Opinion
July 20, 1970
Proceeding pursuant to section 298 Exec. of the Executive Law to review a determination of the State Human Rights Appeal Board, dated March 13, 1970, which modified and, as so modified, affirmed an order of the State Division of Human Rights dated June 18, 1969. Petition granted to the extent that the determination is modified, on the law, by adding therto a provision that the order of the Division of Human Rights is further modified by striking therefrom paragraph (c) of the decretal provision directing petitioners to take certain affirmative action. As so modified, determination confirmed, without costs. In our opinion, there is substantial evidence in the record to support the findings of respondent that petitioners engaged in unlawful discriminatory practices in violation of section 296 (subd. 5, par. [c], cl. [1]) of the Executive Law. The provisions of the above-mentioned paragraph (c) of the order of the State Division of Human Rights, which gives a preference to persons referred by the Mamaroneck Neighborhood Opportunity Center, is in conflict with the public policy of this State to assure every individual an "equal opportunity" in respect of housing (Executive Law, § 290, subd. 3; Center Mgt. Co. v. State Div. of Human Rights, 34 A.D.2d 637). Christ, P.J., Rabin, Hopkins and Benjamin, JJ., concur; Munder, J., dissents in part and votes to grant the petition and annul the determination in its entirety, with the following memorandum:
In my opinion the evidence in this case does not support a finding that petitioners' rejection of the complainant's application was based on her race. Rather, as I see it, the evidence supports petitioners' position that the complainant was rejected because she had failed to meet certain income and credit requirements applicable to all prospective tenants. The record indicates that the complainant's husband's net weekly income was far less than the required equivalent of one month's rent and that, in the past, several money judgments had been entered against the complainant. This court recognized in Matter of State Comm. for Human Rights v. Kennelly ( 30 A.D.2d 310, 312, affd. 23 N.Y.2d 722) the right of landlords to be selective and to reject a prospective tenant because of his or her failure to meet standards of acceptability other than those which concern themselves with one's race or color or standards which are otherwise proscribed by statute. (See, also, Matter of State Comm. for Human Rights v. Callan, 57 Misc.2d 504, 506-507.) This is what occurred here and in these circumstances I fail to see how petitioners' conduct was in violation of section 296 (subd. 5, par. [c], cl. [1]) of the Executive Law.