Peeling paint and mold in the bathroom of a NYCHA apartment. Photo: Seth Wenig/AP

A federal judge has preserved claims in a proposed class action filed against the New York City government and the embattled New York City Housing Authority for allegedly failing to inspect for and remove lead paint from public housing and declined to let the city off the hook as a defendant in the case.

Ruling on the defendants' motions to dismiss, U.S. District Judge William Pauley III of the Southern District of New York pared down claims, filed by a group of four NYCHA tenants who have young children, that they were deprived of their procedural and substantive due process rights.

The judge found that, while the tenants have come forward with “troubling allegations” that NYCHA stopped inspecting its housing stock for lead paint in 2012 and that officials lied to the federal government about the authority's compliance with due process laws, there is no due process right to a “certain standard of housing.”

But the judge preserved the plaintiffs' claims under the Fair Housing Act that NYCHA's approach to the lead paint issue may dissuade families with children from moving to or remaining in NYCHA apartments and claims under the Residential Lead-Based Paint Hazard Reduction Act, a law enacted in 1992 directing the U.S. Department of Housing and Urban Development and the U.S. Environmental Protection Agency to pass rules requiring home sellers and landlords to disclose the presence of lead paint on their properties in housing contracts.

NYCHA stopped conducting inspections for lead paint in 2012, the plaintiffs allege, but falsely reported to HUD that it was in compliance with the law and that it kept up with annual inspections from 2013 to 2016.  

Pauley said that NYCHA's argument that it could not have disclosed information about lead since 2012 because it was not conducting inspections is “beyond the pale.”  

“One abject failure does not excuse another,” the judge said. “There is a need to ascertain what NYCHA knew and when it knew it.”

Levy Konigsberg partner Corey Stern, who represents the plaintiffs, said that the plaintiffs' attorneys were “thrilled” that the judge preserved their FHA and lead disclosure claims, saying that there were residents of some 176,000 apartments who were not informed for years that their apartments contained lead paint.

“You have so many people who probably never would have lived in those apartments had they been provided with accurate lead disclosures,” Stern said.

Levy Konigsberg attorneys Brendan Little and Renner Walker are also appearing for the plaintiffs.

NYCHA's false certifications to HUD were detailed in a scathing report that the city's Department of Investigation released in November, and the NYCHA admitted that it failed to inspect common areas in its buildings and hired unqualified lead paint inspectors.

Senior NYCHA officials knew that the authority was out of compliance with federal lead paint laws by 2016 at the latest, the plaintiffs allege, and the false certifications to HUD exacerbated the lead paint crisis in the city's public housing by concealing the issue and delaying remediation, and the NYCHA did not inform tenants about the presence of lead in their units, which is required by federal law.

Pauley also presides over a federal suit against NYCHA regarding mold in its properties, and the authority's lead paint issue is also the subject of a state court case in Manhattan in which a judge recently ordered NYCHA to conduct inspections for lead paint.

In April, Gov. Andrew Cuomo declared a state of emergency for the NYCHA, and Shola Olatoye, the housing authority's chair and CEO, announced she would step down from her post.

The tenants in the proposed lead paint class action also brought a First Amendment claim that NYCHA's misrepresentations to HUD deprived them of a chance to speak out against the NYCHA; Pauley called the argument a “novel” one but said the plaintiffs did not allege that their speech was restricted.  

Turning to the city government's argument that it should be let go from the case since the NYCHA is a separate entity, Pauley said that, while case law has held that the two bodies are indeed separate, the failure to report and abate lead paint on NYCHA properties was allegedly  orchestrated at the highest levels of both NYCHA and the city government.

Pauley noted that the city's mayor appoints the NYCHA chairperson and board members, who all serve at the pleasure of the mayor. Additionally, the plaintiffs argue that Mayor Bill de Blasio participated in the concealment of lead paint violations and that de Blasio has said publicly that he is responsible for the NYCHA.

In May, following a two-year investigation by the U.S. Attorney's Office for the Southern District of New York into health and safety concerns on NYCHA properties as well as the entity's handling of the lead paint issue, the NYCHA entered into a settlement agreement with federal prosecutors in which the authority is set to receive a $4 billion infusion of federal, state and local money that will be overseen by a federal monitor, of which the city is chipping in more than $2 billion.

Herzfeld & Rubin attorneys Peter Kurshan, Wendy Prince and Miriam Skolnik are representing NYCHA in the case. NYCHA did not immediately respond to a request for comment.

Assistant Corporation Counsels Mark Muschenheim, Max Sarinsky and Darren Trotter are appearing for the city in the case.

Nicholas Paolucci, a spokesman for the Law Department, said the city was disappointed by Pauley's ruling to keep the city as a party to the suit.

“The city, which is a separate legal entity from NYCHA, has voluntarily committed billions of dollars to address the conditions at NYCHA,” Paolucci said.