FILED: NEW YORK COUNTY CLERK 02/05/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/05/2016

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1 FILED: NEW YORK COUNTY CLERK 02/05/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 02/05/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of MAGGI PEYTON, Petitioner, For an Order of Certiorari pursuant to New York City Administrative Code Ch.2-Sec , : Index No /15 IAS Part 6 : Justice Lobis - against - NEW YORK CITY BOARD OF STANDARDS AND APPEALS; MARGERY PERLMUTTER, Chair; SUSAN M. HINKSON, Vice-Chair; EILEEN MONTANEZ and DORA OTTLEY-BROWN, each in her capacity as a Commissioner of the Board of Standards and Appeals; JEWISH HOME LIFECARE, INC.; and PWV ACQUISITION, LLC, Respondents. : VERIFIED ANSWER Respondent PWV Acquisition, LLC ("PWVA"), by its attorneys Kramer Levin Naftalis & Frankel LLP, for its verified answer to the verified petition, shows and alleges as follows: 1. PWVA denies the allegations contained in paragraph 1 of the petition, except that it admits that (a) petitioner seeks relief in the nature of certiorari, pursuant to CPLR Article 78 and of the New York City Administrative Code, to set aside the October 22, 2015 resolution of respondent New York City Board of Standards and Appeals (the "BSA"), and (b) the BSA's resolution affirmed a decision of the New York City Department of Buildings ("DOB") that refused to deny a permit authorizing construction of a 20-story nursing home on vacant land on West 97th Street in Manhattan that is owned by PWVA.

2 2. PWVA admits the allegations contained in paragraph 2 of the petition but respectfully refers the Court to the August 22, 2014 letter sent to the DOB Commissioner by petitioner, as President of the Park West Village Tenants' Association, and by 14 other named individuals, collectively styling themselves as "The Stakeholders of the Park West Village Neighborhood," and to DOB's November 10, 2014 response to the letter, for a true and complete statement of their contents. 3. PWVA admits the allegations contained in paragraph 3 of the petition but respectfully refers the Court to the BSA's October 22, 2015 resolution for a true and complete statement of its contents. 4. PWVA denies the allegations contained in paragraph 4 of the petition, except that it admits that respondent Jewish Home Lifecare, Inc. ("JHL") is a corporation that owns and operates a nursing facility on West 106th Street in Manhattan and proposes to build a new 20-story nursing facility on West 97th Street, on a vacant parcel that formerly was used as a parking lot, and that is part of the Park West Village complex and situated on a super-block contains four Park West Village residential buildings. 5. PWVA admits the allegations contained in paragraph 5 of the petition. 6. PWVA admits the allegations contained in paragraph 6 of the petition, except that it denies that the tax lots occupied by two other residential buildings in Park West Village are adjacent to Lot 5, and PWVA respectfully refers the Court to the August 22, 2014 letter to DOB Commissioner Chandler for a true and complete statement of its contents. 7. PWVA admits the allegations contained in paragraph 7 of the petition, except that it denies that the building proposed by JHL will not comply with, or will create or increase a non-compliance with, the minimum open space requirement established by of KL

3 the New York City Zoning Resolution (the "Zoning Resolution"), and PWVA respectfully refers the Court to the August 22, 2014 letter for a true and complete statement of its contents. 8. PWVA denies the allegations contained in the last sentence of paragraph 8 of the petition, and PWVA does not respond to the remaining allegations contained in paragraph 8 because those allegations consist exclusively of conclusions of law to which a response is not required. 9. PWVA admits the allegations contained in paragraph 9 of the petition, except that it denies that the analysis of open space requirements in the memorandum that accompanied the August 22, 2014 "stakeholder" letter to the DOB Commissioner is correct, and it respectfully refers this Court to the memorandum for a true and complete statement of its contents. 10. PWVA admits the allegations contained in paragraph 10 of the petition but respectfully refers the Court to First Deputy Commissioner Fariello's November 10, 2014 letter to petitioner for a true and complete statement of its contents. 11. PWVA denies the allegations contained in paragraph 11 of the petition, except that it admits that Commissioner Fariello's determination included as open space rooftop gardens that exist on one of the residential buildings at Park West Village and are accessible to residents of that building but not residents of other buildings at Park West Village, and PWVA respectfully refers the Court to Commissioner Fariello's letter for a true and complete statement of its contents. 12. PWVA does not respond to the allegations contained in paragraph 12 of the petition because they consist exclusively conclusions of law to which a response is not required, except that PWVA admits that on February 2, 2011, the Council of the City of New KU

4 York approved amendments to the text of the Zoning Resolution that had been drafted by the City's Department of City Planning. 13. PWVA does not respond to the allegations contained in paragraph 13 of the petition because they consist exclusively of conclusions of law to which a response is not required. 14. PWVA does not respond to the allegations contained in paragraph 14 of the petition because they consist exclusively of conclusions of law to which a response is not required. 15. PWVA does not respond to the allegations contained in paragraph 15 of the petition because they consist exclusively of conclusions of law to which a response is not required. 16. PWVA does not respond to the allegations contained in paragraph 16 of the petition because they consist exclusively of conclusions of law to which a response is not required. 17. PWVA does not respond to the allegations contained in paragraph 17 of the petition because they consist exclusively of conclusions of law to which a response is not required, except that PWVA denies that the Department of City Planning, which is the staff adjunct to the City Planning Commission, enacted anything, and PWVA respectfully refers the Court to the City Planning Commission's January 5, 2011 report (No. N (A) ZRY) for a true and complete statement of the Commission's intentions in approving the 2011 amendments to the Zoning Resolution. 18. PWVA admits the allegations contained in paragraph 18 of the petition, except that it denies that the 2011 amendments to the Zoning Resolution are relevant to the KL I 4

5 correctness of the DOB and BSA determinations that are challenged in this proceeding, and PWVA respectfully refers this Court to the February 3, 2009 BSA resolution regarding 808 Columbus Avenue for a true and complete statement of its contents. 19. PWVA admits the allegations contained in paragraph 19 of the petition, except that it denies that the argument about the meaning of the word "building" in the Zoning Resolution was the only argument advanced by the owner of 808 Columbus Avenue or DOB on the prior appeal or the only basis for the BSA's decision on that appeal, and PWVA respectfully refers the Court to the BSA's February 3, 2009 resolution and to the submissions made to the BSA by the owner and DOB for a true and complete statement of their contents. 20. PWVA denies the allegations contained in paragraph 20 of the petition and respectfully refers the Court to the BSA's February 3, 2009 resolution for a true and complete statement of its contents. 21. PWVA denies the allegations contained in paragraph 21 of the petition, except that PWVA lacks knowledge or information sufficient to form a belief as to the truth of the allegations about a perusal of the BSA's website by petitioner's counsel and the purported non-existence of comparable prior BSA cases, and PWVA respectfully refers the Court to the BSA's February 3, 2009 resolution for a true and complete statement of its contents. 22. PWVA denies the allegations contained in paragraph 22 of the petition, except that it admits that the text of the Zoning Resolution was amended in 2011, and it respectfully refers this Court to the 2011 amendments for a true and complete statement of their contents. PWVA denies the allegations contained in paragraph 23 of the petition, except that PWVA admits that petitioner's counsel made the arguments there set forth, which KL

6 arguments are not correct, and PWVA respectfully refers the Court to the record of the proceedings before the BSA for a true and complete statement of its contents. 24. PWVA denies the allegations contained in paragraph 24 of the petition, except that PWVA admits that JHL submitted two exhibits to the BSA, including an analysis of open space that had been prepared by the architectural firm of Costas Kondylis & Partners in 2006, but respectfully refers the Court to the record of the proceedings before the BSA, and more specifically to the 2006 analysis by Costas Kondylis & Partners, for a true and complete statement of their contents. 25. PWVA lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 25 of the petition, except that it admits that (a) the 10,000-square-foot rectangle shown on the 2006 open space allocation was hypothetical and could apply to any qualifying community facility, and (b) JHL was not a party to or a participant in the 2009 proceedings before the BSA. 26. PWVA does not respond to the allegations contained in paragraph 26 of the petition because they consist exclusively of conclusions of law to which no response is required, except that PWVA admits that JHL does not have (and acknowledged to the BSA that it does not have) a vested right to the 2006 open space analysis but JHL contended correctly that the February 3, 2009 BSA resolution and PWVA's construction of the building at 808 Columbus Avenue in reliance upon and pursuant to that BSA determination has created a fully vested condition, pursuant to which reliance upon the rooftop gardens at 808 Columbus Avenue as qualifying open space cannot be challenged by the City's agencies, petitioner or anyone else, and PWVA respectfully refers thc Court to the record of the proceedings before the BSA for a true and complete statement of its contents. KL

7 27. PWVA denies the allegations contained in paragraph 27 of the petition, except that PWVA admits that JHL also submitted an open space analysis dated November 15, 2011, to the BSA and that the Zoning Resolution was amended in February 2011, and PWVA respectfully refers the Court to the record of the proceedings before the BSA, including in particular the November 15, 2011 open space analysis, and to the 2011 amendments to the Zoning Resolution, for a true and complete statement of their contents. 28. PWVA admits the allegations contained in paragraph 28 of the petition, except that PWVA denies that the rooftop gardens at 808 Columbus Avenue are inaccessible to residents of that building, and PWVA respectfully refers the Court to Commissioner Fariello's November 10, 2014 letter and the November 15, 2011 space allocation for a true and complete statement of their contents. 29. PWVA denies the allegations contained in paragraph 29 of the petition, except that PWVA admits that the quoted sentence appears in Commissioner Fariello's November 10, 2014, contains the quoted language, PWVA respectfully refers the Court to the record of the proceedings before the BSA, including in particular Commissioner Fariello's November 10, 2014 letter, for a true and complete statement of their contents. 30. PWVA denies the allegations contained in paragraph 30 of the petition, except that PWVA does not respond to the allegations contained in the second sentence of paragraph 30 because they consist exclusively of conclusions of law to which no response is required, and PWVA respectfully refers the Court to Commissioner Fariello's November 10, 2014 letter for a true and complete statement of its contents. 31. PWVA denies the allegations contained in paragraph 31 of the petition, except that PWVA admits that JHL obtained the August 27, 2012 DOB determination, and KL i 7

8 PWVA respectfully refers the Court to that determination for a true and complete statement of its contents. 32. PWVA denies the allegations contained in paragraph 32 of the petition, except that PWVA admits that JHL obtained the August 31, 2012 DOB determination, and PWVA respectfully refers the Court to that determination for a true and complete statement of its contents. 33. PWVA denies the allegations contained in paragraph 33 of the petition and respectfully refers the Court to the DOB determinations that are referred to in the paragraph for a true and complete statement of their contents. 34. PWVA denies the allegations contained in paragraph 34 of the petition. 35. PWVA denies the allegations contained in paragraph 35 of the petition, except that it admits the allegations contained in the first three sentences of paragraph PWVA denies the allegations contained in paragraph 36 of the petition, except that it admits that petitioner submitted an architect's rendering to the BSA and displayed photographs at the April 14, 2015 BSA public hearing, and PWVA respectfully refers the Court to the record of the proceedings before the BSA for a true and complete statement of their contents. 37. PWVA admits the allegations contained in paragraph 37 of the petition, except denies that petitioner is entitled to any relief. General Denial 38. PWVA denies each and every allegation of the petition to which a response is required and that is not otherwise responded to in this answer. KL I 8

9 Affirmative Statement of the Case A. Park West Village 39. Park West Village was built as a seven-building apartment complex in the 1950s and 1960s on two super-blocks bounded by West 97th Street on the south, Central Park West on the east, West 100th Street on the north and Amsterdam Avenue on the west. Columbus Avenue separates these two super-blocks. This case concerns a nursing facility now proposed by JHL for construction on the western super-block. This super-block is identified on the City's tax map as Block 1852, and the parcel on which the nursing facility is to be built is tax lot The seven original Park West Village apartment buildings were developed as part of an urban renewal project on land acquired by the City through condemnation, and with the assistance of federal funds. The City then conveyed the land to a private developer, subject to a deed restriction that obligated the developer and its successors to construct the buildings in accordance with a redevelopment plan adopted by the City's Board of Estimate, and to maintain the site in conformity with this redevelopment plan for a period of 40 years from the date on which the last building was ready for occupancy. This 40-year restriction expired in Respondent PWVA acquired Park West Village (except for units in two buildings that had been converted to condominium ownership) in anticipation of the expiration of the 40-year restriction, and the ability to develop additional buildings at Park West Village in compliance with the City's Zoning Resolution. PWV's efforts precipitated a series of lawsuits by Park West Village tenants objecting to new development. 42. First, the tenants' association and some tenants sued for a determination that the 40-year restriction preventing additional development remained in effect for more several months, but they discontinued the action after Justice Bernard J. Fried of this Court denied a preliminary injunction to halt site preparation work and held that the plaintiffs did not KL I 9

10 have a likelihood of ultimate success. Park W Vill. Tenants Ass 'n v. PWV Acquisition LLC, Index No /06 (Sup. Ct. N.Y. Co. Dec. 8, 2006). A second lawsuit asserted, unsuccessfully, that federal law overrode the City's redevelopment plan and perpetually prohibited further development at the site. Chenkin v. 808 Columbus LLC, 570 F. Supp. 2d 510 (S.D.N.Y. 2008). A third dispute claimed that the replacement of an outdoor parking lot used by tenants with an underground parking garage constituted a diminution of services in violation of the tenants' rights under the Rent Stabilization Law; after two referrals by Justice Anil C. Singh of this Court to the State Division of Housing and Community Renewal ("DHCR") (see Peyton v. PWV Acquisition LLC, 35 Misc.3d 1207(A), N.Y. Misc. LEXIS 1509 (Sup. Ct. N.Y. Co. April 5, 2012), and Park W Vill. Tenants' Ass 'n v. Div 'n of Housing & Community Renewal, 2014 N.Y. Misc. LEXIS 3279 (Sup. Ct. N.Y. Co. July 22, 2014)), DHCR ruled in a July 9, 2015 decision that there was no diminution of services (Matter of Park W Vill. Tenants' Ass 'n, Docket Nos. CV410005RP, etc.); the tenants have not challenged that determination. Another lawsuit which was discontinued prior to any decision by the court challenged the BSA's 2009 determination that the rooftop gardens at 808 Columbus Avenue qualified as open space under the Zoning Resolution notwithstanding the fact that they are not accessible to residents of other Park West Village buildings on the same super-block. Bunten v. N.Y C. Board of Standards and Appeals, Index No /09 (Sup. Ct. N.Y. Co.). 43. More recently, as this Court knows, Park West Village tenants sued to challenge the adequacy of the Final Environmental Impact Statement ("FEIS") that had been prepared in connection with JHL's application for a Certificate of Need for its proposed nursing KU

11 facility. Livingston v. NYS. Dep't of Health, Index No /15 (Sup. Ct. N.Y. Co. Dec. 9, 2015). 1 B. The Prior Dispute About Open Space 44. The first new building to be constructed by PWVA or its affiliates was 808 Columbus Avenue, situated on the super-block on the west side of Columbus Avenue (Block 1852). It is a 29-story primarily residential building, with an accessory parking garage and a one-story extension containing a Whole Foods store and other commercial space. The roof of this one-story extension is occupied by gardens that are accessible to the building's residents but not to residents of other Park West Village buildings. 45. DOB issued a permit authorizing construction of this building in February In July 2007, the then Manhattan Borough President wrote to DOB to request that this permit be revoked on multiple grounds, including a claim that the gardens on the rooftop extension at 808 Columbus Avenue would not qualify as open space under the Zoning Resolution because "open space must be 'accessible to and useable by all persons occupying a dwelling unit or a rooming unit on the zoning lot," which included, in the case of 808 Columbus Avenue, "the residents of the existing Park West Village Buildings." By letter dated May 28, 2008, DOB's Manhattan Borough Commissioner rejected these objections, ruling, in pertinent part, that "the ZR does not specify that open space on a multiple building zoning lot must be shared space that is commonly accessible to all occupants of the zoning lot." 46. Park West Village residents and elected officials appealed to the BSA, which received extensive written submissions from both sides, held a three-session public In its December 9, 2015 decision, this Court held, in response to a separate lawsuit brought by parents of students at a nearby public elementary school, that the FEIS was inadequate in its consideration of potential environmental impacts on the school (Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Index No /15), but the Court did not accept any of the objections to the FEIS that were asserted by Park West Village tenants in the Livingston lawsuit. KL I 11

12 hearing, and conducted a site visit. The BSA's Commissioners then voted unanimously to sustain DOB's determination. In its resolution dated February 3, 2009, the BSA concluded, among other things, that (1) "the purported intent of the Zoning Resolution is not clearly stated," (2) "as each of the existing buildings is allocated an amount of open space that is in excess of that which would be required under the Zoning Resolution if they were located on separate lots, it cannot be seen how those residents would be deprived of an equitable share of open space by the proposed building," and (3) "the open space proposed for the subject site does not violate the open space requirements of the Zoning Resolution" and instead "complies with the requirements of' the Zoning Resolution (R 42-48) The tenants and officials who had appealed to the BSA commenced an Article 78 proceeding in this Court to annul the BSA's determination (Bunten v. NY.C. Board of Standards and Appeals, Index No /09), but they discontinued the case before any decision was rendered by the Court. The statute of limitation on "a proceeding against a body or officer" is four months, "[u]nless a shorter time is provided in the law authorizing the proceeding" (CPLR 217). The law authorizing a proceeding to challenge a BSA determination, City Administrative Code , establishes a 30-day statute of limitation. Therefore, the statute of limitation applicable to a challenge to the BSA's 2009 determination has long since expired, and the BSA's determination is final, constitutes res judicata and is no longer subject to judicial review. C. The Present Dispute 48. JHL intends to construct a new nursing care facility on the portion of the same zoning lot that is identified as Lot 5 on the tax map, which JHL will acquire from PWVA, 2 BSA. Citations in this verified answer to "R" refer to the record of the proceedings before the KL I 12

13 the lot's present owner. The new facility will operate by an innovative model of long-term care called The Greenhouse model, which provides each resident with an intimate living environment that allows enhanced interaction with staff, and more independence, than traditional nursing homes typically afford. The Greenhouse model creates a series of small "homes" containing a maximum of 12 elders and staff members, with each home organized to function independently, with a self-managed work team providing the full range of personal care and clinical services of a nursing home. As the first Greenhouse high-rise in a major metropolitan setting and the single largest elder-care capital project in New York, this facility is a very important project for the City's rapidly aging population and for the City as a whole. 49. On December 14, 2013, DOB approved JHL's application for a construction permit and, in accordance with standard practice, posted a so-called "ZD1" zoning diagram of the project on its website to provide public notice of the project, its compliance with the Zoning Resolution and DOB's approval. Under DOB regulations (1 RCNY , ), a member of the public who wishes to object to DOB's approval of a project must do so within 45 days after the "ZD1" diagram has been posted on DOB's website. No one objected within that 45-day period. However, on August 28, 2014, which was more than eight months after the posting, petitioner as President of the Park West Village Tenants' Association and 14 other "stakeholders" wrote to DOB (R 24-27), without copying either JHL or PWVA, to challenge DOB's approval of JHL's project on multiple grounds, including a claim that the amount of required open space was not being provided on the zoning lot. By letter dated November 10, 2014, DOB's First Deputy Commissioner, Thomas J. Fariello, pointed out that petitioner's objection was untimely, but nevertheless went on to address the merits of petitioner's contention. The Fariello letter explained that, under the Zoning Resolution, a total of 230,108 KL

14 square feet of open space was required on this zoning lot, while JHL's plans for the nursing facility showed that 230,706 square feet of open space would be provided, thereby satisfying the Zoning Resolution's open space requirement. 50. On December 8, 2014, petitioner and her fellow "stakeholders" appealed from DOB's decision to the BSA. On the appeal, petitioner did not dispute that, upon completion of JHL's nursing facility, at least 230,726 square feet of open space would be provided on the zoning lot. She contended, however, that, because some of this open space is located on the roof of the commercial extension at 808 Columbus Avenue and is reserved for use by residents of that building, it does not comply with the definition of "open space" in Zoning Resolution That definition states that "open space" shall be "accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot." 51. Once again, the BSA received extensive written submissions from both sides. It conducted a public hearing on April 14 and June 23, 2015 (R , ). Three of the BSA's Commissioners also conducted a site visit (see R 2). On August 18, 2015, the BSA's Commissioners voted unanimously to reject the appeal and uphold DOB's determination (R ). On October 22, 2015, the BSA issued an extensive resolution analyzing the issue in detail and setting forth the reasoning for its conclusion (R 1-7). As articulated in its resolution, the BSA's reasoning includes the following: (a) The BSA's 2009 determination "resolved the issue of whether the open space [at] 808 Columbus Avenue... satisfied the open space requirements" of the Zoning Resolution, and included the BSA's "agree[ment] with DOB that the open space" at 808 Columbus Avenue, "which includes 42,500 sq. ft. of rooftop space, satisfied all relevant requirements" (R 6). Therefore, the BSA KL

15 "considers the question of how to analyze open space as it relates to the three Park West Village Buildings and the 808 Columbus Avenue building to be answered" (R 6). (b) The building at 808 Columbus Avenue "was completed pursuant to DOB's approval and the Board's decision in the 2009 Appeal," and no one "has suggested that the 808 Columbus Avenue building was built contrary to the zoning analysis which... formed the basis for" the BSA's 2009 decision (R 6). (c) The "open space requirement on the site is triggered by the residential buildings, and... the Nursing Facility does not require additional open space" to be created on the zoning lot (R 7). (d) In "the course of the 2009 Appeal, the Board and DOB concluded that in the case of a multi-building zoning lot, the open space definition could be read to allow some open space to be reserved for the residents of a single building as long as the residents of each building on the zoning lot have access to at least the amount of open space that would be required... if each building were on separate zoning lots" (R 7). (e) The BSA "is not persuaded that the Key Terms text amendment had the effect of changing the text to mean exactly what the appellants suggested it meant in the 2009 Appeal," because the amendments did not change the Zoning Resolution's definition of "open space," in that both "before and after the Key Terms amendment, the ZR definition states that 'open space' is that part of a zoning lot, including courts or yards, which.., is accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot" (R 7). KL

16 Furthermore, "because the definition of open space itself has not changed" and the City Planning Commission "did not intend to change the open space requirement subsequent to the 2009 Appeal, the Key Terms amendments do not dictate any change in the Board's or DOB's analysis since the prior appeal" (R 7). Significantly, the Key Terms amendments were enacted "in 2011, after the 2009 Appeal," and the Planning Commission "had an opportunity to clarify an intent to restrict open space" if it wanted to do so (R 7). 52. This Article 78 proceeding for relief in the nature of certiorari was commenced on November 20, 2015, and is being brought on by order to show cause made on that date. By stipulation, the original return date of the order to show cause and petition was adjourned. The BSA served the record of its proceedings on January 5, First Affirmative Defense 53. The BSA determination set forth in its October 22, 2015 resolution was lawful and proper in all respects. It was rational and reasonable, not arbitrary and capricious or an abuse of discretion, and was consistent with, and a reasonable interpretation and application of, the relevant provisions of the Zoning Resolution. Second Affirmative Defense 54. The 2011 amendments to the text of the Zoning Resolution did not affect or undermine the correctness or validity of the BSA's February 3, 2009 determination that rooftop gardens at 808 Columbus Avenue that are accessible to residents of that building but not residents of other buildings on the zoning lot qualify as open space under the Zoning Resolution. KL I 16

17 Third Affirmative Defense 55. Because JHL's proposed new building will constitute a community facility use, it will not increase the amount of open space that, under the Zoning Resolution, is required to exist on the zoning lot. Fourth Affirmative Defense 56. The 2011 amendments to the text of the Zoning Resolution did not render the amount of open space on the zoning lot at issue non-compliant with the Zoning Resolution. Therefore, construction of JHU s proposed new building will not increase an existing noncompliant condition. Fifth Affirmative Defense 57. To the extent that the petition attacks the February 3, 2009 BSA determination regarding 808 Columbus Avenue, it is barred by limitation of time. Sixth Affirmative Defense 58. To the extent that the petition attacks the February 3, 2009 BSA determination regarding 808 Columbus Avenue, it is an improper collateral attack on that determination that is barred by the principles of res judicata and collateral estoppel. KL

18 WHEREFORE, PWVA demands judgment dismissing the petition, awarding petitioner nothing, sustaining the BSA's October 22, 2015 resolution and granting PWVA such other and further relief as is just and proper, including its costs. Dated: New York, NY January 12, 2016 KRAMER LEVIN NAFTALIS & FRANKEL LLP Attor,neys-for Respondent PWV Ac uisition, LLC By 14raun 1177 A ienue of the Americas New York, NY (212) KL

19 Verification STATE OF NEW YORK ) COUNTY OF NEW YORK ) SS.: LAURENCE GLUCK, being sworn, states that he is a member of PWV Acquisition, LLC, a limited liability company that is named as a respondent in this proceeding; that he has read the foregoing answer and knows the contents thereof; that the same is true of the named respondent's own knowledge, except as to those matters therein stated to be asserted upon information and belief; that as to any such matters, he believes them to be true; and that his belief is based upon relevant documents and communications with other persons having knowledge of the matters. Laure Gluck Sworn to before me this fil'h day of January, MIRELLY GONZALEZ NOTARY PUBLIC-STATE OF NEW YORK No. 01G Qualified in Kings County My Commission Expires April KL