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Swinton v. Fazekas

March 14, 2008

KATRINA SWINTON & DEIDRA ROBINSON, ON HER OWN BEHALF AND ON BEHALF OF HER MINOR CHILD JAYE STEWART, PLAINTIFFS,
v.
GEORGE B. FAZEKAS, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

ORDER AND DECISION

INTRODUCTION

This is an action for monetary damages, injunctive relief and declaratory relief brought by plaintiffs Katrina Swinton ("Swinton") and Deidra Robinson ("Robinson") as well as Robinson's minor child, Jaye Stewart (collectively "plaintiffs"), all of whom plaintiffs claim were denied housing by defendant, George Fazekas ("defendant" and/or "Fazekas") based upon familial status and race discrimination*fn1 in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. and Title VIII of the Civil Rights Act of 1968, as amended and because of their sexual orientation in violation of N.Y. Exec. Law §§ 290 et seq. Defendant has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking an Order dismissing plaintiffs' complaint. BACKGROUND

Defendant purchased 1209 Culver Road, a 2-family house, in 1984 and resided in the lower apartment until approximately 1989.

From 1985 to 1989, while living in the downstairs apartment, there were no more than two tenants who occupied the upstairs apartment. One tenant was a female with a 2 year old son who was there for approximately 12 years. However, she was asked to leave after the apartment was damaged by her puppies. As a result of the tenant's puppies, there was a urine smell in the apartment and damage to the woodwork. Another woman with a young daughter between the ages of 2 and 3 also moved into the downstairs apartment in November 2002. In addition, defendant had three college-aged females that were tenants in the upstairs apartment. He claims that he did not know their relationship to each other. Further, defendant rented to two graduate students for at least a year. Before moving out, one of the tenants asked if they could get a dog that would stay in the apartment until they moved out. The tenant explained that it would be a mature, house-broken dog. The tenants found a dog that lived in the apartment for a few weeks before they moved out. This was the only other dog that defendant could recall, aside from the puppies owned by the previous tenant.

Plaintiffs allege in the complaint that on or about October 9, 2005, Swinton responded to an online rental ad posted by defendant and that after viewing the property and talking to defendant, plaintiffs were ultimately denied a lease on October 17, 2005 for discriminatory reasons.

Swinton and Robinson's relationship began in July 2004. At that time, Robinson together with her son Jay, lived with her grandparents.*fn2 In the fall of 2005, plaintiffs were searching for an apartment in Rochester. On October 9, 2005, Swinton submitted an application online for a rental property owned by defendant.*fn3 Accordingly, the first contact defendant had with plaintiffs was when he was notified by Rent Rochester, an online rental website, that there was a prospective tenant. The rental application form submitted by Swinton indicated that the co-applicant was her girlfriend, Robinson with Jaye Stewart as the third occupant. Swinton also stated they had no pets. On the same day, Swinton received an e-mail reply to her application from defendant wherein he asked Swinton to provide more information about the other two people in her household.*fn4 Plaintiffs replied to defendant's e-mail and gave him additional information about Robinson's income and ability to pay rent. They also informed defendant that the third person in their household was a two-year old boy. Defendant and plaintiffs set an appointment to view the apartment and it was confirmed in an e-mail dated October 10, 2005.

Defendant claims that his usual procedure for renting to a tenant was to have a fair amount of dialogue with the tenant so that the tenant could get to know him and know how much he cared about the property and its appearance. According to defendant, he wanted to make sure that the prospective tenants would treat the property as their own. In addition, he was concerned about stability of employment, why the tenants wanted an apartment, the reasons they left their previous place and how they like the neighborhood, which was particularly important because it was a very busy street. Defendant, however, did not provide a written questionnaire and did not do reference checks.

Prior to the face-to-face meeting, plaintiffs and defendant had a phone conversation regarding the apartment. In that phone conversation, defendant asked Robinson about the sleeping arrangements of the plaintiffs' household. The defendant basically asked who was going to sleep in each room. Robinson explained that her son was to have one room and that she and Swinton would share the other bedroom. Defendant then stated that he did not see how that would work and asked if one of them was going to sleep on the floor. There is a dispute as to what occurred next, however Robinson claims she informed defendant that she and Swinton were in a romantic relationship and so they would share a bed. At his deposition, defendant claimed that after his phone conversation with Robinson, he did not understand that Robinson and Swinton were in a romantic relationship.

On October 11, 2005, plaintiffs met with the defendant who showed them the apartment. Swinton informed the defendant that they wanted to rent the apartment and that since the upstairs tenant previously had a dog, they were thinking about getting a puppy in the future. The defendant replied he would have to think about it and they would have to pay a bigger security deposit if they got a puppy in the future. Although he advertised the apartment as "Pets Allowed," defendant claims he did not want a puppy in the apartment. According to defendant, he asked Swinton if "there [was] anyway I can get you to re-consider?" but she was determined that if she was going to get a dog it was going to be a puppy, and that she would be getting one after they moved in. Defendant states that he perceived Swinton as inflexible on the issue of getting a puppy. Plaintiffs dispute this fact and state that at no time did either Swinton or Robinson indicate to the defendant that they were set on getting a dog. In fact, plaintiffs were searching for apartments without regard to whether or not pets were allowed and would have gone to see the apartment even if it had been advertised as "no pets."

On October 13, 2005, plaintiffs e-mailed defendant reiterating that they were very interested in the apartment and could have the security deposit by next Friday. The next day, the defendant replied that he was going to review the application and think about it over the weekend. He also indicated that at that point plaintiffs were "the strongest contenders for the lower apartment." After not hearing from defendant, plaintiffs e-mailed him once again on October 17, 2005. Defendant responded the same day informing plaintiffs that he would not be renting the apartment to them. The defendant stated in the e-mail as follows:

Katrina and Deidra -- I've given your interest in the apartment a great deal of consideration and I'm sorry yo say that I don't think it would be a good match given your particular needs. My reservations are based on past experience with dogs and I must say that I am also concerned with the added liability of a young child. I truly however do wish you success in finding a home that will best fit your needs.

George According to defendant, he was concerned about the issue of lead paint, however, he did not deny plaintiffs as tenants because of that concern, or any concern about the liability of a child. Defendant ultimately ...


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