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BURR v. NEW ROCHELLE MUN. HOUS. AUTH.

September 15, 1972

Daniel BURR et al., Plaintiffs,
v.
The NEW ROCHELLE MUNICIPAL HOUSING AUTHORITY et al., Defendants


Lasker, District Judge.


The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Commencing August, 1971, the New Rochelle Municipal Housing Authority has been charging, in addition to the normal monthly rent, two dollars ($2) per room and one dollar ($1) per apartment on all apartments under its administration. These increases were imposed without a hearing and, in the case of the latter, without notice to the tenants. *fn1"

 Plaintiffs, tenants in Housing Authority apartments, brought this suit against the Authority, its chairman and its project manager under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and 28 U.S.C. § 1331, claiming that defendants' failure to accord them adequate notice and a hearing on the increases denied them due process under color of state law in violation of the Fourteenth Amendment. They seek injunctive and declaratory relief preventing the Housing Authority from continuing to implement the increases and requiring it to refund the charges already collected, to give notice of the reasons necessitating the charges and to afford the tenants a hearing on the merits.

 The defendants have moved to dismiss the complaint on the ground that the court lacks jurisdiction of the subject matter. *fn2" The plaintiffs have cross-moved for a class action order and for summary judgment.

 I. Jurisdiction.

 The defendants contend that jurisdiction does not lie under either "the Fourteenth Amendment" or 28 U.S.C. § 1331. We assume that by the former assertion they mean to allege that jurisdiction is not conferred by 28 U.S.C. § 1343(3). Plaintiffs, although originally relying on both § 1343(3) and § 1331, in their brief rely entirely on § 1343(3) to sustain jurisdiction. We agree with the plaintiffs that this court has jurisdiction under 28 U.S.C. § 1343(3).

 The defendants, in contesting jurisdiction under "the Fourteenth Amendment", rely on the distinction as to the applicability of the Civil Rights Acts made in the case of Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) (which in turn rested on a concurring opinion of Mr. Justice Stone in Hague v. C.I.O., 307 U.S. 496, 531, 59 S. Ct. 954, 83 L. Ed. 1423 (1939)), between personal liberties and property rights. Eisen held that the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counter-part, 28 U.S.C. § 1343(3), did not protect mere property rights. 421 F.2d at 566. However, the rationale has been emphatically rejected by the Supreme Court: "This Court has never adopted the distinction between personal liberties and proprietary rights as a guide to the contours of § 1343(3) jurisdiction. Today we expressly reject that distinction." Lynch v. Household Finance Corp., 405 U.S. 538, 542, 92 S. Ct. 1113, 1117, 31 L. Ed. 2d 424 (1972). The Court thus laid to rest the notion that personal rights and property rights should be treated differently under the Civil Rights Act, since the right to enjoy property without unlawful interference is in itself a valuable personal right. 405 U.S. at 552, 92 S. Ct. 1113. After Lynch it is no longer open to doubt that a complaint predicated on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) cannot be dismissed because property rights alone are involved.

 Thus, if the complaint properly alleges an infringement of rights under color of state law, jurisdiction exists. There is no question that such allegations are set forth. The Court of Appeals of this Court, in a recent decision involving the same defendant found the following facts: "The . . . Authority is a public corporation, established by § 407 of the New York Public Housing Law. . . . Its function is to build, maintain, and administer public housing facilities in New Rochelle. Funds were borrowed from the State of New York for construction purposes, and the Authority receives a subsidy from both the State and the City of New Rochelle . . . . New York law provides the general framework for eligibility requirements for admission to public housing and specifically allows each locality to set its own residence requirements." King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (2d Cir.), cert. denied, 404 U.S. 863, 92 S. Ct. 113, 30 L. Ed. 2d 107 (1971). The Housing Authority is an entity which is established and controlled by the law of the State of New York. The facts and prior case law mandate the conclusion that its official actions are actions taken under color of State law. King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (2d Cir.), cert. denied, 404 U.S. 863, 92 S. Ct. 113, 30 L. Ed. 2d 107 (1971); Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970); Holmes v. New York City Housing Authority, 398 F.2d 262 (2d Cir. 1968).

 Moreover, the complaint specifies an infringement of plaintiffs' constitutional rights to due process. We defer discussion of the merits until our disposition of the motion for summary judgment. Suffice it to say that the prerequisites to § 1343(3) jurisdiction are amply met. Since we determine that jurisdiction exists under § 1343(3), it is unnecessary to discuss the applicability of § 1331.

 II. Motion for a class action determination.

 Rule 23(a), Fed. R. Civ. P., sets forth the prerequisites of a class action:

 
(1) [The] class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

 Rule 23(b)(2) requires, in addition, that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." We find that the rule's requirements are amply satisfied. There are 520 families who reside in Housing Authority apartments, all of whom are affected by the service charge. The case involves one question of law, one claim, the resolution of which will affect the representative parties and all the members of the class equally. The representative parties have to date protected their interests and those of the class most thoroughly and there is no reason to doubt that they will continue to do so as long as necessary. Finally, the Housing Authority has, by ...


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