294 F.Supp. 134 (S.D.N.Y. 1968), 68 Civ. 1401, Colon v. Tompkins Square Neighbors, Inc.

Docket Nº:68 Civ. 1401.
Citation:294 F.Supp. 134
Party Name:Rosalyn COLON et al., Plaintiffs, v. TOMPKINS SQUARE NEIGHBORS, INC., et al., Defendants.
Case Date:September 24, 1968
Court:United States District Courts, 2nd Circuit, Southern District of New York

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294 F.Supp. 134 (S.D.N.Y. 1968)

Rosalyn COLON et al., Plaintiffs,



No. 68 Civ. 1401.

United States District Court, S.D. New York

Sept. 24, 1968

Page 135

[Copyrighted Material Omitted]

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Harold J. Rothwax, New York City, for plaintiffs; Nancy E. LeBlanc, Michael B. Rosen, New York City, of counsel.

Szold, Brandwen, Meyers & Altman, New York City, for defendants; Daniel M. Sandomire, Joseph Z. Epstein, New York City, of Counsel.

J. Lee Rankin, New York City, for codefendant; Joachim Titolo, Jamaica, and Judah Dick, New York City, of counsel.


TENNEY, District Judge.

This is a motion by defendants for an order dismissing the complaint herein for the following reasons: (1) that plaintiffs, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, have failed to state a claim upon which relief can be granted; (2) that this Court lacks jurisdiction under 42 U.S.C. § 1983; and (3) that primary jurisdiction over the within cause of action lies with the appropriate administrative agencies. In the alternative, defendants seek a declaration pursuant to 28 U.S.C. § 1292(b) permitting their taking of an interlocutory appeal from the determination of the within motion and from the order of this Court dated June 26, 1968.

A brief review of the history of this cause of action from the time the complaint was filed on April 5, 1968, reveals that on April 15, 1968 Judge Tyler of this court denied plaintiffs' motion for a preliminary injunction, suggesting, however, that discovery proceedings be immediately commenced. Plaintiffs thereupon, within 20 days from the date the complaint was filed, brought on a motion pursuant to Rule 34 of the Federal Rules of Civil Procedure for discovery. This Court, sua sponte, dismissed the complaint on the grounds that the Civil Rights Act, Pub.L. No. 90-284, § 810(d) (April 11, 1968), required district courts to abstain from exercising jurisdiction in cases involving racial discrimination, where plaintiffs have not exhausted their state remedies, and where such remedies are as broad in scope as those offered by the statute. 289 F.Supp. 104.

On June 26, 1968, this Court granted plaintiffs' motion for reargument and, upon reargument, adhered to its prior order of dismissal with respect to plaintiffs' claim of racial discrimination but reinstated the claims involving discrimination against welfare recipients and defendants' failure to publish a list of standards applicable to tenant eligibility, pending a determination by the Court of Appeals for the Second Circuit in Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir., July 18, 1968).

The Court of Appeals in Holmes, id., affirmed the order of the district court which denied defendant's motion to dismiss for failure to state a claim upon which relief could be granted. In that case, plaintiffs (all applicants for public housing), pursuant to 42 U.S.C. § 1983 and the Federal Constitution, challenged the procedures employed by the New York City Housing Authority (hereinafter referred to as the 'Authority') as regards the admission of tenants to certain low-rent public housing projects managed by the Authority and financed by either Federal, State or local funds. The facts as alleged therein indicate that the regulations regarding admission policies and procedures were not made available to prospective tenants either by publication and distribution or by posting. The applications were processed neither in accordance with 'ascertainable standards' nor in keeping with any systematic manner. The Court specifically found that the allegations evidenced that:

'All applications, whether or not considered and acted upon by the Authority, expire automatically at the end of two years. A renewed application is given no credit for time passed, or

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precedence over a first application of the same date. There...

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