The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On February 4, 2010, Plaintiff Fair Housing Justice Center ("FHJC" or "Plaintiff"), along with Justin Carter ("Carter") and Lisa Darden ("Darden"), filed a complaint against Defendant Silver Beach Gardens Cooperative ("Silver Beach"), Edgewater Park Owners Cooperative, Inc. ("Edgewater Park" or "Defendant") and Amelia Lewis ("Ms. Lewis"), alleging violations of (1) the Civil Rights Act of 1866, 42 U.S.C. § 1982 (2) the Fair Housing Act ("FHA"), 42 U.S.C § 3604 (3) New York State Human Rights Law and New York State Civil Rights Law and (4) New York City Human Rights Law by selectively enforcing a requirement that purchasers obtain three references from existing Cooperative ("Co-op") shareholders as a pre-requisite to buying shares of the Co-op. On August 13, 2010 the Court denied Defendants' motion to dismiss. Fair Hous. Justice Ctr, Inc. v. Silver Beach Gardens Corp., No. 10 Civ 912 (RPP), 2010 WL 3341907 (S.D.N.Y. Aug. 13, 2010). On March 22, 2011, FHJC reached a settlement agreement with Ms. Lewis. (Settlement Agreement and Order dated March 22, 2011, ECF No. 55.) On May 17, 2011, FHJC reached a settlement agreement with Silver Beach.*fn1 (Settlement Agreement and Order dated May 17, 2011, ECF No. 60.) On September 23, 2011, Edgewater moved for summary judgment. On November 1, 2011, Plaintiffs submitted a memorandum in opposition to Defendant's motion, and on November 18, 2011, Defendant submitted a reply memorandum. Oral argument on this matter was held on January 3, 2011. For the following reasons Defendant's motion for summary judgment is denied.
Plaintiff is a non-profit organization whose mission is to ensure that all people have equal access to housing opportunities in the New York City region by eliminating housing discrimination and creating open and inclusive communities and strengthening. (Pl.'s Local Rule 56.1 Statement ("Pl.'s 56.1") ¶¶ 1-2.) One of the ways Plaintiff assesses compliance with fair housing laws is by hiring testers of different races to pose as potential renters or homebuyers and then sending them to the target entity to inquire about the process of renting or buying a home. (Pl.'s 56.1 ¶¶ 5-6.)
Defendant is a Co-op in the Throgs Neck section of the Bronx and consists of 675 single-family unattached homes. (Def's Local Rule 56.1 Statement ("Def.'s 56.1") Ex. F ¶ 3.) Defendant became a Co-op in 1988. (Id. ¶ 2.) Ms. Lewis was an independent real estate broker who operated a business called "Amelia Lewis Real Estate" that was also located in the Throgs Neck section of the Bronx. (Def's 56.1 ¶ 1.) Lewis frequently showed homes in Edgewater Park and stated that Edgewater Park made up a large percentage of her real estate business over her 45 year career. (Pl.'s 56.1 ¶ 19.) Ms. Lewis, however, was not an agent, employee or representative of Edgewater Park at the time of FHJC's investigation.*fn3 (Def.'s 56.1 ¶¶ 2-3.)
In August 2009, FHJC began an investigation into Edgewater Park based on an article in the New York Times which described Edgewater Park and Silver Beach as not "open to just anyone" and mentioned that prospective buyers were required to obtain three references from current residents. (Def.'s 56.1 Ex. O at 16; Pl.'s 56.1 ¶ 12.) Ms. Lewis was one of the real estate brokers who was referenced in the New York Times article about the two communities. (Pl.'s 56.1 ¶ 13.) In response to the New York Times article, FHJC decided to send both African-American and white testers to visit independently with Ms. Lewis to inquire about housing at Edgewater Park and Silver Beach. (Id. ¶¶ 12-13.) FHJC sought to determine whether the Co-ops three reference rule was acting as an obstacle to minority buyers. (Id. ¶ 10.)
The White Housing Testers
On September 18, 2009, a white tester, posing as a married woman with no children, met with Ms. Lewis to discuss buying a home. (Declaration of Samuel Shapiro dated October 28, 2011 ("Shapiro Decl.") Ex. 23 at 10.) Ms. Lewis informed the white tester that she would arrange for her to see five houses in Edgewater Park and one in Silver Beach, all at prices below $300,000. (Id. at 10-11.) On the same day, Ms. Lewis' husband showed the white testers a total of eight homes in Edgewater Park and one in Silver Beach, as well as various communal areas and amenities at the Co-ops. (Id. at 19.) Ms. Lewis told the white tester that the Co-ops were "very nice . . . mostly ethnic Irish, German, Italian . . . there's some Puerto Rican, not many" and that "they would love you, I can tell." (Id. at 16.) When the white tester inquired about the reference policy and informed Ms. Lewis that she did not know any residents of the Co-ops, Ms. Lewis downplayed its importance, characterizing the Co-ops' reference policies as technicalities that she would help satisfy. (Id. at 31.) Specifically, when the white tester asked Ms. Lewis about the reference policy, Ms. Lewis informed her that it wouldn't be a problem that they were new to the neighborhood, (id. at 31), that she could get references for the tester because sellers were allowed to recommend people to provide references, (id. at 15-16), that she would "ask the owner of the house" to help you with the references, and that "they [the Co-ops] know this is what happens" (id. at 31).
The African American Housing Testers
On September 29, 2009, the African-American testers, posing as a married couple, met with Ms. Lewis to inquire about homes in Silver Beach (not Edgewater Park) that were priced at or below $300,000.*fn4 (Def.'s 56.1 Ex. U, V.) Prior to the meeting, Lewis had told one of the African-American testers over the phone that she had one home available for $250,000 in Silver Beach. (Shapiro Decl. Ex. 18 at 2.) Upon meeting the African American testers in person, the following conversation ensued:
Lisa Darden: Um, we want to get, um, information about, um, your co-op you were telling me about at . . .
Amelia Lewis: Co-op in Edgewater?
Lisa Darden: In, uh, Silver Beach Gardens . . . Amelia Lewis: Silver Beach is the same.
Amelia Lewis: You have to know three people who live there. Lisa Darden: We don't know anybody that lives there.
Amelia Lewis: Then, there's no way you're going to get in there. Lisa Darden: There's no way?
Lisa Darden: You can't . . . we can't even apply?
Amelia Lewis: No, cause if you don't have three people.I was just going over this stuff with him . . .
Lisa Darden: Okay Amelia Lewis: If you don't have three people who know you.. Justin Carter: Mm-hm.
Amelia Lewis: Or say they ...