in 1974 and in 1975, caused them to vote negatively on the
application. Three of the non-approving directors agreed that
negative information on the Kaplans as tenants in their prior
dwelling influenced their decisions and three of them stated in
their depositions that they reacted negatively to the Kaplans'
personalities. Two of the directors who voted to reject the
Kaplans' application testified that they also were concerned with
the relationship of Dr. Kaplan's attorney to the plaintiffs. Two
of them cited the Kaplans alleged involvement in other suits at
law as a negative factor in their determination.
Even the two directors who voted in favor of the Kaplans
application submitted in their depositions that as far as they
could recall the real reason the application was not approved was
because of the negative conclusions drawn by the other directors
from Mr. Kaplan's aborted business deal with Mr. Metzger. One of
these two directors also cited the concerns of the board
regarding medicaid payments to Dr. Kaplan as influencing the
The plaintiffs responded and attached affidavits and documents
to their supplemental memorandum and also appended deposition
excerpts to it. These materials established the additional facts
that Clara Kaplan "originated from" Cuba, and that this fact was
communicated to members of the 442 Wellington board prior to
their voting on the Kaplans' admission to the building. These
materials also established that prior to the filing of this
lawsuit, the board never communicated to the Kaplans the reason
for their rejection and the apartment the Kaplans had contracted
for was still available for sale after the Kaplans were rejected.
The plaintiffs established further that there has never been a
shareholder of the 442 Wellington Building who was black or
Hispanic. Beyond this, these exhibits merely reiterate the
belief, and the feeling of Dr. and Mrs. Kaplan, that their
rejection had to have resulted from her having come from Cuba.
The preliminary issue presented, is whether at this juncture we
are to accept as sufficient the defendants' factually
unchallenged and uncontravened statements that their denial of
the application of the Kaplans was based on considerations
totally unrelated to racial or national animus. If we are, then
summary judgment is appropriate since higher federal courts
recently have required that there must be some positive showing
of purposeful or intentional discrimination for claims of
plaintiffs to succeed under 42 U.S.C. § 1982, and even in a prima
facie showing under 42 U.S.C. § 3604 something more than
discriminatory effect must be shown. See Phillips v. Hunter
Trails Community Assoc., 685 F.2d 184, at 187, 190 (7th Cir.
1982). The evidence of circumstances must lead the reasonable
mind to the "suggestion" that discrimination was intended. Id. at
190. And in General Building Contractors Association v.
Pennsylvania, ___ U.S. ___, 102 S.Ct. 3141, 73 L.Ed.2d 835
(1982), cited to the court herein by defendants in a letter by
their counsel to the court (copy to opposing counsel), the
Supreme Court held that liability may not be imposed under §
1981, the "companion" provision of § 1982, without proof of
intentional discrimination. Some of its words are important here.
We have held [heretofore with cases cited] that
both § 1981 and § 1982 "prohibit all racial
discrimination, whether or not under color of
law . . ." Nevertheless, the fact that the
prohibitions of § 1981 encompass private as well
as governmental action does not suggest that the
statute reaches more than purposeful discrimination,
whether public or private.
. . . The supporters of the bill repeatedly
emphasized that the legislation was designed to
eradicate blatant deprivations of civil rights,
clearly fashioned with the purpose of oppressing the
We conclude, therefore, that § 1981 . . . can
be violated only by purposeful discrimination.
Id. at 3148-3150.