The following e-filed documents, listed by NYSCEF document number (Motion 012) 161, 162, 163, 164, 165, 166, 167, 336, 337, 338, 339, 340, 341, 342, 343, 344, 363 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION Upon the foregoing documents, and after oral argument on December 13, 2022, where Randolph McLaughlin, Esq. and Casey Pearlman, Esq. appeared for Plaintiff Housing Rights Initiative, Inc. (“HRI” or “Plaintiff”) and Richard Lavorata, Esq. appeared for Defendants Belinda Gillis (“Gillis”) and B. Belinda Realty, LLC (“Belinda Realty”) (collectively “Moving Defendants”), the Moving Defendants’ motion to dismiss is denied. Plaintiff’s cross-motion to amend its Complaint is granted. I. Factual and Procedural Background Plaintiff brought this action against real estate agents, brokerage firms, property management companies, and property owners, alleging intentional and willful source of income discrimination in violation of the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) (NYSCEF Doc. 1). Plaintiff’s Complaint was filed on May 25, 2022 (id.). It is alleged that Defendants have willfully and intentionally refused to rent apartments to individuals who intend to pay rent with CityFHEPS vouchers (id at
4-5). Plaintiff is a nonprofit housing group (id. at 9). Plaintiff alleges it has been injured by having to expend resources to investigate and to respond to Defendants’ discriminatory practices, which not only diverted Plaintiff’s resources, but frustrated Plaintiff’s mission (id.). Plaintiff utilized testers whose investigations allegedly revealed source of income discrimination perpetuated by Defendants who refused to accept CityFHEPS vouchers for advertised apartments. To qualify for a CityFHEPS voucher, a household must have a gross income at or below 200 percent of the federal poverty level. Further, the household must (a) include a veteran who is at risk of homelessness, or (b) the New York City Department of Social Services must determine that a CityFHEPS voucher is required to avoid shelter entry, or (c) the household must be facing eviction and includes someone who lived in a shelter and has an active adult protective services case, or (d) would otherwise be eligible for CityFHEPS if they were in a shelter (NYSCEF Doc. 49). The CityFHEPS voucher is issued to some of New York City’s most indigent and vulnerable citizens, helps prevent homelessness, and relieves New York City’s overly burdened shelter system. Plaintiff alleges that in 2019, only 20 percent of New Yorkers with a CityFHEPS voucher were able to secure housing, and that one of the primary reasons for this low percentage is source of income discrimination (NYSCEF Doc. 1 at 94). Plaintiff alleges that Defendants must comply with anti-discrimination laws under the NYSHRL and NYCHRL (id. at 95). Further, Plaintiff allege that the monthly rent charged by all named Defendants at each of the investigated properties did not exceed the CityFHEPS program’s maximum allowable rent (id. at 96). Moreover, Plaintiff alleges that all Defendants, their employees, or their agents, told Plaintiff’s testers that Defendants would not accept CityFHEPS as a source of payment for rent at the investigated properties (id. at 97). As to Moving Defendants, it is alleged that Belinda Realty employs Gillis, and that both Moving Defendants are in the business of brokering apartments in New York City (id. at 72). It is further alleged that Defendant 863 Sterling LLC (“863 Sterling”), who owns 863 Sterling Place #1, Brooklyn, New York (the “Apartment”) utilized Moving Defendants to list and rent the Apartment (id. at 73). It is alleged that the Apartment was listed as a studio apartment available for $1,650 per month (id. at 141). Plaintiff claims that on February 22, 2022, one of its testers posing as a prospective tenant contacted Gillis about the Apartment (id.). Gillis confirmed the Apartment was available; however when the tester asked if a CityFHEPS voucher could be used, Gillis responded “no.” (Id.). Plaintiff alleges that Gillis and Belinda Realty were acting as agents for 863 Sterling at the time of the aforementioned statements (id.). Plaintiff filed another action with similar allegations against different defendants in New York County Supreme Court on June 30, 2021 (see Housing Rights Initiative, Inc. v. Century 21 Dawns Realty, et. al., Index No.: 156195/2021) (the “Century 21 case”). In that case, two defendants moved to dismiss the complaint. By order dated August 16, 2022 (the “Century 21 Decision”), Justice William Franc Perry III dismissed the complaint against two of the defendants based on standing, although litigation continues against other defendants. On September 14, 2022, Plaintiff filed a motion to reargue Justice Perry’s decision. On November 9, 2022 the New York Attorney General filed an amicus brief in support of Plaintiff’s motion to reargue.1 In the case at bar, Moving Defendants filed this pre-answer motion to dismiss on October 26, 2022 (NYSCEF Doc. 161). Moving Defendants believe that Justice Perry’s decision collaterally estops this Court from finding Plaintiff has standing to bring this lawsuit (see NYSCEF Doc. 166). Moving Defendants argue that even if collateral estoppel does not apply, Plaintiff still lacks standing and has failed to state a claim (id.). In response, on December 2, 2022, Plaintiff cross-moved to amend its Complaint to specify further the alleged injuries it has suffered as a result of Defendants alleged discrimination (NYSCEF Doc. 336). Plaintiff also asserts that collateral estoppel does not apply since dismissal in the Century 21 case was based on standing. Plaintiff further asserts that since organizations like HRI have standing to bring claims based on testing under the Fair Housing Act, and since the NYSHRL and NYCHRL are meant to provide even broader remedial protection than their federal counterparts, then Plaintiff also has standing to bring claims of housing discrimination under both the NYSHRL and NYCHRL (NYSCEF Doc. 344). Plaintiff further argues that it has stated a cause of action under the NYSHRL and NYCHRL by alleging intentional and willful violations by Moving Defendants of applicable sections of the NYSHRL and NYCHRL. Moving Defendants opposed the cross-motion on December 8, 2022 (NYSCEF Doc. 363). II. Discussion A. Collateral Estoppel and CPLR §3211(a)(5) The Court will first assess whether collateral estoppel binds this Court to the Century 21 Decision. Collateral estoppel applies when “(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits” (Conason v. Megan Holding, LLC, 25 NY3d 1 [2015] [internal quotation marks and citation omitted], rearg denied 25 NY3d 1193 [2015]). Collateral estoppel is an equitable doctrine, grounded in the facts and realities of a particular litigation, and is not to be applied rigidly. Buechel v. Bain, 97 NY2d 295, 303 [2001]; Tydings v. Greenfield, Stein & Senior, LLP, 43 AD3d 680, 684 [1st Dept 2007]; Pustilnik v. Battery Park City Authority, 71 Misc.3d 1058, 1069 [Sup Ct, New York County 2021]). It is well established that a dismissal premised on lack of standing is not a dismissal on the merits for the purposes of res judicata and collateral estoppel (Landau v. LaRossa, Mitchell & Ross, 11 NY3d 8, 13 [2008] citing Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343 [1999]; see also Favourite Limited v. Cico, 208 A.D.3d 99, 108 [1st Dept 2022] ["standing and capacity related dismissals are not on the merits"]; Selene Finance, L.P. v. Coleman, 187 AD3d 1082 [2d Dept 2020]; Wells Fargo Bank, N.A. v. Ndiaye, 146 AD3d 684 [1st Dept 2017]; Tap Holdings, LLC v. Orix Finance Corp., 109 AD3d 167 [1st Dept 2013]). Because the Century 21 Decision on standing was not a final judgment on the merits, collateral estoppel does not apply (see Conason v. Megan Holding, LLC, 25 NY3d 1, 18 [2015] [finding that collateral estoppel cannot apply where four elements laid out by Court of Appeals were not met]; see also Zimmerman v. Tower Ins. Co. of New York, 13 AD3d 137, 139 [1st Dept 2004] ["Collateral estoppel is a component of the broader concept of res judicata, wherein the parties to a litigation and those in privity with them are conclusively bound by a judgment on the merits…] [emphasis added]). Thus, the motion to dismiss based on CPLR §3211(a)(5) is denied. B. Standing and CPLR §3211(a)(3) Although this Court is not collaterally estopped by the Century 21 Decision, as standing is another threshold Plaintiff must surmount, this Court will conduct a CPLR §3211(a)(3) analysis. On a motion to dismiss based on standing the burden is on the moving party to demonstrate that a plaintiff lacks standing. However, to defeat a CPLR §3211(a)(3) motion, the plaintiff merely needs to raise a triable issue of fact as to whether standing exists (DLJ Mortgage Capital v. Mahadeo, 166 AD3d 512, 513 [1st Dept 2018] citing Deutsche Bank Natl. Trust Co. Ams. v. Vitellas, 131 AD3d 52, 59-60 [2d Dept 2015]). The Court disagrees with Moving Defendants and finds they have not met their burden on this motion. Specifically, Plaintiff alleges that “When HRI finds discrimination, it diverts resources to address the problem through education and outreach, advocacy, training, collaboration and, if necessary, enforcement.” (NYSCEF Doc. 1 at 160). Plaintiff listed particularized measures it had to take resulting in a diversion of resources, including (1) providing educational materials to schools, churches, and other local partners concerning the responsibilities of landlords and brokers related to source of income discrimination; (2) publishing website content for HRI’s website about source of income discrimination in New York; (3) outreach to elected officials and government agencies to discuss HRI’s alleged findings; (4) outreach directly to Defendants themselves, and (5) publishing advertisements about source of income discrimination and rights of tenants (id. at 161). Plaintiff alleges this diversion of resources reduced HRI’s ability to further its advocacy related to rent stabilization laws and tax benefit programs (id. at 162). HRI alleges that if this alleged’ discrimination remains unabated, it will have to continue to divert resources to the detriment of other advocacy work (id. at 163). Plaintiff also submits a proposed amended complaint which provides other particularized injuries (NYSCEF Doc. 343). Plaintiff alleges that Defendants’ discrimination led to a reduction in available safe and affordable housing which led to increased demand and need for HRI’s organizing, counseling and referral services (id. at 177). Plaintiff also alleges it had to divert resources away from investigating fraudulent rent overcharge cases (id. at 179). Plaintiff quantified its injuries by alleging it was compelled to divert hundreds of hours of time to investigate, educate, and conduct outreach to address source of income discrimination (id. at
