CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS ------X In the Matter of the Complaint of X X LUIS RIVES, X X Complainant, X X -against- X Complaint No. X H-92-0115 164 23RD STREET JACKSON HEIGHTS, INC. X and MARGUERITE PARK, X RECOMMENDED X DECISION & ORDER Respondents. X ------X
BEFORE: Rosemarie Maldonado Chief Administrative Law Judge Hearings Division APPEARANCES: For the Complainant
Luce, Forward, Hamilton & Scripps 153 East 53rd Street New York, New York 10022
By: Anne Turilli, Esq. Lourdes M. Slater, Esq.
For the Commission
Robert Hammel, Esq. Deputy Commissioner for Law Enforcement NYC Commission on Human Rights 40 Rector Street New York, New York 10006
By: Nancy Alisberg, Esq.
For the Respondent
Goldstein & Greenlaw 80-02 Kew Gardens Road Kew Gardens, New York 11415
By: Abbey F. Goldstein, Esq. CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS ------X In the Matter of the Complaint of X X LUIS RIVES, X Complainant, X X -against- X Complaint No. X H-92-0115 164 23RD STREET JACKSON HEIGHTS, INC. X X and MARGUERITE PARK, X X Respondents. X ------X
RECOMMENDED DECISION AND ORDER
I. Complaint and Hearing Summary...... ?
II. Summary of Parties' Contentions...... ?
III. Findings of Fact...... ?
IV. Conclusions of Law...... ?
V. Damages and Affirmative Relief...... ?
VI. Recommended Order...... ?
I. COMPLAINT AND HEARING SUMMARY
Luis Rives filed a verified complaint with the New York City Commission on Human Rights on September 3, 1991, alleging that Respondents 164 23rd Street, Jackson Heights, Inc. and Marguerite Park violated Sections 8-107(5)(a)(1) and 8-107(5)(a)(3) of the New York City Administrative Code ("Code") by refusing to approve his application to purchase a cooperative apartment because of his national origin and marital status. Respondents filed a verified answer on November 1, 1991, denying the allegations and setting forth numerous affirmative defenses. Complainant filed an amended complaint on September 2, 1992, alleging that the Respondents violated Code Section 8-107(5)(a)(3). Respondents filed an amended answer on October 30, 1992, denying the allegations in the amended complaint. The complaint was referred to the Hearings Division on August 4, 1994. A hearing was held by Chief Administrative Law Judge Rosemarie Maldonado on April 7, 10 and 14, 1995. After evaluating the testimony and documentary evidence offered at the hearing, and assessing the credibility of witnesses, this tribunal finds for the Complainant on the national origin claim. The marital status claim is dismissed.
II. SUMMARY OF THE PARTIES' CONTENTIONS A. Complainant Complainant alleges that he was financially qualified to purchase apartment 42 in Respondent co-op as evidenced by the application he submitted to Respondents. He contends that the application was rejected because he is a single, Latino male and that Respondent Marguerite Park made statements that evinced her discriminatory intent. B. Respondents Respondents allege that Complainant was rejected for an array of non-discriminatory reasons, including their belief that he was not financially qualified to make the purchase or to meet future co-op expenses. They allege that Complainant's national origin and marital status were not a factor in their decision.
III. FINDINGS OF FACT 1. The Queensboro Buildings are a group of apartment buildings in Jackson Heights, Queens. By all accounts, the Queensboro Buildings are unique and desirable residences (T. 160161,413).1 They were granted landmark status sometime after 1991 (T. 353). 2. The 34-37 80th Street cooperative building ("co-op") at issue in this case is part of the Queensboro Buildings (T. 81, 155). It is owned by Respondent 164 23rd Street Jackson Heights, Inc. The co-op Board is comprised of ten shareholders -- one representative from each unit (T. 292-293, 411). Respondent Marguerite Park has been the Board president since approximately 1987 (T. 361, 410-411). 3. Prior to 1991, Respondent co-op had hired Queensboro Corporation as a managing agent to process applications,
1 Numbers in parentheses preceded by "T." refer to pages in the transcript; numbers and letters preceded by Cx. and Rx. refer investigate applicants and make recommendations for purchases (T. 430-431). After the Queensboro Corporation went out of business in or around 1991, the co-op Board chose to review purchase applications without professional assistance (T. 430, 535-536). In 1991, the co-op Board required that purchasers make downpayments of no less than 25% of the purchase price and that co-op related expenses not exceed 25% of annual income (T. 328, 433, 455; Cx. 7). 4. Louis Lopardi is a licensed real estate broker (T. 1719). Between 1987 and 1994, he closed approximately seventeen sales for the Queensboro Buildings (T. 18-19, 42-43). Prior to August of 1991, Lopardi had submitted two applications to the Board of the Respondent co-op. He submitted the application of Lois Shagrue, which was approved, and that of the Johansens, which was rejected (T. 20-21, 23-24). 5. Although his business dealings with the Respondent co-op were generally cordial, he did have a disturbing encounter with Respondent Park during the pendency of the Johansen application (T. 39-40). Lopardi encountered an apparently agitated Park in front of the co-op. She said to him: Don't think you are going to put just anyone in this building . . . [D]on't think you are going to pull here what you pulled at 82nd Street last month . . . If anyone sues to get in here, I'll hold you personally responsible (T. 26-28; Cx. 1).
Lopardi was confused by Park's comments but later learned that two independent brokers had helped to initiate a discrimination
respectively to the exhibits received in evidence from suit against another cooperative apartment building in the area (T. 37 - 38). Despite this encounter, Lopardi continued to show apartment 42 at the Respondent co-op to prospective purchases (T. 39-40). 6. Complainant Luis Rives is an unmarried male who was born in Havana, Cuba, immigrated to the United States in 1966 and earned an architecture degree in 1979 (T.152, 153). Between 1988 and 1990 he was self-employed and received most of his income from three architectural firms (T. 152, 153; Cx.7). In 1990 Complainant earned approximately $56,400 and had approximately $108,000 in liquid savings (T. 183, 282; Cx.7). 7. In November 1990, Complainant saw a classified advertisement in the New York Times announcing the availability of apartments for sale in the Queensboro Buildings (T. 155). Complainant had lived in Jackson Heights since 1967 and had always admired the Queensboro Buildings' expansive architecture and design (T. 159-161). 8. Complainant called Louis Lopardi, the licensed real estate broker who had placed the advertisement, and arranged a viewing of apartment 42 -- a three bedroom unit at the 34-37 80th Street cooperative building (T. 157, 158; Cx. 1). Complainant "loved" the apartment and was pleasantly surprised to find that its list price was under $150,000 (T. 157, 158, 161). 9. After viewing apartment 42 two or three times, Complainant and seller Elizabeth Huron reached an agreement for its purchase (T. 161, Cx.1). They executed a contract of sale
Complainant and Respondents. for $145,400, and agreed that Complainant would make a $75,400 downpayment and finance $70,000 through a mortgage (T. 161, 183; Cx.7). Maintenance on the unit was $317 per month (T. 488, 547; Cx.1). 10. As required, Complainant submitted an application to the co-op Board for its approval (T. 45, 162). Lopardi took primary responsibility for the application's packaging and submission (T. 45, 166). Although the Board did not have a standard application form to complete, Lopardi was familiar with the standard requirements after having completed seventeen closings for the Queensboro Buildings (T. 18-19, 42-43). Complainant's application package included a letter of introduction from the broker, six letters from three people who served as both business and personal references, a bank reference letter, bank and mutual fund account statements and 1040 tax forms for 1988 through 1990 (T. 206-207; Cx. 7). 11. Lopardi delivered Complainant's application to Respondent Park in February 1991 (T. 45). Respondent Park looked at the application and said, "If this Luis gets into my building then I don't care who gets in, black, yellow, whatever" (T. 45-4-7; Cx. 2). She then complained that the building did not deserve all her work and sacrifice (T. 47). Although Respondent Park continued to speak, Lopardi was too stunned by her outburst to listen (T. 4547, 51-59). He did not immediately tell Complainant about Park's comments because he did not want to discourage him (T. 60-61). 12. The Rives application was the first to be processed by the co-op Board without the assistance of a management agency (T. 430). Respondent Park had primary responsibility for Complainant's application. She received the package from Lopardi and requested additional information from him on two occasions (T. 45, 427-430). She contacted an accountant to review the tax forms submitted by Complainant and solicited the opinion of an architect on the relative health of Complainant's profession (T. 297, 435-436, 438). 13. About one month after receiving Complainant's application, Respondent Park called Lopardi to request additional tax information (T. 62-63, 85-86, 146, 168). Complainant complied with this request and submitted his schedule C tax forms through Lopardi (T. 90, 212). Approximately three weeks later, Respondent Park told Lopardi that the backs of certain tax forms were missing (T. 64). Complainant admits that he had not submitted the back page of certain tax forms because they were inapplicable to him and thus they were blank. Complainant complied with the request and Lopardi forwarded the entire tax package to Respondent Park a second time (T. 64, 146, 167-168). 14. During the pendency of the application, Lopardi told Complainant about Respondent Park's threat to hold him "personally responsible" if one of his clients sued to get into the building (T. 171-173, 180-181). Complainant thought that Park's comment was "rude" but did not then believe it would impact his application (T. 181). 15. Complainant's application was put to a vote at the April 2, 1991, co-op Board meeting and was rejected by a margin of 8 to O (T. 312). The official minutes of that meeting note Complainant's rejection, but do not reflect any rationale for the negative vote or deliberation during the meeting (Cx. 11). 16. Lopardi received a letter from the co-op Board in early April 1991, stating that Complainant's application had been rejected (T. 65). Lopardi immediately informed Complainant, who was hurt and surprised by the news (T. 199-202). 17. Within two days Complainant made an appointment with Lopardi to view another apartment. During this meeting Lopardi informed Complainant of Respondent Park's comment that, "If this Luis gets into my building then I don't care who gets in, black, yellow, whatever" (T. 45-47). Complainant informed Lopardi of his intent to file a lawsuit. Lopardi told Complainant that he certainly had grounds (T. 70-72). Within a few days Complainant contacted the New York City Commission on Human Rights and filed a complaint (T. 202). 18. Later in April 1991, Lopardi returned to Respondent Park's office to retrieve materials (T. 65-66). He asked her what the co-op was looking for in light of their rejection of the Johansen and Rives applications (T. 66-67). She replied that they wanted someone who could handle the building's financial obligations and discussed their planned repairs (T.66-67). Respondent Park also stated that she would have preferred that there be another income in Complainant's case (T. 68, 426). 19. Three months prior to the hearing, the co-op Board met to discuss their reasons for rejecting Complainant's application and developed a "list" of reasons (T. 498-501). 20. There was extensive testimony at the hearing from Board members concerning their alleged reasons for voting to reject the application. Respondent Park, as well as Board members Maria Bonilla, Edith Casu, Paula Searcy and Pauline Weber, all expressed concern about Complainant's status as an independent contractor and the impact that it might have on his future income (298, 373375, 388-389, 395-396, 435-436, 530-532). Board members believed that without having what they considered a "secure job" Complainant was a financial risk they could not take -- particularly since the co-op was contemplating expensive repairs (T. 303-304, 432-434). 21. Respondent Park spoke with an architect during the pendency of the application (T. 298, 344, 435-436). He told her that the architecture industry was facing difficult times (T. 435-436). 22. Various co-op Board members also believed that Complainant had submitted an incomplete tax package and were troubled by the need to make two separate requests for additional information (T. 295-296, 382, 421-422, 427-428). They also noted that Complainant failed to substantiate his income by submitting 1099 tax forms which would have listed the income he earned as an independent contractor (T. 428-429 451). Furthermore, Respondent
Park asked an accountant to review Complainant's tax forms (T. 296297, 438). He pointed out that Complainant had not paid unincorporated business taxes for 1988, 1989 or 1990 (T. 365-367). The total amount owed was approximately $6,000 (Cx. 10). This was undisputed by Complainant who promptly paid the past due taxes after notification from the Department of Finance (T. 197-198, 439, 491-492; Cx. 10). 22. Board members testified that they also looked disfavorably on the application because Complainant would be taking out a mortgage to pay for the apartment (T. 310). Two other shareholders in the co-op had taken out mortgages to pay for their apartments and they were the only residents who had been late with maintenance payments in the past (T. 309-310). They feared Complainant would have trouble paying as well (T. 361, 530-532). In addition, apartment 42 needed repairs (T. 319-321, 375-377). This contributed to their belief that Complainant would not be able to handle the aggregate financial expenditures associated with the apartment (T. 319-321). 23. Accountant Falkenstein also noted that Complainant had taken a home office deduction in past years (T. 439). Based on this information, Board members expressed concern that Complainant would work out of his apartment, which was prohibited under the coop occupancy agreement. Complainant did not intend to receive clients in the apartment (T. 197-198, 491-492). 24. Complainant was hurt and surprised when he learned that his application had been rejected (T. 199-202). He subsequently bought a house in Harriman, New York (T. 152, 205).
IV. CONCLUSIONS OF LAW A. The National Origin Claim
The complaint alleges that Respondents refused to approve Complainant's application to purchase the subject co-op shares because of his national origin in violation of Code Section 8- 107(5)(A)(1)2. This tribunal finds that Complainant satisfied his evidentiary burden by proving that: 1) Respondents are subject to this section of the Code; 2) Respondents refused to approve his application to purchase the subject apartment; 3) The refusal was based on his national origin.3 The first and second elements were not contested at the hearing. Respondents do not dispute that the cooperative apartment building at issue, as well as its owner and board president, are subject to the Code's prohibition against
2 Code Section 8-107(5)(a)(1) states in pertinent part:
(a) It shall be an unlawful discriminatory practice for the owner, lessee, sublessee, assignee, or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to be-constructed, or an interest therein, or any agency or employee thereof:
(1) To refuse to sell, rent, lease, approve the sale, rental or lease or otherwise deny to or withhold from any person or group of persons such a housing accommodation or an interest therein because of the actual or perceived ... national origin, ... marital status of such person or persons ...
3 See Vizcaino v. Herman, et al., NYCCHR Complaint No. FH49021390-DH, Rec. Dec. and Order, aff’d, Dec. and Order (Sept. 28, 1994); Friedman v. Schwartz, NYCCHR Complaint No. FH-2901022488-DH, Rec. Dec. and Order (July 24, 1990), aff’d, Dec. and Order (June 17, 1991); Leissner v. Best Realtv, NYCCHR Complaint No. FH00219091487-DH, Rec. Dec. and Order (Oct. 5, 1990), aff'd, Dec. and Order (June 25, 1991); Shoyinka v. 120 25th Street, et al., NYCCHR Complaint No. FH-139061687-DH, Rec. discrimination. Kirkpatrick v. 60 Sutton Corp,. et al., NYCCHR Complaint No. FH164032991, Rec. Dec. and Order (Oct. 30, 1992), modified on other grounds, Dec. and Order (Dec. 21, 1992). It is also undisputed that Respondents rejected Complainant's application to purchase shares in the cooperative. The factual dispute here focuses on Respondents' motives for rejecting Complainant's application. A preponderance of the evidence supports the conclusion that the application process, which ultimately led to Complainant's rejection, was infected with discriminatory bias. Thus, Complainant has satisfied the third and final element of his claim. The only objective factor propounded by Respondents for the
rejection is Complainant's alleged financial unsuitability.4 Contrary to Respondents' assertions, however, the objective evidence presented at the hearing established that Complainant was financially qualified to purchase the apartment for the agreed upon price of $145,000. This finding is based not only on general banking standards, but also upon the co-op Board's own objective financial standards. In 1991, the co-op Board required a downpayment of at least 25% of the purchase price. Complainant's savings of over
Dec. and Order (Sept. 22, 1989), modified on other grounds Dec. and Order (Dec. 21, 1989). 4 In Murphy v. 253 Garth Tenants Corp., 579 F. Supp. 1150 (S.D.N.Y. 1983), the District Court listed factors such as the buyer's financial suitability, business character, legality of use and nature of occupancy as objective factors. Other factors such as needs, likes, personal taste, sensibility or convenience are generally considered subjective and thus assigned little weight by most courts.
$100,000 in liquid assets allowed him to meet this required percentage with ease. In fact, Complainant exceeded the requirements by agreeing to put down $75,000 -- more than 50% of the purchase price. Likewise, Complainant's annual income allowed him to meet the general banking standards for mortgage qualification which caps housing costs at 28% of annual income. Complainant's annual income was approximately $56,400 in 1990. The total anticipated cost for the co-op was $960 per month -- $653 in mortgage payments and $317 in maintenance charges. As was noted in his application to the coop Board, Complainant's total yearly payments would not have exceeded 20% of his income at the time of his application -- well below the banking standard of 28%. Moreover, he had demonstrated his ability to make these payments by submitting tax forms for three years documenting a steady increase in income from $46,000 in 1988, to $53,000 in 1989, and to $56,400 in 1991. In short, he established the stability and consistency of his professional earnings. Despite Complainant's demonstrated financial eligibility, he was rejected by the co-op Board allegedly based on his financial documentation and without the benefit of an interview. This tribunal finds that the rejection violated the Code and that Respondent Park was the font of the discriminatory bias. This finding is based on direct evidence of Respondent Park's intent to block Complainant's purchase of the co-op shares because of his national origin. As described in more detail in the Findings of Fact above, real estate broker Lopardi credibly testified that Respondent Park made hostile statements on two separate occasions that evinced her prohibited motivation.5 During the first incident Respondent Park excitedly made reference to a discrimination lawsuit in another building, warned Lopardi that he could not "put just anyone in this building," and threatened to hold him "personally responsible" if she was sued (T. 25-28). During the second incident Respondent Park accepted Complainant's application but complained that the building was unworthy of the work she had put into it and told Lopardi that if, "this Luis gets into my building then I don't care who gets in, black, yellow, whatever" (T. 45-47). These statements expressed Respondent Park's misguided sense of entitlement to control the racial and ethnic composition of her co-op's residents.6
5 Respondents argue that Lopardi's testimony was not credible. This tribunal disagrees. Although Lopardi was a bit nervous on the stand and was inconsistent on some minor points, this tribunal found him to be forthright and worthy of belief. His sole relationship with Complainant was both brief and professional. Also, he had no interest in the outcome of this litigation. Furthermore, Lopardi had no motivation to fabricate the key statements he said were made by Respondent Park. He had already been warned that his assisting in a discrimination complaint could cost him his business by compromising his ability to place applicants at the desirable Queensboro Buildings. In fact, from the time the complaint was filed until he left the profession in 1994, Lopardi did not broker another sale in the Queensboro Buildings. Thus, while there may have been other factors involved, it seems apparent that Lopardi's willingness to come forward in this matter worked to his detriment as a broker.
6 The respective recollections of Lopardi and Complainant differed slightly as to the exact wording and timing of key statements made by Respondent Park. For Furthermore, her remarks made it perfectly clear that Complainant fell outside the sphere of what she considered acceptable. Respondent Park's demeanor during her testimony at the hearing, and her disingenuous testimony concerning her evaluation of Complainant's objective financial qualifications, comprise circumstantial evidence that also supports our finding of discrimination. Respondent Park became visibly angry at two parts during her testimony. These instances are particularly telling and provide insight into what triggered her unlawful-bias. Respondent Park testified with justifiable anger and disgust about the increase in drug trafficking in her neighborhood.7
example, Complainant's recollection of the statement made by Respondent Park upon receiving his application differed slightly from the version offered by Lopardi. Complainant recalls words to the effect that Respondent Park would not allow "those" people" into the building as opposed to the "black, yellow, whatever" statement recounted by Lopardi. Of course, it was Lopardi who actually heard the statement and later told Complainant about it. Also, Lopardi testified that Respondent Park made the statement when he dropped off Complainant's original application. Complainant testified that he believed the statement was made when Lopardi returned to drop off additional tax information. This tribunal attributes the inconsistencies to the witnesses, faded memories four years after the events occurred. It is important to note, however, that the substance and discriminatory import of Respondent Park's statements are clear under either version. Thus, while these differences are worthy of note, they do not undermine the overall credibility of Complainant or Lopardi.
7Respondent Park was not only concerned about her neighborhood, but also was active in her community. She offered evidence of her community activism and general good character. This evidence included Park’s prominent role in the Jackson Heights Beautification Group and a citation she received from the United States Congress for her community work. Character What is of concern to this tribunal is her unprovoked outburst and anger following questions about Complainant's offer to pay more than 50% of the purchase price as a downpayment when only 25% was required. Simply reading the transcript does not reflect Respondent Park's agitation. She became visibly shaken, removed her shoe, propped herself up on her foot, grabbed the arms of the witness chair and angrily exclaimed: . . . I don't know why he would even do that. I can't understand why he would even want to do that, if 25% was required. Why would he want to put 50% down if 25% was asked? (T. 464).
When asked whether someone may increase the amount of the downpayment to decrease monthly mortgage payments, she became sarcastic and cut off the questioner (T. 465). Surprisingly, instead of weighing in his favor, Complainant's large cash savings and generous downpayment seemed to count against him in Respondent Park's eyes. There is no rational explanation for her position and her attempts to explain it were inconsistent and illogical.8 Under such circumstances,
evidence, however, is traditionally given very little wieght in civil cases. See 57 Ny Jur. 2d 458. In fact, New York courts are committed to the doctrine that evidence of the character or reputation as an issue. See Fanelli v. diLorenzo, 591 N.Y.S. 2d 658 (4th Dept. 1992). Thus, the character evidence presented by Respondents is not dispositive of the issues in this case. 8 Respondent Park testified that she did not understand why he was offering to put so much money down on the purchase price after testifying that the ramifications of Complainant having to take out a mortgage were a factor in voting against him (T. 464). As discussed above, a higher cash payment up front reduces the mortgage amount. This should have alleviated some of Respondent Park's concerns about the mortgage. Instead, she became impatient and contradicted herself by insisting that the amount a there needs to be judicial probing on motivations. This tribunal, like any other, assumes that people do not act arbitrarily, particularly in business settings. Inexplicable behaviors raise the inference that the disputed act was more likely than not based on the consideration of impermissible factors. Sassower v. Field, 752 F. Supp. 1182 (S.D.N.Y. 1990); Shaw v. Cassar, 558 F.2d 303 (E.D. Mich. 1983). The weight of the evidence supports the conclusion that there is a link between Respondent Park's justified anger at describing neighborhood drug problems and her irrational testimony concerning the amount of Complainant's downpayment. Her obvious distress while discussing drug trafficking and Complainant's cash savings seems to reflect a bias that a Latino man in that neighborhood with significant cash assets must be connected to the drug trade. In fact, Complainant's impressive savings seem to have triggered Respondent Park's bias against him. If Complainant had been white, it is unlikely that Respondent Park would have viewed a large cash downpayment with such wholesale suspicion and anger. There is little chance that if Complainant had not been Latino, Respondent would have leapt to the illogical conclusion that his ability to make a large downpayment was indicative of ill gotten gains. This factual inference explains Respondent Park's odd behavior as she testified about Complainant's finances, her disingenuous
prospective applicant might put down on the purchase price did not matter to her (T. 464). Her reasoning on this point is illogical. testimony concerning Complainant's objective financial suitability, and her desire to prevent Complainant from moving into the building. The bias Respondent Park demonstrated in her remarks permeated the entire decision-making process. As Board president she took advantage of her influence and steered the Board~s decision towards her desired result. The Board members looked to Respondent Park for leadership.9 This was particularly true during the consideration of Complainant's application because it was the first application processed by the Board without prior screening by a managing agent. Respondent Park was the Board's sole point person for requesting and receiving information concerning Complainant's application. Park asked an accountant friend to review Complainant's financial data and informed the Board of his opinion that Complainant should be rejected. She also consulted an architect about the economic health of his profession and informed the co-op Board of his opinion that work was difficult to find.10
9 Board member Edith Casu underscored this point by asserting that she never voted against Respondent Park and that the Board had urged her to continue as president despite her reluctance to stay on after the expiration of her term.
10 It is important to underscore that although Respondents argued that they relied on the opinion of these "experts" in voting to reject, they were not called to testify at the hearing even though they were personal acquaintances of Respondent Park. In such an instance, where a party withholds evidence in their possession or control that would be likely to support their version of the case, the strongest inference may be drawn against Respondent Park also made two requests for additional tax documentation to Lopardi and was the only Board member to do so. Those documents were delivered to Respondent Park by Lopardi.11 Each of these transactions helped to enable Respondent Park to prevent Complainant's application from receiving untainted consideration from the Board and to steer the vote towards the outcome she desired. Respondents may argue that Respondent Park represented only one of eight "no" votes and that even if her vote was nullified or discounted due to discriminatory bias, Complainant still would have been rejected by a wide margin. Respondents are correct
that party which the opposing evidence permits. Noce v. Kaufman, 161 N.Y.S.2d 1, 5, 2 N.Y.2d. 347, 353 (1957)(cited in 2 Frumer-BiskindMilgrim, N.Y. Evidence, par. 48A.01 [other case citations omitted]). Thus, the failure of Respondents to have the accountant and architect testify permits this tribunal to draw a factual inference that such testimony is adverse to Respondents' case.
11 The dispute concerning to supplemental tax information exemplifies how Respondent Park manipulated the process to assure Complainant's rejection. At the hearing, Board members expressed concern that Complainant failed to submit 1099 tax forms to document his sources of income (T. 295). Their concern was compounded by the perception that Park had made two specific requests for the 1099s. Lopardi, however, credibly testified that Respondent Park did not request copies of the 1099 forms. Instead, she made general requests for additional tax information (T. 8689). Complainant promptly responded to the request by submitting copies of his Schedule C and the blank backs of other forms. This tribunal believes that if Respondent Park had made a specific request, Complainant would have complied because he had easy access to the documentation and would have done whatever was reasonable and necessary to facilitate the purchase. Accordingly, this tribunal finds that confusion about the completeness of Complainant's tax forms was caused by Respondent Park and motivated by her desire to block Complainant's application. inasmuch as this tribunal found that Board members Edith Casu, Maria Bonilla, Paula Searcy and Pauline Weber credibly testified that their vote was based on factors other than Complainant's national origin.12 For example, three individual Board members
12 The minutes of the April 1991 Board meeting do not list any reasons for rejecting Complainant's application, nor does it reflect any discussion having taken place prior to the vote. Nevertheless, Board members Marguerite Park, Maria Bonilla, Edith Casu, Paula Searcy and Pauline Weber articulated a number of nondiscriminatory reasons for rejecting Complainant's application. Their consistency is in no small part attributable to a meeting held a few months prior to the hearing in which they reviewed their rationale and made a list of justifications for their action. Some of the reasons submitted, however, were subjective in nature and require strict scrutiny by this tribunal. Shaw v. Cassar, 558 F. Supp. 303 (E.D. Mich. 1983). First, the witnesses were unanimous in their assessment that because Complainant was an independent contractor, he did not have a "steady" job or reliable income (T. 296-299, 387-388, 395396, 426, 530-532). Although some witnesses were credible in expressing this concern, and punctuated their testimony with personal stories about being depression babies, the weight of the objective evidence did not support this rationale. As discussed above, Complainant's income was reliable and steadily increased during the three years prior to his application. Second, Board members testified that they were considering a mortgage to finance repairs to the roof, windows and elevator and were afraid that Complainant would not be able to pay his share of future co-op expenses. The evidence established, however, that Respondents never seriously considered a mortgage and that those repairs undertaken were paid for through assessment charges that amounted to a very small fraction of the proposed mortgage amount (T. 333-335, 471, 472, 483, 485). Third, Complainant's admitted failure to pay his unincorporated business tax does not justify the rejection in light of the evidence. Complainant credibly testified that his failure to pay this tax was an honest mistake and he paid promptly upon receiving an overdue notice from the New York City Department of Finance. Likewise, concerns that he would use his home as an office-were not reasonably addressed through an interview or a request for more information. credibly their concerns over Complainant's finances prompted their "no" votes. Other Board members mentioned other factors, such as the possibility that Complainant would use the apartment as an office.13
Fourth, the fear that Complainant would not be able to make timely maintenance payments was assumed and not followed up with credit checks. Fifth, the fear that he would not be able to afford repairs to apartment 42 also appear unfounded given the fact that they knew Complainant would still have approximately $30,000 in savings after the purchase and that he was an architect. In short, although these and other reasons may have genuinely caused certain Board members to vote against Complainant's application, this tribunal considers such factors to be subjective and thus of little evidentiary value when weighed against Complainant's solid financial position and Respondent Park's discriminatory remarks.
13 Respondents also argued that their pre-1991 approval of Latina Maria Bonilla-O'Hara's application undermines Complainant's claim. However, the circumstances of Ms. Bonilla-O'Hara's application were markedly different from those of the Rives application. She applied with her fiance, Mr. O'Hara. The Bonilla-O'Hara application simply does not provide the proper backdrop of comparison for determining whether Respondents are inclined to discriminate against single Latino males. What the acceptance of the Bonilla-O'Hara application does establish is that Respondents bias towards Latinos manifests itself only under certain circumstances. In any case, this evidence is not enough to overcome the evidence that Complainant's application was subject to unlawful bias. Respondents also offered testimony concerning Respondent Park's efforts to help her friends Rene Vazquez and Rene Lopez, both Latino males, obtain housing by writing a recommendation for them for another Jackson Heights co-op and later by encouraging them to apply for an apartment in her building. Such evidence was intended to show that she was unbiased in her dealings with Latino/as. The letter of recommendation was written by Ms. Park on December 13, 1991 and her suggestion that they move into 34-37 80th Street came in January 1992. Thus, her efforts to assist Mr. Vazquez and Mr. Lopez came well after Complainant filed his complaint and thus are of no probative value.
It is not necessary, however, to show the discriminatory mindset or intent of every Board member to prevail in a housing discrimination case. Even if a trial court credits certain nondiscriminatory reasons advanced by a co-op board as genuine, it must remember that race need not be the sole motivating factor for a complainant to succeed. Irizarry, et al. v. 120 West 70th Owner's Co-on et al., 1986 WL 8073 (S.D.N.Y. 1986). Here, the application process was tainted with unlawful discrimination by the person effectively in control. Thus, while the individual motivations of other Board members may have been discriminationfree, their votes were cast at the culmination of an application process infected with bias by the person with the most influence. While the extent to which Respondent Park's discriminatory bias permeated the application process cannot be precisely calculated, such discrimination does rise to the level necessary for a finding of liability under the Code. As the Commission
noted in Shoyinka, "[d]iscrimination must be irrelevant to the decision" for respondents to avoid liability.14 Shoyinka, Dec. and Order, p.2. Here, unfortunately, Complainant's national
14 The applicability of anti-discrimination laws to cooperatives in this fashion is not meant to "straightjacket" the decision-making process of co-op Boards. "In the absence of discriminatory practices prohibited by law, the directors of a residential housing cooperative have the contractual and inherent power to approve or disapprove the transfer of shares and the assignment of proprietary leases." Bachman v. State Division of Human Rights, 481 N.Y.S.2d 858, 860 (1st Dept. 1984)(citing Goldstone v. Constable, 443 N.Y.S.2d 380 (1st Dept. 1981)).
origin was made relevant to the application process by Respondent Park. The Commission's statement of law in Shoyinka is well grounded in case law interpreting analogous federal anti-discrimination statutes. The often cited case of Robinson v. 12 Lofts Realty Inc., et al., 610 F.2d 1032 (2d Cir. 1979), considered the role of discrimination in the defendant co-op's decision to reject plaintiff's application in a complaint brought under the Fair Housing Act. The Robinson court held that a finding that "racial motivation did not play any role in the decision to deny" an applicant is necessary to support a holding of no liability.15
Robinson, 610 F.2d at 1043. Both Respondent 164 23rd Street Jackson Heights, Inc. and individual Respondent Marguerite Park are liable to the Complainant for the unlawful discrimination described above. A
15 The Robinson Court also cited a string of cases which held that "race need not be the sole motivating factor in a denial that has a discriminatory effect in order for the plaintiff to succeed in a Title VIII claim." See e.g. Williams v. Matthews, 499 F.2d 819, 826 (8th Cir.), cert denied, 419 U.S. 1021, 95 S.Ct. 495 (1974); United States v. Pelzer Realty Co., 484 F.2d 438, 443 (Sth Cir. 1973), cert denied, 416 U.S. 936, 94 S.Ct. 1935 (1974); Smith v. Sol D. Adler Realty Co., 436 F.2d 344, 349-50 (7th Cir. 1970); Wana v. Lake Maxinhall Estates, Inc., 531 F.2d 832, 836, n.12 (7th Cir. 1976); Bishop v. Pecsok, 431 F.Supp. 34, 37 (N.D. Ohio 1976). See also Irizarry et al. v. 120 West 70th Owner's Corp,.et al., 1986 WL 8073 (S.D.N.Y. 1986), in which the District Court held that to rule against the plaintiff in a Title VIII case, the trial court must find a total absence of any racial motivation on the part of the defendants. corporate entity can be held liable for the actions of its officers and employees. See Northside Realty Associates, Inc. v. United States, 605 F.2d 1348 (5th Cir. 1979) (The acts of corporate officers, done within the scope of their employment and for the benefit of their employer, are attributable to the corporate defendant). Here, Respondent 164 23rd Street Jackson Heights, Inc. is a corporate entity and Respondent Park is its president. In her capacity as president, she acted in a discriminatory manner during the Rives application process. Thus, because Respondent Park committed the discriminatory acts in her capacity as president, and those acts were committed in the normal course of her duties, Respondent 164 23rd Street Jackson Heights, Inc. may be held liable. In New York, corporate officers and employees may be held individually liable for personal torts committed in the performance of their duties to the corporation. Model Imneria1
Supply V. Westwind Cosmetics. Inc., 808 F.Supp. 943, 946 (E.D.N.Y. 1992); West Indian Sea Island Cotton Ass'n v. Threadtex, Inc., 761 F.Supp. 1041, 1054 (S.D.N.Y. 1990); Westminster Constr. Co. v.Sherman, 554 N.Y.S.2d 300, 301 (2d Dept.1990)16. Here, Respondent Park engaged in unlawful discrimination while acting in her official capacity
16 A damages action under City anti-discrimination law basically sounds in tort. The Code essentially creates a new legal duty for potential Respondents. See Curtis v. Loether, 94 S.Ct. 1005, 1009, 415 U.S. 189, 39 L.Ed.2d 260 (1974) (interpreting fair housing provisions of Civil Rights Act of 1968). as president. Thus, she may be held personally liable for such an act. B. Marital Status Claim
Complainant also alleges that Respondents rejected his application because he is single. The evidence adduced at the hearing does not support this claim and thus this portion of the complaint must be dismissed. Complainant's marital status claim rests on Respondent Park's statement to Lopardi that she would have preferred if Complainant had "another income." We find such a statement to be indicative of a preference for an applicant with a greater aggregate income than that submitted by Complainant rather than a strict preference for a married couple. Additionally, it is worth noting that Ms. Park is single and there was testimony that most of the tenants in the co-op are single and/or live alone. In the face of this evidence, Complainant's marital status claim must be dismissed. C. The Section 8-107(5)(a)(3) Claim
Complainant's Amended Verified Complaint alleges that the Respondents also violated Section 8-107(5)(a)(3) of the Code. That Section reads: (a) It shall be an unlawful discriminatory practice for the owner, lessee, sublessee, assignee or managing agent of, or other person having the right to sell, rent or lease or approve the sale, rental or lease of a housing accommodation, constructed or to be constructed, or an interest therein, or any agency or employee thereof:
(3) To declare, print, circulate or cause to be declared, printed or circulated any statement, advertisement or publication, or to use any form or application for the purchase, rental or lease of such a housing accommodation or an interest therein or to make any record or inquiry in conjunction with the prospective purchase, rental or lease of such a housing accommodation or an interest therein which expresses, directly or indirectly, any limitation, specification or discrimination as to ... national origin, ... marital status ...
We find that the oral statements made by Respondent Park to Lopardi when he dropped off the Rives application constitute a violation of this section of the Code. The Commission often looks to other fore for the standards
to be applied in discrimination cases. Vizcaino, supra; Friedman, supra; Leissner, supra footnote 3. Here, federal case law interpreting 42 U.S.C.3604(c)17 a provision of the Fair Housing Act, is relevant because section 3604 is analogous to Code Section 8-107(5)(a)(3). The federal courts have held that 42 U.S.C. 3604(c), like the provisions of other civil rights statutes, is to be interpreted broadly to enable fulfillment of its purpose. See Griffin v. Breckenridae, 403 U.S. 88, 97, 91 S.Ct. 1790 (1971) (It is well established that civil rights statutes should be read expansively in order to fulfill their
17 42 U.S.C. 3604(c) states that: it shall be unlawful- (c) To make, print, publish, or cause to be made printed or published any notice, statement or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preferences, limitation or discrimination.
purpose); Mayers v. Ridley 465 F.2d 630 (D.C.Cir. 1972); United States v. Hunter, 459 F.2d 205 (4th Cir. 1972). The federal courts have consistently held that openly discriminatory oral statements are actionable under 42 U.S.C. 3064(c). Soules v. United States Dept. of Housing and Urban Development 967 F.2d 817, 824 (2nd Cir. 1992).18 This is consistent with federal regulations issued pursuant to the statute.19 Here, Respondent Park orally made a discriminatory statement that was directly related to Complainant's application to purchase co-op shares. As such, we find that her utterance violates Section 8-107(5)(a)(3) of the Code.
V. DAMAGES AND AFFIRMATIVE RELIEF
A. Compensatory Damages
Pursuant to Section 8-109(2)(c) of the Code, the Commission has broad discretion to grant both legal and equitable remedies to a prevailing Complainant. In housing discrimination cases, the Complainant may receive compensatory relief for out-of-pocket
18 See also Stewart v. Furton, 774 F.2d 706, 708-09 (6th Cir. 1985)(statement that black tenants were not allowed in a trailer park because white tenants would move out); United States v. L&H Land Corn., 407 F.Supp. 576, 578-580 (statements that no blacks lived in development and were not allowed even as guests); United States v. Gilman, 341 F.Supp. 891, 896-7 (S.D.N.Y. 1972) (landlord's statement to white tenant that she should send her friends over to see a vacant apartment but to "make sure her friends are white.").
193604(c) applies "to all written or oral statements by a person engaged in the sale or rental of a dwelling." 24 C.F.R. 100.75(b)(1972).
expenses, rent or sale price differential and relocation costs,20 as well as for pain, suffering and mental anguish caused by the discriminatory treatment.21 The Commission has consistently awarded monetary damages to Complainants who establish mental anguish through credible evidence.22 The standard of proof required to establish mental
20 Miller v. Apartments and Homes of New Jersey,Inc.. et al., 646 F.2d 101 (3d Cir. 1981) (Victims of housing discrimination may be awarded difference in rent and/or utility bills); Woods-Drake v. Lundy, 667 F.2d 1198 (5th Cir. 1982) (Victims of housing discrimination may be awarded out-of-pocket costs incurred while locating another dwelling and moving their belongings); Shoyinka, supra(complainant entitled to lost interest on money held in escrow for purchase of co-op); Cruz v. Zwar, NYCCHR Compl. No. 53884, Dec. and Ord. (March 31, 1987), aff'd, (Sup. Ct. Queens Cty. 1988) (complainant awarded rent differential, brokerage fee, storage costs and lost wages in housing discrimination case).
21 300 Gramatan Avenue Assoc. v. State Div. of Human Rights sunra (upholding award of compensation for mental anguish under similar provisions of state Human Rights Law); Shoyinka, supra (relief in housing discrimination case may include compensation for pain, suffering and mental anguish caused by discriminatory treatment); Cruz, supra (Commission may order payment for mental suffering); Childs v. Milman, NYCCHR Compl. No. FH-167052489, Rec. Dec. and Order (Oct. 25, 1991), aff’d, Dec & Order (Apr. 8, 1992) (mental anguish suffered in housing discrimination case is compensable).
22 City of New York Commission on Human Rights & Smith v. Park West Realty et al., NYCCHR Compl. No. MH-93-0877, Rec. Dec. & Order (March 17, 1995), aff'd, Dec. and Order (Apr. 26, 1995), appeal pending ($6,000 mental anguish award in housing case); Mitchell and Mitchell v. DiSilvio and DiSilvio et al., NYCCHR Compl. No. FH-584121990-DH, Rec. Dec. & Order (Dec. 29, 1993), aff'd, Dec. and Order (Apr. 29, 1994) (awards of $10,000 and $3,000 for mental anguish suffered by complainants in housing case); Levee v. Pocchiari, NYCCHR Compl. No. H92-0351, Rec. Dec. L Order (June 10, 1993), aff'd, Dec. and Order (July 28, 1993) ($10,000 mental anguish award in housing case); Hollev & Hollev v. Koscielna, NYCCHR Compl. No. FH-36020190DH, Rec. Dec. and Order (Oct. 12, 1991), aff'd Dec. and Order (March 11, 1992) (awards of anguish in a statutory discrimination case is less stringent than that required in common law actions. Complainant must prove the existence and extent of the injury and present evidence sufficient to support a determination that "a reasonable person of average sensibilities could fairly be expected to suffer mental anguish from the incident." Batavia Lodae No. 196 v. State Div. of Human Rights 43 A.D.2d 807, 810, 350 N.Y.S.2d 273, 278 (dissenting opinion cited by the Court of Appeals in reversing at 35 N.Y.2d 143, 359 N.Y.S.2d 25 (1974)). Complainant
can establish mental anguish through his own credible testimony,23 or such a finding may be based on evidence drawn from the circumstances of the case itself. Batavia Lodge 43 A.D.2d at 78. Complainant suffered compensable mental anguish as a result of Respondents' discriminatory acts. Complainant testified that he was "hurt and surprised" when he learned that Respondents had rejected his application. Complainant felt this way because he believed he was rejected due to his national origin. His controlled anger during certain parts of his testimony reflected the hurt and sense of wrong he felt due to the discriminatory rejection. Complainant was particularly affected by the rejection because he had lived in the neighborhood for some time and had always admired the Queensboro Buildings. In fact, because of his
$2,000 to each complainant for mental anguish suffered in housing case).
23 Cullen v. Nassau county Civ. Service, 53 N.Y.2d 492, 442 N.Y.S.2d 470 (1981); Matter of Bayport Blue Point School Dist. v. State Div. of Human Riqhts, 131 A.D.2d 849 (2d Dept. 1987); interest in architecture, he had taken advantage of neighborhood tours that included residences in these buildings. He expressed surprise at his good fortune at having found a three bedroom apartment there for under $150,000. Respondents' unexplained rejection, despite his solid financial standing, constituted a wrongful affront to his dignity which caused him mental anguish. See e.g., Childs v. Milman, supra, Dec. and Order, p.2. Thus, Complainant should be awarded $7,500 for mental anguish suffered as a result of Respondent's discriminatory rejection. Complainant wishes to recover the difference in purchase price between the co-op apartment and the house he subsequently
purchased and now lives in. See Edler, supra Rec. Dec. and Order, p. 21; Beaumont Birch Co. v. Najjar Industries, Inc., 477 F.Supp. 920 (S.D.N.Y. 1979). Complainant, however, did not satisfy his burden of proving entitlement to such an award. There was no evidence that Complainant searched for and could not find a similar apartment at a comparable price in the same Jackson Heights area. Also, Complainant submitted no specific proof about his Westchester house and its size, amenities and desirability as compared to a Jackson Heights apartment. Although Complainant spent more money on the house, there is no evidence to 30 support a finding that he suffered a compensable loss of amenities. Accordingly, this request for relief is denied.
B. Affirmative Relief
Catalina Beach Club v. State Div. of Human Rights 95 A.D.2d 776, In addition to ordering the payment of monetary damages to compensate Complainant for Respondents' prior discriminatory acts, this tribunal may order affirmative relief to ensure Respondents' future compliance with City anti-discrimination laws. The following affirmative relief is recommended: 1. All applicants to purchase co-op shares from Respondent co-op should receive a copy of the following statement either from a member of the co-op's Board of Directors or from the broker facilitating the transaction: It is illegal to discriminate in the rental or sale of any dwelling on account of someone's actual or perceived race, creed, color, age, national origin, gender, marital status, citizenship status, alienage, disability, sexual orientation, profession and because children might or would be residing in that dwelling. If you believe that you have been denied the opportunity to view or purchase housing because of discrimination, you may file a complaint with the New York City Commission on Human Rights. For information, call the New York City Commission on Human Rights at 212.306.7500.
2. Respondent 164 23rd Street, Jackson Heights, Inc. is to provide copies of this Recommended Decision and Order to each shareholder in the co-op and shall indicate the date of distribution in the meeting minutes of the co-op Board. 3. After all existing supplies are exhausted, Respondents' letterhead and other correspondence shall be amended to include the statement "An Equal Opportunity Housing Opportunity Cooperative."
463 N.Y.S.2d 244 (2d. Dept. 1983). VI. RECOMMENDED ORDER24
IT IS HEREBY ORDERED THAT: 1.Respondents cease and desist from engaging in any unlawful discriminatory practices relating the sale of cooperative apartments.
2. Respondents 164 23rd Street, Jackson Heights, Inc. and Marguerite Park pay Complainant Luis Rives damages in the amount of seven thousand and five hundred dollars ($7,500) as compensation for mental anguish.
3. Respondents are ordered to ensure that the statement described in section V.B.1 above is distributed to all prospective co-op apartment purchasers.
4.As per the terms of section V.B.2 above, Respondents are to distribute copies of this Recommended Decision and Order to all members of the co-op Board.
5. As per the terms of section V.B.3 above, Respondents are to amend their corporate letterhead to include the phrase "Equal Housing Opportunity Cooperative."
6. The marital status claim be dismissed in its entirety.
Date: July 31, 1995 SO ORDERED ______Rosemarie Maldonado Chief Administrative Law Judge Hearings Division
24 This Recommended Order and Decision must be read in conjunction with the final Decision and Order issued in this action.