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MATTER ROBERT L. BERBACK ET AL. v. ROBERT J. MANGUM (02/25/69)

SUPREME COURT OF NEW YORK, MONROE COUNTY 1969.NY.40617 <http://www.versuslaw.com>; 297 N.Y.S.2d 853; 59 Misc. 2d 41 February 25, 1969 IN THE MATTER OF ROBERT L. BERBACK ET AL., PETITIONERS,v.ROBERT J. MANGUM, AS COMMISSIONER OF THE NEW YORK STATE DIVISION OF HUMAN RIGHTS, ET AL., RESPONDENTS Bunis & Bunis (Benton R. Simons of counsel), for petitioners. Henry Spitz and Amos Carnegie, Jr., for respondents. Marshall E. Livingston, J. Author: Livingston


Marshall E. Livingston, J.

Author: Livingston

 This is an application to annul and vacate a determination made by the State Division of Human Rights, dated August 28, 1968, as contrary to law and being without and in excess of the jurisdiction of the State Division of Human Rights as set forth in article 15 of the Executive Law of the State of New York (ยงยง 290-301).

Judgment is also asked to dismiss the complaint of Geneva Stokes against these petitioners and to prohibit the respondents and Geneva Stokes from holding any hearing or taking any further action in relation to the proceeding now pending before the State Division of Human Rights entitled, "Division of Human Rights on the Complaint of Geneva Stokes against Robert L. Berback and Carol A. Berback, Case No. VI-CH-39-68".

Petitioners (Berbacks) are the owners of a two-family home at 215-217 Elmtree Road, Rochester, New York, where they reside and occupy one apartment. This house, it is admitted by the respondents herein, consists of a "building which contains housing accommodations for not more than two families living independently of each other".

This description admitted by the respondents, incidentally, is the exemption contained in the last sentence of paragraph (a) of subdivision 5 of section 296 of the Executive Law of the State of New York, wherein the dispute arises between the parties.

The respondents admit all of the allegations contained in the Berbacks' petition, except paragraphs "7" and "9" which are denied, and paragraph "10" which is also denied, except the respondents admit that a public hearing on the issue has been scheduled. This is one of the procedures the Berbacks ask to be quashed as without and beyond the jurisdiction of the Commissioner and Director under article 15 of the Executive Law.

In substance, the Berbacks assert that they own a two-family, owner-occupied house in Rochester, New York, one part of which the complainant, Geneva Stokes, alleges they refused to rent to her as a housing accommodation because of her race and color. The Berbacks appeared before Rosetta M. McDowell, acting regional director of the State Division of Human Rights, claiming that their two-family, owner-occupied home was exempted from the unlawful discriminatory practices set forth in section 296 of the Executive Law.

Subdivision 5 (par. [a]) of section 296 of the Executive Law states:

"It shall be an unlawful discriminatory practice for the owner, lessee, sub-lessee, assignee, or managing agent of, or any person having the right to sell, rent or lease a housing accommodation, constructed or to be constructed, or any agent or employee thereof:

"(1) To refuse to sell, rent lease or otherwise to deny to or withhold from any person or group of persons such a housing accommodation because of the race, creed, color or national origin of such person or persons.

"(2) To discriminate against any person because of his race, creed, color or national origin in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or in the furnishing of facilities or services in connection therewith.

"(3) To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for the purchase, rental or lease or such a housing accommodation or to make any record or inquiry in connection with the prospective purchase, rental or lease of such a housing accommodation which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color or national origin, or any intent to make any such limitation, specification or discrimination.

"The provisions of this paragraph (a) shall not apply (1) to the rental of a housing accommodation in a building which contains housing accommodations for not more than two families living independently of each other, if the owner or members of his family reside in one of such housing accommodations, or (2) to the rental of a room or rooms in a housing accommodation, if such rental is by the occupant of the housing accommodation or by the owner of the housing accommodation and he or members of his family reside in such housing accommodation."

The Division of Human Rights contends that the exemptions of owner-occupied, two-family homes and the rental of rooms in a housing accommodation by the owner residing therein from the unlawful discriminatory practices set forth in section 296 of the Executive Law are unconstitutional and violate the Thirteenth and Fourteenth Amendments to the United ...


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