(dissenting) :
This case raises the issue whether Albany County officials can arbitrarily refuse to obtain sorely needed day care for children of welfare recipients because the officials do not like the well-known, aggressive political and legal activities of the Executive Director of a day care center. Beneath all the papers and briefs with which we have been favored, that is what this litigation is all about. In view of the uncontradicted assertion of plaintiffs that there are no other day care facilities available in the entire county for the children of the two plaintiff welfare mothers, the issue is a grave one.
If the complaint in this action offered nothing more than the bald assertion that upon information and belief defendants Schreck and Jay have refused to refer children to the Albany Welfare Rights Organization Day Care Center, Inc. because they disapprove of Director Boddie’s political and litigious activities *625on behalf of welfare recipients,1 I would agree that dismissal for failure to state a claim for relief would be proper under Avins v. Mangum, 450 F.2d 932 (2d Cir. 1971). But the complaint before us does not consist solely of such a conclusory allegation unsupported by any factual basis. In fact, the complaint is the antithesis of the typically sparse, bare bones, conclusory pleading that might justify dismissal. The “factual allegations” are contained in 20 separately numbered paragraphs, full of evidentiary detail. In them, plaintiffs trace the events leading up to this controversy and assert, with supporting documents, that the Day Care Center has been duly approved by the State Board of Social Welfare and licensed by the State Department of Social Services. As to the action of the latter agency, the complaint further states that the Department issued a permit to the Center only after it specifically determined that a definite need exists in the Albany area for day care services and that the Center’s staff members, including plaintiff Boddie as its Executive Director, meet all requirements under the law for their positions. Indeed, the district judge below noted that “[a]fter an affidavit was filed as to the [un] fitness of Mrs. Bod-die by Commissioner Schreck, the State reinvestigated her background and let the revocable permit . . . issued to AWRO Day Care Center stand unchanged.” 2
Thus, the allegations in the complaint, which of course we must accept as true for purposes of testing its sufficiency, show at the very least that plaintiffs have a factual foundation upon which they may be able to establish at trial that defendants Schreck and Jay have refused to deal with the Center because of Boddie’s welfare rights advocacy and not because she is unqualified. Obviously, plaintiffs have not yet proved retaliation, but they have sufficiently alleged it. The complaint must be upheld unless
it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. [Footnotes omitted.]
2A Moore, Federal Practice, ¶8.13 at 1705-06 (2d ed. 1968). See also Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ; Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir.), cert. denied, 400 *626U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970). In my view, the complaint in this action clearly meets that test of sufficiency.
Accordingly, I dissent. Plaintiffs are entitled to their day in court on their serious charge of arbitrary and unconstitutional action by defendants.3 At the very least, we should follow the procedure used in Avins v. Mangum, supra, and give plaintiffs an opportunity to amend their complaint before dismissing the action. See also 3 Moore, Federal Practice, ¶15.10 (2d ed. 1968).
. The complaint alleges that the Executive Director in question, plaintiff Catherine Boddie, is “Chairwoman of the Upstate Welfare Rights Organization and is Treasurer of the Albany Welfare Rights Organization.” Typical of plaintiff Boddie’s attemj)ts to protect the rights of welfare recipients — successful in that case — is Boddie v. Wyman, 434 F.2d 1207 (2d Cir. 1970), aff’d mem., 402 U.S. 991, 91 S.Ct. 2168, 29 L.Ed.2d 157 (1971).
. The majority opinion refuses to accept plaintiffs’ allegation that the Department found Boddie qualified to serve as Executive Director. The majority justifies its abandonment of the usual rule that such allegations must be accepted as true by arguing that the complaint is internally inconsistent in that the Department’s approval of Boddie is alleged to have occurred on December 31, 1971, while elsewhere in the complaint it is stated that Boddie has been employed as director since January 3, 1972. Quite frankly, I am unable to see any inconsistency between the two statements. The statement that Boddie has been Director since January 3, 1972 is included in a paragraph which follows the allegation that “at all times since January 3, 1972, defendants Schreck and Jay have failed or refused to place children in the A.W.R.O. Day Care Center. . . . ”
Obviously, the reference to Boddie’s employment as of January 3, 1972 is intended to show only that she was Director when Schreck and Jay began refusing to cooperate with the Center and cannot be read as negatively implying that she was never associated with the Center before that date or that the State Department of Social Services, when it issued a permit to the Center, did not know that Boddie would serve as Director -when the Center opened three days later.
. At the same time, of course, defendants will have an opportunity to show that their admitted refusal to use the Day Care Center as long as plaintiff Boddie is Executive Director was a matter for their discretion despite the alleged state approval referred to in note 2, supra, and was based on a proper judgment that she is not qualified for that job, issues upon which I do not express an opinion.