Burris v. Housing and Services Inc. et al

Filing 121

MEMORANDUM OPINION AND ORDER re: 102 MOTION for Summary Judgment . filed by Housing and Services Inc.. The Court has considered all the arguments of the parties. To the extent not specifically addressed above, the arguments are either moot or without merit. For the foregoing reasons, the defendant's motion for summary judgment is granted in part and denied in part. The Clerk is directed to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 2/13/2023) (ks)

Case 1:17-cv-09289-JGK-RWL Document 121 Filed 02/13/23 Page 1 of 34

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHIRLEY BURRIS,
17-cv-9289 (JGK)
Plaintiff,
MEMORANDUM OPINION
AND ORDER

- against HOUSING AND SERVICES INC., ET AL.,
Defendants.
JOHN G. KOELTL, District Judge:

The plaintiff, Shirley Burris, brought this action against
the defendants, Housing and Services, Inc.

("HSI"), Sara Stolfi,

James Dill, and Ethan Jamron, alleging various federal and state
law claims arising out of the plaintiff's eviction and
subsequent related proceedings. The plaintiff initially
proceeded prose but is now represented by counsel. In a
Memorandum Opinion and Order dated March 18, 2019, this Court
dismissed most of the plaintiff's federal and state law claims
and dismissed two individual defendants, Dill and Jamron, from
this case, but did not dismiss the plaintiff's claims of
discrimination and retaliation against HSI and Stolfi in
violation of the Americans with Disabilities Act ("ADA), 42
U.S.C. § 12101 et seq., the Fair Housing Act ("FHA"), 42 U.S.C.
§

3601 et seq., and the Rehabilitation Act, 29 U.S.C.

seq. Burris v. Hous.

&

§

701 et

Servs. Inc., No. 17-cv-9289, 2019 WL

1244494, at *9 (S.D.N.Y. Mar. 18, 2019). The defendants now move

Case 1:17-cv-09289-JGK-RWL Document 121 Filed 02/13/23 Page 2 of 34

for summary judgment pursuant to Federal Rule of Civil Procedure
56 seeking dismissal of those remaining claims. For the
following reasons, the defendants' motion for summary judgment
is granted in part and denied in part.

I.

The following facts are based on the parties' Local Civil
Rule 56.l statements and supporting papers and are undisputed
unless otherwise noted. See Defendants' Rule 56.1 Statement, ECF
No. 106 ("Defs.' 56.1"); Plaintiff's Rule 56.1 Counterstatement,
ECF No. 113 ("Pl.' s 56.1").
HSI is a non-profit agency that provides "scatter-site
housing to individuals and families with an HIV diagnosis."
Defs.' 56.1 1 1. Those individuals are referred to HSI by the
New York City Human Resources Administration ("HRA") through its
HIV/AIDS Services Administration ("HASA") program. Id. HSI
contracted with HRA to administer a "permanent scatter-site
supporting housing program for Persons Living With AIDS
(hereinafter "PLWAs") by operating 100 scatter-site housing
units for clients referred by HASA." Id. 1 2. The contract
between HSI and HRA "sets forth the duties and obligations of
the parties with respect to HSI's provision of scatter-site
housing services." Id. 1 3. HRA and HASA's Housing Services Unit
issue a "Desk Guide for its Supported Housing Programs" in order

2

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to provide further guidance to housing providers with whom HRA
and HASA have contracted. Id. I 5; see also ECF No. 104-2 ("Desk
Guide") .
Stolfi is the Program Manager of HSI's Scatter Site I
Housing Program, and is responsible for "oversight of the
program, supervision of staff, mediat [ion]

[of] any issues that

may come up with[in] the program and provi[sion]

[of] some

direct services as well." Defs.' 56.1 I 6.
To qualify for an HSI-provided housing unit, individuals
approved for HASA services must apply for housing in HASA's
"Permanent Supported Housing Program." Id. I 7. The individual
must be a client of HRA's HASA Program, be referred by the HASA
Housing Unit, need supportive housing services, and be able to
function independently and self-sufficiently, both socially and
financially.

Id. I 8. Once an individual is approved for the

Permanent Supported Housing Program, the Housing Unit links that
individual to an available housing unit vacancy by referring the
client's application to a contracted housing provider. Id. I 9.
HSI, a contracted provider, leases the apartments that are part
of its scatter-site housing program in its own name to allow
individuals and families to remain anonymous, and "pays the rent
for the units it leases" while seeking reimbursement from
HRA/HASA for its portion of rent paid. Id. I 10-11.

3

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After HSI contracted with HRA/HASA, HSI took over the lease
for a New York City apartment (the "132 Street Apartment") "for
occupancy by an eligible HASA client." Id.

'II

12. In June 2012,

HASA referred "AB," a program participant, to HSI for housing
assistance, and HSI subleased the 132 Street Apartment to AB.
Id.

'II'II

13-14. AB was joined in the apartment by the plaintiff

and the plaintiff's minor child. Id.

'II

15. HSI subleased the

apartment to AB from June 2012 to August 2016. Id.

'II

16. HSI

leased three other apartments in the same building during that
time period, but in 2016, HSI began vacating all four units that
it leased in the building. Id.

'II

17. The leases were not rent-

stabilized, and "over the years, the building raised rents 'very
significantly.'" Id.

'II

18.

On April 10, 2015, HSI "entered its final lease for" the
132 Street Apartment, from June 1, 2015 to May 31, 2016. Id.
'II

19. The plaintiff disputes this, responding that "after May

31, 2016, HSI continued to lease the apartment .
to-month basis." Pl.'s 56.1

'II

. on a month-

19. HSI contacted AB to discuss

relocation options, "including whether [AB, the plaintiff, and
the plaintiff's child] were going to move together as a family
unit or move separately." Defs.' 56.l

'II

20. HSI suggested to AB

an apartment in the Bronx that was available for lease under the
HASA program and that could house AB, the plaintiff, and the
plaintiff's child. The plaintiff wanted HSI to move AB out of
4

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the 132 Street Apartment while allowing the plaintiff and her
son to remain in that apartment, but was told that HSI could not
do so because the plaintiff did not qualify for HASA. Id.

~~

21-

22. Neither the plaintiff nor the plaintiff's child are HASA
program participants, nor are they eligible to be participants
because they are not PLWAs. Id.

~

23.

On June 27, 2016, while the plaintiff and her son were
still living with AB, the plaintiff filed a complaint ("NYSDHR
Complaint") in the New York State Division of Human Rights
("NYSDHR"). Id.

~

25.

In the NYSDHR Complaint, the plaintiff

claimed that HSI "refused to rent, sell or deal with" the
plaintiff and therefore "discriminated in the conditions or
terms of sale, rental occupancy, or in services or facilities
due to her family status." Id.

~

29.

The plaintiff requested housing assistance from HSI,
claiming that AB's "behavior can get out of control," but was
told that HSI could not help her relocate from AB because the
plaintiff was not an HASA client. Pl.'s 56.l

~

26. The plaintiff

wanted to rent another apartment in the same building, but
Jamron, the building's Property Manager, allegedly "did not give
her an application and told [the]
the keys." Defs.' 56.1

~

[p]laintiff she could not have

27. The plaintiff disputes this, citing

her testimony that when she spoke to Jamron, he told the
plaintiff that he "was waiting to get the keys back .
5

. for

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the apartments that were empty downstairs in the basement, and
he will get back to me. I left messages after he told me that.
He never returned my call." Pl.'s 56.1 ! 27.
On July 26, 2015, the plaintiff filed a temporary order of
protection against AB. Defs.' 56.1 ! 30. After the order was
issued, AB told HSI that she wanted to move out of the 132
Street Apartment on her own, without the plaintiff. Id. ! 31.
On August 3, 2016, HSI responded to the NYSDHR Complaint,
"explaining that AB was in the process of relocating to another
unit within HSI's scatter site program," and that because AB
"was choosing to separate her public assistance case and move as
an individual without" the plaintiff, the plaintiff and her son
did not qualify for HASA housing assistance and HSI could not
help the plaintiff and her son relocate. Id. ! 32.
On August 18, 2016, AB moved out of the 132 Street
Apartment. Id. ! 33. HSI then relocated AB to another apartment
on 139 Street (the "139 Street Apartment"). Id. ! 34. The
plaintiff and her son remained in the 132 Street Apartment. Id.

! 35.
After AB moved out of the 132 Street Apartment, the
plaintiff called AB, and AB later returned her call informing
the plaintiff that Stolfi "gave [AB] a packet to give to [the
plaintiff]." Id. ! 36. The packet contained "resources for
rental assistance, including information on" several rental
6

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assistance programs, and a note to the plaintiff to "Call
[Stolfi] if you have any questions." Id. 'II 37. The plaintiff did
not call Stolfi. Id. 'II 44. The plaintiff alleges that she did
not call Stolfi because the plaintiff "was scared of her." Pl.'s
56.l 'II 44. The plaintiff claims that she "was scared to speak to
the agency because they did nothing to help [her] out" and that
when the plaintiff "got the paperwork from the courts,

[she] did

reach out to [Stolfi]," and left Stolfi a message, but "[Stolfi]
never returned [the plaintiff's] call." Id.
HSI contends that it only provides housing assistance for
families through its Scatter Site Program under HASA, and
because the plaintiff and her son sought housing as a family and
were not HASA-eligible, "they did not qualify for any programs
administered by HSI." Defs.' 56.1 'II 38. The plaintiff disputes
this, claiming that "as family members on the budget of a HASA
client,

[the plaintiff] and her child qualified for rehousing

assistance" as required by the Desk Guide, which provides that
HSI must "aggressively work toward rehousing non-HASA eligible
individuals" and "must assist individual(s) to move, within six
months of client's death/departure, either by having the lease
assigned from [HSI]'s Program to the individual him/herself
. or seeking alternate housing at a rent the individual can
afford." Pl.'s 56.1 'II 38; ECF No. 104-2.

7

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HSI states that, under its contract with HRA, "its case
management services includ[e] providing various referrals as
opposed to direct services." Defs.' 56.l I 39. Because HSI does
not have in-house services, such as "mental health counseling,
psychiatric treatment, legal services or substance abuse
counseling," HSI would instead connect its clients with other
community organizations that provide those services. Id. I 40.
HSI states that "[t]his is equally true of housing placement
services," because "HSI does not have access to housing outside
of its programs, nor [does it] have in-house housing search
services or access to housing search programs." Id. I 41.
Instead, HSI "would refer individuals to community organizations
with expertise in the area locating housing," but was not
otherwise "familiar with [the] various resources identified in
the packet provided to [the]

[p]laintiff, rendering HSI unable

to provide additional assistance." Id. I 42.
On August 30, 2016, HSI served the plaintiff with a "10-Day
Notice to Vacate Premises." Id. I 45. On August 31, 2016, HSI
sent HRA/HASA a report stating that AB had relocated from the
132 Street Apartment to the 139 Street Apartment "due to family
conflict and landlord issues," that "AB's daughter and grandson
remain at the [132 Street Apartment] and were provided referrals
to family housing programs," and that "HSI has started an
eviction process against [the plaintiff and her son] due to
8

Case 1:17-cv-09289-JGK-RWL Document 121 Filed 02/13/23 Page 9 of 34

their apparent plan to remain in the" 132 Street Apartment. Id.

! 46. The plaintiff did not vacate the apartment after receiving
the 10-Day Notice. Id. ! 47.
On September 22, 2016, HSI began a "licensee holdover
proceeding" by serving on the plaintiff a "Notice of Petition
and Petition." Id. ! 47. During the holdover proceeding, the
plaintiff stated, through an attorney for Manhattan Legal
Services, that "she and her son were eligible to remain in the
unit" and that she qualified to be in the building. Id. ! 48-50.
The defendants claim that the plaintiff "never once spoke to the
landlord about leasing the [132 Street Apartment] herself," id.

! 51, but the plaintiff disputes this, alleging that Jamron
"didn't return my call," and Stolfi "told me I could not be in
the unit because I was not a HASA client." Pl.'s 56.l ! 51.
Around September or October 2016, Stolfi told the plaintiff by
phone that the plaintiff did not qualify to stay in the
apartment, which the defendants contend that the plaintiff
acknowledged. The plaintiff disputes this, claiming that she had
called and left multiple messages for Stolfi, but Stolfi had
never returned her calls. Pl.'s 56.1 ! 53.
In November 2016, the plaintiff applied for Section 8
housing through NYCHA with the assistance of Harlem Independent
Living Center, for which the plaintiff is still on the waiting

9

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list. Id. II 54-56. The plaintiff also applied for an apartment
in a building called "The Balton." Defs.' 56.1 I 57.
Unlike HSI, Harlem Independent Living Center "was approved
to submit supportive housing applications to HRA." Id. I 58. The
plaintiff began "the process of submitting a supportive housing
application with Harlem Independent Living Center but could not
recall whether she ever completed the process." Id. I 60.
In November 2016, the plaintiff contacted the New York City
Department of Health

&

Mental Hygiene for housing assistance and

was put in touch with "Visiting Nurse Services Care
Coordination." Id. I 61. On December 2, 2016, the plaintiff
enrolled in the "Visiting Nurse Service of New York Health Home"
and was assigned a Care Manager who assisted the plaintiff with
her housing needs. Id. I 62. The Visiting Nurse Service of New
York also helped the plaintiff to complete her supportive
housing application. However, the plaintiff "could not recall
whether that application was ever completed or submitted." Id. I
63.
The plaintiff also contacted other agencies for assistance.
Id. II 64-66. While the plaintiff was seeking housing assistance
from those other agencies, the plaintiff "was still advocating
to remain" in the 132 Street Apartment. Id. I 68.
On April 27, 2017, the parties reached a settlement in the
holdover proceeding, which provided that the plaintiff agreed to
10

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vacate the 132 Street Apartment by September 30, 2017. Id. 'lI 69.
In May 2017, HSI sent the plaintiff a letter with information
about "NYC housing assistance resources available for low-income
families" and offered "to assist [the plaintiff] with pursuing
this resource for rehousing as soon as possible." Id. 'lI 70. The
letter included a list of brokers, realtors, and landlords
prepared by the HRA to help clients find apartments. On August
9, 2017, HSI sent a second letter to the plaintiff, which was
returned to HSI as "Unclaimed" and "Unable To Forward." Id. 'lI
72.
On May 16, 2017, HRA asked Stolfi about the status of the
132 Street Apartment, including why it was listed as "in
transition." Id. 'lI 75. Stolfi responded:
This apartment was previously occupied by AB, who was
transferred to another unit and then to our congregate program
because of a potentially violent and volatile situation
between her and her adult daughter in the home and her need
for a higher level of care. Her adult daughter and grandson
remain in the apartment and have refused to move despite our
efforts to refer her for family housing. We have been involved
in a lengthy housing court case to move them along ever since,
which she has fought all along the way. We finally were able
to get a stipulation for the family to move out by 9/30/17.
Id. 'lI 76. HRA/HASA then asked about HSI's efforts to relocate
the plaintiff and her son, to which HSI responded that "it no
longer had a lease for" the 132 Street Apartment and that "the
building owner did not want to lease directly to [the
plaintiff]." Id. 'lI 77-78. HSI also told HRA/HASA that it had

11

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provided the plaintiff with a broker list and sent the plaintiff
two letters with information on rental assistance programs. HRA
continued to reimburse HSI for the rents that HSI paid on the
132 Street Apartment while the plaintiff and her son lived
there, pending their relocation "by eviction or otherwise." Id.
'I[

82. HRA "advised HSI of its expectation" that HSI would evict

non-HASA clients after the departure of an HASA client from an
apartment if the family members of that client "do not
demonstrate an intention to vacate the unit, for example by
pursuing the referrals provided by [HSI]." Id. 'I[ 83.
On November 22, 2017, the plaintiff filed this action. On
June 29, 2018, the plaintiff filed an amended complaint. ECF
No. 36. The defendants moved to dismiss the amended complaint,
which motion was granted in part and denied in part. ECF No. 60.
On May 2, 2022, the parties completed discovery, and the
defendants filed the current motion for summary judgment shortly
thereafter.
The plaintiff argues that HSI was required to provide her
with more substantial relocation assistance, but failed to do so
because of her disability, and therefore discriminated against
her in violation of the ADA, the Rehabilitation Act, and the
FHA. The plaintiff also argues that the defendants retaliated
against her for filing a complaint of discrimination with the
NYSDHR, in violation of those same statutes.
12

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II.
The standard for granting summary judgment is well
established. "The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(a). The moving party bears the initial burden
of "informing the district court of the basis for its motion"
and identifying the materials in the record that "it believes
demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . 1 At the
summary judgment stage, the court must resolve all ambiguities
and draw all reasonable inferences against the moving party. See
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). "Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

If the moving

party meets its burden, the nonmoving party must produce
evidence in the record and "may not rely simply on conclusory
statements or on contentions that the affidavits supporting the

1

Unless otherwise noted, this Memorandum Opinion and Order
omits all internal alterations, citations, footnotes, and
quotation marks in quoted text.
13

Case 1:17-cv-09289-JGK-RWL Document 121 Filed 02/13/23 Page 14 of 34

motion are not credible." Ying Jing Gan v. City of New York,

996

F.2d 522, 532 (2d Cir. 1993)
III.

The plaintiff brings claims for discrimination on the basis
of disability in violation of the ADA, the Rehabilitation Act,
and the FHA. On a motion for summary judgment, claims for
intentional discrimination under the ADA, the Rehabilitation
Act, and the FHA are analyzed under the familiar McDonnell
Douglas burden-shifting framework.

See Reg'l Econ. Cmty. Action

Program, Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir.
2002), superseded by statute on other grounds, ADA Amendments of
2008, Pub. L. No. 110-325, 122 Stat. 3553. Under the McDonnell
Douglas framework, the plaintiff must first establish a prima
facie case of discrimination. Id.; see also McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802

(1973). "If the plaintiff[]

make[s] out a prima facie case, then the burden of production
shifts to the defendant to provide a legitimate,
nondiscriminatory reason for its decision. Reg'l Econ. Cmty.
Action Program, 294 F.3d at 49. If the defendant satisfies this
burden, then the burden shifts back to the plaintiff to show
that the defendant's "articulated, legitimate, nondiscriminatory reasons were pretextual." Id.

14

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A.

The defendants argue that HSI is not a public entity within
the meaning of the ADA and therefore is not subject to the ADA.
Title II of the ADA provides that "no qualified individual with
a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132. To bring
a claim under Title II of the ADA, the plaintiff must show that:
(1) she is a qualified individual with a disability,

(2) the

defendants are subject to the ADA, and (3) she was denied the
opportunity to participate in or benefit from the defendants'
services or was otherwise discriminated against by the
defendants because of her disability. Henrietta D. v. Bloomberg,
331 F.3d 261, 272 (2d Cir. 2003).
The plaintiff does not dispute that HSI is not a public
entity within the meaning of the ADA. Pl.'s Opp., ECF No. 112,
at 3 n.l. Therefore, the plaintiff's ADA claims are dismissed
because the defendants are not subject to Section 12132 of the
ADA.
B.

The defendants next move for summary judgment on the
plaintiff's claim of discrimination under the Rehabilitation
Act. Individuals cannot be held liable under the Rehabilitation

15

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Act. See J.L. on behalf of J.P. v. N.Y.C. Dep't of Educ., 324 F.
Supp. 3d 455, 467 n.4

(S.D.N.Y. 2018). Accordingly, the

plaintiff's Rehabilitation Act claims can only be asserted
against HSI.
Section 504 of the Rehabilitation Act provides that "[n]o
otherwise qualified individual with a disability .

shall,

solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance." 29 U.S.C. § 794(a). The standard for
Rehabilitation Act claims is "generally the same" as for ADA
claims, and requires the plaintiff to show that (1) she is a
qualified individual with a disability,
subject to the Rehabilitation Act,

(2) the defendant is

(3) she was denied the

opportunity to participate in or benefit from the defendant's
services or was otherwise discriminated against by the defendant
because of her disability, and (4) the defendant receives
federal funding. See Shomo v. City of New York, 579 F.3d 176,
185 (2d Cir. 2009); see also Henrietta D., 331 F.3d at 272
("[U]nless one of those subtle distinctions [between the ADA and
the Rehabilitation Act] is pertinent to a particular case, we
treat claims under the same two statutes identically.") . 2 On a

In this case, although the defendants argue that HSI is
not a public entity within the meaning of the ADA, the
2

16

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motion for summary judgment, the plaintiff's burden to establish
her prima facie case is de minimis. See Duprey v. Prudential
Ins. Co. of Am.,

910 F. Supp. 879, 884

(N.D.N.Y. 1996);

Schneider v. Wal-Mart Stores, Inc., No. 16-cv-2010, 2019 WL
294309, at *4 (S.D.N.Y. Jan. 23, 2019). HSI does not claim that
it is not subject to the Rehabilitation Act or contest that the
plaintiff's mental illness qualifies her as an individual with a
disability. The parties contest only whether the plaintiff was
denied the opportunity to benefit from HSI's services on the
basis of the plaintiff's mental illness.
The plaintiff argues that HSI discriminated against her
based on her mental illness by not following an HASA policy,
codified in the Desk Guide, that applies to "[a]ny individual
who is not a HASA client and continues to reside in the
apartment/unit after the HASA client is no longer in residence."
Desk Guide, ECF No. 104-2, at 14. The Desk Guide provides:
Failure of the Provider to aggressively work toward
rehousing non-HASA eligible indi victuals will result in a
disallowance of any further payments on the apartment as of
the sixth month following the death/departure of the HASA
client.
defendants have not contested that HSI receives federal funding
to operate its housing assistance program. Therefore, there is a
"subtle distinction" that allows HSI to be held liable under the
Rehabilitation Act while it cannot be held liable under the ADA.
Henrietta D., 331 F.3d at 272; see also Logan v. Matveevskii, 57
F. Supp. 3d 234, 254 (S.D.N.Y. 2014) ("[O]ne of the primary
differences between [the ADA and the Rehabilitation Act] is that
the Rehabilitation Act applies only to federally-funded
programs.") .
17

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•

All efforts to rehouse individuals in this category
must be clearly documented.

Provider must assist individual(s) to move, within six
months of client's death/departure, either by
• having the lease assigned from the Provider's
Program to the individual him/herself and find
other means to pay the rent (e.g., PA shelter
allowance); or
• seeking alternate housing at a rent the individual
can afford.
Id. HSI argues that it provided the plaintiff with sufficient
relocation assistance by providing the plaintiff, through AB,
with a packet of information about housing and rental assistance
including information on several rental assistance programs, and
a note to the plaintiff to "Call [Stolfi] if you have any
questions." Defs.' 56.l

t 37. HSI also claims to have sent the

plaintiff two letters, one of which contained a list of brokers,
realtors, and landlords intended to help the plaintiff find a
new apartment, and the other of which was returned as
undelivered.
The plaintiff contests the sufficiency of HSI's efforts to
provide her with relocation services, as required by the Desk
Guide. First, the plaintiff argues that the housing assistance
programs recommended by HSI were insufficient because the
plaintiff was not eligible for those services. Second, the
plaintiff claims that she called Stolfi for further help, but
Stolfi did not return the plaintiff's calls nor respond to the
plaintiff's voicemails. Pl.'s 56.l
18

t 44. On a separate occasion,

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the plaintiff also claims that Stolfi never returned her calls
despite the plaintiff's having left "more than five" messages.
Pl.'s 56.1 1 53. Finally, the plaintiff challenges the method of
delivery of the initial packet provided by HSI, because HSI left
the packet with AB to give to the plaintiff despite knowing of
the significant tension in the relationship between AB and the
plaintiff.
The plaintiff also argues that HSI treated the plaintiff
disparately relative to other similarly situated individuals.
Specifically, the plaintiff claims that "HSI has failed to
identify a single other instance where it began an eviction
process against a family member on a HASA client's budget within
even two months - let alone two weeks - as occurred here." Pl.'s
Opp. at 19. Disparate treatment is an accepted theory of
liability for Rehabilitation Act discrimination claims. See
Davis v. Shah, 821 F.3d 231, 259-60 (2d Cir. 2016)

("A plaintiff

may base her discrimination claim on one of three theories of
liability: disparate treatment, disparate impact, or failure to
make a reasonable accommodation."). The plaintiff points to
evidence that other individuals who lived with a family member
in HSI housing, and who did not otherwise qualify for HSI
housing, were given "5 weeks' notice to vacate" and did not have
holdover proceedings commenced against them "for five months,"
whereas the plaintiff was served with an eviction notice just
19

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two weeks after AB moved out of the 132 Street Apartment and,
within two months of being served with the eviction notice, HSI
commenced holdover proceedings against the plaintiff. Pl.'s 56.1
1 139. The factual dispute between the parties as to whether
HSI's efforts to re-house the plaintiff were sufficient,
compounded by evidence that other similarly situated individuals
were not evicted with such rapidity, suffices to state the
plaintiff's prima facie case. See Burris, 2019 WL 1244494, at *6
(finding, on the motion to dismiss in this case, that the
plaintiff had satisfied her prima facie case by alleging that
"she is qualified to receive the benefit of the HASA policy
relating to relocation assistance but did not receive it because
of her disability," and that "she was not provided a service to
which she was entitled - a service that is provided to all
individuals, disabled or not - because of her disability").
The burden then shifts to HSI to articulate a legitimate,
non-discriminatory reason for the plaintiff's eviction and its
allegedly insufficient efforts to re-house the plaintiff. The
most obvious reason, and the one HSI articulates, is that the
plaintiff was not entitled to remain in the 132 Street Apartment
because she was not an HASA-eligible individual, and that HSI
"provided the services it could" to the plaintiff. See Defs.'
Memo. at 16. However, the plaintiff has adduced evidence that
HSI accelerated the timeline for eviction in the plaintiff's
20

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case relative to other similarly situated non-HASA eligible
individuals. Moreover, the plaintiff has contested the
sufficiency of HSI's efforts to re-house her, claiming that
Stolfi never returned any of the plaintiff's calls, despite
Stolfi's invitation, and that Stolfi did not give the initial
packet of housing assistance information directly to the
plaintiff. Although this evidence comprised the plaintiff's
prima facie case of intentional discrimination, the plaintiff
does not have to adduce additional information to defeat summary
judgment at the pretext stage, and may instead "rely on evidence
comprising her prima facie case.ll See Zann Kwan v. Andalex Grp.
LLC, 737 F.3d 834, 847

(2d Cir. 2013)

(Title VII retaliation).

Given this evidence, a reasonable jury could conclude that HSI's
stated nondiscriminatory reasons for its decisions were
pretextual.
Ultimately, the question of whether HSI intentionally
discriminated against the plaintiff by inadequately helping the
plaintiff with housing relocation creates a genuine dispute of
material fact that precludes summary judgment for the defendants
on the plaintiff's Rehabilitation Act discrimination claim. A
reasonable jury could conclude that the defendants' efforts did
not satisfy sufficiently the requirement of the Desk Guide that
the defendants "aggressively work toward re-housing non-HASA
eligible individuals,ll and that the plaintiff was treated
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disparately on the basis of her mental illness in receiving
HSI's rehousing services. Accordingly, HSI's motion for summary
judgment on the plaintiff's Rehabilitation Act intentional
discrimination claim is denied.
C.

The FHA makes it illegal "[t]o discriminate against any
person in the terms, conditions, or privileges of sale or rental
of a dwelling, or in the provision of services or facilities in
connection with such dwelling, because of a handicap of
that person." 42 U.S.C.

§

3604(f) (2) (A). The FHA allows for

claims to be brought against individuals. See Burris, 2019 WL
1244494, at *7. The defendants argue that the plaintiff's FHA
intentional discrimination claim must be dismissed because
relocation services do not constitute "terms, conditions, or
privileges of rental" within the meaning of the FHA. On a motion
for summary judgment, intentional discrimination claims under
the FHA are also analyzed under the McDonnell Douglas framework.
See Mitchell v. Shane, 350 F.3d 39, 47

(2d Cir. 2003).

In its ruling on the defendants' motion to dismiss in this
case, the Court considered, and rejected, the defendants'
argument that the relocation services provided for in the Desk
Guide do not constitute "terms, conditions, or privileges of

22

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rental." See Burris, 2019 WL 1244494, at *7. 3 The Court concluded
that "[h]olding otherwise

. would contravene Congress's

intent to root out discrimination in housing and to foster truly
integrated and balanced living patterns." Id. On their motion
for summary judgment, the defendants make this argument again,
but have not brought any new cases to the Court's attention that
call into question the Court's prior determination on this
issue. The defendants state that "in no case we could locate has
a Court interpreted privileges, services, or facilities to refer
to case management services provided as part of a supportive
housing program." Defs.' Memo. at 10-11. But the defendants also
do not cite any cases which hold squarely that "terms,
conditions, or privileges of rental" do not encompass the
relocation services that are provided for by the Desk Guide in

The opinion on the motion to dismiss in Burris relied on
Francis v. Kings Park Manor, Inc. ("Francis I"), 917 F.3d 109,
117-118 (2d Cir. 2019), which held that post-acquisition claims
- discrimination occurring after a plaintiff rents a dwelling are actionable under the FHA. Francis I was later vacated en
bane because of a separate issue in that case, distinct from
whether the FHA covered post-acquisition claims. See Francis v.
Kings Park Manor, Inc. ("Francis III"), 992 F.3d 67 (2d Cir.
2021). In Francis III, the majority opinion did not squarely
address whether, in light of the vacatur of Francis I, postacquisition claims remained actionable under the FHA. In a
concurrence in part and a dissent in part, Judge Lohier noted
that "[a]lthough the proposition that the FHA bans postacquisition discriminatory conduct in housing is beyond serious
dispute, the majority opinion merely assumes it," and that he
"would squarely hold that it does." Francis III, 992 F.3d at 8789 (Lohier, J., dissenting in part and concurring in part).
3

23

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this case. Instead, the defendants argue only that "terms,
conditions, or privileges of rentaln have been interpreted to
refer to "services generally provided by governmental units such
as police and fire protection or garbage collection,n and to
"apartment complex facilities, such as the swimming pool,
laundry equipment, club house, tennis courts and other
recreational areas.n Id. at 10. However, nothing about this
argument, nor the cases cited by the defendants, precludes
"terms, conditions, and privileges of rentaln from also
encompassing relocation services. Accordingly, the defendants'
argument is unpersuasive, and there is no reason to find that
housing relocation services are not covered by the FHA because,
at the very least, a reasonable jury could conclude that such
services are covered under the FHA.
The defendants also argue that the plaintiff has not made
out a prima facie case for discrimination under the FHA. An FHA
claim of intentional discrimination can be brought under one of
three theories: disparate treatment, disparate impact, or
failure to make a reasonable accommodation. Perricone-Bernovich
v. Tohill, 843 F. App'x 419, 420 (2d Cir. 2021). The plaintiff
proceeds on a theory of disparate treatment.

4

To state a prima

The plaintiff's FHA claim for failure to make a reasonable
accommodation was dismissed in this case on the earlier motion
to dismiss. See Burris, 2019 WL 1244494, at *8.
4

24

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facie case for disparate treatment under the FHA, the plaintiff
must show that:

( 1} she is a member of a protected class;

( 2}

she sought and was qualified to rent or purchase the subject
housing;

(3)

she was rejected; and (4) the housing opportunity

remained available to other prospective renters or purchasers.
Mitchell, 350 F.3d at 47. The defendants agree that, in the
context of the plaintiff's claim, the test is modified and the
plaintiff must show that:
class;

(2)

(1)

she is a member of a protected

she sought and was qualified for assistance

relocating;

(3)

she was denied that assistance; and (4) that

assistance was available to other individuals after the death or
departure of a HASA-client. Defs.' Memo. at 12.
The defendants do not contest the first two factors.
id. at 13 ("Assuming [the]

See

[p] laintiff' s mental illness makes

her a member of a protected class and that the Desk Guide
established that [she] was qualified for assistance relocating,
"}. The defendants argue only that the plaintiff "cannot
show [that] she was denied that assistance [relocating] or that
the assistance she claims she was denied was available to
others." Id.
Whether the defendants' efforts to assist the plaintiff
with relocating after AB moved out of the 132 Street Apartment
satisfied the requirement set forth in the Desk Guide that HSI
"aggressively work toward re-housing non-HASA eligible
25

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individuals," Desk Guide at 14, presents a genuine dispute of
material fact mirroring the plaintiff's claim for discrimination
under the Rehabilitation Act, and precluding summary judgment
for the defendants on the plaintiff's FHA claim. The plaintiff
has contested the sufficiency of the defendants' efforts to
relocate her and has adduced evidence showing that the plaintiff
experienced disparate treatment in comparison to HSI's efforts
to re-house other non-HASA eligible family members. Moreover, a
reasonable jury could conclude that any legitimate, nondiscriminatory reason proffered by the defendants'

for evicting

the plaintiff in this case was pretextual given the evidence
adduced by the plaintiff and the genuine issues of material fact
created by the plaintiff's adduced evidence. Accordingly, for
the same reasons that preclude summary judgment on the
plaintiff's Rehabilitation Act discrimination claim, the
defendants' motion for summary judgment on the plaintiff's FHA
discrimination claim is denied.

IV.
The defendants next move for summary judgment on the
plaintiff's claims of retaliation in violation of the
Rehabilitation Act and the FHA.
Retaliation claims under the Rehabilitation Act and the FHA
are governed by the McDonnell Douglas burden-shifting framework.
Dodd v. City Univ. of New York, 489 F. Supp. 3d 219, 246
26

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(S.D.N.Y. 2020)

(Rehabilitation Act); Johnson v. YWCA Residence,

LLC, No. 12-cv-3301, 2014 WL 12782728, at *4

(S.D.N.Y. 2014)

(FHA). The plaintiff bears the initial burden to make her prima
facie case by showing that:
protected activity;

(1) the plaintiff was engaged in

(2) the alleged retaliator knew that the

plaintiff was involved in protected activity;

(3) an adverse

decision or course of action was taken against the plaintiff;
and (4) a causal connection exists between the protected
activity and the adverse action. Natofsky v. City of New York,
921 F.3d 337, 353 (2d Cir. 2019)

(Rehabilitation Act); Reg'l

Econ. Cmty. Action Program, Inc., 294 F.3d at 53-54 (FHA) . 5 A
causal connection can be shown either "(1) indirectly, by
showing that the protected activity was followed closely by
discriminatory treatment, or through other circumstantial
evidence such as disparate treatment of fellow [individuals] who
engaged in similar conduct; or (2) directly, through evidence of
retaliatory animus directed against the plaintiff by the
defendant.n Natofsky, 921 F.3d at 353. The "plaintiff's burden
at this prima facie stage is de minimis.n Treglia v. Town of
Manlius, 313 F.3d 713,

719 (2d Cir. 2002).

Because the two statutes are governed by identical tests,
the Court will consider the plaintiff's retaliation claims under
both statutes together.
5

27

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On June 27, 2016, the plaintiff engaged in protected
activity by filing the NYSDHR Complaint. HSI responded to the
NYSDHR Complaint on August 3, 2016, by which time the defendants
must have known of the charge of discrimination against them.
Less than a month later, on August 30, 2016, HSI served the
plaintiff with a "10-Day Notice to Vacate Premises," commencing
eviction proceedings against the plaintiff. Defs.' 56.1

~

45.

The defendants argue that commencing eviction proceedings
against the plaintiff did not constitute an adverse action
because HSI's conduct did not cause the plaintiff to "change her
behavior" nor did it have any "chilling effect on [the]
[p]laintiff's willingness to assert" her rights under the FHA or
the Rehabilitation Act. Defs.' Memo. at 22. However, for
purposes of retaliation, an adverse action is any action that
would be sufficiently severe to deter a reasonable person in the
plaintiff's position from participating in a protected activity.
See Quadir v. N.Y. State Dep't of Labor, 39 F. Supp. 3d 528,
542-43 (S.D.N.Y 2014); see also Burlington N.
v. White, 548 U.S. 53, 68

(2006)

&

Santa Fe Ry. Co.

(holding, in the Title VII

context, that an adverse action is one that "dissuade[s] a
reasonable [individual] from making or supporting a charge of
discrimination"). Beginning eviction proceedings within a month
of the plaintiff's filing the NYSDHR Complaint is a sufficiently
adverse action that would deter a reasonable person from
28

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pursuing charges of discrimination. See Reyes v. Fairfield
Props., 661 F. Supp. 2d 249, 267 n.10 (E.D.N.Y. 2009)

(finding

that eviction proceedings constituted adverse actions under the
FHA); see also Desouza v. Park West Apartments, Inc., No. 15-cv1668, 2018 WL 2990099, at *11 (D. Conn. June 14, 2018)
(collecting cases)
constitute[s]

(" [I] nitiation of eviction proceedings

[an] adverse action[] under [the FHA]."). At the

very least, a reasonable jury could conclude that the eviction
constituted an adverse action. Therefore, the argument that
commencing eviction proceedings did not constitute an adverse
action is unpersuasive.
To establish the causation element of her prima facie case,
the plaintiff relies on the temporal proximity between the
filing of the NYSDHR Complaint and the service of the 10-Day
Notice to Vacate the 132 Street Apartment. "[A] plaintiff can
indirectly establish a causal connection to support a .
retaliation claim by showing that the protected activity was
closely followed in time by the adverse .

. action." Gorman-

Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d
545, 554 (2d Cir. 2001). In this case, the adverse action
occurred less than a month after the plaintiff's participation
in a protected activity, which is "sufficient to establish the
required causal link for a prima facie case." See Treglia, 313
F.3d at 721 (finding that temporal proximity of one month was
29

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sufficient); Dodd, 489 F. Supp. 3d at 247

("Generally, to show

causation through temporal proximity alone, courts in this
Circuit require no more than two months to have passed between a
protected activity and an adverse action."). In this case, the
"very close" temporal proximity is sufficient to establish
causation for the plaintiff's prima facie case.
Moreover, the defendants commenced eviction proceedings
just under two weeks after August 18, 2016, when AB moved out of
the 132 Street Apartment. Because the defendants had to wait
until AB vacated the apartment before commencing eviction
proceedings, the close temporal proximity between AB's departure
from the 132 Street Apartment and the commencement of eviction
proceedings against the plaintiff could lead a reasonable jury
to conclude that "the adverse action occurred at the first
actual opportunity to retaliate." Summa v. Hofstra Univ., 708
F.3d 115, 128 (2d Cir. 2013).
The defendants argue that the eviction could not have been
retaliatory because the plaintiff was told that she could not
remain in the 132 Street Apartment, and that eviction
proceedings were the culmination of a series of events that
began before the plaintiff engaged in protected activity. In the
employment context, "courts have held that, where discipline
began before an employee's protected activity and the employee's
poor performance continued after the protected activity, the
30

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continuation and even gradual escalation of discipline cannot
support a retaliation claim." See, e.g., Europe v. Equinox
Holdings, Inc., No. 20-cv-7787, 2022 WL 4124763, at *10
(S.D.N.Y. Sept. 9, 2022). However, this case is not an analogous
situation. In this case, the plaintiff had no warning that the
defendants would begin eviction proceedings against her just two
weeks after AB moved out of the apartment, unlike in Europe
where an employee with a documented record of lateness, and who
was formally disciplined several times, was eventually fired.
See id.
Given the plaintiff's prima facie case, the burden shifts
to the defendants to articulate a legitimate, non-discriminatory
reason for commencing eviction. The defendants claim that "HSI
and [Stolfi] believed that [the]

[p]laintiff was intent on

remaining in the unit, and that it was their duty to free up the
spot in the HASA scatter-site housing program for a HASAeligible client." Defs.' Memo. at 20.
While it is true that the plaintiff was not eligible for
the 132 Street Apartment, and that HRA "advised HSI of its
expectation" that HSI would act to evict non-HASA clients after
the departure of an HASA client from an apartment if the family
members of that client "do not demonstrate an intention to
vacate the unit," Defs. 56.1 i 83, the plaintiff has also
adduced evidence that the defendants had not moved to evict
31

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other similarly situated individuals with such rapidity. Other
similarly situated BASA-ineligible individuals were given "5
weeks' notice to vacate" and did not have holdover proceedings
commenced against them "for five months." Pl.' s 56. 1 'lI 139. In
contrast, the plaintiff was served with an eviction notice less
than a month after she filed the NYSDHR Complaint and just 2
weeks after AB moved out of the 132 Street Apartment, and the
defendants commenced holdover proceedings against the plaintiff
within two months after serving the eviction notice. Although
"temporal proximity alone is insufficient to defeat summary
judgment at the pretext stage," Zann Kwan, 737 F.3d at 847, the
combination of the short temporal proximity and the additional
circumstantial evidence of the defendants' not serving notices
of eviction on other such similarly situated non-HASA eligible
individuals with such rapidity is sufficient to raise a question
of pretext that would preclude summary judgment. See Graham v.
Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000)

(finding, in

the employment context, that "[a] showing that similarly
situated employees .

. received more favorable treatment can

also serve as evidence that the employer's proffered legitimate,
non-discriminatory reason for the adverse job action was a
pretext for

. discrimination"); see also Osekavage v. Sam's

East, Inc., No. 19-cv-11778, 2022 WL 3084320, at *10 (S.D.N.Y.
Aug. 3, 2022)

(" [The]

[p] laintiff has, in addition to
32

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establishing temporal proximity, offered evidence of disparate
treatment - evidence from which a reasonable jury could infer
that the reasons proffered by [the]

[d]efendants were a pretext

for a retaliatory motivation.ff) . 6
Moreover, there remain factual disputes as to whether the
defendants complied sufficiently with their obligations,
pursuant to the Desk Guide, to provide the plaintiff with
relocation assistance. "The Court's role, at the summary
judgment stage, is not to weigh evidence.ff Dodd, 489 F. Supp. 3d
at 261. Instead, "the Court's role is only to determine whether
there is a genuine issue for trial.ff Id. In light of these
factual disputes, a reasonable jury could conclude that the
defendants' proffered nondiscriminatory reason for evicting the
plaintiff was pretextual. Accordingly, the defendants' motion
for summary judgment on the plaintiff's retaliation claims under
the Rehabilitation Act and the FHA is denied.

Graham and Osekavage both analyzed pretext in the Title
VII context. However, the principles underlying a finding of
pretext remain consistent, whether under Title VII, the
Rehabilitation Act, or the FHA, because the statutes are
analyzed under similar standards. See, e.g., Pistello v. Bd. of
Educ. of Canastota Cent. Sch. Dist., 808 F. App'x 19, 21-22 (2d
Cir. 2020) (analyzing together retaliation claims under Title
VII and the Rehabilitation Act); Reg'l Econ. Cmty. Action
Program, 294 F.3d at 53-55 (2d Cir. 2002) (analyzing together
retaliation claims under the Rehabilitation Act and the FHA).
6

33

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CONCLUSION
The Court has considered all the arguments of the parties.
To the extent not specifically addressed above, the arguments
are either moot or without merit. For the foregoing reasons, the
defendant's motion for summary judgment is granted in part and
denied in part. The Clerk is directed to close all pending
motions.
SO ORDERED.
Dated:

New York, New York
February 13, 2023

l

Uni ed States District Judge

34