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PROMINENCE REALTY CORP. v. MAL RESTAURANT

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


May 18, 1982

PROMINENCE REALTY CORP., Plaintiff/Respondent,
v.
MAL RESTAURANT, INC., Defendant/Petitioner

The opinion of the court was delivered by: SPRIZZO

OPINION & ORDER

Plaintiff-respondent, Prominence Realty Corp. ("Prominence") commenced a summary proceeding pursuant to Article 7 of the New York Real Property Actions & Proceedings Law *fn1" in the Civil Court of the City of New York, County of New York, seeking to evict defendant-petitioner, Mal Restaurant, Inc. ("Mal"), a commercial tenant, for non-payment of rent. Mal filed a timely verified petition for removal. Prominence moved for an order remanding the action to the state court on the ground that removal was improper. 28 U.S.C. § 1447(c).

 Mal claims that the action is properly removable pursuant to 28 U.S.C. §§ 1441(b) *fn2" and 1443 *fn3" because Prominence allegedly seeks to evict it in violation of its constitutional rights. More particularly, Mal maintains that Prominence, acting in concert with the City of New York, seeks to evict it because it does not approve of Mal's business activities, to wit, the ownership and management of a topless bar which features entertainment, including dancing and recorded music, which activities Mal alleges are protected by the first and fourteenth amendments to the constitution.

 Mal's reliance on Section 1441(b) is misplaced. That statute provides for removal of any civil action founded on a federal question over which the district courts would have had original jurisdiction. It is well settled that, to warrant removal pursuant to that statute, the federal question must be an essential element of plaintiff's cause of action and must appear from the face of the complaint without reference to the answer or petition for removal. Gully v. First National Bank, 299 U.S. 109, 112-13, 81 L. Ed. 70, 57 S. Ct. 96 (1936); Louisville & Nashville Railroad Company v. Mottley, 211 U.S. 149, 53 L. Ed. 126, 29 S. Ct. 42 (1908); Little Ferry Associates v. Diaz, 484 F. Supp. 890, 891 (S.D.N.Y. 1980). There clearly is no federal question raised by Prominence's petition to evict Mal for non-payment of rent. *fn4" Therefore, removal jurisdiction cannot be sustained pursuant to 28 U.S.C. § 1441(b).

 Similarly, Mal's claim that removal jurisdiction can be premised on 28 U.S.C. § 1443 must be rejected. In Johnson v. Mississippi, 421 U.S. 213, 44 L. Ed. 2d 121, 95 S. Ct. 1591 (1975), the Supreme Court indicated that a removal petition under section 1443(1) must satisfy a two-pronged test. First, the right denied the removal petitioner must arise under a federal law providing for specific civil rights stated in terms of racial equality. It is not sufficient that a removal petitioner claims that constitutional or statutory provisions of general applicability or statutes not protecting against racial discrimination will be violated. 421 U.S. at 219. Second, the petitioner for removal must be denied or unable to enforce the specified federal rights in the state courts. Id. Mal has failed to meet the first requirement because the rights assertedly being denied do not arise under a federal law providing for specific civil rights stated in terms of racial equality. Nor may subsection (2) of section 1443 be relied upon to sustain removal jurisdiction since that subsection is available only to federal officers and to persons assisting them in the performance of their official duties. City of Greenwood v. Peacock, 384 U.S. 808, 815, 16 L. Ed. 2d 944, 86 S. Ct. 1800 (1966).

 Hosey v. Club Van Cortlandt, 299 F. Supp. 501 (S.D.N.Y. 1969), relied upon by defendant, is inapposite. Hosey was not a situation in which plaintiff sought to remove an action for eviction for non-payment of rent to the federal courts. Rather, it was an action brought in the federal court to enjoin the defendant from seeking to evict plaintiff on the ground that the eviction was designed to penalize plaintiff for the exercise of his constitutional rights. Plaintiff's federal claim, therefore, appeared on the face of his complaint. It follows that respondent's motion to remand this action to the state court must be granted. Respondent's motion for costs and disbursements incurred by reason of the removal proceedings is denied. Each party shall bear its own costs and disbursements.

 SO ORDERED.


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