SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK. In the Matter of the Application of | Index No. 113194/10 CHELSEA BUSINESS & PROPERTY OWNERS’ ASSOCIATION, LLC, d/b/a CHELSEA = TAs Part 11 FLATIRON COALITION, : Petitioner, Justice Madden For an Order pursuant to Article 78 of the Civil Practice Law and Rules ~ against - ‘THE CITY OF NEW YORK; SETH DIAMOND, Commissioner for the Department of Homeless Services of the City of New York ("DHS"), GEORGE NASHAK, Deputy Commissioner for Adult Services for DHS; ROBERT D. LIMANDRI, Commissioner for the Department of Buildings of the City of New York ("DOB"); FATMA AMER, PE, First Deputy Commissioner for DOB; JAMES, P. COLGATE, R.A., Assistant Commissioner to Technical Affairs and Code Development for DOB; ; VITO MUSTACIUOLO, Deputy Commissioner for: the Department of Housing, Preservation & : Development of the City of New York, BOWERY RESIDENTS' COMMITTEE, INC.; 137 WEST 25th LLC; and DANIEL SHAVOLIAN, Respondents. “x RESPONDENT BOWERY RESIDENTS' COMMITTEE, INC.'S MEMORANDUM OF LAW IN OPPOSITION TO PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION GIBSON, DUNN & CRUTCHER LLP Attomeys for Respondent Bowery Residents’ Committee, Inc. 200 Park Avenue, 47th Floor ‘New York, New York 10166-0193 Telephone: (212) 351-3825 Facsimile: (212) 351-5219 Dated: New York, New York January 25, 2011TABLE OF CONTENTS PRELIMINARY STATEMENT .. FACTS... A. BRC Has Long Provided Much-Needed Social Services To The City a B. _ DHS Is Currently Conducting SEQRA, CEQR, and Fair Share Reviews and Plans to Register its Contract with BRC After the Reviews Are Complete: The CFC Filed This Suit In An Effort To Circumvent Review By The BSA And To Keep BRC From Moving Into The Site. I. The CFC Has No Likelihood Of Succeeding On Its Claims A. The CFC Has No Standing And Therefore Cannot Succeed On The Merits Of Its Claims . B. __ DHS Plans to Submit Its Proposed Contract with BRC to the Comptroller Upon Completion of SEQRA, CEQR, and Fair Share Reviews.. C. The CFC’s Claim That DHS Must Perform A SEQRA And CEQR Review Is Moot. 9 D. The CFC’s Claim That DHS Has Failed to Conduct a Fair Share Analysis Is Moot. 10 E. _ ULURP Review Of the Proposed Contract Between DHS and BRC Is Not Required... lM 1. The Proposed Contract Between DHS and BRC Is Not A Housing and Urban Renewal Plan . 12 2. The City Does Not Have a Lease For The Proposed Facility, De Facto Or Otherwise a “ 13 F. The Proposed Facility Does Not Violate The Administrative Code. 15 16 I. The CFC Will Not Suffer Irreparable Harm In the Absence of Injunctive Relief. Il. The Balance of the Equities Favors BRC..... CONCLUSIONTABLE OF AUTHORITIES Cases Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860 (1990) Brand v. Bartlett, 52 A.D.2d 272 (3d Dep't 1976). Brooks v. Giuliani, 84 F.3d 1454 (2d Cir. 1996) Chatham Green, Inc. v. Bloomberg, 1 Mise, 3d 434 (Sup. Ct. N.Y. Cnty. 2003) - soe 1B Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510 (1986) Cty Planning Bd. No. 4 (Manhattan) v. Homes for the Homeless, 158 Misc. 2d 184 (Sup. Ct. N.Y. Cnty. 1993).. Cnty. Bd. 3 v. State, 101 Misc. 2d 189 (Sup. Ct. Queens Cnty. 1979) Copart of Connecticut, Ine. v. Long Island Auto Realty, LL 42, A.D.3d 420 (2d Dep't 2007).. 19 Davis v. Dinkins, 206 A.D.2d 365 (2d Dep't 1994). 13,14 Dodgertown Homeowners Ass'n v. City of New York (In re Dodgertown), 235 A.D.2d 538 (2d Dep't 1997)... 3,17, 18 Ferrer v. Dinkins, 218 A.D.2d 89 (st Dep't 1996) 14 Golden v. Steam Heat, Inc., 216 A.D.2d 440 (2d Dep't 1995)... Guido v. Town of Ulster Town Bd., 74 A.D.3d 1536 3d Dep't 2010)..rcnronn Historie Albany Found., Ine. v. Joyce, 2010 WL 447048 (Sup. Ct. Albany Cnty. Feb. 10, 2010). Lucia Plaza v. City of New York (In re Lucia Plaza), 305 A.D.2d 604 (2d Dep't 2003)... N. Fork Preserve, Inc. v. Kaplan, 31 A.D.3d 403 (2d Dep't 2006)... 10 ii