Stein, J.,  -- Ms. V. Whitney Joseph, an African-American, claims in this litigation that the New York Yankees Partnership (the "Yankees") discriminated against her on the basis of her race by refusing her entry to the Stadium Club—a restaurant and bar located in Yankee Stadium that requires a separate pass for admission—on the grounds that her attire violated the Stadium Club’s dress code.1 Plaintiff is pursuing claims pursuant to 42 U.S.C. §§1981 and 2000a, New York State Human Rights Law, N.Y. Exec. L. §296, et seq., New York Civil Rights Law §40, and New York City Human Rights Law, N.Y.C. Admin. Code §8-101, et seq.2

Following the close of discovery proceedings, the Yankees have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), or alternatively, for summary judgment pursuant to Fed. R. Civ. P. 56(c) in their favor on the grounds that plaintiff has not demonstrated intentional discrimination and has not shown that the Yankees impaired her rights to make and enforce a contract. The Yankees also claim that plaintiff does not have standing to seek injunctive relief because she has not alleged likely future harm.

The Yankees’ motion is denied because there are issues of fact regarding whether the Yankees intentionally discriminated against Ms. Joseph and whether they impaired her contractual rights. The motion is, however, granted to the extent that the request for injunctive relief is dismissed because there are neither allegations nor facts evincing a likelihood of future harm.

Allegations of Fact

Ms. Joseph alleges that on July 20, 1998, she, her two sons, and her friend Nancy Daddato—who is Caucasian—visited Yankee Stadium to attend a Yankees game. (Plaintiff’s Deposition ("Pl. Dep.") 23-26; Compl. ¶22.) Before the game, the four went to the Stadium Club to eat dinner. The Stadium Club maintains a dress code which is posted outside the club entrance as well as on the back of each Stadium Club admission pass, which plaintiff had in her possession. (Pl. Dep. 24; Bernstein Aff. ¶¶3-4; Trost Aff. ¶3.) The dress code expressly prohibits "tank tops," among other types of apparel, such as "thongs or any other abbreviated attire." (Bernstein Aff. Ex. A.)

Ms. Daddato, wearing shorts and a "tank top" (which she described as "V-neck, sweater material, sleeveless"), and plaintiff’s sons were admitted to the Stadium Club without incident. However, plaintiff, wearing shorts and a "tank top" (which plaintiff described as "sweater knit … sleeveless … a small V-neck"), was stopped at the entrance and told by a ticket taker that her tank top did not comport with the Stadium Club’s dress code. (Pl. Dep. at 32, 36-39; Daddato Dep. at 19-20, 23.)

After discussions involving additional Stadium Club and Yankees personnel, plaintiff left the club, returned to her car in the parking lot, changed into a t-shirt, returned to the club and was served. She claims—and that claim is supported by two of her friends—that non-minority women inside the club were wearing tank tops and clothing "skimpier" than hers, including a "spaghetti strap top," a "midriff, no sleeve top," and a "backless, no sleeve top." (Pl. Dep. at 51-53, 56; Daddato Dep. at 30-33; Nahan Dep. at 43; Daddato Aff. at 1.)

Discussion

I. Applicable standard

A. Judgment on the pleadings

As noted above, the Yankees have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or alternatively for summary judgment. Because the parties have submitted affidavits, deposition transcripts and other exhibits, and they have been considered by this Court, the motion must be viewed as one for summary judgment and accordingly will be assessed under the standards applicable to Fed.R.Civ.P. 56. See Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000); Fed.R.Civ.P 12(c).

B. Summary judgment

Summary judgment may be granted "only when the moving party demonstrates that ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ " Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must "view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor, and may grant summary judgment only when ‘no reasonable trier of fact could find in favor of the nonmoving party.’ " Allen, 64 F.3d at 79 (citation omitted) (quoting Lund’s, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. See Fed.R.Civ.P. 56(e); see also Ali v. Bank of New York, 934 F. Supp. 87, 91 (S.D.N.Y. 1996). A nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). In short, a nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

II. 42 U.S.C. §1981 claim

Section 1981 protects against nongovernmental discrimination by providing, in relevant part, that "[a]ll persons … shall have the same right … to make and enforce contracts … as is enjoyed by white citizens." The contract rights embodied within the phrase "to make and enforce contracts" are defined to include "the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. §1981(b).

To establish a section 1981 claim, a plaintiff must prove the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (which in the present case is the making and enforcing of contracts). See Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). The Yankees contend that plaintiff has not satisfied the second and third elements as she has not shown that the Yankees impaired her rights to make and enforce contracts or that the facts show an intent to discriminate.

A. There is an issue of fact as to whether plaintiff’s rights to make and enforce contracts have been impaired.

The Yankees contend that plaintiff has not demonstrated any actual loss of a contract interest because, once she changed her attire, she was served.3 According to the Yankees, the facts of the underlying action involve, at most, mere delay, and not the loss of the opportunity to make and enforce a contract.

However, unlike in cases involving mere delay of service, there is an issue of fact as to whether a different condition was placed upon Ms. Joseph’s right to enter contractual relations: allegedly, unlike non-minority patrons, she was required to observe the dress code in order to enter the Stadium Club. She argues that the racially discriminatory enforcement of the dress code adversely affected the basic terms and conditions of her contract to enter and be served. Assuming her allegations are true and that she was required to fulfill an additional condition that non-minority customers were not before she could contract for dining services, she would be limited in her right to contract as she could not enjoy "all benefits, privileges, terms, and conditions of the contractual relationship" to the same extent as non-minority customers. See 42 U.S.C. §1981(b).

Courts have found a number of analogous claims to be actionable pursuant to section 1981. In Washington v. Duty Free Shoppers, 710 F. Supp. 1288, 1289 (N.D. Cal. 1988), summary judgment in favor of the defendant was denied where store customers who were African-Americans alleged that they were required to produce a passport or airline ticket to shop at the defendant’s store, while non-minority customers were not. The defendant in Washington, as is alleged here, imposed an extra condition on minority customers before providing admittance. Another court found that where a restaurant required African-American customers to prepay for their meals, it denied those customers the " ‘enjoyment of all … terms and conditions of the contractual relationship’ that were enjoyed by white citizens patronizing the restaurant." Bobbitt v. Rage, 19 F. Supp. 2d 512, 519 (W.D.N.C. 1998) (quoting 42 U.S.C. §1981(b)). The Bobbitt court specifically found it irrelevant that the restaurant did in fact serve the customers after they prepaid. See id. Similarly, a gas station’s practice of requiring only African-American customers to prepay for gasoline purchases gave rise to an actionable section 1981 claim. See Hill v. Shell Oil Company, 78 F. Supp. 2d 764, 777 (N.D. Ill. 1999). The court in Hill rejected the defendants’ claim—identical to the Yankees’ claim in the present case—that because the plaintiffs were ultimately able to make purchases after complying with the additional requirement, there was no deprivation of rights pursuant to section 1981. See id. Although the additional requirement delayed the minority customers’ service, the case was considered to be qualitatively different than one involving simply delay because of the additional condition placed on the plaintiffs’ contractual relations.

Although the Yankees cite Stevens v. Steak n Shake, Inc., 35 F. Supp. 2d 882 (M.D. Fla. 1998), for the proposition that the "request that plaintiffs prepay for their meal [was] not shown to be [a] discriminatory alteration of [their] contractual right," see Def.’s Mem. of Law at 5 n.5., summary judgment was granted to the defendants there on the ground that the African-American customers of the restaurant could not show that the request for prepayment was based upon their race, since their waitress asked all of her customers, of every race, to prepay for their meals, and the Caucasian customers seated nearby who had not been asked to prepay were not similarly situated to the plaintiffs because the Caucasian customers had been served by a different waitress. 35 F. Supp. 2d at 884.

The Yankees’ strongest case on the issue of differential conditions is Thomas v. National Amusements Inc. No. 98-71215, 1999 U.S. Dist. LEXIS 5188 (E.D. Mich. February 24, 1999), in which the plaintiffs alleged that the movie usher required minority—but not Caucasian—theatergoers who possessed the wrong tickets to return to the ticket booth to exchange their tickets. 1999 U.S. Dist. LEXIS 5188, at *8. The district court held, without citation, that because the plaintiffs were not wholly denied the right to see a movie at the defendant’s theater, and were merely asked to exchange their tickets, they were not denied the opportunity to make or enforce a contract. See id. at *8-9.

The logic of Washington, Bobbitt and Hill is more compelling than that of Thomas: imposing an additional condition upon minority customers that is not imposed upon non-minorities states a section 1981 claim for discrimination concerning the making and enforcing of contracts. Where additional conditions are placed on minorities entering the contractual relationship, those minorities have been denied the right to contract on the same terms and conditions as is enjoyed by white citizens. In the instant case, in order to enter the Stadium Club and enjoy the services offered there, Ms. Joseph was required to satisfy a condition that Caucasians allegedly did not have to meet. The fact that Ms. Joseph ultimately complied with the condition does not eliminate the harm from the initial refusal to admit her to the club. Thus, the Yankees are not entitled to judgment as a matter of law; there is an issue of fact for trial as to whether the Yankees impaired her right to enjoy all the terms and conditions of the contractual relationship as could non-minority customers.

B. There is an issue of fact as to whether defendant intended to discriminate.

The Yankees also contend that plaintiff has not established a prima facie case because she has not provided sufficient evidence to permit the Court reasonably to infer that the Yankees possessed the intent to discriminate on the basis of race. See Mian, 7 F.3d at 1087. For a successful section 1981 claim, a plaintiff must establish "that defendant’s acts were purposefully discriminatory and racially motivated." Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988) (citations omitted). A plaintiff must identify specific "events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994)) (citations omitted). Conclusory statements of discriminatory intent, "setting forth no facts upon which a court could find" race discrimination, are insufficient. Id.

Discriminatory intent can be inferred from a plaintiff’s identification of specific instances where persons situated similarly "in all relevant aspects" were treated differently along racial lines. Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989) (citations omitted); Martin v. Citibank, N.A., 762 F.2d 212, 217 (2d Cir. 1985). The test is whether a prudent person, looking objectively, would think the protagonists similarly situated. See Dartmouth Review, 889 F.2d at 19 ("[e]xact correlation is neither likely nor necessary, but the cases must be fair congeners … [i]n other words, apples should be compared to apples.")

There is sufficient evidence in the record from which the ultimate trier of fact—the jury here—can infer that defendant intentionally discriminated by enforcing the dress code against Joseph, but not against non-minorities. Daddato testified that she was admitted to the Stadium Club at the same time as plaintiff was refused entry, even though the two were dressed similarly. (Daddato Dep. at 19-20, 23; Daddato Aff. at 1.) As noted above, Daddato testified that she was wearing a "tank top" that she described as "V-neck, sweater material, sleeveless," (Daddato Dep. at 23), and plaintiff described her own "tank top" as "sweater knit … sleeveless … a small V-neck." (Pl. Dep. at 32, 35, 37-39.) Since all reasonable inferences must be drawn in favor of plaintiff at this stage of the litigation, see Allen, 64 F.3d at 79, a reasonable juror would be able to conclude that the tops were similar.

Racial animus can also be inferred from the evidence in the record that other Caucasian women were permitted to wear clothing similar to plaintiff’s tank top inside the Stadium Club. The deposition transcripts and affidavits of plaintiff, Ms. Daddato, and Art Nahan, a friend of plaintiff’s who was already seated in the Stadium Club when Ms. Joseph was refused admittance, set forth the observations that several non-minority women inside the Stadium Club were wearing tank tops and other clothing more revealing than plaintiff’s, including a "spaghetti strap top," a "midriff, no sleeve top," and a "backless, no sleeve top." (Pl. Dep. at 51-53, 56; Daddato Dep. at 30-33; Nahan Dep. at 43; Daddato Aff. at 1; Nahan Aff. at 1.)

All that need be determined at this stage of the litigation is whether the facts present a genuine issue as to whether the dress code was enforced against plaintiff but not against Caucasian women who were similarly dressed. They do.

III. 42 U.S.C. §2000a claim

Plaintiff’s section 2000a claim must be dismissed because plaintiff has not alleged or introduced evidence showing the possibility of future harm. In order to meet the constitutional requirement that a complaint present a case or controversy for judicial resolution, a plaintiff seeking relief bears the burden of establishing three elements: "First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of … Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and internal quotation marks omitted). In the context of a request for injunctive relief, these elements require that a plaintiff show more than "past exposure to illegal conduct"; the plaintiff must show a "real and immediate threat of repeated injury." City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). A plaintiff must set forth the likelihood of a future encounter with the defendant which is likely to lead to a similar violation of some protected right. See id. at 105-06.

Although plaintiff has presented evidence of past injury under her section 1981 claim, she has not so much as alleged the possibility of any future encounter with defendant. See Freydel v. New York Hospital, No. 97 Civ. 7926, 2000 WL 10264, at *3 (S.D.N.Y. Jan. 4, 2000). Plaintiff has alleged evidence of a single past discriminatory incident, but does not claim that the discrimination is continuous or ongoing. See Naiman v. New York University, No. 95 Civ. 06469, 1997 WL 249970, at *4 (S.D.N.Y. May 13, 1997). Accordingly, she lacks standing to seek injunctive relief, and the request for that relief is dismissed.

IV. New York Civil Rights Law §40 claim

The Yankees contend that plaintiff has not complied with the administrative requirement of New York Civil Rights Law §40-d that before any claim can be brought pursuant to that section, a plaintiff must notify the state attorney general of her claim. However, that notice was duly given, see Ranni Aff. Ex. 4, and therefore that claim will not be dismissed on that ground.

V. New York Civil Rights Law and New York

State and City Human Rights Law claims

As noted above, the Yankees seeks dismissal of New York State and New York City claims as well. Because the standards governing claims asserted pursuant to 42 U.S.C. §1981 are identical to those for claims asserted pursuant to the New York State and City Human Rights Laws and the New York Civil Rights Law, those claims are similarly not dismissed. See Harris v. Allstate Ins. Co., 83 F. Supp. 2d 423, 431 (S.D.N.Y. 2000); Rivera v. Hertz Corp., 990 F. Supp. 234, 236 (S.D.N.Y. 1997); Rosenblatt v. Bivona & Cohen, P.C., 969 F. Supp. 207, 214 (S.D.N.Y. 1997); Jews for Jesus v. Jewish Community Relations Council of New York, 79 N.Y.2d 227, 234, 581 N.Y.S.2d 643, 647 (1992).

Conclusion

Because there are issues of fact regarding whether the Yankees intentionally discriminated against plaintiff and whether they impaired her contractual rights, defendant’s motion for summary judgment should be denied. In addition, because there are neither allegations nor facts evincing a likelihood of future harm, plaintiff’s claim for injunctive relief is dismissed.

Footnotes:

(1) Although plaintiff named a second defendant, only the Yankees have been served with the summons and complaint.

(2) The complaint contained a veritable potpourri of additional claims, all of which have been voluntarily withdrawn by plaintiff.

(3) The courts that have considered whether assertions of mere delay suffice to make out a section 1981 claim are divided. Several courts have determined that where a defendant merely delays the formation of a present contract, or deters the formation of a subsequent contract by making a dining experience extremely unpleasant, there is no actual loss of a contract interest. See Harrison v. Denny’s Restaurant, Inc., No. C-96-0343, 1997 WL 227963, at *3 (N.D. Cal. April 24, 1997); Robertson v. Burger King Inc., 848 F. Supp. 78, 81 (E.D. La. 1994) (noting that the pro se plaintiff had not claimed that others who ordered similar items after him were served first); see also Bagley v. Ameritech Corp., No. 99 C 1449, 1999 WL 1069113, at *4 (N.D. Ill. Nov. 17, 1999) (summary judgment granted for the defendant where the plaintiff was treated poorly and discouraged, but not prevented, from purchasing merchandise); Ackerman v. Food-4-Less, No. 98-CV-1011, 1998 U.S. Dist. LEXIS 8813, at *9 (E.D. Pa. June 9, 1998) (finding the plaintiff’s ability to contract would be unabridged if she could have purchased an item after her two and one half hour detention for alleged shoplifting).