In Matter of People of the State of N.Y. v. Commons West, LLC, 2026 NY Slip Op 01253 (N.Y. App. Div. 3d Dept. March 5, 2026), the court upheld a lower court’s determination that New York’s law prohibiting housing discrimination based on lawful source of income, N.Y. Executive Law § 296 (5)(a)(1), is unconstitutional on its face.
From the decision:
It is beyond dispute that New York, like many states, faces a housing affordability crisis. There is also no question that the federal Section 8 housing choice voucher program, the largest rental assistance program in the nation, is a critical tool in advancing the availability of affordable housing. The Legislature, recognizing that landlords’ refusal to accept Section 8 housing vouchers is a significant barrier to the program, passed a law prohibiting discrimination against potential tenants based on their source of income, effectively requiring landlords to participate in the Section 8 program. We acknowledge the important points made by the amici curiae who have submitted briefs in this matter, including that expanding voucher acceptance is essential to achieving the remedial purpose of the federal program upon which hundreds of thousands of New Yorkers rely; that source-of-income discrimination is often a proxy for discrimination against other protected classes; and that the challenged statute reflects a deliberate — and laudable — legislative effort to address those interrelated concerns. Nonetheless, as a consequence of this law, landlords are now forced to consent to governmental searches of their rental properties and records. Given that, for the reasons that follow, the source-of-income discrimination law violates landlords’ Fourth Amendment rights to be free from unlawful searches, we are constrained to conclude that the law is unconstitutional on its face.
The court concluded that the lower court properly declared the source-of-income provision in Executive Law § 296 (5) (a) (1) facially unconstitutional to the extent that it makes it an unlawful discriminatory practice to refuse to rent or lease housing accommodations to any person, or group of persons, because their source of income includes Section 8 vouchers.