Our Day in Court
n a packed courtroom with about 80 people in the gallery and the jury box, people in wheelchairs, and a number turned away,
the issues involved with two Article 78 petitions were heard in court on May 18. The crowd was actively listening, often letting
the court know what they felt. Short but spontaneous applause by just about the whole audience was heard several times. Overall
it was a positive afternoon.
We were a bit nervous after last week's delay and combining the two cases into one hearing, but it worked out quite well.
The judge appeared to have some of the same concerns we do, particularly the cultural tradition of the Park and free speech
Both Ronald Podolsky's and Jonathan Greenberg's cases were heard in New York County Supreme Court. Predictably, the Parks
Department denied everything and moved for dismissal. They showed their contempt for the public by making the claim that the
Art Commission and Landmarks Commission decisions are binding, and they do not have to take into account any public testimony
in those decisions. Mr. Podolsky attacked these claims by reading the charters of these commissions. He quoted Red Skelton
in making his point about the uselessness and ineffectiveness of people testifying without access to the proper information
in his FOIL action against the city. Arlene Boop, attorney for Greenberg's petition, also stated the case against Parks' tactics
clearly and firmly.
The packed house didn't impress Parks' lawyers, though. Parks is still shoveling coal into their locomotive running down
the track towards the cliff, to use Adrian Benepe's train analogy. Parks once again tried justifying the whole redesign on
ADA factors, which was not accepted well by the gallery. Their attempts to minimize the power of the Art and Landmark Commissions
and Community Boards were shameful, but rebutted by Ms. Boop and Mr. Podolsky. Parks was trying to trivialize the fact that
they gave very little detail to the commissions, and because of this, the fact that they changed many critical size factors
after the fact is of no concern. They named three different numbers for the percentage change in the size of the central area
in their discussion yesterday, without describing what measurement they were using (radius? area? circumference? diameter?).
The judge did not accept their statement that since nobody specifically asked them about these deatils, they did not have
to talk about them. She also said that the major changes caused by the size changes and the fountain sprays should have been
taken into account since they affect the cultural use of the Park.
Parks finally admitted that they still have to do an Environmental Impact Statement about the Park redesign. This is a
key part of Mr. Podolsky's and ECO's petition from last summer, which will come into play again when the Park plans are ready
to implement. They tried to diminish their responsibility in the stipulation that was brought into play when the petition
was withdrawn without prejudice last summer. They have 10 days to present the results and plan to the petitioners, but said
that they did not have to wait to do anything before starting construction after they present them. This was questioned by
the judge, and she said this would be looked at further, since Parks would need to give the petitioners reasonable time for
reopening the case before starting construction.
In closing, the judge said that she had a lot of other cases she is working on, so there might not be a quick decision
on these petitions. She also extended the injunction against Parks' moving forward with the redesign until the decision, including
putting out requests for bids. Parks already has to change and rebid the plans after the bids that came in were about 3 million
dollars above the total monies allocated for the entire project so far, and the judge's decision may move things back even
further. It looks like we have a good chance of having the Park for another year.
We'd like to thank all the people who came out and supported the petitions, and especially to Susan Furman who relentlessly
handed out flyers for a month and let people know about the schedule change.
Victory in State Supreme Court
Judge Emily Goodman decided to continue the injunction against the City proceeding with their Park redesign, forcing the Parks
Department to go through Community Board 2, the Landmarks Preservation Committee, and the Art Commission.
Like Sisyphus, Parks needs to try to push the plan up the hill again. It's already fallen to the bottom once. Let's continue
our efforts to keep it falling.
In the meantime, rather than go through CB2 and the Art and Landmarks Commissions, the City will be appealing the decision.
According to the Villager, a November date has been set in Appelate Court. They'd prefer taking their chances in court rather
than have any more public input, we guess.
The Two Proceedings
On January 23 2006, attorney Ronald Podolsky filed an Article 78 proceeding to void the Art Commission decision to approve
the Park redesign based on the failure of the Parks Department to release information about the plan to the public. The case
was scheduled for May 11 to be heard by Judge Emily J. Goodman. On May 1, another more sweeping Article 78 proceeding was
brought against the City and attached to Mr. Podolsky's case, which was rescheduled a week later to May 18 so both would be
heard at the same time.
As it turns out, the judge dismissed Mr. Podolsky's case in the recent decision, but Mr. Greenberg's case was successful.
Mr. Podolsky had this to say:
"I'm glad I was no longer the only kid on the block. I have the misfortune to disagree with Justice Goodman and hope
that she will join the considerable number of members of the judiciary who have held against me in the past only to be overruled
by higher tribunals."
There was a slight misstatement of the situation in last week's Villager, in the Scoopy's Notebook section:
'"We won!" Greenberg said. "I just got the call from our lawyer, Arlene Boop, 10 minutes ago. The Podolsky
suit was dismissed."
Attorney Ronald Podolsky had filed another lawsuit, in addition to Greenberg's, but Greenberg said, "They felt our
suit was sufficient."'
While elation over the victory is certainly warranted, it should be noted that Mr. Podolsky's case was not just "another
lawsuit." It was the one that Greenberg's case attached to, well after the judge was appointed to the first case. Without
Podolsky's case, it might have happened that another judge who might have gone the other way in the case would have been selected
with a different outcome.
Judge Goodman's Decisions
The 19 page decision, available at the link below, gives a good history of the timeline of the main events in the park fight
so far. Two interesting quotes were brought up.
One was from the Art Commission decision on 1/9/2006 which stated "a plaque honoring the performers, who are such
an integral part of the park's rich history, be incorporated into the design of the park."
The other was from the Community Board 2 resolution on 5/21/05 which stated, " it is further resolved that the park
must retain its character as a neighborhood park and as a place intended to encourage freedom of expression and informal preferences."
Some key points in the decision follow:
"If plans have been presented to the Landmarks Commission which omit, or obscure elements which significantly impact
aspects of the plan that are at the heart of the Commission's function, de novo review is similarly appropriate"
"As a result, both the Landmarks Commission and the Art Commission were denied the informed views of the Community
Board in reaching their decisions, and the Art Commission was additionally deprived of the views of the Landmarks Commission"
"Jared Knowles states that reduction of overall pavement and increase in greenspace was discussed at the meeting
of the Landmarks Commission; however, he does not state that a decrease in the size of the fountain plaza was specifically
discussed. Nor is the court convinced that a decrease of 23%, rather than 33% of the fountain plaza areia is insignificant,
particularly in light of the (Gerson-Quinn agreement that said) that the area would not be decreased more than 10%. Similarly,
the court is not satisfied that merely including drawings in the plans that depict jets of water, provides sufficient information
for the Community Board to adequately evaluate the plan".
"I conclude, on the basis of this record, that essential aspects of the Parks Department's plans for the fountain
and the fountain plaza, which could have a substantial impact on the historic role of the Washington Square park, were not
adequately revealed to Community Board 2 of the Landmarks Commission, precluding the exercise of their roles in the oversight
process as intended by the City Charter and the New York City Code. As a result, both the Landmarks Commission and the Art
Commission were deined the informed views of the Community Board in reaching their decisions, and the Art Commission was additionally
deprived of the views of the Landmarks Commission."
The final result is that the City is enjoined, continuing the previous injunction of May 18 2006, from any bidding or
work on the redesign until Community Board 2, the Landmarks Preservation Commission and the Art Commission review the SAME
plans and issue their approval.
We can expect the City and Parks to do everything in their power to appeal and void the decision, so we'l keep you informed
if anything new happens.
In the meantime, congratulations to Mr. Greenberg, his co-petitioners and attorneys for a job well done. Edit
Click here to download Judge Goodman's decision on Mr. Podolsky's case
Click here to download Judge Goodman's decison on Jonathan Greenberg's case
The City's Appeal 10/31/06
The City's appeal of Judge Goodman's July decision was heard on Halloween. No decision was reached as each case only had about
fifteen minutes of testimony.
It was encouraging to hear the questions from the five judges, though. They asked a lot of questions about the timing
of when information came out regarding the central plaza size and the fountain changes.
Once again, the city's attorney gave the little song and dance about how the new 45 foot fountain spray with eight high
pressure jets wouldn't affect people outside. Why? Because they are adjustable to any height. If someone wanted to perform,
all they'd need to do is write to the city and they would adjust it for them. It's not clear who would be there at all times
to do this. Again, it goes against the spontaneity of the performances.
For several days this summer, the city ran the existing fountain at full pressure. Even on non-windy days, the spray reached
the outside of the existing seating areas. Complaints made them lower the spray again. A smaller circle can only make things
We'll let you know when we hear about a decision. The city wants a fast decision, but hopefully the five state judges
will take the time to make the right one.
Click here to read the City's appeal documents and attachments in PDF format
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