Opinion
105547/2008.
October 10, 2008.
Plaintiffs, Douglas E. John and Edward Signorile, move the court for an Order to Show Cause. Defendant, Lorraine Klein, asserts the court should not consolidate their action pending in the housing part of Civil Court of the City of New York with the above action. Consolidation is GRANTED. While trial continues, a preliminary injunction is also GRANTED staying the holdover proceedings against the Plaintiffs until a determination has been made in this case.
Plaintiffs are a same-sex couple who sublet Ms. Klein's apartment in Southbridge Towers. Their tenancy began on or about April 1, 2001. Plaintiffs continue to live in this apartment, as Ms. Klein resides elsewhere.
On February 1, 2001, Ms. Klein obtained a moving permit to move her belongings out of the apartment on February 5, 2001. On March 12, 2001, Ms. Klein received a moving permit for the Plaintiffs to move their belongings into the apartment on March 28, 2001. However, at the bottom of the moving permit, dated March 28, 2001, it states, "not moving in new furniture."
During November 2003, Plaintiffs applied for an apartment in Southbridge Towers. In their application, Plaintiffs contend it advised Defendant Southbridge Towers that they live in Southbridge Towers, naming Lorraine Klein as their landlord followed by her address. In January 2004, the Plaintiffs were selected by Southbridge Towers to be placed on its waiting list for an apartment. In March 2007, the plaintiffs were notified they would be processed for an apartment and would be interviewed on April 10, 2007 by Victoria.
During the interview, Victoria started looking over their documents. She commented on the Plaintiffs' organization. Victoria inquired about the bank statements submitted with the application. The Plaintiffs assert that when Victoria inquired about their bank statements and their relationship, the interview went in a different direction. Plaintiffs further allege, although she did not directly ask if the Plaintiffs were gay, she established their relationship in an indirect way. The Plaintiffs asserted that her body language and tone had changed. They further contend there was no eye contact after the questions that established their relationship. Victoria asked a few more questions, and then gave them another form to complete before she left the room. Victoria wrapped up the meeting, informing the Plaintiffs that an inspection, photograph and credit check would take place and that a money order should be ready for collection at the time of inspection.
At some point after the Plaintiffs' meeting with Victoria, Christine, from Landlord Guard, called asking basic questions such as how long have they lived at their current address, etc. She said Jacob would conduct the apartment inspection. During the inspection, Jacob noted that there was only one bed in the bedroom. He asked the Plaintiffs to sit on the sofa in the living room, right next to each other, and proceeded to take photographs. He collected the money order and left.
Defendant Southbridge Tower sent a rejection letter, dated April 27, 2007, denying the Plaintiffs' application based on their illegal subletting of Ms. Klein's apartment. The letter goes on to state that management had contacted Ms. Klein and she had agreed to return the apartment to Southbridge Towers without proceeding to court. Furthermore, this action would result in the Plaintiffs being asked to vacate the premises.
Plaintiffs appealed the rejection with the DHCR stating that Southbridge Towers discriminated against them based on sexual orientation. Southbridge responded, in a letter dated September 27, 2007, opposing the appeal based on Plaintiffs' alleged claim of succession rights. Plaintiffs allege that DHCR informed Southbridge that it failed to answer the allegation. Therefore, Defendant Southbridge sent DHCR a second answer stating Defendant Klein has given up her apartment and subletting was the issue.
In December 2007, Plaintiffs initiated an action against Defendant Klein for rent over charge in connection with the Southbridge lease, after which Ms. Klein filed a 30 day notice. The notice came seven months after the Plaintiffs shopped paying rent in April 2007. However, Defendant Klein discontinued this action. In March 2008, Klein recommenced the action to evict the Plaintiffs; approximately a year after the Plaintiffs received the rejection letter from Southbridge Towers.
On February 27, 2008, all Southbridge Towers shareholders were notified of the two-bedroom lottery. Plaintiffs allege they were informed by a representative of Southbridge that gay couples could not apply for a two bedroom, but an opposite sex couples could. Prior to the expiration of the application period, representative of DHCR advised Plaintiffs to apply for a two-bedroom apartment. Ten days later, Plaintiffs prepared a new application, but that same letter was returned unopened, marked "returned to sender refused."
In a letter dated April 17, 2008, New York State Division of Housing and Community Renewal (DHCR) informed the plaintiff that it instructed Southbridge to accept any application the Plaintiffs chose to submit for the lottery conducted for two bedroom apartment waiting list on behalf of Southbridge on April 3, 2008. If the submission is picked for a place on the two-bedroom waiting list, any determination of eligibility will be made at the time the plaintiff's name is chosen for the purchase of an available apartment.
Should the court consolidate these actions, the Plaintiffs also seek to stay the eviction. In order to obtain a preliminary injunction, movant must put forth evidence in support of a preliminary injunction staying the landlord/tenant proceedings until after this claim has been decided. "To be entitled to a preliminary injunction, a movant must establish (1) the likelihood of success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of equities in the movant's favor." See Trimboli v. Irwin, 18 A.D.3d 866, 866-7 (NY 2005) ( see also Aetna Ins. Co. v Capasso, 75 NY2d 860; First Franklin Sq. Assoc. v Franklin Sq. Prop. Account, 15 AD3d 529; South Amherst, Ltd. v H.B. Singer, LLC, 13 AD3d 515; Ying Fung Moy v Hohi Umeki, 10 AD3d 604).
Plaintiffs assert Defendant Southbridge Towers has violated N.Y. City Admin. Code § 8-107(5)(a)(1-2) which states it unlawful to deny or withhold housing accommodations based on any of the protected classes, actual or perceived. Therefore, in order to seek a preliminary injunction, Plaintiffs must put forth a prima facie case for discrimination. "In the absence of direct evidence of discrimination, a prima facie case of housing discrimination is established by using the burden-shifting framework first articulated in McDonnell Douglas v. Green, 411 U.S. 792 [(1973)]." See Hirschmann v. Hassapoyannes, 843 N.Y.S.2d 778, 780 (N.Y.Sup. 2007). ( see also Mitchell v. Shane, 350 F.3d 39, 47 [2d Cir. 2003]). The Court in McDonnell has established that the Plaintiffs must show (1) they are members of a protected class; (2) sought and were qualified to lease the premises; (3) were rejected; and (4) the housing opportunity remained available to other purchasers. Id.
Plaintiffs must first establish they are members of a protected class. The Plaintiffs have established that they are members of a protected class, sexual orientation, as they are a same-sex couple seeking housing together as a couple. New York Human Rights Law has expanded federal antidiscrimination law to include sexual orientation as a protected class as it applies to housing discrimination. N.Y. Exec. Law § 296 (5).
Plaintiffs now must show they sought and were qualified to lease the premises. In the letter sent to the Plaintiffs from DHCR, the process begins when a person submits an application. If the applicant is chosen, through a lottery, he/she is placed on a waiting list. From the waiting list, applicants are selected, and then eligibility is determined. The issue here is at the point eligibility was determined, were the Plaintiffs eligible and denied based on sexual orientation or were they ineligible and denied properly? This question is the basis for this litigation and cannot be determined here. However, the New York State Division of Human Rights (DHR) found probable cause to believe discrimination has taken place as applications were limited to two unmarried persons of the opposite sex.
Furthermore, the Plaintiffs allege they were informed by a representative of Southbridge that gay couples could not apply for a two bedroom, but an opposite sex couples could. The two remaining elements to determine whether Plaintiffs have established a prima facie case for discrimination: Plaintiffs must show they were rejected and the housing opportunity remained available to other purchasers. The nature of this waiting list is to continue on to the next applicant until Southbridge Towers finds an eligible tenant. DHCR informed the Plaintiffs if selected, from the waiting list, any determination of eligibility would be made at the time the Plaintiffs' names are chosen from the list to purchase an available apartment. The plaintiffs received a letter dated April 27, 2007, stating they were denied because they illegally sublet Ms. Klein's apartment. The Plaintiffs have provided sufficient evidence to show they were rejected and the opportunity did remain open to other purchasers.
Based on the aforementioned reasoning, Plaintiffs have put forth a prima facie case for discrimination. Furthermore, the issue as to the likelihood of success on the merits is established as the DHR has found probable cause to believe that discrimination has taken place. However, the central issue as to whether the Plaintiffs' application for a one-bedroom apartment was properly denied has not been decided and will not be adjudged until trial.
Next, the court must determine whether the Plaintiffs will suffer irreparable injury absent the granting of the preliminary injunction. If the eviction proceeding continued, the Plaintiffs will be out of a home they have shared for the last seven (7) years. Community ties that have been developed throughout the years, the lifestyle they have established and friendships created throughout their residence in Southbridge Towers all may be irreparably harmed. In essence, the Plaintiffs' way of life, their sense of community and belonging in this neighborhood may be at risk.
Furthermore, the Plaintiffs will potentially suffer the following consequence: eviction and ineligibility for an apartment in Southbridge Towers. As Ms. Klein knew or should have known based on her lease agreement with Southbridge Towers, she illegally sublet her apartment to the Plaintiffs. Moreover, the moving permit, dated March 12, 2001, suggests she concealed their moving-in by noting, "not moving in new furniture." It suggests the possibility that the Plaintiffs were unaware, at the time, they were illegally subletting Ms. Klein's apartment. If that is the case, in the interest of justice, it is unfair to penalize Plaintiffs-subtenants for Defendant Klein's wrongdoing unbeknownst to them. Based on the evidence put forth, Plaintiffs will suffer irreparable harm if the preliminary injunction is not granted.
Finally, the court performs a balance of equities. Ms. Klein commenced a holdover proceeding against the Plaintiffs due to threats by Southbridge Towers to litigate against her, to hold her liable for all the expenses associated with Southbridge Towers proceeding against the Plaintiffs. Ms. Klein admits that the only reason for the holdover proceeding was because of said threat. Southbridge owns the apartments, denied renting to Plaintiffs, and is now, requiring Defendant to Klein to evict the Plaintiffs. There is a balancing of equities in the Plaintiff's favor.
Based on the aforementioned facts and circumstances the court will grant the Plaintiffs a preliminary injunction, staying the eviction proceeding.
The Plaintiffs also seek to consolidate this action with the action pending in the housing part of Civil Court of the City of New York. "[T]here is 'a strong rule against staying a summary proceeding, or removing it, such as for purposes of a consolidation or joint trial with some proceeding in the supreme court or some other superior court.'" See Scheff v, 230 East 73rd Owners Corp., 203 A.D.2d 151,152 (N.Y.A.D. 1 Dept. 1994) ( also see Siegel, NY Prac § 577, at 909 [2d ed]). Consolidation is inappropriate where there are no common questions of law and fact. Id. (also see Earbert Rest. v. Little Luxuries, 99 A.D.2d 734, 472 N.Y.S.2d 359; J. Henry Schroder Bank Trust Co. v. South Ferry Bldg. Co., 88 A.D.2d 570, 451 N.Y.S.2d 86). Plaintiffs must set forth any basis for departure from the rule. Id.
Plaintiffs has established that the court should depart from previous decisions as the instant case is distinguishable from Scheff. In Scheff, as here, Plaintiffs-tenants do not contend that Civil Court is incapable of determining their issue. Id. (also see Parksouth Dental Group v. East River Realty, 122 A.D.2d 708, 505 N.Y.S.2d 633; Kanterv. East 62nd St. Assoc., 111 A.D.2d 26, 488 N.Y.S.2d 692; see also, Mannis v. Jillandrea Realty Co., 94 A.D.2d 676, 463 N.Y.S.2d 3). However, unlike Scheff, the Plaintiffs in this case have set forth a basis for departing from the established rule. Id.
The facts of these two matters are intertwined. Southbridge owns the apartments, denied renting to Plaintiffs, and is now, requiring Defendant Klein to evict the Plaintiffs. By requiring the Defendant Klein to proceed against the Plaintiffs, Southbridge Towers has fused both matters together as the Plaintiffs have filed suit against Southbridge for discrimination.
Furthermore, Defendant Klein has not shown how these cases are separate and distinct. Whether or not Klein discriminated is not at issue here. Rather, it is whether or not these cases would be better served if decided separately rather than together.
Defendant Klein has not provided sufficient evidence to support her contentions that consolidation would be inappropriate. Furthermore, "[w]here an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court." CPLR § 602(b). In the interest of conserving judicial resources, these cases are consolidated.
Therefore, the court orders the case before the landlord/tenant part of Civil Court of the City of New York to be CONSOLIDATED with the above action. Accordingly, the motion for preliminary injunction GRANTED.
ORDERED that the above-captioned action is consolidated for joint trial in this Court with the following action(s); Lorraine Klein v. Douglas E. John and Edward Signorile , presently in the Civil of the City of New York County of New York Housing Part under the LT index number 08N060175; and it is further
ORDERED that the Clerk of the Civil of the City of New York County of New York Housing Part shall transfer the papers on file under the LT index number 08N060175 to the Clerk of this Court upon service of certified copy of this order and payment of the appropriate fee, if any; and it is further
ORDERED that upon service of the Clerk of this Court of a copy of this order with notice of entry, the Clerk shall assign index numbers to each transferred case at no cost and shall mark his records to reflect the consolidation for joint trial, and it is further
ORDERED that a copy of this order with notice of entry shall also be served upon the Clerk of the Trial Support Office (Room 158), who is hereby directed to mark the court's records to reflect the joint trial consolidation. The parties shall in not already filed, file their respective RJI's within thirty days and proceed with the scheduled discovery
All parties are to appear for a conference on September 25, 2008 at 9:30am. It is so ORDERED.