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Gray v. Serruto Builders Inc.

Decided: April 30, 1970.


Herbert, J.s.c.


[110 NJSuper Page 299] Plaintiff, a black man, complains that his efforts to rent an apartment were rejected because of his race. He sues for a mandatory injunction that a suitable apartment be made available to him, and for compensatory and punitive damages. Defendants are Serruto Builders,

Inc., a New Jersey corporation which owns the apartment buildings in question, and Mr. and Mrs. Laurence, the superintendent of the buildings and his wife.

Plaintiff comes here without having made any application to the Division on Civil Rights for relief under the Law Against Discrimination (N.J.S.A. 18:25-1 et seq. at the time the alleged cause of action arose; now N.J.S.A. 10:5-1 et seq. For the sake of convenience, all references hereinafter will be to the statute as it is currently numbered.) Defendants challenge the jurisdiction of this court on the basis of that act, asserting that the administrative proceedings there provided are to be exclusive of all others for the redress of civil rights violations. Apparently this issue has never been directly posed before.

I think defendants' assertion is without merit. N.J.S.A. 10:5-27 states in relevant part:

Nothing contained in this act shall be deemed to repeal any of the provisions of the civil rights law or of any other law of this State relating to discrimination because of race, creed, color, national origin or ancestry or liability for service in the armed forces of the United States; except that, as to practices and acts declared unlawful by section eleven of this act, the procedure herein provided shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.

The Law Against Discrimination was apparently intended to supplement, rather than replace, previously existing law in the field of civil rights. The quoted statutory language makes the jurisdiction conferred by the act exclusive only when an administrative proceeding is pending or has been concluded, and not where, as here, such a proceeding has never been instituted. This view finds support in the case of Jackson v. Concord Company , 54 N.J. 113 (1969), where, in the context of an opinion holding that the Director of the Division on Civil Rights has authority to award an aggrieved individual money damages for out-of-pocket

expenses incurred as a result of discrimination against him, Justice Hall said for the Supreme Court:

It thus appears, without dealing completely with all the ramifications of the exclusive remedy provisions of this section, that the complainant here, by pursuing his grievance to completion in the Division, would be barred thereafter from whatever action at law for out-of-pocket losses he might have had by reason of respondents' unlawful discrimination against him. [at 128; emphasis added]

The inference to be derived is that a complainant does have access to the courts until such time as he chooses to pursue his grievance administratively.

Moreover, despite defendants' assertion that plaintiff is basing his cause of action solely upon the New Jersey Law Against Discrimination, plaintiff's claim in fact is much broader. The complaint states defendants discriminated "in violation of Federal laws and State laws and Federal constitutional rights and State constitutional rights of the plaintiff, William H. Gray, III, and Common Law rights of the plaintiff, and in violation of N.J.S.A. 18:25-1 et seq. and N.J.S.A. 18:25-4 * * *."

Whatever effect the Law Against Discrimination might be argued to have on actions for the redress of civil rights violations under state law, the statute cannot interfere with this court's jurisdiction to decide plaintiff's claims based on federal law. Cf. Testa v. Katt , 330 U.S. 386, 67 S. Ct. 810, 91 L. Ed. 967 (1947), in which the United States Supreme Court held that a state court cannot decline to entertain an action to enforce a valid federal penal law.

Having concluded that the challenge to the jurisdiction must fail, I turn to the proofs on discrimination. In September 1967 plaintiff went to the Williamsburg Apartments -- the buildings owned by defendant Serruto Builders -- and met Laurence, the superintendent. He asked to see and was shown a one-bedroom apartment. He decided it would be suitable for his needs and made an offer to take it for three years at a rental somewhat lower than the rate

quoted to him by Laurence. That offer was rejected but plaintiff did not lose interest. Thereafter he made a number of other attempts to get an apartment in the Williamsburg buildings, none of which was successful.

About the middle of December 1967 plaintiff got in touch with the Montclair Fair Housing Commission. On December 16th he was informed by the Commission that apartments were available. He went at once to the Williamsburg Apartments accompanied by the chairman of the board of trustees of the Union Baptist Church of Montclair, a church of which plaintiff is the senior minister. Mrs. Laurence answered the door of the superintendent's apartment and then summoned her husband. Plaintiff again asked Laurence about a one-bedroom apartment. The reply was to the effect that plaintiff should not worry, that he was at the top of the list of applicants and might expect to hear from his application very soon. Plaintiff mentioned the vacancy sign which he had seen on his way to the door of the Laurence apartment. Laurence responded that the sign should come down and would be taken down right away, then went on to say that the next vacancy of a one-bedroom apartment was anticipated in June. After this meeting plaintiff went back to his office at the church. The time was about two-thirty or three in the afternoon.

About three-thirty that afternoon Dr. Bernard A. Koechlin and his wife were sent to the Williamsburg Apartments. They were members of the fair housing group and went in that capacity. They are white. After going to the superintendent's apartment and meeting Laurence they were shown two different apartments -- both of the one-bedroom type -- which were for rent. They were told by Laurence that one of these could be occupied as of January 1, the rental being $210 a month including garage and storage space in the basement. They were told that the other would be available on February 1. Defendants did not deny at trial the charges that apartments were offered

to a white couple on December 16, 1967 after plaintiff had been told earlier in the afternoon of that day that no apartments were available. No witnesses were called by defendants.

Thus plaintiff's proofs stand uncontradicted and unexplained. From the evasive refusal to show an apartment to plaintiff on December 16, coupled with the treatment given to Dr. and Mrs. Koechlin later the same afternoon, discrimination against plaintiff by reason of his color can be inferred; and I find that he was discriminated against because he is black.

It does not follow as a matter of course from a finding of racial discrimination that plaintiff has a cause of action. Having chosen to make no use of the administrative remedies provided by our legislation (N.J.S.A. 10:5-1 et seq.), he cites no other statute explicitly authorizing civil remedies, but relies instead on the common law doctrine that remedies should be available when established rights have been encroached upon. As plaintiff claims, the law is clear that there should be no racial discrimination in the sale or rental of housing accommodations.

42 U.S.C.A. § 1982 provides:

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.

This statute, first enacted in 1866, has recently been held by the United States Supreme Court to bar all racial discrimination, private as well as public, in the sale or rental of property. The court's opinion by Mr. Justice Stewart upheld the statute's constitutionality, not on the basis of the Fourteenth Amendment to the United States Constitution, which requires "state action," but on the basis of the Thirteenth Amendment, which has been construed to authorize legislative elimination of "the badges and the

incidents of slavery." Jones v. Alfred H. Mayer Co. , 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed. 2d 1189 (1968). The court was apparently untroubled by the lack of remedial provisions in section 1982 and held it to be a sound basis for the injunctive relief sought by Mr. and Mrs. Jones. The opinion contains no discussion of the issue in its text, but does say this in a footnote:

The fact that 42 U.S.C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not, of course, prevent a federal court from fashioning an effective equitable remedy. [392 U.S. at 414, 88 S. Ct. at 2190, 20 L. Ed. 2d at 1193, fn. 13]

Jones v. Alfred H. Mayer Co. , did not, however, require the court to rule upon the availability of damages as a remedy for a violation of 42 U.S.C.A. § 1982 and that question was expressly reserved. 392 U.S. at 414, 88 S. Ct. 2186, 20 L. Ed. 2d at 1193, fn. 14. Since its decision in that case, the United States Supreme Court has considered and approved of damages as a remedy under 42 U.S.C.A. § 1982. Sullivan v. Little Hunting Park, Inc. , 396 U.S. 229, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969). There Mr. Justice Douglas said in his opinion for the majority:

We held in Jones v. Alfred H. Mayer Co. that although § 1982 is couched in declaratory terms and provides no explicit method of enforcement, a federal court has power to fashion an effective equitable remedy. 392 U.S., at 414, n. 13, 88 S. Ct., at 2189. That federal remedy for the protection of a federal right is available in the state court, if that court is empowered to grant injunctive relief generally, as is the Virginia court.

Congress, by 28 U.S.C. § 1343(4), created federal jurisdiction for "damages or * * * equitable or other relief under any Act of Congress providing for the protection of civil rights * * *." We reserved in Jones v. Alfred H. Mayer Co. , 392 U.S., at 414-415, n. 14, 88 S. Ct., at 2190, the question of what damages, if any, might be appropriately recovered for a violation of § 1982.

Compensatory damages for deprivation of a federal right are governed by federal standards, as provided by Congress in 42 U.S.C. § 1988, * * *.

* * *

This means, as we read § 1988, that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. Cf. Brazier v. Cherry , 5 Cir., 293 F.2d 401. The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired. We do not explore the problem further, as the issue of damages was not litigated below. [at 238, 90 S. Ct. at 405, 24 L. Ed. 2d at 393-394)

The opinion quoted with approval language from Bell v. Hood , 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946), and Texas & P. Ry. v. Rigsby , 241 U.S. 33, 36 S. Ct. 482, 60 L. Ed. 874 (1916), to the effect that courts will fashion appropriate remedies for the violations of established rights, and that these remedies may properly include an implied right to money damages.

The Sullivan case was originally commenced in Virginia's state courts. It clearly confirms the view that damages are available in state courts for violations of 42 U.S.C.A. § 1982. It also supports, by its language and by analogy, the view that damages are an appropriate remedy even though not expressly authorized by statute, when individuals are aggrieved by violation of their established rights under other statutory and constitutional provisions.

Though I doubt the need to look beyond Jones v. Alfred H. Mayer Co. and Sullivan v. Little Hunting Park, Inc. for authority to support a determination that plaintiff here has a cause of action based on the racial discrimination practiced against him, and that relief in the form of an injunction or damages or both may be given, much more authority may be cited.

N.J.S.A. 10:5-12, like 42 U.S.C.A. § 1982, is explicit in its prohibition of private racial discrimination in the ...

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