New York State Commission Against Discrimination v. Pelham Hall Apartments, Inc.

Citation170 N.Y.S.2d 750,10 Misc.2d 334
PartiesApplication of NEW YORK STATE COMMISSION AGAINST DISCRIMINATION, Petitioner, for an order pursuant to section 298 of the Law Against Discrimination (Executive Law, Article 15), v. PELHAM HALL APARTMENTS, Inc., Alberico Pompa, Vincenzo Coconato and Joseph Markoly, Respondents.
Decision Date16 January 1958
CourtUnited States State Supreme Court (New York)

Henry Spitz, Gen. Counsel, New York City (Milton Rosenberg, Evelyn E. West, Henry Spitz, New York City, of counsel), for petitioner, State Commission against Discrimination.

Louis J. Lefkowitz, Atty. Gen. (Abe Wagman, New York City, of counsel), appearing pursuant to Section 71 of the Executive Law.

Joseph R. Pisani, New Rochelle, for respondents.

Alfred Avins, New York City, for tenants-proposed intervenors.


This is a proceeding authorized by Section 298 of Article 15 of the Executive Law, which Article is known as the 'Law Against Discrimination.' Section 290. The proceeding is instituted in this court by the New York State Commission against Discrimination to enforce its order directed against alleged discriminatory practices of respondents with respect to leasing of apartments in alleged publicly-assisted housing accommodations. The respondent, Pelham Hall Apartments, Inc., hereinafter referred to as 'Pelham', is the owner of the housing accommodations in question, to wit, a multiple apartment dwelling, known as and hereinafter referred to as 'Rochelle Arms', situate at New Rochelle, New York. Said respondent is a privately-owned stock corporation. The individual respondents are officers of the corporation and have acted as its managing agents in the matter of the leasing of accommodations therein.

It appears that, pursuant to Section 297 of said Article 15, one Norris G. Shervington, a Negro, did duly make and file a verified complaint with the Commission charging that the respondents, because of his color, refused to lease him an apartment in Rochelle Arms. The discrimination against Shervington because of his race and color was admitted by the respondents. Generally stated, however, their position was, first, that the apartment building, Rochelle Arms, was not 'publicly-assisted housing accommodations' subject to the provisions of the statutes providing against discrimination in leasing of such housing accommodations, and, second, that, in any event, the constitutional rights of the respondents are violated by the application of the provisions of such statutes as against them and their apartment building. The Commission, proceeding on the assumption that the statutory provisions were valid and without passing on the constitutional questions, held the provisions applicable to Rochelle Arms and the acts of respondents. Thereupon, the Commission, on July 18, 1957, pursuant to Section 297 of the Executive Law, rendered the cease and desist order sought to be enforced in this proceeding.

Now, the court of appeals in Dorsey v. Stuyvesant Town Corporation, 299 N.Y. 512, 87 N.E.2d 541, 14 A.L.R.2d 133, held that the equal protection clauses of the federal and state constitutions could not be successfully invoked to protect a prospective tenant against racial discrimination with respect to tenancy in a privately owned apartment building, and that the mere fact that a private builder or owner had received governmental assistance in connection with an apartment building project would not render applicable these clauses to bar racial discrimination in the renting of apartments in the building. The court further held that generally speaking the opportunity to acquire a tenancy in privately owned real property was not a civil right and that, therefore, under the law then existing, the private owner of an apartment building, whether or not erected or financed with governmental assistance, would not be in violation of the civil rights clause (Section 11 of Article 1) of the state constitution in refusing rental of an apartment therein for racial reasons.

The court of appeals, in the Dorsey case, however, pointed out that the 'civil rights' referred to in the civil rights clause in Section 11 of Article 1 of the state constitution are 'those elsewhere declared' (299 N.Y. at page 531, 87 N.E.2d at page 548). It referred to the statement of the Chairman of the Bill of Rights Committee at the Constitutional Convention of 1938 (299 N.Y. at page 531, 87 N.E.2d at page 548) 'to the effect that the provision in question was not self-executing and that it was implicit that it required legislative implementation to be effective. 2 Rev. Record of N. Y. State Constitutional Convention, 1938, p. 1144.' Accordingly, the court held that the Constitutional provision did not itself apply to prohibit racial discrimination in housing. The court, furthermore, in the opinion concurred in by the majority, gave indication that it felt that the matter of protection against racial discrimination was a proper function for state law and that the state had the power to enact legislation providing against such discrimination in new areas such as in the case of publicly-assisted housing accommodations.

The court declared (299 N.Y. at page 534, 87 N.E.2d at page 551):--'That high responsibility of the States, implicit in our Federal system, indicates that the political processes must furnish the appropriate means for extension of those rights in areas wherein they have not been heretofore asserted.'

In 1950, the year following the decision in the Dorsey case, the legislature, declaring itself as acting in the 'exercise of the police power of the state for the protection of the welfare, health and peace of the people of this state and the fulfillment and enforcement of the provisions of the constitution of this state concerning civil rights', Section 18-a, enacted Article 2-A of the Civil Rights Law to specifically provide against the practice of discrimination in publicly-assisted housing accommodations. By amendment in 1955 to Civil Rights Law, Section 18-b, effective July 1, 1955, included within 'publicly assisted housing accommodations', to which said Article 2-A was made applicable, was housing which it located in a multiple dwelling, '* * * the acquisition, construction, rehabilitation, repair or maintenance of which is, after July first, nineteen hundred fifty-five, financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the federal government or any agency thereof, or the state or any of its political subdivisions or any agency thereof, provided that such a housing accommodation shall be deemed to be publicly assisted only during the life of such loan and such guaranty or insurance.'

By virtue of the said 1955 amendment to said Section 18-b of the Civil Rights Law, discrimination in housing accommodations because of race, color, religion or national origin is now prohibited in multiple dwellings of the type and style of Rochelle Arms which, after July 1, 1955, received the benefit of FHA or other publicly assisted financing. There was a further amendment to said Section 18-b in 1956 having to do with the definition of a multiple dwelling covered by the law, but such amendment is of no consequence to the questions here, inasmuch as Rochelle Arms was of the type and nature of a multiple dwelling included within the 1955 law as well as the 1956 law.

In 1956, effective July 1, 1956, the legislature also amended Article 15 of the Executive Law to bring within the coverage and remedial procedures of said Article the same 'publicly assisted housing accommodations' as were covered by the Civil Rights Law provisions as amended.

Under the provisions of the Civil Right Law, a person aggrieved by the unlawful discrimination in housing accommodations would be obliged to proceed on his own in a court of competent jurisdiction to recover his damages or to obtain other appropriate relief. By virtue of the 1956 amendment to Article 15 of the Executive Law, bringing the same housing accommodations within the coverage of said Article, a person aggrieved may file his complaint with the Commission and have the benefit of certain administrative procedures by and through the Commission.

The Commission argues that by virtue of the enactment of Article 2-A of the Civil Rights Law, the legislature has, in effect, provided that the opportunity to acquire a tenancy in publicly-assisted housing accommodations is now a civil right within the ambit of constitutional protection, and that the provisions of this Article and of said Article 15 of the Executive Law expressly apply to prohibit the discriminatory practices which the respondents exercised against Shervington in denying him the rental of an apartment in Rochelle Arms.

Now, indisputedly, Rochelle Arms was a multiple dwelling housing project financed by means of a Federal Housing Administration insured mortgage loan. The respondents point out that the original FHA commitment for a loan in the sum of $1,676,000 for the carrying out of the project was issued on June 30, 1955, which is one day prior to the effective date of the aforementioned amendment to Article 2-A of the Civil Rights Law. Notwithstanding this fact, it is readily concluded that the building falls within the statutory definition of 'publicly assisted housing accommodations' subject to the anti-discrimination provisions of said Article and of Article 15 of the Executive Law. The test for inclusion is whether or not the 'acquisition, construction, rehabilitation, repair or maintenance' of the multiple dwelling was, after July 1, 1955, 'financed in whole or in party by a loan, * * * the repayment of which is guaranteed or insured by the federal government or any agency thereof, * * *'.

The FHA commitment, in this case prior to July 1, 1955, was in effect merely a commitment to insure the loan when and if made and provided all conditions mentioned in the commitment...

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