Makhnevich v. Bougopoulos

650 F.Supp.3d 8

Stacy MAKHNEVICH, Plaintiff, v. Gregory S. BOUGOPOULOS; Novick Edelstein Pomerantz, P.C., Defendants.

21-CV-05516 (KAM)(VMS)

United States District Court, E.D. New York

Signed January 15, 2023

Stacy Makhnevich, Brooklyn, NY, Pro Se.

Gregory Stephen Bougopoulos, Novick Edelstein Pomerantz P.C., Yonkers, NY, for Defendants.

MEMORANDUM & ORDER

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Stacy Makhnevich, proceeding pro se, brings this action against Defendants Gregory S. Bougopoulos and Novick Edelstein Pomerantz, P.C. (collectively, the "Novick Firm"), asserting violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Plaintiff claims that Defendants engaged in unfair debt collection practices and unlawful discrimination against her during the course of state court litigation to recover condominium charges and other fees assessed against Plaintiff.

Defendants now move for summary judgment on Plaintiff's claims pursuant to Federal Rule of Civil Procedure 56. Defendants have complied with Local Civil Rules 56.1 and 56.2. For the reasons set forth below, Defendants' motion for summary judgment is GRANTED as to the FDCPA claim, ADA claim, and as to Plaintiff's claim for declaratory relief. Plaintiff's claims under the NYHRL, N.Y. Exec. Law § 296 et seq., and NYCHRL, N.Y.C. Admin. Code § 8-101 et seq. are DISMISSED without prejudice.

BACKGROUND

The court finds that the following facts are not in genuine dispute, based on the parties' 56.1 statements, declarations, exhibits, and docket.¹

I. State Court Proceedings

The court will briefly summarize the parties' underlying state Civil Court Action, in part by reference to the detailed overview previously provided in Makhnevich I. See 2022 WL 939409, at *2-3 (E.D.N.Y. Mar. 29, 2022). On November 25, 2015, Defendant Novick Firm filed a complaint against Plaintiff, on behalf of the Board of Managers of Plaintiff's condominium ("Condo Board"). The complaint sought $7,283.16 in unpaid common charges, assessments, and late fees, (collectively "condo fees") as well as attorney's fees in excess of $2,500.00. Id. at *1. On April 18, 2018, the state court awarded summary judgment to the Condo Board against Plaintiff as to liability for unpaid condominium common charges and fees. (ECF No. 38-25 ("Pl.'s 56.1") ¶ 3; ECF No. 37-20 at 3-6.)

After a December 2018 jury trial, the state court ordered that judgment be entered against Plaintiff "in the total amount of $16,264.62, together with statutory costs and statutory interest to commence from July 1, 2017." (ECF No. 37-21 at 3; see also Pl.'s 56.1 ¶ 4.) That Decision & Order noted that the "attorneys' fees due and owing associated with this matter will be issued in a separate order and judgment after an attorney fee hearing has concluded." (ECF No. 37-21 at 3.) On August 29, 2019, the state court entered judgment against Ms. Makhnevich in the amount of $40,936.60, the sum of the jury's verdict, the award of attorneys' fees, interest, and certain court costs. (ECF No. 37-28.)

II. Parties' First Federal Action: Makhnevich I

Ms. Makhnevich commenced her first federal action by filing a complaint on January 16, 2018 against the Novick Firm, Mr. Bougopoulos, and the Condo Board, alleging violations of the FDCPA, 15 U.S.C. § 1692 et seq., and section 349 of New York's General Business Law ("GBL"). See Makhnevich v. Bougopoulos, Novick, Edelstein, Lubell, Reisman, Wasserman & Leventhal P.C., 2022 WL 939409, at *1, *3 (E.D.N.Y. 2022) ("Makhnevich I"); (see also Makhnevich I, ECF No. 1.)² On November 19, 2018, the court granted Plaintiff's motion for leave to file an amended complaint based on Defendants' consent. (Makhnevich I, 11/19/18 Minute Order.) Plaintiff then filed an amended complaint that same day. (Makhnevich I, ECF No. 58.) By Memorandum and Order dated March 29, 2022, the court granted Defendants' motion for summary judgment as to Plaintiff's FDCPA claims, and dismissed Plaintiff's GBL claims without prejudice after declining to exercise supplemental jurisdiction per 28 U.S.C. § 1367(c)(3). See Makhnevich I, at *17. Judgment was entered against Plaintiff accordingly on March 30, 2022.³

III. This Action

As part of her opposition to Defendants' motion for summary judgment in Makhnevich I, Plaintiff included a "motion for leave to file supplemental complaint." (Makhnevich I, ECF No. 176-1 at 34-36.) Plaintiff did so despite the court's order that she "may not further amend the complaint or file additional motions without a court order granting permission to do so." (Makhnevich I, 11/19/18 Minute Order.) On August 17, 2021, Plaintiff filed a new action against Defendants in the United States District Court for the Southern District of New York, which subsequently transferred the case to this court. As a result, in Makhnevich I, this court denied Plaintiff's motion to "supplement" her complaint as moot, because Plaintiff raised her "supplemental" claims in her second action filed in the Southern District of New York. The court stated that the "allegations of disability discrimination" raised in Plaintiff's second action would be adjudicated at a subsequent date. Makhnevich I, at *4.

LEGAL STANDARD

Summary judgment shall be granted to a movant who demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A fact is 'material' for these purposes when it 'might affect the outcome of the suit under the governing law.' " Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). No genuine issue of material fact exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (citations omitted).

When bringing a motion for summary judgment, the movant carries the burden of demonstrating the absence of any disputed issues of material fact and entitlement to judgment as a matter of law. Rojas, 660 F.3d at 104. In deciding a summary judgment motion, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A moving party may indicate the absence of a factual dispute by "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B). Once the moving party has met its burden, the nonmoving party "must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Finally, the "mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Because Plaintiff is pro se, the court is obliged to liberally construe Plaintiff's submissions and read them "to raise the strongest arguments they suggest." Campbell v. We Transport, Inc., 847 F. App'x 88, 88-89 (2d Cir. 2021) (quoting McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017)). Plaintiff's pro se status, however, "d[oes] not eliminate [her] obligation to support [her] claims with some evidence to survive summary judgment." Nguedi v. Fed. Reserve Bank of N.Y., 813 F. App'x 616, 618 (2d Cir. 2020). Plaintiff's "reliance on 'conclusory allegations' and 'unsubstantiated speculation' " will not suffice. Id. (quoting Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 428 (2d Cir. 2001)).

DISCUSSION

I. Plaintiff's FDCPA Claim

A. Legal Standard

"Congress enacted the FDCPA to protect against abusive debt collection practices likely to disrupt a debtor's life." Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 81 (2d Cir. 2018) (quotations and citation omitted). "[W]hether a communication complies with the FDCPA is determined from the perspective of the 'least sophisticated consumer.' " Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019) (citation omitted). "The hypothetical least sophisticated consumer does not have the astuteness of a Philadelphia lawyer or even the sophistication of the average, everyday, common consumer, but is neither irrational nor a dolt." Ellis v. Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir. 2010) (quotations and citation omitted).

B. FDCPA Statute of Limitations

As a threshold matter, FDCPA claims must be brought within one year of the allegedly violative act or omission. 15 U.S.C. § 1692k(d). An FDCPA violation occurs "when an individual is injured by the alleged unlawful conduct." Benzemann v. Houslanger & Assocs., PLLC, 924 F.3d 73, 83 (2d Cir. 2019); Scavone v. Frontline Asset Strategies, LLC, 2020 WL 589641, at *5 ("[T]he latest date upon which the one-year period begins to run is the date when a plaintiff receives an allegedly unlawful communication.") (citation omitted).

Here, the "affirmation" at issue was served upon Plaintiff via email on August 13, 2020. (ECF 37-29 ("08/11/20 Aff.") at 2.)⁴ Plaintiff claims that because she moved for leave to file a supplemental complaint in July 2021 (in ...