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June 30, 1975

Barbara GIRARD, Plaintiff,

Ward, District Judge.

The opinion of the court was delivered by: WARD

WARD, District Judge.

Defendants, 94th Street and Fifth Avenue Corporation ("the corporation") and the members of its board of directors, individually, move to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief can be granted, or in the alternative, for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on ground of res judicata. Since matters outside the pleadings have been presented to and not excluded by the Court, the Rule 12(b)(6) motion will be treated as one for summary judgment.

 In 1968, during their marriage, plaintiff's former husband purchased shares of capital stock of the corporation and became owner, for the term beginning January 15, 1968 and ending May 31, 1981, of the proprietary lease to the fourth floor of 1125 Fifth Avenue, New York. Thereafter, plaintiff and her husband entered into a separation agreement by which the latter assigned to plaintiff his right, title and interest in the capital stock and proprietary lease, and vacated the premises. The corporation was subsequently notified of the assignment. Plaintiff requested that she be recognized as the owner of the stock and as the lawful tenant of the premises. The board of directors, giving no reason, refused to consent to the assignment of the lease and rejected the demand by plaintiff to transfer the stock on its books to her.

 Plaintiff commenced an action against the corporation in the Supreme Court of the State of New York, County of New York seeking a declaratory judgment that the corporation's refusal was arbitrary, capricious and unreasonable, and a court order compelling it to transfer the stock on its books to her and to consent to the assignment of the proprietary lease. The corporation moved for summary judgment, which was granted. The Court held that by the terms of the proprietary lease the corporation had the right to refuse to consent to the transfer of the lease to plaintiff for any reason it deemed satisfactory except, as the Court noted parenthetically, for reasons prohibited by civil rights laws. The Appellate Division, First Department, affirmed the order and judgment. Plaintiff's motion for leave to appeal to the Court of Appeals was denied.

 Claiming that her requested ownership transfer was rejected for reasons prohibited by the Fourteenth Amendment and the civil rights laws derived therefrom, plaintiff instituted her present action in federal court. She alleges that defendants have violated 42 U.S.C. § 1983, *fn1" by refusing to consent to the requested assignment solely because she is female. She also alleges under 42 U.S.C. § 1985(3) *fn2" that defendants have conspired to deprive her of her procedural due process rights by refusing to provide her an opportunity to be heard at any discussion pertaining to her interests by the board of directors of the corporation, and have conspired to deprive her of substantial property rights in the subject premises solely because she is a female. In addition, she alleges violation of the New York Human Rights Law, New York Executive Law § 296(5)(a)(1) (1972). *fn3" Plaintiff seeks judgment directing that the corporation and the members of its board of directors recognize her as the lawful owner of the shares of stock and proprietary lease in the premises, and enjoining them from interfering with her peaceful possession of the premises.

 Defendants contend that plaintiff has failed to state an adequate federal cause of action. Specifically, they argue that her § 1983 claim must be dismissed for failure to set forth facts showing any deprivation under color of state law of any right, privilege or immunity and that her § 1985(3) claim must be dismissed for failure to establish a conspiracy cognizable under the statute. Alternatively, defendants contend, if plaintiff states a sufficient claim for relief on either ground, the doctrine of res judicata precludes their assertion here since she has already litigated this controversy in state court, where she had full opportunity to assert all claims.

 28 U.S.C. § 1331(a) gives this Court jurisdiction to hear the federal questions raised in plaintiff's complaint since the enforcement of rights arising under the Constitution and laws of the United States is basic to the relief she seeks and the claims she alleges are neither insubstantial nor frivolous. Bell v. Hood, 327 U.S. 678, 683, 66 S. Ct. 773, 90 L. Ed. 939 (1945); Moore v. Central R. Co. of New Jersey, 185 F.2d 369, 371 (2d Cir. 1950). Jurisdiction is not defeated by the possibility that the complaint might fail to state a cause of action. That question must be decided after, and not before, the Court assumes jurisdiction. Bell v. Hood, supra 327 U.S. at 682, 66 S. Ct. 773; Olson v. Board of Education of Union Free School District, Malverne, N. Y., 250 F. Supp. 1000, 1004 (E.D.N.Y.1966).

 To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show (1) a deprivation of rights, privileges or immunities secured by the Constitution and laws of the United States, and (2) causation of such deprivation by a person acting under color of state law. "In cases under § 1983, 'under color' of law has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment." United States v. Price, 383 U.S. 787, 794 n. 7, 86 S. Ct. 1152, 1157, 16 L. Ed. 2d 267 (1966) (citing cases). An action, especially under the Civil Rights Act, should not be dismissed at the pleading stage unless it appears to a certainty that plaintiff is entitled to no relief under any set of facts which could be proved in support of her claim, Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970). Nevertheless, plaintiff's § 1983 claim must be dismissed for failure to allege facts sufficient to support a finding of "state action."

 Citing Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), plaintiff argues that the requisite state action is present to support her § 1983 claim because the courts of the State of New York have ratified and enforced the provision in the proprietary lease vesting the board of directors with near absolute authority to reject requested ownership transfers. While Shelley v. Kraemer does establish that judicial enforcement of a private discriminatory contract may constitute state action for purposes of the Fourteenth Amendment, giving rise to a claim under civil rights laws, the state judicial action involved in Shelley is clearly distinguishable from that presented here. In Shelley, discriminatory purposes of a racially restrictive covenant were secured only by reason of the state court's imprimatur. The state had thus provided "the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners [were] willing and financially able to acquire and which the grantors [were] willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants [was] the difference between being denied rights of property available to other members of the community and being awarded full enjoyment of those rights on an equal footing." 334 U.S. at 19, 68 S. Ct. at 845. However, the Court noted, "the restrictive agreements standing alone cannot be regarded as violative of any right guaranteed to petitioners by the Fourteenth Amendment . . . That Amendment erects no shield against merely private conduct, however, discriminatory or wrongful." 334 U.S. at 13, 68 S. Ct. at 842.

 In the instant case there is no restrictive covenant contained in the proprietary lease which expressly prohibits transfers of ownership on the basis of sex. The lease merely provides that no assignment by a lessee shall be effective against the lessor without its prior consent. The Supreme Court of the State of New York upheld the validity of this provision and acknowledged the broad power of the board of directors to refuse to consent to requested assignments for any reason deemed satisfactory to it except those prohibited by civil rights laws. Even if the board's refusal was motivated by a constitutionally impermissible purpose, any deprivation suffered by plaintiff as a consequence was completed prior to the state court proceedings. Unlike in Shelley, the action by the state court here did not effectuate a discriminatory purpose which could not have been secured but for its decision.

 Finding plaintiff's reliance on Shelley v. Kraemer misplaced, this Court must determine whether plaintiff has alleged facts sufficient to establish the necessary "state action" to support her § 1983 claim. Plaintiff argues no other nexus between the state and defendants' allegedly discriminatory conduct but the state court's decision.

 In order to subject conduct that is formally private to the limitations of § 1983 and the constitutional amendments, it must be shown (1) that the degree of state involvement with the private institution is "significant," (2) that the state's involvement is with the activity that caused the injury (the nexus requirement), and (3) that the state's involvement aids, encourages or connotes approval of the complained of activity. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1971); Barrett v. United Hospital, 376 F. Supp. 791, 797 (S.D.N.Y.1974); see also, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 42 L. Ed. 2d 477 (1975). However, our circuit recognizes a double "state action" standard: "A less onerous test for cases involving racial discrimination, and a more rigorous standard for other claims." Barrett v. United Hospital, supra at 797; Jackson v. The Statler Foundation, 496 F.2d 623, 628-29 (2d Cir. 1974) (citing cases). The Barrett court noted that the rationale behind the exception for cases involving racial discrimination may make it equally applicable to cases involving sex or age discrimination. 376 F. Supp. at 797 n. 26.

 Since plaintiff bases her § 1983 claim on alleged sex discrimination, this Court will depart from the three-pronged state action test and more closely scrutinize the state court's involvement to determine whether the alleged discrimination by defendants was impregnated with governmental approval. Under this stricter standard, "indirect governmental participation in the management of an organization is persuasive evidence of the existence of 'state action' where the participation is both substantial and other than neutral." Jackson v. The Statler Foundation, 496 F.2d 623, 635 (2d Cir. 1974). Upon review of the evidence presented, it cannot be said that the action of the state court here was either "substantial" or "other than neutral." The state has merely provided a forum to determine the rights of the parties; it has no interest whatever in the outcome of the private litigation. See, Stevens v. Frick, 372 F.2d 378, 381 (2d Cir. 1967) (citing cases). The purported discrimination was not secured only by reason of the state court's decision. Cf., Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948). To say that an open courthouse door constitutes "state action" is to demean the judicial process. Such a conclusion would provide future litigants an opportunity to raise a § 1983 claim, based on conclusory allegations of discrimination, every time a state court construed a contractual provision, nondiscriminatory on its face, against the litigant's interests. Accordingly, plaintiff's § 1983 claim is dismissed for failure to establish the requisite element of "state action."

 Defendants next challenge the sufficiency of plaintiff's § 1985(3) claim. In Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1970), the Supreme Court set the framework for an adequate complaint under § 1985(3). A complaint must allege (1) a conspiracy between two or more persons for the purpose of depriving any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law, and (2) an act by one of the conspirators in furtherance of the object of the ...

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