Matter of Allison v New York City Landmarks Preserv. Commn.

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Matter of Allison v New York City Landmarks Preserv. Commn. 2011 NY Slip Op 32285(U) August 18, 2011 Supreme Court, New York County Docket Number: 107949/2011 Judge: Lucy Billings Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 812412011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY - LUCY BILLINGS -- PART 4b Justice MOTION CAL. NO. The following paperu, numbered 1 to were read on this motlon @/for W W W W 1 - 3 6 W 5 dMCwLP &fi flm PARERG NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... 1 , 3-3, $ $4 Answering Affldavits - Exhlbtts I Replylng Affidavits Cross-Motion: PI Yes . 0 No Upon the foregoing papers, It la ordered t h a t # + t z w k n : F I L-ED AUG 2 4 2011 NEW YOAK COUNTY CLERK S OFFICE Check one: 0 FINAL DISPOSITION ~NON-FINA~s&SPOSITION Check if appropriate: 0 DO NOT POST U REFERENCE; [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 -X - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 1 _ _ _ 1 1 _ _ _ _ _ _ _ In the Matter of the Application of ERIC W. ALLISON, KEVIN J. FARRELLY, TED NARDIN, THEODORE GRUNEWALD, and CITIZENS EMERGENCY COMMITTEE TO PRESERVE PRESERVATION, Plaintiffs-Petitioners, For a Judgment Pursuant to Article and Sections 3001 and 6301 of t h e Civil Practice Law and Rules Index No. 107949/2011 78 DECISION AND ORDER - against - NEW YORK CITY LANDMARKS PRESERVATION COMMISSION, VORNADO REALTY TRUST, 510 FIFTH AVENW3 LLC, 510 FIFTH EAT LLC, VORNADO REALTY, LP, and VNO 510 FIFTH LLC, Defendants-Respondents F o r Petitioners Albert K. Butzel Esq. and Michael S. Gruen Esq. 247 West 34th Street, New York, NY 10001 For Respondent New York City Landmarks Preservgtion Commission Amv Weinblatt, Assistant Corporation Counsel 100 Church Street, New York,-NY 10007 For Respondents Vornado Realty Trust, 510 Fifth Avenue LLC, 510 Fifth EAT I I L C , Vornado Rea ICY, 71P, and VpJO 510 Fifth LLC Maria T. Vullo E s q . and Aliza J. Balog EBq. Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 6th Avenue, New York, NY 10019 LUCY BILLINGS, J . S . C . : This proceeding requires the c o u r t to determine what interests and injuries New York City's Landmarks and Historic Districts Preservation Law protects, so as to confer standing for allison2.134 1 [* 3] persons without a property or contractual interest in the landmark, which would confer standing absent the statutory protection. This determination in turn requires the court to ascertain whether, under the landmark preservation statutes, it may recognize the types of interests and injuries the Court of Appeals has recognized as conferring standing under environmental preservation statutes. This court concludes that t h e controlling authority dictates recognition of similar interests and injuries, that otherwise the landmarks preservation statutes would provide no more rights than property or contractual interests would provide, and that one individual petitioner and the organizational petitioner of which he is a member show that they meet the requisite standards. Petitioners seek to enjoin respondents Vornado Realty Trust, 510 Fifth Avenue LLC, 510 Fifth EAT LLC, Vornado Realty, LP, and VNO 510 Fifth LLC (Vornado respondents) from their partial demolition and remodeling of the Manufacturers Trust Company (MTC) Building, referred to as the iconic Ilglass house,l' at 5th Avenue and 43rd Street in New York County. The building's exterior was designated a landmark in 1997. Among its unique attributes are its transparency and seamless transition between its exterior and interior, providing a full view of its interior from the exterior, yet the interior was designated a landmark o n l y recently, in February 2011. Only three months later, May 19, 2011, respondent New York City Landmarks Preservation Commission (LPC) issued a Certificate of Appropriateness under allison2.134 2 [* 4] N.Y.C. Admin. Code § 25-305, permitting alterations of the interior features, as well as lesB extensive alterations of the exterior features, that give the building its landmark status. Petitioners also seek to reverse o r annul LPC a issuance of that Certificate of Appropriateness. C.P.L.R. 5 7803. Insofar as the court does not grant the petition immediately, petitioners move f o r a preliminary injunction prohibiting the Vornado respondents from their partial demolition and remodeling of the MTC Building pending a final determination of the petition. C.P.L.R. §§ 6301, 6311(1). The Vornado respondents move to dismiss the petition based on petitioners lack of standing, laches, and failure to atate a claim. C.P.L.R. §§ See C.P.L.R. 5 3211(a) (3). LPC 3211(a) ( 5 ) and (7), 7804(f) * cross-moves to dismisa the petition based on petitioners l a c k of C.P.L.R. § § 3211(a) (7), 7804(f). See C.P.L.R. § standing. 3211(a) (3). I. STANDING TO MAINTAIN THIS PROCFEDING A. Petitioner Allisop In determining motiona to dismiss baaed on lack of standing, the c o u r t accepts the allegations of the verified petition and petitioners affidavits as true. RhodeB v. Herz, 8 4 A.D.3d 1, 3 n.1 (1st Dep t 2011); Tyuatees of the p l uh e r e Local Union No. 1 Additional, Sec. Benefit Fupd v. Citv of New York, 73 A . D . 3 d 530, 531 (1st Dep t 2010); Hammer v. American Kennel Club, 304 A.D.2d 74, 7 8 (1st Dep t 2003); Shui Kam Chan v . Louis, 303 A.D.2d 151, allison2.134 3 1 1 [* 5] 152 (1st Dep't 2003). On these bases, among the individual petitioners, Professor Eric Allison alone shows his Btanding t o maintain the petition's claims, because Allison has taken distinct advantage of the landmarked site, differently from the public at large. Save t h e Pine Bush, Inc. v. Commgn Council of City of Albany, 13 N.Y.3d 297, 305-306 (2009); Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 7 7 4 (1991); Citizens Emerqency Comm. to PrPaerve Preserv. v. Tierney, 70 A.D.3d 576 (1st Dep't 2010). He regularly visits and leads walking tours to the MTC Building to teach his architectural students about the unique qualities of the building as an American masterpiece of mid-20th century modernism exemplifying the International Style. He emphasizes the transparency and integration of the exterior and interior through their uninterrupted plate glass expanses and coordinated design. Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d at 305. Because the MTC Building's interior is fully visible from the exterior, rendering the exterior indistinguishable from the interior, a significant feature Elupporting the landmark atatua of each, the interior as well as the exterior is an urban environmental resource viewed primarily from the outside. Thus Allison's t o u m to the building, even if to view it only from the exterior, encompass use, study, and enjoyment of the interior as well. Petitioner need not reside or work near the landmarked site allison2.134 4 [* 6] to maintain standing. I . Brunswick Smart d; Growth, Inc. v. Town of Brungwick, 73 A . D . 3 d 1267, 1268 (3d Dep't 2010). The observable, palpable modifications respondents have proposed and permitted will directly curtail Professor Allison's professional use and enjoyment of the unique site integral to his teaching and courae of study: his profession. il Common CQ~~IC of City Q Save t h e Pine Bush, Inc. v. f Albany, 13 N.Y.3d at 305; Society o f Plastics Indue. v. Couqty of Suffolk, 77 N.Y.2d at 775; Citizens Emerqency Comm. to Preserve Preserv. v. Tiernev, 70 A.D.3d 576. B. The Standards Suppartinq Alliaon'a Standinq Although Save the Pine Bush, Inc. v, Comrnon CQUncil of City of Albany, 13 N.Y.3d 2 9 7 , addresses protection of a natural rather than an architectural reeource under the State Environmental Quality Review Act (SEQRA),N.Y. Envtl. Conserv. Law (ECL) §§ 8-0101 to 8-0113, landmark preservation could not be more closely analogow to SEQRA. Both the LPL and SEQRA address preservation of the environment; the LPL preserves the urban ECL environment; and SEQRA apecifically includes lrobjects,l1 0105(6), § 8- and Ilresources of hiBtoric or aesthetic significance" in the definition of the environment to be preserved. 6 N.Y.C.R.R. 5 617.2(1). While common, undefined i n t e r e s t s in the environment may not confer standing to challenge an environmental injury, injury to a particular petitioner's aesthetic and environmental well-being, activitiee, or pasttimes and his "desire to use or observe, even for purely aesthetic purposes, is undeniably a cognizable interest" for purposes of standing. allison2.134 5 Luian v. [* 7] Defenders of Wildlife, 504 U.S. 555, 562 (1992). See Friends of E a r t h , Inc. v. Laidlaw Envtl. ServR. (TOC), Inc., 528 U.S. 167, 183 (2000); Sierra Club v, Morton, 405 U.S. 727, 734 (1972); Save the Pine Bush, Inc. v. Common Council of City o f Albany, 13 N.Y.3d at 3 0 5 ; Save Our Main S t . Bldqs. v. Grgne County Leqislature, 293 A.D.2d 907, 909 (3d Dep t 2002). Since Save t h e Pine Bush, I n c . v . CommQn Council of City of Albany, 13 N.Y.3d 297, ita standards have been employed to assess standing specifically under the LPL: In environmental or preservation matters, standing may be established by proof that agency action will d i r e c t l y harm the petitioner s members in their use or enjoyment of the natural resources or area in question. Citizens Emerqency Comm. to Preserve Preserv. v. Tiernev, 70 A.D.3d 576 (emphases added). Although Heritme Coalition v . city of IthaGa F U j , nq & Dev. Bd., 228 A.D.2d 1996), well over a decade before Save t h e 862, 864 (3d Dep t Pine Bush, h e l d that educational use of a landmarked site did not confer standing, save the Pine Bush's standards now apply to standing under the LPL. Citizens Emerqency Comm, to Preserve Preserv. v . Tiernev, 70 A.D.3d 576. The First Department s application of Save the Pine Bush does cite Yeritaqe CQalition v. City of I;thwa Planninq Bd., & Dev. 2 2 8 A.D.2d a t 8 6 4 , but only for the point that a petitioner needs more than a mere appreciation of and intereet in preserving the protected historic or landmarked s i t e to establish standing. Petitioner organization in Citizens 5:merq encv Comm. to Preserve Freserv. v. Tierney, 70 A.D.3d at 576-77, failed to meet the allison2.134 6 [* 8] requisite standari by ahowing that LPC's action would directly affect the organization's members Ildifferently from any o t h e r members of the public" in their use or enjoyment of property being considered for landmark designation, id. at 577, the same standard the Third Department now applies f o r standing to challenge land use. Brunawick Smart Growth, Inc. v. TQwn of Brunswick, 73 A.D.3d at 1268; Save Ou r Main St. Bldqa. v . Greene County Leqislature, 293 A . D . 2 d at 9 0 9 . Save t h e Pipe Bugh, Inc. v. Common Council of Citv of Albany, 13 N.Y.3d at 305-306; Society of P l a e t i c s Indua. v. Countfr of Suffolk, 77 N.Y.2d at 774. In fact, directly to the contrary, the petition in Citizens Emerqency Comm. to Preeerve Preaerv. v, Tiernev, 70 A.D.3d at 577, alleged "that petitioner's members and members of the public are similarly affected." Save the Pine B w h , I n c . v. Common Council. of City of ~ L bny, 13 N.Y.3d at 305, neverthelesa accepts a the relevance of educational uses to establish standing: the very criterion conferring standing was that the petitioners "use the Pine Bush f o r recreation and to study and enjoy1' the site's unique features. See id. at 301. Standing is not so strict as to be llinsuperable."I . at d 306. If petitioners maintained a property, contractual, business, or financial interest in the MTC Building that was injured by its remodeling, that interest and injury would confer standing independently, regardless of the LPL. Therefore standing under the LPL must be based on an interest and injury beyond an impact on p r o p e r t y , contractual, business, or monetary allison2.134 7 [* 9] rights and interests. 9 of Citv of Albany, 13 N.Y.3d 297, defines the parameters of one such interest and injury, one within which petitioner Allison's interest in preserving the landmarked MTC Building and an injury to the landmark's aesthetic, architectural, and historical character and value, on which his professional teaching and course of study regularly focus, fits. In stark contrast to the value and protection of property, contractual, business, or monetary rights and interests, the LPL specifically recognizes that improvements on real property, having a special character or a special hiatorical or aesthetic interest or value and many improvements representing the fineat architectural producta of distinct periods in the history of the city, have been uprooted, notwithstanding the feasibility of preserving and continuing the use of such improvements . . . , and without adequate consideration of the irreplaceable loss to the people of the city of the aesthetic, cultural, and historic values represented by such improvements . * . . N.Y.C. Admin. Code 5 5-301(a). The Ilprotection, enhancement, perpetuation and uae of . . . improvementsll that "reflect elements of the city's cultural, social, economic, political and architectural history" is L P L ' s express purposes. a public necessity" and among the _6d, 5 5-301(b). Its salient companion purposes are to "foster civic pride in the beauty and noble accomplishments of the past" and Ilpromote the use of . . . landmarks, interior landmarkB . . . for t h e education, pleasure and welfare of the people of the city.Il I. d Professor Allison's focus on the MTC building's aesthetic, architectural, and historic value as one of the finest products allison2.134 0 [* 10] of modernism in the International Style from Lie mid-20th century unquestionably embodies t h e interest the LPL is intended to protect and perpetuate, quite a p a r t from property, contractual, business, or financial interests. Any uprooting of the building's value by failing to preserve it directly cause8 an irreplaceable loss to his civic pride in and professional u s e and study of the building as a beautiful, magnificent, and renowned accomplishment i n the city's cultural and architectural history. Nothing in the current record suggests that his use, study, and enjoyment of the MTC Building has been of less frequency, intensity, or duration t h a n the petitioners, visits to the Pine Bush or is otherwise distinguishable so as to negate his standing. Finally, essential elements of thia challenge set it apart from Heritaqe Coalition v , City of Ithaca P lanninq & Dev. Bd., 2 2 8 A.D.2d 862, where the petitioners were Ileducators at Cornell's College of Architecture, Art and Planning who espouse a fond appreciation for Sage Hall and have managed to use the characteristics of the structure in their respective courses of instruction.Il I . at d 863. This description alone indicates their having "managed to use the characteristics of the structure in their . . . courses," i . was not necessarily a use of Sage d, Hall itself, observed live, and was secondary to their appreciation f o r the building, which "does not rise to the level of injury different from that of the public at large for standing purposes. allison2.134 I .at d 864. See Save 9 the Pine Bush, Inc. v. Commoq [* 11] Council of City of Albanv, 13 N.Y.3d at 3 0 5 - 3 0 6 ; Spcietv of Plastics Indus. v. Cpunty of Suffolk, 7 7 N.Y.2d at 774; Citizenq Fmersencv Co m . to Preserve Preserv. v. Tierney, 7 0 A.D.3d at 576-77. Heritaqe Coalition v. City of Ithaca Planninq & Dev. Ed., 2 2 8 A.D.2d a t 8 6 4 , continues: IINor does the use of a building as a demonstrative teaching tool constitute a ' u s e ' sufficient to confer standing." The court reached this conclusion for two reasons. (1) The diminution of the petitioner Ebert'B use of Sage Hall "as a teaching tool is not, without rnpre, within the zone of interest sought to be ~ r o mted or p r Q t e c t e b y . . . o d SEQRA.Il I . (emphases added). d ( 2 ) While neither Ebert nor her students will be able to "observe" Sage Hall as it existed prior to being renovated, nothing about the project prohibits Ebert from continuing to teach about the architectural history of Sage Hall nor o t h e r s from learning about same. First, the court held that use of a building as a teaching tool by itself was insufficient. As set forth above, Professor Allison does allege much more. For example, he leadB walking tours to the MTC Building; he teaches not j u s t about its demonstrative qualities and architectural history, but about i t s unique qualities and unique place in architectural history. Most distinctively, the transparency and integration of the interior and exterior must be experienced through the live observation that the visits afford. These are in-depth study tours. . . . They focus heavily on , . . h o w a building or landscape affects the allison2.134 10 [* 12] person experiencing it. Thus we discuss the statements that owners and architects were making and the impact on the streetacape and the passers by. A f f . of Eric Allison 7 4 (July 19, 2011). The tours help students understand not only architectural history, but a l s o : a key preservation concept: siqnificance in the sense of the intrinsic values of a building making it worthy of preservation. . . . to assess whether to protect it, to allow modifications, or to guide restorations. . . . I also point out the communicative elements that make the design rather unique among International Style buildings, focussing especially on the front-and-center safe deposit vault door which very succinctly symbolizes financial and physical security and fulfills the function of the more traditional bank design which imparta that sense through heavy masonry architecture. I . 77 d 4-5. In sum, the MTC Building is a I1showcaael1 "the of promise of the early manifestation of the International Style a a it remediated the principles of the Bauhaus." I .7 d 5. Such effects and such intensive study beyond architectural history were nowhere suggested in Ithaca Planeinq & Dev. Bd., 228 A.D.2d 862. Nor would the use of photographs, models, or textual descriptions to which the court 8 conclusion there would relegate the petitioners suffice to carry on the experience and impact of Professor Allison's viaits. That conclusion reflects the petitioners' failure to show their teaching and learning about Sage Hall's architectural hiatory would be curtailed through use of photographs, models, or textual descriptions as "teaching tools," without live observation of the building. Second, despite the inclusion of "objects, ECL § 8-0105( 6 ) , and Ilresources of hi,storic or aesthetic significance,Il 6 allison2.134 11 [* 13] N.Y.C.R.R. 5 6 1 7 . 2 ( 1 ) , in the environment to be preserved under SEQRA and the close analogy between natural and architectural resources as components of t h e environment, the promotion and protection of landmarks under the LPL encompass its own purposes and values beyond SEQRA. In fact, had the petitioners in Heritaqe Coalition v. City o f Ithaca Flanninq & Dev. B d . , 228 A . D . 2 d 862, sought protection of Sage Hall under the LPL, and t h e renovation significantly impaired their use, study, and enjoyment of the building's landmark qualities, the petitioners may have secured the standing under the LPL that they c o u l d not secure under SEQRA, because the LPL provides further protection. The LPL's recognition of "the finest architectural products of diBtinct periods,Il N . Y . C . Admin. Code § 5-301(a), protection of cultural and architectural elements of history, and promotion of I'civic pride" in beautiful and noble past accomplishments, of education, and of pleasure may have cast a net that captured actual injury to those petitioners' use, study, and enjoyment of landmarked features. & C. § 5-301(b). The Other Individual P etitioners Applying these standards, the membership of petitioners Farrelly and Nardin in the Columbia and Princeton University C l u b s near the MTC Building does not confer standing. Although t h e club memberships give Farrelly and Nardin a reason to frequent the vicinity of the MTC Building, and they both take walks paat the MTC Building, frequent proximity does not establish an injury different from the public at large. Save the allison2.134 12 [* 14] Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d at They do not claim to have obtained their club memberships 305. to facilitate visiting the landmark, nor that they will cancel their memberships or t h a t the membershipa will be devalued due to modifications of the landmark. In fact Farrelly and Nardin do not even claim that they specifically visit the landmark, rather than merely walking past it because they have other reason to frequent the neighborhood. Nardin's claim that the owners of the publishing business of which he is the chief executive officer choae its location to be near the MTC Building does not support his standing. Neither Nardin's employer nor any of the business' owners is a party to this proceeding. Nardin does not claim to be an owner of the busineas or even that he was involved in i t s choice of location or that the location influenced his acceptance of employment there * Petitioner Grunewald alleges only that he was actively involved in seeking landmark protection f o r the site. Although that course of action demonstrates his appreciation of and interest in the MTC Building, effects on mere appreciation and interest do not establish the injury essential to standing. Save the Pine Bush, Inc. v. rommon Council ~f Citv o f Albany, 13 N.Y.3d at 305-306; Society of Plaeti c e Indug. v. County of Suffolk, 77 N.Y.2d at 774; Citizenp Emerqency Comm. to Preserve Preserv. v Tierney, 70 A.D.3d at 576-77. Grunewald does not allege his use of the site akin to Allison's special use. allison2.134 13 [* 15] D. The Orsanizational Petitioner Petitioner Citizens Emergency Committee to Preserve Preservation also establishes standing. At least one of the Citizens Emergency Committee s members, Allison, a founder of the organization and member of its Steering Committee, establishes standing. New York S t a t e Aaep, of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211 (2004); SQciety of Plastics Indus. v. Countv Q f Suffolk, 7 7 N.Y.2d at 7 7 5 ; Citizena Emerqency Comm. to Preserve Preserv, v. Tierney, 70 A.D.3d 5 7 6 . He alleges that h i a activity as a member of Citizens Emergency Committee reflects hia special appreciation of and interest in the MTC Building s architecture and transparency. Citizens Emergency Committee further alleges that i t s membem opposed the Vornado respondents proposal to LPC to remodel the MTC Building and continue to oppose the demolition and construction now underway, demonstrating an active interest in preserving the building s interior. The activity and intereat of Citizens Emergency Committee s membership is thus representative of this petition s claims to preserve the MTC Building as originally landmarked; in fact the claims here are entirely germane to the organization s core purpose: Nurse to preserve preservation. New York State Assn. of A p eethetiata 93 N.Y.2d 2 7 3 , 278 v. Novello, 2 N.Y.3d (1999). a t 211; Rudder v. Pataki; The organizational petitioner thus shows that it represents and will promote the interests and objectives the petition aeeks to effect and maintaim a stake in the petition s adjudication. Rudder v. Pat& i, 93 N.Y.2d at 278; allison2.134 14 [* 16] Transactive Corp. v. New York State Dept. ~f Soc ial Servs., 92 N.Y.2d 579, 587 (1998); Society of Plastics Indus. v. County o f Suffolk, 77 N.Y.2d at 772, 775. Finally, nothing indicates that the relief requested requires further participation of Citizens Emergency Committee's individual members. New York State Assn. of Nurse Anesthetist@ v. Novello, 2 N.Y.3d at 211; Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d at 775. E. Conclusion Consequently, the court denies respondents' motion and cross-motion to dismiss the petition by petitioners Allison and Citizens Emergency Committee to Preserve Preservation based on their lack of standing. The court grants the motion and cross- motion to the extent of dismissing the claims by petitioners Farrelly, Nardin, and Grunewald. C.P.L.R. § § 3211 (a)(7), 7804(f). &g C.P.L.R. § 3211(a) (3). Since standing is not merely a pleading requirement, but is a l s o an indispensable element of petitioners' p r o o f , if ultimately respondents establish that the sworn allegations of petitioners Allison and Citizens Emergency Committee are untrue or otherwise rebut them, the petition will fail. Save the Pine Bush, Inc. v. Common Council of C G y of Albany, 13 N.Y.3d at 306. See Luian v. Defenders 11. of Wildlife, 504 U.S. at 561. LACHES IN COMMENCING THIS PROCEEDING AND $ EEKITJG RELIEF T h e Vornado respondents, who claim petitioners' laches, bear t h e burden to plead and prove laches. Dreikausen v. Zoninq B d , of Ameals of City of Lonq Beach, 98 N.Y.2d 165, 173 n.4 (2002). [* 17] $ee C.P.L.R. 5 3018(b); Rosenthal v. Citv of New York, 283 A.D.2d 156, 161 (1st Dep't 2001); Stassa v. Stasaq, 73 A.D.3d 1157, 1158 (2d Dep't 2010); @e a t e of Clavdon v . Ehrinq, 65 A.D.3d 723, 724t 25 (3d Dep't 2009). Laches does not bar the petition, because petitioners did not unreasonably delay initiating their claims. EMF Gen. Contr. Corp. v. Biabpe, 6 A.D.3d 45, 54-55 (1st Dep't 2004); Cohen v. Krantz, 227 A.D.2d 581, 582 (ad Dep't 1996). See Schulz v. State o f N.Y. , 81 N.Y.2d 336, 348-49 (1993); Philippin& Am, Lace C ~ r r ) ,v , 236 W. 40th St. Corn., 32 A.D.3d 782, 784 (1st Dep't 2006); Bailev v. Chernoff, 45 A.D.3d 1113, 1115 (3d Dep't 2007); Save the Pine Bush v, N e w York State Degt, ~f Envt1. Conservation, 289 A.D.2d 636, 640 (2d Dep't 2001). To the contrary, Grunewald and Citizens Emergency Committee, through its membership, began to secure legal counsel and financial sponsorship f o r litigation expenses the day a f t e r the meeting April 19, 2011, when LPC approved alteration of,theMTC Building. Petitioners did not even wait until LPC issued i t s Certificate of Appropriateness a month later or until the Vornado respondents abtained the further requisite permit to begin demolition June 1, 2011. Petitioners proceeded diligently to retain attorneys; identify individual co-petitioners with comparable interests and concrete injury; and prepare, file, and serve a comprehensive, cogent, factually and legally supported petition and motion f o r an immediate injunction July 11, 2011. Dreikausen v. Zoninq Bd. of Appeals of Citv o f Lonq Beach, 98 N.Y.2d at 172. $ee Citineiqhbors Coalition of Historic Carneqie Hill v, N ew York allison2.134 16 [* 18] ritv Landmarks Preserv. Commn., 2 N.Y.3d 727, 728-29 (2004); Bailey v. Chernoff, 45 A.D.3d at 1115; Save the Pine Bush v. New York State Dept. of Envtl. Conservation, 289 A.D.2d at 640. The Vornado respondents' application of laches would limit the petition's claims to petitioners w h o have retained attorneys readily at hand or have the resources to immediately retain the services of a law firm capable of instant, massive absorption and output. Petitioners were required neither to retain such capability nor to anticipate that t h e Vornado respondents would contract for a rapid deadline f o r construction and proceed immediately to undertake demolition and construction. Respondents may not use their own urgencies and haste to insulate themselves from potentially meritorious claims. See nneiqhbors Coalition of Historic Carneq i e Hill v. New Y Q I - ~ City Landmarks Preserv. Commn., 2 N.Y.3d at 7 2 9 ; Dreikausen v. Zoninq Bd. of ADD)Pal@ of Parkview ARRQ C. V City C itv o f Lonq Beach, 98 N.Y.2d at 172; Of New YQrk , 71 N.Y.2d 2 7 4 , 282 (1988); GRA V, LLC v , Srinivasan, 55 A.D.3d 58, 6 2 - 6 3 (1st Dep't 2008). Although laches may apply to delays shorter than a year, Schulz v. State Q f N,H,, 81 N.Y.2d at 348; Bailev v, Cbernoff, 45 A.D.3d at 1 1 1 5 , petitioners promptly sought a preliminary injunction against respondents' construction, Dreikausen v. Zoninq Bd. of A m e a l p o f c itv o f Lonq Beach, 98 N.Y.2d at 172, rather than waiting until it was complete or close to compl,etion, Citineiqhbors c l ~ aitiQn of hi at^ric Ca rneqie Hill v. New York l City Landmark8 PreBerv. Commn., 2 N.Y.3d at allison2.134 17 728-29; Bailey v. [* 19] ChernQff, 45 A . D . 3 d at 1115; Save the Pine Bush v, New York State Dept. of Envtl. Coneervation, 2 8 9 A.D.2d at 640; Save t h e Pine Bueh v. City Enqr. of City of Albany, 220 A.D.2d 871, 8 7 2 (3d Dep't 1995), or simply protesting the extent of the construction. Dreikauaen v. Zoninq Bd. of Apnea 1s of City of Lonq Beach, 98 N.Y.2d at 174. Schulz v . S t ate of N.Y., 81 N.Y.2d at 348-49. In contrast, they sought the injunction even before the a c t u a l construction, as the Vornado respondents conceded at oral argument July 26, 2011, that in fact, even at that point, they still had not obtained the requisite construction permits that would allow them to proceed past the demolition phase. See Dreikausen v. Zoninq Bd. o f Appeala of City of Lonq Beach, 98 N.Y.2d at 172; Rosenthal v. City of New Xor k, 283 A.D.2d at 161; Stassa v. Stassa, 73 A.D.3d at 1158. Moreover, as long as the challenged modifications are capable of being undone without undue hardship, aB the court's temporary restraining o r d e r has assured here, the challenge may be maintained. Dreikauseq v. Zoninq Bd. of A m e a l a o f City of Lonq Beach, 98 N.Y.2d at 173; EMF Gen. C o n t r . Corp. v. Bisbee, 6 A.D.3d at 55; FTI CQesultinq, Ipc. v. PricewaterhouseCoopers LLP, 8 A.D.3d 145, 146 (1st Dep't 2004); Rosenthal York, 283 A.D.2d at 161. v, City o f New See CitineishbQXa Coalition of Historic Carneqie Hill v , New YQrk City Landmarks Praserv. Commn., N.Y.3d at 729; stassa v. St assa, 7 3 A.D.3d at 1158. 2 Even if respondents' reliance on the Certificate of Appropriateness has caused substantial and irreparable harm, laches will not estop allison2.134 18 [* 20] LPC from correcting a past error and enforcing the LPL, despite the harsh results, rather than continuing a judicially determined , contravention of the law. : 71 N.Y.2d at 2 8 2 ; GRA V, LLC v. Srinivasan, 55 A.D.3d at 61-62. An increased potential loss to respondents over the time elapsed would not create an inequity that would justify denying petitioners injunctive relief to which they otherwise are entitled, especially where it is their only adequate remedy, and as long as a desire to inflict greater l o s s did not motivate any delay. EMF Gen. Contr. C o r p . v. Bisbee, 6 A.D.3d at 5 5 . The short, four months statute of limitations applicable to this proceeding, C.P.L.R. § 217(1), i t s e l f almost defiea a lachea It ensures in the first instance against stale claims. defense. Greater N.Y. Health Care Facilities Assn. v. DeBuonQ, 91 N.Y.2d 716, 721 (1998); New York city Health & Hosp. Corp. v. PkBarnette, 84 N.Y.2d 194, 206 (1994); Solnick v . Whalen, 49 N.Y.2d 224, 232 (1980); Rosenthal v. Citv o f New York, 283 A.D.2d at 159. Even a "nine-month delay is simply too short to be so great or of such characteristics as to amount to a waiver or abandonment.I' EMF Gen. Contr. Corp. v. Bisbee, 6 A.D.3d at 55 (citation omitted). No reported controlling authority over the past 15 years or more, f o r example, has barred a petition for review of an administrative determination based on laches in commencing the proceeding when the statute of limitations had not expired. Save the Pine Bush v. New York S t a t e Dept. of Envtl, Coqeervation, 2 8 9 A.D.2d at 640; Save the Pine Bush v. allison2.134 19 [* 21] City Enqr, of Citv of Albany, 220 A.D.2d at 871-72. Although that period is now close to expiration, reapondents weighed the risk against their business incentive not to wait f o r that period to expire, but to proceed immediately, at their own risk, to undertake costly work, despite the obvious opposition by members of the public, including Gqunewald and petitioner organization's members, at LPC's hearings and meetings. p , q . , cnhen v. Krantz, 227 A.D.2d at 5 8 2 - 8 3 ; 1994). Ryan v . B o r q , 201 A.D.2d 550 (2d Dep't See Citineiqhbors Codition of Historic Carneqie Hill v. New York Citv Landmarks Preserv. Commn., 2 N.Y.3d at 729; @?.A V, LLC v , Srinivsaan, 55 A.D.3d at 62-63; Bailey v. Chersoff, 45 A.D.3d at 1115. Respondents continued the work deBpite petitioners' motion for a preliminary injunction and its partial and potential further success. The progression of demolition or construction well may affect the practicality of injunctive relief possible and t h e balance of hardships that warrants such relief. Nevertheless, respondents have not met their burden to plead and prove laches so as to set precedent and require dismissal of this proceeding seeking review of respondent LPC's determination and challenging the Vornado respondents' actions pursuant to it. Posenthd v. City of New York, 283 A.D.2d at 161; S t w s a v. Stassa, 73 A.D.3d at 1158; Estate of Claydon v. Ehrinq, 65 A.D.3d at 724-25. Therefore the court denies their motion to dismiss the petition based on petitioners' laches. allison2.134 20 [* 22] 111. STANDING TO ENFORCE THE LPL AND SPECIFICALLY THE rERTIFICATE OF APPROPRIATENESS A. The StatutQrv Enforcement Administrative Code § $ cherne 25-317.2(a) authorizes LPC to issue orders to any person who appears to be in charge of or involved in work on a landmark to stop the work, upon a reasonable belief that w o r k is being performed in violation of the LPL. LPC'may requeet the assistance of the New York City Police Department or Department of Buildings in enforcing the orders. N . Y . C . Code 5 25-317.2(a) 2 ) . ( Administrative Code § Admin. 25-317.2(c) authorizes LPC's recovery of a $500 civil penalty for each day of noncompliance with its orders. I1Upon the violation of any nrovisionll of the LPL, in addition to any violation of !'any stop-work order," "or whenever any person is about to engage in . . . any a c t or practice that may constitute a violationvv the LPL, LPC may request the City of Corporation Counsel, and the Corporation Counsel is authorized, to institute all necessary actions and/or proceedings to restrain, correct or abate such violation or potential violation, to compel compliance with such order and/or seek civil penalties. I .§ d 25-317.2(d)(1) (emphases added). The Corporation Counsel institutes these actiona on behalf of the city and may seek provisional and injunctive as well as other relief. 317.2(d) ( 2 ) . I .5 d 25- In addition to enforcement by LPC, the Police Department, and the Department of Buildings, LPC may designate other city agencies to enforce any provisions of the LPL. LPC, the Police Department, the Department of Buildings, and other allison2.134 21 [* 23] designated agencies all may do so either through the m e a m specified above or by instituting criminal actions. a§ 25- 317.2(f). The criminal penalties apply broadly: $500-10,000 fines and 30 days to one year of imprisonment, depending on the violation, increasing upon repeated violations, and each day in violation a separate offense. § The civil penalties for 25-317. violation of the LPL or an order baeed on specified provisions of the LPL may be even heavier: the property's fair market value or twice the coat of replicating protected features, again increasing upon repeated violatione, and each day in violation a separate offense. i 25-317.1. i The statutory scheme establishee administrative tribunals for recovery of these penalties. B. I .5 d 25-317.1(b). Petitionera' Claims Where LPC has issued a Certificate of Appropriateness permitting demolition, reconstruction, or alteration of any part of a landmark, Administrative Code 5 25-305(a)(3) prohibits work in violation of the certificate. to enforce Administrative Code § Petitioners seek specifically 25-305 to remedy the Vornado respondents' alleged violation of the Certificate of Appropriateness governing the MTC Building, by exceeding the work authorized, as well as to enforce a11 respondents' compliance with various provisions of the LPL in the iseuance and implementation of the certificate. Although Administrative Code allison2.134 22 § 25-317.2 unquestionably [* 24] authorizes LPC, city agencies, and the Corporation Counsel to enforce the LPL, including Administrative Code § 25-305, § 25- 317.2 neither expressly includes nor expressly excludes a right of action to enforce the LPL by non-governmental parties such as petitioners. Where a New York State or City statute neither providee nor forbids such a private right of action, it may be implied if (1) petitioners are "of the class for whose particular benefit the statute was enacted"; (2) I1a private right of action would promote the legislative purpose"; and ( 3 ) "such a right would be consistent with the legislative Bcheme." Ih r v. E a s t J (ebR &nuh Cent, School Dist., 94 N.Y.2d 32, 38 (1999); Mark G. v, Sabol, 93 N.Y.2d 710, 719 (1999); Sheehy v. Biq F l a t s Community m, 7 3 N.Y.2d 6 2 9 , 633 (1989). See CPC Int.1. v. McKesson Corp., 70 N.Y.2d 268, 276 (1987); Rhodes v . He rz, v. American Kennel Club, 304 A.D.2d at 79. 8 4 A.D.3d at 9; Hammer I Determination of the second criterion in itself involves a two-part inquiry: (a) the legislature's objective and then (b) whether a private right of action would promote that objective. Uhr v. East Greenbush Cent. School Dis t , , 94 N.Y.2d at 38; Rhodes v. Herz, 84 A.D.3d at 10. Even where the legislative objective is to benefit the whole population, here for example, New York City, or at least a c l a s s that includes petitioners, and liability to private parties would encourage compliance with t h e legislation and deter unlawful conduct by respondents and other similar parties, a private right of action rests on the third, critical criterion. Thus, even where private enforcement would allison2.134 23 [* 25] promote the statutory purpose, satisfying the second criterion, private enforcement s t i l l may be inconsistent with the statutory acheme, failing to meet the third criterion. U h r v. East Greenbush Cent. School Dist,, 94 N.Y.2d at 39-40; Mark G. v. $ a b o l , 93 N.Y.2d at 720; CPC Intl. v , McKesmn CQL-P., 70 N.Y.2d at 2 7 6 - 7 7 ; Rhodes v, Heyz, 8 4 A.D.3d at 10, 13. See Delqado v. New York C i t v Hovs. Auth., 66 A.D.3d 607, 608 (1st Dep't 2009). None of respondents contends that the first two criteria are not satisfied here. Petitioners, on the other hand, do not contest that Administrative Code 5 5 25-317 to 25-317.2 impose Mark G . v. Sabol, 93 N.Y.2d at 720; their own Rhodes v. Herz, 84 A.D.3d at 4, or "extensive,llRhodes v. Herz, 84 A.D.3d at 11, IIpokent official enforcementll mechanisms, Uhr v. East Greenbush Cent. School Dist., 94 N.Y.2.d at 40, including "broad regulatory and remedial powersll to intervene and prevent violations of the LPL "at t h e first indication" of proscribed conduct and to institute administrative, civil, and criminal prosecution. CPC I n t l . v. McKesson Corp., 70 N.Y.2d at 2 7 7 . , - 84 A.D.3d at 5 - 6 , See 10-11; Hammer v. American Kennel Club, 304 A.D.2d at 79-80; Frank v, DairnlerChrvsler COSP., 292 A.D.2d 118, 128 (1st Dep't 2 0 0 2 ) . Consistency with the LPL's purpose includeB consistency with this enforcement scheme. Cpc Intl. v. McKesson CorpLI 7 0 N.Y.2d at 2 7 7 . Especially where the proscribed conduct constitutes a misdemeanor, N , Y . C . § 25-317, Admin. Code and the legislation specifies the means f o r enforcing those provisions, it is entrusted to the law enforcement allison2.134 24 [* 26] agencies, such as the Police Department and Corporation Counsel, and civil remedies such as injunctive relief ordinarily are unavailable to private parties to prevent criminal offenses. Hammer v, American Kennel Club, 304 A.D.2d at 7 9 - 8 0 . Thus the court well might conclude that a right of action by private parties with different motivatiorm and approaches from the official enforcement authorities may cause a divergent allocation of enforcement resources and disserve the goal of consistency, Uhr v. East Greenbush Cent. S C h o O l Dist., 94 N.Y.2d at 4 0 ; Mark G . v . Sabol, 93 N.Y.2d at 720; phodes v. Herz, 8 4 A.D.3d at 10, 13, so t h a t o n l y those expressly authorized officials may seek remedies for violations of the LPL. F.q., Cpc Tntl. v. McKesson Corp., 70 N.Y.2d at 277; Delqado v. New York Citv Hous. Auth., 66 A.D.3d 607, 608 (1st Dep't 2009); Hammer v. American Kennel Club, 304 A.D.2d at 80-81. Yet the court equally may conclude that a private wight of action coalesces smoothly with the statutory scheme; that an enforcement scheme's capacity always may be increased; and that, especially given constraints on resources, an infusion of strength may be neceBsary for the statutes' optimal operation. W r v. E w t Greenbush Cent. School Dist., 94 N.Y.2d at 40; phodes v , Herz, 84 A.D.3d at 13. The most significant party that might express a position on this critical issue has not voiced any viewpoint. Certainly, were LPC to take the position that a private right of action would supplement LPC'EI implementation of the statutory scheme or enhance its effectiveness, that view would bear heavily on the alliaon2.134 25 [* 27] court's conclusion. Without that input, the court may not conclude that the LpL'a official enforcement mechanisms, however comprehensive and potent, do not accommodate a private right of action by petitioners, even to enforce Administrative Code 5 2 5 305 to remedy an alleged violation of the Certificate of allison2.134 26 [* 28] regulatory procedures; was arbitrary, irrational, or an abuse of discretion, C.P.L.R. 5 7803 (3); or, baaed on the entire administrative record, was unsupported by substantial evidence. C.P.L.R. 5 7803(4). While these avenues provide petitionera a remedy even to enforce the Certificate of Appropriateness, the LpL also provides them a remedy to protect against violations of t h e statutes without Beeking injunctive relief themselves. They may seek LPC s imposition of civil or criminal penalties through a complaint to the LPC upon a reasonable belief that work is being performed in violation of the LPL. N.Y.C. Admin 5 25-317.2(a); Hammer v . American Kennel Club, 304 A.D.2d at 80. Again, if LPC determines that no such violation has occurred o r for any other reason determines not to enforce the LPL, petitioners may seek judicial review of that determination pursuanL to C.P.L.R. § 7803(1) , ( 3 ) , or (4). Frank v . DaimlerChrysler Gorp., 292 A.D.2d at 128. For the above reaaons, at this juncture, the court denies the Vornado respondents motion to dismiss petitioners claims to enforce the Vornado respondents compliance with the Certificate of Appropriateness governing the MTC Building and to enforce all respondents compliance with the LPL in the issuance and implementation of the certificate. C.P.L.R. § 3211(a) (7). The c o u r t provides LPC an opportunity to express a position on whether private enforcement of the LPL may interfere with the statutory scheme that authorizes enforcement by LPC and companion allison2.134 27 [* 29] governmental officials and agencies, but does not expressly grant them exclusive authority. U h r v. East Greepbush Cept. School Dist., 94 N.Y.2d at 40; CPC Intl. v. McKessQn Corp., 7 0 N.Y.2d at 277; Rhodea v, Herz, 84 A.D.3d at 10, 13. Given the alternative avenues for relief outlined above, petitionera also may clarify the extent to which they rely on an implied private right of action. Respondents then may s e e k dismissal of petitioners enforcement claims in the ultimate determination of t h e petition. C.P.L.R. §§ 3212(b) ; 7806. IV. FAILURE TO STATE A CLAIM The Vornado respondents further maintain that petitioners do not even state a claim that L P C s iasuance of t h e Certificate of Appropriateness for the MTC Building violated statutory or regulatory procedures; was arbitrary, irrational, or an abuse of discretion, C . P . L . R . evidence. § 7803(3); C.P.L.R. 5 7 8 0 3 ( 4 ) . or waB unsupported by substantial The survival of petitioners claim that LPC s determination is unsupported by substantial evidence, according C.P.L.R. F 7 8 0 3 ( 4 ) ~very terms, must depend , on the entire administrative record. C.P.L.R. § 7804(f); Nasaau BOCES Cent. Council Qf Teachers v . Board of COOP. Educational Servs. of Nassau County, 63 N.Y.2d 100, 102-103 (1984); Carnacho v. Kellv, 57 A.D.3d 297, 298 (1st Dep t 2 0 0 8 ) ; Flbanv Manor Iac. v. N e w York State L i q , Ayth., 5 7 A.D.3d 1 4 2 , 144 (1st Dep t 2008) ; Develop DQn t Destsov B rooklyn v. Enmire State Dev, Corp., 31 A.D.3d 144, 153 (1st Dep t 2006). See Hemphill v. New York City Hous, Auth., 272 A.D.2d 267 (1st Dep t 2000). allison2.134 28 While the [* 30] Vornado respondents may attempt to show that, even based on the pieces of t h a t record presented by the petition, substantial evidence supports LPC s determination, what may appear substantial in a limited context may be insubstantial in the context of the record as a whole. Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educational Serve. of Nasaau County, 63 N.Y.2d at 102; Camacho v . Kellv, 57 A . D . 3 d at 299; Albany Manor: Inc. v, New York State L i s , Auth., 5 7 A.D.3d a t 145-46; Develop DQn t Destroy B r o o k l m v. Empire S t a t e Dev. Corn, 3 1 I A.D.3d at 153. The same concern applies here to petitioners claims that LPC s determination was arbitrary or irrational or violated statutory or regulatory procedures, C.P.L.R. § 7 8 0 3 ( 3 ) . What may appear rational in a limited context may be rendered irrational when the record reveals abundant evidence directly to the contrary. Camacho v. Kellv, 57 A.D.3d at 299; Albany Manor Inc. v. New YQrk State Lis, Auth., 57 A.D.3d at 144. see Waasau BOCES Cent. Council of Teachem v . Board of Coon. Edu cation31 Serve. of Nassau County, 63 N.Y.2d at 102. While pieces of the record may comply with the applicable law, o t h e r p a r t s may solidly support petitioners claims that LPC reached its determination through procedures and actions that violated the law. L; Carnacho v. Kellv, 57 A.D.3d at 2 9 9 ; Albqny Manor Inc. v. New York State Licr. Auth., 5 7 A.D.3d at 146; Develop Dov t De9tm y Brooklyn v. E r n D J r e $tate Dev. C o r p . , 31 A.D.3d at 150, 153. allison2.134 29 [* 31] For example, the Vornado respondents point out that LPC s previously unused MTC Building comports with Administrative Code § 25-301(a) s purpose of continuing a landmark s use and § 25- queBtions as: why the remodeling was necessary to accommodate a retail clothing business as a tenant; why two tenants were necessary, in turn necessitating a division of the unified space and additional entrances, breaking up.the uninterrupted facade, a significant feature supporting the landmark status; why no other or single tenant, equally lucrative but requiring less remodeling, was interested in the first t w o floors at this highly desirable location; o r why the freestanding escalators running parallel to 5th Avenue must be moved, f o r the prospective tenant or any other tenant, their location representing another significant design component unifying the first and second floors. Insofar as petitioners claim LPC a determination does not reasons for granting the Certificate of Appropriateness, the Vornado respondents rely on the extensive administrative proceBs explaining why LPC granted t h e certificate. N . Y . C . Admin. Code 5 impossible to discern definitively whether it in fact shows substantial supporting evidence, rationality, and the absence of any violation of Administrative Code allison2 ! 134 30 § 25-307, 5 25-308, 5 25- [* 32] 313, or 25-315, delineating the factors and procedureg that § govern isauance of the certificate and the contents of LPC's determination. The current record does not even establish t h e precise document that constitutea the final determination. Nor may the court consider respondents' affidavits or o t h e r evidence, even if in admissible form, to defeat petitioners' claims upon a motion to dismiss them pursuant to C.P.L.R. § 3211(a) ( 7 ) . Lawrence v. Graubard Miller, 11 N.Y.3d 588, 595 (2008); Gosben v. Mutual L i f e I n s . Co. of V.Y,, 98 N.Y.2d 314, 326 (2002); Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994); Yoghiharu Iqarashi v. Shohakv Hiqaehi, 289 A.D.2d 128 (1st Dep't 2 0 0 1 ) . In Burnl the court will not dismiss any claims on their merits before allowing respondents to answer. 7804(f); NaRsau BOCES C e n t , CQuncil C.P.L.R. § of Teachers v. Board of COOP. Educational S e w s . of Nassau County, 63 N.Y.2d at 102-103; Camacho v. Kellv, 5 7 A.D.3d at 298; Develm Don't Destroy prooklvn v. Empire State Dev. C ~ r p . ,31. A.D.3d at 153. First, the facta currently are not so fully developed and presented as to establiah the absence of any factual diapute bearing on t h e claims. C.P.L.R. §§ 409(b), 7804(h), 7806; Nasaau BOCES Cent. Council of Teachers v. Board of COQP. Educational Servs. of Nassau County, 63 N.Y.2d at 102-103; Camacho v. KelLv, 57 A.D.3d at 298; Develop D Q n ' t Destroy Brooklvn v. Fmpire State Dev, Cow., 31 A.D.3d at 153. Nor do the current facts permit a conclusion based on undisputed f a c t s demonstrating (1) substantial evidence supporting LPC's issuance of its Certificate allison2.134 31 [* 33] of Appropriateness, C.P.L.R. 5 7803(4); that LPC's (2) determination was rational; and ( 3 ) that LPC reached ite determination through procedures and actions in full compliance with applicable law. C.P.L.R. § 7803(3). See C.P.L.R. §§ 409(b), 7 8 0 4 ( f ) , 7806; NasBau BOCES Cent. Council of Teachera v. Board of C ~ o p . Educational Serve. of Vassau County, 63 N.Y.2d at 102-103; Carnacho v, Kellv, 57 A.D.3d at 299; Albanv Mmoy I n c . v. New York $tate L i s . Auth., 57 A.D.3d at 145-46; Develop Don't Destroy Brooklvn v . Empire State Dev. Corn., 31 A.D.3d a t 1 5 0 , 153. V. PRELIMINARY INJVNCTIQN Given that petitioners demonstrate at least one or more meritorioue claims, and all the claims by petitioners Allison and Citizens Emergency Committee to Preserve Preservation survive dismissal at this juncture, the court converts its temporary restraining order d a t e d July 26, 2011, to a preliminary injunction, f o r the reasons given in that p r i o r decision and t h e reasons just etated. gn Second Cafe, Inc. 271-72 (1st Dep't C.P.L.R. 5 s 6301, 6311(1), 6312(a); Second v. Hins Sinq T r a d i n s . Inc,, 66 A.D.3d 255, 2009); OraSure Tech., Inc. v . Prestiqe BrandR Holdinqa, I nc . , 40 A.D.3d 413, 414 (1st Dep't 2007); FTI, L Cgnsultins, nc. v. Pr~cevaterhouseCoopers LP, 8 A.D.3d at 146; PyCtey v. Sinqer, 73 A.D.3d 1147, 1149 ( 2 d Dep't 2010). The preliminary injunction shall be effective upon petitioners providing an undertaking or other security of $370,000 in favor of t h e Vornado reepondents by August 31, 2011, at 5 : O O p . m . , or, allison2.134 32 [* 34] if after that date, five business days after notice to reepondents that petitioners have provided the required undertaking or security. C.P.L.R. 5 6312(b). As this injunction is likely to be of less limited duration than the temporary restraining order, the five days will allow respondents, which understandably may not have sought to increase the undertakivg while the injunction w a s not in effect, to seek an increase. Any request for an increase must be by a motion, which may be by an o r d e r to ahow cause, upon a showing, by admissible evidence, that the injunction will cause respondents more t h a n a potential loss of one month's net rental income, the basis for the current $370,000 requirement. The preliminary injunction shall prohibit the Vornado respondents from undertaking demolition, removal, physical alteration, or other work affecting building components bf the first two floors of 510 5th Avenue, New York County, that is irreversible or incapable of restoration to the original condition w i t h replacement materials identical to t h e original materials. If the materials a r e not replaceable, these respondente shall preserve the original materials f o r reatoration to their original use or shall maintain them in p l a c e . The injunction does not apply to maintenance or repairs that do not alter the building'B structure or finishes. The Vornado respondents have not demonstrated that this limited injunction will impose undue hardship on them, Waldbaum, pnc. v. Fifth Ave. of LQnq Is. Realty Essocs,, allieron2.134 33 8 5 N.Y.2d 600, 607 [* 35] (1995); SecQnd on Secqnd Cafe, Inc. v. Einq Sinq Tradinq, I:nc.1 66 A.D.3d at 273; drastically upset the statufl SUQ, , Putter v. Sinqer, 73 A.D.3d at 1149; or materially interfere with their ability to undertake their remodelling and leasing of the MTC Building space. Waldbaum, Inc. v. Fifth A v e . of Lanq Is. Realtv ASBQCS., 85 N.Y.2d at 607; Second on Second Cafe, I n c . v. King $inq Tradinq, Inc., 66 A.D.3d at 273. Nevertheless, they have shown, without petitioners showing to the contrary, that this injunction is enough to protect against any immediate and irreparable injury to petitioners from the demolition and construction that respondents initiated. C.P.L.R. §§ 6301, 6312(a); Second on Second Cafe, Inc. v. Bins S i n q Tradins, Inc., 66 A.D.3d at 271-72; Orq$ure Te c h . , T nc. v , Prestiqe Brands Holdinqa, Inc., 40 A.D.3d at 414; FTI Consultins, Inc. v . PricewaterhQuseCoQpers LLP, 8 A.D.3d at 146; Putter v. Sinqer, 73 A.D.3d at 1149. See Waldbaum, Inc. v. Fifth Ave. of Lon9 18. Realty ASSOCB., 85 N.Y.2d at 607; VI. DISPOSITION To recapitulate, the court grants respondents' motion and cross-motion to t h e extent of dismissing t h e petition by petitioners Farrelly, Nardin, and Grunewald; otherwiBe denies the motion and cross-motion; and grants petitioners' motion f o r a preliminary injunction to the limited e x t e n t set f o r t h above. C.P.L.R. Si§ 3211 (a)(5) and (7), 6301, 6311 (1), 6312 (a), 7804 ( f ) . ' Respondents shall serve and deliver to t h e court at 7 1 Thomas Street, Room 204, any answer to the petition within 10 days a f t e r allison2.134 34 [* 36] service of this order with notice of entry. C . P . L . R . 7804(f). Petitioners shall serve and likewise deliver any r e p l y within 10 day8 after service of an answer. C . P . L . R . and ( f ) . 5 5 3211(f), § 7804(d) The court then will Bchedule a further hearing on the petition to determine the extent of permanent relief to be granted. In reaching this decision, the court: has not considered any arguments or evidence offered after submission and oral argument of the motions and crogs-motions, especially when all parties' consent was not obtained as of the oral argument or even afterward. Any request for a modification of this decision, any claim of noncompliance with this decision, or any other request DATED: August 18, 2011 a q s LUCY BILLINGS, J . S . C . LUCY BIUIMGS J S . C. allison2.134 35

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