UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

________________________________________X

ASHLEY GRANATA and

AUTUMN DEVA GINSBURG,

Docket #:

Plaintiffs,

v.

JERRY JACOBS, ALAN ROSEN,

358 BROADWAY LLC &

358 BROADWAY REALTY, LLC,

Defendants.

________________________________________X

Civil Action No: 07-CIV-5830

MOTION FOR A TEMPORARY RESTAINING ORDER AND/OR IN THE

ALTERNATIVE A PRELIMINARY INJUNCTION

Plaintiffs, Ashley Granata (“Ms. Granata”) and Autumn Deva Ginsburg (“Ms. Ginsburg”)

by their attorneys, Nelson, Levine, de Luca & Horst, LLC. Hereby move this honorable court,

pursuant to the Federal Rules of Civil Procedure Rule 65 (a) and (b) for a preliminary Injunction

and/or a Temporary Restraining Order against Defendants Jerry Jacobs, Alan Rosen, 358

Broadway, LLC, (“358 Broadway”) and 358 Broadway Realty, LLC, (“359 Broadway Realty”).

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 1 of 12
BACKGROUND OF CASE

This is a civil action by Ms. Granata and Ms. Ginsburg to enforce the Federal Fair

Housing Act (“FHA”), 42 U.S.C.§3601 et seq., and the New York State Human Rights Law,

Executive Law §290 et seq., and obtain redress for Defendant Jerry Jacobs’ and Alan Rosen’s

sexual harassment of Plaintiffs, intentional infliction of emotional distress and retaliation against

plaintiffs for their assistance in enforcing the rights of Jennifer Dunlap and Kathryn Smith in the

related action of Jennifer Dunlap and Kathryn Smith v. Jerry Jacobs and 358 Broadway, LLC ,

United States District Court, Southern District of New York, Docket No. 06-CV-6160.

FACTUAL BACKGROUND

Plaintiffs filed the lawsuit attached as Exhibit “A” on June 20, 2007 setting forth claims

under the Federal FHA as well as state law claims. Plaintiffs also sought preliminary injunctive

relief to prevent the defendants from instituting eviction proceedings. However, on July 3, 2007,

defendants started eviction proceedings in New York Housing Court. A copy of the Notice of

Petition and Petition are attached as Exhibit “B”. The Petition was served on plaintiffs on July

12

th

and is returnable on Wednesday July 18

th

.

STANDARD FOR GRANTING PRELIMINARY INJUNCTIONS

AND TEMPORARY RESTARINING ORDERS

The standard for issuing a preliminary injunction is set forth in Random House, Inc. v.

Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir.2002),

A party seeking a preliminary injunction [against a nongovernmental entity] in this

Circuit must show: (1) irreparable harm in the absence of the injunction and (2) either (a)

a likelihood of success on the merits or (b) sufficiently serious questions going to the

merits to make them a fair ground for litigation and a balance of hardships tipping

decidedly in the movant's favor.

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 2 of 12
The standard for issuance of a temporary restraining order is set forth Gerber v. Seamans, 332

F.Supp. 1187, 1190 (S.D.N.Y. 1971):

The prayer for a temporary restraining order is addressed to the equitable judgment of the

Court. Resolution of the question is founded on considerations of irreparable injury to the

movant and the probability of his ultimate success.

Here, the moving parties meet the standard for issuance of either a Preliminary Injunction or a

Temporary restraining Order pending a full hearing on a Preliminary Injunction.

ARGUMENT

I. Plaintiffs Will Clearly Suffer Irreparable Injury

Defendants’ maintenance of a parallel State Housing Court proceeding without a doubt

will cause the plaintiffs irreparable injury. The threat of eviction and homelessness clearly

qualifies as the type of irreparable injury to satisfy the first prong of the Preliminary Injunction

standard. McNeill v. New York City Housing Authority, 719 F.Supp. 233, 254 (S.D.N.Y. 1989).

Initially, it appears that the Summary Proceedings papers are inconsistent with the

defendants’ position taken in this litigation. The Summary proceeding papers claim that there

was a written lease, however Plaintiffs and Defendants in their cross-claims have claimed that no

written lease was granted. It is unclear whether this statement represents some ruse or a mere

typographical error. Of course, Defendants will claim that the question of the leasehold interest is

distinct from the Plaintiffs’ claims.

One basis for liability against the Defendants is that their failure to offer written leases

was a part of the discriminatory conduct directed against the prior Complainants as well as the

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 3 of 12
current Plaintiffs. In addition the failure to offer renewal terms could also be considered as part

of the retaliation claim.

It is clear that New York law will not allow for the hearing of these claims in conjunction

with the eviction proceeding. See, e.g., Committed Community Associates v. Croswell, 171

Misc.2d 340, 343, 659 N.Y.S.2d 691 (N.Y.Sup.Ct.1997) (“[T]he need for speedy dispositions in

landlord-tenant matters ordinarily dictates that counterclaims be severed unless they are in

essence a defense to landlord's claim or so intertwined with such a defense as to become part and

parcel thereof.”); Smalkowski v. Vernon, No. 80162/00, 2001 WL 914248 (March 9, 2001 N.Y.

City Civil Ct.) (severing federal race and disability discrimination counterclaims in holdover

proceeding: “[T]he court finds that these claims would be better litigated in a plenary

proceeding ... rather than in ... this summary proceeding in the housing court, which was created

for the purpose of enforcing state and local laws for the establishment and maintenance of

housing standards.” ) (internal quotation marks omitted).

Without a doubt, the continuance of the Housing Court Action would result in the

Plaintiffs being driven from their home contrary to their rights under the FHA and the New York

Executive law. Being driven from one’s home is perhaps the quintessential claim of irreparable

harm.

II. Plaintiffs’ Claims Represent Serious Questions and a Strong Likelihood of

Success on the Merits.

The Plaintiffs here have presented a prima facia case of housing discrimination. There

are several claims made all of which constitute housing discrimination. Initially, Plaintiffs claim

that they were evicted in retaliation for their assistance in the previously filed Dunlap matter.

The Dunlap matter went to mediation on Monday May 5

th

and four days later defendant Rosen

was calling the Plaintiffs telling them that the building had been sold and that they were going to

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 4 of 12
be evicted. These facts are similar to Bouley v. Young-Sabourin, 394 F.Supp.2d 675 (D.Vt.

2005) wherein the plaintiff was served with an eviction notice 72 hours after arguing with the

defendant over her religious beliefs. The Bouley court found that such allegations created a

prima facia case of discrimination. As stated in Frazier v. Rominger, 27 F.3d 828 (2d. Cir.1994)

“...if a plaintiff presents a prima facie case of discrimination, the burden of production shifts to

the defendant to come forward with a ‘legitimate, nondiscriminatory reason’ for the adverse

action.” 27 F.3d at 831 (citations omitted).

Of course, Defendants will assert that they have a non-discriminatory reason for evicting

the Plaintiffs. Namely, that the building had been sold and that they were merely trying to satisfy

the “new” owners. However, there are several factors which call into question the nature of this

transaction and the motives of the Defendants. It appears that they retained the right to evict the

Plaintiffs even after the building was allegedly sold. Therefore, a question can be raised

regarding whether the transaction was truly one of “arms length” or whether it was for another

purpose.

In addition, Plaintiffs claim that their entire housing situation was the result of

discriminatory practices by defendant Jacobs and that the eviction was part of a need to keep

defendant Jacobs from further predatory acts. Certainly evicting Plaintiffs because they are

women is not justified because it may “protect” them against predatory practices. Of course,

Defendants will argue that they did sell the building and that the eviction was therefore for nondiscriminatory reasons. However, again, based on the Defendants’ own counter-claims, it is

unclear whether this non-discriminatory reason is valid. Even if, as alleged, the “new” owners

wanted to seek eviction why would they allow the “old” owners to bring those proceedings?

Was this truly an “arms length” deal? In one allegation the “old” owners state that the potential

“new” owners allowed them to take on “month-to-month” tenants. However, the subsequent

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 5 of 12
escrow seems to imply that there was a penalty attached. In addition, although the sale was

supposedly pending for almost two years, the closing actually took place weeks after the

settlement of the Dunlap matter which could allow an inference that it was related.

Overall, the question here is whether Plaintiffs have established a likelihood of success on the

merits or “sufficiently serious questions going to the merits to make them a fair ground for

litigation.” Random House, Inc. 283 F.2d at 491. Clearly, Plaintiffs have established a prima

facia case of discrimination. At a minimum, Defendants’ asserted non-discriminatory bases raise

serious question in light of the limited facts available to Plaintiffs absent full discovery on the

matter.

III. The Balance Of The Hardships Weigh Heavily In Favor Of The Plaintiffs.

Without a doubt, the balance of hardships weighs heavily in favor of the Plaintiffs. They

are being threatened with immediate eviction from their home. Defendants simply have no

similar interest at stake. Plaintiffs are currently paying rent and have no objection to including a

requirement that their rent be paid while the injunction is in place. Additionally, there is the

obviously important practical consideration that denying relief will effectively deprive the

Plaintiffs of their right to access to Federal Courts to seek redress of their Federally protected

rights. They will be faced with the possibility of piecemeal litigation in multiple forums against

a defendant who has the resources to hire separate counsel to prosecute these parallel actions.

(This has already occurred as defendants have retained separate counsel on the Housing Court

Matter).

Any countervailing interests of the Defendants are de minimis. There is no indication that

Defendants will be harmed in any way by the granting of this injunction. These are just two, rent

paying, tenants in a large building who have not broken any rules or caused any problems at the

premises. Additionally, based on the Defendants’ counterclaims, they are one of two apartments

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 6 of 12
that are facing eviction. They are certainly not the last “hold outs” in the building that are

preventing any development from going forward.

IV. Neither Younger Nor The Anti-Injunction Act Preclude Relief and the Court Has

the Power Under the All Writs Act to Enjoin and/or Order the Removal of the Parallel

State Court Proceeding

A. Younger Abstention Does Not Apply Because Plaintiffs’ Claims Cannot Be

Presented in Housing Court

Younger abstention does not apply when a state court proceeding does not allow for the

presentation of a plaintiff’s Federal claims. Kirschner v. Klemons, 225 F.3d 227, 233 (2d

Cir.2000). It is well established that New York Housing Court proceedings fall within this

exception to Younger abstention. McNeil v. New York City Housing Authority, 719 F.Supp. 233,

255 (S.D.N.Y.1989) ; Tellock v. Davis, 2002 WL 31433589 (E.D. N.Y. 2002). Certainly if the

proceedings go forward this Wednesday, July 18, 2007, it will be clear that Plaintiffs’ claims will

not be tried by the Housing Court. In fact, New York law generally compels the severance of

those claims. Committed Community Associates v. Croswell, 171 Misc.2d 340, 343, 659

N.Y.S.2d 691 (N.Y.Sup.Ct.1997); Smalkowski v. Vernon, No. 80162/00, 2001 WL 914248

(March 9, 2001 N.Y. City Civil Ct.).

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 7 of 12
B. The Anti-Injunction Act Does Not Preclude the Granting of Relief

1) The Anti-Injunction Act Does Not Apply as This Case Falls Within Recognized

Exceptions

a) The Power to Issue an Injunction is Expressly Authorized by Statue

An important exception to the Anti-Injunction Act is where such injunctions are expressly

authorized by statute. Courts are split on this issue.. Martin v. Constance, 843 F.Supp. 1321

(E.D.Mo.,1994). Oxford House, Inc. v. Albany, 819 F.Supp. 1168, 1172 (N.D.N.Y.1993); Oxford

House-Evergreen v. Plainfield, 769 F.Supp. 1329, 1341 (D.N.J.1991); But See Casa Marie, Inc.

v. Superior Court of Puerto Rico for Dist. of Arecibo, 988 F.2d 252 (1

st Cir. 1993); Pieczenik v.

TIAA-CREF, 2005 WL 637942 (S.D.N.Y.,2005) (Magistrate Eaton). The Casa Marie court

relied upon its belief that Congress had not sought to specifically deprive state courts of

jurisdiction. However, here, Congress has established a uniquely Federal right and specifically

allowed for Federal court jurisdiction. Casa Marie relies on a narrow interpretation of Mitchum

v. Foster, 407 U.S. 225, 92 S.Ct. 2151 (1972). Mitchum holds that actions under 28 U.S.C. 1993

fall within the “expressly authorized” exception to the Anti-Injunction Act, stating squarely that

the test is “whether an Act of Congress, clearly creating a federal right or remedy enforceable in a

federal court of equity, could be given its intended scope only by the stay of a state court

proceeding.” 407 U.S. at 237. The court in Casa Marie focused on the dicta in Mitchum

regarding the concerns over State court enforcement of a Federal right. The key here is whether

the Federal right, the right to fair treatment in housing can be given its “intended scope” only by

a stay of the state proceeding. The focus is not on what a State court might do but rather on what

the Federal court must do to give the remedy its intended “scope.” Here, if the State court

summary proceeding is allowed to go forward, the Federal court will be deprived of its ability to

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 8 of 12
enforce Plaintiffs’ rights as it will be unable to issue any orders with regard to the apartment at

issue.

b) The Injunction is In Aid of This Court’s Jurisdiction

The Anti-Injunction Act does not apply where an injunction is “necessary in aid of its

jurisdiction” 28 U.S.C. § 2283. The “in aid of jurisdiction” exception authorizes federal relief

where, as here, the Housing Court could not adequately hear plaintiffs’ claims. . McNeil v. New

York City Housing Authority, 719 F.Supp. 233, 255 (S.D.N.Y.1989) ; Tellock v. Davis, 2002 WL

31433589 (E.D.N.Y. 2002). Although these are District Court cases, the Second Circuit, while

recognizing that the Anti-Injunction Act does not recognize a general “first to file” exception,

nevertheless recognized that in rem proceedings are instances where such a “first to file” rule

could apply. Standard Microsystems v. Texas Instruments, Inc.., 916 F.2d 58, 60-61 (2d Cir.

1990). Actions involving leasehold interests are usually considered quasi in rem proceedings.

See e.g. Smith v. Humble Oil & Refining Co., 425 F.2d 1287 (5

th Cir. 1970). Although such a

proceeding is not strictly in rem, the Humble Oil court treated such actions as identical for

purposes of determining when a court had obtained exclusive jurisdiction. Id. Here, this court

had been asked by Plaintiffs to decide the question of their leasehold interests in light of their

discrimination claims. In their Complaint they requested the Preliminary Injunctive relied now

sought. As this leasehold has been put at issue in the Federal action this court has the right and

duty to protect the exercise of its jurisdiction.

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 9 of 12
CONCLUSION

For the forgoing reasons, the plaintiffs respectfully request that this court issue a

temporary restraining order and/or in the alternative, a preliminary injunction to prevent the

prosecution of the State Housing Court action against Plaintiffs.

Respectfully Submitted,

NELSON LEVINE de LUCA & HORST, LLC

BY: _______/s/_________________________

MICHAEL J. FRIMET (2051),

ATTORNEYS FOR ASHLEY GRANATA

AND AUTUMN DEVA GINSBURG

Dated: July 16, 2007

To: David R. Brody, Esq.

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C.

377 Broadway, 6

th Floor

New York, New York 10013

Attorneys for 358 Broadway Realty, LLC

Mark N. Axinn., Esq.

Brill & Meisel

845 Third Avenue, 16

th Floor

New York, NY 10022

Attorneys for Jerry Jacobs, Alan Rosen and 358 Broadway, LLC

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 10 of 12
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

________________________________________X

ASHLEY GRANATA and

AUTUMN DEVA GINSBURG,

Docket #:

Plaintiffs,

v.

JERRY JACOBS, ALAN ROSEN,

358 BROADWAY LLC &

358 BROADWAY REALTY, LLC,

Defendants.

________________________________________X

Civil Action No: 07-civ-5830

CERTIFICATE OF SERVICE

I, Michael J. Frimet , hereby certify that a true and correct copy of the Motion for

Temporary Restraining Order and/or in the alternative a Preliminary Injunction was served on

July 16, 2007, upon counsel listed below by United States Mail, postage prepaid.

NELSON LEVINE de LUCA & HORST, LLC

BY: _________/s/_______________________

MICHAEL J. FRIMET (2051),

ATTORNEYS FOR ASHLEY GRANATA

AND AUTUMN DEVA GINSBURG

Date: July 16, 2007

To: David R. Brody, Esq.

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 11 of 12
Borah, Goldstein, Altschuler, Nahins & Goidel, P.C.

377 Broadway, 6

th Floor

New York, New York 10013

Attorneys for 358 Broadway Realty, LLC

Mark N. Axinn., Esq.

Brill & Meisel

845 Third Avenue, 16

th Floor

New York, NY 10022

Attorneys for Jerry Jacobs, Alan Rosen and 358 Broadway, LLC

Case 1:07-cv-05830-CM Document 14 Filed 07/16/2007 Page 12 of 12