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Miller v. Brookside at Somerville

February 11, 2008

WILLIAM MILLER, PLAINTIFF-APPELLANT,
v.
BROOKSIDE AT SOMERVILLE, LLC, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Special Civil Part, DC-2464-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 19, 2007

Before Judges R. B. Coleman and Lyons.

We granted leave to plaintiff William Miller to appeal from a June 1, 2007 order denying his request for emergent relief and vacating an order to show cause with temporary restraints. Plaintiff contends that defendant Brookside at Somerville, LLC:

(1) discriminated against plaintiff in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49m, when it declined plaintiff's rental application; (2) wrongfully refused to examine plaintiff's actual credit history and failed to provide him with a reasonable accommodation; and (3) refused to examine plaintiff's credit history in violation of public policy. Those issues were not decided on the merits by the trial court, whose determination was limited to the propriety of a preliminary injunction, and after carefully considering plaintiff's arguments in light of the applicable law and the procedural posture of this interlocutory appeal, we affirm the denial of a preliminary injunction.

On April 30, 2007, plaintiff filed a verified complaint against defendant alleging that plaintiff is a participant in the Section 8 rent subsidy program, 42 U.S.C.A. § 1437f, and that defendant's refusal to rent an apartment to plaintiff violated the NJLAD, N.J.S.A. 10:5-12g(4). Based upon plaintiff's verified complaint, the court entered an Order to Show Cause with temporary restraints, dated April 30, 2007. That order required defendant to ensure that there would be an apartment of the type sought by plaintiff available in the event plaintiff was successful. It also required defendant to show cause why an order should not be entered converting the temporary restraint into a preliminary injunction requiring defendant to execute a Section 8 lease and other documents necessary to commence plaintiff's subsidized tenancy. On May 16, 2007, plaintiff filed an amended verified complaint containing additional assertions of discrimination under NJLAD, the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Fair Housing Amendment Act, 42 U.S.C. §§ 3601-3619, requiring landlords to make reasonable accommodations with regard to a disabled person.

In an oral decision accompanied by a lengthy written Statement of Reasons, the trial court vacated the April 30, 2007 Order to Show Cause and denied the requested injunctive relief because it determined that plaintiff is unlikely to succeed on the merits of his claim. On June 19, 2007, plaintiff moved for leave to appeal, which we granted on July 11, 2007.

The pertinent facts of the case are as follows. Plaintiff, a seventy-seven-year-old retiree, is blind in one eye. He receives $1,000 per month in Social Security retirement benefits and his rent is subsidized by the Section 8 rental assistance program. Prior to and apparently at the time he filed his verified complaint in this litigation, plaintiff resided in a portion of a two-family home in Somerville, as to which plaintiff's landlord brought an action for possession so that the landlord could occupy the premises in its entirety. As a result, plaintiff was seeking alternate living accommodations.

Defendant owns and operates an apartment complex that consists of over 600 units. Plaintiff applied to rent an apartment in that complex and paid defendant a processing fee in connection with his application. According to defendant's Director of Property Management, defendant processed plaintiff's application in accordance with a screening procedure that uses a mathematical formula to assess an applicant's credit history, landlord-tenant history, income and criminal background. The analysis is designed to be neutral with regard to race, gender, creed, source of income and other protected class statuses, such as handicapped. Defendant maintains that data is input into a computer program that generates a score and an "accept" or "decline" indicator. The formula is applied to all applicants uniformly, and defendant uses only the scoring system based on the mathematical formula to determine the applicant's creditworthiness and whether the applicant is approved for a rental.

Plaintiff's application score did not come within the acceptable ranges of defendant's scoring system; thus, defendant informed plaintiff, through an adverse action letter, that his application was denied. In response plaintiff attempted to obtain his credit information from the third-party reporting agency providing the adverse credit information, but he could not reach the agency. Thereafter, plaintiff obtained the assistance of the Somerset County Division of Legal Services of Northwest Jersey and at some point, he learned from defendant that his credit score was low and that his report disclosed three lawsuits with prior landlords.

Plaintiff asserts that the report, generated by the third-party reporting agency and relied on by defendant, was erroneous and unreliable. For example, the report identified three tenancy court records involving plaintiff. Plaintiff notes that he was not a party to the reported September 18, 2001 case; that the November 15, 2004 case concerned a dispute over a security deposit on which he prevailed; and that the January 25, 2007 case involved the action by plaintiff's last landlord for possession based on the landlord's desire for personal occupancy. Plaintiff emphasizes that he has never been evicted for non-payment of rent.

Plaintiff further asserts that the reported credit history is misleading. In that regard, he notes that five unpaid medical bills identified in the report totaled a mere $354 and that the referenced child support obligation is not his, but rather it is the obligation of his son who shares the same name.

Plaintiff's counsel contacted defendant and provided the aforementioned explanatory and corrective information. He also charged that defendant engaged in source of income discrimination because defendant allegedly had not considered plaintiff's Section 8 housing voucher in connection with his application. Defendant notes that contrary to plaintiff's assertion, it does not discriminate against Section 8 voucher holders as there are approximately forty tenants with Section 8 vouchers in the complex. In addition, defendant asserts that it re-evaluated plaintiff's application, adding the Section 8 subsidy to ...


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