Long Island Hous. Servs. v. NPS Holiday Square LLC
| Decision Date | 09 September 2021 |
| Docket Number | 18-CV-03583 (DG) (JMW) |
| Parties | Long Island Housing Services, Inc.; Suffolk Independent Living Organization, Inc.; Doreen Kernozek; Lori Gerardi; and others similarly situated, Plaintiffs, v. NPS Holiday Square LLC; Northwood Village, Inc.; Brightwaters Gardens, Inc.; Lakeside Garden Apartments LLC; South Shore Gardens, LLC; and NPS Property Corp., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiffs Long Island Housing Services, Inc., a fair housing organization; Suffolk Independent Living Organization, Inc. a disability rights organization; and Doreen Kernozek and Lori Gerardi, two individuals with disabilities (collectively, “Plaintiffs”), bring this action against Defendant NPS Property Corp. and five additional defendants (collectively, “Defendants” or “NPS”), alleging various claims arising from their housing policies and practices. See Second Amended Complaint (“SAC”), ECF No. 73. Defendant NPS Property Corp. - the owner of Defendants NPS Holiday Square LLC, Northwood Village, Inc., Brightwaters Gardens, Inc. Lakeside Garden Apartments LLC, and South Shore Gardens, LLC - owns and/or manages at least nine apartment complexes on Long Island in Suffolk County, New York. See SAC ¶¶ 1, 26-31, 36. Plaintiffs commenced this action on June 20 2018. Complaint, ECF No. 1. Plaintiffs filed the operative Second Amended Complaint on November 5, 2020, alleging violations of the Fair Housing Act (“FHA”), 42 U.S.C. § 3604 et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296(5), and the Suffolk County Human Rights Law (“SCHRL”) Suffolk County Code § 528 et seq. See SAC ¶¶ 140-57. Plaintiffs seek declaratory and injunctive relief, compensatory and punitive damages, and attorneys' fees, costs, and expenses. See Id. ¶¶ 158-64. As relevant here, Plaintiffs allege that NPS's rental application policies and practices have had an unlawful disparate impact on applicants with disabilities, in violation of the FHA, NYSHRL, and SCHRL, as well as on applicants using housing subsidies, in violation of the NYSHRL and SCHRL. See Id. ¶¶ 125, 140-57.
Now before the Court are three motions pursuant to Federal Rule of Evidence 702 (“Rule 702”) and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), seeking to preclude the testimony of various proposed expert witnesses. First, Defendants have moved to preclude the testimony of Plaintiffs' expert, Nancy McArdle, who has been proffered to testify regarding the disparate impact of NPS's rental application policy on users of housing vouchers, including users with disabilities. See Defendants' Motion to Preclude Nancy McArdle (“McArdle Motion”), ECF No. 92; Defendants' Memorandum in Support of the McArdle Motion ( ), ECF No. 92-1; Declaration of Rachel Rodriguez in Support of the McArdle Motion and Accompanying Exhibits, ECF Nos. 92-2 to 92-10; Plaintiffs' Opposition to the McArdle Motion ( ), ECF No. 94; Defendants' Reply in Support of the McArdle Motion, ECF No. 100.
Second, Plaintiffs seek to preclude the testimony of Defendants' expert, Dr. Michael Salve, who has been proffered to testify - in rebuttal to McArdle's testimony - regarding purported flaws in McArdle's disparate impact analysis. See Plaintiffs' Motion to Exclude Dr. Michael Salve (“Salve Motion”), ECF No. 86; Plaintiffs' Memorandum in Support of the Salve Motion ( ), ECF No. 87; Declaration of Brian Corman in Support of the Salve Motion and Accompanying Exhibits, ECF No. 88; Defendants' Opposition to the Salve Motion ( ), ECF No. 96; Plaintiffs' Reply in Support of the Salve Motion, ECF No. 98.
Third, Plaintiffs have moved to preclude the testimony of Defendants' expert, John Rollins, who has been proffered to testify on the issues of whether NPS's rental application policy serves a legitimate business interest and the adequacy of Plaintiffs' proposed alternative policy. See Plaintiffs' Motion to Exclude John Rollins (“Rollins Motion”), ECF No. 89; Plaintiffs' Memorandum in Support of the Rollins Motion ( ), ECF No. 90; Declaration of Brian Corman in Support of the Rollins Motion and Accompanying Exhibits, ECF No. 91; Defendants' Opposition to the Rollins Motion ( ), ECF No. 97; Plaintiffs' Reply in Support of the Rollins Motion, ECF No. 99.[1]
Also before the Court is Plaintiffs' unopposed motion for leave to file under seal exhibits in support of their opposition to Defendants' motion to preclude McArdle's testimony, which exhibits contain personally identifying information of applicants to NPS's properties. See ECF No. 95.
For the reasons set forth below, (1) Defendants' motion to preclude the testimony of Nancy McArdle is denied, (2) Plaintiffs' motion to preclude the testimony of Michael Salve is granted, (3) Plaintiffs' motion to preclude the testimony of John Rollins is denied, and (4) Plaintiffs' motion to file exhibits under seal is granted.
NPS has employed variations of an income-to-rent policy as an applicant screening tool at their apartment complexes. Under the most recent iteration, NPS utilizes a two-to-one income requirement, which generally requires applicants without housing vouchers to have an income double the monthly rent. See Pls.' Salve Mem. at 4; see also Defs.' Salve Opp'n at 3. For applicants with housing vouchers, NPS allegedly credits the voucher as one month's rent and requires applicants to have an income equal to between 80% and 100% of one month's rent. See Pls.' Salve Mem. at 4 & n.2; see also Defs.' Salve Opp'n at 3. There is allegedly some flexibility to the income requirement based on factors such as vacancy rates, referral by other tenants, high credit scores, and large savings. See Pls.' Salve Mem. at 4 n.2; see also Defs.' Salve Opp'n at 3.
In connection with their disparate impact claims, Plaintiffs seek to introduce McArdle's testimony in order to help establish a prima facie case that NPS's income-to-rent requirement has “a significantly adverse or disproportionate impact” on housing voucher users. See Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 617 (2d Cir. 2016). Defendants seek to introduce Salve's testimony in order to undermine Plaintiffs' attempt at establishing a prima facie case. See Id. Defendants further seek to introduce Rollins's testimony - in the event that Plaintiffs establish a prima facie case of disparate impact - to help demonstrate that NPS's income-to-rent requirement is necessary to achieve one or more substantial, legitimate, nondiscriminatory businesses interests. See Id. In the event that Defendants establish that NPS's income-to-rent requirement is a business necessity, Defendants seek to introduce Rollins's testimony to critique the adequacy of Plaintiffs' proposed alternative policy. See id.
Federal Rule of Evidence 702 assigns district courts a “gatekeeping role, ” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993); see also United States v. Jones, 965 F.3d 149, 161 (2d Cir. 2020), in which they have “broad discretion” to permit or exclude expert testimony, In re Pfizer, Inc. Sec. Litig., 819 F.3d 642, 658 (2d Cir. 2016). That gatekeeping role applies to all expert testimony, not just scientific testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 147 (1999).
Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
Fed. R. Evid. 702; accord Daubert, 509 U.S. at 588-95. The United States Court of Appeals for the Second Circuit has “distilled Rule 702's requirements into three broad criteria: (1) qualifications, (2) reliability, and (3) relevance and assistance to the trier of fact.” In re Namenda Indirect Purchaser Antitrust Litig., No. 15-CV-06549, 2021 WL 2403727, at *7 (S.D.N.Y. June 11, 2021) (quotation marks omitted); see also Nimely v. City of New York, 414 F.3d 381, 396-97 (2d Cir. 2005). “[T]he proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied.” Jones, 965 F.3d at 161 (quoting United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007)); see also Disabled in Action v. City of New York, 360 F.Supp.3d 240, 243 (S.D.N.Y. 2019).
As a “threshold question” then, a district court must determine whether the proffered expert witness “qualifie[s] as an expert by knowledge, skill experience, training, or education.” Nimely, 414 F.3d at 396 n.11 (quoting Fed.R.Civ.P. 702). “To determine whether a proffered witness is qualified, a court must ascertain whether the proffered expert has the educational background or training in a relevant field by looking at the totality of the witness's background, ” SEC v. Revelation Cap. Mgmt., Ltd., 215 F.Supp.3d 267, 273 (S.D.N.Y. 2016) (quotation marks omitted), and then “compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony, ” United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004). “Courts within the Second Circuit have liberally...
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