conspiracy. The § 1985(3) claims against them should therefore be dismissed.
The actions of Polonetsky and King are not alleged with a great deal of specificity but they are sufficient to withstand a motion to dismiss the § 1985(3) claim. Among other things, Polonetsky and King are alleged to have begun an effort to unseat X-Men as the security contract holders shortly after June 28, 1993 (P 38); to have made false accusations concerning X-Men in furtherance of the conspiracy (PP 42-44); to have forwarded the September 24, 1994 letter to DHCR urging termination of X-Men's contract based on their affiliation with Farrakhan (P 45); to have excluded X-Men from the 1994 bidding process (P 48); and to have been motivated to take these actions because of X-Men's religious affiliation with the Nation of Islam (PP 41- 42). Given the clandestine nature of a conspiracy, the court finds that these allegations set out, in as much detail as is currently available, a § 1985(3) claim against Polonetsky and King.
VI. Tortious Interference with Contract
Plaintiffs' fourth cause of action is a common law claim against the State Defendants for tortious interference with contract. They charge that the State Defendants "intentionally" brought about breach of their contract to provide security "by causing its cancellation as of October 10, 1996." Compl. P 94.
Under New York law, the elements of a claim for tortious interference with contract are: "(a) that a valid contract exists; (b) that a 'third party' had knowledge of the contract; (c) that the third party intentionally and improperly procured the breach of the contract; and (d) that the breach resulted in damage to the plaintiff." Finley v. Giacobbe, 79 F.3d 1285, 1294 (2d Cir. 1996). Further "in order for the plaintiff to have a cause of action for tortious interference of contract, it is axiomatic that there must be a breach of that contract by the other party." Robins v. Max Mara, U.S.A., Inc., 923 F. Supp. 460, 468 (S.D.N.Y. 1996)(quoting Jack L. Inselman & Co. v. FNB Fin. Co., 41 N.Y.2d 1078, 1080, 396 N.Y.S.2d 347, 364 N.E.2d 1119 (1977).
As discussed above, X-Men completed its one year contract and thereafter provided security services on an at-will basis. Since this gave the Private Defendants the right to terminate the contract for any reason, their discharge of X-Men in October 1996 was not a breach of contract. In the absence of a breach, plaintiffs' tortious interference claim should be dismissed.
VII. Qualified Immunity of Polonetsky and King
Polonetsky and King assert that to the extent plaintiffs have stated valid claims against them, they are protected by qualified immunity. Qualified immunity is a defense which, if proven, shields government agents from liability for civil damages insofar as their conduct does "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Even if the rights in question are clearly established, a government actor may still be shielded by qualified immunity if "it was objectively reasonable for the public official to believe that his acts did not violate those rights." Kaminsky, 929 F.2d at 925. The purpose of the defense is to avoid "subjecting government officials either to the costs of trial or to the burdens of broad-reaching discovery," which include the "distraction of officials from their government duties, inhibition of discretionary action, and deterrence of able people from public service." Harlow, 457 U.S. at 816-818.
Generally speaking, "questions of immunity should be resolved at the earliest possible stage of the litigation so that an officer who is immune from suit will not have to proceed through a lengthy trial to establish that fact." Dempsey v. Town of Brighton, 749 F. Supp. 1215, 1226-27 (W.D.N.Y. 1990), aff'd., 940 F.2d 648 (2d Cir.), cert. denied, 502 U.S. 925, 116 L. Ed. 2d 278, 112 S. Ct. 338 (1991). However, in Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990), cert. denied, 498 U.S. 967, 112 L. Ed. 2d 414, 111 S. Ct. 431 (1990), the Second Circuit stated that the better practice is for a court to decide the issue of qualified immunity as a matter of law "preferably on a pretrial motion for summary judgment."
Polonetsky and King have moved to dismiss the complaint for failure to state a claim and it appears that little discovery has taken place in this case. Their assertion of the qualified immunity defense is therefore premature. The better time for determining the issue is on a motion for summary judgment. See Interboro Institute, Inc. v. Maurer, 956 F. Supp. 188 (N.D.N.Y. 1997). Accordingly, their motion to dismiss on this ground should be denied.
VIII. Legislative Immunity of King
Defendant King argues that the claims against him should be dismissed because they are predicated on legislative activity subject to the absolute protection of the constitution's Speech or Debate Clause.
The Speech or Debate Clause provides that "for any Speech or Debate in either House [members of Congress] shall not be questioned in any other Place." U.S. Const., Art. I, § 6, cl. 1. In Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1881), the first case in which the Supreme Court interpreted the clause, it was held that Congressmen were absolutely immune from liability for "things generally done in a session of the House by one of its members in relation to the business before it." Id. at 204. Later, in Tenney v. Brandhove, 341 U.S. 367, 376, 95 L. Ed. 1019, 71 S. Ct. 783 (1951), a case in which a former witness attempted to sue a state legislative committee, the Court limited the rule of Kilbourn and held that the clause immunizes a legislator who acts "in the sphere of legitimate legislative activity." What acts fall within that sphere was elaborated upon in Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972), a case arising from publication of the Pentagon Papers, in which the Court held that a legislator is protected if his or her action was "an integral part of the deliberative and communicative processes . . . with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Id. at 625.
In United States v. Brewster, 408 U.S. 501, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972), a case that involved the prosecution of a United States Senator, the Court held that the clause "does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself." Id. at 528. Thus, voting and debating on the House floor, preparing committee reports, conducting committee hearings and compiling and subpoenaing records are protected; running errands for constituents, arranging appointments with government agencies, helping individuals seeking government contracts, preparing news letters, news releases and delivering speeches outside of the House are not. Id. at 512.
It bears repeating that the complaint makes the following allegations about King: (1) he and Polonetsky began the conspiracy to terminate the X-Men; (2) he used his official position to create a public frenzy about the X-Men; (3) he caused accusations to be made that X-Men were a racist hate group; (4) he and Polonetsky wrote the September 24, 1994 letter to DHCR urging termination of the contract; (5) he participated in the decision to exclude X-Men from the 1994 bidding process; and (6) he was successful in getting HUD and a House subcommittee to investigate the X-Men. King himself acknowledges that it is "unclear" to what extent these allegations "involve . . . protected legislative activities." King Mem. of Law, p. 11.
In this court's view, it can only be said with confidence that the sixth allegation constitutes protected legislative activity. To the extent King sought to pressure others to terminate the contract and made extra-legislative statements about the X-Men, his conduct is not protected. See Gravel, 408 U.S. at 625 ("Members of Congress . . . may cajole, and exhort with respect to administration of a federal statute -- but such conduct, though generally done, is not protected legislative activity"). In addition, the letter he sent to DHCR along with Polonetsky would probably not be protected. See Hutchinson v. Proxmire, 443 U.S. 111, 133, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979)(Speech or Debate Clause does not immunize Senator from liability for statements made in news letters and press releases). While it is unclear when some of King's statements were made, the chronology of the complaint suggests that they were not made in connection with Congressional committee hearings or investigations. If so, they are not protected.
The court is mindful that the Speech or Debate Clause prohibits not only inquiry into acts that are manifestly legislative, but also into acts that are purportedly legislative to determine if they are legislative in fact. See United States v. Biaggi, 853 F.2d 89, 103 (2d Cir. 1988), cert. denied, 489 U.S. 1052, 103 L. Ed. 2d 581, 109 S. Ct. 1312 (1989). However, contrary to King's contention, the fact that the allegations against him might implicate his legislative activity does not require dismissal of the complaint. In United States v. Murphy, 642 F.2d 699, 700 (2d Cir. 1980), congressmen who were indicted for taking bribes in the Abscam sting operation appealed the district court's denial of their motion to dismiss the indictment on the grounds that it violated the Speech or Debate Clause. The Second Circuit upheld the ruling and in doing so, stated with regard to vague allegations in the indictment,
Overt act number 20 alleges that [defendants] met in Washington with another Congressman. That overt act, as alleged in the indictment, is not on its face protected by the Speech or Debate Clause, but if an offer of proof at trial indicates that it is protected when assessed in light of the other evidence, the [defendants] will be entitled to have that particular allegation stricken.