23-635 Burke v. Housing & Services, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of May, two thousand twenty-four.
PRESENT: DENNIS JACOBS, ROBERT D. SACK, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
BRIAN BURKE,
Plaintiff-Appellant,
v. No. 23-635
HOUSING AND SERVICES, INC., KENMORE HOUSING DEVELOPMENT FUND CORPORATION, KENMORE ASSOCIATES, L.P., CITY UNIVERSITY OF NEW YORK, KENMORE HOUSING CORPORATION, NEW YORK STATE ATTORNEY GENERAL, NEW YORK CITY TRANSIT AUTHORITY,
Defendants-Appellees,
VERIZON COMMUNICATIONS, INC., NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (BELLEVUE), NEW YORK POLICE DEPARTMENT, NEW YORK CITY FIRE DEPARTMENT, RYAN CAMIRE, L.C.S.W., TRANSPORT WORKERS UNION LOCAL 100, MADELINE O’BRIEN, M.D., JOHN/JANE DOE, et al., DERICK ECHEVARRIA, JOHNSON CONTROLS, INC., CITY OF NEW YORK,
Defendants. _____________________________________
For Plaintiff-Appellant: BRIAN BURKE, pro se, New York, NY.
For Defendants-Appellees Jeffrey N. Rejan, Malapero Prisco & Housing and Services, Inc., Klauber LLP, New York, NY. Kenmore Housing Development Fund Corporation, Kenmore Associates, L.P., and Kenmore Housing Corporation:
For Defendants-Appellees Barbara D. Underwood, Solicitor City University of New General, Judith N. Vale, Deputy Solicitor York and New York State General, David Lawrence III, Assistant Attorney General: Solicitor General, for Letitia James, Attorney General for the State of New York, New York, NY.
2 For Defendant-Appellee David I. Farber, General Counsel, Robert New York City Transit K. Drinan, Executive Agency Counsel, Authority: New York City Transit Authority, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Paul G. Gardephe, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the March 16, 2023 judgment of the district
court is AFFIRMED.
Brian Burke, proceeding pro se, appeals from a judgment of the district court
dismissing his claims against various defendants – including his former employer,
his landlord, the City of New York, hospital employees, and emergency workers
– who allegedly caused him to lose his job, deprived him of his pension benefits,
attempted to evict him from his apartment, and defamed him in his hospital
records. We assume the parties’ familiarity with the underlying facts, procedural
history, and issues in dispute, to which we refer only as necessary to resolve this
appeal.
I. March 29, 2019 and November 6, 2020 Orders Granting Motions To Dismiss
Burke first challenges the district court’s March 2019 and November 2020
orders dismissing his claims against the New York State Attorney General, the
3 City of New York (the “City”), New York City Health & Hospitals (“Bellevue”),
the Transport Workers Union Local 100 (the “Union”), and the New York City
Transit Authority (the “Transit Authority”). 1 “We review de novo a district court’s
dismissal of a complaint for lack of standing and for failure to state a claim.”
Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009) (citations omitted).
Burke contends that the district court erred in dismissing his claims against
the Attorney General – by which he sought to enjoin enforcement of New York
Labor Law § 190(3) – for lack of standing. Burke forfeited this argument, however,
when he failed to object to the portion of the magistrate judge’s report and
recommendation that proposed dismissal of this claim on standing grounds. See
Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015) (“Where parties receive clear
notice of the consequences, failure to timely object to a magistrate’s report and
1 The district court’s orders also dismissed Burke’s claims against Verizon Communications, Inc.,
the New York City Police Department (the “NYPD”), the New York City Fire Department (“FDNY”), Ryan Camire, Madeline O’Brien, Derick Echevarria, Johnson Controls, Inc., and several John and Jane Does. On appeal, Burke expressly abandoned his claims against the NYPD, the FDNY, Johnson Controls, and Echevarria. Moreover, Burke’s brief does not advance any argument challenging the dismissal of his claims against Verizon, Camire, O’Brien, or the Doe defendants, and he thus forfeited any appeal as to those claims. See Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632 (2d Cir. 2016) (“Although we accord filings from pro se litigants a high degree of solicitude, even a litigant representing himself is obliged to set out identifiable arguments in his principal brief.” (internal quotation marks omitted)).
4 recommendation operates as a [forfeiture] of further judicial review of the
magistrate’s decision.”).
Burke next argues that the district court erred by refusing to toll the statute
of limitations for his defamation and medical malpractice claims against the City
and Bellevue. But equitable tolling requires a showing that “the defendant
actively misled the plaintiff,” which Burke did not plausibly allege in his amended
complaint. O’Hara v. Bayliner, 89 N.Y.2d 636, 646 (1997).
As to Burke’s breach-of-contract claims against the Transit Authority, his
former employer, Burke now argues that the district court should have excused
his failure to exhaust administrative remedies because such exhaustion would
have been futile. Yet Burke never raised this argument when opposing the Transit
Authority’s motion to dismiss. As a result, he has forfeited that argument on
appeal. See Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 50 (2d Cir.
2015) (“It is well settled that arguments not presented to the district court are
considered [forfeited] and generally will not be considered for the first time on
appeal.”).
And while Burke contends that the district court erred in dismissing his
claim against the Transit Authority under the Racketeer Influenced and Corrupt
5 Organizations Act (“RICO”), 18 U.S.C. § 1964(c), he argues only that RICO should
apply to public agencies. That argument “fails to address adequately the merits”
of the district court’s dismissal of his RICO claim, which was based on Burke’s
failure to allege a pattern of racketeering activity. Terry v. Inc. Vill. of Patchogue,
826 F.3d 631, 632–33 (2d Cir.
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23-635 Burke v. Housing & Services, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of May, two thousand twenty-four.
PRESENT: DENNIS JACOBS, ROBERT D. SACK, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
BRIAN BURKE,
Plaintiff-Appellant,
v. No. 23-635
HOUSING AND SERVICES, INC., KENMORE HOUSING DEVELOPMENT FUND CORPORATION, KENMORE ASSOCIATES, L.P., CITY UNIVERSITY OF NEW YORK, KENMORE HOUSING CORPORATION, NEW YORK STATE ATTORNEY GENERAL, NEW YORK CITY TRANSIT AUTHORITY,
Defendants-Appellees,
VERIZON COMMUNICATIONS, INC., NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (BELLEVUE), NEW YORK POLICE DEPARTMENT, NEW YORK CITY FIRE DEPARTMENT, RYAN CAMIRE, L.C.S.W., TRANSPORT WORKERS UNION LOCAL 100, MADELINE O’BRIEN, M.D., JOHN/JANE DOE, et al., DERICK ECHEVARRIA, JOHNSON CONTROLS, INC., CITY OF NEW YORK,
Defendants. _____________________________________
For Plaintiff-Appellant: BRIAN BURKE, pro se, New York, NY.
For Defendants-Appellees Jeffrey N. Rejan, Malapero Prisco & Housing and Services, Inc., Klauber LLP, New York, NY. Kenmore Housing Development Fund Corporation, Kenmore Associates, L.P., and Kenmore Housing Corporation:
For Defendants-Appellees Barbara D. Underwood, Solicitor City University of New General, Judith N. Vale, Deputy Solicitor York and New York State General, David Lawrence III, Assistant Attorney General: Solicitor General, for Letitia James, Attorney General for the State of New York, New York, NY.
2 For Defendant-Appellee David I. Farber, General Counsel, Robert New York City Transit K. Drinan, Executive Agency Counsel, Authority: New York City Transit Authority, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Paul G. Gardephe, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the March 16, 2023 judgment of the district
court is AFFIRMED.
Brian Burke, proceeding pro se, appeals from a judgment of the district court
dismissing his claims against various defendants – including his former employer,
his landlord, the City of New York, hospital employees, and emergency workers
– who allegedly caused him to lose his job, deprived him of his pension benefits,
attempted to evict him from his apartment, and defamed him in his hospital
records. We assume the parties’ familiarity with the underlying facts, procedural
history, and issues in dispute, to which we refer only as necessary to resolve this
appeal.
I. March 29, 2019 and November 6, 2020 Orders Granting Motions To Dismiss
Burke first challenges the district court’s March 2019 and November 2020
orders dismissing his claims against the New York State Attorney General, the
3 City of New York (the “City”), New York City Health & Hospitals (“Bellevue”),
the Transport Workers Union Local 100 (the “Union”), and the New York City
Transit Authority (the “Transit Authority”). 1 “We review de novo a district court’s
dismissal of a complaint for lack of standing and for failure to state a claim.”
Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009) (citations omitted).
Burke contends that the district court erred in dismissing his claims against
the Attorney General – by which he sought to enjoin enforcement of New York
Labor Law § 190(3) – for lack of standing. Burke forfeited this argument, however,
when he failed to object to the portion of the magistrate judge’s report and
recommendation that proposed dismissal of this claim on standing grounds. See
Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015) (“Where parties receive clear
notice of the consequences, failure to timely object to a magistrate’s report and
1 The district court’s orders also dismissed Burke’s claims against Verizon Communications, Inc.,
the New York City Police Department (the “NYPD”), the New York City Fire Department (“FDNY”), Ryan Camire, Madeline O’Brien, Derick Echevarria, Johnson Controls, Inc., and several John and Jane Does. On appeal, Burke expressly abandoned his claims against the NYPD, the FDNY, Johnson Controls, and Echevarria. Moreover, Burke’s brief does not advance any argument challenging the dismissal of his claims against Verizon, Camire, O’Brien, or the Doe defendants, and he thus forfeited any appeal as to those claims. See Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 632 (2d Cir. 2016) (“Although we accord filings from pro se litigants a high degree of solicitude, even a litigant representing himself is obliged to set out identifiable arguments in his principal brief.” (internal quotation marks omitted)).
4 recommendation operates as a [forfeiture] of further judicial review of the
magistrate’s decision.”).
Burke next argues that the district court erred by refusing to toll the statute
of limitations for his defamation and medical malpractice claims against the City
and Bellevue. But equitable tolling requires a showing that “the defendant
actively misled the plaintiff,” which Burke did not plausibly allege in his amended
complaint. O’Hara v. Bayliner, 89 N.Y.2d 636, 646 (1997).
As to Burke’s breach-of-contract claims against the Transit Authority, his
former employer, Burke now argues that the district court should have excused
his failure to exhaust administrative remedies because such exhaustion would
have been futile. Yet Burke never raised this argument when opposing the Transit
Authority’s motion to dismiss. As a result, he has forfeited that argument on
appeal. See Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 50 (2d Cir.
2015) (“It is well settled that arguments not presented to the district court are
considered [forfeited] and generally will not be considered for the first time on
appeal.”).
And while Burke contends that the district court erred in dismissing his
claim against the Transit Authority under the Racketeer Influenced and Corrupt
5 Organizations Act (“RICO”), 18 U.S.C. § 1964(c), he argues only that RICO should
apply to public agencies. That argument “fails to address adequately the merits”
of the district court’s dismissal of his RICO claim, which was based on Burke’s
failure to allege a pattern of racketeering activity. Terry v. Inc. Vill. of Patchogue,
826 F.3d 631, 632–33 (2d Cir. 2016) (rejecting non-responsive argument because
“even a litigant representing himself is obliged to set out identifiable arguments
in his principal brief” (internal quotation marks omitted)).
Finally, Burke argues that the Union breached its duty of fair representation
by failing to schedule an arbitration for him. It is well settled, however, that public
employees like Burke cannot bring claims of this sort under the Labor
Management Relations Act. See Green v. Dep’t of Educ. of N.Y.C., 16 F.4th 1070, 1075
(2d Cir. 2021) (“As the statute makes clear, however, public employees are not
covered by the [Labor Management Relations Act].”).
For all these reasons, the district court did not err in dismissing Burke’s
claims against the Attorney General, the City, Bellevue, the Transit Authority, and
the Union.
6 II. March 16, 2023 Order Granting Summary Judgment
Burke also challenges the district court’s grant of summary judgment
dismissing his remaining claims against Housing and Services, Inc., Kenmore
Housing Development Fund Corporation, Kenmore Associates, L.P., and
Kenmore Housing Corporation (collectively, “Kenmore”). We review a grant of
summary judgment de novo, “resolv[ing] all ambiguities and draw[ing] all
inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d 120,
126–27 (2d Cir. 2013). “Summary judgment is proper only when, construing the
evidence in the light most favorable to the non-movant, ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ.
P. 56(a)).
Burke argues that the district court erred in granting summary judgment on
his RICO and section 1983 claims because Kenmore did not negotiate with Burke
in good faith during court-ordered mediation. But Kenmore’s good faith – or lack
thereof – during mediation had no bearing on the district court’s grant of summary
judgment, which instead turned on the fact that Burke failed to demonstrate that
Kenmore was a state actor or had committed RICO predicate acts. See Terry, 826
7 F.3d at 632–33 (rejecting argument that failed to address the merits of the district
court’s decision). In light of his failure to raise any argument as to how the district
court erred, Burke has forfeited any challenge to the district court’s summary
judgment order.
* * *
We have considered Burke’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court