Robinson v City of New York
2015 NY Slip Op 50752(U) [47 Misc 3d 1222(A)]
Decided on April 20, 2015
Supreme Court, New York County
Nervo, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 20, 2015
Supreme Court, New York County

Ernest Robinson and ROSA RODRIGUEZ,Individually and on behalf of all otherssimilarly situated, Plaintiffs,


The City of New York and STATE OF NEW YORK., Defendants.



For Plaintiffs:
Newman Ferrara LLP
1250 Broadway, 27th Floor
New York, New York 10001
(212) 619-5400

For Defendant City of New York:
Zachary W. Carter, Corporation Counsel
100 Church Street — Room 2-126
New York, New York 10007
(212) 356-2087

Frank P. Nervo, J.

Motion sequences 001 and 002 are consolidated for disposition in the accompanying decision and order.

In motion sequence 001, defendant State of New York (State), moves to dismiss plaintiffs' complaint on the grounds that the court lacks subject matter jurisdiction (CPLR 3211(2); plaintiffs lack standing bring the action (CPLR 3211(a)(3); plaintiffs fail to state a cause of action (CPLR 3211(a)(7); and that the injunctive relief plaintiffs seek violates separation of powers principals.

In motion sequence 002, defendant City of New York seeks identical relief.

Plaintiffs seek declaratory and injunctive relief under Title VII of the Civil Rights Act, 42 USC §3601 ( the Fair Housing Act or FHA) and 42 USC § 1983. Plaintiffs allege that defendant New York City's property tax classification system creates a disparate and adverse impact on African-American and Hispanic residents. According to the complaint, this deprives them, and similarly situated members of their class, of due process and equal protection of the laws.

Both individually named plaintiffs are renters in apartment buildings consisting of eleven or [*2]more units; their buildings are located in New York City.

Plaintiffs cross-move to amend their complaint by adding Governor Andrew Cuomo and New York State Commissioner of Taxation and Finance Thomas H. Maddox as defendants, both in their individual and official capacities.

The complaint alleges the New York state law divides New York City's real property into four classes: class one consists of one, two and three family homes; class two is all other residential properties; class three is property owned by utility companies; class four is all other commercial property.

The complaint alleges that Hispanics and African-Americans are twice as likely to reside in class 2 rental buildings than in class one cooperative or condominium apartments. The latter are predominantly occupied by white residents.

According to the complaint, although class one properties have nearly twice the market values of class two properties, in 2013 class one properties paid only 15.5% of the City's real property tax, while class two properties paid 37 %. Further, according to the complaint, the favorable tax treatment given to class one properties is offset by imposing "exceedingly harsh treatment to other property classes, including the residential properties in Class 2. Exacerbating matters, the primary Class Two tax burdens fall disproportionately onto one type of Class Two housing."

The complaint alleges that class one residential properties are significantly under-taxed in proportion to over-taxed class two residential properties, and that within class two property tax burdens fall disproportionately on rental property with eleven or more units. As a landlord's tax burden is born by tenants, approximately 30% of a tenant's rental payment is attributable to the landlord's property tax.

The complaint alleges that most rental buildings with eleven or more units are located in areas with high concentrations of Hispanic and African-American tenants. On the other hand, according to the complaint," New York City's White and Asian-American tenants are likely to live in the type of housing that receives favorable tax treatment."

Conceding that the City's property tax scheme is facially neutral, the complaint alleges that the statutory scheme is actually disproportionate and has a discriminatory effect on the City's Africa-American and Hispanic population. Therefore, it concludes that the statutory scheme violates the federal Fair Housing Act.

Both the State and City correctly argue that plaintiffs have no standing to bring this action. Plaintiffs have failed to show that they are suffering an "injury in fact"; that is, that they are suffering an actual harm. The claimed injury must be more than conjectural. (see New York State Anesthetists v. Novello, 2 NY3d 207, 211) Here, the plaintiffs can only speculate that a portion of their rent is for their landlords' taxes. They allege no facts showing that their rents would be lower under a different tax scheme. Moreover, there is no allegation showing that the tax plan in effect has a disparate or disproportionate impact on them based on race or ethnicity. White persons living in rental apartments are not subject to tax treatment that is more favorable than treatment accorded to plaintiffs.

Significantly, in arguing that 30% of their rent goes to taxes, plaintiffs demonstrate that they have no standing. There is no allegation that they have a contractual obligation to pay their respective landlord's tax bill. There is no allegation that they pay the entire bill. Absent this, plaintiff's have no standing to maintain this action. (In the Matter of Waldbaum, Inc. v. Finance Administrator of the City of New York, 74 NY2d 128132-133)

Even if plaintiffs had standing to maintain this action, the complaint must be dismissed for [*3]failure to state a cause of action.

Nothing in the complaint shows that plaintiffs, or any member of the purported class, has been denied housing or is compelled, by reason of the tax plan, to live in a racially or ethnically segregated neighborhood. While proof of discriminatory intent is not an element of a prima facie case under the Fair Housing Act, there must be a showing of adverse impact. (see Huntington Branch, National Association for the Advancement of Colored People v. The Town of Huntington, 844 F.2d 926, 935) The complaint does not allege facts showing any adverse impact.

A prima facie case under the statutes plaintiffs rely on is one in which, as noted, the challenged law or ordinance results in segregated neighborhoods or housing. The question becomes whether similarly situated white or other non-minority groups will not be as adversely affected as Hispanics or African-Americans. (see Housing Justice Campaign v. Koch, 164 AD2d 656,674) Plaintiffs complaint fails to make this showing. At most, the complaint alleges that there are more African-American and Hispanic persons in rental units than white persons. There is no allegation showing that the tax structure prevents the former group from occupying the same housing accommodations as the latter. The complaint fails to allege any facts showing that the current tax arrangement favors one racial or ethnic group over another group. (id.674, 675)

Finally, plaintiffs' claim, as pleaded, fails to state a cause of action under the Fair Housing Act because the defendants are not involved in the sale or rental of a dwelling or in the provision of services or facilities in connection with one. (id. At 672)

In light of the court's decision, defendants' remaining arguments are moot.

Further, in light of the court's decision, the cross-motion is denied.

Accordingly, it is

ORDERED that the motions to dismiss the complaint by defendants State of New York and City of New York are granted and the complaint is dismissed; and it is further

ORDERED that moving defendants are directed to server a copy of this order with notice of entry on the County Clerk and the Clerk of the Trial Support Office who shall mark the court's records to reflect the dismissal; and it is further

ORDERED that plaintiffs' cross-motion to amend the complaint is denied.


Dated: April 20, 2015