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PARK SOUTH ASSOCS. v. FISCHBEIN

January 23, 1986

PARK SOUTH ASSOCIATES, a New York Partnership, Plaintiff, against RICHARD FISCHBEIN, DAVID ROZENHOLC, HERMAN BADILLO, individually, FISCHBEIN, OLIVIERI, ROZENHOLC & BADILLO, and DOES 1 through 20, Defendants


The opinion of the court was delivered by: KNAPP

WHITMAN KNAPP, U.S.D.J.

Plaintiff Park South Associates brings this action against Richard Fischbein, David Rozenholc, Herman Badillo and against their law firm, Fischbein, Olivieri, Rozenholc & Badillo seeking injunctive relief and treble damages totalling $105,000,000.00 under the Racketeer Influenced And Corrupt Organizations Act, 18 U.S.C. §§ 1961, 1962(c) and (d) ("RICO") and asserting a pendent state law claim for abuse of process. Defendants have moved to dismiss the complaint pursuant to F.R. Civ. P., Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow defendants' motion is granted.

 FACTS

 The allegations presented in the amended complaint, supplemented by plaintiff's motion papers and plaintiff's representations to the Court during extensive oral argument, drawing all inferences in plaintiff's favor and attempting chronological order where possible, paint the following picture.

 Plaintiff is a New York partnership engaged in the business of ownership and management of real property. Its principal is Donald Trump.

 Defendant Fischbein Olivieri Rozenholc & Badillo is a New York law firm. The individual defendants are attorneys admitted to practice in the State of New York and are partners in the law firm. Defendant Herman Badillo, as well as being a partner in the law firm, is Chairman of the State of New York Mortgage Agency (SONYMA) and is "a political figure of consequence in the City, County and State of New York." Amended complaint at paragraph 8.

 In the summer of 1981 defendants obtained knowledge that plaintiff was imminently purchasing the real property and building located at 100 Central Park South, New York, New York. At that time defendants also learned that plaintiff intended to convert 100 Central Park South to a cooperative or condominium entity, or alternatively to demolish it and construct a mixed use commercial and residential structure in its place. Also in the summer of 1981, defendants commenced legal representation of the tenants of 100 Central Park South.

 In August of 1981 plaintiff purchased 100 Central Park South.

 Shortly thereafter, defendants, on behalf of the tenants, initiated a number of legal proceedings aimed at delaying and preventing plaintiff from undertaking its above stated plans for the building.

 Defendants, acting on behalf of tenants in sixty of the building's apartments, filed complaints against plaintiff with the New York State Department of Housing and Community Renewal ("DHCR") alleging harrassment and diminution of services.

 Defendants, on behalf of eighteen tenants, brought actions in Landlord-Tenant Court against plaintiff alleging a decrease in service.

 Seven tenants, acting on defendants' recommendations, withheld rent from plaintiff claiming that the premises were not fit for habitation, causing plaintiff to bring actions against them in Civil Court for the back rent owed. In these suits defendants raised "boilerplate defense and counterclaims without regard to the merits therein." Amended complaint at paragraph 22.

 On February 28, 1985 defendants "caused the City of New York through its Corporation Counsel to institute litigation in conjunction with defendants and a concomitant application for a preliminary injunction at the Supreme Court of the State of New York (The City of New York v. Park South Associates, et al., Index No. 40489/85)." Amended complaint at paragraph 20. The relief requested was denied by the Court (Kirschenbaum, J.), both upon the original application and upon reargument.

 Defendants, on behalf of tenants, applied on five separate occasions for stays in the Supreme Court and Appellate Division in order to prevent plaintiff from receiving the necessary approvals to demolish 100 Central Park South. All of these applications were denied.

 Defendants have used similar tactics before against other landlords in other actions. These tactics constitute defendants' "modus operandi." Amended complaint at paragraph 22.

 During the pendency of these court and administrative proceedings, the following events also occurred.

 In November of 1984 a representative of defendants offered Thomas Macari, a Park South employee, $50,000 "to work on behalf of the tenants at 100 Central Park South in a spying capacity while Macari was still employed by plaintiff." In October of 1985 Rozenholc "confirmed and reiterated such bribe to Macari." Complaint at paragraph 29.

 In November, 1984 defendant Badillo stated to Trump that the administrative proceedings before the DHCR were "rigged" and that Park South should get out of 100 Central Park South. William Eimeck, Commissioner of the DHCR is a member of the board of directors of SONYMA of which, as above stated, Badillo is Chairman.

 In October, 1985 defendant Rozenholc approached Trump and stated that he and his law firm represented the Allegheny Corporation. The Allegheny Corporation owned an office building in Houston, Texas. Rozenholc offered Trump the opportunity to buy the Houston property as long as Trump would agree to give Rozenholc and his firm "a piece of the action." Amended complaint at paragraph 25. Rozenholc also offered Trump the prospect of participating in the purchase of a hotel on Lexington Avenue and East 57th Street in New York City. During these discussions Rozenholc ...


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