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SALUTE v. STRATFORD GREENS

May 31, 1995

RICHARD SALUTE and LONG ISLAND HOUSING SERVICES, Plaintiffs, against STRATFORD GREENS, a co-partnership, GERALD MONTER, ELLIOT MONTER and HOLIDAY MANAGEMENT ASSOCIATES, Defendants.


The opinion of the court was delivered by: JOHN GLEESON

 JOHN GLEESON, United States District Judge:

 Richard Salute and Long Island Housing Services have brought this purported class action *fn1" against Stratford Greens, Gerald Monter, Elliot Monter and Holiday Management Associates, alleging that the defendants' refusal to rent Salute an apartment in the Stratford Greens apartment complex constitutes a violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., and the United States Housing Act, 42 U.S.C. § 1437. Before the Court are the plaintiffs' motions (1) to amend the complaint to add Marie Kravette as a plaintiff and (2) for a preliminary injunction requiring the defendants to rent an apartment to Kravette at the Stratford Greens complex in Hauppauge, New York.

 The defendants have abandoned their opposition to the first motion, which is therefore granted. For the reasons set forth below, the motion for preliminary injunctive relief is also granted.

 A. The Claims of Richard Salute

 The plaintiffs allege that Richard Salute is a disabled person as defined by the Fair Housing Act, 42 U.S.C. § 3602(h). (Plaintiffs' Second Amended and Supplemental Complaint ("Complaint") P 14.) Due to Salute's handicap, he currently receives disability payments from the Social Security Administration as well as food stamps and other benefits. (Id. P 15.)

 In the late 1980s, while Salute was living in a basement apartment in East Northport, New York, his medical condition allegedly forced him to seek alternative housing. Salute applied for and -- after a wait of five years -- received a "Section 8 certificate" from the Suffolk Community Development Corporation. (Complaint P 19.) Under the Section 8 program, a certificate holder pays a maximum of 30% of his income toward rent, and the federal government pays the difference. However, in order to participate in the program, a certificate holder must locate an apartment which has a rent that falls within the Department of Housing and Urban Development's ("HUD's") fair market rent guidelines for the community in question. In the event that the certificate holder is unable to locate a suitable apartment within a limited time period, the certificate reverts back to the issuing agency. See generally Deborah Kenn, Fighting the Housing Crisis with Underachieving Programs: The Problem with Section 8, 44 Wash. U. J. Urb. & Contemp. L. 77 (1993).

 Salute alleges that in February of 1993, he visited Stratford Greens in search of an apartment. After being shown an apartment which met his needs, Salute was rejected as a tenant on account of his participation in the Section 8 program. Salute further alleges that he was not able to locate another suitable apartment within the statutory period, and thus was forced to give up his Section 8 certificate. (Complaint PP 21-28.)

 Salute contends that Stratford Greens' refusal to accept him as a tenant violated the Fair Housing Act in two respects: (a) it violated 42 U.S.C. § 3604(f)(1) and (f)(2) because the policy of excluding Section 8 certificate holders has a discriminatory impact on Suffolk County's handicapped population; and (b) it violated 42 U.S.C. § 3604(f)(3)(B) because the policy, when applied to Salute, constitutes an unlawful refusal to make the "reasonable accommodations" necessary to afford handicapped persons an equal opportunity to use and enjoy a Stratford Greens apartment. Salute also alleges that the defendants violated the United States Housing Act, 42 U.S.C. § 1437f(t)(1)(A), because Stratford Greens already had at least one tenant who was a Section 8 certificate holder, and once a landlord elects to participate in the program, it may not refuse a prospective tenant on the ground that he is a Section 8 certificate holder.

 B. The Plaintiffs' Motion to Amend The Complaint

 The plaintiffs seek to amend their complaint in order to add Marie Kravette as a plaintiff. Kravette, like Salute, claims that she was discriminated against by Stratford Greens because she is a Section 8 participant. As noted above, the defendants no longer oppose plaintiffs' motion to amend and supplement their complaint, and that motion is granted.

 C. Kravette's Motion for a Preliminary Injunction.

 Kravette moves for a preliminary injunction directing Stratford Greens to rent to Kravette a one-bedroom apartment that is currently available in Building No. 5 of the Stratford Greens apartment complex. In order for Kravette to prevail, she must demonstrate (1) that she will suffer irreparable harm if an injunction is not granted, and (2) either (i) a likelihood of success on the merits or (ii) sufficiently serious questions going to the merits combined with a balance of hardships weighing decidedly in her favor. Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1038 (2d Cir. 1992). Kravette has advanced the same three legal theories that have been raised by Salute.

 I find that Kravette has demonstrated that she will suffer irreparable harm in the absence of injunctive relief and that she is likely to succeed on the merits of her United States Housing Act claim. Accordingly, the preliminary injunction will be ...


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