BY LINCOLN ANDERSON | The plot thickened for Theatre 80 St. Marks this week — and, unfortunately, not in a good way.
On Tuesday, a Bankruptcy Court judge appointed an overseer for the sale of the property, at 80 St. Mark’s Place, between First and Second Avenues.
According to Lorcan Otway, the second-generation owner of the classic East Village venue, he and his wife Genie, now face the prospect of becoming impoverished and homeless. He is being told they have to be out of the place as soon as this August.
“We’re going to lose everything we own, including our personal property,” Otway told The Village Sun two weeks ago. “They’re trying to take not only the building — we will be living in a homeless shelter with literally only the clothes on our back.”
Otway owes a debt of $9.3 million to a lender, Maverick Real Estate Partners — and Maverick wants its money. The debt was only $6 million when Hershmark was the lender, but then shot up after Hershmark sold it to Maverick 16 months ago, “behind our back,” Otway said. To stave off a forced auction of the property under Maverick, Otway declared Chapter 11 bankruptcy reorganization this past December, buying some time.
More to the point, the COVID shutdown was crippling for Theatre 80, making what’s going on now basically an “illegal taking,” in Otway’s view.
“This is such a rare occurence, where the government would shut down whole classes of businesses for two years,” he said, speaking on Wednesday. “There’s not a whole lot of case law on this. … Part of the test is: Have you totally destroyed the business? Because then it becomes a public taking. In this case, the answer is yes, they totally destroyed the business.”
After the Bankruptcy Court proceeding the previous day, Otway posted on Facebook to give an update. The court allowed him to make a statement in court, and he later shared it on the social-media channel.
“The elephant in this room is the COVID takings without just compensation,” he told the judge. “I beg the court to not destroy almost 60 years of my life’s work, endangering my ability to support my wife in our senior years, so that a predatory company can make an unusually high profit in the face of a worldwide disaster. … Citizens who willingly follow the government’s orders for the public good, should not be impoverished by that act of good citizenship.”
Citing former Supreme Court Associate Jutice Hugo Black in Armstrong v. United States, Otway also told the judge, “The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Otway’s desperation strategies now include refinancing and, hopefully, waging a legal battle if he can find a good lawyer who will represent him free of charge.
“I haven’t given up,” he told The Village Sun. “We are trying very hard to refinance. It will be a hard-money loan.”
And if he needs to keep fighting all the way up to the U.S. Supreme Court, he’ll do it, he said.
The loss of Theatre 80 wouldn’t just be a blow to him and his wife, he said, but for the East Village community and the larger theater and creative community, from Off-Broadway to around the world.
“I have made this place a resource for the community,” he said. “Whether there’s any issue in the community, whether I agree with it or not, I open my doors to it.
“You know “Charlie Brown” opened here in 1967,” he noted, referring to the “Peanuts”-based musical comedy, “You’re a Good Man, Charlie Brown.” “It’s a staple of theater history and community theater around the world.
“So this theft is more than just my wife and I,” he stressed. “It’s a theft from the world’s expectation that culture has a hatchery, a breeding ground.
“The courts have been partners in removing working-class ownership,” he fumed. “Both political parties are undoing every program from the New Deal and the Great Society that created working-class ownership. And the courts are assisting in giving all working-class property to a millionaire and billionaire class.
“The proper phrase should not be ‘hyperinflation,'” he scoffed. “It should be price-gouging to drive the working class out of the community we built.
“I have devoted my life since I was 9 to serving this community and I have nothing to show for it,” he said, bitterly but unbowed.
To wage an extended court fight, if necessary, he’ll need an attorney who will represent him for free.
“It’s a fact that we’ll likely go to the Supreme Court,” he said, “which is why we’ll need a lawyer that’s pro bono.”
The court has barred Theatre 80 from doing any more crowdfunding. Meanwhile, though, the place’s William Barnacle Tavern will be staying open, as will the theater / cabaret space.