Opinion
Index No. 525173/22 Mot. Seq. No. 2
01-17-2024
Fair Housing Justice Center, Inc. and Naomi Henderson, Plaintiffs, v. Beach Haven Apartments Associates LLC; 1402 Owners Corp.; Apartment Management Associates LLC d/b/a Revona Properties; ERN Group Inc. d/b/a ERN Flats; Rubin Schron; Herb Domain; Jimit Shah; Simi Fishof; and David Spira, Defendants.
Unpublished Opinion
PRESENT: HON. PETER P. SWEENEY, Justice.
DECISION AND ORDER
HON. PETER P. SWEENEY, Justice.
The following e-filed papers read herein: NYSCEF Doc No.:
Notice of Motion, Supporting Affirmations/Affidavits, Memorandum of Law, and Exhibits Annexed ___________ 32-35
Memorandum of Law in Opposition ___________ 51
Reply Memorandum of Law ___________ 53
Surreply Memorandum of Law___________ 55
In this action (among other things) to recover damages for housing discrimination based on "lawful source of income'' in violation of New York City Administrative Code § 8-107 (5) (a) (1) (the "City Human Rights Law" or "CURL") and New York State Executive Law § 296 (5) (a) (the "State Human Rights Law" or "SHRL"), defendants 1402 OWNERS CORP, (the "Coop") and DAVID SPIRA ("Spira" and collectively with the Coop, "defendants) jointly move, pre-answer, for an order, pursuant to CPLR 3211 (a) (7), (3), and (1), as well as pursuant to CPLR 3013, dismissing the First Amended Complaint, dated January 3, 2023 ("FAC"), of plaintiffs FAIR HOUSING JUSTICE CENTER, INC. ("FHJC") and NAOMI HENDERSON ("Henderson" and collectively with FHJC, "plaintiffs"), as against them. Plaintiffs object to the entirety of defendants' motion. The motion was fully submitted on December 14, 2023, with the Court reserving decision.
The Court has rearranged the order in which it addresses the grounds for relief from that followed by the parties, in order to avoid repetition and in the interest of brevity.
FACTS AND ALLEGATIONS
Parties
"Plaintiff FHJC is a non-profit civil rights organization that is dedicated to eliminating housing discrimination, promoting policies that foster open, accessible, and inclusive communities, and strengthening enforcement of fair housing laws" (FAC, ¶ 7). FHJC's mission is to "eliminat[e] housing discrimination in New York City [which makes] I apartments unavailable to individuals participating in the [rental-subsidy programs] due to their [rental-subsidy] source of income" (FAC, ¶ 112). To that end, "FHJC . . . expendfs] money, staff time and other resources to investigate and respond to [the] discriminatory conduct, which [,in turn,] divert[s] resources away from other FHJC activities, including public advocacy, outreach and education to increase public awareness about fair housing rights, technical assistance, training, and other tools to strengthen fair housing law enforcement, assistance to individuals and organizations in exercising their fair housing rights, and investigating and litigating other instances of discrimination" (FAC, ¶ 112). As part of that function, FHJC employs testers to pose as renters for the purpose of determining whether owners, lessees, brokers, and agents are complying with the City and State Human Rights Laws' prohibitions against source of income discrimination, including discrimination against prospective applicants with rental subsidies (FAC, ¶¶ 70-108).
Plaintiff Henderson is an individual residing in a homeless shelter in Queens County, New York (FAC, ¶¶ 8, 11. 28). As a homeless-shelter resident. Henderson was entitled to, and has received, a ''monthly CityFHEPS voucher for $1,945 to cover 100% of her rent" (FAC, ¶ 11). "CityFHEPS is a New York City rental assistance supplement program administered by the New York City Department of Social Services that. . . seeks to help individuals and families, who are living in [homeless] shelters, or at high risk of entering [homeless] shelters, to find safe and stable housing" (FAC, ¶ 4). The purpose of CityFHEPS (or of any other governmental rental-subsidy program) "is to provide landlords, management companies, and real estate agents with assurance that program participants will be able to pay their rent by providing vouchers that guarantee most if not all of the rent" (FAC, ¶ 5). "When landlords, management companies, and/or real estate agents refuse to rent to [the rental-subsidy holders] . . ., they puncture the critical safety net that the [rental-subsidy programs] are designed to provide for New York City's most vulnerable residents," particularly when "[i]n recent months. New York City has faced an increasingly severe housing shortage as [the] pandemic-era safety nets have ended and rents have risen" (FAC, ¶¶ 5, 3).
Defendant Coop, a cooperative housing corporation, owns the building located at 1402 West 4th Street in Brooklyn, New York (the "building") (FAC, ¶ 15). With the I exception of one apartment (which is not at issue), the allocated shares to all other apartments in the building have been sold to (and the attendant proprietary leases have been signed with) the shareholders of the Coop (see Affidavit of Saul Friedman. Officer of Coop, dated December 2, 2022, ¶ 4, at NYSCEF Doc No. 34).
Saul Friedman (aside from being an officer of the Coop) "is also an employee, executive and/or agent of. . . Spira's businesses, including . . . Spigro Management, which . . . likewise serves as a manager on behalf of [the Coop]" (FAC, ¶ 15).
Saul Friedman's "affidavit" is not in proper form because it lacks the language that his oath in swearing the affidavit was issued under the penalty of perjury (see CPLR. 2309 [b] ["An oath or affirmation shall be administered in a form calculated to awaken the conscience and impress the mind of the person taking it in accordance with his religious or ethical beliefs.").
Defendant Spira, an individual with an office address at 1660 49th Street in Brooklyn, New York ("Spira's office"), owns the shares in the Coop as allocated to - and is the proprietary lessee of- Unit C16 in the building (the "apartment") (FAC,¶ 16). Spira bought the apartment on March 7, 2022 (see Recording and Endorsement Cover Page, CFRN 2022000119835, recorded/filed March 21, 2022. annexed as Exhibit 1 to Saul Friedman's affidavit).
Spira owns the real property which houses his office (FAC, ¶ 16).
In addition, Spira serves as the Chief Executive Officer of the Coop (FAC, ¶ 16). As such, "Spira has an executive, director, and/or policy making role in and/or with [the Coop], and/or at a minimum serves to direct how and where rental opportunities within [the building] are offered to the public and/or approved for rental, including ... as an officer, director, owner, or manager of [the Coop], [his affiliate known as] Spigro Management, and/or other entities” (FAC, ¶ 16).
See also FAC ¶ 74 ("Fishof [the Spira defendants' real estate agent, as described below] told an [FHJC tester that] it was a co-op building, but that it' [did]n't make a difference ... for a tenant' because the landlord [i.e., Spira] owned certain apartments in the building [the Coop] and rented them out."); FAC •! 16 (in addition to the apartment at issue, Spira "owned at least two other [apartments] in [the building]").
Non-movant defendant ERN GROUP INC., d/b/a ERN FLATS ("ERN"), is a Brooklyn-based domestic corporation (FAC, ¶ 19). "ERN . . . held itself out to the public as an authorized agent on behalf of [either or both Spira defendants] and . . . acted as an I agent with actual and/or apparent authority on behalf of [either or both Spira defendants] to offer for rent and to actually facilitate the rental of the . . . apartment" (FAC, ¶ 19).
Non-movant defendant Simi Fishof, an individual residing in Brooklyn, New York, "was at all relevant times holding herself out as a real estate agent with . . . [ERN] acting within the scope of her employment" (FAC, ¶ 20). "Fishof held herself out to the public as an authorized agent on behalf of [either or both Spira defendants] and in fact acted as an agent with actual and/or apparent authority on behalf of [either or both Spira defendants] to offer for rent and to actually facilitate the rental of the . . . apartment" (FAC, ¶ 20).
Although FAC alleges (in ¶ 20) that "Fishofs real estate license had expired (on or around April 12. 2020) and had not been renewed." that, in fact, is no longer a case. Public records reflect that Fishof is currently licensed as a "Limited Liability Company Broker" (License No. 10491212068), with the December 8, 2024 expiration date (see https://appext20.dos.ny.gov/ nydos/selSearchType.do [last accessed Jan. 14, 2024]). See Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 A.D.3d 13, 20 (2d Dept 2009) (''material derived from official government websites may be the subject of judicial notice").
Henderson's Unsuccessful Attempts to View the Apartment
"In March 2022, a real estate agent representing . . . Henderson" ("Henderson's agent") was looking through the listings at (among others) www.StreetEasy.com to find an apartment within her means (FAC. ¶¶ 8,29). Concurrently, "[i]n or about March and April 2022,... Fishof of... ERN publicly advertised on StreetEasy that [the apartment], . . was available for rent." initially at $1,799 per month and thereafter (on or about March 28, 2022) lowered to $ 1,749 per month (FAC, ¶ 26). Both the initial and the reduced rent for the apartment was within the limits of Henderson's CityFHEPS voucher (FAC, ¶¶ 27, 36).
On March 23, 2022, Henderson's agent messaged to Fishof (as the apartment's listing agent on the StreetEasy Web site) to permit Henderson to see the apartment the same day (FAC, ¶¶ 36-37). Fishof, within a few minutes of Henderson's agent's initial inquiry, asked, by text, for Henderson's income and credit score (FAC, ¶ 38). When Henderson's agent replied that Henderson was "on CityFHEPS vouchers as this unit fits within her allocated award allowance," Fishof ignored (and failed to respond to) the agent's reply and as well to his (or her) repeated follow-ups with Fishof (FAC, ¶¶ 39-40).
FHJC's Testers' Unsuccessful (as well as successful) Attempts to View the Apartment
Because Fishof stonewalled Henderson's agent, the latter reached out to FJHC for help regarding the apartment (FAC, ¶41). As noted, FJHC's mission is to eliminate "housing discrimination in New York City [which makes] apartments unavailable to individuals participating in the Voucher Programs [like the CityFHEPS program] due to their source of income" (FAC. *1112). In response to Henderson's agent's request for help. "FHJC organized a series of tests to determine whether [the Spira defendants] were systemically discriminating against potential tenants on the basis of their source of income" (FAC, ¶ 41).
Between April 4, 2022 and April 8, 2022, FJAC had four separate individuals (identified as "Tester 4" through "Tester 7") contact Fishof (through her listing for the apartment on the "StreetEasy" Web site) with the professed intent of renting the apartment (FAC, ¶¶ 70-108). Two of the testers, identified as Testers "4" and "7." presented themselves to Fishof as the non-rental subsidy tenants (collectively, the ''unsubsidized testers"), whereas the other two testers, identified as Testers "5" and "6." presented themselves to Fishof as the rental-subsidy tenants with either a Section 8 or a CityFHEPS voucher (collectively, the "subsidized testers") (FAC, ¶¶ 70-78, 95-108, 80-94). Fishof allegedly treated the unsubsidized testers differently than their subsidized counterparts (FAC, ¶ 79). According to the FAC. the unsubsidized testers were each granted physical access to (and actually viewed) the apartment: one unsubsidized tester viewed the apartment in Fishof s presence, whereas the other unsubsidized tester viewed the apartment on his own because Fishof was not "in the area" at the time of his viewing (FAC, ¶¶ 74, 105). To both unsubsidized testers. Fishof explained that, as part of the application process, they would need to meet with the own er/1 and lord "in Borough Park[;] it's a little office" (i.e., the Spira's office) (FAC, ¶¶ 76, 100). In contrast, however, Fishof failed to respond to, and repeatedly ignored, all of the text and telephone inquiries from each subsidized tester, as soon as such subsidized tester revealed to her that he (or she) held a rental-subsidy voucher, even though Fishof concurrently (and continuously) communicated with both subsidized testers concerning the apartment (FAC, ¶¶ 85-86, 92-93, 103).
See FAC, ¶ 77 ("Fishof was apparently referring to the address for [either or both of the Spira defendants], including [Spira] as an executive and/or director of [the Coop], whose offices are collectively located at 1660 49th Street, Brooklyn, NY 11204, an address in the heart of Borough Park.").
See FAC, ¶ 84 ("[A]s was her practice, Fishof apparently had no intention of responding to any further communications from [subsidized] Tester 5, having learned that she would be using a housing voucher.");
According to the FAC (in ¶ 109). "Fishof acted with actual and/or apparent authority as [an] agen[t] and gatckeepe[r] for the . . . [Coop] . . ., asking . . . Henderson and the testers to disclose their income before agreeing to show them available units. Testers who stated that they met minimum income requirements from employment sources [, rather than from rent subsidies] received warm responses, tours of the apartmen[t], and even information about available apartments in other buildings." "In stark contrast, . . . Henderson and th[os]e testers who stated that they would be using government vouchers to cover the rent were completely ghosted by ., . Fishof, and were thus effectively blocked from taking tours or applying for [the apartment]" (FAC, ¶ 109). In plaintiffs' opinion (in FAC, ¶ 109), "[t]he timing of the tests - in which ... Fishof responded positively to testers with income from employment both before and after entirely ghosting testers with vouchers, regarding the same apartment... - confirms that. . . Fishof's behavior cannot be explained by changes in unit availability." Rather, according to the FAC (in ¶ 109). [t]he only explanation is discrimination." Plaintiffs conclude (in FAC. ¶ 110) that "FHJC's testing established that the discrimination . . . Henderson experienced was not an isolated incident, or merely the result of apartmen[t] not being available in the [Coop], Instead it was part of a systemic scheme to prevent housing voucher participants [such as Henderson] from accessing housing in [the Coop] "
Plaintiffs' Claims Against Spira Defendants
The FAC asserts two separate claims against the Spira defendants, numbered "First" I I and "Second." Both claims allege that the Spira defendants' policy and practice of refusing to rent the apartment to the holders of a CityFHEPS or a Section 8 rental-subsidy voucher violates the City's and the State's respective prohibitions on the denial or withholding of an apartment for rent due to a prospective tenant's source of income under Administrative Code § 8-107 (5) (a) (1) and Executive Law § 296 (5) (a), respectively (FAC, ¶¶ 115-119, 121-129).
As noted, in lieu of an answer, the Spira defendants have moved to dismiss the FAC on the following grounds: (1) failure to state a claim under CPLR 3211 (a) (7): (2) lack of standing (on the part of FHJC) under CPLR 3211 (a) (3); (3) a documentary-evidence under defense CPLR 3211 (a) (1); and (4) non-compliance with the pleading requirements of CPLR 3013. Each of these grounds is addressed seriatim.
Before addressing the quartet of the Spira defendants' arguments, it is necessary to pause briefly to address their additional contention - advanced for the first lime by way of their reply memorandum of law-that the City's and State's prohibitions on the source-of-income discrimination in housing are unconstitutional on their face under the Fourth Amendment to the United States Constitution because they compel landlords (through the City- and State-mandated enrollment into the rental-subsidy programs) to consent to warrantless searches, inspections, and audits of their rental properties and their rental records, as was so recently held (as a matter of first impression) by Supreme Court, Cortland County, in People v Commons W., LLC. 80 Misc.3d 447 (July 27. 2023). The Court respectfully declines to entertain the Spira defendants' additional contention regarding the alleged unconstitutionality of the City's and State's prohibitions on the source-of-income discrimination in housing accommodations for several reasons. As a threshold matter, the Spira defendants belatedly raised this argument for the first time in their reply papers (see e.g. Kogutv Village of Chestnut Ridge, 214 A.D.3d 777, 780 [2d Dept 2023]). Next, the underlying decision of People v Commons (V. is not binding on this Court (see Mountain View Coach Lines, Inc. v Storms, 102 A.D.2d 663. 664-665 [2d Dept 1984]). Finally, CPLR 1012 (b) (3) precludes the Court from considering the constitutionality of a state statute or local law absent prior compliance (which was not fulfilled here) with the notice requirements of CPLR 1012 (b) (1)-(2) (see Matter of Sevens v Stevenson. 194 A.D.3d 509, 510 [1st Dept 2021], Iv denied 36 N.Y.3d 913 [2021]; People v Alsaifullah. 130 A.D.3d 1321, 1322 [3d Dept 2015]).
In contrast, the Court is permitted to (and, in its discretion, has considered) plaintiffs' surreply which was in response to the unconstitutionality argument raised for the first time in the Spira defendants' reply memorandum of law (see Rolling Acres Developers, LLC v Montinat, 166 A.D.3d 696, 697 [2d Dept 2018]; Gastaldi v Chen, 56 A.D.3d 420 [2d Dept 2008]).
DISCUSSION
1. Alleged Failure to State a Claim under CPLR 3211 (a) (7)
On a motion to dismiss pursuant to CPLR 3211 (a) (7). "the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true and provide plaintiff ... the benefit of every possible favorable inference" (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co.. 5 N.Y.3d 582. 591 [2005] [internal quotation marks omitted]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs &Co., 5 N.Y.3d 11, 19 [2005]). Where (as here) a party offers evidentiary proof on a motion pursuant to CPLR 3211 (a) (7), and such proof is considered but the motion has not been converted to one for summary judgment (as is the case here), "the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one, and. unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it,. . . dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [ 1977]).
Administrative Code § 8-107 (5) (a) (1) provides, in relevant part, that:
"It shall be an unlawful discriminatory practice for the owner, lessor, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation ... or any agent or employee thereof. . . because of any lawful source of income of such person or persons ... (a) [t]o refuse to . . .
lease, approve the . . . rental or lease or otherwise denv to or withhold from any such person or group of persons such a housing accommodation. . (emphasis added).
Although Administrative Code § 8-107 (5) (a) (1) was amended in other respects effective November 21,2023, such amendment has not. in any way. affected the prohibition on the source-of-income discrimination in housing accommodations.
Likewise, Executive Law § 296 (5) (a) (2) provides, in relevant part, that it "shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or other person having the right to sell, rent or lease a housing accommodation ... or any agent or employee thereof. . . [t]o discriminate against any person because of. . . lawful source of income ... in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation. . (emphasis added).
"An action for housing discrimination is, in effect, a tort action, and ordinary tort-i related vicarious liability rules apply" (Newson v Vivaldi Real Estate Ltd., 2023 NY Slip Op 34507[U], *4 [Sup Ct, NY County 2023] [internal quotation marks omitted]). "These principles provide that liability generally flows from the agent to the principal, not the other way around" (id. [internal quotation marks omitted]). "It is well established that agents will be liable for their own unlawful conduct, even where their actions were at the behest of the principal" (Short v Manhattan Apts., Inc., 916 F.Supp.2d 375, 399 [SD NY 2012] [internal quotation marks omitted]). Further, a principal will be held liable for its agent's actions within the scope of agency, even if the "acts or statements exceeded the agent's actual authority or disobeyed the principal's general or express instructions to the agent" (Bicounty Brokerage Corp. v Burlington Ins. Co., 88 A.D.3d 833, 835 [2d Dept 2011] [internal quotation marks and citations omitted]). Thus, a principal is vicariously liable for the discriminatory acts of its agent, even if it did not authorize the agent to discriminate (see Cabrera v Jakabovitz, 24 F.3d 372, 389 [2d Cir 1994] [the landlords "did not have to authorize (the real estate agency) specifically to discriminate in order to be liable for that discrimination"], cert denied 513 U.S. 876 [1994]; Mancuso v Douglas Elliman, LLC, 808 F.Supp.2d 606, 630 [SD NY 2011] [defendant's "argument about agency, that it cannot be vicariously liable because it did not make or authorize (the real estate agents to discriminate). . . has no basis in law"] [internal quotation marks omitted]).
Because claims of housing discrimination under the City and State HRLs are analyzed under the same standard as claims arising from the Fair Housing Act, federal court decisions are relevant (see Fair Hous. Justice Ctr., Inc. v Broadway Crescent Really. Inc., 2011 WL 856095, *9 [SD NY 2011]). Further, the decisions (whether by federal or state court) construing the Fair Housing Act and/or the State HRL merely establish "a floor below which the [City HRL] cannot fall, rather than a ceiling above which the [City HRL] cannot rise" (Williams v New York City Hous. Auth., 61 A.D.3d 62, 66-67 [1st Dept 2009], Iv denied 13 N.Y.3d 702 [2009]).
Either actual or apparent authority may support the relationship between a principal and its agent. "Actual authority granted to an agent to bind his principal is created by direct manifestations from the principal to the agent, and the extent of the agent's actual authority is interpreted in the light of all the circumstances attending these manifestations, including the customs of business, the subject matter, any formal agreement between the parties, and the facts of which both parties are aware" (New York Community Bank v Woodhaven Assoc., LLC, 137A.D.3d 1231. 1233 [2d Dept 2016] [internal quotation marks omitted; emphasis added], iv denied 32 N.Y.3d 1136 [2019]). "In the absence of actual authority, words or conduct by the principal that are communicated to a third party may create the apparent authority of the agent to act on behalf of the principal" (id. [emphasis added]).
Here, the FAC adequately alleges claims as against the Spira defendants for housing discrimination based on the source of income under both the City and State HRLs, as predicated on the acts/omissions of Fishof (and, by extension. ERN). The FAC alleges that Fishof (and, by extension. ERN) managed the listing for the Spira defendants' apartment on the StreetEasy Web site. In addition, the FAC alleges that Fishof responded to the repeated inquiries from five separate individuals (i.e., Henderson's agent, plus four testers) about the apartment listing that was posted through the StreetEasy Web site, thus indicating I apparent authority to act on the Spira defendants' behalf (see Matter of State Div. of Human Rights v Muia, 176 A.D.2d 1142, 1144 [3d Dept 1991]; Newson v Vivaldi Real Estate Ltd., 2023 NY Slip Op 31857[U], *5 [Sup Ct, NY County 2023], rearg denied 2023 NY Slip Op 34507[U] [Sup Ct, NY County 2023]; Assoc, v CIV, 24 Misc.3d 1225[A], 2009 NY Slip Op 51617[U], *5-6 [Civ Ct, Bronx County 2009]; see also L.C. and Fair Hous. Justice Ctr. v LeFrak Org., Inc., 987 F.Supp.2d 391, 404-405 [SD NY 2013]).
Contrary to the Spira defendants' contention, plaintiffs need not allege, at the motion-to-dismiss stage, that the Spira defendants (either individually or collectively) authorized Fishof (and ERN) to ''specifically discriminate [against the prospective tenants with the rent-subsidy vouchers] in order to be liable for that discrimination" (see Khodeir v Sayyed, 2016 WL 5817003, *9 [SD NY 2016] [internal quotation marks omitted]). The bottom line is that Fishof (and ERN) refused to show the apartment to Henderson and to the pair of subsidized testers, while she concurrently showed the apartment to the pair of unsubsidized testers. Fishof (and ERN) weeded out (and rejected) Henderson and other prospective rental-subsidy tenants for the benefit of the Spira defendants (see Short. 916 F.Supp.2d at 400).
The questions of whether the Spira defendants (individually or collectively) were aware of Fishof s (and ERN's) discriminatory practices or whether the Spira defendants (individually or collectively) specifically authorized, or even rejected such practices, are irrelevant at this early stage of litigation (see Banks v Peace of Mind Realty, 2019 NY Slip Op 3 2689 [U], *21 [Sup Ct, NY County 2019]). In any event, "where [, as here,] no written authority of the agent has been proven, questions of agency and of its nature and scope .. . are questions of fact to be submitted to the jury' under proper instructions by the court" (Garcia v Herald Tribune Fresh Air Fund, Inc., 51 A.D.2d 897, 897 [1st Dept 1976] [internal quotation marks omitted]).
2. FHJC's Alleged Lack of Standing under CPLR 3211 (a) (3)
In the context of a motion to dismiss for lack of standing under CPLR 3211 (a) (3), "the burden is on the moving defendant to establish, prima facie, the plaintiffs lack of standing, rather than on the plaintiff to affirmatively establish its standing in order for the motion to be denied" (Deutsche Bank Tr. Co. Ams. v Wlellas, 131 A.D.3d 52, 59-60 [2d Dept 2015]). "To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions I raise a question of fact as to its standing" (id.).
It is beyond peradventure that FJHC possesses the requisite standing to initiate and prosecute this action (see Havens Really Corp, v Coleman. 455 U.S. 363. 379 [1982]; Olsen v Stark Homes, Inc., 759F3dl40, 158 [2d Cir 2014]; Housing, Rights Initiative v Compass, Inc., 2023 WL 1993696, *5-16 [SDNY 2023], reconsideration denied 2023 WL 2989048 [SD NY 2023]; Fair Hous. Justice Ctr., Inc. v 203 Jay St. Assoc., LLC, 2022 WL 3100557, *2-55 [ED NY 2022]; Fair Hous. Justice Ctr., Inc. v Allure Rehabilitation Servs. LLC, 2017 WL 4297237, *2-3 [ED NY 2017]; Mixon v Grinker, 157 A.D.2d 423. 426 [1st Dept 1990]; Housing Rights Initiative, Inc. v Douglas Elliman, 2023 NY Slip Op 30294. *6-10, and 2023 NY Slip Op 30041, *6-11 [Sup Ct, NY County 2023]).
See also N.Y.S. Div. of Human Rights, Guidance on Protections from Source of Income Discrimination in Housing under New York State Human Rights Law (2020), at 7 ("Housing advocacy organizations can file a complaint about any discriminatory policy or practice of a housing provider, such as may be stated in an advertisement, or which is revealed by responses of a housing provider to inquiries by the agency or its testers, or by other investigative means" (available at https://dhr.ny.gov/system/files/documents/2022/05/nysdhr-soi-guidance-2020.pdf [last accessed Jan. 14, 2024]).
3. Alleged Documentary-Evidence Defense under CPLR 3211 (a) (1)
"A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Bua v Purcell & Ingrao, P.C., 99 A.D.3d 843, 844-845 [2d Dept 2012], Iv denied 20 N.Y.3d 857 [2013]). "(A]ffidavits ... do not meet the requirements for documentary' evidence" (Phillips v Taco Bell Corp.. 152 A.D.3d 806, 807 [2d Dept 2017]).
The Spira defendants' proffer of Saul Friedman's affidavit, together with the Recording and Endorsement Cover Page for the apartment, fails to establish a documentary-evidence defense. Saul Friedman's affidavit is not "documentary" in nature. More fundamentally, the Recording and Endorsement Cover Page for the apartment establishes that Spira leases (not owns) the apartment in the building under a proprietary lease, whereas the Coop owns and leases the apartment to Spira. It is a fundamental principle of the cooperative-apartment law that ''[t]he purchaser of a cooperative apartment obtains shares of stock in the cooperative corporation that owns the building, plus a proprietary lease [from the cooperative corporation as the lessor] that enables the purchaser to reside in the apartment." 137 Am. Jur. Proof of Facts 3d 409 (online edition). The Spira defendants' repealed contention that ''Spira (not [the Coop]) is the owner of [the apartment]" flies in the face of the elementary legal principles of the cooperative-apartment law. It is the Coop, not Spira, which owns the apartment (as well as the remainder of the building), whereas Spira, as the owner of the shares in the Coop, leases the apartment in the building from the Coop under a proprietary lease.
4. Alleged Non-Compliance with Pleading Requirements of CPLR 3013
New York's pleading standard is embodied in CPLR 3013. which provides, in relevant part, that" [statements in a pleading ... be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action...Additionally, pursuant to CPLR 3014, "[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs" and "[e]ach paragraph shall contain, as far as practicable, a single allegation." "These [pleading] requirements must be read in light of CPLR 3026[,] which provides for the liberal construction of pleadings and states that '[d]efects shall be ignored if a substantial right of a party is not prejudiced'" (Matter of Gerena v New York State Div. of Parole, 266 A.D.2d 761. 762 [3d Dept 1999]).
The FAC easily meets the foregoing pleading requirements. The FAC adequately differentiates the Spira defendants, both inter se and as to other defendants. No further elaboration in this respect is required at the pleading stage.
The Court has considered the Spira defendants' remaining contentions and found them to be without merit.
CONCLUSION
Accordingly, it is' I ORDERED that the Spira defendants' pre-answer motion to dismiss is DENIED; and it is further
ORDERED that, subject to the next succeeding paragraph relating to verification, the Spira defendants shall electronically file and serve their joint answer to the FAC within ten days after electronic service of this decision and order with notice of entry by plaintiffs' counsel on the Spira defendants' counsel (as well as on the co-defendants' respective counsel); and it is further
ORDERED that, pursuant to CPLR 3021. the Spira defendants' answer shall be verified by David Spira (both individually on his own behalf, and as an executive, officer, and/or director of the Coop on behalf of the Coop); and it is further
If David Spira is not (or no longer is) an executive, director, or officer of the Coop, then an affidavit to that effect by a person with knowledge of the facts shall be electronically filed and served with the Spira defendants' answer, whereas Saul Friedman shall verify such answer on behalf of the Coop.
ORDERED that plaintiffs' counsel shall electronically serve a copy of this decision and order with notice of entry on the other parties' respective counsel and shall electronically file an affidavit of service thereof with the Kings County Clerk.
This constitutes the decision and order of the Court.