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SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK
------------------------------------------------------------------------X
MICHAEL LIENDO; DEBBIE KUEBER; ROBERT
KUEBER; KINGA KURZYNA; DANIEL KURZYNA;
WALTER E. CLAYTON, JR.; RICHARD HUBER;
PATRICK SHANLEY; DIANA SHANLEY; WILLIAM
WENZEL; DOROTHY WENZEL; MICHAEL J. PAPA;
CHERYL YODICE; GLORIA CATALANO; TRIUMPH
GYMNASTICS; GLENDALE PROPERTY OWNERS
ASSOCIATION; GLENDALE CIVIC ASSOCIATION
OF QUEENS; JUNIPER PARK CIVIC ASSOCIATION;
LIBERTY PARK HOMEOWNERS ASSOCIATION; and VERIFIED PETITION
MIDDLE VILLAGE PROPERTY OWNERS/ AND COMPLAINT
RESIDENTS ASSOCIATION,
Index No.

Petitioners-Plaintiffs,

- against -

CITY OF NEW YORK; BILL DIBLASIO, in his capacity


as Mayor of the City of New York; NEW YORK CITY
DEPARTMENT OF SOCIAL SERVICES; and STEVEN
BANKS, as Commissioner of the New York City
Department of Homeless Services,

Respondents-Defendants.
------------------------------------------------------------------------X

Petitioners-plaintiffs, by their attorney, Ruskin Moscou Faltischek, P.C., as and for their

Verified Petition and Complaint, state:

Nature of Proceeding

1. Based on the Mayor's plan entitled Turning the Tide on Homelessness in New

York City ("Plan"), the City is undertaking a program to build ninety (90) new homeless shelters

throughout the City to replace existing cluster housing for the homeless. However, instead of

Respondents-defendants researching and selecting appropriate locations for these community

shelters, the site selection has been delegated to private developers who give no consideration as

to whether a site is appropriate given the community where it is to be located, or whether it will

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raise a concern with surrounding communities because the site may be adjacent to public schools

or for other reasons.

"approve"
2. The Respondents-defendants then the site without any of reviews they

are required to undertake by law, such as under the New York State Environmental Quality

Review Act ("SEQRA") and New York City Fair Share Rules, where concerns regarding the

impact on community character, public services, traffic, etc., are required to be considered before

a decision is made to develop a site as a shelter. Instead, it is only after a site has been approved

that the required reviews are done, delegating the reviews to an afterthought and defeating the

entire purpose of the relevant statutes. This process was used to approve the selection of the

property located at 78-16 Cooper Avenue, Glendale, Queens, New York ("Premises") as a

shelter.

3. As fully set forth below, the Respondents-defendants have adopted the Plan which

sets forth the discretionary decision to discontinue the existing cluster housing for homeless

individuals and families, and replacing the cluster housing with community shelters. The Plan

was adopted without any review under SEQRA, with the Respondents-defendants not even

undertaking an Environmental Assessment or designating a lead agency to review a discretionary

government decision that will displace more than 10,000 individuals from their current living

arrangements.

4. the Respondents-defendants issued a Request for Proposals for Not-For-


Instead,

Profit entities to submit sites for the community shelters to be developed under the Plan. Then,

without undertaking even any site specific reviews required by law, the Respondents-defendants

"approve"
locations, such as the Premises, for the community shelters, and only then begin the

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reviews required by law, ignoring that the whole purpose of these reviews is to consider the

various impacts locating a shelter in a particular community will have.

5. Respondents-defendants, utterly ignoring their legal obligations, have now issued

days'
a thirty notice that a shelter will be built at the Premises. This failure to undertake the

required reviews prior to deciding to locate a shelter at the Premises has resulted in the ill-

advised decision to place a homeless shelter at this location even though it is near schools, lacks

emergency services, and the area is underserved open space, healthcare facilities, public

transportation and police services.

days'
6. Accordingly, the thirty (30) notice that a shelter will be built at the Premises

should be vacated, and the development of a homeless shelter at the Premises should be enjoined

until the appropriate reviews required by law are completed. Further, this Court should declare

that the development of the Premises as a homeless shelter is part of the Plan, and the

development of the Premises as a homeless shelter without SEQRA review of the Plan is

contrary to law and should be enjoined.

Jurisdiction

Petitioners-plaintiffs'
7. This Court has jurisdiction over the claims pursuant to

C.P.L.R. §301 and §7801.

Venue

8. Venue is proper in this County under C.P.L.R. §7804(b) and §506(b) because this

County is where Respondents-defendants have their principal office.

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Parties

A. Petitioners-Plaintiffs

9. Petitioner-plaintiff Michael Liendo ("Liendo") resides at 78-36 65th Street,

Glendale, New York 11385, which is approximately 2,000 feet from the Premises.

76th
10. Petitioners-plaintiffs Debbie and Robert Kueber ("Kuebers") reside at 77-54

Street, Glendale, New York 11385, which is approximately 750 feet from the Premises.

11. Petitioners-plaintiffs Kinga and Daniel Kurzyna ("Kurzynas") reside at 76-08 69

Place, Glendale, New York 11385, which is approximately 2,000 feet from the Premises.

76th
12. Petitioner-plaintiff Walter E. Clayton, Jr. ("Clayton") resides at 68-60 Street,

Middle Village, New York 11379, which is approximately 1,000 feet from the Premises.

74th
13. Petitioner-plaintiff Richard Huber ("Huber") resides at 77-58 Street,

Glendale, New York 11385, which is 1,000 feet from the Premises.

14. Petitioners-plaintiffs Patrick and Diana Shanley ("Shanleys") reside at 89-26

Aubrey Avenue, Glendale, New York 11385, which is 750 feet from the Premises.

15. Petitioners-plaintiffs William and Dorothy Wenzel ("Wenzels") reside at 71-44

Central Avenue, Glendale, New York 11385, which is 750 feet from the Premises.

72nd
16. Petitioner-plaintiff Michael J. Papa ("Papa") resides at 71-41 Street,

Glendale, New York 11385, which is 1,000 feet from the Premises.

17. Petitioner-plaintiff Cheryl Yodice ("Yodice") resides at 79-44 77th Road,

Glendale, New York 11385, which is approximately 1,000 feet from the Premises.

18. Petitioner-plaintiff Gloria Catalano ("Catalano") resides at 77-42 74th Street,

Glendale, New York 11385, which is approximately 1,200 feet from the Premises.

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19. Petitioner-plaintiff Triumph Gymnastics ("Triumph") is a gymnastics center

located at 79-41 Cooper Avenue, Glendale, New York 11385, and is adjacent to the Premises.

20. Petitioners-plaintiffs Liendo, Kuebers, Kurzynas, Clayton, Huber, Shanleys,

Wenzels, Papa, Yodice, Catalano, and Triumph would all suffer specific particular harm by the

conversion of the Premises into a homeless facility without the proper goverñmêñtal reviews and

when the building under construction does not comply with the applicable building codes. As a

result of their close proximity to the Premises, the increase strain on open space, educational,

sewer, water, police, fire protection and other public facilities will directly impact these

petitioners; the neighborhood character of where petitioners reside and do business will be

effected; the excessive traffic in the immediate vicinity of the Premises will be exacerbated,

causing specific harm to the Petitioners. Further, the harm and impact on these petitioners is

different and/or greater than the impact on the general population of New York City.

21. Petitioner-plaintiff Glendale Property Owners Association ("GPOA") is an

incorporated civic association formed in 1928 whose members reside in the immediate vicinity

of the Premises.

22. Petitioner-plaintiff Glendale Civic Association of Queens ("GCAQ") is an

incorporated civic association formed in 2005 whose members reside in the immediate vicinity

of the Premises.

23. Petitioner-plaintiff Juniper Park Civic Association ("JPCA") is an incorporated

civic association formed in 1942 whose members reside in the immediate vicinity of the

Premises.

24. Petitioner-plaintiff Liberty Park Homeowners Association ("LPHA") is a civic

association formed in 1926 whose members reside in the immediate vicinity of the Premises.

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25. Petitioner-plaintiff Middle Village Property Owners/Residents Association

("MVPORA") is an unincorporated civic association whose members reside in the immediate

vicinity of the Premises.

26. Petitioners-plaintiffs GPOA, GCAQ, JPCA, LPHA and MVPORA are

organizations whose purpose is to promote the general welfare of the residents within their

geographic area, including protecting their membership from governmental actions which will

harm their communities. These organizations have members who are located in the immediate

geographical vicinity of the Premises, and who, like the individual petitioners, will suffer

specific and particular harm from the project, including a detrimental impact from the increased

demand for public services in the area, including open space, educational, sewer, water, parking

and traffic, which is different in form and intensity to the impact on the general population of the

City of New York.

27. Each of the Petitioners-plaintiffs has suffered specific particular harm by the

decision to develop the Premises as a homeless shelter without compliance with applicable laws.

The lack of environmental review, and the failure to comply with other applicable laws, will

deprive Petitioners-plaintiffs of the process required by law before a homeless shelter is built at

the Premises. This lack of review will result in the increase strain on open space, educational,

sewer, water, police, fire protection and other resources, and the change in the character of their

neighborhood, not being considered before a decision to place a shelter at the Premises is made,

directly impacting the Petitioners-plaintiffs. Further, as a result of their close proximity to the

Premises, the harm and impact on these Petitioners-plaintiffs is different and/or greater than the

impact of the general population of the City of New York.

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B. Respondents-Defendants

28. Respondent-defendant City of New York ("City") is a municipal corporation

formed under the laws of the State of New York.

29. At all relevant times, respondent-defendant Bill Di Blasio has been the Mayor of

the City.

30. Respondent-defendant New York City Department of Social Services ("DSS") is

an agency within New York State, and oversees the New York City Department of Homeless

Services.

31. At all relevant times, respondent-defendant Steven Banks ("Banks") has been the

Commissioner of DSS.

32. The City, Bill Di Blasio, DSS and Banks are all a body or officer as defined by

C.P.L.R. §780(a).

Background and Facts

A. The Plan

33. Mayor de Blasio has adopted the Plan and has begun to implement it, including

the decision to close cluster housing and replace them with community shelters, displacing over

10,000 individuals. A copy of the Plan is attached as Exhibit 1 hereto.

34. The Plan states that the City will discontinue the use of cluster sites and

commercial hotel facilities and replace them with community shelters to be built and/or

expanded.

35. Specifically, the Plan provides:

We will get out of all 360 cluster sites and commercial hotel

facilities and replace them with a much smaller number of shelters.


We will open approximately 90 new shelters and expand

approximately 30 existing shelters. Our goal is to open

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approximately 20 new shelters in 2017 and 20 new shelters in


2018. As part of this we aim to develop five new high-
plan,

quality shelters per year. In addition, we will open shelters in

existing buildings. Renovation of the approximately 30 expansion


sites will begin in 2018 and take place on a rolling basis over the
next seven years. To avoid disruption in the lives of people

already housed in these buildings, the City will open 12 temporary


locations for them. Plan, P. iii.

36. The Plan further states:

Over the course of this plan, we will get out of every single one of
the 360 cluster apartment sites and commercial hotel facilities and
replace them with approximately 90 new shelters. We will also
renovate and expand the capacity of approximately 30 existing
shelters. On average we will be adding 60 beds to families with
children sites and 108 beds to single sites. This will shrink the
number of places homeless people are housed by about 50%,

vastly reducing the sprawl of shelter facilities throughout the city.

There are currently about 270 buildings with cluster apartments in


them. There are 10,000 people in about 3,000 cluster apartments
in these buildings. There are approximately 80 hotels being used
as shelter facilities. Around 7,500 New Yorkers occupy rooms in
these hotels. The total number of New Yorkers in all of these
facilities is almost a third of the people in DHS shelters.

* * *

The City will open approximately 20 new shelters annually for the
next five years to get to the goal of opening approximately 90 new

shelters. With our new shelters, residents will not have to move far

away from a job, a school, a grandmother, house of worship, a


friend or a medical clinic that has been part of the resident's life.

In addition, we will expand shelters capacity in existing buildings.


Renovation of the first sites will begin in 2018 and take place on a

rolling basis over the next seven years. The City will open 12

temporary locations for them. Plan, P. ix-x.

37. Accordingly, pursuant to the Plan, the City will terminate all three hundred sixty

(360) cluster apartment sites and commercial hotel facilities. At the time the Plan was adopted,

ten thousand (10,000) homeless individuals resided in approximately three thousand (3,000)

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cluster apartments at these sites, and seventy-five hundred (7,500) New Yorkers occupied rooms

in these hotels. The total number of homeless in these facilities was almost a third of the people

residing in City shelters. Plan, PP. ix, 78, 85, 89.

38. The residents of the cluster apartments and commercial hotels will be moved to

thirty (30) expanded existing shelters and ninety (90) new shelters, with the priority of placing

new shelters in areas where the DHS does not currently have a facility. Twenty (20) new

shelters shall be opened annually. Plan, PP. x, 85. Also, existing shelters shall be enlarged. The

City has identified thirty (30) underutilized shelter sites that will be renovated by adding an

average of one hundred eight (108) beds in single adult shelters or sixty-two (62) units in family

shelters. Plan, PP. 84, 90.

39. Finally, the Plan also provides:

At least 30 days prior to opening a new facility to shelter homeless


New Yorkers or 30 days prior to the public hearing on the
community-based organization's contract with DHS to operate the

shelter, whichever comes first, DHS will provide notice of details


the site - the social services
regarding including operator, address,
and - to the local board and each
population, capacity community
of the local elected officials, including the City Council Member,

Assembly Member, State Senator, Member of Congress, and


Borough President. Plan, P.110.

40. All in all, the Plan adopted by Respondents-defendants is an integrated

comprehensive policy adopted at the discretion of the Mayor to address homelessness throughout

the City, and contains specific discretionary decisions on the quantity and quality of homeless

facilities to be closed, and the homeless shelters to be built or expanded.

B. Premises

41. The Premises is currently a vacant former factory with a four story masonry

building. To the north and south of the Premises are one and two family residential properties,

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and immediately to the west of the Premises is a single family home. A map of the immediate

location of the Premises is attached as Exhibit 2.

42. To the east of the Premises are commercial establishments, and

industrial/manufacturing properties and several one and two family homes.

43. There are no multi-family apartment buildings in the immediate vicinity of the

Premises.

C. The Development of a Homeless Shelter at the Premises.

44. The Respondents-defendants have an on-going Request for Proposals ("RFP") for

the developrneni of homeless shelter by not-for-profit entities in accordance with the Plan.

As set forth on the web site for the Department of Homeless Services:

Open-Ended RFP
In order to meet its legal and moral obligation to provide shelter to
eligible New Yorkers in need, DHS maintains an open-ended
Request for Proposal process through which non-profit social
service providers submit proposes to augment capacity. Although

DHS does not target specific areas to open shelters, the agency
strives to keep families near their communities as much as

possible. This is an open-ended request for proposals, therefore,


there is no prescribed due date for submission. All suitable
proposals will be reviewed by the agency on an ongoing basis as

received. Non-profit social service providers may learn more


about submitting a proposal through HHS Accelerator. See Exhibit
3 hereto.

45. Pursuant to the RFP, the not-for-profits identify sites without undertaking any

governmental and then submit those sites to Respondents-defendants. The Respondents-


review,

"approve"
defendants, without undertaking any review, then the locations that will be developed

as a shelter.

46. Westhab, a not-for-profit, has submitted the Premises as a location for a homeless

shelter.

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47. Respondents-defendants approved the location and announced that the Premises

were to be developed as a homeless shelter for 200 homeless single men.

48. The Respondent-defendants then issued a thirty (30) day notice (Exhibit 4), which

provides:

August 22, 2019

Mr. Gary Giordano


District Manager, Community Board 5
61-23 Myrtle Avenue

Glendale, NY 11385

Re: DHS Shelter Notification - 78-16 Cooper Avenue

Dear Mr. Giordano,

I am writing to notify you of the planned opening of the following


program:

Shelter: 78-16 Cooper Avenue, Queens, New York 11385


- Capacity/population: Employment shelter for 200
single adult men experiencing homelessness
- Nonprofit service provider: Westhab
- Anticipated opening: 2020
Early

In 2017, Mayor Bill de Blasio announced "Turning the Tide on


City,"
Homelessness in New York his borough-by-borough
plan for addressing homelessness and the anique challenges of
those experiencing homelessness.

The Mayor's plan directly confronts a shelter system that expanded


without consistency under constant strain over the past four
Tide"
decades. "Turning the will complctcly end the use of 360
cluster sites and commercial hotel facilities citywide, while

opening around 90 traditional high-quality shelters, as well as

renovating and expanding about 30 existing shelter sites. This


Services'
will reduce the number of Department of Homeless
facilities by 45 percent across New York City and allow us to
maintain a more equitable, borough-based system that can more

effectively accommodate the individual needs of New Yorkers


from all five boroughs.

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In service of these needs, Westhab, a non-profit social services


provider that manages high-quality transitional housing, is in the
process of opening an employment shelter for 200 single adult men
at 78-16 Cooper Avenue Queens New York 11385. This facility
will provide 200 individuals experiencing homelessness with

safety, security, services, and support in their time of need, with

priority at this location offered to individuals from Queens.


Westhab will provide these essential social services to help clients
regain their footing with dignity. (emphasis supplied)

49. Community meetings were held and at no time did Respondent-defendants

indicate that the development of the Premise as a homeless shelter was contingent on anything.

D. Construction of the Shelter

50. Construction at the Premises to turn it into a homeless shelter is ongoing.

51. Yet, there is no dispute that no SEQRA review was undertaken prior to the

adoption of the Plan, and no SEQRA or Fair Share review was done before the Premises was

selected as a site for a community shelter under the Plan.

52. Initially, an application was submitted to the Department of Buildings to convert

the property to office space. However, that was just a ruse.

53. Simultaneously with the issuance of a thirty day notice, the application was

revised, and the building was now going to be a Hotel/Dormitories.

Summary of Argument

A. SEQRA Violations

54. As fully set forth in the accompanying memorandum of law, SEQRA was adopted

to assure that environmental concerns are reviewed and addressed prior to a governmental body

making discretionary decisions that may have an environmental impact.

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55. In the context of an urban setting, environmental concerns include the impact

upon schools, open space and parks, traffic, noise, the provision of goverñmêñtal services, and

the character of a neighborhood.

56. Both the regulations implementing SEQRA, as well as case law interpreting the

statute, mandate that when an action is part of a comprehensive plan, the environmental impacts

of just one isolated action is not permitted, but the entire plan must be reviewed.

57. SEQRA requires a step by step process starting with the designation of a lead

agency, an initial hard look to determine if the proposed action may have environmental impacts,

and if it does, the preparation of an environmental impact statement before a decision is made as

to whether to proceed.

58. Here, apparently none of this has been done for the Plan of which the project at

the Premises is a part, and until SEQRA is complied with regards to the Plan the project should

be enjoined.

59. As to any contention that only the potential impacts of the project at the Premises

need to be examined, such a process would violate the prohibition of segmentation.

60. The development of a shelter at the Premises is clearly part of the actions to be

taken under the Plan. In fact, the notice that the shelter was going to be built clearly states that

the shelter is one of the community shelters being built to replace cluster housing. The Plan is a

massive undertaking, which will clearly impact the City and the area surrounding the Premises.

61. Accordingly, the project cannot be viewed in isolation, and until the Plan is

properly vetted under SEQRA, the project should not proceed. See discussion in accompanying

Memorandum of Law of Chinese Staff and Workers Ass 'n v. City of New York, 68 N.Y.2d 509

N.Y.S.2d 499 (1986) and other authorities.

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62. In any case, a decision to proceed with the Project has been made without even a

site specific SEQRA review, and should be enjoined for this reason also.

63. The Respondents-defendants have selected the Premises pursuant to a submitted

construction is being in undertaken, and in various communications the Respondents-


RFP,

defendants have made clear that the Premises is going to be a homeless shelter.

64. Further, any contention that a final decision has not been made would be

disingenuous. Simply put, Respondents-defendants approved the Premises as a site for a

community shelter. Accordingly, the Respondents-defendants actions are ripe for judicial

review. See discussion in accompanying Memorandum of Law of Matter of Cor Route 5 Co.

LLC v. Village of Fayetteville, 147 A.D.3d 1432, 46 N.Y.S.3d 765 (4th Dep't 2017) and other

authorities.

65. And any attempt to correct this deficiency after the fact is clearly prohibited as a

matter of law. See discussion in accompanying Memorandum of Law of Matter of Tri-County

Taxpayers Association, Inc. v. Town Board of the Town of Queensbury, 55 N.Y.2d 41, 447

N.Y.S.2d 699 (1982) and other authorities.

66. Accordingly, the thirty day notice should be vacated and the development of the

Premises as a shelter should be enjoined until proper SEQRA review is undertaken.

B. Fair Share Rules

67. In 1989 the City Charter ("Charter") was amended to include the Fair Share

Rules that now govern the location of "city facilities". Charter §§ 203, 204.

68. A City Facility is a "facility used or occupied or to be used or occupied to meet

city needs that is located on real property owned or leased by the city or is operated by the city or

pursuant to a written agreement on behalf of the city". Charter § 203(c).

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69. The Fair Share Rules require that "citywide statement of needs concerning

facilities"
be submitted by the mayor to the city the council, borough presidents, borough boards

and community board. Charter §204(a).

70. Following the passage of the Fair Share Rules, Appendix A to Title 62 of the

RCNY was added and governs the criteria for the location of City Facilities.

71. Article 3(a) of Appendix A to Title 62 of the RCNY includes within the definition

Facility" Facility" accommodations"


of "City and "Residential which provide for "sleeping for,

among others, the homeless and mentally ill.

72. Strict scrutiny of the relevant RCNY guidelines is required with respect to the

construction or enlargement of a Residential Facility.

accommodations"
73. Upon information and belief, persons that require "sleeping in

Facility"
a "City are more likely than other persons to require and make use of other City

services.

74. According to a February 2017 Council report entitled Doing Our Fair Share,

Our Fair Share - NYC's System for Fairness in Siting Municipal


Getting Reforming Achieving

"beds-to-population"
Facilities the annually required index has not been completed by the City

Planning Commission since 2003. A copy of the report is annexed as Exhibit 5.

75. Upon information and belief, in selecting the Premises as a homeless shelter for

the Defendants-respondents did not comply with the Fair Share Rules.

76. As set forth above; College Point hosts numerous governmental facilities.

77. Accordingly, before the Premises was selected for a community homeless shelter

a Fair Share analysis was required.

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WHEREFORE, an Order and Judgment should be granted:

(a) preliminarily and pounanently enjoining this use of the real property located at

78-16 Cooper Avenue, Glendale, Queens, New York ("Premises") as a homeless shelter or to

provide other homeless services because a proper review under the New York State

Enviroñmêñtal Quality Review Act ("SEQRA") was not completed prior to a decision to develop

the Premises as a homeless shelter;

(b) vacating the notice that the shelter will the opened at the Premises until SEQRA

review is undertaken;

(c) declaring that the development of the Premises as a homeless shelter is part of the

plan adopted by Respondents-defendants for homeless services throughout the City of New York

and SEQRA review shall not be segmented by limiting the review to just the Premises;

(d) preliminarily and permanently enjoining the development of the Premises as a

homeless shelter as a violation of New York City's Fair Share Rules;

(e) together with the costs and disbursements of this proceeding; and

(f) granting such other and further relief as the Court deems proper.

Dated: Uniondale, New York


November 12, 2019
RUSKIN MOSCOU FALTISCHEK P.C.

By:
E. Christopher Murray
Attorney for Petitioners-Plaintiffs
East Tower, 15th Floor
1425 RXR Plaza

Uniondale, New York 11556

(516) 663-6600

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ATTORNEY'S VERIFICATION

STATE OF NEW YORK )


) ss:
COUNTY OF NASSAU )

The undersigned, an attorney admitted to practice in the Courts of the State of New York,

states the following upon information and belief, and under penalty of perjury pursuant to

CPLR §2106:

1. I am a partner with Ruskin Moscou for petitioners-


Faltischek, P.C., attorney

plaintiffs, and as such, I am fully familiar with all the facts and circumstances herein.

2. I have read the foregoing Verified Petition and Complaint and know the contents

thereof, that same is true to my knowledge, except as to those matters therein stated to be alleged

information and belief and that as to those matters I believe it to be true.

3. Affirmant further states that the sources of his knowledge and information are

reports and investigations, conversations, writings, transcripts, memorandum and other data

concerning the subject matter of the proceeding, including the fact that affirmant has represented

the plaintiff in all proceedings referenced herein.

4. I make this Verification pursuant to CPLR 3021(d)3 because the petitioners-

plaintiffs are located in a county other than where I maintain my office.

Dated: Uniondale, New York


November 12, 2019

E. CHRISTOPHER MURRAY

881006

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