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MALE v. CROSSROADS ASSOCS.

December 3, 1970

Patricia MALE, Linda Murray, Lillian Horne, Rose Sherroll, and Jane Doe, on their own behalf and on behalf of all others similarly situated, Plaintiffs,
v.
CROSSROADS ASSOCIATES, David Bogdanoff and Muriel Bogdanoff, individually and as copartners doing business under the Name of Crossroads Associates, City of Peekskill, Michael Dibart, individually and in his capacities as Mayor of the City of Peekskill and Chairman of the Peekskill Urban Renewal Agency, and Peekskill Urban Renewal Agency, Defendants


Wyatt, District Judge.


The opinion of the court was delivered by: WYATT

WYATT, District Judge.

This is a motion by plaintiffs for a preliminary injunction (Fed. R. Civ. P. 65) and for a determination by order that the action is to be maintained as a class action (Fed. R. Civ. P. 23(c)(1)). The motion must be in all respects denied.

 The action is for a permanent injunction, for a declaratory judgment, and for money damages.

 The five plaintiffs are needy women, citizens of New York and residents of Peekskill, who are receiving public assistance under the Social Welfare Law of New York, McKinney's Consol. Laws, c. 55. They and others like them are often called "welfare recipients". Four of the plaintiffs are said to be Negroes but this is irrelevant because nothing is seriously claimed, and certainly nothing has been shown, to have been done by any defendant by reason of the color of any plaintiff. There is no issue of discrimination against any plaintiff because she is black (in fact, one of the plaintiffs is white).

 One of the plaintiffs in the caption is called "Jane Doe". She verified the complaint under her true name, Mary McDowell, and will be referred to hereafter under that name. No reason is given for the use of the fictitious name in the caption, which is hereby amended to substitute "Mary McDowell" for "Jane Doe". See Doe v. Shapiro, 302 F. Supp. 761 (D. Conn. 1969); see also Roe v. New York, 49 F.R.D. 279 (S.D.N.Y. 1970).

 Defendant Crossroads Associates (Crossroads) is a partnership which owns and operates the "Crossroads", an "apartment complex" in Peekskill which is said to be "a middle-income luxury apartment building constructed as part of the Peekskill Urban Renewal Project" (David Bogdanoff affidavit, p. 3).

 Defendants David and Muriel Bogdanoff are members of the partnership, Crossroads.

 Defendant City of Peekskill (sometimes "the City") is in Westchester County, New York.

 Defendant Michael DiBart is Mayor of Peekskill and is also chairman of the Peekskill Urban Renewal Agency.

 Defendant Peekskill Urban Renewal Agency (sometimes "the Agency"), as later more fully explained, was created in 1964 by act of the state legislature.

 The claim of plaintiffs is that Crossroads has refused to accept, and has rejected, applications from plaintiffs for leases of apartments in the "Crossroads"; that such refusal is solely on the ground that plaintiffs are welfare recipients; that such action is a violation of the federal constitutional right of plaintiffs under the Thirteenth and Fourteenth Amendments; and that this Court, under the Civil Rights Acts (42 U.S.C. §§ 1981, 1982, 1983, 1985), should give relief to plaintiffs. All defendants are said to be responsible for the acts of Crossroads. Jurisdiction is asserted under 28 U.S.C. §§ 1343 (civil rights), 2201, and 2202 (declaratory judgments).

 The preliminary injunction sought is apparently the same as the permanent injunction prayed for in the complaint: restraining defendants from denying apartments to plaintiffs on the ground that they are welfare recipients and requiring defendants to offer to plaintiffs apartments on the same basis as offered to those not receiving public assistance.

 The Thirteenth Amendment abolished slavery. There is nothing involved in this action which remotely resembles slavery and the Thirteenth Amendment may be put aside as irrelevant.

 The real issue is whether defendants, or any one of them, have denied to plaintiffs the equal protection of the laws. The states are forbidden by the Fourteenth Amendment to do so and 42 U.S.C. § 1983 makes any person liable who "under color" of state law deprives another of a constitutional right.

 A. Construction of "Crossroads"

 The present controversy arises out of an urban renewal project in the City of Peekskill, financed in part by "capital grants" from the federal government under the several Housing Acts passed by Congress (42 U.S.C. § 1441 and following). The full name of the project is "Academy Street Renewal Project, New York R-45", referred to hereafter as "the Project". This action involves a part of the Project area on which Crossroads has built, and is building, residential housing units.

 Some of the policies and provisions in the Housing Acts are these:

 
a. private enterprise is to be encouraged to meet as much as possible of the housing need (e.g., 42 U.S.C. § 1441);
 
b. capital grants are to be made by the federal government only to a "local public agency" (42 U.S.C. § 1455);
 
c. a specified part of the housing units must be for "low and moderate income families or individuals" (42 U.S.C. § 1455(f); this must mean that the balance may be luxury type units for those with higher incomes); and
 
d. when real property in the project area is sold for redevelopment, the purchaser must undertake certain specified obligations (42 U.S.C. § 1455(b)).

 Effective in 1961, the New York legislature passed the "urban renewal law" (General Municipal Law, McKinney's Consol. Laws, c. 24, § 500 and following) and effective in 1962 the legislature passed the "urban renewal agency act" (General Municipal Law § 550 and following). These laws were intended in part to insure coordination with the federal government.

 The City developed an urban renewal plan for the Project here and made contracts for capital grants with the federal and the state governments.

 Effective April 23, 1964, the legislature established defendant Peekskill Urban Renewal Agency (General Municipal Law § 576) for the purposes specified in the urban renewal agency act.

 On December 27, 1965, the City and the Agency made a "cooperative agreement" so that the Agency might go forward with the Project in place of the City.

 The Agency by contracts obtained capital grants for the Project from the federal and state governments.

 The Agency obtained title to all land in the Project area by purchase or by condemnation ...


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