Landlord Not Liable for Harassment by Fellow Tenants

On approximately eight occasions during 2012, tenant Endres harassed a fellow tenant, Francis, with verbal insults and a death threat. Endres hurled epithets at Francis, who is African American, using the N-word on numerous occasions and at one point saying, "I ought to kill you." Francis reported these incidents both to the police and to the landlord. The police ultimately arrested Endres for aggravated harassment. Despite three certified letters from Francis complaining of racial harassment and reporting slurs by Andres against Jewish people, landlord took no action against Endres until January 2013, when Endres moved out at the expiration of his lease. Endres subsequently pleaded guilty in state court to the harassment violation and the court issued an order of proration prohibiting him from contacting Francis.

Francis then brought an action against landlord and Endres in federal district court, alleging violations of the Fair Housing Act, the Civil Rights Act of 1866, and the New York State Human Rights Law and also seeking recovery for negligent infliction of emotional distress. The District Court entered a default judgment against Endres but granted landlord's motion to dismiss. A divided Second Circuit panel reversed and reinstated the federal and state Human Rights Law claims. The Second Circuit voted to rehear the case en banc and, by a vote of 7-5, reinstated the District Court's dismissal of the complaint against the landlord. Judge Jose Cabranes wrote for the majority; Judges Denny Chin and Raymond Lohier wrote for the dissenters.