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HOSEY v. CLUB

March 24, 1969

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


Croake, District Judge.


The opinion of the court was delivered by: CROAKE

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. *fn1" 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." *fn2"

 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. *fn3"

 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. *fn4" 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. *fn5"

 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. *fn6" 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. *fn7" Since first amendment rights have been ...


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