Singer v. City of N.Y.

• Decision Date: 30 September 2019
• Docket Number: 18 Civ. 615 (PGG)
• Citation: 417 F.Supp.3d 297
• Parties: Gregg SINGER, Sing Fina Corp., and 9th & 10th Street LLC, Plaintiffs, v. The CITY OF NEW YORK, the New York City Department of Buildings, the Greenwich Village Society for Historic Preservation, Bill de Blasio, Rosie Mendez, Carlina Rivera, Andrew Berman, and Aaron Sosnick, in their individual and official capacities, and John and Jane Doe 1-100, whose identities are unknown at present, Defendants
• Court: U.S. District Court — Southern District of New York

417 F.Supp.3d 297

Gregg SINGER, Sing Fina Corp., and 9th & 10th Street LLC, Plaintiffs,

v.The CITY OF NEW YORK, the New York City Department of Buildings, the Greenwich Village Society for Historic Preservation, Bill de Blasio, Rosie Mendez, Carlina Rivera, Andrew Berman, and Aaron Sosnick, in their individual and official capacities, and John and Jane Doe 1-100, whose identities are unknown at present, Defendants,

18 Civ. 615 (PGG)

United States District Court, S.D. New York.

Signed September 30, 2019

Ian-Paul Apostole Poulos, Clifton Budd & DeMaria, LLP, Randy Edward Kleinman, Law Offices of Gus Michael Farinella, PC, New York, NY, David Marc Schwartz, Gerstman Schwartz LLP, Garden City, NY, for Plaintiffs.

Rachel Kane Moston, New York City Law Department, Kristin Eileen Poling, Leila Cardo, Rubin, Fiorella, Friedman & Mercante LLP, Charles E. Dorkey, III, Ilya Schwartzburg, Dentons US LLP, New York, NY, for Defendants.

ORDER

PAUL G. GARDEPHE, U.S.D.J.:

In this action, Plaintiff Gregg Singer – along with his companies, Sing Fina Corp. and 9th & 10th Street LLC – allege that Defendants – the City of New York ("the City"), the New York City Department of Buildings (the "DOB"), several City officials, and two community groups and their directors – have obstructed his efforts to convert a building he purchased years ago into a student dormitory. Plaintiffs assert a host of claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, including violations of their First Amendment, Equal Protection, Due Process, and Takings Clause rights, as well as state law claims for tortious interference and defamation per se. (Am. Cmplt. (Dkt. No. 55)) Defendants have moved to dismiss the Amended Complaint. (City Mot. (Dkt. No. 76); Berman Mot. (Dkt. No. 80); Sosnick Mot. (Dkt. No, 84)) For the reasons stated below, Defendants' motions will be granted.

BACKGROUND

I. FACTS ¹

At the center of this dispute is "Old P.S. 64," a building located at 605 East 9th Street in Manhattan. Old P.S. 64 operated as a public elementary school from 1907 until the school's closure in 1977. (Am. Cmplt. (Dkt. No. 55) ¶¶ 14, 26) In 1998, Plaintiff Gregg Singer purchased Old P.S. 64 from the City at auction, through his limited liability company, Plaintiff 9th & 10th Street LLC.² (Id. ¶ 27) Title passed to 9th & 10th Street LLC on July 21, 1999. (Id. ¶ 28)

Old P.S. 64 is encumbered by a deed restriction, which provides that "[u]se and development of this ... property is restricted and limited to a ‘Community Facility Use’ as such use is defined in the New York City Zoning Resolution [the "Zoning Resolution"] as existing on the date of the auction." (Id. ¶ 28) A "community facility use" includes, inter alia, any use listed in "Use Group 3" of the Zoning Resolution. (Zoning Resolution § 12-10; Am. Cmplt. (Dkt. No. 55) ¶ 30) Among those permissible "Use Group 3" facilities³ are "[c]ollege or school student dormitories" and "[p]hilanthropic or non-profit institutions with sleeping accommodations."⁴ (Zoning Resolution § 22-13(A)) Between 1999 and 2005, Singer "contacted 1,200 or so non-profit organizations, schools, and ... community groups to see if they were interested in leasing space in Old P.S. 64." With no takers, Singer "decided to change direction and convert the building into a much[-]needed college student dormitory," a use permissible under the deed restriction. (Id. ¶ 30)

A. Plaintiffs' 19-Story Dormitory Plan and Promulgation of the Dorm Rule

Singer initially planned to construct a 27-story dormitory; in a compromise with the New York City Landmarks Preservation Commission ("LPC"), Singer proposed to develop a 19-story dormitory, and filed applications for building permits with the DOB in the fall of 2004. (Id. ¶¶ 31-32) On November 29, 2004, DOB issued numerous objections to the applications for permits, including an objection requesting that – before any permits were issued – Plaintiffs "[s]ubstantiate dormitory use" by demonstrating that the building would not be used merely for residential apartments, but as a true dormitory.⁵ (Id. ¶ 33-34; Ex. 1 (Dkt. No. 55-1)) Plaintiffs requested reconsideration of the objections in a March 1, 2005 letter.⁶

On March 3, 2005, DOB issued a proposed rule to govern student dormitories under Use Group 3. The rule was adopted on March 16, 2005, as 1 RCNY § 51-01 ("Rule 51" or the "Dorm Rule"). (Am. Cmplt. (Dkt. No. 55) ¶¶ 40-41) According to the Dorm Rule's "Statement of Basis and Purpose," "[t]he rule is ... intended to give meaning to the phrase ‘student dormitory’ separate and distinct from other residential uses and is intended to codify the Department's current practice of requiring a ‘dormitory’ to have an institutional nexus to a school(s)." (Dorm Rule (Dkt. No. 55-2) at 4-5) Moreover, "[this] rule also addresses the difficulty the Department has experienced in enforcing compliance ... by identifying documentation that must be presented to the Department to distinguish a ‘student dormitory’ use and to help prevent its illegal conversion to a Use Group 2 housing type," (Id. )

The Rule provides:

a. Applicability. Student dormitory is classified under the Zoning Resolution of the City of New York as a Use Group 3, community facility use. The Zoning Resolution allows residences of all kinds, including residences for students, under a Use Group 2 classification. This rule sets out the criteria the Department shall use to designate a Class A building or part of a building as a Use Group 3 student dormitory....

b. Definition. A student dormitory is a building or part of a building that is (1) operated by, or on behalf of, institution(s) that provide full-time day instruction and a course of study [that fulfills certain requirements of the New York State Education Law]; (2) to house students enrolled at such institution(s)....

c. Required documentation. No permit shall be issued to create a student dormitory unless the following documentation has been submitted to the Department: (1) Proof of ownership or control. (a) Copies of documents demonstrating that the owner of the building or part of the building for which such permit is sought is an educational institution ... or (b) Copies of a lease of the building or part of the building for a minimum ten year term by an educational institution ... or (c) Copies of documents evidencing (i) the establishment of a non-profit entity, all of whose members ... are representatives of participating educational institutions ... to provide dormitory housing for students of such ... educational institutions; and (ii) ownership or control of the building or part of the building by such non-profit entity for such purpose in the form of a deed or lease for a minimum ten-year term." (3-4)

d. Restrictive Declaration. Proof of recording of a restrictive declaration executed by Owner of the real property and any other party who holds an enforceable recorded interest....

(Dorm Rule (Dkt. No. 55-2) at 3-4)

On March 21, 2005, the DOB issued a final determination on Plaintiffs' application for permits, sustaining its objections and explaining that

[a]s [Plaintiff] know[s], the Department requires an institutional nexus in order for construction to be classified as a dormitory. This is necessary to distinguish a ‘student dormitory’ which is a community facility use ... from other types of housing that are classified as Use Group 2, including buildings that house students.... To reflect the nexus, the Department asks for either a deed or a lease from a school.... Without a deed or lease with an educational institution, the Department is not satisfied that a dormitory use is being established.

(Ex. 1 (Dkt. No. 55-1) at 2-3) Plaintiff "ha[d] failed to submit the documentation requested by the Department to substantiate a dormitory use." (Id. at 3)

Plaintiffs appealed the DOB final determination to the Board of Standards and Appeals (the "BSA"). The BSA denied the appeal on October 18, 2005, concluding that "DOB's interpretation of the subject Z[one] R[esolution] provision is correct; and ... its refusal to lift the Objection ... is an appropriate exercise of its authority." (Ex. 2 (Dkt. No. 55-2) at 9) Plaintiffs then appealed the BSA decision, arguing the denial of the permits was arbitrary and capricious; the appeal proceeded to the New York Court of Appeals, which ruled in favor of the BSA.⁷

While Plaintiffs' appeal was pending, on June 20, 2006, the LPC made Old P.S. 64 a landmark. As a result of this decision, Plaintiffs are prohibited from constructing additional stories above five-floor Old P.S. 64. (Am. Cmplt. (Dkt. No. 55) ¶¶ 46-47)

B. The Cooper Union and Joffrey Ballet Proposal

On December 7, 2012, 9th & 10th Street LLC and The Cooper Union for the Advancement of Science and Art ("Cooper Union")⁸ entered into a fifteen-year lease. After the lease was amended in 2013, the lease encompassed the second and third floors of Old P.S. 64. Under the terms of the lease,⁹ Cooper Union would lease the entire second and third floors – which provide space for 196 beds – and would license those beds to its students.¹⁰ According to Plaintiffs, this is the "typical structure used for college dormitories in New York City." (Id. ¶¶ 52-57)

Plaintiffs applied for appropriate building permits in February 2013; demolition permits were issued the following month, and demolition work on the building commenced. (Id. ¶¶ 58, 64) Shortly thereafter, on April 30, 2013, then-City Councilwoman Rosie Mendez – who represents the district in which Old P.S. 64 is located (id. ¶ 21) – wrote a letter to DOB Deputy Director Steven A. Figueirido, objecting to Plaintiffs' project. (Id. ¶ 59, Ex, 3 (Dkt. No. 55-3)) The letter states: "[T]he community and I have extensive concerns that the contractual ‘lease agreement’ entered into by Cooper Union with Gregg Singer ... is[ ] (1) overbroad; (2) speculative; (3) non-conforming to the requirements of [the Dorm Rule] and (4) potentially lacking certain legal elements of a binding...