Motion to Dismiss in Keishe Olivierre v. Parkchester Preservation Company, L.P., Parkchester Preservation Management, Llc| Trellis.Law

On July 11, 2022 a Motion-Secondary was filed involving a dispute between Keishe Olivierre, and Parkchester Preservation Company, L.P., Parkchester Preservation Management, Llc, for Torts - Other (Human Rights Law -Housing) in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

KEISHE OLIVIERRE,

Plaintiff,

-against-
INDEX NO.: 452058/2022
PARKCHESTER PRESERVATION COMPANY,
L.P., and PARKCHESTER
PRESERVATION MANAGEMENT, LLC,

Defendants.

PLAINTIFF’S MEMORANDUM OF LAW
IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................................... ii-iii

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 2

ARGUMENT .................................................................................................................................. 3

I. THE SOI LAWS DO NOT VIOLATE DEFENDANTS’ SUBSTANTIVE DUE
PROCESS RIGHTS ............................................................................................................ 3

A. Legal Standard ........................................................................................................ 3

B. The SOI Laws Pass Rational Basis Review and Do Not “Shock the Conscience” 4

1. The NYCHRL Rationally Relates to Legitimate Legislative Purposes ...... 6

2. The NYSHRL Rationally Relates to Legitimate Legislative Purposes ...... 9

C. Defendants Unequivocally Have Not Been Deprived of the “Economically Viable
Use” of Their Property .......................................................................................... 10

D. Every Other Court and Human Rights Agency to Address This Issue Has
Similarly Concluded That It Is Illegal to Reject an Applicant With a Full Voucher
for Insufficient Income ......................................................................................... 13

CONCLUSION ............................................................................................................................. 13

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TABLE OF AUTHORITIES

74 Pinehurst LLC v. New York,
59 F.4th 557 (2d Cir. 2023) ................................................................................................ 11, 15

Beatie v. City of N.Y.,
123 F.3d 707 (2d Cir. 1997) (cleaned up)................................................................................... 9

Bennett v. Health Mgt. Sys., Inc.,
92 A.D.3d 29 (1st Dep’t 2011) ................................................................................................. 13

Cine SK8, Inc. v. Town of Henrietta,
507 F.3d 778 (2d Cir. 2007) (cleaned up)................................................................................. 10

Cmty. Hous. Improvement Program v. City of New York,
59 F.4th. 540 (2d Cir. 2023) ............................................................................................... 11, 15

Ests. NY Real Est. Servs. LLC v. City of New York,
184 A.D.3d 56 (1st Dep’t 2020) ............................................................................................... 14

Filicore v. Jossel,
173 Misc. 2d 42 N.Y.S.2d 786, 787 (Sup. Ct., N.Y. Cnty. 1997) ............................................ 11

Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241 (1964) ............................................................................................................ 11, 15

Heller v. Doe,
509 U.S. 312 (1993) (cleaned up) ............................................................................................... 9

In re Chateaugay Corp.,
53 F.3d 478 (2d Cir. 1995) (cleaned up)..................................................................................... 9

Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528 (2005) .................................................................................................................... 9

New York Inst. of Tech. v. State Div. of Human Rights,
40 N.Y.2d 316 (1976) ............................................................................................................... 15

O’Connor v. Pierson,
426 F.3d 187 (2d Cir. 2005)...................................................................................................... 10

Pennell v. City of San Jose,
485 U.S. 1 (1988) ........................................................................................................................ 9

Rent Stabilization Ass’n of N.Y. City v. Higgins,
83 N.Y.2d 156 (1993) ............................................................................................................... 15

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Seawall Assocs. v. City of New York,
74 N.Y.2d 92 (1989) ................................................................................................................. 15

Seawell .......................................................................................................................................... 15

State Comm for Hum. Rts. v. Kennelly,
23 N.Y.2d 722 (1968) ............................................................................................................... 11

State Comm’n for Hum. Rts. v. Kennelly,
30 A.D.2d 310 (2d Dep’t 1968) ................................................................................................ 11

Thomas v. Sullivan,
922 F.2d 132 (2d Cir. 1990)........................................................................................................ 9

United States v. Starrett City Assocs.,
840 F.2d 1096 (2d Cir. 1988).................................................................................................... 11

Yee v. City of Escondido,
503 U.S. 519 (1992) .................................................................................................................. 15

Zheng v. City of New York,
19 N.Y.3d 556 (2012) ............................................................................................................... 17

STATUTES

N.Y. Exec. Law § 290................................................................................................................... 14

N.Y. Exec. Law § 300................................................................................................................... 15

NYC Admin. Code § 8.............................................................................................................. 8, 12

State Human Rights Law § 290 ...................................................................................................... 8

OTHER AUTHORITIES

Report of the Committee on General Welfare,

December 12, 2007, at 9 ........................................................................................................... 14

REGULATIONS

Senate Bill S427A, Sponsor Memo (Jan. 6, 2021) ....................................................................... 15

iii

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Plaintiff Keishe Olivierre, through her attorneys Emery Celli Brinckerhoff Abady Ward

and Maazel LLP and Housing Works, Inc., respectfully submits this Memorandum of Law in

Opposition to Defendants’—Parkchester Preservation Company, L.P., and Parkchester

Preservation Management, LLC (together, “Defendants” or “Parkchester”)—Motion to Dismiss.

PRELIMINARY STATEMENT

When this Court granted Ms. Olivierre’s emergency order to show cause, she and her two

small boys were homeless. Defendants had twice denied her an apartment, even though she

possesses a CityFHEPS voucher that pays 100% of the market rent sought by Defendants. Like

every other court and administrative agency to address this issue, this Court rightfully found that

Ms. Olivierre was likely to succeed on her claim that it is illegal, and against the spirit and

purpose of New York City and State source of income (“SOI”) anti-discrimination laws, to allow

landlords to reject an applicant with a full voucher based upon minimum-income requirements.

Today, Ms. Olivierre is no longer homeless—she and her children live safely in one of

Defendants’ apartments.

Defendants now seek to upend not only this Court’s decision lifting Ms. Olivierre and her

children out of homelessness, but the entirety of the CityFHEPS program, by challenging the

constitutionality of the SOI laws. Defendants’ motion is meritless. Assuming a cognizable

injury exists (it does not), Defendants’ substantive due process rights have not been violated.

Rational basis review applies to Defendants’ challenge, pursuant to which Defendants must

demonstrate that the SOI laws are “constitutionally arbitrary,” in a manner that “shocks the

conscience.” See Argument Section I.B, infra. To the contrary, the SOI laws are rationally

related to several legitimate purposes, including combatting discrimination, alleviating the

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housing crisis and homelessness in New York, and protecting low-income New Yorkers seeking

stable, affordable housing. See id.

In addition, Defendants have suffered no loss of liberty or property. Defendants do not

contend that Ms. Olivierre was not qualified to pay the full market rent at the time of her

application, and indeed they cannot, for she was, and has done so since this Court entered the

Preliminary Injunction (“PI”). Instead, Defendants insist upon the right to assess Ms. Olivierre’s

income based entirely upon the conjectural argument that, since one housing assistance program

previously ended in New York, the CityFHEPS program might hypothetically end in the

future. There is no principled distinction between Ms. Olivierre and a qualified applicant

without a voucher whose employer might later close its business, or terminate the applicant’s

employment. This is entirely possible for every qualified employed applicant who applies to

Parkchester without a voucher. See Argument Section I.C, infra. It is thus not surprising that

every other court and human rights agency to address this issue has similarly concluded that it is

illegal to reject an applicant with a full voucher based on insufficient income. See Argument

Section I.D, infra.

STATEMENT OF FACTS

Plaintiff Keishe Olivierre is an indigent 34-year-old woman living with two small

children, aged one and five. See Olivierre v. Parkchester Preservation Company, L.P. et al., No.

452058/2022, Decision & Order on Motion, Doc. No. 18 at 2 (N.Y. Sup. Ct., July 29, 2022)

(“Decision & Order”). Ms. Olivierre qualified for and received a full CityFHEPS voucher from

the New York City Department of Social Services on April 8, 2022. With this voucher, the City

pays 100% of market rent sought by landlords within certain maximum rent amounts for Ms.

Olivierre. On or about April 8, 2022, Ms. Olivierre applied online for a three-bedroom

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apartment at Parkchester listed by Defendants within the permitted rent range of her voucher.

On April 13, 2022, Defendants denied Ms. Olivierre’s application. She received a phone call

from a Parkchester employee informing her that even with the voucher, Parkchester required her

to show an income of $62,000 to rent the apartment. Id. Ms. Olivierre applied again on June 30,

2022, expressly indicating that she had a full CityFHEPS voucher to pay rent, and Defendants

immediately rejected her. Id.

On July 11, 2022, Ms. Olivierre filed a complaint and an emergency order to show cause,

alleging that in these denials, Defendants discriminated against her based on her lawful source of

income in violation of NYC Admin. Code § 8-107 (“NYCHRL”) and State Human Rights Law §

290 (“NYSHRL”) (“the SOI Laws”). See Olivierre v. Parkchester Preservation Company, L.P.

et al., No. 452058/2022, Doc. Nos. 1, 3. This Court granted Ms. Olivierre’s motion for a PI on

July 29, 2022. Decision & Order at 10. On January 13, 2023, Defendants moved to dismiss Ms.

Olivierre’s claims arguing that the SOI Laws are unconstitutional as applied to the CityFHEPS

program. See Olivierre v. Parkchester Preservation Company, L.P. et al., No. 452058/2022,

Doc. No. 27.

ARGUMENT

I. THE SOI LAWS DO NOT VIOLATE DEFENDANTS’ SUBSTANTIVE DUE
PROCESS RIGHTS

A. Legal Standard

Substantive due process “requires only that economic legislation be supported by a

legitimate legislative purpose furthered by a rational means.” In re Chateaugay Corp., 53 F.3d

478, 486–87 (2d Cir. 1995) (cleaned up). Legislative action is thus entitled to a “strong

presumption of constitutionality” and must be upheld so long as this Court can “find some

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reasonably conceivable state of facts that could provide a rational basis for” the law. Beatie v.

City of N.Y., 123 F.3d 707, 711–12 (2d Cir. 1997) (cleaned up).

Under this standard, a party must “negat[e] every conceivable basis which might support”

the challenged legislation, “whether or not the basis has a foundation in the record,” as “any

reasonably conceivable state of facts . . . could provide a rational basis.” Heller v. Doe, 509 U.S.

312, 320—21 (1993) (cleaned up); see also Thomas v. Sullivan, 922 F.2d 132, 136 (2d Cir. 1990)

(on rational-basis review, “we consider not only contemporaneous articulations of legislative

purpose but also any legitimate policy concerns on which the legislature might conceivably have

relied”). Defendants seemingly concede that rational basis review applies in this case, arguing

that the human rights laws fail under the “constitutionally arbitrary” standard. See Defendants’

Memorandum of Law in Support of Defendants’ Motion to Dismiss, Doc. No. 27 at 10.1 (“Br.”)

The cases that Defendants cite illustrate just how high the bar is to establish an

unconstitutional burden on one’s property rights under rational basis review: “a ‘constitutionally

arbitrary’ action for purposes of a property-based substantive due process claim is action that

shocks the conscience.” O’Connor v. Pierson, 426 F.3d 187, 204 (2d Cir. 2005); see Br. at 10

(citing O’Connor but omitting this critical quotation).

B. The SOI Laws Pass Rational Basis Review and Do Not “Shock the
Conscience”

Far from “shocking the conscience,” the SOI Laws rationally relate to several legitimate

governmental interests and are thus not “constitutionally arbitrary.” Defendants’ high hurdle is

reflected in the cases they cite. State action that may meet this high standard of “constitutional

1
To the extent that Defendants invoke a “fundamental right” to the economically viable use of their property to
imply that the SOI Laws must pass strict scrutiny, such an argument is meritless. The Supreme Court has “long
eschewed such heightened scrutiny when addressing substantive due process challenges to government
regulation.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 545 (2005); see also Pennell v. City of San Jose, 485
U.S. 1, 10–11 (1988) (considering whether rent-control statute was “arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt” (cleaned up)).

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arbitrariness” includes conduct “‘tainted with . . . racial animus’ or with ‘fundamental procedural

irregularity,’” Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 785 (2d Cir. 2007) (cleaned

up), where the governmental body “lacked the power” or “failed to comply with the procedural

requirements” to take that action, such as failing to “provide notice and a hearing.” Id. at 789–

90. Defendants cannot and do not argue that the SOI Laws fall under these categories—there is

no dispute that these human rights laws contain no racial animus or procedural irregularities

passed in the proper course of legislative activity.

Defendants do not engage with the legislative purposes underlying the SOI Laws, instead

arguing, without support, that the laws are irrational and arbitrary because Defendants have been

mandated not to discriminate according to those laws. Assuming arguendo that Defendants

allege a non-hypothetical and imminent injury, they cite no authority for the proposition that it is

“constitutionally arbitrary” to be required not to discriminate against an applicant who, like any

other qualified applicant, unequivocally can pay rent at the time of their application. Far from

“shocking the conscience,” laws regulating landlord-tenant relationships and/or combatting

discrimination—like the SOI Laws—have been consistently upheld when rationally related to at

least one articulable, legitimate legislative purpose.

Here, legitimate legislative purposes underlying the SOI Laws abound. It is beyond

dispute that combatting discrimination is a legitimate legislative purpose. See Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 245 (1964) (upholding constitutionality of Civil

Rights Act of 1964, purpose of which included promoting “the general welfare by eliminating

discrimination”); United States v. Starrett City Assocs., 840 F.2d 1096, 1101 (2d Cir. 1988)

(noting that “both the fourteenth amendment and Title VIII [of the Civil Rights Act of 1968, or

the Fair Housing Act] are informed by the congressional goal of eradicating racial discrimination

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through the principle of antidiscrimination”); State Comm’n for Hum. Rts. v. Kennelly, 30

A.D.2d 310, 315 (2d Dep’t 1968), aff’d sub nom. State Comm for Hum. Rts. v. Kennelly, 23

N.Y.2d 722 (1968) (upholding “the constitutionality of legislation proscribing all racial

discrimination, private as well as public, in the sale or rental of property” as well as the anti-

housing-discrimination provisions in the NYSHRL); Filicore v. Jossel, 173 Misc. 2d 42, 44, 660

N.Y.S.2d 786, 787 (Sup. Ct., N.Y. Cnty. 1997) (collecting cases and noting that “New York and

Federal Courts have consistently upheld the constitutionality of U.S. and N.Y. anti-

discriminatory or human rights statutes as non-violative of free speech and association or due

process of the law and within police powers, including the New York Human Rights Law (Exec.

L. Art. 15), which covers Exec. Law 296”). In addition, the Second Circuit Court of Appeals

recently affirmed decisions upholding rent stabilization laws with the purposes of “alleviating the

housing shortage, securing housing for low-income residents, addressing rent profiteering, or

promoting neighborhood stability.” Cmty. Hous. Improvement Program v. City of New York, 59

F.4th. 540, 556 (2d Cir. 2023); see also 74 Pinehurst LLC v. New York, 59 F.4th 557, 569 (2d

Cir. 2023) (similar).

Both SOI Laws unequivocally serve and rationally relate to the legitimate legislative

purposes of combatting discrimination, combatting the City’s homelessness crisis, preventing the

dislocation of families, and protecting low-income New Yorkers seeking stable and affordable

housing.

1. The NYCHRL Rationally Relates to Legitimate Legislative Purposes

The New York City Council expressly codified its position that “there is no greater

danger to the health, morals, safety and welfare of the city” than prejudice and discrimination,

which “menace the institutions and foundation of a free democratic state.” N.Y. City Admin.

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Code. § 8-101. Further, in expanding the NYCHRL in 1991, the City Council reiterated that

discrimination “poses a substantial threat to, and inflicts significant injury upon, the city that is

economic, social and moral in character”; “impedes the optimal efficiency of the housing market

and retards private investments in certain neighborhoods by causing decisions to lease or sell

housing accommodations to be based upon discriminatory factors and not upon ability and

willingness to lease or purchase property”; that “the reduction in the efficiency of the labor,

housing and commercial markets has a detrimental effect on the city’s economy, thereby

reducing revenues and increasing costs to the city”; and that discrimination “demoralizes its

inhabitants and creates disrespect for the law, thereby frustrating the city’s efforts to foster

mutual respect and tolerance among its inhabitants and to promote a safe and secure

environment.” N.Y. City Admin. Code. § 8-401. As the First Department has explained, “the

existence of discrimination—a profound evil that New York City, as a matter of fundamental

public policy, seeks to eliminate—demands that the courts’ treatment of such claims maximize

the ability to ferret out such discrimination, not create room for discriminators to avoid having to

answer for their actions before a jury of their peers.” Bennett v. Health Mgt. Sys., Inc., 92

A.D.3d 29, 38 (1st Dep’t 2011). As noted, moreover, the City Council reiterated the critical

purpose of the NYCHRL in 2005 and again in 2016. See Plaintiff’s Memorandum of Law in

Support of Motion for Temporary Restraining Order and Preliminary Injunction, dated July 11,

2022, NYSCEF Doc. No. 8 at 5–6 (“P. Mem.”).

Further, the City Council made clear in passing the NYCHRL its intent to assist homeless

and low-income individuals with housing vouchers to secure housing regardless of their income,

an additional legitimate legislative purpose. See Transcript of the Minutes of the Stated New York

City Council Meeting at 61:26–62:06 (Mar. 26, 2008) (City Council Member Miguel Martinez

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decrying “[a]n unfair practice and a discriminatory practice to tell one that even though you may

have the source to pay the rent, but, however, it’s not a four or three digit salary, that you’re not

eligible or you’re not good enough to rent the apartment.”) (a copy of the relevant pages of the

transcript is attached to the Affirmation of Armen H. Merjian, NYSCEF Doc. No. 7 dated July 11,

2022 (“Merjian Aff.”), as Exhibit F).

The City Council emphasized the role of the law in combatting the City’s homelessness

crisis: “[The SOI law] will assist thousands of New Yorkers with limited incomes to find and

keep affordable housing of their choosing. And this is crucial, particularly now as New York

City is facing an urgent affordable housing crisis, and the number of families with children [in]

homeless shelters hit a record high a few months ago, something this Committee has been very

focused on.” Transcript of the Minutes of the New York City Council Committee on General

Welfare at 02:18 to 03:02 (Mar. 26, 2008) (see Merjian Aff. Ex. D). Chairperson Bill DeBlasio

explained that the law would help in “guaranteeing stable and affordable housing for New

Yorkers with limited incomes, and . . . help us in our efforts to continue to prevent homelessness,

which is at a record high.” Transcript of the Minutes of the New York City Council Committee

on General Welfare at 11:4-8, N.Y.C. Council (Dec. 12, 2007) (emphasis added) (see Merjian

Aff. Ex. C). As a pre-enactment report of the Council’s Committee on General Welfare

explained, protecting and expanding the use of vouchers and subsidies “cuts down on local

spending on public housing and increases integration of low-income voucher holders into diverse

communities.” Report of the Committee on General Welfare, December 12, 2007, at 9;2 see also

2
Similarly, Chairperson DeBlasio observed that the law will “ultimately have other positive effects, such as
reducing our level of homelessness and all the dislocations occurring to families in this City.” Transcript of the
Minutes of the New York City Council Committee on General Welfare at 07:07-10 (Apr. 11, 2007) (see Merjian
Aff. Ex. B); see, e.g., Transcript of the Minutes of the New York City Council Committee on General Welfare at
05:09-13 (Dec. 12, 2007) (statement of Chairperson DeBlasio) (“We also want to make sure that people can find
affordable housing in an increasingly difficult environment, and we believe that this legislation will help in that
effort as well as for low-income New Yorkers.”); id. at 11:06-08 (Statement of Chairperson DiBlasio) (“[I]t will

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Ests. NY Real Est. Servs. LLC v. City of New York, 184 A.D.3d 56, 60—61 (1st Dep’t 2020)

(“[T]he City Council stated that [the SOI law] would help maintain affordable housing by

maximizing the use of Section 8 vouchers or other forms of governmental rent payment in the

City . . . . It was further contemplated that there would be other positive effects, such as reducing

the level of homelessness and all the dislocation of families in the city.”).

2. The NYSHRL Rationally Relates to Legitimate Legislative Purposes

The State Legislature similarly has expressly announced that discrimination inter alia in

housing “not only threatens the rights and proper privileges of its inhabitants but menaces the

institutions and foundation of a free democratic state and threatens the peace, order, health,

safety and general welfare of the state and its inhabitants.” N.Y. Exec. Law § 290(3). As the

Court of Appeals has observed, the NYSHRL reflects “[t]he State’s strong and important public

policy against discrimination,” New York Inst. of Tech. v. State Div. of Human Rights, 40 N.Y.2d

316, 324 (1976), and expressly provides that “[e]xceptions to and exemptions from the

provisions of this article shall be construed narrowly in order to maximize deterrence of

discriminatory conduct.” N.Y. Exec. Law § 300.

In drafting rules implementing the State SOI law, the State legislature noted, moreover, that

the NYSHRL “provided critical protections for low-income New Yorkers seeking stable housing,”

and that “[p]roperty owners who turn away housing assistance recipients exacerbate the problem of

homelessness in our state and undermine the programs that the state administers to provide stable

and affordable housing to New Yorkers.” Senate Bill S427A, Sponsor Memo (Jan. 6, 2021),

available at https://www.nysenate.gov/legislation/bills/2021/S427.

also help us in our efforts to continue to prevent homelessness, which is at a record high.”) (see Merjian Aff. Ex.
C).

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In short, eliminating discrimination and countering the de-stabilizing and deleterious

effects of homelessness represent axiomatic legitimate governmental purposes. See, e.g., Heart

of Atlanta, 379 U.S. at 245; Cmty. Hous. Improvement Program, 59 F.4th. at 556; see also 74

Pinehurst LLC, 59 F.4th 557 at 569; Rent Stabilization Ass’n of N.Y. City v. Higgins, 83 N.Y.2d

156, 174 (1993) (finding a “close causal nexus” between a rent stabilization law’s tenant-

protective provisions and the goal of neighborhood stability, because “[p]eople who would,

absent the regulations, be threatened with eviction from their homes may now have the right to

remain”). The SOI Laws rationally relate to these purposes.3

C. Defendants Unequivocally Have Not Been Deprived of the “Economically
Viable Use” of Their Property

Defendants assert that they have been deprived of their “right to the economically viable

use of their real property.” Br. at 5. Defendants have suffered no such deprivation, instead

relying on an imaginary “right” speculatively to protect against a hypothetical scenario in which

CityFHEPS loses future funding—a scenario Defendants have no basis to conclude will ever

happen, and that Defendants had no basis to conclude would happen at the relevant time, i.e., at

the time of Ms. Olivierre’s applications. In fact, many months later, no such event has occurred.

With a full housing subsidy from CityFHEPS, Ms. Olivierre unequivocally was financially

viable and had the ability to pay the full rent, the same as a financially qualified applicant

3
Defendants also insinuate, through footnoted case parentheticals, that the SOI Laws “constitute a per se physical
taking” or are impermissible “regulation[s] of the relationship between landlords and tenant.” See Def. Br. at 11,
n. 19 (citing Seawall Assocs. v. City of New York, 74 N.Y.2d 92, 104 (1989) and Yee v. City of Escondido, 503
U.S. 519, 528 (1992)). These arguments border on frivolous, as revealed by even a cursory reading of
Defendants’ cases. Both Seawell and Yee involved arguments that owners did not want to rent their properties in
the first place but were being required to do so. In both cases, the courts distinguished the regulations in question
from, e.g., “[t]he rent-control and other landlord-tenant regulations that have been upheld by the Supreme Court”
in that those permissible regulations “involved restrictions imposed on existing tenancies where the landlords had
voluntarily put their properties to use for residential housing.” Seawell, 74 N.Y.2d at 105; see also Yee, 503 U.S.
at 527–28 (distinguishing challenged regulation from situations where a party “voluntarily rented their land” and
where the laws at issue “merely regulate petitioners’ use of their land by regulating the relationship between
landlord and tenant.”). Defendants, of course, voluntarily rented their properties. Seawell and Yee are thus
inapposite, and any argument that the SOI Laws constitute “per se physical taking[s]” should be squarely rejected.

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without a voucher, as evidenced by the fact that Defendants received and continue to receive full

market rent for her apartment.

Defendants also misleadingly allege that they have been “mandate[d]” to participate in

CityFHEPS “while simultaneously depriving them of the right” to assess the financial viability

of CityFHEPS and its participants when they apply for an apartment. See Br. at 10–11. But

Defendants have not been “mandated” to participate in CityFHEPS—as they would have been,

for example, if they had been forced to accept a CityFHEPS voucher for below-market rent, or to

rent an occupied apartment or an apartment otherwise not available for rent. This did not

happen. This Court simply mandated that Defendants comply with the law, i.e., to refrain from

imposing an unjustified and discriminatory minimum-income requirement upon an individual

with a full housing voucher who is thus not responsible for paying any of the rent out of her

income—a categorical exclusion of CityFHEPS voucher holders like Ms. Olivierre. See

Decision & Order at 8 (“[I]f every landlord enforced minimum income requirements in this

fashion, the spirit of source of income discrimination law would be subverted and rendered

meaningless.”); id. at 4 (“[Ms. Zuiderveen] surmises that with Parkchester’s $62,000 minimum

income requirement, it would be impossible for Olivierre, or any CityFHEPS ‘To Move’ voucher

recipient, to secure a new apartment from Parkchester.”). Defendants’ preference to the contrary

does not create a cognizable deprivation.

The only conceivable injury would arguably have been if Defendants had not been

allowed to assess the financial viability of Ms. Olivierre’s application at the time of her initial

application. This did not occur, for Ms. Olivierre was entirely capable of paying the full rent at

the time of her application through her CityFHEPS voucher and provided that information to

Defendants in her rental application. That is uncontrovertibly the case here, where for many

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months after this Court entered the PI, Defendants have consistently received the full rent from

the City of New York.

Defendants argue that this injury is “neither remote nor speculative” but rather “the

dangers are real, present, and actually happened in Zheng v. City of New York, 19 N.Y.3d 556,

564 (2012).” Br. at 11. This is semantic alchemy: the CityFHEPS program’s collapse has not in

fact “actually happened”; Defendants are referring to an unrelated program. CityFHEPS’

potential for collapse upon the entry of the PI was as purely speculative then as it is now (after

the relevant period of inquiry). All Zheng demonstrates, moreover, is that one entirely distinct

program, under different circumstances, ended. Zheng does not and cannot establish the

likelihood that other housing subsidies will fold. As noted, moreover, an applicant without a

voucher could lose their job at any given moment, moments after securing approval through

Defendants’ screening process, losing the ability to pay rent—a no less speculative scenario.

Finally, Defendants misleadingly warn that “when CityFHEPS fails to remit a payment

. . . Defendants may only pursue legal remedies against Plaintiff.” Br. at 14 (emphasis added).

This is entirely speculative, for the “when” is plainly “if.” It was thus at the time this Court

entered the PI and it remains so. Of equal importance, when a qualified applicant without a

voucher loses their job after the relevant screening period—i.e., after Defendants apply their

screening criteria and accept the applicant—Defendants are unable to pursue a legal remedy

against anyone.4 In each case, when the qualified applicant loses the means of payment that was

4
Defendants are correct that for Section 8 voucher holders, there is a separate contract between the administering
agency and the landlord. See Br. at 6 n. 10. However, the “Housing Assistance Payments” or “HAP” contract in
question specifically provides that the agency can terminate the contract if “available program funding is not
sufficient to support assistance for families in the program.” Standard HAP Contract at Section 4(b)(5), available
at https://www.hud.gov/sites/documents/DOC_11737.PDF. There is thus no practical difference between
CityFHEPS and Section 8 in Defendants’ right to recuperate rent should funding terminate.

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present at the time application, Defendants may be left without recourse to recover rent.

Defendants have failed to establish any deprivation of their rights.5

D. Every Other Court and Human Rights Agency to Address This Issue Has
Similarly Concluded That It Is Illegal to Reject an Applicant With a Full
Voucher for Insufficient Income

The SOI Laws as applied are not only constitutional, but as demonstrated, every other

court and human rights agency to examine the issue has similarly concluded that it is illegal to

reject an applicant with a full subsidy based upon minimum income requirements. See P. Mem.

at 8–16 (examining numerous court and human rights agency pronouncements on this issue).

CONCLUSION

For the foregoing reasons, this Court should deny Defendants’ motion to dismiss.

Dated: April 26, 2023
New York, NY

By: __/s/________________________

EMERY CELLI BRINCKERHOFF
ABADY WARD & MAAZEL LLP
Diane L. Houk
Eric Abrams
600 Fifth Avenue, 10th Floor
New York, New York 10020
(212) 763-5000

HOUSING WORKS, INC.
Armen H. Merjian
81 Willoughby Street, 5th Floor
Brooklyn, NY 11201
(718) 408-6502

Attorneys for Plaintiff Keishe
Olivierre

5
For this reason, Defendants lack standing to bring this challenge, a challenge that is also unripe. It is important,
however, to nip this unfounded challenge in the bud, so Ms. Olivierre will not advance those arguments here.

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CERTIFICATION OF WORD COUNT COMPLIANCE

I hereby certify that the word count of this Memorandum of Law complies with the word

limits of 22 New York Codes, Rules and Regulations § 202.8b(a)(2). According to the word

processing system used to prepare this Memorandum of Law, the total word count for all printed

text exclusive of the material omitted under 22 N.Y.C.R.R. § 202.8-b(b) is 4,192 words.

/s/

Eric Abrams

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Case Info

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Richard G. Latin Track Judge’s New Case

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Document Filed Date

April 26, 2023

Case Filing Date

July 11, 2022

County

Parties

City of New York Non Party
Emery Celli Brinckerhoff Abady Ward & Maazel LLP Attorney for the Plaintiff
GOODMAN, CAROL M Attorney for the Defendant
HEIGHINGTON, ANDREW RYAN Attorney for the Defendant
HOUK, DIANE L. Attorney for the Plaintiff
HOUSING WORKS, INC. Attorney for the Plaintiff
Keishe Olivierre Plaintiff
MATZA-BROWN, DANIEL Attorney
MULLER, JENNIFER MORGAN Attorney for the Defendant
MURDUKHAYEVA, ESTER Attorney
NEWMAN, JARED DAVID Attorney for the Defendant
Office of the Attorney General, State of New York Non Party
Parkchester Preservation Company, L.P. Defendant
Parkchester Preservation Management, LLC Defendant
PRAKASH, SWATI ROOPA Attorney
ARNOLD MANDELL Attorney
JARED DUJACK Attorneys for Defendants
ARMEN MERJIAN Attorneys for Defendants
ERIC ABRAMS Attorneys for Defendants
Deborah Newman Attorney
TEJ PRAKASH Attorneys for Plaintiffs

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Motion-Secondary: Keishe Olivierre v. Parkchester Preservation Company, L.P., Parkchester Preservation Management, Llc

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