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Landlord & Tenant Law
State and City Prohibitions on Housing Discrimination Do Not Permit Suit Against a City
K.D. v. City of New York2025 WL 480600
AppDiv, Second Dept.
(memorandum opinion)
In action by tenant alleging discrimination on the basis of age and familial status based on the New York City Housing Authority’s failure to conduct proper lead paint inspections, the City of New York appealed from Supreme Court’s denial of its motion to dismiss the complaint against the city. The Appellate Division reversed and dismissed the complaint, holding that under the Executive Law and the New York City Human Rights Law, the city is not among the parties who might be liable for engaging in unlawful discriminatory practices.
Tenant brought this action on behalf of her son, alleging that the New York City Housing Authority (NYCHA) had falsely certified that it was in compliance with local and federal lead paint laws. Tenant alleged that the city and NYCHA had entered into a scheme for NYCHA to obtain a waiver of annual lead paint inspections, and contended that the scheme violated the state Executive Law and the City’s Human Rights Law as discrimination based on age and familial status. The city moved to dismiss the complaint against it, but Supreme Court denied the motion.
In reversing, the Appellate division noted that both statutes list the actors who might be held liable for prohibited discriminatory practices, and neither list includes any category which could include the city. As a result, the city was entitled to dismissal of the complaint against it.
Comment
Under the Fair Housing Act (FHA), unlike under the New York Executive Law and New York City Human Rights Law, the City of New York would be a proper defendant in a housing discrimination claim. Federal case law establishes that municipalities are liable under the FHA for policies or omissions that disproportionately harm families with children. In Texas Dep’t of Housing & Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015), the U.S. Supreme Court held that, under the FHA, disparate impact claims against government entities are cognizable if the plaintiff proves that a facially neutral policy predictably causes or results in a disproportionate adverse impact on a protected class.
Under Inclusive Communities, a plaintiff must show a robust causal connection between the challenged policy and a disproportionate adverse effect on a protected class. For instance, in Mhany Management, Inc. v. County of Nassau, 819 F.3d 581 (2d Cir. 2016), the court allowed the claim to proceed only because the plaintiffs plausibly alleged that a zoning decision predictably and disproportionately harmed minority residents. The Second Circuit held that the Village of Garden City violated the FHA by intentionally engaging in racial discrimination when zoning decisions effectively prevented affordable multifamily housing likely to be occupied by minorities. The court found evidence of discriminatory intent based on the sequence of events, procedural irregularities, and racially charged community opposition influencing zoning changes.
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