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The Albert Einstein College of Medicine may deny gay couples housing in university apartments that are provided for married students without violating the state’s anti-discrimination laws, New York’s Appellate Division, First Department, ruled last week. In a brief unsigned decision, the court rejected arguments that the medical school’s ban on housing unmarried couples discriminated on the basis of marital status or sexual orientation. The unanimous ruling also rejected a claim that the policy violates a state law protecting the rights of “roommates.” Joining in the unanimous decision were Justices Eugene Nardelli, Peter Tom, Angela Mazzarelli, Richard W. Wallach and Richard T. Andrias. James D. Esseks of Vladeck, Waldman, Elias & Engelhard, counsel for the two lesbian medical students who challenged the school’s policy, said leave to appeal to the Court of Appeals would likely be sought. The suit is one of the first in the nation to test whether a school can deny apartments to lesbian and gay couples while providing them for married couples. The dispute began in 1996 when Sara Levin, a third-year student, and Carla Richmond, a first-year student, each sought university apartments, which rent at below market levels, for themselves and their partners. Both couples had registered with the City Clerk as domestic partners. The medical school, which is a part of Yeshiva University, however, denied both couples apartments because they were unmarried. In upholding the ruling of Justice Franklin Weissberg, the appellate panel found that medical school’s policy did not constitute discrimination under a line of Court of Appeals precedents going back to its 1983 opinion in Hudson View Properties v. Weiss, 59 NY2d 733. In Hudson View, the Court ruled that the eviction of a woman who was living with her boyfriend in violation of a lease provision restricting occupancy in the apartment to “immediate family members” did not violate the ban on marital status discrimination in the State Human Rights Law. The State Legislature responded to the Hudson View ruling by enacting a statute conferring right to roommates under the state’s rent protection statutes. But, the First Department found that the statute, Real Property Law �235-f(2), does not apply to students because it only protects a primary residence. “A full-time student does not change his primary residence by living temporarily in student housing,” the court wrote in Levin v. Yeshiva University. The court also found no violation of the prohibition on sexual orientation discrimination in the City Human Rights Law because there was no showing of a disparate impact on homosexuals. The policy of denying university housing to unmarried students applies in a like manner to both unmarried heterosexual couples and homosexual couples, the panel observed. An appeals court in Oregon reached a different result in 1998 when it struck down a ban on gay couples in university apartments as violating that state’s constitution. Yeshiva University was represented by Mark A. Jacoby of Weil, Gotshal & Manges.

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