Landlords Required to Accept Section 8 Vouchers from Current Tenants, Court Rules
TUESDAY, JULY 28, 2009

Justice Marcy Friedman of the New York Supreme Court, New York County, held in her decision that landlords must accept Section 8 vouchers from current tenants under the J51 Law and Local Law 10 and found that Local Law 10 is not pre-empted. Robert Desir and Judith Goldiner, lawyers in the Civil Practice's Law Reform Unit, are the lawyers on this case.

Robert Desir told the New York Law Journal that the ruling puts landlords on notice that they "should not treat tenants who need government assistance to help pay their rent any differently." He also said it "will give greater security to the countless families that are struggling to maintain their homes" in the current economic downturn.

The Legal Aid Society brought this case on behalf of 47 tenants who wished to use their Section 8 vouchers for their current apartments. Their landlords refused to accept the vouchers. Justice Friedman considered the following issues: (1) whether the antidiscrimination clause of the J-51 Law, New York City Administrative Code §11-243(k), requires a landlord who receives benefits under the J-51 Law to accept a Section 8 voucher from a current tenant; (2) whether recent amendments to Local Law 10, New York City Administrative Code §§ 8-101 et seq., require a landlord to accept a Section 8 voucher from a current tenant; and (3) whether Local Law 10 preempted in whole or in part by federal and/or state law. The court answered yes to the first two questions and no to the second question. The court rejected the landlords' arguments that the did not have to accept Section 8 from in-place tenants and held that rejecting the Section 8 payments constituted discrimination. The court also found that there was no preemption.

View the PDF of the decision.

 

The New York Law Journal
July 28, 2009
Landlords Must Accept Section 8 for Current Tenants, Court Rules
By Noeleen G. Walder

A Manhattan judge has held that a recently enacted amendment to New York City's Human Rights Law requires landlords to accept federal housing subsidies from existing rent-stabilized tenants as well as from tenants who moved in after the law was passed.

When a group of low-income tenants tried to use Section 8 vouchers to pay part of their rent, their landlords claimed a provision of 2008's Local Law 10, which bars landlords from discriminating based on an individual's lawful income source, only applied to prospective tenants and was preempted by federal and state law.

The case was one of two actions by tenants challenging the refusal of landlords to take the federal vouchers. Another group of tenants argued the landlords' actions violated the anti-discrimination language of the J-51 program from which the landlords received tax breaks. After consolidating the two cases, Acting Supreme Court Justice Marcy S. Friedman (See Profile) held in Tapia v. Successful Management Corp., 400563/08, that excluding current tenants violated both Local Law 10 and J-51.

The Manhattan Supreme Court decision appears on page 34 of the print edition of today's Law Journal.

With regard to the local law amendment, she said the statute was clear on its face. Further, she said that refusing the Section 8 vouchers would lead to the "absurd" result of affording protection to plaintiffs if they vacated their apartments and then moved back.

The judge also ruled that the additional burden imposed on landlords by applying Local Law 10 to current tenants was "incidental" and did not add regulations to those to which landlords already are subject under the state's rent-stabilization law.

Vladmir Dreytser, 72, has lived with his wife at 195 Bennett Ave. in the Washington Heights section of Manhattan for approximately 12 years. Mr. Dreytser and his wife live on supplemental Social Security and pay $749 in rent.

After paying for rent, utilities, cable and phone services, and Medicaid co-pays, the couple is left with $6 a day to supplement their $9 food stamp allotment.

In early 2007, Mr. Dreytser applied for a Section 8 voucher, which he received in March 2008, before the passage of Local Law 10. But his landlord, 195 Realty, LLC, refused to accept the subsidy, which would reduce Mr. Dreytser's share of the monthly rent to $318.

In May 2008, Mr. Dreytser and 27 other plaintiffs, "struggling to keep their homes because of the landlords' illegal refusal to accept their Section 8 benefits," claimed the landlords' refusal to accept the vouchers violated Local Law 10's antidiscrimination clause.

Just a few months earlier, a group of 19 families living in rent-stabilized units throughout the city had brought a similar action against their respective landlords. However, in this case, the landlords all received J-51 tax abatements.

The tenants claimed the landlords' failure to accept their Section 8 vouchers violated J-51's antidiscrimination clause, which prohibits owners who receive tax abatements from discriminating based on a tenant's use of, participation or eligibility for "a governmentally funded housing assistance program." New York City Administrative Code §11-243(k).

In October 2008, the plaintiffs in both actions joined forces, and agreed to consolidate motions for summary judgment. Moving to defeat the tenants' motions, the landlords argued that the anti-discrimination language of J-51 and Local Law 10 applied to future, rather than current tenants.

'Substantial Authority'

Justice Friedman disagreed.

Citing Kosoglyadov v. 3130 Brighton Seventh, LLC, 54 A.D.3d 822 (2nd Dep't 2008), and Timkovsky v. 56 Bennet, LLC, 23 Misc. 3d 997 (N.Y. County 2009), Justice Friedman held there is "substantial authority that existing tenants of buildings receiving J-51 benefits who are eligible for Section 8 subsidies are entitled to the protections of the antidiscrimination provision of the J-51 Law."

The plain language of the J-51 Law, which bars discrimination against "any person" based on the use or participation of Section 8 vouchers, "compels the same conclusion," Justice Friedman noted.

She also rejected the landlords' argument that their refusal to accept the vouchers does not run afoul of J-51, since they are not denying housing to existing tenants. Claiming the law requires a landlord to accept a tenant but not her voucher would render J-51's antidiscrimination provision meaningless, Justice Friedman concluded.

She also rejected the landlords' contention that Local Law 10, like J-51, does not apply to existing tenants not currently using Section 8 vouchers.

On its face, §8-107(5)(a)(2) or Local Law 10 of the Administrative Code of the City of New York protects "any person" from discrimination based on lawful source of income, Justice Friedman wrote.

And the judge held that neither federal nor state law preempted Local Law 10's antidiscrimination provision.

"While the antidiscrimination clause of Local 10 may impose an additional burden on landlords of rent stabilized tenants, that burden is incidental to the prohibition of discrimination. It does not increase the regulation to which the landlords are subject under the rent stabilization law or diminish the rent increases to which landlord are entitled under that law," she concluded. Magda L. Cruz of Belkin Burden Wenig & Goldman, who represented 3130 Brighton 7th Avenue, LLC, 231 Brightwater Court, LLC, QP II 35-18 95 Street, LLC, and Alco Realty I L.P., said her clients are weighing whether to appeal.

Niles C. Welikson of Horing Welikson & Rosen represented Successful Management Corp., Arbern 315 Ocean Parkway LLC, and West 187 Street Properties Inc. Mr. Welikson said he does not believe the language of J-51 or Local Law 10 supports Justice Friedman's ruling, and said his clients are weighing their options.

Judith Goldiner and Robert Desir of the Legal Aid Society's Civil Practice's Law Reform Unit represented the bulk of the tenants.

Mr. Desir said the ruling puts landlords on notice that they "should not treat tenants who need government assistance to help pay their rent any differently." He also said it "will give greater security to the countless families that are struggling to maintain their homes" in the current economic downturn.

Edward Josephson of South Brooklyn Legal Services represented tenant Rosa Carreras.

The parties are scheduled to appear before Justice Friedman on Aug. 20.

Noeleen.Walder@incisivemedia.com