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Timkovsky v. 56 Bennett

February 17, 2009

YEVGENVIYA TIMKOVSKY ET AL., PLAINTIFFS,
v.
56 BENNETT, LLC ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emily Jane Goodman, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Plaintiffs receive Section 8 vouchers pursuant to 42 U.S.C. §1437 et seq., and have asked their landlords, who all receive J-51 tax abatements, to accept their vouchers. The J-51 law (hereafter referred to as the "J-51 Law") contains a provision which explicitly bars certain economic discrimination by landlords who receive public benefits in the form of tax abatements (NYC Admin Code § 11-243 [k]). The landlord/defendants have refused to accept Plaintiffs' vouchers and claim that they cannot be compelled to do so because participation in Section 8 is voluntary.*fn1 They further maintain that they have not discriminated against Plaintiffs because their refusal to accept the Section 8 vouchers is attributable to the burdensome nature of the program. Subsequent to commencement of this action, numerous Plaintiffs and Defendants have settled their disputes and filed stipulations of discontinuance.*fn2

The issues presented here must be viewed against the backdrop of New York City's power to enact anti-discrimination laws whichprovide additional protections for the public, including Section 8 recipients, even where those protections compel an owner's participation in the otherwise voluntary program. This litigation involves two such anti-discrimination laws: the J-51 Law, and, Local Law 10, a recent amendment to the New York City Human Rights Law.*fn3

Despite their argument that private landlords cannot be forced to accept Section 8, Defendants concede that both the J-51 Law and Local Law 10 compel them to accept vouchers from a prospective tenant, and a current tenant, if and only if, the landlord has previously agreed to accept a Section 8 voucher from that tenant. However, Defendants argue that as Plaintiffs are current tenants, tenants in residence who have not previously been in the Section 8 program in relation to the instant housing accommodations, Plaintiffs are excluded from the protection of both laws.

The Motions

In motion sequence 002, Plaintiffs move for summary judgment against Defendants 56 Bennett, LLC, Royal Terrace Associates, 34 Realty LLC, 1560 LLC, Pinnacle Group d/b/a Lexington NY Realty, LLC and Arbern 315 Ocean Parkway, LLC. Plaintiffs seek a determination that these landlords must accept their vouchers, but do not seek damages. In motion sequence 005, Plaintiffs move for summary judgment against Defendants 231 Brightwater Court LLC, Kensington Imperial LLC, and Lichter Real Estate Number Two LLC, and, seek a default judgment against Defendants Royal Terrace Associates, 1560 LLC, Afternoon Delight Fifth Avenue Association and Fieldbridge Associates, LLC. Plaintiffs seek a determination that these landlords must accept their vouchers, but do not seek damages.

In motion sequence 005, Defendant 1560 LLC cross moves for leave to serve a late answer and for summary judgment, raising substantially similar arguments as the other Defendants (discussed infra).*fn4 Defendant Lichter Real Estate Number Two LLC (Lichter) and 231 Brightwater Court LLC (Brightwater) also cross move for summary judgment, again raising substantially similar arguments.*fn5

Local Law 10

A recent amendment to Title 8 of the Administrative Code of New York, known as Local Law 10, provides that an owner may not "refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group such a housing accommodation or interest therein...because of any lawful source of income of such person" and may not "discriminate against any person...because of any lawful source of income of such person" (NYC Admin Code 8-107[5][a][1]-[2] [emphasis added]). The term "lawful source of income includes "Section 8 vouchers" (NYC Admin Code §8-102[25]). As set forth above, Defendants argue that Local Law 10 applies only to a prospective tenant and to a current tenant, if and only if, the landlord has previously agreed to accept Section 8 from that tenant. They contend that the only "sensible" and "practical" interpretation of Local Law 10 excludes protection of a current tenant with whom the landlord had not had an existing agreement to accept Section 8 during the course of the tenancy.

The text of a statute is the clearest indicator of legislative intent, and the words of a statute should be given their plain meaning (see Flores v Lower East Side Serv. Ctr., 4 NY3d 363 [2005]). In relation to housing, Local Law 10 makes it unlawful to refuse to rent or otherwise deny "any person" a housing accommodation or interest therein and to discriminate against "any person" because of any lawful source of income, without distinction as to whether that person is a prospective tenant or tenant in residence (see NYC Admin Code 8-107[5][a][1]-[2]). As the statute itself makes no distinction between prospective and current tenants, but unambiguously protects "any person," no such intent or distinction can be inferred. Moreover, courts should not construe statutes, rules or regulations in a manner which would lead to "absurd and unexpected consequences" (see Wetzler v Roosevelt Raceway, Inc., 208 AD2d 120, 129 [1st Dept 1995]). Such a result would be reached if, for example, Plaintiffs vacated their apartments and moved back in. Defendants recognize that at that point they would be obligated to accept the Section 8 vouchers. This is an absurd result, and there is no rational reason why a prospective tenant would be protected, while a tenant in residence would not, assuming the income of both tenants is sufficiently low, a prerequisite to qualify for Section 8 assistance (see 42 USC §1437f[o][4]).*fn6

Further, the preamble to Local Law 10 specifically refers to "current tenants." Although a preamble is not part of a statute, it may be used as an aid to its interpretation (see McKinneys Cons Laws of NY, Book 1, Statutes §122). The preamble states in relevant part:

Section 1. Legislative Intent. The Council hereby finds that some landlords refuse to offer available units because of the source of income tenants, including current tenants, plan to use to pay the rent. In particular, studies have shown that landlords discriminate against holders of section 8 vouchers because of prejudices they hold about vouchers. This bill would make it illegal to discriminate on that basis.

Ignoring the reference to "current tenants," Defendants cite to the words "available units," arguing that such language evidences an intent to exclude tenants in residence because those units cannot be considered "available." They further cite the City Council's Press Room release number 024-2008, clearly not part of the law, announcing that the City Council planned to override Mayor ...


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