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July 21, 1972

Siegfried HERNANDEZ, Plaintiff,

Costantino, District Judge.

The opinion of the court was delivered by: COSTANTINO


COSTANTINO, District Judge.

 Predicating jurisdiction upon 28 U.S.C. §§ 1331, 2281 (1970) and, alternatively, upon 42 U.S.C. § 1983 (1970) and 28 U.S.C. § 1343(3) (1970), the plaintiff's complaint challenges that part of the New York Lien Law which grants the owner of a place for the storage, maintenance, keeping or repair of motor vehicles a lien against a motor vehicle in his possession for nonpayment of charges arising from the services he has undertaken with the consent of the owner of the motor vehicle. N.Y. Lien Law § 184 (McKinney 1966, Supp. 1971). More specifically, the plaintiff challenges that portion of the law authorizing the lienor to summarily detain his motor vehicle, id., and to sell the motor vehicle at public auction with the lienor retaining from the proceeds of the public sale a sum equal to the amount of the indebtedness plus the expenses of the advertisement and sale, id. §§ 200-202, 204. For relief, in addition to his claim for damages, the plaintiff has requested the court to issue an order (1) convening a three-judge court to pass on the constitutionality of the challenged statutory provisions and (2) temporarily restraining the sale of his automobile at public auction; *fn1" if however, a three-judge court is not to be convened, the plaintiff would then have the court issue a preliminary injunction prohibiting the sale of the automobile and commanding its return to the plaintiff pending full determination of the alternative cause of action arising under the civil rights statute. Intervening in defense of the constitutionality of the challenged provisions of the lien law, the Attorney General of the State of New York has opposed the convening of a three-judge court and seeks to dismiss the complaint for the lack of a substantial federal question.


 After the plaintiff's automobile was wrecked in an accident, it was towed to the European Auto Collision, Inc., a defendant named in this action. The plaintiff instructed one of the defendant's employees that no repairs were to be made on the automobile until further authorization by him pending an independent damage appraisal by an insurance adjustor. *fn2" Despite the plaintiff's specific instructions, the defendant garagemen fully repaired the plaintiff's automobile prior to the insurance adjustor's appraisal and without authorization from the plaintiff. Additionally, the plaintiff questions not only the itemization of the repairs made but also the necessity of some of the repairs the garage claimed to have made.

 Subsequently, when the plaintiff refused to pay the bill presented to him by the garage, pursuant to the lien law the garage detained the plaintiff's automobile to satisfy the claimed indebtedness, depriving the plaintiff of the use and enjoyment of his property. As storage charges mounted and the value of the automobile depreciated, the garage sent the plaintiff notice that unless the bill was paid by the noticed date, the garageman's lien would be enforced at a public sale 21 days after the noticed date. In order to prevent the scheduled sale at public auction, the plaintiff filed this action accompanied by a request, which this court granted, see note 1 supra, for an order temporarily restraining the defendants from selling the plaintiff's automobile.

 Three-Judge Court

 In enacting 28 U.S.C. § 2281 (1970) the Congress has made the convening of a district court of three judges incumbent to entertain a complaint seeking to enjoin a state officer from enforcing a state statute on the grounds of its alleged unconstitutionality. But, § 2281 is not "a measure of broad social policy," rather it is "an enactment technical in the strict sense of the term and to be applied as such." Phillips v. United States, 312 U.S. 246, 251, 61 S. Ct. 480, 483, 85 L. Ed. 800 (1941). Before a three-judge court can be convened, then, the complaint must (1) allege that a statute of state-wide application violates the Constitution and (2) request relief in the form of an injunction restraining a state official from enforcing the challenged statute. See Lazarus v. Faircloth, 301 F. Supp. 266 (S.D. Fla. 1969), vacated on other grounds, Shevin v. Lazarus, 401 U.S. 987, 91 S. Ct. 1218, 28 L. Ed. 2d 524 (1971). Here, while not controverting the allegation that the challenged provisions of the lien law are of statewide application, the State argues that the complaint is fatally defective on the second requirement in failing to seek injunctive relief against a state officer.

 The plaintiff, on the other hand, contends that the municipally licensed public auctioneer, defendant Samuel Greenspan, designated by the defendant garage to enforce its lien against the plaintiff's automobile, is a local officer acting pursuant to the challenged state statute. The plaintiff correctly points out that under § 2281 the geographical extent of the official's powers or the mode of his selection are not in issue; what is decisive is whether the complaint is seeking to enjoin a public official or employee from performing those functions required of him by the state statute. Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S. Ct. 808, 83 L. Ed. 1242 (1939). Consequently, a complaint seeking to enjoin a local official from acting pursuant to a statewide statute would be within the scope of § 2281. Moody v. Flowers, 387 U.S. 97, 101-102, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967).

 Nevertheless, the plaintiff cannot succeed on his motion to convene a three-judge court. Defendant Greenspan, the only person sought to be enjoined by the plaintiff who could possibly convey § 2281 jurisdiction on this court, is neither a state nor local official; he is merely a private businessman regulated by a municipal licensing ordinance and essentially acting for his own benefit and that of his principal, European Auto Collision, Inc. Clearly, § 2281 does not as a matter of language nor as a matter of policy extend to a private person, Hall v. Garson, 430 F.2d 430 (5th Cir. 1970), even though he may be performing state functions for the purpose of the "state action" requirement of 42 U.S.C. § 1983 (1970), United States v. Wiseman, 445 F.2d 792 (2d Cir.), cert. denied, 404 U.S. 967, 92 S. Ct. 346, 30 L. Ed. 2d 287 (1971). *fn3" Thus a three-judge court cannot properly be convened.

 Civil Rights Action

 The complaint also states a claim under the Civil Rights Act seeking a judgment declaring the challenged provisions of the lien law unconstitutional, an order enjoining their enforcement and monetary compensation for damages directly attributable to the actions taken by the defendants pursuant to the lien law. In order to state a cause of action arising under 42 U.S.C. § 1983 (1970) the plaintiff must allege, first, the deprivation of a right, privilege or immunity secured by the Constitution or laws of the United States and, second, that the deprivation was caused by a person acting under color of a state statute, ordinance, regulation, custom or usage, i.e., he must allege the presence of state action, see United States v. Price, 383 U.S. 787, 86 S. Ct. 1152, 16 L. Ed. 2d 267 (1966). But, here, however, treating the plaintiff's allegations as true in ruling upon the State's motion to dismiss, see e.g., Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir.), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970), and even assuming that the defendants are acting under color of state law, the court cannot find that the plaintiff's constitutional right to due process of law has been deprived by the operation of the challenged provisions of the lien law. Consequently, in light of the failure of the plaintiff's complaint to pass muster on the first requisite to a § 1983 action the court need not go further and formally pass upon the second requirement -- the presence of state action. *fn4"

 Due Process of Law

 Fundamental to the concept of due process of law secured by the fourteenth amendment stands the principle that no one should be deprived of life, liberty or property without notice adequate to apprise him of the impending risk to his rights and a fair opportunity to be heard in opposition to those seeking to deprive him of those rights. Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Anderson National Bank v. Luckett, 321 U.S. 233, 64 S. Ct. 599, 88 L. Ed. 692 (1944); Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 59 L. Ed. 1027 (1915). Unquestionably, an attempt to deprive a person of a significant interest in property, whatever the nature of that property or the duration of the deprivation, falls within the protective sphere of the due process requirements of the fourteenth amendment. Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 1998-1999, 32 L. Ed. 2d 556 (1972). Thus, in separate challenges to § 184 of the lien law -- allowing the defendant garage to detain and hold the plaintiff's automobile as a res to satisfy the claimed indebtedness -- and to §§ 200-202 and § 204 of the law -- which, taken together, allow the garage to sell the plaintiff's automobile at public auction in satisfaction of the charges claimed by the garage -- the plaintiff argues that he has been deprived of his right to due process of law in that the statutory scheme does not accord him an appropriate hearing at a meaningful ...

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