Idlewild 94-100 Clark, LLC v. City of N.Y.

• Citation: 27 Misc.3d 1006,898 N.Y.S.2d 808
• Parties: IDLEWILD 94-100 CLARK, LLC and Edward Penson, Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.
• Decision Date: 01 April 2010
• Court: New York Supreme Court

898 N.Y.S.2d 808

27 Misc.3d 1006

IDLEWILD 94-100 CLARK, LLC and Edward Penson, Plaintiffs,

v.The CITY OF NEW YORK, et al., Defendants.

Supreme Court, Kings County, New York.

April 1, 2010.

Allison M. Furman, Esq., for plaintiffs.

Michael A. Cardozo, Esq., Corporation Counsel of the City of New York, by Michelle Goldberg-Cahn, Esq., of counsel, for defendants.

ROBERT J. MILLER, J.

Upon the foregoing papers,defendants the City of New York; the New York City Department of Buildings (DOB); Robert Limandri (Limandri), as Commissioner of the DOB; Bryan Winter (Winter), as Brooklyn Deputy Borough Commissioner of DOB; the New York City Landmarks Preservation Commission (LPC); Robert B. Tierney (Tierney), as Chair of LPC; the Department of Housing Preservation and Development of the City of New York (HPD); and Rafael E. Cestero (Cestero), as Commissioner of HPD (collectively, the City Defendants) move for an order dismissing the petition/complaint pursuant to CPLR 3211(a)(7), for failure to state a cause of action,¹ and CPLR 3211(a)(2), for lack of ripeness/jurisdiction.

FACTS AND PROCEDURAL HISTORY

(a)

The instant action involves what was once a five-story building located at 100 Clark Street in Brooklyn, New York (the Building),² that plaintiff Idlewild 94-100 Clark, LLC (Idlewild) purchased on March 6, 2006.³ Upon purchasing the Building, Idlewild retained Parette Somjen Architects LLC (PSA) to inspect the Building and prepare plans, subject to DOB and LPC's approval, to demolish the existing eighteen residential apartments in the Building, construct six new residential units, and replace the interior partitions, floors, sub-floors, ceilings, roof, and operating systems therein. PSA purportedly inspected the Building, found no dangerous conditions, and prepared plans which were submitted to DOB and LPC and approved. According to Idlewild, neither DOB nor LPC ever advised plaintiffs that the Building was dangerous or unsafe.

[898 N.Y.S.2d 813, 27 Misc.3d 1010]

On or about February 10, 2008, DOB first received a complaint that the top floor of the Building was bowing, that the fire escape was "out of plumb" and pulling away from the facade, and that the bricks and scaffolding were leaning. After inspection, DOB determined that no violations were warranted (see DOB Complaint Report, annexed as Exhibit A to plaintiffs' opposition papers). HPD also inspected the Building in response to the initial complaint on February 19, 2008 and did not find any dangerous or unsafe conditions.

Late in the evening on or about Friday, May 23, 2008, DOB allegedly received a new complaint that the door on the right side of the Building, the third floor, and the roof were bowing. DOB then sent an Emergency Response Team (ERT) to inspect the Building on Saturday, May 24, 2008. Asaro Hodges a/k/a Leonard Asaro (Asaro), a member of the ERT, inspected the building and summoned the ERT's weekend-duty engineer, Constandino Sirakis (Sirakis), to the site for further inspection. Together, they found the Building to be in imminent danger of collapse due to the bulging wall and out of plumb fire escape and collectively recommended immediate demolition to a safe level. They also summoned Winter, as Brooklyn Deputy Borough Commissioner of DOB, to independently examine the Building's conditions. Winter concurred with Asaro and Sirakis' determination and recommendation.

That same day, DOB issued a verbal Declaration of Immediate Emergency, which was later reduced to writing and signed on May 27, 2008, the next succeeding business day after the Memorial Day holiday. Additionally, DOB posted a Preemptory Vacate Order (the Vacate Order) directed to all occupants on the front door of the Building, which indicated that it would be mailed to the owner on May 28, 2008.⁴ On May 24, 2008, DOB also posted a Notice of Violation (NOV), which was signed by Asaro, whose Affidavit/Affirmation of Service states that the NOV was served upon Idlewild by Alternative Method Charter Service.⁵

DOB's written Emergency Declaration Form (the EDF), confirming an Immediate Emergency and recommending that the top two floors of the Building be demolished, was dated May 24, 2008. However, the EDF was not signed until Tuesday, May 27, 2008, and date-stamped May 28, 2008.⁶

Subsequently, during the evening on Saturday, May 24, 2008 of the Memorial Day holiday weekend, A. Russo Wrecking Company (Russo Wrecking), HPD's approved contractor, began partially demolishing the Building in response to the Declaration of Immediate Emergency. It continued and completed demolition of the top two floors of the Building on the following day. On-site demolition status meetings were held during the mornings of Sunday, May 25, 2008 and Monday, May 26, 2008 (which was the Monday of the Memorial Day holiday weekend). No representatives of Idlewild were present at either meeting, although the City Defendants allegedly made numerous attemptsto contact Penson, the President of Idlewild.⁷

In the morning on Tuesday, May 27, 2008, another site meeting at the Building was held with all parties, including representatives of the owner and their initial engineer. They observed crumbling bricks due to deteriorating mortar at the joists indicating the compromised structural stability of the Building. At that time, DOB engineer Deodat Ramsarran (Ramsarran) and Winter determined that the entire building needed to be demolished. DOB then issued an Amended Emergency Declaration Form (the Amended EDF), which was signed May 28, 2008 and date-stamped May 29, 2008, with a recommendation to demolish the Building to grade, remove all debris, and install a construction fence.⁸ Pursuant to Operations Policy and Procedure Notice (OPPN) 16/93,⁹ DOB also sent a notice to plaintiff, dated May29, 2008, stating, inter alia, that the Building had been declared unsafe and must be repaired or demolished immediately.¹⁰

As a result of the allegedly poor and improper work performed in the demolition of the Building, DOB issued six total NOVs against Idlewild. These NOVs were issued for, inter alia, problems relating to the sidewalk shed, protection for sidewalks and walkways during demolition operations, failure to perform demolition operations in a safe and proper manner, and failure to maintain exterior building walls.

On Thursday, May 29, 2008, Ramsarran, on behalf of DOB, and Sheldon Pulaski (Pulaski), a new engineer for the owner, inspected the premises together. Although Pulaski found that the Building, its floors and support walls were structurally sound, Ramsarran disagreed and opined that the remaining undemolished portion of the Building needed to be braced and shored.

(b)

On or about May 28, 2008, Idlewild commenced an Article 78 proceeding, Idlewild 94-100 Clark, LLC v. DOB, et al., Sup. Ct., Kings County, index No. 15489/08 (the Prior Article 78 Proceeding), by Order to Show Cause and Verified Petition seeking, inter alia, an order preventing DOB from further demolishing the Building and a judgment declaring that the determination of DOB to commence demolition of the subject building was arbitrary and capricious. The Order to Show Cause, signed by the Hon. Betsy Barros on May 28, 2008, enjoined respondents in the Prior Article 78 Proceeding (defendants DOB, Limandri, LPC, and Tierney herein) "from demolishing or in any way altering the building, the configuration of the building orany portion thereof, or performing any work, improvements and/or repairs at the [subject] building." That court also ordered DOB and the owner of the Building to allow access to the Building to conduct an inspection regarding the existing conditions of the premises prior to the preliminary injunction hearing on the motion.

On May 30, 2008, the parties in the Prior Article 78 Proceeding entered into a stipulation (the Stipulation), so-ordered by Justice Barros, wherein DOB permitted Idlewild to take overwork at the subject building, provided that the process of shoring and stabilization began immediately. The Stipulation also provided that, in the event that an emergency arises that is perilous to the life or safety of the public, nothing prevented DOB from acting pursuant to its authority under the Administrative Code, the Rules of the City of New York, or the New York City Charter. In a supplemental order dated May 30, 2009, Justice Barros directed DOB to use its best efforts to secure the building and protect the public before further actions were taken in the event of an emergency. Idlewild commenced the shoring and stabilization process on May 31, 2008.

On or about November 18, 2008, Idlewild moved by Order to Show Cause in the Prior Article 78 Proceeding, seeking, inter alia, (1) leave to amend the petition to include various additional causes of action; (2) joinder of HPD as a respondent; (3) an order setting the matter for trial; (4) an order permitting discovery; and (5) injunctive relief, including a stay of all administrative proceedings regarding any violations issued to the subject property. The Hon. James G. Starkey signed the Order to Show Cause, directing that (1) all stays and temporary restraining orders and/or preliminary injunctions remain in effect; (2) DOB and HPD be enjoined from demolishing or altering the subject building or removing any property or possessions located at the building; (3) a determination on the Prior Article 78 Proceeding be stayed; and (4) that the enforcement and/or adjudication of any agency violations without prior court approval relating to these matters be stayed. ¹¹ On April 1, 2009, Justice Starkey decided that the preliminary injunction and temporary restraining order would remain in place through the commencement of the instant plenary action by plaintiffs.

(c)

Plaintiffs commenced the instant hybrid Article 78 proceeding and action on May 22, 2009, raising forty-one causes of action. Among other things, they (1) challenge the Declaration of Immediate Emergency, dated May 24, 2008, and all DOB...