# Opposition Brief — 640 Broadway Renaissance Company v. Governor of the State of New York, Mayor of the City of New York; Chairman of the New York City Loft Board; Commissioner of the New York City Department of Buildings; . . . 500 U.S. 933 (1991) (No. 90-1522)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 933

## Text

Pisa oon Oa

FILED
©) | APR 25 V991

No. 90-1522 ~—/“

IN THE GF THE CLERK
SUPREME COURT OF THE UNITED sTukee ©

OCTOBER TERM, 1990

640 BROADWAY RENAISSANCE COMPANY,
Debtor in Possession, Petitioner,

“—.%
MARIO CUOMO, as Governor of the State of
New York, et al.,
Respondents,
-and-
PHOEBE RENTSCHLER, et al.,
Defendants.

BRIEF OF MUNICIPAL RESPONDENTS IN
OPPOSITION TO A PETITION FOR A WRIT
OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT

VICTOR A. KOVNER,
Corporation Counsel of the
City of New York,

Attorney for Municipal
Respondents,

100 Church Street,

New York, New York 10007.

(212) 788-1038 or 1068

LEONARD J. KOERNER, *
ELLEN B. FISHMAN,
TRUDI MARA SCHLEIFER,
of Counsel.
*Attorney of Record

April 25, 1991.

COUNTER-STATEMENT OF
QUESTIONS PRESENTED

1. Was petitioner's challenge to the
constitutionality of Article 7-C of the New
York State Multiple Dwelling Law, §§ 280 et
seq. (the "Loft Law"), under the Due
Process and Equal Protection clauses of the
Fourteenth Amendment, the Taking Clause of
the Fifth and Fourteenth Amendments, and
the Contract Clause of Article I, Section 10,

properly dismissed on the ground that this

Court's decision in Spring Realty Co. v.

New York City Loft Board, 127 Misc.2d 1090,

487 NYS2d 973 (Sup. Ct. NY Co. 1985),
aff'd, 117 AD2d 1029, 498 NYS2d 241 (1st

Dep't), aff'd as modified on other grounds,

69 NY2d 657, 803 NE2d 1367, 511 NYS2d 830

(1986), appeal dismissed for want of a

substantial federal question, 482 US 911 ,

107 SCt 3179, 96 (LEd 2d 668 (1987),

decided those same issues against’ the
position taken by petitioner herein?

2. Was petitioner's challenge to the
legislation in issue on the ground that it

i

constituted a bill of attainder properly
dismissed as a matter of law since there was
no evidence of legislative intent to punish?
3. Was petitioner's challenge to the
legislation in issue on the ground that it
violated petitioner's "vested rights" properly
dismissed as a matter of law since a property
owner has no_- vested right to _ the

continuation of extant zoning law?

TABLE OF CONTENTS

COUNTER-STATEMENT OF
QUESTIONS PRESENTED...........

TABLE OF AUTHORITIES .......
STATEMENT OF THE CASE .......

REASONS FOR DENYING THE
WRIT OF CERTIORARI.............

eo ee) ee ee

Page

TABLE OF AUTHORITIES

Page

Cases:

Oriental Boulevard Co. v.
Heller, 88 Misc.2d 920,

297 NYS2d 431 (Sup. Ct. Kings
Co. 1969), modified on other
grounds and aff'd as modified,
34 AD2d 811, 311 NYS2d 635
(3rd Dep't), aff'd, 27 NY2d
212, 316 NYS2d 226, 265 NE2d
70 (1970), appeal dismissed

for want of a substantial
federal question, 401 US 986,
91 SCt. 1234, 28 LEd 2d 527 ..... 7

Selective Service System v.

Minnesota Public Interest

Research Group, 468 US 841,

104 SCt. 3348, 82 LEd 2d

Rb: ee a eee 6

Spring Realty Co. v. New York
City Loft Board, 127 Misc.2d

1090, 487 NYS2d 973 (Sup. Ct.

NY Co. 1985), aff'd 117 AD2d 1029,
498 NYS2d 241 (1st Dep't) aff'd

as modified on other grounds,

69 NY2d 657, 803 NE2d 1367, 511
NYS2d 830 (1986), appeal dismissed
for want of a substantial federal
question, 482 US 911, 107 SCt.
3179, 96 LEd 2d 668 (1987) ...... .. 2, 2

iv

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Statutes:

NY Multiple Dwelling Law
§280 et seq. va -

Other Authorities

U.S. Constitution

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IAI

No. 90-1522
IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

640 BROADWAY RENAISSANCE COMPANY,
Debtor in Possession, Petitioner,
eV .=
MARIO CUOMO, as Governor of the State of
New York, et al.,
Respondents,
-and-

PHOEBE RENISCHLER, et al.,

Defendants.

BRIEF OF MUNICIPAL RESPONDENTS IN
OPPOSITION TO A PETITION FOR A WRIT
OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT

STATEMENT OF THE CASE
The instant petition seeks review of a
Court of Appeals order, in the form of a
mandate, affirming the dismissal of
petitioner's complaint, which alleged various

challenges to the constitutionality of Article

7-C of the New York State Multiple Dwelling

Law, §§ 280 et seq. (McKinney Supp. 1990)

(the “Loft Law"). By a judgment of July
31, 1990, the District Court for the Southern
District of New York granted summary
judgment in favor of defendants Cuomo,
Koch, and members of the New York City
Loft Board. By order of January 2, 1991,
the United States Court of Appeals for the
Second Circuit unanimously affirmed the
judgment of the District Court, on the
ground that the majority of the claims were

barred under the ruling of Spring Realty

Co. v. New York City Loft Board, 127

Misc.2d 1090, 487 NYS2d 973 (Sup. Ct. NY
Co. 1985), aff'd, 117 AD2d 1029, 498 NYS2d

241 (list Dep't), aff'd as modified on other

grounds, 69 NY2d 657, 503 NE2d 1367, 511

NYS2d 830 (1986), appeal dismissed for want

of a substantial federal question, 482 US

911, 107 SCt. 3179, 96 LEd 2d 668 (1987)
("Spring Realty"); and the remaining claims
2

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(bill of attainder and "vested rights") were
without merit as a matter of law.

REASONS FOR DENYING THE WRIT

As expressed by the Court of Appeals,
petitioner herein "presents a host of
challenges to the constitutionality of Article
7-C of the New York State Multiple Dwelling
Law, §§ 280 et seq." (the "Loft Law").
When petitioner's property at 640 Broadway
in the City of New York was designated as
covered by certain provisions of the Loft
Law, petitioner brought’ suit seeking
declaratory and injunctive relief invalidating
the Loft Law and an award of three million
dollars in damages from the government
defendants.

In response to this challenge, the
government defendants sought dismissal of
the complaint on the ground that the
majority of the claims had been disposed of

by this Court in Spring Realty Co. v. New

York City Loft Board, 127 Misc.2d 1090, 487

3

NYS2d 973 (Sup. Ct. NY Co. 1985), aff'd,
117 AD2d 1029, 498 NYS2d 241 (1st Dep't),

aff'd as modified on other grounds, 69 NY2d

657, 503 NE2d 1367, 511 NYS2d 830 (1986),

appeal dismissed for want of a_ substantial

federal question, 482 US 911, 107 SCt 3179,

96 LEd 2d 668 (1987).

The District Court for the Southern
District of New York agreed that the
majority of petitioner's claims had _ been
decided against petitioner's position, in

Spring Realty. The Court of Appeals

agreed, holding that

The Supreme Court's dismissal
of a prior “challenge to the Loft
Law in Spring Realty Co. v. New
York City Loft Board, 127 Misc.2d
1090, 487 N.Y.S.2d 973 (Sup. Ct.
N.Y. Co. 1985), aff'd, 117 A.D.2d
1029, 498 N.Y.S.2d 241 (lst
Dep't); aff'd as modified on other
grounds, 69 N.Y.2d 657, 503
N.E.2d 1367, 511 N.Y.S.2d 830
(1986), appeal dismissed for want
of a substantial federal question,
482 U.S. 911 (1987), bars the
majority of [640] Broadway's
constitutional claims. Once the
Supreme Court has dismissed an
appeal for want of a_ substantial
federal question, we are bound to

4

: »

treat that decision as rejecting on
the merits those issues presented
in the jurisdictional statement and
necessarily decided. See Mandel
v. Bradley, 432 U.S. 173 (1977)
(per curiam); League of Women
Voters v. Nassau County Board of
Supervisors, 737 F.2d 155 (2d Cir.
1984), cert. denied sub _ nom.
Schmertz v. Nassau County Board
of Supervisors, 469 U.S. 1108
(1985). Spring Realty precludes
reconsideration of [640}
Broadway's claims under the Due
Process and Equal Protection
clauses of the Fourteenth
Amendment, the Takings Clause of
the Fifth and Fourteenth
amendments, and the Contract
Clause of Article I, Section 10.

Petition for Certiorari, Al-A3.

Furthermore, the Court of Appeals
held, the claims of the plaintiffs in Spring
Realty were indeed ripe, rejecting
petitioner's reading of that case. This
Court's dismissal of the appeal in Spring
Realty for want of a _ substantial federal
question was, therefore, made on the merits.
The claims presented by petitioner herein,
on essentially the same grounds as_ were

presented in Spring’ Realty, that is,

challenges to the validity of the Loft Law on

)

a variety of constitutional grounds, were
therefore properly dismissed as having been
decided and rejected by this Court.

Only two issues raised by petitioner
herein had not been considered by the

courts in Spring Realty: that the Loft Law

constituted a bill of attainder in violation of
Article I, Section 10, and that the Loft Law
impairs petitioner's "vested property right"
in the commercial certificate of occupancy
issued to the property before the enactment
of the regulations in issue. As was held by
the District Court, and affirmed by the
Court of Appeals, those claims are without
merit as a matter of law since, respectively,
there is no evidence of legislative intent to

punish (see Selective Service System v.

Minnesota Public Interest Research Group,

468 US 841, 852, n.8, 104 S Ct 3348, 82 LEd
2d 632 (1984); nor does a property owner

acquire a vested right to the status quo

where, by the exercise of police power, the

6

State imposes additional or new requirements
with respect to the use of such property

(see Oriental Boulevard Co. v. Heller, 88

Misc.2d 920, 928-929, 297 NYS2d 431, 441

(Sup. Ct. Kings Co. 1969), modified on

other grounds and aff'd as_ medified, 34

AD2d 811, 311 NYS2d 635 (2d Dep't), aff'd,
27 NY2d 212, 316 NYS2d 226, 265 NE2d 72

(1970), appeal dismissed for want of a

substantial federal question, 401 US 986, 91

S Ct 1234, 28 LEd 2d 527 (1971)).

The District Court, as affirmed by the
Court of Appeals, correctly determined that
petitioner's due process, equal protection,
Contract Clause, and takings claims were
previously presented to and adjudicated by
both the New York State courts and this
Court and further that there were neither
significant factual distinctions between the

plaintiff in Spring Realty and petitioner

herein, nor had there been any doctrinal

developments undermining Spring _ Realty.

7

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The courts below also correctly determined
that the bill of attainder and “vested rights"
arguments were without merit as a matter of
law. The Courts below therefore correctly
determined that the entire complaint should

be dismissed.

CONCLUSION

THE PETITION FOR A WRIT OF
CERTIORARI SHOULD BE DENIED.

April 25, 1991.

VICTOR A. KOVNER,

Corporation Counsel for the
City of New York,

Attorney for Municipal
Respondents Koch, Dole,
Cooke, Delaney, Liebman,
Navaretta, Nemaier,
Martinez, Smith, and
Deutsch

LEONARD J. KOERNER,*

ELLEN B. FISHMAN,

TRUDI MARA SCHLEIFER,
of Counsel.

*Attorney of Record

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