In Edstrom v. St. Nicks Alliance Corp., 2021 NY Slip Op 03112 (App. Div. 1st Dept. May 13, 2021), the court affirmed the dismissal of plaintiff’s claims of housing discrimination under the Fair Housing Act (42 USC §§ 3604 and 3617) and New York State Human Rights Law, but held that there were sufficient facts to warrant a trial on the claim of breach of the warranty of habitability.
As to the discrimination claims, the court explained:
Plaintiff alleges that his landlord failed to respond to reports of sexual-orientation and race-based harassment by a fellow tenant. In Francis v Kings Park Manor, Inc. (992 F3d 67, 75 [2d Cir 2021]), the Second Circuit acknowledged that deliberate indifference may be used to ground an FHA claim against a landlord when “a plaintiff plausibly alleges that a [landlord] exercised [the requisite] substantial control over the context in which the harassment occurs and over the harasser” However, the Second Circuit held, in relevant part, that “[t]he typical powers of a landlord over a tenant—such as the power to evict—do not establish the substantial control necessary to state a deliberate indifference claim under the FHA” (id.). Here, the complaint fails to state a claim under the FHA, because it provides no factual basis to infer that defendant had substantial control over the alleged harasser[*2], where it simply alleges the typically arms-length relationship between landlord and tenant.
Because we evaluate claims for violations of the State HRL under the same framework as the FHA (id. at 73), we find that plaintiff also fails to state a claim under section 296(5) of the NYSHR and thus the second cause of action was properly dismissed. These same principles would apply to plaintiffs’ cross motion to amend the complaint, which proposed amendments predicated on the same conduct, and therefore were devoid of merit as a matter of law for the reasons discussed above.
The court reached the opposite conclusion, however, as to the warranty of habitability issue, noting that “[t]he record reflects that plaintiffs routinely complained to defendants about a rodent infestation in the apartment, the condition was observed by witnesses other than plaintiffs, and eventually resulted in intervention by the New York City Department of Health & Mental Hygiene.”
The court therefore remanded for “further proceedings to determine the duration of the uninhabitable conditions and the appropriate rental abatement for the period the apartment suffered from the uninhabitable condition as measured by the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach.”