843 F.2d 103 (2nd Cir. 1988), 40, Beauford v. Helmsley

Docket Nº:40, Docket 87-7216.
Citation:843 F.2d 103
Party Name:RICO Bus.Disp.Guide 6900, RICO Bus.Disp.Guide 6919 Roslyn O. BEAUFORD, Joseph C. Palmento, Maria Valle, Joseph DeCesare, Jr., and Elsie DeCesare, Appellants, v. Harry B. HELMSLEY, Supervisory Management Corp., Avenue of America Realty Corp., Benenson Capital Co., Sanford G. Bluestein, Felice Earley, Estate Associates, Joan Konner, Peter L. Malkin,
Case Date:March 31, 1988
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 103

843 F.2d 103 (2nd Cir. 1988)

RICO Bus.Disp.Guide 6900, RICO Bus.Disp.Guide 6919

Roslyn O. BEAUFORD, Joseph C. Palmento, Maria Valle, Joseph

DeCesare, Jr., and Elsie DeCesare, Appellants,

v.

Harry B. HELMSLEY, Supervisory Management Corp., Avenue of

America Realty Corp., Benenson Capital Co., Sanford G.

Bluestein, Felice Earley, Estate Associates, Joan Konner,

Peter L. Malkin, John J. Reynolds, Inc., Saul S. Silverman,

William C. Warren, William C. Breed III, Ralph W. Felsten,

Lillian M. Gelfman, Robert W. Gelfman, Donald L. Jonas,

Jeffrey D. Klein, Norman R. Klein, Alvin S. Lane, Fred

Linden, Gertrude G. Malkin, Peter L. Malkin, Claire W.

Morse, Lester S. Morse, Jr., Richard P. Morse, Ivan Shapiro,

Alvin Silverman, Harold L. Strudler, Brown, Harris, Stevens,

Inc., Marcel P. Aillery, J.G. White Engineering Corp., Appellees.

No. 40, Docket 87-7216.

United States Court of Appeals, Second Circuit

March 31, 1988

Argued Sept. 23, 1987.

Rehearing In Banc Granted April 1, 1988.

Page 104

Edward S. Kanbar, New York City, for appellants.

Steven M. Hayes (Parcher Arisohn & Hayes, P.C., Brian D. Caplan, of counsel), for appellees.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

OAKES, Circuit Judge:

Despite the Supreme Court's decision in Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985), courts generally, and courts in the Second Circuit in particular, remain confused (and certainly confusing) in their construction of the statutes governing so-called civil RICO, the provision of a private civil remedy of treble damages for injury "by reason of a violation of" the substantive provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), Pub.L. No. 91-452, Title IX, 84 Stat. 941, codified as amended, 18 U.S.C. Secs. 1961-68 (1982 & Supp. IV 1986). See 18 U.S.C. Sec. 1964(c). Here, the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, 650 F.Supp. 548, dismissed an amended complaint alleging RICO and state law violations in connection with the conversion of an apartment complex into condominiums, and refused to allow the plaintiffs to file a second amended complaint. It is important here to recite the allegations of both the amended and proposed second amended complaint, because both must be construed in the light most favorable to plaintiffs. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957).

The Amended Complaint (dismissed by the district court).

The plaintiffs consist of five tenants, one who bought and four who did not buy their respective apartments in Parkchester, a Bronx residential complex. Each was given the opportunity to purchase after Parkchester Apartments Co. filed an offering plan for the conversion under New York's General Business Law Article 23-A (the Martin Act) (McKinney 1984 & Supp.1988), particularly N.Y.Gen.Bus.Law Sec. 352-e. Parkchester is a complex of fifty-one apartment buildings in four separate quadrants containing a total of 12,271 apartments. Defendants are the sponsor, Parkchester Apartments Co. (a New York real estate partnership), the individual partners (both individuals and entities), the sponsor's sales agent (Brown, Harris, Stevens, Inc.), and two engineering firms which, and an individual engineer who, supplied engineering reports and studies as part of the conversion.

The North Quadrant at Parkchester was converted to condominium ownership in 1973, though the sponsor retains and continues to sell apartments in it. The sponsor filed an offering plan for the conversion of the East, West, and South Quadrants, consisting of 8,286 apartments in June 1984. It is in connection with this offering that allegations of fraud are made on behalf of various classes of tenants, insider purchasers, and outside purchasers. While repetition of all the allegations is not necessary, a somewhat detailed sampling is appropriate.

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Count One alleges a material misrepresentation, in that the sponsor concealed that some buildings had serious structural defects and that their plumbing and electrical systems needed replacement.

Count Two alleges that the engineering defendants made willful misstatements by omitting information as to the plumbing and electrical systems and the structural defects from their reports.

Count Eleven, the RICO count, alleges not only the false and misleading offering plans, but also the denial of tenants' claims of damage caused by inadequate plumbing and electrical service or structural defects, false statements made in legal actions, and harassment of tenants to effect their eviction, all achieved by use of the mails and telephone. As amended, the complaint also alleges misrepresentations as to the identity of the sponsor and claims (A) that the cost of plumbing repairs was absorbed by management, thereby appearing to lower the maintenance cost of each apartment and creating an artificial condition of lower maintenance costs and higher sales prices, (B) that the insulation of the plumbing pipes was asbestos, and (C) that the plumbing leaks caused electrical short circuits. There are said to be two RICO enterprises--Parkchester Apartments Co. and the defendants as a group.

The Proposed Second Amended Complaint (motion for leave to file denied for "failure ... to allege properly an injury directly caused by the so called RICO allegations under Sedima, S.P.R.L. v. Imrex Co., U.S. 105 S.Ct. [3275] 3276 [87 L.Ed.2d 346] (1985)").

The proposed second amended complaint, after incorporating the original and amended complaints by reference, alleges that Parkchester Apartments Co. is the "enterprise" for RICO purposes and purports to amplify the "racketeering activity" and the "pattern of such racketeering activity" by reference to an "overview" of racketeering acts. In addition to the acts previously alleged, the revised complaint lists the following illegal acts: (A) denial of liability for the maintenance of Parkchester's central malls; (B) improper curtailing of landscape maintenance; (C) making false statements concerning liability for water damage; (D) manipulating costs among different quadrants within the complex; (E) making illegal financial statements; (F) withdrawing hot water, electrical, and elevator services; (G) failing to disclose that the cost of plumbing and electrical repairs are borne by the enterprise; (H) reducing painting services; (I) failing to disclose the purchase of supplies through a related company; (J) selective...

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