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Ly v. 2300 Chera Investors, LLC

United States District Court, M.D. Florida, Orlando Division

July 2, 2019

DIANA M. LY, Plaintiff,


          THOMAS B. SMITH United States Magistrate Judge

         This Fair Housing Act case comes before the Court without a hearing on Plaintiff's Renewed Motion to Disqualify Counsel (Doc. 45). Defendants have filed a response in opposition to the motion (Doc. 46), and Plaintiff has filed a reply (Doc. 47).


         In 2018, Plaintiff Diana M. Ly and her boyfriend rented a place to live from Defendant 2300 Chera Investors, LLC (Doc. 32-2, ¶ 3). The property is managed by Defendant A T Wonus Property Management Group (Id.). After renting the premises, Plaintiff informed the property manager that she had an emotional support animal (“ESA”) and would provide a doctor's note to confirm her need for the ESA (Id., ¶ 4). Defendants were not satisfied with the information provided by Plaintiff and asked her to sign a Limited Medical Release and Medical Certification (Id., ¶ 7). Rather than sign Defendants' form, Plaintiff had her psychiatrist, Dr. Sonny Joseph send a note stating that Plaintiff was under his treatment and he recommended she be allowed to have her ESA “for emotional support at all times.” (Id., ¶¶ 8-9). This did not satisfy Defendants who wanted the signed Limited Medical Release or a more detailed letter from Dr. Joseph evidencing Plaintiff's need for an ESA (Id., ¶ 11). Then Dr. Joseph's office told Plaintiff someone representing Defendants had called and demanded copies of her medical file (Id., ¶ 13). This caused Plaintiff to write to the property manager, expressing her reluctance to reveal the details of her disability (Id., ¶ 15). Here is what Plaintiff says happened next:

16. Later in the afternoon of July 10, 2018, subsequent to the email exchanges between me and Mr. Matamoros identified above, I received a telephone call from Attorney Jay L. Swistak, who identified himself as the attorney for Atrium, who I believed to the “Jay” previously identified to me by Mr. Matamoros. During the call, Attorney Swistak berated me, told me I was “stupid”; that “ESA's are not a real thing”; that I was going to get sued and evicted; insisting that I simply sign the “Limited Medical Release Form”, and that he could not understand why I did not sign, and that my failure to so was a “red flag”; inaccurately insisting that I had no proof that I was even suffering from a disability prior to July 9, 2018, suggesting that I had made it up to obtain my ESA; that a plaintiff can see a psychiatrist for any reason; reiterating that I was “stupid” and that “ESAs are a bunch of BS” that have raised serious issues in other states familiar to Attorney Swistak. When I expressed my outrage that he would speak to me in this manner, that he was not to call me again, and that I wanted to speak with an attorney, Attorney Swistak told me that “you probably don't have one”; and “you probably cannot afford one.”
17. Later that same afternoon, I received an email from Attorney Swistak acknowledging the telephone conversation of earlier that day, insisting that my Support Animal Registration for my ESA was “not legitimate documentation or credible evidence of your disability and need for a support animal”; arguing that “landlords are permitted to make reasonable inquiry to establish the disability and need for a service/support animal; and that he was only seeking to “conduct a very limited inquiry to verify information you allege.”

(Id., ¶¶ 16-17). Plaintiff contends that Swistak's actions evidence “a campaign of illegal and unreasonable harassment and retaliation against Plaintiff, including unlawful and unreasonable rejection of her ESA certifications largely fueled upon a belief, as expressed by Attorney Swistak, that ESAs are ‘BS'” (Doc. 1, ¶ 38).

         Swistak has filed his own affidavit stating:

1. I have been a member of the Florida Bar since 2007.
2. I have defended multiple clients against claims of violations of The Fair Housing Act and I am very familiar with fair housing law.
3. I am the attorney of record for 2300 Chera Investors LLC and AT Wonus Property Management Group LLC, defendants in this action.
4. I am familiar with the facts related to Plaintiffs request for a reasonable accommodation in the pending matter.
5. I have had communications with both Plaintiff and Defendants regarding Plaintiff's request for a reasonable accommodation.
6. The July 10, 2018 telephone call that I had with Plaintiff was amicable. During the conversation, I explained to her the landlord's need and right to a meaningful review of ...

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