Recipient of Subsidy Proceeds with Bias Case Against Landlord

, New York Law Journal

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The plaintiffs charged violations of three provisions of the Fair Housing Act, 42 U.S.C. §3604: (1) discriminating on the basis of disability for limiting information on apartment availability, (2) "using different qualification criteria, procedures or standards for the rental" and (3) failing to process an offer to rent.

Cote held they had adequately pleaded disparate treatment and disparate impact claims based on "at least two" of the three provisions.

"Based on her allegations, L.C. has identified two ways in which she was treated differently (1) in the information given to her regarding available apartments, namely that she was not shown such apartments…and (2) in the qualification and rental criteria applied to her, namely a more burdensome and delayed process," Cote said.

As for disparate impact, she said the plaintiffs survived a motion to dismiss because "They have alleged that LeFrak has a facially neutral policy regarding applicants who are recipients of housing subsidies, and that those policies cause individuals within a protected group to be provided with limited information and to face a more burdensome rental process."

Cote said the plaintiffs were not required at this stage to present statistics backing up their disparate impact claim, but it was fair to require "at least one allegation that raises an inference of such disparity"—and this they have done.

The complaint, she said, states that, "as of 2010, New York City had a population of approximately eight million individuals, the HIV population in New York City was approximately 67,000 people, 49 [percent] of which are HASA clients, the 'vast majority' of which utilize a HASA housing subsidy."

Cote said this gives notice to LeFrak that the alleged basis for the disparate impact claim "is that the percentage of the HIV population in New York City on housing subsidies exceeds the percentage of the non-HIV New York City population on housing subsidies."

The judge kept the Human Rights Law claims in the lawsuit, one that alleges intentional disability discrimination and a second claiming discrimination based on "source-of-income," which the City Council added to the law in 2008 as an impermissible grounds for denying housing.

The plaintiff is represented by Armen Hagop Merjian of Housing Works Inc. and Diane Lee Houk of Emery Celli Brinckerhoff & Abady.

"From the perspective of Housing Justice Center, what's very important here is the court's understanding the intersection between people who are disabled and low income and the different types of rental subsidies available in New York City," Houk said. "We have a variety of tools to provide subsidies but when landlords don't follow the law, it impacts people with disabilities and it was good for the judge to recognize that nexus and then allow us to proceed with the legal claims and pretrial discovery."

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