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Supreme Court of the State of New York County of New York SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - x LANDMARK WEST! INC., 91 CENTRAL Index No. 650354/08 PARK WEST CORPORATION and THOMAS HANSEN, Petitioners, - against - CITY OF NEW YORK BOARD OF STANDARDS AND APPEALS, NEW YORK CITY PLANNING NOTICE OF COMMISSION, HON. ANDREW CUOMO, as MOTION FOR Attorney General of the State of New York, LEAVE TO and CONGREGATION SHEARITH ISRAEL, REARGUE also described as the Trustees of Congregation Shearith Israel, Respondents. -------------------- x PLEASE TAKE NOTICE that, upon the October 23, 2009 affirmation of David Rosenberg, the exhibits thereto, and the memorandum of law submitted herewith, Petitioners will move this Court at the Motion Submission Part thereof, Room 130, at the Courthouse, 60 Centre Street, New York, New York, on December 7, 2009, at 9:30 a.m., or as soon thereafter as counsel can be heard, for an order: (1) Pursuant to CPLR 2221(d), granting reargument of this Court's decision and order dated August 4, 2009, served with notice of entry dated October 6, 2008, dismissing the proceeding; and (2) Upon reargument, withdrawing the decision and order and, pursuant to CPLR 5015, vacating the judgment issued thereon; and (3) Granting to Petitioners such other and further relief as isappropriate. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b), answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served so as to be received by Petitioners' attorneys at least seven (7) days prior to the return date of this motion. Dated: New York, New York October 23, 2009 MARCUS ROSENBERG & DIAMOND LLP Attorneys for Petitioners By: Did Rosenbe 488 Madison Avenue New York, New York 10022 (212) 755-7500 2 TO: Proskauer Rose LLP Attorneys for Respondent Congregation Shearith Israel 1585 Broadway New York, New York 10036-8299 Attn: Louis M. Solomon, Esq. Corporation Counsel of the City of New York,Attorneys for Respondents City of New York Board of Standards and Appeals and New York City Planning Commission 100 Church Street Administrative Law Room 5-154 New York, New York 10097 Attn:Christina Hoggan, Esq. 3 SUPREME COURT. OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - x LANDMARK WEST! INC., 91 CENTRAL Index No. 650354/08 PARK WEST CORPORATION and THOMAS HANSEN, Petitioners, - against - CITY OF NEW YORK BOARD OF STANDARDS AND APPEALS, NEW YORK CITY PLANNING COMMISSION, HON. ANDREW CUOMO, as Attorney General of the State of New York, and CONGREGATION SHEARITH ISRAEL, also described as the Trustees of Congregation Shearith Israel, Respondents. -------------------- x PETITIONERS' MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR LEAVE TO REARGUE MARCUS ROSENBERG & DIAMOND LLP Attorneys for Petitioners 488 Madison Avenue 17th Floor New York, New York 10022 (212) 755-7500 Certified pursuant to § 130-1.1(a) of the Rules of the Chief Administrator By: A Rochelle Rosenberg Dated: October 29, 2009 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LANDMARK WEST! INC., 91 CENTRAL Index No. 650354/08 PARK WEST CORPORATION and THOMAS HANSEN, Petitioners, - against - CITY OF NEW YORK BOARD OF STANDARDS AND APPEALS, NEW YORK CITY PLANNING COMMISSION, HON. ANDREW CUOMO, as Attorney General of the State of New York, and CONGREGATION SHEARITH ISRAEL, also described as the Trustees of Congregation Shearith Israel, Respondents. PETITIONERS' MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR LEAVE TO REARGUE PRELIMINARY STATEMENT This memorandum of law is submitted in support of the motion by Petitioners Landmark West!, Inc., 91 Central Park West Corporation and Thomas Hansen (together, the "Petitioners"), pursuant to CPLR 2221(d), for leave to reargue this Court's decision and order dated August 4, 2009, served with notice of entry dated October 6, 2009 (the "Decision") [Exhibit A], and upon granting of reargument, withdrawing the Decision and vacating the judgment incorporated in the Decision pursuantto CPLR 5015.1 Petitioners' Second Amended Verified Petition (the "Petition") [Exhibit B] sought to vacate the August 26, 2008 resolution (the "Resolution") [Exhibit Cl of Respondent'City of New York Board of Standards and Appeals ("BSA") which granted all requests made in the application of Respondent Congregation Shearith Israel ("CSI") for seven variances from important requirements of the New York City Zoning Resolution (the "Zoning Resolution"), which are intended to "promote the public health and welfare, including provisions for adequate light, air [and] convenience of access." General City Law, § 20. It is respectfully suggested that, due to the presentation to the Court of two separate cases,2 raising a plethora of issues -- some overlapping and others not --the Court misconstrued the facts and failed to address factual and legal issues raised by Petitioners. All exhibits are annexed to the October 23; 2009 affirmation of David Rosenberg (the "Rosenberg Aff. ").Unless otherwise indicated, all emphasis herein is added and all internal citations are omitted. 2 In addition to this case, the Court was confronted with Kettaneh v. Board of Standards and Appeals of the City of New York, Index No. 113227/08("Kettaneh"), which the Court dismissed a month before the Decision, by decision dated July 10, 2009, entered July 24, 2009 (the"KettanehDecision") [Exhibit D]. 2 It is also respectfully suggested that the deference accordedby the Court toBSA's Resolutionwent beyondthat required or permittedbywell-established precedent,warranting reconsideration. STATEMENT OF FACTS The following facts are relevant to this motion. A more complete recitation of the facts is set forth in the Petition [Exhibit B]. The March 31 Preliminary Hearing On March 31, 2009, Petitioners and Respondents appeared for a preliminary hearing before this Court together with the Kettaneh petitioners.At that time, issue had not been joined in this action.Rather, it was. subject to a motion to dismiss, by all Respondents, on the ground that it should have been brought as an Article 78 proceeding. The discussion of the two matters at the preliminary hearing, with a less than perfectly recorded transcript [Exhibit El, apparently led the Court to believe that the facts and legal arguments presented by Petitioners -- with the exception of two issues -- were the same as those presented by theKettaneh petitioners. To the contrary, Petitioners' arguments as to BSA's lack of jurisdiction and violation of express legal 3 standards were not the same as those raised and rejected inKettanehand should be reconsideredby the Court. At the hearing, the Court questioned the attorney for Petitioners, David Rosenberg,about the differences between thisaction andKettaneh,to which, Mr. Rosenberg responded [Exhibit E, p. 5, 1. 17-23 - p. 6, 1. 4]: Well I don't know everything that's in their papers. Yesterday I received from Mr. Sugarman, the attorney for the plaintiff[s] in the other case, I think a couple thousand pages of documents, which I had not seen previous[ly]. So I'm not fully familiar with their case.I wasn't served with the papers in that case. I don't know what the differences between theircases are. When the Court asked BSA's attorney to describe the differences, even she first replied [Exhibit E, p. 6,1.11], "If you will give me a minute."After an intervening colloquy with Kettaneh's attorney, BSA's attorney noted two differences between Kettaneh and this proceeding [Exhibit E, p. 27, 1.17-26], to which CSI's attorney added his understanding of the issues [Exhibit E, p. 28, 1. 7 - p. 29, 1. 23]. Finally, the Court asked Mr. Rosenberg to address those comments, which he did [Exhibit E, p. 30, 1. 12 - p. 33, 1. 19]. 4 In response to the Court's repeated inquiry about the differences between the two actions, Mr. Rosenberg stated "I think the rest of the issues are probably encompassed in[Kettaneh's]petition" [Exhibit E, p. 33, 1. 22-23]. Following the March 31 preliminaryhearing,the Court issued anApril 17, 2009 order [Exhibit F] converting this case into an Article 78 proceeding. The Decision After the parties exchanged further papers, the Court issued its Decision which recites [Exhibit A, p. 2]:"At the March 31 oral argument, the court questioned counsel for petitioners as to the differences between the instant proceeding and the Kettaneh proceeding. Petitioners' counsel articulated two specific claims ... that were not raised by petitioners in Kettaneh." In fact, as set forth above, Mr. Rosenberg stated he was not fully aware of the extent of the issues raised inKettaneh.Rather, only the attorneys for the other parties attempted to identify all of the differences, since each of them, but not Mr. Rosenberg, had served, or had been served with, theKettanehpapers. The Decision incorporated theKettanehDecision and only discussed two of the claims raised in the Petition. 5 Focusing only on those two issues, the Court failed to address the other issues raised by Petitioners, which had not been raised or decided inKettaneh. Solely due to the significance of the jurisdictional issue,it will be discussed first, followed by a discussion of the issues not addressed by the Court. ARGUMENT Point I The Court Accorded Undue Deference To BSA's Determination Of Its Own Jurisdiction -- Jurisdiction Was Not Established Pursuant To § 666(6)(a) of the New York City Charter The DOB Notice of Objections Was Not Issued By One Of The Two Officials Required by the City Charter CSI's variance application to BSA [Exhibit G] expressly sought review of an October 28, 2005 Notice of Objections(the "2005 DOB Notice of Objections") [Exhibit H]3 issued by the New York City Department of Buildings ("DOB"), which refused to approve CSI's plans for a new building. 3 The Notice of Objections is dated, at the top, October 28, 2005, the date of its original issuance.
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