5 Pointz: Cohen_et_al_v_G_M_Realty_LP Defendants' letter brief.pdf

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INGRAM YUZEKGA INENCARROLL &BERTOLOTTI, LLP

250 PARK AVENUE

NEW YORK, NEW YORK 10177

Telephone: (212) 907-9600

Facsimile: (212) 907-9681www.ingramllp.com

David G. Ebert ovemb er 11, 2013

Writer's Direct Dial:212-907-9603 ember: Legal Netlink AllianceE-Mail: [email protected] ww. legalnetlink.net

VIA ECF

Hon. Frederic Block

United States District Court

Eastern District of New York

225 Cadm an Plaza East

Brooklyn, New York 11201

Re: Cohen et al . v. G M Realty, L.P. et aL13-cv-05612 (FB) (JM A)

Dear Judge Block:

This supplements our November 8, 2013 letter regarding the August 20, 2013

determination of the Landmarks Preservation Commission ( LPC ) rejecting plaintiffs'

application for landm ark status, a copy of which is attached.

As the LPC previously concluded, after careful assessment, the Landmarks Preservation

Law ( LPL ), codified at N.Y.C. Admin. Code § 25-301 et seq., is inapplicable to plaintiffs'

graffiti art.

Moreover, the LPC is not required to reconsider plaintiffs' landmark application in anyevent. As explained in Deane v. City of New Y ork Departmen t of Buildings:

No provision of the New York City Administrative Code requiresLPC to consider any request for landmark status that is submitted

to it. To the contrary, LPC has unfettered discretion to decidewhether to calendar an item to be considered for landmark

designation. Section 1-02 of Title 63 of the Rules of the City of

New Y ork, adopted pursuant to N.Y.C. Adm in. Code section 25-

319, provides that the Landm arks Preservation Com mission may,

177 Misc. 2d 687 (Sup. Ct., N.Y. County 1 998).

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Case 1:13-cv-05612-FB-JMA Document 32 Filed 11/11/13 Page 1 of 4 PageID #: 651



Novem ber 11, 2013Page 2

upon the adoption of a motion, calendar an item to be consideredfor landmark designation. 2

Thus, the LPC is not obligated to consider the m atter. And if it did, the process couldtake several months or longer. 3 Moreov er, to the extent a City Council vote is required, as M r.W olkoff testified, the City Council has already unanimou sly approved the W olkoffs' project

with full knowledge of the issues relating to 5 Pointz. There is absolutely no reason to believethat they would now reverse field and derail the project.

The LPL protects improvem ents 4 that have a special character or a special historicalor aesthetic interest or value and man y improvements representing the finest architecturalproducts of d istinct periods in the history of the city. . . . . ' The LPC exists to preserve greatworks of architecture, not to preserve . . . 'the ambiance and special character' of . . .architecturally und istinguished buildings. 6 The LPC has already d etermined that the building at

issue is architecturally undistinguished.

The LPC web site describes a landmark as a building, property, or object. 7 Graffiti

art on the w alls of a building is none of these things. Thus, even if plaintiffs resubm it theirapplication, the LPC is sure to reject it on the same basis as before, as the building does notpossess the requisite architectural qualities in any ev ent. And, as the LPC further concluded,

2 177 Misc. 2d at 695 (emphasis in original). See also Williamsburg Indep. People, Inc. v. Tierney, 91

A.D.3d 538, 538 (1st Dep't 2012) citing Citizens Emergency C omm . to Pres. Pres. v. Tierney, 70 A.D.3d576, 577 (1st Dep't 2010) ( there is no statutory requirement that the [LPC] adhere to a particular

procedure in determining whether to consider a property for designation. ).As explained on the New York City LPC web site, available at

http://www.nyc.gov/html/lpc/html/faqs/faq_designation.shtml, the process includes, a request forevaluation, an evaluation, calendaring and Commission review, a public hearing, a discussion and

designation report, a LPC vote, a City Planning and Comm ission report (for which a public hearing is

required), and a City Council vote. The Mayor can veto the City Council and the City Council canoverride a Mayoral veto by tw o-thirds vote.

Improvement[s] are [a]ny building, structure, place, work of art or other object constituting a

physical betterment of real property, or any part of such betterment. N.Y.C. Admin. Code § 25-302(i).N.Y.C. Admin C ode § 25-301(a); see also § 25-302(n).

6 Deane, 177 Misc. 2d at 699.7 The LPC web site Facts and Questions section provides, at

http://www.nyc.gov/html/lpc/html/faqs/fan about.shtml:A landm ark is a building, property, or object that has been designated by theLandm arks Preservation Com mission because it has a special character or specialhistorical or aesthetic interest or value as part of the development, heritage, orcultural characteristics of the city, state, or nation. Landmarks are not alwaysbuildings. A landmark may be a bridge, a park, a water tower, a pier, a cemetery,

a building lobby, a sidewalk clock, a fence, or even a tree. A property or objectis eligible for landmark status when at least part of it is thirty years old or older.

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Novem ber 11, 2013

Page 3

even if the building somehow qualified, the artwork at issue—much of which was created a m ere

matter of months ago— is not old enough to b e considered at all.

Fed. R. C iv. P. 65(b)(2) provides that a TRO expires 14 d ays after entry, which m ay beextended for another 14 days for good cause, for a total of 28 days. 8 But [t]here is no statutory

authority for the indefinite, successive extensions of tempo rary restraining orders because the

statute contemplates that notice and hearing shall result in an appropriate adjudication, i.e. theissuance or den ial of a preliminary injunction, not an extension of the tem porary stay. 9

Inasmuch as a TRO's purpose is to preserve the status quo until the court has an

opportunity to pass on the merits of a preliminary injunction, it is necessarily limited to a verybrief period because w hat may later prove to be a right of the party who is restrained is

suspended before even a tentative adjudication as to that right has been had. ° Because the

remedy is so drastic and may have such adverse consequences, a court's authority to issue

temporary restraining orders is carefully hedged in Rule 65(b) by protective provisions. And themost im portant of these protective prov isions is the limitation on the time du ring which such an

order can continue to b e effective. This Court held hearings on this matter on November 6, 7,and 8, 2013. Thus, a continuation of the TRO in this action would be inconsistent with Rule65(b).

As explained in defendants' papers opposing the preliminary injunction motion,

defend ants stand to lose hundred s of millions of dollars in tax credits and benefits if the project isnot completed within the required time frame 2 and, in order to meet those constraints, asbestosremoval must begin now. 3 Moreover, plaintiffs have acknowledged that they are artists of

limited means and that they can only post a modest bond. 4 If the TRO is extended without a

substantial bond, and defendants ultimately prevail, they will have no ability to recover any of

8The time limit under Rule 65(b) is written in terms of those issued without notice, but it is settled that

the provision is equally applicable to TR Os issued with notice. Pan A m. Wo rld Airways, Inc. v. FlightEngineers Intl Ass n, PA A Chapter, AF L-CIO, 306 F.2d 840, 842 (2d Cir. 1962).9

Id. at 842.

10 Id. at 843.

Id. See also Hudson v. Ba rr, 3 F.3d 970, 975-976 (6th Cir. 1993) (finding indefinite continuation of

TRO improper and ordering d istrict court to hold preliminary injunction hearing without delay).

12 Affidavit of Gerald Wolkoff in Opposition to Application for Temporary and Preliminary InjunctiveRelief, sworn to on October 17, 2013 ( Wo lkoff Aff. ), ¶J 22, 23; Affidavit of Linda Shaw in Oppositionto Application for Temporary and Preliminary Injunctive Relief, sworn to on October 15, 2013 ¶j 3-10;

Affidavit of Jay G. Seid en in O pposition to Application for Temporary and P reliminary Injunctive Relief,sworn to on Octob er 15, 2013, ¶ I J 2-4.

13 Wolkoff Aff. ¶ 22; Affidavit of Peter Palaz7o in Op position to Application for Temporary andPreliminary Injunctive Relief, sworn to on O ctober 16, 2013, I I 4.

14 Plaintiffs' Memorandum of Law in Support of their Motion for a Temporary Restraining Order andPreliminary Injunction, at 22.

4 5 1 7 6 4 _ 1 / 0 3 72 6 0 0 0 2




Novem ber 11, 2013

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the losses from plaintiffs or any other source, which wo uld be ov erwhelmingly inequitable.

Respectfully yours,

David G. Ebert

Enc.

cc: eannine Chanes, Esq. ([email protected] )

Roland R. Acevedo, Esq.([email protected] )

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General Information

Court United States District Court for the Eastern District of New York

Date Filed 2013-10-10 00:00:00

Cohen et al v. G&M Realty L.P. et al, Docket No. 1:13-cv-05612 (E.D.N.Y. Oct 10, 2013), Court Docket

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5 Pointz: Cohen_et_al_v_G_M_Realty_LP Defendants' letter brief.pdf