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October 29, 1997

X-MEN SECURITY, INC., et al., Plaintiffs, against GOVERNOR GEORGE PATAKI, et al., Defendants.

The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:


 The allegations that make up the basis for the underlying litigation are set forth in detail in the Memorandum and Order issued by this Court on July 10, 1997 ("July 10th Order"). Familiarity with that document is assumed.

 The facts, briefly, are as follows: X-Men is a private corporation that provides security and protective services. Ocean Towers is a privately owned and operated apartment complex that receives public financing from both the federal and state governments. The development is regulated by the federal government through the Housing and Urban Development Agency ("HUD") and by the State of New York through the Division of Housing and Community Renewal ("DHCR"). The complaint alleges that shortly after X-Men began providing security at Ocean Towers, defendants Jules Polonetsky (a New York State Assemblyman) and Peter King (United States Representative for the Third Congressional District of New York), motivated by racial and religious prejudice, formed a conspiracy with three objectives: (1) terminating X-Men's contract with the owners and managing agent of Ocean Towers; (2) preventing X-Men and its owner from procuring future contracts; and (3) preventing the tenants of Ocean Towers from enjoying the benefits of X-Men's security services. Compl. at PP 36, 39, 41. Using their official positions to create a public frenzy, the conspirators made false allegations that: X-Men was controlled by Farrakhan; the Nation of Islam profited from the Ocean Towers contract; X-Men was a racist hate group; and X-Men and Richards were guilty of fraud, mismanagement, and unpaid debts. Id. at PP 40-44.

 Plaintiffs also allege that Polonetsky and King forwarded a letter under Polonetsky's signature dated September 24, 1994 to then-DHCR Commissioner Donald Halperin. The letter stated, in relevant part:

Since the Nation of Islam promotes hatred against whites, Jews, women, Catholics and others, it is difficult to understand how the X-Men are eligible for a state-supported contract -- which requires compliance with equal employment and nondiscrimination guidelines. It seems clear that state support for this contract subsidizes the activities of a hate group and helps fund the racist and anti-Semitic goals of Louis Farrakhan and the Nation of Islam.

 Id. at P 45. Later in the letter, Polonetsky urged the Commissioner to terminate the contract with X-Men. Id. at P 46. Plaintiffs claim that this conspiracy and letter led to the termination of X-Men's contract with Ocean Towers.

 As a result of these occurrences, plaintiffs brought the present action against Polonetsky, King, and others alleging various civil rights violations as well as tortious interference with a contract. In its Memorandum and Order dated July 10, 1997, this Court dismissed the tortious interference claims and all of plaintiffs' claims that were based on 42 U.S.C. § 1981. It also dismissed all of plaintiffs' § 1983 and § 1985 claims except for those brought against defendants Jules Polonetsky and Peter King.

 In this motion, Defendant King requests that this Court reconsider the portions of its Memorandum and Order that deny King's motion to dismiss the claims against him under §§ 1983 and 1985. He argues that

in permitting plaintiffs to proceed in this case against two legislator defendants while dismissing similar claims against the Private Defendants and the State Executive Defendants, the Court's memorandum (1) is inherently inconsistent and contradictory in its treatment of claims against the defendants; (2) adopts a wholly novel and expansive theory of liability for constitutional torts, potentially having a chilling effect on the ability of legislators (and others) to speak out on matters of public importance; and (3) fails to address the merits of defendant King's qualified immunity defense (which would include consideration of the prior two points) before discovery, as the Supreme Court has directed.

 Def's Mem. of Law 1. Although it is not entirely clear, it appears that defendant's motion for reconsideration is predicated on point (3) -- the contention that this Court overlooked controlling authority in declining to rule on the merits of King's claim of qualified immunity. See also id. at 6 ("The remaining civil rights claims against defendant King should be dismissed on the basis of his qualified immunity from suit.").


 Standard for Motion to ...

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