UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------- )( JUANA SIERRA,
Plaintiff,

07 Civ. 6769

( JSR ) (ECF CASE)

- against-
CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF BUILDINGS, and PATRICIA J. LANCASTER, in her capacity as COMMISSIONER OF NEW YORK CITY DEPARTMENT OF BUILDINGS; NEW YORK CITY DEPARTMENT OF-HOUSING PRESERVATION AND DEVELOPMENT, and SHAUN DONOVAN, in his capacity as COMMISSIONER OF NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT; and EMAD IBRAHEM.

COMPLAINT FOR PRELIMINARY AND PERMANENT INJUNCTION;
DECLARATORY JUDGMENT; AND
DAMAGES FOR VIOLATION OF THE FAIR HOUSING ACT AND THE NEW YORK STATE HUMAN
RIGHTS LAW

Defendants.
------------------------------------------------------------------- )(

Plaintiff Juana Sierra ("Plaintiff Sierra"), by her attorneys, for her complaint against Defendants, alleges upon personal knowledge as to her own acts, and upon information and belief as to all other matters, as follows:
NATURE AND SUMMARY OF THE ACTION 1. Plaintiff Sierra brings this civil action against the City of New York, the New York City Department of Buildings and its Commissioner, and the New York City Department of Housing Preservation and Development and its Commissioner (collectively, "City Defendants") for the enforcement of New York City ("NYC") Housing Maintenance Code ("HMC") § 272076(b), N.Y.C. Admin. Code § 27-2076(b) (1993), which discriminates against her on the basis of familial status in violation of Title VIII of the Civil Rights Act of 1968, the Fair Housing Act,

1

as amended by the 1988 Fair Housing Amendments Act, 42 U.S.c. § 3601 et seq. (2000) ("Fair Housing Act").
2. Plaintiff Sierra also brings this action against the owner and landlord of her residential building, Defendant Emad Ibrahem, for filing and pursuing an action to evict Plaintiff Sierra based on City Defendants' issuance of a violation citing HMC § 27-2076(b), which prohibits children between the ages of one and sixteen from residing in a rooming unit. Such eviction proceedings discriminate against her on the basis of familial status in violation of (1) the Fair Housing Act, as amended by the 1988 Fair Housing Amendments Act, 42 U.S.C. § 3601 et seq.; and (2) the New York State Human Rights Law, N.Y. Exec. Law § 296(5) (McKinney Supp. 2007).
3. Plaintiff Sierra asserts that HMC § 27-2076(b) is an ordinance that facially discriminates on the basis of familial status, a protected status under both the Fair Housing Act and the New York State Human Rights Law ("Human Rights Law").
4. On April 24, 2006, after receiving a complaint, the New York City Department of Buildings ("DaB") investigated and issued a violation to Defendant Ibrahem citing a violation of HMC § 27-2076(JJ). Such violation references Plaintiff Sierra's home.
5. As a result of the violation issued by Defendant DOB, Defendant Ibrahem commenced eviction proceedings in Civil Court of the City of New York ("NYC housing court") against Plaintiff Sierra.
PARTIES 6. Plaintiff Sierra lives with her two children, ages five and fifteen, at 24 West 119th Street, Rooms 2 and 3, New York, New York 10026. Plaintiff Sierra and her family occupy the only two residential units, which are SRO rooming units, on the first floor of the building.
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Plaintiff Sierra has lived at the subject premises with her family since December 2001. Plaintiff Sierra began living on the premises with her husband, Genaro Mercado, and her now fifteen year-old daughter. In October 2001 Plaintiff Sierra's now five-year-old son was born. In November 2006, Plaintiff Sierra's husband left the premises and no longer lives with the family.
7. Defendant, City of New York, is a municipal corporation established and organized under the laws of the State of New York and exercises authority over properties within its boundaries through enacting and enforcing health, safety, and occupancy ordinances, including occupancy provisions set forth in the HMC.
8. Defendant, New York City Department of Buildings, is an agency responsible for ensuring the safe and lawful use of NYC buildings and properties by enforcing the Building Code and Zoning Resolutions.
9. Defendant, New York City Department of Housing Preservation and Development, is the nation's largest municipal housing agency and is responsible for enforcing compliance with the HMC and the New York State Multiple Dwelling Law.
10. Defendant Emad Ibrahem is the owner and landlord of24 West 119th Street, New York 10026 and is currently pursuing an eviction proceeding against Plaintiff Sierra in NYC housing court.
JURSIDICTION AND VENUE 11. This Court has original jurisdiction over the subject matter of Plaintiff Sierra's claims for violations ofthe Fair Housing Act, 42 U.S.c. § 3601 et seq., pursuant to 42 U.S.C. § 3613(a) and 28 U.S.C. § 1331.
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12. This Court has supplemental jurisdiction over Plaintiff Sierra's state-law claims pursuant to 28 U.S.C. § 1367(a) in that all of Plaintiff Sierra's claims arise out ofa common nucleus of operative facts.
13. Venue is proper in this district pursuant to 28 U.S.C. § 1391 in that a substantial part of the events giving rise to the claims occurred in this judicial district.
STATUTORY FRAMEWORK Anti-discrimination Statutes
14. Section 804 of the Fair Housing Act prohibits discrimination based on race, color, religion, national origin, disability, and familial status. 42 U.S.C. § 3604. It is unlawful to refuse to sell or rent or to "make unavailable or deny, a dwelling to any person because .of ... familial status[.]" 42 U.S.C. § 3604(a). The Fair Housing Act also makes it unlawful to "discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or inthe provision of services or facilities in connection therewith, because of. .. familial status[.]" 42 U.S.c. § 3604(b). The Fair Housing Act defines familial status as: "one or more individuals (who have not attained the age of 18 years) being domiciled with - (1) a parent[.]" 42 U.S.c. § 3602(k).
15. The Human Rights Law makes it unlawful to "refuse to sell, rent, lease or otherwise to deny to or withhold from any person or group of persons such a housing accommodation because of ... familial status[.]" N.Y. Exec. Law § 296(5)(a)(I). Additionally, it is unlawful to "discriminate against any person because of ... familial status in the terms, conditions, or privileges ofthe sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith." Id. § 296(5)(a)(2).
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Occupancy Standards 16. HMC § 27-2076(b) states that, "[n]o rooming unit shall be occupied by a family with a
child under the age of sixteen years, except that if a child is born to a family residing in such accommodations, the unlawful occupancy shall not commence until one year after the birth of such child." N.Y.C. Admin. Code § 27-2076(b). A rooming unit is defined as "one or more living rooms arranged to be occupied as a unit separate from all other living rooms, and which does not have both lawful sanitary facilities and lawful cooking facilities for the exclusive use of the family residing in such unit." Id. § 27-2004.
17. Alternatively, the New York State Multiple Dwelling Law § 248(12) states, in relevant part, that "[n]o room may be occupied for sleeping purposes by more than two adults considering children oftwelve years or more as adults and two children between the ages of two and eleven years inclusive as the equivalent of one adult. Children under two years of age need not be considered as occupants." N.Y. Mult. Dwell. Law § 248(12) (McKinney 2001) ("Multiple Dwelling Law").
18. The Department of Housing and Urban Development ("HUD"), the federal agency responsible for implementing and enforcing the Fair Housing Act, has published guidance stating that "the Department [of Housing and Urban Development] believes that an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act." Fair Housing Enforcement - Occupancy Standards Statement of Policy, Notice, 63 Fed. Reg. 70256 (Dec. 18, 1998).
GENERAL ALLEGATIONS
19. Plaintiff Sierra is a low-income tenant who resides in two single room occupancy ("SRO") units with her two children, who are both between the ages of one and sixteen. In
5

December 2001, Plaintiff Sierra began living on the premises with her husband, Genaro Mercado, and her now fifteen year-old daughter. In 2002, Plaintiff Sierra's now five-year-old son was born. In November 2006, Plaintiff Sierra's husband left the premises and no longer lives with the family.
20. Plaintiff Sierra and her family have occupied the entire first floor of the subject premises, where there are two units and one bathroom. Each unit has its own entrance from the shared public hallway on the first floor of the building. There are no other units on the first floor. Each of the units and the bathroom are always locked and they require a separate key to enter each one. Plaintiff Sierra and her two children are the only tenants who have a key to access the bathroom. Plaintiff Sierra and her family use a kitchen that is located in one of their two units.
21. Plaintiff Sierra's rent for both units combined is $522.15 per month. 22. On two previous occasions, Defendant Ibrahem attempted to evict Plaintiff Sierra for having children between the ages of one and sixteen living in the building. Defendant Ibrahem first commenced a holdover proceeding to evict Plaintiff Sierra in 2005 claiming that there were children between the ages of one and sixteen living in the building in violation ofHMC § 272076(b). The first proceeding was dismissed because HMC § 27-2076(b) does not grant the authority to bring a holdover proceeding in the absence of a prior notice of violation issued by a NYC agency. 23. On information and belief, Defendant Ibrahem called the NYC Department of Buildings to report that that there were children between the ages of one and sixteen living in rooming units at 24 West 119th Street, New York, New York 10026.
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24. On April 24, 2006, Defendant NYC Department of Buildings issued several violations to Defendant Ibrahem including one for illegal occupancy based on persons between the ages of one and sixteen living in the rooming unit, citing HMC § 27-2076(b).
25. In July 2006 Defendant Ibrahem used the violation issued by the NYC Department of Buildings as a basis to file suit against Plaintiff Sierra for a second time in the Civil Court of the City of New York ("NYC housing court"). The proceeding was dismissed because Defendant Ibrahem failed to serve Plaintiff Sierra with a Notice to Cure.
26. In March 2007, Defendant Ibrahem filed a third suit against Plaintiff Sierra based on Defendant NYC DOB's violation, which is currently pending in NYC housing court.
27. Plaintiff Sierra is a rent stabilized tenant pursuant to New York State's Rent Stabilization Law, adopted by New York City as the Rent Stabilization Code. The Rent Stabilization Law was passed to regulate privately-owned housing in New York State. There are specific sections of the Rent Stabilization Law that apply only to housing in New York City, which were codified as the New York City Rent Stabilization Code.
28. The Rent Stabilization Code sets forth which tenancies are subject to rent stabilization and enumerates specific rights that rent stabilized tenants have, including grounds upon which a tenant may be evicted. 9 N.Y.C.R.R. § 2520 et seq. (1987).
29. Pursuant to § 2524.2 of the Rent Stabilization Code, a rent stabilized tenant may only be evicted based on a ground specifically enumerated in the law. An eviction of a rent stabilized tenant can only be carried out when the landlord pleads and proves a ground set forth in the rent stabilization law as a basis for the eviction. !d. § 2524.2.
30. Pursuant to § 2S24.3(c) of the Rent Stabilization Code, a landlord can seek a tenant's eviction from a rent stabilized unit where (1) the tenant is occupying the unit in a manner that is
7

illegal and (2) such illegal occupancy subjects the owner to a civil or criminal penalty. !d. § 2S24.3(c).
31. Defendant Ibrahem is seeking to evict Plaintiff Sierra on the grounds that (1) Plaintiff Sierra is occupying the unit in a manner that is illegal and in violation ofHMC § 27-2076(b) and (2) NYC issued a violation threatening civil penalties against Defendant Ibrahem due to the violation ofHMC § 27-2076(b).
32. Plaintiff Sierra would not currently be at risk of eviction if Defendant Ibrahem could not rely on the grounds of illegal occupancy based on Plaintiff Sierra's children occupying the rooming units.
33. On information and belief, Plaintiff Sierra and her family could not afford another apartment in the neighborhood, or elsewhere, if they were evicted based on NYC occupancy standards.
34. HMC § 27-2076(b) establishes an outright ban on children between the ages of one and si'xteen living in SROs with a parent, and as a result, precludes families with children from residing in SROs in NYC.
35. Under the Fair Housing Act and Human Rights Law, an outright ban on children is facially discriminatory and not a reasonable occupancy policy. Landlords are liable for discriminating on the basis of familial status under federal and state laws and thus may not take refuge under an unreasonable and illegal occupancy policy.
36. The New York State Multiple Dwelling Law § 248(12) appropriately takes into account legitimate overcrowding concerns and also complies with the Fair Housing Act and the Human Rights Law. Therefore, HMC § 27-2076(b) is impermissibly and overly restrictive.
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FIRST CLAIM FOR RELIEF VIOLATION OF FAIR HOUSING ACT (42 U.S.C. § 3604) 37. Plaintiff Sierra realleges and incorporates by reference the allegations in paragraphs 1 through 36 as set forth herein. 38. HMC § 27-2076(b), on its face, violates the Fair Housing Act by impennissibly requiring discrimination on the basis offamilial status. 42 U.S.C. § 3604(a)-(b). 39. By enforcing HMC § 27-2076(b), Defendants have: a. made unavailable dwellings to persons because of their familial status in violation of 42 U.S.C. § 3604(a); and b. discriminated in the tenns and conditions ofthe rental of dwellings because of familial status in violation of 42 U.S.c. § 3604(b). 40. Pursuant to 42 U.S.C. § 3613(c)(I), Plaintiff Sierra is entitled to "any pennanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affinnative action as may be appropriate). " 41. Defendants' discriminatory practices have caused injury to and aggrieved Plaintiff Sierra. Pursuant to 42 U.S.C. § 3613(c)(l), Plaintiff Sierra is entitled to damages in a sum to be ascertained for the injuries caused by the discriminatory conduct. 42. Plaintiff Sierra is entitled to reasonable attorneys' fees and costs.
SECOND CLAIM FOR RELIEF VIOLATION OF NEW YORK STATE HUMAN RIGHTS LAW (N.Y. Exec. Law § 296(5)) 43. Plaintiff Sierra realleges and incorporates by reference the allegations in paragraphs I through 36 as set forth herein.
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44. By pursuing an action to evict Plaintiff Sierra on the basis of a violation of HMC § 272076(b) Defendant Ibrahem has:
a. otherwise denied or withheld housing accommodations because of familial status in violation ofthe Human Rights Law, N.Y Exec. Law § 296(5)(a)(1); and
b. discriminated in the terms, conditions, or privileges of the rental of housing accommodations because offarnilial status in violation of the Human Rights Law. N.Y. Exec. Law § 296(5)(a)(2).
45. Defendant Ibrahem's unlawful discriminatory practices have aggrieved and already caused injury to Plaintiff Sierra. Plaintiff Sierra is entitled to damages in a sum to be ascertained for the injuries caused by the unlawful discriminatory conduct. N.Y. Exec. Law § 297(9).
46. Defendant Ibrahem's unlawful discriminatory practices in violation of the Human Rights Law, if not preliminary and permanently enjoined, will cause Plaintiff Sierra irreparable harm. Accordingly, Plaintiff Sierra is entitled to preliminary relief and a temporary restraining order. N.Y. Exec. Law § 298.
47. Plaintiff Sierra is entitled to reasonable attorneys' fees and costs. WHEREFORE, Plaintiff Sierra prays for the following relief:
1. That the Court enter an order finding as follows: a. Declaring HMC § 27-2076(b) invalid and unenforceable because on its face, it
violates the Fair Housing Act, 42 U.S.C. § 3604 pursuant to § 3615; b. Declaring any open or pending violations ofHMC § 27-2076(b) issued by City
Defendants invalid and unenforceable;
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c. Granting a temporary and permanent injunction against City Defendants, their agents, employees, and successors, and all other persons in active concert or participation with them barring enforcement ofHMC § 27-2076(b);
d. Granting a temporary and permanent injunction barring Defendant Ibrahem, his agents, employees, and successors, and all other persons in active concert or participation with them, from taking any actions to evict Plaintiff Sierra based on HMC § 27-2076(b);
e. Awarding damages as would fully compensate Plaintiff Sierra for damages caused by the Defendants' unlawful discriminatory practices;
f. Awarding reasonable attorney fees and costs; g. Granting additional relief as the interests ofjustice may require.

Dated: July 26, 2007 NewYork,NY

Respectfully Submitted,
URBAN JUSTICE CENTER Homelessness Outreach and Prevention Project Leslie T. Annexstein (LA 0430) Ami T. Sanghvi (AS 5128) 123 William Street, 16th Floor New York, New York 10038 Tel. (646) 602-5643
WEST SIDE SRO LAW PROJECT Goddard Riverside Comm. Center Molly Doherty (MD 2044) Martha Weithman (MW 3333) 647 Columbus Avenue New York, New York 10025 Tel. (212) 799-9638

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 Case 1:07-cv-06769-JSR Document 42 Filed 03/03/2008 Page 1 of 8

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------- x

JUANA SIERRA,

:

:

Plaintiff,

:

:

-v-

:

:

CITY OF NEW YORK; NEW YORK CITY

:

DEPARTMENT OF BUILDINGS, and PATRICIA :

J. LANCASTER, in her capacity as

:

COMMISSIONER OF NEW YORK CITY

:

DEPARTMENT OF BUILDINGS; NEW YORK

:

CITY DEPARTMENT OF HOUSING

:

PRESERVATION AND DEVELOPMENT, and

:

SHAUN DONOVAN, in his capacity as

:

COMMISSIONER OF NEW YORK CITY

:

DEPARTMENT OF HOUSING AND

:

DEVELOPMENT; and EMAD IBRAHEM,

:

:

Defendants.

:

------------------------------------- x

JED S. RAKOFF, U.S.D.J.

07 Civ. 6769 (JSR) MEMORANDUM ORDER

Plaintiff Juana Sierra challenges section 27-2076(b) of the New York City Housing Maintenance Code (“HMC”), which prohibits children from living in single room occupancy units (“SROs”), on the ground that the section discriminates on the basis of familial status in violation of the federal Fair Housing Act, 42 U.S.C. § 3604(a) (“FHA”). At the time Sierra filed her complaint, she and her two young children occupied an SRO at 24 West 119th Street in Manhattan and were facing eviction proceedings initiated on the basis of section 27-2076(b) by her landlord, former defendant Emad Ibrahem. By Order dated December 6, 2007, the Court ruled that the AntiInjunction Act, 28 U.S.C. § 2283, barred Sierra’s claims for injunctive relief against Ibrahem but did not bar her remaining claims against him or any of her claims against the other defendants,

Case 1:07-cv-06769-JSR Document 42 Filed 03/03/2008 Page 2 of 8
the City of New York, the N.Y.C. Department of Buildings and its Commissioner, and the N.Y.C. Department of Housing Preservation and Development and its Commissioner (collectively, the “City defendants”). The Court explained the reasons for these rulings in a Memorandum dated January 2, 2008. Shortly after the December 6, 2007 rulings, however, Sierra and Ibrahem entered into a stipulation whereby Sierra, in exchange for $19,000, vacated her SRO and agreed to drop her suit against Ibrahem. Subsequently, on consent of all parties, Ibrahem was dismissed from the suit. See Stipulation for Dismissal of Defendant Emad Ibrahem, signed December 10, 2007. Sierra is now without a residence of her own and has been living with her children in an older son’s apartment. Affidavit of Juana Sierra in Opposition, Exhibit A to Attorney's Declaration of Ami Sanghvi in Opposition to Defendants' Motion to Dismiss ¶ 12.
After Sierra’s settlement with Ibrahem, the City defendants moved to dismiss the suit on the ground that, because Sierra no longer occupied an SRO and, in their view, was unlikely to find one that she could afford, section 27-2076(b) no longer caused her any “injury in fact” and thus she lacked standing to challenge it. Sierra countered that she already had suffered, and continues to suffer, economic injury for which the City defendants remain liable as a result of the City’s past enforcement of the provision against her that led to her leaving the SRO, and that she suffers additional ongoing injury because section 27-2076(b) bars her from considering, as part of her current apartment search, SROs that otherwise would be
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Case 1:07-cv-06769-JSR Document 42 Filed 03/03/2008 Page 3 of 8
available to her. On January 14, 2008, the Court heard oral argument on the City defendants’ motion and, pursuant to Federal Rule of Civil Procedure 43(e), questioned, under oath, both Sierra and Dr. Moon Wha Lee, Assistant Commissioner for Housing Policy Analysis and Statistical Research of the New York City Department of Housing Preservation and Development, who had submitted a factual affidavit on behalf of the City defendants. See Affidavit of Moon Wha Lee, submitted with City Defendants’ Reply Memorandum of Law in Support of Their Motion to Dismiss the Complaint. Even after the hearing, however, the Court was left with insufficient information about the availability of SRO apartments, and, accordingly, the Court solicited further affidavits from both parties.
In response, Sierra submitted affidavits from: Rebecca Widom, Director of Research of the Homelessness Outreach and Prevention Project of the Urban Justice Center (“Widom Aff.”); Krista Hanson, a Master’s Degree candidate at New York University’s Steinhardt School of Culture, Education, and Human Development and an intern at the Urban Justice Center (“Hanson Aff.”); Stephan Russo, Executive Director of Goddard Riverside Community Center; Jim Provost, senior attorney at Manhattan Legal Services; and Christopher Schwartz, supervising attorney at MFY Legal Services, Inc. The City defendants submitted an additional affidavit from Dr. Lee (“Lee Reply Aff.”). Having now carefully reviewed all pertinent materials, the Court concludes that the motion to dismiss must be denied.
The Fair Housing Act makes it unlawful “to refuse to sell or
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Case 1:07-cv-06769-JSR Document 42 Filed 03/03/2008 Page 4 of 8
rent . . . or otherwise make unavailable or deny, a dwelling to any person because of . . . familial status.” 42 U.S.C. § 3604(a) (emphasis added). “The phrase ‘otherwise make unavailable’ has been interpreted to reach a wide variety of discriminatory housing practices, including discriminatory zoning restrictions.” LeBlancSternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995).
The FHA confers standing to challenge discriminatory housing practices (such as making dwellings unavailable because of a person’s familiar status) on any “aggrieved person,” 42 U.S.C. 3613(a)(1)(A), which is defined as a person who “(1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur,” 42 U.S.C. 3602(i). See LeBlanc-Sternberg, 67 F.3d at 424. Congress intended standing under the FHA to "extend to the full limits of Art. III.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) (internal quotation marks omitted). Thus, “the sole requirement for standing to sue under [the FHA] is the Art. III minima of injury in fact: that the plaintiff allege that as a result of the defendant’s actions he has suffered ‘a distinct and palpable injury.’” Id. (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).
Here, Sierra claims past, present, and future injuries as the result of the City defendants’ alleged violations of the FHA. The alleged injuries, moreover, support claims both for damages and for injunctive relief.
As to damages, Sierra’s complaint alleges that the New York City Department of Buildings issued Ibrahem a Notice of Violation for
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Case 1:07-cv-06769-JSR Document 42 Filed 03/03/2008 Page 5 of 8
allowing Sierra to occupy the SRO with her children in violation of HMC section 27-2076(b), and that Ibrahem commenced eviction proceedings against Sierra based on that violation. See Complaint for Preliminary and Permanent Injunction; Declaratory Judgment; and Damages for Violation of the Fair Housing Act and the New York State Human Rights Law ¶¶ 4-5 (“Compl.”). Although it is true that, as a result of her subsequent settlement with Ibrahem, Sierra agreed to vacate the SRO before the eviction proceedings terminated, it does not necessarily follow that that agreement precludes her from maintaining that her current situation - that she is without a home and, according to the City defendants’ own expert, likely to face substantial difficulty in finding another one at the rent she paid to Ibrahem, see Lee Reply Aff. ¶ 4 (reporting a mere 1.59% vacancy rate for all apartments with rents up to $600) - is a direct result of the City’s enforcement of section 27-2076(b). This injury, while not yet quantifiable in dollars because it is ongoing, is more than adequate to confer standing. See 42 U.S.C. § 3613 (permitting award of actual damages to FHA plaintiffs); cf. Havens Realty, 455 U.S. at 370-71 (finding that irrespective of possible mootness of plaintiffs’ request for injunctive relief, fact that plaintiffs continued to seek damages meant that case was not moot).
As to injunctive relief, Sierra has made a sufficient (if thin) showing that section 27-2076(b) continues to limit her available housing options. On this issue, the City argues primarily that the number of available SROs that Sierra could afford is so small that it is extremely unlikely that she will be able to find
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Case 1:07-cv-06769-JSR Document 42 Filed 03/03/2008 Page 6 of 8
one, and, consequently, highly speculative that she will again be
subject to section 27-2076(b), since she will most likely wind up
living in a non-SRO dwelling.1 The Court agrees that if, in fact,
there were no, or virtually no, SRO-type apartments in New York City
that Sierra could afford to rent, the potential future enforcement of
section 27-2076(b) might not cause her any ongoing injury. But the
parties’ experts sharply dispute the factual question of how many
available SROs section 27-2076(b), in practice, bars Sierra from
renting.
Thus Widom, one of Sierra’s experts, concludes, based on the
2005 New York City Housing and Vacancy Survey (“2005 HVS”), that
there are 1,153 vacant available SROs and that SROs have a higher
1 The City makes the additional, and rather remarkable, argument that, even if Sierra were to succeed in finding a suitable SRO, it is unlikely that she again would be evicted because, first, the City might choose not to enforce section 272076(b) as to her, and, second, even if it did so, Sierra’s new landlord nonetheless might choose not to evict her. See City Defendants’ Reply Memorandum of Law in Support of Their Motion to Dismiss the Complaint at 3. The Court is baffled by this argument, as no theory of standing requires a plaintiff actually to violate a law before raising a facial challenge to an allegedly unlawful statute. See, e.g., Vt. Right to Life Comm. v. Sorrell, 221 F.3d 376, 382 (2d Cir. 2000) (“A plaintiff bringing a pre-enforcement facial challenge against a statute need not demonstrate to a certainty that it will be prosecuted under the statute to show injury, but only that it has an actual and well-founded fear that the law will be enforced against it.” (internal quotation marks omitted)). Indeed, the idea that, in order to bring suit, Sierra would have to break the law, find a landlord willing to break the law with her, and then wait until the City chose to enforce that law against her - and the landlord to evict her based on that enforcement - is preposterous. In any event, the FHA itself clearly forecloses the City defendants’ argument by specifically granting standing to anyone who believes that he or she “will be injured by a discriminatory housing practice that is about to occur,” 42 U.S.C. 3602(i) (emphasis added).
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vacancy rate than apartments generally. Widom Aff. ¶¶ 10, 13-14. Lee, however, criticizes Widom’s manipulation of the 2005 HVS data as failing to take account of the data’s inherent sampling errors, contends that some of the survey’s data are flawed (such that the number of vacant available SROs is 789, not 1,153), and argues that Widom’s calculations do not account for SRO-type units that are occupied by non-profits and therefore exempt from HMC section 272076(b). Lee Reply Aff. ¶¶ 7, 11. Although Lee admits that the range of asking rents for vacant available SROs is $250 to $5,846 (such that some, at least, are priced below Sierra’s threshold of $600), he speculates - without attribution - that an apartment on the low end of that spectrum is “almost certainly an extremely small sleeping room with a bed” that Sierra could not inhabit with her children. Id. ¶ 10.
This exchange, and others,2 makes clear to the Court that the dispute over the factual underpinnings of Sierra’s claim to injury warranting injunctive relief is impossible to resolve at this stage of the litigation, but that Sierra has adduced sufficient evidence to retain standing for injunctive purposes (as well, as already noted,
2 Hanson, another of Sierra’s experts, analyzes a nonexhaustive list of roughly 350 known SRO buildings identified to her by the West Side SRO Law Project and concludes that these contain around around 26,000 “B units,” the label typically given to SROs, see HPD Online Glossary, New York City Department of Housing Preservation and Development, at http://www.nyc.gov/html/ hpd/html/pr/hpd-online-glossary.shtml. Hanson Aff. ¶¶ 4, 11. Lee counters that Hanson’s data does not measure the number of units that are actually available for rent. Lee Reply Aff. ¶ 15. Lee also criticizes Sierra’s remaining affidavits as “anecdotal.” Id. at 16.
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Case 1:07-cv-06769-JSR Document 42 Filed 03/03/2008 Page 8 of 8

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------- x

JUANA SIERRA,

:

:

Plaintiff,

:

:

-v-

:

:

CITY OF NEW YORK; NEW YORK CITY

:

DEPARTMENT OF BUILDINGS, and PATRICIA :

J. LANCASTER, in her capacity as

:

COMMISSIONER OF NEW YORK CITY

:

DEPARTMENT OF BUILDINGS; NEW YORK

:

CITY DEPARTMENT OF HOUSING

:

PRESERVATION AND DEVELOPMENT, and

:

SHAUN DONOVAN, in his capacity as

:

COMMISSIONER OF NEW YORK CITY

:

DEPARTMENT OF HOUSING AND

:

DEVELOPMENT; and EMAD IBRAHEM,

:

:

Defendants.

:

------------------------------------- x

JED S. RAKOFF, U.S.D.J.

07 Civ. 6769 (JSR) MEMORANDUM

In her complaint filed on July 27, 2007, plaintiff Juana Sierra, who at that time resided with her young child in a single room occupancy (“SRO”) unit, alleged that section 27-2076(b) of the New York City Housing Maintenance Code (“HMC”), which prohibits children from living in SRO units, violated the federal Fair Housing Act, 42 U.S.C. § 3604(a), because it discriminated on the basis of familial status. Sierra sought (1) declaratory judgments invalidating section 27-2076(b) and any open or pending claims of violation of § 27-2076(b) issued by the City of New York, the N.Y.C. Department of Buildings and its Commissioner, and/or the N.Y.C. Department of Housing Preservation and Development and its Commissioner (collectively, the “City defendants”); (2) temporary and permanent injunctions barring the City defendants from enforcing HMC

§ 27-2076(b); (3) temporary and permanent injunctions barring defendant Emad Ibrahem, Sierra’s landlord, from taking any actions to evict Sierra and staying the proceedings brought by Ibrahem in New York City Housing Court to evict Sierra on the basis of HMC § 272076(b); and (4) damages, attorney’s fees, and costs. See Complaint, at 10-11. In response, defendant Ibrahem argued, inter alia, that plaintiff’s request to stay the Housing Court eviction proceedings and to enjoin him from prosecuting his ongoing action in that court violated the Anti-Injunction Act, 28 U.S.C. § 2283; and the City, belatedly, argued that the plaintiff’s claims against the City were also barred by the Anti-Injunction Act and by the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971). On December 6, 2007, the Court, by summary order, ruled that the Anti-Injunction Act barred Sierra’s claims for injunctive relief against Ibrahem, but that the other claims could proceed. This Memorandum states the reasons for that ruling.
The Anti-Injunction Act provides that “[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. In her papers on this issue, plaintiff did not dispute that her request to stay the Housing Court eviction proceedings and her request to enjoin Ibrahem from prosecuting these proceedings would be barred by the Anti-Injunction Act unless such measures were “expressly authorized” by the Fair
2

Housing Act or were “necessary in aid of [this Court’s] jurisdiction”; but she argued that both of these exceptions here applied.
However, as to the first exception, permitting an injunction that is “expressly authorized by Act of Congress,” it is settled law that the exception comes into play only when a statute “clearly creating a federal right or remedy enforceable in a federal court of equity[] could be given its intended scope only by the stay of a state court proceeding.” Mitchum v. Foster 407 U.S. 225, 239 (1972). Since the Fair Housing Act is expressly enforceable in both state and federal courts, see 42 U.S.C. § 3613(a)(1)(A), no stay of a state action is required to secure its intended scope, and consequently the first exception to the Anti-Injunction Act is here inapplicable. See Casa Marie, Inc. v. Superior Court of Puerto Rico for the District of Arecibo, 988 F.2d 252, 261-62 (1st Cir. 1993).
As for the second exception, permitting an injunction “necessary in aid of [this Court’s] jurisdiction,” this has traditionally been understood to apply to the Court’s “in rem” jurisdiction, as where the case involves the disposition of real property and the federal court acquires jurisdiction over the res before the state court does. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641 (1977) (“[T]he ‘necessary in aid of’ exception to § 2283 may be fairly read as incorporating this historical in rem exception.”); see also Erwin Chemerinsky, Federal Jurisdiction 745 (5th ed. 2007);; 17A Wright & Miller, Federal Practice and Procedure
3

§ 4225 (3d ed. 2007). Some courts, however, have taken the view that the exception extends beyond in rem cases to cases that, while technically in personam, are analogous to in rem cases, see, e.g., Lattimore v. Nw. Coop. Homes Ass’n, No. 90-0049, 1990 U.S. Dist. LEXIS 3285, at *12 (D.D.C. Mar. 26, 1990), or, even more broadly, to cases where some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide the case, see, e.g., James v. Belotti, 733 F.2d 989, 993 (1st Cir. 1984). Most notably, in McNeill v. New York City Housing Authority, 719 F. Supp. 233, 256 (S.D.N.Y. 1989), the court, finding that the “necessary in aid of . . . jurisdiction” exception applied, enjoined the state eviction proceedings pending against plaintiffs while it adjudicated their claims to federal low-income housing assistance under 42 U.S.C. § 1437(f), known as “Section 8.” The court reasoned that “[u]nless eviction proceedings are stayed long enough to adjudicate plaintiffs’ alleged right to retroactive reinstatement in the Section 8 program . . . . the Court will be unable to accord meaningful relief to the parties[, because] [r]einstatement in Section 8 without an apartment would be tantamount to no relief at all.”. Id. The District of D.C. reached a similar conclusion in Lattimore v. Northwest Cooperative Homes Association, op. cit., where the plaintiff’s claims also concerned Section 8 assistance. 1990 WL 10521534, at *3 (D.D.C. Mar. 26, 1990).
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However, even assuming the correctness of this broader
interpretation of the “necessary in aid of . . . jurisdiction”
exception, it still would have no applicability to the instant case,
since, as noted, plaintiff could fully preserve in state court her
defense of the invalidity of HMC § 27-2076, and thus pendency of the
state court proceedings would not meaningfully threaten this Court’s
jurisdiction. In both McNeill and Lattimore, by contrast, the
plaintiffs were unable to raise their federal claims in the state
court proceedings they sought to enjoin. See McNeill, 719 F. Supp.
at 255; Lattimore, 1990 WL 10521534, at *4. Here, however, as Sierra
concedes, see Plaintiff’s Memorandum of Law Regarding the Anti-
Injunction Act at 5, Sierra may raise her claim that HMC § 27-2076
violates the Fair Housing Act as an affirmative defense to the
eviction proceeding. See N.Y. Real Prop. Acts. § 743; see also
Hudson View Props. v. Weiss, 59 N.Y.2d 733 (N.Y. 1983); Elisau
Estates v. Schrager, 518 N.Y.S.2d 712 (N.Y. Civ. Ct. 1987).1
1 Although the housing court may sever complicated discrimination defenses or counterclaims, see, e.g., Committed Community Assocs. v. Croswell, 659 N.Y.S.2d 691 (2d Dept. 1997); Smalkowski v. Vernon, 2001 N.Y. Misc. LEXIS 456, No. 80162/00 (March 9, 2001 N.Y. Civ. Ct.), the severed claims still would be litigated in state court; the possibility of severance therefore has no effect on the Anti-Injunction Act analysis. See Armstrong v. Real Estate Int’l, 2006 U.S. Dist. LEXIS 7630 (E.D.N.Y. Feb. 14, 2006) (“Even if. . . the state court would sever the eviction proceeding from an equitable mortgage defense or any counterclaims, this result does not preclude her from litigating these claims in state court. Her ability to do so, regardless of which state court would have the jurisdiction to hear her claims, undermines any argument that the “necessary in aid of jurisdiction” exception to the Anti-Injunction Act would apply.”).
5

Although the Anti-Injunction Act therefore bars plaintiff’s
application for injunctive relief to stay the Housing Court eviction
proceedings and to prohibit defendant Ibrahem from prosecuting the
eviction, it in no way bars her claim against Ibrahem for
compensatory damages. See Kirschner v. Klemons, 225 F.3d 227, 238
(2d Cir. 2000). Subsequent to the issuance of this Court’s summary
order on December 6, 2007, however, plaintiff and Ibrahem settled
their differences and entered into a stipulation, to which the City
defendants also consented, dismissing plaintiff’s claims against
Ibrahem, which was approved by this Court on December 10, 2007.
This still leaves open, however, plaintiff’s claims against
the City defendants. As the Court ruled in its summary order of
December 6, 2007, the Ant-Injunction Act does not bar these claims,
nor need the Court dismiss these claims under the abstention doctrine articulated in Younger v. Harris.2 The City defendants were never a
party to the eviction proceeding against plaintiff; and now that that
proceeding has, in any event, been dismissed as part of the
settlement between plaintiff and Ibrahem, plaintiff’s requests for
injunctive and declaratory relief may fairly be read as applying
2 “Younger generally requires federal courts to abstain from taking jurisdiction over federal constitutional claims that involve or call into question ongoing state proceedings,” and is required when “(1) there is an ongoing state proceeding; (2) an important state interest is implicated in that proceeding; and (3) the state proceeding affords the federal plaintiff an adequate opportunity for judicial review of the federal . . . claims.” Diamond “D” Constr. Corp. v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002). “[A] litigant seeking an injunction must satisfy exceptions to both the Anti-Injunction Act and the Younger doctrine.” Moore’s Federal Practice § 122.05[1][c].
6

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------- x

JUANA SIERRA,

:

:

Plaintiff,

:

:

-v-

:

:

CITY OF NEW YORK; NEW YORK CITY

:

DEPARTMENT OF BUILDINGS, and PATRICIA :

J. LANCASTER, in her capacity as

:

COMMISSIONER OF NEW YORK CITY

:

DEPARTMENT OF BUILDINGS; NEW YORK

:

CITY DEPARTMENT OF HOUSING

:

PRESERVATION AND DEVELOPMENT, and

:

SHAUN DONOVAN, in his capacity as

:

COMMISSIONER OF NEW YORK CITY

:

DEPARTMENT OF HOUSING AND

:

DEVELOPMENT; and EMAD IBRAHEM,

:

:

Defendants.

:

------------------------------------- x

JED S. RAKOFF, U.S.D.J.

07 Civ. 6769 (JSR) MEMORANDUM ORDER

Section 27-2076(b) of the New York City Housing Maintenance Code (“HMC”) prohibits children under the age of sixteen from living in single room occupancy units (“SROs”), which are rooming units that lack either kitchen or sanitary facilities or both. Until several months ago, plaintiff Juana Sierra and her two young children occupied two such units at 24 West 119th Street in Manhattan. When Sierra’s landlord, former defendant Emad Ibrahem, commenced eviction proceedings against her on the basis of section 27-2076(b), Sierra filed this action against Ibrahem and various City agencies and officials, asserting that section 27-2076(b) discriminates on the basis of familial status in violation of the federal Fair Housing Act, 42 U.S.C. § 3604(a) (“FHA”).
By Order dated December 6, 2007, further elaborated by a

Memorandum dated January 2, 2008, the Court ruled that the AntiInjunction Act, 28 U.S.C. § 2283, barred Sierra’s claims for injunctive relief against Ibrahem but did not bar her remaining claims against him or any of her claims against the other defendants, the City of New York, the N.Y.C. Department of Buildings and its Commissioner, and the N.Y.C. Department of Housing Preservation and Development and its Commissioner (collectively, the “City defendants”). Shortly thereafter, Sierra and Ibrahem entered into a stipulation whereby she vacated her SRO in exchange for $19,000; Ibrahem was subsequently dismissed from the suit on consent of all parties. The City defendants then moved to dismiss the suit as against them on the ground that, because Sierra no longer occupied an SRO and, in the City’s view, likely would not occupy one in the future, she lacked standing to challenge section 27-2076(b). By Memorandum Order dated March 3, 2008, the Court denied the motion on the grounds that Sierra already had suffered damage from the City’s enforcement of the provision and that she had adduced sufficient evidence to show that the provision was causing her ongoing injury.
On March 7, 2008, the remaining parties filed cross-motions for summary judgment, relying primarily on the briefing supplied to the Court in conjunction with plaintiff’s prior motion for a preliminary injunction, which had been held in abeyance while the jurisdictional issues were decided. On the parties’ representation that there were no disputed issues of fact, the Court was prepared to rule simultaneously on the summary judgment motions and the now-
2

revived preliminary injunction motion. When it became clear that some disputed factual issues existed, however, the Court resolved to first address the summary judgment motions, which were putatively case-dispositive. Oral argument on these motions was held on March 26, 2008. For the reasons set forth below, both sides’ motions for summary judgment must now be denied.
The Fair Housing Act makes it unlawful “to refuse to sell or rent . . . or otherwise make unavailable or deny, a dwelling to any person because of . . . familial status.” 42 U.S.C. § 3604(a); see also id. § 3602(k) (defining “familial status” as “one or more individuals (who have not attained the age of 18 years) being domiciled with,” inter alia, “a parent”). “The phrase ‘otherwise make unavailable’ has been interpreted to reach a wide variety of discriminatory housing practices, including discriminatory zoning restrictions.” LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 424 (2d Cir. 1995). Section 27-2076(b) of the New York City Housing Maintenance Code, which explicitly provides that no SRO housing unit “shall be occupied by a family with a child under the age of sixteen years,” subject to certain exceptions not applicable here, plainly distinguishes between families with young children and those without, and so is facially discriminatory under the FHA.
The Second Circuit has not yet ruled on the appropriate standard for evaluating the validity of state statutes that are facially discriminatory under the FHA, and the Courts of Appeals that have considered the question are divided. The Eighth Circuit has
3

subjected such statutes to “rational basis” scrutiny. See Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996); Familystyle of St. Paul, Inc. v. City of St. Paul, Minn., 923 F.2d 91, 94 (8th Cir. 1991). The Sixth, Ninth, and Tenth Circuits, by contrast, have applied more searching scrutiny. For example, the Ninth Circuit has held that facially discriminatory restrictions pass muster under the FHA only if the defendant shows either “(1) that the restriction benefits the protected class or (2) that it responds to legitimate safety concerns raised by the individuals affected, rather than being based on stereotypes.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1050 (9th Cir. 2007); see also Larkin v. State of Mich. Dept. of Soc. Servs., 89 F.3d 285, 290 (6th Cir. 1996); Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir. 1995).
The City defendants urge the Court to apply rational basis scrutiny here, and therefore to uphold HMC section 27-2076(b) upon a finding that it is “rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985). In the alternative, the City defendants argue that section 27-2076(b) withstands even heightened scrutiny, because, according to the City defendants, the restriction operates to benefit children by excluding them from housing that is detrimental to their health.
The Court disagrees with the argument of the City defendants (and the Eighth Circuit) that rational basis scrutiny is the appropriate standard by which to assess a state or local statute that facially violates the FHA. “Rational basis” scrutiny typically comes
4

into play when one is assessing whether state legislation violates
the broad but general provisions of the Constitution, such as the
Fourteenth Amendment. See, e.g., City of Cleburne, 473 U.S. at 440
(Equal Protection Clause); Beatie v. City of New York, 123 F.3d 707,
711 (2d Cir. 1997) (substantive due process). But where, as in the
case of the FHA, Congress has promulgated a more specific prohibition
addressed to a more specific protected class – here, families with
children – a more heightened scrutiny is appropriate in order to
assure that Congress’s specific mandate is not thwarted. See Cmty.
House, 490 F.3d at 1050; Bangerter, 46 F.3d at 1503. Because the FHA
expresses Congress’s judgment that limitations on the housing
opportunities of families with children carry a presumption of impropriety,1 the Court agrees with plaintiff and with the Sixth,
Ninth and Tenth Circuits that it must apply a heightened level of
scrutiny to the rationales that the City claims underlie section 27-
2076(b).
The standard of heightened scrutiny appropriate to this
context is that set forth in Huntington Branch, NAACP v. Huntington,
844 F.2d 926 (2d Cir. 1988), viz.: “the defendant must prove that its
1 Indeed, the legislative history of the 1988 amendments to the FHA, which extended the Act’s coverage to families with children and the disabled, indicates that Congress was responding specifically to restrictions that excluded families with children from certain housing. See Fair Housing Amendments Act of 1988 House Report, H.R. Rep. No. 100-711, at 19 (1988), reprinted in 1988 U.S.C.C.A.N. 2173 (stating that “[i]n many parts of the country families with children are refused housing despite their ability to pay for it,” and citing statistics about the percentage of housing opportunities closed to families with children).
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actions furthered, in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.” Id. at 936. Although Huntington Branch involved the separate question of disparate impact under the FHA, the standard it sets forth is essentially a broader wording of the standard adopted by the Ninth Circuit in Community House in the same context as here, see 490 F.3d at 1050, and, for the reasons there stated, makes perfect sense in this case.
Applying this standard to the facts of this case, the Court finds the City’s rationale for HMC section 27-2076(b) to be bona fide and legitimate “in theory,” as the provision indisputably was passed with the intent of protecting children from unsafe and unsanitary living conditions thought to be detrimental to their welfare. Upon enacting the provision as an amendment to the Housing Code, the City Council declared that single room occupancy units without toilet and kitchen facilities “do not constitute decent, safe and healthful living accommodations for children under the age of sixteen years,” and that “the rearing of children of such age in such inadequate and undesirable dwelling accommodations endangers their health, safety and welfare and is detrimental to the welfare of the people of the city.” NYLS’ New York City Bill Jacket, 1960 Local Law 6 (Jan. 19, 1960). Similarly, in a Report to the Mayor on the amendment, the Deputy Mayor recommended approval because SRO units, with their “[l]ack of family privacy, lack of proper kitchen facilities and lack of adequate, private sanitary facilities[,] a[dd] up to a most unhealthy environment in which to rear children.” Report Re.
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Proposed Local Law, Int. No. 331, Pr. Nos. 390, 464, Dated Feb. 2,
1960, Ex. B to Affidavit of Mario Ferrigno, Assistant Commissioner
for Code Enforcement of the City of New York Department of Housing
Preservation and Development. The City defendants also have
presented some evidence that, at least as a general matter (i.e., not
specific to New York), children in SROs today suffer certain health
and development problems. See San Francisco Board of Supervisor’s
SRO Health and Safety Task Force and the Families in SROs Workgroup
Subcommittee, Report on Families with Children Living in Single Room
Occupancy Hotels in San Francisco 3 (May 15, 2001) (describing such
health effects as difficulty breathing due to the presence of mold
and pollution, decreased motor development due to small living space,
and increased exposure to contagions). Finally, the City defendants
cite a regulation promulgated by the U.S. Department of Housing and
Urban Development (“HUD”) which permits the use of federal housing
subsidies to rent SROs only by “[a] single person,” not by a group of
persons (including a family with children). 24 C.F.R. 982.602.
While the regulation is not directly applicable to this case, it
indicates, at the least, that HUD believes that SROs are not suitable for occupancy by more than one person.2
2 At oral argument, the City defendants went a step further, claiming that various HUD regulations specifically restricted families with children from using subsidies on SRO housing. See tr. 3/26/08. For example, counsel directed the Court’s attention to 24 C.F.R. section 982.601(b)(2), which provides that Public Housing Agencies are “not required to permit families . . . to use any of these special housing types [including SRO housing]” (emphasis added), and to 24 C.F.R. sections 982.401(b)(1), 982.401(c)(1), and 982.401(d)(1), which set forth as “housing quality standards” (i.e., the standards a
7

The crux of plaintiff’s argument, however, is that whatever
the merits of the theory behind section 27-2076(b), the provision
does not, in practice, serve to protect children’s safety.3
Plaintiff argues, on the contrary, that rather than working to
protect children, section 27-2076(b) almost exclusively harms them.
Specifically, plaintiff asserts that in practice, section 27-
2076(b) is rarely enforced except at the initiation of landlords
seeking a basis on which to evict their low-income tenants. Under
New York City law, property owners may not commence holdover
proceedings to oust tenants they believe are violating City law
unless the City department or agency charged with enforcing that law
has already issued a formal violation. See 9 N.Y. Codes, Rules &
Regulations § 2524.3(c); Munroe v. 344 East 76th Realty Corp., 448
Public Housing Agency must find a unit to meet before approving a “family[’s]” use of a subsidy, see 24 C.F.R. § 982.305(a)(2) (emphasis added)) requirements that units contain kitchen and sanitary facilities. The argument is contradicted by the regulations, however, which explicitly define a “family” to include not only families with children but also single people and groups of adults without children. See 24 CFR 982.4(b) (providing definitions for Part 982, and referring for definition of family to section 982.201); 24 C.F.R. § 982.201(c) (defining a “family” as “a single person or a group of persons,” including “a family with a child or children” or, for example, “two or more elderly persons or disabled persons living together”). The Court trusts that counsel’s mistake was unintentional.
3 The Court somewhat loosely suggested during oral argument that, because the manner in which section 27-2076(b) operates in practice is relevant to its inquiry, plaintiff’s challenge may have added an “as-applied” element in addition to its initial facial element. See tr. 3/26/08. Despite the misstatement, the current posture of this case presents a quintessential facial challenge, and is no less so because the City defendant’s rationales for section 27-2076(b) must be examined against the backdrop of its actual implementation.
8

N.Y.S.2d 388, 390 (N.Y. Sup. Ct. 1982). According to Stephan Russo,
Executive Director of the Goddard-Riverside Community Center, the
requirement of a City-issued violation leads to the following cycle:
SRO landlords often knowingly and willingly rent unit to families with children between the ages of 1 and 16 years despite the City ordinance . . . The landlord permits a family to move in, allows the family to live and grow in their home for years . . . and then seeks to evict the tenants for being a family once a greater earning opportunity is realized by the landlord. In other words, once an SRO landlord has the opportunity to earn more money by gaining an empty unit through the eviction of a family with children, [the landlords], themselves, ask the City to inspect the families’ SRO units to issue violations against the landlord for children living in those units.
Affidavit of Stephan Russo (“Russo Aff.”) ¶ 13, Ex. B to Attorney’s
Declaration of Ami T. Sangvhi in Support of Plaintiff’s Order to Show
Cause for Temporary Restraining Order and Preliminary Injunction.
Moreover, Russo, whose organization provides assistance to SRO
residents facing eviction, stated that “every time we have
represented a family facing eviction because they live with children,
it has been the landlord that has reported such supposed violation to
the City” in order to get the documentation required to commence
eviction proceedings. Id. ¶ 14. Indeed, it appears that the course
of events leading to Sierra’s eviction may have fit this pattern:
Ibrahem first initiated eviction proceedings against Sierra in 2005;
these proceedings were dismissed because no City agency had issued a
violation; some time thereafter, the New York City Department of
Buildings received an anonymous complaint regarding illegal
occupation of Ibrahem’s building; the City subsequently inspected the
premises and issued a notice of violation; Ibrahem then commenced new
9

eviction proceedings against Sierra. See Attorney’s Declaration of Martha Weithman in Support of Plaintiff’s Order to Show Cause for Temporary Restraining Order and Preliminary Injunction (“Weithman Decl.”) ¶¶ 6-8; Affidavit of Frank Angilletta ¶¶ 2, 4.4
Plaintiff further argues that because SRO housing is the only type that many low-income families can afford, the effect of section 27-2076(b) is essentially to force these families into homelessness, a condition far more detrimental to children’s safety than living in SROs. See generally Russo Aff. ¶ 15; Affirmation of Christopher Schwartz, Supervising Attorney at MFY Legal Services, Inc. ¶ 5, submitted following Court Conference of Jan. 14, 2008.
Finally, plaintiff contends that there are non-discriminatory means of protecting children from the safety hazards that the City attributes to SRO housing, such as overcrowding, uncleanliness, inadequate ventilation, mold, vermin, and the like. Specifically, plaintiff argues, the City could enforce restrictions already in place aimed at controlling those problems directly. See, e.g., N.Y. Mult. Dwell. Law § 248(12) (setting maximum occupancy standards for SROs of two adults, or one adult and two children, per sleeping room); HMC § 27-2011 (requiring building owners to keep “interior shared space” clean); HMC § 27-2018 (requiring abatement of rodent and insect infestation); HMC §§ 27-2057 to 2062 (setting standards for lighting and ventilation of living units); HMC §§ 27-2065, 27-
4 The second eviction proceedings were also dismissed for reasons not relevant here. It was after Ibrahem commenced the third eviction proceedings that Sierra filed the instant action. See Weithman Decl. ¶¶ 8, 10.
10

2067 (requiring proper light and ventilation of sanitary facilities and, in SRO buildings, requiring one such facility per six residents). The City defendants, for their part, dispute that these other regulations adequately address the problems section 27-2076(b) is aimed at alleviating.
It is clear to the Court that the City enacted section 272076(b) in 1960 with the sound and commendable goal of protecting the safety of children. In light of the intervening passage of the FHA and amendments, however, and the fact that section 27-2076(b) is facially discriminatory under that statute, the City defendants must justify the continued operation of the statute today. Unless the City defendants can show that section 27-2076(b) “further[s], in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect,” Huntington Branch, 844 F.2d at 936, the provision cannot be sustained.
As the above discussion illustrates, however, the statute’s present effect is the subject of genuine and material factual disputes between the parties. Accordingly, both sides’ summary judgment motions must be, and hereby are, denied.
To resolve the disputed issues of fact, the Court will permit each party to conduct limited discovery, following which the Court will hold an evidentiary hearing on plaintiff’s request for a permanent injunction (obviating, as no longer necessary, any hearing on a preliminary injunction). At this hearing, the Court will find it helpful to have the parties present evidence pertaining to, among
11

 
 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

------------------------------------- x

JUANA SIERRA,

:

:

Plaintiff,

:

:

-v-

:

:

CITY OF NEW YORK; NEW YORK CITY

:

DEPARTMENT OF BUILDINGS, and PATRICIA :

J. LANCASTER, in her capacity as

:

COMMISSIONER OF NEW YORK CITY

:

DEPARTMENT OF BUILDINGS; NEW YORK

:

CITY DEPARTMENT OF HOUSING

:

PRESERVATION AND DEVELOPMENT, and

:

SHAUN DONOVAN, in his capacity as

:

COMMISSIONER OF NEW YORK CITY

:

DEPARTMENT OF HOUSING AND

:

DEVELOPMENT; and EMAD IBRAHEM,

:

:

Defendants.

:

------------------------------------- x

JED S. RAKOFF, U.S.D.J.

07 Civ. 6769 (JSR) OPINION AND ORDER

Section 27-2076(b) of the New York City Housing Maintenance Code (“HMC”) prohibits families with children under the age of sixteen from residing in single room occupancy units (“SROs”), which are defined in turn as “rooming units” that lack either an in-unit kitchen or an in-unit bathroom. Plaintiff Juana Sierra, a mother of two children who formerly occupied two units of that type, has challenged the restriction under the Fair Housing Act (“FHA”), 42 U.S.C. § 3604(a), arguing that it impermissibly discriminates on the basis of family status. Sierra asks the Court to declare the ordinance invalid and enjoin its future enforcement, as well as to award her damages. The City defendants - the City of New York, the N.Y.C. Department of Buildings (“DOB”) and its Commissioner, and the N.Y.C. Department of Housing Preservation and Development (“HPD”) and

its Commissioner - oppose Sierra’s request, defending section 272076(b) as a valid means of ensuring the safety of City residents. Each party contends that its respective position best protects the interests of families and children.
This case has a long procedural history, which is described in detail in the Court’s earlier Orders. See Order dated December 6, 2008 (dismissing some of Sierra’s claims under the Anti-Injunction Act); Memorandum dated January 2, 2008 (explaining reasons for December 6 ruling); Memorandum Order dated March 3, 2008 (“March 3 Order”) (denying City defendants’ motion to dismiss for lack of standing); Memorandum Order dated May 13, 2008 (“May 13 Order”) (denying parties’ cross-motions for summary judgment). In its May 13 Order, the Court resolved the primary legal question bearing on this case, that is, by what standard the Court should evaluate a challenged statute that is facially discriminatory under the FHA. The Court held that it must appply a “heightened level of scrutiny,” upholding such a provision only where it “‘further[s], in theory and in practice, a legitimate, bona fide governmental interest and that no alternative would serve that interest with less discriminatory effect.’” May 13 Order at 4-5 (citing Huntington Branch, NAACP v. Huntington, 844 F.2d 926, 936 (2d Cir. 1988)). The Court found, however, that “the statute’s present effect” – i.e., whether it, in practice, helps or hurts children, and whether its aims could be accomplished through non-discriminatory means - “is the subject of genuine and material factual disputes between the parties.” Id. at
2

11. Accordingly, the Court denied the parties’ cross-motions for summary judgment.
On September 3-5, 2008, the Court conducted an evidentiary hearing to resolve those factual disputes and so resolve plaintiff’s requests for injunctive and declaratory relief. In support of the plaintiff’s case, the Court heard testimony from Juana Sierra herself; Lance Freeman, Ph.D, an expert in urban planning; Kim Ping Lam, another tenant claiming to have been subject to discrimination under HMC section 27-2076(b); and Susan Cohen, a senior staff attorney and community justice project coordinator at Manhattan Legal Services and a longtime organizer of SRO residents. In support of the defendants’ case, the Court heard testimony from Moon Wha Lee, Ph.D., Assistant Commissioner for Housing Policy Analysis and Statistical Research at HPD; Roger Hart, Ph.D., an expert in environmental psychology; Mario Ferrigno, Assistant Commissioner for the Division of Code Enforcement at HPD; Paul Harkin, a supervising construction inspector from DOB; Frank Richards, Chief Inspector in the Lead Division at HPD; and Michael O’Connell, a supervising inspector at HPD.
Before addressing the merits of Sierra’s challenge, the Court turns initially to the City defendants’ motion, renewed during the bench trial, to dismiss Sierra’s claims for lack of standing. This is not the first time the City has challenged Sierra’s standing to bring this suit. When Sierra first filed her Complaint, she occupied, with her two young children, two SRO units at 24 West 119th
3

Street in Manhattan. While this action was pending, however, she entered into a stipulation with her landlord, former defendant Emad Ibrahem, whereby she vacated the unit and received thousands of dollars in compensation. The City defendants subsequently asserted that because Sierra no longer occupied an SRO and, in their view, was unlikely to find one that she could afford, section 27-2076(b) no longer caused her any “injury in fact” and thus she lacked standing to challenge it. The Court disagreed for two reasons. First, it found that Sierra already had suffered an injury directly traceable to the challenged provision, because it was the basis of the building code violation issued against her landlord, which was in turn the ground on which he commenced eviction proceedings against her. Second, the Court found that Sierra had made “a sufficient (if thin) showing that section 27-2076(b) continues to limit her available housing options” because - at least at that stage of litigation - it appeared that Sierra was actively seeking to occupy an SRO and that some such units might be available at a price she could afford. March 3 Order at 5-8. Sierra’s settlement with the landlord did not moot her claims against the City in these regards.
In support of its renewed motion, the City defendants argue that evidence from the trial casts doubt on both of the Court’s earlier rationales. Taking the second rationale first, the City defendants contend that Sierra’s testimony during the trial demonstrates that she is not, in fact, seeking to rent an SRO. Specifically, in questioning Sierra about her apartment search, the City asked her, “would you consider sharing your bathroom with
4

strangers?” (defined as non-family members) and “would you consider
sharing your kitchen with people other than family?” Sierra answered
“no” to both questions. Tr. 42:15-23.1 While the Court’s prior
determination on standing turned on the availability of SRO units to
Sierra, the City defendants now argue that regardless of those units’
availability, Sierra will not again be subject to HMC section 27-
2076(b) because she is not interested in occupying an apartment
covered by the provision.
Sierra responds, primarily, that she is sufficiently injured
by being deprived of the choice of whether to live in an SRO or not.
Plaintiff’s Post-Trial Memorandum of Law (“Pl. Mem.”) at 6. Yet the
Court fails to see how Sierra suffers from being deprived of a choice
that she does not wish to make. If Sierra sought to challenge a
similar provision in another city where she had no intention of
residing, for example, surely she would not be harmed by any
limitations on her housing options in that city.2 Cf. Gladstone,
1 If these answers seem puzzling in light of the fact that Sierra previously did occupy SROs, the explanation is that Sierra’s prior living arrangement was, by all accounts, highly atypical of SRO living. Sierra’s two units at 24 West 119th Street were technically classified as SRO units, see Pl. Ex. 5, but Sierra did not, in fact, share a kitchen or bathroom with anyone outside her family. See Tr. 40:22-23; 42:9-14. According to Sierra’s testimony, she occupied two units that each had a kitchenette, and her two units, which were the only ones on the floor, shared a bathroom with one another but with no other tenants. Id.
2 For this reason, UAW v. Johnson Controls, 499 U.S. 187 (1991), on which Sierra relies, is inapposite. It is true that the Supreme Court ruled in that case that depriving the petitioners of a “choice” – there, the choice “as to whether they wish to risk their reproductive health for a particular job” amounted to impermissible discrimination. Id. at 197. In
5

Realtors v. Bellwood, 441 U.S. 91, 113 n.25 (1979) (approving of district court’s dismissal on standing grounds of two plaintiffs who lived outside the area alleged to have been affected by defendants’ discrimination and who had failed to allege any other harm).
Ultimately, however, the Court need not resolve the question of whether the provision’s possible future effects on Sierra are sufficient to confer standing. While that factor may bear on Sierra’s ability to seek injunctive relief, the requirements of Article III standing are satisfied so long as Sierra has already suffered a cognizable injury.
As to the Court’s earlier finding that Sierra had already been harmed by HMC section 27-2076(b), see March 3 Order at 5, the City argues that the Notice and Violation of Hearing issued by the DOB against Sierra’s landlord, previously not presented but now in evidence before the Court, indicates that it was was for a violation of HMC section 217, which forbids occupancy contrary to the certificate of occupancy, and not for a violation of 27-2076(b). See Pl. Ex. 9 (“DOB Violation”). However, while the DOB Violation does cite section 217, it also, in describing the “violating conditions observed,” states that “rear apt. #3 (1st floor) [one of Sierra’s units] had a 14 year old female child . . . . The above situation
Johnson Controls, however, that choice was one that the petitioners undisputedly wished to make: i.e., the petitioners wanted to obtain the battery-making jobs from which the company excluded them. Id. at 192. Here, Sierra does not wish to avail herself of the opportunity to live in an SRO. In any event, the Supreme Court did not consider any challenge to the petitioners’ standing in Johnson Controls.
6

doesn’t comply with Housing Maintenance Code 27-2076 prohibited
occupancies: . . . B. No rooming unit shall be occupied by a family
with a child under the age of 16.” Id. Given this specificity, it
is fair to construe the DOB Violation as one both for occupancy
contrary to the certificate of occupancy and occupancy in violation of section 27-2076(b).3 Indeed, Sierra’s landlord cited the latter
violation (as well as occupancy contrary to Sierra’ lease agreement)
in issuing, first, a Ten Day Notice to Cure and, second, a Thirty Day
Notice of Termination, which notices culminated in the landlord’s bringing holdover proceedings against Sierra. See Pl. Exs. 10-11.4
Because Sierra has already suffered a “‘distinct and palpable
injury’” as a result of HMC section 27-2076(b), she has met “the sole
requirement for standing to sue” under both the FHA and Article III.
Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982) (citing
Warth v. Seldin, 422 U.S. 490, 501 (1975)). This is true regardless
of whether Sierra continues to suffer an injury redressible through
injunctive relief. Cf. id. at 370-71 (“Irrespective of the issue of
injunctive relief, respondents continue to seek damages to redress
alleged violations of the Fair Housing Act. . . . Given respondents'
3 During trial, the parties disputed whether an inspector from DOB would possess the authority to issue a violation of HMC section 27-2076(b). See, e.g., Tr. 215:15-216:2; 220:1-224:11. For a variety of reasons, the Court is not satisfied that the answer to this question was proved at trial one way or the other. Accordingly, the Court takes the DOB violation at face value.
4 That Sierra herself understood the holdover proceedings to have been brought because her landlord “wanted [her] to pay more” is immaterial. Tr. 44:23-25. The grounds stated in the Ten Day and Thirty Day Notices are more conclusive indicators of Sierra’s landlord’s basis for commencing the proceedings.
7

continued active pursuit of monetary relief, this case remains
definite and concrete, touching the legal relations of parties having
adverse legal interests." (internal quotation marks omitted)).
Accordingly, the Court turns to the merits of the plaintiff’s
claims for injunctive and declaratory relief. HMC section 27-2076(b)
provides, in relevant part:
No rooming unit shall be occupied by a family with a child under the age of sixteen years, except that if a child is born to a family residing in such accommodations, the unlawful occupancy shall not commence until one year after the birth of such child.
The HMC further defines a “rooming unit” as “one or more living rooms
arranged to be occupied as a unit separate from all other living
rooms, and which does not have both lawful sanitary facilities and
lawful cooking facilities for the exclusive use of the family
residing in such unit.” HMC § 2004(15). The City of New York
enacted section 27-2076(b) in 1960 to protect children from what it
deemed to be the inappropriate, unsafe, and unhealthy environments of
SROs.5
As the Court noted in its May 13 Order, the rationales cited
5 See, e.g., NYLS’ New York City Bill Jacket, 1960 Local Law 6 (Jan. 19, 1960) (declaring that single room occupancy units without toilet and kitchen facilities “do not constitute decent, safe and healthful living accommodations for children under the age of sixteen years,” and that “the rearing of children of such age in such inadequate and undesirable dwelling accommodations endangers their health, safety and welfare and is detrimental to the welfare of the people of the city”); Report Re. Proposed Local Law, Int. No. 331, Pr. Nos. 390, 464, Dated Feb. 2, 1960 (recommending approval of provision because SRO units, with their “[l]ack of family privacy, lack of proper kitchen facilities and lack of adequate, private sanitary facilities[,] a[dd] up to a most unhealthy environment in which to rear children”).
8

by the City at the time the provision was enacted reflect a legitimate, bona fide governmental interest; however, the question now facing the Court is whether, today, the provision works “in practice” to further those interests. May 13 Order at 7-8. The burden of so proving falls on the City defendants, and the Court finds that the evidence adduced by the City defendants during the trial is sufficient to meet that burden.
The critical feature separating a rooming unit subject to HMC section 27-2076(b) from a unit not subject to that provision is that a rooming unit “does not have both lawful sanitary facilities and lawful cooking facilities for the exclusive use of the family residing in such unit,” i.e., it lacks either a private kitchen or a private bathroom or both.6 Accordingly, the Court has considered only evidence pertaining to risks necessarily or very strongly associated with residences lacking such features.
This limitation led the Court to disregard a variety of evidence offered by the City in support of the provision. For example, the City claimed that SROs were particularly likely to be unhealthy for children because of the “demographic profile of rooming unit residents.” See Expert Report and Disclosure of Roger A. Hart (“Hart Report”), Def. Ex. C, at 37-39. The City’s argument was, in
6 Sierra’s own SRO arrangement was, by all accounts atypical. See supra note 1. However, because Sierra is asking the Court to enjoin enforcement of HMC section 27-2076(b) across the board, the Court has made an effort to consider the effects on children of the more standard SRO unit: a room or rooms whose inhabitants share an exterior kitchen and/or bathroom with other tenants.
9

essence, that SRO buildings are more likely than other apartment
buildings to be inhabited by single male households and by those with
substance abuse problems and other special needs. While the former
is statistically true, see Expert Report and Disclosure of Moon Wha
Lee, Ph.D. (“Lee Report”), Def. Ex. A, at 8, the conclusion that the
presence of such households has a detrimental impact on children is
one that could rely only on speculation and on impermissible
stereotypes. See Cmty. House, Inc. v. City of Boise, 490 F.3d 1041,
1050 (9th Cir. 2007) (holding that facially discriminatory
restrictions under the FHA may not be justified by stereotypes);
Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir. 1995)
(“Restrictions predicated on public safety cannot be based on blanket
stereotypes . . . .”). As to the latter, the City defendants
produced, at most, anecdotal evidence that special needs residents
are more common in SROS, and have primarily relied, again, on stereotypes.7 In any event, neither the presence of a greater number
of single male households nor those with special needs is in any way
particularly linked to the unique features of an SRO: the lack of an
in-unit kitchen or bathroom.
7 See The Relationship Between Residence in a SRO and Child Health and Well Being, Report Prepared by Lance Freeman, Ph.D. for the Plaintiff Juana Sierra (“Freeman Report”) at 16 (“The City of New York . . . impl[ies] that the mentally ill, substance abusers and those with health problems . . . are likely to be residing in SROS[ and that] residents such as these make bad neighbors for children . . . . In making this argument the City is subscribing to stereotypes of SROs are part of ‘skid row’ and as a housing of last resort for very poor men.”).
In addition, the Court notes Cohen’s very helpful testimony that in fact, in many SRO residences, strong social networks do exist. See Tr. 79:10-16.
10

Similarly, the Court lends no weight to the City defendants’
claim, primarily advanced earlier in this litigation, that SRO
housing tends to be of lower overall quality – in terms of
maintenance and building defects and general building dilapidation –
than non-SRO housing. The report of plaintiff’s expert, Dr. Lance
Freeman, strongly suggests that both as a logical and an empirical
matter SRO housing is not likely to be meaningfully worse with
respect to those criteria than is other low-end housing. See The
Relationship Between Residence in a SRO and Child Health and Well
Being, Report Prepared by Lance Freeman, Ph.D. for the Plaintiff Juana Sierra (“Freeman Report”) at 3-14.8 By contrast, the City
defendants have offered no material evidence supporting their
argument in this regard.
Even disregarding arguments about substandard quality and
demographic profiles, however, the City defendants have offered
substantial evidence that the defining features of SRO housing are
detrimental to children.
First, the fact that a bathroom is removed from a family’s
8 The Court has considered Dr. Lee’s critique regarding the sampling and potential non-sampling errors of Dr. Freeman’s analysis; however, the Court agrees with Dr. Freeman that his results, at the least, “are useful for gauging the overall quality of SRO units” and “the direction of the relationships” between SROs and non-SROs. Freeman Report at 15.
The Court further notes that, even if it found SRO housing to have significantly more building and maintenance defects than non-SRO housing or found that Dr. Freeman’s results were not conclusive either way, the plaintiff would have a strong argument that the City defendants could effectively address that problem through stricter enforcement of those provisions of the housing code directed at such defects.
11

living space and shared with non-family members necessarily has
impacts both on children’s health and safety and on their privacy and
development. Shared bathrooms expose children to dangers that their
parents – no matter how conscientious - are unable to control:
primarily, exposure to strangers and exposure to contagions. See
Hart Report ¶¶ 12, 60-61, 67; Tr. 317:2-25.9 The first may seriously
compromise a child’s safety; for example, Dr. Hart estimated that a
child might encounter as many as thirty or forty different
individuals in and around a single bathroom,10 see Tr. 319:3-14, and
the Court heard anecdotal evidence that locking mechanisms on shared
bathrooms are frequently either broken or inadequate, see Tr. 230:5-
9 The plaintiff has challenged the entire body of testimony presented by Dr. Hart on the ground that he does not qualify as an expert under Federal Rule of Evidence 702. See, e.g., Plaintiff’s Reply to Defendants’ Post-Trial Memorandum of Law (“Pl. Reply Mem.”) at 9. Dr. Hart’s testimony may not be admissible as “scientific” expert evidence under Daubert v. Merrell Dow Pharmaceuticals, 516 U.S. 869 (1995), but it is certainly admissible as expert evidence under Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151-52 (1999) (clarifying that courts must ensure the reliability of expert evidence that does not purport to be purely “scientific,” but that they should not subject such evidence to the strict requirements set forth in Daubert). Here, Dr. Hart drew on a variety of both qualitative and quantitative studies in the fields of psychology, medicine, urban planning, public health, and other disciplines, as well as his substantial personal experience, in preparing his report. See Hart Report at ¶ 1-6 & Attachment 2. The Court was, and remains, fully satisfied that his testimony is reliable and admissible under Rule 702. See Kumho Tire Co., 526 U.S. at 152 (granting the trial judge “considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable”).
10 Although by law only six individuals may share a bathroom, Tr. 203:6-7 (testimony of Richards), as a practical matter, the residents of a floor may use any bathroom on that floor. This fact led to Dr. Hart’s estimate. See Tr. 317:7318:15.
12

15 (testimony of O’Connell). As to risk of infection, while the Court received no conclusive evidence that SRO bathroom facilities are, as a rule, less hygienic than in-unit bathrooms,11 it is impossible, as a logical matter, for a parent to control the cleanliness of a shared bathroom in the way he or she might a private bathroom. See Tr. 319:3-14. Additional problems stem from the fact that younger children cannot use an exterior bathroom without adult supervision; where it is lacking, they may endanger themselves by attempting to use the bathroom unassisted or by waiting, possibly risking medical consequences. See Hart Report ¶ 60, 63. Furthermore, Dr. Hart presented research from psychology and social science literature concluding that shared, exterior bathrooms have negative impacts on children’s development: for young children, for example, by thwarting toilet training, and for older children and adolescents by depriving them of privacy needed for healthy development. See Tr. 302:10-303:20; Hart Report ¶¶ 59-60, 69-73, 78.
Shared kitchens likewise pose health and safety risks for children. Kitchens are dangerous places for children, but it is difficult if not impossible for a parent to “child-proof” a shared kitchen; nor can a single parent leave a child unattended in the rooming unit while preparing meals. See Tr. 310:1-312:18; 315:14-
11 Several witnesses testified that SRO bathrooms – like bathrooms in all low-income housing - “run the gamut” in terms of cleanliness, see, e.g., Tr. 81:2-3 (testimony of Cohen), and Dr. Hart testified that the bathrooms he observed had in fact been recently cleaned, see tr. 296:16-19. However, Inspector Richards testified that “[i]n the majority of cases the bathrooms are not clean,” Tr. 203:15, 205:15-18, and Inspector O’Connell testified similarly, see Tr. 229:6-7.
13

316:18; Hart Report ¶ 17. Parents face additional obstacles to safe
preparation of food; for example, many shared kitchens lack
refrigerators, but even where refrigerators are present, parents may
hesitate to use them because of concerns over food security. See Hart Report ¶¶ 79-82; Tr. 204:24-25 (testimony of Richards).12 It is
also a particular challenge to keep shared kitchens clean for reasons
similar to those related to shared bathrooms, and thus food
preparation in shared kitchens carries greater health risks; there
are, moreover, safety risks associated with bringing food back to eat
in the living unit. See Hart Report ¶ 15, 41 & fig. 7; Tr. 315:8-
316:6.
Finally, children’s physical and psychological development is
likely to be impeded by the nature of the living space within an SRO.
The fact that SROs tend to be quite small is not, in and of itself,
the problem, for lack of space is not indispensably linked to SRO housing: SROs, like regular apartments, can be small or large.13 By definition, however, only SROs may consist of a single room.14 (Any
12 Dr. Hart reported that during his site visits, he observed little to no food stored in shared refrigerators. See Tr. 312:22-25.
13 The Court did hear anecdotal evidence that SROs tend to be much smaller than non-SRO apartments, and that may be the case. But if the City were primarily concerned with the size of children’s living space, it would be more appropriate to exclude them from apartments below a certain square footage, for example, rather than from SROs.
14 They do not have to consist of a single room, as a “rooming unit” for purposes of section 27-2076(b) is defined as “one or more living rooms arranged to be occupied as a unit” and lacking either a bathroom or a kitchen (emphasis added); but in practice it appears that most SROs do consist of single rooms,
14

non-SRO housing would have, at the least, a separate bathroom.) Dr. Hart cited research suggesting that living in a “single undifferentiated space,” can delay development and deny children needed refuge. See Tr. 276:17-277:1; 295:1-10; Hart Report ¶¶ 97, 99.
In short, the essential elements of an SRO - lack of in-unit bathroom, lack of in-unit kitchen, and, usually, single-room living space - are detrimental in many respects to the welfare of children and inherently cannot be remedied by alternative measures. Moreover, as Dr. Hart repeatedly emphasized, these multiple harms cannot be considered independently, but rather have cumulative negative impacts. See, e.g., Hart Report ¶ 10.
The plaintiff challenges the above evidence, arguing that it does not provide adequate support for HMC section 27-2076(b) for several reasons. First, as an evidentiary matter, the plaintiff asserts that the studies cited by Dr. Hart may substantiate his claims about the possible effects of certain aspects of SROs on children, but he has cited no scholarly proof that such effects in fact result. In particular, she notes that he has not referenced any longitudinal or cross-sectional studies demonstrating that they afflict children raised in SROs more severely than others. See, e.g., Freeman Report at 15-21.
In a perfect world, legislatures would always have scientific
which is why, indeed, they are referred to as “Single Room Occupancy” units. See Hart Report ¶ 95; Tr. 91:15-17 (testimony of Cohen).
15

studies to guide and justify the measures they enact; however, such studies very rarely exist, and in any event, are in no way required to support a challenged statute – even one, like this one, that is facially discriminatory. To require such studies before finding that an ordinance “further[s] . . . in practice, a legitimate, bona fide governmental interest” would be, in effect, to hold that no facially discriminatory statute ever could be upheld. Clearly, that is not the law, nor should it be.
As the legislative history of the FHA indicates, Congress intended to prohibit the exclusion of families with children from housing opportunities based on invidious discrimination and stereotypes. See Fair Housing Amendments Act of 1988 House Report, H.R. Rep. No. 100-711, at 19 (1988), reprinted in 1988 U.S.C.C.A.N. 2173. Such discrimination is a far cry from the City’s rationales here, however - at least as limited by the Court. Unlike in other cases where FHA challenges were sustained, the City has produced extensive evidence demonstrating concrete physical and psychological effects of SRO living on children, rather than merely generalizations and conclusory assertions. See Cmty. House, Inc., 490 F.3d at 1051 (finding that “[t]he City provides little support to establish that the men-only policy benefits women and families by protecting their safety” - there, a single conclusory affidavit - but refusing to “foreclose the possibility that at a later stage in this litigation, the City may be able to provide evidence to establish that its menonly policy is indeed justified by legitimate safety concerns); Bangerter, 46 F.3d at 1504-05 (holding that the facts in the record
16

at that time did not support restrictions on the living opportunities of disabled individuals, but emphasizing that restrictions tailored to those individuals “could be acceptable under the FHA[] if the benefit to the handicapped in their housing opportunities clearly outweigh whatever burden may result to them” and that “[i]t could be that the evidence will show that [one of the restrictions imposed] might prove to be beneficial to the handicapped”).15 Indeed, the Court denied the City’s summary judgment motion, and conducted this evidentiary hearing, precisely so that the City would be forced to produce this type of detailed, objective support.
The plaintiff’s second major challenge to the City’s evidence is that, even if the Court finds the City’s proof sufficient to establish that SRO housing has negative impacts on children, the City has failed to prove that those impacts are worse than any that children would suffer in feasible alternative housing situations. In other words, if children are excluded from SROs, the only available housing options their families can afford are likely to be just as problematic. This argument is a variation of the claim the plaintiff advanced at the summary judgment stage, which was that to the extent
15 Outside the housing discrimination context, courts have upheld facially discriminatory restrictions where they were shown to be grounded in legitimate safety concerns. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 336-337 (1977) (upholding male-only requirement for job of prison guard in maximum-security male penitentiaries because there was “substantial testimony from experts on both sides of this litigation that the use of women as guards in ‘contact’ positions under the existing conditions . . . would pose a substantial security problem, directly linked to the sex of the prison guard,” and consequently, being male was a “bona fide occupational qualification” under Title VII).
17

section 27-2076(b) drives families from SROs, it delivers them into homeless shelters or onto the streets.
Yet the Court heard no material evidence supporting this hypothesis. As an initial matter, the only displaced family of which the Court is specifically aware – Sierra’s own family - is in neither situation. Rather, Sierra and her children now live with her sister and her sister’s family. See Tr. 34:14-35:2. While the Court in no way suggests that this situation is ideal – on the contrary, the “doubled up” conditions are undoubtedly crowded - it is a far cry from living on the streets; moreover, there is a strong argument to be made that because Sierra and her children now share kitchen and sanitary facilities with family members only, this arrangement is safer for her family than the typical SRO.
Furthermore, the Court heard testimony from Dr. Lee that the vast majority (96 percent) of available apartments in New York City in Sierra’s price range are in fact regular apartments, not SROs. Lee Report at 7. Dr. Lee concluded that because the number of families living in SROs is fewer than the number of vacant apartments available for less than $600, perfect enforcement of 27-2076(b) would not render any families homeless. Id. at 3. While the Court appreciates plaintiff’s argument that the low vacancy rate might make apartments in that price range hard to acquire despite their absolute number, and that Dr. Lee’s conclusions is thus overly simplistic,16
16 The Court further recognizes that, as Dr. Freeman testified, the vacancy rate – which Lee did not calculate - is a useful indicator of the interaction between supply and demand, and that according to Dr. Freeman’s calculations the vacancy rate
18

the statistic shows, at the least, that SROs in no way present the only residential option for families of Sierra’s means. This is particularly true in boroughs outside of Manhattan.17
Likewise, the Court heard no material evidence tending to support the plaintiff’s other primary argument at summary judgment: that section 27-2076(b) is enforced primarily by landlords seeking to evict families with children so that they can rent to higher-paying tenants. In terms of statistical information regarding who reports section 27-2076(b) violations, it appears that no information is available one way or the other, both because landlords are likely to report violations anonymously and because the HPD complaint database is not equipped to record complaints originating from landlords as opposed to other sources. See Tr. 126:5-14. However, the plaintiff was not able to come forward even with anecdotal evidence of landlords’ engaging in such conduct - an inability that would be inexplicable if the practice were as widespread as the plaintiff
of regular apartments is significantly lower than the vacancy rate of SROs. Rebuttal Prepared by Lance Freeman, Ph.D. for the Plaintiff Juana Sierra, at 1-5. Nonetheless, the Court accepts Lee’s testimony that the number of vacant apartments does, at least directly, reflect on the supply and demand of housing, as the absolute number represents what apartments remain available after existing supply and demand have operated. See Tr. 256:16257:4.
17 Ms. Cohen did testify that she believed that individuals who left SROs became homeless, 88:21-89:7, but she did not specifically refer to families. More importantly, the Court found her testimony in this regard to be far too subjective and impressionistic to be accorded material weight.
19

claimed.18 Indeed, Cohen, who had extensive experience organizing SRO
tenants against landlord abuses, said she had never encountered a
charged violation of 27-2076(b) in forty years of experience. Tr.
90:8-22; 92:14-16. What is more, Cohen stated that she only even
observed children living in SROs a couple of times during that entire
period, see Tr. 90:8-22, a level of frequency that appears to comport
with the experiences of other witnesses.19 Finally, Ferrigno
testified that in the past ten years, HPD has issued only 95
violations of 27-2076(b), 58 of which were “picked up in the line of
[an inspector’s] travel,” rather than reported. Tr. 130:21-131:2.
18 The plaintiff presumably called Kim Ping Lam because plaintiff believed Lam would provide an example of a tenant evicted through a landlord’s improper reliance on HMC section 272076(b). Lam, however, could testify only, relying on triple and double hearsay, that the business manager at his building told first Lam’s wife, and then himself, that his lease was not being renewed because his name was not on the lease and, subsequently, that his occupancy was in violation of HMC section 27-2076(b). See Tr. 61:2-7; 62:17-21; 64:23-66:11. Yet even if this hearsay were credited, there was no evidence that the City defendants (the parties, after all, that Sierra is seeking to enjoin) ever issued a violation of section 27-2076(b) at Lam’s landlord’s request, or that any eviction proceedings were ever commenced against Lam. See Tr. 66:12-17. And perhaps most amazingly, according to Lam’s own testimony, his apartment was not even properly classified as an SRO: it is a five-room apartment with its own kitchen and bathroom for his family’s exclusive use. See Tr. 56:16-58:14. As the HPD database’s records on the building reflect that, indeed, all units therein are “Class B” dwellings, which the Court is told is roughly equivalent to an SRO or “rooming unit,” the Court can only conclude that the units are improperly classified. See Pl. Ex. 6.
19 Dr. Hart stated that of several hundreds of units in the SRO buildings he visited, he observed only six units occupied by children. See Tr. 313:3-5. Inspector Richards noted that over thirteen years of inspecting many hundreds of SRO buildings, he observed children occupying SROs “on one or two occasions.” Tr. 202:1.
20

 
 Case: 1:07-cv-06769-JSR As of: 08/01/2012 01:33 PM EDT 1 of 9

U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:07−cv−06769−JSR

CLOSED, ECF

Sierra v. City of New York et al Assigned to: Judge Jed S. Rakoff Cause: 42:1981 Housing Discrimination
Plaintiff Juana Sierra

Date Filed: 07/27/2007 Date Terminated: 10/06/2008 Jury Demand: None Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question
represented by Ami T. Sanghvi Urban Justice Center 123 William Street,16th Floor New York, NY 10038 (646)−602−5643 Fax: (212)−533−4598 Email: asanghvi@urbanjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie T. Annexstein Urban Justice Center 123 William Street,16th Floor New York, NY 10038 (646)−602−5600 X5640 Fax: (212)−533−4598 Email: lannexstein@urbanjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Molly Doherty West Side SRO Law Proj. 647 Columbus Ave. New York, NY 10025 (212)−799−9638 Fax: (212)−721−1514 Email: mdoherty@srolaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Ann Weithman Goddard Riverside West Side Sro Law Project 647 Columbus Avenue New York, NY 10025 (212)−799−9638 Fax: (212)−721−1514 Email: mweithman@srolaw.org ATTORNEY TO BE NOTICED

V. Defendant City of New York

represented by Jerald Horowitz New York City Law Department 100 Church Street New York, NY 10007 (212)−442−0589 Fax: (212)−791−9714

Case: 1:07-cv-06769-JSR As of: 08/01/2012 01:33 PM EDT 2 of 9

Email: jhorowit@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline Hui New York City Law Department 100 Church Street New York, NY 10007 (212)−788−0817 Fax: (212)−791−9714 Email: jahui@law.nyc.gov ATTORNEY TO BE NOTICED

Defendant
New York City Department of Buildings

represented by Jerald Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Patricia J. Lancaster in her capacity as Commissioner of New York City Department of Buildings

represented by Jerald Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
New York City Department of Housing Preservation and Development

represented by Jerald Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Commissioner NYC HPD Shaun Donovan in his capacity as Commissioner of New York City Department of Housing Preservation and Development

represented by Jerald Horowitz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Emad Ibrahem TERMINATED: 12/11/2007

represented by Seth Evan Denenberg Sperber Denneberg &Kahan, P.C., 48 West 37th Street, 16th Flr. New York, NY 10018 (917) 351−1335 Fax: (917) 351−1303 Email: sdenenberg@sdkpc.com ATTORNEY TO BE NOTICED

Date Filed 07/27/2007
07/27/2007

# Docket Text
1 COMPLAINT against Shaun Donovan, Emad Ibrahem, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Filing Fee $ 350.00, Receipt Number 622321)Document filed by Juana Sierra.(tro) Additional attachment(s) added on 8/1/2007 (Becerra, Maribel). (Entered: 07/30/2007)
SUMMONS ISSUED as to Shaun Donovan, Emad Ibrahem, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (tro) (Entered: 07/30/2007)

Case: 1:07-cv-06769-JSR As of: 08/01/2012 01:33 PM EDT 3 of 9

07/27/2007 07/27/2007 08/02/2007
08/09/2007
08/09/2007
08/09/2007
08/20/2007
08/20/2007
08/20/2007
08/20/2007
09/05/2007 09/05/2007 09/05/2007 09/05/2007 09/05/2007 09/12/2007 09/25/2007

Magistrate Judge James C. Francis is so designated. (tro) (Entered: 07/30/2007)
Case Designated ECF. (tro) (Entered: 07/30/2007)
2 NOTICE OF APPEARANCE by Jerald Horowitz on behalf of Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development (Horowitz, Jerald) (Entered: 08/02/2007)
3 AFFIDAVIT OF SERVICE of Complaint, Summons, Order to Show Cause for TRO and PI, and supporting documents served on Emad Ibrahem on 8/1/07. Service was made by MAIL. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 08/09/2007)
4 CERTIFICATE OF SERVICE of Complaint, Summons, Order to Show Cause for TRO and PI, and supporting documents served on NYC Department of Buildings on 7/27/07. Service was accepted by person authorized to accept service. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 08/09/2007)
5 CERTIFICATE OF SERVICE of Complaint, Summons, Order to Show Cause for TRO and PI, and supporting documents served on New York City and NYC Department of Housing Preservation and Development on 7/27/07. Service was accepted by persons authorized to accept service. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 08/09/2007)
6 AFFIRMATION of Frank Angilletta in Opposition. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Horowitz, Jerald) (Entered: 08/20/2007)
7 AFFIDAVIT of Mario Ferrigno in Opposition. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C − Part 1# 4 Exhibit C −− Part 2# 5 Exhibit D)(Horowitz, Jerald) (Entered: 08/20/2007)
8 MEMORANDUM OF LAW in Opposition to Plaintiff's Motion for a Preliminary Injunction. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Horowitz, Jerald) (Entered: 08/20/2007)
9 DECLARATION of Jerald Horowitz of Service of Papers in Opposition to Plaintiff's Motion for a Preliminary Injunction. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Horowitz, Jerald) (Entered: 08/20/2007)
10 NOTICE OF APPEARANCE by Seth Evan Denenberg on behalf of Emad Ibrahem (Denenberg, Seth) (Entered: 09/05/2007)
11 DECLARATION of Seth Denenberg in Opposition. Document filed by Emad Ibrahem. (Denenberg, Seth) (Entered: 09/05/2007)
12 DECLARATION of Seth Denenberg in Opposition. Document filed by Emad Ibrahem. (Denenberg, Seth) (Entered: 09/05/2007)
13 DECLARATION of Seth Denenberg in Opposition. Document filed by Emad Ibrahem. (Denenberg, Seth) (Entered: 09/05/2007)
14 AFFIDAVIT of Emad Ibrahem in Opposition. Document filed by Emad Ibrahem. (Denenberg, Seth) (Entered: 09/05/2007)
15 REPLY MEMORANDUM OF LAW in Support of Plaintiff's Order to Show Cause for a Preliminary Injunction. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 09/12/2007)
16 SUPPLEMENTAL MEMORANDUM OF LAW Municipal Defendants' Letter Brief in Further Opposition to Plaintiff's Motion for a Preliminary Injunction,

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09/26/2007 09/26/2007 11/06/2007 11/09/2007 11/29/2007 11/29/2007 12/04/2007 12/05/2007 12/06/2007
12/06/2007 12/07/2007
12/07/2007
12/07/2007
12/10/2007
12/11/2007

dated September 25, 2007. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Horowitz, Jerald) (Entered: 09/25/2007)
17 FIRST OPPOSITION BRIEF to injunction. Document filed by Emad Ibrahem.(Denenberg, Seth) (Entered: 09/26/2007)
18 MEMORANDUM OF LAW in Support re: 15 Reply Memorandum of Law in Support Plaintiff's Memorandum of Law Regarding the Anti−Injunction Act. Document filed by Juana Sierra. (Annexstein, Leslie) (Entered: 09/26/2007)
19 TRANSCRIPT of proceedings held on 9/17/07 before Judge Jed S. Rakoff. (tro) (Entered: 11/06/2007)
20 NOTICE OF APPEARANCE by Martha Ann Weithman on behalf of Juana Sierra (Weithman, Martha) (Entered: 11/09/2007)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 11/29/2007. (jmi) (Entered: 12/07/2007)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 11/29/2007. (dle) (Entered: 01/07/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 12/4/2007. (dle) (Entered: 12/19/2007)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 12/5/2007. (dle) (Entered: 12/27/2007)
21 ORDER the Court therefore will shortly turn to the merits of the plaintiff's request for preliminary injunctive relief against the City defendants, which was previously briefed and argued. However, in light of a putative settlement between plaintiff and Ibraham, the City defendants have indicated that they may move this Court to stay the proceedings and/or to dismiss the remaining claims for lack of standing. All of this will be further discussed at the in−court conference already scheduled for 5:00pm today. SO ORDERED. (Signed by Judge Jed S. Rakoff on 12/6/2007) (jmi) (Entered: 12/07/2007)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Interim Pretrial Conference held on 12/6/07. (kco) (Entered: 12/12/2007)
22 MOTION to Dismiss for Lack of Jurisdiction. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. Responses due by 12/21/2007 Return Date set for 1/14/2008 at 02:00 PM.(Horowitz, Jerald) (Entered: 12/07/2007)
23 DECLARATION of Jerald Horowitz in Support re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Horowitz, Jerald) (Entered: 12/07/2007)
24 MEMORANDUM OF LAW in Support re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Horowitz, Jerald) (Entered: 12/07/2007)
25 WITHDRAWAL OF CLAIM. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Horowitz, Jerald) (Entered: 12/10/2007)
26 STIPULATION FOR DISMISSAL OF DEFENDANT EMAD IBRAHEM, without costs and with prejudice. With the concurrence of the other defendants (see attached letter), the stipulation is approved. (Signed by Judge Jed S. Rakoff on 12/10/07) (cd) (Entered: 12/11/2007)

Case: 1:07-cv-06769-JSR As of: 08/01/2012 01:33 PM EDT 5 of 9

12/13/2007 12/14/2007 12/21/2007 12/21/2007 01/03/2008
01/03/2008
01/03/2008
01/03/2008 01/14/2008
01/28/2008 01/28/2008 01/28/2008 01/28/2008 01/28/2008 02/11/2008

27 ORDER that the City's application to depose the plaintiff is hereby denied. (Signed by Judge Jed S. Rakoff on 12/12/07) (cd) (Entered: 12/13/2007)
28 TRANSCRIPT of proceedings held on 12/6/07 @ 5:13pm before Judge Judge Jed S. Rakoff. (pr) (Entered: 12/14/2007)
29 DECLARATION of Juana Sierra in Opposition re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Juana Sierra. (Attachments: # 1 Affidavit)(Sanghvi, Ami) (Entered: 12/21/2007)
30 FIRST MEMORANDUM OF LAW in Opposition re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 12/21/2007)
31 MEMORANDUM: For reasons further set forth in said Order, the City defendants have now moved to dismiss all remaining claims (on the grounds that plaintiff has vacated the SRO unit where her presence with her child gave rise to the violation of HMC ss 27−2076 that underlay this entire lawsuit), and that motion is presently being briefed, but is not yet presented for adjudication. (Signed by Judge Jed S. Rakoff on 1/2/08) (db) (Entered: 01/03/2008)
32 REPLY AFFIDAVIT of Moon Wha Lee in Support re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Horowitz, Jerald) (Entered: 01/03/2008)
33 REPLY MEMORANDUM OF LAW in Support re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Horowitz, Jerald) (Entered: 01/03/2008)
34 CERTIFICATE OF SERVICE of Reply Papers served on plaintiff on January 3, 2008. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Horowitz, Jerald) (Entered: 01/03/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 1/14/2008 re: 22 MOTION to Dismiss for Lack of Jurisdiction filed by New York City Department of Housing Preservation and Development, Shaun Donovan, Patricia J. Lancaster, New York City Department of Buildings, City of New York. The Court reserved decision on the motion until after further submission by the parties. (jar) (Entered: 01/23/2008)
35 REPLY AFFIDAVIT of Rebecca Widom in Opposition re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Juana Sierra. (Attachments: # 1 Exhibit, # 2 Exhibit)(Sanghvi, Ami) (Entered: 01/28/2008)
36 REPLY AFFIDAVIT of Krista Hanson in Opposition re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Juana Sierra. (Attachments: # 1 Exhibit)(Sanghvi, Ami) (Entered: 01/28/2008)
37 REPLY AFFIDAVIT of Stephan Russo in Opposition re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 01/28/2008)
38 REPLY AFFIRMATION of Jim Provost in Opposition re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 01/28/2008)
39 REPLY AFFIRMATION of Christopher Schwartz in Opposition re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 01/28/2008)
40 REPLY AFFIDAVIT of Moon Wha Lee in Support re: 22 MOTION to Dismiss for Lack of Jurisdiction.. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. (Attachments: # 1 Exhibit

Case: 1:07-cv-06769-JSR As of: 08/01/2012 01:33 PM EDT 6 of 9

02/14/2008 03/03/2008 03/03/2008 03/04/2008 03/06/2008
03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/06/2008 03/07/2008
03/07/2008 03/14/2008
04/07/2008

A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Horowitz, Jerald) (Entered: 02/11/2008)
41 TRANSCRIPT of proceedings held on 1/14/08 before Judge Jed S. Rakoff. (jbe) (Entered: 02/14/2008)
42 MEMORANDUM AND ORDER: For the foregoing reasons, the City Defendants' motion to dismiss for lack of standing is denied. Counsel are directed to convene a conference call with the Court by no later than 5 p.m. on March 4, 2008. (Signed by Judge Jed S. Rakoff on 3/3/2008) (jpo) (Entered: 03/03/2008)
Set Deadlines/Hearings: Telephone Conference set for 3/4/2008 at 05:00 PM before Judge Jed S. Rakoff. (jpo) (Entered: 03/03/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 3/4/2008. (jw) (Entered: 04/24/2008)
43 ORDER: The Court hereby sets the following schedule for remaining proceedings in this case: The parties shall file notices of their respective motions for summary judgment by Friday, March 7, 2008, and shall file responses to those motions by Friday, March 14, 2008. These notices and responses may adopt any and all of the papers previously filed in this case and need not include statements under Local Civil Rule 56.1. The Court will hold oral argument on the previously−briefed preliminary injunction motion, as well as the aforementioned motions for summary judgment, on Wednesday, March 26, at 2:00 p.m. The Court will hold a final pretrial conference on June 9, 2008 at 3:00 p.m., and, at that time, set a date to commence trial. So Ordered (Signed by Judge Jed S. Rakoff on 3/5/08) (js) (Entered: 03/06/2008)
44 MEMO ENDORSEMENT ON ORDER TO SHOW CAUSE FOR TEMPORARY RESTRAINING AND PRELIMINARY INJUNCTION. ENDORSEMENT: Postponed in July 2007 because of intervening developments. (Signed by Judge Jed S. Rakoff on 3/6/08) (rw) Modified on 3/7/2008 (rw). (Entered: 03/07/2008)
46 MEMORANDUM OF LAW in Support re: 44 Memo Endorsement. Document filed by Juana Sierra. (rw) (Entered: 03/07/2008)
47 DECLARATION of Martha Weithman in Support re: 44 Memo Endorsement. Document filed by Juana Sierra. (rw) (Entered: 03/07/2008)
48 DECLARATION of Ami T. Sanghvi in Support re: 44 Memo Endorsement. Document filed by Juana Sierra. (rw) (Entered: 03/07/2008)
MEMORANDUM TO THE DOCKET CLERK: A telephone conference was held in the above captioned case. (jmi) (Entered: 03/14/2008)
45 CROSS MOTION for Summary Judgment in further response to Order to Show Cause for Temporary Restraining Order and a Preliminary Injunction. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development. Responses due by 3/14/2008 Return Date set for 3/26/2008 at 02:00 PM.(Horowitz, Jerald) (Entered: 03/07/2008)
49 MOTION for Summary Judgment by adoption of Plaintiff's Order to Show Cause and supporting documents for Preliminary Injunction. Document filed by Juana Sierra. Responses due by 3/14/2008 Return Date set for 3/26/2008 at 02:00 PM.(Sanghvi, Ami) (Entered: 03/07/2008)
50 RESPONSE in Support re: 49 MOTION for Summary Judgment by adoption of Plaintiff's Order to Show Cause and supporting documents for Preliminary Injunction. Response in Opposition re: 45 Cross Motion for Summary Judgment by Defendants. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 03/14/2008)
51 SECOND MEMORANDUM OF LAW in Support re: 49 MOTION for Summary Judgment by adoption of Plaintiff's Order to Show Cause and supporting documents for Preliminary Injunction. Letter Brief regarding FHA Legislative History and HUD Guidelines. Document filed by Juana Sierra. (Sanghvi, Ami)

Case: 1:07-cv-06769-JSR As of: 08/01/2012 01:33 PM EDT 7 of 9

04/15/2008 04/18/2008
04/25/2008 05/13/2008
05/23/2008 05/23/2008 07/08/2008 07/22/2008

(Entered: 04/07/2008)
52 TRANSCRIPT of proceedings held on 3/26/08 before Judge Jed S. Rakoff. (ama) (Entered: 04/15/2008)
53 BRIEF re: 8 Memorandum of Law in Opposition, 51 Memorandum of Law in Support of Motion, 45 CROSS MOTION for Summary Judgment in further response to Order to Show Cause for Temporary Restraining Order and a Preliminary Injunction. Letter Brief to Hon. Jed. S. Rakoff, dated April 18, 2008, in further support of Defendants' Motion for Summary Judgment. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development.(Horowitz, Jerald) (Entered: 04/18/2008)
54 REPLY MEMORANDUM OF LAW in Support re: 49 MOTION for Summary Judgment by adoption of Plaintiff's Order to Show Cause and supporting documents for Preliminary Injunction. Letter Brief in response to Defendants' Brief. Document filed by Juana Sierra. (Sanghvi, Ami) (Entered: 04/25/2008)
55 MEMORANDUM AND ORDER; To resolve the disputed issues of fact, the Court will permit each party to conduct limited discovery, following which the Court will hold an evidentiary hearing on plaintiffs request for apartment injunction (obviating, as no longer necessary, any hearing on a preliminary injunction). At this hearing, the Court will find it helpful to have the parties present evidence pertaining to, among matters; all violations of HMC section 27−2076(b) issued over the past ten years; who reported those violations to the city, if known; whether those violations were preceded or followed by eviction proceedings; the living conditions of families evicted from or precluded from living in SROs; and the enforcement of other housing occupancy and safety standards. To set a schedule for discovery and a date for the hearing, counsel are directed to jointly call the court by no later then May 16, 2008, at 12 noon. Finally, the court is aware that plaintiff's complaint also requested "damages and would fully compensate plaintiff Sierra for damages caused by the defendants' unlawful discriminatory practices." Complaint for preliminary and permanent injunction; Declaratory Judgment; and damages for violation of the fair housing act and the New York State Human Rights Law at 11. Should plaintiff prevail on her request for a permanent injunction, the court will at that time take up the issue of whether a jury trial is necessary to determine what damages, if any, are owed to Sierra. (Signed by Judge Jed S. Rakoff on 5/13/08) (mme) (Entered: 05/14/2008)
56 ANSWER to Complaint. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development.(Horowitz, Jerald) (Entered: 05/23/2008)
57 NOTICE of Substitution of Attorney. Old Attorney: Ami T. Sanghvi, New Attorney: Tara S. Crean, Address: Urban Justice Center, 123 William Street, 16th Floor, New York, NY, USA 10038, 6466025649. Document filed by Juana Sierra. (Annexstein, Leslie) (Entered: 05/23/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 7/8/2008. (tro) (Entered: 08/07/2008)
58 ORDER; That in anticipation of the injunction hearing scheduled to begin 9/3/08, plaintiff has propounded numerous discovery requests, to many of which defendants have objected. To restore some balance, it seems best to start afresh. Accordingly, the Court hereby quashes all of plaintiffs outstanding discovery requests to which defendants have objected and directs plaintiff to serve on defendants counsel, by no later than noon on Thursday, 7/24, a new, far more tailored set of discovery requests. Defendants, in turn, must serve on plaintiffs counsel, by no later than 5pm on Monday, 7/28, move nuanced responses to the plaintiffs new discovery requests carefully stating any grounds for objections and, where no objections have been interposed, indicating a prompt date by which responses will be provided. Copies of the plaintiffs new requests and the defendants new responses should also be faxed to the Court. The Court will then hold an in−court conference on Tuesday, July 29, at 5 p.m., to address any remaining disputes.( Status Conference set for 7/29/2008 at 05:00 PM before Judge

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07/29/2008 08/05/2008 08/27/2008 08/27/2008
09/02/2008 09/12/2008
09/12/2008 09/17/2008
09/17/2008 09/30/2008 09/30/2008 10/01/2008 10/01/2008 10/02/2008
10/02/2008 10/06/2008

Jed S. Rakoff.) (Signed by Judge Jed S. Rakoff on 7/22/08) (pl) (Entered: 07/22/2008)
Minute Entry for proceedings held before Judge Jed S. Rakoff: Interim Pretrial Conference held on 7/29/2008 on discovery disputes, was held in this case. (dle) (Entered: 08/04/2008)
59 TRANSCRIPT of proceedings held on 7/29/08 before Judge Jed S. Rakoff. (ama) (Entered: 08/05/2008)
60 FILING ERROR − DEFICIENT DOCKET ENTRY − NOTICE OF APPEARANCE by Jacqueline Hui on behalf of City of New York (Hui, Jacqueline) Modified on 8/28/2008 (db). (Entered: 08/27/2008)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Jacqueline Hui to RE−FILE Document 60 Notice of Appearance. ERROR(S): Name of Attorney Filing Appearance (Jacqueline Hui) Does Not Match Attorney Signing Appearance (Jerald Horowitz). (db) (Entered: 08/28/2008)
61 NOTICE OF APPEARANCE by Jacqueline Hui on behalf of City of New York (Hui, Jacqueline) (Entered: 09/02/2008)
62 BRIEF City Defendants' Post−Trial Memorandum of Law. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development.(Horowitz, Jerald) (Entered: 09/12/2008)
63 POST TRIAL MEMORANDUM. Document filed by Juana Sierra.(Annexstein, Leslie) (Entered: 09/12/2008)
64 BRIEF City Defendants' Reply Post−Trial Memorandum of Law, dated September 17, 2008. Document filed by Shaun Donovan, City of New York, New York City Department of Buildings, Patricia J. Lancaster, New York City Department of Housing Preservation and Development.(Horowitz, Jerald) (Entered: 09/17/2008)
65 POST TRIAL MEMORANDUM. Document filed by Juana Sierra.(Annexstein, Leslie) (Entered: 09/17/2008)
66 TRANSCRIPT of proceedings held on September 3, 2008 2:15 p.m. before Judge Jed S. Rakoff. (mro) (Entered: 09/30/2008)
67 TRANSCRIPT of proceedings held on September 4, 2008 11:30 a.m. before Judge Jed S. Rakoff. (mro) (Entered: 09/30/2008)
68 TRANSCRIPT of proceedings held on 9/3/2008 before Judge Jed S. Rakoff. (jn) (Entered: 10/01/2008)
69 TRANSCRIPT of proceedings held on 9/05/08 before Judge Jed S. Rakoff. (ama) (Entered: 10/01/2008)
70 OPINION AND ORDER #96606: The Court concludes that the City has carried its burden of demonstrating that HMC section 27−7076(b) furthers, in theory and in practice, legitimate government interests in the health, safety and welfare of children that cannot be achieved through other alternatives, and that HMC section 27−2076(b) does not violate the Fair Housing Act. The Court therefore denies Sierra's requests for injunctive and declaratory relief. Moreover, the above conclusion also moots, as a matter of law, Sierra's claim for damages against the City defendants, which presupposed their enforcement of an invalid regulation. Accordingly, the Clerk of the Court is directed to enter judgment dismissing the Complaint with prejudice. (Signed by Judge Jed S. Rakoff on 10/1/08) (tro) Modified on 10/3/2008 (rw). (Entered: 10/02/2008)
Transmission to Judgments and Orders Clerk. Transmitted re: 70 Memorandum &Opinion, to the Judgments and Orders Clerk. (tro) (Entered: 10/02/2008)
71 CLERK'S JUDGMENT That for the reasons stated in the Court's Opinion and Order dated October 1, 2008, the complaint is dismissed with prejudice. (Signed by J. Michael McMahon, clerk on 10/6/08) (Attachments: # 1 notice of right to

Case: 1:07-cv-06769-JSR As of: 08/01/2012 01:33 PM EDT 9 of 9 appeal)(ml) (Entered: 10/06/2008)