In an en banc decision, the U.S. Court of Appeals for the Second Circuit recently addressed the question of whether a New York landlord that does not curtail “tenant-on-tenant” harassment could be subject to a claim for housing discrimination under the Federal Fair Housing Act and the New York State Executive Law pursuant to a “deliberate indifference” theory. Francis v. Kings Park Manor, 992 F.3d 67, 75 (2d Cir. 2021).

The Francis court explained that while “deliberate indifference may be used to establish liability under the FHA [and the New York State Executive Law] when a plaintiff plausibly alleges that the defendant exercised substantial control over the context in which the harassment occurs and over the harasser,” Mr. Francis provided no factual basis to infer that his landlord had substantial control over other tenants. Id. Nor could any such control be presumed “in the typically arms-length relationship between landlord and tenant, unlike the custodial environments of schools and prisons.” Id. (For a discussion about the current split between the Second and Seventh Circuits as to “tenant-on-tenant” harassment under the FHA, see Andrew M. Lieb, Landlord Liability for Tenant-on-Tenant Discrimination: Split in the Federal Circuits, N.Y.L.J., April 14, 2021.)