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

> District Court, S.D. New York · March 28, 2025

URL: https://www.frixlaw.com/law-library/cases/10835530

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 28, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10835530

## How later opinions describe it (automated extraction)

- describing subject-mater jurisdiction as the “threshold question” (quotation marks omitted)
- 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
- describing subject-mater jurisdiction as the “threshold question” (quotation marks omitted)

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10835530. Public record. Not legal advice.