Glick v. Harvey

• Decision Date: 30 June 2015
• Docket Number: No. 107.,107.
• Parties: In the Matter of Deborah GLICK et al., Appellants, v. Rose HARVEY, as Acting Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, et al., Respondents. New York University, Third–Party Respondent.
• Court: New York Court of Appeals Court of Appeals

25 N.Y.3d 1175
36 N.E.3d 640
15 N.Y.S.3d 733
2015 N.Y. Slip Op. 05593

In the Matter of Deborah GLICK et al., Appellants
v.
Rose HARVEY, as Acting Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, et al., Respondents.

New York University, Third–Party Respondent.

No. 107.

Court of Appeals of New York.

June 30, 2015.

Gibson, Dunn & Crutcher LLP, New York City (Caitlin J. Halligan, Randy M. Mastro, Indraneel Sur, Gabriel K. Gillett, Sarah Vacchiano and Laura F. Corbin of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York City (Michael J. Pastor, Richard Dearing, Chris Reo and Elizabeth Harris of counsel), for respondents.

Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C. (Seth P. Waxman, of the District of Columbia bar, admitted pro hac vice, Kelly P. Dunbar, Albinas J. Prizgintas, of the District of Columbia bar, admitted pro hac vice, and Adam I. Klein of counsel), Wilmer Cutler Pickering Hale and Dorr LLP, New York City (Alan E. Schoenfeld of counsel), Bryan Cave LLP, New York City (Philip E. Karmel of counsel), and Cooley LLP, New York City (Alan Levine, Celia Goldwag Barenholtz and Michael Blasie of counsel), for third-party respondent.

Lawrence B. Goldberg, P.C., New York City (Lawrence B. Goldberg of counsel),

for Friends of LaGuardia Place, Inc. and others, amici curiae.

Albert K. Butzel Law Offices, New York City (Albert K. Butzel of counsel), for Michael C. Blumm and others, amici curiae.

Holwell Shuster & Goldberg LLP, New York City (Richard J. Holwell, Daniel M. Sullivan and Andrew B. Breidenbach of counsel), for New York Civic, amicus curiae.

Weil, Gotshal & Manges LLP, New York City (Gregory Silbert and Adam B. Banks of counsel), for New York State Legislators, amici curiae.

Proskauer Rose LLP, New York City (Charles S. Sims and Celia V. Cohen of counsel), for New Yorkers for Parks and others, amici curiae.

Wade Beltramo, General Counsel, New York State Conference of Mayors and Municipal Officials, Albany, and The Association of Towns of the State of New York, Albany (Sarah Brancatella of counsel), for New York State Conference of Mayors and Municipal Officials and others, amici curiae.

Derohannesian & Derohannesian, Albany (Paul Derohannesian II of counsel), for Sierra Club, amicus curiae.

OPINION OF THE COURT

MEMORANDUM .

36 N.E.3d 642

The order of the Appellate Division should be affirmed, with costs.

The issue before us is whether four parcels of municipal land in the Greenwich Village area of New York City near the campus of New York University (NYU) were impliedly dedicated as public parkland and therefore fall under the protection of the public trust doctrine, which requires approval of the state legislature before the land can be alienated (see Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks & Recreation, 22 N.Y.3d 648, 654, 985 N.Y.S.2d 422, 8 N.E.3d 797 [2014] ; Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630, 727 N.Y.S.2d 2, 750 N.E.2d 1050 [2001] ). We conclude that petitioners have failed to meet their burden of demonstrating the requisite implied dedication.

In July 2012, the New York City Council approved NYU's plan to expand its campus. The project involves demapping certain areas currently designated as streets on City maps and

using them, either permanently or for some part of 20 years, in connection with construction of new buildings. The four disputed parcels, which are Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer–Houston Dog Run, feature open space that has been available to the public for years. Two of the parcels (Mercer Playground and LaGuardia Park) will be inaccessible during construction and have been approved for later dedication as parkland, subject to perpetual easements granted to NYU for utilities and access. LaGuardia Corner Gardens will be affected during construction as well as by shadows that will result from a building being constructed as part of the project. The Dog Run will be moved to a nearby space.

Mercer Playground, which opened in 1999, is a paved children's skating and biking park. The New York City Department of Parks and Recreation (DPR) developed the playground under a New York City Department of Transportation (DOT) permit “for the temporary use and occupation of the ... property ... for playground or park purposes.” The letter of approval for the permit stated that “[i]t is expressly understood that in the event that [the] DOT requires the occupied property in order to perform capital construction work, [the] DPR shall vacate it and return

36 N.E.3d 643

it to [the] DOT so that such work can take place.” The DPR spent City funds to improve the playground and marked it with DPR signage.

LaGuardia Park sits next to LaGuardia Place and has paved walkways, greenery and a privately-funded statue of former Mayor LaGuardia. Pursuant to the City's Greenstreet program undertaken in partnership between the DPR and the DOT, the City developed a toddler's playground called Adrienne's Garden on this parcel. Like other Greenstreet sites, this development was subject to a memorandum of understanding declaring that it “will always remain...