Weissman Real Estate v. BIG V

• Decision Date: 08 May 2000
• Citation: 268 A.D.2d 101,707 N.Y.S.2d 647
• Court: New York Supreme Court — Appellate Division
• Parties: ALFRED WEISSMAN REAL ESTATE, INC., Respondent-Appellant,<BR>v.<BR>BIG V SUPERMARKETS, INC., et al., Appellants-Respondents.

268 A.D.2d 101

707 N.Y.S.2d 647

ALFRED WEISSMAN REAL ESTATE, INC., Respondent-Appellant,

v.BIG V SUPERMARKETS, INC., et al., Appellants-Respondents.

May 8, 2000.

Simpson Thacher & Bartlett, New York City (David J. Woll, Nancy L. Swift, Patrick E. King, Nina L. Rifkind and Robert F. Cusumano of counsel), for Big V Supermarkets, Inc., appellant-respondent.

Whiteman Osterman & Hanna, Albany (Philip H. Gitlen and David R. Everett of counsel), for Matthew D. Rudikoff Associates, Inc., appellant-respondent.

Cahill, Gordon & Reindel, New York City (P. Kevin Castel of counsel), for Suburban Properties, Inc., appellant-respondent.

Burke, McGlinn & Miele, Suffern (Patrick T. Burke and James Sweeney, pro se, of counsel), for James Sweeney, appellant-respondent.

Bleakley Platt & Schmidt, White Plains (William P. Harrington, Mark K. Malone and Helen M. Maher of counsel), for respondent-appellant.

SULLIVAN, J. P., KRAUSMAN and H. MILLER, JJ., concur.

OPINION OF THE COURT

S. MILLER, J.

The primary issue raised on this appeal pits fundamental rights to petition the government for private redress against the rights of a property owner to put its land to a reasonable commercial use. Specifically, we are asked to decide whether the plaintiff is entitled to recover damages and to obtain other relief as a consequence of the defendants' manipulation of the governmental process, the object of which was to prevent a business rival from gaining necessary approvals so as to preclude the rival from opening a competing business. Notwithstanding that such a goal appears to fly in the face of notions of fair play and free-market competition, where such object is achieved through the governmental process, we hold that the plaintiff is not entitled to judicial relief.

I

The plaintiff, Alfred Weissman Real Estate, Inc. (hereinafter Weissman), is a Yonkers-based real estate developer. In August 1995, Weissman entered into a conditional agreement with Saks Fifth Avenue (hereinafter Saks) to purchase a piece of property on Tuckahoe Road in Yonkers (hereinafter the site). For 15 years, the site had been occupied by a single warehouse. Weissman planned to develop a shopping center on the site and to lease space to retail tenants, including a supermarket. To accomplish this plan, Weissman had to obtain a change in the current zoning of the site from commercial to retail. According to Weissman, Tuckahoe Road in Yonkers has historically been a retail corridor. A strip mall, which contains a Staples store (and previously containing a Finast Supermarket) is immediately adjacent to the site. Weissman's agreement with Saks was contingent upon obtaining the zoning change.

The defendant Big V Supermarkets, Inc. (hereinafter Big V) sought to become the supermarket tenant at the site. Big V already operated a ShopRite supermarket on Tuckahoe Road, approximately one-half mile away from the site.

On October 10, 1995, Weissman's representatives met with Big V representatives to discuss Big V's interest in the site. According to Weissman, Big V wanted the site because it had greater parking capacity and was closer to Central Avenue, and it did not want a competing supermarket to lease space at the site. At this meeting, Weissman was allegedly warned that if it did not lease the site to Big V, the project would not get built.

On December 22, 1995, Big V submitted a formal lease proposal. Big V wanted Weissman to take a 50% interest in the ShopRite property that Big V already operated down the road. An agreement between the two could not be reached. Although Weissman determined that Big V had an inadequate credit rating to obtain the necessary financing, Big V refused to have its parent company, Wakefern Food Corporation, guarantee Big V's financial obligations.

In October 1996, Weissman entered into an agreement with Stop & Shop, a competitor of Big V, to lease the supermarket space at the site. Stop & Shop's parent company guaranteed the lease. On August 4, 1997, Weissman entered into an agreement with Target Stores for another portion of the site. Both of these contracts were dependent upon Weissman obtaining a zone change of the site from commercial to retail.

In January of 1996, Weissman submitted its initial proposed zone change application for the site to the Yonkers City Council and embarked upon the SEQRA review process under the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]). In March 1996, Weissman submitted an amended petition.

At some point during the process, Big V hired the defendant Matthew D. Rudikoff Associates, Inc. (hereinafter Rudikoff), to "perform work related to a proposed commercial rezoning and retail center on Tuckahoe Road." Rudikoff's objective was "to extend the review process, to promote opposition efforts to delay or deny the project, and to document substantive and procedural flaws in support of either a project denial or potential litigation." In Weissman's words, Rudikoff's job was to derail its proposed commercial rezoning of the site.

Weissman charged that Big V and Rudikoff fabricated an entity, the defendant Suburban Properties, Inc. (hereinafter Suburban), as a corporate shell, in order to create standing to oppose the project. Weissman further alleged that the defendants also created the Association for the Preservation of Tuckahoe Road (hereinafter the APTR) and the Coalition to Protect the Grassy Sprain Neighborhoods (hereinafter the CPGSN). According to Weissman, the APTR was a neighborhood association headed by Albert Reitano, the manager of Big V's ShopRite store on Tuckahoe Road. The CPGSN was a neighborhood group formed to disseminate to the public pamphlets containing misleading and disparaging information about Weissman and the site. Weissman acknowledged that certain "legitimate" community groups also have opposed and/or commented on the project citing fears of increased traffic congestion, noise, pollution, and damage to neighborhood character.

In February 1997, Rudikoff submitted a letter to Vincenza Restiano, President of the Yonkers City Council, indicating that it was conducting an "independent review" of the project on behalf of APTR. Rudikoff stated that "the residents of the City of Yonkers are concerned with the effects of commercial development and congestion." It also commented on the proposed scope of issues to be addressed in the draft environmental impact statement (hereinafter DEIS) for the project, including the project's impact on traffic, air quality, and waste generation. In October 1997, Rudikoff submitted written comments on the DEIS, addressing, inter alia, traffic impacts. Such issues were also raised by other members of the public and various agencies, including the Westchester County Planning Board and the New York State Thruway Authority (hereinafter Thruway Authority). Specifically, on February 5, 1997, the Westchester County Planning Board requested that the Traffic and Transportation section be expanded so as to require the study and analysis of all "signalized" intersections along the Tuckahoe Road corridor because of the impact that a project of this size may have. On February 28, 1997, the Tuckahoe Watchdog Group requested, inter alia, a traffic analysis of intersections along Tuckahoe Road, a noise analysis, and a detailed market study. On September 30, 1997, the Thruway Authority requested, inter alia, a queuing analysis and a traffic signal progression analysis.

Between February and April 1998, Rudikoff submitted several letters to the Yonkers Planning Board (hereinafter Planning Board) commenting on the final environmental impact statement and the proposed zone change, citing concerns about traffic.

On May 13, 1998, the Planning Board, although finding that Weissman's application was "handled extremely well and extremely professionally," voted 4 to 3 to disapprove its rezoning proposal, expressing particular concern with the impact of the proposed development on traffic conditions along Tuckahoe Road. The Planning Board found that the existing traffic problems along Tuckahoe Road warranted a denial of the project. The Board indicated that the City, County, and State could "arguably make significant improvements on Tuckahoe Road" and that "[t]hese improvements would then be in place" for future applicants. In response, Weissman submitted an amended proposal which offered to implement over $3,000,000 in traffic improvements on Tuckahoe Road to alleviate the potential traffic impacts which were identified. On July 9, 1998, the Planning Board expressed its concern over the proposal's impact on traffic conditions, but unanimously agreed to permit Weissman to make additional submissions regarding the mitigation of traffic problems. The Planning Board scheduled another meeting on this issue. Subsequently, the Yonkers City Council rejected Weissman's final economic impact statement as incomplete.

On July 16, 1998, Weissman commenced this action against Big V, Rudikoff, Suburban, and James Sweeney, the attorney for Big V, asserting five causes of action: (1) tortious interference with a contract, (2) tortious interference with prospective economic advantage, (3) prima facie tort, (4) deceptive trade practices in violation of General Business Law § 349, and (5) a claim for declaratory and injunctive relief, enjoining the defendants from any further participation in the SEQRA review process and public hearings on its zone change application.

On or about July 23, 1998, Weissman moved, inter alia, for a temporary restraining order and to preliminarily enjoin the defendants from participating in any further public hearings on its application for a zone change. In response, the defendants cross-moved, inter alia, to dismiss the complaint for failure to state a cause of action. The defendants asserted, among other things, that their participation in the public review of Weissman's project was protected speech under the First Amendment of the United States...