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Comm’n on Human Rights ex rel.Shlyakov v. 1347 Ocean Co., LLC

OATH Index No. 2829/08, mem. dec. (Jan. 12, 2009)

Undisputed facts established that landlord refused to accept Section 8 voucher from tenant. Landlord’s challenges to discrimination law rejected and Commission’s motion for summary judgment granted as to liability.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

COMMISSION ON HUMAN RIGHTS

EX REL.

EMIL SHLYAKOV

Petitioner

- against -

1347 OCEAN COMPANY, LLC and “JOHN” FORANT

Respondents

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MEMORANDUMDECISION

INGRID M. ADDISON,Administrative Law Judge

This complaint was brought by the Commission on Human Rights on behalf of the complainant, Mr. Emil Shlyakov, pursuant to the Administrative Code. Respondent 1347 Ocean Company, LLC, owns the building where complainant has resided since 1995. Respondent “John” Forant is the principal shareholder of 1347 Ocean Company. The complaint alleges that respondents refused to accept complainant’s section 8 voucher in payment for his monthly rent, in violation of section 8-107(5) of the Administrative Code.

Petitioners moved for summary judgment on November 7, 2008,arguing that section 8-107(5) of the Administrative Code prohibits respondents from refusing to accept Section 8 vouchers as a source of payment for rent. Respondents oppose petitioner’s motion primarily on grounds that section 8-107(5) applies to prospective tenants only, not existing tenants like the complainant.

For the reasons explained below, petitioner’s motion for summary judgment is granted as to liability.

ANALYSIS

In December 1995, the complainantand his wife moved into a rent-stabilized, one-bedroom apartment at 1347 Ocean Avenue,Brooklyn, New York, a building owned by respondent1347 Ocean Company, LLC. The complainant’s current lease began on December 1, 1995, and extends through November 30, 2009. In 2007, the complainant became eligible for public assistance, and on October 1st received a Section 8 voucher issued for a one-bedroom apartment, without utilities, from the New York City Housing Authority (“NYCHA”) to supplement his rent payment(Pet. Ex. A). Since that time, the complainant offeredhis section 8 voucher as part payment for his rent. The voucher was rejected by Harry Vorhand, respondent’s managing agent, who instead indicated a willingness to accept it if the complainant agreed to relocate to another apartment within the building. The complainant’s voucher remains valid.

Summary judgment is appropriate where there are no material facts in dispute and the moving party is entitled to relief as a matter of law. Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Tankard v. Abate, 213 A.D.2d 320, 624 N.Y.S.2d 161 (1st Dep’t 1995). Respondents here do not dispute the factual allegations. Rather, they challenge petitioner’s interpretation of the relevant statute, arguing that sections 8-107(5)(a)(1) and 8-107(5)(a)(2) apply to new tenants but not to tenants already in possession. Respondents contend that because an existing lessee is already in possession, that tenant cannot be deemed to have been denied accommodation.

In a recent case before this tribunal, the facts of which mirror those here, Judge Spooner granted summary judgment to the Commission, rejecting a similar challenge by the landlord. Comm’n on Human Rights ex rel. Shmushkina v. New Brooklyn Realty,OATH Index Nos. 2541/08, 2542/08 & 2543/08, mem. dec. (Jan. 2, 2009) (rejecting landlord’s challenge that section 8-107(5) applied to only prospective tenants). The judge found that section 8-107(5) expressly protects any person on the basis of lawful source of income, and therefore embraces current and prospective tenants alike. His finding was bolstered by the decision in at least one New York court case in which the court found the argument that the law applied to prospective tenants only and not to existing tenants to be of “questionable logic.” SeeRizzuti v. Hazel Towers Co., 2008 N.Y. Misc. Lexis 2176 at *5 (Sup. Ct. N.Y. Co. Mar. 27, 2008) (holding that the protections against income discrimination “expressly” applied to both prospective and current tenants); Rosario v. Diagonal Realty, 8 N.Y.3d 755 (2007) (landlord required to accept an existing tenant’s Section 8 voucher).

Thus, Judge Spooner concluded thatthere was no logical basis to exclude existing tenants from the law’s protections, and that respondent’s refusal to accept the existing tenant’s Section 8 voucher in partial payment of rent constituteddiscrimination and denial of a housing accommodation under sections 8-107(5)(a)(1) and (2).

Likewise here, I find no reason to depart from Judge Spooner’s decision.

Respondents’further argument that requiring it to accept Section 8 vouchers from existing tenants imposes upon it the unduly burdensome requirements inherent in the housing assistance payment (“HAP”) contracts is also rejected. Both Rizzutiand Rosariorefer to the signing of a HAP contract as a necessary part of the landlord’s acceptance of a tenant’s Section 8 voucher, regardless of whether the tenant is a current or prospective tenant. See Jeanty v. Shore Terrace Ass’n, 2004 U.S. Dist. Lexis 15773 (S.D.N.Y. 2004) (finding landlords could not use additional obligations imposed by vouchers as an excuse to refuse to accept the vouchers, the acceptance of such being required under section 1437(f)(t) of the U.S. Housing Act).

Respondents’ remaining arguments, that the HAP contract voids complainant’s current lease, and that it may condition acceptance of complainant’s Section 8 voucher on the complainant’s willingness to move apartments, are also without merit. First, respondents’assertion that to accept the complainant’s Section 8 voucher, they would have to execute a new lease agreement with complainant is refuted by NYCHA. According to Robert Tesoriero, Assistant Director of NYCHA’s Leased Housing Department, “when a Section 8 voucher holder wants to rent in-place, NYCHA will allow the existing lease to run its course. Once that lease expires, we would then require a signed lease for one or two years” (Pet. Ex. F: e-mail from NYCHA). Second, neither expressly nor implicitly does the law make acceptance of the Section 8 voucher conditional. Thus,by requiring a Section 8 voucher recipient to relocate as a precondition of acceptance, respondent is discriminating based upon the voucher recipient’s lawful source of income, and, in effect forces the current tenant to become a prospective tenant for another apartment.

CONCLUSION

Section 8-107(5) of the Administrative Code prohibits respondents from refusing to accept Section 8 vouchers as a source of payment for rent from existing tenants such as the complainant here. Because there are no factual issues in dispute, petitioner’s summary judgment motion is granted.

Ingrid M. Addison

Administrative Law Judge

January 12, 2009

APPEARANCES:

SHEETAL KALE, ESQ.

Attorney for Petitioner

HARRY VORHAND

Respondents’ Representative Pro Se