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February 28, 1983


The opinion of the court was delivered by: Parsons, Senior District Judge.


The defendants have moved for summary judgment. The court concludes that at this stage of the case and considering all of the evidence that has been made available, including that bearing upon the issue of the intent of the defendants, this case can be ruled upon as a matter of law. Summary judgment will be both practical and time saving. It should be granted.

Defendants are the 442 Wellington Cooperative Building Corporation, title holder to a luxury condominium apartment building, and its officers and directors, most if not all of whom, of course, live in the building. The defendants are accused by the plaintiffs, a Dr. Gerald Kaplan and his wife, Clara L. Kaplan, of discriminating against them in violation of 42 U.S.C. § 1982 and 3604, by refusing to permit the sale to them after they had made a bona fide offer to buy it, one of the residential condominium units in the building, because of the fact that plaintiff Clara Kaplan is an Hispanic citizen of the United States whose place of national origin was Cuba. Jurisdiction is based on 28 U.S.C. § 1343(4); 42 U.S.C. § 3612; 42 U.S.C. § 3604; and 42 U.S.C. § 1982.

In aid of clarity in the ensuing analysis, the pertinent provisions of the substantive statutes should be reviewed. It should be noted that Section 1982 is one of the numerous provisions of the original Civil Rights Act of 1866, enacted by Congress in its effort to extend to the newly freed slaves the full mantle of citizenship which it then considered was available to free white citizens. It first was enacted at a time when there had been no constitutionally determined federal citizenship. From the time of the adoption of the Constitution, American citizenship had been left to the states, and Congress thought in 1866 that it could confer equality of citizenship by statute alone. It became necessary, however, two years later, in 1868, for Congress and the states to adopt the Fourteenth Amendment, creating for the first time a constitutionally declared national citizenship. In its original form, Section One of the Civil Rights Act of 1866 attempted by its first words to create, by federal statute, a national citizenship. Section One provided: "that all persons born in the United States not subject to any foreign power . . . are hereby declared to be citizens of the United States." The provision of this enactment applicable to the instant case, Section 1982, as recited originally as part of Section 1 of the Act of 1866, and repeated in Section 16 of the Act of 1870, provided that:

  All citizens of the United States shall have the same
  right, in every State and Territory, as is enjoyed by
  white citizens thereof to inherit, purchase, lease,
  sell, hold, and convey real and personal property.
  (Emphasis added).

In the interim the Fourteenth Amendment was adopted creating a federally declared American citizenship. More than one hundred years later, the Fair Housing Act of 1968, Section 3604 of Title 42, made specific these guarantees to other than non-white persons when it mandated in pertinent part that:

  [I]t shall be unlawful . . . (a) [t]o refuse to sell
  or rent after the making of a bona fide offer, or to
  refuse to negotiate for the sale or rental of, or
  otherwise make unavailable or deny, a dwelling to any
  person because of race, color, religion, sex, or
  national origin. (Emphasis added).

Plaintiffs allege in substance in their complaint that on November 12, 1980, they entered into a contract for the purchase of the stock and of the leasehold of a cooperative apartment in the residential building managed by the 442 Wellington Cooperative Building Corporation as its principal concern. Pursuant to the proprietary lease of the condominium to be purchased, the Kaplans were obligated to obtain the approval of the Board of Directors of the cooperative building corporation. The Kaplans assert that the directors of the corporation intentionally rejected their application for the acquisition of the apartment because Clara Kaplan, an American citizen but an Hispanic, was from Cuba. If this is true, what they complained of was a word for word violation of 42 U.S.C. § 3604. The plaintiffs further alleged that at the time of this denial the cooperative unit was available for purchase and that they were ready, willing and able to complete the transaction. If this were true, and if Mrs. Kaplan is non-white, it is a literal violation of Section 1982. Plaintiffs at this time have not asserted that Clara L. Kaplan is a non-white; but if for this motion we assume, without deciding and subject to further proof, that she would be considered non-white, then plaintiffs would come within the specific protection of Section 1982.*fn1

In order to justify a summary judgment, the movant is required to show "the absence of a genuine issue as to any material fact, and for these purposes the material [the movant] lodged must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). It should be noted that this burden is especially heavy when intent and motivation play a major role in the claims presented. Poller v. C.B.S., Inc., 368 U.S. 464, 472-73, 83 S.Ct. 486, 490-91, 7 L.Ed.2d 458 (1962); Illinois Employees Union, Council 34 v. Lewis, 473 F.2d 561, 565-66 (7th Cir. 1972) cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 580 (1973).

The defendants having contravened the complaint, have attached to their motion for summary judgment certain affidavits and portions of certain depositions. These evidentiary exhibits are offered in order to establish that the decision of the directors of the corporation was not influenced or affected by the fact that Clara Kaplan is Hispanic and comes from Cuba, but rather that their decision rested on other and entirely different considerations. Plaintiffs in turn have presented no clear counter-evidence, although they staunchly assert in their own depositions and counter-affidavits that their belief is that they were refused the condominium unit because of Clara Kaplan's national origin or race. Of course this is not an unusual assumption in which a member of a minority indulges him or herself when something is withheld by members of a majority. This case calls into play the role of a Rule 56 motion.

The last two sentences of Rule 56(e) should be repeated here:

  When a motion for summary judgment is made and
  supported as provided in this rule, an adverse party
  may not rest upon the mere allegations or denials of
  his pleading, but his response, by affidavits or as
  otherwise provided in this rule, must set forth
  specific facts showing that there is a genuine issue
  for trial. If he does not so respond, summary
  judgment, if appropriate, shall be entered against
  him. (Emphasis added).

Rule 56 thus establishes how a motion for summary judgment once made may be supported and when and with what it must be supported. Affidavits made on personal knowledge, sworn or certified copies of papers or parts of papers, depositions, answers to interrogatories, and further affidavits are specifically recited. For, as the Notes of the Advisory Committee on Rules state, "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."

In this case the parties have exhausted the sources of information and have presented to me as attachments to their briefs for and against summary judgment all evidence that reasonably could be considered available for presentation to a jury were the case to go to trial. Even the cross examinations of the principals has been ...

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