Levin v. Yeshiva University

May 11, 2000
Versions:272 A.D.2d 158
709 N.Y.S.2d 392
2000 N.Y. App. Div. LEXIS 5398

—Order and judgment (one paper), Supreme Court, New York County (Franklin Weiss-berg, J.), entered March 29, 1999, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

Liberally construing the pleadings, and accepting the facts alleged as true, the motion court properly determined that the complaint failed to state a cause of action (see, Leon v Martinez, 84 NY2d 83, 87-88). Defendants’ written policy, permitting medical students to live in its housing with fellow students or with their spouses and dependent children, did not discriminate against plaintiffs, unmarried women who were denied permission to live with their life partners in such housing, on the basis of marital status in violation of the State and City Human Rights Laws (Executive Law § 296 [2-a], [5] [a] [1]; Administrative Code of City of NY § 8-107 [5]; § 8-130; Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506; Hudson View Props. v Weiss, 59 NY2d 733; Matter of Hoy v Mercado, 266 AD2d 803; Raum v Restaurant Assocs., 252 AD2d 369, appeal dismissed 92 NY2d 946; Funderburke v Uniondale Union Free School Disk No. 15, 251 AD2d 622, lv denied 92 NY2d 813; McMinn v Town of Oyster Bay, 105 AD2d 46, affd 66 NY2d 544). Plaintiffs also failed to establish that defendants’ policy had a disparate impact on homosexuals since it had the same impact on non-married, heterosexual medical students as it had on non-married, homosexual medical students (see, Hudson View Props, v Weiss, supra; Foray v Bell Atl., 56 F Supp 2d 327). Contrary to *159plaintiffs’ additional contention, defendants’ policy did not violate the Roommate Law (Real Property Law § 235-f [2]) since the statute applies to premises occupied by a tenant as his primary residence. A full-time student does not change his primary residence by living temporarily in student housing (see, 9 NYCRR 2523.5 [b] [2] [ii]; Braun v Fraydun Realty Co., 158 AD2d 430). Concur — Nardelli, J. P., Tom, Mazzarelli, Wallach and Andrias, JJ. [See, Levin v Yeshiva Univ., 180 Misc 2d 829.]