Opinion
Kucker Kraus & Bruh, New York City (Santo Galino, of counsel), for Defendant.
Gulielmetti & Gesmer, P.C., New York City (Ellen Gesmer, of counsel), for Plaintiff.
NORMAN C. RYP, Judge.
"Around the child bend all the three Sweet Graces; Faith, Hope, Charity." Walter Savage Landor (1824).
A. ISSUE
Whether Real Property Law § 236 is constitutional (barring housing discrimination against persons with children) facially and in application.
B. PROCEDURAL HISTORY & FACTS
Defendant, Margarite Jossel, former owner of 4 Gramercy Park West, New York, New York, including its second floor apartment (hereinafter "subject premises") moves, under CPLR 4404(a) to set aside a unanimous (6-0) verdict awarding $25,000 in compensatory damages in favor of plaintiff, Mauro Filicore, current tenant of subject premises for violation of RPL 236 (Discrimination against children in dwelling houses and mobile home parks). At the close of evidence, the Court dismissed the first and third causes of action. The jury also unanimously (6-0) dismissed both parties' mutual claims for assault and battery.
This eight (8) day pioneering jury trial included 14 witnesses (8 for plaintiff and 6 for defendant) and 53 trial exhibits (29 for plaintiff and 24 for defendant). The case was vigorously tried by three highly competent counsel (ironically one defense counsel was an expectant father) under a thirty (30) year old statute (RPL 236--Added: L.1965, c. 1031, § 185; amended L.1980, c. 701, § 1, L.1983, c. 658, § 1, eff. Sept. 23, 1983) for the very first time, according to this Court's research, in New York State. A parallel claim (part of plaintiff's first and third causes of action) under the U.S. Fair Housing Act of 1968 (Pub.L. 90-284 Title VIII, § 801), as amended in 1988, eff. May 13, 1989, which added "familial status" (42 U.S.C.A. 3604(a) and (b)) [Pub.L. 100-430 13(a) ] was dismissed, as time barred by the Court, after all evidence was adduced.
Before and during trial of this case the Court made various rulings, including (a) denying defendant, pursuant to the Domestic Relations Law, leave to review and inspect the sealed Supreme Court, N.Y. County matrimonial file (Index # 62559/87) entitled "Kathie Filicore, plaintiff v. Mauro Filicore, defendant", as irrelevant and prejudicial except for pedigree information (name, date of birth [3/8/85] of plaintiff's daughter but not residence in subject premises or custody and visitation provisions) from Justice Phyllis B. Gangel-Jacobs' Decision dated May 26, 1989; (b) allowed fair comment, during summation of (1) Housing Court Judge Joseph B. Goldman's Decision, dated April 3, 1990, and its February 19, 1991 affirmance by the Appellate Term, 1st Dept., as well as (2) Justice Walter M. Schackman's Decision, dated January 14, 1994.
[660 N.Y.S.2d 787]C. PARTIES' CONTENTIONS (deleted for publication)
D. CONSTITUTIONALITY
(1) Anti-discrimination statutes generally
New York Courts have consistently held that though a statute contains penal sanctions (i.e., Exec.Law 299--a/k/a N.Y. State's Human Rights Law) it is similar to the National and New York State Labor Relations Acts and not viewed as a penal statute. Insurance Co. of North America v. Chinoise Restaurant & Tr. Corp., 85 A.D.2d 712, 445 N.Y.S.2d 835 (2d Dept.1981). Moreover, RPL 236 specifically added sub. "b"--entitled "Civil Liability"--which afforded "an aggrieved individual" a civil remedy for damages and "reasonable attorney's fees" (L.1983, c. 658, § 1, eff. Sept. 23, 1983).
The New York and Federal Courts have consistently upheld the constitutionality of U.S. and N.Y. anti-discriminatory or human rights statutes as non-violative of free speech and association or due process of the law and within police powers, including the New York Human Rights Law (Exec.L. Art. 15), which covers Exec. Law 296, including sub. 5(a)(1) which bars discrimination on the basis of "familial status". See, Jews for Jesus, Inc. v. Jewish Community Relations Council, 968 F.2d 286 (2d Cir.1992); also Jews for Jesus, Inc. v. Jewish Community Relations Council, 79 N.Y.2d 227, 581 N.Y.S.2d 643, 590 N.E.2d 228 (1992); State Commission for Human Rights v. Kennelly, 30 A.D.2d 310, 291 N.Y.S.2d 686 (2d Dept.1968), aff'd 23 N.Y.2d 722, 296 N.Y.S.2d 367, 244 N.E.2d 58 (1968); Christie v. 46th St. Theatre Corp., 265 A.D. 255, 39 N.Y.S.2d 454 (3rd Dept.1942), aff'd 292 N.Y. 520, 54 N.E.2d 206 (1944), cert. den. 323 U.S. 710, 65 S.Ct. 35, 89 L.Ed. 571 (1944); Cooney v. Katzen, 41 Misc.2d 236, 245 N.Y.S.2d 548 (Sup.Ct. Onondaga Co. 1963); see also, 18 N.Y.Juris.2d Civil Rights 18, 21.
(2) RPL 236
The Court now focuses on RPL 236 specifically, which the jury found applicable to defendant, but whose constitutionality has not been judicially reviewed or civilly applied.
RPL 236 relevantly provides, as follows:
"a. Any person ... owning or having in charge any ... building ... used for dwelling purposes who shall refuse to rent any or part of any such building ... to any person or family, or who discriminates in the terms, conditions, or privileges of any such rental, solely on the ground that such person or family has or have a child or children shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than fifty nor more than one hundred dollars for each offense; ...
"b. Civil liability:
"(1) where discriminatory conduct prohibited by this section has occurred, an aggrieved individual shall have a cause of action in any court of appropriate jurisdiction for damages, declaratory and injunctive relief;
"(2) in all actions brought under this section, reasonable attorney's fees as determined by the court may be awarded to a prevailing plaintiff." (Underlining added.)
Defendant contends that RPL 236 is unconstitutionally vague, it is penal in nature and inapplicable to defendant since the statute applies only to the initial rental to plaintiff, which was in 1975, ten (10) years before Gaia's birth.
As noted, the original statute was enacted in 1965 to bar any realty owner or managing agent by penal sanction--a misdemeanor punishable by a fine of $50.00 to $100.00 for each offense--from discrimination in the initial rental of a dwelling house or unit therein. Its purpose was to protect "persons with children in the rental of housing accommodations." See, Governor's Approval Memorandum, dated July 25, 1983, 2d para., 1983 McKinney's Session Laws of N.Y., p. 2791.
In 1983, Governor Cuomo stated and the New York Legislature agreed that, "Discrimination against persons with children has also markedly increased, and this has had a particularly deleterious effect on minority households and households headed by women. [This bill] authorizes private suits to vindicate the rights secured by law, permits the award of attorneys' fees to successful plaintiffs [660 N.Y.S.2d 788] and clarifies that discrimination in the terms and conditions of a rental, such as by increasing the security deposit disproportionately because a person has children, would also be illegal."
"New York's supply of decent, affordable rental housing is in dwindling supply. We must insure that no unjustified barriers prevent individuals from access to such housing. The bills are approved. (Signed) Mario M. Cuomo." See Governor's Approval Mem., 1983 McKinney's Session Laws of N.Y., at 2792.
The founding parent of housing non-discrimination against children or "parenthood" or "familial status" is the Fair Housing Act (Civil Rights Act of 1968, § 801, 42 U.S.C.A. § 3604). This federal statute's constitutional validity has been upheld and applied to a tenant after initial possession, see, Blaz v. Barberton Garden Apt., 972 F.2d 346 (6th Cir.1992); accord: RPL 236; Hall v. Coons, 151 Misc.2d 715, 582 N.Y.S.2d 370 (Sup.Ct. Dutchess Co.1992). In fact an earlier New York court affirmed the Temporary City Housing Rent Commission's refusal to grant a landlord a certificate of eviction as a matter of public policy, holding that a tenant, married after renting an apartment for over a year and whose wife later had a child, could not be evicted for a substantial violation of the tenancy (occupied by more persons than contemplated by landlord upon original rental). Boyd H. Wood Co. v. Finkelstein, 193 Misc. 315, 84 N.Y.S.2d 459 (Sup.Ct. Kings Co.1948). Moreover, a New York court dismissed a landlord's holdover petition brought on the grounds that the tenants were objectionable under a lease clause prohibiting disturbing noises (to tenant below), which were made by the tenants' two (2) small children, aged 2 and 4, because the noise of the children's ordinary activities was not excessive or deliberate, considering children are inherently louder than adults. Louisiana Leasing Co. v. Sokolow, 48 Misc.2d 1014, 266 N.Y.S.2d 447 (Civ.Ct. Queens Co.1966). See also, Gilman v. City of Newark, 73 N.J.Super. 562, 180 A.2d 365 (Super.Ct.1962) which held that a local Newark ordinance prohibiting occupancy of rooming houses by minors was in direct conflict with N.J. state law banning refusal to rent or lease a residential dwelling to a family with children under 14 years of age or a provision voiding a lease on the birth of a child. This was based on the public policy and interest to favor equality of housing between the childless and those having children, with the effect of separating families with low incomes.
Before 1980, Courts generally avoided or deflected on the issue of discrimination against families with children. See, Bynes v. Toll, 512 F.2d 252 (2d Cir.1975)--dismissed complaint against SUNY which refused to allow married students with children to live in dormitories as rationally related to dangers of children living in inappropriate facilities, applying the rational basis test in an area of economic and social welfare rather than scrutiny test of a fundamental constitutional interest. Accord: Braunstein v. Dwelling Managers, Inc., 476 F.Supp. 1323 (S.D.N.Y.1979)--held a federally subsidized housing complex did not violate the U.S. Fair Housing Act of 1968 by, under municipal regulations, refusing to rent two (2) bedroom apartments to single parents with children of the same gender since same affected both men and women equally and the right to reside in government financed housing was not absolute but due process required only that there be ascertainable and reasonable standards.
This changed in the 1980's with the above noted 1988 amendment, effective March 12, 1989 (42 U.S.C.A. § 3604(a) and (b)), adding familial status to the Fair Housing Act of 1968 and the 1983 amendments to RPL 236 adding civil liability, thereto, effective September 23, 1983. In California, the Fair Employment and Housing Act and Unruh Civil Rights Act which bar discrimination against "parenthood" were enforced. See, Marina Point Ltd. v. Wolfson, 30 Cal.3d 721, 180 Cal.Rptr. 496, 640 P.2d 115 (1982), cert. den. 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982). See also, Note, "Why Johnny [660 N.Y.S.2d 789] Can't Rent--An Examination of Laws Prohibiting Discrimination against Families in Rental Housing" 94 Harv.L.Rev. 1829 (1981); Annot.: "Refusal to Rent Residential Premises to Persons with Children as Unlawful Discrimination" by Janet Fairchild, J.D., 30 ALR4th 1187, 1188-96 (1984).
In 1983, RPL 236 was amended (L.1983, c. 658, eff. Sept. 23, 1983) to add "in the terms, conditions, or privileges of any such rental", which has been applied after initial rental (Hall v. Coons, supra) and clearly applies herein (i.e., immediate family, family unit, window guards, terrace use).
This Court notes there is a strong and clear public policy and interest to encourage and promote family unity, parenthood and the welfare of children, who do not choose to be born and may be the divine products of the Old Testament commandment "be fruitful and multiply" (Gen. 1:28), and should, thus, not be the innocent victims of housing discrimination in a dwindling supply of affordable rental housing. Governor Cuomo, in his above noted 1983 approval memorandum of chapters 657 and 658 of the Laws of 1983, amending RPL 236, during his "Decade for Children," eloquently articulated that, "Discrimination against persons with children has also markedly increased, and this has had a particularly deleterious effect on minority households and households headed by women ... We must insure that no unjustified barriers prevent individuals from access to such housing." (Governor's Approval Mem., 1983 McKinney's Session Laws of N.Y., at 2792.)
For the foregoing reasons, this Court finds, as a matter of law, that RPL 236 is constitutional as a valid and reasonable exercise of New York State's police power for the public welfare, is not vague, because as noted penal sanctions (see, Ins. Co. of North America v. Chinoise Restaurant & Tr. Corp., supra) and with reasonable due process of law by the civil liability remedy and defense under the civil justice system or use of the word "solely" which this Court, in its charge, reasonably interpreted under the "but for" test and the substantial factor which played a determinative role in provoking the result in question. Blaz v. Barberton Garden Apt., supra.
E. THE TRIAL EVIDENCE, JURY VERDICT & FINDINGS (deleted for publication)
1. Trial Evidence (deleted for publication)
2. Jury Verdict (deleted for publication)
(a) As against the weight of the evidence (deleted for publication)
(b) As a Matter of Law (deleted for publication)
F. THE "PREVAILING PLAINTIFF" AND "REASONABLE ATTORNEY'S FEES" UNDER RPL 236 (deleted for publication)
G. CONCLUSION
For the foregoing reasons, defendant's CPLR 4404(a) motion and cross-motion under 42 U.S.C. § 3613(c)(2) for reasonable attorney's fees are denied, with plaintiff's request pursuant to RPL 236, sub. b(2) for a reasonable attorney's fee award held in abeyance as set forth hereinabove.
Settle Judgment on Notice, including a provision for reasonable attorney's fees.