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khalil v. Farash Corp.

September 21, 2006


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


This is an action brought by three married couples on behalf of themselves and their minor children against the owners and manager of an apartment complex where plaintiffs formerly lived, alleging violations of the Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq. Plaintiffs allege that defendants discriminated against them on account of their familial status through defendants' adoption and enforcement of a rule prohibiting children from playing outdoors in the grounds and common areas, immediately adjacent to the tenants' dwellings. Defendants have moved for summary judgment dismissing the complaint, and plaintiffs have cross-moved for "partial" summary judgment on their claims based on a disparate-impact theory, i.e., that defendants' application of a facially neutral rule had a disproportionate adverse impact on families with children.


Many of the relevant facts have been set forth in this Court's prior decision denying defendants' pre-discovery motion for summary judgment, 260 F.Supp.2d 582 (W.D.N.Y. 2003), and will not be repeated at length here. Plaintiffs are three married couples, who bring this action on behalf of themselves and their minor children: Nabil and Haifa Khalil, who have three children; Jude and Eva Banahene, who also have three children; and Randall and Abby Thomas, who have four children. All the plaintiffs became tenants of defendants at various times in the 1990s, and they all resided at Chateau Square, which is part of the Briar Manor/Chateau Square housing complex ("the complex") in Brighton, New York.

Briar Manor consists of several hundred apartments, and Chateau Square comprises fifty-four townhouses. Defendants Jaylynn, Inc. and Max Farash are the owners of Briar Manor and Chateau Square, respectively. Defendant Farash Corporation ("Farash") manages the entire complex.

At issue in this case is Rule 1 of defendants' "Rules and Regulations - Townhouses", a document that is attached to each tenant's lease and which each tenant is required to sign in order to indicate his willingness to comply with the Rules. The document states that the purpose of the Rules is to provide for "the care, comfort and safety of the residents of the building in which the [tenants'] Dwelling is located, and the adjacent or surrounding grounds." Dkt. #4 Ex. D. Rule 1 states that "Tenants, Occupants and their respective guests shall not ... [u]se the surrounding grounds [i.e., the grounds surrounding the apartment buildings] as a place to congregate or allow children to play." Id. There is a playground at the complex and there are some other common areas where tenants and children are allowed to congregate, but Rule 1 prohibits children from playing in the yards adjacent to the townhouses themselves. Plaintiffs allege that Rule 1 was disproportionately enforced against families with children, and that adults who congregated near the townhouses were rarely cited for violating the rule.

All of the plaintiffs moved out of the complex on various dates in 2002. Again, the particular facts leading up to each family's leaving the complex are set forth in the Court's prior decision, but in short, defendants declined to renew the Khalils' and the Banahenes' yearly leases when they expired, chiefly because of plaintiffs' repeated violations of Rule 1. By their own admission, the Thomases moved out of their own accord when their lease expired, but they allege that they did so in part because they had been cited by defendants for violating Rule 1, and were convinced that defendants would have refused to renew their lease because of those violations.


Plaintiffs filed the complaint in this action on September 25, 2002. They allege that by making and enforcing the rule against children playing outdoors near the buildings, by refusing to renew the leases of tenants whose children have broken that rule, and by "creating a hostile living environment for families with children," defendants have discriminated against plaintiffs on the basis of their familial status, in violation of the FHA. Plaintiffs allege a violation of both 42 U.S.C. § 3604(a), which makes it unlawful "[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of ... familial status," and § 3604(b), which makes it unlawful "[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of ... familial status ... ." Plaintiffs seek declaratory relief, an order enjoining defendants from discriminating against anyone on the basis of familial status, and compensatory and punitive damages.

The Court denied defendants' pre-discovery motion for summary judgment on April 23, 2003. With respect to plaintiffs' disparate-impact claim, I stated that, "[v]iewing the record in the light most favorable to plaintiffs, the non-moving parties, plaintiffs might be able to show that Rule 1, even though facially neutral, had a discriminatory impact on children, or families with children." 260 F.Supp.2d at 589 (footnote omitted).

I also found that "for purposes of [the summary judgment] motion[,] ... plaintiffs ha[d] made out a prima facie case of disparate treatment." Id. In particular, I stated that although defendants asserted that the Khalils and the Banahenes chose to move out of the complex, "there is certainly some evidence that defendants indicated an intention not to offer any further extensions at some point." Id. (footnote omitted). I added that "even if plaintiffs were not forced to leave, they could still state a claim [under 42 U.S.C. § 3604(b)] based on discrimination that they endured during their tenancy at the complex." Id.

The Court went on to hold that defendants had proffered legitimate reasons for the existence and enforcement of the rule against children playing in the common areas around the buildings, i.e., concern for the children's safety and for the comfort and convenience of other tenants. Id. at 589-90. I also found, however, that questions of fact existed as to the ultimate issues in this case, including whether defendants' proffered reasons were a pretext for discrimination and whether some alternative to Rule 1 would serve its legitimate purposes with less discriminatory effects. I stated that "[a]fter discovery, it may well be that defendants can show a pattern of enforcement against all violators of Rule 1, but if only children are routinely prosecuted for violations, such conduct by the landlord could constitute discrimination." Id. at 591. I also stated that "[f]acts adduced through discovery may yet show conclusively that defendants' actions were reasonable and nondiscriminatory," but that "[a]t this early stage of the litigation, ... the factual disputes presented here cannot be resolved by the Court as a matter of law." Id.

Discovery in this case is now complete. Defendants have again moved for summary judgment, alleging that none of the evidence produced during discovery suggests that defendants discriminated against plaintiffs because of plaintiffs' familial status. Plaintiffs have cross-moved for summary judgment on their claims based on a theory of disparate impact. They concede that ...

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