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CARRASCO v. KLEIN

September 3, 1974

FELITICIA CARRASCO, Plaintiff,
v.
HERBERT KLEIN, Individually and as Marshal of the City of New York, MAX BRITVAN & ALBERT BRITVAN, individually and as officers of 698 ASSOCIATES, INC., 698 ASSOCIATES, INC., FERRARO MOVING & STORAGE CORP., and LEON NESBITT, Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

 NEAHER, District Judge.

 This civil rights action invoking 42 U.S.C. § 1983 and 28 U.S.C. § 1343 is the subject of various dismissal motions by the defendant Klein and the defendants Britvan. Plaintiff sued Herbert Klein, a New York City marshal; Max and Albert Britvan, and 698 Associates, Inc., her landlords; Leon Nesbitt, a licensed New York State process server; and Ferraro Moving & Storage Corp. ("Ferraro"), a moving company employed by Klein. The complaint alleges that in 1971 plaintiff began residing in a rent-controlled Brooklyn apartment owned by the defendant landlords. On April 10, 1972, she and her family were evicted by Klein and Ferraro, acting under a warrant of eviction issued by the Civil Court of the City of New York, Kings County, for her default on a March 8, 1972, petition for non-payment of rent in February and March of 1972.

 Plaintiff further alleges that Nesbitt signed an affidavit attesting his service of the petition and notice of petition in conformity with New York law (N.Y. Real Property Actions and Proceedings Law § 735), which was false. The affidavit of service was allegedly notarized by Max Britvan, who, it is claimed, violated his oath of office by failing to administer the required oath beforehand, even though he allegedly knew of its falsity. All of these acts, it is claimed, were done by the landlords, city marshal, movers and process server pursuant to a conspiracy to unlawfully evict plaintiff.

 Finally, plaintiff alleges, Klein failed to serve her with a 72-hour notice of the Civil Court's warrant of eviction, as required by law, and her eviction ensued; her furniture was negligently and recklessly handled, and substantially damaged or stolen by Ferraro; she suffered severe emotional strain; and her family was dispossessed for ten days. On April 18, 1972, the landlords consented to restore her to the premises upon the payment of the rent demanded in the petition. Her furniture was returned on April 20, 1972 by Ferraro, who again allegedly recklessly and negligently damaged it.

 Plaintiff seeks damages for violation by all defendants of 42 U.S.C. § 1983 in that, acting under color of State law, they deprived her of her property without due process, subjected her to unreasonable seizure of her home and effects, and invaded her privacy. Plaintiff's second cause of action is essentially a pendent State claim for damage to and/or conversion of plaintiff's furniture and possessions.

 I.

 Britvan moves for dismissal against 698 Associates, Inc., on the ground that no such corporation exists. Plaintiff has consented to the dropping of 698 Associates, Inc. as a party to this action, and defendant's motion was orally granted at the time of argument.

 II.

 Britvan also moves for dismissal under Rule 12(b)(1) and (6), F.R.Civ.P., for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction of the claim assertedly grounded in 28 U.S.C. § 1343. *fn1" The claim will survive preliminary scrutiny where it does not appear beyond doubt that no set of facts could be proven thereunder entitling plaintiff to relief. Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594, reh. denied, 405 U.S. 948, 30 L. Ed. 2d 819, 92 S. Ct. 963 (1972).

 Accepting the allegations at face value on this dismissal motion, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515-16, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972), there can be little doubt that plaintiff states a viable claim against Nesbitt, the process server, cognizable in this court. *fn2" No jurisdictional amount is required, Lynch v. Household Finance Corporation, 405 U.S. 538, 548, 31 L. Ed. 2d 424, 92 S. Ct. 1113, reh. denied, 406 U.S. 911, 31 L. Ed. 2d 822, 92 S. Ct. 1611 (1972). At a minimum, plaintiff is entitled to protection of a federally secured Fourteenth Amendment right -- procedural due process, an essential part of which, in the context of a pending civil proceeding such as the eviction proceeding here, is either actual notice thereof or constructive notice "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Schroeder v. City of New York, 371 U.S. 208, 211, 9 L. Ed. 2d 255, 83 S. Ct. 279 (1962); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950). *fn3"

 Deprivation of that right is a valid claim, cognizable in this court, so long as it is accomplished by one acting under color of State law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 166, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The conceptual difficulty in finding action "under color of State law" in the circumstances presented here may be considered resolved in plaintiff's favor in this Circuit. A duly licensed New York process server, executing a false affidavit of service of a summons on a defendant in a civil proceeding, may well be directly responsible for the absence of notice. Such "sewer service" is a denial of due process by one engaged in "essentially and traditionally a public function." United States v. Wiseman, 445 F.2d 792, 796 (2 Cir.), cert. denied, 404 U.S. 967, 30 L. Ed. 2d 287, 92 S. Ct. 346 (1971). In Wiseman false affidavits of service by New York process servers resulting in default judgments were held acts "under color of law" within the meaning of 18 U.S.C. § 242, the criminal counterpart of 42 U.S.C. § 1983. Id. The court agrees with Judge Lasker's subsequently expressed view that since the limits of the State action doctrine are the same under both statutes, *fn4" "it is manifest that the same denial is cognizable under 42 U.S.C. § 1983." Santiago v. Siegel, 71 Civ. 2160, at 3 (S.D.N.Y. filed Feb. 22, 1972). *fn5"

 But this does not mean anything more than that a federal claim has been made out against the process server. What about the landlord? Plaintiff resists the Britvans' motion on two theories, as articulated in the complaint: conspiracy and respondeat superior. Neither theory is without its added conceptual difficulties, but the conspiracy theory less so.

 It is well established that private persons come within the ambit of § 1983 when they are "willful [participants] in joint activity with the State or its agents." United States v. Price, supra n. 4, 383 U.S. at 794 (involving 18 U.S.C. § 242); Adickes v. S. H. Kress & Co., supra, 398 U.S. at 152 (involving 42 U.S.C. § 1983). But here the alleged conspiracy is not between a private person and a State official (such as a policeman in Adickes), but rather one between one private person and another, where one, and only one, is initially brought within the scope of § 1983's State action requirement under the "public function theory" articulated in Wiseman. While the court's initial reaction, from a remedial standpoint, is that there would seem no logical reason to distinguish official and private State action when the latter is sufficiently public, the problem of remoteness does begin to enter. *fn6" Resolution of this question should be greatly facilitated by a fully developed record and trial briefs. In fact, unless a widespread conspiracy is proven, the question will largely disappear. *fn7" But for now, the court cannot say as a matter of law that no set of facts could be proved to ...


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