Baez v. New York State Office of Temporary and Disability Assistance

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

WANDA BAEZ, SIIDE GIL-

FREDERICK, DANIELLE JOHNSON,

and RESIDENTS TO PRESERVE

PUBLIC HOUSING,

Plaintiff,

OPINION & ORDER

– against –

24-cv-3282 (ER)

NEW YORK STATE OFFICE OF

TEMPORARY AND DISABILITY

ASSISTANCE, and NEW YORK CITY

HOUSING AUTHORITY,

Defendants.

RAMOS, UNITED STATES DISTRICT JUDGE:

Wanda Baez, Siide Gil-Frederick, Danielle Johnson, and Residents to Preserve

Public Housing (“RPPH”) (collectively, “Plaintiffs”) bring this putative class action

against the New York State Office of Temporary and Disability Assistance (“OTDA”) and

the New York City Housing Authority (“NYCHA”) (collectively, the “Defendants”).

Plaintiffs allege that Barbara C. Guinn, in her individual capacity as OTDA

commissioner, OTDA, and NYCHA discriminated against Black and Hispanic or Latino

public subsidized housing tenants in violation of the Fair Housing Act (“FHA”), Title VI

of the Civil Rights Act of 1964, and New York State Human Rights Laws. Doc. 40.

Before the Court is the Defendants’ motions to dismiss the suit in its entirety. Docs. 51

and 55. For the reasons set forth below, the motion is GRANTED.

I. BACKGROUND

�e following facts are based on the allegations in the first amended complaint

(“FAC”), which the Court accepts as true for the purposes of this instant motion.1 See

Koch v. Christie’s International PLC, 699 F.3d 141, 145 (2d Cir. 2012).

During the COVID-19 pandemic, Congress passed the Consolidated

Appropriations Act, 2021, which provided eligible states with federal funding to

implement the Emergency Rental Assistance Program (“ERAP”). Doc. 40. ¶¶ 7, 36. �is

program was intended to help renters experiencing financial hardship due to the pandemic

manage rental costs. Id. ¶ 9. Eligible renters would receive “up to twelve months of

rental and/or utility assistance arrears and three months of prospective rental assistance.”

Id. ¶ 48.

Under the Consolidated Appropriations Act, the state of New York received

federal funding to be used toward “rental arrears, utilities, home energy arrears, and other

housing related expenses incurred due to the COVID-19 outbreak.” Id. ¶ 37. Using these

funds, the state of New York implemented the ERAP and made OTDA responsible for

approving ERAP applications and administering funds. Id. ¶ 9. OTDA is a pre-existing

state agency responsible for providing financial assistance and support to eligible families

and individuals. Id. ¶ 24. �e commissioner of the OTDA, at the time of the pandemic,

was Barbara C. Guinn. Id. ¶ 25.

Each state had the flexibility to structure and design their ERAP. Id. ¶ 44. Guinn,

as commissioner of OTDA, established standards for determining eligibility for the

ERAP in New York. Id. ¶ 49. OTDA required that to be eligible for benefits, one must

be a “tenant or occupant obligated to pay rent in their primary residence in the state of

New York … provided however that occupants of federal or state funded subsidized

1 Plaintiffs attached a list of NYCHA consumer debt claims on file in the New York State Supreme Court

and NYCHA civil actions on file in the New York County Civil Court to the initial Complaint. Doc. 1.

However, the FAC does not include the attachments. Doc. 40.

public housing authorities or other federal or state funded subsidized housing that limits

the household’s share of the rent to a set percentage of income shall only be eligible to

the extent that funds are remaining after serving all other eligible populations.” Id. ¶ 49.

In other words, individuals and households that were already receiving federal or state

housing assistance would be deprioritized.

In an effort to provide as many households as possible with ERAP funds, OTDA

partnered with NYCHA. Id. ¶ 110. NYCHA is the largest public housing authority in

North America, receives federal funding, and is subject to federal regulation. Id. ¶ 6.

Together, OTDA and NYCHA established “a process that provided up to 12 months of

financial relief to households that accumulated rent arrears at the height of the pandemic.”

Id. ¶ 110, n. 99.

In addition, Public Housing Authorities (“PHA”), funded by the U.S. Department

of Housing and Urban Development (“HUD”), such as NYCHA, are expected to

calculate the portion of rent a public and subsidized tenant must pay. Id. ¶¶ 52, 55. If

there are any financial changes within a household, PHAs are expected to conduct an

interim recertification within a reasonable period of time, that being no longer than 30

days after changes in income are reported. Id. ¶ 58. However, when NYCHA was

informed of the financial hardship by Plaintiffs, NYCHA “failed to timely recertify their

incomes and recalculate monthly rent payments to reflect this hardship,” leading residents

to be charged rent that amounted to more than 30 percent of their household income,

which exceeds the amount that public and subsidized housing residents are expected to

pay in rent. Id. ¶¶ 8, 15. NYCHA has initiated consumer debt actions against NYCHA

residents for unpaid, though miscalculated, rent. Id. ¶ 16.

Plaintiffs assert that a class of Black and Hispanic or Latino residents living in

NYCHA housing experienced economic hardship during the pandemic and were eligible

for assistance through the ERAP, but were discriminated against because of their race,

national origin, disability, and/or source of income. Id. ¶ 5. �e OTDA and Guinn

allegedly intentionally discouraged eligible NYCHA residents from applying for ERAP

through “numerous published statements prominently advertising their policy of

deprioritizing public and subsidized housing applicants.” Id. ¶ 11. Instead, the OTDA

and Guinn encouraged NYCHA residents to apply for OTDA loans to cover rent, which

unlike ERAP funding, must be repaid. Id. ¶ 13. At the time ERAP funding ran out, many

NYCHA residents had not received any financial benefit. Id. ¶ 10.

Plaintiffs Wanda Baez and Siide Gil-Frederick were subsidized tenants living in

NYCHA housing who experienced financial hardship, applied for ERAP in 2021, but

received no benefits “at the height of the pandemic.” Id. ¶¶ 20, 21. Baez and Gil-

Frederick did, however, receive ERAP benefits, for the maximum number of months

available for subsidized tenants, in May 2024 and November 2023, prior to the

commencement of this action, but after the height of the pandemic. Id. ¶¶ 20-21, 149;

Doc. 18 ¶ 61. Plaintiff Danielle Johnson was a subsidized tenant living in NYCHA

housing during the pandemic in 2021, experienced financial hardship, and “never

received information about or was made aware of ERAP, and as such did not apply,

though she would have wanted to and could have greatly benefited from assistance.” Id.

¶ 22. All three plaintiffs amassed thousands of dollars in rent arrears as a result of not

receiving ERAP funding. Id. ¶¶ 20-22. Plaintiff RRPH, is “a 501(c)(3) member

organization consisting of tenants who reside in public housing across the five boroughs

of New York City,” advocates on behalf of thousands of NYCHA residents who

experienced financial hardship, applied or wanted to apply for ERAP, and received no

benefits. Id. ¶ 23.

II. PROCEDURAL HISTORY

Plaintiffs filed the initial complaint on April 30, 2024. Doc. 1. �e FAC was filed

on July, 25, 2024. Doc. 40. �e FAC alleges seven causes of action asserting a violation

of the FHA, Title VI of the Civil Rights Act of 1964, and New York State Human Rights

Laws, as well as negligence. Id.

NYCHA filed a motion to dismiss on August, 16, 2024, pursuant to Federal Rules

of Civil Procedure 12(b)(1) for lack of standing,2 and 12(b)(6) for failure to state a claim.

Doc. 51. Guinn and OTDA filed a motion to dismiss on September 27, 2024, also

pursuant to Rules 12(b)(1) and 12(b)(6). Doc. 55.

III. LEGAL STANDARD

A. Lack of Standing and Subject-Matter Jurisdiction Pursuant to Rule

12(b)(1)

“Determining the existence of subject matter jurisdiction is a threshold inquiry

and a claim is properly dismissed for lack of subject matter jurisdiction under Rule

12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate

it.” Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation

omitted), aff’d, 561 U.S. 247 (2010); see also United States v. Bond, 762 F.3d 255, 263

(2d Cir. 2014) (describing subject-mater jurisdiction as the “threshold question”

(quotation marks omitted)). “A plaintiff asserting subject matter jurisdiction has the

burden of proving by a preponderance of the evidence that it exists.” Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000) (citation omitted). “Because standing is

challenged on the basis of the pleadings, [the Court] accept[s] as true all material

allegations of the complaint, and must construe the complaint in favor of the [plaintiff].”

Connecticut v. Physicians Health Services of Connecticut Inc., 287 F.3d 110, 114 (2d Cir.

2002) (internal quotation marks and citation omitted). However, the burden remains on

the plaintiff, as the party invoking federal jurisdiction, to establish its standing as the

proper party to bring an action. Selevan v. N.Y. Thruway Authority, 584 F.3d 82, 89 (2d

Cir. 2009) (citation omitted); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231

(1990) (“It is a long-settled principle that standing cannot be inferred argumentatively

from averments in the pleadings, but rather must affirmatively appear in the record,” and

2 NYCHA does not say in its notice of motion that it is moving pursuant to 12(b)(1), but argues lack of

standing and subject matter jurisdiction.

if the plaintiff fails to “clearly [] allege facts demonstrating that he is a proper party to

invoke judicial resolution of the dispute,” he does not have standing under Article III.

(internal quotations marks and citation omitted)).

In resolving a motion to dismiss for lack of subject-matter jurisdiction pursuant to

Rule 12(b)(1), a district court may consider evidence outside the pleadings. Morrison,

547 F.3d at 170 (citing Makarova, 201 F.3d at 113).

B. Failure to State a Claim Pursuant to Rule 12(b)(6)

To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corporation v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when

the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at

556). �e plaintiff must allege sufficient facts to show “more than a sheer possibility that

a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). However, this

“flexible plausibility standard” is not a heightened pleading standard. In re Elevator

Antitrust Litigation, 502 F.3d 47, 50 n.3 (2d Cir. 2007) (internal quotation marks and

citation omitted). �erefore, “a complaint … does not need detailed factual allegations”

to survive a motion to dismiss. Twombly, 550 U.S. at 555.

�e question on a motion to dismiss “is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs

for Justice v. Nath, 893 F.Supp.2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc.

v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)). Indeed, “the purpose of Federal

Rule of Civil Procedure 12(b)(6) is to test, in a streamlined fashion, the formal

sufficiency of the plaintiff’s statement of a claim for relief without resolving a contest

regarding its substantive merits” or “weigh[ing] the evidence that might be offered to

support it.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal quotation marks

and citation omitted). �us, when ruling on a motion to dismiss pursuant to Rule

12(b)(6), the Court accepts all factual allegations in the complaint as true and draws all

reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.

2014). In considering a Rule 12(b)(6) motion, a district court may also consider

“documents attached to the complaint as exhibits, and documents incorporated by

reference in the complaint.” Doe v. New York University, 20 Civ. 1343 (GHW), 2021 WL

1226384, at 10 (S.D.N.Y. Mar. 31, 2021) (quoting DiFolco v. MSNBC Cable LLC, 622

F.3d 104, 111 (2d Cir. 2010)).

IV. STATE DEFENDANTS

A. Lack of Article III Standing

OTDA and Guinn (collectively, “State Defendants”), are moving to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). When a party moves

to dismiss pursuant to Rule 12(b)(1) in addition to other bases, such as Rule 12(b)(6),

“the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the

complaint for lack of subject matter jurisdiction, the accompanying defenses and

objections become moot and do not need to be determined.” Rhulen Agency, Inc. v.

Alabama Insurance Guaranty Association., 896 F.2d 674, 678 (2d Cir. 1990).

OTDA argues that the plaintiffs have not shown any injuries traceable to the

actions of the State Defendants, particularly noting that issues regarding NYCHA are

outside OTDA’s purview. Doc. 56 at 6-7. �e Court agrees that Plaintiffs do not

plausibly allege that the OTDA had any involvement with NYCHA’s purported failure to

recertify the income of tenants who received subsidized housing benefits. While OTDA

managed the federal funding that was to be distributed as part of the ERAP, it did not

oversee or supervise NYCHA and had no control over their actions and decisions. Id. at

7. Although indirect causation is “not necessarily fatal to standing” it “may make it

substantially more difficult to meet the minimum requirements of Art. III: To establish

that, in fact, the asserted injury was the consequence of the defendant’s actions, or that

prospective relief will remove the harm.” Warth v. Seldin, 422 U.S. 490, 507 (1975).

B. Commissioner Guinn is Entitled to Qualified Immunity

Defendants argue that Commissioner Guinn is entitled to qualified immunity

because a reasonable official would not have understood their actions to be

discriminatory. Doc. 56 at 16. OTDA further argues that Guinn cannot be held liable

under § 1983 as the actions attributed to her, not only fail to constitute a violation of

clearly established rights, but stem from her role in executive state policy rather than

from personal discriminatory intent. Id. at 15.

Qualified immunity is “an immunity from suit rather than a mere defense to

liability.” Fabrikant v. French, 691 F.3d 193, 212 (2d Cir. 2012) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)) (internal quotation marks omitted). Accordingly, the

Supreme Court has “emphasized that qualified immunity questions should be resolved at

the earliest possible stage of litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n. 6

(1987). �e Court may grant a motion to dismiss on qualified immunity grounds where

the defense is based on facts that appear on the face of the complaint. Looney v. Black,

702 F.3d 701, 710-11 (2d Cir. 2012) (citing McKenna v. Wright, 386 F.3d 432, 436 (2d

Cir. 2004)).

“Qualified immunity was created to shield government officials from civil liability

for the performance of discretionary functions so long as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would

have known.” Atwater v. City of Lago Vista, 532 U.S. 318, 367 (2001) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). “To be clearly established, a right must be

sufficiently clear that every reasonable official would have understood that what he is

doing violates that right.” Fabrikant, 691 F.3d at 212 (internal quotation marks omitted).

In determining if a particular right was clearly established, the Court “looks to whether

(1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit

has confirmed the existence of the right, and (3) a reasonable defendant would have

understood that his conduct was unlawful.” Doninger v. Niehoff, 642 F.3d 334, 345 (2d

Cir. 2011) (citing Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)). “�e

question is not what a lawyer would learn or intuit from researching case law, but what a

reasonable person in [the] defendant’s position should know about the constitutionality of

the conduct.” Phillips v. County of Orange, 894 F.Supp.2d 345, 385 (S.D.N.Y. 2012)

(quoting Young, 160 F.3d at 903) (internal quotation marks omitted).

�e Supreme Court has instructed that “when a qualified immunity defense is

asserted, a court should consider the specific scope and nature of a defendant’s qualified

immunity claim …. [as] determination of whether the right at issue was clearly

established must be undertaken in light of the specific context of the case, not as a broad

general proposition.” Id. at 386 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)

(internal quotation marks omitted). In other words, the Court must ask whether the right

at issue was established “in a particularized sense so that the contours of the right [were]

clear to a reasonable official.” Reichle v. Howards, 566 U.S. 658, 661 (2012) (internal

quotation marks omitted). Although a case directly on point is not required to

demonstrate that a right is clearly established, “existing precedent must have placed the

statutory or constitutional question beyond debate.” Fabrikant, 691 F.3d at 213 (quoting

Ashcroft v. al-Kidd, 131 S.Ct. 2074 (2011)); see also Moore v. Vega, 371 F.3d 110, 114

(2d Cir. 2004) (internal quotation marks omitted) (“Only Supreme Court and Second

Circuit precedent existing at the time of the alleged violation is relevant in deciding

whether a right is clearly established.” (citing Townes v. City of New York, 176 F.3d 138,

144 (2d Cir. 1999))).

Because no Supreme Court or Second Circuit precedent exists that clearly

establishes that an “emergency program, enacted during an unprecedented pandemic,

would violate antidiscrimination law by deprioritizing subsidized tenants,” the Court

concludes that a reasonable official would not have understood their actions to be

discriminatory. Doc. 56 at 16. As a preliminary matter, the “challenged conduct involved

enforcement of a presumptively valid statute.” Connecticut ex rel. Blumenthal v. Crotty,

346 F.3d 84, 102 (2d Cir. 2003) (stating that the enforcement of a presumptively valid

statute creates a heavy presumption in favor of qualified immunity and holding that the

State of Connecticut was entitled to qualified immunity). Here, Guinn, in her position as

Commissioner of OTDA, had the authority to implement CERAP, which is a statute

enacted by the Legislature. �us, Commissioner Guinn is entitled to qualified immunity,

see Ashcroft, 131 S.Ct. at 2083 (2011), and Defendants’ motion to dismiss all claims

against her is GRANTED.

C. Claims Under NYSHRL and the FHA Against OTDA Are Barred by

Sovereign Immunity

State organizations are generally protected under the doctrine of sovereign

immunity, which bars suits against states and their instrumentalities in federal court

unless the state has waived its immunity or Congress has validly abrogated it. Sunnen v.

N.Y. State Department of Health, No. 17-CV-1014, 2018 WL 3611978 at 4 (S.D.N.Y. July

27, 2018); Dellmuth v. Muth, 491 U.S. 223, 230 (1989). “New Yok State has not

consented or waived its sovereign immunity to suits arising under the NYSHRL,” and

there is no clear language contained in the FHA that would indicate that “Congress

intended to abrogate sovereign immunity.” Sunnen, 2018 WL 3611978 (citing Widomski

v. State University of New York at Orange, 933 F.Supp.2d 534, 554 n.16 (S.D.N.Y.

2013)); Dellmuth, 491 U.S. at 230 (quoting Atascadero State Hospital v. Scanlon, 473

U.S. 234, 242 (1985)); McCardell v. United States Department of Housing & Urban

Development, 794 F.3d 510, 522 (5th Cir. 2015) (“�e language of the Fair Housing Act

does not make ‘unmistakably clear’ that Congress intended to abrogate. It contains no

provision evidencing such intent.”).

Still, Plaintiff’s argue that federal funding may impose conditions on state

organizations that can strip them of sovereign immunity. Doc. 61 at 2. However, courts

require a clear and knowing waiver of immunity by the state. Garcia v. State University

of N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 104 (2d Cir. 2001). In Garcia,

the Second Circuit found that New York did not knowingly waive its sovereign immunity

under the Rehabilitation Act by accepting federal funds, as an effective waiver requires an

intentional relinquishment of a known right. Id. Since there is no clear language to

indicate the waiver of sovereign immunity, and accepting federal funds does not bar a

state organization from sovereign immunity, the Court agrees that OTDA, as a state

organization, is subject to sovereign immunity. �erefore, the motion to dismiss all

claims against OTDA is GRANTED.

V. NYCHA

A. Lack of Article III Standing for Individual Plaintiffs

Defendants challenge the standing of all three individual plaintiffs, arguing that

none have sufficiently alleged the type of concrete and particularized injury necessary to

maintain constitutional standing. “Article III, § 2, of the Constitution restricts the federal

‘judicial Power’ to the resolution of ‘Cases’ and ‘Controversies.’ �at case-or-

controversy requirement is satisfied only where a plaintiff has standing.” Sprint

Communications Co., L.P. v. APCC Services, Inc., 554 U.S. 269, 273 (2008) (citing

DaimlerChrysler Corporation v. Cuno, 547 U.S. 332, 347 (2006)). �ree elements form

the constitutional minimum of standing, under Article III. First, the plaintiff must have

suffered an invasion of legally protected interest that is concrete and particularized, and

actual or imminent. Second, the challenged conduct must have caused the plaintiff’s

injury. �ird, it must be likely, not speculative, that a favorable decision by the court will

redress the plaintiff’s injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)

(citations omitted). �e party invoking federal jurisdiction bears the burden of

establishing standing. Id. at 561. If Plaintiffs lack Article III standing, this Court has no

subject matter jurisdiction to hear the claims. Central States Southeast and Southwest

Areas Health and Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181,

198 (2d Cir. 2005) (quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83,

94 (1998)).

�e individual Plaintiff’s do not have standing because it is only speculative that a

favorable decision by the court will redress their purported injury. Lujan, 504 U.S. at

560-61. A “plaintiff seeking injunctive or declaratory relief cannot rely on past injury to

satisfy the injury requirement but must show a likelihood that he or she will be injured in

the future.” DeShawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing

City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983)); see also Lujan, 504 U.S. at

564 (“Past exposure to illegal conduct does not in itself show a present case or

controversy regarding injunctive relief … if unaccompanied by any continuing, present

adverse effects.” (internal quotation marks omitted) (quoting Lyons, 461 U.S. at 102)).

Here, there is no risk of future harm to the individual plaintiffs. Baez and Gil-

Frederick actually received ERAP benefits and are unable to receive additional rental

arrears, as each has received the maximum amount of funding under the ERAP, which is

12 months of arrears. Doc. 56 at 10; Doc. 18 ¶ 61. As a result, these plaintiffs cannot

claim harm related to the deprivation of benefits, as they have received all of the benefits

to which they are entitled.

Further, Johnson never applied for ERAP and therefore has failed to allege that

the deprioritization of public and subsidized housing tenants caused her to suffer any

form of harm, a requirement to establish standing. Doc. 56 at 11. Plaintiffs argue that

Johnson’s “self-inflicted injuries are nevertheless cognizable under Article III.” Doc. 61

at 4. However, the Second Circuit has held that a plaintiff must submit to the challenged

policy to establish standing and has found, for example, that individuals who did not

apply for membership or benefits under allegedly discriminatory policies lacked standing.

Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir. 1997). Johnson must

demonstrate that she was “able and ready” to apply but was prevented from doing so on

equal footing due to the discriminatory policy. Do No Harm v. Pfizer Inc., 126 F.4th 109,

118 (2d Cir. 2025). However, the FAC states that Johnson “was never made aware of

ERAP, and so did not apply.” Doc. 40 ¶ 163. �erefore, Johnson was not “able and

ready to apply,” and lacks standing to bring a claim against the NYCHA.

B. Lack of Article III Standing for RPPH

“[A]n association has standing to bring suit on behalf of its members when: (a)

its members would otherwise have standing to sue in their own right; (b) the interests it

seeks to protect are germane to the organization’s purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in the

lawsuit.” Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343

(1977). In the Second Circuit, however, an organization only has standing to sue under §

1983 on its own behalf, not that of its members. New York State Citizen’s Coalition for

Children v. Velez, 629 Fed. App’x 92, 93-95 (2d Cir. 2015) (summary order). �is is

because the Second Circuit has interpreted the rights that § 1983 secures to be personal to

those purportedly injured. League of Women Voters of Nassau County v. Nassau County

Board of Supervisors, 737 F.2d 155, 160 (2d Cir. 1984). �erefore, for an organization to

have standing it must independently satisfy the requirements of Article III standing.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

Defendants argue that RPPH lacks standing because its mission does not align

with the claim’s plaintiffs are asserting regarding income recertifications. Doc. 53 at 9.

�e mission of RPPH is “to preserve public housing by advocating for adequate funding,

improving quality of services, and increasing residents’ decision-making authority.” Id.

�e RPPH is known to have “fought against decisions to convert public housing

developments to project-based Section 8 through the NYC Public Housing Preservation

Trust and Permanent Affordability Commitment Together.” Id. However, the claims

asserted against NYCHA allege a failure to recertify tenant income, which RPPH argues

has caused hardship to its members and impacted its advocacy efforts. Doc. 58 at 5.

While RPPH asserts that this issue affects public housing funding, the connection

between income recertification and RPPH’s core mission of preserving public housing

and opposing conversion to project-based Section 8 is tenuous. �e second requirement

set out in Hunt, 432 U.S. at 343, ensures that organizations do not litigate issues unrelated

to their primary objectives. Allowing RPPH to assert standing based on a tenuous

connection would effectively permit this Court to litigate any issue affecting its members,

regardless of its relevance to the organizations stated mission.

RPPH also claims that it has had to divert resources away from its long-term

opposition to programs like Permanent Affordability Commitment Together and Rental

Assistance Demonstration to address NYCHA’s alleged failure to recertify tenant income.

Doc. 58 at 6. However, the Supreme Court has held that an organization cannot establish

injury-in-fact simply by choosing to divert resources to address an issue. �e Court

recognized, in Havens Reality Corporation v. Coleman, 455 U.S. 363, 365 (1982), that an

organization may establish standing if a defendant’s actions cause a concrete and

demonstrable injury to the organization’s activities, with a consequent drain to the

organization’s resources. However, this requires more than a mere budgetary choice to

address an issue. �e defendant’s actions must directly impede the organization’s ability

to carry out its mission. Id.

Here, RPPH’s diversion of resources to address NYCHA’s actions does not

constitute a concrete and demonstrable injury to its activities. �e alleged failure to

recertify tenant income does not directly impede RPPH’s ability to advocate for public

housing preservation or oppose conservation to project-based Section 8. Its decision to

nonetheless spend funds to involve itself in this litigation is insufficient to establish

standing. �erefore, this Court finds that RPHH lacks standing under Article III.

C. Statute of Limitations

NYCHA states that the Fair Housing Act (FHA) claims are time-barred by the

two-year statute of limitations. Doc. 52 at 2. Under the FHA, “[a]n aggrieved person

may commence a civil action … no later than 2 years after the occurrence of the

termination of an alleged discriminatory housing practice … to obtain appropriate relief

with respect to such discriminatory housing practice[.]” 42 U.S.C. § 3613(a)(1)(A); see

also Logan v. Matveevskii, 57 F.Supp.3d 234, 267 (S.D.N.Y. 2014). Plaintiffs argue that

the two-year statute of limitations is not applicable, as the NYCHA has continuously

failed to recertify the income and recalculate the monthly rent payments of each Plaintiff.

Doc. 58 at 6.

An interim recertification change is to be made by the NYCHA within a 30-day

time period following the report of a change in income, which can include formal

documentation or an ERAP application. Doc. 53 at 6, 18. Here, Gil-Frederick and Baez

applied for ERAP in June 2021 and August 2021, respectively, meaning NYCHA should

have completed their recertification and recalculation by September 2021 and July 2021,

but it was never done. Doc. 40 at 21; Doc. 58 at 6. Further, Gil-Frederick submitted

forms required for annual recertification on December 30, 2020, and by December 2023,

she still had not been certified. Doc. 58 at 6. Johnson reported a change in household

income in 2020 and she too was never certified. Id.

Under the continuing violation doctrine, a plaintiff may bring claims for

discriminatory acts that would have been barred by the statute of limitations, “so long as

they either are sufficiently related to incidents that fall within the statutory period or are

part of a systematic policy or practice of discrimination that took place, at least in part,

within the limitations period.” National Railroad Passenger Corporation. v. Morgan,

536 U.S. 101, 105 (2002) (internal quotation marks omitted). In the housing context,

courts have applied the continuing violation doctrine “where the type of violation is one

that could not reasonably have been expected to be made the subject of a lawsuit when it

first occurred because its character as a violation did not become clear until it was

repeated during the limitations period,” for example, where a housing complex had an

ongoing policy of excluding and failing to accommodate disabled persons.” See Eastern

Paralyzed Veterans Association v. Lazarus-Burman Associates, 133 F.Supp.2d 203, 212-

13 (E.D.N.Y. 2001); Pantoja v. Scott, 96 Civ. 8593 (AJP), 2001 WL 1313358 at 1

(S.D.N.Y. Oct. 26, 2001). Although the continuing violation doctrine applies to claims

involving an “ongoing discriminatory policy or custom,” Chin v. Port Authority of New

York & New Jersey, 685 F.3d 125, 156 (2d Cir. 2012), it does not apply to “discrete acts”

or “separate” actions, such as a denial of secondary financing and theft of mortgage

proceeds. Morgan, 536 U.S. at 114; see also Gonzalez v. Hasty, 802 F.3d 212, 220 (2d

Cir. 2015) (internal quotation marks omitted); Pantoja, 2001 WL 1313358, at 10

(collecting cases). Such discrete actions, even if undertaken by the same entity for a

common discriminatory purpose, do not comprise a continuing violation. Id. at 11.

�e continuing violation doctrine is inapplicable here. Plaintiffs argue that

NYCHA’s continuous failure to recertify the incomes and recalculate the monthly rent

due for each individual plaintiff, and RPPH members, is sufficient to trigger the doctrine.

Doc. 58 at 6. However, the continuing violation doctrine, “does not apply where a

plaintiff was on notice of what [he] believed was discrimination but failed to act in

preservation of [his] rights in spite of [his] knowledge.” Lee Ave. Tenants Association by

Sanchez v. Steinmetz, 330 F.Supp.3d 778, 792 (E.D.N.Y. 2018) (internal quotation marks

omitted). No tolling of the statute applies here as the Plaintiffs were on notice of

sufficient facts about the alleged discrimination significantly before the lawsuit. Plaintiffs

were aware of each violation in the month that followed the submission of documentation

for recertification or an ERAP application. Baez was on notice of the violation in

September 2021, Gil-Frederick was on notice of the violations in January 2021 and July

2021, and Johnson was on notice of the violation in 2020. Doc. 58 at 6-7. Plaintiff’s

continued to allow their arrears to accrue during the limitations period, which expired

come May 2024. Doc. 53 at 12.

As a result of not timely receiving ERAP funding, NYCHA commenced rent

collection proceedings against multiple NYCHA residents, including Baez, Johnson, and

other members represented by the RPPH. FAC ¶¶ 115-118. However, when addressing

discrimination claims under the FHA, “the proper focus is on the time of the

discriminatory act, not the point at which the consequences of that act became painful.”

Chardon vy. Fernandez, 454 U.S. 6, 8 (1981); see Board of Education of North Rockland

Center School District v. C.M. on behalf of P.G., 744 F. App’x. 7, 9 (2d Cir. 2018). The

Court rejects Plaintiff's arguments regarding continuing violations.

Therefore, the motion to dismiss all claims against NYCHA, including all

allegations of disparate treatment, disparate impact, and violation of Title VI is

GRANTED on the basis of a lack of standing and that this suit was filed outside the

statute of limitations.

As this motion was granted on procedural grounds, the Court need not reach the

merits of the discrimination claim. Otegbade v. New York City Administration for

Children Services, 12-cv-6298 (KPF), 2015 WL 851631, at 1 (S.D.N-Y. Feb. 27, 2015)

(declining to reach the merits because Defendants’ motion to dismiss was granted on

procedural grounds).

VI. CONCLUSION

For the reasons set forth above, the New York State Office of Temporary and

Disability Assistance, the New York City Housing Authority, and Barbara C. Guinn’s

Motions to Dismiss the First Amended Complaint are GRANTED. The Clerk of the

Court is respectfully directed to terminate the pending motions, Does. 51, 55, and close

the case.

It is SO ORDERED.

yo

EY

~ EDGARDO RAMOS, U.S.DJ.

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