Singer v. City of N.Y.

Full title: Gregg SINGER, Sing Fina Corp., and 9th & 10th Street LLC, Plaintiffs, v…

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

Date published: Sep 30, 2019

417 F. Supp. 3d 297 (S.D.N.Y. 2019)

Opinion

18 Civ. 615 (PGG)

2019-09-30

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

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.

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

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

1 The following facts are drawn from the Amended Complaint and are presumed true for purposes of resolving Defendants' motions to dismiss. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 237 (2d Cir. 2007). "In assessing the legal sufficiency of [Plaintiffs'] claim[s] [on a motion to dismiss,]" the court may "consider ... the [Amended] [C]omplaint and any documents attached thereto or incorporated by reference and ‘documents upon which the [Amended] [C]omplaint relies heavily.’ " Bldg. Indus. Elec. Contractors Ass'n v. City of N.Y., 678 F.3d 184, 187 (2d Cir. 2012) (quoting In re Citigroup ERISA Litig., 662 F.3d 128, 135 (2d Cir. 2011) ) (internal quotation marks omitted).

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)

2 Singer is a member of the LLC; he is also the President of Plaintiff Sing Fina Corp., the entity that manages 9th & 10th Street LLC. (Am. Cmplt. (Dkt. No. 55) ¶¶ 14-16)

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)

3 "Use Group 3" facilities "consist[ ] of community facilities that: (1) may appropriately be located in residential areas to serve educational needs or to provide other essential services for the residents; or (2) can perform their activities more effectively in a residential environment ...; and (3) do not create significant objectionable influences in residential areas." (Zoning Resolution § 22-13)

4 At the time that Old P.S. 64 was purchased, the language permitting "college or school ... dormitories" omitted the word "student." The language was amended in 2004. (See App. to Amend Zoning Resolution, adopted July 28, 2004, available at https://www1.nyc.gov/assets/planning/download/pdf/about/cpc/040202.pdf) The distinction is not relevant to the motions addressed in this Order.

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

5 The Objection read: "Substantiate dormitory use (UG3). This use is permitted for ‘College or School Student’ Housing only as per Z[oning] R[esolution]. (Floors 3-19 indicates res. Apartments layout.)" (Am. Cmplt., Ex. 1 (Dkt. No. 55-1) at 2)

6 The letter argued – among other things – that DOB lacked authority "to condition issuance of a permit based upon speculation that the building will be operated contrary to permitted uses after it is constructed." (Ex. 1 (Dkt. No. 55-1) at 2)

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)

7 The Court of Appeals held that "[w]here there is reason to doubt that a proposed structure can be used for a lawful purpose, municipal authorities are not required to let the property owner build the building and see what happens." In this case, "officials reasonably fear[ed] that the legal use proposed for [the] building w[ould] prove impracticable." 9th & 10th St. L.L.C. v. Bd. of Standards & Appeals of City of New York, 10 N.Y.3d 264, 267, 269, 856 N.Y.S.2d 28, 885 N.E.2d 881 (2008). The court continued: "To seek ... assurances seems no more than prudent, It would create needless problems if petitioner built a 19 story building, only to find that it could not use it in a legally-permitted way. The City would then face a choice between waiving the legal restrictions and requiring the building to remain vacant or be torn down." Id. at 270, 856 N.Y.S.2d 28, 885 N.E.2d 881.

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)

8 Cooper Union satisfies the Dorm Rule definition of an "educational institution." (Am. Cmplt. (Dkt. No. 55) ¶ 54)

9 Although Plaintiffs have submitted many of the documents referenced in the Amended Complaint as exhibits to the pleading, they have not provided a copy of the Cooper Union lease.

10 The two-part structure involved both a "minimum rent" – an annual fixed amount paid based on the total number of beds leased; and a "student rent," a monthly amount paid per bed based on the number of beds Cooper Union actually licensed. (Am. Cmplt. (Dkt, No. 55) ¶ 56)

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 contract." (Ex. 3 (Dkt. No, 55-3) at 2) Mendez further explained that she had not been provided with an actual copy of the lease, but that the media reports discussing it "reveal a difference of understanding between Mr. Singer and Cooper Union with respect to the nature of the contractual ‘lease agreement.’ " Given these circumstances, Mendez "reiterate[d] [her] request that [DOB] review this application with precise scrutiny to make sure [the lease] meets all the provisions of the Dorm Rule," and "further request[ed] that the DOB refrain from approving this application until such time that the owner can demonstrate enforceable leases and Restrictive Declarations for all 500 rooms, as the Dorm Rule requires."¹¹ (Id. at 2-3 (emphases removed))

11 Councilwoman Mendez also expressed her disagreement with the project to the media. (See Am. Cmplt. (Dkt. No. 55) ¶ 63)

On May 3, 2013, the Joffrey Ballet Center, Inc. executed a lease for the ground and first floors of Old P.S. 64.¹² Joffrey is not an educational institution within the meaning of the Dorm Rule, but Joffrey is a "non-profit institution with sleeping accommodations" – a use that is one of the permissible Use Group 3 uses. (Id. ¶¶ 60-61) The lease "was structured the same way as the Cooper Union lease agreements," except that the lease was for a shorter, ten-year term and involved only 132 beds. (Id. ¶ 62) On August 8, 2013, Plaintiffs provided the Cooper Union and Joffrey leases to the DOB. (Id. ¶ 87)

12 Plaintiffs have not submitted this lease to the Court.

Councilwoman Mendez submitted a follow-up letter to DOB on April 24, 2014, shortly after obtaining the Cooper Union and Joffrey lease agreements. Mendez questioned the sufficiency of the Cooper lease agreement for Plaintiffs' proposed renovation on a number of grounds. Mendez argued that (1) the requisite institutional nexus was lacking; (2) to the extent a nexus existed, it was not "continuous," because Cooper Union was not entitled to use or occupy the premises over the summer months; and (3) the "lease" was more akin to a licensing agreement. (Ex. 5 (Dkt. No. 55-5) at 8) Nevertheless, on August 22, 2014, DOB issued a permit authorizing conversion of Old P.S. 64 to a student dormitory. (Am. Cmplt. (Dkt. No. 55) ¶¶ 58, 65; Ex. 4 (Dkt. No. 55-4))

On September 3, 2014, Councilwoman Mendez wrote another letter, addressed to DOB's Commissioner, on September 3, 2014. (Am. Cmplt. (Dkt. No. 55) ¶ 66; Ex. 5 (Dkt. No. 55-5)) Maintaining that it was "inconceivable that DOB ... issued a work permit without responding to [her two previous] letters ... and ignor[ed] [her] request to determine whether the Owner ha[d] complied with [the Dorm Rule]," Mendez expressed "grave concerns" about whether Joffrey qualified under Use Group 3, and "request[ed] a final determination concluding whether the Owner has complied with the Dorm Rule with regards to [Cooper Union]." (Ex. 5 (Dkt. No. 55-5)) Mendez repeated the arguments she made in her April 24, 2014 letter about the Cooper Union lease agreement; she also added several objections to the Joffrey lease.¹³

13 These objections included: (1) Joffrey might be a trade school – which did not qualify as Use Group 3; (2) Joffrey was not a "non-profit ... with sleeping accommodations," as required under Use Group 3, because "[t]he primary purpose of a non-profit institution with sleeping accommodations classified within Use Group 3 cannot be the provision of sleeping accommodations," and – based on floor plans Plaintiffs had provided – the Joffrey residents would use Old P.S. 64 primarily for that reason; (3) the lease permitted Joffrey to use a majority of its beds for for-profit purposes; and (4) if construed as an educational institution, the requisite institutional nexus was lacking. (Ex. 5 (Dkt. No. 55-5) at 3-7)

About three weeks after Mendez sent her September 3, 2014 letter to DOB, the DOB issued a Stop Work Order at Old P.S. 64. The order informed Plaintiffs that DOB "intends to revoke the approval and permit issued ... unless sufficient evidence is presented to the Department to demonstrate" that revocation was inappropriate. Along with the order, DOB provided a list of six objections to Plaintiffs' application. (Ex. 7 (Dkt. No. 55-7)) In two of the objections, DOB found that Plaintiffs had failed to comply with the Dorm Rule, because: (1) the Cooper Union lease provides that Cooper Union "shall not use the Premises or be responsible for the Premises" from June 1 to August 31 of each year, rendering it "not a lease for a minimum ten-year term with an educational institution...."; and (2) the lease provides that any beds not rented by Cooper during the rest of the year may "be rented by [the] Landlord to any other School and Tenant will not be responsible for such beds." (Id. ) BOD's other objections align with the concerns Councilwoman Mendez voiced in her September 3, 2014 letter. (Id. ) The same day that DOB issued the Stop Work Order and its objections, DOB Deputy Commissioner Fariello wrote to Mendez, informing her that "[t]he Department ha[d] examined [her] letter." DOB enclosed copies of its order and objections. (Ex. 6 (Dkt. No. 55-6))

Plaintiffs submitted responses to the objections on January 6, 2015. As to DOB's first objection, Plaintiffs modified their leases to provide that "[t]he term of this Lease ... shall expire ... on the last day of the month immediately preceding the fifteenth (15th) anniversary of the Rent Commencement Date ..."; as to the second, Plaintiffs modified the leases to provide that "Tenant agrees that any of Tenant's beds that are not licensed by Tenant to Tenant's students shall only be licensed by Tenant to institutions that" qualify under Rule 51 and lease and occupy space in the building. (Ex. 8 (Dkt. No. 55-8) at 4)

On June 17, 2015, Interim Deputy Borough Commissioner Joseph Bruno informed Plaintiffs that their "response and/or revised construction documents sufficiently demonstrate that the approval and permit should not be revoked," and rescinded the Stop Work Order and intent to revoke. (Id. at 2)

Two days after DOB rescinded the stop work order, DOB responded to Plaintiffs' request for a zoning resolution determination¹⁴ "concerning whether a portion of [a] student dormitory could also be occupied and used during summer months by non-matriculated students and student interns." (Am. Cmplt. (Dkt. No. 55) ¶ 83; Ex. 12 (Dkt. No. 55-12)) DOB found that "making the dormitory space available to non-matriculated students and student interns in those months ... is in keeping with the mission of an educational institution." (Ex. 12 (Dkt, No. 55-12) at 2) New work permits were issued on July 13, 2015. (Am. Cmplt. (Dkt. No. 55) ¶ 73; Ex, 9 (Dkt. No. 55-9))

14 According to Plaintiffs, a zoning resolution determination is a "binding interpretation or clarification of the Zoning Resolution." (Am. Cmplt. (Dkt. No. 55) ¶ 82)

On July 31, 2015, however, DOB issued a new objection,¹⁵ asserting that Plaintiffs' actual submission of the revised leases – which allegedly satisfied the DOB's objections – was "a prerequisite for permit issuance." Plaintiffs had not submitted the leases, and "[t]he previously submitted lease(s) do not fully agree with [the Dorm Rule]."¹⁶ (Ex. 10 (Dkt. No. 55-10)) DOB issued another Stop Work Order on August 4, 2015, and on October 21, 2015, DOB threatened to revoke the permits in the absence of submission of an updated lease with Cooper Union.¹⁷ (Am. Cmplt. (Dkt. No. 55) ¶¶ 76-77) Having received no updated lease, DOB revoked the permits on March 2, 2016. (Id. ¶ 78) The Amended Complaint does not explain why Plaintiffs never submitted the revised leases.

15 The Amended Complaint does not disclose any communication between Defendants and DOB between the issuance of the new work permits and DOB's issuance of the July 31, 2015 objection.

16 The Amended Complaint states that "DOB issued the 2015 Permits without first requiring the Plaintiffs to submit an updated lease with the newly approved lease language." (Am. Cmplt. (Dkt. No. 55) ¶ 74)

17 The Amended Complaint alleges that the Joffrey "dropped out [of] the picture soon after the Defendants became involved" and – in setting out the tortious interference claim – alleges that the Joffrey "cancelled [its] lease with Plaintiffs" "[a]s a result of the Defendants' interference" (Am. Cmplt. (Dkt. No. 55) ¶¶ 184, 355) Plaintiffs do not state when the Joffrey lease was terminated.

On May 26, 2016, DOB responded to another request from Plaintiffs for a zoning resolution determination. Plaintiffs asked whether "proof of a qualified lease agreement for a portion of the building is sufficient to allow the issuance of a Permit for the entire building." (Id. ¶ 85, Ex. 13 (Dkt. No. 55-13)) The Department "agree[d] that a Permit for [Old P.S. 64] ... may be issued upon submission of a lease, which otherwise meets the requirements of [the Dorm Rule], for a portion of the building and confirm[ed] that an application may be approved and a permit issued upon evidence of a lease for a portion of the [b]uilding." (Ex. 13 (Dkt. No. 55-13) at 2)

Defendant Andrew Berman – the Executive Director of the Greenwich Village Society for Historic Preservation (the "Society") (Am. Cmplt. (Dkt. No, 55) ¶ 23) – learned of DOB's determination. On June 29, 2016, Berman sent an email to, among others, Mendez; Mendez's staffer, Matthew Viggiano; Defendant and Councilwoman Carlina Rivera; Defendant Aaron Sosnick, the director of the East Village Community Coalition ("EVCC") (id. 24); and Basha Gerhards.¹⁸ The e-mail reads:

18 The Amended Complaint does not identify Gerhards, but the e-mails attached to the Amended Complaint indicate that she was employed by the Manhattan Borough President.

Rosie, Carina, Matt, and Basha,

If you have not seen it already, please find attached the recently issued DOB determination re: old PS 64. It appears they are going to issue permits for even the unleased portions of the building, allowing work to resume, and possible allow TCO[ ]s for the unleased portions as well. Additionally, they still refer to Joffrey as one of the lessees, even though (to my knowledge, and correct me if I am wrong) the issues we raised about Joffrey ... have never been addressed.... It's imperative that DOB hear from the two offices quickly about this, before we are in an irreversible situation. Would a joint letter from Rosie and Gale to DOB ASAP be possible?

(Ex. 16 (Dkt. No. 55-16))¹⁹

19 The "Gale" referenced in the e-mail appears to be Gale Brewer, then the Manhattan Borough President. (Am. Cmplt. (Dkt. No. 55) ¶ 126)

On July 15, 2016, Berman – copying Sosnick and two others – wrote Viggiano to "[t]hank[ ] [him] for the brief update about [his] recent meeting with the Mayor's office re: old PS 64," and asked him to "pass along what [he] said to [Berman]" so that "we are all on the same page and can discuss where we go from here." Berman received no response, and "follow[ed] up again" on July 19, 2016, writing that "[the Society] and EVCC would love to get more details on the meeting between your office and the Mayor's Office/DOB." (Ex. 18 (Dkt. No. 55-18) at 3) "As you know, we're very worried about what that DOB recent ruling would lead to for old PS 64 and elsewhere...." Sosnick chimed in later that day to "second how important EVCC feels that this is." (Id. at 2) Sosnick continued: "EVCC can have attorneys look into challenging this absurd DOB determination, but it would be much stronger knowing the DOB's reasoning and having the challenge come from the Council office. Saying that you can build an entire dorm when you have a lease for just one floor ... [is] a gutting of DOB's dorm rule." (Id. )

Viggiano responded to these e-mails the next day, July 20, 2016:

By way of an update, we met with the Mayor's Office of Legislative Affairs ["OLA"] on July 12th. We discussed ongoing problems with regard to DOB's lack of response to ou[r] letters and our concern with the documents.... While we didn't get into a philosophical argument about should or shouldn't a permit be issued for an entire Floor if there is a lessee that will only [be] occupying a portion, [OLA] did agree that there are issues and that they will direct DOB to look more closely at the issues we presented. To that end, the DOB will not be issuing any permits ... until a comprehensive review ... [is] undertaken. We have been assured of that by [OLA]....

(Ex. 17 (Dkt. No. 55-17) at 2)

Berman replied on July 22, 2016 that he and the Society were "glad to hear that the Mayor's office is saying that ... no approvals are imminent," but that they remained "very concerned that the DOB determination that permits can be issued for the entire building based upon having a valid lease for just a part of it opens a very troubling door, that will eventually have terrible ramifications." He went on to say that the determination undermined "what we all fought years to achieve ... stricter rules on dorms so that developers do not go back to the bad old days where they do work claiming they have a ‘dorm’ to occupy a space, but a legitimate one never materializes, and then the work is done." Berman concluded: "[A]n ounce of prevention is worth the proverbial pound of cure ... as once the work is done it is so much harder to reverse it. So we'd like to keep pushing on this determination and hopefully get[ ] it overturned.... As this has broader implications, perhaps it would make sense to include other elected officials in this who might also be concerned about this...." (Ex. 22 (Dkt. No. 55-22) at 3) Viggiano agreed that "the determination can be troubling ... and opens the door for potentially fraudulent uses." He noted that "[e]very time we have sent a letter to DOB we haven't gotten a written response," and stated that it "would be fine" if Berman "want[ed] to pull the rest of the elected community into a discussion on this." (Id. )

Plaintiffs maintain that – as evidenced by this email exchange – "an agreement formed among Defendants, with then-Councilmember Mendez's office acting as an intermediary, that regardless of the DOB's [May 26, 2016] interpretation of its own Zoning Resolution, the Mayor's OLA had determined that no progress would be made on the property." (Am. Cmplt. (Dkt. No. 55) ¶ 96)

On July 12, 2016 – the same day that Councilwoman Mendez's office "met with ... OLA" – Cooper Union "terminated the lease [with 9th & 10th Street LLC] instead of executing a new lease containing the language approved by ... DOB in connection with the work permits." (Id. ¶ 79) According to Plaintiffs, Cooper Union's decision to terminate the lease came in the face of "mounting pressure from Councilwoman Mendez, the City, and other Defendants." (Id. ) Mendez confirms that she had several phone conversations with Cooper Union personnel. (Ex. 11 (Dkt. No. 55-11))

C. The Adelphi Lease

On August 2, 2016, 9th & 10th Street LLC and Adelphi University executed a lease for the second and third floors of Old P.S. 64. (Id. ¶ 101) On August 11, 2016, Plaintiffs submitted this lease to DOB. (Id. ¶ 102) The lease was provided "numerous times to various people" at DOB, but after eight months, DOB had not responded to the submission. Plaintiffs assert, "[u]pon information and belief," that "taking [eight] months to review a lease is an unusual and unprecedented occurrence."²⁰ (Id. ¶¶ 103, 106)

20 Plaintiffs assert that, in "at least one instance," "a 10 year lease for a [Use Group 3] school dormitory was reviewed within a matter of a few days," (Am. Cmplt. (Dkt. No. 55) ¶ 106)

Meanwhile, local political figures continued to express opposition to the BOD's May 26, 2016 determination. On October 3, 2016, Mendez – along with Manhattan Borough President Gale Brewer, State Senator Brad Hoylman, and State Assemblyman Brian Kavanagh – wrote a letter to DOB, requesting that DOB rescind its determination. The letter states:

We believe [that] the ... determination was in error ... and fear it could set a dangerous precedent.... [T]he determination would allow the owner to succeed in a longstanding effort to circumvent the community use requirements for the entire building.... We therefore request that the DOB rescind this determination in order to protect both this historic building and all future deed restricted properties confined to community facility use..... We ... believe that permitting the building's owner to expend resources on improving portions of the building for which there is no defined course of action for their future use ... is not required by the [Dorm Rule] as interpreted by the State's highest court.

(Ex. 23 (Dkt. No. 55-23) at 2-3)

On November 19, 2016 – Councilwoman Rivera informed the Manhattan Borough President's community liaison that "[w]e recently met with the Mayor's Office to get an update and they are in the process of looking into a number of outstanding questions."²¹ (Ex. 25 (Dkt. No. 55-25)) On November 28, 2016, Berman wrote the liaison, Rivera, Mendez, and others that "[i]t's now been several weeks since our last contact, and we have not heard anything new about progress with the buildings department or a decision by elected officials about how to increase the pressure." (Ex. 24 (Dkt. No. 55-24)) He continued: "I don't want to wake up one day and find the Department ... has issued permits for the dorm ... based upon this faulty ruling.... Of course once those permits are issued, [it] will be so much harder to get them rescinded, and this really has implications that go far beyond old PS 64." (Id. ) Rivera replied that at a "meeting with the Mayor's Office a couple weeks ago," those present had "discuss[ed] a letter between [OLA] and Singer's firm," where Singer's firm complained that "the city had not put forward any community-friendly recommendations that [Plaintiffs] could at least consider." Rivera noted that OLA "has more information since this last check-in and we are following up with them to decide next steps...." (Id. )

21 This meeting appears to have taken place on November 7, 2016. (See Ex. 36 (Dkt. No. 55-36) at 3 ("Councilwoman Mendez met with [two members] of [the] City Legislative Affairs Office on July 12^th and November 7^th in 2016."))

On November 28, 2016, a representative of Adelphi University wrote a letter to Mayor de Blasio, seeking the Mayor's "help[ ] ... to expedite obtaining the requested building permit from the DOB," and explaining that it was "necessary for Adelphi ... to have its students move into [old P.S. 64] on time for the beginning of the Fall 2018 school year," because Adelphi was "increasing [their] Manhattan presence and having a dorm for Adelphi's students is critical to that mission."²² (Ex. 31 (Dkt. No. 55-31))

22 Adelphi University has a campus at 75 Varick Street in Manhattan. (Ex. 31 (Dkt. No. 55-31))

At about this time, Berman discovered the Adelphi lease in a DOB filing available on the City's website. (Am. Cmplt. (Dkt. No. 55) ¶ 177) On December 2, 2016, he e-mailed Rivera – copying others, including Mendez and the community liaison – notifying them that "Adelphi University now seems to be part of the mix for the ‘dorm’ plan." Berman stated that "[t]his is deeply concerning, especially since we were under the understanding that nothing about the plan was going to change or happen while the elected were in conversation with DOB and the City.... We really need to have a discussion about where things are with the city, the developer, the elected, and what can be done from here." (Ex. 26 (Dkt. No. 55-26)) Berman also proposed a conference call for December 5, 2016. (Id. ) Rivera responded, "clarif[ying] that the Mayor's Office is still in the communication phase with all parties involved." (Ex. 27 (Dkt. No. 55-27))

On December 5, 2016, a conference call took place. Participants included at least Berman and representatives from EVCC, Borough President Brewer, Mendez, Senator Hoylman, and Assemblyman Kavanagh. (Ex. 29 (Dkt. No. 55-29)) Plaintiffs maintain that, at this meeting, Defendants "hatch[ed] a plan to interfere with Adelphi and Plaintiffs' expressive message." (Am. Cmplt. (Dkt. No. 55) ¶ 178) The next day, Berman sent an email thanking everyone for the "very productive call." He continued: "We look forward to seeing the electeds' letter to the Mayor's office.... Once we have a copy of [Mendez's] prior letter to Cooper Union about PS 64, we can use that as a model for the community groups' letter to Adelphi." (Ex. 35 (Dkt. No. 55-35)) Berman also noted that Singer had hired a lobbyist "to lobby DOB about [Old P.S. 64], and that "based upon their filings, they have been lobbying them A LOT." (Id. (emphasis in original)) Sosnick, in response, added that "word is that Adelphi has already reached out to the Mayor's Office in favor of the dorm project." (Id. ) This "emphasizes the urgency for our electeds to reach out to the Mayor's Office to, at a minimum, insure that permits aren't issued ... based on just one side's lobbying." Sosnick also observed that it "seems urgent to reach out to Adelphi to let them know the history of the building and what they are walking into." (Id. ) Berman asked whether Rivera or another individual copied on the emails had "found [Mendez's] past letter to Cooper ... [,] that was vetted with the Council's lawyers[,] for us to use for our letter to Adelphi." (Id. ) Rivera responded that she "had not found a letter from [Mendez] to Cooper Union. She confirmed with me that many of those conversations happened via telephone and does not recall anything in writing." (Ex. 11 (Dkt. No. 55))

On December 16, 2016, the Society and EVCC sent a letter to Mendez, Borough President Brewer, Senator Hoylman, and Assemblyman Brian Kavanagh. The letter was a "follow up on [their] August 29th meeting and December 5th conference call ... regarding the commitment by elected officials to reach out in writing to Mayor de Blasio to urge him to reverse the May 26, 2016 ruling by the Department." The letter states that the DOB's "ruling contravenes the letter and spirit of [Rule 51], sets a dangerous precedent, and will allow unpermitted and undesirable uses to occupy this important building." (Ex. 29 (Dkt. No. 55-29)) The Society and EVCC state that it is "critical that the elected officials reach out to the Mayor immediately about this, as was agreed. Communications to and discussions with the [DOB] have unfortunately not le[ ]d to this ruling being reversed. Assurances from the [OLA] aside, we are very concerned that with this ruling in place, DOB might issue permits ... at any moment." (Id. ) Accordingly, the letter "urge[d] [the recipients] in the strongest of terms to send the letter discussed and agreed to." (Id. ) Berman continued to press the "electeds" by email; Rivera informed him on December 20, 2016 that "[o]ur offices ... are working on addressing all of the concerns we have on the DOB decision and Mayoral Intervention.... We will contact you once we have something to review." (Ex, 28 (Dkt. No, 55-28))

The requested letter – authored again by Mendez, Brewer, Kavanagh, and Hoylman – was sent to Mayor de Blasio on January 17, 2017. The letter notes that "Old PS 64 has sat vacant for over eighteen years since Mr. Singer purchased the building," and "has yet to be utilized for community benefit." Citing to Mendez's September 3, 2014 letter regarding the Cooper Union and Joffrey proposals, the letter characterizes Singer's history with the building as one of "potential non-compliance." "Given the history here, [the authors] are seriously concerned that the owner could attempt to engage in construction at this site that is inconsistent with either the Dormitory Rule or the deed restriction and that DOB might be complicit in allowing Singer to do so." (Ex. 36 (Dkt. No. 55-36) at 2) The authors go on to argue that the DOB's May 26, 2016 determination "is in error to the extent that it would allow any construction on the building to proceed that is not necessary to create a student dormitory pursuant to the Dormitory Rule." The letter also asserts that the Adelphi lease is "too speculative," and "that Singer has no intention of complying with the Dormitory Rule and the deed restrictions." (Id. at 2-3)

Meanwhile, Plaintiffs had not received a decision from BOD concerning the Adelphi lease, On April 6, 2017, Singer asked the DOB Commissioner about the status of the Department's review of the lease. (Am. Cmplt. (Dkt. No. 55) ¶¶ 105-06) On April 20, 2017, DOB issued three objections to the Adelphi lease; each objection concerned the lease's compliance with the Dorm Rule. (Id. ¶ 107-08; Ex. 19 (Dkt. No. 55-19) at 2) The objections were: (1) the lease's "obligation for the Tenant to rent just twenty beds ... out of 196 beds from Landlord renders the Lease insufficient to satisfy the ‘[p]roof of ownership or control’ requirement of [Rule 51] ... [and] as written, [the lease] is more properly viewed as an option to lease beds in any given year than a current leasehold obligation for those beds;" (2) an amendment to the lease is necessary "to state that if a Tenant desires to sublease unused beds to other educational institutions[,] ... such other educational institutions must have a dormitory in the subject building that complies with all the terms of [Rule 51]; and (3) the temporary certificate of occupancy for Adelphi's Varick Street campus required amendment to correctly designate Adelphi as a "college or university," rather than as an "ADULT TRADE SCHOOL" – which would not qualify as a Use Group 3 use. (Ex. 19 (Dkt, No. 55-19) at 2-3)

Plaintiffs responded to the objections on May 9, 2016, and submitted an executed Lease Modification Agreement meant to cure the issues DOB had raised. (Am. Cmplt. (Dkt. No. 55) ¶ 109) Plaintiffs and the Deputy Commissioner Bruno scheduled a meeting for May 17, 2017 to address the objections. (Id. ¶ 110) On May 15, 2017, Plaintiffs were "advised that [their] meeting ... ha[d] been canceled by DOB." (Ex. 20 (Dkt. No. 20) at 2) Plaintiffs expressed their disappointment in a letter that same day to a DOB lawyer, and reminded DOB that "[Adelphi] University has the right of terminating [the lease] in the event that the construction permit is not reinstated by June 1, 2017." (Id. )

On May 25, 2017, Plaintiffs again requested a meeting with DOB. They received no response, and on July 31, 2017, they wrote to Commissioner Chandler, addressing the objections and providing DOB with an executed Second Lease Modification Agreement dated June 22, 2017. (Am. Cmplt. (Dkt. No. 55) ¶ 116) The modified lease gave Adelphi exclusive control of the second and third floors for a non-revocable 10 year term, and featured a lease-and-license structure similar to the ultimately-terminated Cooper Union lease.²³ (Id. ¶¶ 117-18)

23 Plaintiffs explain:

First, Adelphi leases the entire second and third floors of Old P.S. 64 for a minimum rent of a fixed amount. Second, Adelphi then licenses the beds on its second and third floors to its students for a rent specified in the lease. Third, once Adelphi recoups the minimum rent amount it paid to 9th & 10th Street as the owner from the beds it licensed to its students, then any rent above and beyond that minimum amount goes to 9th & 10th Street as additional rent. Furthermore, if any of the beds on Adelphi's second or third floor remain unused, those beds will be licensed to other qualifying educational institutions by Adelphi through its designated agent (9th & 10th Street) as defined under the lease.

(Id. 119)

On August 22, 2017, in response to Plaintiffs' July 31, 2017 request and new lease submission, the DOB issued a new final determination. The new final determination was that neither the first nor second lease modifications gave Adelphi sufficient control over all of the leased beds.²⁴ DOB continued to maintain that the filings documenting the existing and proposed use of Adelphi's Varick Street campus needed correction to reflect an appropriate Use Group 3 use. (Ex. 30 (Dkt. No. 55-30) at 4) According to Plaintiffs, these objections are "meritless" and "irrelevant." (Am. Cmplt. (Dkt. No. 55) ¶¶ 122-23)

24 The new DOB determination points out, for example, that the new minimum rent requirement under the first lease modification is identical to "the rent initially contemplated for the minimum twenty (20) bed guarantee," and that "Adelphi still remains obligated ‘to ... notify Landlord of the number of beds that will be licensed by Tenant to Tenant's students for the following school year,’ with whatever rooms Adelphi is not using being made available to another university leasing space in the building." (Ex. 30 (Dkt. No. 55-30) at 3-4 (internal quotation marks omitted)) The second modification "merely adds the words ‘Tenant shall have exclusive use and control of all the Premises,’ " leaving the lease "still speculative [as to] whether Adelphi will use any of the 196 available beds." (Id. at 4)

On September 10, 2017, Plaintiff Singer "happened to run into Mayor de Blasio in Tompkins Square Park," and "attempted to explain that Plaintiffs had complied with" the Dorm Rule. (Id. ¶ 142) Mayor de Blasio acknowledged that he was aware of the dispute, and deemed the situation "complicated." (Id. ) Singer followed up with a September 14, 2017 letter to the Mayor, in which Singer stated that Plaintiffs

need a building permit to immediately start the renovation.... We have answered all of the DOB's objections but they refuse to issue the building permit.... We are not looking to remove or change our Deed Restriction.... I, Adelphi and the community at large would greatly appreciate your personal attention to seeing that we get the building permit as soon as possible.... We all just need leadership from City Hall

because the City's agencies have failed so far....

(Ex. 31 (Dkt. No. 55-31) at 2-3) A week later, Plaintiffs appealed the DOB final determination to the BSA. (Am. Cmplt. (Dkt. No. 55) ¶ 124) On October 11, 2017, however, Adelphi – allegedly pressured by Defendants – exercised its right to terminate its lease with 9th & 10th Street LLC. (Id. ¶ 140)

Singer received a reply to his September 14, 2017 letter to Mayor de Blasio on October 23, 2017. The reply came from DOB, and offered Singer the option of requesting an appointment with DOB. (Id. ¶¶ 142-43, Ex. 32 (Dkt. No. 55-32)) On November 8, 2017, Singer requested an appointment, but Deputy Commissioner Bruno responded on November 16, 2016, stating that "[u]nless [Plaintiffs] satisf[ied] the objections or obtain[ed] relief at BSA there is no way forward for the referenced job. I do not feel that a meeting is warranted at this time." (Ex. 30 (Dkt. No. 55-30))

Plaintiffs' BSA appeal of the DOB's August 22, 2017 final determination remains pending.

II. PROCEDURAL HISTORY

On December 20, 2017, Plaintiffs filed a declaratory judgment action in Supreme Court of the State of New York, New York County, seeking a declaration as to whether the Dorm Rule applied to its current iteration of the proposed renovation of Old P.S. 64. (Am. Cmplt. (Dkt. No. 55) ¶¶ 148, 43 n.1; 9th & 10th Street LLC v. The City of New York et al., Index No. 161272/2017 (N.Y. Sup. Ct. 2017)) On February 8, 2019, this suit was dismissed as unripe. (See 9th & 10th Street LLC, Index No. 161272/2017 (Doc. No. 55))

On January 24, 2018, Plaintiffs filed the Complaint in the instant action. (Cmplt. (Dkt. No. 1)) The Amended Complaint was filed on June 22, 2018. (Am. Complt. (Dkt. No. 55)) The Amended Complaint asserts six claims pursuant to Section 1983 : (1) First Amendment retaliation; (2) an equal protection claim, on a theory of selective enforcement; (3) an equal protection claim, on a "class of one" theory; (4) a substantive due process claim; (5) an "unconstitutional conditions doctrine" claim; and (6) a Section 1983 conspiracy claim. Plaintiffs also allege conspiracy claim pursuant to Section 1985(3), and a claim pursuant to Section 1986. Finally, Plaintiffs assert state law claims for tortious interference with prospective economic advantage – against the Society and the individual defendants – and defamation against Berman and the Society. (Id. ¶¶ 165-377) The City Defendants, Berman and the Society, and Sosnick have moved to dismiss the Amended Complaint. (City Mot. (Dkt. No. 76); Berman Mot. (Dkt. No. 80); Sosnick Mot. (Dkt. No. 84))

DISCUSSION

I. LEGAL STANDARD

"To survive a motion to dismiss [pursuant to Fed. R. Civ. P. 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "In considering a motion to dismiss ..., the court is to accept as true all facts alleged in the complaint," Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) ), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006) ). A complaint is inadequately pled "if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement,’ " Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ), and does not provide factual allegations sufficient "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ).

"When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' amended complaint, ... to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

II. ANALYSIS

A. Ripeness

The Berman Defendants and Defendant Sosnick argue that some or all of Plaintiffs' claims are not ripe for review, both because Plaintiffs' appeal to the BSA of the DOB's August 22, 2017 is still pending, and because – at the time Defendants' briefs were filed – the state declaratory judgment action was also pending. (Berman Br. (Dkt. No. 81) at 18-22; Sosnick Br. (Dkt. No. 85) at 21-24) The City Defendants do not raise this argument in their moving brief. As noted, the state declaratory action has been resolved.

"Determining whether a case is ripe generally requires [courts] to ‘evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ " Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347 (2d Cir. 2005) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ). "This two-prong inquiry ... tracks both the doctrine's Article III and prudential underpinnings. The ‘fitness of the issues for judicial decision’ prong ... requires a weighing of the sensitivity of the issues presented and whether there exists a need for further factual development. ... [T]he ‘hardship to the parties’ prong clearly injects prudential considerations into the mix...." Id. (citations omitted).

"In Williamson County [Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985) ], the Supreme Court held that a takings dispute is not ripe unless (1) the state regulatory entity has rendered a ‘final decision regarding the application of the regulations to the property at issue,’ and (2) the plaintiff has sought compensation by means of available state proceedings." Dean v. Town of Hempstead, 163 F. Supp. 3d 59, 77 (E.D.N.Y. 2016) (quoting Williamson County, 473 U.S. at 186, 194, 105 S.Ct. 3108 ). The Supreme Court recently overruled the second prong of the Williamson County analysis. See Knick v. Twp. of Scott, Pennsylvania, ––– U.S. ––––, 139 S. Ct. 2162, 2179, 204 L.Ed.2d 558 (2019) ("The state-litigation requirement of Williamson County is overruled. A property owner may bring a takings claim under § 1983 upon the taking of his property without just compensation by a local government.") Here, Defendants argue that the first prong of the Williamson County test has not been satisfied, because Plaintiffs' BSA appeal remains pending.

The Williamson County test "is a prudential rather than a jurisdictional rule," and courts "may determine that in some instances, the rule should not apply...." Sherman v. Town of Chester, 752 F.3d 554, 561 (2d Cir. 2014). The Court declines to apply the first prong of the Williamson County test here, for several reasons. First, "the Supreme Court developed the Williamson County ripeness test in the context of a regulatory takings challenge." Murphy, 402 F.3d at 349. Although the test has since been extended and is applied to claims – including substantive due process, equal protection, and First Amendment claims arising from the same events as the Takings claim, see Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002), the allegations in this case do not well fit the circumstances present in Williamson County and subsequent cases.

At the heart of this case are allegations of improper actions on the part of private citizens and City officials to influence the DOB. Part of the logic underpinning the first prong of the Williamson County test is the proposition that a court cannot effectively analyze a Takings claim "until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question." Williamson County, 473 U.S. at 191, 105 S.Ct. 3108. That logic is not strongly implicated here: for the most part, the allegations against Defendants do not "raise a question of administrative finality." Dougherty, 282 F.3d at 90 (declining to apply the Williamson County analysis to a First Amendment retaliation claim where the plaintiff "suffered an injury at the moment the defendants revoked his permit, and [his] pursuit of a further administrative decision would do nothing to further define his injury.")

Second and relatedly, the first prong is also premised on the notion that a final decision "aids in the development of a full record." Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 348 (2d Cir. 2005). Here, however, the record is not lacking: there is little a final BSA decision could add to the record that would assist the Court in ruling on Plaintiffs' claims.

Finally, the matter has been pending before the BSA for more than two years, and there is no indication when the BSA will issue a decision.

Accordingly, the Court will address Plaintiffs' claims on the merits.

B. First Amendment Retaliation ²⁵

25 The individual defendants and the Society argue, with respect to Plaintiffs' Section 1983 claims, that they are not state actors. (Sosnick Br. (Dkt. No. 85) at 29-33; Berman Br. (Dkt. No. 81) at 22-27, 30-31) This Court need not address whether the Plaintiffs have successfully pleaded state action as to these defendants, because the Court dismisses these claims on other grounds.

According to the Amended Complaint, "[i]n petitioning the various branches of government through emails, letters, and other forms of communication ..., the Plaintiffs and their tenants jointly associated for the First-Amendment-protected, expressive purpose of communicating a specific idea both to the government and the public in general: Old P.S. 64's legacy is best served by being renovated into a student dormitory." (Am. Cmplt. (Dkt. No. 55) ¶ 172) Defendants "directly, purposefully, and in retaliatory fashion interfered with Plaintiff's First Amendment rights by crippling its pro-dorm message and ability to associate for expressive and economic purposes with future tenants." (Id. ¶ 199) The City Defendants contend that "[P]laintiffs' claimed ‘message’ amounts to nothing more than submission of an application for a building permit to an administrative agency for [P]laintiffs' financial gain," and that, in any event, Plaintiffs cannot show either causation or that their speech was chilled. (City Br. (Dkt. No. 78) at 31-32) Sosnick and the Society Defendants also assert that Plaintiffs do not sufficiently plead First Amendment retaliation. (Sosnick Br. (Dkt. No. 85) at 25-26; Berman Br. (Dkt. No. 81) at 26-27)

"To plead a First Amendment retaliation claim[,] a plaintiff must show: (1) he has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by his exercise of that right; and (3) the defendant's actions caused him some injury." Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) ; see also Hampton Bays Connections, Inc. v. Duffy, 127 F. Supp. 2d 364, 372 (E.D.N.Y. 2001) ("To establish a First Amendment retaliation claim under section 1983, a plaintiff must show (1) conduct by the plaintiff that is protected by the First Amendment, and (2) that the defendant's conduct was motivated by or substantially caused by the plaintiff's exercise of free speech.").²⁶

26 While plaintiffs "typically must allege some chilling of [their] speech," the Second Circuit has clarified that – in the context of suits alleging failure to enforce zoning laws – Plaintiffs need not show such "chilling" where they demonstrate "some other concrete harm." Dorsett, 732 F.3d at 160 ; see also Schubert v. City of Rye, 775 F. Supp. 2d 689, 712 (S.D.N.Y. 2011) ("Plaintiffs need not demonstrate actual chilling of speech" where they allege that "their property has been damaged by Defendants' allegedly retaliatory failure to enforce local land-use regulations").

Plaintiffs' First Amendment claim is centered on Adelphi University's involvement in Plaintiffs' plans for Old P.S. 64. According to Plaintiffs,

[f]rom the very beginning, the Defendants targeted Adelphi because of its First Amendment protected conduct and its expressive association with the dorm message for the purpose of squelching [Adelphi's] speech. As soon as Adelphi became affiliated with the dorm message, Defendants undertook a concerted, persistent, and retaliatory plan to stifle Plaintiffs' dorm speech by intentionally destroying its expressive association with Adelphi.

(Am. Cmplt (Dkt. No. 55) ¶¶ 175-76)

In support of these allegations, Plaintiffs point to a December 5, 2016 meeting, at which Defendants "hatch[ed] a plan to interfere with Adelphi and Plaintiffs' expressive message." (Id. ¶ 178) "In other words, in retaliation to Adelphi's joint lobbying, communications, and petitioning of government[,] all of which is First Amendment protected activity, the Defendants' immediate reaction was to engage in purposeful, targeted, and threatening acts, aside from engaging in their own advocacy, that would let Adelphi know ‘what they [were] walking into.’ " (Id. ¶ 181) "As a result ... Adelphi's speech, and therefore Plaintiffs' speech, was actually chilled when [Adelphi] cancelled its lease with Plaintiffs ... and disassociated with Plaintiffs' dorm related advocacy." (Id. ¶ 193)

Plaintiffs do not clearly articulate the nature of the First Amendment right they exercised, and for which they suffered retaliation. Plaintiffs variously invoke the right to free expression, the right to expressive association, and the right to petition the government for redress of grievances. They have not sufficiently pled any such protected conduct, however.

As to free expression, apart from Plaintiffs' characterization of their and Adelphi's conduct as expressing a "pro-dorm message," nothing in the facts Plaintiffs allege, or in the numerous exhibits Plaintiffs attach to the Amended Complaint, reflects an expression that the "legacy [of P.S. 64] is best served by [it] being renovated into a student dormitory."²⁷ (Am. Cmplt. (Dkt. No. 55) ¶ 172)

27 The document that most nearly approaches such a message is Adelphi's November 28, 2016 letter to Mayor de Blasio. (Ex. 31 (Dkt. No. 55-31)) But that letter merely expresses Adelphi's need for expedited approval, for the school's own practical purposes. The letter does not convey a general "pro-dorm message."

As to petitioning the government, "[t]he Second Circuit ... has suggested that ... appl[ying] for proposed development, do[es] not [constitute a protected activity]." In the Matter of the Application of Hampshire Recreation, LLC v. Vill. of Mamaroneck, No. 14-CV-7228 (CS), 2016 WL 1181727, at *9 (S.D.N.Y. Mar. 25, 2016) (citing Ridgeview Partners, LLC v. Entwhistle, 227 F. App'x 80, 80-82 (2d Cir. 2007) (summary order) (the "claim that appellees have violated [appellant's] right to petition the government ... is legally insufficient because appellant's site-plan application does not purport ‘to complain to public officials [or] to seek administrative [or] judicial relief from their actions’ ")), aff'd sub nom. Hampshire Recreation, LLC v. The Vill. of Mamaroneck, 664 F. App'x 98 (2d Cir. 2016) (summary order); see also Old St. George's LLC v. Bianco, No. 08 CIV. 5321 (SCR) (LMS), 2009 WL 8668386, at *5 (S.D.N.Y. May 8, 2009) ("Plaintiffs' application for inclusion of their property in the Westchester County Agricultural District is not conduct protected by the First Amendment right to petition government for the redress of grievances."), aff'd, 389 F. App'x 33 (2d Cir. 2010) (summary order).

Finally, as to expressive association, "to come within [the] ambit" of the First Amendment's protection of this right, "a group must engage in some form of expression." Boy Scouts of Am. v. Dale, 530 U.S. 640, 648, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). In other words, in order for Plaintiffs to make out an expressive association claim, they must plead facts demonstrating that Plaintiffs and Adelphi associated to advance the "pro-dorm message" to which the Amended Complaint refers. But Plaintiffs have not pled sufficient facts to make out such a claim.

Even if Plaintiffs had pled facts demonstrating that they exercised their rights to free expression, petition, and expressive association, their First Amendment claims fail at the next step of the analysis; Plaintiffs cannot show that Defendants' actions "were motivated or substantially caused by" the exercise of any of these rights. Dorsett, 732 F.3d at 160. As Plaintiffs assert at the outset of the Amended Complaint, "[t]his case is about a fight for ... a permit spanning nearly two decades." (Am. Cmplt. (Dkt. No. 55) ¶ 1) Plaintiffs describe – at great length – efforts on at least the DOB's part to block Plaintiffs' plans for Old P.S. 64 that date back to 2004. (See, e.g., id. ¶¶ 32-40) Plaintiffs detail Defendant Mendez's involvement in opposing the project since 2013. (Id. ¶¶ 59, 63) And Plaintiffs set out the remaining Defendants' participation in this opposition beginning in June 2016. (Id. ¶ 92)

All of this alleged conduct took place before Adelphi executed a lease with 9th & 10th Street LLC, however, and well before Plaintiffs allege Defendants learned of Adelphi's involvement in December 2016. (Id. ¶¶ 93, 101, 177) Indeed, Plaintiffs allege that as of at least July 20, 2016 – before the initial Adelphi lease was executed – "an agreement formed among Defendants ..., that ... no progress would be made on [Old P.S. 64]." (Id. ¶ 96)

Assuming the truth of Plaintiffs' factual allegations, Defendants' actions to oppose the construction of a student dormitory at Old P.S. 64 cannot have been "substantially motivated or caused by" Plaintiffs' and Adelphi's exercise of their First Amendment rights. Defendants' alleged conduct long preceded Adelphi's involvement. See Vill. of Mamaroneck, 2016 WL 1181727, at *10 ("[I]t is obvious that protected activity must precede any purported retaliation to plead a claim of First Amendment retaliation."); Parkash v. Town of Se., No. 10 CV 8098 (VB), 2011 WL 5142669, at *7 (S.D.N.Y. Sept. 30, 2011) ("Plaintiffs fail adequately to allege a causal connection between the zoning enforcement and plaintiffs' political speech. At the most basic level, defendants' allegedly retaliatory actions must occur later in time than plaintiffs' protected speech."), aff'd, 468 F. App'x 80 (2d Cir. 2012) (summary order); see also Musco Propane, LLP v. Town of Wolcott Planning & Zoning Comm'n, 536 F. App'x 35, 39 (2d Cir. 2013) (summary order) ("Musco's own recounting of events makes clear that the adverse actions began with the Zoning Commission's ‘discovery’ of the relevant provisions of the Zoning Regulations – which happened well before Musco ... engaged in any protected speech.").

Accordingly, Defendants' motion to dismiss the First Amendment retaliation claim will be granted.

C. Equal Protection

Plaintiffs assert two equal protection claims, premised on selective enforcement and "class-of-one" theories. (Am. Cmplt. (Dkt. No. 55) ¶¶ 214 – 268) In support of these claims, Plaintiffs contend that – although the Adelphi lease was structured similarly to the Cooper Union lease for which the DOB had initially issued permits – DOB "refused to issue the same kind of permits for the Adelphi lease." (Id. ¶¶ 223, 251) Plaintiffs also complain that the DOB "subjected Plaintiff[s] to an abnormally long and tedious review process different [than] that of other similarly situated school dorm projects." (Id. ¶¶ 224, 252) Finally, Plaintiffs allege that DOB took "the opposite stance" with respect to the Adelphi lease as compared to other school dorm projects. (Id. ¶¶ 229, 257)

Defendants have moved to dismiss these claims on the grounds that Plaintiffs have not sufficiently alleged that they were treated differently from others similarly situated, and – as to the "class-of-one" claim – Plaintiffs do not meet the stringent pleading requirements for that cause of action. (See City Br. (Dkt. No. 78) at 24-26, 28-29; Berman Br. (Dkt. No. 81) at 27-28; Sosnick Br. (Dkt. No. 85) at 26-28) Defendants also argue that Plaintiffs have not sufficiently pled bad faith or motive. (See City Br. (Dkt. No. 78) at 26-27; Berman Br. (Dkt. No. 81) at 28; Sosnick Br. (Dkt. No. 85) ¶¶ 26-27)

"To state a claim for selective enforcement, a plaintiff must allege facts supporting a conclusion that 1) he was ‘treated differently from other similarly situated’ comparators, and 2) ‘that such differential treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.’ " Missere v. Gross, 826 F. Supp. 2d 542, 560 (S.D.N.Y. 2011) (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 790 (2d Cir. 2007), and citing Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) ). To state a class-of-one claim, a plaintiff similarly must "allege facts showing that the plaintiff ‘has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.’ " Id. (quoting Analytical Diagnostics Labs. Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010) ).

"Both selective enforcement and class of one claims require a showing of similarly situated individuals or groups who were treated differently," but it is "unsettled whether" they "require the same ... degree of similarity." Witt v. Vill. of Mamaroneck, No. 12-CV-8778 (ER), 2015 WL 1427206, at *5 (S.D.N.Y. Mar. 27, 2015). The Second Circuit has "made clear that, in a ‘class of one’ case, ‘plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.’ " Id. (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) ). Under that exacting standard, "[a] plaintiff is required to show that (1) ‘no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy;’ and (2) ‘the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.’ " Id. (quoting Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 60 (2d Cir. 2010) ).

There is "disagreement within the Second Circuit," however, "regarding the degree of similarity that a plaintiff must show in order to adequately allege an equal protection claim under the selective enforcement theory." Id. Some courts "require the same high degree of similarity," while others apply a " ‘slightly less stringent’ standard," under which "plaintiffs must show that the comparators are ‘similarly situated in all material respects.’ " Id. (quoting Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley Hills, 815 F. Supp. 2d 679, 696 (S.D.N.Y. 2011) ), Under the more lenient standard, " ‘[t]he test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated.... Exact correlation is neither likely or necessary, but the cases must be fair congeners.’ " Mosdos Chofetz Chaim, 815 F.Supp.2d at 696 (quoting T.S. Haulers, Inc. v. Town of Riverhead, 190 F. Supp. 2d 455, 463 (E.D.N.Y. 2002) ).

Here, this Court need not resolve whether the more lenient standard should apply, because Plaintiffs' allegations are insufficient under either standard. With respect to alleged comparators, the Amended Complaint alleges only that the DOB (1) treated the Adelphi lease differently from the Cooper Union lease, in that DOB issued permits for Cooper Union lease but not for the Adelphi lease; and (2) did not subject student dormitories at seven Manhattan locations to "the same, tedious level of scrutiny" that DOB applied to Plaintiffs' proposal.²⁸ (Am. Cmplt. (Dkt. No. 55) ¶¶ 223, 224, 237, 251, 252, 265)

28 The locations of the seven other student dormitories are: 200 East 6th Street; 120 East 12th Street; 318 East 15th Street; 407 First Avenue; 33 Beekman Street; 182 Broadway; and 555 10th Avenue. (Am. Cmplt. (Dkt. No. 55) ¶¶ 237, 265)

Plaintiffs' allegations are not sufficient to show that the other student dormitory projects are "similarly situated in all material respects" to the Old P.S. 64 project, much less that there is an "extremely high degree of similarity between" the project and its comparators. As to the alleged difference in treatment afforded to the Adelphi lease and the Cooper Union lease, Plaintiffs ignore the fact that DOB revoked the permits issued in connection with the Cooper Union lease. (Am. Cmplt. (Dkt. No. 55) ¶ 78) In any event, while Plaintiffs insist that "[t]here is no closer comparison than comparing the renovation of Old P.S. 64 under the Adelphi lease to a previous version of itself under the Cooper Union lease," Plaintiffs only assert that the leases "contained the same kind of two[-]part structure." (Pltf. Opp. Br. (Dkt. No. 83) at 21; see also Am. Cmplt. (Dkt. No. 55) ¶ 117 ("[T]he final [Adelphi] lease is structured similar to the aforementioned former lease with Cooper Union, which contained a two-part leasing/licensing structure.")) This allegation is not sufficient to demonstrate that the leases "are similarly situated in all material respects."²⁹ Mosdos Chofetz Chaim, 815 F. Supp. 2d at 696.

29 Indeed, Plaintiffs' exhibits show that one of the DOB's continuing objections to the Adelphi lease was that "the college or university use of 75 Varick Street [Adelphi's Manhattan Campus] remains unclear in the paperwork filed with the Department." (Ex. 30 (Dkt. No. 55-30) at 4) That paperwork reflects uses that are not permissible Use Group 3 uses. (Id. ) Another DOB objection was that the Adelphi lease did not satisfy the "proof of ownership and control" requirement of the Dorm Rule, as the lease initially only required Adelphi to rent 20 – out of 196 – beds. (Id. at 3-4) Even after amendment, the Adelphi lease contained provisions inconsistent with demonstrating that Adelphi had "ownership or control" over the leased space. (Id. ) Plaintiffs do not allege that the Cooper Union lease contained the same or similar provisions.

As to the seven other student dormitory projects approved without "the same, tedious level of scrutiny," Plaintiffs allege nothing about these projects or the considerations involved in the review and approval process.³⁰ See Filipowski v. Vill. of Greenwood Lake, No, 10–CV–1753 (CS), 2013 WL 3357174, *7-8 & n.13 (July 3, 2013) (finding that real estate developers had not sufficiently alleged comparator similarity under either the "class of one" or selective enforcement standards, where they had not described the nature of the structures built on comparator properties, the zoning of those properties, or any other details relevant to the claim such as lot size or slope). Accordingly, Defendants' motions to dismiss Plaintiffs' Equal Protection claims will be granted.

30 Nor do Plaintiffs make any effort to explain the similarities between these projects and the Old P.S. 64 project.

D. Substantive Due Process

Plaintiffs allege that their due process rights were violated when their building permits for Old P.S. 64 were revoked, and when building permits were never issued at all. (Am. Cmplt. (Dkt. No. 55) ¶¶ 272-273) Defendants contend that Plaintiffs do not sufficiently allege that they have a property right in a building permit, or that Defendants acted arbitrarily or irrationally in revoking or refusing to issue such permits. (See City Br. (Dkt. No, 78) at 16-19; Berman Br. (Dkt. No. 81) at 28-29; Sosnick Br. (Dkt. No. 85) at 28)

To state a substantive due process claim based on the denial of the building permit, Plaintiffs "must allege, first, that [they] possessed a ‘valid property interest’ – that is, a property interest ‘protected’ within the meaning of the Fourteenth Amendment – and, second, that Defendants infringed upon that interest in an arbitrary or irrational manner." Stahl York Ave. Co., LLC v. City of N.Y., No. 14 CIV. 7665 (ER), 2015 WL 2445071, at *13 (S.D.N.Y. May 21, 2015).

With respect to the first requirement, the Second Circuit applies "a strict ‘entitlement’ test to determine whether a party's interest ... is protectable under the Fourteenth Amendment." Zahra, 48 F.3d at 680. Under that test, " ‘to establish a federally protectable property interest in a state or local permit,’ a plaintiff must demonstrate that ‘there was no uncertainty regarding his entitlement to it under applicable state or local law, and [that] the issuing authority had no discretion to withhold it in his particular case.’ " Stahl York Ave. Co., 2015 WL 2445071, at *13 (quoting Natale v. Town of Ridgefield, 170 F.3d 258, 263 n.1 (2d Cir. 1999) ); see also Clubside, Inc., 468 F.3d at 154 ("[O]ur precedent makes clear that the analysis of whether a landowner has a protectable property interest in a particular land use benefit focuses on the degree of official discretion and not on the probability of its favorable exercise.") (internal quotation marks and citations omitted). "[I]n almost all cases, the existence of a federally protectable property right is an issue of law for the court," Cunney v. Bd. of Trustees of Vill. of Grand View, 56 F. Supp. 3d 470, 494 (S.D.N.Y. 2014) (internal quotation marks and citations omitted), "[b]ecause the focus of this inquiry is on the degree of the issuing agency's official discretion," DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 132 (2d Cir. 1998). As to the second requirement, the "arbitrary or irrational" standard is met only where "official conduct [is] outrageous and egregious under the circumstances." Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007) ; see also Ruston v. Town Bd. for Town of Skaneateles, No. 5:06-CV-927 (FJS/GHL), 2008 WL 5423038, at *5 (N.D.N.Y. Dec. 24, 2008) ("Substantive due process is an outer limit on governmental action; therefore, it does not forbid arbitrary and capricious conduct correctable in a state-court review of an administrative action.").

Here, Plaintiffs allege that they "have a valid property interest in a building permit that will allow Old P.S. 64 to be renovated into a dorm," and a "legitimate claim of entitlement, and absent the denial of due process, there is a very strong likelihood that the application for the permit should have been granted [or] ... not revoked[ ]." (Am. Cmplt. (Dkt. No. 55) ¶¶ 272, 276) The Amended Complaint does not allege that DOB "had no discretion to withhold [the permits] in [their] particular case," however. Stahl York Ave. Co., 2015 WL 2445071, at *13.

Defendants argue that DOB has broad discretion to issue permits. (See City Br. (Dkt. No. 78) at 16-19; Berman Br. (Dkt. No. 81) at 28-29; Sosnick Br. (Dkt. No. 85) at 28) According to the City Defendants, the New York City Charter and New York City Administrative Code

necessarily grant DOB broad discretionary authority to consider, analyze, and where appropriate, deny applications for building permits. In determining whether a permit should be issued, DOB must assess the facts regarding a proposed development, interpret the [Zoning Resolution], Building Code, and other relevant rules, and order the correction of violations.... Once satisfied that the proposed structure complies ... DOB must issue a building permit.

(City Br. (Dkt. No. 78) at 17)

Plaintiffs agree that "[t]he DOB only issues permits when it is satisfied that all requirements have been met" (Pltf. Opp. Br. (Dkt. No. 83) at 15 (citing N.Y.C. Admin. Code § 28-104.1 (DOB "shall not use a permit pursuant to this code ... unless and until it approves all required construction documents for such work"); id. § 28-104.2 (DOB "shall examine construction documents ... for compliance with the provisions of this code and other applicable laws and rules")).) Plaintiffs deny, however, that DOB's authority to assess compliance with applicable law qualifies as "discretion." Because "DOB must issue a building permit" once the Department is satisfied that the relevant requirements have been met. (Id. )

Courts in this Circuit have rejected Plaintiffs' interpretation of "discretion" in this context, however. Courts have concluded that an agency charged with issuing permits has discretion sufficient to deny a claim of entitlement to a permit where the agency is tasked with determining an application's compliance with applicable laws and regulations – even where, upon a showing of compliance, issuance of the permit is mandatory.

In Cunney v. Board of Trustees of Village of Grand View, 56 F. Supp. 3d 470 (S.D.N.Y. 2014), for example, the court addressed whether a village zoning law vesting the Building Inspector with authority to issue a certificate of occupancy for a building that the Building Inspector found "in conformity with the laws, rules, and regulations of the State of New York and of [the Village Zoning Law]" had discretion such that Plaintiffs could not claim a property right in the permit. Cunney, 56 F. Supp. 3d at 496 (internal quotation marks and citation omitted).

Under the village zoning law, "the Building Inspector was required to issue" a certificate of occupancy upon finding compliance. Id. The court acknowledged that "[i]n this way, the [law] appears to have significantly limited the Building Inspector's discretion once he [makes] a determination of compliance or non-compliance," id., but emphasized that the law "gives the Building Inspector discretion to make a determination of conformity or non-conformity." Id. at 497. The court concluded that "Plaintiff's claim fails because of the degree of discretion that could have been applied to his application." Id. at 501.

Similarly, in Nardiello v. Town of Oyster Bay, No. CV 15-292, 2016 WL 1464557 (E.D.N.Y. Apr. 12, 2016), the court "disagree[d] that Plaintiffs had ‘clear entitlement’ to a permit" where a town code governing the issuance of building permits provided that if "it appears that the proposed work [described in the application for a building permit] will be in compliance with the provisions of this chapter and other laws applicable thereto, and that the proposed construction or work will be safe, that application will be approved and a building permit issued." Nardiello, 2016 WL 1464557, at *4-5. The court reasoned: "While the language does state that the application ‘will be approved,’ such approval is based on a determination that ‘the proposed work will be in compliance’ and ‘safe,’ This language amounts to discretion in the issuing authority to determine if the proposed work complies and is safe, and therefore whether the permit should issue." Id. at *5 ; see also C.C.S.com USA, Inc. v. Gerhauser, 518 F. App'x 1, 3 (2d Cir. 2013) (summary order) (denying that plaintiff had a property interest in an unissued permit where, "before issuing a building permit, Brookhaven's chief building inspector ... was required to determine whether any code violations existed on the property in question.... Here, [plaintiff] had to do more than make a pro forma submission to secure a permit; it had to demonstrate to the Building Division that no violations existed on its property") (emphasis in original).

Plaintiffs agree that DOB – like the Building Inspector in Cunney and the town officials in Nardiello – is responsible for determining whether the application conforms to all required laws and regulations. (See Pltf. Opp. Br. (Dkt. No. 83) at 15) Because this responsibly "amounts to discretion in the issuing authority to determine ... whether the permit should issue," Nardiello, 2016 WL 1464557, at *5, Plaintiffs cannot establish a property interest in the building permits.³¹ In any event, Plaintiffs have not sufficiently pled the second prong of the substantive due process analysis; that Defendants' "official conduct [is] outrageous and egregious under the circumstances." Lombardi, 485 F.3d at 81. The Amended Complaint asserts that "Defendants ... deprived the Plaintiffs of [the permits] in a way that is so outrageously arbitrary, conscience shocking, and oppressive in a constitutional sense as to be a gross abuse of government authority," and that the Defendants' conduct was "selective, spiteful, [and] targeted," and amounted to "differential treatment." (Am. Cmplt. (Dkt. No. 55) ¶¶ 278, 286) "These types of allegations of ‘improper motives’ and ‘selective enforcement’ on the part of municipal officials fall into the ‘non-conscience-shocking category[ ].’ " Rankel v. Town of Somers, 999 F. Supp. 2d 527, 547 (S.D.N.Y. 2014) (quoting Ruston, 2008 WL 5423038, at *5 (dismissing substantive due process claim for failure to state a claim where "[p]laintiffs' allegations ... consist mostly of delaying tactics, denial of sewage connections, and selective enforcement of a ... policy")); see id. ("Plaintiff's incantation of the words ‘arbitrary and capricious’ and ‘utterly irrational and so outrageous’ is insufficient.").

31 Nor is the outcome different where a building permit is issued and subsequently revoked. The Administrative Code gives DOB discretion to revoke permits, providing that the DOB "may, on written notice to the permit holder, revoke any permit for failure to comply with the provisions of this code or other applicable laws and rules; or wherever there has been any false statement or any [material] misrepresentation ... in the application or submittal documents upon the basis of which such approval was issued; or whenever a permit has been issued in error and conditions are such that the permit should not have been issued." N.Y.C. Admin, Code § 28-105.10. See A.B.C. Home Furnishings, Inc. v. Town of E. Hampton, 947 F. Supp. 635, 645 (E.D.N.Y. 1996) ("Both the Town Code, and the permit application expressly provide that the permit ‘may’ be revoked under certain circumstances.... The Court finds, as a matter of law, that this permissive language, given its plain meaning, provides the defendants with sufficient discretion in the determination as to whether to revoke a permit to defeat [plaintiff's] claim of a property interest in the ... permit. Accordingly, the defendants' motion to dismiss [the] substantive due process claim is granted.").

Plaintiffs contend that "other substantive due process cases have survived motions to dismiss with much less." (Pltf. Opp. Br. (Dkt. No. 83) at 19) But none of the (out-of-Circuit) cases Plaintiffs cite for this proposition – Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988) ; Cordeco Dev. Corp. v. Santiago Vasquez, 539 F.2d 256 (1st Cir. 1976) ; Marks v. City of Chesapeake, 883 F.2d 308 (4th Cir. 1989), and J.W. v. City of Tacoma, 720 F.2d 1126 (9th Cir. 1983) – involve a motion to dismiss, and none discuss the adequacy of a pleading's substantive due process claim.³² The Court concludes that Plaintiffs have not demonstrated a property interest in the building permits at issue. Moreover, even if Plaintiffs had such an interest, they have not sufficiently alleged that Defendants acted arbitrarily and irrationally in declining to issue or in revoking the permits at issue. Accordingly, Defendants' motion to dismiss Plaintiffs' substantive due process claim will be granted.

32 Cordeco Development Corp. involves an equal protection claim, not a substantive due process claim. Cordeco Dev. Corp., 539 F.2d at 259. Bateson involves an appeal of a trial court's judgment – following a bench trial – sustaining a substantive due process claim. In Bateson, the Ninth Circuit agreed that a city council had violated plaintiff's due process rights where plaintiff "met all of the requirements necessary for the City to issue him a building permit," and where the city council "voted to withhold Bateson's building permit without providing Bateson any process" – even though "[the relevant] regulations do not provide for review by the City Council before a building permit can issue." Bateson, 857 F.2d at 1303. Marks affirms a district court's judgment that denial of an application for a permit to operate a palmistry business violated plaintiff's substantive due process rights, where he demonstrated that the deliberations preceding the denial were "so tainted by impermissible religious considerations that its denial was arbitrary and capricious." Marks, 883 F.2d at 311. Finally, J.W. involves an as-applied constitutional challenge to a municipal zoning ordinance. The Ninth Circuit concluded that "an ordinance that imposes special disabilities upon residences for former mental patients must receive heightened review." J.W., 720 F.2d at 1128. Applying this "heightened" review, the Ninth Circuit determined that "the decision to deny [the] permit [was not] related to the substantial state interest that justifies the discriminatory classification." Id. at 1131.
In sum, these cases are devoid of any discussion of the requirements for pleading a substantive due process claim and are also factually dissimilar to Plaintiffs' case.

E. Unconstitutional Conditions Doctrine

Plaintiffs contend that Defendants "will continue to use their authority and influence to obstruct the Plaintiffs, no matter what kind of project Plaintiffs propose, unless Plaintiffs concede to either (1) return the building to New York City for use as a public community center[,] or (2) agree to renovate Old P.S. 64 into a community center for public use." (Am. Cmplt. (Dkt. No. 55) ¶ 303) The Defendants have thus "conditioned the issuance and maintenance of a building permit ... upon the Plaintiffs' allowing Old P.S. 64 to be a community center for public use." (Id. ¶ 305) Plaintiffs further allege that the Defendants' conduct amounts to "an unconstitutional condition" in violation of the Takings Clause. (Id. ¶¶ 306-07)

The unconstitutional conditions doctrine "vindicates the Constitution's enumerated rights by preventing the government from coercing people into giving them up." Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604, 133 S.Ct. 2586, 186 L.Ed.2d 697 (2013). A "special application" of this doctrine "protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits." Id. The development of this "special application" "reflect[s] two realities": first, "that land-use permit applicants are especially vulnerable to ... coercion ... because the government often has broad discretion to deny a permit that is worth far more than property it would like to take"; and second, "that many proposed land uses threaten to impose costs on the public that dedications of property can offset." Id. at 604-05, 133 S.Ct. 2586. The Supreme Court's unconstitutional conditions doctrine jurisprudence in the Takings Clause context "accommodate[s] both realities by allowing the government to condition approval of a permit on the dedication of property to the public so long as there is a ‘nexus’ and ‘rough proportionality’ between the property that the government demands and the social costs of the proposal." Id. at 605-06, 133 S.Ct. 2586. "[R]egardless of whether the government ultimately succeeds in pressuring someone into forfeiting a constitutional right, the unconstitutional conditions doctrine forbids burdening the Constitution's enumerated rights by coercively withholding benefits from those who exercise them." Id. at 606, 133 S.Ct. 2586. As this language suggests, the premise of an unconstitutional conditions claim in the Takings Clause context is that the imposition of the condition in question would constitute a "taking without just compensation" if the Government were to impose such a condition without the requisite nexus. See id. at 612, 133 S.Ct. 2586 (" ‘A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure the person into doing.’ ") (quoting Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59-60, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ); see also Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 548, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) ("In [the Supreme Court's Takings Clause unconstitutional conditions jurisprudence] the Court began with the premise that, had the government simply appropriated the easement in question, this would have been a per se physical taking.")

As an initial matter, Plaintiffs have cited no authority for the proposition that an unconstitutional conditions doctrine claim is cognizable where a government agency provides reasons for its denial of a permit – reasons Plaintiffs do not contend constitute unconstitutional conditions – and the alleged condition is unofficial and implicit. This Court has found no such case. Even assuming that such a claim can be premised on an implied condition inconsistent with the stated reasons for denial of a permit, any such claim would not succeed here, because Plaintiffs do not sufficiently plead that the alleged condition amounts to a taking.

A plaintiff seeking to allege an unconstitutional taking claim "may proceed under [multiple] theories." Lingle, 544 U.S. at 548, 125 S.Ct. 2074. "A party may allege a ‘physical’ taking ‘where [the] government requires an owner to suffer a permanent physical invasion of her property.’ " Apartment Ass'n of Greater Los Angeles v. City of Beverly Hills, No. CV 18-6840 PSG (Ex), 2019 WL 1930136, at *6 (C.D. Cal. Apr. 17, 2019) (quoting Lingle, 544 U.S. at 538, 125 S.Ct. 2074 ). Regulation that "denies all economically beneficial or productive use of [Plaintiff's] land" also constitutes a "taking." Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992), A plaintiff may also allege a "regulatory taking," whereby the government's regulation "has diminished the value of property to an unconstitutional level." Apartment Ass'n of Greater Los Angeles, 2019 WL 1930136, at *6 (citing Penn Central Transp. Co. v. City of N.Y., 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) ).³³ "[A] restriction on the use of property [generally] is not a taking ..., unless it goes so far as to be a regulatory taking under Penn Central Transportation Co." Home Builders Ass'n of Greater Chicago v. City of Chicago, 213 F. Supp. 3d 1019, 1024 (N.D. Ill. 2016) ; see also California Bldg. Indus. Assn. v. City of San Jose, 61 Cal.4th 435, 189 Cal.Rptr.3d 475, 351 P.3d 974, 991 (2015) ("As a general matter, so long as a land use regulation does not constitute a physical taking or deprive a property owner of all viable economic use of the property, such a restriction does not violate the takings clause insofar as it governs a property owner's future use of his or her property.").

33 "The Penn Central analysis of a non-categorical taking requires an intensive ad hoc inquiry into the circumstances of each particular case." Sherman v. Town of Chester, 752 F.3d 554, 565 (2d Cir. 2014) (internal quotation marks and citation omitted). "We weigh three factors to determine whether the interference with property rises to the level of a taking: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action." Id. (internal quotation marks and citation omitted).

Here – assuming arguendo that Plaintiffs have adequately pled the existence of an alleged condition – the Amended Complaint pleads no allegations suggesting (1) that the imposition of the alleged condition would result in the "diminish[ment] [of] the value of [Old P.S. 64] to an unconstitutional level," or (2) any of the alternative effects requisite for establishing a taking. Apartment Ass'n of Greater Los Angeles, 2019 WL 1930136, at *6. Indeed, Plaintiffs do no more than assert, in entirely conclusory fashion, that "[a]cceding to the Defendants' condition ... would constitute a taking under applicable law." (Am. Cmplt. (Dkt. No. 55) ¶ 308) This allegation is not sufficient to allege a taking. See Kabrovski v. City of Rochester, 149 F. Supp. 3d 413, 424-425 (W.D.N.Y. 2015) (dismissing regulatory takings claim where the complaint, inter alia, "does not indicate the economic impact that the Defendants' actions have had on the Plaintiff, except in vague and conclusory terms," and "fails to explain how Defendants' actions have interfered with Plaintiffs' ‘reasonable investment-backed expectations’ "); DC3, LLC v. Town of Geneva, 783 F. Supp. 2d 418, 423 (W.D.N.Y. 2011) (dismissing takings claim where "[plaintiff] does not allege that the entire subject property has lost its value or been deprived of all economic use"). Absent the pleading of facts sufficient to demonstrate a "taking," an unconstitutional conditions doctrine claim fails, See California Bldg. Indus. Assn., 189 Cal.Rptr.3d 475, 351 P.3d at 993 ("Where a restriction on the use of property would not constitute a taking of property without just compensation if imposed outside of the permit process, a permit condition imposing such a use restriction does not require a permit applicant to give up the constitutional right to just compensation in order to obtain the permit and thus does not ... bring into play the unconstitutional conditions doctrine."); see also Hotop v. City of San Jose, No. 18-CV-02024-LHK, 2018 WL 4850405, at *7 (N.D. Cal. Oct. 4, 2018) ("Plaintiffs have not adequately alleged that the Ordinance's disclosure requirements violate Plaintiffs' Fourth Amendment rights. Absent a Fourth Amendment right that Plaintiffs are forced to waive, Plaintiffs cannot state an unconstitutional conditions claim."); State v. Netland, 762 N.W.2d 202, 211-12 (Minn. 2009) ("The [unconstitutional conditions doctrine] is properly raised only when a party has successfully pleaded the merits of the underlying constitutional government infringement."), abrogated on other grounds by Missouri v. McNeely, 569 U.S. 141, 156, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696 (2013). Accordingly, Defendants' motion to dismiss Plaintiffs' unconstitutional conditions doctrine claim will be granted.

F. Section 1983 and Section 1985 Conspiracy Claims

Plaintiffs allege that Defendants "conspired amongst themselves to deprive Plaintiffs of their Equal Protection, Substantive Due Process, and First Amendment rights" and "creat[ed] an unconstitutional condition under the Takings Clause of the Fifth Amendment," in violation of Section 1983, and "acted in concert to inflict ... unconstitutional equal protection injuries," in violation of Section 1985(3). (Am. Cmplt. (Dkt. No. 55) ¶¶ 320, 332) The City Defendants argue that these claims fail, because "plaintiffs have failed to plead an underlying constitutional violation."³⁴ (City Def. Br. (Dkt. No. 78) at 34)

34 The Society Defendants and Sosnick urge dismissal of these claims on other grounds.

"To establish a claim for a [ Section] 1983 conspiracy, Plaintiffs must demonstrate: ‘(1) an agreement between a state actor and a private party; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.’ " Phillips v. Cty. of Orange, 894 F. Supp. 2d 345, 381 (S.D.N.Y. 2012) (quoting Ciambriello v. Cty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002) ). Moreover, "[a] valid claim of conspiracy under [ Section] 1983 to violate a complainant's constitutional rights must contain allegations [demonstrating an] ... actual deprivation of constitutional rights." Romer v. Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000). "A violated constitutional right is a natural prerequisite to a claim of conspiracy to violate such right"; accordingly, "if a plaintiff cannot sufficiently allege a violation of his rights, it follows that he cannot sustain a claim of conspiracy to violate those rights." Id. (citing Malsh v. Austin, 901 F. Supp. 757, 765 (S.D.N.Y. 1995)) ; see also Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009), as amended (Oct. 7, 2009) ("Because neither of the underlying section 1983 causes of action can be established, the claim for conspiracy also fails.") (citing Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) ).

To plead a claim under Section 1985(3), a plaintiff must allege: " ‘(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, ...; (3) an act in furtherance of the conspiracy; (4) whereby a person is ... deprived of any right of a citizen of the United States.’ " Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam )) (alterations in Brown ). "A section 1985(3) conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Britt v. Garcia, 457 F.3d 264, 270 n.4 (2d Cir. 2006) (internal quotation marks and citation omitted), "As with Section 1983 conspiracy claims, Section 1985 claims require a showing of an underlying constitutional violation." Edwards v. Horn, No. 10 CIV. 6194 (RJS) (JLC), 2012 WL 473481, at *19 (S.D.N.Y. Feb. 14, 2012) (citing Okoh v. Sullivan, No. 10 Civ. 2547 (SAS), 2011 WL 672420, at *4 (S.D.N.Y. Feb. 24, 2011), aff'd, 441 F. App'x 813 (2d Cir. 2011) (summary order)); Bishop v. Best Buy, Co., No. 08 Civ. 8426 (LBS), 2010 WL 4159566, at *13 (S.D.N.Y. Oct. 13, 2010), report and recommendation adopted, No. 10 CIV. 6194 (RJS) (JLC), 2012 WL 760172 (S.D.N.Y. Mar. 8, 2012).

As discussed above, Plaintiffs have not sufficiently pled any of the constitutional violations that underlie their Section 1983 and Section 1985(3) claims. Accordingly, Plaintiffs' conspiracy claims fail as a matter of law, and Defendants' motions to dismiss these claims will be granted.

G. Action for Neglect to Prevent

Plaintiffs allege that Defendants knew of the alleged Section 1985(3) conspiracy and "failed to terminate and/or prevent its execution, even though they each had the power to prevent or aid in preventing its commission with reasonable diligence," in violation of 42 U.S.C. § 1986. (Am. Cmplt. (Dkt. No. 55) ¶ 345)

" Section 1986 imposes liability on individuals who have knowledge of a conspiracy under [ Section] 1985, but fail to take action to prevent [the conspiracy]." Jenkins v. New York City Dep't of Educ., No. 10 CV 6159 (BSJ) (THK), 2011 WL 5451711, at *5 (S.D.N.Y. Nov. 9, 2011) (citing 42 U.S.C. § 1986 ), aff'd, 508 F. App'x 66 (2d Cir. 2013) (summary order). "[A] [Section] 1986 claim is contingent on a valid [ Section] 1985 claim." Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996). As Plaintiffs have not pled a valid Section 1985 claim here, the Section 1986 claim is also dismissed. See Jenkins, 2011 WL 5451711, at *5 ; Graham, 89 F.3d at 82.

H. State Law Claims

Plaintiffs assert two state law claims: tortious interference with prospective economic advantage – against the individual defendants and the Society – and defamation per se, against Berman and the Society. (Am. Cmplt. (Dkt. No. 55) ¶¶ 347-77) Defendants urge this Court to decline to exercise supplemental jurisdiction over these claims, in the absence of any remaining federal claims. (City Br. (Dkt. No. 78) at 41-42); (Berman Br. (Dkt. No. 81) at 34-35; Sosnick Br. (Dkt. No. 85) at 35)

Under 28 U.S.C. § 1367(a), "in any civil action of which the [federal] district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims ... [that] form part of the same case or controversy under Article III of the United States Constitution," However, a district court "may decline to exercise supplemental jurisdiction over a claim ... [if] the district court has dismissed all claims over which it has original jurisdiction." See 28 U.S.C. § 1367(c)(3) ; see also Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("[W]hen a court grants a motion to dismiss for failure to state a federal claim, the court generally retains discretion to exercise supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, over pendent state-law claims."); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine ... will point toward declining to exercise jurisdiction over the remaining state-law claims."); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ("[I]f the federal claims are dismissed before trial ... the state claims should be dismissed as well.").

Because the Court has dismissed Plaintiffs' federal claims, it declines to exercise supplemental jurisdiction over their remaining state law claims.

CONCLUSION

For the reasons stated above, Defendants' motions to dismiss Plaintiffs' federal claims are granted, and the Court declines to exercise supplemental jurisdiction over Plaintiffs' state law claims. Any remaining motions are denied as moot. The Clerk of Court is directed to terminate the motions (Dkt. Nos. 76, 80, 84) and to close this case.

SO ORDERED.