Motion Denied

Photo © by Bernard Kleina

September 18, 2023


For a second time, New York City Administrative Law Judge Kevin F. Casey of the New York City Office of Administrative Trials and Hearings (OATH) has denied a summary judgment motion filed by Respondents Parkchester Preservation Company, LP, and Parkchester Preservation Management LLC seeking dismissal of a source of income discrimination complaint brought against them by the Fair Housing Justice Center (FHJC). The Respondents own and manage the Parkchester housing development in the Bronx, comprising 171 buildings with more than 12,000 apartments including 6,000 rental units.

Originally filed by the FHJC in December 2016, the complaint is based on a year-long testing investigation which revealed that the Respondents maintained and enforced an income requirement for rental applicants which effectively shut out applicants using subsidies to pay part or all of their rent. Housing providers in New York City are required to accept rental vouchers as a lawful source of income, which is a protected characteristic under New York State and City Human Rights Laws.

The Respondents alleged in their motion that the Human Rights Laws’ inclusion of rental vouchers as lawful sources of income is unconstitutional because the voucher programs allegedly require warrantless or unconsented government inspection of apartments.

In a decision issued on September 11, 2023, Judge Casey denied the motion, stating that OATH lacked jurisdiction to find the law unconstitutional on its face (and, in dicta, casting doubt on the merits of Parkchester’s facial constitutional argument), that Parkchester lacked standing to raise an unconstitutional-as-applied claim, and that such a claim was also not ripe for review.

The Respondents had filed a previous motion seeking to preclude FHJC’s statements of uncontested facts and requesting dismissal of FHJC’s claim of disparate treatment. Judge Casey denied those requests on March 17, 2023, stating, “[T]here is direct and circumstantial evidence that respondents discriminated based on source of income.”

“Because of Parkchester‘s delay tactics, thousands of qualified New Yorkers have been denied access to secure, stable housing,” stated FHJC Executive Director/General Counsel Elizabeth Grossman. “It’s time for this complaint to receive a full hearing.”

“We are pleased with Judge Casey’s decision to reject Parkchester’s arguments, which would have had the effect of giving landlords the right to discriminate based on an entirely hypothetical injury,” stated attorney Diane L. Houk. “We look forward to proving the FHJC’s claims at trial.” The FHJC is represented by Ms. Houk, Vivake Prasad, and Eric Abrams with the law firm Emery Celli Brinckerhoff Abady Ward & Maazel, LLP.

The FHJC’s investigation in this case was supported with funding from a Private Enforcement Initiative (PEI) grant received from the Fair Housing Initiatives Program (FHIP) administered by the U.S. Department of Housing and Urban Development (HUD).

The mission of the FHJC, a nonprofit civil rights organization, is to eliminate housing discrimination; promote policies and programs that foster open, accessible, and inclusive communities; and strengthen enforcement of fair housing laws in the New York City region.