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April 17, 1973

Erwin STOESSEL and Barbara Stoessel, Plaintiffs,

Duffy, District Judge.

The opinion of the court was delivered by: DUFFY

DUFFY, District Judge.

This is an action under 42 U.S.C. § 1982 and § 3604. The basic complaint is that the defendant Parkside Development Co., a housing cooperative in the Bronx, refused to negotiate with plaintiffs Erwin and Barbara Stoessel for the purchase of a cooperative apartment since they were Negroes. The plaintiffs demand "an injunction . . . permanently restraining and enjoining the defendant from refusing to negotiate for and sell a two (2) bedroom apartment to the plaintiffs and for an order setting forth a system whereby all applications for apartments in defendant's premises are processed by the defendant in an orderly manner whereby the applicants, particularly the plaintiffs, are advised of their standing on any waiting list . . ."

 The plaintiffs also seek actual damages of $2,000, $2,000 punitive damages, and reasonable attorney's fees and costs.

 Plaintiffs testified that they visited the apartment development on February 17, 1971, looking for an apartment. They found no listing of the managing agent and were told by some unidentified woman that the tenants owned the building. Shortly thereafter, the plaintiffs were contacted by a Mr. Garcia, who was until recently the superintendent of the building. Mr. Garcia invited plaintiffs to his apartment and showed them a check stub which said that the A & S Management Corp. (hereinafter "A & S") was the manager of the building. Plaintiff Irwin Stoessel telephoned A & S and was told to send them a self-addressed envelope and he would be sent an application.

 On or about March 22, 1971, A & S sent three applications to the plaintiffs and they were filled out and returned to the managing agent. The plaintiffs claim that the delay in receiving the application was evidence of the defendant's discrimination. This delay apparently was not caused by any racial motivations but by a clerical dislocation caused when A & S during this period absorbed the previous management company. In any event, it does not appear that any other applicants were placed on the waiting list during this period.

 Before receiving the application, the plaintiff, Irwin Stoessel, testified as a witness at a hearing before the New York State Division of Human Rights on March 17, 1971, involving discrimination charges brought by Mr. Garcia. Mr. Garcia had been notified in December 1970 that he was to be discharged and filed a charge of discrimination against the defendant Parkside and the agent, A & S Management Corp.

 Mr. Garcia claimed both at the hearing before the State Division of Human Rights and also at the trial, that he was being discharged because he was aiding blacks in obtaining applications. He testified that the individual manager of the building had told him to stop helping "niggers" and that he should not give applications to blacks.

 After the receipt by A & S of the application form, the plaintiffs were placed at the bottom of the third priority waiting list for two bedroom apartments. Parkside had three categories of priority: the first, for those tenants already residing in the building; second, for returning Vietnam veterans; and third, for all other non-residents of the project.

 When the plaintiffs did not immediately receive an apartment at the defendant's development, they filed a complaint against the board of directors of the defendant corporation and A & S. Apparently, the plaintiffs did not know that their name had been added to the waiting list for two-bedroom apartments, priority three, on March 26, 1971, and that they were thirty-third on the list. The State Division of Human Rights conducted an inquiry into the plaintiffs' charges and dismissed the complaint on July 13, 1971.

 On July 16, 1971, the plaintiffs appealed that determination. The State Human Rights Appeal Board affirmed the order dismissing the complaint on April 14, 1972, and the plaintiff was notified that he could bring a proceeding in the Appellate Division of the Supreme Court of the State of New York within 30 days from the date of the order. The plaintiff did not appeal that decision. Prior to the plaintiff's receipt of the decision of the State Human Rights Appeal Board, the plaintiffs initiated this action.

 On March 1, 1973, the plaintiffs' name on the waiting list had risen to the top spot; they were offered and sold an apartment, and moved in on March 15, 1973. Three waiting lists were introduced as exhibits by the defendants which showed the plaintiffs' name moving up on the waiting list until sometime in late 1972, when plaintiffs were the fourth name on the "priority three" waiting list.

 Parkside denied the allegations of discrimination and alleged three affirmative defenses:

First, that the action was barred by the Statute of Limitations, 42 U.S.C. § 3612;
Second, that the determination of the State Division of Human Rights affirmed by the State Human Rights ...

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