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June 28, 1993



The opinion of the court was delivered by: THOMAS C. PLATT

PLATT, Chief Judge

 Plaintiffs move pursuant to Fed. R. Civ. P. 65(a) and the Fair Housing Act, Title VII of the Civil Rights Act of 1968, 42 U.S.C. § 3613 (c) for a preliminary injunction enjoining defendants from seeking their eviction from an apartment in the Water's Edge Habitat so long as the Village of Patchogue takes no action against the defendants to enforce the Village Occupancy Code (hereinafter the "Code"). Plaintiffs allege that the defendants seek to deny them housing on the basis of their familial status. Due to plaintiffs' failure to demonstrate a likelihood of success on the merits of this action, this motion for preliminary injunction must be denied.

 Plaintiffs Mark and Michelle Laurenti began looking for an apartment for themselves and their four children in August, 1992. On or about August 8, 1992, plaintiffs entered into a sublease agreement with defendants Pulipati for rental of the Pulipatis' co-op apartment in Water's Edge Habitat. Defendants Pulipati informed the plaintiffs that under the Pulipatis' proprietary lease with Water's Edge Habitat approval of the board of directors is required prior to any tenant subleasing the apartment. Plaintiffs completed an application for board approval and in the area designated "other residents", wrote: "Vanessa Gabrielle Leah." Plaintiffs also indicated on the application that Mrs. Laurenti was employed by the Town of Brookhaven.

 Upon receiving the application, the board of directors requested that plaintiffs appear with all would-be occupants of the apartment on August 12, 1992 for an application interview. In spite of these instructions, plaintiffs brought only two of their four children to the interview. Subsequent to this interview, on August 20, 1992, the board notified the Laurentis that they had been approved as tenants.

 However, it came to the defendants' attention that the plaintiffs' family consisted of six people, the plaintiffs and their four children. On August 25, Defendant Scotto phoned Mrs. Laurenti, who confirmed that a total of six people were to occupy the apartment. Subsequently, on August 27, 1992, defendants informed the plaintiffs that board approval was withdrawn and therefore plaintiffs could not move into the apartment. Scotto Aff. P 3, Ronneburger Aff. P 7. Defendants claim they informed plaintiffs that approval was withdrawn because plaintiffs' had lied on their application about the number of occupants and that six occupants in the apartment violated the Village Occupancy Code. Scotto Aff. P 2; Maroney Aff. P 4; Ronneburger Aff. P 8. In fact, defendants claim that plaintiffs were told that this matter "it is not a question of children . . . it is a question of the number of occupants. You lied on your application . . . ." Scotto Aff. P 3. Nevertheless, plaintiffs contend they were told by the defendants that board approval was withdrawn because "they had four children". Pl.Ex. A, P 12-14.

 Despite defendants' withdrawal of approval and direction not to move in, plaintiffs did so on September 1, 1992.

 Defendants sought and obtained a letter from the Village of Patchogue dated September, 21, 1992, interpreting the Occupancy Code. This letter, addressed to the plaintiffs, states that the plaintiffs ". . . are in violation of Sections 55-6A and 55-44B of the Village code. Please note that the maximum occupancy for this one bedroom unit is three (3) occupants. Please make arrangements to have the violations corrected within thirty (30) days of receipt of this notice." Def.Ex. C. Plaintiffs did not "correct" the violation and on March 12, 1993, defendant Pulipati initiated eviction proceedings in Suffolk County Court. Then on May 3, 1993, defendant Management Consultants International and Water's Edge Habitat sent defendants Pulipati a Notice of Termination of the Proprietary Lease because of the continued occupancy of unapproved tenants in their apartment. *fn1" Plaintiffs now seek to enjoin all defendants from taking any action seeking their eviction.


 Plaintiffs allege that the defendants discriminated against them on the basis of the number of children in their family. Plaintiffs do not allege, however, that the defendants have discriminated against families in the past, nor do they offer any evidence of prior discriminatory acts. Additionally, plaintiffs do not allege that the Village Code itself is discriminatory. Rather, this action is based solely on defendants' alleged discriminatory acts against these plaintiffs, the Laurenti family.

 "In order to obtain a preliminary injunction, the moving party must demonstrate both (1) irreparable harm in the absence of the requested relief, and (2) either (a) a likelihood that it will succeed on the merits of the actions, or (b) a sufficiently serious question going to the merits combined with a balance of hardships tipping decidedly in favor of the moving party. Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1038 (2d. Cir. 1992). The Court finds that the plaintiffs have not shown a likelihood of success on the merits, nor have they raised a sufficiently serious question regarding the merits of this case. Due to this failure by the plaintiffs, it is not necessary that the Court examine the issue of irreparable harm in order to deny this motion for preliminary injunction. *fn2"

 In order to show a likelihood of success on the merits, the plaintiffs must first establish a prima facie case of housing discrimination under the Fair Housing Act. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Upon making this prima facie showing, the burden then shifts to the defendant to show that their denial was based on non-discriminatory factors. Robinson v. 12 Lofts Realty, 610 F.2d 1032, 1038. If this showing is made, the plaintiffs may then show that the factors offered by the defendant were merely pretextual. Id.

 To establish a prima facie case in an action seeking to redress alleged discriminatory acts against an individual, such as the present matter, the plaintiffs must show (1) they are members of a protected class (2) they applied for and were qualified to rent the apartment; (3) they were rejected; and (4) the apartment remained available. Robinson v. 12 Lofts Realty, 610 F.2d 1032, 1038 (2d Cir. 1979).

 Plaintiffs allege that they were discriminated against because they have four children or, in other words, on basis of their familial status. Familial status is defined as "one or more individuals (who have not attained the age of 18 years) being domiciled with . . . a parent or another person having legal custody of such individual or individuals. . . ." 42 U.S.C. § 3602 (k). The Laurentis are a family of six (6), with four children under the age of eighteen (18), and thereby fall within the ...

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