The NY Highest Court enjoined landlord from evicting tenant based on his alleged undocumented status

Excerpts from the opinion follow:

Oswaldo Recalde, Plaintiff, against Bae Cleaners, Inc. and Henry Bae,
Defendants.
115789/07
SUPREME COURT OF NEW YORK, NEW YORK COUNTY
2008 NY Slip Op 28266; 2008 N.Y. Misc. LEXIS 4397
July 15, 2008, Decided

Plaintiff has established that he is entitled a
preliminary injunction pending determination of the
underlying action by demonstrating the irreparable harm
of a possible eviction if the relief sought is not granted,
and that the balance of the equities is in his favor so as to
maintain the status quo while awaiting a final
determination of the underlying claims.. Plaintiff
has likewise established a strong likelihood of success on
the merits of his claims that the landlord's refusal to offer
him a renewal lease [**7] violates the rent stabilization
law and the human rights law.

Theundisputed record demonstrates discrimination based on
plaintiff's "actual or perceived . . . alienage or citizenship
status" in violation of [New York's human rights law]. Defendant's August,
September and October letters, expressly state that
plaintiff's rent cannot be accepted and his lease cannot be
renewed because of his "questionable immigration status
in the U.S." Moreover, defendant's Notice of Termination
could not be any more explicit in stating that plaintiff's
tenancy is being terminated because of his "illegal"
immigration status.
The Human Rights Law includes a limited exception
permitting discrimination on the ground of alienage or
citizenship status, when such discrimination "is required
or when such preference is expressly permitted by any
law or regulations of the United States." 8 NYC Admin
Code §8-107(14). Presumably relying on this exception,
defendant argues that "the only reason and motivation
behind the termination notices were compliance with
Federal Statute and to avoid civil and criminal penalties."
To support this argument, defendant cites solely to the
federal statute, 8 U.S.C. §1324(a)(1)(A)(iii), which
subjects a person to criminal penalties if he or she
"knowing [**11] or in reckless disregard of the fact that
an alien has come to, entered, or remains in the United
States in violation of law, conceals, harbors, or shields
from detection, or attempts to conceal, harbor, or shield
from detection, such alien in any place, including any
building or any means of transportation." 8 U.S.C.
Page 3
2008 NY Slip Op 28266, *3; 2008 N.Y. Misc. LEXIS 4397, **7
COURTESY OF WWW.BIBDAILY.COM
§1324(a)(1)(A)(iii). Defendant, however, cites no federal
or New York legal precedent holding that the federal
statute either requires a landlord to verify a tenant's
immigration status, or prohibits a landlord from renting
an apartment to a tenant who lacks legal immigration
status. 1 [*5]
1 Notably, the declaration of legislative intent
and findings accompanying the 1989 amendments
to the Human Rights Law, specifically addresses
the issue of discrimination based on immigration
status, as it relates to housing:
New York City is currently home to more
than one million aliens. These individuals make a
unique contribution to the stimulating economic
and cultural diversity which is one of the City's
primary features. As a city of immigrants, New
York City has a special obligation to assist those
who, like most of our ancestors, have come to our
country seeking a better way of [**12] life. Even
under the best of circumstances, newcomers to
this country find it difficult to obtain housing,
employment and other necessities. However, this
difficulty is compounded when landlords,
employers or other persons practice
discrimination against aliens. Aliens are also
especially vulnerable to exploitation by
unscrupulous entrepreneurs in many areas of life.
The entire City suffers when a substantial part of
its population lacks adequate housing, insurance
coverage, heath care or education.
Recent changes in federal immigration law,
intended in part to discourage the entry of
undocumented aliens into the United States, have
aroused fears among immigrants of a growing
bias within the community against those who may
look or sound foreign. It has come to the City's
attention that such people have been asked to
document their citizenship status when such
documentation was not required by law. Inquiries
of this nature indicate that not only aliens, but
those suspected of being aliens, face the threat of
discrimination. Such intolerance harms the City
and aggravates the difficult adjustment to
American life which every newcomer must make.
It is the intent of the Council to prevent
[**13] aliens from being treated unfairly in
housing, employment and other areas of life. This
law prohibits discrimination against aliens unless
such prohibition is contrary to Federal, State or
City law. . . . Unless otherwise mandated by law,
all aliens are entitled to and will be guaranteed
equal treatment. Nothing in this local law is
intended to or shall havethe effect of contradicting
the requirements of federal law concerning the
employment and provision of benefits to aliens.
Local Law 52 of 1989, §1.
Based on the foregoing analyses, it cannot be
reasonably disputed that defendant's refusal to renew
plaintiff's lease based on his immigration status, violates
the protections afforded by both the Rent Stabilization
Law and the New York City Human Rights Law, and, as
such, it is highly likely that plaintiff will ultimately
prevail on those claims. 2 Under these circumstances,
plaintiff has met his burden of establishing that he is
entitled to a preliminary injunction. See Aetna Insurance
Co. v. Capasso, supra; Doe v. Axelrod, supra; W.T.
Grant Co. v. Sgrogi, supra; Asness v. Nelson, supra.
2 In view of this determination, the court need
not resolve the question whether plaintiff is also
[**14] likely to succeed on his additional claim
for deceptive business practices pursuant to
section 349 of the General Business Law.
Finally, it must be noted that this action presents
issues of first impression for New York courts, which are
indicative of a disturbing trend involving the private use
of immigration laws to deny housing and other benefits
based on immigration status. See Huyen Pham, "The
Private Enforcement of Immigration Laws," 96 Geo. L.J.
777 (March 2008); Kristina M. Campbell, [*6] "Local
Illegal Immigration Relief Act ordinances: A Legal,
Policy and Litigation Analysis," 84 Denv. U. L. Rev.
(2007). In 2006, for example, the City of Hazelton,
Pennsylvania enacted a "Tenant Registration Ordinance"
requiring landlords to verify the immigration status of
prospective tenants, and to deny housing to those with
illegal immigration status; a federal court struck down the
ordinance as violating plaintiffs' rights under the
Supremacy and Due Process clauses of the United States
Constitution. Lozano v. City of Hazleton, 496 F.Supp.2d
477 (M. D. Pa. 2007); see also Villas at Parkside
Partners v. City of Farmers Branch, 2008 WL 2201980
(U.S. Dist. Ct., N.D. Texas) (holding that a local [**15]
ordinance requiring landlords to review immigration
documents to determine if a tenant or prospective tenant
Page has an "eligible immigration" status, and subjecting
landlords to fines and criminal penalties, is preempted by
federal law and violates the Due Process clause); Garrett
v. City of Escondido, 465 F. Supp. 2d 1043 (S.D. Ca.
2006)(in granting a TRO against the enforcement of an
ordinance sanctioning landlords who rent to illegal
immigrants, the court found "serious questions" as to its
constitutionality under the Supremacy and Due Process
clauses). While the cases discussed above involve local
ordinances which impact on or deny housing or other
benefits based on immigration status, New York City has
strong anti-discrimination laws expressly designed to
protect its residents against such abuses.

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