Opinion
May 11, 2000.
Order and judgment (one paper), Supreme Court, New York County (Franklin Weissberg, J.), entered March 29, 1999, which granted defendants' motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.
James D. Esseks, for plaintiffs-appellants.
Mark A. Jacoby, for defendants-respondents.
SULLIVAN, P.J., ROSENBERGER, NARDELLI, WILLIAMS, TOM, JJ.
Liberally construing the pleadings, and accepting the facts alleged as true, the motion court properly determined that the complaint failed to state a cause of action (see, Leon v. Martinez, 84 N.Y.2d 83, 87-88). Defendants' written policy, permitting medical students to live in its housing with fellow students or with their spouses and dependent children, did not discriminate against plaintiffs, unmarried women who were denied permission to live with their life partners in such housing, on the basis of marital status in violation of the State and City Human Rights Laws (Executive Law §§ 296 Exec.[5][a][1], 296 Exec.[2-a]; Administrative Code of City of N.Y. §§ 8-107[5], 8-130; Matter of Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Bd., 51 N.Y.2d 506; Hudson View Props. v. Weiss, 59 N.Y.2d 733; Matter of Hoy v. Mercado, 266 A.D.2d 803, 698 N.Y.S.2d 384; Raum v. Rest. Assocs., 252 A.D.2d 369, appeal dismissed 92 N.Y.2d 946; Funderburke v. Uniondale Union Free School Dist. No. 15, 251 A.D.2d 622, lv denied 92 N.Y.2d 813;McMinn v. Town of Oyster Bay, 105 A.D.2d 46, affd 66 N.Y.2d 544). Plaintiffs also failed to establish that defendants' policy had a disparate impact on homosexuals since it had the same impact on non-married, heterosexual medical students as it had on non-married, homosexual medical students (see, Hudson View Props. v. Weiss, supra;Foray v. Bell Atl., 56 F. Supp.2d 327). Contrary to plaintiffs' additional contention, defendants' policy did not violate the Roommate Law (Real Property Law § 235-f) since the statute applies to premises occupied by a tenant as his primary residence. A full-time student does not change his primary residence by living temporarily in student housing (see, 9 N YC.R.R. § 2523.5[b][2][ii]; Braun v. Fraydun Realty Co., 158 A.D.2d 430).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.