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July 2, 1970

Christina MULLARKEY, Jane Benedict, Augusta Karlson, Judith Simon, and Anthea Lingeman, Plaintiffs,
Helen BORGLUM, Mildred Napoli, Irene Lyons and Hon. Frank S. Hogan, District Attorney of New York County, Defendants

Motley, District Judge.

The opinion of the court was delivered by: MOTLEY

Opinion on Motions to Dismiss and on Motion for Preliminary Injunction

MOTLEY, District Judge.

 Three of the plaintiffs in this action are tenants in a relatively small multiple dwelling (15 units) in the City of New York. The other plaintiffs are officers of, or organizers for, tenant organizations concerned with advancing and protecting the rights of tenants in the City of New York.

 Defendants are the landlord of the tenants' building, Helen Borglum; the superintendent of the building and her daughter; and Frank Hogan, the District Attorney of New York County.

 The gravamen of the complaint is that the landlord, in retaliation against plaintiffs for their tenant-organizing activities, has instituted State court eviction proceedings against her tenants and State criminal actions against her tenants and their supporters, all of which are baseless, in violation of rights secured to plaintiffs by the First and Fourteenth Amendments to the Federal Constitution and 42 U.S.C. §§ 1983 *fn1" and 1985(2). *fn2"

 The action, resting jurisdiction in this court on 28 U.S.C. §§ 1343, 2201, 2202 and 1331, seeks: 1) an order declaring that the civil and criminal actions instituted in the State courts by defendant Borglum against plaintiffs are arbitrary, unlawful and unconstitutional; 2) preliminary and permanent injunctions enjoining defendants from proceeding with the prosecution of State court civil and criminal litigation; and 3) damages in the amount of $10,000 as to each plaintiff.

 Defendant Hogan has moved to dismiss the action on the ground that the allegations of the complaint fail to state a cause of action on which relief may be granted and on the ground that this court lacks jurisdiction. More specifically, defendant Hogan claims that plaintiffs have failed to allege grounds sufficient for this court's intervention in the pending State criminal proceeding since the complaint fails to allege: "special circumstances" beyond those incident to every criminal proceeding brought lawfully and in good faith, Cameron v. Johnson, 390 U.S. 611, 618, 88 S. Ct. 1335, 20 L. Ed. 2d 182 (1968); facts sufficient to show that defendant Hogan is prosecuting plaintiffs with knowledge that the prosecutions will not succeed, Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); or facts sufficient to show irreparable injury on the ground that their state remedies are inadequate. Potwora v. Dillon, 386 F.2d 74 (2d Cir. 1967). Defendant Hogan also claims that since there is no allegation in the complaint that he is acting in concert with defendant Borglum, the latter may not be enjoined because 42 U.S.C. § 1983 prohibits only "state action", not private action. United States v. Price, 383 U.S. 787, 794 n. 7, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966). Finally, the District Attorney claims that if the court should enjoin defendant Borglum as plaintiffs request (if the court decides that it cannot enjoin the proceeding itself), that this would be tantamount to enjoining him. Studebaker Corporation v. Gittlin, 360 F.2d 692, 696 (2d Cir. 1966).

 Defendant Helen Borglum, the landlord, has filed an answer to the complaint denying all the essential allegations, except the alleged filing of the pending civil and criminal proceedings and the issuance of a criminal summons against one of defendant Mullarkey's lawyers. The answer prays for dismissal of the complaint.

 Plaintiffs moved for a preliminary injunction enjoining the pending State court civil and criminal proceedings, in answer to which defendant Hogan filed his motion to dismiss. Defendant Borglum filed an affidavit in which she alleged that her tenants: had harassed, assaulted and degraded her ever since she acquired ownership of the building on September 1, 1967; had filed a number of baseless complaints against her with the City's Rent and Rehabilitation Agency; had taken out a summons against her for alleged assault; had damaged her property; and had criminally assaulted her, thus creating a myriad of sharply contested issues of fact. The landlord claims the preliminary injunction application should be dismissed as to the pending eviction proceeding since, contrary to plaintiffs' assertion, the defense of retaliatory eviction may be raised by the tenants in that proceeding since these are rent controlled premises. Consequently, there would not be any irreparable injury to plaintiffs necessitating a federal court injunction against that proceeding. Club Van Cortlandt v. Hosey, N.Y.L.J., p. 2, June 11, 1970; Hosey v. Club Van Cortlandt, 299 F. Supp. 501 (S.D.N.Y. 1969). The landlord has also advanced all of the grounds urged by defendant Hogan for dismissal of the action with respect to the allegations regarding the pending criminal proceeding. *fn3" "A motion to dismiss the amended complaint raises the issue of its sufficiency and, of course, requires us to accept its well-pleaded facts as the hypothesis for decision." Collins v. Hardyman, 341 U.S. 651, 652, 71 S. Ct. 937, 938, 95 L. Ed. 1253 (1951).

 There are four claims in the amended complaint. The first claim alleges, in essence, that commencing on or about September 1, 1967, the defendant landlord "together with others", including the defendant superintendent and her daughter, conspired "for the purpose of impeding, hindering, obstructing, and defeating the due course of justice in the State of New York and with intent to deny to plaintiff Mullarkey", a tenant of the building, "the equal protection of the laws, and to injure her and her property for lawfully enforcing and attempting to enforce her rights to the equal protection of the laws." (Amended Complaint, para. 8) 42 U.S.C. § 1985(2). With respect to this claim, the complaint alleges that on or about September 2, 1969 defendant Borglum commenced a civil action in the New York City Civil Court in Manhattan against plaintiff Mullarkey, in which Borglum sought to have Mullarkey evicted from the premises rented by Borglum to Mullarkey. After four adjournments by Borglum, the case came to trial on January 19, 1970, concluded January 21, 1970, and resulted in a mistrial by virtue of the failure of the jury to agree on a verdict. A new trial date has been set. It is this trial which plaintiff Mullarkey seeks to enjoin. The other two tenant plaintiffs reside in Mrs. Mullarkey's apartment; one is her daughter, the other is a boarder.

 The complaint then alleges, with respect to the first claim, that after the mistrial, plaintiff Mullarkey and her lawyer met with other tenants, who were her witnesses and prospective witnesses, in the apartment of another tenant in the building owned by Borglum and after the meeting encountered defendant Borglum in the hall. It is alleged that the defendant superintendent of the building notified defendant Borglum of the meeting, after which defendant Borglum came to the building. Two days later, plaintiff Benedict (Chairman of the Metropolitan Council on Housing) attended another meeting in the building to which she had been invited along with other witnesses and potential witnesses on behalf of plaintiff Mullarkey. At that time, plaintiff Benedict and plaintiff Karlsen (an organizer of tenants for Yorkville Save Our Homes, a voluntary association of tenants) were served with criminal summonses, the issuance of which had been procured by defendant Borglum. The criminal complaint alleges that at the time of the second meeting these plaintiffs generally annoyed and harassed, and pushed Mrs. Borglum and that these plaintiffs had no lawful reason for being on the premises. These criminal charges are still pending in the State court which defendant Hogan has the duty to prosecute.

 The instant complaint then alleges that other plaintiffs who are witnesses or prospective witnesses for plaintiff Mullarkey in the eviction proceeding against her are threatened with similar criminal prosecutions and that still other plaintiff witnesses have been charged. It is these State criminal proceedings which the plaintiffs also seek to enjoin. A lawyer for plaintiff Mullarkey was also served with a criminal summons. That summons was dismissed after the lawyer appeared at the preliminary hearing and no complaint was ever issued by the Criminal Court of New York City against the lawyer. Plaintiffs claim that the criminal charges against them are baseless and are made against them in furtherance of the alleged conspiracy. (Amended Complaint, para. 16). Plaintiffs' legal theory is that, "If defendants are allowed to continue to prosecute said criminal actions, the state courts will be utilized for the unlawful and unconstitutional end of denying plaintiff Mullarkey due process of law and equal protection of laws by singling her out as a citizen not entitled to defend herself in a state court civil proceeding, because her witnesses will be harassed and intimidated and 'chilled' into not testifying in her behalf, and thus cause her irreparable harm in that without them she will not be able to adequately defend said action." Plaintiffs then claim that no adequate remedy at law exists. (Amended Complaint, para. 17). In support of this claim, plaintiffs rely upon Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948) and Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953).

 The second cause of action or claim is that plaintiff Mullarkey is a leader of tenants in the premises where she resides and has met with them periodically, has discussed with them their grievances with the landlord, and has been instrumental in framing and filing rent reduction forms with the Office of Rent Control of the Department of Rent and Housing Maintenance of the City of New York. She has also been instrumental in enlisting the aid and assistance of tenants' organizations headed by plaintiff Jane Benedict and others in organizing the tenants of the premises. (Amended Complaint, para. 18). In connection with this second claim, it is alleged that since defendant Borglum became owner of the premises, on or about September 1, 1967, she has attempted to force out of the premises as many of the tenants as she can, although she is required by law to apply to the local rent control agency for eviction of the tenants and for the raising of the rents of her tenants. The complaint then alleges that defendant Borglum has failed to make these required applications, has evicted at least three former tenants without compliance with local law, and is extracting illegal rents from her tenants. (Amended Complaint, para. 20). Plaintiffs next allege that there have been several previous criminal summonses taken out by the landlord against Mullarkey, her daughter, and her boarder and several prior "dispossess" proceedings instituted against these tenants by the landlord, all of which have been dismissed, after several adjournments by the landlord, in furtherance of a campaign to force Mullarkey and the remaining tenants from the building. (Amended Complaint, para. 21). Plaintiffs' legal position is that in using the legal processes of the State in her attempt to harass and intimidate plaintiff Mullarkey in retaliation for Mrs. Mullarkey's exercise of her First and Fourteenth Amendment rights to organize tenants to resist the landlord's pressures, defendant Borglum has acted "under color of state law" and authority to deprive plaintiff of equal protection of the laws and her rights under the First Amendment of the United States Constitution. (Amended Complaint, para. 22). To allow Borglum to continue to prosecute the pending eviction action, the complaint alleges, would be to allow state action to punish plaintiff for the exercise of constitutional rights. (Amended Complaint, para. 23). In support of this claim, plaintiffs rely upon United States v. Barr, 295 F. Supp. 889 (S.D.N.Y. 1969), as well as Shelley v. Kraemer, supra, and Barrows v. Jackson, supra.

 The third claim alleges that plaintiffs Jane Benedict, Augusta Karlsen, Judith Simon, and Anthea Lingeman are all organizers of tenants of the City of New York, are associated with various tenants organizations, and are active in organizing tenants and informing them of their rights and how to exercise those rights under State and local law. (Amended Complaint, para. 24). In furtherance of said organizational activity, it is alleged, some of these plaintiffs were present at the invitation of plaintiff Mullarkey and other tenants at a meeting in the apartment of one of the tenants on January 24, 1970. As a result of the presence of these plaintiffs at that time, and in retaliation for their exercising then and there their First Amendment rights to free speech and assembly, all of these plaintiffs, it is alleged, are being prosecuted or are threatened with prosecution by defendants Borglum and Hogan "in prosecution [sic] brought and threatened to be brought, in bad faith, with no possibility of success, which has the effect of intimidating, harassing, and chilling" these plaintiffs into abandoning their First Amendment rights. (Amended Complaint, para. 25). In support of this claim, plaintiffs rely upon Dombrowski v. Pfister, supra.

 The fourth and final claim is that plaintiffs Perau and Gore (the former being Mrs. Mullarkey's daughter and the latter being Mrs. Mullarkey's boarder) were purportedly served with summonses on or about May 2, 1970, returnable in the New York City Criminal Court, charging them with third degree assault in violation of New York Penal Law. It is alleged that said charges are without any basis in fact and are made solely for the purpose of driving these plaintiffs out of Mrs. Mullarkey's apartment, in which they now reside, without due process of law and without any lawful reason therefor, in violation of their rights under the laws and Constitution of the United States (Amended Complaint, para. 26 and 27).

 Assuming the foregoing allegations of the complaint to be true, the question, on the motions to dismiss, is whether any of them is sufficient to state a claim ...

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