United States v. Gilman

• Decision Date: 22 March 1972
• Docket Number: No. 70 Civ. 1967.,70 Civ. 1967.
• Citation: 341 F. Supp. 891
• Parties: UNITED STATES of America, Plaintiff, v. Alvin GILMAN and Mitchell Eisen, d/b/a Gilman-Eisen Co., Defendants.
• Court: U.S. District Court — Southern District of New York

341 F. Supp. 891

UNITED STATES of America, Plaintiff, v. Alvin GILMAN and Mitchell Eisen, d/b/a Gilman-Eisen Co., Defendants.

No. 70 Civ. 1967.

United States District Court, S. D. New York.

March 22, 1972.

Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., for plaintiff; Yale L. Rosenberg, David P. Land, Asst. U. S. Attys., of counsel.

Gilberg & Gilberg, Mount Vernon, N. Y., for defendants; David C. Gilberg, Mount Vernon, N. Y., of counsel.

OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW

LEVET, District Judge.

In this action the United States of America seeks injunctive relief against the above-named defendants Alvin Gilman (hereinafter "Gilman") and Mitchell Eisen (hereinafter "Eisen"), doing business as Gilman-Eisen Co., for alleged violations of Title VIII of the Civil Rights Act of 1968 (82 Stat. 81), 42 U.S.C. § 3601 et seq. The "dwellings" involved are 555 McLean Avenue, Yonkers, New York and 2-4 Windsor Terrace, White Plains, New York. (¶ 3.) The accusation against defendants is that they follow a policy and practice of racial discrimination against blacks at said premises in making statements indicating that "apartments will not be rented to Negroes," "representing to Negroes that apartments are unavailable for rental when apartments are in fact available" and "discriminating against Negroes in the terms and conditions of rental" which "constitute (a) a pattern and practice of resistance by defendants to the full enjoyment of rights guaranteed by Title VIII of the Civil Rights Act of 1968 and (b) a denial by defendants to a group of persons of the rights guaranteed by Title VIII of the Civil Rights Act of 1968 which denial raises an issue of general public importance."

On the settlement of the pretrial order the government amended its complaint to include (a) as an additional "dwelling" where defendants allegedly engaged in discriminatory practices prohibited by the Civil Rights Act of 1968, premises 175 Hawthorne Street, Brooklyn, New York, and (b) by defendants' refusing to rent apartments to bona fide black offerees because of their race and color. (Pretrial order, p. 3-(i).)

PLAINTIFF'S CLAIMS

In the pretrial order it is stated:

"The Government alleges that the defendants, their agents and employees, acted unlawfully by:

"(i) refusing to rent apartments to bona fide black offerees because of their race and color, in violation of 42 U.S.C. § 3604(a);

"(ii) discrimination against black persons in the terms and conditions of rental, in violation of 42 U.S.C. § 3604(b);

"(iii) making statements indicating their preference to rent apartments to white persons and their intention to discriminate against black persons, in violation of 42 U.S.C. § 3604(c); and

"(iv) representing that there were no vacancies when in fact vacancies did exist, for the purpose of discriminating against black persons, in violation of 42 U.S.C. § 3604(d)."

In the pretrial order in this case, page 3, the government alleged that the defendants, their agents and employees acted unlawfully in respect to four different claims in violation of Title 42 U.S.C. § 3604(a), (b), (c) and (d) respectively.

Based upon a letter from Assistant United States Attorney Rosenberg, dated January 7, 1972, I have stated the statutory basis of each claim in the respective findings herein.

I find no statement by counsel for the government that any claim is made under item (iv) of the pretrial order. (42 U.S.C. § 3604(d).)

DEFENSES

In addition to general denials the answer pleads that the complaint fails to state a cause of action (first defense); that the action does not lie as to any acts antedating the applicable Civil Rights Act (second defense); that res judicata and estoppel based on proceedings in other courts of competent jurisdiction is applicable (third defense).

The first defense, i. e., that the complaint fails to state a claim against defendants upon which relief can be granted, must be dismissed. However, in considering the proof adduced I have in each instance determined whether such proof is sufficient under the Act and have ruled accordingly.

The second defense, i. e., that the facts forming the basis of the complaint antedate the effective date of the statute and could affect only the claim relative to the McKeever-Brown sublease (finding 22), has no merit. Since I have found no merit in this claim irrespective of the date of effectiveness, it is unnecessary to consider this defense.

The third defense, i. e., in respect to res judicata and collateral estoppel, has no apparent application to this case and must be dismissed.

After hearing the testimony of the parties, examining the exhibits, the pleadings and the Proposed Findings of Fact and Conclusions of Law and Amended and Supplemental Proposed Findings of Fact and Conclusions of Law and memoranda of law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The apartment buildings at 2-4 Windsor Terrace, White Plains, New York, have been under the exclusive management of the defendants since on or about March 15, 1968. Defendant Gilman has held an ownership interest in the buildings since that date. Defendant Eisen does not have an ownership interest in the buildings. Albert Gormas, defendants' employee since on or about March 15, 1968, has been the superintendent of these buildings continuously from approximately 1961 to the present.

2. The apartment building at 555 McLean Avenue, Yonkers, New York, has been under the exclusive management of the defendants since on or about December 15, 1967. Defendants Gilman and Eisen have held ownership interests in the building since that date. Daniel Coleman, defendants' employee since on or about December 15, 1967, has been the superintendent of this building continuously from 1958 to the present.

3. The apartment building at 175 Hawthorne Street, Brooklyn, New York, has been under the exclusive management of the defendants since on or about June 22, 1967. Defendants Gilman and Eisen have held ownership interests in the buildings since that date. Werner Tegfeldt, defendants' employee since on or about June 22, 1967, has been the superintendent of this building from approximately 1955 to the present.

4. The three aforementioned apartment buildings are "dwellings" within the meaning of 42 U.S.C. § 3602(b).

5. Defendants own or operate about 25 residential apartment buildings in Westchester, Bronx, New York, Queens, Kings and Nassau Counties, which house about 5000 tenants. (345, 533.)¹

6. The management of the Westchester County properties was primarily with defendant Eisen (326); the management of 175 Hawthorne Street, Brooklyn, New York, was primarily in Jeffrey Gilman, the son of defendant Alvin Gilman. (102.)

7. The policy of defendants with respect to tenancies (a) limits the number of persons permitted to occupy an apartment by size of family in proportion to the size of the apartment (165, 170, 416; Deft. Ex. E); (b) persons interested in renting vacant apartments must complete an application on defendants' printed form supplied to each of their superintendents (431-432), with the applicant required to leave a fixed deposit with the application (431), both of which are then turned over to defendants for processing. Processing is not concluded unless an application and deposit are submitted. (157, 172, 275, 358-359, 415, 427, 435.)

8. No superintendent in any of the apartment houses involved has the authority to conclude rental agreements for apartments in any of the three properties involved herein. (167, 415, 438.) The public was informed of vacancies in defendants' apartment houses by signs posted on the exterior of the building and by advertisements in the New York Times and local papers. (221-222, 429, 436; Deft. Ex. H.)

9. The Westchester Urban League gives assistance to minority families in locating housing in the Westchester area. The League tries to determine the existence and availability of apartments in the area for minorities by sending employees and volunteer workers, termed by the League as "testers, verifiers, checkers, clients and applicants,²" to determine whether landlords discriminate in renting to blacks. (132-133, 225, 233-234, 245, 261.)

10. From 1967 to date, Sidonia Trommer, a white (243), was gainfully employed by the Westchester Urban League in this area of its activities (108); from June 1969 through March 1971, Mildred Pugh, a black (243), was gainfully employed by the same League in this program (204); Wallace Lucas, a black (244), was a volunteer worker (235, 237), as was Virginia Hausknecht, a white (260-261), for this organization.

11. Sidonia Trommer and Mildred Pugh also had affiliations with the Fair Housing Committee of Yonkers. (146, 226.)

12. Prior to the transfer of 555 McLean Avenue, Yonkers, New York, to defendants, the State Commission for Human Rights had secured an enforcement order of the New York Supreme Court, made by Hon. John H. Galloway on June 28, 1967, against the then-owners (but not against the present defendants) which affected the operation of said building up to December 31, 1968, involving rental practices, and which order, in part, directed written notice be sent of apartments available for rental to both the Fair Housing Committee of Yonkers and the Urban League of Westchester, allowing said organizations four days from the sending of such notice, to refer interested applicants for such apartments; a copy was also required to be sent to the State Commission for Human Rights. (351; Deft. Ex. T.)

13. When defendants took over the management of 555 McLean Avenue, Yonkers, New York, they were apprised of the aforesaid requirements of the court order. (352, 381, 472.)

14. As vacancies occurred in 555 McLean Avenue, Yonkers, New York, and up to December 30, 1968, defendants sent the notices required by the aforesaid order to the designated agencies. (147, 353-354; Deft. Exs. D, U, V,...