FILED: KINGS COUNTY CLERK 06/02/ :41 PM INDEX NO /2016 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/02/2016

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1 FILED: KINGS COUNTY CLERK 06/02/ :41 PM INDEX NO /2016 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 06/02/2016 STATE OF NEW YORK SUPREME COURT : COUNTY OF KINGS IN THE MATTER OF THE APPLICATION OF MARSHA RIMLER, Individually and as President of LOVE BROOKLYN LIBRARIES, INC.; ALAN KAUFMAN-NUZZI; SHEPPARD PETERSON; and MARTA RAMOS Petitioners, For a Judgment Pursuant to Article 78 of the New York Civil Practice Laws and Rules vs. Index No /2016 (Jimenez-Salta, J.) THE CITY OF NEW YORK; THE NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION; THE NEW YORK CITY DEPARTMENT OF CITY WIDE ADMINISTRATIVE SERVICES; THE BROOKLYN PUBLIC LIBRARY; SAINT ANN S SCHOOL; OUR LADY OF LEBANON MARONITE CATHOLIC CHURCH; BROOKLYN BOROUGH BOARD; AND CADMAN ASSOCIATES LLC Respondents. MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENTS MOTION TO DISMISS THE VERIFIED PETITION AND IN SUPPORT PETITIONERS CROSS-MOTION FOR AN EXTENSION OF TIME TO EFFECTUATE SERVICE NUNC PRO TUNC I. INTRODUCTION Respondents have filed a Motion to Dismiss the Verified Petition, in lieu of a responsive answer or objections in point of law, based upon their claim that the Petitioners did not serve the Respondents within the fifteen (15) days allowed after the statute of limitations expired, pursuant to 306-b of the New York Civil Practice Laws and Rules. However, as will be explained in this Memorandum of Law, the statute of limitations has not yet run, and therefore, the service upon the Respondents was timely made. However, in the 1 of 10

2 event that this court determines that the statute of limitations has in fact run and that service of process was not effectuated within the fifteen (15) day period allowed by 306-b, that statute also allows this court discretion to extend the service period in the interest of justice, and in the alternative, Petitioners have crossed moved to extend the time for service nunc pro tunc. II. THE STATUTE OF LIMITATIONS HAVE NOT YET RUN, AND THEREFORE THE SERVICE WAS TIMELY follows: Respondents base their Motion to Dismiss on the provision 306-b, which are as Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within 120 days after the commencement of the action or proceeding, providing that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than 15 days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service. 306-b, Civil Practice Laws and Rules (emphasis added). There are four salient dates when certain actions took place affecting this project. The first date was when the Office of the Mayor determined that an Environmental Impact Statement pursuant to the New York State Environmental Quality Review Act, 8-101, et. seq., New York State Environmental Conservation Law, hereinafter (cited as SEQRA ), issued a negative declaration, indicating that this project will not create any significant adverse environmental consequences, and therefore an Environmental Impact Statement need not be drafted. The issuance of the negative declaration ends the SEQRA review process. 2 2 of 10

3 The second important date was on November 2, 2015, when the City Planning Commission approved this project. Then on December 16, 2015, the City Council voted to approve this project. Finally, on March 1, 2015, the Brooklyn Borough Board approved the project. It was the March 1, 2015 Brooklyn Borough Board approval that was the last approval necessary to allow this project to go forward. Upon the approval of the Brooklyn Borough Board on March 1, 2015, the Petitioners no longer had any further administrative remedy or other way in which Petitioners could ameliorate their environmental concerns or otherwise stop what they believe to be a project that will have significant adverse environmental consequences. Therefore, it was after the March 1, 2015 decision to allow the project to go forward that the decision became concrete and final and further adversely effected the Petitioners. Therefore, on April 15, 2016, well within the four month statute of limitations period which had started to run on March 1, 2015, the Petitioners filed their Petition and Notice of Petition. It is also coincidental that the April 15, 2016 date was within four months of the City Council approval on December 16, 2015, but of course not within four months of the negative declaration or the City Planning Commission approval on November 2, For whatever reason, and probably because Petitioners filed their Petition and Notice of Petition on April 15, 2016, four months after the City Council approval, the Respondents claim in this Motion that the statute of limitations began to run on December 16, 2015, and therefore ended on April 16, 2016, thus agreeing that the Petition and Notice of Petition was filed timely based upon the starting date that they have chosen. There is no explanation why the Respondents did not choose the November 2, 2015 date in order to claim that the Petition and 3 3 of 10

4 Notice of Petition was not timely filed, or why the March 1, 2015 date was not the appropriate starting date for the statute of limitations to run. The Court of Appeals, in decisions decided after the cases cited by the Respondents, has given clear instructions in a land use or SEQRA case concerning when the statute of limitations will begin to run. Therefore, in the case of Ranco Sand and Stone Corp. v. Patrick Vecchio, 27 N.Y.3d 92, (March 31, 2016) relying extensively on Matter of Gordon v. Rush, 100 N.Y.2d 236 (2003) the court indicated: In the context of a challenge of an action pursuant to SEQRA, this court held in Gordon, that a positive declaration is ripe for judicial review when two requirements are satisfied. First, the action must impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process. Matter of Gordon, 100 N.Y.2d at 242, [quotation marks and citations omitted] This threshold requirement consists of a pragmatic evaluation of whether the decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury. (Id.) Second, there must be a finding that the apparent harm inflicted by the action may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. ( Id.) Therefore, there is a two step process to determine when the statute of limitations begins to run in a SEQRA case. First, there must be a concrete and definitive decision by the decision maker to approve the project, and second there must not be any further administrative steps where further approval might be necessary that would ameliorate the consequences to the Petitioner or avoid the project. Accord, Patel v. Board of Trustees of Inc. Village of Muttontown, 115 A.D.3d 862, 982 (N.Y.S.2d 142 2d Dept. 2014) (a SEQR finding statement is not ripe for challenge prior to the agency s determinations with respect to the use application) Dreves v. New York Power 4 4 of 10

5 Authority, 131 A.D.2d 182, 520 N.Y.S.2d 956, 958 (3 rd Dept. 1987); Town of Yorktown v. New York State Dept. of Mental Hygiene, 92 A.D.2d 897, 898, 459 N.Y.S.2d 891, 892 (2 nd Dept. 1983) order aff d. 59 N.Y.2d 999, 466 N.Y.S.2d N.E.2d 1254 (1983); Young v. Board of Trustees of Village of Blasdell, 221 A.D.2d 975, 634 N.Y.2d 605, 608 (4 th Dept. 1995) order aff d, 89 N.Y.2d 846, 652 N.Y.S.2d 729, 675 N.E.2d 464 (1996). Concerning the second prong of the statute of limitations, that the injury inflicted may not be prevented or significantly ameliorated by further administrative action, see e.g., Greenthumb Lawn Care, Inc. v. Iwanowicz, 107 A.D.3d 1402, 967 N.Y.S.2d 542, (4 th Dept. 2013), Carter v. Walt Whitman New York City Housing Authority (NYCHA), 98 A.D.3d 1113, 951 N.Y.S.2d 210 (2 nd Dept. 2012). indicates that The Commentators are also in accord with these decisions. For example, Carmody- Wait In order to determine whether an agency determination is final, a two-part test is applied. First, the agency must have reached a definitive position on the issue that inflicts an actual, concrete injury, and second, the injury inflicted must not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party. If further agency proceedings might render the disputed issue moot or academic, then the agency position cannot be considered definitive or the injury actual or concrete. 24 Carmody-Wait 145:46, also see 9 N.Y. Prac. Environmental Law and Regulations in New York 4:38 (2 nd Ed.). Therefore, as can been seen, since the Brooklyn Borough Board could have denied approval of this project, the action did not become concrete until March 1, 2015, when the 5 5 of 10

6 Brooklyn Borough Board approved the project, and therefore there was no further steps that could have been taken to prevent the project or ameliorate its perceived environmental consequences. For that reason, Petitioners have in fact complied with Section 306-b, since the 15-day period does not begin to run until the end of the statute of limitations period, and all Respondents were served within the statute of limitations period. III. IN THE ALTERNATIVE, PETITIONERS REQUEST AN EXTENSION TO EFFECTUATE SERVICE UPON THE RESPONDENTS, NUNC PRO TUNC While Petitioners believe that it is clear that the statute of limitations was not run, and therefore 306-b was complied with, Petitioners would be remiss in not requesting, in the alternative, that if this court determines that the 15-day service period of 306-b is applicable from the date of April 16, 2016, as claimed by the Respondents, Petitioners request that this court extend the period of service nunc pro tunc to dates where service has been effectuated While Respondents do not believe that such an extension should be granted in the interest of justice, both Respondents and Petitioners agree that there are many factors that the court can consider in determining whether or not to grant such an extension in the interest of justice. As indicated by the Respondents, these include the diligence in serving the Respondents or attempting to serve the Respondents, whether or not the claim is meritorious, the length beyond the 15-day service period upon when the Respondents were served, whether there is prejudice to the Respondents in the late service, and any other reason that the court deems relevant to the issue of whether an extension should be granted. Petitioners base their request for an extension, if it is necessary, on the following factors: 6 6 of 10

7 1. Petitioners certainly had the right to rely on their belief that the statute of limitations did not run until March 1, 2015, or at least colorably so, and therefore should not be penalized due to the fact that service was not effectuated within 15 days of April 15, 2016, only one of the interim approvals. 2. The delay in service, if the date chosen by the Respondents is correct, is not lengthy, and such service was effectuated within a few days to a few weeks after the Respondents 15-day period expired. 3. While the court must ultimately choose whether or not SEQRA has been violated in this case, the claim of the Petitioners is certainly meritorious and colorable. While Petitioners will not include in this Memorandum of Law the full argument on the merits of the case, the Verified Petition, which must be considered as true when the court considers a motion to dismiss, supports the meritorious nature of this proceeding. First of all, the action at issue is what is called a Type I action for SEQRA purposes. As indicated in paragraph 31 of the Petition, a Type I action carries with it a presumption that an Environmental Impact Statement need be drafted, and due to that presumption, the bar of requiring an Environmental Impact Statement is very low, particularly when coupled with the fact that, as indicated in paragraph 29 of the Petition, an Environmental Impact Statement needs to prepared if the proposed action may include the potential of at least one significant adverse environmental impact. 6 N.Y.C.R.R (A)(1) [emphasis added]. Finally, in paragraph 34 of the Petition, Petitioners list the criteria for the necessity for preparing an Environmental Impact Statement, and if any one of those criteria may exist, an Environmental Impact Statement has to be drafted. In paragraph 36 of the Petition, Petitioners lay out those criteria which Petitioners believe would require the drafting of an Environmental 7 7 of 10

8 Impact Statement. For example, at paragraph 36(c) and paragraphs 18 and 19 of the Petition, it is indicated that the Brooklyn Heights Branch Library s architect was Francis Keally, a very significant architect nationally and within the City of New York. Besides the Brooklyn Heights Public Library, Keally was also the architect for the Brooklyn Public Library, the campus design plan for the Carnegie institute of Technology, the public library in Berlin Germany, the Oregon State Capitol, and the expansion of the Detroit Public Library. Besides Keally s national importance, he was also very important to the civic affairs of the City of New York. He was president of the Municipal Art Society, President of the Fine Arts Federation of New York, President of the New York Chapter of the American Institute of Architects, and his continuing advocacy for preservation of historic buildings led to the adoption of the New York City s historic preservation ordinance, which is ironic since the City of New York is attempting to demolish one of his important works in this case. Besides the importance of Francis Keally, the artist who designed the artwork on the facade of the Brooklyn Heights Library is Clemente Spampinato, also a nationally known artist. He is especially famous for his sculpture of sport and the American west. Spampinato, among many of his one man exhibitions, had an exhibition of Sport and Western at the National Art Museum of Sport at Madison Square Garden. He was commissioned by the class committee of the United States Naval Academy to create a bronze statue of the Navy Goat mascot, installed in 1957 at Annapolis, and in 1980 he was chosen to exhibit his works during the XIII Winter Olympic Games at Lake Placid, New York. The United States Information Agency chose Mr. Spampinato to represent the United States in the European and Russian exhibitions entitled Reflections: Images of America. Mr. Spampinato was a fellow of the National Sculpture 8 8 of 10

9 Society, the International American Institute, and the Gold Medal Artist Committee of the International Fine Arts Council. In spite of the fame and importance of both the architect and artist of the Brooklyn Heights Branch Library, in the lengthy Negative Declaration and Environmental Assessment concerning this project, neither the importance of the architect or the artist are even mentioned. Since the lead agency must identify all areas of environmental concern, and take a hard look at them, by not including the importance of the architect and artist, whose work will be lost to the demolition of the Brooklyn Heights Branch Library, the Respondents have failed the hard look test on this issue alone. Therefore, it is clear that Petitioners claims are colorably meritorious. 4. Finally, no prejudice can be attributed to the short delay in service by the Respondents. While they claim that there is prejudice because it is important that this project moves along, the fact remains that any delay in service did not change the return date of June 10, 2016, and any delay that may occur will be caused by the Respondents, since if their Motion to Dismiss is denied, they will then have five (5) days to submit their answering response, and a new return date will have to be scheduled. Moreover, the kind of prejudice referred to by the cases is loss of evidence on effecting the ability to defend the proceeding, which is not alleged here. Therefore, it is respectfully submitted that there are numerous reasons to extend, if necessary, the service date nunc pro tunc to the date of service of the Notice of Petition and Petition on the various Respondents and respectfully request that this court do so. 9 9 of 10

10 IV. CONCLUSION For all the foregoing reasons, it is respectfully submitted that Respondents Motion to Dismiss be denied in its entirety, or in the alternative, Petitioners Cross-Motion for an Extension of Time to Serve the Respondents nunc pro tunc be granted. DATED: Buffalo, New York June 2, 2016 Respectfully Submitted, RICHARD J. LIPPES, ESQ. LIPPES & LIPPES 1109 Delaware Avenue Buffalo, New York Telephone: (716) Attorneys for Petitioners of 10