Opinion
No. 100937/2015.
01-22-2016
In the Matter of the Application of Robert SCOTT, Petitioner v. NEW YORK STATE DIVISION OF HUMAN RIGHTS (N.Y.SDHR), Jamies' Place I, LLC, Jamies' Place III, LLC, Metropolitan Realty Group, LLC d/b/a Metropolitan Realty Group, Jennifer Perez, and Goldberg & Weinberger, LLP, Respondents.
Robert Scott, Pro Se, Petitioner. Marilyn Balcacer Esq., New York State Division of Human Rights, Bronx, Lewis Goldberg Esq., Goldberg & Weinberger LLP, New York, for Respondents.
Robert Scott, Pro Se, Petitioner.
Marilyn Balcacer Esq., New York State Division of Human Rights, Bronx, Lewis Goldberg Esq., Goldberg & Weinberger LLP, New York, for Respondents.
LUCY BILLINGS, J.
I. INTRODUCTION
Petitioner seeks judicial review of the determination by respondent New York State Division of Human Rights (N.Y.SDHR) of no probable cause to believe that the remaining respondents unlawfully discriminated against him based on his African American race, by conducting an unlawful investigation of his criminal background and denying him rental housing. Respondents other than NYSDHR are his mother's landlord, its agent, the agent's former employee, and their attorneys. These landlord respondents maintain that they never investigated petitioner's background, that petitioner never applied to them for rental housing, and that consequently they never took any adverse action against him.
Although petitioner admits that he only attempted to serve the landlord respondents pursuant to C.P.L.R. § 312–a and fails to meet his burden to show that they returned his enclosed acknowledgments of receipt, Jiggetts v. MTA Metro–N. R.R., 121 AD3d 414, 414–15 (1st Dep't 2014), the court still must decide his petition on its merits because NYSDHR does not challenge his service on respondent state agency. Upon all the evidence petitioner presented to NYSDHR, it found none suggesting that petitioner or his mother had completed a written request to any of the landlord respondents as required to add him to his mother's lease with her landlord. Therefore the landlord respondents had no reason to investigate petitioner's background and no basis on which to deny him tenancy rights that were never requested. NYSDHR concluded, however, that, even had the landlord respondents investigated petitioner's background, no evidence indicated that such an investigation led to any adverse action by the landlord respondents, regarding petitioner's housing or otherwise against petitioner, due to his race. Nor did any evidence indicate their retaliation against him due to his complaints of discrimination.
II. THE MERITS OF PETITIONER'S CLAIMS
Petitioner nonetheless claims that the landlord respondents must have investigated his background, based on evidence suggesting that in 2000–2001 they knew his date of birth and Social Security number. Even if that knowledge in 2000–2001 shows they retained the information in 2014, when he claims the investigation occurred, and even if the mere retention of that information shows they acted on it specifically by investigating his background, these speculative causal connections are of no consequence, because NYSDHR assumed the landlord respondents did investigate his background. Yet NYSDHR found no evidence suggesting that any background investigation was due to petitioner's race or caused them to deny petitioner tenancy rights or to take any other adverse action regarding his housing due to his race.
For these reasons, petitioner's claims that the landlord respondents violated 24 C.F.R. § 5.855(b), regarding acceptance of applicants who have engaged in prior criminal activity for admission to the federally subsidized housing in which his mother resides, and that NYSDHR ignored this violation are also of no consequence. First, this regulation imposes no requirement on owners of federally subsidized housing, but merely permits them to establish a period before admission when an applicant must not have engaged in criminal activity. Therefore, whether the landlord respondents did or did not establish such a period, they would not be in violation of the regulation. Moreover, if the landlord respondents never investigated petitioner's prior criminal record or, even if they did, if they never acted on an application for his admission, they never used any such established period of lawful conduct against petitioner, let alone for any racially discriminatory reason.
Petitioner also complains that during the proceeding before NYSDHR respondent attorney disclosed to the agency that a stipulation in a prior court proceeding barred petitioner from residing with his mother and that this disclosure violated 24 C.F.R. § 5.903(b)(2). Section 5.903 imposes no requirement on the landlord respondents either. It applies to the disclosure of criminal conviction records to a public housing agency (PHA), which is the local governmental entity that administers federal assistance distributed to the owners of housing and specifically bars the disclosure of those records or their contents to owners. 24 C.F.R. § 5.903(d). Contrary to petitioner's misapprehension, the regulation does not apply to any "responsible entity," but only recognizes that a PHA is a "responsible entity." 24 C.F.R. § 5.903(b)(1). This regulation likewise is inapplicable because the disclosure was not of any criminal activity, consequences, or records. Finally, once respondents reviewed the stipulation itself, they all agreed with petitioner that it did not bar him from his mother's residence, but instead barred a different person. In sum, petitioner simply is grasping for any regulation remotely related to a criminal background investigation and claiming that somehow respondents violated the provision.
Petitioner then complains not about a request that he be added to his mother's lease, but about a request to the landlord respondents for an accommodation for a disability. He again claims that they have violated federal regulations by requiring a request for an accommodation to be in writing, but again fails to present any evidence that the landlord respondents have implemented such a requirement or how it has affected him. See, e.g., Phillips v. City of New York, 66 AD3d 170, 189 (1st Dep't 2009). He has not shown that he is disabled, N.Y. Exec. Law § 292(21), and made such a request, 42 U.S.C. §§ 3602(h)(1), 3604(f)(3)(B) ; NY Exec. Law § 296(18)(2), to maintain standing to claim an impediment to or denial of an accommodation. Lindsay Park Hous. Corp. v. New York State Div. of Human Rights, 56 AD3d 477, 478–79 (2d Dep't 2008) ; 105 Northgate Coop. v. Donaldson, 54 AD3d 414, 416 (2d Dep't 2008) ; Overlook Ave. Corp. v. New York State Div. of Human Rights, 8 AD3d 286, 287 (2d Dep't 2004) ; Taylor v. Harbour Pointe Homeowners Assn., 690 F.3d 44, 49–50 (2d Cir.2012). See Pimentel v. Citibank, N.A., 29 AD3d 141, 148–49, 151 (1st Dep't 2006).
If petitioner's mother is disabled, and the requested accommodation for her disability is petitioner's residence with her, she may request it, and he may assist her with that request. See Lindsay Park Hous. Corp. v. New York State Div. of Human Rights, 56 AD3d at 479. Neither he nor she raised any of these issues in his complaint to NYSDHR, however, so the court may not rule on them here. Prendergast v. City of New York, 44 AD3d 414, 415 (1st Dep't 2007) ; Green v. New York City Police Dept., 34 AD3d 262, 263 (1st Dep't 2003). See Rizzo v. New York State Div. of Hous. & Community Renewal, 6 NY3d 104, 110 (2005) ; Slesinger v. Department of Hous. Preserv. & Dev. of City of NY, 39 AD3d 246, 246–47 (1st Dep't 2007). In fact these issues are the subject of her complaint to NYSDHR which, depending on the ultimate outcome, may as a practical matter provide petitioner the relief he seeks and render this proceeding moot. V. Pet. Ex. G. See C.P.L .R. §§ 3211(a)(7), 7804(f) ; Ryan, Inc. v. New York State Dept. of Taxation & Fin., 83 AD3d 482, 483 (1st Dep't 2011) ; Callwood v. Cabrera, 49 AD3d 394, 394 (1st Dep't 2008).
III. JUDICIAL REVIEW
Judicial review of NYSDHR's administrative determination pursuant to C.P.L.R. § 7803(3) is confined to whether its administrative determination was arbitrary, an abuse of discretion, or affected by an error of law. BarFreeBedford v. New York State Liq. Auth., 130 AD3d 71, 77–78 (1st Dep't 2015) ; City of New York v. New York State Nurses Assn., 130 AD3d 28, 34 (1st Dep't 2015) ; 20 Fifth Ave., LLC v. New York State Div. of Hous. & Community Renewal, 109 AD3d 159, 163 (1st Dep't 2013) ; Roberts v. Gavin, 96 AD3d 669, 671 (1st Dep't 2012). NYSDHR's determination is arbitrary if it is not supported by any rational basis or is in disregard of the facts. Beck–Nichols v. Bianco, 20 NY3d 540, 559 (2013) ; Lantry v. State, 6 NY3d 49, 58–59 (2005) ; BarFreeBedford v. New York State Liq. Auth., 130 AD3d at 78 ; Roberts v. Gavin, 96 AD3d at 671. Petitioner points to nothing in the record indicating that NYSDHR denied petitioner the opportunity to present any claim or evidence in support of a claim. Barnes v. Beth Israel Med. Ctr., 113 AD3d 431, 431 (1st Dep't 2014) ; Pasqual v. New York State Div. of Human Rights, 37 AD3d 215, 216 (1st Dep't 2007).
Insofar as petitioner challenges NYSDHR's finding of no probable cause on the basis that NYSDHR failed to determine that the landlord respondents violated federal regulations governing his mother's federally subsidized housing, the evidence he presented to NYSDHR does not demonstrate a violation of these regulations. Nor does the evidence demonstrate the landlord respondents' violation of the New York State Human Rights Law's prohibition against racial discrimination in housing. NY Exec. Law § 296(5)(a)(1) ; Sayeh v. 66 Madison Ave. Apt. Corp., 73 AD3d 459, 460–61 (1st Dep't 2010). See New York State Div. of Human Rights v. Capraella, 82 AD3d 773, 774–75 (1st Dep't 2011).
Regarding petitioner's claim that the landlord respondents investigated his background because of his race, NYSDHR's exploration and examination of the evidence arrived at several specific findings that support its ultimate conclusion of no probable cause. BarFreeBedford v. New York State Liq. Auth., 130 AD3d at 78. NYSDHR found that neither petitioner nor his mother had completed the requisite request to any of the landlord respondents to add him to his mother's lease. Nothing in the record suggests that petitioner's mother was not notified of the procedure to request the addition of a household member to her lease. Absent such a request, the landlord respondents had no reason to investigate petitioner's background and no basis on which to deny him tenancy rights. Even if the landlord respondents did investigate his background, however, such an investigation did not lead to any adverse action against petitioner by the landlord respondents regarding his housing that was due to his race. See Wecker v. City of New York, 134 AD3d 474, 20 N.Y.S.3d 364, 365–66 (1st Dep't 2015). Nor did they retaliate against him due to his complaints of discrimination.
Although a request by petitioner's mother for an accommodation in her housing due to her disability was not raised before NYSDHR in this proceeding and therefore is not the subject of this judicial review, NYSDHR's determination of his mother's complaint to NYSDHR was part of the record before NYSDHR in this proceeding. V. Pet. Ex. H. That determination found that the landlord respondents "refused to accommodate Complainant because her son has a criminal conviction ." V. Pet. Ex. G, at 5. Thus the landlord respondents somehow knew about a past criminal conviction of petitioner, albeit not necessarily from any criminal background investigation by them. That criminal history caused them to deny his mother an accommodation permitting petitioner to reside with her as her caretaker.
NYSDHR accurately viewed this denial as adversely affecting not petitioner's housing, but his mother's housing, and as relating not to his disability, but to her disability. Petitioner, understandably, may have viewed the denial as adversely affecting his housing. While NYSDHR might have acknowledged this indirect effect on petitioner, the fact remains that the denial of an accommodation was not related to either petitioner's disability or to his race, but was based solely on the landlord respondents' desire to exclude persons with criminal convictions from the landlord's housing. Id. at 6. See City of New York v. New York State Nurses Assn., 130 AD3d at 36–37.
IV. DISPOSITION
Because NYSDHR's inquiry and findings support its determination of insufficient evidence that the landlord respondents discriminated against petitioner due to his race or retaliated against him due to his complaints of racial discrimination, its determination is neither arbitrary, nor contrary to the State Human Rights Law. C.P.L .R. § 7803(3) ; Lewis v. New York City Health & Hosps. Corp., 126 AD3d 442, 442 (1st Dep't 2015) ; Barnes v. Beth Israel Med. Ctr., 113 AD3d at 431. Therefore the court denies the petition and dismisses this proceeding. C.P.L.R. § 7806.