in approving these falsified applications. Id. P 25.
In or about 1984, the building corporation purchased the two buildings. Thereafter, Zelmanoff applied for artist certification from the New York City Department of Cultural Affairs, which was granted on May 14, 1984. See Am. Compl. P 26. At the same time, plaintiffs allege that Myerson rescinded Ron Lusker's artist certification, at the behest of Zelmanoff, and that Marilyn Lusker's certification was denied, both of which apparently were required for plaintiffs to be eligible to live at 85 Mercer Street. See Am. Compl. P 27; Plaintiffs' Statement Pursuant to Local Rule 3(g) ("Rule 3(g) Stmt.") P 4; Pls.' Aff. P 23. Plaintiffs state that, by being denied certification, they were denied the use of their residence and virtually evicted from their home. See Am. Compl. P 27.
In or about June 1985, Zelmanoff applied to the New York City Planning Commission to oppose plans to modify her portion of the loft to joint living-working artists' quarters. See Am. Compl. P 28. The City Planning Commission approved her application on June 19, 1985. Id. In reaching this decision, plaintiffs allege that City Planning Commissioner Sturz ignored the terms of Zelmanoff's lease, granted a zoning change not yet permitted by the law, and willfully accepted a falsified application from Zelmanoff and Hanley. See Am. Compl. P 28. In addition, plaintiffs assert that Sturz, acting on a call from Zelmanoff and Reed, instructed Green, a staff worker, to "sanitize" and approve falsified facts in Zelmanoff's application. Id. P 29. Plaintiffs additionally allege that defendants delayed approval of plaintiffs' applications for ground floor uses and reopened an application that had already passed review, thereby delaying their applications for years. Id.
At or about the same time, Zelmanoff applied to the Loft Board for coverage of her portion of the loft as an Interim Multiple Dwelling under the protection of the Loft Law. See Affidavit of Louise Lippin ("Lippin Aff.") Sworn to August 11, 1995, Exh. B.
Ron Lusker contested Zelmanoff's application. See Lippin Aff., Exh. B. Additionally, on April 17, 1987, he initiated an action in New York State Supreme Court by order to show cause seeking to enjoin Zelmanoff from utilizing her ground floor loft at 85 Mercer Street and from obtaining residential status for the unit pursuant to Article 7-C of the Multiple Dwelling Law. See Monachino Aff., Exh. D. Lusker also sought an injunction against the New York City Loft Board restraining it from granting Zelmanoff's application. Id. Lusker alleged that Zelmanoff continued to use her portion of the Loft for residential purposes in violation of the parties' June 12, 1983, agreement, and he sought specific performance of Zelmanoff's obligation to obtain a commercial variance and to terminate residential use of her portion of the loft. Id. Lusker further alleged that prior to June 12, 1983, Zelmanoff falsely and fraudulently represented to plaintiffs that she wanted to enter into an agreement of "resale" or a "joint venture proposition." Id.
In connection with the suit, plaintiffs allege that Zelmanoff, while employed as an attorney by the "Brooklyn Corporation Council [sic]," used that agency's office to conduct investigations and receive information about plaintiffs' personal finances and prior felony conviction records. See Am. Compl. P 35. Moreover, plaintiffs allege that Ohrenstein and other defendants asked federal and state agencies to investigate plaintiffs in an attempt to perfect their scheme and that these agencies used surveillance, recording devices, video cameras, telephones, and the United States Postal Service in furtherance of that plan. Id. P 39. Plaintiffs further state that they complained to the District Attorney and the United States Attorney about defendants' actions but were ignored. Id. PP 40, 41.
On August 17, 1989, the Loft Board issued a decision on Zelmanoff's 1985 application, holding that her portion of the loft qualified for Loft Law protection and that she did not waive her rights under the Loft Law by entering into her earlier partnership agreement with plaintiffs. Thereafter, Ron Lusker filed an Article 78 petition seeking to set aside and annul the Loft Board's decision. See In the Matter of Ronald Lusker v. City of New York, 194 A.D.2d 487, 599 N.Y.S.2d 575 (1993). The Court dismissed Lusker's petition, holding that the Loft Board's decision was not arbitrary, capricious, or an abuse of discretion, and that its rulings were rationally based on the application of the law after a review of the documentary evidence submitted. Id. On June 29, 1993, the Appellate Division, First Department, affirmed that decision, see id., and on November 18, 1993, the New York Court of Appeals denied leave to appeal. See Matter of Lusker v. City of New York, 82 N.Y.2d 660, 605 N.Y.S.2d 6, 625 N.E.2d 591 (1993).
In addition, New York State Supreme Court heard testimony from Ron Lusker in his 1987 action but dismissed his complaint in all respects on November 20, 1995, after the close of his case. See Letter from Marci Zelmanoff dated February 12, 1996; Pls.' Aff. P 39. It also appears from the Record that Lusker may have filed a second Article 78 proceeding, which he subsequently discontinued without prejudice. See Plaintiff Ron Lusker's Supplemental Affidavit in Opposition to State Defendants' Fed. R. Civ. P. Rule 12(b) Motion to Dismiss ("Ron Lusker Supp. Aff.") Sworn to April 2, 1996, Exh. G.
III. The Instant Action
On September 19, 1994, plaintiffs commenced the instant action, and thereafter filed an amended complaint on January 27, 1995, for violations under 42 U.S.C. §§ 1983 and 1985, 18 U.S.C. § 1961, et seq., and common law. In particular, plaintiffs allege violations of the substantive due process and equal protection provisions of the Fourteenth Amendment, conversion, and conspiracy to extort, assault, defame, intentionally inflict emotional distress, and intentionally interfere with plaintiffs' prospective business relations. Plaintiffs allege that their property rights in both buildings have been taken and/or impaired, their reputations in the SoHo community blackened, and their ability to do business in New York City impaired, by the sustained, concerted actions of defendants; that the first indication of defendants' collusive efforts to deny them their property rights was a threat made to them at a meeting of Community Board # 2 on September 8, 1980, that "they would never do any [more] business in New York City," see Lusker Aff., P 26; and that the Municipal defendants have repeatedly and unreasonably delayed acting on plaintiffs' renovation and building applications, stalled administrative action to gain the benefits of changes in zoning laws then "in process" and known to the various Municipal defendants, but not to plaintiffs, and used dilatory tactics, including incorrect denials and determinations and repeated inspections of plaintiffs' property, to harass plaintiffs and deplete their resources and ability to pursue their administrative remedies with various New York City agencies. Plaintiffs seek compensatory and punitive damages in the amount of $ 6,350,000 and $ 5,600,000, respectively, trebled pursuant to state and federal law, together with costs and attorneys fees.
On July 31, 1995, August 11, 1995, and August 19, 1995, the State defendants, the Municipal defendants, and Hanley, respectively, moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. The State defendants argue that the claims against them are barred by the statute of limitations and qualified immunity and that the complaint fails to state a claim under 42 U.S.C. §§ 1983 and 1985. The Municipal defendants argue that the claims against them are also barred by the statute of limitations, as well as by the doctrines of res judicata and collateral estoppel. Finally, Hanley argues that the claims against him must be dismissed because he is not a state actor and because plaintiffs have not established the discriminatory intent required to state a claim under 42 U.S.C. § 1985. The Municipal defendants, Hanley, and Zelmanoff join in the brief submitted by the State defendants.
Immediately prior to Oral Argument, the Court received a letter from counsel who indicated that he would represent plaintiffs if the Court denied defendants' motions. After hearing Oral Argument from plaintiffs pro se, the Court reserved decision and afforded counsel an opportunity to file a notice of appearance on plaintiffs' behalf, submit a supplemental affidavit and memorandum of law in opposition to defendants' motions, and appear again for Oral Argument.
In their supplemental papers, plaintiffs, now represented by counsel, state that the Department of Buildings issued a permit for their restaurant at 43 Crosby Street on February 21, 1995, and that the New York State Liquor Authority issued a liquor license in late March 1995, but that on November 14, 1995, the Department of Buildings issued a final revocation of all prior approvals permitting plaintiffs to operate their restaurant. See Ron Lusker's Supp. Aff. P 5.
Moreover, plaintiffs state that during that interval, the Department of Buildings frequently inspected their 43 Crosby Street property at the behest of Community Board # 2, Lee, and Reed. Id. PP 9, 10. Plaintiffs contend that the City defendants' approval of thirteen restaurants and ten retail/gallery operations on Crosby and Mercer Streets, while repeatedly denying approval for plaintiffs' 43 Crosby Street property, demonstrates that plaintiffs are being denied equal protection under the applicable zoning laws. Id. PP 12-21.
Pursuant to Fed. R. Civ. P. 56(c), summary judgment in favor of the moving party is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a moving party's motion for summary judgment, the Court views all facts and construes all rational inferences derived therefrom in the light most favorable to the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). In this case, construing plaintiffs' amended complaint liberally as the Court must, see Haines v. Kerner, 404 U.S. 519, 520-521, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), and read in conjunction with their opposition papers and affidavits, see Le Grand v. Evan, 702 F.2d 415, 416 n.3 (2d Cir. 1983), the complaint must be dismissed.
Plaintiffs fail to state a claim under § 1985, because plaintiffs do not allege or offer any evidence that defendants were motivated by a class-based discriminatory animus. It is well established that an allegation of class-based animus is essential to state a claim under § 1985. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267-68, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993); Gleason v. McBride, 869 F.2d 688, 694-95 (2d Cir. 1989). Because plaintiffs claim neither that they are members of a protected class nor that they are the victims of defendants' class-based animus, plaintiffs' claims under § 1985 must be dismissed.
Furthermore, plaintiffs' claims under both §§ 1983 and 1985 are barred by the applicable statute of limitations. The statute of limitations for plaintiffs' claims under §§ 1983 and 1985 is three years. See Singleton v. City of New York, 632 F.2d 185, 189 (2d Cir. 1980), cert. denied 450 U.S. 920, 67 L. Ed. 2d 347, 101 S. Ct. 1368 (1981); Blankman v. County of Nassau, 819 F. Supp. 198, 206 (E.D.N.Y. 1993). Under federal law, a claim accrues when the plaintiff "'knows or has reason to know' of the injury that is the basis of the action." Blankman, 819 F. Supp. at 207 (quoting Cullen v. Margiotta, 811 F.2d 698 (2d Cir.), cert. denied, 483 U.S. 1021, 107 S. Ct. 3266, 97 L. Ed. 2d 764 (1987)); see also Singleton, 632 F.2d at 191. Except when inconsistent with federal policy, state law governs tolling. See Singleton, 632 F.2d at 191.
In Singleton, the Second Circuit stated:
Characterizing defendants' separate wrongful acts as having been committed in furtherance of a conspiracy or as 'a single series of interlocking events' does not postpone accrual of claims based on individual wrongful acts. The crucial time for accrual purposes is when the plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action. To permit him to wait and toll the running of the statute simply by asserting that a series of separate wrongs were committed pursuant to a conspiracy would be to enable him to defeat the purpose of the time-bar, which is to preclude the resuscitation of stale claims. As we stated in Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied sub nom. Kaplow v. Reinfeld, 352 U.S. 844, 1 L. Ed. 2d 60, 77 S. Ct. 50 (1956):
The person harmed by the conspiracy may bring suit as soon as the damage to him is inflicted; he obviously need not wait until the termination of the conspiracy which caused it. It is at the time of the injury that the 'right to relief by action' arises and the statute therefore begins to run at the moment such injury occurs.
The existence of a conspiracy does not postpone the accrual of causes of action arising out of the conspirator's separate wrongs. It is the wrongful act, not the conspiracy, which is actionable, whether that act is labeled a tort or a violation of § 1983. (citations omitted).