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ADLER v. KENT VILLAGE HOUSING CO.

November 21, 2000

MOSHE ADLER, REIZEL ADLER, DAVID GOLDBERGER, RACHEL GOLDBERGER, SHAINDI GOIDHERGER, ZVI GOLDBERGER, AXON EHRENFELD, RACHEL EHRENFELD, CHAYA EINHORN, CHAIM EINHORN, MENACHEM FEUERSTEIN, GOLDIE FEUERSTEIN, NATHAN FISCH, RACHEL FISCH, SOLOMON MILLER, ESTHER MILLER, ROSE GOLDBERGER-STUHL, MOSES STUHL, DAVID SCHENKER, RACHEL SCHENKER, JUDY NOE-GRUNWALD, MATTIS HOLLANDER, CHANA HOLLANDER, CHAYA BERKOWITZ-STERN, MENDEL STERN, LEOPOLD STRULOVITCH, BLIMIE STRULOVITCH, ELIEZER ZAFIR, FRADY ZAFIR, CHAIM ZORGER AND BELLA ZORGER, PLAINTIFFS,
V.
KENT VILLAGE HOUSING COMPANY, INC., A/K/A ROBERTO CLEMENTE PLAZA, ROBERT E. PAUL, THE CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, RICHARD T. ROBERTS, INDIVIDUALLY AND AS COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, ROBIN WEINSTEIN, INDIVIDUALLY AND AS AN ASSISTANT COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT AND JULIE C. WALPERT INDIVIDUALLY AND AS ASSISTANT COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, DEFENDANTS.



The opinion of the court was delivered by: Block, U.S. District Judge.

MEMORANDUM AND ORDER

Plaintiffs, thirty-one occupants of fifteen apartments at Robert Clemente Plaza ("Clemente Plaza"), brought suit advancing in their complaint eleven claims for violations of federal, state and municipal law alleging on various theories that defendants seek to wrongfully abrogate plaintiffs' leases, and have targeted them for eviction because they are Jewish. Specifically, the First, Second, Third and Fourth claims allege that defendants' administrative review of plaintiffs' leases violates their federal constitutional right to due process. The Fifth claim alleges that defendants targeted Jewish residents for review of their leases in violation of their federal constitutional right to equal protection. Plaintiffs' due process and equal protection claims are also the underlying bases for their Ninth and Tenth claims, which respectively allege violations of 42 U.S.C. § 1983 ("§ 1983")*fn1 and 42 U.S.C. § 2000d.*fn2 The Sixth, Seventh and Eighth claims respectively allege violations of N.Y. Civ. Rights Law §§ 18-a, 18-c, N.Y. Exec. Law § 296, and N.Y. City Admin. Code title 8.*fn3 Plaintiffs' Eleventh Claim alleges state common law detrimental reliance and estoppel. Plaintiffs' seek permanent injunctive and declaratory relief barring defendants from reviewing plaintiffs' leases, monetary damages, costs and attorneys' fees.

All plaintiffs have brought on a motion seeking a preliminary injunction prohibiting defendants from pursuing administrative review of plaintiffs' leases.*fn4 Plaintiffs Menacham and Goldie Feuerstein (the "Feuersteins") have brought a separate motion seeking preliminary injunctive relief requiring defendants to transfer the Feuersteins to a larger apartment in Clemente Village. Defendants New York City Department of Housing Preservation and Development ("HPD"), HPD commissioner Richard T. Roberts ("Roberts"), HPD assistant commissioners Robin Weinstein ("Weinstein") and Julie C. Walpert ("Walpert") (collectively the "Municipal Defendants"), Kent Village Housing Co., Inc. ("Kent Village") and Kent Village assistant secretary Robert E. Paul ("Paul") have opposed both applications for preliminary injunctions, and have cross-moved for summary judgment on all claims.*fn5

The Court heard oral argument on all the motions on October 24, 2000. Following oral argument, and for the reasons stated on the record in open court on that date, the Court granted summary judgment dismissing without prejudice plaintiffs' due process claims (the First, Second, Third, Fourth and relevant portions of the Ninth and Tenth claims) on the jurisdictional ground that they were unripe for review. See Marchi v. Board of Cooperative Educ. Servs., 173 F.3d 469, 478 (2d Cir.) ("ripeness is a constitutional prerequisite to exercise of jurisdiction by federal courts" (quotation omitted)), cert. denied, 528 U.S. 869, 120 S.Ct. 169, 145 L.Ed.2d 143 (1999); see also Tr.*fn6 at 24-31. The Court reached this conclusion because plaintiffs had yet to suffer concrete harm since plaintiffs might well prevail in the administrative review process.*fn7 In addition, the Court relied on the strength of the representations by defendants that they would not attempt to remove plaintiffs from Clemente Plaza while administrative proceedings were pending, and that plaintiffs would be accorded full due process rights — namely, the right to be heard in a meaningful and timely fashion by presenting evidence, including calling and cross-examining witnesses, before an impartial hearing officer. See Tr. at 23, 30.

The Court's oral rulings consequently permitted defendants to proceed with administrative review of plaintiffs' leases. At the same time, the Court also denied the Feuerstein's application for preliminary injunctive relief for failure to show likely success on the merits, and on the representation by defendants that the Feuersteins would not be removed from their place on the Clemente Plaza apartment-transfer eligibility list, if at all, before administrative proceedings in respect to their lease were completed.

At oral argument, the Court reserved judgment on defendants' summary judgment motion regarding plaintiffs' equal protection (Fifth) claim and those parts of the § 1983 (Ninth) and Title VI (Tenth) claims predicated thereon. Implicitly, the Court reserved judgment on plaintiffs' state and municipal law claims (the Sixth, Seventh, Eighth and Eleventh claims). The Court now grants defendants' motion for summary judgment and dismisses with prejudice plaintiffs' equal protection claim (the Fifth Claim), and their § 1983 and Title VI claims (the Ninth and Tenth claims), insofar as they are based on this equal protection claim. In its discretion, the Court declines to exercise supplemental jurisdiction over plaintiffs' state and municipal law claims.

BACKGROUND

The following facts are drawn from the Municipal Defendants' Statement Pursuant to Local Rule 56.1 ("Defs.' 56.1 Stmt."), Plaintiffs' Statement in Opposition Pursuant to Local Rule 56.1 ("Pls.' 56.1 Stmt."), Plaintiffs' Order to Show Cause, affidavits, declarations and exhibits attached to the foregoing, and the Verified Complaint. Except as otherwise noted, they are undisputed: Clemente Plaza is a Mitchell-Lama housing development in Williamsburg, Brooklyn, owned by Kent Village and subject to HPD supervision for management, financial and occupancy issues. Between 1990 and 1998, each plaintiff family entered into leases, counter-signed by Kent Village, for apartments in Clemente Plaza. In the summer of 1998, defendants received from Kent Village notices seeking evidence verifying that their tenancies were in compliance with applicable regulations. The letters stated that failure to comply would result in referral of the matter to Kent Village's attorney for further action. By correspondence of July 31, 1998, August 5, 1998, and later dates, defendant Paul sent another letter to plaintiffs denying their applications for successor tenancies to the apartments they occupied and advising plaintiffs of their rights to appeal to HPD for documentary review. HPD later sent to plaintiffs another notice demanding final submission of any further documentation to substantiate their appeal. The letters sent to plaintiffs were the result of an audit, or review, of apartment occupancy at Clemente Plaza conducted by HPD.

Plaintiffs contend that these actions by Kent Village and HPD occurred without any participation by plaintiffs because plaintiffs believed that they had valid leases and therefore did not submit applications to Kent Village or HPD for succession rights. According to defendants, and disputed by plaintiffs, after receiving complaints in January and February 1998 from Clemente Plaza residents about vacant apartments, HPD ordered a recertification and application audit at Clemente Plaza employing the neutral criterion of comparing rent rolls from 1993 to those from 1997 to determine changes in heads of households. This examination revealed an unusually large number of changes in heads of households not attributable to HPD-approved move-ins or transfers, and raised questions about successor tenancies. HPD ordered a full audit covering September 1993 to 1998 to review tenant recertification forms for Clemente Plaza's 532 units.

Plaintiffs also dispute defendants' assertion that HPD's audit, occurring in February 1998, found twenty-three instances in which tenant files contained no claim that a successor tenant was a family member or was within the definition of family member as required by HPD's rules, and three other instances in which documentation was missing for apartments. HPD also found that Kent Village violated applicable regulations by failing to submit tenant succession applications to HPD for approval. On July 1, 1998, Kent Village identified ten other units with questionable successor tenancies and forwarded additional documentation to HPD. In sum, of the thirty-six apartments with suspicious changes, twenty-nine were found to raise questionable successor tenancies, three successor tenancies were approved, and four presented no issue. Of the twenty-nine apartments with questionable successor tenancies, HPD asserts that at least six are occupied by persons whose surnames may be of African-American or Hispanic origin.*fn8

There is no dispute, however, on the three facts that plaintiffs rely upon for equal protection claim. First, plaintiffs argue, and defendants agree, that the review of apartment occupancy conducted by HPD occurred in two phases. The first phase was conducted by HPD and was described by HPD as "a 100% recertification audit." Defs.' 56.1 Stmt. ¶ 44; see Pls.' 56.1 Stmt., Declaration of David M. Berger, Esq. ("Berger Decl.") ¶ 7. This phase identified twenty-six apartments as having raised questionable successor leases. All of the occupants of the apartments identified therein were Jewish. Later, despite the putative plenary coverage of the first phase audit, a second phase of auditing conducted by Kent Village occurred. HPD ordered this second phase in a letter dated June 23, 1998, instructing Kent Village to investigate and provide additional documentation on the twenty-three apartments identified and the three apartments with missing files, and "to provide the tenant files for any other apartments in which there was a successor tenancy." Defs.' 56.1 Stmt. ¶ 54; see Pls.' 56.1 Stmt., Berger Decl. ¶ 7. This second audit identified ten additional apartments with questionable successor tenancies. Six of these contained those occupants with possibly African-American or Hispanic surnames.

Second, there is agreement that a HPD-prepared memorandum dated June 19, 1998, concerning its first phase audit activities, expressly mentioned that successor occupants in certain apartments have Jewish surnames. See Pls.' 56.1 Stmt., Berger Decl. ¶ 10 & Ex. A; Defs.' 56.1 Stmt. ¶ 52 & Affidavit of Elaine Smith ("Smith Aff.") Ex. C. The memorandum states, in pertinent part, as follows:

In 13 situations, [HPD] identified questionable succession practices in which a person (or persons) who appeared to be unrelated to the primary tenant resident was added to the recertification for two years. . . . In some cases, the original tenant has a Hispanic surname and in some cases a Jewish surname. However, in all cases, the second person who succeeded as the primary resident has a Jewish surname.
In 6 situations [HPD] identified improper succession practices in which a person (or persons) who appeared to be unrelated to the primary tenant was added to the recertification for less than two years. . . . In some of these cases, the original tenant has a Hispanic surname and in some cases a Jewish surname. However, in ...

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