Girard v. 94th St. & Fifth Ave. Corp.

• Decision Date: 19 May 1976
• Docket Number: No. 372,D,372
• Citation: 530 F.2d 66
• Parties: Barbara GIRARD, Plaintiff-Appellant, v. 94TH STREET AND FIFTH AVENUE CORPORATION et al., Defendants-Appellees. ocket 75--7443.
• Court: U.S. Court of Appeals — Second Circuit

Page 66

530 F.2d 66

Barbara GIRARD, Plaintiff-Appellant, v. 94TH STREET AND FIFTH AVENUE CORPORATION et al., Defendants-Appellees.

No. 372, Docket 75--7443.

United States Court of Appeals, Second Circuit.

Argued Oct. 1, 1975.

Decided Jan. 13, 1976.

Certiorari Denied May 19, 1976.

See 96 S.Ct. 2173.

O. John Rogge, New York City, Ballon, Stoll & Itzler, New York City, of counsel, for plaintiff-appellant.

Martin I. Shelton, New York City (Geoffry R. Handler, James H. Schuyler, Shea, Gould, Climenko, Kramer & Casey, New York City, of counsel), for defendants-appellees.

Before WATERMAN, OAKES and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York, Robert J. Ward, District Judge, granting defendants' motion for summary judgment by dismissing plaintiff's 42 U.S.C. § 1983 ¹ claim for failure to establish the necessary 'state action,' dismissing plaintiff's 42 U.S.C. § 1985(3) ² claim because plaintiff did not establish the actionable 'conspiracy' required, and dismissing plaintiff's pendent state claim. Girard v. 94th Street and Fifth Avenue Corp., 396 F.Supp. 450 (S.D.N.Y., 1975).

In 1968, during their marriage, plaintiff's former husband purchased 497 shares of stock from 94th Street and Fifth Avenue Corporation ('the corporation'), the owner and manager of a cooperative apartment building in New York City. As part of that transaction, Mr. Girard obtained a proprietary lease to the fourth floor of the building. The Stock Certificate contains a restriction that the shares represented thereby may be sold only to the corporation or to an assignee of the proprietary lease after compliance with certain provisions of the proprietary lease, which required that Mr. Girard obtain the written consent of the board of directors before any assignment of his interest in the apartment could become effective; in the event of a violation of this restriction, the corporation could terminate the lease.

In 1973, as part of a separation agreement between plaintiff and her husband, Mr. Girard assigned his interest in the apartment to plaintiff in lieu of alimony; the separation agreement was incorporated into the judgment of divorce granted later that year. No consent to assignment from the board of directors had been solicited or received. When plaintiff subsequently requested that she be recognized as the lawful stockholder and tenant, the board of directors, giving no reason, refused its consent, rejected plaintiff's demand that the stock be transferred from Stephen Girard to Barbara Girard and refused to register the transfer on the books of the corporation.

Plaintiff then initiated suit ('Action $1') in the Supreme Court of New York seeking both a declaration that the corporation's refusal was arbitrary, capricious, and unreasonable and an order compelling the corporation to transfer the stock on its books to her and to consent to an assignment of the lease. The corporation commenced its own action ('Action $2') for possession and eviction because of the unauthorized assignment and the failure to pay maintenance costs. The state court granted defendant's motion for summary judgment in Action $1, finding that the consent provision of the lease was enforceable under state law and that 'the cooperative apartment corporation had the right to refuse to consent to the transfer of the lease to plaintiff for any reason deemed satisfactory to it (except, of course, those prohibited by the Civil Rights Laws).' The Appellate Division, First Department, affirmed the order and judgment. 46 A.D.2d 848, 362 N.Y.S.2d 405 (1974). Plaintiff's motion for leave to appeal to the New York Court of Appeals was denied.

Plaintiff then instituted this suit, alleging that the corporate defendant and the individual defendants, as its officers and board of directors, violated her rights under 42 U.S.C. § 1983 by refusing to consent to the assignment of the lease solely because she is female. She also alleged that defendants conspired to deprive her of her civil rights because of her sex, a violation of 42 U.S.C. § 1985(3). Finally, plaintiff alleged that defendants violated New York Executive Law § 296(5)(a)(1) (1972). ³ Plaintiff sought a declaration of her rightful ownership of the stock and proprietary lease and an injunction preventing any wrongful interference with her peaceful possession of the premises.

I. Plaintiff's Claim Under 42 U.S.C. § 1983

For the plaintiff to prevail under 42 U.S.C. § 1983 she must prove that the defendant, under color of any statute, ordinance, regulation, custom or usage of any state, has deprived her of a right secured by the Constitution and laws of the United States. Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). An act chargeable to the state is a necessary element to be pleaded and proved. Plaintiff asserts that the judgments rendered by the state court in Action $1 and Action $2 constitute state action for § 1983 purposes.

Certainly a state court judgment can be state action. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). We must decide if within the meaning and scope of § 1983 the state court's enforcement of the lease provision is a deprivation by state action of a right secured to plaintiff by that statute and the Constitution. In Shelley v. Kraemer, supra, 334 U.S. at 4, 68 S.Ct. at 838, the Supreme Court defined the question before it as 'the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property.' The white seller in that case had agreed to sell property to a black purchaser contrary to an agreement among property owners. Another owner sought to prevent the transfer by seeking enforcement of the agreement through court action. While stating that the private restrictive agreement itself did not violate Fourteenth Amendment rights, where the purposes of the agreements were secured only by judicial enforcement, the state was a participant within the meaning of the Fourteenth Amendment. Shelley v. Kraemer, supra, 334 U.S. at 13, 68 S.Ct. 836. The posture of the present case is significantly different from the situation in Shelley, however. The contested provision in Shelley was racially discriminatory on its face. The lease provision in question here, requiring consent of the board of directors before transfer is effective, can only be described as neutral; there is no suggestion of any prohibition of transfer of ownership on the basis of sex.

Summarizing prior holdings dealing with the state action concept, the Supreme Court has stated that 'where the impetus for the discrimination is private, the State must have 'significantly involved itself with invidious discriminations,' . . . in order for the discriminatory action to fall within the ambit of the constitutional prohibition.' Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972). This Court has recognized the existence of a 'double standard' of review for state action. In cases involving racial discrimination, a particularly offensive class-based discrimination, the court has used a 'less onerous' test than for other claims. See Jackson v. Statler Foundation, 496 F.2d 623, 629 (2 Cir. 1974); Weise v. Syracuse University, 522 F.2d 397 (2 Cir. 1975); Barrett v. United Hospital, 376 F.Supp. 791, 797 (S.D.N.Y., 1974). In Weise v. Syracuse University, supra, 522 F.2d at 406, the court applied this less rigorous standard to a claim of sex discrimination, although the court was careful to note that it was not necessary to put sex discrimination in the same category as race discrimination in that case in order to do so.

Even applying this less burdensome standard, the district court below found that the state's participation here was solely to provide a disinterested forum. Girard v. 94th Street and Fifth Avenue Corp., supra, 396 F.Supp. at 455. See also Stevens v. Frick, 372 F.2d 378, 381 (2 Cir. 1967). In McGuane v. Chenango Court Inc., 431 F.2d 1189, 1190 (2 Cir. 1970), cert. denied, 401 U.S. 994, 91 S.Ct. 1238, 28 L.Ed.2d 532 (1971), this Court noted that '(n)either, despite some language in Shelley v. Kraemer . . . can state action be found in New York (sic) providing defendant with the same right to secure the eviction of a tenant by a proceeding in its courts that it gives to almost all landlords; the one thing now almost universally agreed is that such a rationale for that landmark decision would be altogether too far-reaching.' Since it cannot be said that the state's involvement in this case approves ⁴ the allegedly discriminatory conduct, we affirm the dismissal by the district court of the § 1983 claim.

II. Plaintiff's Claim Under 42 U.S.C. § 1985(3)

In 1971 the Supreme Court, in Griffin v. Breckinridge, 403 U.S. 88, 104, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), held that § 1985(3) reached certain private conspiracies to deprive others of their legal rights. A legally sufficient § 1985(3) complaint must aver a conspiracy between two or more persons intended to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the law and an act by one of the conspirators in furtherance of the conspiracy which injured another person or deprived him of exercising any right or privilege of a citizen of the United States. See Griffin v. Breckinridge, supra, 403 U.S. at 102--103, 91 S.Ct. 1790; Cameron v. Brock, 473 F.2d 608, 610 (6 Cir. 1973).

Plaintiff argues that her complaint satisfies the threshold requirement of a conspiracy between two or more persons. She has charged both a corporate defendant and individual defendants who constitute the officers and entire board of directors with conspiring to deprive her of her civil...