
    Andresea Heard et al., Respondents, v Stratford I Limited Partnership et al., Appellants.
    [811 NYS2d 841]
   Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered July 26, 2005 in an action pursuant to Executive Law § 296. The order denied defendants’ motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiffs, an unmarried couple, commenced this action alleging that defendants had unlawfully discriminated against them based on their marital status by denying them housing accommodation in violation of Executive Law § 296 (5) (a) (1). Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint. According to plaintiffs, they were informed that, in order to combine their incomes for purposes of determining their eligibility for housing, they were required to be married. Also according to plaintiffs, they are unable to meet the minimum financial qualifications for housing because they are not married. Executive Law § 296 (5) (a) (1) prohibits discrimination based on an individual’s marital status, not based on an individual’s marital relationship (see Levin v Yeshiva Univ., 96 NY2d 484, 490-491 [2001]; Matter of Manhattan Pizza Hut v New York State Human Rights Appeal Bd., 51 NY2d 506, 512 [1980]), i.e., it is not unlawful discrimination if plaintiffs are “denied [housing] ‘not for being [un]married, but for being [un]married to’ one another” (Matter of Hoy v Mercado, 266 AD2d 803, 804 [1999]). Defendants’ policy with respect to combining incomes to meet minimum financial qualifications for housing eligibility does not constitute discrimination based on marital status. Rather, defendants’ policy is based on the absence of a marital relationship between plaintiffs, which does not constitute unlawful discrimination (see Levin, 96 NY2d at 490-491). Present— Hurlbutt, J.P., Gorski, Martoche, Smith and Hayes, JJ.  