Novick v. Levitt & Sons, Inc. Papers on Appeal from an Order
Public Court Documents
June 1, 1951

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Brief Collection, LDF Court Filings. Novick v. Levitt & Sons, Inc. Papers on Appeal from an Order, 1951. 301ccc0e-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/74b3aa7e-63cb-4b57-b975-33a3705c7780/novick-v-levitt-sons-inc-papers-on-appeal-from-an-order. Accessed April 27, 2025.
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Jfatu |jork Glmtrt A ppellate D ivision— S econd D epartm e n t GERTRUDE NOVIOK and JULIUS NOVICK, ADOLPH ROSS and LILLIAN ROSS, Plaintiffs-App ellants, against LEVITT & SONS, INC., Defendant-Respondent. PAPERS ON APPEAL FROM AN ORDER R obert L. Carter, C onstance B ak er M otley, J ack G reenberg, No. 20 West 40th Street, New York City. A ndrew D. W einberger, No. 292 Madison Avenue, New York City, Attorneys for Plaintiffs-Appellants, I ra G. G oldm an , Attorney for Defendant-Respondent, No. 3230 Northern Boulevard, Manhasset, New York. J u dic ia l P r in t in g Co., I n c ., 82 Beekman St., N. Y.—BEekman 3-9084-5-6 ggggjifep 182 I N D E X PAGE Statement Under Rule 234 ................................ 1 Notice of A ppea l................................................. 2 Order Appealed F ro m ................................ 3 Memorandum Opinion of Cuff, J.................... 28 Stipulation Waiving Certification................... 33 P apers R ead in S upport of M otion Notice of Motion .......................................... 5 Summons .......................................................... 6 Complaint ......................................................... 7 Exhibit A—Letter from Bethpage Realty Company to Tenants, dated March 15, 1949 ........................................................... 17 Exhibit B—Copy of lease........................... 18 Exhibit C—Copy of amendment to the Administrative Rules of the Federal Housing Commission under Title VII of the National Housing A c t ............... 26 Exhibit D—Letter, dated August 3, 1950, from Levitt and Sons to Mrs. Ger trude N ovick............................................ 27 1 Km fork i>uprrmp Olourt A ppellate D ivision— S econd D epartm ent G ertrude N ovick and J u l iu s N ovick , A dolph R oss and L illian R oss, Plaintiffs-Appellants, against L evitt & S ons, I n c ., , Defendant-Respondent. Statement Under Rule 234 This is an appeal by the plaintiffs herein from an order of Special Term Part II of the Supreme Court, Nassau County (Cuff, J.) made and en tered in the office of the Clerk of the County of Nassau on March 1, 1951 granting defendant’s motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action. This action was commenced by the service of a summons and verified complaint on November 30, 1950. Notice of Appeal was served March 12, 1951. The plaintiffs are represented by Robert L. Carter, Jack Greenberg, Constance Baker Motley and Andrew D. Weinberger as their attorneys. Defendant appeared by Ira G. Goldman. There has been no change of parties or at torneys. 2 4 Notice of Appeal SUPREME COURT OF THE STATE OF NEW YORK C o u n t y of N assau 5 6 --— — —— - ..... Gertrude N ovice and J u liu s N ovice, A dolph R oss and L il l ia n R oss, Plaintiffs, again st L evitt & S ons, I n c ., Defendant. P lease take notice that the plaintiffs herein hereby appeal to the Appellate Division of the Supreme Court, Second Department, from the order made in the above entitled action and en tered in the Office of the Clerk of the County of Nassau on the 1st day of March, 1951, which granted in all respects defendant’s motion to dis miss the complaint and which dismissed the com plaint for the reason that it fails to state facts sufficient to constitute a cause of action, and this appeal is taken from the whole and from each and every part of said order. Dated: March 12, 1951 C onstance B aker M otley 20 West 40th Street New York 18, New York A ndrew D. W einberger 292 Madison Avenue New York, New York Attorneys for Plaintiffs 3 Order Appealed From 7 To: I ka G. G oldm an , Esq. 3230 Northern Boulevard Manhasset, New York Cleek of t h e C o u n ty of N assau Order Appealed From At a Special Term Part II of the Su- g preme Court held in and for the County of Nassau at the Nassau County Courthouse, Old Country Road, Mineola, N. Y., on the 1st day of March, 1951. Present: Honorable T h om as J. Cu f f , Justice. [S a m e T it l e ] The defendant having moved this Court for 9 judgment pursuant to Rule 106 of the Rules of Civil Practice, dismissing the complaint upon the ground that upon the face thereof it does not state facts sufficient to constitute a cause of action; and the motion having duly come on to be argued before me on January 10, 1951; and after hear ing Ira G. Goldman, Esq., attorney for the de fendant, by John F. Havens, Esq., of counsel, in support of the motion, and Andrew D. Wein berger, Esq., one of the attorneys for the plain tiffs, in opposition thereto; and due deliberation having been had and the decision of the Court 4 dated February 21, 1951 having been duly filed herein; Now upon reading and filing the notice of this motion, dated the 15th day of December, 1950, to gether with proof of due service thereof, the sum mons and complaint verified November 29, 1950, and the Exhibits A, B, C and D annexed thereto and the memoranda of the defendant, in support of the motion; and the memorandum of the plain tiffs in opposition thereto; 11 It is upon motion of Ira G. Goldman, Esq., attorney for the defendant, hereby O rdered that the m otion be and the sam e hereby is in a ll resp ects g ra n ted and that the com pla in t h erein be and the sam e h ereb y is d ism issed fo r the reason that it fa ils to state fa c ts sufficient to constitu te a cause o f a ction togeth er w ith costs and $10 m otion costs to the defen dan t. Enter. T homas J. C u ff 12 J. S. C. Granted Mar.—1, 1951 Chas. E. R ansom Clerk Entered Mar. 1, 1951 Chas. E. R ansom County Clerk of Nassau County XO Order Appealed From 5 Notice of Motion SUPREME COURT N assau C o u nty [S ame T itus] Silts: P lease take notice that upon the complaint herein, verified November 29, 1950, the under signed will move this Court at a Special Term Part II to be held in and for the County of Nassau at the Nassau County Courthouse, Old Country Road, Mineola, New York, on the 27th day of December, 1950, at 10 o ’clock A. M. or as soon thereafter as counsel can be heard, for judgment pursuant to Rule 106 of the Rules of Civil Prac tice, dismissing the complaint upon the ground that upon the face thereof it does not state facts sufficient to constitute a cause of action and grant ing to the defendant such other and further relief as to the Court may seem just and proper. Dated: December 15, 1950. I ra G. G oldman Attorney for Defendant Office and Post Office Address 3230 Northern Boulevard Manhasset, New York To: R obert L. Carter, Esq., J ack G reenberg, Esq., C onstance B aker M otley , Esq., and A ndrew D. W einberger, Esq., Attorneys for Plaintiffs SUPREME COURT OF THE STATE OF NEW YORK C o u nty op N assau Plaintiffs designate Nassau County as the place of trial. Summons, Read in Support of Motion G ertrude N ovick and Junius N ovick , A dolph Ross and L illian R oss, Plaintiffs, against L evitt & S ons, I n c ., Defendant. Plaintiffs resides in Nassau County. To the above named Defendant: You are hereby sum m oned to answer the com plaint in this action, and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff’s Attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to ap pear, or answer, judgment will be taken against 7 you by default, for the relief demanded in the complaint. Dated, November 29,1950 R obert L. Carter J ack G reenberg C onstance B aker . M otley Attorneys for Plaintiff Office and Post Office Address 20 West 40th Street 20 New York 18, N. Y. Complaint, Read in Support of Motion 39 Complaint, Read in Support of Motion SUPREME COURT OP THE STATE OF NEW YORK C o u n ty of N assau [S a m e T it l e ] Plaintiffs complaining of the defendant by Robert L. Carter, Jack Greenberg, Constance Baker Motley, and Andrew D. Weinberger, their attorneys, respectfully allege and show to this court as follows: I. That the plaintiffs, Gertrude and Julius Novick, man and wife and the parents of two minor children, presently reside and at all times hereinafter mentioned resided in Levittown, County of Nassau, State of New York. II. That the plaintiffs, Adolph Boss, a veteran of World War II, and Lillian Ross, man and wife and the parents of two minor children, presently reside and at all times hereinafter mentioned resided in Levittown, County of Nassau, State of New York. III. That the defendant, Levitt and Sons, Inc., is a New York corporation incorporated under the laws of the State of New York with principal offices in Manhasset, Nassau County, New York. IV. That the said defendant is engaged in the business of constructing homes and has con structed a community of homes known as Levit town, situated in Nassau and Suffolk Counties in the State of New York; and that said community consists of approximately 10,000 small homes, ap proximately 1,500 of which have been leased by defendant for dwelling purposes and the remain ing number sold by defendant for the same pur pose. V. That said community of homes was built with the aid of the federal government through the Federal Housing Administration which insured, pursuant to the provisions of Title 12, IJ. S. Code, Sec. 1707 et seq., all of the mortgages on said homes, which were secured from various mort gagees by defendants and others as mortgagors, conforming to various requirements of the Fed eral Housing Administration as to such matters Complaint, Bead in Support of Motion 9 as ultimate sole price, size, quality of building materials, site, location, probable resale ability and value, etc. VI. That defendant without said aid from the federal government would not have been able to construct the community of homes known as Levit- town on the large scale on which it has been con structed. VII. That the plaintiffs, Gertrude and Julius Novick and Adolph and Lillian Ross, are the lessees of two of said homes in Levittown which are owned by the defendant and leased from de fendant and known as 50 Honeysuckle Road and 52 Honeysuckle Road, Levittown, New York, re spectively. VIII. That plaintiffs, Gertrude and Julius No vick, leased their premises from defendant on December 22, 1949. IX. That plaintiffs, Adolph and Lillian Ross, first leased their premises from defendant on Novem- 2*3 ber 15, 1947, and last renewed said lease on De cember 1, 1949. X. That the said leases are presently in force and presently binding upon both lessor and lessees but, by their own terms, expire November 30, 1950. XI. That neither the defendant lessor nor the plaintiff lessees have breached any of the provi sions of said leases. Complaint, Read in Support of Motion 25 10 28 Complaint, Read in Support of Motion XII. That it is the policy, custom, and practice of the defendant as lessor, just prior to the expira tion date of a lease, to send to each lessee a letter and two copies of a new lease to he signed by the lessee and returned to the defendant lessor in ac cordance with said letter, a copy of which is at tached hereto and marked Exhibit A. These let ters usually provide as follows: “ The efficient and economical manage ment of huge rental project like Levit- 29 town necessitates our knowing in advance whether you wish to renew your lease. If you do, you must sign and return both copies of the enclosed lease within two weeks. Otherwise, we shall conclude that you do not desire a renewal. This will re quire your moving out when your present lease expires. “ This renewal is not effective unless and until we send back to you one copy of the lease signed by us.” 30 XIII. That unless the lessee breaches some pro vision of the lease itself and is so notified by de fendant, leases are always renewed in the man ner indicated by said letter. XIV. That in the past the leases of the plaintiffs, Adolph and Lillian Ross, have been thus re newed. XV. That in the past the leases given by the defendant and its subsidiaries, the Bethpage Realty Corporation, and the Island Trees Realty 11 Corporation, domestic corporations, to their vari ous lessees contained a provision which stated as follows: “ 24. T h e T e n a n t agrees n o t t o perm it THE PREMISES TO RE! USED! OR OCCUPIED BY ANY PERSON OTHER THAN MEMBERS OF THE CAU CASIAN RACE BUT1 THE EMPLOYMENT AND1 MAIN TENANCE OF OTHER THAN CAUCASIAN DOMESTIC SERVANTS SHALL BE PERMITTED. ’ ’ A copy of said lease is attached hereto and 32 marked Exhibit B. XVI. That when a lessee objected to this provi sion in the lease, the defendant would, upon the expiration of such lease, refuse to renew. XVII. That the Federal Housing Administration, approximately in June of 1949, compelled the de fendant to remove such provision from all of its leases. XVIII. That the defendant removed said provi- 33 sion as a result of such compulsion but has con tinued to enforce said provision and is presently enforcing such provision in fact against these plaintiffs who have permitted their premises to be used by persons other than Caucasians. XIX. That the rules and regulations of the Fed eral Housing Administration were amended, effec tive February 15, 1950, to provide that no mort gage insurance shall be granted by the Federal Housing Administration where any racial restric tive covenant, such as that previously appearing Complaint, Read in Support of Motion 31 12 34 Complaint, Bead in Support of Motion in defendant’s leases, appear in deeds to or mort gages on any properties sought to be insured. A copy of the amendment is attached hereto and marked Exhibit C. XX. That this amendment was made in order to bring the policies and practices of the Federal Housing Administration in line with the Supreme Court decisions in the Restrictive Covenant cases, Shelley v. Kramer, Sipes v. McGhee, 334 IT. S. 1, 92 L. ed. 1161 (1948); Hurd v. Hodge, Urciolo v. Hodge, 334 IT. S. 24, 92 L. ed. 1187 (1948), wherein the United States Supreme Court held that a party to a private restrictive covenant restricting sale of private property to Caucasians may not invoke the jurisdiction of any court, whether state or federal, to enforce such an agreement. XXI. That in July, 1950, plaintiffs Gertrude No- vick and Lillian Ross invited certain Negro chil dren, who are the children of some of their per sonal friends, to play with their own children two or three times a week on their lawns adjoining their said leased premises. XXII. That on August 3, 1950, the defendant herein wrote a letter to Gertrude Novick and Adolph Ross, a copy of which is attached hereto and marked Exhibit D, notifying them that their leases to the above-described premises expire on November 30, 1950, and that they would be re quired to vacate the premises on or before that date and that upon their failure to do so, legal proceedings would be immediately instituted to remove them forthwith. 13 XXIII That tlie usual letter referred to above, which is sent to defendant’s lessees just prior to the expiration date of their leases, was not sent to any of the plaintiffs and no reason was given the plaintiffs by the defendant for refusing and failing to renew their leases. XXIV. That the plaintiffs attempted to inquire of the defendant whether the defendant intended to renew their leases but the defendant failed and refused to reply. 38 XXV. That the plaintiffs never received any complaint from the defendant with respect to the manner in which they were carrying out the pro visions and obligations of their leases. XXVI. That on information and belief, the de fendant has refused to renew the leases of the plaintiffs for the reason that the said Gertrude Novick and Lillian Ross invited the children of their Negro friends to play with their children on the defendant’s premises, which the plaintiffs have leased, contrary to the policies of defendant, 39 formerly expressed in leases given by defendant to its lessees and now enforced by defendant in fact. XXVII. That the defendant has an announced policy of refusing to lease or sell property in Levittown to Negroes contrary to the meaning and intent of the amended rules of the Federal Housing Authority referred to above. XXVIII. That the defendant by enforcing as a matter of fact the race restrictive covenant provi- Complaint, Read in Support of Motion 3< sion of its leases, which it was compelled by the Federal Housing Authority to remove, is con trolling its lessees in the choice of their guests and is attempting to so control the plaintiffs con trary to the laws and public policy of this state. XXIX. That if the defendant successfully in vokes the aid of a court of this state to evict the plaintiffs, as defendant has threatened to do in its letter to the plaintiffs, because defendant disap proves of the race and color of the plaintiffs’ guests, such aid on the part of any court of this state would he contrary to the public policy of this state, the prohibition of the Fourteenth Amend ment to the Federal Constitution, and the holding, spirit, and intent of the Restrictive Covenant cases cited above. XXX. That the plaintiffs have no adequate rem edy at law and will suffer irreparable harm unless this court declares the rights and legal relations of the parties and enjoins the defendant from carrying out its threat to invoke the aid of a court to evict the plaintiffs. XXXI. That by reason of defendant’s refusal to renew the leases of the plaintiffs, the plaintiffs are in constant jeopardy of being evicted as hold over tenants as threatened by defendant. XXXII. That such eviction proceedings as threat ened by defendant against plaintiffs would be wholly without merit and contrary to the laws and public policy of this state and should be so de clared and enjoined. Complaint, Read in Support of Motion XXXIII. That unless this court enjoins the de fendant during the pendency of this action and until a final judgment in this cause is rendered by this court from proceedings to invoke the juris diction of any court in this state, the plaintiffs will suffer irreparable injury and damage and are without any other remedy at law. XXXIY. That the plaintiffs are entitled to an in junction restraining the defendant from invoking the jurisdiction of any court in this state for the purpose of assisting the defendant in evicting the plaintiffs because the defendant disapproves of the race, creed, color or national origin of the plaintiffs’ guests. W herefore, plaintiffs pray that this Court issue a temporary injunction restraining the defendant from proceeding to invoke the jurisdiction of any court in this state to evict the plaintiffs at any time during the pendency of this action and re straining the defendant from proceeding with such eviction proceedings until this court has ren dered a final judgment in this case. A n d wherefore, p la in tiffs p ra y f o r a ju d gm en t o f this cou rt d e c la r in g : 1. That the defendant may not seek the aid of any court in this state to evict the plaintiffs from the premises leased to them by the de fendant for the reason that the defendant disapproves of the race, creed, color or na tional origin of the plaintiffs’ guests. 2. That the plaintiffs have a right to have in their home as guests of themselves or of Complaint, Bead in Support of Motion 16 their children any persons whom they may choose, regardless of their race, creed, color or national origin, and the defendant as lessor may not, consistent with the laws and public policy of this state, seek to control this choice in this respect. 3. That the public policy of this state would prohibit the defendant from seeking the aid of any court in this state to evict the plain tiffs because the defendant disapproves of ^ the race, creed, color or national origin of the plaintiffs’ guests. 4. That the Fourteenth Amendment to the Fed eral Constitution prohibits the courts of this state, as well as any agency or subdivision thereof, from giving aid to the defendant in evicting the plaintiffs because the defendant disapproves of the race, creed, color or na tional origin of the plaintiffs’ guests or be cause the plaintiffs have violated the defend ant’s policy of restricting the use of its 48 premises to members of the Caucasian race. 5. That an injunction shall issue restraining the defendant from invoking the jurisdiction of any court in this state for the purpose of assisting the defendant in evicting the plain tiffs because the defendant disapproves of the race, creed, color or national origin of the plaintiffs’ guests or because the plain tiffs have violated the defendant’s policy of restricting the use of its premises to mem bers of the Caucasian race. 46 Complaint, Read in Support of Motion 17 6. For such, other, further, or additional relief as to this Court may appear just and proper. R obert L. Carter 20 West 40th Street New York 18, New York J ack G reenberg 20 West 40th Street New York 18, New York C onstance B ak er H otkey 20 West 40th Street 50 New York 18, New York A ndrew D . W einberger 292 Madison Avenue New York, New York (Verified by Plaintiffs on November 29, 1950.) Exhibit “A ” , Annexed to the Complaint [Letterhead of] BETHPAGE REALTY CORP. March 15, 1949 51 The efficient and economical management of a huge rental project like Levittown necessitates our knowing in advance whether you wish to renew your lease. I f you do, you must sign and return both copies of the enclosed lease within two weeks. Otherwise we shall conclude that you do not desire a renewal. This will require your moving out when your present lease expires. This renewal is not effective unless and until we send back to you one copy of the lease signed by us. Exhibit “ A ” , Annexed to the Complaint 49 B ethpage R ealty C obp. 18 BETHPAGE— RENEWAL 1 B e t h p a g e R e a l t y Corp., of 3230 Northern Boulevard, Manhasset, New York, hereby leases to Exhibit “ B” , Annexed to the Complaint for one year beginning May 1, 1949 53 the premises described above, upon the following conditions and covenants: 1. The Tenant agrees to pay rent at the annual rate of $780.00 payable $65.00 monthly in advance on the first day of each month. 2. The Tenant agrees to take good care of the premises and of the household equipment fur nished therewith, and forthwith at the Tenant’s expense to make all repairs thereto not neces sitated by the Landlord’s fault, except that the 54 Landlord, at its expense, will make all major struc tural repairs to the premises not necessitated by the Tenant’s fault or that of the Tenant’s family, employees, invitees or licensees. The Tenant agrees to deliver up the premises and equipment in good condition at the expiration of the term. 3. The Tenant agrees not to assign this lease or underlet the premises or any part thereof. 4. The Tenant agrees to allow the Landlord to enter the premises at all reasonable hours to ex amine the same or make repairs. 5. The Tenant agrees that the Landlord shall be exempt from liability for any damage or injury to person or property except such as may be caused by its negligence. 6. The Tenant agrees that this lease shall be subordinate to any mortgages now or hereafter on the premises. 7. The Tenant agrees to comply with all of the statutes, ordinances, rules, orders, regulations and requirements of the Federal, State and Mu nicipal governments, departments and bureaus, applicable to the premises. 8. The Tenant agrees not to do, bring or keep or to permit to be done, brought or kept on the prem ises anything which will in any way increase the fire insurance premium rate thereon. 9. T h e , S u m oe $100.00, H eretofore D eposited B y th e T e n a n t W it h th e , L andlord as S ecurity for th e P erform ance of a P rior L ease, S h a l l B e R eturned W ith o u t I nterest to th e , T en an t A fter th e , E xpiration of th e T erm : H ere in , P ro vided th e T e n an t H as F u l l y P erformed. T he T en an t A grees N ot to A ssign or E n cu m ber th e S ecu rity . 10. The Tenant agrees that the failure of the Landlord to insist upon a strict performance of any of the conditions and covenants herein shall not be deemed a waiver of any rights or remedies that the Landlord may have, and shall not be deemed a waiver of any subsequent breach or de- Exhibit “ B ” , Annexed to the Complaint fault in the conditions and covenants herein con tained. This instrument may not be changed, modified or discharged orally. 11. The Tenant agrees that should the premises or any part thereof be condemned for public use, this lease, at the option of the Landlord, shall be come null and void upon the date of taking, and rent shall be apportioned as of such date. No part of any award, however, shall belong to the Tenant. 12. The Tenant agrees that if, upon the expira tion of the term, the Tenant fails to remove any property belonging to the Tenant, such property shall be deemed abandoned by the Tenant and shall become the property of the Landlord. 13. The Tenant agrees thafithe obligation of the Tenant to pay rent and perform all of the other conditions and covenants hereof shall not be affected by the Landlord’s inability, because of circumstances beyond its control, to supply any service or to make any repairs or to supply any equipment or fixtures. 14. The Tenant agrees to employ and pay the garbage and rubbish collector designated by the Landlord, in default of which the Landlord may make such payment and charge the same to the Tenant as additional rent. 15. The Tenant agrees that the premises are being rented “ as is” and that the Landlord shall not be obligated to make any alterations, improve Exhibit “ B ” , Annexed to the Complaint ments or renovations therein, nor any repairs other than those expressly provided for herein. 16. T h e T en an t A grees to A ssume th e R espon sibility of E nsu rin g T h a t N o P erson S hall W alk and N o th in g S h a ll B e P laced U pon th e U n fin ish ed S ection of th e A ttic F loor, and T h a t in th e E vent T h is C ondition I s V iolated and D am age R esults to S u c h A ttic F loor and/ or to t h e Ceilin g B elow , t h e T e n an t W il l P ay U pon D em an d as A dditional R en t th e . C ost of R epairs W h ic h A re E stimated at a M in im u m of $60.00. 17. The Tenant agrees that the Landlord assumes no obligation for the servicing or repair of the oil burner, washing machine, cooking stove, re frigerator, or ventilating fan installed in the premises. Solely for the convenience of the Ten ant, the Landlord has arranged with Meenan, Oil Company, Inc. to service the oil burner without charge to the Tenant if and so long as the Ten ant purchases fuel oil from that company. 18. The Tenant agrees not to erect or permit to be erected any fence, either fabricated or growing, upon any part of the premises. 19. The Tenant agrees not to keep or permit to be kept any animals, pigeons or fowl upon the prem ises except not more than two domestic animal pets. 20. The Tenant agrees not to install or permit to be installed any laundry poles or lines outside of the house, except that one portable revolving laundry dryer, not more than seven feet high, may Exhibit “ B ” , Annexed to the Complaint be used in the rear yard on days other than Satur days, Sundays and legal holidays, provided that such dryer shall be removed from the outside when not in actual use on such permitted days. 21. The Tenant agrees not to place or permit to be placed any garbage or rubbish outside of the house except in a closed metal receptacle located to the rear of the kitchen door and not more than one foot from the exterior of the house and ex cept when placed at the curbline before removal in accordance with the regulations of the collecting agency. 22. T h e T en an t A grees N ot to R u n or P ark or P erm it to B e R u n or P arked A n y M otor V ehicle U pon A n y P art of t h e P rem ises . 23. T h e T e n a n t A grees to C u t or Cause to B e Cu t t h e L a w n and R emove or Cause to B e R e moved T all Grow ing W eeds at L east O nce a W eek B etw een A pril F ifte e n th and N ovember F ifteen th . U pon t h e T e n a n t ’s F ailu re the L andlord M ay D o S o and C harge th e C ost T hereof to th e T e n a n t as A dditional R e n t . 24. T h e T e n a n t A grees N ot to P e r m it th e P remises to B e U sed or O ccupied B y A n y P erson O th er T h a n M em bers op the C aucasian R ace B u t t h e E m plo ym en t and M ain ten an ce of O th er T h a n Caucasian D omestic S ervants S h a ll B e P erm itted . 25. The Tenant agrees not to place or permit to be placed upon the premises any sign whatsoever Exhibit “ B ” , Annexed to the Complaint except a family or professional name or address plate whose size, style and location are first ap proved in writing by the Landlord. 26. The Tenant agrees not to use or permit the premises to be used for any purpose other than as a private one-family dwelling for the tenant and the tenant’s immediate family or as a profes sional office of a physician or dentist resident therein. 27. The Tenant agrees not to erect or permit to be erected on the premises any building or struc ture, or to make or permit to be made any altera tions or additions to the premises, or paint or permit to be painted the exterior of the house other than in the original colors, unless appro priate plans, specifications and/or colors are first approved in writing by the landlord. 28. The Tenant agrees not to do or permit to be done on the premises anything of a disreputable nature, or constituting a nuisance, or tending to impair the condition or appearance of the prem ises, or tending to interfere unreasonably with the use and enjoyment of other premises by other Tenants in Levittown. 29. The Tenant agrees that, if default be made in the performance of any of the conditions or cove nants herein, or if the premises shall become vacant, or if the Tenant shall file a petition in bankruptcy or be adjudicated a bankrupt or make an assignment for the benefit of creditors, the Landlord may (A) re-enter the premises by force, Exhibit “ B ” , Annexed to the Complaint 24 summary proceedings or otherwise, and remove all persons therefrom, without being liable to prosecution therefor, and the Tenant hereby ex pressly waives the service of any notice in writing of intention to re-enter, or (B) terminate this lease on giving to the Tenant 5 days’ notice in writing of its intention so to do, and this lease shall expire on the date fixed for the expiration hereof. Such notice may be given by mail to the Tenant addressed to the premises. The Tenant agrees, in either event, to pay at the same times as the rent is payable hereunder a sum equivalent to such rent; and the Landlord may rent the prem ises on behalf of the Tenant, (for a period of time beyond the original expiration date of this lease, if it so elects), without releasing the Ten ant from any liability, applying any moneys col lected, first to the expense of resuming or obtain ing possession, second to the restoration of the premises to a rentable condition, and then to the payment of the rent and all other charges due and to become due to the Landlord, any surplus to be rj2 paid to the Tenant, who shall remain liable for any deficiency. 30. The Landlord agrees that the Tenant on per forming the conditions and covenants aforesaid shall and may peacefully and quietly have, hold and enjoy the premises for the term aforesaid. 31. It is mutually agreed that the conditions and covenants contained in this lease shall be binding upon the parties hereto and upon their respective successors, heirs, executors, administrators and assigns. 70 Exhibit “ B ” , Annexed to the Complaint 25 In W itn ess W hereof , the Landlord has caused these presents to he signed by its authorized officer and caused its corporate seal to be hereto affixed and the Tenant has hereunto set his hand and seal. B ethpage R ealty C oep. By: .................................................. Authorized Officer Exhibit “ B ” , Annexed to the Complaint 73 Tenant 74 NO NOTICES WILL BE MAILED. RENT IS DDE AND PAYABLE ON THE FIRST OF EACH MONTH AT THE RENTAL OFFICE ON THE NORTH VILLAGE GREEN If rent is paid by Check or Money Order, please write job number on it. 75 26 A m e n d m e n t to th e A dm inistrative R ules, of the F edera l H ousing C om m issioner U nder T itle V I I OE t h e N ation al H ousing A ct Section III of the Administrative Rules of the Federal Housing Commissioner under Title VII of the National Housing Act, issued November 12, 1948, as amended, is hereby amended by adding at the end thereof the following new subsection: 77 “ 7. An investor must establish that no restriction upon the sale or occupancy of the project, on the basis of race, color, or creed, has been filed of record at any time subsequent to February 15, 1950, and must certify that so long as the insurance con tract remains in force he will not file for record any restriction affecting the project or execute any agreement, lease, or convey ance affecting the project which imposes any such restriction upon its sale or occu pancy.” 78 This amendment is effective as to all projects on which a commitment is issued on or after February 15, 1950. Issued at Washington, D. C., this 12th day of December, 1949. Exhibit “C” , Annexed to the Complaint F ran k lin D. R ichards Franklin D. Richards Federal Housing Commissioner 27 (Letterhead of) LEYITT AND SONS INCORPORATED August 3,1950 Mrs. Gertrude Novick 50 Honeysuckle Eoad Levittown, New York Madam: 80 You are hereby notified that your lease of prem ises 50 Honeysuckle Road, Levittown, New York, expires on November 30, 1950, and that you will be required to vacate the premises on or before that date. Upon your failure to do so, legal pro ceedings will be immediately instituted to remove you forthwith from the premises as a hold-over. We are giving you this early notice, notwith standing that there is no legal obligation on our part to do so, so that you may proceed without delay to find other housing accommodations. 8 l 79 Exhibit “D” , Annexed to the Complaint W illiam F. I I aberm eh l , L evitt and S ons, I ncorporated This is a motion by defendant to dismiss the complaint for insufficiency. The action is for an injunction and for declaratory judgment. Factual allegations and the inferences which naturally flow therefrom pleaded in a complaint when a motion of this kind is made are deemed established. (Locke v. Pembroke, 280 N. Y. 430.) The complaint, given its best complexion al leges : That plaintiffs are two families who reside at Levittown, Nassau County, New York, occupy ing their houses under written leases from defend ant (VIII and IX)* expiring, by their terms, No vember 30, 1950, but which “ are presently in force” ( X ) ; that defendant, engaged in the con struction business, has developed into a residen tial community the hamlet known as Levittown, Nassau-Suffolk Counties, by erecting therein about ten thousand small homes of which about fifteen hundred have been occupied by tenants of de fendant (IV ) ; that construction of said homes was financed “ with the aid of the Federal Housing Administration * * *” and the mortgages on them were insured by said Federal Housing Administra tion “ conforming to various requirements of the Federal Housing Administration” (V ) ; that plain tiffs have not breached their leases (X I ) ; that it is “ the policy, custom and practice of the defend ant * * * just prior to the expiration date of a lease, to send” a renewal form of lease to the tenant with a letter of instructions, inviting the tenant to sign same and return it to defendant (X II ) ; that leases are always renewed unless the Memorandum Opinion of Cuff, J . * (N ote) Roman numerals indicate paragraphs of the complaint. Memorandum Opinion of Cuff, J. lessee “ breaches some provisions of the lease it self and is” notified of such breach by defendant (X III); that plaintiffs Ross’ leases in the past “ have been thus renewed” (X IY ); that in the past leases made by defendant and its subsidiaries have contained a clause (not in plaintiffs’ ) by which the tenant would agree not to permit the use of the rented premises by negroes (X V ); that if a lessee objected to the above clause defendant would refuse to renew the lease (X V I); that the said Federal Housing Administration, in June 1949, compelled defendant to remove the above clause from its leases (XVII) and defendant did so in form, but in fact continued to impose the restriction upon tenants (X V III); that in July 1950 plaintiffs allowed negro children to use their rented premises (X X I); that on August 3, 1950, defendant wrote plaintiffs that their leases would not be renewed; that they would be required to vacate on the expiration date of their leases (No vember 30, 1950) and failing to do so defendant would take legal proceedings against them (com plaint, Ex. D) (X X II ); that plaintiffs did not re ceive the usual letter sent to a tenant just prior to the expiration of his lease and no reason was given by defendant for such omission (X X III); that inquiry by plaintiffs of defendant as to whether their leases were to be renewed brought no reply (X X IV ); that plaintiffs received no com plaint from defendant as to any violations of the leases by them (X X V ); that upon information and belief defendant’s refusal to renew plain tiffs’ leases was based upon the incident in July when plaintiffs allowed negro children to use the demised premises (X X V I); that defendant “ has 30 an announced policy of refusing to lease or sell property in Levittown” to negroes (X X V II); that defendant’s action seeks to control its lessees’ guests contrary to the laws and public policy of the state (X X V III); that any court which would aid defendant to evict plaintiffs would violate the public policy of the state and the United States Constitution (X X IX ); that plaintiffs have no adequate remedy at law (X X X ); that plaintiffs are in constant, jeopardy of being evicted because gg defendant has not renewed their leases (X X X I); that unless an injunction is granted against de fendant’s evicting plaintiffs, plaintiffs will suffer irreparable damage (XXXIII and XXXIV). In addition to the injunction, plaintiffs seek a judg ment declaring in their favor many enumerated rights. The complaint is rife with allegations of evi dence ; immaterial and irrelevant matters in addi tion to conclusions of law and of fact. Defend ant has made no objection on this motion to the form or contents of the pleading; it is a straight 90 frontal attack that the complaint fails to state a cause of action. Under such circumstances, Spe cial Term should give the document a liberal interpretation (Sec. 275, C. P. A.) in quest, if at all possible, of some actionable wrong by defend ant against the plaintiffs (Tripp, “ A Guide to Motion Practice” (Revised) p. 243). In his brief (p. 2) plaintiffs’ attorney states his cause of action as follows: “ The gravamen of the complaint herein is that the defendant seeks to invoke the aid of the courts of this state to evict the 88 Memorandum Opinion of Cuff, J. plaintiffs from their homes, which they had leased from defendant, for the reason that the plaintiffs invited Negro children to play with their children on the said leased prem ises in violation of defendant’s prohibition against the use of said premises by persons other than Caucasians.” If that statement of plaintiffs’ case states a cause of action at all (and I do not think it does), it goes beyond the allegations of the complaint. But to take the statement at its face value, its premise is that defendant may not choose to whom it shall rent its houses. Plaintiffs submit no support for such a legal theory and I find the law to be to the contrary. (Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836; Dorsey v. Stuyvesant Town Corpora tion, 299 N. Y. 512, 536.) Plaintiffs’ counsel states in his brief that “ plaintiffs do not question the defendant’s right to select its own tenants” (page 3), but they do in the complaint and unless they deny that right of choice to defendant, in their own statement of their case, they have alleged no actionable wrong. Plaintiffs’ counsel asserts (brief p. 3) that the right which the plaintiffs are projecting is that defendants be prevented from invoking the proc esses of a court to evict them. He bolsters that argument up with the conclusion that defendant has not renewed their leases because they (plain tiffs) permitted negro children to use the demised premises last July. There is no proper allegation Memorandum Opinion of Cuff, J. Memorandum Opinion of Cuff, J. in the complaint to support that contention, if a proper allegation would make any difference. Plaintiffs stress the fact that defendant wrote them a letter (complaint, Ex. D) in which it stated that if plaintiffs did not move from the rented premises on or before the expiration of their leases (Nov. 30, 1950), that legal proceedings would be brought to evict them. There is no men tion of discrimination in that letter; no reason is assigned for the refusal to renew the leases. Of course there was no provision in the leases even referring to the subject of negroes, and although the entity, Federal Housing Administration, is freely disconnectedly and improperly used in the complaint, the leased premises are a pure private enterprise. The complaint does not even suggest government subsidy or other financial interest. There is absolutely no factual basis for the state ment that defendant has declined to renew the leases for the reasons assigned by plaintiffs. The complaint fails to state any cause of action at all. The motion to dismiss is granted with costs and $10 motion costs. T h om as J . C u f f , J . s. c. 33 Stipulation Waiving Certification Pursuant to Section 170 of the Civil Practice Act, it is hereby stipulated that the papers, as hereinbefore printed, consist of true and correct copies of the notice of appeal, the order appealed from and all the papers upon which the Court below acted in making the order appealed from, and the whole thereof, now on file in the office of the Clerk of the County of Nassau. Certification thereof in pursuance of Section 616 of the Civil Practice Act, is hereby waived. 98 Dated, New York, N. Y., June , 1951. R obert L. Carter, J ack G reenberg, C onstance B aker M otley , A ndrew D. W einberger, Attorneys for Plaintiffs-Appellants. I ra G. G oldm an , Attorney for Defendant-Respondent. 97 99 (3716)