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INGRAM YUZEKGAINENCARROLL &BERTOLOTTI, LLP
250 PARK AVENUE NEW YORK, NEW YORK 10177 Telephone: (212) 907-9600 Facsimile: (212) 907-9681 www.ingramllp.com
David G. Ebert
Writer's Direct Dial:212-907-9603 E-Mail: email@example.com
November 11, 2013
Member: Legal Netlink Alliance www. legalnetlink.net
VIA ECF Hon. Frederic Block United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Cohen et al. v. G & M Realty, L.P. et aL 13-cv-05612 (FB) (JMA)
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 landmark 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 any event. As explained in Deane v. City of New York Department of Buildings: 1 No provision of the New York City Administrative Code requires LPC to consider any request for landmark status that is submitted to it. To the contrary, LPC has unfettered discretion to decide whether to calendar an item to be considered for landmark designation. Section 1-02 of Title 63 of the Rules of the City of New York, adopted pursuant to N.Y.C. Admin. Code section 25319, provides that the Landmarks Preservation Commission may,
177 Misc. 2d 687 (Sup. Ct., N.Y. County 1998).
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November 11, 2013 Page 2 upon the adoption of a motion, calendar an item to be considered for landmark designation. 2 Thus, the LPC is not obligated to consider the matter. And if it did, the process could take several months or longer. 3 Moreover, to the extent a City Council vote is required, as Mr. Wolkoff testified, the City Council has already unanimously approved the Wolkoffs' project with full knowledge of the issues relating to 5 Pointz. There is absolutely no reason to believe that they would now reverse field and derail the project. The LPL protects "improvements" 4 that have "a special character or a special historical or aesthetic interest or value" and "many improvements representing the finest architectural products of distinct periods in the history of the city. . . . ."' "The LPC exists to preserve great works of architecture, not to preserve . . . 'the ambiance and special character' of . . . architecturally undistinguished" buildings. 6 The LPC has already determined 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 walls of a building is none of these things. Thus, even if plaintiffs resubmit their application, the LPC is sure to reject it on the same basis as before, as the building does not possess the requisite architectural qualities in any event. And, as the LPC further concluded,
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 Comm. to Pres. Pres. v. Tierney, 70 A.D.3d 576, 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 for evaluation, an evaluation, calendaring and Commission review, a public hearing, a discussion and designation report, a LPC vote, a City Planning and Commission report (for which a public hearing is required), and a City Council vote. The Mayor can veto the City Council and the City Council can override a Mayoral veto by two-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 Code § 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 landmark is a building, property, or object that has been designated by the Landmarks Preservation Commission because it has a special character or special historical or aesthetic interest or value as part of the development, heritage, or cultural characteristics of the city, state, or nation. Landmarks are not always buildings. 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 object is eligible for landmark status when at least part of it is thirty years old or older.
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even if the building somehow qualified, the artwork at issue—much of which was created a mere matter of months ago—is not old enough to be considered at all. Fed. R. Civ. P. 65(b)(2) provides that a TRO expires 14 days after entry, which may be extended 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 temporary restraining orders" because the "statute contemplates that notice and hearing shall result in an appropriate adjudication, i.e. the issuance or denial of a preliminary injunction, not an extension of the temporary 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 very brief period because what 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." 1° 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 the most important of these protective provisions is the limitation on the time during which such an order can continue to be effective." 11 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 Rule 65(b). As explained in defendants' papers opposing the preliminary injunction motion, defendants stand to lose hundreds of millions of dollars in tax credits and benefits if the project is not completed within the required time frame 12 and, in order to meet those constraints, asbestos removal must begin now. 13 Moreover, plaintiffs have acknowledged that they are "artists of limited means" and that they can only post "a modest bond." 14 If the TRO is extended without a substantial bond, and defendants ultimately prevail, they will have no ability to recover any of
The 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 TROs issued with notice. Pan Am. World Airways, Inc. v. Flight Engineers' Intl Ass'n, PAA Chapter, AFL-CIO, 306 F.2d 840, 842 (2d Cir. 1962). 9 Id. at 842. 10 Id. at 843. 11 Id. See also Hudson v. Barr, 3 F.3d 970, 975-976 (6th Cir. 1993) (finding indefinite continuation of TRO improper and ordering district court to hold preliminary injunction hearing without delay). 12 Affidavit of Gerald Wolkoff in Opposition to Application for Temporary and Preliminary Injunctive Relief, sworn to on October 17, 2013 ("Wolkoff Aff."), ¶J 22, 23; Affidavit of Linda Shaw in Opposition to Application for Temporary and Preliminary Injunctive Relief, sworn to on October 15, 2013 ¶j 3-10; Affidavit of Jay G. Seiden in Opposition to Application for Temporary and Preliminary Injunctive Relief, sworn to on October 15, 2013, ¶IJ 2-4. 13 Wolkoff Aff. ¶ 22; Affidavit of Peter Palaz7o in Opposition to Application for Temporary and Preliminary Injunctive Relief, sworn to on October 16, 2013, II 4. 14 Plaintiffs' Memorandum of Law in Support of their Motion for a Temporary Restraining Order and Preliminary Injunction, at 22.
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the losses from plaintiffs or any other source, which would be overwhelmingly inequitable. Respectfully yours,
David G. Ebert Enc. cc: Jeannine Chanes, Esq. (firstname.lastname@example.org) Roland R. Acevedo, Esq.(email@example.com )
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
Court Date Filed
United States District Court for the Eastern District of New York 2013-10-10 00:00:00
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