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
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 ...