Do landlords have a duty to protect tenants from harassment perpetrated by other building occupants?
The answer, according to a recent Appellate Division, First Department, decision is: probably not.
In Edstrom v. St. Nicks Alliance Corp., 194 A.D.3d 518 (1st Dep’t 2021), some tenants sued their landlord and the building’s managing agent, claiming violations of the warranty of habitability and federal and state housing discrimination laws. The tenants were participants of a “scatter-site” program that provides residential units and supportive services to clients of the HIV/AIDS Services Administration, a division of the New York City Human Resources Administration (HRA), and the landlord operated the building pursuant to a contract with the New York City HRA.
The tenants alleged, among other things, that because of their race and perceived sexuality they were regularly discriminated against by other occupants, and that the landlord, and/or its managing agent, not only failed to respond to these complaints, but also protected the alleged harassers from repercussions. It was also asserted that the apartments were uninhabitable as they were infested with vermin.
The Supreme Court granted the defendants’ summary judgment motion, dismissing the complaint, and denied the tenants’ cross-motion to amend. On appeal, the Appellate Division affirmed dismissal of the plaintiffs’ discrimination claims, albeit on different grounds than those offered by the trial court. Citing a recent decision from the United States Court of Appeals for the Second Circuit (Francis v. Kings Park Manor, Inc., 992 F3d 67 [2d Cir. 2021]), the AD1 noted that in order to sustain a claim under the federal Fair Housing Act (“FHA”) based on a landlord’s “deliberate indifference” towards one tenant’s harassment of another, a claimant must plausibly allege that the landlord possessed substantial control over the context in which the harassment occurs and over the harasser. The First Department went on to note that the Second Circuit, in Francis, held that the typical powers of a landlord over a tenant – such as the ability to evict – did not establish the requisite substantial control necessary to support a deliberate indifference claim under the law. As the plaintiffs in this case alleged nothing more than a typical arms-length landlord-tenant relationship between the tenants who allegedly harassed them and the owner, the AD1 concluded that a valid FHA claim had not been asserted. Further, as claims under Section 296(5) New York’s Executive Law (which also governs housing discrimination) are evaluated under the same standard as FHA claims, those causes of action were also found to have been properly dismissed.
Interestingly, the appellate court reversed the dismissal of the Warranty of Habitability claim because the tenants routinely complained to defendants about a rodent infestation, the condition was observed by independent witnesses, and the New York City Department of Health & Mental Hygiene had to eventually intervene. Accordingly, the matter was remanded to the court below to determine an appropriate abatement to compensate the inconvenienced tenants.
“Looks like landlords are getting a free pass here,” noted Jonathan H. Newman, senior partner at Newman Ferrara LLP. “It would appear, in some respects, that landlords are now not required to intervene should tenant-on-tenant harassment occur. And it’s not clear how that inaction is consistent with public-policy interests or related considerations,” he added.
If you are a victim of harassment, or have a question about your rights, please do not hesitate to reach out to one of out attorneys by calling 212-619-5400.