Full opinion text
DECISION AND ORDER MARRERO, District Judge. TABLE OF CONTENTS I. STANDARD OF REVIEW.182 II. FACTS AND PROCEDURAL HISTORY.183 A. THE PARTIES .183 B. THE RELATIONSHIP BETWEEN THE PARTIES.185 1. The Scattered Site and Ryan White Enhancement Contracts.185 2. The DOH Intake Contract.186 3. Housing Works’s History of Financial Mismanagement.186 C. HOUSING WORKS’S CONSTITUTIONALLY PROTECTED ACTIVITIES .187 D. THE ALLEGATIONS OF RETALIATION.188 1. The City’s Refusal to Renew the Scattered Site and Ryan White Contracts .188 2. The Refusal to Recognize the DOH Intake Contract.189 E. THE ALLEGATIONS OF CONTINUING RETALIATION.190 1. HRA’s New Scattered Site Contract.190 2. Additional Funds under the Ryan White Care Act.191 3. The 9th Street and East New York Residences.191 4. Housing Works’s Job Training Program and the New York State Welfare-to-Work Initiative.191 5. Non-Responsibility Findings.192 F. HOUSING WORKS’S CLAIMS.192 III. DISCUSSION.193 A. RETALIATION FOR PROTECTED FIRST AMENDMENT ACTIVITY.193 B. EQUAL PROTECTION.199 C. QUALIFIED IMMUNITY, DIRECT PARTICIPATION AND THE APPLICABILITY OF THE STATUTE OF LIMITATIONS AS TO REITER .201 1. Qualified Immunity.201 2. Direct Participation.202 a. Giuliani.203 b. Turner.203 c. Netburn.204 d. Hoover.204 3. Applicability of the Statute of Limitations to the Claims Against Reiter .205 D. CLAIMS FOR DAMAGES AGAINST THE CITY.205 1. Damages Against the City for Violations of the New York State Constitution.205 2. Punitive Damages against the City and the Individual Defendants.209 E. FRAUD AND MISREPRESENTATION.209 F. UNJUST ENRICHMENT AND QUANTUM MERUIT.213 G. ACCOUNTANT MALPRACTICE.214 H. HOUSING WORKS’S FIFTH AND SIXTH CLAIMS.221 IV. ORDER .221 ‡ -Jfi sfc if: % Plaintiff Housing Works, Inc., together with nineteen of its client-members (hereinafter collectively referred to as “Housing Works”), is, by its own admission, a vociferous and opinionated community-based, not-for-profit corporation, advocating on behalf of persons living with HIV and AIDS, many of whom are often homeless and drug-dependent. Housing Works initiated these actions against the City of New York (hereinafter the “City”) and several high-ranking municipal officials, including the Mayor, pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 1983 for alleged violations of the First and Fourteenth Amendments to the United States Constitution. Housing Works also brought a number of claims under New York State and City law. Defendants have moved under Rule 12(c) of the Federal Rules of Civil Procedure to dismiss all claims. Because Housing Works has alleged facts sufficient to support its federal and state constitutional claims and because the present controversy raises a legal issue of first impression in this Circuit, the motions are granted in part and denied in part. I.STANDARD OF REVIEW When a party, after the filing of an answer, moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on the grounds of failure to state a claim, the court may employ the same standards applicable to a motion brought pursuant to Rule 12(b)(6). Nat’l Ass’n of Pharmaceutical Manufacturers, Inc. v. Ayerst Laboratories, 850 F.2d 904, 910 n. 2 (2d Cir.1988); see also Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir.1994). Therefore, in the context of the present motion, the Court accepts the well-pleaded assertions of fact in the complaint as true and draws all reasonable inferences and resolves doubts in favor of the non-moving party. See Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir.1995) (citations omitted). The focus of the Court’s inquiry is not whether plaintiffs will ultimately prevail, but whether the claimants are entitled to an opportunity to offer evidence in support of their claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Therefore, a motion to dismiss under either Rules 12(c) or 12(b)(6) for failure to state a claim will be denied “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). II. FACTS AND PROCEDURAL HISTORY The present action, spanning a relevant time period of ten years, names as defendants the City and sixteen municipal employees or agents. The long and complex history of the case requires a thorough recitation for purposes of this motion. Accepting, as it must, the well-pleaded allegations in the complaint as true, the Court acknowledges the following factual assertions as set forth in the pleadings. A. THE PARTIES Housing Works is a leading not-for-profit organization which administers programs dedicated to serving persons living with HIV/AIDS. Its mission is to provide critical housing and support services to its clients. Housing Works claims to be unique among its peers in that it focuses on assisting persons with the most pressing problems, often so severe that other organizations regularly turn them away. Housing Works’s clients are often homeless, “desperately ill, often emotionally troubled, chemically dependent, financially crippled, and socially disgraced.” The organization’s mission has a simple philosophical underpinning — supportive housing coupled with critical support services is the best prescription for fostering independent, self-sustaining lifestyles and a return to productive activities among its clients. According to Housing Works, this prescription has achieved notable success. Prior to the events leading up to this action, Housing Works purports to have served more than 10,000 homeless persons living with AIDS, many of whom lived, and continue to live, productive and independent lives. Housing Works also seeks to provide a comprehensive range of services. In addition to its core housing mission, it offers case management services, substance abuse and mental health' counseling, client legal services, medical monitoring, job training, and a theater project. Defendants include the City and sixteen municipal employees or agents, acting in their individual, and in some cases their official, capacities. The Complaints also identify several municipal agencies with which those individuals are associated. The Giuliani Complaint names Mayor Rudolph W. Giuliani (hereinafter “Giuliani”) as its primary defendant. Housing Works claims that Giuliani was the principal policy-maker with respect to all of the municipal agencies relevant to the action. Along with Giuliani, the complaint alleges that his deputies Randy Mastro (hereinafter “Mastro”), Fran Reiter (hereinafter “Reiter”) and Reiter’s Chief of Staff Lou-Ellen Barkan (“Barkan”) were also involved in the alleged wrongdoing as policymakers acting in their individual and official capacities. In addition, the Giuliani Complaint names as a defendant the City Chief Procurement Officer, Elizabeth Kas-wan (hereinafter “Kaswan”), in her role as policy-maker with respect to the Mayor’s Office of Contracts (hereinafter “MOC”). One of the principal municipal agencies at issue in this case is the New York City Human Resources Administration (hereinafter “HRA”), which includes the New York City Department of Social Services. According to the Complaints, HRA had primary responsibility for administering several housing programs and for certifications relating to various federal, state and municipal projects, as well as municipal benefits. Housing Works named two Commissioners of HRA as defendants: Lilliam Barrios-Paoli (hereinafter “Barrios-Paoli”), whose tenure ended some time in 1997 and Jason Turner (hereinafter “Turner”), who presumably succeeded Barrios-Paoli. In addition to the two Commissioners, the Complaints name as defendants the following HRA officials: Richard Bonamarte (hereinafter “Bona-marte”), Agency Chief Contracting Officer of HRA; Jack McKay (hereinafter “McKay”), Acting General Counsel of HRA; Gregory Caldwell (hereinafter “Caldwell”), Deputy Commissioner of HRA in charge of the Division of AIDS Services and Income Support (hereinafter “DASIS”); John Dereszewski (hereinafter “Dereszewski”), Director of Contract Services for DASIS; and Mark Hoover (hereinafter “Hoover”), First Deputy Commissioner of HRA. The Giuliani Complaint also identifies officials of the New York City Department of Health (hereinafter “DOH”) as defendants. DOH is the municipal agency charged with setting the public health agenda for the City and with implementing effective public health strategies. In dispute here, however, is DOH’s role in administering certain agreements with independent contractors, such as Housing Works, to provide initial assessment and case management services to the public. The Giuliani Complaint also names Neal Cohen (hereinafter “Cohen”), Commissioner of DOH; Mitchell Netburn (hereinafter “Netburn”), Agency Chief Contracting Officer for DOH; and James Capoziello (“Capoziello”), Acting Agency Chief Contracting Officer for DOH. Finally, the Giuliani Complaint asserts a claim against Jack Hiralall, P.C. (hereinafter “Hiralall”), a professional business organization engaged in providing accounting services and retained by the City to perform an audit of Housing Works’s financial records. B. THE RELATIONSHIP BETWEEN THE PARTIES Since its inception in 1991, Housing Works and the City have had a relationship characterized by fragile, oftentimes divisive, programmatic mutual dependence and support. Specifically, Housing Works has operated four programs that it alleges were adversely affected by the City’s retaliatory actions: (1) the Intake Program, which seeks to provide initial assessment, case management and crisis intervention for people living with HIY/AIDS who are homeless or threatened with homelessness; (2) the Residential Housing Program, which attempts to secure residential leases for persons living with HIV/AIDS in scattered sites throughout the New York metropolitan area; (3) the Residential Facilities Program, which provides apartment housing in two buildings owned by Housing Works; and (4) the Second Life Job Training Program (hereinafter “JTP”) which provides Housing Works clients with a work/study program culminating in full-time employment and related benefits, within the Housing Works organization. Through its leasing and purchasing activities, Housing Works held leases on over two hundred residential apartment units and owned outright an additional sixty-eight units as of October 1997. Housing Works depended on the City, as well as the state and federal governments, for a substantial portion of its funding. Conversely, the City outsourced a number of critical administrative and operational functions to Housing Works. Housing Works was often at the front line making initial case assessments, securing housing and then providing a range of services to persons living with HIY/AIDS. Stated another way, by virtue of its programs, Housing Works had a “vendor” relationship with the City in which Housing Works would provide housing and support services in return for reimbursement from public funds at a later date. The relationship between the parties was not merely an ad hoc arrangement calling for occasional reimbursements when proof of services provided was submitted. According to Housing Works, the parties had a long-term contractual relationship reflected in at least three separate agreements. 1. The Scattered Site and Ryan White Enhancement Contracts In 1992, Housing Works and the City, through HRA, entered into a written agreement (hereinafter the “Scattered Site Contract”) to provide housing for people living with AIDS. Pursuant to the Scattered Site Contract, Housing Works provided private residential housing and supportive services to persons living with AIDS and their families referred to Housing Works by HRA. To meet its obligations under the Scattered Site Contract, Housing Works would advance rents to private landlords and absorb the initial costs of supportive services. The parties contemplated that the City would later reimburse Housing Works for those costs. The initial term of the Scattered Site Contract lasted for three years, and it appears from the record that the agreement was extended to on or about June 30, 1997. When it was entered into, the Scattered Site Contract had an annual value of close to $1 million and covered approximately forty households. Through various amendments and extensions, the value of the Contract increased to $4.3 million, covering two hundred households. To meet its obligations under the Scattered Site Contract, Housing Works held 180 residential apartment leases to accommodate the referrals from HRA. These apartments were scattered throughout Manhattan, Brooklyn, Queens and the Bronx. In administering the Scattered Site program, Housing Works also leased commercial real estate in the Bronx for its administrative offices under a ten-year agreement. Apart from the Scattered Site Contract, Housing Works also received a supplement from federal funds made available by DOH. The supplement was disbursed to Housing Works through HRA by operation of a separate agreement, the Ryan White Enhancement Contract (hereinafter the “Ryan White Contract”). Pursuant to the Ryan White Contract, Housing Works provided supplemental social services to the participants of the Scattered Site program. The Ryan White Contract had-an annual value of approximately $187,700. 2. The DOH Intake Contract In June 1997, Housing Works and the DOH completed negotiations on a three-year agreement (hereinafter “DOH Intake Contract”), contemplating the provision of general intake, assessment and referral services by Housing Works to persons living with AIDS. In return for providing these services, the City, through DOH, would later reimburse Housing Works. Although Housing Works began performing intake services on July 1, 1997, the DOH Intake Contract was not formally executed until August 18, 1997, and it is unclear whether the DOH Intake Contract was never properly registered by the City Comptroller’s Office as required by law or simply terminated. The DOH Intake Contract had an annual value of $150,000, and Housing Works contends that it continued to provide services under the agreement for six to nine months without receiving any reimbursement. 3. Housing Works’s History of Financial Mismanagement From its inception in 1991, Housing Works grew at a fast clip. The increase in the number of persons and households covered under housing and support contracts described above clearly attest to that fact. As often occurs in periods of rapid growth, the systems that Housing Works first implemented became inadequate as the magnitude of certain tasks expanded. By late 1995, Housing Works concedes that its accounting systems could no longer adequately track its fiscal situation. The organization became entangled in a financial crisis, severely affecting cash flow and impeding its ability pay its creditors and employees. According to Housing Works, it informed HRA of the looming financial crisis as soon as the situation was discovered. Consultations with HRA led to the hiring of professional accounting firms for the purpose of developing and implementing a corrective action plan. These consultations with HRA and the accountants took place during the Spring and Summer of 1996. During that same time period, the New York City Department of Investigations (hereinafter “DOI”) conducted a review of Housing Works’s financial records. In July 1996, DOI issued a memorandum which confirmed that as of late 1996, Housing Works’s accounting practices were inadequate. In addition, the DOI memorandum recommended that HRA conduct an audit of Housing Works’s Scattered Site Contract. For the better part of 1996, HRA closely monitored Housing Works’s finances and the ongoing implementation of the corrective plan. By December 1996, Housing Works contends that it had fully implemented the corrective measures and that HRA expressed its satisfaction that proper measures had been put into place. According to Housing Works, HRA’s satisfaction was formally memorialized in an internal memorandum in which Dereszewski indicated that Housing Works had successfully implemented a nine-point corrective action plan. Subsequently, in August 1997, Housing Works asserts that HRA provided MOC with a memorandum making an affirmative finding of Housing Works’s responsibility as a contractor. Therefore, although Housing Works concedes that it had financial management problems in the past, it underscores that those problems ended as of December 1996, when it successfully implemented the corrective action plan and received formal recognition of the corrective measures. C. HOUSING WORKS’S CONSTITUTIONALLY PROTECTED ACTIVITIES Although the City, its various social services agencies and Housing Works were enmeshed in several mutually dependent and supportive contractual arrangements, the Court has already noted that these relationships were marred by divisiveness. According to Housing Works, this aspect of the parties’ relationships was attributable to Housing Works’s vigorous advocacy on behalf of persons living with AIDS. In keeping with its vision of a broad-spectrum organization dedicated to enhancing the lives of those afflicted with HIV/AIDS, Housing Works not only arranged for housing and provided critical support services, it also argued vigorously in various fora on behalf of persons living with HIV/ AIDS. As alleged in the Giuliani Complaint, “Housing Works has long been a vocal and militant critic of the Giuliani Administration’s attempts to cut and restrict essential services and benefits provided for low-income people with HIV and AIDS.” The group staged a number of protests against the Mayor and the municipal agencies responsible for social services. In one of the more dramatic exploits, Housing Works members participated in a “coalition demonstration,” which attempted to block rush hour traffic at local bridges and tunnels. In another, eleven people were arrested during a Housing Works protest for chaining themselves to desks at the Mayor’s campaign headquarters. The Complaints also detail an almost routine participation by Housing Works in annual demonstrations, such as World AIDS Day, disruptions at HIV policy planning meetings and instances of civil disobedience in front of City Hall. In addition, Housing Works was an active litigant, most often targeting the City, its agencies and its employees, some of them named defendants in this case. The litigation initiated by Housing Works included: Housing Works, Inc. v. City of New York, No. 99 Civ. 8975 (S.D.N.Y. Aug. 17, 1999) (seeking reversal of a City agency’s ranking of Housing Works in an application for federal funding); Housing Works, Inc. v. Safir, No. 98 Civ. 4994, 1998 WL 409701 (S.D.N.Y. July 21, 1998) (challenging the City’s limitation of the size of a Housing Works protest in front of City Hall); Henrietta D. v. Giuliani, No. 95 Civ. 0641, 1996 WL 633382 (E.D.N.Y. Oct. 25, 1996) (seeking preliminary injunction against the City and State to prevent them from implementing their allegedly ineffectual system of distributing benefits to City residents living with AIDS/HIV); and Hernandez v. Barrios-Paoli, 93 N.Y.2d 781, 698 N.Y.S.2d 590, 720 N.E.2d 866 (1999) (Article 78 proceeding challenging HRA’s eligibility verification review for DASIS benefits). There is no dispute between the parties that the activities described above are protected by the First Amendment and analogous provisions of the New York State Constitution. D. THE ALLEGATIONS OF RETALIATION The crux of Housing Works’s federal claims is that in response to its vocal criticism of the Giuliani Administration’s HIV/ AIDS policies, the City and the individual defendants retaliated against Housing Works by, inter alia, refusing to renew its contracts with the City and by preventing Housing Works from securing any future funding in connection with municipal, state and federal grants. The Complaints allege the following retaliatory measures. 1. The City’s Refusal to Renew the Scattered Site and Ryan White Contracts In or about January 1997, Reiter advised Caldwell to conduct a subsequent audit of Housing Works’s financial records relating to the Scattered Site Contract for the time period between July 1, 1994 and December 31,1996. According to Housing Works, the time frame recommended was deliberately and narrowly tailored to capture the years corresponding to its financial crisis, and Reiter recommended the audit notwithstanding the approval by the relevant municipal agency, HRA, of Housing Works’s corrective plan. For the purposes of this audit, Caldwell, acting through HRA, retained the firm of Jack Hiralall, P.C. to conduct the accounting. In the subsequent months, Housing Works made repeated inquiries as to the status of the Scattered Site Contract, which was set to expire on June 30, 1997, and as to the prospects for renewal. According to Housing Works, Barrios-Paoli, Bonamarte, Dereszewski and other HRA Defendants falsely stated that the City was on the verge of extending the Scattered Site Contract. HRA Defendants made similar representations in connection with the Ryan White Contract which was set to expire on March 3, 1997. Housing Works alleges that these officials made specific statements causing it to believe that both of the Contracts would be renewed for an additional one-year term. These statements were allegedly made in order to induce Housing Works to continue to perform under both Contracts without reimbursement beyond their respective termination dates. In addition, it appears that the City’s outward conduct manifested an intention, at the very least, to renew the Contracts. In or about late June 1997, Caldwell and Dereszewski “approved” Housing Works’s budget for an additional 12-month period. On June 24, 1997, six days before the expiration of the Scattered Site Contract, Dereszewski insisted that Housing Works duly execute and deliver all documents necessary to process the contract extension. As late as September 1997, the HRA Defendants allegedly continued to make false representations about the pending renewal, and, more importantly, HRA continued to refer persons living with AIDS to Housing Works for placement in the Scattered Site program, as if there were no interruption in the arrangement between the parties. With respect to the Ryan White Contract, HRA allegedly continued to monitor compliance with the agreement, requesting the submission of status reports and billings. Throughout this period of uncertainty, Housing Works continued to advance rent payments to landlords pursuant to the Scattered Site Contract and to provide supplemental services to Scattered Site clients pursuant to the Ryan White Contract. Beginning in August 1997, the City refused to reimburse Housing Works for the services that it continued to provide. On October 16, 1997, Housing Works filed a notice of claim with the City Comptroller for past due amounts on services provided. By that point, the relationship between the parties had become strained to the point where Housing Works began planning a demonstration to protest the City’s actions. The organization began distributing flyers announcing a demonstration to be held on October 22 at HRA’s offices to protest the City’s refusal to reimburse Housing Works for services provided since July 1,1997. Housing Works alleges that, as word began to leak, the City was plotting its response. The Mayor’s Office, MOC and DOI communicated extensively with each other about the impending demonstration. According to Housing Works, “[d]uring the days leading up to the October 22, 1997 demonstration (and thereafter), defendants Mastro, Barkan, Kaswan, and other representatives of the Mayor’s Office and MOC methodically located each and every contract or potential contract involving Housing Works and proceeded to systematically stop them all from being consummated, registered, or in any way advanced.” Apparently, Housing Works’s protest went ahead as scheduled. Immediately following the demonstration, the HRA issued a press release which stated: “[biased on the latest audit report, which found over $500,000 in funds unaccounted for by Housing Works, HRA could not renew the Housing Works scattered site contract which expired on June 30, 1997 or enter into new contracts.” According to Housing Works, the allegations of financial mismanagement were a pretext for retaliation against it for its exercise of protected First Amendment rights. 2. The Refusal to Recognize the DOH Intake Contract After having formally executed the DOH Intake Contract on August 18, 1997, Housing Works continued to perform its obligations under the agreement in subsequent months. According to Housing Works, on October 23, 1997, the day after the HRA press release and shortly after the filing of Housing Works’s notice of claim, the Mayoral, MOC, and DOH Defendants arranged to have the DOH Intake Contract pulled from the Comptroller’s Office before it could be registered. Housing Works further alleges that one of its officers spoke with DOH Chief Contracting Officer Netburn on January 14, 1998. In that conversation, Netburn allegedly confirmed that the MOC had in fact pulled the DOH Intake Contract and that it would not be registered until the subsequent investigation of Housing Works Scattered Site records, apparently still ongoing, was completed. In addition, Net-burn revealed that Kaswan had informed him that no action of any kind would be permitted on a contract with Housing Works until the investigation was completed. Housing Works also claims that Net-burn notified it that the City’s “policy” was to refuse to do business with people who were involved in litigation with the City. E. THE ALLEGATIONS OF CONTINUING RETALIATION In addition to the City’s allegedly unlawful refusal to renew the Scattered Site and Ryan White Contracts and to register the DOH Intake Contract, Housing Works claims that the City instituted a blanket policy against it, again in retaliation for its criticism of the City’s AIDS policies, which prevented Housing Works from securing any additional contracts. 1. HRA’s New Scattered Site Contract On October 6, 1997, HRA released a request for proposals (hereinafter “RFP”) for a new scattered site program to commence July 1, 1998, covering 1,130 apartment units earmarked for persons living with AIDS. The RFP included some of the units previously administered by Housing Works in its Scattered Site program. Housing Works’s units were put up for bids in three separate categories, which identified Housing Works as a current vendor. The rules of the RFP prohibited any one applicant to bid on more than one unit increment within a category. Pursuant to the RFP, bidders identified as current vendors were given a distinct and measurable advantage over prospective bidders because all potential awardees were rated on a scale of 1-100, with 30 points allocated to the bidder’s experience. The points in the experience category were much easier to obtain with the current vendor label. On November 16, 1997, shortly after the demonstration and the HRA press release, Caldwell and Dereszewski amended the RFP, which had the effect, according to Housing Works, of making it impossible for it to recover the approximately 200 units that it once had under its administration. HRA achieved this effect by altering the categories and the unit increments available for bidding. Notwithstanding the amendment, Housing Works submitted a proposal under the terms of the initial RFP, admittedly hoping to obtain a judicial order requiring HRA to proceed under the framework of the original RFP. In response, Caldwell wrote to Bona-marte recommending that Housing Works’s proposal be rejected as unresponsive and unreviewable. Thereafter, Housing Works amended a state court complaint to add a cause of action for retaliation based on the amended RFP. A week later, HRA amended the RFP again. The second amended RFP permitted Housing Works to bid on all its existing apartments, but it dramatically altered Housing Works’s status from that of current vendor to non-incumbent bidder. The disadvantage was fatal. Housing Works alleges that even Dereszewski conceded that the revision to non-incumbent status made it “extremely difficult, extremely unlikely” that Housing Works would score the necessary points to bid successfully. In or about June 1998, Housing Works’s proposal was rejected. 2. Additional Funds under the Ryan White Care Act In 1997, the Medical Health Research Association of New York City, Inc. (hereinafter “MHRA”), a private contractor that administers funds made available pursuant to the Ryan White Care Act, issued an RFP for the provision of support services, including harm reduction and day treatment for persons living with AIDS. According to the Giuliani Complaint, Housing Works was the successful bidder on the MHRA Ryan White funds, which had an annual value of $450,000. Housing Works alleges that the subject of the MHRA Ryan White funds arose in the same conversation with Netburn described above. Like the DOH Intake Contract, the MHRA Ryan White Contract was subject to the City’s policy that it would take no action on any contract with Housing Works until the completion of the Scattered Site investigation. 3. The 9th Street and East New York Residences From 1992-97, Housing Works negotiated with federal, state and City officials for financial assistance in the opening and operation of two residences, located on 9th Street in Manhattan and in East New York, Brooklyn, dedicated exclusively to persons living with AIDS. According to the Giuliani Complaint, the parties agreed upon the final terms of the operating contracts sometime in June or July 1997. The conclusion of the negotiations was marked by a final agreement entered into between Housing Works and HRA in July 1997. Thereafter, HRA repeatedly informed Housing Works that the operating contract for the residences was being processed. According to Housing Works, it was notified on October 22, 1997 that HRA would not enter into any new contracts with Housing Works, including the operating contract for the residences. 4.Housing Works’s Job Training Program and the New York State Welfare-to-Work Initiative As part of its broad service offerings, Housing Works also operates a “Second Life Job Training Program” (hereinafter “JTP”). The JTP provides a rigorous nine-month work/study program which concludes with the graduates’ guaranteed employment in an administrative position within the Housing Works organization. The JTP boasts a 75 percent retention rate for graduates after one-year of employment. The JTP works in conjunction with DASIS to ensure that JTP participants receive the vocational, medical, clinical and supportive services and benefits they need. On October 5, 1998, the New York State Department of Labor (hereinafter “NYS-DOL”) and the New York State Department of Health (hereinafter “NYSDOH”) issued an RFP as part of their Welfare-to-Work Initiative, which provided funding for projects designed to promote job training for people living with HIWAIDS. Funding under the Initiative was contemplated to begin on March 1, 1999, with awardees receiving $600,000 over two years. As a precondition for selection, applicants were required to obtain the written approval of the local services district, which for Housing Works was HRA. On December 12, 1998, Housing Works submitted its application pursuant to the State RFP. Its application allegedly included a certification form signed by Turner, dated December 5, 1998, indicating that HRA had approved the application. In all other respects, the application satisfied all of the program’s design components as specified in the RFP. According to Housing Works, the panel making preliminary evaluations of the application ranked Housing Works first out of ten applications. Before the final awards were made, Housing Works contends, Turner wrote a letter to the Commissioner of NYSDOL on February 23, 1999, informing the Commissioner that the City was withdrawing its prior certification of Housing Works’s application under the RFP. The correspondence stated as the grounds for the City’s withdrawal of certification Housing Works’s past financial management problems. At the behest of NYSDOL and NYS-DOH, representatives of Housing Works, the relevant state agencies and Turner and Hoover convened for a special meeting. NYSDOL and NYSDOH officials asked Turner and Hoover to reconsider their withdrawal of the certification in order to accommodate the applicant ranked number one. Furthermore, NYSDOL and NYS-DOH proposed a number of alternatives, under which Housing Works would receive funding under financial controls or through intermediaries to alleviate the concerns expressed by Turner and Hoover. According to Housing Works, Turner and Hoover rejected all of the proposed alternatives, stating simply that HRA refused to support any plan which would provide State funds to Housing Works. In addition, Turner threatened to punish Housing Works’s JTP participants if any State funds were provided to Housing Works under the Welfare-to-Work Initiative. In or about August 1999, NYSDOL informed Housing Works that its proposal had not been selected for the Welfare-to-Work funding. According to Housing Works, HRA’s retaliation did not stop there. In addition to withdrawing its certification for the State Welfare-to-Work Initiative, HRA also refused to certify Housing Works as an approved City job training provider. This separate certification from the City allows the participants of certified job training programs to receive transportation, child care and clothing allowances. Housing Works charges that HRA’s refusal to approve Housing Works as a certified job training provider has deprived its individual clients from receiving those public assistance benefits. 5. Non-Responsibility Findings On the basis of the January 1997 audit of Housing Works’s Scattered Site program and the City’s belief that Housing Works was indebted to it, two separate municipal agencies, HRA and DOH, made affirmative findings of Housing Works’s non-responsibility as a contractor. Housing Works asserts that it filed administrative appeals through the relevant chain of command. Both of those affirmations were eventually appealed to 'Giuliani, who has not yet acted upon them. According to Housing Works, Giuliani’s deliberate flouting of his obligations is not only grounds for a separate claim for relief, but also indicative of the retaliatory nature of the City’s response to Housing Works’s applications. F. HOUSING WORKS’S CLAIMS On the basis of these allegations, Housing Works brought nine claims against the City and sixteen individual municipal officials involved in the matters now before the Court. The first claim, brought under 42 U.S.C. § 1983 (hereinafter “§ 1983” or “Title VII”), alleges a violation of Housing Works’s right to free speech secured by the First and Fourteenth Amendments to the United States Constitution. The second claim is made pursuant to the free speech provisions of the New York State Constitution. The third, also brought under § 1983, and fourth claims allege violations of the Equal Protection Clauses of the United States and New York State Constitutions, respectively. The fifth and sixth claims assert administrative violations of the New York City Charter and the Procurement Policy Board rules in connection with the allegedly unlawful suspension of Housing Works as a contractor and with the non-responsibility findings. The seventh and eighth claims are brought under state for law for fraud and unjust enrichment. And the ninth claim is brought against Hiralall for accountant malpractice. For various reasons discussed in greater detail in subsequent sections, the City and the individual defendants have moved to dismiss the Complaints for failure to state legally sufficient claims. III. DISCUSSION A. RETALIATION FOR PROTECTED FIRST AMENDMENT ACTIVITY Housing Works’s activities and constitutional rights protecting them have been the subject of other litigation in this Court. In a recent case, the proposition that the First and Fourteenth Amendments prohibit the City and its municipal officers from abridging Housing Works’s right to free speech and to petition the government for redress of its grievances was undisputed. See Housing Works, Inc. v. Safir, 101 F.Supp.2d 163, 167 (S.D.N.Y.2000) (although government may impose reasonable time, place and manner restrictions on speech, “ ‘[plaintiff’s right to protest the City’s lack of services for persons afflicted with AIDS and HIV is a fundamental right grounded in the First Amendment, as the parties agree.’ ”), appeal dismissed, 203 F.3d 176 (2d Cir.2000); see also Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.1989) (“The right of access to the courts is subsumed under the first amendment right to petition the government for redress of grievances.”). Housing Works avers that the City unlawfully retaliated against it for its vigorous demonstrations and proactive litigation by, inter alia, (1) refusing to renew the Scattered Site and Ryan White Contracts; (2) barring Housing Works from operating as a City contractor; (3) blocking all pending contracts with Housing Works; (4) unlawfully issuing non-responsibility findings; (5) withdrawing the City’s certification of Housing Works’s application for State Welfare-to-Work funds; and (6) failing to certify Housing Works as an approved job training provider. In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish that (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct at issue deprived a person of a right, privilege or immunity secured by the Constitution or laws of the United States. See Jett v. Dallas Independent School Dist., 491 U.S. 701, 723, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 137 (2d Cir.1999), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999). The contested issue here is whether Housing Works’s complaint properly alleges the deprivation of a right, privilege or immunity secured by the Constitution. Housing Works claims that, as an independent contractor, it has a right to be free from retaliatory termination or non-renewal of its agreements with the City even if it vigorously exercises its right to free speech and petition. For its part, the City claims that what really happened here is that the City refused to renew certain contracts that had already expired, that it also declined to enter into new contracts with Housing Works and that neither of those actions constitute a deprivation of a legally protected right secured by the Constitution. Both parties cite extensively to Board of County Commissioners, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996), in support of their positions. The context of the Supreme Court’s ruling in Umbehr is essential to understanding the full import of that decision to this case. Umbehr was the first ease in which the Supreme Court addressed the issue of whether, and to what extent, the First Amendment limits the ability of a federal, state, or local government in terminating their contractual relationships with independent contractors because of the latter’s exercise of their right to free speech. 518 U.S. at 673-74, 116 S.Ct. 2342. Two related lines of cases, however, informed the Court’s decision in Umbehr. First, the Court had addressed on numerous occasions the limits of a governmental entity’s right to take adverse action against its employees for exercising their right to free speech. The basic proposition in the line of cases dealing with government employees, whether federal or state, is that public employment amounts to a valuable financial benefit which when threatened with loss may be used to chill valuable speech on matters of public concern by those employees. See Umbehr, 518 U.S. at 674, 116 S.Ct. 2342; Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). A sharp line of distinction, however, should be drawn between the actions of the state as sovereign vis-a-vis the public and the actions of the state as an employer. Unquestionably, the public at large receives the full protection of the First Amendment against restrictions on speech. As the Supreme Court noted, however, “though a private person is perfectly free to uninhibitedly and robustly criticize a state governor’s legislative program, we have never suggested that the Constitution bars the governor from firing a high-ranking deputy for doing the same things.” Waters, 511 U.S. at 672, 114 S.Ct. 1878. Therefore, the government employee cases recognize the need to balance the employee’s interests in commenting on matters of public concern against the interests of government employers in promoting the efficiency of public services. See Pickering v. Board of Education of Township High School Dist. 205, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Employing the Pickering balancing test on a case-by-case basis, the Supreme Court has recognized a number of restrictions on a government employer’s ability to restrict its employees’ First Amendment rights. The Court has held that government employees are protected from termination for publicly or privately criticizing their employers, for supporting or associating with a particular political party, unless there is a legitimate reason for requiring political affiliation, and for refusing to take an oath regarding their political beliefs. The protection for government employees was expanded further in Rutan v. Republican Party of Illinois, 497 U.S. 62, 79, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), where the Court held that promotions, transfers, and the hiring of new applicants based on political affiliation violates the employee’s or applicant’s First Amendment rights, in the absence of a vital government interest. Second, the Court’s decision in Umbehr relied in part on the doctrine of unconstitutional conditions, which holds that the government is not free to deny a benefit to anyone on a basis that infringes the constitutionally protected right to free speech, even when that person has no entitlement to that benefit. See Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The unconstitutional conditions doctrine is not limited to government employees, but extends to cover persons with a much more attenuated relationship with the government. See Umbehr, 518 U.S. at 680, 116 S.Ct. 2342. Against this backdrop, plaintiff in Um-behr filed a claim under § 1983 alleging that the County Board had refused to renew his trash hauling contract because of his vigorous criticism of the three-member Board. See id. at 670, 116 S.Ct. 2342. The Supreme Court, after reciting the development of the principles enunciated in the line of cases above, found that, for purposes of the First Amendment right at issue, there was no legally relevant distinction between government employees and independent contractors. Id. at 684, 116 S.Ct. 2342 (“In sum, neither the Board nor Umbehr have persuaded us that there is a ‘difference of constitutional magnitude,’ ... between independent contractors and employees in this context. Independent government contractors are similar in most relevant respects to government employees, although both the speaker’s and the government’s interests are typically— though not always — somewhat less strong in the independent contractor case.”) (citations omitted). Furthermore, the Court identified possible risks in finding such a distinction: “Determining constitutional claims on the basis of such formal distinctions, which can be manipulated largely at the will of the government agencies concerned ... is an enterprise that we have consistently eschewed.” Id. at 679, 116 S.Ct. 2342 (citations omitted). The Court held, therefore, that the County Board could not restrict the plaintiffs right to free speech by terminating his contract and that the Pickering balancing test would safeguard a municipality’s ability to terminate contractors for legitimate reasons. To prevail on a claim under § 1983, the plaintiff was required to show that the termination was motivated by his speech on a matter of public concern, which requires more than the mere fact that he exercised his right to free speech before the termination. Id. at 685, 116 S.Ct. 2342. Upon such a showing, the County would have a valid defense if it could demonstrate that the termination would have occurred regardless of the speech in question or if it made a persuasive case that the County’s legitimate interests outweigh the free speech rights at stake. Id. Notably, the Court made an express qualification which, in the case at bar, goes to the heart of the parties’ dispute with respect to the matters at issue: “Finally, we emphasize the limited nature of our decision today. Because Umbehr’s suit concerns the termination of a preexisting commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship.” Id. (emphasis supplied). In the present dispute, the City has honed in on this final qualification to support its argument that Housing Works has no constitutionally recognized right to free speech in this case because it was seeking a renewal of certain contracts — such as the Scattered Site and Ryan White Contracts — that had previously expired, or it endeavored to enter into new contractual arrangements. Under either theory, the City posits, Housing Works falls squarely into the “bidders or applicants for new contracts” category about which the Court expressly reserved judgment in Umbehr. The City further attempts to marshal support from a post-Umbehr case where the Third Circuit found no constitutional violation for a governmental entity’s refusal to retain or engage independent contractors bidding on new contracts. In McClintock v. Eichelberger, 169 F.3d 812, 813 (3d Cir.1999), plaintiff was an advertising and marketing firm that over a twelve-year period had two finite contracts to perform discrete projects for a multi-county planning commission. In addition to the two projects, the plaintiff acted as vendor for a three-year period marketing various promotional items such as magnets, vinyl banners and bags to the governmental entity. See id. at 814. Subsequently, plaintiff bid on a new advertising campaign scheduled to begin in 1997. See id. Prior to submitting its bid, plaintiff had supported and performed services for certain political candidates. One particular commission member had opposed these candidates, and plaintiff lost the contract to a third party. In affirming the district court’s dismissal of the § 1983 claim, the court found that plaintiff did not have a pre-existing commercial relationship with the commission and was merely making a new application, thus taking plaintiff out of the context of Umbehr and placing it within the zone of uncertainty created by the Supreme Court’s reservation. In the present case, the City relies on McClintock in endeavoring to show that Housing Works also falls outside the ambit of Umbehr, thus negating the claim of a constitutional violation. This Court rejects the City’s position for two reasons. First, in concluding that Housing Works was merely a new applicant or a former contractor seeking to revive a terminated agreement, the City oversimplifies the factual allegations Housing Works recites in the Complaints. In fact, the Court finds more critical differences than similarities between Housing Works and the plaintiff in McClintock. First, Housing Works cannot be relegated to a category of independent contractors with whom the City had sporadic, discrete projects. Rather, as alleged in the Complaints, Housing Works and the City were involved in a longstanding, continuous relationship characterized by mutual, programmatic dependence and support pursuant to the Scattered Site and Ryan White Contracts. That relationship had remained active and uninterrupted for several years right up to the time covered by the events here in question. Under their contractual arrangement, the City would send a constant stream of referrals to Housing Works, which would place clients in one of its 200 hundred residential units and provide basic support services. Housing Works was required at all times to keep lines of communication open with City officials, who requested the proper forms, status reports and proof of services provided on a regular basis. At a minimum, the type of relationship alleged here is continual and ongoing as opposed to sporadic and discretely limited. Housing Works also claims that it continued to provide housing and support services, and presumably continues to provide at least some of those services today, notwithstanding the clear statement of the City’s refusal to renew the contracts as set forth in the HRA press release of October 22, 1997. In this sense, Housing Works appears altogether different from the plaintiff in McClintock and much closer to the plaintiff in Ervin and Associates, Inc. v. Dunlap, 33 F.Supp.2d 1, 7 (D.D.C.1997). After having enjoyed a five-year contractual relationship with the Department of Housing and Urban Development (hereinafter “HUD”) providing a range of financial advisory services, plaintiff began to lose bids as a result of his vocal criticism of HUD’s privatization initiative. The court found that “Ervin’s preexisting relationship with HUD is sufficient to place him within Um-behr’s ambit .... Ervin had a relationship with HUD that began in 1989 and, to the extent that he is still performing on any previously awarded contracts, continues today.” Id. The City is correct, to an extent, in framing the relevant issue as a legal one that this Court is authorized to rule upon in the context of the present motion, namely, does Housing Works have a constitutional protection against termination or non-renewal of its contracts in the context of the facts alleged? As to the Scattered Site, Ryan White Enhancement and DOH Intake Contracts, the Court finds, as a matter of law, that the Complaints sufficiently allege a pre-existing contractual relationship between Housing Works and the City longstanding and continuous enough to place this case within the purview of Umbehr and its logical implications. But, insofar as a full resolution of all of Housing Works’s allegations will require the trier of fact to weigh a number factual considerations after hearing all of the evidence, the City’s argument again unduly simplifies this analysis. See McClintock, 169 F.3d at 817-18 (Roth, J., dissenting) (“The first assumption critical to the outcome reached by the majority is its factual determination that McClintock and Cher-ryhill did not have a ‘pre-existing commercial relationship’ with Southern Alleghenies.”) (emphasis supplied). For instance, Housing Works has sufficiently alleged that the MHRA Ryan White Contract and the operating agreements relating to the two residential buildings were duly executed and that Housing Works began to perform under the agreements. Given the scope of the parties’ contractual arrangements in the past, one plausible interpretation of this assertion is that the MHRA Ryan White Contract was an extension of an ongoing commercial relationship, bringing that agreement within the ambit of Umbehr as well. Alternatively, a factfin-der might deem it necessary to ask whether the MHRA Ryan White Contract and the operating agreements were perfected, when they entered into force and whether they were effectively terminated on the basis of protected First Amendment activity. Although the Court can resolve some of the clearly focused legal issues that the City’s motion raises, it cannot pass judgment on a host of others that are more properly matters of fact. It is not within the proper province of the Court, in considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(c), to override the role of the trier of fact shortly after the close of pleadings. On the basis of the facts alleged, Housing Works is entitled to an opportunity to show that it was a preexisting contractor whose agreements with the City were not renewed or effectively terminated because of the organization’s robust First Amendment activity. See Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. Second, the Court is inclined to reject the City’s position because this case raises an important issue of first impression that has not been addressed in this Circuit. In qualifying its holding in Umbehr, the Supreme Court neither supported nor rejected the notion of a First Amendment right of independent contractors without a preexisting relationship with the government to be free from unconstitutional denials of their applications. It is an open question whether this controversy presents a set of facts compelling the recognition of such a constitutional right. Because the Court holds that Housing Works has alleged facts sufficient to bring it within the rule enunciated in Umbehr, the Court reserves judgment on the question of whether Housing Works would have those same rights absent the finding of a pre-existing commercial relationship. In passing, however, the Court notes that although some courts have expressly declined to address this issue in the absence of further guidance, their abstention is not unanimous. See McClintock, 169 F.3d at 818 (Roth, J., dissenting) (“I find that the Supreme Court’s First Amendment jurisprudence does not support the kind of status-based limitation on individuals’ rights of political expression and association that the majority’s decision endorses.”). Most notably, in a recent decision by the United States Court of Appeals for the Sixth Circuit, the court rejected the notion that only independent contractors with pre-existing relationships are entitled to First Amendment protections in the awarding of new contracts. Lucas v. Monroe County, 203 F.3d 964, 972-75 (6th Cir.2000). Plaintiffs in Lucas consisted of a company that had already been providing towing services as a listed provider on the Sheriff Department’s rotation list and a towing company that had applied for inclusion on that list. Id. at 967-68. On summary judgment, the district court dismissed the applicant’s First Amendment claim primarily on the grounds advanced by the City here — that the applicant was not an independent contractor that had a pre-existing relationship with the municipality. Id. at 972. The Sixth Circuit reversed the dismissal of the new applicant’s First Amendment claim, invoking, in part, the principles of the unconstitutional conditions doctrine as articulated in Sinder-mann. Id. at 972-75. As the Supreme Court’s analysis in Um-behr shows, the present controversy sits at the confluence of three separate, but closely related strands of constitutional jurisprudence: the First Amendment rights of government employees, the doctrine of unconstitutional conditions and the principle of freedom of speech as extended to certain government contractors by Um-behr itself and its progeny. Although the intersection of these rulings should provide this Court with a wealth of precedent to guide its decision, neither the Supreme Court nor the Second Circuit has addressed the precise legal issue as framed by this controversy. In order to preserve the spirit of each of these strands, however, courts should take pains to avoid inconsistent results. Were the City’s position validated, an independent contractor with a pre-existing, longstanding and continuous business relationship seeking a new or renewed municipal contract and a prospective government employee applying for a non-policy-making position, both engaging in the exact same speech or expressive conduct, might well find that the latter is protected from retaliation in her application while the former will suffer the risk of losing the contract. In addition to the facial inconsistency, the result seems less defensible in light of one of the Supreme Court’s stated grounds for its decision in Umbehr, that there is no difference of constitutional magnitude between independent contractors and government employees in the context of First Amendment protections. Such a result would also seem to violate the spirit of Sinder-mann, Rutan and Umbehr. For these reasons, the City’s motion to dismiss Housing Works’s first and second claims in the Giuliani Complaint is denied. With respect to the Scattered Site, Ryan White and DOH Intake Contracts, Housing Works has adequately pleaded facts giving rise to an inference that the City terminated or refused to renew pre-existing contracts on the basis of Housing Works’s protected First Amendment activity. Housing Works has also sufficiently alleged facts with respect to the MHRA Ryan White Contract and the operating agreements for the two residences to defeat a Rule 12(c) challenge at this stage in the litigation. The Court agrees with the City’s contention, however, that a claim alleging a violation of Housing Works’s First Amendment rights may not be predicated on the City’s actions with respect to Housing Works’s Welfare-to-Work application. The allegations surrounding that application show that the City’s involvement was limited to the certification aspect of a bidding process that was controlled by State agencies. In that regard, HRA was asked to approve or deny a certification that was only one part of the process. Furthermore, the City was not the ultimate decisionmaker. In the Welfare-to-Work initiative, the relevant New York State agencies were responsible for awarding contracts. Under these facts, one cannot properly conclude that the City terminated or refused to renew a contract. Nevertheless, the Court notes that evidence of the City’s conduct in the Welfare-to-Work application may be probative of retaliatory intent. B. EQUAL PROTECTION The City also moves to dismiss the third and fourth claims based on the Equal Protection provisions of the United States and New York State Constitutions, respectively. In essence, the City advances two rationales in support of its motion. First, with respect to the principal allegations of contract termination, or refusal to renew, in the Giuliani Complaint, the City contends that Housing Works has failed to show that the alleged selective treatment was based on an impermissible consideration such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. (See Defendant’s Memorandum in Support of Motion to Dismiss Giuliani Complaint, dated July 24, 2000 (hereinafter “Defendants’ Memorandum”), at 7). Reasserting its contention that Housing Works has failed to show that the City’s actions triggered a violation of Housing Works’s First Amendment rights, the City opines that the Equal Protection claim also fails. Second, in connection with the allegations in the Welfare-to-Work RFP, the City avers that Housing Works cannot show that it was similarly situated with other applicants, thus negating unequal treatment. As the Court reads Housing Works’s Complaints, these rationales contain misstatements of law and fact. With respect to the City’s first argument, the legal requirement that it purports to impose on Housing Works is inapplicable. The language and the case cited by the City concern the elements of an equal protection claim based on selective enforcement. See LaTrieste Restaurant and Cabaret, Inc