Cabrera v. Fischler, CV 87-2675 (ADS).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation814 F. Supp. 269
Docket NumberNo. CV 87-2675 (ADS).,CV 87-2675 (ADS).
PartiesOrlando CABRERA, Linda McCoggle and Jeanette Ramsey, on behalf of themselves and all others similarly situated, and the Open Housing Center, Inc., Plaintiffs, v. Emanual FISCHLER, d/b/a AM Realty Co., James Siegel, Carl Matos, a/k/a Carlos Matos, Jeno Jakabovitz, and Benjamin Breitman, Defendants.
Decision Date17 February 1993


Schulte Roth & Zabel, New York City, David Brodsky, Lynn E. Judell, of counsel, for plaintiffs.

Snow Becker Krauss, P.C., New York City, Leonard W. Wagman, of counsel, for defendant Breitman.

Marvin H. Wolf, Dix Hills, NY, for defendant Jakabovitz.

Emanual Fischler, pro se.

Carlos Matos, pro se.

James Siegel, pro se.


SPATT, District Judge.

In this class action, a jury determined that the defendants, who are landlords and real estate brokers, discriminated against two of the three individual black and hispanic plaintiffs and two other black individuals who had inquired about renting apartments in Brooklyn. The jury awarded the successful individual plaintiffs nominal damages and the plaintiff Open Housing Center compensatory and punitive damages against each defendant except the defendant-landlord Benjamin Breitman, against whom the jury declined to award even nominal damages.

Before the Court at this time are the following motions: (1) the plaintiff Open Housing Center, Inc. moves for an award of nominal damages against Breitman; (2) all successful plaintiffs seek equitable relief and an award of attorney's fees against all of the defendants, (3) the defendant-landlord Benjamin Breitman moves for "judgment on the verdict", and (4) the defendant-landlord Jeno Jakabovitz moves to set aside the verdict against him in favor of the plaintiff Jeanette Ramsey.


Defendants Jeno Jakabovitz ("Jakabovitz") and Benjamin Breitman ("Breitman") each own apartment buildings in Brooklyn—Jakabovitz owns fourteen buildings, Breitman owns two. In attempting to rent the few vacancies which arose in their buildings during the times relevant to this action, Jakabovitz and Breitman employed the services of AM Realty Co. ("AM Realty"), a real estate agency owned and operated by the defendant Emanual Fischler ("Fischler"). Defendants James Siegel ("Siegel") and Carl (Carlos) Matos ("Matos") were two of AM Realty's salespersons during this period.

The plaintiffs alleged that Jakabovitz and Breitman, through the acts of the their agent, AM Realty, discriminated against Orlando Cabrera ("Cabrera"), a hispanic male, and Linda McCoggle ("McCoggle"), a black female, both named individual plaintiffs, and Ronald Luckett ("Luckett"), a black male, and Augustin Hinkson ("Hinkson"), a black male, on the basis of race, by refusing to show apartments in their respective buildings to these individuals.

At the trial, the plaintiffs offered proof that Cabrera, McCoggle, Luckett and Hinkson, individually and on separate occasions, went to AM Realty seeking apartments in the Brooklyn communities of Midwood, Sheepshead Bay and Kings Highway. Cabrera, McCoggle and Luckett each met with Matos; Hinkson met with Siegel. They were each told by the salesperson with whom they spoke that, in effect, no apartments matching their request were immediately available. Instead, these individuals were "steered" to available apartments in areas of Brooklyn with a greater minority population and were, in most cases, offered the opportunity to inspect these apartments.

The plaintiffs further offered proof that shortly after the black or hispanic apartment seeker left AM Realty, a white apartment seeker entered the agency and inquired about housing similar to that requested by the black or hispanic apartment seeker who preceded him or her. The proof revealed that these white apartment seekers were each told that apartments of the type and location sought by both the white and minority apartment seekers were available. Specifically, the white apartment seekers who followed Cabrera, McCoggle and Hinkson were informed of apartments available in buildings owned by Jakabovitz, while the white apartment seeker who followed Luckett was informed of the availability of an apartment in one of Breitman's buildings.

Additionally, plaintiff Jeanette Ramsey ("Ramsey"), a black female, alleged that Jakabovitz personally discriminated against her, similarly on the basis of her race. Ramsey and a white apartment seeker did not meet with anyone from AM Realty but rather dealt with Jakabovitz personally.

In sum, the plaintiffs contended at the trial that the defendants' disparate treatment of the black or hispanic apartment seekers, as compared to the treatment accorded the white apartment seekers, constituted discrimination in violation of applicable law.

The above-described activities were the product of "tests" conducted by the plaintiff Open Housing Center. Judge Haight of the Southern District of New York recently described the Open Housing Center as

"a not-for-profit New York corporation whose primary purpose is to promote equal opportunity in housing in the New York metropolitan area. It seeks to eliminate unlawful racially discriminatory housing practices in respect of the rental or purchase of apartment units in the metropolitan area, and to assure all persons seeking to rent or buy apartment units the housing of their choice, free of discrimination. In aid of these goals, the OHC assists individuals in obtaining equal access to housing; prepares and distributes information on housing in all five boroughs of New York City; investigates allegations of discrimination and refers complaints to appropriate public agencies or private attorneys; provides counseling and referral services to members of the public who seek housing opportunities; and educates members of the public about housing issues and their legal rights." (Open Housing Ctr., Inc. v. Samson Management Corp., No. 91-5111, 1992 WL 309862, 1992 U.S. Dist. LEXIS 15729 S.D.N.Y. October 14, 1992. See also Amended Complaint, ¶ 8.)

In conducting its "tests" in this case, the Open Housing Center sent a black or hispanic person to either AM Realty or Jakabovitz to inquire about available apartments in the Midwood, Sheepshead Bay and Kings Highway communities. After the black or hispanic person's visit, a white person visited the same party and asked about the availability of similar housing.

These pairs of people are commonly called "testers". They have no actual intention of renting an apartment, but pose as renters for the purpose of collecting evidence of unlawful discriminatory practices. Other than race, the tester pairs sent by the Open Housing Center purported to possess substantially similar distinguishing characteristics and personal backgrounds. The plaintiffs argued that the differences in the way the white testers and the black and hispanic testers were treated indicated discrimination.

This two-week trial resulted in a jury verdict on May 13, 1992. The jury found that salesperson Matos discriminated against Cabrera and Luckett in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq., but determined that Matos did not discriminate against plaintiff McCoggle. Additionally, the jury found that salesperson Siegel discriminated against Hinkson, in violation of the Fair Housing Act, and that Jakabovitz discriminated against Ramsey in violation of the Fair Housing Act, the Civil Rights Act of 1870, 42 U.S.C. § 1981, involving the right to enter into a contract, and the Civil Rights Act of 1866, 42 U.S.C. § 1982, involving the right to lease real property.

Preliminarily, the jury determined that both Siegel and Matos acted within the scope of their authority and in furtherance of the business of Fischler, doing business as AM Realty. The jury further found that Fischler, doing business as AM Realty, acted as the agent of the landlord-defendants Jakabovitz and Breitman with regard to the events at issue in this case. By these findings, the jury held the landlord-defendants liable for the discriminatory acts of their agent, AM Realty.

Having so determined, the jury declined to award compensatory damages to either Cabrera or Ramsey, the testers. Instead, the jury awarded them each nominal damages in the sum of one dollar. The jury awarded the Open Housing Center compensatory damages against Siegel in the sum of $1,000, against Matos in the sum of $3,000, and against Jakabovitz in the sum of $8,000. In addition, the jury declined to award punitive damages in favor of Cabrera or Ramsey against any of the defendants, but awarded such damages to the Open Housing Center in the sums of $1,000 against Fischler, $350 against Siegel, $1,000 against Matos, and $1,000 against Jakabovitz. The jury declined to award any compensatory, nominal or punitive damages against Breitman.

When the jury determined that AM Realty acted as Breitman's agent and that Matos discriminated against Luckett, yet declined to award even nominal damages against Breitman, the Court directed the jury to further deliberate on the issue of damages against Breitman. The jury quickly returned and confirmed its original decision, declining to award any damages against Breitman.

Numerous other parties were originally named as party defendants. However, the plaintiffs and these other defendants entered into consent decrees, approved by Judge Korman of this Court, leaving only Fischler d/b/a AM Realty, Matos, Siegel, Breitman, Jakabovitz, and Marianne Hascup ("Hascup"), another of AM Realty's brokers, as the remaining defendants. At the trial, this action was dismissed as against Hascup. Additionally, Ronald Luckett was originally named as a plaintiff in this action but withdrew before the trial.

Although real estate agencies have been held liable for the discriminatory acts of the brokers they employ (see, e.g., City of Chicago v. Matchmaker Real Estate Sales Center, Inc., 982...

To continue reading

Request your trial
32 cases
  • Ragin v. Harry Macklowe Real Estate Co., 88 Civ. 5665 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • December 9, 1994 Holman's firms in consideration of the 20% reduction that they offered after the hearing on February 16. See Cabrera v. Fischler, 814 F.Supp. 269 (E.D.N.Y.1993), rev'd in part on other grounds, and remanded 24 F.3d 372 (2d Cir.1994) (reducing compensable number of hours by 30% "in light ......
  • Loper v. New York City Police Dept., 90 Civ. 7546 (RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 24, 1994
    ...appears to be more than a reasonable rate award for a sole practitioner of intermediate experience. See, e.g., Cabrera v. Fischler, 814 F.Supp. 269 (E.D.N.Y.1993) (awarding $200 per hour; citing civil rights cases fee awards ranging from $175-$250), aff'd in part, rev'd on other grounds, 24......
  • Cabrera v. Jakabovitz, s. 317
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 5, 1994
    ...the broker-defendants, who have not appealed, (d) injunctive and affirmative relief, and (e) attorney's fees. See Cabrera v. Fischler, 814 F.Supp. 269 (E.D.N.Y.1993). Only the landlords appeal. Plaintiffs cross-appeal from the Court's reduction in their attorney's fees request and its denia......
  • Cobell v. Norton, Civ.A. 96-1285(RCL).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 19, 2005
    ...Court will reduce these and similarly inadequate entries in accordance with the formula set out in Appendix V. See Cabrera v. Fischler, 814 F.Supp. 269, 289-90 (E.D.N.Y. 1993), aff'd in part, remanded in part on other grounds, 24 F.3d 372 (2d Cir.1994) (for entries such as "staff meeting," ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT