Novick v. Levitt & Sons, Inc. Papers on Appeal from an Order

    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



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