*1 15-1823
Francis v. Kings Park Manor, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2015
(Argued: April 7, 2016 Final Submission: November 22, 2016 Decided: December 6, 2019)
Docket No. ‐ ‐ cv _____________________________________
DONAHUE FRANCIS,
Plaintiff Appellant , KINGS PARK MANOR, INC., CORRINE DOWNING,
Defendants Appellees, RAYMOND ENDRES,
Defendant.
_____________________________________
Before:
POOLER, LIVINGSTON, LOHIER Circuit Judges In appeal, we consider whether may liable §§ Fair Housing Act (“FHA”), U.S.C. §§ 3617, analogous provisions New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law intentionally discriminating who *2 complains about racially hostile housing environment created by and leads arrest and conviction of another tenant. United States District Court for Eastern District New York (Spatt, J. ) dismissed claims plaintiff Donahue under FHA, U.S.C. §§ and and NYSHRL, well as other claims New York State law. We VACATE District Court’s dismissal federal claims NYSHRL claims REMAND for further proceedings. We AFFIRM District Court’s judgment all other respects.
Judge Livingston dissents separate opinion.
S ASHA S AMBERG ‐ C HAMPION (Yiyang Wu, John P. Relman, brief ), Relman, Dane & Colfax PLLC, Washington, DC, for Plaintiff Appellant M ELISSA C ORWIN (Stanley J. Somer, brief ), Somer, Heller & Corwin LLP, Commack, NY, for Defendants Appellees. Vanita Gupta, Principal Deputy Assistant Attorney General, Jennifer Levin Eichhorn, Sharon McGowan, Thomas Chandler, United States Department Justice, Civil Rights Division, Washington, DC; Tonya T. Robinson, Acting General Counsel, Michelle Aronowitz, Deputy General Counsel Enforcement Fair Housing, Kathleen Pennington, M. Casey Weissman ‐ Vermeulen, Alexandria Lippincott, U.S. Department Housing Urban Development, Office General Counsel, Washington, DC, Amicus Curiae United States America.
2 *3 Susan Ann Silverstein, AARP Foundation Litigation, Washington, DC, for Amicus Curiae AARP.
LOHIER, Circuit Judge :
Just over fifty years ago, spurred by assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII Civil Rights Act of commonly referred as Fair Housing Act (“FHA” “Act”), U.S.C. et seq., landmark piece civil rights legislation accompanied Civil Rights Act and Voting Rights Act main question before us whether landlord may be liable under FHA intentionally discriminating against tenant based tenant’s race. In case, landlord allegedly refused take action address what knew be racially hostile housing environment created one targeting another, though landlord had acted other tenants redress prior, non race related issues. In holding may liable those limited circumstances, we adhere FHA’s broad language remedial scope. We therefore vacate judgment United States District Court Eastern District New York (Spatt, J.) dismissing Donahue claims under analogous New York State law, well as claims U.S.C. §§
3
remand further proceedings. As Francis’s challenges District Court’s dismissal his other claims, we affirm.
B ACKGROUND
1. Facts
allegations Francis’s complaint, which we assume be true, see Morales City New York, (2d Cir. 2014), tell story remains too common today. “Having lived inner city urban communities during earlier parts life,” “in search better housing situation,” Francis signed rental lease agreement with defendant Kings Park Manor Inc. (“KPM”). He soon moved into apartment unit complex owned by managed co defendant Corrine Downing (together KPM, “KPM Defendants”). After several uneventful months, next door neighbor, Raymond Endres, began subject Francis what can only described as brazen relentless campaign racial harassment, abuse, threats.
The specific allegations are follows. Joint App’x 11–17. In February Francis heard Endres say “Jews, fucking Jews,” while standing in front their apartments. Endres then called Francis, who black, a “fucking nigger.” On March 3, Endres approached Francis’s open front door and said “damn fucking Jews,” then looked Francis and said “fucking asshole.” On March 10, Francis overheard Endres and another discussing Francis “in derogatory terms.” following day, Endres approached Francis’s open front door repeatedly called him “nigger,” then stated, “fucking nigger, close your god ‐ darn door, fucking lazy, god damn fucking nigger.” On March 20, Francis repeatedly called Francis “nigger” parking lot apartment complex. By this point, Francis understandably “felt afraid, anxious, unwelcome.” On May 14, Endres yelled “fuck you” front front door; following day, Endres approached Francis, who leaving his apartment, said, “keep your door closed you fucking nigger.” On May 22, Endres told Francis, “I oughta kill you, you fucking nigger.” On August 10, Endres called Francis “fucking nigger” “black bastard.” Finally, September Endres *6 stood Francis’s open front door and photographed interior Francis’s apartment.
From start Endres’s several month campaign harassment, Francis, “fear[ing] for personal safety,” contacted police and KPM Defendants complain. His first call police March prompted Suffolk County Police Hate Crimes Unit officers visit KPM apartment complex, interview witnesses, warn Endres stop threatening Francis racial epithets. That day Francis also filed police report, police officer told KPM Defendants about Endres’s conduct. The KPM Defendants did nothing.
In May Francis called police again filed another police report. This time, letter dated May notified KPM Defendants directly about Endres’s racist conduct between March May letter “report[ed] . . Endres for racial harassment, [and] for making racial slurs directly [Francis].” It provided contact information Suffolk County police officers responsible investigating Endres. Again, Defendants failed do anything all, little as respond letter.
6
Endres’s conduct persisted. His escalating racial threats to Francis finally prodded Suffolk County Police Department to arrest Endres aggravated harassment violation New York Penal Law 240.30. On August Francis sent second letter. It informed KPM Defendants Endres continued to direct racial slurs at Francis “anti ‐ semitic, derogatory slurs against Jewish people.” It disclosed Endres had recently been arrested harassment.
Endres’s attempt photograph Francis’s apartment September apparently last straw. contacted police following day sent KPM Defendants third final letter complaining about Endres’s continued racial harassment. After receiving letter, KPM advised Downing “not get involved,” KPM Defendants declined respond or follow up, though they had “intervened other tenants at Kings Park Manor regarding non race related violations their leases law.” Joint App’x 19–20. As result, Endres remained apartment complex. complaint alleges Defendants only failed investigate attempt resolve complaints racial abuse but, contrary, allowed Endres live complex through January without
7
reprisal. That month, Endres’s lease expired and he moved out of apartment. A few months later, in April 2013, Endres pleaded guilty harassment in violation of New York Penal Law § 240.26(1). That same month, the State court entered order of protection prohibiting him contacting Francis.
2. Procedural History In June 2014 Francis sued the KPM Defendants and Endres, claiming primarily they violated §§ 3604 and 3617 of FHA, [4] the Civil Rights Act of U.S.C. §§ 1982, and KPM Defendants violated § 296(5) of New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296(5), which bars housing New York. sued KPM Defendants and Endres for negligent infliction of emotional distress and for violating NYSHRL § 296(6) aiding and abetting violation of NYSHRL § 296(5), KPM Defendants breach contract breach of implied warranty habitability under New York State law, Endres intentional infliction emotional distress. The District Court entered default judgment Endres, who never appeared. Defendants moved Rule *9 12(b)(6) dismiss claims against them for failure to state claim. The District Court granted motion except as Francis’s implied warranty of habitability claim, which Francis voluntarily withdrew and District Court dismissed. District Court then granted partial final judgment favor Defendants so could pursue this appeal, though damages against Endres remained determined. See Fed. R. Civ. P. 54(b).
Following oral argument, we solicited HUD’s views relating landlord’s potential liability tenant’s racial harassment another tenant under its regulations. In response, HUD, as amicus curiae, points us its rules designed clarify law area urges us recognize certain limited claims landlords arising out tenant racial harassment.
D ISCUSSION
We focus federal claims arising under §§ under Civil Rights Act as well as New York claims arising NYSHRL negligent infliction emotional distress. We review District Court’s dismissal these claims de novo, accepting factual allegations complaint true. Biro Condé Nast, (2d Cir. 2015).
9
1. Post Acquisition Claims Under Fair Housing Act We start with statutory text. As relevant appeal, § 3604(b) of Act makes it unlawful “[t]o discriminate any person in terms, conditions, or privileges sale or rental of dwelling, or in provision of services or facilities connection therewith, because race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b). Section 3617 Act makes it “unlawful coerce, intimidate, threaten, or interfere with any person exercise enjoyment of, or account having exercised or enjoyed” right protected Act. 42 U.S.C. § language “broad inclusive compass,” City Edmonds v. Oxford House, Inc.,
We first address claims §§ 3604(b) text those principles mind. As threshold matter, we consider whether prohibits occurring after plaintiff buys rents housing. We
10
hold so ‐ called “post ‐ acquisition” claims arise from intentional discrimination are cognizable § In other words, the FHA has some post acquisition application, we here describe only the degree of application necessary resolve claims appeal.
Our view rooted first in the language of the provision itself, which prohibits in “terms, conditions, or privileges of sale or rental of dwelling, or provision of services or facilities connection therewith.” U.S.C. 3604(b). Like our sister circuits, we locate text least some degree post acquisition protection. We agree with Seventh Circuit, example, FHA’s use terms “privileges” “conditions” refers just sale or rental itself, but certain benefits or protections flowing following sale or rental. Bloch v. Frischholz, F.3d 779–80 (7th Cir. 2009) (en banc). And we agree analysis Ninth Circuit, example, “[t]he inclusion word ‘privileges’ implicates continuing rights,” indicating “natural reading” statute “encompasses claims regarding services facilities perceived wanting after owner acquired possession dwelling.” Comm. Concerning Cmty. Improvement City Modesto, (9th Cir. 2009). In other
11
words, we rely only on Supreme Court’s directive that we read statute broadly, but and more fundamentally on statutory text itself. Cf. U.S.C. § 2000e ‐ 2(a)(1) (Title VII) (banning both pre ‐ post ‐ hiring racial harassment, similarly providing that “[i]t shall an unlawful employment practice employer . . . discriminate against any individual with respect his compensation, terms, conditions, privileges employment, because such individual’s race” (emphasis added)); Neudecker Boisclair Corp., 364–65 (8th Cir. 2003) (where tenant’s suit property management company alleged that he subjected repeated disability ‐ based harassment fellow tenants, he reported harassment company “to no avail,” harassment interfered with his right enjoy home, Eighth Circuit concluded such post acquisition “disability harassment” claim “is actionable FHA,” relying analogous language Americans with Disabilities Act U.S.C. § et seq.).
It telling issue whether prohibits type post acquisition discrimination, every other circuit faced issue acknowledged 3604(b) least prohibits “discrimination relating . .
12
actual or constructive eviction,” which is necessarily post acquisition. Cox v. City of Dallas,
We therefore conclude § 3604(b) reaches conduct that, here, “would constitute enjoyment residence dwelling provision services associated with dwelling” after acquisition. Modesto, F.3d 714; see Wetzel v. Glen St. Andrew Living Cmty., LLC, F.3d
866–67 (7th Cir. 2018); Honce v. Vigil, F.3d 1088–90 (10th Cir. 1993) (a hostile housing environment claim actionable “when offensive behavior unreasonably interferes use enjoyment premises” *14 “sufficiently severe or pervasive alter conditions of housing arrangement” (quotation marks omitted)). if there were any doubt reaches post acquisition conduct
— we think there none — has also brought claim § 3617. Recall section makes “unlawful coerce, intimidate, threaten, or interfere with any person exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account his having aided or encouraged other person exercise or enjoyment of, any right granted or protected by section . . 3604.” U.S.C. § 3617. Section more comprehensively prohibits discriminatory conduct barred § 3604(b) creates independent cause action. Based our reading text provision, we agree with Seventh Circuit “[c]oercion, intimidation, threats, or interference or account person’s exercise her [§ 3604(b)] rights can distinct from outright violations [§ 3604(b)].” Bloch, “For instance, if landlord rents white tenant but then threatens evict him upon learning he married black woman, plainly violated § whether he actually evicts not.” Id. Separate apart 3604(b), then, § applies least some post acquisition conduct. As
14
we explain below, has adequately alleged Defendants violated § 3617 interfering with rights § 3604(b). [6]
We add here that, consistent with our interpretation of §§ 3604 3617, HUD’s regulations for thirty years clearly contemplated claims based on post ‐ acquisition conduct. In 1989, example, HUD promulgated regulations prohibited “[f]ailing or delaying maintenance or repairs of sale or rental dwellings because of race,” 24 C.F.R. § 100.65(b)(2), “[l]imiting use of privileges, services facilities associated dwelling because race. . . owner [or] tenant,” id. § 100.65(b)(4); see Bloch,
Finally, our view, contrary interpretations §§ 3604(b) would contravene Congress’s intent to root out housing to “replace ghettos [with] truly integrated balanced living patterns.” Trafficante, U.S. (quotation marks omitted). With objective building racially integrated society mind, it would make no sense for Congress require landlords to rent homes without regard to race but then permit them harass otherwise discriminate against tenants because race. Babin, (The FHA “encompasses such overt acts as racially ‐ motivated firebombings . . [or] sending threatening notes.”). Landlord Liability Tenant ‐ on ‐ Tenant Racial Harassment
Having concluded FHA encompasses post ‐ acquisition claims, we next consider whether may liable intentionally discriminating tenant by, alleged occurred here, choosing take reasonable steps within its control address tenant tenant harassment which it actual notice specifically based race, though chooses take steps address other forms misconduct
16
unrelated race. Seventh Circuit, which only other circuit grapple with a similar issue, held FHA “creates liability a landlord actual notice of tenant ‐ on ‐ tenant harassment based on a protected status, yet chooses take reasonable steps within its control stop harassment.” Wetzel, F.3d at
We agree text of which forbids “interfer[ence]” with a person’s “exercise or enjoyment of” or her rights under FHA, clearly encompasses landlord liability for tenant’s racially hostile conduct least some circumstances. Wetzel, 862–63. For example, landlord who fines tenants creating fire hazards or littering on premises, who responds complaints certain forms tenant ‐ on ‐ tenant harassment, but then watches silently white tenants burn cross dump trash front home recently arrived black tenants, may be said intentionally interfere tenant’s rights FHA basis race.
It true text nowhere explicitly endorses liability arising such tenant harassment. we never required every last detail legislative scheme spelled out statute
17
1 itself—especially a civil rights statute. After all, the FHA makes no explicit 2 reference to liability for actual or constructive eviction, even though that form of 3 liability is widely recognized. [7] See Wetzel, 901 862–63, 866–67.
4 In urging that we affirm the District Court’s dismissal of Francis’s FHA 5 claims, the Defendants argue that even if a hostile housing environment 6 claim were cognizable under the FHA, failed to allege they 7 intentionally discriminated him. In response, we assume without 8 deciding intentional element of an FHA violation and 9 conclude complaint, viewed light most favorable Francis, *19 plausibly and adequately alleges that KPM Defendants engaged in intentional racial discrimination. Specifically, complaint alleges that KPM Defendants “discriminat[ed] against [Francis] tolerating and/or facilitating hostile environment,” even though defendants had authority “counsel, discipline, evict [Endres] due continued harassment [Francis],” and also had “intervened other tenants Kings Park Manor regarding non ‐ race ‐ related violations their leases law.” Joint App’x 19–20. In other words, Francis has, in our view, adequately plausibly alleged both that KPM Defendants were actually aware Endres’s criminal racial harassment — harassment so severe it resulted police warnings arrest eventual conviction Endres — defendants intentionally refused address harassment because it based race, though they had addressed non ‐ race–related issues past, including, it reasonable infer, tenant harassment. Wetzel, Accepting these allegations true, KPM Defendants “subjected [Francis] conduct forbids.” Id. Discovery may show Defendants fact tried but failed address complaints. Or may unfold defendants declined *20 to address other, similar complaints unrelated to race, that they were powerless to address Endres’s conduct. [8] Francis is entitled to discovery regarding these issues.
For these reasons, we vacate the District Court’s dismissal Francis’s claims remand further proceedings relating to those claims.
[9]
The Civil Rights Act The District Court dismissed claims under Civil Rights Act U.S.C. §§ 1982, because he failed to allege that KPM Defendants acted with racial animus, rather than deliberate indifference. In an action §§ a plaintiff must allege three elements: First, that plaintiff is member racial minority; second, that defendant intended discriminate based on plaintiff’s race; third, that
*21
concerned one enumerated statutory activities (here, to make and enforce contracts (§ 1981) to lease property (§ 1982)). Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
21 *22 State Law Claims
Finally, challenges District Court’s dismissal of his claims under NYSHRL §§ 296(5) and 296(6), well as its dismissal of claim negligent infliction of emotional distress under New York State law. We address each challenge in turn.
a. New York Executive Law
Section 296(5) of NYSHRL, like FHA, prohibits housing discrimination provides in relevant part: “It shall unlawful discriminatory practice owner, lessee, sub lessee, assignee, or managing agent . . [t]o discriminate any person because race . . . terms, conditions or privileges sale, rental or lease such housing accommodation furnishing facilities services connection therewith.” N.Y. Exec. Law § 296(5)(a)(2); see id. § 296(6) (prohibiting aiding abetting “any acts forbidden under article”). Stating housing discrimination claim under New York State law substantially similar stating housing claim FHA. Stalker Stewart Tenants Corp., N.Y.S.2d 602–03 (1st Dep’t 2012) (noting “substantial identity between language purposes Executive Law 296(5) those
22
federal Fair Housing Act”). Indeed, “[c]laims under FHA [§] are evaluated under same framework.” Olsen v. Stark Homes, Inc., (2d Cir. 2014) (quotation marks omitted). The District Court understood point, concluding that Francis’s “claim under [§] 296(6) fail[ed] as a matter of law” for same reasons FHA claims failed. Kings Park Manor, Inc., F. Supp. 3d (E.D.N.Y. 2015).
Because we conclude FHA claim must proceed rather than fail, we vacate District Court’s dismissal Francis’s claims remand for further proceedings.
b. Negligent Infliction Emotional Distress District Court dismissed claim for negligent infliction emotional distress ground a owes no common law duty care prevent one from harassing another tenant. we explained above, Defendants may had a duty arising itself. Nevertheless, we affirm separate reason injury negligent infliction emotional distress “is compensable only when [it is] direct, rather than consequential, result breach” duty defendant owes
23
plaintiff.
[10]
Kennedy v. McKesson Co.,
C ONCLUSION We considered parties’ remaining arguments and conclude they are either without merit or, with Defendants’ arguments based First, Fourth, and Fourteenth Amendments, forfeited. For reasons set forth above, we VACATE District Court’s dismissal claims FHA, §§ 1982, NYSHRL 296, REMAND further proceedings consistent opinion. We AFFIRM District Court’s judgment all other respects.
*25 D EBRA A NN L IVINGSTON , Circuit Judge :
According majority, the principal question case presents is whether a may liable Fair Housing Act of (the “FHA”), U.S.C. § et seq., “for intentionally discriminating against based on tenant’s race.” Maj. Op. at there no question about at all. Section 3604(b), one of two FHA provisions at issue here, expressly makes it unlawful , in relevant part, “to discriminate any person in terms, conditions, or privileges sale or rental dwelling . . . because race, color, religion, sex, familial status, or national origin.” [1] If “limited” question identified by majority were truly principal one presented, id. , it would not required opinion, let alone more than three years, solicitation an agency’s views, filing two opinions arrive decision. This case instead calls us determine another issue: whether properly construed impose duty landlords, merely refrain themselves discriminating terms, conditions, or privileges offered connection with lease, but remediate harassing behavior tenants see Draft Op. *26 thereby forcing landlords monitor and (expeditiously) correct such behavior, however done. As issue, the majority repeatedly assures merely recognizes “limited claims landlords arising out tenant on ‐ racial harassment.” Id. make no mistake: Sections 3604(b) cannot bear interpretation imposed them today, which has no support FHA’s text, our precedent, background tort principles informed Congress time FHA enacted. Repeating central errors its first opinion compounding them twice over now simply disregarding allegations complaint, steers our jurisprudence into “uncharted territory,” Wetzel Glen St. Andrew Living Cmty. LLC , (7th Cir. 2018), where courts improbably discover new causes action half ‐ century old provisions, heedless deleterious consequences parties, courts, housing market. I again respectfully dissent.
I
I begin complaint’s allegations with unusual procedural history resulted current resolution Defendants’ motion dismiss. In May Donahue (“Francis” “Plaintiff”) moved Kings Park Manor, “quiet residential complex” Long Island. Joint Appendix *27 (“J.A.”) 8. Almost two years passed without incident. Id. in February 2012, neighbor, Raymond Endres, began “series [racially motivated] verbal assaults” Francis, an African American. Id. Francis notified Suffolk County Police Hate Crimes Division his neighbor’s unlawful conduct, and police promptly began investigation. Francis did not mention these incidents KPM Defendants, however, for almost three months. Instead, he renewed his lease without comment. J.A. Moreover, in May when Francis finally did alert KPM Defendants Endres’s egregious conduct ongoing police investigation, Francis did not at time request any action landlord’s part. As perpetrator, Endres shortly thereafter arrested charged aggravated harassment.
Endres’s lease came up renewal end year. Notably, Defendants declined renew Endres’s lease November within year original incident only few months after they received notice Francis about harassment. Endres thereafter vacated Kings Park Manor January 2013. Francis does allege harassment transpired period between nonrenewal Endres’s lease Endres’s departure. J.A. So far record reflects, continues live Kings Park Manor *28 today.
Francis brought suit against KPM Defendants June 2014, claiming primarily his had violated §§ 3604 and 3617 of FHA and Civil Rights Act 42 U.S.C. §§ 1981 and 1982. [2] In August 2014, KPM Defendants moved dismiss complaint. district court (Spatt, J. ) granted motion, concluding as FHA claims assuming these claims were otherwise viable, both §§ 3604(b) 3617 require intentional discrimination on part defendant Francis had alleged “no basis imputing allegedly harass[ing] conduct KPM Defendants opposed Endres, KPM Defendants failed intervene on account their own racial animus toward Plaintiff.” Francis Kings Park Manor, Inc. F. Supp. 3d (E.D.N.Y. 2015). As Judge Spatt observed, Francis had made “no allegation derogatory remarks directed him agent, disparate treatment based race, allegations circumstantial evidence supporting inference [the] basis race.” Id. Accordingly, neither claims nor §§ claims—also requiring intentional *29 discrimination on the part the KPM Defendants—could proceed.
When this appeal was argued over three years ago, on April Francis asserted that question presented was “whether FHA should be read to impose obligation on housing providers to remedy discriminatory housing environment created by one tenant harassing another.” Oral Argument at 49:00, Francis v. Kings Park Manor (No. ‐ 1823). Francis’s brief on appeal did not contend complaint plausibly alleged intentional part KPM Defendants, but instead primarily urged Court to impose liability under “ negligent failure remedy discriminatory [housing] environment.” Br. Pl ‐ Appellant (emphasis added). After argument, panel solicited input Department Housing Urban Development (“HUD”), asking agency convey its past practices addressing “whether landlords may liable Fair Housing Act failing correct end ‐ tenant discriminatory harassment.” Letter U.S. Department Housing Urban Development Requesting Amicus Curiae Briefs, *30 Kings Park Manor , 2d Cir. No. 15 ‐ ECF No. 102. HUD responded an amicus brief and a brand new legislative rule (enacted after this litigation began) which provides a landlord may liable FHA “failing to take prompt action to correct end discriminatory housing practice by third ‐ party” irrespective whether herself harbored racial animus. 24 C.F.R. 100.7(a)(1) (the “HUD Rule”); see Maj. Op. 18 n.6 (interpreting language extend to “’a discriminatory housing practice by third party’ tenant” (quoting HUD Rule)). majority’s original opinion relied heavily on HUD Rule
analogy Title VII case law holding imposes liability landlords “failing take prompt action address racially hostile housing environment created by one targeting another,”
regardless
landlord’s discriminatory intent.
Francis Kings Park Manor, Inc.
,
*32
abstraction[ ]—untethered from allegations” regarding
actual
interventions either tenant disputes specifically lease violations generally – thus a
very
far cry what we required employment context assert plausible claim purposeful discrimination.
E.E.O.C. v. Port Auth. N.Y. & N.J.
(2d Cir. 2014);
see Mandell v. Cnty. Suffolk,
Simply put, “naked assertion” which majority relies once again revive complaint (after over three years review) does plausibly support inference discriminatory intent, dooming both claims claims pursuant §§ Ashcroft Iqbal, U.S. 676–78 (2007) (noting complaint fails state claim “if tenders naked assertion[s] devoid further factual enhancement,” pleading “purposeful requires more than . . intent awareness consequences”) (internal quotation marks omitted). It no surprise comes up *33 short, given himself did not set out to plead claim majority belatedly discerns. But inability to predict majority’s theory (who could?) does not license majority to conjure new pleading. It must point to something complaint “ way factual content ” support its conclusion this complaint plausibly alleges purposeful discrimination. Id. (emphasis added). It not done so because there nothing there.
To clear, does purport modify this Circuit’s pleading standards (nor empowered do so). faithful application pleading standard employed today would appear expose all landlords suit for purposeful based wrongful conduct one tenant vis ‐ à ‐ vis another so long such landlords ever responded lease violation. Thus, when demands overdue rent payments, thus “interven[ing] . . tenants . . . regarding non ‐ race ‐ related violations their leases,” see Maj. Op. she assumes an ill defined responsibility intervene (and immediately commence eviction proceeding?) whenever complains about allegedly racially motivated behavior another tenant. Landlords Circuit may therefore face choice between two lawsuits: one for violating FHA, other wrongful eviction, unforeseen consequences those *34 improperly accused discrimination, mention those attempting to obtain housing on reasonable economic terms. The district court correctly concluded this case complaint is devoid allegations suggesting Defendants “failed intervene account their own racial animus toward Plaintiff.” , F. Supp. 3d The majority’s erroneous conclusion contrary cannot change this Circuit’s pleading standards, but today’s decision certainly sows confusion how those standards are be applied.
II
Of more concern majority’s continued misinterpretation FHA. The majority acknowledges neither 3604(b) nor § nor FHA generally, “explicitly endorse[] liability ‐ ‐ tenant harassment.” Maj. Op. 18–19. The nevertheless adopts new ill ‐ defined liability theory, despite caution should arise considering if FHA truly provided such cause action, one might expect some supporting precedent fifty ‐ plus years since *35 enacted. In point of fact, and as set forth below, the provisions which the majority relies (not mention background tort principles informing Congress at FHA’s enactment and years of precedent since) are most reasonably read exclude landlord’s liability in circumstances here.
1. Textual Analysis
I start with text. Section 3604(b) of makes it unlawful “to discriminate any person in terms, conditions, or privileges of sale or rental dwelling, or provision services or facilities connection therewith, because race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b). Section 3617 makes “unlawful coerce, intimidate, threaten, or interfere person exercise or enjoyment . . any right granted protected by [§ 3604].” Id. at § At start, face each provision, statutory language requires plaintiff prove discrimination related conduct by defendant would appear impose ongoing duty prevent by third parties. [6] As concedes, neither *36 provision facially contemplates liability failing redress tenant ‐ on ‐ tenant harassment. Maj. Op. 17.
Quite opposite. Consider first § contends landlord’s failure redress ‐ ‐ tenant harassment qualifies as an “interference” with enjoyment “right . . protected by” § 3604(b).
id.
assuming § 3604(b) were otherwise applicable (and as I set out below, not), majority’s position constitutes wholly untenable interpretation word “interfere,” which contemporaneous dictionaries define as “to check, hamper; hinder; disturb; intervene; intermeddle; interpose; enter into or take part in, concerns others.”
Black’s Law Dictionary
951 (4th ed. 1968);
see Revock v. Cowpet Bay W. Condo. Ass ʹ n,
That brings us back antecedent question of § 3604’s proper interpretation. The majority errs its treatment plain language this provision which, as already noted, prohibits discriminatory conduct by defendant, failure prevent harassment third parties. majority errs its resolution another question long left unanswered this Circuit: namely, whether § 3604(b) reaches conduct occurring after initial sale rental residence, let alone landlord’s alleged failure prevent remediate conduct tenants commencing years after plaintiff’s lease signed. majority reassures “there no circuit split whether reaches post acquisition conduct.” Maj. Op. I agree. Deflecting attention this uncontested proposition, however, obfuscates deep division does exist scope degree provision’s post acquisition reach. It then proceeds sub silentio place this Court wrong side division, potentially traumatic consequences Circuit’s housing market.
A brief history case law regarding § 3604’s post acquisition reach necessary to explain just how badly errs. First, as Judge Posner noted some years ago when analyzing provision at issue here, “[t]he Fair Housing Act contains no hint either in its language or its legislative history a concern anything but access housing.” Halprin Prairie Single Family Homes Dearborn Park Ass’n (7th Cir. 2004). Because FHA’s central focus was “the widespread practice” in “of refusing sell or rent homes desirable residential areas members minority groups,” post ‐ acquisition problems, including “ harassing . . neighbors ,” would “tend arise until Act was enacted enforced.” Id. 328–29 (emphasis added). Unsurprisingly, then, nothing FHA suggests Congress trying solve such future problems, endeavor that, Judge Posner suggested, “would required [the most] careful drafting,” lest disputes among neighbors become “a routine basis federal litigation.” Id.
Judge Posner allowed “might be stretched far enough” post acquisition context reach
conduct
by defendant amounting constructive eviction—on theory continued occupancy might privilege sale rental home protected 3604(b), perhaps
*39
constructive eviction renders a dwelling “unavailable,” as prohibited § 3604(a).
[7]
Halprin
, 388 F.3d at The Fifth Circuit recognized such carefully circumscribed post acquisition claims under § 3604(b).
[8]
majority, however, goes
much
further. It aligns itself with Ninth Circuit’s position reaches
any
“conduct,” including a defendant’s
failure
to act, “that . . . ‘constitute[s] discrimination in enjoyment residence in a dwelling or in provision services associated dwelling’ after acquisition.” Maj. Op. 17 (quoting
Comm. Concerning Cmty. Improvement v. City Modesto
,
The majority gets to its broad construction by interpreting the term “privileges” (in § 3604(b)’s prohibition discrimination the “terms, conditions, or privileges of sale or rental of a dwelling”) encompass claims regarding any “‘services or facilities perceived be wanting after the owner or acquired possession of the dwelling’”—regardless of whether such services or facilities have any connection rental or sale. Maj. Op. at (quoting Modesto , F.3d 713). term “privileges of . . . rental” simply does not vague expansive scope majority’s (and Ninth Circuit’s) interpretation affords it. FHA expressly defines “to rent” “to lease, *41 sublease, to let otherwise to grant consideration the right to occupy the premises not owned the occupant.” U.S.C. § 3602(e). Section 3604(b)’s prohibition on discrimination in the “terms, conditions, or privileges of . . . rental” thus most reasonably read refer discrimination in the terms, conditions, privileges of the rental arrangement —a construction may some post ‐ acquisition application (prohibiting, instance, constructive eviction basis of race) but still ties potential liability discrimination regarding commitments made benefits afforded in connection rental itself. To clear, § 3604(b) prohibits discrimination in “terms, conditions, or privileges sale or rental dwelling, or in provision of services or facilities connection therewith . . .“ (emphasis added). doesn’t change analysis. As Fifth Circuit recognized, prohibition “the provision services or facilities connection therewith” applies specifically “ sale rental [the] dwelling,” rather than dwelling generally. Cox City Dallas (5th Cir. 2005) (emphasis added) (holding municipality’s alleged failure prevent dumping near plaintiffs’ homes was not actionable 3604(b) because allegedly discriminatory enforcement zoning laws “connected” sale rental *42 dwelling). The Fifth Circuit directly addressed § 3604(b)’s text, noting its interpretation of the language “grammatically superior” in requiring a relationship between the services or facilities at issue a sale or rental. Id. majority fails recognize the same limiting principle holds true the word “privileges” § 3604(b)’s prohibition against discrimination in the “terms, conditions, or privileges sale or rental.” “[P]rivileges of sale or rental,” like “terms conditions,” requires a connection sale or rental, so all alleged impairments person’s post acquisition enjoyment residence are sufficiently connected sale or rental trigger § 3604(b). As Fifth Circuit explained requiring such connection, argument contrary, based solely reading word “privileges” isolation statute as whole, notably “unconvincing.” Cox , F.3d n.32.
So why does majority embrace Ninth Circuit’s amorphous atextual approach question § 3604’s post acquisition reach—an approach that, as Fifth Circuit suggested, would appear have effect affording 3604(b) cause action alleged anyone , so long their action (as would it) their inaction could said “impact[] property values” enjoyment leasehold? Cox *43 746. For a simple reason. The only post ‐ acquisition “privilege” that has been recognized by every circuit considered question—continued occupancy—is issue here. after today, this doesn’t matter. The majority joins Ninth Circuit in eliminating any required connection between “privileges sale rental a dwelling” sale rental itself. And by unmooring 3604(b) limiting principle (or any other), majority is able discern a new FHA duty part landlords (despite lack supporting language in statute) intervene in tenant disputes. Background Tort Principles Precedent
The problems majority’s approach only grow worse when considered light background legal principles precedent. Supreme Court, after all, instructed that “an action brought for compensation victim housing is, effect, a tort action.”
Meyer Holley
,
*44
this traditional requirement.”
Bank Am. Corp. v. City Miami
,
The ignores fundamental tenet statutory interpretation because courts general New York courts particular have been
remarkably
clear: a landlord no duty to protect a tenant from even criminal act another “since cannot be said [a] landlord ha[s] ability or a reasonable opportunity to control [the offending tenant].”
Blatt v. N.Y.C. Hous. Auth.
,
*47
have assumed without deciding (in unpublished summary order) that a plaintiff may state such a claim in appropriate circumstances.
Khalil v. Farash Corp.
,
The majority relies one case only, the Seventh Circuit’s recent opinion Wetzel . Maj. Op. at 17 (noting that Seventh Circuit “is only other circuit grapple with similar issue”). But case, involving alleged harassment protected grounds senior citizen living senior facility, distinguishable instant case. [13] To be clear, Wetzel does hold *48 “creates liability landlord that actual notice ‐ ‐ tenant harassment based protected status, yet chooses not to take reasonable steps within its control to stop that harassment.” Wetzel , F.3d at 859. In concluding that such control was adequately alleged, however, the court pointed “Tenant’s Agreement” governing defendant’s “residential community for older adults.” Id. This agreement guaranteed residents, inter alia, provision three meals daily served central location access community room. Id. defendant landlord there was alleged not only have failed remediate harassment plaintiff other residents, but (and importantly) have itself barred plaintiff common spaces that she entitled frequent. Id. 860. Under these circumstances, plaintiff may sufficiently alleged landlord “discriminate[d] . . provision services facilities ,” see U.S.C. 3604(b) (emphasis added), had been guaranteed rental arrangement. Wetzel To extent Wetzel reads more broadly align majority’s opinion here, similarly unpersuasive. Wetzel acknowledges “does not address” question liability third party harassment, statute “does spell out test” liability these *49 circumstances. Id 863. These concessions support my view: the statute does not “address” a distinct duty the part the redress harassment because the statute does not impose one. And it would be peculiar for the statute spell out “test” a theory liability found nowhere within its text. assuming arguendo Wetzel correctly decided, sufficiently distinguishable from present case provide little, if any, support the majority’s conclusion FHA claim been adequately alleged here. 3. Title VII Analogy
Finally, suggests (albeit only “cf.” signal) similarity in language between Title VII FHA itself enough import some version Title VII’s “hostile work environment” standard into context FHA. Maj. Op. To prevail hostile work environment claim, plaintiff need demonstrate employer himself engaged alleged harassment; rather, employer can liable “when co worker harasses plaintiff.” Vance Ball State Univ ., U.S. (2013). Far bolstering majority’s analysis, however, analogy Title VII only highlights glaring problems inherent its theory liability—problems explain why analogy, so prominent majority’s earlier effort, see I *50 F.3d 117–118, 124, now been relegated “cf.” citation.
First, court below aptly noted, there are “well known legal distinctions between employer–employee relationship landlord–
tenant relationship—including, an employee is considered an agent employer while tenant not considered an agent landlord.” ,
*52
guests invited into their homes. Moreover, significantly, Title VIII contains no evidence congressional intent dramatically upend this societal reality, which many lessees may rely upon as important aspect residential privacy. Just landlords lack capacity employers monitor their tenants, they ordinarily lack tools investigate remediate misconduct when reported. Appropriate remedial action employment context can include launching “prompt investigation,”
Russell v. N.Y. Univ
., No. 15 ‐ cv ‐ 2185 (GHW),
Such corrective actions are common workplace. landlords *53 no analogous means their disposal to investigate and remediate alleged misconduct, even when a complaint lodged. A landlord cannot temporarily evict a tenant force all tenants to undergo harassment training provide information about each other’s behavior. And while employer can transfer a problematic employee, a cannot generally move tenants around different building units response to complaints. Furthermore, even if landlords could develop a roster such intermediate steps penalties, leading up eviction itself, we might question whether Congress sought import such a system into housing context, without a word as due process principles this system would implicate, would need be addressed.
Perhaps for all reasons noted here, no longer asserts, as *54 did before, that landlords control residential complexes virtue their power evict tenants. Francis Significantly, however, the majority opinion now says nothing all about the basis for concluding that Francis’s allegations state plausible rationale for holding the KPM Defendants liable. Based allegations this complaint, what would majority have had KPM Defendants do, response belated notification Endres’s conduct—particularly given Francis himself asked nothing them? Should they have contacted Endres middle police investigation led arrest, with all peril might have entailed parties involved? Should they have attempted interview other tenants during period thereby interfered police investigation? Should they really have commenced eviction proceedings before conclusion police investigation? majority asserts Francis stated plausible claim. if majority cannot suggest what Defendants might done differently when contacted them, how can conclude provides cause action pursuant which these Defendants are fairly held liable doing what they did?
III
As noted above, after litigation commenced, HUD promulgated a regulation through the notice ‐ and ‐ comment process that purports to import the scope employer liability Title VII for employee on ‐ employee harassment into the housing context. See HUD Rule, C.F.R. § 100.7(a)(1) (2016); see also id. 100.7(a)(1) (extending liability “[f]ailing to take prompt action to correct and end discriminatory housing practice third party, where the person knew should known the discriminatory conduct and had the power correct it.”). In my earlier dissent, I took issue majority’s heavy reliance on Rule, noting giving retroactive effect legislative rule is impermissible and that, assuming arguendo majority’s erroneous premise Rule interpretive, Rule deserves no deference because misinterprets FHA’s text, finds no support precedent, and relies flawed analogy Title VII. *56 Francis I , 917 139–41 (Livingston, J., dissenting). Even if the Rule did merit some deference, moreover, it does not plausibly apply to the KPM Defendants here, given that the Rule, on its face, extends liability only to those with the power to control the offensive conduct of third parties—a power that, already noted, not generally present in the landlord–tenant context, and that has not been plausibly alleged in this complaint. [17]
The majority now abandoned HUD Rule, which it relegates to a footnote which it pronounces that it “need not and [does] not rely on [the Rule] to resolve this appeal.” Maj. Op. 18 n.6. In effect, believes Housing Authorities (Dec. 2015), http://www.regulations/gov/document?D=HUD ‐ ‐ 0095 ‐ 0026 (warning, inter alia of “serious declines housing quality or loss public housing units low ‐ income families” and of negative impact, including increased homelessness, tenants suffering mental illness who might trigger complaints). As noted above, HUD Rule extends liability a person who “fail[s] to take
prompt action correct end discriminatory housing practice [including any violation U.S.C. §§ 3617] by third ‐ party, where person knew or should have known discriminatory conduct had power correct it.” C.F.R. 100.7(a)(iii). nothing text Rule indicates liable ‐ ‐ tenant harassment. Rule explains “[t]he power take prompt action correct end discriminatory housing practice third party depends upon extent person’s control other legal responsibility person may have respect conduct such third party.” As described above, landlords do kind extensive control over (or legal responsibility for) tenants employers exercise over employees, pleads no special facts suggest Defendants exercised such control over Endres here.
has successfully avoided the many perils its original effort by declining address the Plaintiff’s actual theory (that the FHA mirrors Title VII imposing negligence liability on landlords for tenant ‐ on ‐ tenant harassment, just employers are responsible for the harassing conduct their employees) instead discerning the complaint plausible cause action for intentional on the part the KPM Defendants. As already noted, the majority’s assertion the Plaintiff plausibly pled discriminatory intent on part Defendants fails withstand minimal scrutiny. infra Part I More fundamentally, however, this ipse dixit doesn’t change fact FHA provisions on which majority relies do not provide liability on tenant harassment. Nor does ipse dixit alter background common law rules which enacted, flesh out just what duty majority seeking impose landlords, so future landlords might some chance comply legal regime conjures, without explication.
In essence, majority’s analysis rooted Plaintiff’s complaint, statutory text, precedent common law, but instead floats FHA’s “broad inclusive compass,” Maj. Op. (quoting City Edmonds Oxford *58 House, U.S. 725, (1995)). statute’s aspirational purpose does not give us “roving license . . disregard clear language simply view that . . . Congress must intended something broader.” Michigan v. Bay Mills Indian Cmty. , U.S. (2014) (internal quotation marks omitted). And this is particularly true construing FHA, given that Supreme Court already instructed FHA’s “overriding societal priority” eradicating housing does not mean Congress abandoned traditional tort liability rules further this goal. Meyer Holley U.S. 290–91 (2003).
From now on, who fails intervene following tenant’s complaint another tenant’s harassment basis protected ground vulnerable FHA claim. The parameters necessary intervention, however (not mention almost every other aspect this newfound claim), go entirely unaddressed, now, over three years since this case was argued before Court. brushes this concern aside, concluding Plaintiff “entitled discovery.” Maj. Op. Those affected by today’s decision cannot so cavalier.
Judge Posner correct noting Congress did contemplate problem harassment “neighbors” when enacted if it had *59 addressed this problem, the most “careful drafting” would have been required. Halprin, at 329. majority is not in the position undertake such drafting, but the substantial costs the legal uncertainty engendered its decision cannot be conjured away. This decision may benefit law firms insurance companies, which sometimes profit from legal anomalies. U.S.C. 3613(c)(2) (attorney’s fees accorded the prevailing party the discretion the court). winners today will not include those pursuit fair housing, certainly renters among them, who will likely left foot bill.
Today’s decision not, as would it, step forward “root[ing] out housing,” Maj Op. Instead, decision, like one issued then withdrawn, but another stumble along path ever more litigation increases housing costs those who rent, renders affordable housing more scarce, risks loss housing some most vulnerable among us. For reasons stated herein, I respectfully dissent (once again) majority’s decision vacate dismissal Plaintiff’s federal claims, well as claims pursuant New York State Human Rights Law. I would affirm district court’s judgment all respects.
Notes
[1] entered lease agreement pursuant Housing Choice Voucher Program, U.S.C. 1437f(o), commonly known “Section 8” public housing program. 4
[2] Although apparently Jewish, he alleges some neighbors complained about Endres’s anti Semitic rants complex.
[3] For brief history odious word, see R ANDALL K ENNEDY N IGGER : T HE S TRANGE C AREER OF A T ROUBLESOME W ORD (2002). 5
[4] Because complaint, briefing presented this Court, cases relied opinion do so, we cite current codified version FHA contained Title United States Code, see U.S.C. et seq., rather than numbered sections itself amended (§§ 818). 8
[5] Eleventh Circuit very recently agreed, holding 3604(b) bars certain discriminatory conduct occurs post acquisition, including discriminatory provision services connected sale rental dwelling. Ga. State Conference NAACP City LaGrange, (11th Cir. 2019). 13
[6] Some scholarship subject confirms 3604(b) § 3617 encompass post ‐ acquisition claims. generally Robert G. Schwemm, Neighbor ‐ Neighbor Harassment: Does Fair Housing Act Make Federal Case out It?, 61 C ASE W. R ES . L. R EV . 865 (2011); Mary Pennisi, A Herculean Leap Hard Case Post ‐ Acquisition Claims: Interpreting Fair Housing Act Section 3604(b) After Modesto, F ORDHAM U RB . L.J. (2010); Rigel C. Oliveri, Is Acquisition Everything? Protecting Rights Occupants Under Fair Housing Act, H ARV . C.R. C.L. L. R EV . (2008); Robert G. Schwemm, Cox, Halprin, Discriminatory Municipal Services Under Fair Housing Act, I ND L. R EV . (2008). 15
[7] Although we need and do not rely on resolve this appeal, HUD’s interpretation of FHA more broadly imposes liability on landlords arising out of tenant ‐ ‐ tenant harassment based race or other protected characteristics without a showing intentional discrimination. In HUD published a final rule (the “Rule”) amending its rules for discriminatory conduct under FHA. Quid Pro Quo Hostile Environment Harassment Liability Discriminatory Housing Practices Under Fair Housing Act, Fed. Reg. 63,054 (Sept. 2016) (codified C.F.R. pt. 100). The Rule defines hostile environment harassment violation FHA as referring “unwelcome conduct sufficiently severe or pervasive as interfere with: availability, sale, rental, or use or enjoyment dwelling; terms, conditions, or privileges sale or rental, or provision or enjoyment services facilities connection therewith; availability, terms, or conditions residential real estate related transaction.” C.F.R. § 100.600(a)(2). HUD’s regulations, clarified by Rule, specifically provide landlord may liable “[f]ailing take prompt action correct end discriminatory housing practice third party” where “knew . . discriminatory conduct had power correct it.” C.F.R. 100.7(a)(1)(iii). We express no view regarding formulation. 18
[8] Defendants argue has failed establish that alleged incidents between him Endres were because race. Viewing allegations in complaint light most favorable Francis, hard us see how could so, but event we leave question be resolved by District Court remand.
[9] Our dissenting colleague elected shadowbox with prior opinion withdrawn collegial agreement. Relying withdrawn opinion is, our view, an error does serve our Court institution. We note, too, our colleague separately spars “sub silentio” opinion (apparently) again woven withdrawn opinion but bears little resemblance actual, narrow holding opinion filed today. 20
[10] Under New York law, claim negligent infliction emotional distress requires least causal connection between conduct injury. Mortise v. United States, (2d Cir. 1996); Jason Krey, N.Y.S.2d (2d Dep’t 2009). 24
[1] And second provision, makes unlawful “to coerce, intimidate, threaten, interfere person exercise or enjoyment . . any right granted protected [§ 3604].”
[2] sued Endres, who never appeared, whom default judgment entered.
[3] failure plead discriminatory intent emphasized by KPM Defendants, moreover, briefing went unrefuted by Francis. Br. Def Appellee King’s Park Manor (noting its conclusion, uncontradicted Plaintiff, “Francis [does not] contend there are facts support finding Downing elected intervene dispute based upon their own racial animus”).
[4] As §§ claims, opinion broke new ground there too concluding Francis need plead intentional these claims either, but only Defendants’ “deliberate indifference Endres’s discriminatory conduct.” I This conclusion, like majority’s reliance HUD Rule, been excised new
[5] Kim Barker et al., Eviction Machine Churning Through New York City N.Y. T IMES (May 2018), http://www.nytimes.com/interactive/2018/05/20/ nyregion/nyc affordable housing.html (“Even if [an eviction] case shown baseless, just being sued can hurt tenant’s ability rent new apartment.”).
[6] Thus, typical violations 3604(b) landlords included such matters “showing member protected class fewer apartments, quoting higher rents,” “requiring [unnecessary] applications credit checks.” , F. Supp. 3d (quoting Fair Hous. Justice Ctr. Broadway Crescent Realty, Inc. No. Civ. (CM), WL *6 (S.D.N.Y. Mar. 2010)).
[7] Section 3604(a) makes unlawful “[t]o refuse sell or rent after making bona fide offer, or refuse negotiate sale or rental of, or otherwise make unavailable or deny, dwelling person because race, color, religion, sex, familial status, national origin.”
[8] Thus, Fifth Circuit noted Cox v. City Dallas , F.3d (5th Cir. 2005), if “refused continue renting because tenant entertained black guests,” such conduct, amounting constructive eviction, would constitute “terms, conditions, privileges . . rental,” would cognizable 3604(b), id. 745–47 (discussing Woods Drake Lundy (5th Cir. 1982)).
[9] Unlike Title VII, which provides a cause of action specified employers who discriminate, FHA does not identify a class of potential defendants who can charged—so only landlords, but public housing authorities, cooperative boards, block associations, real estate agents, or, indeed, anyone , potentially liable. Thus, Modesto , which relies, Ninth Circuit held a plaintiff could pursue 3604(b) claim alleging by local government provision law enforcement protection homeowners or renters, notwithstanding lack connection residence’s sale lease Modesto , F.3d 713–15; cf. Ga. State Conference NAACP City LaGrange 633–34 (11th Cir. 2019) (rejecting Ninth Circuit’s “expansive view [municipal] services covered §3604(b),” but holding municipality’s discriminatory provision water, gas, electricity services actionable because those utilities are “closely tied” sale rental dwelling essential its habitability).
[10] Thus, t he cannot construe Francis’s allegations state claim for constructive eviction because, assuming inaction could ground such claim, own complaint affirms he renewed lease (rendering implausible assertion he constructively evicted) during very period Defendants were supposedly incurring liability their inaction. Bloch (“Proving constructive eviction is tall order. . . Ordinarily, plaintiff such case must show her residence ‘unfit occupancy,’ often point she ‘compelled leave’” (quoting Black’s Law Dictionary (8th ed. 2004))).
[12] In fact, New York law, repeated complaints landlord various tenants regarding who thereafter stabbed another were insufficient trigger duty landlord’s part, because “not position control [the] tenant’s behavior.” Firpi New York Housing Authority N.Y.S.2d (2d Dep’t 1991). Eviction effective tool regulating
[13] cites fleetingly Neudecker Boisclair Corp. , F.3d 361 (8th Cir. 2003) (per curiam). assuming Neudecker persuasive value, see Halprin , F.3d (noting Neudecker “considered holding”), case simply inapposite. In Neudecker , complaint alleged property manager’s children had harassed disabled plaintiff tenant, while property managers themselves disseminated tenant’s private medical information other tenants engaged acts harassment Neudecker 362–63. As these allegations indicate, landlord’s agents their children, whom might reasonably held vicariously liable, were thus charged creating hostile environment.
[15] As New York City Housing Authority (“NYCHA”) noted, during comment period new HUD Rule, “resident disputes are not always clear cut.” Comment New York City Housing Authority (Dec. 2015), http://www.regulations.gov/document?D=HUD ‐ (“NYCHA Comment”) (noting allegations “can be difficult verify,” may involve cross ‐ complaints, can be lodged “as [a] way qualifying a transfer, a means secure eviction a neighbor whom [a] resident does get along”). Given relative weakness landlord’s investigative toolkit, should concern, particularly light recent reports baseless eviction case can seriously impair wronged tenant’s ability obtain housing future because “[s]creening companies tell landlords whether prospective been sued eviction, without necessarily saying how case resolved.” Barker et al., Eviction Machine Churning Through New York City
[16] As Seventh Circuit recognized declining rely HUD Rule Wetzel “there are salient differences between Title VII FHA” “more analysis than HUD [has offered]” needed support its position. In promulgating Rule, HUD brushed aside slew concerned comments from public housing providers their legal counsel. NYCHA, instance, warned proposed rule would force public housing providers “to become guarantor[s] resident conduct, well as social services provider mediating disputes,” HUD had “seriously underestimate[d]” administrative costs, which would end up diverting resources away housing providers’ primary responsibility provide decent housing. NYCHA Comment. Comment Council Large Public