795 Fifth Ave. Corp. v. City of New York
| Decision Date | 09 May 1961 |
| Parties | 795 FIFTH AVENUE CORPORATION, Walter Hoving, Fifth Avenue and 59th Corporation and Andrew Y. Rogers, Plaintiff-Respondents, v. CITY OF NEW YORK, Robert F. Wagner as Mayor of the City of New York; Newbold Morris, as Commissioner of Parks of the City of New York for the Borough of Manhattan, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
F. R. Coudert, Jr., New York City, for plaintiff-respondents.
L. A. Larkin, New York City, for defendants-appellants.
Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE and EAGER, JJ.
Order entered on September 27, 1960, denying defendant's motion to dismiss the complaint for insufficiency, unanimously reversed on the law, with $20 costs and disbursements to appellants, and the motion to dismiss the complaint granted with $10 costs, with leave, however, in the exercise of discretion, to replead. The letting of park property for restaurant purposes does not in and of itself constitute an improper use of such property (Gushee v. City of New York, 42 App.Div. 37, 58 N.Y.S. 967; See also Williams v. Gallatin, 229 N.Y. 248, 254, 128 N.E. 121, 122, 18 A.L.R. 1238). Since, under proper circumstances, the use of park property for restaurant purposes is permissible, it is incumbent upon the plaintiffs to set forth in their complaint facts showing in what respects it would be unlawful for the defendants to use park property for the particular purpose contemplated. This complaint alleges that the use contemplated is 'of a sort not constituting a valid park use'; that the erection of the restaurant 'would be contrary to the purposes and trusts for and upon which the said park was acquired and erected'; that it 'would be an unlawful encroachment upon Central Park', and sets forth other allegations of like tenor. All of these allegations constitute merely broad conclusions of law. Facts should be pleaded which set forth why the restaurant contemplated is 'of a sort not constituting a valid park use'; why its erection 'would be contrary to the purposes and trusts upon which said park was acquired and erected', and why the restaurant 'would be an unlawful encroachment upon Central Park'. The complaint is totally deficient in this respect and therefore cannot withstand the attack addressed to its sufficiency. Our determination does not conflict with the cases relied on by the plaintiffs. The complaints in those cases either contained...
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...that long term leases to operate hotels or restaurants are consistent with a "public park" restriction. 795 Fifth Avenue Corp. v. City of New York, 13 A.D.2d 733, 215 N.Y.S.2d 391 (1961); Harter v. City of San Jose, 141 Cal. 659, 75 P. 344 (1904). Thus, the courts will typically defer to th......
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