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A co-op board’s policy of treating married couples as a single economic unit and unmarried partners as separate economic units may be discriminatory, a Manhattan judge has ruled. The policy resulted in Andrew Jorgensen being denied the right to jointly purchase shares in an apartment with his girlfriend Lisa Latoni. “Jorgensen would have been financially qualified had [the co-op board] applied the same policies and practices to him as it applies to married individuals,” Supreme Court Justice Emily Jane Goodman held in Latoni v. Sherman Square, 0110002/2004. “Jorgensen loses a significant benefit solely because he is single.” Goodman granted in part and denied in part the co-op board’s motion to dismiss, allowing Jorgensen’s discrimination claim to go forward. The judge dismissed Jorgensen’s disparate-impact claim and both causes of action set forth by his partner, Latoni. The plaintiffs are “heterosexual, cohabiting, and unmarried,” according to the decision. The couple jointly sought and received a mortgage commitment from their bank, and applied together to purchase their apartment in Sherman Square, an Upper West Side co-op. Latoni works in publishing, according to her attorney, and Jorgensen ran his own consulting business. The board informed the couple that Latoni would be allowed to purchase the shares, but that they could not purchase them jointly because Jorgensen had been deemed financially unqualified. Had the board judged the couple as a single unit, as it does married couples, the plaintiffs would have qualified for the joint purchase. The couple therefore initiated its action against the co-op and its president, William DeRosa. “In our contemporary social environment, it might be natural to conclude that policies and practices treating married couples differently from others … are not only antiquated, but are discriminatory,” Goodman wrote. There are legal hurdles, however, to reaching that conclusion, she added. Two such hurdles are Hudson View Properties v. Weiss, 59 NY2d 733 and Levin v. Yeshiva University, 96 NY2d 484. In Hudson View, the Court of Appeals held that the eviction of an unmarried woman who lived with her partner did not violate New York City or state Human Rights Laws. The court reasoned that the plaintiff had not been evicted because she was single, but rather because she lived with someone who was not a member of her family, in violation of the lease. In Levin, the court held that Yeshiva’s housing policy did not violate Human Rights Laws by excluding a plaintiff’s lesbian partner. “A distinction must be made between the complainant’s marital status as such, and the existence of the complainant’s disqualifying relationship — or absence thereof — with another person,” the court held. In allowing Jorgensen’s claim to go forward, Goodman distinguished his claim from the plaintiffs’ claims in Hudson View and Levin. “He does not allege that he suffered discrimination as a result of a denial of a benefit to Latoni, but rather, as a result of a denial of a benefit to himself,” the judge wrote. “[U]nlike Hudson View Properties and Levin, Sherman Sq.’s practices and policies do not favor families, but rather favor married persons,” Goodman wrote. “Moreover, unlike Levin, Jorgensen was not denied a benefit because of a disqualifying relationship with another person ineligible for that benefit.” Jorgensen would have qualified if the co-op applied the same policies to him as it does to married individuals, according to the decision. He lost a benefit solely because of his unmarried status. “This is sufficient to make a prima facie case of discrimination, on the basis of marital status, in ‘the terms, conditions, or privileges of the sale, rental or lease of any … housing accommodation,’” Goodman held, citing Administrative Code �8-107(5)(a)(2). The plaintiffs attorney, Craig Gurian, executive director of the Anti-Discrimination Center of Metro New York, said the decision calls attention to a poorly understood area of law. “It establishes an important precedent, that an unmarried individual still has a viable claim where policies that favor married couples impose inferior terms and conditions on that individual,” Gurian added. Joseph J. Barker and John T. Van Der Tuin of Balber Pickard Battistoni Maldonado & Van Der Tuin represented the co-op, Sherman Square. “The justice got three-quarters of the way home and didn’t quite make it all the way,” Van Der Tuin said, referring to Goodman’s dismissal of three of the four causes of action. “These are serious issues for co-op boards, and I expect the issue will ultimately get appellate review. [It's] very important for the co-ops and the boards to review and set some standards for the financial wherewithal of individual shareholders.” Howard Suckle and John L. Leifert of Suckle Schlesinger & Leifert represented the co-op president, DeRosa. Suckle declined to comment.

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