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April 23, 2003


The opinion of the court was delivered by: David G. Larimer, United States District Judge


When the voices of children are heard on the green And laughing is heard on the hill, My heart is at rest within my breast And everything else is still.
Blake, William. "Nurse's Song. "Songs of Innocence (1789), at

Apparently not everyone shares the sentiments of the nurse in Blake's poem. In this action, the voices of children emanating from one particular "green" has led to a federal lawsuit by three families against the owners and manager of an apartment complex where those families formerly lived.

In brief, this case arises from a dispute caused by defendants' enforcement of a rule adopted by defendants and attached to each tenant's lease, prohibiting children from playing outdoors in the grounds immediately adjacent to the tenants' dwellings.*fn1 Plaintiffs, alleging that defendants thereby discriminated against them on account of plaintiffs' familial status, have asserted claims under the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq.

Defendants have moved to dismiss the complaint, or in the alternative for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Because both sides have submitted materials outside the pleadings, I will treat the motion as a motion for summary judgment. See Fed.R. Civ. P. 12(b).


I. General Background

During the relevant time period, all the plaintiffs resided at the Briar Manor/Chateau Square housing complex ("the complex") in the Town of Brighton, New York. Briar Manor consists of several hundred apartments. Chateau Square, where all the plaintiffs lived, comprises fifty-four townhouses. According to the complaint, defendants Jaylynn, Inc. and Max Farash are the owners of Briar Manor and Chateau Square, respectively. Defendant Farash Corporation ("Farash") manages the entire complex.

Plaintiffs here are three married couples, who bring this action on behalf of themselves and their minor children. One of these families is the Khalil family: husband and wife Nabil and Haifa Khalil, and their three children, Mohammed, Nadeem, and Jenna. At the time the complaint was filed in September 2002, the children were nine years, six years, and one week old, respectively. Complaint ¶ 4. The Khalis became tenants of defendants on July 1, 1997. Complaint ¶ 21. As did the other two couples, they renewed their lease annually.

Next is the Banahene family: husband and wife Jude and Eva, and their children, Francisca, Patricia, and William. The Banahene children were twelve, nine and seven years old respectively when this action was commenced. The Banahenes became defendants' tenants in 1994. Complaint ¶ 38.

The third set of plaintiffs is the Thomas family: husband and wife Randall and Abby, and their children, Bennett, Kinley, Evan, and Delaney. As of September 2002, the children were nine years, seven years, five years, and nine months old, respectively. Complaint ¶ 5. The Thomases became tenants of defendants in December 1999. Complaint ¶ 48.

When new tenants sign a lease at the complex, they are also required to sign a document entitled, "Residential Lease — Rules and Regulations — Townhouses" ("Rules"). Defendants' Notice of Motion (Docket #4), Ex. D. Rule 1 states that "Tenants, Occupants and their respective guests shall not . . . [u]se the surrounding grounds as a place to congregate or allow children to play." Id.*fn2 There is a playground and, according to defendants, some other common areas at the complex where tenants and children are allowed to congregate, but the Rules prohibit children from playing in the yards adjacent to the townhouses themselves.

Plaintiffs admit that they have allowed their children to play near the buildings, and the record shows that all the plaintiffs have received notices from defendants reminding them that this was not allowed. A full recitation of all of these notices and letters would require considerable space, but it suffices to say that these notices generally indicated that defendants' staff had either seen, or received complaints about, plaintiffs' children playing near the buildings. The notices cited noise, damage to the grounds, and danger to the children (from playing in the parking lot or near air compressors, metal grates, etc.) as reasons why such activity was not permitted, and encouraged plaintiffs to utilize the playground area if their children wanted to play outside. See Defendants' Notice of Motion, Exs. E, F and G.

Plaintiffs allege that the rule against congregating in the areas adjacent to the buildings was enforced only against families with children. They contend that adults who congregated in those areas were not cited for violating the rule. Defendants dispute this and contend that adults have also been cited for violations of the rules.

Plaintiffs do not dispute, then, that they did allow their children to play in the prohibited areas. They simply contend that defendants singled out children for enforcement of Rule 1. Eventually all the plaintiffs moved out of the complex. They all allege that they did so because of the problems between them and defendants concerning plaintiffs' children playing near the buildings. The particular facts leading up to each family's leaving the complex are as follows.

A. The Khalils

By letter dated July 3, 2002, defendants notified the Khalils that defendants would not be renewing their lease upon its expiration on July 31, 2002. Affidavit of Nabil Khalil (Docket #14), Ex. A.

After receiving this notice, Mr. Khalil called Thomas Tydings, the director of residential operations for Farash. Khalil contends that Tydings refused to give him a reason for the non-renewal notice, while Tydings states that he told Khalil that it was due to "numerous complaints in reference to his children playing in common areas." Affidavit of Thomas Tydings (Docket #8), ¶ 6. At any rate, after Khalil told Tydings that Mrs. Khalil was seven months pregnant, that the Khalils were in the process shopping for a home, and that they consequently needed more time to move, Tydings offered Khalil a one-month extension of the Khalils' lease (i.e., through the end of August), which Khalil accepted. Khalil Aff. ¶ 12; Tydings Aff. ¶ 7.

Defendants subsequently extended the Khalils' lease through the end of September as well, but by letter dated August 29, 2002, defendants informed the Khalils that Farash "[would] not be offering a third lease extension," and that the Khalils should therefore "plan to vacate [the complex] on or before September 30, 2002." Khalil Aff. Ex. B.

Mr. Khalil states that he was "shocked" to learn of this, partly because Tydings had allegedly orally promised him that the Khalils' lease would be renewed through October. Khalil Aff. ΒΆΒΆ 15, 17. He again called Tydings, and the parties agree that Tydings told him during that conversation that the reason for the non-renewal was that the Khalils' children had again been observed ...

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