Singer v. The City Of New York

Background

Gregg Singer, Sing Fina Corp., and 9th & 10th Street LLC sued the City of New York, the New York City Department of Buildings, several officials, the Greenwich Village Society for Historic Preservation, Andrew Berman, Aaron Sosnick, and unidentified defendants. The amended complaint asserted claims under 42 U.S.C. §§ 1983, 1985(3), and 1986, including First Amendment retaliation, equal protection, substantive due process, an unconstitutional-conditions property claim, and conspiracy claims. It also asserted state-law claims for tortious interference with prospective economic advantage and defamation.

In a September 30, 2019 order, the court granted the defendants’ motions to dismiss and dismissed the amended complaint in its entirety. Among other things, the court held that the plaintiffs had not adequately alleged protected First Amendment conduct or a causal connection to the defendants’ actions; similarly situated comparators for their equal protection claims; a valid property interest or outrageous conduct for their substantive due process claim; or a taking for their unconstitutional-conditions claim. The court also dismissed the conspiracy claims because they depended on an underlying constitutional violation and declined to exercise supplemental jurisdiction over the state-law claims.

Plaintiffs’ Motion

After filing a notice of appeal, the plaintiffs moved under Federal Rules of Civil Procedure 59(e) and 60(b)(1), (2), and (6) to alter or amend the judgment and allow a second amended complaint. They relied on alleged new facts concerning lobbying agreements, donations, landmarking and rezoning efforts, public statements by Mayor Bill de Blasio, an attempted purchase of Old P.S. 64, and actions by the Department of Buildings. They also argued that the earlier order made factual and legal errors and that refusing relief would cause a manifest injustice.

The proposed second amended complaint added allegations and asserted additional equal protection, substantive due process, and unconstitutional-conditions theories. The court explained that reconsideration is an extraordinary remedy generally reserved for overlooked controlling law or facts, material mistakes, qualifying newly discovered evidence, or other exceptional circumstances. A proposed amendment may be denied as futile when it would not survive a motion to dismiss.

Court’s Analysis

The court held that none of the plaintiffs’ new allegations or arguments affected the reasoning of the 2019 dismissal order. The new allegations still did not identify protected expression or show that the defendants’ conduct was caused by the plaintiffs’ exercise of First Amendment rights. They also did not identify other development projects that were similarly situated to Old P.S. 64 in the detail required for either a selective-enforcement or class-of-one equal protection claim.

The court further held that the new allegations did not establish that the Department of Buildings lacked discretion to withhold the permits or that the defendants’ conduct was sufficiently outrageous or egregious to support a substantive due process claim. The plaintiffs’ unconstitutional-conditions claim still alleged a taking only in conclusory terms and did not plausibly show a taking under any theory. Because the alleged constitutional violations remained inadequately pleaded, the Section 1983 and Section 1985 conspiracy claims continued to fail, and the Section 1986 claim also failed because it depended on a valid Section 1985 claim.

The court also concluded that the proposed second amended complaint would not survive a motion to dismiss. Its new claims repeated the same deficiencies, including the lack of sufficiently described comparators, a valid property interest, outrageous conduct, or a plausible taking. The court stated that Rule 60(b)(6) did not provide an independent basis for relief because the plaintiffs’ arguments were addressed by other subsections of Rule 60(b), and it rejected the plaintiffs’ request to use Rule 15 as an independent basis to amend the final judgment.

Disposition

Judge Paul G. Gardephe denied the plaintiffs’ motion to alter or amend the judgment to allow them to file a second amended complaint. The Clerk was directed to terminate the motions pending at docket entries 105 and 106.