Madison v. Cinema I

• Citation: 454 N.Y.S.2d 226,115 Misc.2d 324
• Parties: Mary MADISON, Plaintiff, v. CINEMA I, Defendant.
• Decision Date: 20 August 1982
• Court: New York City Court

Page 226

454 N.Y.S.2d 226

115 Misc.2d 324

Mary MADISON, Plaintiff, v. CINEMA I, Defendant.

Civil Court of the City of New York,

New York County, Special Term,

Part 1.

Aug. 20, 1982.

Conrad J. Lynn, Spring Valley, for plaintiff.

Edmund C. Grainger III, Raftery, Grainger, Rosenbloom & Drew, New York City, for defendant.

MARGARET TAYLOR, Judge.

Plaintiff's complaint states that she purchased a ticket from defendant theatre but was denied admission to the theatre "solely because she was of the Negro race."

Defendant now moves to dismiss on the ground that the Attorney General of New York State has not been notified of the suit pursuant to Civil Rights Law, Section 41 or, in the alternative, to amend the ad damnum clause of the complaint, striking the demand for $10,000 and replacing it with a demand for $500, the maximum allowed in a suit brought pursuant to Section 41 of the Civil Rights Law. Additionally, defendant moves for dismissal on the ground that plaintiff failed to appear for a scheduled deposition.

42 U.S.C. § 1981 provides that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens ..." Current Section 1981 was originally part of Section 1 of the Civil Rights Act of 1866, ¹ an Act passed pursuant to Section 2 of the Thirteenth Amendment to the Constitution of the United States and designed to abolish all badges and incidents of slavery. Jones v. Alfred H. Mayer Corp., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). Unlike 42 U.S.C. § 1983, ² it reaches purely private, as well as governmental, acts of racial discrimination. Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Johnson v. Railway Express Co., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977) cert. denied 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147. The transaction here alleged to have taken place, the exchange of the right to enter a place of entertainment for a fee, is a "contract" within the meaning of 42 U.S.C. § 1981. Scott v. Young, 421 F.2d 143 (4th Cir. 1970), cert. denied 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91. Plaintiff's allegations thus make out a cause of action for violation of Section 1981, as well as for breach of contract.

It is a

general principle ... that where jurisdiction may be conferred on the United States courts, it may be made exclusive where not so by the Constitution itself; but if exclusive jurisdiction be neither express nor implied, the State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it.

Claflin v. Houseman, 93 U.S. 130, 136, 23 L.Ed. 833 (1876). Accord, Boston Stock Exchange v. State Tax Commission, 429 U.S 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977); Grubb v. Public Utilities Commission, 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972 (1929); U.S. v. Tax Commission, 481 F.2d 963 (1st Cir. 1973).

The instant suit is for money only and the amount sued for does not exceed $10,000. The Civil Court, therefore, has jurisdiction to hear this suit, unless Congress has vested exclusive jurisdiction over suits brought under 42 U.S.C. § 1981 in the federal courts. See New York City Civil Court Act, Section 202.

Federal court jurisdiction over suits brought pursuant to 42 U.S.C. § 1981 is provided by 28 U.S.C. 1343(3). See, Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). That section does not expressly or by implication reserve jurisdiction to the federal courts. The Civil Court, therefore, has concurrent jurisdiction with the federal district courts to hear cases alleging a violation of 42 U.S.C. §§ 1981 or 1982 so long as the remedy sought is money damages and the damages demanded do not exceed the jurisdictional limit of the court. See, Mahone v. Waddle, supra.

In the area of civil rights, "legislative enactments ... have long envinced a general intent to accord parallel or overlapping remedies against discrimination." Alexander v. Gardner-Denver, 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1973); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Neulist v. County of Nassau, 50 A.D.2d 803, 375 N.Y.S.2d 402 (Second Dept. 1975). Where a suit is brought under current 42 U.S.C. §§ 1981 and 1982, the court should apply the federal or state law on damages which best serves the purposes of the 1866 Act. Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969). Thus, regardless of whether damages may be recovered for embarrassment and humiliation under state law such damages may be recovered under both 42 U.S.C. §§ 1981 and 1982.

It is not helpful to look to state decisions in personal injury tort cases in which damages for such injuries are denied. ...

Section 1981 doubtless was intended to give to the former slaves access to opportunities for material betterment of themselves, but it was also intended to remove the stigma which accompanied the disabilities under which they formerly had labored. The plain command of the statutes is that those formerly enslaved henceforth shall be treated as having all of the rights and dignity of other people dwelling with them in a land of freedom. A denial of those statutory rights is treatment of the victim as being subject to those earlier disabilities. It is an affront, of which embarrassment and humiliation are natural consequences. If the statute is to be enforced fairly, if injuries suffered directly because of its violation are to be fairly compensated, damages for embarrassment and humiliation must be recoverable.

McCrary v. Runyon, 515 F.2d 1082, 1089 (4th Cir. 1974) aff'd sub nom. Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). Accord, Gore v. Turner, 563 F.2d 159 (5th Cir. 1977); Bryan v. Jones, 519 F.2d 44 (5th Cir. 1975); Seaton v. Sky Realty Co., Inc., 491 F.2d 634 (7th Cir. 1974); ...