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July 22, 1985

ACORN PONDS AT NORTH HILLS, Plaintiff, against THE INCORPORATED VILLAGE OF NORTH HILLS, LOWELL H. KANE, Individually and as Mayor of The Incorporated Village of North Hills, BENTLEY H. SHERMAN, Individually and as Deputy Mayor and Trustee of The Incorporated Village of North Hills, WILLIAM J. BAKER, LOUIS FOTI and JOSEPH BRUCIA, Individually and as Members of the Board of Trustees of The Incorporated Village of North Hills, and NICK MASSAND, Individually and as Village Engineer of The Incorporated Village of North Hills, Defendants.


The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, District Judge

 Defendants, by two separate notices of motion (dated March 15, 1985 and March 18, 1985), move for summary judgment, pursuant to Fed.R.Civ.P. 56, on various grounds.


 The claims allege that defendants, in their capacities as hereafter described, individually and as part of a common scheme and plan, deprived the plaintiffs of their right to equal protection under the law and their right to due process by arbitrarily and capriciously refusing to issue certificates of occupancy to which they were entitled, in violation of 42 U.S.C. §§ 1983 and 1985. *fn1" The complaint sets forth in detail the acts which plaintiff alleges were "in excess of [defendants'] lawful authority" (para. 25) and (in the claim directed only against defendants Sherman and Baker) done to enhance the value of their condominium units.


 Acorn Ponds at North Hills ("APNH") is a partnership which was organized prior to May, 1976 to develop land located in The Incorporated Village of North Hills ("North Hills") by building three condominium units known as APNH I, II and III, consisting of 41 separate buildings. A final revised site plan for the three condominiums was approved by North Hills on or about April 17, 1976. During the period from May 1976 to April 1977, APNH applied for, and was granted, building permits for all 41 buildings comprising the three condominium units. Building permits were also granted during the period from May, 1976 to March, 1978 for the construction of facilities to be shared in common by all the prospective condominium owners, i.e., club-house, tennis court, pool and pump house.

 In the fall of 1977, APNH I was completed and certificates of occupancy issued. Defendants, Bentley H. Sherman and William J. Baker, each purchased an apartment in APNH I. The condominium owners formed an Ad Hoc Committee ("AHC") for the purpose of forwarding on complaints and resolving disputes between them and APNH.

 In April, 1978, North Hills held an election for the offices of mayor and trustee. Defendant, Lowell H. Kane, was the successful candidate for mayor; defendant Joseph Brucia was the successful candidate for trustee. Kane and Brucia campaigned on a promise to halt the use of land in North Hills for condominium ownership. Sherman and Baker campaigned for the election of Kane and Brucia and their pledge to halt the construction of condominiums in North Hills. At the time of the election the buildings comprising APNH II were being erected. Soon after Kane and Brucia assumed the duties of the respective offices to which they were elected, North Hills hired defendant Nicholas Massand as Village Engineer and Building Inspector. Sherman and Baker were appointed members of the North Hills' Board of Zoning and Appeals in April, 1978 and were elected to the Board of Trustees of North Hills in April, 1979.

 Sometime in 1978, the AHC submitted demands for improving APNH I, including a new drainage system to connect with an underground sewer drainage system to replace splash blocks that had previously been installed and approved by the former building inspector. APNH first refused to comply with this demand. However, after Massand refused to inspect buildings completed in APNH II, which was an essential step in seeking certificates of occupancy ("C of O's") for the buildings in which apartments were ready for sale, APNH submitted to the demand and made the change in the drainage system. *fn2"

 Beginning in or about August, 1978, North Hills demanded fees from APNH for inspection of ongoing construction and landscaping by the Village Engineer and services performed by the engineer hired by AHC in assisting Massand. North Hills threatened to withhold issuance of C of O's until the sums demanded were paid. This court in a memorandum of decision and order found "no authorization for the imposition of post-approval costs" and granted APNH's motion for a return of the monies deposited in response to the demand. Acorn Ponds at North Hills v. The Incorporated Village of North Hills, CV 81-1573, slip op. (E.D.N.Y. Feb. 10, 1983).

 On September 29, 1978, Massand advised APNH that the distance between two buildings (designated on the site plan as buildings #23 and #24) was less than 20 feet because of overhangs and brick column protrusions and therefore in violation of the variance issued by the Zoning and Appeals Board on May 7, 1977. Massand filed a violation. The buildings were 90% to 95% completed at the time that APNH made application for a variance to the Board of Zoning and Appeals. It came on for a hearing on December 14, 1978. Sherman and Baker were members of the Board (consisting of five members). Sherman acted as its chairman. *fn3" The determination of the Board denying APNH's application was overturned in a decision by Justice Levitt dated April 10, 1979.

 In April, 1979, AHC employed an engineering firm to inspect and report on APNH I and II. At this time, Sherman and Baker were trustees of the Board of Trustees of North Hills and members of the Board of Zoning and Appeals. The firm prepared a report, known as the Montemarano Report, which recommended certain repairs and improvements to APNH I and buildings in APNH II (for which no C of O had yet been issued). By letter dated September 13, 1979, APNH requested Massand to inspect APNH II in order to process the applications for C of O's. Massand refused. A Justice of the Supreme Court of Nassau County directed the inspection in an Article 78 proceeding by order dated November 23, 1979. Defendants appealed the judgment entered on the order to the Appellate Division of the Supreme Court, Second Department. Upon affirmance by the Appellate Division, on February 11, 1980, six months after the request was made, Massand inspected the buildings.

 In September, 1979, North Hills and Massand refused to inspect any buildings in APNH III, and thus withheld C of O's, unless APNH performed the work suggested in the Montemarano Report. By order of a Justice of the Supreme Court, Nassau County, dated ...

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