Posted by: Patricia Salkin | November 7, 2019

Fed. Dist. Court in NY Dismisses Claims Arising From Failed Efforts to Convert a Building Into Student Dorms

This post was authored by Matthew Loeser, Esq.

Plaintiff Gregg Singer and his companies Sing Fina Corp. and 9th & 10th Street LLC alleged that Defendants – the City of New York, the New York City Department of Buildings (the “DOB”), several City officials, and two community groups and their directors –obstructed his efforts to convert a building he purchased years ago into a student dormitory. Plaintiffs alleged multiple claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, including: violations of their First Amendment, Equal Protection, Due Process, and Takings Clause rights, as well as state law claims for tortious interference and defamation per se. In this case, the court reviewed Defendants’ motion to dismiss.

As a preliminary matter, the Berman Defendants and Defendant Sosnick contended that some or all of Plaintiffs’ claims were not ripe for review, because Plaintiffs’ appeal to the BSA of the DOB’s August 22, 2017 was still pending, and because the state declaratory judgment action was also pending at the time Defendants’ briefs were filed. The court found that the allegations against Defendants did not “raise a question of administrative finality.”  Additionally, the record in this case was complete, and there was little a final BSA decision could add to the record that would assist the Court in ruling on Plaintiffs’ claims. Accordingly, the court addressed Plaintiffs’ claims on the merits.

In support of Plaintiffs’ retaliation claim, Plaintiffs cited a 2016 meeting, in which Defendants allegedly “hatched a plan to interfere with Adelphi and Plaintiffs’ expressive message.” Specifically, in retaliation to Adelphi’s protected activities of joint lobbying, communications, and petitioning of government, the Defendants engaged in purposeful, targeted, and threatening acts, aside from engaging in their own advocacy, that would let Adelphi know “what they were walking into.” The court rejected this claim, finding that even had Plaintiffs pled facts demonstrating that they exercised their rights to free expression, petition, and expressive association, their First Amendment claims failed at the next step of the analysis – showing that Defendants’ actions “were motivated or substantially caused by” the exercise of any of these rights. Accordingly, Defendants’ motion to dismiss the First Amendment retaliation claim was granted.

Plaintiffs next made two equal protection claims, premised on selective enforcement and “class-of-one” theories. There claims failed upon review of the record, as Plaintiffs’ allegations were not sufficient to show that the other student dormitory projects were “similarly situated in all material respects” to its project. Here, Plaintiffs failed to describe these projects or the considerations involved in the review and approval process. Furthermore, the court held that Plaintiffs failed to show a property interest in the building permits at issue. Even had Plaintiffs demonstrated such an interest, however, they failed to allege that Defendants acted arbitrarily and irrationally in declining to issue or in revoking the permits at issue. Accordingly, Defendants’ motion to dismiss Plaintiffs’ substantive due process claim was also granted.

As a final matter, the court noted that Plaintiffs failed to cite to any authority to support their assertion that an unconstitutional conditions doctrine claim was cognizable where a government agency provided reasons for its denial of a permit. Even assuming that such a claim could be premised on an implied condition inconsistent with the stated reasons for denial of a permit, this claim would still be unsuccessful as Plaintiffs failed to sufficiently plead that the alleged condition amounted to a taking. Since Plaintiffs failed to plead any of the constitutional violations that were the basis of their Section 1983 and Section 1985(3) claims, Plaintiffs’ conspiracy claims also failed as a matter of law. Accordingly, Defendants’ motions to dismiss Plaintiffs’ federal claims were granted, and the court declined to exercise supplemental jurisdiction over Plaintiffs’ state law claims.

Singer v City of New York, 2019 WL 5540881 (SDNY 9/30/2019)

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