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LUSKER v. OHRENSTEIN

February 24, 1998

RON LUSKER and MARILYN LUSKER, Plaintiffs, against MANFRED OHRENSTEIN, MARGARET REED, NEW YORK CITY COMMUNITY BOARD # 2, NEW YORK CITY LOFT BOARD, NEW YORK CITY DEPARTMENT OF BUILDINGS, NEW YORK CITY DEPARTMENT OF CULTURAL AFFAIRS, NEW YORK CITY DEPARTMENT OF CITY PLANNING, MARCELLA ZELMANOFF, VINCENT P. HANLEY, DAVID B. SAXE, ROBERT M. MORGENTHAU, MARY JO WHITE, CITY OF NEW YORK, AND OTHERS AS YET UNKNOWN1, Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Pursuant to 42 U.S.C. §§ 1983 and 1985, 18 U.S.C. § 1961, et seq., and New York State common law, plaintiffs Ron Lusker and Marilyn Lusker ("plaintiffs"), initially appearing pro se, filed the instant action against defendants Manfred Ohrenstein and Margaret Reed (the "State defendants"); defendants New York City Community Board # 2, New York City Loft Board, New York City Department of Buildings, New York City Department of Cultural Affairs, New York City Department of City Planning, and the City of New York (the "Municipal defendants"); and Marcella Zelmanoff, Vincent P. Hanley, David B. Saxe, Robert M. Morgenthau, and Mary Jo White (together "defendants") alleging that defendants conspired, beginning in 1979, to deprive them of two properties they owned at 43 Crosby Street and 85 Mercer Street in the SoHo area of New York City. Defendants move 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. For the reasons that follow, defendants' motions for summary judgment are granted.

 BACKGROUND2

 Plaintiffs are artists engaged in the making of fine art paintings and sculpture. See Am. Compl. P 7. When the art market is soft, plaintiffs also earn a living by architectural design and building construction and renovation. Id.

 I. 43 Crosby Street

 In 1979, plaintiffs acquired a 5-story derelict loft building at 43 Crosby Street. Thereafter, plaintiffs filed plans with the Department of Buildings to convert the property to a different commercial use, with storage in the cellar, a restaurant on the first floor, and joint living and working spaces on the remaining floors. See Am. Compl. P 14; Affidavit of David Monachino ("Monachino Aff.") Sworn to June 31, 1995, Exh. C. The Department of Buildings approved the plans, a work permit was authorized, construction began, and units on the upper floors were rented to various tenants. See Am. Compl. P 15; Monachino Aff., Exh. C.

 Moreover, plaintiffs allege that Lee sent the news article both to Sakona, the Superintendent of the Buildings Department, and to the City Planning Commission, and that Ohrenstein's office and Lee pressured Sakona to rescind plaintiffs' building permit. Id. P 16. Plaintiffs further state that an agent from the Planning Commission came to their restaurant and told them that Ohrenstein did not want plaintiffs to build the restaurant because Ohrenstein's friends and relatives who lived in the adjoining building objected to the restaurant, and that defendants would delay plaintiffs' work until the law could be redrafted to prevent it. Id.

 On or about September 19, 1979, plaintiffs' work permit was revoked and a stop-work order was issued by Sakona after an on-site inspection revealed that a large bar had been constructed on the first floor of 43 Crosby Street and connected to the plumbing, an alteration not included in the plans filed with the Department of Buildings. See Am. Compl. P 17; Monachino Aff., Exh. C. Plaintiffs contend that this stop-work order was spurious and that, in order to prolong the delay, Sakona guaranteed plaintiffs that he would personally approve their application if they changed their plans to a different use group. See Am. Compl. P 17. Plaintiffs allege that Sakona knew that his suggestion would require the review of Community Board # 2 and that such action would result in further delays and certain failure. See Am. Compl. P 18. *fn3"

 Plaintiffs acted on Sakona's suggestion and had their architect redraw the plans. See Am. Compl. P 18. However, after the new plans were presented, plaintiffs claim that Sakona told them that in order to have a restaurant in the building, plaintiffs would have to remove the cooking stoves and disconnect the bathtubs in the tenants' lofts because they were not permitted for artists' studios. Id. He further stated that once the restaurant was approved, the cooking stoves could be replaced. Id. Sakona purportedly issued plaintiffs a permit to remove the stoves, which they did, causing a rent strike that plaintiffs allege was instigated by Ohrenstein. See Am. Compl. PP 19, 20, 32; Monachino Aff. Exh. C. *fn4"

 On or about September 16 or 17, 1994, plaintiffs appeared before the Community Board's review committee on liquor applications in connection with an application for their 43 Crosby Street property. See Am. Compl. P 34; Pls.' Aff. P 20. Plaintiffs allege that Reed and Lee sat next to the chairman and coached her to recite in front of 150 people assembled for the hearing a list of character assaults, including Ron Lusker's thirty-year-old conviction, which they knew had been fully pardoned. Id.

 II. 85 Mercer Street

 Plaintiffs allege a comparable tale regarding property they own at 85 Mercer Street. In or about October 1974, plaintiffs entered into a lease for the ground floor of 85 Mercer Street, described as an "Artist Studio," for a term of ten years with an option to renew for an additional five years. See Am. Compl. P 7; Monachino Aff., Exh. D. Plaintiffs sublet a portion of the loft to Zelmanoff. See Am. Compl. P 7. At the time of the events described herein, it appears that 85 Mercer Street was zoned as a manufacturing district, in accordance with the City's policy to preserve space for manufacturing and commercial purposes. See Monachino Aff., Exh. ...


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