OPINION

ROBERT SWEET, District JudgePage 1

The plaintiffs, Chaya and Michael Ungar, Yitty Nieman, Friedrich and Regina Weiser, Moshe Deutsch, Isaac Teller, Solomon Wollner, Shia Pinchus Schwartz, Irene Ackerman, Yehuda Stein, Solomon Werzberger, Joshua Adler, Chaim Eidlisz, Azriel Katz, Moishe Stern and Esther Schwartz (the "Plaintiffs") and the defendant New York City Housing Authority (the "Authority" or the "Defendant") have both moved for partial summary judgment under Rule 56 Fed.R.Civ.P.

These dueling motions for summary judgments are another iteration of the competition for public housing in the Williamsburg section of Brooklyn between Hasidic Jews ("Hasidim") on the one hand and principally black and Hispanic applicants on the other. It is that competition which was the subject of the litigations resulting in the consent decrees in Williamsburg Fair Hous. Comm. v. New York City Hous. Auth. and Davis v. New York City Hous. Auth. Here the named Plaintiffs challenge the operation of the Authority's Tenant Selection and Assignment Plan ("TSAP") as it affects the admission and transfer of Hasidic applicants at three Williamsburg developments: Independence Towers, Taylor-Wythe Houses, and Jonathan Williams Plaza ("the three Williamsburg developments").

Upon the facts and conclusions set forth below, the motion of the Authority is granted, and the motion of the Plaintiffs is denied.

I. PRIOR PROCEEDINGS

A. Prior Proceedings in this Action

Plaintiffs filed their complaint in this action in the Eastern District of New York on or about June 15, 2005, alleging that certain Authority practices prevent Jewish families from obtaining apartments in the three Williamsburg developments.

On December 9, 2005, the Authority moved to change venue to this District. On March 6, 2006, the motion was granted by the Honorable Raymond J. Dearie, and the action was transferred to this Court.

Discovery proceeded. The instant motions were marked fully submitted on June 18, 2008.

B. Prior Related Proceedings

In 1976, the Williamsburg Fair Housing Committee filed a putative class action against the Authority and others, alleging among other things that the Authority had discriminated against non-white (black and Hispanic) families when renting apartments in the three Williamsburg developments. The United Jewish Organizations of Williamsburg, Inc., representing white families applying for Williamsburg housing, intervened in the suit as a defendant and a third-party plaintiff. The suit was settled by the entry of a consent decree by the Honorable Charles H. Tenney, in May 1978 ("Williamsburg consent decree"). When Judge Tenney died in 1994, the Williamsburg consent decree was transferred to this Court.

Among its injunctive provisions, the Williamsburg consent decree prohibited the Authority from any preferential treatment based on religion at the three Williamsburg developments.

This Court presided over lengthy and bitter litigation under the Williamsburg consent decree from 1995 to 2005, focusing on the plaintiffs' allegations that the Authority discriminated in favor of Hasidic families in the three Williamsburg developments. The litigation ended in a settlement agreement that terminated the consent decree. See Williamsburg Fair Hous. Comm. v. New York City Hous. Auth., No. 76 Civ. 2125 (RWS), 2005 WL 736146, at *3 (S.D.N.Y. Mar. 31, 2005).

Representatives of the Hasidic Jewish community in Williamsburg participated in the discussions leading to the settlement agreement, and the United Jewish Organizations of Williamsburg, Inc., not a party in this action, signed the settlement as a party.

In January 1990, The Legal Aid Society filed a class action suit against the Authority, alleging that the Authority had discriminated against black and Hispanic applicants for public housing in its tenant selection and assignment policies, with the result that more than 30 of its developments were disproportionately white.

The Department of Justice ("DOJ") filed a parallel action against the Authority, and the two cases were consolidated asDavis v. New York City Hous. Auth., Nos. 90 Civ. 628, 92 Civ. 4873 (PNL) (S.D.N.Y.).

The Davis plaintiffs objected to the Authority's admissions policies primarily on the grounds that they led to the concentration of racial and ethnic groups into certain developments.

The Davis consent decree was approved by the Honorable Pierre N. Leval in December 1992. See Davis v. New York City Hous. Auth., 90 Civ. 628 (PNL), 1992 WL 420923 (S.D.N.Y. Dec. 30, 1992). When Judge Leval was elevated to the Court of Appeals for the Second Circuit in 1993, the Davis consent decree was transferred to this Court.

As part of the decree's injunctive relief, the Authority agreed to implement a new TSAP to avoid the concentration of racial and ethnic groups into certain developments. Id. at *3.

The TSAP limits most applicants to a choice among developments that actually anticipate vacancies within six to nine months, regardless of the applicant's desire to live in a particular neighborhood or a particular development.

Emergency applicants and applicants for transfer to scarce "larger apartments" without such apartments in their development do not select a particular development but select their preferred borough and are placed on a borough-wide list and offered the first appropriate vacancy within their preferred borough. Applicants make either their development choice or their borough choice only after they have been interviewed and found eligible for public housing.

Before the Davis consent decree was approved, the Hasidic community of Williamsburg submitted a comment opposing features of the TSAP that would limit the ability of Hasidic families to choose the three Williamsburg developments. In his decision approving the Davis consent decree, Judge Leval considered and rejected the objections of the Williamsburg Hasidic community.

In 1996, the Authority sought to amend the TSAP to add a "working family preference," and to change its definition of "smaller apartments" from two bedrooms or fewer, to four bedrooms or fewer. The Legal Aid Society objected to both amendments. In 1997, the second amendment was approved and the working family preference was adopted with one exception. Authority developments that were more than 30 percent white were deemed "segregated," and the Authority was barred from making any change to the TSAP that would "perpetuate segregation" by slowing the decrease in the number of white families at any of the "segregated" developments. It was also determined that the working family preference would "perpetuate segregation" at the three Williamsburg developments. See Davis v. New York City Hous. Auth., 90 Civ. 628 (RWS), 1997 WL 407250 (S.D.N.Y. July 18, 1997); 1997 WL 711360 (S.D.N.Y. Nov. 13, 1997); 60 F. Supp. 2d 220 (S.D.N.Y. 1999); 103 F. Supp. 2d 228 (S.D.N.Y. 2000);affirmed in part and reversed in part, 278 F.3d 64 (2d Cir. 2002); cert. denied, 536 U.S. 904 (2002).

The Davis action was terminated on consent.

II. THE FACTS

The facts have been set forth in the Authority's Rule 56.1 Statement, the Plaintiffs' Response, the Plaintiffs' Rule 56.1 Statement, and the Authority's Response. The facts are undisputed except as noted below.

A. The Parties

Plaintiffs are seventeen Orthodox Jews who reside in the Williamsburg section of Brooklyn. Each has alleged that they reside in Williamsburg because it affords them and their families proximity to the basic necessities of Jewish living, i.e., synagogues, yeshivas, and stores that feature products they need to carry out their religious observance and way of life, and that they cannot live outside of Williamsburg without substantially burdening their religious observance and practice. Plaintiffs claim that since they cannot travel by car or train or bus on the Sabbath, they must reside within walking distance of their synagogues and since their children cannot attend public schools, they must reside within reasonable proximity to the yeshivas available in their communities.

The Authority is a government agency which annually receives substantial financial assistance from the federal government and operates public housing pursuant to the dictates of the Federal Housing Act of 1937. The Authority operates three large housing developments in the Williamsburg neighborhood: Taylor-Wythe, Independence Towers and Jonathan Williams Plaza.

Arlene Campana ("Campana") administered the Authority's Application and Tenancy Administrative Department from 1998 to April 2008. She previously served as Deputy Director of that department, starting in 1990.

The Authority has 181,000 units and a vacancy rate of 5-6% over the course of a year. It has a waiting list of about 127,000 for public housing and receives 81,000 new applicants each year.

B. The Tenant Selection Process

The TSAP became effective in 1992, replacing a management manual that spelled out the rental process at the development level. The most recent approved iteration of TSAP contains no provision for religious accommodation.

Under the current system for tenant selection and assignment, a prospective tenant is directed to make an in-person application at a Borough Office or to mail an application to a post-office box. Upon receipt of an application, the Borough Office sends it to a central location, where it is reviewed to determine whether the person is income eligible. Certain information about the applicant is then entered into the computerized preliminary waiting list.

The application asks each applicant to identify two boroughs where he/she would prefer to reside. If an applicant does not indicate any preference, the Authority enters the borough of current residence as the applicant's preference. The Authority enters racial/ethnic information along with other basic information about each prospective applicant. Each applicant is given a priority from 1-10. The current application has no place where a prospective tenant can indicate a need for housing in a particular part of the city due to religious needs.

After an applicant's information is entered into the computer, he/she must wait until selected for an eligibility interview. A person with a higher priority will likely be interviewed sooner than one with a lower priority, though other factors like borough choice and family size may influence the time between application and interview. When a vacancy comes up, the Authority calls in a number of applicants who requested that borough, need that room size and have priority. At the interview, the Authority confirms the family composition, income, citizenship and priority.

According to the Plaintiffs, the Authority has a separate process for "borough choice" applicants, who are typically called in due to a housing emergency or their large family size. Large families (those in need of seven rooms or more or five or more bedrooms) are not given the chance to specify developments of choice, merely boroughs. This is denied by the Authority.

According to the Plaintiffs, the Authority tells such families that they will be considered for any vacancy in any borough project suitable for their large family. This is denied by the Authority.

After the paper processing of their applications, applicants with smaller families found eligible after interview are provided lists of the developments available in the boroughs they select in which vacancies are anticipated and make a selection from that list (the "Guide to Anticipated Vacancies"). The list is supposed to be good for a period of six months. The applicant is supposed to choose one development from all those available. Once the applicant has made that selection, he/she is taken off the waiting lists for all other developments. If an applicant selects a development and then rejects a specific apartment that becomes available in that development, the application is declared "dead." Likewise, if an applicant called in for an interview does not choose to reside in any of the listed apartment buildings, the application is deemed "dead."

Campana does not keep track of the racial/ethnic composition of the Authority buildings, nor does her department have any responsibility for insuring compliance with racial guidelines in tenanting.

According to the Plaintiffs, decisions as to who will occupy a particular unit are made at the development level; i.e. the specific building must choose from the list of prospective tenants sent by Campana's unit. This is denied by the Authority.

At the building level, decisions as to who will obtain housing are not influenced by race or national origin. Campana's unit does not take race or national origin into account in sending potential applicants to a building.

Transfer from one development to another is only permitted for certain reasons. Among these is the need for child care or health care. Religious accommodation is not a justification for inter-development transfer. Any inter-development transfer must first be approved at the building level.

According to the Plaintiffs, for large families, only intra-development transfers are permitted. This is denied by the Authority.

According to the Plaintiffs, the Authority allows applicants for housing and for transfer to specify a borough of preference and, for families needing three or fewer bedrooms, to specify the project in which they wish to reside, but does not permit prospective tenants who require four or more bedrooms to specify housing developments where they either wish or need to live or cannot or do not want to live. This is denied by the Authority.

The Authority policies apply to religious tenants or prospective tenants, and no exception applies for persons with a religious need for accommodation.

According to Campana, a Jewish applicant is not allowed to specify a particular building and stipulate that he/she will remain on the waiting list as long as it takes to get into that building without risk of being dismissed from the waiting list for refusing to live in other areas. In explaining why a Jewish family is not allowed to wait for an opening in a specific building, Campana contended that the Authority had a need for applicants to fill vacancies.

According to the Plaintiffs, in light of the numerosity of people on the waiting list, this fear is groundless because a Jewish applicant does not "provide a realistic tenant" for buildings outside of Williamsburg. This is denied by the Authority.

C. The Objections to the TSAP

Representatives of the Hasidic community in Williamsburg have made known to the Authority since at least 1992 their objections to the TSAP on the basis that it insufficiently accommodates their religious practices and has the effect of depriving otherwise qualified observant Jews of housing opportunities. In March 1996, counsel for a group of Orthodox Jewish Hasidic families wrote Chairman Ruben Franco complaining that the TSAP violates the constitutional and statutory rights of his clients.

According to the Plaintiffs, Hasidic Jews must live within walking distance of their synagogues. Travel by car, bus or train on Sabbaths and holidays is prohibited, a ritual bath must be within walking distance of the home, and dietary needs require purchase of kosher foods and other religious supplies within walking distance.

According to the Plaintiffs, Hasidic children are educated in yeshivas located within their neighborhoods, Hasidic families need religiously and culturally appropriate day-care services, the staff must speak Yiddish, and religious law must be strictly observed.

According to the Plaintiffs, religious obligations to elderly parents require Hasidic Jews to live near their elderly parents, and when a parent reaches the age that he/she needs assistance in carrying out religious duties, at least one child must live nearby to assist.

Under the TSAP, if Hasidic families who apply for large apartments are offered and reject two apartments in the same borough, they are stricken from the list of qualified applicants. The Authority does not recognize that Hasidic families suffer "undue hardship" if they are forced to live outside Williamsburg.

According to Plaintiffs, since 1993 no Orthodox Jewish family has received a public housing unit from the Authority in the Williamsburg projects. This is disputed by the Authority. D. Applicants for Housing

The first group of Plaintiffs consists of applicants for housing in the three Williamsburg projects.

Yitty Nieman last applied for public housing in 1998, and that application expired in 2000.

Moshe Deutsch ("Deutsch") last applied for public housing in 1999 and his application expired in February 2002 before he was found eligible. In 2001, Deutsch rented a private apartment through the Authority's Section 8 program.

Deutsch is a Hasidic Jew who is married, has eight children and has lived with his family at 563 Flushing Avenue since January 2005.

According to the Plaintiffs, Deutsch has qualified for public housing and has been seeking public housing since at least November 7, 1991, the date of his initial application on file with the Authority. This is denied by the Authority.

When Deutsch originally applied for public housing, he resided at 309 Hewes Street in Williamsburg. Deutsch reported on his initial application that he was married, had three children and wished to move somewhere else in Williamsburg because "apartment is very small." His application was later updated, listing the additions to his family and the need for additional room. The Authority has never offered Deutsch a public housing unit in Williamsburg.

On March 23, 2001, the Leased Housing Department of the Authority confirmed that the Department of Housing Applications had found Deutsch eligible for the Section 8 Housing Assistance Program and advised him that the Authority was prepared to start the process "that will entitle you to receive rental assistance under this program." Before sending this letter, the Authority personnel completed a questionnaire assessing the Deutsches' eligibility. In July 2001, the Authority commenced subsidizing rental payments for the Deutsches' apartment through Section 8. The total monthly rent was $754, with the Authority paying $523.

Effective January 1, 2005, the Deutsch family moved to a five bedroom apartment at 563 Flushing Avenue. The Authority payed a monthly rent subsidy of $1,117.00 for this housing and the Deutsches payed $533/month. The Deutsches continue to live in this apartment with the Authority paying $1,279 per month in rental assistance. In 2005, the family's share of the rent was $533 per month or $6,396 per year, which was 50% of the family income of $12,795. As of October 1, 2006, Deutsch signed a two-year lease at a monthly rent of $1,818.

According to the Plaintiffs, Deutsch rejected one small apartment offered by the Housing Authority in a neighborhood outside Williamsburg because residing there would have substantially interfered with the practice of his religion. This is denied by the Authority.

Solomon Wollner ("Wollner") is a Satmar Jew who is married and has eight children, two of whom are married and out of his household. Wollner first applied for public housing before 1987. He last applied for public housing in 1999, and his application expired in May 2002 before he was reached for an eligibility interview.

According to the Plaintiffs, between 1990-1993, the Authority offered Wollner an apartment in the Bedford-Stuyvesant section of Brooklyn, about 25-30 blocks from Williamsburg, and Wollner declined this offer because accepting it would have substantially interfered with his family's practice of their religion. This is denied by the Authority.

According to Plaintiffs, on several occasions after 1993, Wollner went to housing authority offices at Taylor Homes in Williamsburg and the Authority's agents advised him "that they're not accepting applications." Wollner ceased making these efforts in 1999.

According to the Authority's records, Wollner applied for public housing in April 1999 and was purged from the Authority records on May 20, 2002. The reason for the purging was not stated.

According to the Plaintiffs, Wollner is still interested in obtaining appropriate public housing.

Irene Ackerman ("Ackerman") applied for public housing in 2002; her application was deemed "dead" because she failed to appear for an eligibility interview. She applied again in 2004 and has not been reached for an eligibility interview on her 2004 application.

Yehuda Stein ("Stein") applied for public housing in 2004, and was not reached for an eligibility interview. According to the Plaintiffs, Stein is a 31-year old Hasidic Jew who lives with his wife and four young children in private housing in Williamsburg. Stein and his wife applied for public housing in 1998 and again on March 18, 2004. According to Plaintiffs, starting sometime in 1999 and until 2004-05, Stein resided in a public housing unit at 190 Marcy Avenue in Williamsburg, which unit was rented by another family who lived there with Stein and his wife and children and to whom he paid rent.

According to the Plaintiffs, in August 2002, by letter, the Authority offered Stein a public housing unit in Harlem. This is denied by the Authority. According to the Plaintiffs, Stein did not have any interest in this apartment, explaining that he wanted an apartment in Williamsburg.

Since his application of March 2004, Stein has not been called for an interview.

Moshe Stern ("Stern") has been placed on the waiting list for an apartment at Tompkins Houses in Brooklyn. Whether he was willing to accept an apartment at that development is disputed.

According to the Plaintiffs, Stern is a Hasidic Jew who lives with his wife and four children in private housing in Williamsburg. In 1999, Stern qualified and applied for a handicapped-accessible public housing unit in Williamsburg that would accommodate the needs of his second child. The Authority offered Stern handicapped accessible housing outside of Williamsburg. According to the Plaintiffs, Stern rejected this offer because accepting it would have substantially interfered with his ability to practice his religion.

E. Tenants Seeking Transfers

The second group of plaintiffs consists of nine families: Chaya and Michael Ungar (a/k/a Mechl Unger), Friedrich and Regina Weiser, Isaac Teller, Shia Pinchus Schwartz, Solomon Werzberger, Joshua Adler, Chaim Eidlisz, Azriel Katz, and Esther Schwartz, who are tenants of the three Williamsburg developments, some of whom are seeking transfers to "large apartments" (defined as five bedrooms or more).

Large families seeking transfers must first go on the waiting list for a large apartment in their own development if any are available. Large families who have been on the waiting list for a large apartment for two years have the option of going on the borough-wide waiting list. Large families in developments with no large apartments go on a borough-wide waiting list.

Chaya and Mechl Unger do not have a "large family" (needing five bedrooms or more). Pursuant to the Authority's occupancy standards, families needing five bedrooms or more are families of nine or more persons. The Unger family consists of only two people.

Friedrich and Regina Weiser (the "Weisers") are Hasidic Jews who reside on the 15^th floor in Williams Plaza, a public housing project in Williamsburg. According to the Authority's records, the Weisers are also not a "large family." The family never consisted of nine or more persons, and now consists of only five persons.

According to the Plaintiffs, with their five children, the Weisers have resided in a two bedroom apartment on the 15th floor of a public housing building since 1985. This is denied by the Authority.

According to the Plaintiffs, on January 1, 1987, the Weisers sought an intra-project transfer because of Weiser's heart condition and overcrowded conditions and on December 29, 1989, made another request for transfer, supported by a note from Dr. Leonard Steinfeld of the Mt. Sinai School of Medicine who noted that Mr. Weiser had moderately severe heart disease and that he had advised Weiser to "refrain from climbing stairs to preserve his current, but impaired, state of cardiac function."

On February 20, 1990, the Manager of Williams Plaza, Asaro ("Asaro"), noted that "tenant requires a 5 room apartment due to overcrowding. There are very few 5 room vacancies at Williams Plaza. Also tenant requires a transfer to a lower floor due to severe Aortic Regurgitation and Wolf Parkinson White Syndrome. Doctor's letter on file." Two days later, Asaro received a note from the Management Department of the Brooklyn West District which stated, "no chance of 5 rooms in Indep or Taylor-Wythe." On July 2, 1990, Dr. Steinfeld submitted a letter which indicated that Weiser required "surgical replacement of his aortic valve." The doctor strongly recommended against Weiser's climbing stairs. The record shows no action taken to deal with this medical situation.

According to the Plaintiffs, in April 2003, management advised Weiser that a decision was made not to transfer him. This is denied by the Authority.

The Authority's records show that Weiser submitted "updated medical record on his request to be moved to a lower floor" in June, 1993. On November 18, 1993, Weiser's physician advised that he had now had cardiac surgery and was

markedly limited in his exercise capacity and therefore requires special consideration regarding his living conditions. He certainly cannot climb more than two flights of steps. He has been advised to either live on the first or second floor of any walk-up building, or he must reside in an elevator building. Because of his religious convictions he cannot and will not climb steps on the Sabbath which confines him to his apartment on that day each week.

The Authority's records show further conversation between its managers concerning the Weiser transfer request on May 24, 1994, and reflect no further mention of the transfer issue until February 6, 1998, when a transfer was denied.

In June 2004, Weiser again requested an intra-development transfer. The request reads, "Friedrich Weiser is disabled with a heart condition. It is dangerous to his health [to] climb stairs, especially so many floors. Family is severely overcrowded." At the time, the family of six continued to live in a two bedroom apartment. According to the Authority's records, the request for intra-development transfer was entered in TSAP on June 22, 2004, after being approved by a manager.

According to the Plaintiffs, since June 22, 2004, at least 18 apartments of 3 bedrooms or more have been filled at considerably lower floors at Williams, by a preponderance of Hispanic families, though the column showing race/ethnicity is not completed in the Authority's management turnover log. This is denied by the Authority.

Plaintiff Isaac Teller ("Teller") is a Hasidic Jew who is married and has eight children. Since 1988, with his family, Teller has resided in Unit 9B of the Taylor-Wythe Homes, 70 Clymer Street, a public housing development in Williamsburg.

According to the Plaintiffs, on several occasions Mrs. Teller sought a transfer to a larger housing unit by going to the management office at Taylor-Wythe and making a request, but never received an application to fill out.

According to the Plaintiffs, the Authority's agent did contact Mrs. Teller and inquire whether she would accept a five bedroom apartment in Manhattan. This is denied by the Authority.

According to the Plaintiffs, Mrs. Teller rejected this possibility because accepting it would have substantially interfered with her family's practice of their religion and Teller has never been offered any other transfer.

Plaintiff Shia Pinchus Schwartz ("Schwartz") is a Hasidic Jew who resides in a three bedroom public housing unit in Independence Tower at 125 Taylor Street in Williamsburg, is married and has eleven children, nine of whom live with him and his wife in this apartment.

According to the Plaintiffs, Schwartz has applied for a transfer to a larger apartment but Defendant never offered him one. This is denied by the Authority. The Authority's file shows no such application and there is no note of any such inquiry.

According to the Authority's records, the Schwartz family has not submitted a written transfer request, and consequently was never placed on any transfer waiting list. According to the Plaintiffs, an application was made but the file contains no evidence of it.

According to the Authority's records, Solomon Werzberger does not have a "large family." The family never consisted of nine or more persons. Furthermore, they are no longer the Authority's tenants. In 2006, they rented a private apartment through the Authority's Section 8 program.

Plaintiff Chaim Eidlisz ("Eidlisz") is a Hasidic Jew who has lived in a public housing unit in Williamsburg for twenty years. Currently, Eidlisz lives with his wife and twelve children in a three bedroom apartment.

According to the Plaintiffs, despite applications, the Authority has never offered Edilisz and his family a larger apartment in Williamsburg, although Eidlisz did reject the Authority's offer of a slightly larger apartment in the Greenpoint section of Brooklyn because moving to that neighborhood would have substantially interfered with the practice of his family's religion. This is denied by the Authority.

According to the Authority's records, the Eidlisz family has not submitted a written transfer request, and consequently was never placed on any transfer waiting list.

The Authority's file contains no application for transfer to a larger unit after 1988.

According to the Authority's records, the Azriel Katz family is not a "large family." The family never consisted of nine or more persons. They are no longer the Authority's tenants and in 2005 they rented a private apartment through the Authority's Section 8 program.

According to the Authority's records, Esther Schwartz lived alone after the death of her husband in 2003. Ms. Schwartz herself has now passed away.

The waiting times for "large apartments" in Williamsburg are not appreciably different at the three Williamsburg developments. While the Authority does not keep data on its tenants' religions, the names on the waiting lists indicate that all the families on those lists are Hasidic Jewish families currently living in the three developments. Hasidic Jewish families are competing with each other for these few apartments.

Large apartments in the three Williamsburg developments, defined as 7 or 8 rooms, are occupied almost entirely by other Jewish families.

In the 16 years since the TSAP was implemented, there have been only two vacancies in the 56 "large apartments" in the three Williamsburg developments. Of those 56 "large apartments," 53 are currently occupied by Jewish families. When each of the two vacancies occurred, both apartments went to Hasidic Jewish families living in the developments.

The three Williamsburg developments are all more than 30 percent white.

III. THE SUMMARY JUDGMENT STANDARD

Summary judgment is granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Commc'ns, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004). The courts do not try issues of fact on a motion for summary judgment, but, rather, determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

"The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish [its] right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Resid. Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted).

In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). However, "the non-moving party may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that its version of the events is not wholly fanciful." Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) (quotation omitted).

IV. THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IS DENIED

The Plaintiffs seek summary judgment on their claim under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 et seq. ("RFRA"). Plaintiffs contend that the Authority's admission and transfer policies function in such a way that Hasidic applicants are sometimes only offered public housing outside of Williamsburg, in neighborhoods in which they cannot live on account of their religious beliefs and practices. If an applicant rejects two such apartments, he/she is removed from the Authority's waiting list. Plaintiffs argue that the policies thus discriminate against Hasidic applicants, burdening their religion in violation of RFRA. Plaintiffs seek an order granting Plaintiffs an accommodation that allows Hasidic applicants to indicate a preference for the three Williamsburg developments at some point in the application process, and maintain them on the waiting list for those developments until an apartment in one of the three developments becomes available.

The Authority argues that because it is a state entity, RFRA does not apply.

In Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872 (1990), the Supreme Court held that "generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest". Id. at 886 n. 3. The Court reiterated this principle in Church of the Lukumi Babulu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).

In 1993, Congress responded to the Smith decision by passing RFRA. The text of 42 U.S.C. § 2000bb-1 is the same today as when it was passed:

§ 2000bb-1. Free exercise of religion protected

(a) In general. Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person —

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

As originally passed, RFRA defined "government" to include "a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State". 42 U.S.C. § 2000bb-2 (1993). The original act also provided that it applied "to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993." 42 U.S.C. § 2000bb-3(a) (1993).

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held RFRA unconstitutional as applied to states and their subdivisions because, by explicitly seeking to overturn the Smith decision, Congress was not "enforcing" the provisions of the Fourteenth Amendment, but attempting to determine what constitutes a constitutional violation. Id. at 519, 532. The Supreme Court noted that "[p]reventive measures prohibiting certain kinds of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional." Id. at 532. However, "RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry," id. at 530, and was therefore beyond the scope of Congress' authority under the Fourteenth Amendment.

In 2000, Congress responded to the Boerne decision by amending RFRA to remove all references to states and their subdivisions. Thus, whereas the definition of "government" originally included "a State, or a subdivision of a State", the new version substituted the term "covered entity" which is defined as the District of Columbia, Puerto Rico, and United States territories and possessions. See 42 U.S.C. § 2000bb-2 (2000). Similarly, whereas 42 U.S.C. § 2000bb-3 originally declared that RFRA "applied to all Federal and State law, and the implementation of that law," it now limits its application to Federal law and its implementation.

The Plaintiffs maintain that RFRA nevertheless applies to the Authority because the Authority receives substantial capital and operating funds from the United States. The Plaintiffs argue that the Authority is therefore "an instrumentality of the federal government," and that there is a "Spending Clause nexus" between the Authority and the federal government. Pl. Reply 9. The Plaintiffs have offered no authority for the novel proposition that through receipt of federal funding, a state agency becomes an "instrumentality of the federal government." In any event, an interpretation of RFRA that permits this kind of back-door application to the states runs afoul of Boerne.

In seeking to apply RFRA to the states, Congress relied on its power, provided by section 5 of the Fourteenth Amendment "to enforce, by appropriate legislation, the provisions of this article." As described above, Boerne held that RFRA did not "enforce" the provisions of the Fourteenth Amendment, but attempted to determine what constitutes a constitutional violation, and was therefore unconstitutional as applied to the states. 521 U.S. at 519, 532. In 2000, Congress amended RFRA to remove all references to state and local governments. Whether Congress would have authority under the Spending Clause to regulate the Authority is not at issue. Because the Authority is an agency of the City of New York, and RFRA applies only to the federal government, the Plaintiffs' motion for summary judgment on its RFRA claim must be denied.

V. THE AUTHORITY'S MOTION FOR SUMMARY JUDGMENT IS GRANTED

1. Defendant Has Not Established a Statute of Limitations Defense

42 U.S.C. § 3601et seq. A. Summary Judgment is Granted on the FHA Claim

First, the Authority asserts that Plaintiffs' FHA claim must be dismissed because Plaintiffs fail to allege that the challenged policies denied them housing within the applicable limitations period. The statute of limitations applicable to actions brought under the FHA is two years, running from the occurrence or termination of an alleged discriminatory housing practice. See 42 U.S.C. § 3613(a)(1)(A).

Under federal law, a claim generally accrues once the "plaintiff knows or has reason to know of the injury which is the basis of his action." Singleton v. New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981) (quotation omitted). "When a plaintiff experiences a continuous practice and policy of discrimination, however, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (quotations omitted). "While discrete incidents of discrimination that are not related to discriminatory policies or mechanisms may not amount to a continuing violation, a continuing violation may be found where there is proof of specific ongoing discriminatory polices or practices. . . ." Id. at 704 (citation omitted). The Supreme Court has held that the "continuing violation" doctrine applies to the FHA. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81 (1982).

The Authority does not dispute the applicability of the continuing violation doctrine, but asserts that Plaintiffs have adduced no evidence that any of them have been injured by the challenged policies on or after June 15, 2003. However, Plaintiffs need not make such a showing to survive the instant motion. Rather, the burden is on the Authority to demonstrate that none of the Plaintiffs have been injured by the challenged practices during the relevant time period. The statute of limitations is an affirmative defense as to which the defendant has the burden of proof. See Novella v. Westchester County, 443 F. Supp. 2d 540, 545 (S.D.N.Y. 2006). On the record before the Court, it is not clear when Plaintiff Stern was required to select from the list of developments in the Guide to Anticipated Vacancies. Similarly, there is no evidence with regard to the time period during which Plaintiff Adler "has sought transfer to a larger apartment without success," when "[the Authority] placed Adler on a waiting list," Complaint ¶¶ 46-47. The parties dispute whether Plaintiffs Teller and Eidlitz were offered, and rejected, apartments outside Williamsburg, and it is not clear from the record before the Court when these alleged offers were made. Questions of fact therefore remain as to whether Plaintiffs Stern, Adler, Teller and Eidlitz's alleged injuries occurred during the relevant period.

2. Defendant Is Entitled to Summary Judgment on the FHA Claim

The FHA makes it unlawful "[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a). "An FHA violation may be established on the theory of disparate impact or one of disparate treatment." LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995). The Plaintiffs contend that the Authority's failure to provide applicants for public housing with the option to designate the three Williamsburg projects has a disparate impact on the Hasidic community. Pl. Reply 4.

"A disparate impact analysis examines a facially-neutral policy or practice, such as a hiring test or zoning law, for its differential impact or effect on a particular group." Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926,933 (2d Cir. 1988). "Under disparate impact analysis . . . a prima facie case is established by a showing that the challenged practice of the defendant `actually or predictably results in . . . discrimination; in other words that it has a discriminatory effect.'" Id. at 934 (quoting United States v. City of Black Jack, 508 F.2d 1179, 1184-85 (8th Cir. 1974)); see also Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565, 575 (2d Cir. 2003). "A plaintiff has not met its burden if it merely raises an inference of discriminatory impact. Furthermore, the plaintiff must show a causal connection between the facially neutral policy and the alleged discriminatory effect." Id. (citation omitted). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to "prove that its actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect." Id. at 936.

Plaintiffs' only factual submissions in support of their disparate impact claim are two sworn submissions from concerned citizen Sol Lieser, who resides in Independence Towers. Lieser's submissions rely on his personal knowledge and his "study of the issues involved." Lieser Aff. ¶ 1. Lieser asserts that "very few" Hasidim have lately moved into the three Williamsburg developments. Id. ¶ 9. Lieser also asserts that in the last ten years, no new Hasidic family has received housing in Independence Towers, and that based on his count, the percentage of "white" tenants is less than 30%. Lieser Reply Aff. ¶ 3. He estimates that the same is true of the other Williamsburg developments. Id.

Lieser's impressions are contradicted by the Authority's records. As discussed below, the percentage of Hasidic tenants in each of the Williamsburg developments is significantly greater than 30%. Further, the turnover logs for the Williamsburg developments indicate that since 1998, four new Jewish families have rented apartments at Independence Towers, three new Jewish families have rented apartments at Taylor-Wythe Houses, and ten new Jewish families have rented apartments at Williams Plaza. See Goodman Reply Decl. ¶ 3, Ex. A; Lam Aff., Ex. K.

However, even if Lieser's accounts were accurate, they are not sufficient to demonstrate disparate impact. To prevail on a theory of disparate impact, there must be some evidence that the Authority's policy has resulted or will result in under-representation of Hasidim in public housing. See Hack, 237 F.3d at 91. Statistics is a common tool used to demonstrate such discrimination. "Although there may be cases where statistics are not necessary, there must be some analytical mechanism to determine disproportionate impact." Tsombanidis, 352 F.3d at 576. "Whether using statistics or some other analytical method, plaintiffs must also utilize the appropriate comparison groups. They must first identify members of a protected group that are affected by the neutral policy and then identify similarly situated persons who are unaffected by the policy." Id. at 576-77. For example, evidence demonstrating that Hasidim make up a significantly larger percentage of applicants for public housing than residents would show that Hasidim are under-represented in public housing. There is no such evidence in the record.

In fact, the only statistical evidence in the record demonstrates that Hasidim are significantly over-represented in the three Williamsburg developments. As of 1997, white families constituted only 10% of the Authority's applicant pool. Davis v. New York City Hous. Auth., 90 Civ. 628 (RWS), 1997 WL 407250, at *4 (S.D.N.Y. July 18, 1997). Nonetheless, the Authority's records indicate that white Jewish families constitute approximately half the families at the three Williamsburg developments, and are by far the largest ethnic group in those developments. The Authority's Resident Data Book, showing "Characteristics of Residents as of June 1, 2005," reports the following racial composition for the three developments:Development White Black Hispanic Asian Other

The Authority's records also demonstrate that large apartments in the three developments are currently occupied almost entirely by Jewish families, and that all families on the waiting lists for apartments of seven rooms or more in the three Williamsburg developments are Hasidic families currently living in those developments. This fact alone justifies dismissal of the claims related to the Authority's transfer policy for large families.

The Court of Appeals has recognized that a disparate impact claim can also be supported by a "more qualitative comparison."Tsombanidis, 352 F.3d at 577. In Tsombanidis, owners and residents of a group home for recovering alcoholics and drug addicts brought an FHA claim against the city of West Haven and its fire district, claiming, inter alia, that the fire district's fire code regulations applying to homes with six or more unrelated individuals discriminated against individuals with disabilities. The Court of Appeals described the necessary "qualitative comparison":

In such a comparison, plaintiffs would have to show that the average recovering [addict] in West Haven has a greater need — qualitatively — for group living than does the average non-recovering resident of West Haven. This would likely require some quantification of what each group "needs" from a living arrangement standpoint. A court could then conclude that, despite whether the quantitative test is met, there is a qualitatively disproportionate impact on recoverings in West Haven.

In any event, it does not appear that relief sought by Plaintiffs, i.e. an order that Hasidic applicants for housing or a transfer be allowed to specify a preference for the three Williamsburg developments, is available under the FHA. "What [Plaintiffs] are seeking is a religious exception to a neutral rule. . . . Plaintiffs would like us to treat failure to make an accommodation as a form of discrimination." Bloch v. Frischholz, 533 F.3d 562, (7th Cir. 2008). The Seventh Circuit rejected this proposition in Bloch, relying on Smith. The court reasoned that creating a rule that equates failure to accommodate with discrimination would be particularly inappropriate in the context of the FHA, which explicitly provides for accommodation of handicap, but not race, sex or religion. Bloch, 533 F.3d at 565 ("The Fair Housing Act requires accommodation of handicaps but not religious beliefs and practices."); see also Hack v. President Fellows of Yale Coll., 237 F.3d 81, 88 (2d Cir. 2000) ("[T]he FHA does not require a landlord or seller to provide a reasonable accommodation with respect to an individual applicant's religion."), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

The Authority is entitled to summary judgment on Plaintiffs' FHA claim.

B. Summary Judgment Is Granted on the First Amendment Claim

Plaintiffs have also brought a claim pursuant to 42 U.S.C. § 1983, asserting that the Authority's admission and transfer policies violate the Free Exercise Clause of the First Amendment. "The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, provides that `Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .'"Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531 (citation omitted, emphasis in original).

"Government enforcement of laws or policies that substantially burden the exercise of sincerely held religious beliefs is subject to strict scrutiny." Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002). However, consistent with Smith, "[w]here the government seeks to enforce a law that is neutral and of general applicability . . . it need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices." Id.; see also Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531. "A law is `neutral' if it does not target religiously motivated conduct either on its face or as applied in practice." Combs v. Homer-Ctr. Sch. Dist., 540 F.3d 231, 241-42 (3d Cir. 2008) (quoting Blackhawk v. Pa., 381 F.3d 202, 209 (3d Cir. 2004). "A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated." Id. at 242 (quoting Blackhawk, 381 F.3d at 209); see also Rector, Wardens, Members of Vestry of St. Bartholomew's Church v. City of New York, 914 F.2d 348, 354 (2d Cir. 1990) (holding that New York City Landmarks Law is neutral law of general applicability). "A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest."Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531-32.

Facially, the Authority's admission and transfer policies do not bar any particular religious practice or interfere in any way with the free exercise of religion by singling out a particular religion or imposing any disabilities on the basis of religion. Nor have Plaintiffs submitted any evidence that the challenged policies have been selectively applied to Hasidic applicants. Defendant is therefore entitled to summary judgment on Plaintiffs' First Amendment claim. See Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 216 (2d Cir. 1997).

VI. CONCLUSION

For the above stated reasons, the partial motion for summary judgment of the Plaintiffs is denied, the partial motion for summary judgment of the Defendant is granted, and the RFRA, FHA and First Amendment claims are dismissed.

It is so ordered.