dkt. No. 192)) The Kenmore Defendants filed an opposition to Plaintiff's objections on April 25, 2022.⁵ (Def. Opp. (Dkt. No. 191))

DISCUSSION

I. LEGAL STANDARDS

A. Review of a Magistrate Judge's Report and Recommendation

A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). " 'The district judge evaluating a magistrate judge's recommendation may adopt those portions of the recommendation, without further review, where no specific objection is made, as long as they are not clearly...