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Gorokhovsky v. The Building Group

United States District Court, N.D. Illinois, Eastern Division

November 18, 2016




         Now before the Court is Defendants' The Building Group, Board of Directors of the Residences at Hudson and Huron Condominium Association, incorrectly named as Board of Directors of Huron Hudson Condominium Association, and The Residences at Hudson and Huron Condominium Association, incorrectly named as Huron Hudson Condominium Association (collectively, "Defendants"), Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 against Plaintiff Vladimir Gorokhovsky ("Gorokhovsky")[1] . For the following reasons, the Court grants Defendants' Motion for Summary Judgment.


         Local Rule 56.1(a) requires the "party moving for summary judgment to include with that motion 'a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgement as a matter of law.'" Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (quoting N.D. 111. R. 56.1(a)(3)). Although Defendants did not file a separate and distinct statement of undisputed material facts, in their Memorandum in Support of their Motion for Summary Judgment, they included a section titled "Undisputed Material Facts." Local Rule 56.1(b)(3)(B) requires that Gorokhovsky file a response to a statement of uncontested material facts.

         The Court granted Gorokhovsky leave to file his Response Brief to the Motion instanter on September 6, 2016, as reflected in docket entry 23. Without seeking leave of the Court, and without providing us with notice, Gorokhovsky filed another Response Brief two days later, on September 8, 2016, as reflected in docket entry 26. Neither brief contains a response to Defendants' statement of uncontested material facts, although the second one contains a statement of what Gorokhovsky claims are "Disputed Material Facts." Under Local Rule 56.1(b)(3)(C), "[a]ll material facts set forth in [Defendants' statement of undisputed facts] will be deemed to be admitted unless controverted by the statement of the opposing party." However, this does not "automatically result in judgment for the movant." Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th Cir. 2012) (citation omitted). Although Defendants and Gorokhovsky failed to fully comply with Local Rule 56.1, because the Court has broad discretion in enforcing the local rules, see Beauchem v. Rockford Prod. Corp., No. 01 C 50134, 2002 WL 31155088, at *2 (N.D. 111. Sept. 27, 2002), the following facts are taken from the parties' statements and exhibits filed in an attempt to comply with Local Rule 56.1, including Defendants' "Undisputed Material Facts" and Gorokhovsky's "Disputed Material Facts." The Court also considers the five-count Complaint (the "instant Complaint") filed by Gorokhovsky on April 7, 2016, and all of the evidence in the record. The Court construes the facts and all reasonable inferences drawn from them in the light most favorable to Gorokhovsky, and disregards any argument, conclusion, or assertion unsupported by the evidence in the record. See Flint v. City o/Belvidere, 791 F.3d 764, 767 (7th Cir. 2015).

         On three occasions-April 10, 2015, April 17, 2015, and November 7, 2015- Gorokhovsky claims that he noticed that his parking spot was occupied by a car that was not his own. In response, Gorokhovsky stated that he notified an on-duty manager who advised him to call Lincoln Towing. However, when Gorokhovsky purportedly called Lincoln Towing, the company representative informed him that only "authorized agents" can seek towing services. According to Gorokhovsky, when asked, the manager refused to call Lincoln Towing as an "authorized agent, " and no other towing company would remove the "trespassing" car. Gorokhovsky takes issue with the Association's purported towing policy, claiming that Defendants misled him and wasted his time. On November 9, 2015, at 3:54 p.m., Gorokhovsky emailed Ryan H. Shpritz ("Shpritz"), who is the Association's counsel, stating that his "pre-suit settlement demand" is $20, 000 to resolve supposed legal claims relating to the Association's towing policy and the Association's demands for Gorokhovsky's unpaid assessment fees, for which he requested a "full accounting and verification of debt." Gorokhovsky included alleged claims in a draft complaint, dated December 12, 2015, which he sent to Defendants when he threatened to file suit.

         On or about February 11, 2016, the parties entered into a Settlement Agreement (the "Agreement") to resolve the purported causes of action. Gorokhovsky's draft complaint was "attached to and incorporated into the" Agreement. In the Agreement, in exchange for a $1, 000 credit to his association account, Gorokhovsky "release[d], acquitfted], and forever discharge[d] [Defendants] . . . from all claims that were asserted or could have been asserted by [him] in connection with the Dispute and the Complaint." Subsequently, "the Association credited [Gorokhovsky's] account with $1, 000."

         Nonetheless, Gorokhovsky filed the instant Complaint, alleging: (i) a deprivation of property rights under 42 U.S.C. § 1983 (Count I); (ii) common law fraud (Count II); (iii) fraudulent misrepresentation (Counts III-IV); and (iv) unfair debt collection practices under 15 U.S.C. § 1692c(1)(A) and 15 U.S.C. § 1692e (Count V). In Counts I-IV, Gorokhovsky argues that Defendants misrepresented the process that the Association follows to tow a "trespassing, " or an illegally-parked vehicle, from a resident's parking spot. In Count V, Gorokhovsky claims that Defendants employed "false misrepresentation, " attempting to "collect highly inflated and invalid debt" that Gorokhovsky purportedly owes for his condominium assessments, which is being litigated in Cook County. On June 22, 2016, Defendants filed their Motion for Summary Judgment arguing that Gorokhovsky's claims are barred by the Agreement.


         Summary judgment is appropriate "if the movant shows 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 genuine issue of material fact arises where a reasonable jury could find, based on the evidence of record, in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The movant bears the initial burden of showing that no genuine issue of material fact exists." Genova v. Kellogg, 12 C 3105, 2015 WL 3930351, at *3 (N.D. 111. June 25, 2015). "The burden then shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on issues on which the movant bears the burden of proof at trial." Id. The non-movant must go beyond the pleadings and support his contentions with documentary evidence of specific facts that demonstrate that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).


         Defendants argue that all of Gorokhovsky's claims, including those that were expressly asserted in the draft complaint and those that could have been asserted, were released through the Agreement that was executed and signed by the parties on or about February 11, 2016, and therefore, "no genuine dispute as to any material fact exists and Defendants are entitled to summary judgment as a matter of law." The Court agrees. Further, once the burden at the summary judgment stage of litigation shifted to Gorokhovsky, he did not show "through specific evidence that a triable issue of fact remains on issues on which" he "bears the burden of proof at trial." Kellogg, 2015 WL 3930351, at *3. Thus, for the following reasons, Defendants' Motion for Summary Judgment is granted.

         Gorokhovsky raises three arguments, framed as four, in his Response Brief in Opposition to Defendant's Motion for Summary Judgment. First, Gorokhovsky argues that the Agreement and the term "Dispute, " as referenced in paragraph 4 of the Agreement, only pertained to actions that occurred on November 7, 2015, and that the April 10, 2015 and April 17, 2015 events are not encompassed in the Release that he signed. On all three occasions, according to Gorokhovsky, a car belonging to another was parked in Gorokhovsky's spot, and he was unable to obtain a tow from Lincoln Towing because he was not an "authorized agent, " nor was he able to obtain a tow from another company because they did not have a contract with Defendants. Gorokhovsky claims that this wasted "multiple hours of [his] time" and led to the "uncontrollable" tears of his 6-year-old son. Gorokhovsky's logical reasoning behind his argument is as follows: (i) his draft complaint did not plead allegations regarding April 10 and 17; instead, it only references November 7; (ii) in contrast, the assertions in the instant Complaint refer to April 10 and 17; therefore, (iii) Gorokhovsky urges that "clearly" the "Dispute, " as written in the Agreement, only pertains to the events that occurred on November 7, and it does not govern the events that occurred on April 10 and 17. Not only does Gorokhovsky's conclusion not logically follow, but the contractual language dictates otherwise.

         Paragraph 5 of the Agreement contains a choice of law provision, stating that the "Agreement shall be construed and interpreted in accordance with the laws of the State of Illinois." "Where the language of a release is clear and unambiguous, and the release is executed with knowledge of its meaning, absent an express limitation on the face of the release itself, or clear and convincing evidence of fraud, mutual mistake or mental incompetence, causes of action covered by the release are barred." Rakowski v. Lucente,458 N.E.2d 947, 951 (1983), affd 472 N.E.2d (1984). Such releases are broadly construed, and Illinois "courts have been willing to bar additional claims falling within ...

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