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August 7, 1990


The opinion of the court was delivered by: Lowe, District Judge.


Before this Court is plaintiff Gail Glover's motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure and for partial summary judgment. For the reasons discussed below, plaintiff's motion for class certification is granted and plaintiff's motion for partial summary judgment is granted in part and denied in part.


This Court previously issued two opinions in connection with this action, Bronson v. Crestwood, 724 F. Supp. 148 (S.D.N Y 1989); March 8, 1990 Opinion and Order, familiarity with which will be presumed.

Briefly, this action challenges the rental policies of Crestwood Lake Apartments ("Crestwood"), a complex located in Yonkers, New York, under Title VIII of the Civil Rights Act of 1968 and various state housing laws. Plaintiff alleges that Crestwood's rental policies — variously consisting of its refusal to consider applications of any person who receives Section 8 federal housing assistance or whose income is not at least three times the rent of the apartment for which that person is applying — disproportionately and adversely impacts upon black and hispanic ("minority") applicants for tenancies in comparison to white applicants. Plaintiff also claims that defendants rely on other improper criteria for selecting tenants such as the applicant's familial status, marital status, and age.

Plaintiff seeks to certify a class defined as all black and hispanic persons*fn1 residing in the City of Yonkers, New York, who a) are or will be determined eligible to participate in the Section 8 Housing Voucher Program, b) can afford to pay the rents at Crestwood, and c) are or will be denied the opportunity to rent housing accommodations at Crestwood because of their Section 8 status, the terms of the Section 8 lease, the source or amount of their income, their race, their familial or marital status or their age.

As of July 13, 1989, 87 of the 107 holders of housing vouchers issued by the Municipal Housing Authority ("MHA") for the City of Yonkers were minority persons. Affidavit of Jeffrey Lubell at ¶¶ 6, 7. Minority persons hold another 44 Section 8 housing vouchers authorized by the City of White Plains to secure housing in the City of Yonkers.*fn2 Should any of these participants not use their vouchers prior to the termination of the six month period following issuance, the voucher is transferred to an individual on the waiting list, which, as of July 13, 1989, consisted of 2055 applicants. Lubell Affidavit at ¶ 9.

In addition to her motion for class certification, plaintiff has moved for partial summary judgment alleging that certain criteria defendants have relied on, and continue to rely on, in disfavoring plaintiff and other members of the class, violate federal and state laws. Specifically, plaintiff seeks a finding that it is invalid as a matter of state and federal law for defendants to 1) consider applicants' familial status, marital status and age in evaluating them as tenants, 2) refuse to enter into Section 8 leases, and 3) refuse to consider a person with one child for a one-bedroom apartment and a person with three children for a two-bedroom apartment at Crestwood, when they allow two adults to rent a one-bedroom apartment and two adults with two children to rent a two-bedroom apartment.*fn3

Gail Glover had originally been awarded a one-bedroom voucher by the County of Westchester for herself and her daughter.*fn4 She was allegedly told by Margaret Naughton, a rental agent for Crestwood, that Crestwood does not rent one-bedroom apartments to a person who has a child and that Crestwood would only accept an application from Glover for a two- or three-bedroom apartment. Affidavit of Margaret Harris at ¶ 5. Maria Cruz, another member of the proposed class, had been awarded a two-bedroom voucher by the MHA for herself and her two sons and a daughter. She was allegedly told by Naughton that she could only apply for a three-bedroom apartment because it was the policy of Crestwood to only offer three-bedroom apartments to persons with more than two children. Id. at ¶ 8.

We now consider plaintiff's motions for class certification and partial summary judgment.



A court may certify a class under F.R. C.P. Rule 23 if the moving party demonstrates that a) the four requirements set forth in Rule 23(a)*fn5 are met and b) the action falls within one of the categories enumerated in Rule 23(b)*fn6.


The first prerequisite to maintaining a suit as a class action is that "the class is so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1). While plaintiff argues that this Court should look to the number of Section 8 voucher holders residing in Yonkers who are minority persons and can afford an apartment at Crestwood in determining whether the proposed class satisfies the numerosity requirement, defendants argue that the operative number is the number of voucher holders who have actually applied for housing at Crestwood.

We are persuaded that plaintiff's defined class is the proper one to look at since, as we stated in our earlier opinion, the possible reason there have been few Section 8 voucher holders who have applied for tenancies at Crestwood is that "potential applicants who receive Section 8 subsidies have been dissuaded from applying at Crestwood due to their constructive knowledge that large apartment complexes in East Yonkers engage in practices such as those employed by Crestwood." 724 F. Supp. 148, 160. It surely would be unfair to allow defendants to defeat class certification merely by pointing to the fact that few minority Section 8 ...

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