DECISION and ORDERI. Introduction On January 11, 2016, Vickie Dianne Byrd (“Plaintiff”), proceeding pro se, instituted this action against KTB Capital LLC, d/b/a Grove Street Management Corporation (“Grove Street”) and Barbara Manor Apartments LLC (“Barbara Manor”) (collectively, “Defendants”),1 alleging, inter alia, discrimination based on race and disability in violation of the Fair Housing Act, 42 U.S.C. §3601, et seq. (“FHA”) and the New York State Human Rights Law, N.Y. Exec. Law §290 et seq. (“NYSHRL”). Presently before the Court is Defendants’ Motion for Summary Judgment (Docket No. 60) pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Rule 56″).II. Factual BackgroundThe following factual summary is based on Defendants’ detailed and well-supported Statement of Material Facts (“Defs’ SOF”) (Docket No. 60-2), along with Defendants’ Appendix of Exhibits to Local Rule 56 Statement of Facts (“Defs’ App.”) (Docket No. 60-3 through Docket No. 60-24).Grove Street is a real estate asset management company that, during the relevant period, acted as the rental agent and property manager for apartments located at Emerson Street and Mount Read Boulevard in the City of Rochester, New York. These apartments were owned by defendant Barbara Manor. Plaintiff entered into a lease agreement with Grove Street to rent the unit located at 1403 Emerson Street, Apartment C. The initial lease term commenced November 30, 2012, and was set to terminate on November 30, 2013. The monthly rental fee was $545 per month, which included water, heat, and trash removal.In the fall of 2013, Grove Street proposed renewing Plaintiff’s lease at the rate of $555 per month, for a one-year term starting November 1, 2013. Plaintiff refused the $10-increase and requested that her rent remain the same. Grove Street acquiesced, and Plaintiff signed a new lease on September 23, 2013, with her rent payment continuing at $545 per month.About a year later, on September 9, 2014, Grove Street proposed renewing Plaintiff’s lease at a rate of $565 per month for a one-year term. This was below the market rate for her apartment unit, which was $575.00. Plaintiff refused, saying she could not afford the $20-increase and requesting that she be allowed to keep her current rate of $545.00. Grove Street requested that Plaintiff either sign the lease renewal and accept the $565-per-month rate, or provide a notice to vacate in accordance with Section C.52 of the lease agreement.Plaintiff neither signed the lease agreement nor provided a notice to vacate. Plaintiff did not submit her rental payment until October 6, 2014, five days after it was due on October 1, 2014. Because it was late, Grove Street imposed a $25-late-fee, in accordance with Section B.13 of the lease agreement. However, on October 10, 2014, Grove Street waived the late-fee as a one-time courtesy and asked her to come into the office to sign the lease renewal paperwork.When Plaintiff did not respond, Grove Street sent another letter on October 14th , reminding Plaintiff that her November rent would increase to $565 per month plus an additional $50 per month because she did not have a current lease. The letter also notified Plaintiff that her lease would terminate on November 30, 2014, unless she responded.On October 21, 2014, Grove Street sent a letter reiterating that Plaintiff’s rent would increase as of November 1, 2014, and that she needed to vacate her apartment by November 30, 2014. Grove Street sent another reminder letter dated October 30, 2014, regarding Plaintiff’s need to quit the premises by November 30th.November 30, 2014, came and went, and Plaintiff remained in her apartment.On December 4, 2014, Grove Street commenced an eviction proceeding in Rochester City Court. The parties appeared in court for a hearing on December 23, 2014. Plaintiff stated she was willing to pay the increased rental fee of $565 per month and had only proceeded to the eviction proceeding because she “want[s] [Defendants] to be responsible for making repairs.” Defs’ SOF 21 (quotation and citation omitted). She said, “I don’t have a problem paying what they’re asking….I just need to have somebody to vent — to hear me. I wanted Your Honor to hear my complaints.” Id. (quotation and citation omitted). Plaintiff did not make allegations of discrimination during the eviction proceeding. Id. (citing Defs’ Ex. M (Docket No. 60-16)). The City Court judge was able to assist the parties in reaching a resolution of the eviction proceeding whereby Plaintiff’s lease was extended, from January 1, 2015, to October 31, 2015, at the rate of $565 per month. Id.
23-24 (citations omitted).On September 17, 2015, Grove Street sent Plaintiff a letter informing her that it would not be renewing her lease and that she was required to vacate her apartment by October 31, 2015. Id. 25 (citations omitted).October 31, 2015, passed without Plaintiff vacating her rental unit.On November 5, 2015, Plaintiff visited Grove Street’s office and requested that it accept her November rent payment in the amount of $565. Tamra James (“James”), Senior Vice President of Grove Street, advised Plaintiff that Grove Street would not accept the rent because a notice of non-renewal had already been sent to her, and because her lease had terminated as of October 31, 2015. Defs’ SOF 30-31. Because Plaintiff had not vacated her apartment, Grove Street considered her to be a holdover tenant, subject to eviction under Section C.5, see n. 2, supra, of the rental agreement. Defs’ SOF 31.Grove Street commenced an eviction proceeding on November 10, 2015, in Monroe County Court. At a hearing on November 24, 2015, the County Court judge issued a judgment and warrant of eviction for holdover, ordering Plaintiff to vacate her apartment by December 3, 2015. Plaintiff complied with this order.III. Procedural StatusOn June 25, 2018, the Court issued a Decision and Order (Docket No. 47) disposing of Defendants’ Motion for Judgment on the Pleadings as follows: the unlawful eviction claim under N.Y. Real Prop. Acts. Law §853 was dismissed with prejudice; any claims seeking damages under FHA Section 3604(a) or Section 3617 for injuries that post-dated the state court judgment allowing Defendants to evict her were dismissed with prejudice; the remaining claims under FHA Section 3604(a) and Section 3671 were allowed to proceed because they were not barred by the Rooker-Feldman doctrine or res judicata; the claims under NYSHRL survived to the extent that the FHA claims did; and any claims under 18 U.S.C. §1001 were dismissed with prejudice.The matter was referred again to Magistrate Judge Jonathan W. Feldman for completion of discovery. On August 31, 2018, Judge Feldman ordered that all motions for summary judgment were due by November 8, 2018. Docket No. 58.On November 8, 2018, Defendants filed their Motion for Summary Judgment (Docket No. 60). Plaintiff filed a Declaration (Docket No. 62) and her own Motion for Summary Judgment (Docket Nos. 63 & 64). Defendants filed their Reply/Response (Docket No. 67) on January 7, 2019. Plaintiff filed a Response (Docket No. 68), Declaration (Docket No. 69), and Continuation of Exhibits (Docket No. 71). The summary judgment motion was submitted without oral argument on January 24, 2019. Docket No. 72.IV. Rule 56 StandardRule 56(c) states that summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The court’s role in determining a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. When considering a motion for summary judgment, the court must draw inferences from underlying facts “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). However, “[t]he 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, 477 U.S. at 252 (emphasis supplied). To defeat summary judgment, therefore, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and she “may not rely on conclusory allegations or unsubstantiated speculation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted). At the summary judgment stage, the nonmoving party “must offer some hard evidence showing that its version of the events is not wholly fanciful.” D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998); accord Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (holding that district court did not err in granting defendants’ motion for summary judgment on the basis that the plaintiff’s “testimony — which was largely unsubstantiated by any other direct evidence — was ‘so replete with inconsistencies and improbabilities’ that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in his complaint”) (quotation omitted).V. Plaintiff’s Summary Judgment MotionA. Plaintiff’s Motion Is UntimelyPursuant to Magistrate Judge Feldman’s Order dated August 31, 2018 (Docket No. 58), dispositive motions were due by November 8, 2018. However, Plaintiff filed her motion for summary judgment on December 6, 2018, nearly a month late. As Defendants point out, Plaintiff presented no reason for her tardy filing; nor did she seek a modification of the scheduling order or an extension of time in which to file her motion. Accordingly, the Court finds that dismissal of her motion as untimely is warranted. See, e.g., Bailey-Lynch v. Prot. One Alarm Monitoring, Inc., No. 02-CV-0615E(SC), 2005 WL 1334870, at *3 (W.D.N.Y. June 6, 2005) (finding pro se plaintiff’s motion untimely where all dispositive motions had to be filed by January 10, 2005, pursuant to scheduling order, and plaintiff’s motion was filed on January 12, 2005); NAS Elecs., Inc. v. Transtech Elecs. Pte Ltd., 262 F. Supp.2d 134, 150 (S.D.N.Y. 2003) (holding that, where the plaintiff’s motion for summary judgment was filed a month late, “[t]he failure to abide by the [c]ourt’s scheduling order without any showing of good cause is sufficient grounds to deny the…motion”).B. Plaintiff’s Motion Improperly Attempts to Amend Her ComplaintEven if the Court were to find Plaintiff’s motion timely, it improperly raises new claims not presented in any previous filing. As Defendants point out, the claims to be adjudicated in this case were clarified by the Court in its Decision and Order dated August 31, 2018. Specifically, the claims under FHA Sections 3604(a) and 3617 and the NYSHRL claims survived, while the remainder of Plaintiff’s claims were dismissed with prejudice. In her motion papers, however, Plaintiff refers to new statutory provisions such as 42 U.S.C. §3631, a provision of the FHA relating to criminal violations and penalties; 42 U.S.C. §3614, a provision of the FHA dealing with enforcement actions by the United States Attorney General; and New York Real Property Law §235-B, the warranty of habitability provision.It is clearly improper for a litigant to assert new claims for the first time at the summary judgment stage. E.g., Sec. & Exch. Comm’n v. Yorkville Advisors, LLC, 305 F. Supp.3d 486, 531 (S.D.N.Y. 2018) (holding that plaintiff “cannot now amend their complaint merely by raising new facts or theories in their briefs”) (citing Alali v. DeBara, No. 07 Civ. 2916(CS), 2008 WL 4700431, at *3 n.6 (S.D.N.Y. Oct. 24, 2008) (refusing to “consider these [new] allegations in deciding this motion because it is inappropriate to consider claims not pleaded in the complaint in opposition to summary judgment”); Kearney v. Cty. of Rockland, 373 F. Supp.2d 434, 440-41 (S.D.N.Y 2005) (plaintiff alleged, in opposition brief to summary judgment motion, a Title VII hostile work environment claim for the first time; district court refused to consider Title VII claim because nothing in complaint or EEOC charge put defendants on notice of the new allegation). To the extent Plaintiff purports to assert any new claims, the Court shall not consider them.C. Plaintiff’s Motion Is Procedurally DeficientWhen confronted with a properly supported motion for summary judgment, Rule 56 requires the non-movant to produce evidence in admissible form. Fed. R. Civ. P. 56(c). Local Rule of Civil Procedure for the Western District of New York (“W.D.N.Y. L.R.”) 56 further provides that[t]he papers opposing a motion for summary judgment shall include a response to each numbered paragraph in the moving party’s statement, in correspondingly numbered paragraphs and, if necessary, additional paragraphs containing a short and concise statement of additional material facts as to which it is contended there exists a genuine issue to be tried. Each numbered paragraph in the moving party’s statement of material facts may be deemed admitted for purposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the opposing statement.W.D.N.Y. L.R. 56(a)(2).Plaintiff submitted a pleading captioned “Re: Buttal Statement of Pro Se Facts” (Docket No. 64-2) that purports to be a statement of facts for purposes of W.D.N.Y. L.R. 56(a)(2). However, as Defendants observe, Plaintiff failed to address nearly all of Defendants’ factual averments, which were supported by evidence in admissible form. Rather, Plaintiff specifically addressed only three of the 56 paragraphs in Defendants’ Statement of Material Facts, and then only with conclusory or self-serving allegations.As Plaintiff is a frequent litigator in this Court, she presumably has been made aware of how to oppose a summary judgment motion, including the requirement that the non-movant must specifically respond to the moving party’s statement of facts. Indeed, in one of Plaintiff’s other cases, this Court recently held that the defendants’ statement of facts “must be deemed admitted” because Plaintiff failed to comply with W.D.N.Y. L.R. 56′s requirements. Byrd v. NYS Fingerlakes Developmental Disabilities Servs. O.P.W.D.D., No. 6:14-CV-06470 (MAT), 2018 WL 6119777, at *3 (W.D.N.Y. Nov. 22, 2018).Because Plaintiff failed to specifically respond to or otherwise address Defendants’ Statement of Material Facts, she has admitted any uncontested facts as true. See id.; see also, e.g., Hamilton v. Robinson, No. 6:12-cv-06449(MAT), 2018 WL 4334769, at *2 (W.D.N.Y. Sep. 11, 2018) (holding that to the extent the pro se “failed to offer a declarative statement of fact in a correspondingly numbered paragraph in opposition to each factual averment in [the defendant]‘s Statement of Material Facts Not in Dispute,” “such factual averments [were deemed] admitted”); Davis v. Castleberry, 364 F. Supp.2d 319, 322 (W.D.N.Y. 2005) (same).VI. Defendants’ Summary Judgment MotionA. Plaintiff’s FHA Claims Fail as a Matter of Law1. The FHA and the Three-Step Burden-Shifting FrameworkThe FHA provides that “it shall be unlawful…to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race[,]” 42 U.S.C. §3604(b), or handicap. Id. §3604(f). “ An FHA violation may be established on a theory of disparate impact or one of disparate treatment.” LeBlanc — Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995). Plaintiff’s claims in this action are based on a theory of disparate treatment.Housing discrimination claims are evaluated under the burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). E.g., Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (citing Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1038 (2d Cir. 1979)). The elements of a prima facie case of housing discrimination are as follows: (1) the plaintiff is a member of a protected class; (2) the plaintiff sought and was qualified to rent or purchase the housing; (3) the defendant denied the plaintiff the opportunity to rent or purchase the housing; and (4) the housing opportunity remained available to other renters or purchasers. Mitchell, 350 F.3d at 47. “[O]nce a plaintiff has established a prima facie case of discrimination, the burden shifts to the defendant to assert a legitimate, nondiscriminatory rationale for the challenged decision.” Mitchell, 350 F.3d at 47 (citing McDonnell Douglas Corp., 411 U.S. at 802-03).“If the defendant makes such a showing, the burden shifts back to the plaintiff to demonstrate that discrimination was the real reason for the defendant’s action.” Id. (citing Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000)). Importantly, “although the McDonnell Douglas presumption shifts the burden of production to the defendant, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); emphasis and brackets in original).2. The Failure-to-Renew-Lease Claim FailsPlaintiff alleges that she wanted to renew her lease and attempted to make the necessary payment, but Defendants declined to either renew her lease agreement or accept her payment and then commenced an ejectment proceeding against her. Plaintiff asserts that Defendants intended to discriminate against her based on her race and disabled status.The Courts assumes arguendo that Plaintiff has made out a prima facie case; she alleges that she is African-American and suffers from mental and physical disabilities; she appears to have been qualified to rent the unit in question insofar as she did so for several years; Grove Street declined to renew her lease; and the unit she had inhabited remained available to rent. See, e.g., Frazier v. Rominger, 27 F.3d 828, 831 (2d Cir. 1994) (“There is no dispute that the plaintiffs established a prima facie case at trial, namely, that [the plaintiff] is African — American, that the couple was qualified for the housing, that the couple did not get the housing, and finally that the housing remained open.”) (citing 42 U.S.C. §3604(a); other citation omitted).Defendants have fulfilled their burden of production by coming forward with ample evidence demonstrating that they had legitimate, non-discriminatory reasons for declining to renew her lease. Grove Street has submitted declarations from its Senior Vice President Tamra James (“James”) and former Assistant Property Manager Briana Mendez (“Mendez”) detailing Plaintiff’s lack of cooperation during each lease-renewal process, obdurate refusal to pay modest rent increases; bellicose and abusive behavior towards staff, which escalated in the period between the first eviction proceeding and September 2015; and disruption of other tenants’ enjoyment of their apartments. See Declaration of Tamra James (“James Decl.”) (Docket No. 60-25)
