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UNITED STATES v. GILMAN

March 22, 1972

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


Levet, District Judge.


The opinion of the court was delivered by: LEVET

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. (Para. 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.) *fn1"

 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, *fn2" " 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, W.)

 15. In 1969 the State Commission for Human Rights at the behest of the Westchester Urban League, moved in the New York Supreme Court to punish defendants and their predecessors in interest for contempt of court of the aforesaid order for alleged failure to comply therewith. The motion was opposed and denied, the Supreme Court finding no violation of said order. (355-356, 495; Deft. Exs. X, Y.) The government has conceded no error in the same. (357.)

 16. Daniel Coleman, the superintendent of 555 McLean Avenue, Yonkers, New York, is unable to distinguish color; is legally blind (445); he was examined at the behest of plaintiff to verify same. (363.)

 17. In front of and on the wall of the building at 555 McLean Avenue, Yonkers, New York, there are two signs indicating apartment available for rental. (222-223, 429; Deft. Ex. H.) There is no sign specifically indicating an apartment by the number of bedrooms therein. (362-363, 430.)

 Counsel for the United States has devoted considerable interest in the signs reportedly appearing outside the apartment house at 555 McLean Avenue, Yonkers, New York. I fail to discover anything of significance in reference to the signs. I know of no statute or regulation requiring such signs to indicate vacancies and I find no probative force connected with plaintiff's charges as to which signs are particularly significant.

 18. JONES CLAIM

 This claim was brought by plaintiff upon the following grounds:

 
"(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)."

 In 1966 Mrs. Myra Veldhuis rented an apartment at 2-4 Windsor Terrace, White Plains, New York from the former owners of the building under a lease running from December 1, 1966 to November 30, 1967 and thereafter occupied apartment 5F, a 3 1/2 room apartment. (47; Ex. 1.) A subsequent lease expiring November 30, 1969 contained this provision: "Exp. Notice Date Aug. 31, 1969." (Ex. 1.)

 In November 1967 Mrs. Veldhuis married Dr. Ferdinand Jones, a black, who, after notice of the marriage to the then-management, moved into the apartment with her. (48.)

 At the beginning of September 1969, over sixty days prior to the expiration date of Mrs. Jones' lease (November 30, 1969) but subsequent to the "Exp. Notice Date: Aug. 31, 1969" (Ex. 1), Eisen telephoned and asked if she intended to renew her lease, reminding her "that we were under obligation to give the management 90 days notice of our intent to renew a lease." (59.) Defendants at this time knew that Dr. Jones was a black. (371.) Mrs. Jones told Eisen she did not know yet, that their plans were uncertain. (59.)

 Towards the end of September, Eisen again called by telephone, saying he was in the building and wanted to talk to her about "whether or not we had decided to renew the lease." Mrs. Jones thereupon told Eisen that she could not see him and asked if it could be possible to arrange a time when both she and her husband could meet with him to discuss possible renewal. (65, 66.) Eisen declined to come in the evening or to arrange another appointment and stated that he wanted a decision right then and "announced that he had made a decision not to renew the lease and hung up." (66.) Mrs. Jones did not protest the non-renewal by defendants and, in fact, decided not to renew. Mrs. Jones took no action thereafter except to write to Eisen for a copy of the lease. (67-68.) Later, when Eisen asked Mrs. Jones if she wished to renew her lease she said, "No, Mr. Eisen, I have purchased a home." (232-233.)

 On October 2, 1969 Eisen wrote to Mrs. Jones stating in part:

 
"I am herewith giving you more than the thirty (30) day notice under the law that I will not renew your lease upon expiration and that you will vacate same on November 30th, 1969, and that you will pay your rent up to date, leave the apartment broom clean and turn in all the keys to said apartment and mail box to superintendent.
 
* * *
 
"If you have any further questions regarding this matter you may call me at my office between the hours of three o'clock and five o'clock." (Ex. 2.)

 In late October 1969 Eisen accompanied superintendent Gormas to the Jones' apartment. Eisen commented that he thought Dr. and Mrs. Jones would be much happier elsewhere. (70.) At the termination of the lease, Dr. and Mrs. Jones moved to 167 Concord Avenue, Hartsdale. (72.)

 There seems to be no doubt that the policy of defendants with respect to renewals by other tenants was much more generous. (414, 417, 418.)

 The fact that Mrs. Jones did nothing after receiving the notice not to renew is irrelevant. Furthermore, her reasons for not renewing the lease are also immaterial since she and her husband apparently had been told that they were not wanted as tenants.

 Consequently, I am compelled to find that this conduct by defendants was discriminatory because of race under 42 U.S.C. § 3604(b).

 19. OPPENHEIMER CLAIM

 Plaintiff did not state under which subsection of 42 U.S.C. § 3604 this claim was made. I shall assume it was subsection (c), i.e., "making statements indicating their preference to rent apartments to white persons and their intention to discriminate against black persons, * * *."

 Mrs. Michelle Oppenheimer and her husband, who were whites, became tenants of 2-4 Windsor Terrace, White Plains over two years ago. (394.) Mr. Oppenheimer is connected with the Civil Liberties Union. (478.) Apparently, Mrs. Oppenheimer had seen Eisen some four or five times a year and conversed very casually. (495.)

 Mrs. Oppenheimer testified that in December 1969 Eisen told her a two-bedroom apartment was available and that if she had anyone "who was interested I could send them over" and "to make sure that my friends were white." (396, 396-A.) She also stated that Eisen said "he thought my husband would probably be surprised at that" (397) and that "he thought I would understand the necessity for restrictions in certain apartments in order to get the clientele that was desired." (397.)

 On cross-examination Mrs. Oppenheimer conceded that Eisen did not tell her when "this two-room apartment was going to be available" or in which building it was going to be. (405.) She further told Eisen that none of her friends were looking for "one rooms"; that she never sent anybody for a specified apartment (408) and that she referred people to the building not knowing whether there was an apartment available and did not recall sending anyone who was not white. (407.) She made no written statement to the Urban League. (409, 410.) Mrs. Oppenheimer conceded that she recommended no one to go to this apartment house for a two-room apartment and that none of her friends ever applied. (410-411.)

 Actually, between December 1969 and April 1, 1970, there were no two-bedroom apartments available for occupancy. (485.) Eisen denied mentioning any upcoming vacancies at 2-4 Windsor Terrace. (507.) Eisen denied any specific recollection of any such conversation (as recited by Mrs. Oppenheimer). (478.) Furthermore, he said he had no conversation with Mrs. Oppenheimer about a two-bedroom apartment being available and "to send some friends."

 Plaintiff has not shown that any black applicant was rejected as a result of any alleged statement by Eisen to Mrs. Oppenheimer. Although Eisen denied making the statement, "make sure her friends were whites," under the circumstances, considering the credibility of the witnesses, I conclude that plaintiff has proved by a fair preponderance of the credible evidence that Eisen's statement to Mrs. Oppenheimer was such and, hence, violated 42 U.S.C. § 3604(c).

 20. JOHNSON CLAIM

 This claim is brought upon the ...


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