Hosey v. Club Van Cortlandt

• Decision Date: 24 March 1969
• Docket Number: No. 68-Civ. 4498.,68-Civ. 4498.
• Citation: 299 F. Supp. 501
• Parties: Andrew HOSEY, Plaintiff, v. CLUB VAN CORTLANDT and John J. Hallohan, Defendants.
• Court: U.S. District Court — Southern District of New York

299 F. Supp. 501

Andrew HOSEY, Plaintiff, v. CLUB VAN CORTLANDT and John J. Hallohan, Defendants.

No. 68-Civ. 4498.

United States District Court S. D. New York.

March 24, 1969.

Harold J. Rothwax, New York City, Director, Mobilization for Youth Legal Services Unit, for plaintiff; by Lester Evens, Jonathan Weiss, and Michael B. Rosen, New York City, of counsel.

Nathaniel Borah, New York City, for defendants; by Lawrence S. Borah, New York City, of counsel.

CROAKE, District Judge.

MEMORANDUM

Andrew Hosey, a tenant in a residential hotel, brings this action to enjoin the hotel and its manager from instituting a summary proceeding to evict him. He has placed two interesting questions before this court on a motion for a preliminary injunction. May a state court constitutionally evict a hold-over tenant when the landlord seeks the eviction in retaliation for the tenant's attempts to organize his co-tenants to complain to public officials about health and building code violations in the building? If the first question is answered in the negative, should this court enjoin this landlord from bringing a summary proceeding to evict? We answer both questions in the negative and deny the motion for a preliminary injunction.

The complaint, filed November 14, 1968, alleges that Andrew Hosey has been a week-to-week tenant in the Club Van Cortlandt for over two years. During his stay he has encouraged other tenants to try to get the landlord to make repairs necessary for their health and safety, and has filed complaints with city officials. On August 21, 1968, after a notice was circulated to the tenants, a meeting was held in plaintiff's room to discuss conditions in the building and to consider making complaints to appropriate officials. The following day plaintiff was informed by a hotel employee that his rent would be raised. On August 27, 1968 he received a letter from the hotel manager that his room had been reserved for someone else as of September 3. Plaintiff sought to have the New York Supreme Court enjoin any eviction; his motion for a temporary injunction was denied on October 18, 1968. Plaintiff did not move out and on October 25 he received a formal notice to vacate the room by November 4 or the landlord would institute a summary proceeding to dispossess him. Plaintiff contends that the landlord wants to evict him in retaliation for the exercise of the rights of speech and assembly and the right to petition to redress grievances.

The defendants, the landlord and the hotel manager, deny all the critical allegations of the complaint except the state court decision and the seven-day notice to vacate. The manager has submitted an affidavit saying the landlord intends to institute a summary proceeding to recover possession.¹ The reason given for seeking eviction is:

"That Mr. Hosey has been quite late with his rent payments and the landlord has had to write letters and make calls in order to collect the money due him. The landlord has had much trouble in collecting his rent on time."²

I

Subject matter jurisdiction over this action derives from 28 U.S.C. § 1343. Injunctive relief is authorized by 42 U.S.C. § 1983 which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

The fact that the deprivation has not occurred, but is threatened, does not bar this court from providing relief.³

On a motion for a preliminary injunction, this court must weigh several factors to determine whether or not equity requires imposition of an injunction pending a full hearing and final determination of the action. Among these factors are the probability the movant will succeed on the merits, the harm that will befall the plaintiff if the motion is denied, and the harm that the defendant will suffer if it is granted.⁴ On the merits, the question will be whether there is a threatened violation of a constitutional right for which there is no adequate remedy at law.⁵

II CHANCE OF SUCCESS ON THE MERITS

We find that the plaintiff can prove the facts he has alleged. Copies of the several documents referred to in the complaint were attached to it. The defendants' contention that they seek an eviction because of tardiness in paying rent is unconvincing in light of the lack of specificity in the allegation of frequent late payments, the absence of threats to evict prior to the tenants' meeting, and the coincidence of the tenants' meeting and the landlord's threats to evict. We find in particular that the plaintiff will probably be able to prove that the overriding reason for the threats of eviction was retaliation against the plaintiff for his attempts to organize the tenants. The difficult question in determining the plaintiff's chance of success is the legal one: Is the plaintiff entitled to relief on the facts he has alleged?

Plaintiff's argument is along these lines: His attempts to organize the tenants to file complaints with city officials about conditions in the Club Van Cortlandt were protected by the first amendment.⁶ Any state action penalizing him for the exercise of these rights would be a violation of the 14th amendment; an order of a state court evicting him, and enforcement thereof, would be "state action." This court should enjoin a threatened violation of the 14th amendment under 42 U.S.C. § 1983. We will consider each step of this argument.

There can be no doubt of the right of a tenant to discuss the condition of his building with his co-tenants to encourage them to use legal means to remedy improper conditions, to hold meetings, and to inform public officials of the conditions. In short, a tenant can organize the other tenants of his building to improve living conditions. He has the protection afforded by the first amendment so long as he does not interfere with the rights of other guests or the property or contract rights of the landlord.⁷ Since first amendment rights have been incorporated in the 14th amendment, the state can take no action to prevent or penalize their exercise.⁸

Prior Cases

It may be useful to refer to several decisions dealing with retaliatory evictions and injunctive relief.⁹ ("Retaliation" will be used in the remainder of this memorandum to refer to any conduct intended to penalize a person for exercising a constitutional right.)

In Edwards v. Habib¹⁰ the trial court did not permit a tenant to offer proof of a landlord's retaliatory motive in a statutory eviction action. The Court of Appeals for the District of Columbia discussed the constitutional aspects of the case because of the rules of statutory construction¹¹ and reached the point in its analysis of weighing the interests of the landlord against those of the tenant.¹² It decided the case on the basis of statutory construction and public policy and ruled that proof of retaliation must be heard in District of Columbia eviction actions.

The constitutionality of a retaliatory eviction was first discussed in California in Abstract Investment Co. v. Hutchinson.¹³ The court had before it an appeal from a judgment for a landlord in a detainer action raising the question of the constitutionality of retaliatory eviction. Relying on Shelley v. Kraemer¹⁴ and subsequent cases, the court held that the 14th amendment required the trial court to receive evidence on the plaintiff's motive for bringing the action. It noted further:

"* * * Certainly the interest in preserving the summary nature of an action cannot outweigh the interest of doing substantial justice. To hold the preservation of the summary proceeding of paramount importance would be analogous to the `tail wagging the dog.'"¹⁵

The California Supreme Court ruled on the necessity of enjoining a retaliatory eviction in Hill v. Miller.¹⁶ Plaintiff, a month-to-month tenant, had received a notice to vacate because of his race. He sought to enjoin the landlord from evicting him, but the court sustained a demurrer. In affirming, the California court said:

"* * * The Fourteenth Amendment does not impose upon the state the duty to take positive action to prohibit a private discrimination of the nature alleged here."¹⁷

It distinguished Abstract Investment as a case which held:

"* * * to make available to a discriminating landlord the aid and processes of a court in effecting a discrimination would involve the state in action prohibited by the Fourteenth Amendment."¹⁸

It thus appears that California requires evidence of retaliation to be heard in an eviction action, but will not enjoin the retaliatory institution of an eviction action.¹⁹

Tarver v. G. & C. Construction Co., a case decided in this court in 1964, is nearly identical with the present case.²⁰ The plaintiffs there complained to the health department about their clogged toilet. In the evening of the same day they received a notice of a 400 percent rent increase and a threat of eviction if they did not pay it. Judge MacMahon granted a preliminary injunction saying that "they will probably be able to prove upon trial that they are threatened with eviction solely because they exercised their constitutional right to petition for a redress of their grievances."

It appears that the few courts which have touched on the issues of this case hold that retaliatory evictions violate the 14th amendment, but split on the question of whether they should be enjoined.

Constitutionality of Retaliatory Evictions

The right of a landlord to pick his tenants and to refuse to renew the tenancy of a person he finds undesirable for any reason is not in issue here. We are asked to determine the extent to which a landlord can use the judicial process in...